RECEwVIO
CLERKS OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN 2
e
2006
IN THE MATTER OF
:
)
STANDARDS AND REQUIREMENTS
)
FOR POTABLE WATER WELL
)
SURVEYS AND FOR COMMUNITY
)
RELATIONS ACTIVITIES PERFORMED
)
IN CONJUNCTION WITH AGENCY
)
NOTICES OF THREATS FROM
)
CONTAMINATION (35 ILL. ADM. CODE
)
1505)
)
NOTICE
Dorothy Gunn, Clerk
Bill Richardson
Illinois Pollution Control Board
General Counsel
James R. Thompson Center
Illinois Dept. of Natural Resources
100 W. Randolph, Suite 11-500
One Natural Resources Way
Chicago, Illinois 60601
Springfield, Illinois 62702-1271
Matt Dunn
Amy Antoniolli, Hearing Officer
Environmental Bureau Chief
Illinois Pollution Control Board
Office-of-the Attorney-General Tames- -hompson-Cent er
James R. Thompson Center
100 W. Randolph, Suite 11-500
100 W. Randolph, 12 th Floor
Chicago, Illinois 60601
Chicago, Illinois 60601
Attached Service List
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Illinois
Pollution Control Board the Illinois Environmental Protection Agency's Post-Hearing Comments, a copy
of which is herewith served upon you .
ILLINOIS ENVIRONMENT
PROTECTION AGENCY
By :
/2v/
(~ /~
Mark Wight
Assistant Counsel
Division of Legal
ounsel
DATE: June 23, 2006
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
THIS FILING SUBMITTED ON RECYCLED PAPER
TATE OF ILLINOIS
Pollution Control Boa,
R06-023
(Rulemaking - Land)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF :
)
)
R
gG~pF~O
CLERK
•
'6
10
STPj
E
ft
O
G°
k
t0\
d
AGENCY'S POST-HEARING MENTS
STANDARDS AND REQUIREMENTS
FOR POTABLE WATER WELL
SURVEYS AND FOR COMMUNITY
RELATIONS ACTIVITIES PERFORMED
IN CONJUNCTION WITH AGENCY
NOTICES OF THREATS FROM
CONTAMINATION (35 ILL. ADM. CODE
1505)
R06-023
(Rulemaking - Land)
The Illinois Environmental Protection Agency ("Agency") respectfully submits its post-
hearing comments in the above-titled matter to the Illinois Pollution Control Board ("Board")
pursuant to 35
Ill
. Adm . Code 102.108 and the direction ofthe Hearing Officer at the close ofthe
hearing on May 23, 2006,
I .
OVERVIEW
The Agency's proposed vile at 35 III. Adm. Code 1505
[
originates in the statutory
requirements of Title VI-D of the Environmental Protection Act ("Act"), as enacted by Public
Act 94-314, effective July 25`
h
, 2005
. See 415 ILCS 5/25d-1- 25d-10 . Title VI-D of the Act is
entitled "Right-To-Know ." There are several components to Title VI-D . The main component is
a requirement that the Agency provide notice to certain affected members of the public in
'
The Agency notes the statement of the Hearing Officer concerning the revisions in the Board's forthcoming Second
Notice Opinion and Order from the Agency's original Subtitle N to Subtitle 0 and from the Agency's original 35 111
.
Adm. Code 1505 to 35 111. Adm. Code 1605 . See Transcript of May 23rd Hearing at 26-7. The Agency understands
and concurs with the need for these revisions, but, for purposes of this document, the proposal still is referred to as
Part 1505
.
1
specified circumstances involving soil or groundwater contamination or other environmental
threats. Title VI-D also authorizes the Agency to allow a responsible party who has implemented
a community relations plan to provide the notice in lieu of the Agency. In conjunction with these
notification requirements, Title VI-D required the Agency to propose rules for potable water well
surveys and community relations activities within 180 days of the effective date of the
legislation. The Agency's proposal was filed with the Board on January 20, 2006
.
Two hearings have been held on the Agency's proposal, the first in Chicago on March
28th
, 2006, and the second in Springfield on May 23`d , 2006. During the course of the hearings,
approximately 165 pages of testimony, questions and responses have been gathered and nine
exhibits admitted to the record . The Agency has filed two sets of amendments to its original
proposal in the form of errata sheets. Before. providing its post-hearing comments, the Agency
wishes to take this opportunity to thank the attending Board members, theirassistants and staff,
Hearing Officer Amy Antoniolli, Deirdre K. Hirner of the Illinois Environmental Regulatory
Group, and public-spirited citizens Bernadette Dinschel and Ann Muniz for their substantial
efforts in working to refine the Agency's proposal through the hearing process
.
II
.
AGENCY COMMENTS
The Agency urges the Board to adopt for second notice the Agency's proposal as
amended by the first and second errata sheets. The proposal fully satisfies the rulemaking
directive at Section 25d-7(a) of the Act. 415 ILCS 5/25d-7(a). Subpart B sets forth minimum
requirements for the performance of potable water well surveys and the documentation of the
results of those surveys to the Agency . The use of the Subpart B procedures is required
whenever Board rules require the performance of a response action to address a release of
2
contaminants and a well survey is expressly or implicitly required as a part of that response
action . In the pre-filed testimony of Scott Phillips, the Agency listed fourteen Parts of Title 35 of
the Illinois Administrative Code that will be affected directly by the Subpart B requirements and
four additional Parts that will be affected indirectly through at least one of the fourteen listed
Parts or that already have equivalent procedures . Pre-Filed Testimony of Scott 0 . Phillips, Exh .
5 at 3-5. The Agency does not recommend listing the affected Parts in the Subpart B
applicability section. The Agency's generic applicability language at Section 1505 .205 is
sufficiently broad to incorporate all of the listed Parts without acting as a limitation when rules
requiring response actions are adopted in the future . However, the Agency does intend to include
cross-references to Part 1505 well survey procedures whenever the listed Parts are opened for
amendments in the future or new Parts with response action requirements are proposed
.
Subpart C also satisfies the statutory directive of Section 25d-7(a) of the Act to adopt
rules for community relations activities. The proposal establishes minimum requirements for
community relations plans that are developed and implemented in lieu of Agency notices
required by Section 25d-3 of the Act . For those who accept an Agency offer to provide the
notice in place of the Agency, there are two levels of community relations plans depending on the
extent of offsite effects from the contamination. In general, this reflects the Agency's view that
contamination incidents affecting larger numbers of off-site properties or wells require more
intensive community relations act vities . At either level, the plans must be reviewed and
approved by the Agency prior to implementation . Contact lists for distribution of information
must be developed along with the statutory notice documents, supplemental fact sheets, and other
community outreach activities. Minimum requirements for the contact lists are specified in the
3
proposal. Both the notices and the fact sheets will provide the names of representatives of the
authorized party and the Agency whom persons on the contact lists can reach for additional
information. Community relations plans, including contact lists and fact sheets, must be updated
to account for changes in circumstances . Web site document repositories are mandatory for
incidents affecting more than five offsite properties or potable water wells, and, in some cases,
physical document repositories also will be required . Taken together, all these components
provide the basis and means by which the community dialogue envisioned in Section 25d-7(a)
can develop and sustain itself throughout the course of any response actions
.
Judging by the Agency's outreach efforts and the response at hearing, only one issue of
significant controversy has emerged. That is the issue of whether the contact list provisions
should require without exception the mandatory identification and notification of occupants of
offsite properties affected or threatened by soil or groundwater contamination . The proposal
currently requires the identification and notification of such occupants "to the extent reasonably
practicable." See Sections 1505 .310(b)(2), 1505 .315(b)(2)(D), 1505.Appendix A
.
Ms. Dinschel and Ms. Muniz, both having experienced the contamination of their private
wells by groundwater contamination migrating from nearby sites, argued strongly for an absolute
identification and notification requirement for occupants . They noted that, while owners of
affected properties should be notified, occupants of such properties are the ones directly at risk
.
It would be unconscionable not to notify occupants, and owners, for a variety of reasons, cannot
always be counted on to provide that information to their tenants. Pre-Filed Testimony of
2
The absence of comment in this document on any other matters or issues raised at hearing should not be construed
as acquiescence or agreement by the Agency for positions or revisions not otherwise expressly endorsed
.
4
Bernadette Dinschel, Exh. A at 1-2, Tr. 1 at 96-102
3
; Pre-Filed Testimony of Ann Muniz, Exh . B
at 6-8, Tr. 2 at 33-36. Ms. Dinschel and Ms. Muniz further stated that the qualifying language,
"to the extent reasonably practicable," creates a loophole for "perceived inconvenience" or
willful evasion of the requirement, and both testified to personal experiences that have left them
justifiably suspicious of responsible parties and government agencies . Pre-Filed Testimony of
Bernadette Dinschel, Exh. A at 2; Testimony of Ann Muniz, Tr. 2 at 36 .
On the other hand, Ms. Himer of the Illinois Environmental Regulatory Group stated that
the statutory provisions require only the identification and notification of owners of affected
properties . Pre-Filed Testimony of Deirdre K . Himer, Exh. 4 at 4-5 ; Tr. I at 115-17. Ms. Himer
agreed in principle that occupants of affected properties should be notified but pointed out the
difficulties in practice of doing so . She stated her organization's concern that an absolute
requirement exposes the regulated community
to enforcement actions
even if the
authorized-
party
agrees that all occupants should be notified and has made good faith efforts to do so, only to have
a few occupants fall through the cracks. Testimony of Deirdre K . Himer, Tr. I at 115-17, Tr. 2 at
44-45
.
Insofar as the Agency's statutory obligation to provide notice, Ms . Himer is correct that
the obligation extends only to the owners of properties affected or threatened by soil or
groundwater contamination. 415 ILCS 5/25d-3(a), (b)
. However, when responsible parties are
authorized to provide the notice in lieu of the Agency, it must be done in the broader context of
The transcript of the March 28, 2006, hearing is cited as "Tr . 1 at "; the transcript of the May 23, 2006, hearing
is cited as "Tr . 2 at
5
implementing a community relations plan . 415 ILCS 5/25d-3(c) . The community relations
concept includes more than affected property owners and more than simple notice . Section 25d-
7(a) of the Act indicates that the community relations activities adopted by the Board must foster
and maintain a dialogue with the community. The Agency's position is that the dialogue with the
broader community must include first and foremost the occupants of affected properties, those
who may be directly at risk from migrating contamination. Rather than being inconsistent with
the statutory requirements for notices provided in lieu of the Agency, notification of occupants is
implicit in the statutory requirements for community relations activities . That is why the Agency
has expressly included occupants of affected properties among the parties who must be identified
for the contact lists
.
The Agency's original proposal filed with the Board on January 20, 2006, did contain an
absolute
hotificatioifrequirement for -
occupants
-
However;in itsErrata Sheet No. 1, filed with
the Board on March 14, 2006, the Agency revised its proposal by adding the language "to the
extent reasonably practicable." The concept came from comments received during Agency
outreach activities, but the decision to propose the change was based on the Agency's own
experience with identifying and notifying occupants . When conducting its community relations
activities, the Agency makes every effort to contact occupants, often using a number of different
tactics to do so . Depending on the scope and location of the contamination and factors such as
population density and transience, it can be difficult, especially over the course of a remediation
that could take months or years
.
See Pre-Filed Testimony of Kurt D . Neibergall, Exh. 3 at 8-10 ;
Testimony of Kurt Neibergall and Testimony of Carol Fuller, Tr . I at 41-48. While the Agency
has gone to great lengths to identify and notify occupants and has reason to believe its efforts
6
have been very successful, it could not testify that each and every occupant of every affected
property that has been the subject of its efforts has received the information being distributed
.
Thus, the Agency workgroup concluded that the addition of the qualifying language is
appropriate
.
Nonetheless, there are several approaches that the Agency has used to identify occupants,
and all of them would be considered "reasonably practicable" by the Agency . Identifying
occupants starts with identifying addresses - locations of affected properties where occupants
might be found - and then identifying the actual occupants, if any . In no particular order,
approaches used individually or in concert by the Agency to gather relevant information include,
but are not limited to : 1) Reviews of county property records, 2) reviews of local street guides, 3)
use of local library resources, 4) use of commercial mailing lists, 5) interviews with local public
water supply operators and municipal officials, 6) windshield or walking surveys of affected
neighborhoods, and 7) door-to-door canvassing including interviews and distribution of door
hangers. All of these methods have their limitations . For example, local street guides and
commercial mailing lists are not continuously updated and therefore may be outdated . Letters
relying on these sources of information may have to be addressed by name to the last known
occupant "or current resident" so that delivery will be completed even if there has been a change
of occupants. However, if enough of these methods are used, a high degree of success can be
achieved .
Whether or not the contested language becomes a loophole for abuse largely will depend
on the Agency's administration of the program, but several checks are built into the proposal
.
The "occupant provisions" also contain a requirement that the authorized party include a
7
description of the methods used to identify the occupants for the contact list . Sections
1505.310(b)(2), 1505 .315(b)(2)(D). Contact lists are subject to review and approval by the
Agency. Sections 1505.325 and 1505 .330. The Agency has the authority to reject insufficient
efforts and to require additional or alternative methods such as those described above by using
denials and approvals with conditions . Section 1505 .330(c). Problems with the implementation
of community relations plans can be identified through the Agency's compliance monitoring
efforts and by complaints from the public and local officials. If disagreements on the matter
between the Agency and the authorized party reach the appeal stage, the Board will have its own
opportunity to define what is "reasonably practicable." For these reasons, the Agency remains
committed to its proposed language for the inclusion of occupants on the contact lists
.
III .
CONCLUSION
.
As stated above, the Agency's proposal is entirely consistent with the statutory
requirements under Title VI-D . It establishes minimum standards and requirements for
performing potable water supply well surveys as part of response actions required by Board rules
and for the documentation necessary for reporting the results of those surveys to the Agency
.
These procedures should help to ensure that potable water supply wells that could be affected or
threatened by groundwater contamination are accurately identified and located . The proposal
also creates a framework in which authorized parties implementing community relations plans
can provide notices to interested and affected persons in place of the notices required to be given
by the Agency under Section 25d-3(a) of the Act. The framework ensures Agency involvement
in planning the community relations activities and Agency oversight of the implementation of the
community relations activities. The Agency urges the Board to adopt the Agency's proposal as
8
amended by Errata Sheets No . 1 and 2
.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
B
Mark Wight
Assistant Counsel
Date: June 23, 2006
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
THIS DOCUMENT SUBMITTED ON RECYCLED PAPER
9
STATE OF ILLINOIS
)
COUNTY OF SANGAMON
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the attached
Agency's Post-
Hearing Comments upon the persons to whom they are directed, by placing a copy of
each in an envelope addressed to
:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph, Suite 11-500
Chicago, Illinois 60601
(First Class Mail)
Bill Richardson
General Counsel
Illinois Dept. of Natural Resources
'
One Natural Resources Way
Springfield, Illinois 62702-1271
(First Class Mail)
Matt Dunn
Amy Antoniolli, Hearing Officer
Environmental Bureau Chief
Illinois Pollution Control Board
Office of the Attorney General
James R. Thompson Center
James R
..Thompson Center
100-W
.. Randolph, Suite 11-500
100 W. Randolph, 12
t1i
Floor
Chicago, Illinois 60601
Chicago, Illinois 60601
(First Class Mail)
(First Class Mail)
(Attached Service List - First Class Mail)
and mailing them from Springfield, Illinois on June , 2006, with sufficient postage
affixed as indicated above
.
SUBSCRIBED AND SWORN TO BEFORE ME
ThisA~
day of ,
(
Y't-
, 2006 .
Notary Public
a
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OFFICIAL SEAL
4
i. BRENDA BOEHNER
;
NOTARY PUBLIC, STATE OF IWNOIS $
A11 COMMISSION EXPIRES 11 J-2000 t
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THIS FILING SUBMITTED ON RECYCLED PAPER
Printing Service List
.
.
.
.
Page I of 1
Total number of participants : 9
http://www.ipcb.state. il.us/cool/external/casenotifyNew.asp?caseid=12877¬ifytype=Se
.
.. 6/23/2006
Party Name
Role
City & State Phone/Fax
IEPA
1021 North Grand
Springfield
217/782
Avenue East
IL 62794-
5544
Petitioner
P.O. Box 19276
9276
217/782-
Mark Wright, Assistant Counsel
Kimberly A. Geving, Assistant Counsel
Stefanie N . Diers, Assistant Counsel
9807
Sidley Austin LLP
312/853-
One South Dearborn
Chicago
7000
Interested Party
Suite 2800
IL 60603
312/853-
William G . Dickett
7036
217/523-
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield
4942
Interested Party
IL 62703
217/523-
Katherine D. Hodge, Executive Director
4948
312/726-
Chicago Legal Clinic, Inc
.
205 West Monroe Street, Chicago
2938
Interested Party
4th Floor
II 60606
312/726-
Keith I. Harley
5206
Andrews Environmental Engineering, Inc
.
3535 Mayflower Blvd
Springfield
217-787-
Interested Party
Kenneth W. Liss L.P.G
.
Illinois De artment of Public_Health, Division of
IL 62707
2334
Environmental Health
525 West Jefferson
Springfield
Interested Party
Eric Portz
Jerry Dalsin
Street
IL 62761
