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
—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
—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
—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
—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