ILLINOIS POLLUTION CONTROL BOARD
    March 4, 1999
    IN THE MATTER OF:
    )
    )
    REGULATED RECHARGE AREA
    )
    R99-19
    DESIGNATION, DURANT, WINNEBAGO
    )
    (Rulemaking - Water)
    COUNTY
    )
    DISSENTING OPINION (by M. McFawn):
    I respectfully disagree with the majority of the Board. In response to the petitioner’s
    motion of reconsideration in this proceeding, the majority concludes that Sections 17.2, 17.3
    and 17.4 provide a procedure for designating regulated recharge areas in the State. The
    majority then states that the procedure “included a provision that proposed rules to establish a
    regulated recharge area come to the Board from the Illinois Environmental Protection
    Agency,” and cites to Section 17.3 of the Act. The effect of this holding is that only the IEPA
    may propose such a rule. This is where we diverge. Nothing in Section 17.3 or elsewhere in
    the Act prohibits the Board from considering a rulemaking petition for a regulated recharge
    area from an individual or other person as defined at Section 3.26 of the Act. Rather, Section
    17.4 directs the Board to consider such a proposal under Title VII. Specifically, Section 28 in
    Title VII requires the Board to conduct hearings on rulemaking proposals properly filed by any
    person so long as the proposal satisfies certain factors also set forth therein. Notably, Section
    17.4(c) of Title IV also provides that nothing therein limits the Board’s authority for
    rulemaking under Title VII.
    I conclude that nothing in the Act prohibits individuals or other persons as defined in the Act
    from petitioning the Board to designate by rule a regulated recharge area. While the burden of
    this type of rulemaking may be very difficult for a “person” other than the Agency, nothing in
    the Act prohibits an individual, association, political subdivision or any other entity defined as
    “person” at Section 3.26 of the Act, from filing a regulatory proposal to establish a regulated
    recharge area. Finally, nothing in Sections 17.2, 17.3 and 17.4 prohibits the Board from
    adopting such a regulation if the petitioner has satisfied the factors set forth at Section 17.4.
    2
    For these reasons, I would grant the motion to reconsider and reverse the Board’s
    ruling of January 7, 1999.
    Marili McFawn
    Board Member
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above dissenting opinion was submitted on the 9th day of March 1999.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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