1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

4 IN THE MATTER OF: )

)

5 AMENDMENTS TO 35 ILL. ADM. ) R03-21

CODE 602.105, 602.106, 602.108 ) Rulemaking - Public

6 and 602.115 ) Water Supply

14 Proceedings held on May 8, 2003, at 1:30 p.m., at the

15 Illinois Pollution Control Board, 600 South Second

16 Street, Suite 402, Springfield, Illinois, before Richard

17 R. McGill, Jr., Hearing Officer.

21 Reported By: Karen Bristow, CSR, RPR

CSR License No.: 084-003688

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23 11 North 44th Street

Belleville, IL 62226

24 (618) 277-0190

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1 APPEARANCES

3 Board Members Present:

5 Board Member Lynne P. Padovan

8 Board Staff Members Present:

10 Erin Conley

Alisa Liu, P.E.

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

13 BY: Joey Logan-Wilkey

Assistant Counsel

14 Division of Legal Counsel

1021 North Grand Avenue East

15 Springfield, Illinois 62794-9276

On behalf of the Illinois EPA

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1 INDEX

3 WITNESS PAGE NUMBER

5 MICHAEL B. CRUMLY 7

6 JERRY H. KUHN 10

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1 EXHIBITS

2 NUMBER MARKED FOR I.D. ENTERED

3 Hearing Exhibit 1 37 37

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1 PROCEEDINGS

2 (May 8, 2003; 1:30 p.m.)

3 HEARING OFFICER MCGILL: Good afternoon. I'd like

4 to welcome you to the Illinois Pollution Control Board.

5 My name's Richard McGill, and I'm the hearing officer

6 for this board rulemaking.

7 In this proceeding, the board is considering an

8 Illinois Environmental Protection Agency proposal filed

9 April 7, 2003. The agency is seeking to amend the

10 board's permitting rules for public water supplies at 35

11 Illinois Administrative Code 602. The board has

12 captioned the rulemaking "In the Matter of Amendments to

13 35 Illinois Administrative Code 602.105, 602.106,

14 602.108 and 602.115." The board assigned docket number

15 R03-21 to this proceeding, and on April 17, 2003, the

16 board accepted the agency's proposal for hearing.

17 Today is the first hearing. We have another

18 hearing scheduled for May 15 starting at 1:30 in the

19 board's Chicago office at the James R. Thompson Center.

20 Also present today on behalf of the board is Board

21 Member Lynne Padovan. She is the lead board member for

22 this rulemaking. Alisa Liu, to my left, is the

23 scientist with our technical unit, and I'll note that

24 Erin Conley, our rulemaking coordinator, is also in

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1 attendance.

2 Today's proceeding is governed by the board's

3 procedural rules. All information that is relevant and

4 not repetitious or privileged will be entered into the

5 record. We'll start off with the agency's testimony,

6 followed by questions. If any member of the public

7 shows up and is interested in testifying or asking

8 questions, they'll have that opportunity. For the court

9 reporter, if you could speak up, please, and try not

10 to-- we'll try not to talk over each other so her

11 transcript will be clear.

12 Any questions about how we'll proceed today?

13 Seeing none, I'll ask the court reporter to go ahead and

14 swear in the agency's witnesses, and then I'll turn it

15 over to Agency Counsel Joey Logan-Wilkey to start off

16 the agency's presentation.

17 (Witnesses sworn.)

18 HEARING OFFICER MCGILL: If you'd just go ahead and

19 introduce the witnesses and let us know their position,

20 their title within the agency, and then they can just go

21 ahead and-- as I understand it, they have prepared

22 written testimony that they'll read into the record?

23 MS. LOGAN-WILKEY: Yes. Okay. My name is Joey

24 Logan-Wilkey, and I'm an assistant counsel with Illinois

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1 Environmental Protection Agency, and with me today is

2 Mike Crumly, and he's the manager of the drinking water

3 unit with the compliance assurance section of the

4 Illinois EPA, and also is Jerry Kuhn. He is the permit

5 manager for the division of public water supplies at the

6 Illinois EPA. And if we could have Mike-- I think he's

7 going to start out explaining to the board the status

8 for our radionuclide enforcement program, and then Jerry

9 will address the changes to the permit regulations.

10 MR. CRUMLY: My name is Michael Crumly. I manage

11 the drinking water compliance unit, compliance assurance

12 section at the Illinois Environmental Protection

13 Agency. The drinking water compliance unit is

14 responsible for ensuring that community water supplies

15 comply with the federal Safe Drinking Water Act, the

16 Illinois Environmental Protection Act and the Illinois

17 Pollution Control Board regulations. I've worked for

18 the Illinois EPA compliance assurance section for

19 approximately 15 years. Prior to my work at the

20 Illinois EPA, I attended Southern Illinois University at

21 Carbondale and graduated with a bachelor of science

22 degree. Today I will testify about the status of

23 Illinois EPA's enforcement program for radionuclides in

24 drinking water.

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1 In 1976, USEPA published the first radionuclide

2 rule, setting a standard of 5 pico curies per liter for

3 combined radium, 15 pico curies per liter for-- and 15

4 pico curies per liter for gross alpha. In 1991, USEPA

5 proposed a controversial update to the radionuclide

6 rule, which would have set a new standard of 20 pico

7 curies per liter. It wasn't until December 2000 USEPA

8 finally finalized an updated radionuclide rule. During

9 the delay in finalizing the rule, USEPA did not require

10 primacy agencies to pursue formal enforcement against

11 water systems not meeting the 1976 regulatory limits.

12 Ultimately, the 2000 radionuclide rule retained the 1976

13 maximum contaminant levels for combined radium, which is

14 5 pico curies per liter, and gross alpha, which is 15

15 pico curies per liter, and also added an MCL for total

16 uranium, 30 micrograms per liter, and changed the point

17 of sample collection.

18 As a result of the December 7, 2000, rule, the

19 Illinois EPA started requesting that all supplies in

20 noncompliance with the radionuclide MCL submit a signed

21 commitment that compliance would be achieved by December

22 8, 2003, which is the effective date of the new rule.

23 Water systems were advised that the relative risk of

24 incurring sanctions would tend to increase

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1 proportionately with the length of delayed compliance

2 after December 8, 2003. Water systems that failed to

3 submit an acceptable compliance commitment schedule

4 during this initial outreach would be sent a violation

5 notice with the intent to consider the acceptance of an

6 enforceable schedule under a Section 31(a) compliance

7 commitment agreement if compliance is proposed by

8 December 8, 2003, or under a consent order with the

9 Attorney General's Office if compliance is proposed

10 after December 8, 2003.

11 To date, there have been a total of 221 community

12 water systems in Illinois that have experienced a

13 radionuclide MCL violation. Of the 221 systems, all but

14 102 water systems have returned to compliance.

15 Compliance for the other 119 water systems was achieved

16 by installation of water treatment, blending high-level

17 radium deep well water with low-level radium shallow

18 well water, water system inactivation, purchasing water,

19 abandoning the contaminated deep wells and drilling new

20 wells and/or any combination of the above. The Illinois

21 EPA anticipates that approximately 50 public water

22 supplies will fail to meet the December 8, 2003,

23 deadline and will be referred to the Attorney General's

24 Office, where they will be offered an opportunity to

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1 enter into a consent order that will include a date

2 certain compliance schedule.

3 HEARING OFFICER MCGILL: Thank you. Mr. Kuhn?

4 MR. KUHN: My name is Jerry Kuhn. I am the manager

5 of the permit section for the division of public water

6 supplies of the Illinois Environmental Protection Agency

7 and have held that position since October of 2000. I

8 have worked for the Illinois EPA for approximately 21

9 years, including 11 years in the division of water

10 pollution control permit section and 8 years in the

11 Bureau of Land as the RCRA unit manager in the permit

12 section. Prior to my time in the Illinois EPA, I worked

13 for a consulting engineering firm. I received a

14 bachelor of science in civil engineering degree from

15 Bradley University in 1975 and a master of science in

16 thermal and environmental engineering degree from

17 Southern Illinois University at Carbondale in 1985. I

18 have been an Illinois licensed professional engineer

19 since 1980.

20 In my current position at the Illinois EPA, I

21 oversee the review of construction permit applications

22 submitted by community water supplies. A construction

23 permit is required by the Illinois EPA for construction

24 of any new community water supply and for changes or

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1 modifications to an existing community water supply,

2 including water main extensions and water treatment

3 plant modifications.

4 Today I will testify in support of the proposed

5 amendments to 35 Illinois Administrative Code 602, the

6 permit regulations of Subtitle F, specifically in

7 regards to restricted status and the radionuclide

8 regulations as covered in Section 602.106 and the

9 certification statement required in construction permit

10 applications as covered in Section 602.108.

11 In regards to restricted status, Section 602.105

12 and 602.106 of the board rules currently provide

13 exemptions from restricted status and standards of

14 issuance to public water supplies that are not in

15 compliance the radionuclide rule. These exemptions will

16 expire on December 8, 2003. If the board allows the

17 exemptions to expire, the Illinois EPA will be

18 prohibited from issuing construction permits to as many

19 as 50 public water supplies who will not be in

20 compliance with the radionuclide rule on that date,

21 unless those facilities seek and are granted board

22 variances. Illinois EPA anticipates that it would

23 support such variance requests for public water supplies

24 that have an approved engineering plan and have

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1 committed to a date for achieving compliance with the

2 radionuclide rule.

3 To avoid the need for 50 variance proceedings,

4 which would require the board, Illinois EPA and the

5 public water supplies to expend substantial resources,

6 the Illinois EPA is requesting that the board amend its

7 rules to allow the exemption to continue for all

8 facilities that have entered into consent orders. The

9 Illinois EPA through the Office of the Attorney General

10 is currently negotiating consent orders for radionuclide

11 compliance with the following public water supplies that

12 will not meet the December 8, 2003, deadline: The City

13 of Joliet, the City of West Chicago, the Village of

14 Elburn and the City of Yorkville. The Illinois EPA

15 anticipates the negotiation of up to 50 additional

16 consent orders within the next 12 months.

17 In calendar year 2002, the permit section issued

18 over 2500 construction permits. Each of these required

19 the applicant to complete application forms that contain

20 information important to the Illinois EPA permit

21 reviewer in making a determination as to whether to

22 issue a permit, deny the application or send a review

23 letter. Currently, the permit application forms are

24 available either by requesting copies from the Illinois

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1 EPA or by printing off the forms available on the

2 Illinois EPA's Web site on the Internet. The forms must

3 then be completed either in writing or by typing using a

4 typewriter, as the forms are not allowed to be altered

5 in any way. The permit section has had many requests

6 from applicants to be allowed to electronically

7 transcribe the permit applications into the database of

8 their computer systems. Requiring applicants to certify

9 that construction permit applications are complete will

10 allow the Illinois EPA to give applicants permission to

11 submit computer-generated construction permit

12 applications. Thank you.

13 HEARING OFFICER MCGILL: Thank you. Well, we

14 appreciate your being here today and the testimony

15 you've provided. We have some questions that we wanted

16 to pose. I'll note for the record that no members of

17 the public are present, but we have put together some

18 questions that we wanted to get on the record, and if

19 you're prepared to answer them today, that's fine. If

20 not, we've got our hearing next week and you can

21 certainly follow up at that point.

22 Again, to my left is Alisa Liu. She's a scientist

23 with our technical unit, and I think she has some

24 questions to start us off. Alisa? Thanks.

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1 MS. LIU: Good afternoon, Mr. Crumly and Mr. Kuhn.

2 Thank you for being here. Is it accurate to say that

3 the proposed rule does not provide relief from the

4 maximum contaminant levels and the other requirements

5 under Part 611, the primary drinking water standards,

6 and only provides relief from the restricted status

7 provisions of 602?

8 MR. KUHN: That's accurate. You're right. Just

9 provides relief from the restricted status to allow

10 water supplies to submit permit applications for water

11 main extensions after the December 8, 2003, date.

12 MS. LIU: Does Part 611 allow a public water supply

13 to come into compliance with the radionuclide standards

14 after December 8 without seeking some sort of a variance

15 or adjusted standard?

16 MR. KUHN: I don't think so. Come into

17 compliance? Not without a consent order or some other

18 legal mechanism.

19 MR. CRUMLY: All the water systems would still be

20 required to issue public notification and do that type

21 of-- you know, what's required by the rule, so this

22 doesn't affect that whatsoever.

23 MS. LIU: Okay.

24 HEARING OFFICER MCGILL: So if there were-- I think

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1 35 Illinois Administrative Code 611.130(g) has a

2 process. I don't know if you have that handy. I've got

3 a copy here if you wanted to look at it. I believe it's

4 a process for relief from the actual MCL in the form of

5 a variance and--

6 MS. LIU: Adjusted standard.

7 HEARING OFFICER MCGILL: -- or an adjusted

8 standard. I think we were just trying to get a sense of

9 is there any other provision in 611 besides that--

10 besides 611.130(g) under which a water supply could get

11 relief from the December 8 deadline and be able to come

12 into compliance with the radionuclide standard after

13 December 8?

14 MR. KUHN: Not that I'm aware of.

15 MR. CRUMLY: I don't think so.

16 HEARING OFFICER MCGILL: Okay. Thank you. I know

17 Member Padovan had some questions. Did you want to go

18 ahead with those now?

19 BOARD MEMBER PADOVAN: Sure.

20 HEARING OFFICER MCGILL: Thanks.

21 BOARD MEMBER PADOVAN: Good afternoon. For a

22 public water supply to satisfy the proposed exemption,

23 does the CCA or court order have to impose a date

24 certain deadline for demonstrating that the public water

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1 supply has come into compliance with the standards?

2 MR. CRUMLY: Sure.

3 BOARD MEMBER PADOVAN: Should the rule language be

4 specific in requiring that?

5 MR. CRUMLY: I would say yes. I mean, that's-- I

6 think the whole purpose is that the interim consumer

7 would establish deadlines. Time frames that the system

8 must meet won't be open-ended. There will be milestones

9 that the system will have to hit. Failure to hit that--

10 you know, like, for instance, you know, award contracts

11 or submit permits, you know, by such-and-such date, and

12 failure to do that would result in penalties or what

13 have you.

14 BOARD MEMBER PADOVAN: Okay. As a follow-up to my

15 first question, can you give us some idea or some range

16 of how much time noncompliant public water supplies

17 would be given to meet the standards?

18 MR. CRUMLY: It's really hard to say because each

19 system's so specific. Like, Joliet is going to have to

20 have major modifications, from what I understand, versus

21 a small mobile home park who might just be purchasing

22 water and they just have to lay a transmission main.

23 Jerry, could you--

24 MR. KUHN: And right now water supplies are in

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1 various-- going to be in various stages too. Some are

2 in planning; some will be-- and we're talking after

3 December 8 of 2003, but some will-- might still be in

4 planning of some sort. Some will be in construction,

5 and depending on the size of the supply, it can take

6 various lengths of time. Joliet has indicated that it's

7 going to take substantial time; it's going to take years

8 for them to come to compliance. Some of the other

9 supplies should be coming in compliance in 2004.

10 BOARD MEMBER PADOVAN: I understand that each

11 circumstance might be unique, but too much

12 open-endedness I don't think is good for anybody.

13 MR. KUHN: Right. Well, the intent and the reason

14 we worded the proposed rule to being in compliance with

15 are intended to have-- give-- like Mike said, give them

16 milestones-- not just the final milestone, but interim

17 milestones that they'll have to meet-- and if they fall

18 out from those, then they could fall back into-- we

19 could put them on restricted status if they're not in

20 compliance with their consent order.

21 HEARING OFFICER MCGILL: I was wondering, the

22 current exemption in the rules that 602.105(d) and

23 602.106(d) had a-- really a built-in sunset provision,

24 that this is a regulatory exemption which they could

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1 pursue instead of having to go through an individual

2 variance process, would only survive as long as-- or

3 until the federal-- until the USEPA adopted the final

4 radionuclide standards and those became effective.

5 The-- I'm just wondering, following up on Member

6 Padovan's concern about the open-ended nature of some of

7 these-- the open-ended nature of how much time these

8 facilities are going to have to eventually meet the

9 standards, would it make sense to have a sunset

10 provision on these proposed exemptions that would put

11 some end point to this?

12 MR. KUHN: I'm not sure I would see a point in

13 doing that. I mean, our intent with consent orders is--

14 are to get date certain that they'll have construction

15 completed, and everybody that's out of compliance by--

16 on December 8 of 2003, it would be our intent that

17 they'd have to enter into a consent order with

18 milestones that they're going to complete, so this

19 hopefully will go away-- all of this will go away after

20 the last facility has completed its upgrade to meet the

21 radionuclide standard, but--

22 MR. CRUMLY: They will have to demonstrate that the

23 time lines they propose-- that they'll have to

24 demonstrate to our satisfaction that they are, you know,

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1 legitimate; you know, it takes this much time to get a

2 permit, takes this much time to acquire land, what have

3 you.

4 HEARING OFFICER MCGILL: I guess I'm looking at it

5 more from the perspective of the rule itself. I

6 understand that you've indicated today that the consent

7 orders or the compliance commitment agreements will have

8 date certain deadlines, interim milestones and a final

9 deadline to meet the standard. The rule itself, though,

10 is creating an exemption from the variance process that

11 the board has-- and that the General Assembly's

12 created. There's no end point for this regulatory

13 exemption that the agency's proposing, whereas the

14 existing regulatory exemption had a-- had an end point,

15 the effective date of the standards, and certainly if

16 there were a sunset provision in there, that would not

17 preclude the agency at some-- you know, if need be

18 proposing an amendment later on that that sunset needs

19 to be extended, but as written right now, it's just an

20 open-ended-- I mean, conceivably, 30 years from now, you

21 know, a water supply could still be using this process

22 and not being subject to-- or not having to go through

23 the variance demonstration.

24 So I guess what I was wondering is whether the

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1 agency-- you certainly can give this some thought as to

2 whether it would make sense to put some outside date in

3 here that would I guess effectively repeal this

4 exemption from the board variance process.

5 MR. KUHN: I suppose we could, but our handle is

6 the consent order. I mean, the language is set up such

7 that they have to be in a consent order to get the

8 exemption, and--

9 HEARING OFFICER MCGILL: Right.

10 MR. KUHN: I mean, and it's really set up for

11 existing supplies at this time, the 50 approximately

12 more or less that we anticipate that are going to be in

13 noncompliance in December.

14 HEARING OFFICER MCGILL: Well, I guess that's

15 part-- this is a related question, but if you had a new

16 water supply that popped up in 2010 and doesn't meet the

17 radionuclide standard, I suppose it could avail itself

18 of this provision, and that just-- it seems like you're

19 crafting this for this set of 50, which is a finite

20 universe and-- but as written, you could have an

21 existing facility that falls out of compliance in 2007,

22 for example, or just have a new water supply that is

23 created in 2030 that could use this. It seems-- It

24 just-- Again, this is just my personal view. I'm not

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1 expressing the position of the board, but it seems much

2 more broad and open-ended if really you're saying you

3 want to give these 50 water supplies a break from having

4 to do individual variance demonstrations.

5 MR. KUHN: But again, if that supply went out--

6 just the supply went out in 2005 or 2006, the way the

7 language is set up, they'd still have to enter into a

8 consent order with the Attorney General's Office or the

9 State of Illinois, you know, to come into compliance,

10 and so there would be the appropriate penalties or

11 restrictions applied through the consent order. So, I

12 mean, in theory, yeah, maybe it could be in the future

13 there's an existing supply that maybe was in compliance

14 and then went out and they had to come back in.

15 HEARING OFFICER MCGILL: So you-- what you're

16 suggesting, though, is a permanent form of relief in

17 lieu of a board variance. It would be a mechanism that

18 they could always look to. I was under the impression

19 that because there are so many who are not going to be

20 able to meet this December 8 deadline that it wouldn't

21 make sense to have a slug of 50 individual variance

22 petitions come through the board. I didn't think that

23 the agency's intent was to always be able to use some

24 alternative process in the board variance.

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1 MR. KUHN: It's not. It's not, really. That's why

2 we set it up for the 50. And if, you know, a sunset

3 provision of some sort is more appropriate, we can take

4 a look at that and see if it's reasonable.

5 HEARING OFFICER MCGILL: I-- Yeah. I just wanted

6 to throw it out so you guys could be thinking about it,

7 and we'll think about it, and we can certainly talk

8 about it more.

9 MR. CRUMLY: And I think most systems of any size

10 have already been identified. There's not going to be

11 down the road here's a community of 50,000 that's been

12 over. We know where it's at; we know the system's been

13 tested. Any new water system that would want to open

14 up, you know, they would be putting a well in an area we

15 know where radium exists, we would, you know, have them

16 identify that and maybe not even allow a permit to do

17 that type of well if it's going to-- you know, if

18 they're not going to install the treatment when they're

19 designing the new water system.

20 So nowadays, when a new one pops up, a new one is

21 one of those that may have gone under, then over, then

22 under, but there's always been a history of-- you know,

23 because you're measuring pico curies per liter and

24 you're only at 5.5, you know, next year when you get an

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1 annual average, it could be 5.4, you know, and it could

2 bring you into compliance. So most systems that pop up

3 new, they've always had kind of a history of it being

4 there, but just, you know, being pico curies per liter,

5 little bit takes you over, and so I wouldn't see some

6 big-- you know, three years from now a whole bunch of

7 new systems going over the standard. I wouldn't--

8 definitely wouldn't see any large systems. You might

9 see a mobile home park pop up here and there, but

10 nothing of any significant size like we have now.

11 Most of the systems that are over, like Joliet, the

12 big ones, have been out of compliance for 20 years, so

13 they were identified pretty early on. Since then,

14 we've-- the ones that do pop up serve 1,000 people, less

15 than 1,000 people, so I wouldn't see in the future any

16 systems of significant size where they really depend on

17 the status anyway. You know, they'd be small-- you

18 know, small mobile home parks or water associations

19 where they couldn't-- probably most likely wouldn't be

20 applying for permits in the first place because they're

21 done, they're there, you know, they're not extended,

22 so--

23 HEARING OFFICER MCGILL: Thank you.

24 MS. LIU: It seems like a lot of details that go

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1 into the plan to come into compliance are contained in

2 the compliance commitment agreement?

3 MR. CRUMLY: Uh-huh.

4 MS. LIU: And I was wondering if you could describe

5 what all goes into a CCA and if you might happen to have

6 an example of one that you've used in the past that you

7 could share with us.

8 MR. CRUMLY: Well, what we ask a water system to do

9 is we ask them to hire a registered engineer, okay,

10 like, early on, within so many days-- 30 days is what we

11 give them now-- and most systems already pass this, but

12 initially, if I was a new water system and I went over

13 today, we would ask them to enter a commitment that

14 would require them to retain a registered engineer

15 within 30 days to start evaluating the system.

16 Then within six months, that engineer is required

17 to evaluate different treatment options to find the

18 most, you know, cost effective. For that situation, you

19 know, it might be drilling new wells, connecting onto a

20 new water system, you know, an actual treatment

21 installation, so we ask them to evaluate different

22 treatments, not just pick one and go with it; you know,

23 evaluate different ones.

24 Then after six months we ask them to submit a

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1 compliance report. Basically, that compliance report

2 summarizes what they've done. We ask them to provide,

3 you know, what they-- you know, what option they pick

4 and why. We ask them-- They're supposed to, you know,

5 by then know how they are going to finance this

6 project. We ask them to provide an estimated cost and

7 then last but not least give us a schedule, okay? We

8 get that in, compliance section reviews it, and then we

9 turn it over to our permit section for a technical

10 review, you know, as far as the treatment that they're

11 requesting, and then at that point, depending on what

12 their solution is, the water system size, then we would

13 say yes or no.

14 And then from there, once we do accept it, we send

15 them a letter saying, okay, you've-- you know, you've

16 met, you know, passed our-- here's your time schedule

17 you already identified from us; failure to meet this

18 will, you know, possibly resort in further enforcement.

19 So I don't know. Does that answer your question?

20 MS. LIU: Do you require progress reports along the

21 way?

22 MR. CRUMLY: That's the whole part of the interim

23 milestones, so we don't make them, you know, every three

24 months send us a big, detailed report. We identify some

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1 key items like award bids, start construction, apply for

2 permits, some of the-- that way we can kind of track the

3 progress. Once they miss a milestone, we call them on

4 the phone, say, what's up, you know, what's going on, or

5 else we have no contact and then we'll start, you know,

6 the letter process, and we'll reach a point usually, you

7 know, within 30 or 60 days of a passed milestone, say,

8 okay, we're done, you know, it's time to, you know,

9 escalate to the next level.

10 HEARING OFFICER MCGILL: I had a question along

11 those lines. The language for the proposed exemption

12 says that they must have entered into a compliance

13 commitment agreement or enforceable court order, and it

14 sounds like from what you've said so far that-- and I'm

15 just wondering if the rule language needs to be tweaked

16 at all-- you're really-- I mean, they don't just have to

17 have entered into the CCA or the court order, but do

18 they also have to be in compliance with it; I mean,

19 subject to the agreement or order and complying with its

20 interim milestones and--

21 MR. CRUMLY: Yeah, failure to meet one of those

22 milestones as specified in a CCA would-- you know, if

23 they don't quickly resolve it, you know, whatever

24 they're supposed to do, would immediately go to our

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1 enforcement decision group for a referral, decide to--

2 oh, this is after the referral process?

3 HEARING OFFICER MCGILL: Well, at what point-- I

4 guess there-- this is a related question I had. There

5 are the compliance commitment agreements and then

6 there's enforceable court orders. Now, earlier I

7 thought I heard some testimony suggesting that after

8 December 8 of this year, any public water supply that

9 has-- that is noncompliant and is not under a compliance

10 commitment agreement would be referred to the Attorney--

11 the agency would refer that to the Attorney General's

12 Office to work on a consent order or court order.

13 MR. CRUMLY: The way-- Any proposal now that

14 projects compliance beyond December 8 would go to the

15 consent order, anyone that proposes compliance beyond

16 December, so we would not accept a CCA-- as it stands

17 today, we would not accept a proposal that compliance is

18 beyond December 8. We wouldn't accept one.

19 HEARING OFFICER MCGILL: Are there any CCAs, then,

20 among any of the water supplies that would have a

21 compliance date beyond December 8 of 2003?

22 MR. CRUMLY: Not through a-- We do not have any

23 CCAs that have a compliance end date that we will

24 approve beyond December 8 of 2003.

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1 HEARING OFFICER MCGILL: Do you anticipate-- I

2 think you just said you didn't anticipate having any.

3 MR. CRUMLY: Not any-- If it's a new water system,

4 you know, if I just next month, you know, went over, of

5 course it's going to take more than five months to come

6 into compliance, so then we might have a CCA approved,

7 but as it stands today with all these existing systems,

8 December 8 comes, you're on restricted status and--

9 HEARING OFFICER MCGILL: Okay. I was just

10 wondering why-- I guess you just answered the question

11 of why the rule language has either a CCA or an

12 enforceable court order. So would a public water supply

13 have to have entered into a CCA with the agency by

14 December 8, 2003?

15 MR. CRUMLY: For this provision?

16 HEARING OFFICER MCGILL: For either of these

17 provisions. Or might they enter into--

18 MR. CRUMLY: I would say a consent order, right.

19 HEARING OFFICER MCGILL: After December 8, there's

20 not going to be any CCAs--

21 MR. CRUMLY: Not for these existing systems.

22 HEARING OFFICER MCGILL: Not for the existing

23 systems, but there could be a new system--

24 MR. CRUMLY: Possibly a new one might have a CCA.

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1 HEARING OFFICER MCGILL: -- that starts next year

2 and has a problem and--

3 MR. CRUMLY: Right.

4 HEARING OFFICER MCGILL: Okay.

5 MR. CRUMLY: We want to give them a fair chance to

6 resolve without imposing a penalty or whatever.

7 HEARING OFFICER MCGILL: So in terms of the

8 sequence of events here, a CCA-- under Section 31 of the

9 act, if the CCA process-- reenforcement process doesn't

10 work, then it's referred to the Attorney General's

11 Office for a court order.

12 MR. CRUMLY: Uh-huh.

13 HEARING OFFICER MCGILL: Oh, wait. The rule

14 language is enforceable court order. I take it that

15 would be-- Who are the-- Would the Attorney General have

16 to be a party to that order?

17 MR. CRUMLY: Yeah.

18 MR. KUHN: Yes.

19 HEARING OFFICER MCGILL: Or a State's Attorney?

20 MR. CRUMLY: (Nods head up and down.)

21 HEARING OFFICER MCGILL: Or would these all be

22 through the Attorney General's Office?

23 MR. CRUMLY: There might be a small handful of them

24 that--

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1 MS. LOGAN-WILKEY: It could be through either one,

2 but generally we refer them to the Attorney General's

3 Office. We may refer some of the smaller systems to the

4 USEPA.

5 HEARING OFFICER MCGILL: I'm going to have to

6 interrupt you. Would you mind if we swear you in?

7 MS. LOGAN-WILKEY: That's fine.

8 HEARING OFFICER MCGILL: The court reporter will go

9 ahead and swear you in.

10 (Witness sworn.)

11 HEARING OFFICER MCGILL: Thank you.

12 MS. LOGAN-WILKEY: Would you like for me to go back

13 over that?

14 HEARING OFFICER MCGILL: If you could repeat that,

15 please.

16 MS. LOGAN-WILKEY: Sure. Typically we refer most

17 of our cases-- the majority of our cases to the Attorney

18 General's Office. There's a possibility that we could

19 refer cases to the State's Attorney's Office, but I

20 don't foresee that happening in this situation.

21 However, we do anticipate possibly some of our smallest

22 water systems, say, serving 50 to 300 people, possibly

23 referring those to the United States Environmental

24 Protection Agency. We haven't come to any decision on

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1 any of those at this point, but that's a possibility.

2 In that event, I would-- the enforceable court order

3 would be with USEPA and the U.S. Attorney's Office, I

4 would assume, so we're-- I guess we're anticipating that

5 that would cover that as well.

6 HEARING OFFICER MCGILL: So the court order would

7 be enforceable by either state or federal--

8 MS. LOGAN-WILKEY: Courts, correct.

9 HEARING OFFICER MCGILL: Okay. I just-- I don't

10 have any particular scenario in mind. I just didn't

11 know if, you know, conceivably, you know, there could be

12 some court order that a water supply and somebody else

13 could be a party to, but here you're really talking

14 about State's Attorney--

15 MS. LOGAN-WILKEY: That's our intent, yes.

16 HEARING OFFICER MCGILL: -- the Illinois Attorney

17 General or USEPA. That would be-- Would that be

18 Department of Justice or--

19 MS. LOGAN-WILKEY: Yes.

20 HEARING OFFICER MCGILL: Okay. Thank you. Just

21 one follow-up on that. If somebody's not meeting a

22 milestone, they wouldn't automatically fall out of this

23 exemption, I take it.

24 MR. CRUMLY: Correct.

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1 MS. LOGAN-WILKEY: That's correct. That's our

2 intent. Our intent was-- and I think, Jerry, you may

3 want to speak to this also, but our intent was to set

4 this up in a way that if there was a reason that we felt

5 was acceptable that caused them to fall out of

6 compliance with their schedule, we did not want to be

7 required to place them on restricted status.

8 For example, we have-- I'm not sure of the number,

9 but several water systems who are currently applying for

10 loans through the Illinois EPA, and we certainly can't

11 base their compliance on funding, but if they have

12 complied substantially with their consent order or their

13 CCA and, for example, if the State finds that we don't

14 have funds to fund all of these loans that we've

15 committed to make, we don't want to then have to place

16 someone like Joliet-- and they aren't a good example

17 because they aren't seeking loan money, but West

18 Chicago, I believe, is seeking loan money. If next fall

19 we find that we have no money for budget reasons or

20 whatever reason and we have to tell them they're going

21 to have to wait for their funds, then that's going to

22 push their schedule back, and so we don't want to have

23 to place someone like West Chicago-- who is doing

24 everything they can to comply yet is halfway through

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1 this process and waiting, say, 60 days for loan money--

2 we don't want to have to place them on restricted status

3 and then cause them to not be able to extend a water

4 main or replace a water main or whatever they may need

5 to do to seek a construction permit.

6 HEARING OFFICER MCGILL: But if you were to have a

7 water supply that's not doing everything it can do, the

8 agency then could terminate a compliance commitment

9 agreement; is that correct?

10 MS. LOGAN-WILKEY: Yes, yes. Under Section 31(a)

11 of the act, if they fall out of compliance with the

12 schedule and their compliance commitment agreement, then

13 the compliance commitment agreement becomes null and

14 void and we can forward the case on to the Attorney

15 General's Office for enforcement, and also then, if we

16 felt that it was appropriate, we could place them on

17 restricted status. That would be another tool that we

18 would have to encourage them to come back into

19 compliance with their schedule.

20 HEARING OFFICER MCGILL: Thank you. Oh, this is

21 just clarifying, but if a public water supply is under

22 one of these radionuclide CCAs or court order, it could

23 still be placed on a restricted status if they were out

24 of compliance with another drinking water standard; is

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1 that correct?

2 MR. CRUMLY: Yes.

3 MS. LOGAN-WILKEY: Yes.

4 HEARING OFFICER MCGILL: Okay. Thank you.

5 MS. LIU: Mr. Crumly, you mentioned in your

6 testimony that the agency anticipates about 50 public

7 water supplies will not be able to meet the December 8

8 deadline. Would you be able to provide a list of those

9 facilities by name and location just for the record so

10 we have an idea of--

11 MR. CRUMLY: Sure.

12 MS. LIU: -- who they are? Thank you.

13 BOARD MEMBER PADOVAN: Have you received the

14 regulated communities' information on the cost of the

15 variance process?

16 MS. LOGAN-WILKEY: Not at this time. I believe we

17 are still trying to put something together on that, and

18 we'll get that to you as soon as we have it. The City

19 of Joliet plans to I believe participate in next week's

20 hearing, and so we are hopeful that they will be able to

21 provide us with some of that information hopefully prior

22 to the hearing on Thursday.

23 HEARING OFFICER MCGILL: Thank you.

24 MS. LIU: Mr. Crumly, you also mentioned something

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1 about public notification requirements if a public water

2 supply is out of compliance. When will those public

3 water supplies be required to notify their customers if

4 they are--

5 MR. CRUMLY: It's every 90 days.

6 MS. LIU: Okay.

7 MR. CRUMLY: It's ongoing. Every 90 days they have

8 to come out with a new notification saying-- basically

9 giving the health effects and giving their level, their

10 concentrations in the water, and also gives them--

11 they're supposed to also include something-- what

12 they're doing to achieve compliance, so those are the

13 major requirements that are needed in each public

14 notice. And also once a year the system is-- every

15 water system has to produce a consumer confidence

16 report, and of course those systems with radium, you

17 have to in that report say something about that

18 violation. So other than the every-- quarterly

19 every-three-month public notice, they also do an annual

20 notification that kind of reinforces what they've been

21 sending out each quarter.

22 BOARD MEMBER PADOVAN: As a follow-up to that, when

23 you say public notice, do you mean it's published in a

24 newspaper of record or they have to tell their specific

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1 customers personally?

2 MR. CRUMLY: It's a direct mail.

3 BOARD MEMBER PADOVAN: Direct mail?

4 MR. CRUMLY: Direct mail notification. In some

5 cases the consumer confidence report can be published in

6 a paper, but as far as the individual notice they send

7 out every quarter, it's direct mail. They're attached

8 to the utility bill or separately mailed.

9 MS. LIU: In your statement of reasons, there was a

10 mention of copies of permit applications that would be

11 provided for the board to refer to to get an idea of

12 what they might look like.

13 MS. LOGAN-WILKEY: We do not have that prepared as

14 of yet, but we will bring that for the next hearing.

15 MS. LIU: All right. Thank you.

16 MS. LOGAN-WILKEY: I'm sorry.

17 HEARING OFFICER MCGILL: Well, thank you very much.

18 MS. LOGAN-WILKEY: I'm sorry. Jerry did bring

19 one. I didn't think that we had that prepared, but

20 Jerry does have one. Do we need to admit that as an

21 exhibit or--

22 HEARING OFFICER MCGILL: That would be fine.

23 MS. LOGAN-WILKEY: Okay. Move to-- What is it,

24 Jerry?

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1 MR. KUHN: It's the application for construction

2 permit and schedules that we do and the instructions.

3 MS. LOGAN-WILKEY: Okay. I would move to admit the

4 application for construction permit as Exhibit 1.

5 HEARING OFFICER MCGILL: There's been a motion to

6 enter into evidence a construction application, permit

7 application. Could you describe that for me again? Or

8 if you just-- Counsel could hand it to me, then I could

9 describe it for the record. Thank you. Thank you.

10 I've been handed an IEPA division of public water supply

11 permit section application for construction permit with

12 several schedules attached to it, along with a copy of

13 instructions for completing the application,

14 construction permit application. I'll-- If there's no

15 objection to entering this into the record as a hearing

16 exhibit, I'll mark it as Hearing Exhibit 1 and enter it

17 into the record.

18 Are there any other questions for the agency's

19 witnesses? I don't believe the board has any more at

20 this time, and there are still no members of the public

21 present. I'll just talk about a few procedural issues

22 before we adjourn.

23 We expect to have the transcript of today's hearing

24 in our Chicago office by the end of next week, so by May

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1 16, maybe a little sooner than that. Shortly after we

2 receive it, the board will post the transcript on our

3 Web site, which is www.ipcb.state.il.us. You will find

4 the agency's proposal on our Web site along with all

5 board orders throughout this proceeding.

6 I'll mention a few items. As this transcript will

7 be on our Web site, I'll just note that anyone may file

8 written public comments with the clerk of the board.

9 Our current notice and service lists for this rulemaking

10 are located here at the side of the room. Persons on

11 the notice list receive copies of board orders and

12 hearing officer orders only. Persons on the service

13 list receive those orders along with documents that

14 participants in this rulemaking file with the clerk,

15 such as a public comment, so if a member of the public

16 for example files a public comment with the clerk of the

17 board, he or she would have to serve those persons on

18 the service list with a copy of the public comment.

19 As I mentioned, we have a hearing-- our next

20 hearing in this rulemaking is scheduled for May 15, next

21 week, starting at 1:30 in the board's Chicago office at

22 the James R. Thompson Center. If anyone has any

23 questions about the procedural aspects of this

24 rulemaking, I can be reached by telephone at

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1 312-814-6983 or by e-mail at mcgillr@ipcb.state.il.us.

2 Are there any other matters anyone would like to

3 raise at this point?

4 MS. LOGAN-WILKEY: No. Thank you.

5 HEARING OFFICER MCGILL: Seeing none, I'd like to

6 thank everyone very much for their participation today.

7 The testimony was very helpful and illuminating. This

8 hearing's adjourned.

9 (Hearing adjourned.)

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1 STATE OF ILLINOIS )

) SS

2 COUNTY OF ST. CLAIR)

5 I, KAREN BRISTOW, a Notary Public and

6 Certified Shorthand Reporter in and for the County of

7 St. Clair, State of Illinois, DO HEREBY CERTIFY that I

8 was present at 600 South Second Street, Suite 402,

9 Springfield, Illinois, on May 8, 2003, and did record

10 the aforesaid Hearing; that same was taken down in

11 shorthand by me and afterwards transcribed upon the

12 typewriter, and that the above and foregoing is a true

13 and correct transcript of said Hearing.

14 IN WITNESS WHEREOF I have hereunto set

15 my hand and affixed my Notarial Seal this 11th day of

16 May, 2003.

19 __________________________

20 Notary Public--CSR

21 #084-003688

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