RECEIVEDCLERK’S
OFFICE
MAY 03 2004
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~~d
IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
)
R04-22
REGULATION OF PETROLEUM
)
(Rulemaking
-
UST)
LEAKING UNDERGROUND STORAGE
)
TANKS
35
ILL. ADM. CODE 732
)
iN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
)
R04-23
REGULATION OF PETROLEUM
)
(Rulemaking
-
UST)
LEAKING UNDERGROUND STORAGE
)
Consolidated
TANKS
35
ILL. ADM. CODE 734
)
NOTICE OF FILING
TO:
Ms. DorothyM. Gunn
Ms. Marie E. Tipsord
Clerk ofthe Board
Illinois Pollution Control Board
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
100 West Randolph
Suite 11-500
Suite 11-500
Chicago, Illinois 60601
Chicago, Illinois 60601
(VIA AIRBORNE EXPRESS)
(VIA
AIRBORNE EXPRESS)
(PERSONS ON ATTACHED SERVICE LIST)
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk of the
Illinois Pollution Control Board an original and nine copies each ofILLINOIS
ENVIRONMENTAL REGULATORY GROUP’S
RESPONSE
TO THE ILLINOIS
THIS FILING SUBMITTED ON RECYCLED PAPER
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGUL
ORY GROUP,
By:
One o Its Attorn ys
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217)
523-4900
Robert A. Messina
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217)
523-4942
ENVIRONMENTAL PROTECTION AGENCY’S MOTION FOR THE
ADOPTION OF EMERGENCY RULES,
copies ofwhich are herewith served upon
you.
Dated: April 30, 2004
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certify that Ihave served the attached
ILLINOIS ENVIRONMENTAL REGULATORY GROUP’S RESPONSE
TO THE
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S MOTION FOR
THE
ADOPTION OF EMERGENCY RULES
upon:
Ms. Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Mr. Scott Anderson
Black & Veatch
101 North Wacker Drive
Suite 1100
Chicago, Illinois 60606
Mr. William G. Dickett
Sidley Austin Brown & Wood
Bank One Plaza
10 South Dearborn Street
Chicago, Illinois 60603
Jonathan Fun, Esq.
General Counsel
Illinois Department ofNatural Resources
One Natural Resource Way
Springfield, Illinois 62702-1271
Mr. Steven Gobelman
Illinois Department of Transportation
2300 Dirksen Parkway
Springfield, Illinois 62764
Ms. Jennifer Goodman
Herlacher Angleton Associates, LLC
522 Belle Street
Alton, Illinois 62002
Ms. Marie E. Tipsord
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Richard Andros, P.E.
Environmental Consulting &
Engineering, Inc.
551 Roosevelt Road, #309
Glen Ellyn, Illinois 60137
Terrence W. Dixon, P.G.
MACTEC Engineering &
Consulting, Inc.
8901 North Industrial Road
Peoria, Illinois 61615
Ms. Lisa M. Frede
Director Regulatory Affairs
Chemical Industry Council ofIllinois
9801 West Higgins Road, Suite
515
Rosemont, Illinois 60018
Mr. Collin W. Gray
SEECO Environmental Services, Inc.
7350 Duvon Drive
Tinley Park, Illinois 60477
Mr. Thomas L. Herlacher
Herlacher Angleton Associates, LLC
8731 Bluff Road
Waterloo, Illinois 62298
Mr. William J. Fleischli
President
Illinois Petroleum Marketers Association
Post Office Box 12020
112 West Cook
Springfield, Illinois 6279 1-2020
Thomas Guist, P.E.
Atwell-Hick, Inc.
940 East Diehi Road
Suite 100
Naperville, Illinois
60563
Joseph M. Kelly, P.E.
ChiefOperating Officer
United Science Industries, Inc.
Post Office Box 360
Woodlawn, Illinois 62898
Ms. Barbara Magel
Karaganis & White, Ltd.
414 North Orleans
Suite 810
Chicago, Illinois 60610
Monte M. Nienkerk, P.G.
Clayton Group Services, Inc.
3140 Finley Road
Downers Grove, Illinois 60515
David L. Rieser, Esq.
McGuire Woods, LLC
77 West Wacker
Suite 4400
Chicago, Illinois 60601
Michael W. Rapps, P.E.
Rapps Engineering & Applied Science
821 South Durkin Drive
Springfield, Illinois 62704
Joel J. Sternstein, Esq.
Office ofthe Attorney General
188 West Randolph Street, 20th Floor
Chicago, Illinois 60601
Kyle Rominger, Esq.
Illinois Environmental Protection Agency
Division ofLegal Counsel
1021 North Grand Avenue East
Post Office Box 19276
Springfield, Illinois 62794-9276
Mr. Kenneth James
Carlson Environmental, Inc.
65
East Wacker Place
Suite 1500
Chicago, Illinois 60601
Mr. Glenn Lee
Manager
Wendler Engineering Services, Inc.
1770 West State Street
Sycamore, Illinois 60178
Mr. George F. Moncek
United Environmental Consultants, Inc.
119 East Palatine Road
Suite 101
Palatine, Illinois 60067
Mr. Brian Porter
Terracon
870 40th Avenue
Bettendorf, Iowa 52722
Mr. Doug Clay
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Post Office Box 19276
Springfield, Illinois 62794-9276
Mr. Kurt Stepping
PDC Laboratories
2231 West Altorfer Drive
Peoria, Illinois
61615
Mr. Joe Truesdale
CSD Environmental Services, Inc.
2220 Yale Boulevard
Springfield, Illinois 62703
•Mr. Matthew J. Dunn
Division Chief
Office ofthe Attorney General
Environmental Bureau
188 West Randolph, 20th Floor
Chicago, Illinois 60601
Mr. JeffWienhoff
CW3M Company, Inc.
701 South Grand Avenue West
Springfield, Illinois 62704
Gina Roccaforte, Esq.
Assistant Counsel
1021 North Grand Avenue East
Post Office Box 19276
Springfield, Illinois 62794-9276
Mr. Craig S. Gocker
Environmental Management &
Technologies
2012 West College Avenue
Suite 208
Normal, Illinois 61761
James E. Huff, P.E.
Huff & Huff, Inc.
512 West Burlington Avenue
Suite 100
LaGrange, Illinois 60525
Claire A. Manning, Esq.
Posegate & Denes, P.C.
111 North Sixth Street
Springfield, Illinois 62701
Mr. Ron Dye
President
CORE Geological Services, Inc.
2621 Monetga, Suite C
Springfield, Illinois 62704
Mr. Dan King
Team Leader
United Science Industries, Inc.
6295
East Illinois Hwy 15
Woodlawn, Illinois 62898
Ms. Brittan Bolin
Illinois Society of Professional Engineers
300 West Edwards
Springfield, Illinois 62704
Carolyn S. Hesse, Esq.
Barnes & Thomburg
1 North Wacker Drive
Suite 4400
Chicago, Illinois 60606
Mr. Joe Kelly
VP Engineering
EcoDigital Development LLC
Post Office Box 360
6295 East Illinois Hwy 15
Woodlawn, Illinois 62898
Ms. Melanie LoPiccolo
Office Manager
Marlin Environmental, Inc.
1000 West Spring Street
South Elgin, Illinois 60177
A.J. Pavlick
Great Lakes Analytical
1380 Busch Parkway
Buffalo Grove, Illinois 60089
Mr. Jarrett Thomas
Vice President
Suburban Laboratories, Inc.
4140 Litt Drive
Hillside, Illinois 60162
Tina Archer, Esq.
Greensfelder, Hemker & Gale
10 South Broadway
Suite 2000
St. Louis, Missouri 63104
Mr. Ken Miller
Regional Manager
American Environmental Corp.
3700 West Grand Avenue, Suite A
Springfield, Illinois 62707
Mr. Daniel J. Goodwin
SECOR International, Inc.
400 Bruns Lane
Springfield, Illinois 62702
Mr. Eric Minder
Sr. Environmental Engineer
Caterpillar, Inc.
100 NE Adams Street
Peoria, Illinois 61629
Erin Curley
Environmental Department Manager
Midwest Engineering Services, Inc.
4243 West 166th Street
Oak Forest, Illinois 60452
Mr. Russ Goodiel
Project Manager
Applied Environmental Solution, Inc.
Post Office Box 1225
Centralia, Illinois 62801
Ms. Kim Robinson
Illinois Society ofProfessional Engineers
300 West Edwards
Springfield, Illinois 62704
Mr. Daniel Caplice
K-Plus Environmental
600 West Van Buren Street
Suite 1000
Chicago, Illinois 60607
by depositing said documents in the United States Mail, postageprepaid, in Springfield,
Illinois, on April 30, 2004.
IERG:OO1/R DocIFi1ICOS
—
R04-22
—
Response to Motion
BEFORE THE ILLINOIS POLLUTION
• INTIEMATTEROF:
•
)
PROPOSED AMENDMENTS TO
)
REGULATION OF PETROLEUM
)
LEAKING UNDERGROUND STORAGE
)
TANKS (35 ILL. ADM. CODE PART 732)
)
_________________________________________________________________________________)
IN THE MATTER OF:
PROPOSED AMENDMENTS TO
REGULATION OF PETROLEUM
LEAKING UNDERGROUND STORAGE
TANKS (35 ILL. ADM. CODE PART 734)
ILLINOIS ENVIRONMENTAL REGULATORY GROUP’S RESPONSE TO
THE
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S
MOTION FOR THE ADOPTION OF EMERGENCY RULES
NOW COMES
the
ILLINOIS
ENVIRONMENTAL
REGULATORY GROUP.
(“IERG”) by and through one of its attorneys, Robert A. Messina, pursuant to 35 Ill.
Admin. Code
§
101.500(d), and for its Response to the Illinois Environmental Protection
Agency’s (“IEPA”) Motion for the Adoption of Emergency Rules, states as follows:
I.
Background
• IERG is a not-for-profit Illinois Corporation composed of 65 member companies
engaged in industry, commerce, manufacturing, agriculture, trade, transportation or other
related activities, and which persons, entities or businesses are regulated by governmental
agencies which promulgate, administer or enforce environmental laws, regulations, rules
or policies. IERG was organized to promote and advance the interests of its members
before governmental agencies, such as the United States Environmental Protection
Agency and the Illinois Environmental Protection Agency (“IEPA” or “Agency”), and
RECEIVED
CONTROL
BOARDCLERKS OFFICE
MAY 032004
STATE OF ILLINOIS
R04-22
Pollution
Control Board
(Rulemaking-Land)
R04-23
(Rulemaking-Land)
)
)
)
)
)
)
before bodies such as the Illinois Pollution Control Board (“Board”). IERG is also an
affiliate of the Illinois State Chamber ofCommerce.
IERG members include Illinois companies from a variety ofindustrial groups,
including the chemical, food, pharmaceutical, transportation, equipment, oil and utilities
areas. These companies and other IERG members own and operate underground storage
tanks and, therefore, are potentially regulated by the Board’s Leaking Underground
Storage Tank Rules (“LUST Rules”) that are the subject of these two consolidated
rulemakings. Furthermore, IERG members may be required to perform corrective action
activities, which may lead to the submittal to the IEPA ofassociated costs fOr
reimbursement. Therefore, IERG’s member companies have a vital interest in this
matter.
On January 13, 2004, IEPA filed these proposed amendments to the LUST Rules
with the Board. These rules included changes necessitatedby several recent changes to
the law enacted by Illinois’ General Assembly, and also include changes to certain
corrective action measures, procedures for seeking payment from the Underground
Storage Tank Fund, and regarding releases reported after a specified date. On March
15,
2004, the Board held its first hearing on the consolidated proposal. This proposal has not
yet proceeded to First Notice.
Then, on April 1, 2004, in a separate matter before the Board, the IEPA’s internal
“Rate Sheets” were determined by the Board to constitute an improperly promulgated
rule and therefore, was invalid. Illinois Ayers Oil Co., PCB 03-214 (April 1, 2004). The
“Rate Sheets” were internal documents generated and used by the IEPA to set
standardized reimbursement amounts for certain corrective action activities.
2
This brings us to the matter at hand. On April 16, 2004, IEPA filed a Motion for
the Adoption ofEmergency Rules, which requested the Board to adopt the proposed
LUST Rules, including changes proposed in Errata Sheet 1 and additional amendments
set forth in its Motion. It is the Agency’s contention that without these “Rate Sheets,” it
is unable to determine whether costs submitted to the Agency forreimbursement after the
Ayers decision are reasonable, thereby rendering it impossible to review budgets and
applications for reimbursement. The standstill that would result, the IEPA argues,
constitutes an emergency in that the remediation ofLUST sites would grind to a halt,
leaving unremediated sites ofcontamination throughout the State. Finally, by adopting
these emergency rules, the BOard would allow the IEPA to continue to reimburse costs,
pursuant to the terms ofits Rate Sheets, during the pendency of the consolidated
rulemakings currently before the Board.
II.
Emergency Rulemakings
According to Section 27(c) .ofthe Illinois Environmental Protection Act (“Act”),
if the Board “finds that a situation exists which reasonably constitutes a threat to the
public interest, safety or welfare, the Board may adopt regulations pursuant to and in
accordance with Section
5-45
ofthe Illinois Administrative Procedure Act.” 415 ILCS
§
5/27(c).
Case law and Board opinions generally discuss whether the proposed emergency
rulemaking meets the definition of“emergency” within the Illinois Administrative
Procedure Act (“IAPA”). Such a determination is typically made after factoring in the
goals ofthe proposed emergency rulemaking in accordance with the purpose and
sufficiency ofthe current rules or environmental provisions, legislative determinations
with regard to these regulations, legislative policy considerations, whether the rulemaking
3
alleviates an administrative need, whether the situation necessitates removal from notice
and comment procedures, the interests ofthe public, and the concerns ofthe State.
III.
Discussion
While IERG does not necessarily oppose the adoption of the “unit cost” rules as
proposed by the Agency in this consolidated proceeding, it does have a concern regarding
the Board’s authority to adopt these rules in an emergency rulemaking proceeding. IERG
believes the administrative justifications propounded by the IEPA likely do not rise to the
level of an “emergency” so as to constitute a threat to public interest, safety, or welfare.
There are numerous cases that discuss the justification that must be shown before
properly adopting emergency rules. In Senn Park, a case strikingly similar to the present
matter, the appropriateness ofan emergency rulemaking is at issue. In that matter, the
plaintiff requested reimbursement ofMedicaid services in accordance with an “inflation-
update” procedure rather than a new procedure the Department ofPublic Aid adopted
through emergency rulemaking.. Senn ParkNursing Center v. Jeffrey C. Miller, 104 Ill.
2d 169, 174, 470 N.E.2d 1029, 1032 (Ill. 1984). In that instance, the Department had a
similarly nuanced claim ofemergency
—
the rules dealt with reimbursement ofcosts
associated with nursing home care for needy residents ofthe State. An emergenôy was
present, the Department argued, because failure to adopt the rules would jeopardize
Federal matching funds and, possibly, the ability of the State to subsidize the care of its
most disadvantaged citizens.
As in the matter currently before the Board, Senn Park involved a reimbursement
procedure that the appellate court determinedwas a “rule” within the meaning of the
IAPA, that was not published in accordance with the IAPA or the Federal notice and
4
comment regulations, and was therefore invalid. Senn Park, 104 Ill. 2d at 175. Also,
similar to the current matter, the State agency subsequently enacted an emergency rule to
address the court’s ruling. 14L The plaintiff in Senn Park argued that the emergency rule
was void because there was no emergency as defined in the IAPA. The appellate court
agreed and found that the emergency “was the result ofan avoidable administrative
failure to properly enact a rule in accordance with statutory requirements, and the reasons
given by defendant in support ofhis finding ofan emergency are all tainted by this fact.”
Senn Park, 104 Ill. 2d at 184. On appeal, the Supreme Court ofIllinois affirmed this
decision, finding no emergency within the meaning of 5 ILCS
§
100/5-45. j~at 186.
Also, In Citizens, petitioners challenged the adoption ofemergency rules
regarding implementation of Section 3 9(h) of the Act arguing that there was no authority
to adopt the rulemaking because there was no emergency pursuant to
5
ILCS
§
100/5-45.
Citizens for a Better Environment v. The Pollution Control Board, 152 Iii. App. 3d 105,
504 N.E.2d 16.6 (ist Dist. 1987). The appellate courtin Citizens stated “the need to adopt
emergency rules in order to alleviate an administrative need, which, by itself, does not
threatenthe public interest, safety, or welfare, does not constitute an ‘emergency.”
Citizens, 152 Ill. App. 3d at 109~Further, in Citizens, the court noted the Board realized
that the administrative problem couldhave been prevented and. that rules should have
been promulgated years before.
I4~
at 110.
Senn Park and Citizens provide meaningful guidance to the Board with respect to
what constitutes an emergency for the purpose of the IAPA and when emergency
rulemaking is appropriate. IERG believes the justifications propounded by the IEPA
likely do not rise to the level of an “emergency” so as to constitute a threat to public
5
interest, safety, or welfare. The best course of action for the IEPA to follow may well be,
in the interim, to rely upon its years of experience in determining the reasonableness of
corrective action costs in reviewing budgets and applications for reimbursement. At the
same time, the IEPA could seek expedited handling ofthe current consolidated before the
Board.
WHEREFORE, the ILLINOIS ENVIRONMENTAL REGULATORY GROUP
respectfully prays that the Illinois Pollution Control Board deny the Illinois
Environmental Protection Agency’s Motion for the Adoption ofEmergency Rules.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
By:_________________
Robert A. Messina
Dated: April 30, 2004
Robert A. Messina
General Counsel
ILLINOIS ENVIRONMENTAL REGULATORY GROUP
3150 Roland Avenue
Springfield, Illinois 62703
(217) 523-4942
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
6
