RECEIVED

BEFORE THE

BOAR~~

02

zaoi

CT

ERK’S OFFICE

ILLINOIS POLLUTION

CONTROL

IN TIlE MATTER OF:

)

STAiE OF

ILLINOIS

)

Pollution

Control Board

AMENDMENTS TO REGULATION OF

)

RO1-26

PETROLEUM LEAKING UNDERGROUND

)

(Rulemaking

-

Land)

STORAGE TANKS:

)

A

c

35 ILL.ADM. Code 732

)

/

NOTICE OF FILING

TO:

Attached Service List

PLEASE

TAKE

NOTICE

that

on this date the undersigned caused to

be

filed

with the Clerk

of the Illinois

Pollution Control Board,

The Illinois Petroleum Council’s Post

Hearing Comments, a copy ofwhich is attached hereto and hereby served upon you.

Dated this 2ndth day ofMay, 2001.

Respectfully submitted,

ILLINOIS PETROLEUM COUNCIL

ROSS &

HARDIES

David L. Rieser, Esq.

Brian Marquez, Esq.

150 N. Michigan Avenue,

Ste. 2500

Chicago, Illinois 60601

(312) 558-1000

---

RECEiVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARI~L~S

OFFICE

!~Af\Y

0

%

2001

IN THE MATTER OF:

)

STATE OF

lLL.W~OIS

PETROLEUM LEAKING UNDERGROUND

pollution

controi Board

AMENDMENTS TO REGULATION

OF

)

ROl-26

)

(Rulemaking

-

Land)

STORAGE TANKS:

)

35

ILL. ADM. CODE 732

)

THE ILLINOIS PETROLEUM COUNCIL’S

POST HEARING COMMENTS

The Illinois Petroleum

Council

(“IPC”), by and through

its

attorneys Ross

&

Hardies,

files these comments

in

response to the hearings held

before

the Pollution Control Board

regarding the above rulemaking. As it stated in its testimony, the IPC generally agrees with the

proposal presented by the Illinois Environmental Protection Agency (“IEPA”) and believes that

most ofthe changes will improve the IEPA’s UndergroundStorage Tank (“UST”)program. The

IPC testified,

however, that the IEPA’s proposal regarding off-site access should

be

handled

differently and requests that the Board adopt the

IPC’s proposed

language

instead

of

that

proposed by the IEPA.

In its

initial

Statement

of Reasons and

its

draft regulations, the IEPA proposed

that the Board delete and add language

regarding

the issuance

of No Further Remediation

(“NFR”) letters at high prioritysites when the UST owner or operator had not been able to obtain

access to offsite

properties potentially

impacted by the UST

release.

The Board’s rules had

previously

allowed the issuance

of

NFR

letter to the owner/operator’s site when the

owner/operator had documented that it had been unable to obtain access to the off-site property.

35

Ill. Adm.

Code 732.404(b)(l)(A).

The IEPA modified its own policy so that it currently will

not

issue

NFR

letters

with regard to the owner/operator’s property if it cannot document that

THIS

FILING IS SUBMITTED

ON RECYCLED PAPER

\OOOOX\OOOOX\CH192696.DOC.I

---

potentially

impacted off-site properties are remediated as well, even

if

that owner/operator

cannot obtain access.

(T. 84,

85,

April

3,

2001).

In its

Statement ofReasons and the prefiled

testimony ofDoug Clay (Exhibit

1) the JEPA indicated that it wanted to modify this rule because

of

the

concern

that owner/operators would collude with off-site property owners to avoid

remediation and to provide more specific criteria for how owner/operators should

document that

they used their best efforts to

obtain access to the off-site properties.

The

language

the

IEPA proposed went much further.

In

Section

732.411,

the

IEPA sought to mandate the exact language of the letter that an owner/operator would

send to

obtain off site access

by

requiring the owner/operator to make numerous representations and

legal conclusions. The IEPA also proposed that even if the owner/operator used its best efforts to

obtain

access

by

sending the mandated letter, that the IEPA could

still

refuse to

issue

an

NFR

letter to the owner/operator for its own site based on generalized site conditions.

Thus, the IEPA

significantly

toughened

the required letter but at the same time

removed

any

standards

as to

whether it would

issue

an NFR

letter even for property that had been documented to meet the

Board’sstandards.

In its

testimony and in response to questions,

this issue became far murkier. The

IEPA acknowledged that there had been very few instances ofcollusion and that their proposed

language

would not address collusion in any event.

(T.

89-90,

April

3,

200 l)The

IEPA

also

acknowledged that without proposing language to the

Board, it had

already

modified it policy

and practice to implement what

is

now its

proposed language.

(T.

84-85, April

3,

2001) Doug

Clay acknowledged that the IEPA

previously

issued

NFR

letters even though the owner

or

operator had not

remediated

off site areas and then halted the

practice,

that the IEPA had

announced the change on

its

website and then withdrew the announcement, but was continuing

2

---

to enforce the policy in

its

response to

request for NER letters.

(T.

97-99, April

3,

2001)

Mr.

Clay stated that the reason for this IEPA policy change was a reinterpretation ofthe Act by the

IEPA

(T.

85,

April 3, 2001) which was not included for the Board’sconsideration in the IEPA’s

Statement ofReasons or its testimony.

In

evaluating

modifications

to existing

regulations,

the Board

should always

examine the actual experience and practice of the IEPA and the regulated community to

ensure

that the

proposed

change addresses

and

solves

an identified

problem

in the

regulation’s

implementation. It

is

not clear that the Agency has

made a complete case for

supporting

this

particular modification.

Its

basis

for changing its policy apparently relates primarily to a legal

concern that it

has

not

shared

with the Board in this

proceeding.

The IEPA

advanced

no

pragmatic reasons for this modification and it is difficult to discern any from the record.

In

discussing

this

issue

with the IEPA, the IPC has

been

willing

to

support

reasonable modifications to address this

issue.

As the IPC’s witness,

Mr. David

Piotrowski,

pointed out in his testimony,

however, there are significant problems with the JEPA’s proposal.

First,

the IEPA proposes that the Board mandate a draconian “one size fits all” letter to

gain

access to the off site property. As Mr. Piotrowski testified, the letter is more confrontational and

alarming than useful. He testified that in

his

extremely broad experience the

letter should

be

tailored to fit the circumstances of the recipient, it should

seek

to educate the recipient, and

it

should

not make

inaccurate

or legally insupportable

statements.

(T.86,

April

3,

2001) The IPC

proposed

language that

is

broader and more suited to modification

according

to the

circumstances.

Second,

the IEPA

proposed no

criteria

whatsoever for

it to determine how it

would issue a NFR letter when access had been denied. The JEPA’sproposal provides a laundry

3

---

list

of information

regarding the site that the IEPA will consider but provides no threshold

criteria

as to what site conditions will require the JEPA to deny a NFR

letter unless off site

conditions are evaluated. In the current Board regulations, the Agency

is authorized to issue NFR

letters

on

a showing that the owner/operator made best efforts

to obtain

access

and there

is

no

provision

for considering the extent of the

off site impact. These same regulations allow the

issuance of NFR letters without consideration of off site impact in

any

event, depending on the

classification ofthe site. In contrast, the IPC proposes very basic and objective criteria that focus

on the actual and significant off site impacts.

This information

should

be

available from early

action activities which require the owner/operator to remove free product and to mitigate hazards

presented by the transport of explosive vapors through subsurface structures.

35

Ill.

Adm. Code

73 2.202.

The IPC’sproposed

criteria will provide an objective basis

for IEPA decisionmaking

and a standard ofreview for appeals ofthis decision to the Board.

In short,

the IPC

is

willing

to

support

the IEPA

in

changing this regulation, but

the change should be based

on

experience in dealing with the

off site landowners, it

should

provide criteria

so that the regulated community can be advised as to how these decisions

are

made

and it

should

provide a basis

for

appeal

in the

event that the IEPA’s decision

is

not

supported by the facts.

4

---

As always, the IPC appreciated the opportunity to present testimony to the Board

and to file these comments.

ILLTh.TOIS PETROLEUM COUNCIL

By:

Dated: May 2, 2001

ROSS &

HARDIES

David L. Rieser, Esq.

Brian Marquez, Esq.

150 North Michigan Ave.

Chicago, Illinois 60601

(312) 558-1000

5

---

CERTIFICATE OF SERVICE

The undersigned hereby certifies that he/she caused to be served

upon

the attached

service list the foregoing Illinois Petroleum Council’s Post Hearing Comments by

U.S.

Mail,

proper postage prepaid, on the 2nd day ofMay, 2001.

---

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