BSB

BRUCE

S. BONOZYK,

LTD.

RECEIVED

Q ~‘~‘SOFFICE

MM

2 1

2001

~t~wU~

ILLINOIS

Pollution

Control

Board

601

WEST

MONROE

STREET.

SPRINGFIELD,

IL

62704

TELEPHONE

(217k 525-0700 2’AX 217i 525-2171

March 20, 2001

Ms. Dorothy M. Gunn

Clerk ofthe Board

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite

11-500

Chicago, IL 60601

Via FedEx

-

Overnight

Re:

RO1-26 (Rulemaking-Land)

Dear Ms. Gunn:

Enclosed for filing in the above Rulemaking are one original andnine copies ofthe

following:

Appearance

Motion to

Oppose

Certain Proposed

Amendments of the

Environmental

Protection Agency’sProposal to Amend

35

Ill. Ad. Code 732

Memorandum ofLaw in Support ofthe Motion to Oppose Certain Proposed

Amendments of the Environmental Protection Agency’s Proposalto

Amend 35 Ill. Ad. Code 732

Said copies are provided with the Notice ofFiling and Certificate of Service.

Please file stamp the enclosed first page sheets for said documents and return them

in the enclosed self-addressed stamped envelope.

Thank you for your assistance.

Vety truly yours,

ice

Off

Bruce S. Bonezyk, P.E.

BSB:lew

cc:

Mr. David Kennedy, CECI

Mr. Gary Crites, ISPE

Enclosures

---

i~~ECEiVED

~

OFFICE

BEFORE THE POLLUTION CONTROL BOARD

MAR

2 t

2001

OF THE STATE OF ILLINOIS

)

)

PROPOSED AMENDMENTS TO

)

REGULATION OF PETROLEUM

)

LEAKING UNDERGROUND STORAGE

)

TANKS (35 ILL. ADM. CODE 742)

)

STATE OF ILLINOIS

Pollution

Control

Board

RO1-26

(Rulemaking

-

NOTICE OF FILING

TO:

Ms. Dorothy M. Gunn

Clerk ofthe Board

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

(Via FedEx

-

Overnight)

Mr. Joel J. Stemstein

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

(Via FedEx

-

Overnight)

All Other Persons on the Attached Service List via U.

S. Mail

PLEASE TAKENOTICE that today I have filed with the Office ofthe Clerk ofthe

PollutionControl Board theAppearance,Motion to OpposeCertain Proposed Amendments

ofthe Environmental Protection Agency’sProposal to Amend 35

Ill. Ad. Code 732, and

Memorandum ofLaw in

Support ofthe Motionto Oppose Certain Proposed Amendments

oftheEnvironmental Protection Agency’sProposal to Amend 35111. Ad. Code 732, in the

above entitled matter, copies ofwhich are hereby served upon you.

Respectfully submitted,

Illinois Society ofProfessional Engineers

Consulting Engineers Council ofIllinois.

Bruce S. Bonczyk, One oftheir Attorneys

Dated:

~

2oZocd

IN THE MATTER OF:

TillS FILING SUBMITTED ON RECYCLED PAPER

---

Bruce S. Bonczyk

(IL Reg. 6190593)

BRUCE S. BONCZYK,

LTD.

601 West Monroe Street

Springfield, IL 62704

217.525.0700

217.525.0780 fax

Service List Attached

---

RE C E ~VE D

CLERK’S OFFICE

IN THE MATTER OF:’

PROPOSED AMENDMENTS TO

REGULATION OF PETROLEUM

LEAKING UNDERGROUND STORAGE

TANKS

(35

ILL. ADM. CODE 742)

)

)

)

)

)

)

MAR

2

12001

S~1ATE OF ILLINOIS

Pollution

Control Board

ROt-26

(Rulemaking

-

APPEARANCE

The undersignedhereby enters his appearance asattorneys on behalfoftheILLINOIS

SOCIETY OF PROFESSIONAL ENGINEERS and THE CONSULTING ENGINEERS

COUNCIL OF ILLINOIS.

Respectfully submitted,

Illinois Society ofProfessional Engineers

Consulting Engineers Council of Illinois.

Bruce S. Bonczyk, One oftheir Attorneys

Dated:

p’tfqvg4

2”,

2~’

Bruce S. Bonczyk

(IL Reg.

6190593)

BRUCE

S. BONCZYK,

LTD.

601 West Monroe Street

Springfield, IL 62704

-

217.525.0700

217.525.0780 fax

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

THIS FILING IS SUBMITTED ON RECYCLED PAPER

---

REC~I~V~iD

CLERK~S OFFICE

MAR

2

1 2001

BEFORE THE POLLUTION CONTROL

STATE OF ILLINOIS

BOAR9II~.

control Board

OF THE STATE OF ILLINOIS

IN THE MATTER OF:

)

)

PROPOSED AMENDMENTS TO

)

RO1-26

REGULATION OF PETROLEUM

)

(Rulemaking

-

Land)

LEAKING UNDERGROUND STORAGE

)

TANKS

(35

ILL. ADM. CODE 742)

)

MOTION TO OPPOSE CERTAIN PROPOSED AMENDMENTS

OF THE ENVIRONMENTAL PROTECTION AGENCY’S

PROPOSAL TO AMEND 35 ILL. ADM. CODE 732

NOW

COMES

the

Illinois

Society

of Professional

Engineers

(“ISPE”)and

the

Consulting Engineers Council ofIllinois

(“CECI”),

by and through their attorney, Bruce

S.

Bonezyk, ofBruce

S. Bonczyk, Ltd., and requests that the Illinois Pollution

Control Board

(“Board”)strike certain proposed amendments to the Environmental Protection Agency’s

proposal to amend 35 Ill. Adm. Code 732, and in particular, all references and additions to

the proposed amendments which relate to “LicensedProfessional Geologists”. In support

oftheir motion, ISPE and CECI state as follows:

The IllinoisEnvironmental ProtectionAgency(“Agency”)has exceededtheauthority

of

its rulemaking powers

by

including

in this proposed amendment the addition of the

definition

of “Licensed Professional Geologist”,

35

Ill.

Adm.

Code 732.103,

and the

inclusion throughout 35 III. Adm. Code 732 ofthe use ofLicensed Professional Geologists

to perform functions assigned to Licensed Professional Engineers by the provisions ofThe

Environmental Protection Act, Title XVI, Petroleum Underground StorageTanks, 415 ILCS

5/57 et. seq. (“Act”).

ISPE and CECI assert the provisions ofthe Act are silent as to the

inclusion of Licensed Professional

Geologists in the

statutory

language, and thus,

the

Agency has insufficient statutory authority as amatter oflaw to include suchprofession via

its rulemaking process or by agreement with the Licensed Professional Geologists.

THIS FILING IS SUBMITTED ON RECYCLED PAPER

---

Further, ISPE and CECI

object to the Testimony of Doug Clay in

Support of the

Environmental

Protection

Agency’sProposal to Amend

35

Ill.

Adm.

Code 732.

With

respect

to

said testimony, ISPE and CECI

object

to

the

inclusion

by

the

Agency

of

amendments throughout 35111.Adm. Code 732 regardingLicensed Professional Geologists.

As stated in Mr. Clay’stestimony, no changes have been made to the Actwhich provide for

such services or certification to by made by Licensed Professional

Geologists.

Thus, Mr.

Clay’s testimony recommending

language to

include Licensed Professional

Geologists

should be stricken

with

respect

to

this

issue

as the

Illinois General Assembly

has

not

provided specific authority or standards to empowertheAgency to act to include alicensing

act provision enacted well after subsequent legislative amendments.

Further, ISPE and CECI objectto thePre-Filed Testimony ofRonDyeofthe Illinois

Chapter, American Institute ofProfessional Geologists, in this matter, with respect to the

inclusion ofthe phrase “or LicensedProfessional Geologist” in Section 732.409(a)(2) and

732.307(g)(5).

No changes have been made to the Act which provide for such services or

certification to by made by Licensed Professional Geologists. Thus, Mr. Dye’stestimony

should

be stricken with

respect to

this issue

as the

Illinois

General

Assembly has not

provided specific authority or standards to empowerthe Agency to act to include a licensing

act provision enacted well after subsequent legislative amendments.

Finally, ISPE and CECI object to the Testimony ofKenneth W. Liss and request it

be stricken in

its entirety.

Mr. Liss requests the Agency remove all references to Licensed

Professional Engineers from the proposed amendments, and only add in these amendments

references to Licensed Professional Geologists. Mr. Liss’requestis totally unfounded and

lacks statutory authority, and on its face as a matter oflaw must fail.

In support ofthis motion, ISPE and CECI are filing concurrently a Memorandum of

Law regarding

the lack of statutory

and rulemaking authority ofthe Agency to include

throughout

this

proposed

amendment any

and

all

references

to

Licensed Professional

Geologists.

This Memorandum of Law is incorporated in this Motion as ifset forth fully

within.

---

WHEREFORE, ISPE and CECI respectfully request the Board to strike from the

proposed

amendments

to

35

III.

Adm.

Code.

732, any and all

references to

Licensed

Professional Geologists throughout the proposedamendment rulemaking, and in particular

Sections

732.103,

Section

732.307,

Section

732.3 12,

Section

732.601, and any

other

sections in which such references are contained.

Respectfully Submitted;

Illinois Society ofProfessional Engineers

Consulting Engineers Council ofIllinois

~4L

By:

One ofTheir Attorneys

Date: ~

ZG2C~

Bruce S. Bonczyk

(IL Reg. 6190593)

BRUCE

S. BONCZYK, LTD.

601 West Monroe Street

Springfield, IL 62704

217.525.0700

217.525.0780 fax

---

RECEIVED

CLERK’S OFFICE

MAR

2

12001

STATE OF ILLINOIS

BEFORE THE POLLUTION CONTROL BOAR]?o

liution Control Board

OF THE STATE OF

ILLINOIS

IN THE MATTER OF:

)

)

PROPOSED AMENDMENTS TO

)

RO1-26

REGULATION OF PETROLEUM

)

(Rulemaking

-

Land)

LEAKING UNDERGROUND STORAGE

)

TANKS (35 ILL. ADM. CODE 742)

)

MEMORMDUM OF LAW IN SUPPORT OF THE

MOTION TO OPPOSE CERTAIN PROPOSED AMENDMENTS

OF THE ENVIRONMENTAL PROTECTION AGENCY’S

PROPOSAL TO AMEND

35

ILL. ADM. CODE 732

The Illinois Society

of

Professional Engineers (“ISPE”)andtheConsulting Engineers

Council ofIllinois (“CECI”),by and through their attorney, Bruce

S. Bonezyk, ofBruce S.

Bonczyk, Ltd., has moved the Illinois Pollution Control Board (“Board”) tostrike certain

proposed amendments

to

the

Illinois

Environmental

Protection Agency’s (“Agency”)

Proposal to Amend 35111. Adm. Code 732, and in particular, all references and additions to

the proposed amendments which relate to “Licensed Professional Geologists”. In support

oftheir motion, ISPE and CECI provide the Board this Memorandum ofLaw.

Factual Background

On or about December

5, 2000, the Agency filed a Motion for Acceptance that the

Board accept for hearing the Agency’s proposalfor amendment of35

Ill. Adm. Code

732.

The Boardaccepted saidmatter for hearing on or aboutDecember 21, 2000, and by hearing

Officerorder dated January 29, 2001, issued its Notice ofHearings.

On or about February

16, 2001, the Agency file a Motion to Amend Agency proposal Amending 35

Ill. Adm.

Code 732. On February 27,2001, theBoard held its firsthearing regarding this matter.

The

second hearing is scheduled for April 3, 2001.

THIS FILING IS SUBMITTED ON RECYCLED PAPER

---

The Agency’sproposed amendments to the rules are intended to clarify and refine

certain

provisions,

taking

into

consideration

the experience

the Agency

has gained

in

administering said rules. The proposed amendments encompass Sections 57- 57.17 ofthe

Environmental Protection Act, 415 ILCS

5/57

-

57.17, commonly known as the regulation

ofPetroleum Leaking Underground Storage Tanks (“LUST”). Thesections pertaining to

LUST were added by Public Act 88-496, Section

15, effective September 13, 1993.

Those

provisions

were amended by Public Act 89-428,

Section

395, effective January

1,

1996,

subsequently found to be in violation of the

single subject

requirements of the Illinois

Constitution.

Public Act

89-457,

Article 3, Section 395 contained identical amendments,

and reenactedthe amendment ofthetext contained in Public Act 89-428, effective May 22,

1996.

The original enacting

legislation, and subsequent amendments to such legislation,

contained only

references

to

Licensed

Professional

Engineers

in

the

definitional

and

operational sections of the legislation. The Board adopted regulations implementing the

legislation effective September 23,

1994, and also amended regulations effective July

1,

1997, both of which contain only references to Licensed Professional Engineers for both

definitional and operational purposes.

The

Professional Geologist Licensing Act

was

enacted by

Public

Act

89-366,

effective July 1, 1996.

The effective date ofthis act is after the effective date ofthe LUST

enacting

legislation

and

subsequent

amendatory legislation,

although the

Professional

Geologist Licensing Act was enacted prior to the amendatory LUST legislation contained

in Public Acts 89-428 and 89-457.

Legal Argument

ISPE and CECI believe

the longstanding rule oflaw in Illinoisprecludes theAgency

and

Board

from

including references

to “Licensed Professional

Geologists”

into the

proposed amendments to the LUST regulations.

An administrative agency has only such

authority as is conferred by express provisions oflaw or is found, by fair implication, to be

---

incidentto the express authority conferred by suchiegisiation.

People ofthe State ofIllinois

v. Hall, 314 Ill. App.3d, 688, 732 N.E.2d 742,247111. Dec. 687

(4th

Dist. 2000); R. L. Polk

& Co. v. Ryan, 296 III. App.3d 132,230111. Dec. 749,694 N. E.2d 1027(1998); Village of

Lombard v. Pollution Control Board, 66 IlL2d 503, 363N.E.2d 814, 6 Ill.Dec. 867 (1977),

State Disbursement Unit for Child Support

-

Recovery ofEmergency Payments, 2000 WL

640226 (Ill. A. G.).

ISPE

and CECI

do not challenge the Board’s rulemaking authority.

Specifically,

ISPE and CECI challenge the inclusion of language incorporating Licensed Professional

Geologists into the proposed rulemaking as being without a statutory basis, and hence,

beyond the Board’sincidental reach ofrulemaking authority.

The issue is one ofstatutory

construction, andtherefore, the intent ofthe legislature must be given effect.

Ogle County

Boardv. Pollution Control Board, 272 Ill. App.3d 184, 649 N.E.2d 545, 208 Ill. Dec. 489

(

2nd Dist.

1995).

Such inquiryproperly begins with the language ofthe statute.

State Farm

Fire & Casualty Co. v. Yapejian,

152 Ill.2d 533at 541, 605 N.E.2d 539, 178 Ill. Dec. 745

(1992).

On its face, the LUST legislation only refers to Licensed Professional Engineers.

Further, an examination ofthe legislation provides no other guidelines or standards upon

whichtheAgency or Boardmay conclude thatLicensed ProfessionalGeologists are equally

charged by the General Assembly to provide the enumerated services in the statute,

thus

rendering the proposed promulgation ofsuch rules to include licensed geologists to likely

be

invalid.

In order to support such a delegation through rulemaking, the statute must

contain standards to guide the agency charged with implementing the statute.

Village of

Lombard,

Id.

at 870.

The express enacting legislation and amendatory legislation

for the LUST program

is silent as to the inclusion ofLicensed Professional Geologists. This is true even though

the Professional Geologists Licensing Act (P.A. 89-366) was adopted into law prior to the

amendatory

legislation affecting

the

LUST program (P.A. 89-428 and

89-457).

The

presumption exists thatthe General Assembly in formulating the subsequentchanges to the

---

LUST legislation was aware ofthe Professional Geologists Licensing Act, and chose notto

include said professionals into the LUST amendments.

The LUST legislation specifically definesthe term“LicensedProfessionalEngineer”.

415 ILCS

5/57.2.

No definition for Licensed Professional

Geologists is contained in the

legislation.

The legislation is also specific asto the operations and~~ertificatic’ns

by Licensed

Professional Engineers, for example, as contained in 415 ILCS

5/57.7,

including

“physical

soil classifications”.

The Professional Engineering Practice Act expressly includes

soil

classifications as an example ofprofessional engineering practice. 225 ILCS

745/15.

The

Professional GeologistLicensing Act doesnot include anyreferences to soil classifications

in the examples ofprofessional geology.

225 ILCS 325/4. Therefore, beyond the express

absence ofLicensed Professional Geologists in the legislation, it is apparent on its face the

General Assembly did not intendthe “physical soil classifications”oftheLUST legislation

to be performed by geologists.

Such operations were excluded fromthe geologists licensing

act, but were reserved specifically for professional engineers in their practice act and the

LUST legislation.

Beyond

legal issues,

there are practical problems with the proposed inclusion of

Licensed Professional Geologists in theproposed rules.

Throughout the LUST legislation,

specific

references to

the use

of Licensed Professional

Engineers

are

contained.

The

legislation

embodies a provision which

creates

a presumption against

liability

for the

Professional Engineers’ certifications pursuant to

the statute. 415 ILCS

5/57.10.

As

proposed by this rule, the inclusion ofLicensedProfessional Geologists in Section 732.402

will disrupt theGeneral Assembly’sscheme forpresumption against liability, as this specific

law

contains

no

reference

to

Licensed

Professional Geologists,

thereby

detrimentally

affecting the viability

of the certification and the ability to ensure protection to owners,

operators, heirs, etc.

The Agency~ s issuance ofa no furtherremediation letterwill be ofno

effect if based upon the certification ofa Licensed Professional

Geologist as there will be

no statutory basis

for the protection afforded by said letter.

For the above going reasons, ISPE and CECI also suggest to the Agency and Board

---

thatthe testimony ofMr. Doug Clay, Mr. Ron Dye and Mr. Kenneth Liss is without weight

or merit with respect to the inclusion of Licensed Professional Geologists in the proposed

amendments.

The lack ofexpress language in theLUST provisions and a lackofstandards

enumerated

by the

General Assembly

in the

law preclude the

suggested references

to

Licensed Professional Geologists, and thus the testimony of the above parties should be

stricken as without a legal basis, and no weight with respect to thereferenced testimony be

afforded by the Board.

ISPE and CECI respectfully request the Boardto strike anyreferences to “Licensed

Professional Geologists” from the proposed rulemaking on the grounds that: there is no

express statutoryprovision allowing for said inclusion;theGeneral Assembly didnot intend

for the Agency and Boardto include licensedgeologists in additionto licensed professional

engineers;

the

plain language of the

statute does not include licensed

geologists

nor

standards to discern the inclusion ofsaid geologists; and practical difficulties at odds with

provisions ofthe statute would be created.

Respectfully submitted,

Illinois Society ofProfessional Engineers

Consulting Engineers Council ofIllinois.

Bruce

S. Bonczyk, One oftheir Attorneys

Dated:

‘~‘‘~

~

Bruce S. Bonczyk

(IL Reg. 6190593)

BRUCE

S. BONCZYK, LTD.

601 West Monroe Street

Springfield, IL 62704

217.525.0700

217.525.0780 fax

---

CLER&S OFFrCE

MAR

2

1

2001

STATE OF ILLINOIS

Pollution

Control

Board

STATE OF ILLINOIS

)

)

COUNTY OF SANGAMON

)

PROOF OF SERVICE

I, the undersigned, on oath state that I have served the attached Appearance, Motion

to

Oppose Certain

Proposed

Amendments of the

Environmental

Protection Agency’s

Proposal to Amend

35

Ill. Ad. Code 732, and Memorandum of Law in Support of the

Motion to Oppose CertainProposed Amendments oftheEnvironmental Protection Agency’s

Proposal to Amend 35111. Ad. Code 732 upon theperson to whom it is directed,

by placing

it in an envelope addressed to the person or persons

on

the Attached Service List, and

mailing it from Springfield, Illinois on the 20th

day ofMarch, 2001, with sufficient postage

affixed.

~

Lind

SUBSCRIBED AND SWORN TO BEFORE ME

this

.~

day ofMarch, 2001.

C~&~LetA4

A<

S&4~~1

Notary Public

~FFIcIALS~~

SUSAN

K CAMPTON

NOTARY PtDSLIc,

STATE OF ILLINOIs

~ MY COMMISSION EXpIRES: 1

1I13~3

THIS FILING SUBMITTED ON RECYCLED PAPER

---

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