Current through Register Vol. 48, No. 38, September 20, 2024
a) An ordinance
adopted by a unit of local government that effectively prohibits the
installation of potable water supply wells (and the use of such wells) may be
used as an institutional control to meet the requirements of Section
742.320(d)
or
742.805(a)(3)
if the requirements of this Section are met.
A model ordinance is found in Appendix G. Ordinances prohibiting the
installation of potable water supply wells (and the use of such wells) that do
not expressly prohibit the installation of potable water supply wells (and the
use of such wells) by units of local government may be acceptable as
institutional controls if the requirements of this Section are met and a
Memorandum of Understanding (MOU) is entered into under subsection (i) of this
Section. For purposes of this Section, a unit of local government is considered
to be expressly prohibited from installing and using potable water supply wells
only if the unit of local government is included in the prohibition provision
by name. The prohibition required by this Section shall satisfy the following
requirements at a minimum:
1) The prohibition
shall not allow exceptions for potable water well installation and use other
than for the adopting unit of local government;
2) The prohibition shall apply at all depths
and shall not be limited to particular aquifers or other geologic
formations;
3) If the prohibition
does not apply everywhere within the boundaries of the unit of local
government, the limited area to which the prohibition applies shall be easily
identifiable and clearly defined by the ordinance (e.g., narrative descriptions
accompanied by maps with legends or labels showing prohibition boundaries, or
narrative descriptions using fixed, common reference points such as street
names). Boundaries of prohibitions limited by area shall be fixed by the terms
of the ordinance and shall not be subject to change without amending the
ordinance in which the prohibition has been adopted (e.g., no boundaries
defined with reference to zoning districts or the availability of the public
water supply); and
4) The
prohibition shall not in any way restrict or limit the Agency's approval of the
use of the ordinance as an institutional control pursuant to this Part (e.g.,
no restrictions based on remediation program participation, or no restrictions
on persons performing remediation within the prohibition area who may use the
ordinance).
b) A request
for approval of a local ordinance as an institutional control shall provide the
following:
1) A copy of the ordinance
restricting groundwater use certified by an official of the unit of local
government in which the site is located that it is a true and accurate copy of
the ordinance, unless the Agency and the unit of local government have entered
an agreement under subsection (i) of this Section, in which case the request
may alternatively reference the MOU. The ordinance must demonstrate that
potable use of groundwater from potable water supply wells is
prohibited;
2) A scaled map or maps
delineating the area and extent of groundwater contamination modeled above the
applicable remediation objectives including any measured data showing
concentrations of contaminants of concern in which the applicable remediation
objectives are exceeded;
3) A
scaled map delineating the boundaries of all properties under which groundwater
is located that exceeds the applicable groundwater remediation
objectives;
4) Information
identifying the current owners of each property identified in subsection
(b)(3); and
5) A copy of the
proposed written notification to the unit of local government that adopted the
ordinance and to the current owners identified in subsection (b)(4) that
includes the following information:
A) The
name and address of the unit of local government that adopted the
ordinance;
B) The ordinance's
citation;
C) A description of the
property being sent notice by adequate legal description, reference to a plat
showing the boundaries of the property, or accurate street address;
D) Identification of the party requesting to
use the groundwater ordinance as an institutional control, and a statement that
the party has requested approval from the Agency to use the ordinance as an
institutional control;
E) A
statement that use of the ordinance as an institutional control allows
contamination above groundwater ingestion remediation objectives to remain in
groundwater beneath the affected properties, and that the ordinance strictly
prohibits human and domestic consumption of the groundwater;
F) A statement as to the nature of the
release and response action with the site name, site address, and Agency site
number or Illinois inventory identification number; and
G) A statement that more information about
the remediation site may be obtained by contacting the party requesting the use
of the groundwater ordinance as an institutional control or by submitting a
FOIA request to the Agency.
c) Written notification proposed pursuant to
subsection (b)(5) must be sent to the unit of local government that adopted the
ordinance, as well as to all current property owners identified in subsection
(b)(4). Written proof that the notification was sent to the unit of local
government and the property owners shall be submitted to the Agency within 45
days from the date the Agency's no further remediation determination is
recorded. Such proof may consist of the return card from certified mail, return
receipt requested, a notarized certificate of service, or a notarized
affidavit.
d) Unless the Agency and
the unit of local government have entered into a MOU under subsection (i), the
current owner or successors in interest of a site who have received approval of
use of an ordinance as an institutional control under this Section shall:
1) Monitor activities of the unit of local
government relative to variance requests or changes in the ordinance relative
to the use of potable groundwater at properties identified in subsection
(b)(3); and
2) Notify the Agency of
any approved variance requests or ordinance changes within 30 days after the
date such action has been approved.
e) The information required in subsections
(b)(1) through (b)(5) and the Agency letter approving the groundwater
remediation objective shall be submitted to the unit of local government. Proof
that the information has been filed with the unit of local government shall be
provided to the Agency.
f) Any
ordinance or MOU used as an institutional control pursuant to this Section
shall be recorded in the Office of the Recorder or Registrar of Titles of the
county in which the site is located together with the instrument memorializing
the Agency's no further remediation determination pursuant to the specific
program within 45 days after receipt of the Agency's no further remediation
determination.
g) An institutional
control approved under this Section shall not become effective until officially
recorded in accordance with subsection (f). The person receiving the approval
shall obtain and submit to the Agency within 30 days after recording a copy of
the institutional control demonstrating that it has been recorded.
h) The following shall be grounds for
voidance of the ordinance as an institutional control and the instrument
memorializing the Agency's no further remediation determination:
1) Modification of the ordinance by the unit
of local government to allow potable use of groundwater;
2) Approval of a site-specific request, such
as a variance, to allow potable use of groundwater at a site identified in
subsection (b)(3);
3) Violation of
the terms of an institutional control recorded under Section
742.1005
or Section
742.1010;
or
4) Failure to provide
notification and proof of such notification pursuant to subsection
(c).
i) The Agency and a
unit of local government may enter into a MOU under this Section if the unit of
local government has adopted an ordinance satisfying subsection (a) and if the
requirements of this subsection are met. The MOU submitted to the Agency must
match the form and contain the same substance as the model in Appendix H and
shall include the following:
1) Identification
of the authority of the unit of local government to enter the MOU;
2) Identification of the legal boundaries, or
equivalent, under which the ordinance is applicable;
3) A certified copy of the
ordinance;
4) A commitment by the
unit of local government to notify the Agency of any variance requests or
proposed ordinance changes at least 30 days prior to the date the local
government is scheduled to take action on the request or proposed
change;
5) A commitment by the unit
of local government to maintain a registry of all sites within the unit of
local government that have received no further remediation determinations
pursuant to specific programs; and
6) If the ordinance does not expressly
prohibit the installation of potable water supply wells (and the use of such
wells) by units of local government, a commitment by the unit of local
government:
A) To review the registry of
sites established under subsection (i)(5) prior to siting potable water supply
wells within the area covered by the ordinance;
B) To determine whether the potential source
of potable water may be or has been affected by contamination left in place at
those sites; and
C) To take
whatever steps are necessary to ensure that the potential source of potable
water is protected from the contamination or treated before it is used as a
potable water supply.
j) A groundwater ordinance may not be used to
exclude the indoor inhalation exposure route.
