ILLINOIS POLLUTION CONTROL BOARD
    September 27, 1990
    IN THE MATTER OF:
    GROUNDWATER QUALITY STANDARDS
    )
    R89-l4
    (35 ILL. ADM.
    CODE
    620)
    )
    (Rulemaking)
    CONCURRING OPINION
    (by B.
    Forcade):
    I respectfully concur with today’s action.
    I agree with
    most of the concepts articulated in the propo~~l. Howev
    ,
    I
    believe that in certain respects the proposal should ha~.
    been
    made more protective of groundwater.
    Therefore,
    I conc
    One of the central conflicts of this proceeding ha
    een the
    area of non—degradation.
    The Illinois Environmental Pr
    ~tion
    Agency
    (“Agency”) had submitted regulatory language for
    5
    Ill.
    Adm.
    Code 620.401, that precluded “use” degradation,
    i.~
    it
    would only preclude that amount of contamination which
    ~.
    uld
    impair the use classification of a groundwater.
    For exar~ple, the
    Agency’s proposed limit for Xylenes
    is 10.0 mg/i
    for Class
    I
    groundwater.
    Under the Agency’s approach,
    a facility located
    above
    a Xylene—free body of groundwater could contaminate that
    groundwater from its present concentration of 0.0 mg/i
    of
    Xylene
    up to 9.9 mg/l of Xylene without running afoul
    of any regulatory
    environmental protection
    laws.
    In response to this
    issue, the McHenry County Defenders,
    Citizens for a Better Environment and the Illinois chaptE:r of the
    Sierra Club
    (collectively,
    “the Defenders”),
    submitted rEgulatory
    language at Sections 620.301—303, that predluded “numerical”
    degradation,
    i.e.,
    it precluded contamination that would cause
    any numerical increase of the contaminant levels
    in groundwater.
    In the Defenders’
    proposal,
    a facility located above
    a Xylene—
    free body of groundwater would be
    in violation of regulatory
    provisions
    if
    it caused the concentration to increase from 0.0
    mg/l to 0.1 mg/l
    of Xylene.
    The majority today selected first notice language
    t1.at does
    not clearly choose one approach over the other.
    The language of
    the majority states as follows,
    at Section 620.305:
    Groundwaters whose existing quality is better
    than
    the
    water
    quality
    standards
    of
    this
    Subpart
    at
    the
    effective
    date
    of
    this
    Part
    shall
    be maintained
    at
    their
    existing
    high
    quality.
    Such waters shall not be lowered
    in
    quality unless and until
    it
    is affirmatively
    demonstrated
    that
    such
    change
    will
    not
    interfere
    with
    or
    become
    injurious
    to
    any
    115—237

    2
    appropriate
    beneficial
    uses
    made
    of,
    or
    presently
    possible
    in,
    such waters
    and
    that
    such
    change
    is
    justifiable
    as
    a
    result
    of
    necessary economic or social development.
    The above quoted language seems to imply that something more than
    use degradation
    is precluded, yet the majority does not
    specifically adopt language that precludes numerical degradation.
    I simply do not know what “quality” degradation includes.
    My
    concern
    is whether an increase in Xylene concentration from 0.0
    mg/I to 0.1 mg/l would be considered a degradation of quality.
    Further complicating the issue is page
    5 of the majority Opinion,
    which states:
    If one accepts, as the Board does
    (see below),
    that all groundwaters ~
    use degradation....
    This seems to imply that the majority adopts use degradation as
    the standard.
    In a similar manner,
    Section 620.305 does not state who
    should make downgrading decisions or how they should be made.
    It
    is unclear whether the affirmative demonstration would be made to
    the Agency, who gets notice,
    and what the standards are.
    I support the Defenders’ proposal of precluding any
    numerical degradation
    (but
    I would include a provision for
    statistical significance), except as provided by Board determined
    adjusted standard procedures.
    The Board has already adopted
    prevention of numerical degradation as the appropriate concept as
    it applies to non-hazardous waste landfills at 35
    Ill. Adm.
    Code
    811.320.
    For hazardous waste facilities, the standard of 35
    Iii.
    Adm.
    Code 724.192—194 precludes numerical degradation except for
    14 specified contaminants.
    My second area of concern pertains to Section 620.501.
    This
    section determines who will be subject to the investigation and
    preventive management provisions
    in Subpart E of the regulatory
    proposal.
    I disagree that these provisions should apply to so
    few facilities
    (new facilities and,
    in the future,
    a few existing
    facilities).
    Generally speaking,
    those who are subject to Subpart E must
    conduct sampling and analysis procedures whenever contaminated
    groundwater
    is detected.
    Section 620.501 exempts existing
    facilities
    from these requirements unless they are located
    in
    a
    setback zone
    (no setback zones have yet been defined).
    However,
    under the proposal,
    if a public water supply drawing from a
    shallow well were to detect contamination, then only new
    facilities
    in the area would be required to monitor to determine
    if they caused the contamination.
    Presently,
    aiy existing
    115—238

    3
    facility could only be required to conduct such sampling and
    analysis as a result of a formal enforcement action.
    Therefore,
    existing facilities that contaminate groundwater would not be
    identified as the source of the contamination, nor would they be
    required to engage in any remedial action absent formal
    enforcement.
    I find this particularly troubling since the statutory
    language creates no exemption for existing sources.
    The relevant
    statutory language for this Subpart,
    Ill. Rev.
    Stat.,
    oh.
    111
    1/2,
    para.
    7458
    (b) (4), directs the Board to promulgate
    regulations, considering in particular:
    application of
    nondegradation provisions
    for
    appropriate
    groundwaters,
    including
    notification
    limits
    to
    trigger~ preventive~
    response activities.
    I see nothing
    in that statutory language to imply that
    nondegradation provisions and preventive response activities
    should be limited to new facilities.
    I would agree with the
    position taken by the Defenders and the Chemical Industry Council
    of Illinois
    (PC #3),
    that preventive management procedures should
    apply to all regulated facilities, new and existing.
    My third area of concern relates to intertwining of
    groundwater standards and the groundwater classification scheme.
    It also involves the interrelationship
    of this regulatory
    proposal and the proposed regulation of new and existing
    facilities within set—back zones and regulated recharge areas
    (R89-5;
    First Notice;August
    31,
    1989).
    My concern
    is that when
    these correlated provisions are evaluated,
    there is far too
    little in the way of prevention of groundwater contamination.
    This may be best articulated by a hypothetical example.
    Assume for a moment that there
    is an area with generally
    pristine groundwater and that such groundwater is
    in existing use
    as a public water supply and has reasonable demand for present
    and future consumption.
    Assume further that the area has a
    reasonably heavy population of existing potential primary and
    secondary sources as those terms are defined in the Act.
    As a
    last factor,
    assume that the groundwater had been historically
    contaminated with just one contaminant to a level above the water
    quality standard
    (this could
    inclucie a detectable level of a
    carcinogen).
    Because this hypothetical groundwater does not meet
    the criteria for protection as a Class
    I aquifer
    (even though it
    is presently used as
    a public water supply), the general resource
    groundwater quality standards of Section 620.320 apply; these are
    generally five times the potable resource groundwater standards.
    Because the proposed regulations
    (R89-5; August 31,
    1989; Section
    615.201) only covers six categories of existing facilities
    in
    regulated recharge areas and set—back zones,
    and then only
    115—239

    4
    requires these facilities to comply with numerical water quality
    standards
    (Section 615.203(a)),
    these six categories of existing
    facilities will be allowed to contaminate the presently pristine
    water up to five times the generally acceptable potable water
    standards for all contaminants before any violation would occur
    or any remediation would be required.
    Because all other existing
    facilities inside these
    zones,
    as well as all existing facilities
    outside of regulated recharge areas or set—back zones,
    are not
    required to monitor groundwater, any contamination they cause
    would likely go undetected.
    Taken as
    a whole this hypothetical situation is not
    unlikely.
    How~per, the s~~enariodoes not seem consistent with
    the legislative declarati
    n to “restore,
    protect and enhance the
    groundwaters of the stat
    .“
    I would prefer:
    (1)
    ~ require that all groundwater with
    less than 10,000 mg/l
    of
    ~otal dissolved solids and greater than
    150 gallons per day yield be classified as a potential potable
    source
    (Class
    I)
    unless
    i
    is affirmatively demonstrated to the
    Board as incapable of suc:~use,
    (2)
    to require that all new and
    existing regulated sources above Class
    I groundwater be held to
    the no numerical degradation standard,
    and
    (3) to require that
    upon any detection of statistically significant increases in
    contamination,
    all new and existing sources must comply with the
    Preventive Management Procedures and Corrective Action found in
    Subpart
    E.
    I also have some concerns regarding the sampling and
    analysis provisions.
    Only certain types of wells can be used,
    and only certain types of sampling procedures and reporting
    requirements are acceptabLe.
    I find these requirements overly
    restrictive,
    since if these requirements are not met it would
    appear that no groundwater quality violation can be shown and no
    public health advisory can be issued.
    For example, Section 620.420(b) (4) requires chain of custody
    control over groundwater nonitoring samples.
    I doubt that the
    majority of public water supplies in Illinois keep chain of
    custody control over their samples.
    Such things as chain of
    custody are traditionally reserved for evidence preservation in
    criminal law.
    Even in the criminal law setting, whether chain of
    custody has been established goes to the weigh.t of the evidence,
    not its admissibility.
    See
    23 C.J.S.
    Criminal Law, Section 846
    (b).
    Here the requirements for consideration
    in an
    administrative civil matter seem more restrictive than for a
    criminal trial.
    If historical data and analysis was not
    conducted according to these requirements,
    it might be argued
    that such data is not valid to show groundwater quality changes.
    I would relax these rules to allow consideration of all
    information,
    with such factors going only to the weight to be
    given to the information.
    115—249

    5
    Board Member
    I, Dorothy N.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereb
    certify that the a)~oveConcurring Opinion was filed
    on the
    /~-~
    day of
    __________________
    ,
    1990.
    /
    ,/)j
    ~
    Dorothy
    M.
    /E~iflfl,
    Cl~rk
    Illinois ~ô~,tlutionControl Board
    Bill
    S.
    Forcade
    115—241

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