ILLINOIS POLLUTION CONTROL BOARD
December
6,
1991
IN THE MATTER OF:
)
GROUNDWATER PROTECTION: REGULATIONS FOR
)
RES 91-1
EXISTING
AND
NEW ACTIVITIES WITHIN SET-
)
R89-5
BACK ZONES
AND
REGULATED RECHARGE AREAS
)
(Rulemaking)
(35 ILL. ADM. CODE 601,
615,
616 and 617)
)
(“TECHNICAL STANDARDS”)
)
RESOLUTION
AND
ORDER OF THE BOARD
(by R.
C.
Flemal):
In Docket R89-5, the Pollution Control Board
(“Board”)
proposed new rules in 35
Ill. Adm. Code Parts 615,
616,
and 617,
and amendments at 35 Ill. Adm. Code 601.
The proposal was
considered by the Joint Committee on Administrative Rules
(“JCAR”)
at its November 19,
1991 meeting.
JCAR issued an
objection to each of the proposed rules and amendments in this
docket.
This resolution and order constitutes the Board’s formal
response to JCAR’s November 19, 1991 objection to 35
Ill.
Adm.
Code 615,
616,
617, and 601.
Section 7.06(c)
of the
Administrative Procedure Act
(“IAPA”) requires that an agency
respond within 90 days of an objection.
Section 7.06(c)
of the
IAPA states that an agency may,
(1) modify the proposed rule or
amendment to meet JCAR’s objection,
(2) withdraw the proposed
rule or amendment in its entirety,
or
(3)
refuse to modify or
withdraw the proposed rule or amendment.
For the reasons set
forth below,
the Board hereby refuses to modify or withdraw the
proposed rules.
The Objection
The JCAR statement of objection is as follows:
The Committee objects to the rules of the PCB
cite
to
the specific proposed rule or amendment
because the
rules are part of a groundwater protection program that
creates undo
(sic)
burden for certain small businesses.
Additionally, according to information submitted by the
Board at 2nd Notice, the Board failed to consider any
regulatory alternatives designed to minimize the
economic impact on small businesses,
as required by
Section 7.06(a)
of the IAPA.
The text of the objection is the same for parts 601,
615,
616,
and 617.
128—219
—2—
Board Response
The Board does not take a JCAR Objection lightly.
The Board first observes that the issues raised by the
objection really only pertain to the proposed new rules contained
in parts 615 and 616.
The amendments to part 601 only contain a
change in the definition of the term “groundwater” by adding the
statutory definition of the term.
Proposed new part 617 was
created as a “shell” for the placement of regulated recharge area
determinations when these are promulgated.
To date,
no petitions
for regulated recharge area determinations have been submitted to
the Boarti. Therefore, the part 601 and 617 actions are merely
procedural rather than substantive actions, and consequently do
not involve economic issues.
However, since JCAR objected
generally to all four parts,
the Board’s response includes all
four parts.
Undue Burden
The JCAR objection contains two issues.
The first concerns
the proposed rules as part of a groundwater protection program,
that, as JCAR believes, creates an undue burden for certain small
businesses1
The Board regulations follow the directives in the
Environmental Protection Act,
Ill. Rev.
Stat.
111 1/2,
par.
1001
et seq.
(“Act”), specifically section 14.4.
The legislature
specifically mandated that the Board regulate new and existing
activities within regulated recharge areas and setback zones as
part of the groundwater protection regulations2.
Some small
businesses which store or handle pesticides and fertilizers may
be affected by these rules.
Pesticide and fertilizer facilities
are among the activities explicitly identified by the legislature
to be subject to these groundwater protection regulations.
The
list of activities is found at Section 14.4(a) (3)
of the Act,
where the Agency is to propose regulations:
prescribing standards and requirements for the
following activities;
.
.
.
storage and related
handling of pesticides and fertilizers at a facility
for the purpose of commercial application
.
In Section 14.4(b), the Board is to include in these regulations
for existing activities:
1
The
“certain
small
businesses”
alluded to by JCAR
are,
evidently,
limited to agrichemical facilities.
2
This
is an important point.
The Board regulations
only
cover those activities within setback zones and regulated recharge
areas, not the entire State.
128—220
—3—
1.
appropriate programs for water quality
monitoring;
2.
reporting, recordkeeping and remedial
response measures;
3.
appropriate technology—based measures f3r
pollution control;
and
4.
requirements for closure or discontinuance of
operations;
and for new activities, pursuant to Section 14.4(d):
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.
This is not a general mandate;
it includes specific
directives with which the Board is attempting to comply.
Therefore, the Board believes that any burden which may be placed
on any businesses as a result of these rules is directly related
to the groundwater protection program embodied in the specific
statutory mandate, and was considered by the legislature when
adopting the Groundwater Protection Act.
The Board,
in attempting to comply with the mandate, does
not believe that its rules create a burden due to duplication of
regulation.
The Board addressed this issue as it pertained to
the Department of Agriculture’s Part 255 rules.
On page 15 of
the June 20,
1991 Board Opinion and Order, the Board found that
the Part 255 rules did not cover all matters addressed in the
statutory mandate to the Board,
and, based on the extensive
record before the Board,
concluded that there is a need for
groundwater monitoring, closure and post—closure care, reporting
and recordkeeping, and remedial response measures.
Prior to submission of Second Notice, the Board again
visited this issue, addressing additional comment.
In an effort
to deal with and eliminate any regulatory overlap .between these
128—221
—4—
rules and the Part 255 rules in response to comments, the Board
added subsection
(b) to Section 615.304 and Section 616.304 that
require a survey plat.
Subsection
(b) would allow that
information requirements under. any other state or Federal
program, which contain the same information required by the Board
regulations, may be used to satisfy the Board requirement.
The
Board is desirous of avoiding duplication of regulatory
requirements in all instances.
Furthermore,
the Board is unaware of any similar groundwater
monitoring requirements under federal programs for pesticides and
fertilizers pursuant to the Federal Insecticide, Fungicide, and
Rodentidide Act
(7 USCA Sec.
136 et seq.).
In summary, the Board believes that any regulatory burden is
due to the direct statutory mandate contained in the Groundwater
Protection Act amendments to the Environmental Protection Act.
Consideration of Regulatory Alternatives
For the second part of the objection, JCAR believes
that the
Board’s second notice submittal indicates that the Board failed
to consider any regulatory alternatives designed to minimize the
economic impact on small businesses,
as required by Section 7.06
of the IAPA.
Under Section 7.06,
JCAR may examine proposed rules
and amendments,
and,
in addition:
JCAR
may consider
.
.
.
whether the rule
i.s
designed to minimize the economic impact on small
businesses.
At second notice, the Board submitted information required
by JCAR rules 35 Ill.
Adm. Code 220.600, the State Mandates
Questionnaire, and the Analysis of Economic and Budgetary Effects
Questionnaire,
as well as copies of the Board’s first and second
notice opinions and orders.
For the information required by JCAR rules, question 7
contains a “final regulatory flexibility analysis”, that pertains
to issues raised by small businesses during the rulemaking
process.
Specifically, question
7 reads:
7)
A final regulatory flexibility analysis,
which shall include the following;
A)
A summary of the issues raised by small businesses
during the first notice period; and
B)
A description of actions taken on any
alternatives to the proposed rulemaking
suggested by small businesses during the
first notice period,
including reasons for
128—222
—5—
rejecting any alternatives not utilized.
(Ill.
Rev. Stat.
1985,
ch.
127, par.
1005.01(b)).
In response to this question, the Board discussed issues
raised by small businesses:
A)
No one who testified or commented
specifically identified themselves as a small
business representative, although some who
commented or testified, such as the Illinois
Farm Bureau and Illinois Fertilizer and
Chemical Association most likely represent
small businesses as well as larger ones.
In its opinions and orders the Board addressed comments made
by participants during first notice,
as well as those comments
and testimony offered during the five days of public hearings
held in this docket.
The Board reported to JCAR how it addressed
the first notice comments by forwarding a copy of the second and
first notice opinions,
in addition to quoting portions of the
second notice opinion in the information submitted pursuant to
Section 220.600
(in answer to questions
7
(B)
and
9).
The Board addressed the concerns expressed by the small
businesses.
To the extent that these concerns may be considered
“regulatory alternatives designed to minimize the economic impact
on small businesses”, the Board not only considered some of these
“alternatives”,
but also incorporated some “alternatives”
suggested.
These changes in response to comments were discussed
in answer to question
9 of the Board’s second notice submittal at
pages
9 and 10, as well as in the second notice opinion at pages
10 and 11.
In order to make it as clear as possible that the
burden on these small businesses was considered, the Board,
in
its final opinion and order notes changes it made prior to second
notice in certain monitoring and reporting requirements:
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 facilities is
incorporated at Sections 615.207 and 616.208, instead
of the quarterly 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.
December 6, 1991 Op. at
p.
17—18.
128—223
—6—
The Board also allowed that certain reporting requirements
that may be duplicative of requirements under Department of
Agriculture’s Part 255 rules be satisfied by the Part 255
requirement.
The only requirement is that the Agency have access
to the records.
(Section 615.304(b) discussed above)
What the Board did not do was agree with the alternative of
deleting the requirement of groundwater monitoring and Agency
oversight, although that alternative was certainly considered by
the Board.
The Board continues to believe that the clear
statutory mandate and the information contained in the record do
not allow for exemption of these facilities from the groundwater
monitorfl-~grequirements contained in the rules.
It
is true that in answer to a question ~contained in the
Analysis of Economic and Budgetary Effects Questionnaire the
Board answered that it considered one regulatory “alternative”.
Since previous questions covered responses to comments, this
question was read as asking whether any alternatives to the
entire rulemaking package were considered.
The answer to that
question is one.
The Board regrets any confusion which its
answer to this question may have caused.
For the reasons outlined above, the Board considered
regulatory alternatives designed to minimize the economic impact
on small businesses identified, and incorporated those
alternatives to the extent possible, consistent with the
statutory mandate.
In addition, as was stated in the Board’s
opinion at second notice and in today’s final opinion:
The Board does recognize that there may be individual
cases where the economic burden is abnormally heavy and
reminds such parties of the adjusted standard process
before the Board
(pursuant to Title VII of the Act)
and,
in some cases, the certification of minimal hazard
through the Agency (pursuant to Section 14.5 of the
Act).
Also,
any person may file a petition for amendment to Board
regulations (Section 28 of the Act).
Conclusion
The Board does not take a JCAR Objection lightly.
Section 7.06 of the IAPA sets forth the universe of possible
Board responses.
Neither modification nor withdrawal of the
rules appears to be an appropriate response to the Objection,
given the mandate of Section 14.4 of the Environmental Protection
Act and the Board’s belief that it has proposed the only
environmentally necessary option available to it based upon the
record before it.
Under these circumstances, the Board believes
128—224
—7—
its only recourse is to refuse to modify or withdraw these
proposed rules.
Notwithstanding its response to the Objection, the Board
wishes to thank JCAR and its staff for their efforts and
assistance in this review process.
IT IS SO ORDERED.
Board Member
3.
Theodore Meyer concurred.
I, t~orothyN.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the a ove Resolution and Order was
adopted on the
~
day of ______________________,
1991,
by a
vote of
7—C
~
Dorothy N. ~1nn, Clerk
Illinois Pollution Control Board
128—225
.
.