ILLINOIS POLLUTION CONTROL BOARD

December 17,

1992

IN THE MATTER OF:

)

)

AMENDMENTS TO 35 ILL.

ADM.

CODE

)

R92-20

615

AND

616

(GROUNDWATER); EXCEPTIONS

)

(Rulemaking)

FOR PESTICIDE

AND

FERTILIZER FACILITIES

)

Proposed Rule.

Second Notice.

OPINION

AND

ORDER OF THE

BOARD

(by R.C.

Fleinal):

Public Act 87—1108

(Senate Bill 1750)

amends the Illinois

Environmental Protection Act to provide an alternative

groundwater protection program for certain agricheinical

facilities that are currently subject to the Board regulations

found at 35 Ill.

Adin.

Code 615 and 616.

The Part 615 and 616

rules regulate new and existing agrichemical facilities that are

located within setback zones of potable water wells, with an

effective compliance date of January

1,

1993.

Under the provisions of PA 87-1108 facilities may elect to

opt out of the Part 615 and 616 program and instead participate

in an alternative groundwater protection program to be

administered by the Illinois Department of Agriculture.

The

purpose of the instant rulemaking is to conform the Part 615 and

616. regulations with PA 87-1108.

By today’s action, the Board sends the proposed amendments

to second notice.

Additionally, the Board stays the

applicability of Parts 615 and 616 to affected facilities pending

completion of the instant rulemaking,

as specified in the order

below.

PROCEDURAL HISTORY

On October 16,

1992 the Board proposed language for first

notice as recommended by the Illinois Environmental Protection

Agency

(Agency)

in Exhibit

1.

First notice publication occurred

at 16 Iii. Reg.

16465 and 16473, October 30,

1992.

Due to the

imminence of the January

1,

1993 compliance date and the need for

the matter to proceed expeditiously, the Board offered the

Agency’s recommendation for first notice without making

substantive evaluation of the merits of the recommendation.

Rather,

the Board set hearings on an expedited schedule.

Hearings were held on December 8,

1992 in Bloomington,

Illinois,

and on December

10,

1992 in DeKaib,

Illinois.

0138-0215

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—2—

MERITS

Hearing testimony was presented by the Illinois Fertilizer

and Chemical Association (IFCA), Growmark’, and the Illinois

Environmental Protection Agency (Agency).

Each recommends that

the amendments be adopted.

(Tr.

at 5-8; Tr.2 at

72.)

In

addition, comments were filed during the first notice comment

period by Illinois Farm Bureau (Farm Bureau), recommending

adoption.

(PC #5.)

The McHenry County Defenders, Citizens for a

Better Environment, and the Illinois Chapter of the Sierra Club

collectively filed a comment stating that they believe that the

proposed regulation is consistent with the public act.

(PC #4.)

IFCA and Growiuark expect that adoption of the amendments

would have an overall positive economic impact on the affected

facilities.

(Tr. at

7,

11.)

Any economic benefit of these rules

may not be known until after the alternate program rules are

developed.

(Tr. at 7.)

The Agency at the DeKalb hearing observed that PA 87-1108

requires that a certain class of affected facilities3 provide

written notice by January 1,

1993 of their intent to participate

in the Department of Agriculture program, but that a second class

of affected facilities4 may elect the Department of Agriculture

Program by submitting a certification of intent at the time of

their license or license renewal application.

This distinction

was not recognized in the amendments as crafted for first notice.

The Agency recommends, and the Board accepts, that the first

notice language be modified to recognize this distinction, as

follows:

For which the owner or operator of the facility for

storage and related handling of pesticides or

Growmark also filed comments stating essentially the same

information as presented at hearing.

(PC# 2.)

2

The

transcripts

for

each

hearing

were

not

numbered

consecutively.

The citation tothe transcript of the first hearing

will be “Tr. at X” and the transcript of the second hearing will be

“Tr.2 at X”.

~ The facilities are “agrichemical facilities,

as defined by

the

Illin’~&s Pesticide

Act

and

the

Illinois

Fertilizer

Act”

(Section 14.6(a) (1) of the Act) and “lawn care facilities that are

subject to the waste water containment area provisions of the Lawn

Care Products Application and Notice Act”

(Section 14.6(a) (2)

of

the Act.)

~ Included is any facility at “a central location that is not

an agrichemical facility”

(Section 14.6(a) (3)

of the Act)

or “any

other affected facility”

(Section 14.6(a) (4)

of the Act.)

0138-0215

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—3—

fertilizers for the purpose of commercial application

or at a central location for the purpose of

distribution to retail sales outlets that has filed a

written notice of intent or a portificcition of intent

pursuant to Section 14.6 of the Act WITH THE DEPARTMENT

OF AGRICULTURE BY JANUARY

1,

1993, OR WITHIN

6 MONTHS

AFTER THE DATE ON WHICH A

MAXIMUM

SETBACK ZONE IS

ESTABLISHED OR A REGULATED RECHARGE AREA REGULATION IS

ADOPTED THAT AFFECTS SUCH A FACILITY

(Ceotion 14.6(a)

of thc Act); or has filed a written certification of

intent pursuant to Section 14.6 of the Act ON THE

APPROPRIATE LICENSE OR RENEWAL APPLICATION FORM

SUBMITTED TO THE DEPARTMENT OF AGRICULTURE OR OTHER

APPROPRIATE AGENCY

(Section 14.6(a)

of the Act).

This

exception shall not apply to those facilities that are

not in compliance with the program requirements of

subsections 14.6(b)

and 14.6(c) of the Act.

(Exh.2 at Attachment

I)

STAY OF APPLICABILITY OF RULES

At first notice the Board noted that the rule-promulgation

steps under the Illinois Administrative Procedure Act do not

provide for the time necessary for the proposed amendments to be

effective by January

1,

1993.

Accordingly, the Board asked

interested persons to consider what action,

if any, might be

appropriate to bridge the period between January

1,

1993 and some

subsequent effective date.

Growmark (PC #2 and Ti.

at 8-9),

IFCA (Tr. at 6), and Farm

Bureau

(PC #5) request that the Board undertake some action to

avert the possibility of enforcement brought for failure to

comply with Part 615 or 616 during the time the instant abtion is

pending.

The Board believes that this request is reasonable,

and

is best accommodated by a Board order staying the effectiveness

of Part 615 and 616 for facilities that opt to participate in the

Department of Agriculture’s alternate groundwater program,

as

specified below.

That stay is ordered today.

ORDER

The Board hereby stays the effectiveness of the 35 Iii. Adm.

Code Parts 615 and 616 as these parts apply to facilities for the

storage and handling of pesticides or fertilizers that have filed

a written notice of intent or a certification of intent pursuant

to Section 14.6 of the Illinois Environmental Protection Act with

the Illinois Department of Agriculture by January

1,

1993.

This

stay terminates upon the effective date of the rules promulgated

by the Board in the instant rulemaking,

Docket R92-20.

0138-0217

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—4—

The Board hereby directs that second notice of the following

proposed amendments be submitted to the Joint Committee on

Administrative Rules.

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE

F: PUBLIC

WATER

SUPPLIES

CHAPTER

I:

POLLUTION

CONTROL

BOARD

PART

615

EXISTING ACTIVITIES IN A SETBACK ZONE OR REGULATED RECHARGE AREA

SUBPART A: GENERAL

Section 615.105

General Exceptions

a)

This Part does not apply to any facility or unit,

or to the

owner

or

operator

of

any

facility

or

unit:

1)

For which the

owner

or

operator

obtains

certification

of minimal hazard pursuant to Section 14.5 of the Act;

or

2)

For which alternate requirements are imposed in an

adjusted standard proceeding or as part of a site-

specific rulemaking, pursuant to Title VII of the Act;

or

3)

For

which

alternate

requirements are imposed in a

regulated recharge area proceeding pursuant to Section

17.4 of the Act; or

4)

That is LOCATED ON THE SAME SITE AS A NON-COMMUNITY

WATER SYSTEM WELL

AND

FOR

WHICH THE OWNER

IS

THE

SAME

FOR

BOTH

THE

facility

or

unit

AND THE WELL.

(Section

14.4(b)

of the Act);

or

5)

That is located WITHIN A REGULATED RECHARGE AREA AS

DELINEATED in 35 Ill. Adm. Code 617, PROVIDED THAT:

A)

THE BOUNDARY OF THE LATERAL AREA OF INFLUENCE OF A

COMMUNITY WATER SUPPLY WELL LOCATED WITHIN THE

REGULATED

RECHARGE

AREA

does

not

INCLUDE

SUCH

facility

or

unit

THEREIN;

B)

THE

DISTANCE

FROM

THE

WELLHEAD

OF

THE

COMMUNITY

WATER SUPPLY TO THE facility or unit EXCEEDS 2500

FEET; AND

C)

THE COMMUNITY WATER SUPPLY WELL WAS not IN

EXISTENCE PRIOR TO JANUARY

1,

1988.

(Section

14.4(b)

of

the

Act).

0138-0218

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—5—

j)~

For which the

owner

or

operator

of

the facility for

storage and related handling of pesticides or

fertilizers

for

the purpose of commercial application

or

at

a

central

location for the purpose of

distribution to retail sales outlets that has filed a

written notice of intent pursuant to Section 14.6 of

the Act WITH THE DEPARTMENT OF AGRICULTURE BY JANUARY

1.

1993. OR WITHIN

6 MONTHS AFTER THE DATE ON WHICH A

MAXIMUM

SETBACK ZONE IS ESTABLISHED OR A REGULATED

RECHARGE AREA REGULATION

IS ADOPTED THAT AFFECTS SUCH A

FACILITY:

or has filed a written certification of

intent Pursuant to Section 14.6 of the Act ON THE

APPROPRIATE LICENSE OR RENEWAL APPLICATION FORM

SUBMITTED TO THE DEPARTMENT OF AGRICULTURE OR OTHER

APPROPRIATE AGENCY

(Section 14.6(a) of the Act).

This

exception shall not apply to those facilities that are

not in compliance with the program requirements of

subsections 14.6(b)

and 14.6(c)

of the Act.

b)

Nothing in this Section shall limit the authority of the

Board to impose requirements on any facility or unit within

any portion of any setback zone or regulated recharge area

pursuant to the Act.

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE F:

PUBLIC WATER SUPPLIES

CHAPTER

I: POLLUTION CONTROL BOARD

PART 616

NEW ACTIVITIES IN A SETBACK ZONE OR REGULATED RECHARGE

AREA

SUBPART A:

GENERAL

Section

616.105

General

Exceptions

a)

This

Part

does

not

apply

to

any

facility

or

unit,

or

to

the

owner

or

operator

of

any

facility

or

unit,

for

which:

1)

The

owner

or

operator

obtains

certification

of

minimal

hazard

pursuant

to

Section

14.5

of

the

Act;

or

2)

Alternate

requirements

are

imposed

in

an

adjusted

standard

proceeding

or

in

a

site—specific

rulemaking,

pursuant

to

Title

VII

of

the

Act;

or

3)

Alternate

requirements

are

imposed

in

a

regulated

recharge area

proceeding

pursuant

to

Section

17.4

of

the

Act.

~J

The

owner

or

operator

of

the

facility

for

stora~eand

related

handling

of

pesticides

or

fertilizers

for

the

purpose

of

commercial

application or at a central

location

for

the

purpose

of

distribution

to

retail

0138-0219

---

—6—

sales

outlets

that

has filed a written notice of intent

pursuant

to

Section

14.6

of

the

Act

WITH

THE

DEPARTMENT

OF

AGRICULTURE

BY

JANUARY

1.

1993.

OR

WITHIN

6

MONTHS

AFTER

THE

DATE

ON

WHICH

A

MAXIMUM

SETBACK ZONE IS

ESTABLISHED OR A REGULATED RECHARGE AREA REGULATION IS

ADOPTED THAT AFFECTS SUCH A FACILITY: or has filed a

written certification of intent pursuant to Section

14.6 of the Act ON THE APPROPRIATE LICENSE OR RENEWAL

APPLICATION FORM SUBMITTED TO THE DEPARTMENT OF

AGRICULTURE OR OTHER APPROPRIATE AGENCY

(Section

14.6(a)

of the Act).

This exception shall not apply to

those f~ci1itiesthat are not in compliance with the

program reauirements of subsections 14.6(b)

and 14.6(c)

of the Act.

b)

Nothing in this Section shall limit the authority of the

Board to impose requirements on any facility or unit within

any portion of any setback zone or regulated recharge area

in any adjusted standard proceeding,

site-specific

rulemaking or a regulatory proceeding establishing the

regulated recharge area.

IT IS SO ORDERED.

I, Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above, pinion and order was

adopted on the

/7~

day of

____________________,

1992,

by

a vote of

7-c

~

~‘

~

Dorothy M./~unn,Clerk

Illinois R~llutionControl Board

0138-0220