RECEIVED
CLERK’S OFFrr~
BSB
BRUCE
S. BONCZYK,
LTD.
M1~Y
30
2001
STATE OF ILLINOIS
Pollution
Control Board
601
WEST
MONROE STREET.
SPRINGFIELD.
IL 62704
TELEFRONX
(217
525-0700
F’AX(217) 525-2171
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
Re:
RO1-26 (Rulemaking-Land)
May
25,
2001
{6.#X6?
Certified Mail
-
Return Receipt
Dear Ms.
Gunn:
Enclosed for filing in the above Rulemaking are one original and nine copies ofthe
following:
Post Hearing Comments ofISPE and CECI regardingthe Environmental Protection
Agency’sProposal to Amend 35
Ill. Ad. Code 732
Said copies are provided with the Notice ofFiling and Certificate of Service.
Please file stamp the enclosed additional copy ofthe documents and return them
in
the enclosed self-addressed stamped envelope.
Thank you for your assistance.
Very truly yours,
B
czyk, Ltd. Law Office
Bruce S. Bonczyk, P.E.
BSB:lew
cc:
Mr. David Kennedy, CECI
Mr. Gary Crites, ISPE
Enclosures
RECEIVED
CLERK~S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
MAY
3
0
2001
OF THE STATE OF ILLINOIS
IN THE MATTER OF:
)
PROPOSED AMENDMENTS TO
REGULATION OF PETROLEUM
LEAKING UNDERGROUND STORAGE
TANKS
(35
ILL. ADM. CODE
732)
)
)
)
)
)
STATE OF
ILLINOIS
Pollution
Control Board
RO1-26
(Rulemaking
-
Land)
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 TAKE NOTICE that today I have filed with the Office ofthe Clerk ofthe
Pollution Control BoardthePost HearingComments ofISPEand CECI in the above entitled
matter, copies ofwhich are hereby served upon you.
Respectfully submitted,
Illinois Society of Professional Engineers
Consu neers Council ofIllinois.
Bruce S. Bonczyk, One of theirAttorneys
Dated:
~f’1aq~
2
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
Mr. Scott Anderson
Black & Veatch
101 N. Wacker Drive, Suite
1100
Chicago, IL 60606
Ms. Cindy Consalvo
Pioneer Environmental
1000 N. Haisted, Suite 202
Chicago, IL 60622
Mr. Ron Dye
CORE Geological Services, Inc.
2621 Montego, Suite C
Springfield,
IL 62704
Mr. Neil Flynn
Attorney at Law
1035
South Second Street
Springfield, IL 62704
Ms. Dorothy Gunn
IL Pollution Control Board
100 W. Randolph,
Suite 11-500
Chicago, IL 60601
Mr. Kenneth James
Carlson Environmental, Inc.
65 E.
Wacker Place, Suite
1500
Chicago, IL 60601
Ms. Barbara Magel
Karaganis & White, Ltd.
414 N. Orleans, Suite 810
Chicago, IL 60610
Mr. David Rieser
Ross & Hardies
150 North Michigan
Chicago, IL 60601
Mr. David Sykuta
Illinois Petroleum Council
P0 Box
12047
Springfield, IL 62791
Mr. John Watson
Gardner, Carton & Douglas
321 North Clark Street
Chicago, IL 60610
Mr. Garry Aronberg
Kuhlmann Design Group
15 East Washington
Belleville, IL 62220
Mr. William Dickett
Sidley & Austin
10 5. Dearborn
St., Bank
I
Plaza
Chicago, IL 60603
Ms.
Judith Dyer
Assistant Legal Counsel, IL EPA
1021 North Grand Ave. East
Springfield, IL 62794-9276
Mr. Daniel Goodwin, P.E.
Goodwin Environmental Cons.,
Inc
400 Bruns Lane
Springfield, IL 62702
Mr. Thomas Herlacher
Herlacher Angleton Assoc., LLC
8731 Bluff Road
Waterloo, IL 62298
Mr. Kenneth Liss
Andrews Engineering, Inc.
3535 Mayflower Blvd.
Springfield, IL 62707
Mr. George Moncek
United Environmental Cons., Inc.
119 East Palatine Road, Suite 101
Palatine, IL 60067
Mr. Wayne Smith
Pioneer Environmental
1000 N. Halsted,
Suite 202
Chicago, IL 60622
Ms.
Georgia Vlahos
Naval Training Center
250 IA Paul
Jones Street
Great Lakes, IL 60088-2845
Mr. Robert Carson, PE
924 Cherokee Drive
Springfield,
IL 62707
Ms. Christie Bianco
Chemical Industry Council ofIL
9801
W. Higgins Road, Suite 515
Rosemont, IL 60018
Mr. Leo Dombrowski
Wildman, Harrold, Allen & Dixon
225 W. Wacker Drive, Suite 3000
Chicago, IL 60606
Mr. Lawrence Falbe, Esq.
Wildman, Harrold, Allen & Dixon
225 W. Wacker Drive, Suite 3000
Chicago, IL 60606-1229
Mr. Collin Gray
SEECO
Environmental Serv., Inc.
7350 Duvon Drive
Tinley Park, IL 60477
Mr. James Huff, P.E.
Huff & Huff, Inc.
512 West Burlington,
Suite 100
LaGrange, IL 60525
Pat Ludewig
Caterpillar Tech Center
Bldg. F, P.O.
Box
1875
Peoria, IL 61656-1875
Mr. Monte Nienkerk, P.G.
Clayton Group Services, Inc.
3140 Finley Road
Downers Grove, IL 60515
Mr. Joel Sternstein
IL Pollution Control Board
100 W.
Randolph St., Suite
11-500
Chicago, IL 60601
Mr. Rodger Walker
Walker Engineering
500 West Herrin Street
Herrin, IL 62448
Mr. Harry Chappel, PE
Inland/Chappel Environmental
144 Laconwood
Springfield, IL 62707
Mr. SidGlenn
Arcadis
35 East Wacker Drive, Suite 3000
Chicago, IL 60601
Mr. Joe Kelly, PE
United Science Laboratories, Inc.
P.O. Box 360
Woodlawn, IL 62898
Mr.
Dan Strubel
SpeedwaySuper America, LLC
P.O.Box 1500
Springfield, OH 45001
Mr. Gary Zolyak
U.S. Army Environmental Center
Northern Regional Environmental
Office, Building E-4480
Aberdeen
Proving Ground, MD
21010-5401
RECEIVED
CLERK’S
OFF
(‘~
MP~Y
~ 0
2001
BEFORE THE POLLUTION CONTROL BOARD
STATE OF ILLINOIS
OF THE STATE OF ILLINOIS
Pollution
Control Board
IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO
)
RO1-26
REGULATION OF PETROLEUM
)
(Rulemaking
-
Land)
LEAKING UNDERGROUND STORAGE
)
TANKS (35 ILL. ADM. CODE 742)
)
POST HEARING COMMENTS AND REPLY OF THE
ILLINOIS SOCIETY OF PROFESSIONAL ENGINEERS AND
CONSULTING ENGINEERS COUNCIL OF ILLINOIS
The Illinois Environmental Protection Agency (“Agency”), inits Memorandum of
Law in Support oftheIllinoisEnvironmental Protection Agency’sComments, misinterprets
and misconstruesthe arguments presented by the Illinois Society ofProfessional Engineers
(“ISPE”) andthe Consulting Engineers Council ofIllinois (“CECI”)in
its comments and
objections to the proposed rulemaking. ISPE and CECI wish to clarify theirpositions and
identify the inaccuracies which result from the Agency’s response.
First, theAgency contends the proposed regulations will not exceed the rulemaking
authority ofthe Agency or Board.
The Agency indicates the Board has already determined
it has authorityto provide for certifications ofLicensedProfessional Geologists in its rules.
As was specifically stated in the Memorandum ofLaw in Support ofthe Motion to Oppose
Certain Proposed Amendments with respect to this rulemaking, ISPE and CECI “do not
challenge the Board’s rulemaking authority” (page3).
What is in
question is the legality
ofanyrule which arbitrarily adds language orprovisions that are in direct conflictwith those
provisions contained in the underlying legislation subject ofthe rulemaking.
Such is the
rule proposed to the Board by the Agency:
actions specifically
cited to be performed by
Professional Engineers as contained
in Public Law are being twisted by the Agency to be
performed also by Licensed Professional Geologists.
THIS FILING SUBMITTED ON RECYCLED PAPER
It
is
quite
interesting that
all the
citations utilized
by
the Agency to support
its
proposition allowingfor certifications by Licensed Professional Geologists do nothave any
basis
in the underlying
legislation
wherein there is an express reference to the
Licensed
Professional Geologists Act (“LPGA”).
For
instance, the Livestock Waste Regulations,
have their genesis from the statutory authority ofthe Livestock Waste Management Act.
That act has no
express references to specific acts to be performed by licensed professional
engineers or geologists. Likewise, neither theIllinois HistoricPreservation Agency’srules,
northe Department ofAgriculture’s rules, arederived from statutes which expressly define
whether engineers or geologists are to perform certain functions. Thus, if the statute
is
devoid ofexpress provisions, then theBoard may promulgate rules within its authority and
identify certain professions.
Unfortunately, the inverse argument proffered by the Agency has the cart before the
horse.
If there is
an express provision
in the statute requiring a specific professional to
perform certain functions, the Agency, and this Board,
is without authority to redefine or
redirect these activities.
The regulations derive from the statutory authority,
and not in
reverse fashion. Thus,
if the statutory
provision
is
silent, the Agency
and Board
may
properly assign such functions.
The rulemakings relied upon in the Agency’s response are
such a
derivation.
However,
the
Agency cannot
provide
a citation to where such
determinations have been made
in derivation to the statutory provision.
This remains the
assertion
of ISPE
and
CECI
that
Licensed
Professional Geologists
cannot
by
rule be
assigned functions expressly delegated by the General Assembly to Licensed Professional
Engineers.
Thus, the lengthy dissertation ofthe Agency regardingthe applicability ofthe work
contained
in
the Licenced Professional Geologists
Act is of no
relevance. Granted,
as
testimony and comments ofISPE and CECI stated, Licensed Professional
Geologists may
perform limited practical activities as a subset of services defined in the LUST and SRP
legislation.
This does not however grant the Agency or Board the latitude to expand these
certifications or activities beyond the express statutory authority regarding these sections.
The bootstrap argument,thatthedescription ofwork contained inthe LicensedProfessional
Geologists
Act
somehow
trumps
the
express statutory language
regarding Licensed
Professional Engineers
in
the LUST
and
SRP
provisions is albeit
amusing,
but totally
without merit and not based in any doctrine ofstatutory construction.
The Agency is absolutely correct when it stated on page
16 ofits Memorandum that
“The legislature didnot intend every statute in Illinois to be amended to reflect the passage
of the
PGLA.” Anyone vaguely
familiar
with the
legislative process understands
the
sponsor ofthe bill confers with the staffofthe Legislative Reference Bureau (LRB”) when
drafting said legislation. The LRB is charged with incorporating the proposed legislation
into the Illinois Compiled Statues.
While this licensing bill for geologists is a stand alone
act, if indeed the intent was to apply its provisions
to
allow its practical
application to
services assigned by
prior laws
to
Professional
Engineers, there would have been other
sections ofamendatory languagedoing so. As addressed in a question to theAgency during
the hearing process,
the Agency has not requested
a review or informal opinion of the
Attorney General as to the intendedapplicationbeingproposedby theAgency.
The Agency
has
cited
no
legislative history nor
hearing
testimony
by
the
sponsor
to confirm
its
applicability
that Licensed Professional Geologists were
to perform the same functions
assigned to the Licenced Professional Engineers.
All of this most likely did not occur,
because, as above, the Agency knows the LUST and SRP statues were not intended to be
addressed by the passage ofthe POLA.
Likewise, theAgency also misconstrues theposition ofISPE and CECIregarding the
ability
of Licensed Professional
Geologists
to perform physical
soil classifications. A
focused
scrutiny of ISPE’s andCECI’s objections and memorandum will not detect this
argument at all.
The Agency misrepresents this argument as one ofISPE and CECI, when
in reality it is promoted by the Agency to support its position.
Both ISPE and CECI, in its
arguments and testimony, clearly indicatethat LicensedProfessional Geologists, along with
Licenced Professional Engineers,
may perform these functions
in
accordance with their
disciplines and specific licensing provisions. However, the LUST and SRP
statutes
only
provide for Licensed Professional Engineers to certify such actions and other reports. In
actuality,
it was stated
Licensed Professional
Engineers may
at times
subcontract with
geologists to assist with such work. This has been occurring for years. This does not,
however,
alleviate the statutory mandate thatLicensed Professional Engineers are the only
discipline designated to perform
such certifications and sealing ofreports.
In convoluted arguments,theAgency spends an enormous amount oftime to actually
question thevalidity ofits existing regulations.
For instance, the Agency indicates that in
the event of Low Priority orNo Further Action sites, the soil classifications ofLicenced
Professional Engineers pursuant to existing Board regulations are invalid because they are
not
“incidental to
work
related to an engineering
system
or
facility.”•(Page
18
of
Memorandum)
The
Agency
even goes further to place
itself into
the
shoes
of the
Department of Professional Regulation and opine that “soil classification falls within the
practice ofprofessional engineering only when it is incidental to specific work related to an
engineering system of (sic) facility.” Not only is this assertion ludicrous, but ifconflicts
with the definitionalterms previouslypassed aspart ofthe regulatory process by the Board.
35 Ill. Adm. Code 732.103 (regarding “Licensed professional engineer” and “Physical soil
classification”)
Is this Board going to vacate all prior certifications because the Agency
now assertsthe actions were notrelated to an engineering system orfacility? Unfortunately,
theAgency reaches so far to place geologists into therules, thatit has lost site ofthepurpose
ofremediation and containment facilities.
Finally, in a desperate attempt, the Agency misstates the argument made in both the
ISPE and CECI memorandum and testimony. The presumption against liability is based
upon
the No
Further
Remediation (“NFR”) letter which,
if certified
by
a Licenced
Professional Engineer, will protect the subsequent owners, operators, etc. against claims or
liability from the release event.
415
ILCS
5/57.10(c)
Common sense dictates thatthe NFR
letter
represents the
“all clear”
to
the property
owner and
subsequent purchasers, thus
creating the presumption against liability.
Without the NFR letter, no presumption would
exist, as defined by statute, that
all statutory and regulatory corrective actions have taken
place, nor that all corrective action has been completed, nor that no further corrective action
is necessary. 415 ILCS 5/57.10(c)
The property ownerswould be no better off than before
the release event, ifthis section did not create
the presumption against their liability.
The
Agency fails to note this provision, which was
clearly made
in testimony
in
response to
questions. (Hearing Transcript ofApril 3,2001
-
pages 49 &
50)
The Agency clearly seeks
to
confuse
the
Board
with
the
limitation
of
liability
with
respect
to
the
engineer’s
certification,
versus a
presumption
against
liability
for owners, operators,
subsequent
purchasers or transferees, etc., after completion ofremediation and compliance with the
LUST law.
As can be seen by themisinformation and lack ofcitations, theAgency cannot refute
the fact there is no
statutory authority to place Licensed Professional Geologists
into the
LUSTand SRP rules where expressauthority is grantedto LicensedProfessional Engineers.
This and prior comments have espoused the several legal and practical bases to support such
conclusion.
We trust the Board will fully review this matter and find
the positions ofthe
ISPE and CECI will support the exclusion from this rulemaking of Licenced Professional
Geologists as stated in this and previous motions and comments.
Respectfully Submitted;
Illinois Society ofProfessional Engineers
Consulting Engineers Council ofIllinois
By:
One of Their Attorneys
Date:
~
~,
~OC~
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 that I have
served
the
attached Public Comments of
Bruce S.
Bonczyk
in Opposition to Certain Proposed Amendments ofthe Environmental
Protection Agency’s Proposal to Amend35 Ill. Ad. Code 740 upon the person to whom it
is directed,
by placingit in an envelope addressed to the person orpersons on the Attached
Service List,
and mailing it
from Springfield, Illinois on the
6th
day ofApril, 2001, with
sufficient postage affixed.
Lin
SUBSCRIBED AND SWORN TO BEFORE ME
this ~~fLd~r
ofApf200l.
THIS FILING SUBMITTED ON RECYCLED PAPER
Mr. Scott Anderson
Black & Veatch
101 N. Wacker Drive, Suite
1100
Chicago,
IL 60606
Ms.
Cindy Consalvo
Pioneer Environmental
1000 N. Halsted, Suite 202
Chicago, IL
60622
Mr.
Ron Dye
CORE Geological Services, Inc.
2621 Montego,
Suite C
Springfield, iL62704
Mr. Neil
Flynn
Attorney at Law
1035
South Second Street
Springfield, IL 62704
Ms.
Dorothy Gunn
IL Pollution Control Board
100
W. Randolph, Suite 11-500
Chicago, IL 60601
Mr. Kenneth James
Carison Environmental, Inc.
65
E.
Wacker Place, Suite
1500
Chicago, IL 60601
Ms. Barbara Magel
Karaganis & White, Ltd.
414 N. Orleans, Suite 810
Chicago, IL 60610
Mr.
David Rieser
Ross &
Hardies
150 North Michigan
Chicago, IL 60601
Mr. David Sykuta
Illinois
Petroleum Council
P0 Box 12047
Springfield, IL 6279]
Mr. John Watson
Gardner, Carton & Douglas
321 North Clark Street
Chicago, IL 60610
Mr. Gariy Aronberg
Kuhlmann Design Group
15 East Washington
Belleville, IL
62220
Mr.
William Dickett
Sidley & Austin
10 5. Dearborn
St., Bank
I
Plaza
Chicago,
IL 60603
Ms. Judith Dyer
Assistant Legal Counsel,
IL
EPA
1021 North Grand Ave. East
Springfield,
IL 62794-9276
Mr. Daniel Goodwin, P.E.
Goodwin Environmental CQns., Inc
400 Bruns Lane
Springfield, IL 62702
Mr.Thomas Herlacher
Herlacher Angleton Assoc., LLC
8731 BluffRoad
Waterloo, IL 62298
Mr. Kenneth Liss
Andrews Engineering, Inc.
3535
MayflowerBlvd.
Springfield,
IL 62707
Mr. George Moncek
United Environmental Cons., Inc.
119 East Palatine Road,
Suite
101
Palatine, IL 60067
Mr. Wayne Smith
Pioneer Environmental
1000 N.
Halsted, Suite 202
Chicago, IL 60622
Ms. Georgia Viahos
Naval Training Center
2501A Paul Jones Street
Great Lakes, IL 60088-2845
Mr.
Robert Carson, PE
924 Cherokee Drive
Springfield,
IL 62707
Ms. Christie Bianco
Chemical Industry Council ofIL
9801 W. Higgins Road, Suite 515
Rosemont, IL 60018
Mr. LeoDombrowski
Wildman, Harrold, Allen &
Dixon
225
W. Wacker Drive, Suite 3000
Chicago, IL 60606
Mr. Lawrence Falbe, Esq.
Wildman, Harrold, Allen&
Dixon
225W. Wacker Drive,
Suite 3000
Chicago, iL 60606-1229
Mr. Collin Gray
SEECO Environmental
Serv., Inc.
7350 Duvon Drive
Tinley Park, IL 60477
Mr. James
Huff, P.E.
Huff& Huff, Inc.
512 West Burlington, Suite
100
LaGrange, IL 60525
PatLudewig
Caterpillar Tech Center
Bldg. F, P.O. Box 1875
Peoria, IL 61656-1875
Mr. Monte Nienkerk,
P.G.
Clayton
Group Services, Inc.
3 140 Finley Road
Downers Grove, IL 60515
Mr. Joel Sternstein
IL Pollution Control Board
100
W. Randolph St., Suite
11-500
Chicago, IL 60601
Mr. Rodger Walker
Walker Engineering
500 West Herrin Street
Herrin,
IL 62448
Mr. Harry Chappel, PE
Inland/Chappel Environmental
144
Laconwood
Springfield, IL 62707
Mr. Sid Glenn
Arcadis
35 EastWacker Drive,
Suite 3000
Chicago,
IL 60601
Mr. Joe Kelly, PE
United Science
Laboratories, Inc.
P. 0. Box360
Woodlawn,
IL 62898
Mr. Dan Strubel
Speedway Super America, LLC
P. 0. Box
1500
Springfield,
OH
45001
Mr. Gary Zolyak
U.S. Army Environmental Center
Northern Regional Environmental
Office, Building E-4480
Aberdeen Proving Ground, MD
21010-5401
