ILLINOIS POLLUTION CONTROL BOARD
June 16,
1988
IN THE MATTER OF:
PROCEDURAL RULES
FOR EXCEPTIONS
)
R88-lO
TO WELL SETBACK REQUIREMENTS;
SECTION 14.2(c)
OF THE ACT
ADOPTED RULE.
FINAL ORDER.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
This
rulemaking implements
a provision of
the Groundwater
Protection Act, PA.
85—863
(SB 1482),
effective September
24,
1987.
The provision
is found
at new Section
14.2(c)
of the
Environmental Protection Act
(Act).
Subsection
(c)
reads as
follows:
The
Board
may
grant
an
exception
from
the setback
requirements
of
this
Section
and
Section
14.3
to
the owner of
a new potential
route,
a new potential
primary
source
other
than
landfilling
or
land
treating,
or
a new potential secondary source.
The
owner
seeking
an
exception
with
respect
to
a
community water
supply
well
shall
file
a petition
with
the Board
and
the Agency.
The owner
seeking
an exception with respect
to a potable water supply
well other
than
a community water supply well shall
file
a petition with the Board
and the Agency,
and
set
forth
therein
the circumstances under
which
a
waiver has been sought but not obtained pursuant to
subsection
(b)
of
this
Section.
A petition
shall
be
accompanied
by
proof
that
the
owner
of
each
potable
water
supply
well
for
which
setback
requirements
would
be
affected
by
the
requested
exception has been notified and been provided with
a copy of
the petition.
A petition shall set forth
such
facts
as
may
be
required
to
support
an
exception,
including
a
general
description
of
the
potential
impacts
of
such
potential
source
or
potential
route
upon groundwaters and
the affected
water
well,
and
an
explanation
of
the
applicable
technology—based controls which will be utilized
to
minimize
the
potential
for
contamination
of
the
potable water supply well.
The
Board
shall grant
an exception,
whenever
it
is
found
upon
presentation
of
adequate
proof,
that
compliance
with
the
setback
requirements
of
this
~rn--4n5
—2—
Section
would
pose
an
arbitrary
and
unreasonable
hardship
upon
the
petitioner,
that
the
petitioner
will utilize the best available technology controls
economically achievable
to minimize
the likelihood
of contamination of
the potable
water supply
well,
that the maximum feasible alternative
setback will
be
utilized,
and
that
the
location
of
such
potential
source
or
potential
route
will
not
constitute
a
significant
hazard
to
the
potable
water supply well.
Not
later
than
January
1,
1988,
the
Board
shall
adopt
procedural
rules
governing
requests
for
exceptions
under
this
subsection.
The
rulemaking
provisions
of Title VII
of
this Act and
of Section
5
of
the
Illinois
Administrative
Procedure
Act
shall
not
apply
to
such
rules.
A decision made
by
the
Board
pursuant
to
this
subsection
shall
constitute
a final determination.
The granting
of an exception by
the Board shall not
extinguish
the
water
well
owner’s
rights
under
Section
6b
of
the Illinois Water Well Construction
Code
in
instances where
the
owner
has
elected
not
to provide
a waiver
pursuant
to subsection
(b)
of
this Section.
On March 24,
1988,
the Board,
in proposing the rule, ordered
that
it be published
in the Illinois Register and established
a
30 day public comment period.
It was published on April
15,
1988.
Only one public comment was received,
from the Illinois
Environmental Protection Agency (Agency).
Format adjustments
have been made
in response
to comments of
the Administrative Code
Unit of the Secretary
of State’s office.
The Agency objected
to certain provisions, namely:
1)
The requirement to file an Agency
response to each
setback petition, rather than leaving to the Agency the right
to
determine whether
to comment or intervene.
2)
The procedural
format establishing
the Agency as
a
voluntary co—petitioner;
the Agency does not ever
intend
to be
a
co—petitioner.
Thus
the Agency requests deletion of
all co—
petitioner language
(Sec.
106.502, 106.503 and l06.504(b)(l)).
It does, however, want to retain the language
in 106.502(b),
which authorizes
the Agency
to require background information
from the petitioner.
On the other hand the Agency wants deleted
the language providing that the petitioner may request assistance
from the Agency.
90—406
—3—
3)
The Agency also requests deletion of Section 106.505,
which provides
for Agency response to
the petition (and
petitioner
reply) when the Agency has not joined as co—
petitioner.
The Agency bases
its assertion on the fact that
the variance
language in~Section37(a)
of the Act requiring that
the Agency
investigate each petition and make a recommendation “is
conspicuously absent from Section 14.2(c)”
(Agency Comments,
p.
2).
The Agency asserts that
it was the principal architect
of
the Groundwater Protection Act and intended that such language
not follow that aspect of the variance procedural process.
The Board
notes
the following:
1.
Section
26 of the Act grants
the Board general authority
to adopt
“such procedural rules as may be necessary
to accomplish
the purposes of this Act.”
A review of the Board’s procedural
rules show many instances where the Board has provided detailed
procedural steps beyond those expressed in the statute.
2.
The Board does not understand the Agency’s focus on the
variance process,
to the exclusion of all others,
in asserting
the intent of
the 14.2(c) exception procedure.
Section 14.2(c)
does not
“track” the variance procedural process
in Section
37(a).
The Board notes
that the “arbitrary or unreasonable
hardship” language in both Section 37(a), variances,
as well
as
in Section 31(c), enforcement,
is different from the “arbitrary
and unreasonable” language
in Section 14.2(c).
3.
Section 14.2(c) uses
the term “exception procedure”.
The only place where this term has been heretofore utilized
is
in
the combined sewer overflow Exception Procedure
(35 Ill. Adm.
Code Subpart
D,
306.360
—
306.374).
This latter procedure
utilized the Board’s Title VII powers,
including Section 26, was
supported by the Agency, and has been
in force
for some time.
The Board rejects the Agency’s inference that the statutory
language
in Section 14.2, which includes no procedural
prohibitions whatsoever,
is nevertheless
to be construed
as
superseding
the Board’s Section
26 authority (see also Sec.
1(b))
to establish such additional procedural
rules as may be necessary
to accomplish
the purpose of the Act.
The Board also points out
that,
in Section 14.2,
the Agency has major involvement in the
setback adjustment process
(see esp.
14.2(b)).
The Board also questions how the Agency can argue on the one
hand that the Board cannot require the Agency to provide
responses to or assist
the petitioner and yet,
on the other hand
assert that the Board
cart require the petitioner
to provide
90—407
—4—
background information
to the Agency, when the latter requirement
is not discussed
in the statute either.
In any event,
the Board believes that
the Agency’s active
participation
is
a necessary element
in these proceedings.
This
is reflected
in renumbered Section 106.503(a).
The fundamental benefit
to the Agency of
the co-petitioner
format
is that
it gives an incentive to the petitioner
to provide
up—front
information
to the Agency.
The benefit
to all concerned
is that the process allows
for the gathering and exchange of
information,
the airing of
issues
in
a timely and efficient
manner,
and the development of
a record sufficient
for the Board
to make
a reasoned decision.
Specifically, the format was
established
to efficiently use the Agency’s
resources by
eliciting
information
for
the Agency early—on.
Nevertheless,
since the Agency has stated that
it will never
exercise its discretion to be
a co—petitioner,
it makes little
sense for the Board to provide
for that
format.
Therefore,
the
earlier proposed Sections 106.502 and 106.503 are deleted
in
their entirety and the rest of the sections are renumbered and
edited accordingly.
The Board has also provided for
a response
by any owner required
to be noticed under Section 14.2(c).
The Board notes
that Section 14.2(c) specifies that the
rulemaking provisions of Title VII
of the Act and Section
5 of
the Administrative Procedure Act shall not apply
to such rules.
ORDER
The Board directs that the following procedural
rule be
filed with the Secretary of State and be published
in the
Illinois Register.
PART 106
GENERAL PROVISIONS
SUBPART
E:
WATER WELL SETBACK EXCEPTION PROCEDURES
Section 106.501
Scope and Applicability
This Subpart applies
to the provision for exception contained
in
Section 14.2(c)
of the Act.
Section 106.502
Contents
of Petition
a)
The petitioner shall
file ten copies of the petition for
exception with the Clerk of the Pollution Control Board
(Board),
and shall
serve one copy upon the Agency.
9 0—408
—5—
b)
The petition shall contain the following information:
1)
A written statement, signed
by the petitioner or an
authorized representative,
outlining the scope of
the evaluation,
the nature of,
the reasons for and
the basis
of the exception,
consistent with the
level
of justification contained
in Section 14.2(c)
of the Act.
2)
The nature of the petitioner’s operations and
control
equipment;
and
3)
Any additional information which may be required
in
Section 14.2(c)
of
the Act.
C)
In accordance with
35
Ill. Adm.
Code 103.123, the
petition shall contain proof of service on owners
required
to be notified and provided with
a copy of the
petition as required by Section 14.2(c).
Section 106.503
Response and Reply
a)
Within 21 days after
the filing of
a petition, the
Agency and any owner required to be notified under
Section 14.2(c)
shall file with the Board
a response to
the petition.
The response shall
include comments
concerning potential Board action on the petition.
b)
The petitioner may file a reply within 14 days after
the
filing
of any response.
Section 106.504
Notice and Conduct of Hearing
a)
The Board will hold at least one public hearing prior
to
granting an
exception.
b)
The hearing officer will schedule the hearing.
The
Clerk will give notice
of hearing in accordance with 35
Ill. Adm. Code 102.122.
c)
The proceedings will
be
in accordance with 35
Ill. Adm.
Code 102.160
through 102.164.
Section 106.505
Opinions and Orders
a)
The Board will adopt an Order and Opinion stating the
facts and reasons leading
to the final Board
determination, consistent with any considerations which
may be specified
in Section 14.2(c)
of the Act.
90—409
—6—
b)
The Board will
issue such other Orders as the Board
deems appropriate,
including,
but not limited
to,
accepting or rejecting
the petition,
requiring the
submission of further information or
directing that
further hearings be
held.
c)
Such Board Orders and Opinions will be maintained
for
public
inspection by the Clerk
of the Board and
a
listing of all determinations made pursuant
to this
subpart will be published in the Illinois Register and
the Environmental Register
at the end of each fiscal
year.
d)
A final Board determination made under
this
subpart may
be appealed pursuant to Section
41 of the Act.
IT
IS SO ORDERED.
B. Forcade dissented.
I,
Dorothy M. Gunn, Clerk
of
the Illinois Pollution Control
Board, hereby certify that
the above Opinion and Order was
adopted on the
/~l~
day
of
(1
~-~--&_
,
1988,
by
a vote
of
~/
.
Dorothy M./unn, Clerk
Illinois Pollution Control Board
90—410