ILLINOIS POLLUTION CONTROL BOARD

February 2, 2006

IN THE MATTER OF: )

)

STANDARDS AND REQUIREMENTS FOR )

POTABLE WATER WELL SURVEYS AND ) R06-23

FOR COMMUNITY RELATIONS ACTIVITIES ) Rulemaking - Land

PERFORMED IN CONJUNCTION WITH )

AGENCY NOTICES OF THREATS FROM )

CONTAMINATION (35 ILL. ADM. CODE )

1505) )

ORDER OF THE BOARD (by N.J. Melas):

On January 20, 2006, the Illinois Environmental Protection Agency (Agency) filed a

proposal to add a new Part 1505 to the Board’s regulations setting standards and requirements

for potable water well surveys and for community relations activities, where appropriate, in

response to impacts or threats from contamination. Public Act 94-314 added a new Title VI-D

(“Right-To-Know”) to the Environmental Protection Act (Act). Public Act 94-314 requires the

Board to adopt well survey and community relations rules within 240 days of the effective date

of P.A. 94-314, or no later than September 17, 2006. The Board discusses the proposal in more

detail below.

The Agency’s proposal omitted pages 17 and 18 of the statement of reasons. On January

30, 2006, the Agency moved to refile the entire statement of reasons. Today the Board grants

the Agency’s motion and accepts the proposal, as amended, for hearing.

PROPOSED NEW PART 1505

Procedures for Performing and Documenting Well Surveys

Public Act 94-314 mandates the Board to “amend its rules as necessary to require potable

water supply well surveys and community relations activities where such surveys and activities

are appropriate in response to releases of contaminants that have impacted or that may impact

offsite potable water supply wells.” 415 ILCS 5/25d-7 (

as added by P.A. 94-314, eff. July 25,

2005

). Therefore, proposed Subpart B sets forth well survey procedures, as well as minimum

standards for the performance and documentation of surveys during site investigations. The well

survey rules apply to response actions taken pursuant to Board rules requiring that a release of

contaminants be addressed. The Agency emphasizes that Subpart B does not contain

independent requirements to perform well surveys. Rather, when well surveys are required the

applicable Board rules, Subpart B requires compliance with the Subpart B minimum standards

and requirements for those wells surveys.

Community Relations Activities

Under Public Act 94-314, the Agency must also provide notice of “effects or potential

effects of soil and groundwater contamination” to certain members of the public in specified

circumstances. Stat. at 2. Contamination may include, for example, a hazardous substance,

pesticide, or petroleum. Subpart C of the rules sets forth two alternative levels of community

relations activities depending on the severity of the offsite impacts. Subpart C also establishes

requirements for document repositories if applicable, fact sheets and community relations plans,

and implementing community relations activities, compliance, and compliance monitoring.

In this rulemaking, the Agency has proposed minimum standards and requirements for

community relations activities. The proposed rules would apply when the Agency has

authorized the responsible party to provide notice as part of community relations activities

approved by the Agency. The stated purpose of these requirements is to fully inform the public

in a timely manner about offsite impacts or potential impacts from contamination and the

responses to those impacts.

Public Outreach

In the proposal, the Agency states that it conducted public outreach on the original draft

language and, as a result, changed its approach, which is reflected by the current proposal.

Because the Agency made substantial changes before filing the proposal to the Board, the

Agency states it “cannot at this time represent that there is any level of concurrence by interested

parties on the overall concepts guiding the proposal.” Stat. at 7. Moreover, the Agency asserts

that differences remain as to details of the well survey procedures and community relations

requirements.

Proposal Content Requirements: 35 Ill. Adm. Code 102.202

According to the Agency, the proposed new part 1505 is technically feasible and

economically reasonable. The Agency states the only new technical requirement introduced is

the establishment of a website document repository. Despite this new requirement, the Agency

concludes the proposal raises no issues of technical feasibility. Stat. at 21.

The Agency contends that proposed Subpart C will undoubtedly increase costs for

responsible parties voluntarily accepting notice and community relations obligations. Stat. at 21.

The Agency asserts that by proposing a structure with two levels of activities, costs should be

limited because most sites with contamination impacting or threatening offsite properties or

wells should fall into the reduced requirement group.

The Agency has no estimates about costs to private entities performing community

relations activities. The Agency states that the Office of Community Relations (ORC), however,

has prepared some rough estimates of costs of compliance for the Agency. The ORC states it

would cost in the range of $9,500 to $12,000 per occurrence to develop a fact sheet and contact

list, prepare a news release, and distribute the information associated with the activities required

by the proposed new rules. Stat. at 22. The estimate could increase by as much as $4,500 to

$6,000 to prepare and implement a community relations plan. The ORC estimates that the

increased costs to the Agency for reviewing documents and the related activities will range from

$2,200 to $3,200 or from $3,200 to $4,800 if the community relations plan is included.

In addressing the applicability of the “incorporation by reference” and “published study

or report” requirements of Section 102.202, the Agency stated that the proposal includes no

incorporations by reference, and that no published studies or research reports were used in

developing the rules. 35 Ill. Adm. Code 102.202(d), (e);

see also

35 Ill. Adm. Code 102.202(k).

CONCLUSION

The Board finds that the Agency’s rulemaking satisfies the content requirements of

Section 102.202 of the Board’s procedural rules and accepts the rulemaking for hearing. 35 Ill.

Adm. Code 102.202.

In order to comply with the 240-day statutory adoption deadline, the Board must file

adopted rules with the Secretary of State no later than September 17, 2006. Based on its current

meeting schedule, the Board anticipates adopting a first notice order no later than April 2006, a

second notice order no later than June 2006, and final rules no later than the Board’s September

7, 2006 scheduled meeting.

Because the Agency states that the version of the proposal filed with the Board has not

been the subject of public hearings, the Board expects to hold at least one hearing on the

Agency’s proposal as filed, prior to adopting the proposal for first notice. The hearing officer is

directed to schedule hearing and public comment schedules expeditiously, to allow the Board to

meet the tight statutory adoption timetable. In the interests of saving time, the hearing officer is

directed to base the Board’s notice list on any public outreach mailing lists the Agency may have

developed.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on February 2, 2006, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board