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