ILLINOIS POLLUTION CONTROL BOARD

December

6,

1991

IN THE MATTER OF:

)

GROUNDWATER PROTECTION: REGULATIONS FOR

)

R89-5

EXISTING AND NEW ACTIVITIES WITHIN SET-

)

(Rulemaking)

BACK ZONES AND REGULATED RECHARGE AREAS

(35 ILL. ADM.

CODE 601,

615, 616 and 617)

(“TECHNJCAL STANDARDS”)

Adopted Rule.

Final Order.

OPINION AND ORDER OF THE BOARD

(by P.C.

Flemal):

This matter comes before the Board upon

a regulatory

proposal filed

by the Illinois Environmental Protection Agency

(“Agency”)

pursuant to Sections 14.4(b)

and 14.4(d)

of the

Illinois Environmental Protection Act

(Ill.

Rev.

Stat.

1989,

ch.

111½,

par.

1001 et ~g.)

(“Act”).

Section

14.4 was enacted by

the Illinois General Assembly as part of the Illinois Groundwater

Protection Act (“IGPA”),

P.A.

85_8631, effective September

24,

1987.

Sections 14.4(b)

and 14.4(d)

mandate

inter alia that the

Agency propose and the Board promulgate regulations prescribing

standards and requirements for certain activities within setback

zones and regulated recharge areas,

as these terms are defined in

the IGPA.

The set of affected activities

includes,

in general,

those activities that offer significant potential for producing

groundwater contamination,

and which are not otherwise currently

subject to regulations which

limit or eliminate their potential

for producing groundwater contamination.

1 P.A.

85—863 consists of sixteen sections,

the first nine of

which constitute a free-standing body of statute found at Ill. Rev.

Stat.

1989,

ch.

111½,

par.

7451

et

seq..

Of

the

remaining

sections,

all

but

the

last

(effective

date

provision)

provide

amendments

to various

pre—existing

statutes.

Amendments

to the

Environmental Protection Act occur in Section

14

of

P.A.

85-863.

The term “Groundwater Protection Act” is commonly u.sed to refer to

both the free-standing first nine sections, and to the full sixteen

sections of

P.A.

85—863.

Unless otherwise specified,

the latter

senso

lato usage is employed herein.

The Board wishes to acknowledge the special contribution made

by Michelle

C.

Dresdow, who has served as Hearing Officer in this

proceeding.

128—87

---

—2—

This matter previously has been submitted for First and

Second Notice by the Board.

By today’s action the Board adopts

the rules.

Today’s Opinion contains eight major sections,

in

order as follows:

Procedural History

Statutory Framework

Overview of Regulations

Discussion of Part 601

Discussion of Part 615

Discussion of Part 616

Discussion of Part 617

Economic Impact

PROCEDURAL HISTORY

The Agency

filed its proposal

in the instant matter,

accompanied by

a Statement of Reasons, on March

13,

1989.

On April

1,

1989 the Illinois Department of Energy and

Natural Resources

(“DENR”)

filed a Public Comment

(“PC”) pursuant

to Section 27(a)

of the Act requesting that the Board determine

that an Economic Impact Study

(“EcIS”)

be prepared.

By Order of

April

27, 1989 the Board issued its finding that an EcIS should

be prepared.

Merit hearings were held on May 16 and

17,

1989

in

Springfield,

Illinois,

and on June

1 and 2,

1989

in Chicago,

Illinois.

The Springfield hearings were devoted to the Agency’s

presentation

of the proposal and to the public’s and Board’s

questioning of the Agency regarding the rationale and operations

of the proposal.

Questioning of the Agency continued at the

Chicago hearings.

Additionally, testimony on behalf of the

McHenry County Defenders,

Citizens for a Better Environment,

the

Great Lakes Chapter of the Sierra Club,

and the Illinois Steel

Group was received at the Chicago hearings.

By Hearing Officer Order of June

15, 1989

a post-hearing

comment period was set through August

1,

1989.

Six Public

Comments

(PC

#5 through #10) were received during this period.

On August 31,

1989 the Board adopted a version

of the

proposal for First Notice2

(“1st First Notice”).

As the Board

noted in the 1st First Notice Opinion

(p.

1-2),

a principal

reason for taking First Notice action at that time was to provide

a draft upon which the EcIS could be focused.

A second reason

was to allow two other regulatory actions to proceed to the point

where their potential interplay with the instant proceeding would

2 Publication occurred

at

13

Ill.

Reg.

14641,

September

22,

1989.

128—88

---

—3—

be more apparent.

These two actions were the Board’s proposed

revision of its landfill regulations undertaken

in Docket -R88—

73 and the companion “groundwater standards” proceeding mandated

under Section 8(a)

of the IGPA

(see following discussion

of

Docket P89-14).

The landfill regulations considered

in P88-7 were adopted

August

17,

1990 and became effective September

18,

1990.

However, while the Board awaited the EcIS and the outcome of the

P89—14 proceeding,

the one-year active term4

of the 1st First

Notice expired.

In addition, the deadline set at Section

14.4

of

the Act for completion of the instant rulemaking passed.

The

Board a’ddressed both these concerns by Order of February

28,

1991,

where

it reiterated its intent to await completion

of the

EcIS and further resolution

in R89—14,

but otherwise to expedite

this proceeding.

The EcIS was duly completed under the direction

of the

Illinois Department of Energy and Natural Resources

(“DENR”);

the

statutory EcIS hearing was held

in Springfield

on April

3,

199l~.

Also,

the final hearing in P89-14 was conducted on May 30,

1991.

Accordingly,

the Board re—noticed the instant regulations

(“2nd First Notice”)

on June 20,

19916..

The principal changes

between the 1st and 2nd First Notice proposal accommodated

the

latter to actions taken in the landfill and groundwater standards

proceedings,

P88-7 and P89—14.

On September

12,

1991 the Board adopted the proposal for

Second Notice.

On November

19,

1991,

the Joint Committee

on

Administrative Rules voted

to object to the proposal.

The Board

addresses the JCAR objection by separate Resolution adopted

today.

JCAR staff also made non-substantive

recommendations,

mainly on grammatical and typographical errors.

The Board has

In

the Matter

of:

Development,

Operating,

and

Reporting

Requirements

for Non-hazardous Waste Landfills.

The Illinois Administrative

Procedure Act prescribes

that

a regulatory

proposal must be

acted upon within one—year

of

its

being first noticed,

otherwise it is necessary to re—first notice

the proposal.

~ Citation herein to the iranscript pages of the EcIS hearing

are in the form:

“P2.

at

“.

Citation to the transcript pages

of the early merit hearings

(May 16, May 17, and June

1,

1989)

are

in the form:

“P. at

6 Publication of Parts

601,

616,

and 617 occurred at

15 Ill.

Peg.

9829 et

seq.,

July

5,

1991; publication of Part 615 occurred

at

15

Ill.

Peg.

~O303, July

12,

1991.

128—89

---

—4—

accepted

these

recommendations

and

incorporated

the

changes

into

the

rule

in

today’s

Order.

In addition to the record of testimony and exhibits

developed at hearing and the EcIS document,

34 public comments

(“PC”)

have been filed

in this docket.

PC #1 through #10 were

filed prior to 1st First Notice; PC #5 through #25 were filed

subsequent to 1st First Notice; and PC #26 through #34 were filed

during the 2nd First Notice comment period.

Persons filing

public comments are as follows:

P9blic Comment #s

Filer

1,

2,

19

DENR

3,

8,

16,

21,

33

Waste Management of Illinois,

Inc

(“Waste Management”)

4

James T.

Harrington

5,

17,

25

Illinois Environmental Regulatory Group

(“IERG”)

6,

7,

15,

20,

30

Illinois Fertilizer and Chemical

Association

(“IFCA”)

9,

23,

32

Agency;

10,

18,

24,

34

McHenry County Defenders,

Citizens for a

Better Environment,

and the Illinois

Chapter of the Sierra Club (collectively

as “Defenders”)

11,

26,

27

Administrative Code Division of the

Illinois Office of the Secretary of

State

12

Illinois Department of Commerce and

Community Affairs

13,

22

Illinois Department of Agriculture

(“IDOA”)

14,

29

Metropolitan Water Reclamation District

of Greater Chicago

28

Growmark,

Inc.

31

Illinois Farm Bureau (“Farm Bureau”)

STATUTORY

FRAMEWORK

The

IGPA

was

enacted

by

the

Illinois

General

Assembly

as

an

outgrowth

of

long-standing

concern

by

the

General

Assembly

and

the citizens of the State that the State’s rich and valued

groundwater

resources

be

protected.

The

IGRA

is

a

multi-faceted

policy

and

program

statement

designed

to

provide

that

protection

and

to

assure

the

continued

viability

of

the

State’s

groundwater

resources.

The

policy

statement,

as

found

at

Ill.

Rev.

Stat.

1989,

ch.

111½, ¶7452(b),

reads:

it

is

the

policy

of

the

State

of

Illinois

to

restore,

protect,

and

enhance

the

groundwaters

of

the

State,

as

a

natural

and

public

resource.

The

State

128—90

---

—5—

recognizes

the

essential

andpervasive

role

of

groundwater

in

the

social

and

economic

well—being

of

the

people

of

Illinois,

and

its

vital

importance

to

the

general

health,

safety,

and

welfare.

It

is

further

recognized

as

consistent

with

this

policy

that

the

groundwater

resources

of

the

State

be

utilized

for

beneficial

and

legitimate

purposes;

that

waste

and

degradation

of

the

resources

be

prevented;

and

that

the

underground

water

resources

be

managed

to

allow

for

maximum

benefit

of

the

people

of

the

State

of

Illinois.

Sectio4

14.4

The

particular

program

statement

that

underlies

today’s

action

occurs

within

Section

14.4

of

the

Act.

Section

14.4

prescribes

in

its

entirety:

a.

No

later

than

January

1,

1989,

the

Agency,

after

consultation

with

the

Interagency

Coordinating

Committee

on

Groundwater

and

the

Groundwater

Advisory

Council,

shall

propose

regulations

to

the

Board

prescribing

standards

and

requirements

for

the

following

activities:

1.

landfilling,

land

treating,

surface

impounding or piling of special waste and

other wastes which could cause contamination

of

groundwater

and

which

are

generated

on

the

site,

other

than

hazardous,

livestock

and

landscape

waste,

and

construction

and

demolition

debris;

2.

storage

of

special

waste

in

an

underground

storage

tank

for

which

federal

regulatory

requirements

for

the

protection of

groundwater

are

not

applicable;

3.

storage

and

related

handling

of

pesticides

and fertilizers at a facility for the purpose

of commercial application;

4.

storage and related handling of road oils and

de-icing

agents

at

a

central

location;

and

5.

storage

and

related

handling

of

pesticides

and

fertilizers

at

a

central

location

for

the

purpose

of

distribution

to

retail

sales

outlets.

In

preparing

such

regulation,

the

Agency

shall

provide

as

it

deems

necessary

for

more

stringent

provisions

for

those

activities

enumerated

in

this

subsection

which

are

not

already

in

existence.

12 8—9

1

---

—6—

Any

activity

for

which

such

standards

and

requirements

are

proposed

may

be

referred

to

as

a

new

activity.

b.

Within

2

years

after

the

date

upon

which

the

Agency

files

the

proposed

regulations

pursuant

to

subsection

(a)

of

this

Section,

the

Board

shall

promulgate

appropriate

regulations

for

existing

activities.

In

promulgating

these

regulations,

the

Board

shall,

in

addition

to

the

factors

set

forth

in

Title

VII

of

this

Act,

consider

the

following:

1.

appropriate

programs

for

water

quality

monitoring;

2.

reporting,

recordkeeping

and

remedial

response

measures;

3.

.

appropriate

technology-based

measures

for

pollution

control;

and

4.

requirements

for

closure

or

discontinuance

of

operations.

Such

regulations

as

are

promulgated pursuant to

this

subsection

shall

be

for

the

express

purpose

of

protecting

groundwaters.

The

applicability

of

such

regulations

shall

be

limited

to

any

existing

activity

which

is

located:

A.

within

a

setback

zone

regulated

by

this

Act,

other

than

an

activity

located

on

the

same

site

as

a

non—community

water

system

well

and

for

which

the

owner

is

the

same

for

both

the

activity

and

the

well;

or

B.

within

a

regulated

recharge

area

as

delineated

by

Board

regulation,

provided

that:

i.

the

boundary

of

the

lateral

area

of

influence

of

a

community

water

supply

well

located

within

the

recharge

area

includes

such

activity

therein;

ii.

the

distance

from

the

wellhead

of

the

community

water

supply

to

the

activity

does

not

exceed

2500

feet;

and

128—92

---

—7—

iii. the community water supply well

was

in existence prior to January

1,

1988.

In addition,

the Board shall ensure that the

promulgated

regulations

are

consistent

with

and

not

pre—emptive

of

the

certification

system

provided

by

Section

14.5.

c.

Concurrently

with

the

action

mandated

by

subsection

(a),

the

Agency

shall

evaluate,

with

respect

to

the

protection

of

groundwater,

the

adequacy

of

existing

federal

and

State

regulations

regarding

the

disposal

of

hazardous

waste

and

the

offsite

disposal

of

special

and

municipal

wastes.

The

Agency

shall

then

propose,

as

it

deems

necessary,

additional

regulations

for

such

new

disposal

activities

as

may

be

necessary

to

achieve

a

level

of

groundwater

protection

that

is

consistent

with

the

regulations

proposed

under

subsection

(a)

of

this

Section.

d.

Following

receipt

of

proposed

regulations

submitted

by

the

Agency

pursuant

to

subsection. (a)

of

this

Section,

the

Board

shall

promulgate

appropriate

regulations

for

new

activities.

In

promulgating

these

regulations,

the

Board

shall,

in

addition

to

the

factors

set

forth

in

Title

VII

of

this

Act,

consider

the

following:

1.

appropriate

programs

for

water

quality

monitoring,

including,

where

appropriate,

notification

limitations

to

trigger

preventive

response

activities;

2.

design practices and technology-based

measures appropriate for minimizing the

potential for groundwater contamination;

3.

reporting, recordkeeping and remedial

response measures;

and

4.

requirements for closure or discontinuance of

operations.

Such regulations as are promulgated pursuant to

this subsection shall be for the express purpose

of protecting groundwaters.

The applicability of

such regulations shall be limited to any new

activity which is to be located within

a setback

zone regulated by this Act,

or which

is to be

located within a regulated recharge area as

delineated by Board regulation.

In addition, the

128—93

---

—8—

Board

shall

ensure

that

the

promulgated

regulations

are

consistent

with

and

not

pre-

emptive of the certification system provided by

Section

14.5.

e.

Nothing

in

this

Section

shall

be

construed

as

prohibiting

any

person

for

whom

regulations

are

promulgated

by

the

Board

pursuant

to

subsection

(b)

or

(c)

of

this

Section,

from

proposing

and

obtaining,

concurrently

with

the

regulations

proposed

by

the

Agency

pursuant

to

subsection

(a)

of

this

Section,

a

rule

specific

to

individual

persons

or

sites

pursuant

to

Title

VII

of.this

Act

which

codifies

alternative

groundwater

protection

methods

that

provide

substantially

equivalent

protection

for

community

water

supplies.

f.

Nothing

in

this

Section

shall

be

construed

as

limiting

the

power

of

any

county

or

municipality

to

adopt

ordinances,

which

are

consistent

with

but

not

more

stringent

than

the

regulations

adopted

by

the

Board

pursuant

to

this

Section,

for

application

of

standards

and

requirements

within

such

setback

zones

as

are

provided

by

this

Act.

g.

The

Agency

shall

prepare

a

groundwater

protection

regulatory

agenda

for

submittal

to

the

Interagency

Coordinating

Committee

on

Groundwater

and

the

Groundwater

Advisory

Council.

In

preparing

this

agenda,

the

Agency

shall

consider

situations where

gaps

may

exist

in

federal

or

State

regulatory

protection

for

groundwater,

or

where

further

refinements

could

be

necessary

to

achieve

adequate

protection

of

groundwater.

h.

Nothing

in

this

Section

shall

be

construed

as

limiting

the

general authority of the Board to

promulgate

regulations

pursuant

to

Title

VII

of

this Act.

Although

the

instant

rules

are

promulgated

pursuant

to

the

mandate

of

Section

14.4,

Section

14.4

sufficiently

interweaves

with

other

portions

of

the

IGPA

that

it

is

necessary

to

discuss

briefly

these

related

portions.

Sources

and

Routes

In

general

usage,

a

“source”

of

groundwater

contamination

is

any

activity,

facility,

etc.

from

which

a

contaminant

finds

its

way

into

groundwater.

However,

the

IGPA

does

not

define

the

term

“source”

in

isolation,

but instead defines “potential sources” of

various

types.

Moreover,

the

definitions

include

only

very

specific activities and activity levels,

such that the definition

128—94

---

—9—

of “potential source” as used in the IGPA and herein is

substantially more circumscribed than

it is

in general usage.

The IGPA identifies two basic types of potential sources,

potential primary source at Section 3.59 of the Act and potential

secondary source at Section 3.60 of the Act.

In each case

a

potential source is initially identified as “any unit at a

facility or site not currently subject to

a removal or remedial

action”

.

Additionally,

a potential primary source is a

potential source that:

1.

is utilized for the treatment,

storage,

or

disposal

of any hazardous or special waste not

generated at the site;

or

2.

is utilized for the disposal of municipal waste

not generated at the site,

other than landscape

waste and construction and demolition debris; or

3.

is utilized for the landfilling,

land treating,

surface impounding or piling of any hazardous or

special waste that

is generated on the site or at

other sites

owned, controlled or operated by the

same person; or

4.

stores or accumulates at any time more than 75,000

pounds above ground,

or more than 7,500 pounds

below ground,

of any hazardous substances.

(Act,

Section 3.59)

Conversely,

a potential secondary source

is any unit at

a

facility or site not subject to a removal or remedial action,

which

is not a potential primary source,

and which:

1.

is utilized for the landfilling,

land treating,

or

surface impounding of waste that is generated on

the site or at other sites owned,

controlled or

operated by the same person,

other than livestock

and landscape waste,

and construction and

demolition debris; or

2.

stores or accumulates at any time more than 25,000

but not more than 75,000 pounds above ground,

or

more than 2,500 but not more than 7,500 pounds

below ground,

of any hazardous substances;

or

~ The

terms

“site”

and

“unit”

as

used

in

the

statutory

definitions

of potential primary

source and potential secondary

source are themselves statutorily defined at Sections 3.43 and 3.62

of the Act.

128—95

---

—10—

3.

stores or accumulates at any time more than 25,000

gallons above ground,

or more than 500 gallons

below ground,

of petroleum,

including crude oil or

any fraction thereof which is not otherwise

specifically listed or designated as a hazardous

substance;

or

4.

stores or accumulates pesticides,

fertilizers, or

road oils for purposes of commercial application

or for distribution to retail sales outlets; or

5.

stofes or accumulates at any time more than 50,000

pounds of any de-icing agent;

or

6.

is utilized for handling livestock waste or for

treating domestic wastewaters other than private

sewage disposal systems as defined

in the “Private

Sewage Disposal Licensing Act”.

(Act,

Section 3.60)

In general usage,

a

“route” of groundwater contamination

is

any conduit through which a contaminant is transferred from its

source to groundwater.

As is the case with “potential source”,

the definition

of “potential route”

is statutorily circumscribed

in the IGPA to include only specific types of routes,

as follows:

“Potential Route” means abandoned and improperly

plugged wells of all kinds,

drainage wells,

all

injection wells,

including closed loop heat pump wells,

and any excavation for the discovery,

development or

production of stone,

sand or gravel.

(Act,.Section

3.58)

Setback

Zones

Setback zone is defined at Section 3.61 of the Act as:

“Setback Zone” means

a geographic area, designated

pursuant to this Act,

containing a potable water supply

well or

a potential source or potential route, having a

continuous

boundary,

and

within

which

certain

prohibitions or regulations are applicable

in order to

protect groundwaters8.

The nature of and various restrictions applied to setback

zones are expanded upon in Sections 14.1,

14.2,

and 14.3 of the

Act.

Section 14.1 establishes a general prohibition against the

The

term

“potable”

used

in

this

definition

is

itself

statutorily defined at Section

3.65 of the Act.

128—96

---

—11—

siting of any new community water supply well9 within 200 feet of

any

potential

primary or potential secondary source or

any

potential

route.

This

prohibition

is

extended

pursuant

to

subsection

(b) to 400 feet for a new community water supply well

“deriving water from fractured or

highly permeable bedrock or

from an unconsolidated and unconfined sand and gravel formation”.

Section 14.1 thus,

among other matters, establishes

a minimum

setback zone of 200 or 400 feet around potential groundwater

contamination sources, within which the siting of new community

wells

is

prohibited10.

Minimum

setback

zones

for

potable

water

supply

wells

and

prohibi~tionsagainst new sitings within them are established

in

Section 14.2.

Like the setback zones established for potential

sources and potential routes in Section 14.1,

the basic minimur~

setback zones for potable water supply wells are 200 and 400

feet,

depending on the nature of the bedrock or sand and gravel

formation from which the water

is derived.

The prohibitions

against new sitings apply to new potential routes and new

potential primary or secondary sources.

In these elements,

Section

14.2

is then essentially the converse of Section

l4.~l,

the former establishing setbacks around the water wells,

and the

latter establishing setbacks around potential contamination

sources/routes.

Section

14.2,

however,

is substantially more expansive than

Section

14.1 with regard to the number of wells covered and to

special conditions and exceptions.

As regards coverage,

the 200—

foot setback under Section

14.2 initially applies to ~jj~potable

water supply wells,

not just community water supply wells;

the

400—foot provision remains applicable only to community water

supply wells.

Because community water supply wells are only

a

small subset of all potable water supply wells, the number of

~ Community

and non-community water

supply

systems

are the

two varieties of public water supply systems, pursuant to Section

3.28 of the Act.

A community water supply by definition at Section

3.05 of the Act “serves or is intended to serve at least 15 service

connections used

by

residents

or

regularly

serves

at

least

25

residents”;

a non—community water supply system is

a public system

which

is not

a community system.

Pursuant

to Section 3.05 non—

community water supplies are not subject to the provisions Of the

Act.

10

Section

13

of the IGPA establishes

a similar prohibition

against the siting of new non—community,

semi—private,

or private

water wells within 200 feet of any potential primary or potential

secondary

source

or any potential route.

Certain exceptions may

apply for private wells where the owner of the new well is the same

as the owner of the potential source or route.

Section

13 of the

IGPA

is

codified

at

Rev.

Stat.

1989,.

ch.

111½,

par.

ll6.ll6a

(“Illinois Water Well Construction Code”)

128—97

---

—12—

wells governed by the provisions of Section 14.2

is substantially

larger than those addressed by Section 14.1.

Among the special conditions and exceptions provided for

in

Section 14.2 is provision at subsection

(b)

for the owner of

a

potable water supply well other than a community well to waive

the

prohibition

against

siting

of

new

potential

sources/routes.

A

special

provision

at

14.4(b)

also

establishes

that

in

the

circumstance where a potable water supply is part of a private

water

system

and

the

owner

of

such

well

will

also

be

the

owner

of

a

new

potential

secondary

source

or

new

potential

route,

the

prohibition

against

siting

a

new potential

secondary

source

or

new potential route extends to only 75

feet.

Subsection

(q)

further

allows

the

Board

to

grant

exception

to

the

prohibition

against

new

sitings

for

certain

types

of

sitings.

Whereas Section 14.2 establishes minimum setback zones

around

water

supply

wells,

Section

14.3

establishes

provisions

by

which setback zones may be expanded to a maximum zone not to

exceed 1000 feet.

The provision is applicable only to community

water supply wells and requires affirmative action by the well

owner or the Agency.

The prohibitions for new siting within

maximum setback zones differ from the prohibitions within minimum

setback zones

in that

only new potential primary sources are

prohibited

in

the

former.

Regulated Recharge Areas

Regulated recharge area

is defined at Section 3.67

of the

Act:

“Regulated Recharge Area” means

a compact geographic

area,

as

determined

by

the

Board,

the

geology

of

which

renders a potable resource groundwater particularly

susceptible to contamination.

The procedures and conditions under which promulgation of

a

regulated recharge area may be undertaken are specified at

Sections 17.3 and 17.4 of the Act; promulgation is undertaken

according to the provisions for rulemakings found at Section

28

of

the

Act.

The

instant

regulations

set

up

a

separate

Part,

Part

617,

into which adopted regulated recharge areas are to be eventually

placed;

to

date,

no

proposals

for

promulgation

of

a

regulated

recharge

area

have

been

received

by

the

Board.

Certification

of

Minimal

Hazard

Section 14.5 provides for a “certification of minimal

hazard” system by which the owner of any site otherwise covered

by the 400 foot minimum setback provision of

Section 14.2(d)

or

~ny of the provisions of Section 14.4 or regulations adopted

128—98

---

13

thereunder

is exempted from the requirements of these two pieces

of statute.

This has particular import

to today’s regulations,

since

the existence of certification totally exempts that owner

from the regulations.

Section

14.5 establishes that the certification process

is

initiated by the owner

and

is approved

as to completeness

and

adequacy by the Agency or the Agency’s delegate.

Section 14.5 does

not directly address the matter of appeal processes where an Agency

finding on completeness

and

adequacy

is

adverse.

However,

in

response’ to this matter the Agency notes:

Under Section

14.5(c)

of the Act, Agency

action under

Section

14.5(c) (1)

and

(2)

is

a

final

determination.

Under

Section

5(d)

of

the

Act,

“the

Board

has the

authority to conduct hearings

.

.

.

for

review

of

final

determinations

which

are

pursuant to the Act or Board rule and which involve a

(emphasis

added).”

Therefore

it

can

be

argued

Section 14.5.

Rev.

Stat.

1989,

ch. 111½, ¶7458.

in Board

Docket P89-14(B)1.

The Board took

final

R89-14(B) docket on November 7,

regulations in many ways.

compliance

is required under today’s rules.

R89-14(B)

rule that bear on the instant

rules

compliance

points,

identifying classes

of groundwater

contents

of

preventive

notification

programs.

The

interested

person is directed to the November 7,

in

the

R89-14(B)

proceeding

for

a

full

presentation

of

1

In the Matter

of:

Groundwater Quality Standards

(35

Adin.

Code 620).

128—99

---

—14—

OVERVIEW OF REGULATIONS

The Board will first present an overview of the salient elements

of today’s regulations.

This overview is then followed by

discussion of individual Parts and Subparts of the regulations.

Regulated Activities

Today’s regulations apply only to a limited set of the

number of possible activities within setback zones and regulated

recharge areas.

This limited set consists of the activities

listed at Section l4.4(a)(l—~ of the Act.

The activities that

are inoluded are

(1)

on-site

landfilling, on-site land

treating, on-site surface impounding, and on—site waste piling,

(2) storing in underground tanks,

(3) storing and related

handling of pesticides or fertilizers,

(4)

storing and related

handling of road oils, and

(5)

storing and related handling of

de-icing

agents.

The

units

affected

by

the

regulations

are

further

limited

by

exempting

certain

subclasses

of

units,

such

as

most

on—site

units

that

are

solely

for

the treatment,

storage,

and

disposal

of

hazardous

waste,

livestock

waste,

landscape

waste, or construction Sand demolition debris.

Besides

guidance

provided

by

the list at Section 14.4(a),

controlling factors

in determining which activities would be

regulated

under

today’s

regulations

are

(1)

whether

the

activity

constitutes a potential source of groundwater contamination and

(2) whether the activity is already controlled under existing

State or Federal regulations or laws.

It should be noted that Section 14.4(c)

of

the Act contains

a specific mandate to the Agency to propose additional

regulations,

beyond those considered

herein,

for control

of the

disposal

of

hazardous

wastes

and

the

off—site disposal of special

and municipal wastes if, after required evaluation, existing

State and Federal regulations are found to be insufficient to

achieve groundwater protection consistent with Section 14.4(a).

In this context, the instant regulations may be viewed as

plugging a

legislatively-identified regulatory gap, with

additional

regulations

to

follow

as

may

be

identified

by

additional

Agency

analysis.

Moreover,

they

may

be

viewed

a

“first—cut”

effort

directed

toward

just

those

activities

legislatively-identified

as

requiring

attention.

Section 14.4 makes distinction between new and existing

activities located within setback zones and regulated recharge

areas.

It also provides separate mandates for,

and factors to be

considered

in, promulgation of regulations for the two classes of

12

“On-site”

is defined, in Section 615.102

of the proposal.

The definition

is

identical

to that found

at

35

Ill.

Adm.

Code

702.110.

128—100

---

—15—

activities

(cf,

subsections

(b) and

(d)).

Additionally,

at

subsection

(a) r~xplicitallowance

is made for “more stringent

provisions for those activities

.

.

.

which are not already in

existence”.

The fundamental distinction between new and. existing

activities is recognized

•in the organization of the regulations

into two separate Parts, with Part 615 treating existing

activities

and

Part 616 t~reatingnew

activities.

Although

the

internal arrangement and many specific provisions of the two

Parts are similar, they differ in detail reflective

of the

distinQtion between new and existing activities and of the

generally more restrictive provisions attached to new activities.

Regulation of On—Site Landfills and Waste Piles

The IGPA and the Act

at Section

14.4 specifically identify

on—site

landfills

as

facilities

for

which

groundwater

protection

regulations are to be promulgated.

At Section

14.4(b)

and

(d)

the IGPA and the Act further specify that the regulations address

water quality monitoring,

reporting, recordkeeping,

remedial

response,

closure care,

and pollution control measures.

Accordingly,

at 1st First Notice various provisions

of this

nature were proposed to be applied to landfills13.

Subsequently,

however,

the Board in its P88-7 Docket adopted comprehensive

regulations for solid waste disposal now found at

35

Ill. Adm.

Code Parts 810

through

815.

These regulations apply to all

landfills identified in Section 14.4.

Moreover,

they put into

place most of the specific landfill provisions identified at

Sections 14.4(b)

and 14.4(d).

Given this circumstance, the Board

at 2nd First Notice deleted from the instant proceeding those

provisions that had already been effectuated through the

operation

of the R88—7 regulations.

One issue not addressed by the new landfill regulations

is

the issue of required closure of existing landfills

(see

discussion

of Required Cessations and Closures,

below).

Accordingly,

the required closure provisions are the only

provisions of the landfill portions of Parts

615

and

616.

The IGPA also mandates at Section

14.4 the consideration of

groundwater protection regulations related to waste piles.

The

Board notes that, through the operation of

35 Ill.

Adm.

Code

810.103, waste piles are landfills

for the purpose of the Parts

13

1st First Notice Sections 615.405

and

616.403

(Groundwater

Monitoring),

615.406 (Operating Requirements), 615.407 and 616.408

(Closure and

Post-Closure

Care),

616.404

(Design

and

Operating

Requirements),

616.405

(Monitoring

and

Inspection),

616.406

(Surveying

and

Recordkeeping),

and

616.407

(Operating

Requirements).

128—101

---

—16—

810

through

815

regulations.

Thus,

some

of

the

IGPA

waste-pile

mandate

is addressed by Parts 810 through 815 here.

Regulation of Pesticide and Fertilizer Facilities

The IGPA at Section

14.4(a)

identifies pesticide and

fertilizers

facilities

as

specific

targets

for

prevention

of

groundwater

contamination.

In

addition,

at

Section

14.4(a),

(b)-,

and

(d),

the

IGPA

further

specifies

that

the

Agency

propose

and

the

Board

adopt

regulations

directed

at

the

targeted

activities.

It

has

nevertheless

been

posited

that

regulations already in

place

~re

sufficient,

without

any

needed

additions,

to

protect

groundwater from agrichemical facilities

(e.g.,

PC #15 at

2; PC

#28).

Principal among these

is

8

Ill. Adm. Code 255

(“Part

255”),

a

body

of

regulations

promulgated

by

the

Illinois

Department of Agriculture

(“IDOA”) with an effective date of

January

1,

1990.

Part 255 was developed as part of the State’s

groundwater protection strategy.

The subjects and issues

involved

in

Part

255

are summarized at 13

Ill. Peg.

13535-6,

August

25,

1989:

These rules were developed by the Illinois Department

of Agriculture and the Illinois Environmental

Protection Agency with valuable input from the

Secondary Containment Rules Committee, which was made

up of industry and academia.

The purpose of these rules

is to protect the

environment by prevention

of point source contamination

by agrichemicals and these rules will be referenced by

the Illinois Environmental Protection Agency

in their

setback rules which are to be filed with the Pollution

Control Board as mandated by the Illinois Groundwater

Protection Act.

These rules regulate agrichemical facilities and non-

commercial agrichemical facilities.

An agrichemical

facility is a site used for commercial purposes, where

bulk pesticides are stored

in

a single container in

excess

of

300

gallons

of

liquid

pesticide

or

300

pounds

of

dry

pesticide

for

more

than

30

days

per

year

or

where

more

than

300

gallons

of

liquid

pesticide

or

300

pounds

of

dry

pesticide

are

being

mixed,

repackaged

or

transferred

from

one

container

to

another

within

a

30—

day period or a site where bulk fertilizers are stored,

mixed,

repackaged

or

transferred

from

one

container

or

another.

Non—commercial

agrichemical

facility

is

a

site where storing pesticides

or fertilizer for more

than

45

consecutive

days

in

a

single

container

holding

in

excess

of

300

gallons

bulk

liquid

pesticides,

or

300

pounds bulk dry pesticides,

or 5000 gallons bulk liquid

commercial fertilizer or 50,000 pounds bulk dry

commercial fertilizer;

the loading and mixing,

128—102

---

—17—

including bulk repackaging,

of pesticides or fertilizer

at a permanent site for more than a 45 day period in

quantities

in excess of the amounts established;

and

the non—commercial application of pesticides or

fertilizer.

These rules set forth the procedures and time frame for

registration, permitting, and construction.

They also

address general construction requirements for secondary

containment

of

storage

tanks

and

operational

areas,

as

well

as recordkeeping, management and operational

procedures.

They

further

delineate

facility

ircspection, maintenance and closure requirements.

Additionally, these rules set forth guidelines for

connections to potable water supplies and the open

burning of agrichemicals,

agrichemical containers,

and

other agri—related chemical wastes.

While the Board believes that the Part 255 regulations are a

necessary and valuable element in assuring environmental

protection,

it

is

not

convinced

that

they constitute

a sufftcient

program.

The Board believes,

along, with the Agency

(PC #23 at

37),

that in addition to Part 255 there

is

need

for

regulations

for groundwater monitoring,

closure and post-closure

care,

reporting and recordkeeping,

and remedial response measures14.

It

is these elements that are specified

in today’s regulations.

Besides the issue of whether there.should be any regulation

of agrichemical facilities at all,

a significant portion of the

testimony,

comment, and debate generated

in this proceeding has

focused on the comparative authority to be given those data bases

in which pesticides and fertilizers have been identified

in

groundwater.

Thus,

it is argued that data from the Agency,

or

from the Illinois Department of Public Health,

or from DENR,

or

from IDOA,

or even from Wisconsin or Minnesota or

Iowa,

etc.,

best characterize the magnitude of the groundwater contamination

problem.

In

general,

the Board does not find any of these data

sets to provide

it with singular guidance.

Rather,

the Board

finds

in them collectively ample demonstration of both the

existence and potential for serious contamination of groundwater

by pesticides and fertilizers,

and hence grounds for the

regulations today adopted.

In

order

to

strike

a

balance

between lessening the economic

burden

which

may

be

placed

on

smaller

operators

and

providing

a

reasonable degree of assurance that a facility’s groundwater

protection measures are effective,

a semi—annual groundwater

monitoring

schedule

for agrichemical faqilities

is

incorporated

at

Sections

615.207

and

616.208,

instead of the quarterly

14

Consideration

of

each

of

these

elements

is

statutorily

required at Sect~on14.4(b)

of the Act.

128— 103

---

—18—

monitoring schedule required by others, where certain conditions

are met.

Also, the post—closure monitoring requirement for

agrichemical facilities at Sections

615.202

and

616.202

is three

years,

instead of the five—years associated with other types of

regulated facilities.

These changes were advocated by the Agency

(Id.),

and

are

also

discussed

below

in

the

discussion

pertaining

to

individual

provisions.

Affected Wells and Lands

The number of affected wells is estimated to be more than

400,000

(P.

at

29).

Most

of

these

are

private

wells

serving

an

owner—occupied

single

family

dwelling.

Of

the

public

wells,

over

7,100 are non-community wells and approximately 3,649 are

community wells

(j~ç~.). The

community

wells

are

approximately

evenly split between those to which the 200-foot and 400-foot

minimum setback zones apply

(u.).

Based

on

these

figures,

the

Agency estimates that

approximately

1.2

million

acres

(approximately

1/30

of

the

land

area

of

the

State)

are located within minimum setback.are~s (P.

at

29),

largely associated with private wells.

The Agency further estimates that

if

all

the

areas

of

the

State

that

can

be

assumed

to

qualify for regulated recharge area

status are

in fact so designated,

that approximately one—half of

the

State

would

be

involved

(R.

at

317-8).

Prescribed Control Measures

Subsections 14.4(b)

and 14.4(d) prescribe the control

factors which the Board must consider in today’s regulations.

In

their general outline,

these subsections require the Board to

consider groundwater monitoring programs, recordkeeping and

reporting, remedial and response measures, technical standards

for

pollution

control,

and

requirements

for

closure

and

discontinuance of operations.

The regulations closely tracks

these several

factors.

Absence of Permits

A salient feature of the instant regulations

is that they

are

by

design

implemented

entirely

without

permits

(see PC #9

at

¶12).

This

is

in

part

because

many

of

the

activities

covered

by

the regulations are specifically exempted from permit

requirements

by

Section

21(d)

of

the

Act.

Moreover,

since

most

of

the

remaining

activities

covered

by

the instant regulations

are

also

conducted

outside

existing

permit

programs,

requiring

permits to regulate these activities would by necessity require

the

establishment

of

new

permit

programs.

However,

the

Agency

has

intentionally

not

proposed

any

new

permit

programs

in

the

instant proceeding.

The Agency

notes

that

Section

14.4

is

silent

128—104

---

—19—

on

the

matter of permits, which

it views as purposeful.

Moreover,

the large number and variety of affected setback zones

and activities,

the permitting of which would impose an

impractically large public and administrative burden.

This would

require

shifting

of

substantial

resources

away

from

other

environmental programs,

to their detriment.

The Defenders have contended that the Board does have

authority under the Act to implement the instant regulations via

a permit system

(e.g., PC #10 at

17—19).

Whether

this

contention

is

correct

or

not,

however,

is

not

the

immediate

issue.

The

immedi~teissue

is whether it is

prudent

to

implement

the

instant

regulations via

a permit system.

The Board agrees with the

Agency

that,

at

least

at

this

time,

it would

be

imprudent

to

build a permitting process into the instant regulations.

As the Board observed at 1st First Notice,

in the absence of

a

permitting

system

the

Agency

is

not

able to provide the deqree

of oversight that

it otherwise would.

This can introduce

problems not only for the environment, but also for the regulated

community, which cannot so readily avail itself of the Agend~y’s

expertise.

At 1st First Notice the Board introduced many

provisions

intended

to

lessen

these problems.

Required Cessations and Closures

The instant regulations prohibit the continued use or

operation

of

certain

existing units within certain setback zones

and

regulated

recharge

areas.

The prohibitions are:

1.

Within a minimum set—back zone:

all on-site units

for landfilling or land treating or surface

impounding of special and non—special waste,

and

all units for the storage and handling or road

oils containing wastes; cessation to be effective

two years after promulgation of Part 615 and

closure to be completed three years after

promulgation.

(Sections 615.402,

615.422,

615.442, and 615.702)

2.

Within

a

maximum

set-back

zone:

all on-site units

for landfilling or

land

treating

or

surface

impounding of special waste;

cessation to be

effective two years after the effective date of

the

ordinance

or

regulation establishing the

maximum setback zone and closure to be completed

three

years

after

the

effective

date

of

the

ordinance

or

regulation.

(Sections

615.403,

615.423,

and

615.443).

3.

Within

a

regulated

recharge

area:

all

on-site

units

for

landfilling of special waste where the

distance between the landfill and wellhead is less

128—105

---

—20—

than 2500 feet15

cessation

to

be

effective

four

years after promulgation of the regulated recharge

area and clo~ureto be completed five years after

promulgation.

(Section

615.404).

All

of

these

required

cessations

and

closures

are

subject

to

exception

via

the

adjusted

standard

procedure

of Section 28.1 of

the

Act

and

the

minimal hazard certification provisions of

Section

14.5

of

the

Act.

In

regulated

recharge

areas,

the

requirement also may be set aside as.part of the regulation

adopting the regulated recharge area.

At

1st

First

Notice

the

Board

summarized the argument behind

the

required

cessations

and

closures

as

follows:

The justification for each of these required cessation

and

closures

is

similar.

In

each

case,

the

activity

is

deemed

to

present

a

substantial

threat

to

groundwater

quality

and

use.

Additionally,

in each

case

the

prohibition

is against the activity for which there

is

a similar statutory prohibition against ~

sitings

pursuant

to

Sections

14.2

and

14.3

of

the

Act.

The

intent,

thus,

is to eventually assure safe setback of

all on—site landfilling,

land treating, and surface

impou’~ding, irrespective of

whether

the

activity

is

a

new

or

existing

activity.

(Opinion

at

p.

19)

IERG had contended that,

because the IGPA does not

explicitly require cessation and closure of existing on-site

landfills,

land treatment units,

and surface impoundments, there

is

no

justification for requiring these closures

(PC #17 at 4).

In an opposite perspective,

the Defenders contended that there

also should be required closure within minimum setback zones of

existing agrichemical facilities

(PC #24 at 4—5 and PC #34 at

10),

based

on

the

record of groundwaters contaminated by

pesticides and fertilizers.

The Board adopts the required

cessations and closures as recommended by the Agency.

The

Board

notes

that

Part

616

at Section 616.104(e)

sets out

an

exception

procedure

for

new

facilities

that

is

not

explicitly

included

in

Part

615

as an exception procedure for existing

facilities.

This

is

the

exception procedure that flows from

Section

14.2(c)

of

the

Act

and

that

allows

the

Board

to

exempt

certain

~

facilities

from

the

prohibition

against

siting

within

setback

zones.

If

this

provision

were

fully

paralleled

in

Part

615,

it would provide that certain existing facilities that would

otherwise

be

required

to

close

could

be

exempted

from

clOsure

pursuant to Board findings on the factors listed in 14.2(c).

The

Board believes that equitable treatment of existing and new

15

Board

Note:

The

2500-foot

distance

is

statutorily

identified

at Section 14.4(b)

of the Act.

128— 106

---

—21—

facilities requires such exemption possibility.

However,

the

Board also believes that the adjusted standard process already

serves this purpose, and hence that specific adaptation

of

14.2(c)

into Part 615

would

be

unnecessarily

duplicative.

Patterning After Existing Regulations

Wherever possible,

today’s regulations are modeled after

existing

regulations

applicable

to

activities

of

a

similar

nature.

The

purpose

is

to

provide

consistency

of

regulations

between

currently

regulated

facilities

and

facilities that are

today

brought

under

regulation

for

the

first

time.

In

general

the

model

used

is

the

Board

regulations

for

hazardous

waste

facilities found at 35

Ill. Adm.

Code 724, which most closely

parallel the intent of and types of facilities covered by the

instant regulations.

Refinement

of the Terms “Activity” and “Activities”

A principal provision introduced by the Board at

1st First

Notice was replacement

of the word “activity”

or “activitie~” as

used in the Agency’s proposal with the terms “owner or operator”

and “unit”

(or,

in certain instances,

“site” or “faOility”)

,

as

was necessary to accomplish the intended meaning.

This was done

for several reasons.

One reason is that the word “activity”

denotes an action

(e.g.,

landfilljpg,

surface

impoundjjj~g),which

in turn connotes the existence of both

a person carrying out the

action

(e.g.,

an

owner

or

operator)

and

an

object

to

which

the

action is directed

(e.g.,

landfills,

surface impoundments).

Indeed,

today’s regulations impose requirements on bot.h such

persons and such objects.

However, use of the single, word

“activity” to refer to both persons and objects leads to many

awkward

and

often

grammatically

inconsistent constructions.

These

constructions

are

best

avoided.

Additionally,

the

change

was made to provide unity between

the instant regulations and other federal and Board regulations.

In all other similar regulations the operative words are “owner”,

“operator”,

“site”,

“facility”,

and “unit”16.

Accordingly,

these

are terms that are generally well understood by both the

regulated community and the regulating agencies.

Moreover,

they

have a proven record of utility.

To replace these by the less—

definite word “activity” seems

at the expense of this common

understanding

and

utility,

and

to

invite

unnecessary

present

and

future confusion.

16

Definitions

of

“owner”,

“operator”,

“site”,

“facility”,

and

“unit”

are

provided in Section

615.102 of the proposal.

These

definitions are identical to or modeled after the definitions found

at

35

Ill.

Adm.

Code

745.102,

35

Ill.

Adm.

Code

720.110,

Section

3.43

of

the

Act,

35

Ill. Adm. Code 720.110, and Section 3.62 of the

Act,

respectively.

128—107

---

—22—

The

Board

is

aware

that

Section

14.4

of the Act itself most

often

uses

the

word

“activity” to identify both who and what is

to be regulated within the instant

rulemaking.

However,

the

Board

notes

that

the

Act

and

the

IGPA

also

use

the

terms

“site”,

“facility”,

or

“unit”

in

identifying

the

specific

objects

to

which groundwater protection

is directed

(e.g., Sections 3.59 and

3.60,

and

thereby

Sections

14.1,

14.2,

14.3,

and

14.5,

of

the

Act).

The

constructions

herein

are

therefore

consistent

with

usage

in

the

Act.

Thus,

while

the

term

“activity”

remains

useful

for

descriJ~ing

the

general

direction

of

the

instant

regulations,

it

is

usually

not

apt

for

constructions

within

the

regulations

themselves.

Accordingly,

as

used

herein,

the

person

responsible

for

compliance

is

,identified

as

the

“owner

or

operator”.

Similarly,

the basic object subject to

regulation

is

the

“unit”.

Thus,

for

example,

the

prohibition

against

use

or

operation

found

at Section

615.402

is

directed toward the owner or operator of a

landfill unit.

DISCUSSION OF PART 601

The intent of the amendment to 35

Ill. Adm.

Code 601

is to

conform the definition of groundwater found there with the

definition

found

in the IGPA.

This intent was originally noted

by the Board

in an earlier proceeding,

P86-8,

A Plan for

Protecting

Illinois

Groundwater

(Report

of

the

Board,

August

28,

1986).

There

the

Board

noted

the

inconsistency

between

the

Part

601

definition

and

other

definitions

of

the

same

term.

In

response the Board noted

(p.

1-4):

The

.

.

.

definition is not only inconsistent with the

conventional definition of groundwater, but also

appears

to

be

inconsistent with use and definitions

found

elsewhere

within

Illinois statutes

Ill.

Rev.

Stat.

ch.

111½, ¶1003)

and

the

Board’s

regulations

34

Ill.

Adm.

Code

301.420).

In

particular, the Section

601.105 definition appears to establish an

identity

between

“ground

water”

and

“underground

water”,

whereas

conventional

use

considers

groundwater

to

be

a

subset

of

underground

water

(P.

at

1531).

Since

these

differences

in

definition

appear

to

be

the

source

of

some

confusion,

the

Board will propose to amend these

definitions

in the earliest possible regulatory

proceeding.

The

amendment

adopted

today

rectifies

this

inconsistency.

The Board also notes that in several portions of the Board’s

Public Water Supply (Subtitle

F)

rules and regulations the term

“ground water” is spelled as two words.

In contrast, within the

128—108

---

—23—

Environmental Protection Act

and

most other state statutes,

as

well as elsewhere within the Board’s rules and regulations, the

spelling

is

in

the

more

commonly

encountered

form

of

a

single

word,

“groundwater”.

Given

that

both

spellings

occur

in

technical literature,

and that it is commonly understood that

there is no distinction between the two terms other than in the

spelling,

the

Board

does

not

believe

that

changing

the

spelling

within Subtitle F is here justified.

DISCUSSION

OF

PART

615

Part

615

sets

forth

standards

for

“Existing

Activities

in

a

Setback

Zone

or

Regulated

Recharge

Area”,

pursuant

to

the

mandate

of Section 14.4(b)

of

the

Act.

Both

here

and

in

Part

616 a number of changes

in the nature

of technical corrections have been made

to

the proposed

regulations at various stages

in this proceeding.

For the most

part these are not specifically discussed herein.

Part

615,

Subpart

A:

General

Subpart

A

sets

forth

the

general

provisions

applicable

to

the entire Part.

Section

615.101

sets

out

the

general

purpose

of

the

Part.

The

Board

notes

that

there

is

some

particular

import

to

the

language

“located

wholly

or

partially

within

a

setback

zone

or

regulated

recharge

area”.

Given

the

sharp

boundary

of

most

setback

zones

(or

even

regulated

recharge

areas),

the

Board

believes that it may be common that an otherwise affected unit

will lie partly within and partly outside the setback zone (e.g.,

the

unit

extends

from

less

than

200

feet

to

more

than

200

feet

away

from

a

well

which

establishes

a

minimum

setback

zone).

The

Board believes that the intent of the IGPA

is clearly to regulate

such

“split”

units.

At

the

same

time,

however,

the

Board

does

not

believe

that

the

IGPA

intends

that

the

regulations

apply

to

the

entirety

of

a

facility

or

site

that

contains

multiple

units,

and

for

which

the

only

otherwise affected units are located outside the setback

zone

or

regulated recharge

area’7.

Thus

the

emphasis

in

the

applicability

statement

is

on

the

unit(s)

that

are

located

wholly

or

partially

within

the

setback

zone

(or

regulated

recharge

area).

Similarly,

the Board would not find

it inconsistent with

17

The

Agency

also

intends

that

the

regulations

apply

only

to

“that

portion

lof

an

activity)

which

is

actually

located

within

a

setback

zone

or

regulated

recharge

area”

(PC

#9

at

¶3,

emphasis

added).

The

Board

believes

that

this position .is equivalent to

that

here

presented

by

the

Board.

128—109

---

—24—

the

IGPA

or

the

instant

proposal

if

an

owner

or

operator

of

a

multiple—unit

facility

or

site

complied

with

the

current

rules

only

for

those

units

located

wholly

or

partially within the

relevant

setback

zone

or

regulated

recharge

area.

Section

615.102

contains

definitions

applicable

to

the

Part.

The

intent

is

to

bring

into

the

Part

all those definitions that

are

required

for

a

reading

of

the

Part,

and thus to allow the

Part to stand on its own as much as possible.

Many of the

definitions

have

been

borrowed

from

other

Board

regulations,

particularly from 35

Ill. Adm. Code 720 and 724.

In

addition,

particular attention has been paid to making the definitions

consisi.ent with the definitions found at 35

Ill. Adm. Code

620,

in

accord

with

the

close

interrelationship

between

Part

620

and

today’s regulations.

The definitions have undergone various modifications from

those

originally

proposed

by

the

Agency.

These modifications

will

not

be

tracked

here;

rather

the

interested

person

is

directed

to

the

earlier

Opinions

in

this

proceeding

for

greater

details

(1st First Notice Opinion,

p.

22; 2nd First Notice

Opinion,

p.

24—6;

Second

Notice

Opinion,

p.

3—4)

Section

615.103

sets

forth

incorporations

by

reference.

The

format

is

that standardly used

in the Board’s rule and

regulations.

As with the definitions, the incorporations

by

reference have undergone some evolution during the course of this

proceeding.

The interested person

is directed to the early

Opinions

(see

above)

for

a

review

of

this

procedu.ral

history.

Section

615.105

sets

forth

the

various

general

exceptions

to

the

applicability

of

Part

615.

The

first

of

these

exceptions

is

that the Part does not apply if an otherwise regulated facility

or

unit

possesses

a minimum hazard certification pursuant to

Section 14.5 of the Act.

This provision is included

in the

instant proposal based on the directive at Section

14.4(b)

of the

Act that

“

.

.

.

the

Board shall ensure that the promulgated

regulations are

.

.

.

not pre—emptive of the certification system

provided by Section 14.5” of the Act.

Subsections

615.105(b)

and

615.105(c)

note that exceptions

may flow as the result of an adjusted standards proceeding,

site-

specific

rulemaking,

or

a

regulated

recharge

area

proceeding.

The subsections are intended only to alert interested persons to

the possibility that requirements alternate to those

in Parts

615

and 616 might apply if such are authorized

in any of these

alternate rule—making modes.

The Agency has suggested that a literal reading of language

found at 1st First Notice Sections 615.105(b)

and

(C)

and

616.105(b)

and

(c) might provide that if a person “obtains any

‘different requirements’ under an adjusted standard or regulated

recharge area proceeding,

none of the other requirements

128—110

---

—25—

contained in Parts 615 or 616 would apply even if these other

requirements were not the subject of adjusted standard or

regulated recharge area proceedings”

(PC #23 at ¶21).

The Board

believes this to be an unfounded concern, since

in any of the

three alternate standards proceedings

it is to be expected that

any “relief” authorized would be clearly delineated and granted

only after a full and careful consideration of all ramifications.

Subsections 615.105(d)

and 615.105(e)

set forth exceptions

that flow from Sections 14.4(b) (A) and

(B)

of the Act.

The

language used in these provisions is the language of the Act,

except

that

negation

is

used

in

615.105(e)

to

conform

the

langua~eto the structure of Section 615.105.

Part 615,

Subpart

B:

Groundwater Monitoring

Subpart B establishes groundwater monitoring and associated

requirements, including a corrective action program.

The Subpart

is broadly modeled after 35 Ill.

AdTn.

Code 724.Subpart

F,

which

establishes similar requirements for hazardous waste facilities.

Among the principal differences is that Subpart B

is not

implemented via permit

(see preceding discussion), whereas the

provisions of

35 Ill.

Adm.

Code 724.Subpart F are.

The Defenders had asked prior to 1st First Notice

(PC #10 at

16—19)

,

that,

in the absence of a permit,

various activities

required of an owner or operator be undertaken with the

assistance or under the direction of

a person with credentials

in

hydrogeology

(PC #24 at 8).

As 1st First Notice the Board

declined to do so.

The Board affirmed that professional

competence

is essential in making groundwater monitoring

decisions.

However,

it based it decision,

and continues to do

so, on the absence, of

a certification,

accreditation,

or other

program that offers verification of the competence required.

Section 615.201

identifies the facilities or units for which

groundwater monitoring is required.

These are on-site surface

impoundments,

and facilities or units for the storage and

handling of pesticides,

fertilizers,

road oils,

and de—icing

agents.

The groundwater monitoring requirement

is specifically

~

required for underground storage tanks.

Additionally,

the

otherwise affected facilities or

units may be exempted pursuant

to an adjusted standard or regulated recharge area rule.

It

is to be noted that waste piles are landfills pursuant to

Section 810.103, and that existing on-site landfills are required

to monitor groundwater pursuant to 35

Ill. Adm.

Code 814.

Thus,

groundwater monitoring

is required for waste piles.

Section 615.201

is redundant to the extent that

it repeats

applicability statements found in Subparts

D,

F,

I,

J,

K,

and L.

However,

it

is believed that this repetition has value

in guiding

persons through the instant rules.

128—111

---

—26—

Section 615.202 prescribes that the required groundwater

monitoring period consists of the active life of the unit,.

including its closure and post-closure care periods.

It further

specifies that the post-closure care period

is five years for all

units subject to the instant Part18,

except for pesticide and

fertilizer facilities for which the post-closure care period

is

three years19.

Additionally, post—closure care

is to be

continued beyond the three or five years until such time as any

required corrective action

is completed (see Section 615.211).

The Defenders had requested that the post—closure care

period’ for surface impoundments also

be 15 years

(PC #10 at

22).

However,

the time periods involved in post-closure care as here

adopted are consistent with the required term of post-closure

care

in other Board regulations and the Act.

The Board does not

believe

that

sufficient

jus’tification

for

an

exceptional

period

of care for the type of surface impoundments herein under

consideration has been presented in this record.

Similarly,

the

Defenders had requested that the post—closure care period for

pesticide and fertilizer facilities be five years.

Section 615.202 also provides that the active life of a

facility subject to Subpart B begin no earlier than one year

after the effective date of the Part.

The intent

is to allow all

affected facilities

a maximum of one year within which to take

the steps necessary to comply with the requirements of the

Subpart.

This

is deemed necessary since requirements such as

siting and developing monitoring wells will require lead time.

The Agency had suggested that Section 615.202 might be

better placed within Subpart A rather than Subpart B

(PC #23 at

¶22)

.

The Agency observes that there are compliance periods for

requirements other than those contained in Subpart B.

While the

Agency

is clearly correct in this observation, the Board does not

believe that its suggested remedy is workable.

Section 615.202

is essentially a definitional section wherein the term

18

At 1st First Notice it was specified that the post—closure

care period for landfill units was 15 years or such longer period

as may be set by Board regulations.

Post—closure care

is now set

in

Parts

811 through

815

at

5

to

30

years,

depending upon the

nature of the material contained in the landfill.

19 This provision is was added at 2nd First Notice based upon

suggestion of the Agency

(PC #23

at ¶37),

which

in turn was based

on the observations

of IFCA.

128—112

---

—27—

“compliance period”

is defined as it is used within Subpart B20

the term is used nowhere else within Part

615.

Section 615.203 specifies that the owner or operator of any

unit subject to Subpart B must comply with groundwater standards

adopted by the Board.

Pursuant to the definition of groundwater

standards

at

615.102

these

standards

are

the

groundwater—specific

standards

mandated

in

the

IGPA

and

found

at

Part

620.

Section

615.203

further

specifies

that

compliance

with

the

groundwater

standards

is

to

be

for

the

full

compliance

period

and

that compliance

is

to be measured at the compliance point

or

points.’

The latter term is defined at 615.102, along with a

related definition for “unit boundary”.

The unit boundary is the

perimeter

of

the

area

at

the

surface

of

the

land

on,

above

or

below which an affected unit is located.

A compliance point is

any

of

those

points

within

a

Class

I

through

III

groundwater

which exist directly beneath the unit boundary in the

direction(s) toward which groundwater flows.

If the groundwater

flow beneath

a unit is

in different directions at different

depths or at different times,

there could be more than one

compliance point and compliance points could be other than

vertically arrayed.

To the extent that “unit boundary” and “compliance point”

are intended to define monitoring requirements and the need for

corrective action,

the definitions are designed under the

premises that contamination must be identified as close to its

source as

is practicable

(for example,

it is generally infeasible

to

monitor

directly

beneath

an

affected

unit)

and

that

contamination must be contained and addressed,

when

it

is found,

as close to its source as possible.

Section 615.204 prescribes groundwater monitoring system

requirements.

Its main provisions are directed to the

sufficiency of the monitoring network and well design and

construction.

A monitoring network is sufficient

if

it allows sampling of

the background groundwater quality and the quality of groundwater

passing the compliance point or points.

Under certain

circumstances,

as specified in subsection

(b)

,

an owner or

operator may use an existing well as

a monitoring well.

This

provision

is allowed to provide economy where circumstances

warrant.

The standards for well design and construction follow

accepted practice

(P.

at 54; Exh.

78, Attachment B).

20

Once

each

at

Sections

615.203(a),

615.207(a),

and

615.207(b),

and three times at Section 615.211(e).

Similar usages

occur

in Part

616.

128—113

---

—28—

Determination of the sufficiency of the number and location

of monitoring wells

is to be made by the owner or operator.

As

regards this matter,

the Board directs attention to the foregoing

discussion under “Absence

of. Permits”.

Section 615.205 prescribes protocols for groundwater

sampling.

The intent

is to have established a consistent

sampling protocol to assure that sample results can be compared

from

event

to

event.

‘

There are also specific requirements that

the groundwater surface elevation, be determined for each sample

and that groundwater flow rate and direction be determined at

least

annually.

The

latter

provisions

are

intended

to

assure

that

m6vement

of

contaminants

can

be

readily.

addressed.

The Defenders recommended that the owner or operator of each

affected facility be required to file with the Agency, within one

year after the adoption of these rules,

a report specifying

various items

(PC #24 at 6—9; PC #34 at 4—6).

The items include

characterization of the three—dimensional groundwater flow system

underlying the facility,

a description and rationale for the

number and location of monitoring wells,

and description of’~the

data and qualifications of the individual upon which. the report

is based.

The Defenders contended that this information is

necessary if the Agency is to review and evaluate the tasks

required of owners and operators

(PC #24 at 7).

At 2nd First Notice the Board noted that

it shares the

Defenders concern about adequate oversight of the various

monitoring requirements

in today’s rule

(2nd First Notice Opinion

at

p.

31).

The

Board

added

that

it

has

an

independent

concern

that there be available in the public record information upon

which public policy may be reasonably predicated.

At the same

time,

the Board noted its apprehension about regulatory and

administrative overburden,

and asked interested persons to advise

the

Board

on

how

to

find

the

proper

balance

among

these

concerns

(Id.).

In

response,

both

the

Agency and Defenders renewed their

former position.

The Agency observed that landfills are already

required to provide very detailed data pursuant to 35

Ill. Adm.

Code 811.

As regards other types of activities covered under the

instant

rule,

the

Agency

responded

that

the

Defenders’

recommendation

would

be

contrary

to

the

intent

and

desirability

of

having

the

instant

rules

be

self—implementing,

that

the

Agency

can

perform

facility

inspections

to

assure that facilities, are

complying,

and that there are various public groundwater data

bases

under

development

by

the

Agency

or

otherwise

available

(PC

#32 at ¶5).

The Board thereupon accepted the Agency’s

recommendation of adding no additional reporting requirements

(Second

Notice

Opinion

at

p.

10).

Section 615.206 prescribes the parameters which are to be

sampled.

For

most

facilities

these

parameters

are

those

128—114

---

—29—

contaminants

which

are

present

at

the

facility

~

for

which

the

Board has adopted a groundwater standard.

Sampling

of special parameters are specified for two

activities:

storage and handling of pesticides and fertilizers.

Pesticide activities are required to sample for five specific

pesticides or five groups of chemically—similar pesticides which

are stored or handled at the facility, which are most likely to

enter

the

groundwater,

and

which

are the, most toxic.

A list of

five

criteria,

including

volume

stored

or

handled,

1eachabili~y,

toxicity,

spillage history,

and existence of groundwater

standards,

is presented as a guide to the owner or operator for

selection

of

the

pesticides

to

be

monitored.

An

activity

involving

handling

or

storage

of

fertilizers

requires monitoring of five specific parameters:

pH, total

organic

carbon,

nitrates

as

nitrogen,

ammonia

nitrogen,

and

specific conductance.

The Agency believes that these parameters

constitute a sufficient list to determine whether spillage or

leakage

of

fertilizers

has

occurred,

and

hence,

are

sufficient

for

routine

monitoring.

More

extensive

monitoring

may

be

required

if

corrective action must be undertaken pursuant to Sections 615.209

through 615.211.

Section 615.207 sets out required sampling frequencies.

For

all affected facilities sampling is required quarterly,

except

for

certain

facilities

for

the

storage

and

handling

of

pesticides

or

fertilizer,

for

which

sampling

is

required

semi-annually

(subsection b), and for facilities

for the storage and handling

of road oils and de-icing agents,

for

which

sampling is required

annually

(subsection

(c)).

The

quarterly

monitoring

requirement

is premised upon the following observations:

Sampling at quarterly intervals helps assure that

seasonal variations in groundwater can be accounted for

when the sample results are’reviewed.

Moreover,

quarterly monitoring strikes a reasonable balance that

results

in a sampling frequency that helps assure that

a release will be detected at an early stage,

and yet

is

not

so frequent as to be overly burdensome to owners

and operators of units.

(PC #23 at ¶5)

The provision that allows certain facilities for the storage

and handling of pesticides or fertilizer to sample semi-annually

was introduced at 2nd First Notice.

Under the 1st First Notice

proposal all affected pesticide and fertilizer facilities would

have

been

required

to

sample

quarterly.

Various

objections

to

this provision had been raised by IFCA and IDOA.

IDOA also

suggested

that

the

1st

First

Notice

quarterly

requirements

were

overly

onerous

to facilities that have containment structures

in

place

and

that

have

shown

that

groundwater

impacts

have

not

occurred

(PC #22 at

12—13).

128—115

---

—30—

The

Board

does

not

believe

that eliminating all monitoring

requirements for affected pesticide and fertilizer facilities

is

acceptable as a rule-of-general—applicability.

Neither does the

Board

believe

that

it

would

be

acceptable

to require monitoring

only

after

off—site

occurrences

of

contamination

have

been

recognized21.

Either

circumstance

is

viewed

as not compatible

with

the

mandate

of

the

IGPA

‘to

reduce

risk

to

the

State’s

groundwaters.

The Board agrees with the Agency that the

monitoring component of the proposed regulations

is “an essential

element

of

the

groundwater protection scheme, providing notice of

contamination

in

its

earlier

stages”,

and allowing for initiation

of

nondegradation

and

preventative

response

measures

to

maintain

or

restore

the

integrity

of potable supplies

(PC #23 at 37).

This preventive aspect of the regulations would be lost should

the

Board

only

require

groundwater

monitoring

after

contamination

is discovered at an off—site location.

In

recognition

of

these

views,

the

Board

at

2nd

First

Notice

halved the quarterly monitoring requirement for those facilities

deemed

to

present

lesser

risks.

The

qualifications

for

this

lesser

requirement

follow

the

general

recommendation

of

the

Agency

(PC

#23

at

¶37)

(See also discussion above at pp.

.17

and

18)

Section

615.208

specifies

that

the

results

of

monitoring

must

be

reported

to

the

Agency

on

a

regular

basis.

Section

615.209

sets

out

procedures to be followed when

monitoring shows that a groundwater standard has been exceeded.

The Agency must be notified of such exceedences.

Additionally,

the

owner

or

operator

must

accelerate

the

sampling frequency and,

in

some

cases,

expand

the

list

of

sampled

parameters.

For

most

facilities

it

is

required

that

the groundwater be resampled

within

three

days.

For

pesticide

facilities

it

is also required

that

the

resampling

address

each

pesticide

previously

and

presently

handled

at

the

facility.

Section

615.209

further

requires

that

an

owner

or

operator

start a corrective action program

if

the

accelerated

sampling

confirms that groundwater standards are exceeded.

The

requirement

is waived if the owner

or operator can demonstrate

pursuant to Section 615.210 that a source other than the

regulated facility

is the cause of the exceedence or that the

monitoring results were spurious due to error

in sampling,

analysis,

or

evaluation.

21

IDOA

suggests,

among

other

matters,

that

certain

facilities

that

have

containment

and

that

have

no

prior

history

of

causing

groundwater contamination should be

“relieved

of the requirement

for

groundwater

monitoring

until

such

time

as

a

detection

of

another

off-site

sampling

entity would

trigger

the

facility

to

sample the on-site well”

(PC #22

at

13).

127—116

---

—31—

It

is

to

be

noted

that

there

is

a

difference

between

the

triggering mechanism for corrective action here and that found at

35

Ill.

Adin.

Code

724.Subpart

F.

There

corrective

action

is

necessary

if

an

increase

above

the

background

concentration

is

detected

in

any

monitoring

well,

even

if

the

increase

does

not

violate

a groundwater standard.

However, under Section 615.209

corrective

action

is

necessary

only

if

a

groundwater

standard

is

exceeded

at

any

monitoring

well.

Section

615.210

sets

out the requirements for making an

alternate

non-compliance

response.

The

principle

is

that

if

the

standard

is

caused

to

be

exceeded

by

other

than

activities

at

the

affected

facility,

the

owner

or

operator

need

not

assume

responsibility for corrective action.

Similarly,

if the

exceedence

of

the

standard

is

only

apparent

due

to

error

in

sampling,

analysis,

or

evaluation,

the

owner

or

operator

need

not

undertake

corrective

action.

A significant provision of Section

615.210

is

the

specification that the facility which

is being monitored

is

presumed to be responsible for the standard being exceeded,

and

that it

is the responsibility of the owner or operator who elects

this alternate non—compliance response to overcome this

presumption.

This provision was introduced at 1st First Notice

on the well-taken suggestion of the Defenders that the affected

owner or operator should bear the burden of proving that the

contamination originated from some other source or was due to

error in the sampling required of ,the owner or operator

(PC #10

at

16)

Section 615.211

prescribes

the

corrective

action

program

that

must

be

undertaken by an owner or operator when

a

groundwater standard is found to be exceeded.

The result of the

corrective action program is compliance with the standards.

Accordingly, the corrective action program must be continued

until

it

is demonstrated that the standards are no longer

exceeded.

Part

615,

Subpart

C:

General

Closure

and

Post-Closure

Requirements

Subpart C establishes general closure and post—closure,

requirements

applicable

to

certain

existing

facilities

and

units.

Additional closure requirements specific to these individual

facilities or units are contained in following Subparts which

pertain

to

the

individual

types

of

facilities

or

units.

In

general,

the

closure

and

post—closure

requirements

are

modeled after similar requirements applicable to hazardous waste

facilities as found at 35

Ill. Adm. Code 724.

The Agency

believes,

and

the

Board

concurs,

that

it

is not appropriate to

establish closure/post—closure procedures for facilities subject

128—117

---

—32—

to

the

instant

rules

that

are different from the requirements

placed on facilities that are subject to the permitting

requirements of Part 724.

Section 615301

lists the types of facilities or units to

which

the

provisions

of

Subpart

C

apply.

Included are land

treatment

units,

on—site

surface

impoundments, and facilities for

the

storage

and

related

handling of pesticides and fertilizers.

It” is

to

be

noted

that

some

facilities

or

units

otherwise

affected

by

this

Part,

including

underground

storage

tanks

and

storage

and

handling

of

road

oils and de-icing salts,

are jiQ~,

subject to the requirements of Subpart C.

In

both

the

Agency’s

proposal

and

at

1st

First

Notice

on-

site

landfills

were

specifically

included

in

the

applicability

statement

at

Section

615.301,

and

waste

piles

were

specifically

excluded.

Upon promulgation of the Board’s landfill regulations

in P88—7,

existing on-site landfills became subject to the

landfill closure and post—closure requirements found at 35

Ill.

Adm.

Code 811.

Rather than duplicate these requirements

in Part

615,

the Board at 2nd First Notice eliminated the on-site

landfills from the Subpart C applicability statement.

Waste

piles are also subject to the closure requirements of Part 811

through the operation of

35 Ill.

Adm.

Code 810.103.

Section 615.302 establishes the closure performance

standard.

The standard is patterned after and similar to the

closure standard of

35 Ill.

Adm. Code 724.211 for hazardous waste

facilities.

The Agency persuasively points out that closure should be

carried out

in a way that “controls, minimizes or eliminates,

to

the

extent

necessary

to protect human health and the environment,

post-closure

escape

of

waste,

waste

constituents,

leachate,

contaminated

runoff

or

waste

decomposition products to”

~fl

parts

of the

environment

(PC

#23

at

¶33); at

1st

First

Notice

only

escapes to “the ground” were specified.

Accordingly,

at 2nd

First Notice escapes to “soils,

groundwaters, surface waters,

and

the atmosphere” are specified.

Section 615.303 requires that a certificate of closure must

be signed by

a registered professional engineer,

as defined at

615.102.

This certification is intended to help assure that an

affected unit

is closed

in accordance with Board standard~.

Section 615.203 is patterned after and similar to the cert,ificate

of closure provision of 35

Ill. Adm. Code 724.215 for hazardous

waste facilities.

Today’s regulations retain the Agency’s

recommendation

that

the registered professional engineer not be

an

in—house

engineer

(i.e.,

that the engineer be “independent”)

The

requirement

that

a

registered

professional

engineer

who

12 8—118

---

—33—

performs tasks such as closure certification be “independent” is

a normal requirement in both USEPA and Board regUlations22.

Section

615.304

requires that a survey plat must be filed

with the appropriate local zoning authority for units that

dispose

of

waste

or

facilities

for

the

storage

and

handling

of

pesticides or fertilizers.

This requirement is patterned after

and similar to the survey plat requirement of

35

Ill. Adm.

Code

724.216 for hazardous waste facilities.

Growmark

expressed

concern

over

regulatory

overlap

between

today’s regulations and various portions

of Part 255

(see

Discus~ionof Regulation of Pesticides and Fertilizer Facilities,

above).

Among particulars, Growmark observed

(PC #28 at

7)

that

both Section 615.304

(and

Section

616.304)

and

Part

255

at

Section 255.70 require maintenance and reporting of survey

information.

In response,

at

Second Notice, the Board allowed

that Sections 615.304/616.304 and Section 255.70 may contain some

overlapping requirements.

However,

it also observed that the

requirements are decidedly not identical.

Nevertheless, the

Board added

a new paragraph

to Section 615.304, which prOvides

that records required by other authorities which contain the same

information as required under Section 615.304/616.:~4 satisfy

this requirement.

The concept and form of the addition,is

identical to that found at Section 255.70(b), hence establishing

a reciprocity between the two rules.

Section 615.305 requires owners and operators of affected

waste disposal units to file with the Agency,

County Recorder,

and local

zoning authority within

60 days after the closure

of a

unit

a record of the type,

location,

and quantity of waste

disposed at the unit.

This regulation

is patterned after and

similar to the post-closure notice’ requirement of 35

Ill.

Adm.

Code 724.619(a)

for hazardous waste facilities.

Section 615.306 provides that

a certificate of completion

of

post-closure care,

signed by an independent

(see discussion

of

Section 615.303) registered engineer, must be filed with the

Agency.

This regulation

is patterned after and similar to the

post—closure certification requirement of 35 111.

Adm.

Code

724.220 for hazardous waste facilities.

22

E.g.,

35

Ill.

Adm.

Code

724.215,

724.220,

724.243(i).

724.245(i) 724.247(e), 724.292(a). 724.292(b), 724.293(i). 725.215,

725.220,

725.243(h),

725.245(h),

725.247(e),

725.291(a),

725.292(a),

725.292(b).

725.292(a),

725.293(i),

725.296(f),

and

811.502.

128—119

---

—34—

Part

615,

Subpart D:

On—Site Landfills

Subpart D requires the closure of certain landfill units.

For the Subpart to apply,

several tests must be met,

as specified

at Section 615.401.

These are:

1)

The unit

is an existing unit pursuant to the definition

of “existing” at 615.102.

2)

The unit

is located wholly or partially within either a

setback zone of a potable water supply well or within

a

regulated recharge area.

3)

The waste contained within the unit

is generated on-

site,

pursuant

to

the

definition

of

“on-site”

at

615. 102.

4)

The unit contains waste other than hazardous waste,

livestock waste,

landscape waste,

or construction and

demolition debris.

5)

The unit

is not exempt from Part 615 pursuant to any of

the exemptions identified at 615.105.

These tests are for the most part based upon the prescriptions

of

Section 14.4(a)

of the Act,

which sets out the scope of

activities intended to be regulated under the instant rulemaking.

See the preceding under the heading “Required Cessations and

Closures” for a general discussion of this provision.

In both the Agency’s proposal and at 1st First Notice

various operating requirements were also specified for existing

landfill units at then Sections 615.405 through 615.407.

These

were deleted at 2nd First Notice in recognition of the

promulgation

in R88-7

of

35 Ill.

Adm.

Code 810 through 815

(see

discussion,

Regulation

of On—Site Landfills and Waste Piles,

above)

Part 615,

Subpart

E:

Land Treatment Units

Subpart

E establishes special requirements for affected land

treatment units.

For a land treatment unit to be subject to the

Subpart,

it must meet the same tests that a landfill needs to

meet

to

be

subject

to

Subpart

D

(see

above).

The

principal

provision

of

Subpart

E

is

the

required

closure

of certain land treatment units,

as specified

in Sections 615.422

and 615.423.

The closure requirements are identical with those

contained

in

Subpart

D

pertaining

to

landfills,

except

that

land

treatment units located in a regulated recharge area are not

required to close.

See the preceding under the heading “Required

Cessations and Closures”

for a general discussion of this

provision.

128—120

---

—35—

Prior to 2nd First Notice the Agency observed that

a

provision pertaining to land treatment of sludges from wastewater

treatment plants and potable water treatment plants recommended

by the Agency and found at 616.Subpart

E was not included at 1st

First Notice in the parallel 615.Subpart

E.

The Agency then

postulated,

correctly,

that this was an inadvertent exclusion

(PC

#23

at

¶35).

The

provision

reads:

Nothing

in this Subpart shall prohibit land treatment

within

a maximum setback zone of sludge resulting from

the treatment of domestic wastewater or of sludge

resulting from the treatment of water to produce

potable water,

if such activities are conducted in

accordance with the Act and 35 Ill. Adm.

Code:

Subtitle

C.

At 2nd First Notice this provision

was added back to 6l5.Subpart

E at Section 615.424.

The only other provision of Subpart

E is that closure

~f

affected land treatment units is subject to two of the general

closure requirements found

in Subpart

C:

Section 615.302, the

general Closure Performance Standard requirement,

and Section

615.303, the general Certification

of’ Closure requirement.

At

1st First Notice affected land treatment units were required to

meet all the requirements of Subpart C,

not just Sections 615.302

and 615.303.

However, the Agency correctly observed prior to 2nd

First Notice that the remaining general’ closure requirements of

Subpart

C are inappropriate for existing land treatment units

(PC

#23

at ¶32).

Part

615,

Subpart

F:

Surface Impoundments

Subpart F establishes special requirements for affected

surface impoundment units.

For a surface impoundment unit to be

subject to the Subpart,

it

must

meet

the

same

tests

that

a

landfill needs to meet to

be

subject to Subpart D (see above).

A principal provision of Subpart F

is the required closure

of certain surface impoundment units.

See the preceding under

the heading “Required Cessations and Closures” for a general

discussion of this provision.

Section 615.444 prescribes that the owner or operator of any

surface impoundment unit subject to Subpart F shall comply’ with

the groundwater monitoring requirements and program of Subpart

B.

Section 615.445 requires that operating surface impoundments

be inspected weekly and after storms for the purpose of detecting

any

malfunctions

of

the

impoundment

that

could

lead

to

releases

to

groundwater.

128—121

---

—36—

Section 615.446 establishes several additional operating

requirements applicable to affected surface impoundment units.

These include a prohibition against placing incompatible

materials

in

a surface impoundment unit, patterned after 35

Ill.

Adm.

Code 724.413, and requirements to be met if the surface

impoundment is discovered to leak,

patterned after

35

‘Ill.

‘

Adm.

Code 724.327.

Section 615.447 establishes standards for closure and post-

closure care of affected surface impoundment units.

Three

pathways are specified, depending upon whether the closure is by

complete removal, partial removal, or no removal.

The Section

is

patterr~edafter and similar to 35 Ill.

Adm.

Code

724.328.

Part

615.

Subpart

G:

On—Site Waste Piles

Subpart G establishes special requirements for affected

waste piles.

For a waste pile to be subject to the Subpart,

it

must meet the same tests that

a landfill needs to meet to be

subject to Subpart D

(see above).

The principal provisions of

Subpart G consist of required closure of certain waste piles and

of design and operation standards

for others.

Section 615.462 establishes the conditions under which

certain waste piles are required to close.

Pursuant to the

landfill regulations adopted in R88—7, certain types of on-site

waste piles are now subject to the same regulations applicable to

on—site landfills.

To assure that this same principal be

continued into the present rules,

the Board at Seqond Notice

accepted the recommendation of the Agency that those waste piles

that are treated like landfills for the pur~oseof the P88-7

regulations also be treated like landfills2

for,the purpose of

the instant regulations

(PC #32 at ¶1,

2,

and

6).

This

is done

at Section 615.462,

where there

is applied the same standard for

distinguishing landfills and waste

piles as found

in the

definition

of

“waste pile”

at 35

Ill. Adm.

Code 810.103.

Section 615.463 specifies design and operating requirements

applicable to those waste piles ~

subject

to required closure.

The goal of these requirements

is to minimize the possibility of

escape of leachate, runoff,

and wind—blown debris from the waste

piles.

The principal provision

is a requirement that an affected

waste pile be covered to protect

it from precipitation.

Other

provisions include

a prohibition against placing free liquids

in

a waste pile,

required protection against surface water run-on,

required protection against wind dispersal,

and required control

of infiltration.

Owners or operators of regulated waste piles

23

As

noted

at

2nd

First

Notice,

the

only

requirements

applicable to existing on—site

landfills generated in the instant

regulations are the requirements to close found in Section 615.402,

615.304, and 615.404.

128—122

---

—37—

are given six months from the date of first applicability of

today’s rules to comply with these design and operating

requirements.

Prior to Second Notice the Metropolitan Water Reclamation

District of Greater Chicago

(“District”)

requested an exemption

from the requirement that waste piles be covered by an

impermeable membrane or cover, with the exemption to apply to

waste piles that consist of POTW wastewater sludge where the

sludge piles are situated on underdrained paved surfaces and the

units are operated

in accordance a valid Agency permit.

The

District observe’d that its sludge drying piles are so constituted

and permitted, that groundwater adjacent to its sludge drying

areas

is monitored biweekly,

and that any leachate which

penetrates the pavement

is collected and returned to the

District’s plants

(PC #29).

The

District therefore opined that

sufficient protection against possible groundwater contamination

is already present

(ic~.).

The Board observed:

The Board accepts the thrust of the District’s

position.

The Board notes, however,

that sludge piles

of the District’s type are already regulated under

other rules and regulations, which

include requirements

for protection of groundwater.

In keeping with the

theory that today’s regulations are intended to fill

regulatory gaps,

the Board would not expect the

regulations to apply to the District’s sludge piles.

To assure that this reading

is clear,

the appropriate

course of action is to explicitly exempt the subject

sludge piles.

This exemption is achieved at subsections 615.461(b).

Section 615.464

specifies closure requirements

for waste

piles, applicable whether the closure

is required or otherwise.

It establishes that the sole method of allowable closure of

a

regulated waste pile

is closure by removal and disposal

of the

waste and of any containment system components that may have been

used.

Part 615,

Subpart

H:

Underground Storage Tanks

Subpart H establishes special requirements

for existing

underground storage tanks that contain special waste.

Its

principal provision

is that affected storage tanks that are

located within setback zones or regulated recharge areas must

comply with the requirements of

35

Ill.

Adm. Code 731 even if any

of the exemptions of

35 Ill.

Adm.

Code

731.101(b)

would otherwise

apply.

35

Ill.

Adm. Code 731 is identical

in substance to 40 CFR

280.

128—123

---

—38—

Part

615,

Subpart

I:

Pesticide Storage and Handling Units

Subpart

I establishes special requirements for facilities

and units

for the stora’ge and handling of pesticides.

For the

Subpart to apply,

several tests must be met.

These are:

1)

The facility or unit is an existing facility or unit

pursuant to the definition

of “existing” at 615.102.

2)

The facility or unit is located wholly or partially

within either a setback zone of a potable water well or

within a regulated recharge area.

3)

The facility or unit:

a)

is operated for the purpose of commercial

application;

or

b)

stores or accumulates pesticides prior to

distribution to retail sales outlets,

including

but not limited to units which are warehouses or

bulk terminals.

Subpart

I is similar to Subpart G

in that

it does not

require closure of affected facilities or units,

but rather

specifies design and operating requirements that must be met by

the owner or operator.

The principal provision of Subpart

I

is the specification of

certain design and operating requirements particular to the

facilities regulated under the instant Part.

These include

compliance with the groundwater monitoring and closure/post—

closure requirements of Parts B and C, maintenance of written

inventory records, weekly inspections

for leaks and deterioration

of structures,

and a requirement that all containers of

pesticides be contained within a secondary containment structure.

A principal question regarding Subpart

I has been how to

recognize IDOA’s regulations found at

8

Ill.

Adm. Code 255

(see

discussion of Regulation of Pesticide and Fertilizer Facilities,

above).

The Agency initially proposed that the Board require

compliance with Part 255 as a provision of Subpart

I.

Subsequently both the

Agency and the Defenders proposed that the

Board adopt the entirety of the Part

255 regulations

into, the

Board’s regulations

(PC #23 at ¶8; PC #24 at

10).

Later the

Agency proposed that the Board “cross—reference” certain sections

of Part

255, with cross-referencing referring to a

listing’ of

those portions of Part

255 with which affected facilities would

be required to comply

(PC #32 at ¶7).

The Board has rejected

each of these proposals as being beyond its authority or

consisting of improper indirect adoption of rules.

128—124

---

—39—

At 2nd First Notice the Board proposed to address the Part

255 question by inserting after Sections 615.603 and 616.604

a

Board Note indicating that affected facilities or units might

also have to comply with the Part 255

rules.

The purpose of the

Board Note

is to alert interested persons to the Part 255

rules,

while not giving an unwarranted authority to either the Board or

the Agency.

Part

615,

Subpart

J:

Fertilizer Storage and Handling Units

Subpart

J establishes special requirements for facilities

and units for the storage and handling of fertilizers.

Subpart J

is essentially identical to Subpart

I,

except for its application

to fertilizers facilities and units rather than to pesticide

facilities and units.

Part

615,

Subpart K:

Road Oil Storage and Handling Units

Subpart K establishes special requirements for facilities

and units for the storage and handling of road oils.

For the

Subpart to apply,

three tests must be met.

These

are:

1)

The facility or unit

is an existing facility

or unit

pursuant to the definition

of “existing”

at 615.102.

2)

The facility or unit is located wholly or partially

within either

a setback zone of

a potable water well or

within a regulated recharge area.

3)

The facility or unit stores or accumulates more than

25,000 gallons of road oils at any one time.

Section 615.702 prescribes the required closure by date

certain

of those regulated road oil units that are located

in

a

minimum setback zone and where the road oils contain waste.

Closure is required to be completed within two years after the

date of first applicability.

Closure

is not intended to be

required if the unit ceases storing or handling road oils prior

to this time

(see PC #9 at ¶34).

As initially proposed,

the required closure applied only to

units that store or handle road oils that contain wastes.

At 2nd

First Notice the Board noted that

it was uncomfortable with this

matter, and particularly with the apparent assumption that road

oils that contain wastes somehow present an inherently greater

risk to groundwaters than do virgin oils.

The Board also

observed that the Act,

in requiring that road oil be regulated,

makes no distinction between road oils with wastes or road oils

without wastes.

The Board accordingly requested that interested

persons address this matter.

On the basis of responses received

(PC #32 at ¶8; PC #34 at

14), the Board concluded at Second Notice that

it was unpersuaded

128—125

---

—40—

that there

is

a basis for distinguishing road oils containing

wastes from virgin road oils

in the context of the instant

regulations.

Accordingly, the Board deleted the “containing

wastes” provision.

Section 615.703 prescribes that the owner or operator of any

unit subject to this Subpart shall comply with the groundwater

monitoring requirements and program of Subpart B.

Section 615.704 sets out various design and operating

requirements applicable to above—ground storage tanks.

For the

purposes of Part 615,

an above—ground storage tank is defined at

Section 615.102

as a storage tank that is not an underground

storage tank.

Design and operating requirements include providing and

maintaining primary and secondary containment,

as well as various

prohibitions against operating practices.

The design and

operating requirements are patterned after and similar to.35 Ill.

Adm.

Code:

Subpart J

(PC #9 at ¶36).

These design and operating

requirements are specified

in subsection

(f)

as becoming

applicable two years after date of

first applicability the

instant rules.

Section 615.705 establishes the closure requirements

applicable to above-ground storage tanks.

Part 615,

Subpart

L:

De-Icing Agent Storage and Handling Units

Subpart L establishes special requirements for affected de-

icing agent facilities or units.

The Subpart

is applicable

to

all units located wholly or partially within

a •setback zone.

The

Subpart does not apply to affected units that are located

in

a

regulated recharge area,

unless the unit

is also located within

a

setback zone.

For Subpart L to be applicable,

the unit also must

store or accumulate more than 50,000 pounds of de—icing agent at

any one time.

Subpart L is similar to Subparts

G,

I,

and J in that

it does

not require closure of the affected facilities,

but rather

specifies design and operating requirements

that must be met by

the owner

or operator.

These include the groundwater monitoring

requirements and program of Subpart B.

Also included are design

and operating requirements for indoor and outdoor units.

DISCUSSION OF PART ‘616

Part 616 sets forth “Standards for New Activities Within

a

Setback Zone or Regulated Recharge Area” pursuant to the Section

14.4(d)

of the Act.

Many provisions

of Part 616 are identical to

provisions

of Part 615,

and

in general, discussion

of these will

not be repeated here.

128—126

---

—41—

Nevertheless, there are some several significant differences

between the two Parts,

including:

1.

Part 616 has no required closure provisions,

since

facilities of the type that have required closure

if

governed

by’ Part 615 are statutorily prohibited

if

governed under Part 616.

2.

Each new facility or unit subject to the groundwater

monitoring requirements

of Part 616 is required to

establish background concentrations for contaminants

likely to be present at or released from the facility

or unit.

These background concentrations constitute

both triggers and benchmarks for preventive action.

3.

Where corrective action must be undertaken, new

facilities are required to clean up groundwater to a

level consistent with background concentrations,

rather

than to the level

of the groundwater standards.

Part 616,

Subpart

A:

General

Sections 616.101, 616.102, and 616.105 present similar

or

identical introductory provisions to ‘those found in Part 615.

For purposes of economy, the definitions of Section 615.102 are

incorporated into Part 616 rather than repeated,

except for

several definitions that are particular to Part

616.

Part 616 contains no Incorporations by Reference Section.

Rather,

all references to incorporated material

in Part

616 are

referenced to the parallel Section at 615.103.

The purpose

is to

have all incorporated—by—reference material cited

in Parts

615

and 616 in

a single section,’ thereby allowing for greater economy

of listing and for more ready amendment at future times.

Section 616.104 sets out the two methods by which exceptions

to the prohibitions against sitings of new facilities may be

achieved.

Both exception procedures are prescribed

in the Act,

and hence are statutory provisions.

The first method,

specified

at 616.104(a),

is the waiver provision for setback zones of

potable water supply wells other than community water supply

wells found at Section

14.2(b)

of the Act.

The second method,

specified at 616.104(d),

is the provision for the Board’s

granting of an exception for setback zones for community water

supply wells found at Section

14.2(c)

of the Act.

Part

616,

Subpart

B: Groundwater Monitoring Requirements

Subpart

B sets out the groundwater monitoring and corrective

action requirements applicable to certain new regulated

facilities or units.

The affected facilities

or units are all

128—127

---

—42—

the facilities or units subject to Part 616 except for

underground storage tanks.

In most of its provisions,

Subpart B is modeled after 35

Ill. Adm.

Code 724.Subpart

F.

It thus also closely parallels

615.Subpart

B.

The principal differences between Parts

615 and

616 concern the preventive response procedures found in Part

616,

particularly in Sections 616.207 though 616.211.

Most of the

material

in these latter sections was introduced at 2nd

First

Notice in response to developments

in the Groundwater Standards

proceeding,

P89-14

(see discussion above).

S~ction 616.207 sets out requirements for establishing

background concentrations and maximum allowable results.

The

procedure consists of the owner or operator collecting a series

of samples intended to represent the background groundwater

quality.

The sampling must start

at or before the beginning of

operation of the facility24,

and the parameters that must be

sampled are those that are most likely to be represented in any

contamination deriving from the facility.

Based upon these

results the owner or operator calculates summary statistics. (mean

and standard deviation)

and the Maximum Allowable Result

(“MAR”),

for each parameter.

A MAR is the upper

limit of the 95

confidence interval set about the sample mean of the background

concentrations.

Section .616.208 sets out the sampling procedures

that are to

be followed after completion of the background sampling phase.

Except where a non-compliance response

is required,

these

constitute the normal, continuing sampling requirements.

Section 616.209 sets out a preventive notification and

response procedure,

as recommended by the Agency

(PC #23 at ¶9-

10 and at Exhibit

6).

The procedure closely parallels that

adopted

in P89-14

(see discussion’above)

at 35

Ill.

Adm.

Code

620.Subpart

C.

Depending upon the nature of the contaminant,

preventive

notification

is triggered either by the exceedence of the MAR for

any contaminant or the detection of any of

a series

of special

“triggering” contaminants.

The contaminants for which detection

is the trigger are the contaminants required to be monitored

under Section 616.207(a)

or that are listed in any of three

provisions

of Part 620.

The latter are the list of preventive

24 At 1st

First Notice

it was proposed that the sampling begin

“no later than six months after the beginning of operation of the

facility”.

However,

as

the Agency pointed

out,

a

new facility

should

have installed

an appropriate monitoring system prior

to

commencing

operations

(PC

#23,

¶41)

,

and

there

is

therefore

no

obvious reason why gathering of background levels need be delayed

for any period after startup of the facility.

128—128

---

—43—

response contaminants found at Section 620.310(a) (3) (A)25

(except

due to natural causes), any contaminant identified as a

carcinogen at Section 620.410(b)26,

and any additional

contaminant that might be identified as critical pursuant to

Section 620.430

(except due to natural causes).

A given

contaminant may appear on more than one of these lists.

The Defenders recommend that Section 616.209(i)

be replaced

by-a provision that specifies that groundwater contaminants may

not exceed

a MAR

unless the facility obtains an adjusted standard

(PC #34 at 3-4).

As written,

Section 616.209(i)

requires that

upon completion of

a preventive response no contaminant may

exceed’ 50

of the corresponding groundwater standard unless

specified conditions are met.

The Defenders’ recommendation

is apparently based on

t’he

assumption that a

MAR

is likely or necessarily less than 50

of

any groundwater standard,

and that use of the

MAR

therefore more

closely assures nondegradation of groundwaters.

This assumption,

however,

is unfounded.

In many cases MARs are going to be larger

than 50

of a groundwater standard, particularly where the

numerical value of the standard

is small and/or

a large standard

deviation

is associated with the background values.

Thus,

it

is not possible to conclude generally, that Section

616.209(i)

either as written or as proposed by the Defenders

would be more protective of groundwater.

It

is reasonable to

conclude,

however, that Section 616.209(i)

as written has greater

utility from

a legal enforcement standpoint,

as the Agency

observes

(PC #32 at ¶9).

In balance, then,

the Board believes

that Section 616.209(i)

has greatest merit as written.

Section 616.210 prescribes the procedure which must be

followed where corrective action

is necessary.

Most of the

provisions of this Section are unchanged from

1st’ First Notice,

although they are spelled out

in greater detail.

Among the

differences are a reduction in the rate of required confirmation

sampling at Section 616.210(b) (1)

for pesticide facilities from

monthly to quarterly,

based on the Agency’s recommendation

(PC

25

Para-dichlorobenzene, ortho—dichlorobenzene, ethylbenzene,

styrene,

toluene,

xylenes,

arsenic,

cadmium,

chromium,

cyanide,

lead,

mercury,

aldicarb,

atrazine,

carbofuran,

endrin,

lindane

(gamma-hexachlor

cyclohexane)

,

2,4—D,

1,l—dichloroet’hylene,

cis-l, 2-dichloroethylene, trans-i, 2—dichioroethylene, methoxychior,

monochlorobenzene,

2,4,5—TP

(Silvex)

,

1,1,l-trichloroethane,

and

benzene.

26

Alachlor,

benzene,

carbon

tetrachloride,

chlordane,

heptachlor,

heptachlor

epoxide,

1,2—dichloroethane,

1,2-dichloropropane, pentachlorophenol, polychlorinated biphenyls,

tetrachloroethylene,

toxaphene, trichioroethylene, vinyl chloride.

128—129

---

—44—

#23 at Exhibit 6), and requirement that corrective action result

in compliance with groundwater standards

(proposed subsection

(h) (3))

rather than with the level of the MARs;

the latter, change

is also made upon the recommendation of the Agency

(PC #23

at

Exhibit

6 at

9)

Section 616.211 sets out an alternate non—compliance program

similar to that of Section 615.210.

Part

616,

Subpart

C: General Closure and Post—Closure

Requirements

6L6.Subpart C is identical to

615.,.Subpart C.

Part

616,

Subpart D:

On—Site Landfills

Regulations

for new on—site landfill units under Part 616

consists of stating at Section 616.402 the statutory prohibitions

against the siting of new landfills found at Section 14.2(a),

14.2(d)

and 14.3(e)

of the Act.

Section 616.402

also contains

a

prohibition not specified

in the Act.

It is a prohibition, ~,,first

proposed by the Agency,, against new on-site landfilling of

special wastes within a regulated recharge area

if the distance

from the wellhead of the community water supply well to the

proposed landfill

is less than 2500 feet.

Prior to 2nd First Notice the Agency recommended that all of

Section 616.402

be deleted because

it

is

“a restatement of the

Act” and “The Act speaks for itself”

(PC #23 at

¶44)

Nevertheless, the Board retained the section,

observing that

including reference here to the provisions of the Act is useful

for unity of the Part

616 regulations and

is of value to persons

reading the regulations27.

Moreover, Section 616.402 does go

beyond the Act,

and

is therefore not a simple restatement.

Prior to 2nd First Notice,

Subpart D also contained various

design and operating

requirements.

These were deleted

at 2nd

First Notice

in recognition of comparable regulations at 35

Ill.

Adn.

Code 810

through

815

(see discussion,

Regulation of On-Site

Landfills and Waste Piles,

above).

Part

616,

Subpart

E:

Land Treatment Units

616.Subpart E is similar to 6l5.Subpart E except. in the

provision of Section 616.424, which requires that new land

treatment units be designed and operated

in accordance with 35

Ill.

Adm. Code:

Subtitle C and

35 Ill.

Adm.

Code:

Subtitle” G.

27

The

same may

be

said

for similar

inclusion

at proposed

Sections 616.422, 616.442, 616.462, 616.602, 616.622, 616.702, and

616.722.

128—130

---

—45—

Section 616.422 contains the Act’s statutory prohibition

against the siting of new land treatment units which qualify as

either

a new potential primary source or

a new potential

secondary source.

Part

616,,

Subpart

F:

Surface Impoundments

6l6.Subpart F is similar

in its thrust to 6l5.Subpart

F.

However,

it does impose additional requirements on new surface

impoundments that go beyond those applicable to existing surface

impour)dments.

The principal among these is the requirement that

new surface impoundments be constructed containing two liners

with a leachate collection system between such liners,

found at

Section 616.444.

Section 616.442 contains the Act’s statutory prohibition

against the siting

of surface impoundments which qualify as

either

a new potential primary source or

a new potential

secondary source.

Part 616,

Subpart G:

On-Site Waste Piles

616.Subpart

G,

applicable to new on-site waste piles,

is

identical to 615.Subpart G applicable to existing waste

piles.,

except for the inclusion

in Section 616.462

of the statutory

prohibition against new waste piles which are also a new

potential primary source or new potential secondary source.

Part

616,

Subpart

H:

Underground Storage Tanks

6l6.Subpart H applicable to new underground storage tanks

is

identical

to’ 615.Subpart H applic~bleto existing underground

storage tanks.

Part 616,

Subpart

I: Pesticide Storage and Handling Units

616.Subpart

I

is identical to 6l5.Subpart I,

except for the

inclusion at Section 616.602 of the statutory prohibition against

the siting

of

a new pesticide storage or handling facility which

is also either

a new potential primary source or

a new potential

secondary source.

Part

616,

Subpart

~3:Fertilizer Storage and Handling Units

616.Subpart J

is identical to 615.Subpart

3,

except’for the

inclusion at Section 616.622 of the statutory prohibition against

the siting of

a new fertilizer storage or handling facility that

is also either a new potential primary source or a new potential

secondary source.

128—131

---

—46—

Part 616,

Subpart

K:

Road Oil Storage and Handling Units

616.Subpart K is identical to 6l5.Subpart

K,

except that the

required closure provision of 616.702

is replaced by the

statutory prohibition against the siting of a new road oil

storage and handling unit that

is also either

a new potential

primary source or a .new potential secondary source.

The Agency had recommended that the prohibition against new

road oil units in maximum setback, zones be associated only with

oils that contain wastes

(PC #23 at ¶47); the Defenders

in turn

recommended that the prohibition in maximum setback

zones be

identiáal to that in minimum setback zones

(PC #24

at

6).

At

Second Notice the Board noted that

it

is unpersuaded that there

is

a basis for distinguishing road oils containing wastes from

virgin road oils

in the context of the instant regulations.

Part 616,

Subpart L: De-Icing Agent Storage and Handling Units

6l6.Subpart L is similar in thrust to 615.Subpart

L.

Provisions which differ include the statutory prohibition against

the siting of

a new de-icing agent storage or handling fa’cil-ity

that

is also either

a new potential primary source or

a new

potential secondary source.

At 1st First Notice the Board,

in accord with the Agency’s

recommendation, proposed an added prohibition against the siting

of any new outdoor storage or handling facility within a

regulated recharge area.

The Agency later recommended that this

provision be deleted, noting that

a “new de—icing agent storage

facility designed and operated in accordance with standards set

forth

in Part

616 does not appear to present such significant

risk to groundwater that

it ought to be prohibited

from locating

within

a regulated recharge area”

(PC #23

at ¶48).

At 2nd First

Notice the Board adopted the Agency’s revised recommendation.

It

should be noted that de-icing agent storage units could still

he

disallowed

in any given regulated recharge area

if such

prohibition is provided for in the regulatory action that defines

the regulated recharge area.

DISCUSSION OF PART 617

Part 617

is intended to be used as the site for regulations

delineating regulated recharge areas.

Because no regulated

recharge areas have been promulgated as of this time,

the Part

is

essentially empty.

Nevertheless,

it

is useful to establish the

Part now to reserve the Part for future use and to allow for

consistent reference to the body of regulated recharge area

regulations within Parts 615 and

616.

Among the

items that Part

617 will eventually include are the boundaries and effective date

of any regulated recharge area,

plus any special requirements

or

exceptions that apply within’ the regulated recharge area.

128—132

---

—47—

ECONOMIC IMPACT

EcIS Document

On March

5,

1991,

DENR filed its “Economic Impact Study of

Regulations for Activities within Setback Zones and Regulated

Recharge Areas

(P89-S)”28.

The EcIS was prepared by

Environmental Science

& Engineering,

Inc.

of Peoria,

Illinois.

This study evaluated the initial and annual compliance costs for

regulated facilities and also examined quantitative benefits

which arise from avoided corrective action costs and avoided

health’costs,

as well as qualitative benefits such as improved

land values,

improved aesthetic values,

and better protection

of

the environment.

Compliance Cost Analysis

Information available from Agency Well-site surveys was used

to estimate the statewide impact of the proposed regulations on

existing activities

located within minimum setback zones of

community water wellheads.

As

a result

of the economic analysis,

the proposed regulations are expected to affect

5 existing

landfills,

5 land treatment units,

59 surface impoundments,

43

waste piles,

54 underground storage tanks,

54 agrichemical

facilities,

5 road oil units,

and

27

de-icing agent facilities

within minimum setback

zones.

The investigators calculated the

present value of the cost

of complying with the proposed

regulations for existing facilities to be $36,324,500.

Calculation of the number of affected existing facilities

within potential maximum setback zones required an estimation of

the number of maximum setback zones which might be established

in

the future.

The investigators chose to base their analysis on

two rates,

10

and 50

adoption.

These adoption rates were

presumed to represent the range of communities which will

eventually be expected to impose

a maximum setback zone around

their water wells.

The investigators acknowledged, however,

that,

“in

reality, the actual number may be higher or lower.”

(Exh.

97 at E-4).

These calculations indicated that, with

a 10

adoption rate,

an additional

2 landfills,

1 land treatment unit,

11 surface impoundments,

3 waste piles,

7 underground storage

tanks,

21 agrichernical facilities,

and

3 de-icing agent

facilities will be affected by Part

615.

The compliance costs to

these facilities was estimated to be $8,441,800 and $43,261,400

at 10

‘and 50

maximum setback zone adoption rates,

respectively.

28 A draft copy of the EcIS wa~entered at hearing as Exhibit

89.

A final report version, under the same title, has subsequently

been

filed.

The final report version

is hereby entered into the

record as Exhibi,t 97.

128—133

---

—48—

A similar tack was taken to estimate the affected existing

facilities

in potential regulated recharge areas.

The EcIS

investigators reported that “IEPA believes that regulated

recharge areas will probably go

‘hand—in-hand’ with maximum

setback zones”

(Exh.

97 at

E.—4)

and thus,

used 10

and 50

adoption rates for determining the number of affected ‘facilities.

Agency well-site surveys generally identify facilities within

1000 feet of the wellhead.

But because regulated recharge areas

may encompass an area up to 2500 feet from the wellhead, the

investigators made a linear extrapolation of the number of

facilities between 1000’and 2500 feet by multiplying the number

of facilities ~insidea 1000 foot setback by 2.5 and then

subtraiting the number of facilities within the 1000 foot zone.

Using these methods,

an additional

4 landfills,

2 land treatment

units,

26 surface impoundments,

11 waste piles,

19 underground

storage tanks,

40 agrichemical facilities,

1 road oil units and 8

de-icing facilities were “identified”, assuming a 10

adoption

rate.

The costs

of compliance are estimated to be $13,305,600

and $65,963,000 at 10

and 50

regulated recharge area adoption

rates,

respectively.

Benefits Analysis

The affect of the proposed regulations,

and,

indeed,

the intent

of the IGPA

is to reduce the likelihood of spills and leaks that

cause groundwater contamination.

As the EcIS investigators note:

“Tracing groundwater)

contamination to

a source

is

often difficult and expensive,

especially

if

significant amounts of time have passed since the

contamination event occurred.

Contaminated groundwater

pumped from non-community and private wells can be

consumed for long periods of time without realizing the

danger,

since typical laboratory analysis of potable

water seeks only to detect coliform bacteria and

possibly nitrates.

Without the proposed regulations,

the burden of the cost of remediating contaminated

groundwater falls upon private well owners,

communities,

and the State of Illinois.”

(Exh.

97 at E-

6)

The principal benefits of the proposed regulations are,

according to the EcIS, the avoided occurrences of contamination,

the avoided costs of groundwater corrective action,

the avoided

costs of securing uncontaminated drinking water, and the avoided

costs of health care resulting from the ingestion of contaii’~inated

water.

Additional benefits include improved land values,

improved aesthetic values,

and better protection of the

environment.

The investigators also point out that,

under other

regulations,

some facility owners are responsible for the cost of

corrective action.

Under the proposed rules, however,

financial

128—134

---

—49—

assurance

is not required29.

If financial assurance were

included in these rules, communities and individuals would have

the assurance that

a facility could pay the cost of corrective

action in the event of contamination.

To develop avoided costs, the EcIS used case history

accidents,

recorded groundwater contamination, and “real world”

corrective action costs

in a series of contamination event

scenarios.

The investigators estimated corrective action costs

for a contamination event detected at an unregulated facility

versus that of

a facility subject to the proposed rules.

The

major differences

in costs of remediation result from more

expedi~ntdetection of contamination.

Early response facilitates

identification of the source and often limits the extent and

magnitude

of the contamination.

For each contamination scenario,

the investigators presented

several corrective action options and then chose the cost-

effective alternative, much as would happen in an actual

corrective action.

Thus,

the avoided costs derived from these

contamination scenarios are representative

of actual

(and

therefore,

average)

corrective action decisions,

rather than of

worst—case conditions.

To estimate the frequency of past groundwater ,contamination

events and the likelihood of future contamination events,

the

analysis used agrichemical contamination of community water

supplies.

The analysis assumed that such contamination may occur

at other sites at a frequency similar to that estimated for

agrichemical facilities.

The estimation was based on the number

of community water wells that are presently contaminated by

agrichemicals following approximately

30 years of agrichemical

use.

Based on this methodology,

the investigators estimated that

one agrichemical contamination event occurs within

a potential

setback zone in Illinois every 1.39 years.

The investigators determined that surface impoundments,

agrichemical facilities and landfills make up approximately 80

of the affected facilities.

Using these numbers,

the expected

contamination rate,

and the avoided cost values

for’ each

scenario, the total avoided cost benefit

is expected to be

$1,285,000.

The 95

upper limit on this benefit value increases

the expected benefits to $4,097,900.

The 95

upper limit was

presented to provide an example of maximum quantifiable benefits.

29 The Board notes that

financial

assurance

is now required

for landfills and waste

piles,

through the operation

of

35

Ill.

Adm.

Code 811 through 815.

This was not the case at the time the

EcIS was being prepared.

128—135

---

—50—

Cost and Benefits Comparison

The investigators presented a cost and benefits comparison

for surface impoundments,

agrichemical facilities,

and landfills

within minimum setback zones.

Fifty—nine surface impoundments

were estimated to be affected at a compliance cost of $338,900

per facility versus an avoided cost benefit

of $10,200.

Fifty-

four agrichernical facilities would b~required to pay $112,600

each for compliance with Part 615 versus $11,800 avoided cost

benefit per facility.

Five landfills were identified as affected

by $796,000 compliance cost per facility compared to $8,400

avoided cost benefit.

Total compliance costs for these

118

facilities were estimated by the EcIS

‘at $30,056,000 while total

avoided cost benefits were expected to be $1,285,000.

Even though the estimated costs outweigh the estimated

avoided cost benefit nearly

30 to

1,

the EcIS states that this

discrepancy,

“must be weighed against the benefits which are not

quantifiable, such as improved aesthetic values,

better

protection of the environment,

improved land values,

avoidance of

latent or unknown health impacts

(occurring beyond the 20-year

scope of this study),

and other currently unknown benefits.”

(Exh.

97

E—ll)

Comments on the EcIS

Some participants

at the April

3,

1991 hearing and

subsequent public comments indicated that the EcIS underestimated

the benefits of the proposed rule.

(Ex.

94; PC #23 and #24)

IFCA

testified that the EcIS underestimated costs

to agrichemical

facilities.

Points of controversy

in the calculation of economic

costs

include:

1)

The investigators’ use

of the frequency of agrichemical

contamination instead

of other types of contamination

to determine the likelihood of future contamination