ILLINOIS POLLUTION CONTROL BOARD
June 1, 2006
IN THE MATTER OF:
PROPOSED AMENDMENTS TO:
REGULATION OF PETROLEUM LEAKING
UNDERGROUND STORAGE TANKS (35
ILL. ADM. CODE 732)
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R04-22(B)
(UST Rulemaking)
IN THE MATTER OF:
PROPOSED AMENDMENTS TO:
REGULATION OF PETROLEUM LEAKING
UNDERGROUND STORAGE TANKS (35
ILL. ADM. CODE 734)
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R04-23(B)
(UST Rulemaking)
Consolidated
Proposed Rule. Dismissal.
OPINION AND ORDER OF THE BOARD (by G.T. Girard):
This rulemaking began in January 2004, when the Illinois Environmental Protection
Agency (Agency) filed with the Board amendments and a new part to the Board’s regulations
governing cleanup and reimbursement of leaking underground storage tanks. The Board adopted
certain parts of the proposal (Proposed Amendments to Leaking Underground Storage Tanks (35
Ill. Adm. Code 732, 734), R04-22, 23 (Subdocket A) (Feb. 16, 2006)) and opened this Subdocket
B. The Board held an additional hearing in this proceeding and received several more
comments. However, the Board today finds that the record does not support proceeding with a
rule defining the scope of work and setting maximum lump sum payment amounts. The Board
therefore dismisses the proposal and closes the docket. This opinion summarizes the procedural
background and proposal for public comment in this subdocket. Next the Board discusses the
decision not to proceed with this rulemaking.
PROCEDURAL BACKGROUND
On January 13, 2004, the Agency filed two proposals for rulemaking, which amend the
Board’s regulations governing the underground storage tank (UST) program. On January 22,
2004, the Board accepted and consolidated the proposals for hearing. The Board proceeded to
first notice on February 17, 2005. On December 1, 2005, the Board adopted a proposal for
second notice and opened this Subdocket B. In the Board’s December 1, 2005 opinion, the
Board stated that the issues pertaining to the professional consulting services provisions would
be addressed in this subdocket. Specifically, the Board was to address issues concerning the
scope of work associated with maximum lump sum payments as well as the maximum lump sum
payment amounts proposed at first notice in Subdocket A.
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On December 13, 2005, the Board received notice that the Joint Committee on
Administrative Rules (JCAR) accepted the second notice in Subdocket A on December 9, 2005.
JCAR considered the rule at the January 18, 2006 JCAR meeting. JCAR issued a
recommendation to the Board and a certificate of no objection to the rule. JCAR’s
recommendation was that the Board continue to examine certain issues in the Subdocket B
proceeding. JCAR specifically recommended that “the Board add to the issues it is addressing in
its dockets R04-22(B) and R04-23(B) the costs that are ineligible for payment from the
Underground Storage Tank Fund stated in” 35 Ill. Adm. Code 732.606(ddd) and (eee) and
734.630(aaa) and (bbb).
On February 16, 2006, the Board adopted Subdocket A for final notice.
See
30
Ill. Reg.
4928. The rules became effective on March 1, 2006.
Id
. The Board directed the hearing officer
to include the issues identified by JCAR as topics for the hearing to be held in Subdocket B.
On January 5, 2006, the Board adopted a proposal for public comment, which included
proposed language on scope of work associated with maximum lump sum payments as well as
the maximum lump sum payment amounts proposed at first notice in Subdocket A.
On March 23, 2006, a hearing was held before Board Hearing Officer Marie Tipsord
(Tr.9).
1
At the close of hearing, a May 8, 2006 deadline was set for public comments to be filed.
The Board received additional public comments from CW
3
M Company (CW
3
M) (PC 73),
United Science Industries (USI) (PC 74), CSD Environmental Services, Inc. (CSD) (PC 75),
Rapps Engineering & Applied Science (Rapps) (PC 76), the Agency (PC 77), and Professionals
of Illinois for the Protection of the Environment (PIPE) (PC 78).
PROPOSED LANGUAGE
In the January 5, 2006 opinion and order, the Board developed a proposal for public
comment, which included language for scopes of work and maximum lump sum payments. The
following paragraphs briefly summarize the Board’s action and the issues the Board sought
additional comment on during this proceeding.
Scope of Work
The Board received alternate proposals addressing scope of work and maximum lump
sum payments from American Consulting Engineers Council of Illinois (ACECI), PIPE, CW
3
M,
and USI. Exh. 74, Attach. B; PC 6; PC 63; and Exh. 109. The Board used those alternative
proposals as a basis to develop language for a proposal for public comment. Specifically, the
Board used the proposal from the
Ad Hoc
Work Group
2
as a starting point for developing scopes
of work for professional consulting services.
1
This was the seventh group of hearings to be held in this proceeding and the ninth day of
hearings.
2
ACECI and Illinois Petroleum Marketer’s Association at the request of the Agency formed the
Ad Hoc
Work Group on LUST Reimbursement Reform. The
Ad Hoc
Group was comprised of
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The Board proposed the inclusion of scopes of work for all the tasks for which the
Ad
Hoc
Work Group or PIPE developed a scope of work. In doing so, the Board noted that the main
purpose of the proposed revisions was to seek additional comments and testimony from all the
participants, including the Agency to develop a workable rule. In this regard, the Board noted
that a few issues concerning scope of work still need to be resolved before the Board could
finalize a rule that include scopes of work. These included adequacy of the proposed scope of
work and whether scope of work should be part of the Board rules or the Agency’s
implementation rules.
Maximum Lump Sum Payments
Because of the copious number of issues that needed to be resolved before maximum
lump sum payment amounts could be developed, the Board’s proposed language repeated the
maximum lump sum payment amounts first proposed by the Agency. The Board also identified
three issues for further discussion concerning the maximum lump sum payment amounts. Those
issues are:
1. Should professional consulting services be reimbursed on a time and material
basis;
2. How much personnel time is required to complete maximum lump sum payment
tasks; and
3. What should be the average hourly rates for professional consulting services.
The Board specifically sought additional information from the participants on these issues.
DISCUSSION
The following discussion will first address maximum lump sum payment and scopes of
work for professional consulting. Next the Board will briefly discuss the JCAR
recommendation.
Professional Consulting Services
The Board received prefiled testimony for the March 23, 2006 hearing from several
participants in this rulemaking. Specifically, the Board received testimony from: (1) Agency,
(2) PIPE, (3) CW
3
M, (4) CSD, (5) USI. As noted above, the Board also received comments
from all these participants as well as from Rapps. The record in this proceeding includes
hundreds of pages of testimony, comments and exhibits focusing on the issues surrounding
member firms from the two organizations having substantial working experience with the UST
program, including reimbursement, as the UST program has actually been implemented over the
last ten years. Exh. 74 at 3.
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reimbursement of professional consulting fees. In Subdocket B, the participants have added
hundreds more.
The Board has reviewed the comments and testimony from all the participants.
Unfortunately, the additional information is often repetitive, with very little new information
added to the record. In essence, the Agency continues to support use of maximum lump sum
payment amounts for reimbursement of professional services, while the industry participants
argue that more information must be gathered before maximum lump sum payments can be
developed.
The Board has extensively addressed the issues surrounding reimbursement for
professional services in each of the opinions and orders issued in this rulemaking.
See e.g.
,
Proposed Amendments to Leaking Underground Storage Tanks (35 Ill. Adm. Code 732, 734),
R04-22, 23 (Feb. 17, 2005) (Subdocket A); Subdocket A (Feb. 16, 2006); and Proposed
Amendments to Leaking Underground Storage Tanks (35 Ill. Adm. Code 732, 734), R04-22,
23B (Jan. 5, 2006). The Board specifically opened this subdocket to continue to examine the
issue of reimbursement on a maximum lump sum basis for professional consulting fees. The
Board found that by opening the subdocket “any negative economic impact [of the rules adopted
in Subdocket A] has been minimized by removal of the professional service lump sum payments
to Subdocket B.” R04-22A slip op at 18 (Feb. 16, 2006).
After careful review of the additional testimony and comments, the Board finds that there
is insufficient information in the record to demonstrate that the proposed maximum lump sum
payments are economically reasonable. Furthermore, the record does not include adequate
information to allow the Board to develop scopes of work and maximum lump sum payments
that are economically reasonable. Therefore, at this time, the Board finds that the record is
insufficient to proceed with a rulemaking establishing scopes of work and maximum lump sum
payment amounts for professional consulting fees.
The Board does not believe that additional hearings or comment periods will cure the
deficiencies in the record at this time. Thus, the Board finds that this subdocket should be
dismissed and the record closed. The Board encourages the participants to continue to examine
this issue through the LUST Advisory Committee.
JCAR Recommendation
In response to the recommendation of JCAR, the Board asked the participants for
additional comment on including the following as ineligible costs: (1) the onsite cleanup above
Tier 2 remediation objectives developed in accordance with 35 Ill. Adm. Code 742; and, (2)
remediation of groundwater if a groundwater ordinance already exists as an institutional control.
In addition to asking the participants to discuss this in prefiled testimony (
see
hearing officer
order of February 16, 2006), the hearing officer asked several participants the questions at
hearing (
see e.g.
Tr.9 at 94, 99, 141). The Board appreciates the additional comments; however,
the Board finds nothing in the additional information, which supports a change to the rule.
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CONCLUSION
The Board finds that the record does not support proceeding with maximum lump sum
payment amounts for professional consulting fees associated with the cleanup of sites with
leaking underground storage tanks. The Board further finds that the record lacks support for
proceeding with scopes of work. Therefore, the Board dismisses this proceeding and closes the
docket.
ORDER
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above opinion and order on June 1, 2006, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
