R~CEIVBD
CLERK’SOFFICE
BSB
MAR28
2001
BRUCE
S. BONOZYK,
LTD.
STATE OF ILLINOIS
Pollution Control Board
601
WEST
MONROE STREET.
SPRfl’~GFIELD. IL 62704
TELEPHONE (217) 525-0700
1(’AX
(217) 525-2171
March 27,
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:
RO 1-27 (Rulemaking-Land)
Dear Ms. Gunn:
Enclosed for filing in the above Rulemaking are one original and nine copies ofthe
following: Appearance.
Motion to Oppose Certain Proposed
Amendments of the
Environmental
Protection Agency’s Proposal toAmend 35 Ill. Ad. Code 740
Memorandum ofLaw in Support oftheMotion to
Oppose Certain Proposed
Amendments of the Environmental Protection Agency’sProposal to
Amend 35 Ill. Ad. Code 740
Said copies are provided with the Notice ofFiling and Certificate ofService.
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.
Very truly your
Bone Office
zy~~t
Law
Bruce S. Bonczyk, P.E.
BSB:lew
cc:
Mr. David Kennedy, CECI
Mr. Gary Crites, ISPE
Enclosures
RE CE
KV ED
CLERK’S
OFFiCE
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
IN THE MATTER OF:
)
)
ROL-27
(Rulemaking
-
Land)
)
)
SITE REMEDIATION PROGRAM
AMENDMENTS TO
35
ILL. ADM. CODE 740
)
)
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. Bobb A. Beauchamp
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 TAKE NOTICE that today I have filedwith the Office of the Clerk ofthe
Pollution Control Boardthe Appearance, Motion to Oppose Certain Proposed Amendments
to the EPA’sProposal to Amend
35
Ill. Adm. Code 740, and the Memorandum ofLaw in
Support ofthe
Motion to Oppose Certain Proposed Amendments to the EPA’sProposal to
Amend 35
Ill. Adm. Code 740, in
the above entitled matter, copies of which
are hereby
served upon you.
Respectfully submitted,
Illinois Society ofProfessional Engineers
Consulting Engineers Council ofIllinois.
Bruce
S. Bonezyk, One oftheir Attorneys
Dated:
~
27,
2c~~
MAR
2
8
2G0$
STATE
OF
ILL1NC~S
Pollution control
Board
THIS 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
RECEIVED
Cl FPK’~OFFICE
BEFORE THE POLLUTION CONTROL BOARD
MAR
2
8
2001
OF THE STATE OF ILLINOIS
STATE OF ILLINOIS
Pollution
Control Board
IN THE MATTER OF:
)
)
SITE REMEDIATION PROGRAM
)
RO1-27
)
(Rulemaking
-
Land)
AMENDMENTS TO
)
35
ILL.
ADM. CODE 740
)
APPEARANCE
Theundersigned hereby enters his appearanceas attorneysonbehalfoftheILLINOIS
SOCIETY OF PROFESSIONAL ENGINEERS and TIlE CONSULTING ENGINEERS
COUNCIL OF ILLINOIS.
Respectfully submitted,
Illinois Society ofProfessional Engineers
Consulting Engineers Council ofIllinois.
Bruce S. Bonczyk, One of their Attorneys
Dated:
/~“‘L
27,
~.ac4
Bruce S. Bonczyk
(IL Reg. 6190593)
BRUCE
S. BONCZYK, LTD.
601 West Monroe Street
Springfield, IL 62704
217.525.0700
217.525.0780 fax
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
IIEC~VED
CLERR~S
OFP!CF
BEFORE THE POLLUTION CONTROL BOARD
MAR
2
8
2001
OF THE STATE OF ILLINOIS
STATE OF ILLINOIS
IN THE MATTER OF:
)
Pollution
Control Boord
)
SITE REMEDIATION PROGRAM
)
RO1-27
)
(Rulemaking
-
Land)
AMENDMENTS TO
)
35
ILL. ADM. CODE 740
)
MOTION TO OPPOSE CERTAIN PROPOSED AMENDMENTS
OF THE ENVIRONMENTAL PROTECTION AGENCY’S
PROPOSAL TO AMEND 35 ILL. ADM. CODE 740
NOW
COMES
the
Illinois
Society of Professional
Engineers
(“ISPE”) and
the
Consulting Engineers Council ofIllinois (“CECI”),by andthrough their attorney, Bruce
S.
Bonczyk, ofBruce S. Bonczyk, Ltd., and requests that the Illinois Pollution Control Board
(“Board”) strike certainproposed amendments to the Environmental Protection Agency’s
proposal to amend
35
Ill. Adm. Code 740, and in particular, all references and additions to
the proposed amendments which relate to “Licensed Professional Geologists”. In support
oftheir motion, ISPE and CECI state as follows:
The IllinoisEnvironmentalProtectionAgency (“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 740.120, and
the
inclusion throughout 35 Ill. Adm. Code 740 ofthe use ofLicensed Professional Geologists
to perform functions assigned to Licensed Professional Engineers by the provisions ofThe
Environmental Protection Act, Title XVII, Site Remediation
Program,
415 ILCS 5/58
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 a matter
of
law
to
include
such profession
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 theTestimony ofLawrence W. Eastep on proposed
amendments to Amend
35
Ill. Adm. Code 740 of the Environmental Protection Agency’s
Proposal. With respect to
said testimony, ISPE and
CECI object to the inclusion
by the
Agency ofamendments throughout 35111. Adm. Code 740regarding Licensed Professional
Geologists.
As stated in
Mr.
Eastep’s testimony, no changes have been made to the Act
which provide
for
such
services or
certification
to
by
made
by
Licensed
Professional
Geologists.
Mr. Eastep further testified thatthe Professional
Geologists Licensing Actwas
enacted after the Site Remediation Program provisions ofthe EPA Act.
While Mr. Eastep
testified that
the proposed
amendments
to
the
rules allow for
certain
remediation
site
activities to be conductedby LicensedProfessional Geologists, suchinterpretation is at odds
with
the
express
language
of the statute. Section
58.6,
as
an
example,
requires
all
investigations,
plans
and reports to be
prepared
under
the
supervision
of a
Licensed
Professional
Engineer.
415 ILCS
5/58.6
There
is
no
reference
or even
an
indirect
expression for any services by geologists. Thus,
Mr. Eastep’s testimonyrecommending
languageto include LicensedProfessional Geologists shouldbe strickenwith respect to this
issue as the Illinois General Assembly has not provided specific authority or standards to
empowerthe Agency to include a licensing act provision enacted well afterprior legislation
and subsequent amendments.
In support ofthis motion, ISPE and CECI are filing concurrently a Memorandum of
Law regarding the
lack of statutory
and rulemaking authority of the
Agency to include
throughout
this
proposed
amendment any
and
all
references
to
Licensed Professional
Geologists.
This Memorandum ofLaw is incorporated in this Motion as if set forth fully
within.
WHEREFORE,
ISPE and CECI respectfully request the Board to strike from the
proposed
amendments
to
35
Ill.
Adm.
Code. 740, any and
all
references
to
Licensed
Professional Geologists throughout the proposed amendment rulemaking, and in particular
Sections
740.120, Section
740.405,
Section
740.410,
Section
740.425,
and any
other
sections in which such references are contained.
Respectfully Submitted;
Illinois Society ofProfessional
Engineers
Consulting Engineers Council of Illinois
By:
One ofTheir Attorneys
Date:
i4t4.~~~4
2.1~
2OQ
Bruce S. Bonczyk
(ILReg. 6190593)
BRUCE S. BONCZYK, LTD.
601 West Monroe Street
Springfield, IL 62704
217.525.0700
217.525.0780 fax
RECEIVED
BEFORE THE POLLUTION CONTROL BOARD
CLERK’S
OFF!CE
OF THE STATE OF ILLINOIS
MAR
2
8
2001
STATE OP ILLINOIS
INTHEMATTER OF:
)
Pollution Control Board
)
SITE REMEDIATION PROGRAM
)
RO1-27
)
(Rulemaking
-
Land)
AMENDMENTS TO
)
35
ILL. ADM. CODE 740
)
MEMORANDUM 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 740
The Illinois Society ofProfessional Engineers (“ISPE”)andthe Consulting Engineers
Council ofIllinois (“CECI”),by and through their attorney, Bruce
S. Bonczyk, ofBruce S.
Bonczyk, Ltd., have moved the Illinois Pollution Control Board (“Board”) tostrike certain
proposed
amendments
to
the
Illinois Environmental
Protection
Agency’s (“Agency”)
Proposal to Amend 35 Ill. Adm. Code 740, 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 January 12, 2001, the Agency filed
a
petition that the Board accept for
hearing
the Agency’s proposal
for
amendment
of 35
Ill.
Adm.
Code 740. The
Board
accepted said matter for hearing on or aboutJanuary 18,2001, and by Hearing Officer order
dated February 5, 2001, issued its Notice ofHearings. OnFebruary 28, 2001, theBoard held
its first hearing regarding this matter. The second hearing is scheduled for April 4, 2001.
The Agency’s proposedamendments 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 58- 58.8 and
58.10-5 8.14 oftheEnvironmental Protection Act, 415 ILCS 5/58-58.14, commonlyknown
THIS FILING IS SUBMITTED ON RECYCLED PAPER
astheregulation ofthe Site Remediation Program. (“SRP”). The sections pertainingto SRP
were added by Public Act 89-431, Section
5,
effective
December
15,
1995
and Public Act
89-443, Section
5,
effective July 1,
1996.
Some sections were later amended.by Public Act
89-626, Article 2, Section 2-62, effective August 9, 1996, whichwas the First 1996 General
Revisory Actwhich made certain technical corrections in Public Acts 89-1 through 89-443.
The original SRP enacting
legislation
contained
only
references to
Licensed
Professional Engineers in the definitional and operational sections ofthe legislation.
The
Board adopted regulations implementing the legislation
effective July 1,
1997,
and also
amended regulations effective October 26,
1998, both ofwhich 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 ofone ofthe
SRP enacting statutes, and concurrentwith the other. The Professional GeologistLicensing
Act was enacted prior to the SRP legislation contained
in Public Acts 89-431
and 89-443.
Subsequent amendments by Public Act 89-626 were technical and included no references
to Licensed Professional Geologists.
Legal Argument
ISPE andCECI believethe longstanding rule oflaw in Illinoisprecludes theAgency
and
Board
from
including
references
to
“Licensed Professional Geologists” into
the
proposed amendments to the SRP
regulations.
An administrative
agency has
only such
authority as is conferred by express provisions of law or is found, by fair implication, to be
incident to the express authorityconferred by suchlegislation.
People oftheState 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 Ill. App.3d 132, 230 Ill. Dec. 749, 694 N. E.2d 1027 (1998); Village of
Lombardy. Pollution Control Board, 66 Ill.2d 503, 363 N.E.2d 814, 6 Ill.Dec. 867 (1977),
State Disbursement Unit for Child Support
-
Recovery ofEmergency Payments, 2000
WL
640226(111. A. G.).
ISPE and CECI
do not challenge the Board’srulemaking
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’s incidentalreach ofrulemaking authority.
The issue is one ofstatutory
construction, and therefore, the intent ofthe legislature must be given effect.
Ogle County
Board v. Pollution Control Board, 272 Ill. App.3d 184, 649 N.E.2d
545,
208 III. Dec. 489
(
2nd
Dist.
1995).
Such inquiry properly begins with the language ofthe statute.
State Farm
Fire &
Casualty Co. v. Yapelian,
152 Il1.2d 533at 541,
605
N.E.2d 539,
178 Ill. Dec. 745
(1992).
On
its
face, the
SRP
legislation
only
refers
to
Licensed Professional Engineers.
Further, an examination ofthe legislation provides no
other guidelines or standards upon
whichtheAgencyorBoard may conclude that LicensedProfessional Geologists are equally
charged by the General Assembly to provide the enumerated services in the statute, thus
rendering the proposed promulgation of such 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 SRI’is silent as
to
the
inclusion
of Licensed
Professional Geologists.
This
is
true
even though
the
Professional Geologists Licensing Act (P.A.
89-366) was adopted into law prior to the
legislation
implementing the SRP (P.A. 89-431
and 89-443). The presumption exists that
the General Assembly in implementing the SRP legislation was aware ofthe Professional
Geologists Licensing Act, and chose not to include said professionals into the SRP.
The SRP legislation specifically defines the term “LicensedProfessional Engineer”.
415 ILCS
5/58.2.
No definition for Licensed Professional
Geologists is
contained in the
legislation.
The SRP legislation is also specific as to the remedial investigations, plans and
reports to be performed by
Licensed Professional Engineers,
for example, as contained
in
415
ILCS
5/58.6.
The
Professional Engineering
Practice Act expressly
includes
such
investigations as an example ofprofessional engineering’practice. 225 ILCS 745/15. The
Professional
Geologist Licensing
Act
does not
include
any references to remedial
investigations
in the examples of professional
geology.
225
ILCS
325/4. Therefore,
beyond the express
absence of Licensed Professional Geologists
in the legislation, it is
apparenton its facethe GeneralAssembly did not intendthe activities ofthe SRI’legislation
to be performed by geologists.
For the above goingreasons, ISPE and CECI also suggest to the Agency and Board
that the testimony of Mr. Lawrence Eastep is without weight or merit with respect to the
inclusion of Licensed Professional Geologists in the proposed amendments.
The lack of
express language in the SRI’provisions and a lack ofstandards enumerated by the General
Assembly in the law preclude thesuggested referencesto LicensedProfessional Geologists,
and thus thetestimony ofthe above party should be stricken as without a legal basis, and no
weightwith respectto thereferencedtestimony beafforded by the Boardwith respect to this
limited issue.
ISPE and CECI respectfully request the Board to strike anyreferences to “Licensed
Professional Geologists” from the proposed
rulemaking
on the grounds that:
there is no
express statutory provision allowing for said inclusion and the General Assembly did not
intend for the Agency
and Board
to
include licensed
geologists
in
addition
to
licensed
professional engineers.
Respectfully submitted,
Illinois Society ofProfessional Engineers
Consulting Engineers Council ofIllinois.
Bruce S. Bonczyk, One oftheir Attorneys
Dated:
~
Z7~~ 2~r
Bruce S. Bonczyk
(IL Reg. 6190593)
BRUCE S.BONCZYK, LTD.
601 West
Monroe Street
Springfield, IL 62704
217.525.0700
217.525.0780 fax
STATE OF ILLINOIS
)
)
COUNTY OF SANGAMON
)
PROOF OF
SERVICE
I,the undersigned,
on oath state thatI have served the attachedAppearance, Motion
to
Oppose
Certain
Proposed
Amendments
of the
Environmental
Protection
Agency’s
Proposal to Amend
35
Ill. Ad. Code 740, and Memorandum of Law in Support of the
Motion to OpposeCertainProposed AmendmentsoftheEnvironmental Protection Agency’s
Proposal to Amend 35 Ill. Ad. Code 740 upon the person 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
27th
day ofMarch, 2001, with sufficient postage
affixed.
SUBSCRIBED AND SWORN TO BEFORE ME
this ~Z~’day ofMarch, 2001.
otary Public
I
“OFFICIAL SEAL
JOYCE A.GERHOLD
Notary Public, State of Illinois
My Commission Exp.
05/03/2004
THIS FILING SUBMITTED ON RECYCLED PAPER
Service List
R01-27
March 27. 2001
Karen L.
Bernoteir
IERG
215 East Adams
Street
Springfield, IL 62701
Erin Curley
Midwest
Engineering Services,
Inc.
4243 W.
166th
Street
Oak
Forest, IL
60452
Mattbcw
J.
Dunn
Environmental Bureau
Office of the Actorney
100 W.
Randolph
12th Floor
Chicago,
IL 60601
Steven Gobelman
IDOT
Bd&E’
2300
South Dirksen Parkway
Room 330
Springfield,
IL 62764
General
Daniel Goodwin,
P.E.
Goodwin Environmental
Consultants
400 &uns.Lane
Springfield, IL 62702
Dorothy
M.
Gunrx
Clerk
Illinois Pollution Control Board
100W.
Randolph
Suite 11-500
Chicago, IL 60601
Katherine D. lodge
lodge
&
Dwyer
P.O. Box
5776
Springfield,
IL
62705-5776
Robert Lawley
Department of Natural Resources
524
SoUth Second Street
Springfield, IL 62701-1787
Monte Nienkerk
Clayton
Group Services
3140
Finley
Road
Downers Grove,
IL 60515
Holly D.
Harley,
Esq
Chicago Legal Clinic
205 W. Monmoe.Srreet
4th Floor
Chicago,
IL 60606
Stephen Kirschner
Ar,lvanced GeoServices
Corp.
Rt. 202
&
1
Brandywine One
Suite 202
Chadds
Ford, PA 19317
Brent Manning
Director
Department of Natural Resources
524 S. Second Street
4th Floor.
Springfield,
IL 62701
Stefan A. Noe
Citizens for a Better Environment
205 W.
Monroe Street
4th Floor
Chicago,
IL 60606
William (3. Dickett
Sidley
&
Austin
10
South Dearborn
Suite 5200
Chicago, IL 60603
Mike Rapps
Rapps Engineering & Applied Science
821 5. Durkin Drive
Springfield,
1I~ 62704
David
Reiser
Ross &
Hardies
150 N.
Michigan
Chicago, IL 60601
Thon)as
V.
Skinner
Director
IEPA
1021
North
Grand Avenue East
P.O. Box
19276
Springfield, IL 62794-9278
Georgia Viahos
U.S
Navy
2601A Paul Jones
Street
Great Lakes, H. 60088-2845
John Reimann
INDECK
600 N.
Buffalo
Grove Rd.
Suite 300
Buffalo Grove.
IL 60089
Jim Ryan
Office of the Aftorney
General
100 W.
Randolph
Chicago, IL 60601
Mark Wight
IEPA
1021
North Grand
Avenue
East
P.O. Box
19276
Springfield, IL 62794-9278
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