ILLINOIS POLLUTION CONTROL

BOARD

September 3,

1992

IN THE MATTER OF:

)

GROUNDWATER QUALITY STANDARDS:

)

 R89-14(C)

AMENDMENTS TO 35 ILL. ADN.

 CODE

)

 (Rulemaking)

303,

 616,

AND

620

)

Adopted Rule

 Final Action

OPINION

AND

ORDER OF THE BOARD

 (by R.C. Flemal):

By today’s action the Board adopts certain amendments

necessary to complete rulemaking on groundwater quality

standards’.

The principal amendment is a modification of 35 Ill. Adm.

Code Section 303.203.

 This section has served to subject certain

underground waters to the water quality standards of 35 Ill. Adm.

Code:

 Subtitle

C2.

 Now, however, groundwaters have their own

standards found in Part 620.

 Section 303.203 has read as

follows:

Section 303.203

 Underground Waters

The underground waters of Illinois which are a present

or a potential source of water for public or food

processing supply shall meet the general use and public

and food processing water supply standards of Subparts

B and C, Part 302, except due to natural causes.

As a result of today’s action Section 303.203 will read:

Section 303.203

 Underground Waters

The primary rulemaking in this matter has been docket R89-

14(B), in which the groundwater quality standards were established.

In the Matter of: Groundwater quality Standards (35 Ill. Adm. Code

620), R89—l4(B), November 7,

 1991;

 15 Ill. Reg. 17614

 (December

6,

1991),

 effective November 25,

 1991.

 Subtitle C contains the Board’s Water Quality Regulations.

It consists

of

 several parts,

 of which Part

302

 (Water Quality

Standards)

 and Part 303

 (Water Use Designations and Site Specific

Water Quality Standards)

 are pertinent to the instant matter.

 Part

302

 is divided

 into subparts,

 of which Subpart A

 (General Water

Quality

 Provisions),

 Subpart

B

 (General

Use

 Water

 Quality

Standards), and Subpart C (Public and Food PrOcessing Water Supply

Standards)

 are pertinent to the instant matter.

0135-0565

—2—

35 Ill.

 Adm. Code 302.Subparts B and C do not apply to

underground waters,

 except as provided at 35 Ill.

 Adm.

Code 620.450(b).

It is also necessary that the form of the reference to the

Subtitle C standards at Section 620.450(b) be amended to cite

directly to the applicable parts rather than to the applicability

 section,

 303.203.

As a third matter, the Board also today adopts at the

request of the Joint Committee on Administrative Rules

 (JCAR) an

amendment to Part 616 at Section 616.104 necessary to correct a

typographical error in that section (see following discussion).

HISTORY

 SECTION 303.203 PROPOSAL

The issue of how to handle Section 303.203 has a fairly

prolonged history.

 Among other matters, proposals to amend the

section have gone to first notice on three separate oôcasions,

and to second notice on two occasions,

 For the purposes of the

following discussion two proposals are of major note.

 These are

the proposal originally sent to first notice in September 1990

(hereinafter “September 1990 proposal”)

 and the proposal first

offered by the Board

 in April 1992 and today adopted (hereinafter

“April 1992 proposal”).

The matter of amending Section 303.203 was initially

recommend by the Illinois Environmental Protection Agency

(Agency)

 as part of its larger proposal to implement the Illinois

Groundwater Protection Act

 (IGPA), Ill. Rev.

 Stat.

 1991,

ch.

111½,

 par. 7451 et seq.

 In September 1990 the Board moved this

recommendation to first notice along with the rest of the

groundwater standards proposal3.

 The form and content of the

Section 303.203 amendments were as proposed by the Agency

 (see PC

#16 at p.

9):

Section 303.203

 Underground Waters

The underground watcrc of Illinoic which

or a potential courcc of water for public

arc

or

a prc~cnt

food

processing supply shall meet the general use

ond food processing water supply stQndards of

and public

Cubparts

unu

LULL

Ju.~,

 except auc ~o nacurai.

 causes.

Ih~

underground waters of Illinois which are groundwater

shall meet the standards set forth in 35 Ill.

 Adin.

 Code

620.

~In the Matter of: Groundwater quality Standards (35 Ill. Adni.

Code 620)

 (Sept 27,

 1990), R89—14 First Notice Proposal; published

November 2,

 1990 at 14

 Ill. Reg.

 17862.

0135-0566

—3—

The Board provided the following explanation for the proposed

amendment:

Although the principal regulations proposed today

consist of new Part 620,

 the promulgation of Part 620

requires a conforming amendment to Subtitle C.

The

groundwater standards proposed today are intended to

supersede the standards currently applicable to

groundwater, which are found in Subtitle

C.

 These

currently applicable standards are the General Use and

 Public and Food Processing Water Supply Standards of 35

Ill. Adm. Code: Subtitle C, which are applicable to

groundwaters pursuant to Section 303.203 of Subtitle C.

The amendment today proposed for Section 303.203

deletes the applicability of the General Use and Public

and Food Processing Water Supply Standards to

groundwater.

 The language is as recommended by the

Agency.

 (In the Matter of: Groundwater Quality

Standards

 (35 Ill.

 Adni. Code 620)

 (Sept.

27,

 1990),

P89—14,

 115 PCB 177.)

The Board received no comment on either the form or content

of the proposed Section 303.203 amendment during the ensuing R89-

14 and R89-14(B) hearings or first notice public comment period.

Accordingly, the Board at the next opportunity moved the proposed

amendment to second notice without modification4.

 The Board at

that time repeated the same explanatory statement that

accompanied first notice

 (see above).

The Board was not able to again visit the proposed Section

303.203 amendment until the fall of 1991 due to unanticipated

delay in moving the Part 620 regulations forward.

 Unfortunately,

this required returning the Section 303.203 amendment to first

notice, because one year had passed since publication of the

September 1990 proposal in the Illinois Register.

Accordingly,

 in November 1991 the Board reproposed for first

notice the same Section 303.203 amendment as in September 1990.

The Board also opened instant Docket C for the expressed purpose

of continuing the Section 303.203 amendment5.

 The opinion

accompanying the November 1991 first notice also again repeated

the explanatory statement that had accompanied the original

September 1990 proposal at both first and second notice.

However,

 the Board at this time added the following observations:

~In the Matter of: Groundwater quality Standards (35 Ill. Adm.

Code 620)

 (July 25,

 1991),

 R89-14(B) Second Notice Proposal.

~ In the Matter of: Groundwater Quality Standards, Amendments

to

35

 Ill.

 Adni.

 Code 303

 (Nov.

7,

 1991),

 R89—14(C),

 First. Notice

Proposal; published December 2, 1991, Illinois Register at 15 Ill.

Req.

 17026.

•0135-0567

—4—

It

is worth noting with regard to both the Part

620 rules and Subtitle C that there is an important

óistinction between groundwater and underground water.

Croundwater is expressly defined in both the IGPA and

it~e

 Illinois Environmental Protection Act:

“GROUNDWATER”

MEANS

UNDERGROUND WATER WHICH

OCCURS WITHIN THE SATURATED ZONE

AND

GEOLOGIC

MATERIALS WHERE THE FIUID PRESSURE IN THE

PORE SPACE IS EQUAL TO OR GREATER

THAN

ATMOSPHERIC PRESSURE.

 (Ill. Rev.

 Stat. 1989,

ch.

 111 1/2, par. 1003.64 and par. 7453(g)).

conversely, underground water is defined in the IGPA

footnote omitted):

“UNDERGROUND

WATER”

 MEANS ALL~

WATER

BENEATH

THE

 LAND

SURFACE.

 (Ill.

 Rev..’St’at.

 1989,

ch.

lii 1/2,

 par. 7453(k)).

Pursuant to these two definitions,

 “groundwater”

is

 a subset of “underground waters”.

 Among other

matters, it is that subset that occurs within the

saturated zone.

 ~jQ~included within groundwater are

underground waters that may occur in unsaturated

portions of the subsurface,

 such as within the aerated

portions of the soil.

 Also

included is the water

normally found in the root zone of crops,

 since the

roots of most crops do not propagate into the saturated

zone (citation and footnote omitted).

The way Section 303.203

 is today proposed to be

amended, underground waters that are groundwaters are

subject to Part 620.

 Underground waters that are ~

groundwaters remain subject to the Subtitle C

regulations.

(In the Matter of: Groundwater Quality Standards.

Amendments to 35

 Ill.

 Adm. Code 303

 (Nov.

7,

1991),

 R89—14(C),

p.

 1—2.)

These observations were added in recognition of concern

raised in hearings that adoption of the version of the.

groundwater standards then under consideration would constitute

a

prohibition against many practices, particularly agricultural

practices,

 that potentially impact very shallow underground

waters.

The first notice comment period for the November 1991

proposal expired on January 16,

 1991, 45 days after publication

of the proposed amendments in the Illinois Register.

 The Board

received three public comments during that period:

0135-0568

—5—

PC #66~

 Administrative Code Division of the

Secretary of State’s Office (Code Division)

PC #67

 Illinois Environmental Protection

Agency

PC #68

 Illinois Department of Commerce and Community

Affairs, Bureau of Business Development

(DCCA)

PC #66 and 68 addressed non-substantive matters; Code

Division suggested some format changes which the Board accepted

and DCCA found no significant impact regarding the proposal.

The

Agency in PC #67 raised for the first time the need to make a

conforming amendment to 35 Ill. Adm. Code 620.450(b).

Three additional comments were received after the close of

the first notice comment period7:

PC #69

 Illinois Steel Group

PC #70

 Illinois Department of Mines and Minerals

(Mines and Minerals)

PC #71

 Joint Comments of the Illinois Environmental

Protection Agency, Illinois Steel Group,

and

Illinois Department of Mines and Minerals

In PC #69 the Illinois Steel Group raised for the first time.

the question of whether the September 1990 proposal as re-first

noticed in November 1991

 (and the Agency’s position expressed in

PC #67)

 accorded with its understanding of how underground waters

should be treated in Section 303.203.

 Among the Illinois Steel

Group’s contentions was that both the September 1990 proposal and

the Agency’s PC #67 concepts were contrary to the Agency’s

position taken during the pendency of the R89-14(B) proceeding,

and that they also were not supported by the record.

In PC #70 Mines and Minerals expressed support for the

amendment proposed by the Agency in PC #67.

 The comment also

provided Mines and Minerals’ view of the development of Section

620.450(b).

 The public comments were numbered consecutively with those

filed

 in previous subdockets.

 Public comments 66 through 71 are

the only comments that pertain to R89—14(C).

~ On April 23, 1992 the Board accepted these comments into the

record to prevent material prejudice.

 Comments #69 and #70 were

accompanied by motions to file.

 The Board granted those motions on

April

 23, 1992.

0135-0569

—6—

In PC #71 the Agency, Mines and Minerals, and the Illinois

Steel Group (Joint Conunenters) proposed a new method of amending

Section 303.203.

 The Joint Commenters continued to recommend

removal of the applicability of the General Use and Public and

Food Processing Water Supply Standards from groundwaters, but

recommended further that the applicability be removed from ~

underground waters.

 In support of this position, the Joint

Commenters contented:

The Agency,

 (Mines and Minerals,

 and (the

Illinois Steel Group)

 agree that the Illinois

Groundwater Protection Act and the recen:ly adopted

Groundwater Quality Standards,

 35 Ill. Adm. Code 620,

were intended to replace the General Use and Public and

Food Processing Water Supply Standards,

 Subparts B and

C, with respect to the saturated and the unsaturated

zones of “underground waters” of Section 303.203,

except for specific exceptions listed

 in Part 620.

In order to be consistent with the provision

described above, underground water should be exempt

from the requirements of Subparts B and C of Part 302.

The one exception in Part 620 which requires imposition

of Subparts B and C of Section 302 involves the

Alternative Groundwater Quality Standards of

Subsections 620.450(b) (4) (A), 620.450(b) (5) (A), and

620.450(b) (7) (A) for certain mining activities.

 These

provisions specifically incorporate the existing

Section 303.203 application of Part 302 water quality

standards.

Accordingly, the parties of these comments agree

that the general water and public water supply

standards of Section 303.203 are not appropriate for

“underground waters”

...

 except in Section 620.450(b)

where the standards of Subparts B and C of Part 302

apply.

PC #71 at 1—2.

Given that the Joint Commenters’ recommendation constituted

a significant departure from the position articulated in the

three incarnations of the September 1990 proposal, the Board

determined that it was again necessary to return to first notice.

This was done by Board order of April 23,

1992gm

8

In the Matter of: Groundwater quality Standards (35 Ill. Adm.

Code

 303,

 616,

and

 620),

 P89—14(C),

 April

23,

 1992;

 Notice

of

withdrawal published at

16

 Ill.

 Reg.

7511

 (May

8,

 1992);

 First

Notice publication of amendments for Parts 303,

 616, and 620 at 16

Ill. Peg. 7302,

 7295,

 and 7286,

 respectively,

 (May 8,

 1992).

0 135-0570

—7—

Although the Joint Commenters had offered language to effect

their proposal, the Board modified this language in order the

implement the recommendation in a more straight forward manner.

This constituted the origin of the April

 1992 proposal and the

language today adopted.

The 45-day public comment period for the April 1992 proposal

expired on June 22,

 1992.

 Five public comments were received:

PC #72

 DCCA

PC #73

 Code Division

PC #74

 Illinois Steel Group

PC #75

 Agency

PC #76

 McHenry County Defenders,

 Citizens for

a

Better Environment, Illinois Chapter of

the Sierra Club (collectively

“Defenders”)

DCCA found no significant impact regarding the proposal;

Code Division suggested some. format changes which the Board

accepts.

In PC #75 the Agency expressed endorsement for the April

1992 proposal.

 The Agency also reiterated its position that the

amendments are necessary to make the requirements of Part 302

consistent with the newly—adopted Part 620.

In PC #74 the Illinois Steel Group expressed its support for

the April 1992 proposal and its concurrence with the Agency’s

position presented in PC #75.

In PC #75 Defenders objected to the manner in which those

underground waters that are not groundwaters are treated in the~

April

 1992 proposal.

 Among the Defenders contentions were that

the April

 1992 proposal is contrary to the intent of the IGPA and

 that it is not sufficiently protective of groundwater.

The

Defenders also took issue with the Joint Commenters’

characterization of the role of Part 620 to unsaturated zones of

groundwater.

On July

9,

 1992 the Board adopted the April 1992 proposal

for second notice.

 On August 11,

 1992, JCAR issued a certificate

of no objection to the amendments.

DISCUSSION

 SECTION 303.203 PROPOSAL

It is generally agreed that to allow Section 303.203 to

exist unaltered is to allow for conflict and confusion.

The

0135-0571

—8—

question has been to eliminate this circumstance, and in

particular how to address underground waters that are not

groundwaters.

The solution that the Board believes to be most reasonably

in accordance with the nature of both the existing water quality

standards and the nature of unsaturated zone underground waters

is to remove the applicability of the General Use Water Quality

Standards (Subpart B) and the Public and Food Processing Water

Supply Standards

 (Subpart C)

 from all underground waters9.

The principal reason why there are now groundwater standards

different from the General Use Standards and the Public and Food

Processing Water Supply Standards of Subtitle C is that the

latter standards are not fully relevant to groundwater.

 This

Board has observed at length that groundwaters differ in

 important regards from surface waters, and that standards based

on surface water considerations

 (as are the Subtitle C standards)

often have no basis

 in groundwater considerations10.

For

example, toxicity to aquatic organisms is the factor that most

often controls the General Use Standards”;

 toxicity to aquatic

organisms is not a relevant groundwater matter.

The necessary distinction between surface water and

groundwater

 is further recognized in the mandate of the IGPA that

water quality standards specific to groundwater be developed.

In

particular, the legislature has declared:

~ It

is

to

be

 noted

 that

 Subpart

A,

 which

 includes

the

nondegradation

 provision

 at Section

 302.105,

 would

 continue

to

apply to all underground waters.

10

See,

 for example,

 In the Matter

 of: A Plan for Protecting

Illinois

 Groundwater

 R86-8

 (August

28,

 1986).

 This

a

 report

prepared by the Board for the Illinois General Assembly pursuant to

P.A. 83-1268 and 13.1 of the Act.

 Particularly pertinent sections

include: Groundwater versus Underground Water Protection

 (p. Ill—i

to 111-2), Dissimilarities between Surface Waters and Groundwaters

(p. 111-2 to 111-6), Existing Standards for Groundwater Protection

 (p. IV-l to IV-6), Rationale for Water Quality Standards

(p.

 IV-6

to IV-7), and Recommendations for Groundwater Standards (p. IV-7 to

IV—18)

“

It

 should

be

 noted

 that

 during

the

 pendency

of

the

groundwater rulemakings, the Subtitle C standards were amended to

place even greater emphasis on toxicity to aquatic organisms than

had previously been the case.

 See In the Matterof: Amendments to

Title

35,

 Subtitle C

 (Toxics Control) R88—21

 (January

25,

 1990),

final opinion and order.

DI 35-0572

-9—

the Board shall promulgate the water quality

standards for groundwater.

 In promulgating these

regulations, .the Board shall

...

 consider the

following:

1.

 recognition that groundwaters differ in many

important respects from surface waters,

including water quality, rate of movement,

direction of flow, accessibility,

susceptibility to pollution,

 and use

(Ill. Rev.

 Stat.

 1991, ch 111½,

par.

 7458)

Although much of what has been said on this topic both in

this proceeding and earlier has focused solely on groundwater,-

almost all

 is also pertinent to the broader matter of underground

water.

 In particular, there is little in the General Use and

Public and Food Processing Water Supply Quality Standards that

seems to be germane to underground waters.

 The prohibition

against offensive conditions of sludge, bottom deposits, floating

debris,

 algal growth,

 etc.

 of Section 302.203 is not gerrnane~the

aquatic toxicity standards of Sections 302.208 and 302.210 are

not germane.

 Neither are the reservoir and lake phosphorus

standard of Sectioxi 302.205, the fecal coliform standards of

Sections 302.208 and 302.306, the river temperature limitations

of Section 302.211, the algicide permits of Section 302.302, and

the finished water standards of Section 302.303.

 The pH and

dissolved oxygen standards of Sections 302.204 and 302.206 are,

at best, of questionable relevance.

Some of the Subtitle C standards,

 if applied to underground

waters, would have fully unacceptable consequences.

 For example,

Section 302.212 restricts ammonia concentrations to the low

levels necessary to protect sensitive aquatic life in surface

waters.

 These levels are far below those that result in the

unsaturated zone due to application of ammonia fertilizers.

Thus,

 application of the Section 302.212 ammonia limitations to

underground waters in the unsaturated zone would be tantamount to

a prohibition against application of ammonia ferti.lizer!

In sum, the Board can see no rationale for continuing the

applicability of the General Use Standards or the Public and Food

Processing Water Supply Standards to underground waters in

general.

 These standards were originally designed to protect

surface waters.

 Moreover, they have evolved even more strongly

in support of this sole mission as the result of recent

rulemakings.

 A general severance is now warranted.

The Board notes that the Defenders objected to this course

of action.

 (PC #76.)

 Among the Defenders’

 observations is that

the IGPA mandate directs the Board to address groundwater

standards,

 not underground water standards.

 From this point the

0135-0573

—10—

implication is left that the Board lacks authority for today’s

action.

 The Board disagrees.

 The Board has authority to

generally amend its regulations pursuant to Title VII of the Act.

Additionally, the Board notes that the Defenders contest the

allegation of the Joint Commenters that Part 620 regulations were

“intended to replace the existing water quality standards ‘with

respect to the saturated and unsaturated zones of underground

waters”.

 (PC #76 at

 3 quoting PC #71 at 1-2; emphasis added.)

The Board agrees with the Defenders to the extent that it finds

no support for the contention that the Part 620 regulations are

or were intended to have application to underground waters within

 the unsaturated zone; the record is indeed replete with pleadings

and explicit Board findings to the contrary.

CONFORMING AMENDMENT AT PART 620

In PC #67 the Agency changed its earlier recommendation that

the applicability to groundwaters of the Subtitle C water quality

standards be completely removed.

 The Agency pointed out that the

water quality standards of Part 302 continue to be used in

certain mining and CERCLA/RCRA contexts,

 including the

establishment of cleanup objectives.

 The Agency also pointed out

that Part 620 at Section 620.450(b)

 contains reference to

Subtitle

 C’2, and that this reference must be accommodated in the

general severance of the standards of Subtitle C and Part 620.

Mines and Minerals and the Joint

 Coniinenters also supported this

position

 (PC #70 and #71).

In reviewing this matter for April 1992 first notice the

Board found it necessary that Section 620.450(b)

 itself be

amended.

 The relevant portions of Section 620.450(b)

 cite to

Section 303.203, which

 is an applicability statement.

 The proper

form is to cite directly. to the applicable standards.

The

standards are the standards of Subparts B and C of Part 302.

Accordingly, the Board in the April 1992 proposal replaced the

four citations to 35 Ill. Adm. Code 303.203 with citation to

35

Ill.

 Adni.

 Code 302.Subparts

 B and C.

 The phrase “except due to

 natural causes” was also added at each occurrence to expressly

state this otherwise implied concept and in conformance with the

Joint Commenters’

 intent.

12

Section

 620.450(b),

 titled

 “Coal Reclamation

 Groundwater

Quality Standards”,

 identifies the groundwater quality standards

that are applicable in various reclamation circumstances associated

with coal mining.

 The Subtitle C standards apply in the limited

circumstance of certain refuse disposal or coal preparation plant

areas placed into operation after February 1,

 1983 and before the

effective date of Part 620 (November 25,

 1991), provided also that

the groundwater

is

a

 present

or

 potential

 source

of

 water

for

public and food processing.

01 35-057~

—11—

TEXT

CORRECTION

PART

616

JCAR has alerted the Board to a typographical error

in

Section 616.104(b).

 The error consists of

 a phrase inadvertently

dropped from the subsection.

 The subsection quotes statutory

language.

 The Board today corrects this oversight in this docket

so as to make the correction as expeditiously as possible.

ORDER

The Board hereby directs the Clerk of the Board to submit

 the text of the following amendments to the Secretary of State

for final noticepursuant to Section 6 of the APA.

TITLE 35:

 ENVIRONMENTAL PROTECTION

SUBTITLE

C:

 WATER POLLUTION

CHAPTER I:

 POLLUTION CONTROL BOARD

PART 303

WATER USE DESIGNATIONS AND SITE SPECIFIC

WATER QUALITY STANDARDS

SUBPART B:

 NONSPECIFIC WATER USE DESIGNATIONS

Section 303.203

 Underground Waters

35 Ill.

 Adni.

 Code 302.Subparts B and C do not api~lyto

underground waters, except as provided

~t

35

 Ill.

 Adm. Code

620.450(b)Thc underground waters of Illinois which are

 a present

or a potential source of water for public or food processing

cupply shall meet the general use and public and food processing

water supply standards of Subparts B and C, Part 302, except due

tr~ r~nturn1

0135-0575

—12—

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 616.104

 Exceptions to Prohibitions

a)

 THE OWNER OF A

NEW

POTENTIAL

PRIMARY SOURCE

OR A POTENTIAL

 SECONDARY SOURCE MAY SECURE A WAIVER FROM THE prohibitions

specified in Sections 616.402(a),

 616.422(a),

 616.442,

616.462(a),

 616.602,

 616.622, 616.702 or 616.722(a)

 against

construction or operation within the setback zone FOR A

POTABLE WATER SUPPLY WELL OTHER THAN A COMMUNITY WATER

SUPPLY.

 A WRITTEN REQUEST FOR A WAIVER SHALL BE MADE TO THE

OWNER OF THE WATER WELL AND THE AGENCY.

 SUCH REQUEST SHALL

IDENTIFY THE NEW OR PROPOSED POTENTIAL SOURCE,

 SHALL

GENERALLY DESCRIBE THE POSSIBLE EFFECT OF SUCH POTENTIAL

SOURCE UPON THE WATER WELL AND ANY APPLICABLE TECHNOLOGY-

BASED CONTROL WHICH WILL BE UTILIZED TO MINIMIZE THE

POTENTIAL

FOR

CONTAMINATION,

AND

SHALL

STATE

WHETHER,

AND

UNDER WHAT CONDITIONS, THE REQUESTOR WILL PROVIDE AN

ALTERNATIVE POTABLE WATER SUPPLY.

 WAIVER MAY

 GRANTED

THE OWNER OF THE WATER WELL NO LESS THAN 90 DAYS AFTER

RECEIPT UNLESS PRIOR TO SUCH TIME THE AGENCY NOTIFIES THE

WELL OWNER THAT IT DOES NOT CONCUR WITH THE REQUEST.

(Section 14.2(b)

 of the Act)

b)

 THE AGENCY SHALL NOT CONCUR WITH ANY

SUCH REQUEST

WHICH

FAILS TO ACCURATELY DESCRIBE REASONABLY FORESEEABLE EFFECTS

OF THE POTENTIAL SOURCE OR POTENTIAL ROUTE UPON THE WATER

WELL OR ANY

APPLICABLE. TECHNOLOGY-BASED CONTROLS.

 SUCH

NOTIFICATION

THE

AGENCY

SHALL

WRITING,

AND

SHALL

INCLUDE

STATEMENT

REASONS

FOR

THE

NONCONCURRENCE.

WAIVER

 THE MINIMUM SETBACK ZONE

SHALL

 EXTINGUISH THE

WATER WELL OWNER’S RIGHTS UNDER SECTION 6b OF THE ILLINOIS

WATER WELL CONSTRUCTION CODE BUT SHALL

NOT

PRECLUDE

ENFORCEMENT

 ANY LAW REGARDING WATER POLLUTION.

 IF THE

OWNER OF THE WATER WELL HAS NOT

GRANTED A

WAIVER WITHIN 120

DAYS AFTER RECEIPT OF THE REQUEST OR THE AGENCY HAS NOTIFIED

THE OWNER THAT IT DOES NOT CONCUR WITH THE REQUEST, THE

OWNER OF A POTENTIAL SOURCE OR POTENTIAL ROUTE MAY FILE A

PETITION FOR AN EXCEPTION WITH THE BOARD AND THE AGENCY

PURSUANT TO subsection

 (b) OF THIS SECTION.

 (Section

14.2(b) of the Act)

c)

NO

WAIVER UNDER THIS SECTION IS REQUIRED WHERE THE POTABLE

WATER SUPPLY WELL IS PART OF A PRIVATE WATER SYSTEM AS

DEFINED IN THE ILLINOIS GROUNDWATER PROTECTION ACT, AND THE

OWNER OF SUCH WELL WILL ALSO BE THE OWNER OF A NEW POTENTIAL

SECONDARY SOURCE OR A POTENTIAL ROUTE.

 IN SUCH INSTANCES, A

PROHIBITION OF 75 FEET SHALL APPLY AND THE OWNER SHALL

135-0576

—13—

NOTIFY

THE

AGENCY

THE

 INTENDED ACTION SO THAT THE AGENCY

MAY

PROVIDE INFORMATION

REGARDING

THE

POTENTIAL

HAZARDS

ASSOCIATED WITH LOCATION OF A POTENTIAL SECONDARY SOURCE OR

POTENTIAL ROUTE IN CLOSE PROXIMITY TO A POTABLE WATER SUPPLY

WELL.

 (Section 14.2(b)

 of the Act)

d)

 THE BOARD MAY GRANT AN EXCEPTION FROM THE SETBACK

REQUIREMENTS OF THIS SECTION AND SECTION 14.3 TO THE OWNER

OF A NEW POTENTIAL PRIMARY SOURCE OTHER THAN LANDFILLING OR

LAND TREATING, OR A NEW POTENTIAL SECONDARY SOURCE.

THE

OWNER SEEKING AN EXCEPTION WITH RESPECT TO A COMMUNITY WATER

SUPPLY WELL SHALL FILE A PETITION WITH THE BOARD AND THE

AGENCY.

 THE OWNER SEEKING AN EXCEPTION WITH RESPECT TO A

POTABLE WATER SUPPLY WELL SHALL FILE A PETITION WITH THE

BOARD AND THE AGENCY, AND SET FORTH THEREIN THE

CIRCUMSTANCES UNDER WHICH A WAIVER HAS BEEN SOUGHT BUT NOT

OBTAINED PURSUANT TO subsection

 (a) OF THIS SECTION.

A

PETITION SHALL BE ACCOMPANIED BY PROOF THAT THE OWNER OF

EACH POTABLE WATER SUPPLY WELL FOR WHICH SETBACK

REQUIREMENTS WOULD BE AFFECTED BY THE REQUESTED EXCEPTION

HAS BEEN NOTIFIED AND BEEN PROVIDED WITH A COPY OF THE

PETITION.

 A PETITION SHALL SET FORTH SUCH FACTS AS MAY

REQUIRED TO SUPPORT AN EXCEPTION,

 INCLUDING A GENERAL

 DESCRIPTION OF THE POTENTIAL IMPACTS OF SUCH POTENTIAL

SOURCE OR POTENTIAL ROUTE UPON GROUNDWATERS AND THE AFFECTED

WATER WELL, AND AN EXPLANATION OF THE APPLICABLE TECHNOLOGY-

BASED CONTROLS WHICH WILL BE UTILIZED TO

MINIMIZE THE

POTENTIAL FOR CONTAMINATION OF THE POTABLE WATER SUPPLY

WELL.

(Section

14.2(c)

the

Act)

e)

 THE BOARD SHALL

GRANT AN EXCEPTION, WHENEVER IT IS FOUND

UPON PRESENTATION OF ADEQUATE PROOF, THAT COMPLIANCE WITH

THE SETBACK REQUIREMENTS OF THIS SECTION WOULD POSE AN

ARBITRARY AND UNREASONABLE HARDSHIP UPON THE PETITIONER,

THAT THE PETITIONER WILL UTILIZE THE BEST AVAILABLE

TECHNOLOGY CONTROLS ECONOMICALLY ACHIEVABLE TO MINIMIZE THE

LIKELIHOOD OF CONTAMINATION OF THE POTABLE WATER SUPPLY

WELL,

 THAT THE MAXIMUM FEASIBLE ALTERNATIVE SETBACK WILL BE

UTILIZED, AND THAT THE LOCATION OF SUCH POTENTIAL SOURCE OR

POTENTIAL ROUTE WILL NOT CONSTITUTE A SIGNIFICANT HAZARD TO

THE POTABLE WATER SUPPLY WELL.

 (Section 14.2(c)

 of the Act)

f)

 A DECISION MADE BY THE BOARD PURSUANT TO THIS SUBSECTION

SHALL CONSTITUTE A FINAL DETERMINATION.

 (Section 14.2(c)

of

the Act)

g)

 THE GRANTING OF AN EXCEPTION BY THE BOARD SHALL NOT

EXTINGUISH THE WATER WELL OWNER’S RIGHTS UNDER SECTION 6b OF

THE ILLINOIS WATER WELL CONSTRUCTION CODE IN INSTANCES WHERE

THE OWNER HAS

ELECTED

NOT

PROVIDE

WAIVER

PURSUANT

subsection

(a)

THIS

SECTION.

(Section

14.2(a)

the

Act)

0135-0577

—14—

TITLE

35:

ENVIRONMENTAL

PROTECTION

SUBTITLE

 F: PUBLIC WATER SUPPLIES

cHAPTER I:

 POLLUTION

CONTROL

BOARD

PART

620

GROUNDWATER QUALITY

Section 620.450

 Alternative Groundwater Quality Standards

a)

 Groundwater Quality Restoration Standards

1)

 Any chemical constituent in groundwater within a

groundwater management zone is subject to this

Section.

2)

 Except as provided in subsections

(a)

(3)

(a)

(4)

below, the standards as specified in Sections

620.410, 620.420,

 620.430, and 620.440 apply to

any chemical constituent in groundwater within a

groundwater management zone.

3)

 Prior to completion of a corrective action

described in Section 620.250(a), thestandards

as

specified in Sections 620.410, 620.420,

 620.430,

and 620.440 are not applicable to such released

chemical constituent, provided that the initiated

 action proceeds in a timely and appropriate

manner.

After

completion

corrective

action

described

Section

620.250(a),

the

standard

for

such released chemical constituent is:

A)

 The standard as set forth in Section 620.410,

620.420,

 620.430, or 620.440,

 if the

concentration as determined by groundwater

monitoring of such constituent is less than

or equal to the standard for the appropriate

class set forth in those sections; or

B)

 The concentration as determined by

groundwater monitoring,

 if such concentration

exceeds the standard for the appropriate

class set forth in Section 620.410, 620.420,

620.430, or 620.440 for such constituent,

and:

1)

 To the extent practicable, the

exceedence has been minimized and

beneficial use,

 as appropriate for the

class of groundwater, has been returned;

and

0135-0578

—15—

ii)

 Any threat to public health or the

environment

has

been

minimized.

5)

 The Agency shall develop and maintain a listing of

concentrations derived pursuant to subsection

(a) (4) (B)

 above.

 This list shall be made

available to the public and be updated

periodically, but no less frequently than

semi-annually.

 This listing shall be published in

the Environmental Register.

b)

 Coal Reclamation Groundwater Quality Standards

1)

 Any inorganic chemical constituent or pH in

groundwater, within an underground coal mine,

or

within the cumulative impact area of groundwater

for

which

the

hydrologic

balance

has

been

disturbed from a permitted coal mine area pursuant

to the Surface Coal Mining Land Conservation and

Reclamation Act (Ill.

 Rev.

 Stat.

 1989,

ch.

 96 1/2,

pars.

 7901.1 et seq.,

 as amended) and 62 Ill.

 Adm.

Code 1700 through 1850,

 is subject to this

Section.

2)

 Prior to completion of reclamation at a coal mine,

the standards as specified in Sections 620.410(a)

and

 (d),

 620.420(a)

and

 (e),

 620.430 and 620.440

are not applicable to inorganic constituents and

pH.

3)

 After completion of reclamation at a coal mine,

the standards as specified in Sections 620.410(a)

and

 (d),

 620.420(a),

 620.430, and 620.440 are

applicable to inorganic constituents and pH,

except:

A)

 The concentration of total dissolved solids

 (TDS) must not exceed:

 The post-reclamation concentration or

3000 mg/L, whichever is less,

for

groundwater within the permitted area;

or

ii)

 The post-reclamation concentration of

TDS must not exceed the post—reclamation

concentration or 5000 xng/L, whichever

is

less,

 for groundwater in underground

coal mines

arv

 in permitted areas

reclaimed aft~.rsurface coal mining if

the Illinois Department of Mines and

Minerals and the Agency have determined

that no significant resource groundwater

0 135-0579

—16—

existed prior to mining

 (62 Ill.

 Admn.

Code 1780.21(f) and

 (g)); and

B)

 For chloride,

 iron, manganese and sulfate,

the post—reclamation concentration within the

permitted

area

must

not

exceeded.

C)

 For pH, the post—reclamation concentration

within the permitted area must not be

exceeded wi?hin Class

 I: Potable Resource

Groundwater as specified in Section

620.210(a) (4).

refuse

disposal

area

(not

contained

within

the

area from which overburden has been removed)

is

subject to the inorganic chemical constituent and

pH requirements of:

A)

 35 Ill. Adm.

 Code 303.203 302.Subparts B and

C.

 except due to natural causes, for such

area that was placed into operation after

February

1,

 1983, and before the effective

date of this Part, provided that the

groundwater is a present or a potential

source of water for public or food

processing;

B)

 Section 620.440(c)

 for such area that was

placed into operation prior to February 1,

1983,

 and has remained in continuous

operation since that date;

or

C)

 Subpart D of this Part for such area that is

placed into operation on or after the

effective date of this Part.

5)

 For a refuse disposal area

 (not contained within

the area

from which overburden has been removed)

that was placed into operation prior to February

1,

 1983, and is modified after that date to

include additional area, this Section applies to

the area that meets the requirements of subsection

(b) (4) (C) and the following applies to the

additional area:

A)

 35 Ill. Adm. Code 303.203 302.Subparts B and

C,

 except due to natural causes,

 for such

additional refuse disposal area that was

placed into operation after February 1,

 1983,

and before the effective date of this Part,

provided that the groundwater is a present or

a potential source of water for public or

food processing; and

UI

—17—

B)

 Subpart D for such additional area that was

placed into operation on or after the

effective date of this Part.

6)

 A coal preparation plant

 (not located in an area

from which overburden has been removed)

 which

contains slurry material, sludge or other

precipitated process material,

 is subject to the

inorganic chemical constituent and pH requirements

of:

A)

35

 Ill. Adm. Code 303.203 302.Subparts B and

C. except due to natural causes, for such

plant that was placed into operation after

February 1,

 1983,

 and before the effective

date of this Part, •provided that the

groundwater is a present or a potential

source of water for public or food

processing;

B)

 Section 620.440(c)

 for such plant that was

placed

into

operation

prior

February

1983, and has remained in continuous

operation since that date;

or

C)

 Subpart D for such plant that is placed into

operation on or after the effective date of

this Part.

7)

 For a coal preparation plant

 (not located in an

area from which overburd~tnhas been removed) which

contains slurry material, sludge or other

precipitated process material, that was placed

into operation prior to February 1,

 1983,

 and is

modified after that date to include additional

area, this Section applies to the area that meets

the requirements of subsection

 •(b) (6) (C) and the

following applies to the additional area:

A)

35

 Ill. Adm. Code 303.203 302.Subparts B and

C,

 except due to natural causes, for such

additional area that was placed into

operation after February 1,

 1983,

 and before

the effective date of this Part, provided

that the groundwater is a present or a

potential source of water for public or food

processing; and

B)

 Subpart D for such additional area that was

placed into operation on or after the

effective date of this Part.

IT IS SO ORDERED.

0135-058

1

—18—

I, Dorothy M. Gunn,

 Clerk of the Illinois Pollution Control

Board, hereby certj,fy that the above

 pin~9nand order was

adopted on the

 2’~-~

day of

 1992,

by

a vote of

____________.

Dorothy N. ~Yinn,Clerk

 Illinois Poflution Control Board

0 135-0582