BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
•k~ECE~VEO
CLERK’S
OFFICE
~PR
1
7
2003
STATE OF ILLINOIS
Pollution
Control Board
)
R03-20
(Rulemaking)
NOTICE
Dorothy
Gunn,
Clerk
Pollution Control Board
James
R. Thompson Center
100 W.
Randolph,
Ste. 11-500
Chicago,
Illinois
60601
Attorney General’s Office
Environmental Bureau
188
W. Randolph,
20th
Floor
Chicago,
Illinois 60601
Robert T. Lawley
Dept. Of Natural Resources
One Natural Resources Way
Springfield,
Illinois 62702
See Attached Service List
PLEASE
TAKE
NOTICE that
I have today filed with the Office of
the Clerk of the Pollution Control Board the Testimony of Gary
P. King
of the Illinois
Environmental Protection Agency, a copy of which
is
herewith served upon you.
ENVIRONMENTAL PROTECTION AGENCY
OF ~L’HESTATE OF ILLINOIS
By:
DATE: April 16,2003
Agency File
#:
Illinois Environmental
Protection Agency
1021 North Grand Ave. East
P.O. Box 19276
Springfield,
IL 62794-9276
IN THE
MATTER
OF:
BROWNFIELD SITE RESTORATION
PROGRAM
(AMENDMENTS
TO 35
ILL.ADM.
CODE
740)
Assistant
(
BEFORE
THE
POLLUTION CONTROL BOAR)
OF
THE
STATE OF
•
•
•
172003
IN THE.MATTER OF:
)
o~IE
OF ILLINOIS
pollution
Control Boar
BROWNFIELD SITE RESTORATION
)
PROGRAM
)
R03-20
).
•
Rulemaking-Land
(AMENDMENTS TO
35
ILL. ADM.
)
CODE 740)
‘
•
)
)
TESTIMONY OF GARY P.
KING
My name is Gary King.
I am the manager ofthe Division ofRemediation Management
within,the Bureau ofLand ofthe Illinois Environmental Protection Agency (‘Agency”). I have
been in my current title since May 1990.
Prior to assuming my currentposition I was the senior
counsel for the Bureau ofLand within the Agency’s Division ofLegal Counsel.
I have been
employed at the Agency since
1977.
I received a B.S. in Civil Engineering in
1974 from
Valparaiso University and a J.D.
in 1977 from the same university.
I have testified before the Board in numerous rulemaking proceedings.
A.
LEGISLATION
•
•
Section
58.15
ofthe Environmental Protection Act (“Act”) was amended
by P.A.
92-715,
effective July 23, 2002 to
add Subsection (B), the Browafields Site Restoration Program
(“BSRP”).
Proponents ofthe BSRP legislation hoped itwould provide an effective financial
incentive forthe cleanup and reuse ofBrownfield sites, in lieu ofthe Environmental Remediation
Tax Credit (“ERTC”) that sunset December 31, 2001. Section
58.1
5(B)(m)
directs the’Agency to
submit to the Board proposedregulations prescribing procedures and standards for the
administration ofthe BSRP.
Section
58.15(B)
prescribes in substantial detail the procedures for obtaining
reimbursement under the BSRP.
B.
REGULATORY DEVELOPMENT
Because the statutory language ofP.A.
92-715 is very explicit on many issues relative to
•the administration ofthis program, development ofthis rulemakingproposal has been straight-
forward. Because much ofthe language ofthe Section
58.15(B)
BSRP
finds parallel language in
the Section
58.14
ERTC, the Agencyhas drawn much ofthe language for this rulemaking from
35 Ill.
Adm. Code 740 Subpart G.
•
The Agency sought input on this rulemaking from the Regional Conmierce and Growth
Association ofGreater St. Louis (“RCGA”). The Agency sought input from RCGA because ‘of
their keen interests in the BSRP and their efforts to see it enacted by the General Assembly. The
Agency transmitted a copy to a representative of RCGA by email on December
11,
2002. The
Agency received comments from RCGA on February
14, 2003. Those comments and the
RCGA’s questions are discussed later in this testimony. The Agency had already sent its proposal
to the Board on February
14 and thus was unable to make any changes based on the comments of
RCGA.
‘
•
•
•
C.
DISCUSSION OF PROPOSED REGULATIONS
Because the procedures ofthe Brownilelds Site Restoration Program are based on
performance ofremediation under the Site Remediation Program, the Agency believes that the
appropriate placement ofthe review procedures is in the Site Remediation Program regulations at
2
35 Ill. Adm. Code 740 (“Part 740”).
Therefore, the proposal is presented as amendments to Part
740 including a new Subpart H and miscellaneous conforming amendments to the existing Part
740.
The Agency’s Statement ofReasons adequately outlines the procedures in the rules without
further repetition here.
Following in this testimony are the comments and questions ofRCGA as to the proposed
BSRP rules as sent to the Agency onFebruary
14, 2003.
RCGA:
Ithink overall the IEPA was hying to be prettyfair with these
regulations.
The processfor applying for this grant money is pretty
cumbersome,
but mostof this is defInedby the legislation so I don’t think
there’s much we can do.
IEPA:
Iconcur
•
‘
RCGA:’
1. In 740.805(a), ask JEPA
to clarify what ‘~atisfl’ing
the requirements
ofSection 740.450” means. At this point, the applicant does not have to
have an IEPA-approved RAP
-
does this languagegive the IEPA the ability to
reject a budgetplan basedon apre-review or completeness review ofthe
RAP?
IEPA:
Ifa RAP submitted under Section 740.450
is incomplete, then Section 740.805(a)
authorizes the Agency to reject the budget plan. This ‘language was drawn from Section
740.705(a).
The same concept applies to the BSRP
as the ERTC. The Agency should not be
making decisions about whether costs in a budget are appropriate unless the Agency can
determine that the remediation, as reflected in the RAP, willbe appropriate.
RCGA:
2.
Something that’s not addressed in the legislation or regulations
pertains to the earlier reportsrequired by the SRP.
It appears that the
presumption
is that the applicant will have submitted and obtained approval
for these reportsalready,
but what
~f
theyhaven’t or what
~f
they have
submittedsome oftheprior reports but not received JEPA approval yet? (The
SRP allows a RA
to submit all the reports at one
time,
~f
it chooses, and in
some
cases, not allreports must,be submitted.)
IEPA:
Section 740.805(a) provides for the Agency to reject a budget plan unless a RAP
has been presentedto the Agency that meets Section 740.450.
3
RCGA:
3.
740.805(g)(3) states thatsubmittal.ofan amendedplan restarts the
timefor review. Does this include the 60-day waiver? Are theyreferring to
just the budgetplan,
or does any amendment to
the RAP (including one that
does not affect the budget) restart the clock?
IEPA:
The reference to “amended plan” in 740.805(g)(3) refers to “amended budget
plans”, as provided for in the introductory language of740.805(g).
RCGA:
4.
Section
740.805(i) (4) allows the JEPA
to return the budgetplan
un-reviewed
~f
it disapproves a RAP or approves a RAP with conditions. In
some cases it does not make sensefor the IEPA
to review a budgetfor a RAP
that requires signjficantrevisions,
but where the IEPA approves a RAP with
conditions,
it seemsIEPA couldprovide comments on the budget as well.
The’
LUSTprogram requires owner/operators to ‘submit cleanupplans and budgets
together and the IEPA issues comments to both,
even
~f
it does not approve
the cleanupplan -perhaps ourprogram should work the same way.
The RA is
•
payingfor this initial review ($500).
IEPA:
The language of740.805(j)(4)
fOr the BSRP parallels the language adopted by the
Board in
740.705(e)(1)
for the ERTC. The Agency’s authority to return the budget plan
unreviewed is discretionary on the part ofthe Agency; it is not mandatory.
RCGA:
5.
Under 740.810(d) (andsimilar provisions in
740.811), can the IEPA
reject a RA ‘s certification?
TL’D A.
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RCGA:
6. Is there afee paymentprovision missingfrom
740.811?
IEPA:
Yes
•
RCGA:
7.
What happens
~f
the IEPA does not complete its review ofan
applicationfor payment within the timeframes in 740.815(b)?.Is it
automatically approved or automatically denied?
,
•
IEPA:
The applicant
can wait for the Agency to complete its review ‘or the applicant can
file a request for reviewwith the Board as if the Agency had denied the request
RCGA:
8. It appears the reference
to
“budget plan” in
740.815(c) should be
changed to
“application.”
IEPA:
Section
740.815(c) uses the word “application”.
4
RCGA:
9.
The regulations are not clear on when an amended application must be
submittedunder 740.815.
The statute allows IEPA
to
approve an application
with mod~flcations
-
the regulations should clarify that this type of
approval does not require submittal ofan amended application, only
~f
the
IEPA disapproves the application. Also the regulations shouldprobably
specify that a RA couldsubmit an amended application in the event the IEPA
disapproves an application.
IEPA:
It is not clear from the question as to whether the concernrelates to submitting an
amended application before, or after, the Agency decision. Where an application is approved
with modifications the modified approval stands as the determination controlling future actions,
• unless an appeal is filed with the Board. An applicant who receives
an IIEPA disapproval can file
an appeal with the Board orsubmit a neW application meeting the points of the disapproval.
RCGA:
10.
Under 740.830,
can the IEPAprovide spec~flc
examples,of
subparagraphs (c),
(g),
(h) and
0)
IEPA:
Example of(C):
construction ofa building. Example of(g): contractor backs over
and destroys monitoring well. Example of(h):
construction of a building. Example of(j):
purchase ofx-ray fluorescence monitoring equipment.
RCGA:
11. Also under 740.830,
subparagraph
(n), as currently drafted, gives
the JEPA too
much discretion.
Regarding subparagraph (w), will the IEPA
publish a list ofreasonable rates so RA ‘s know what is unreasonable?
Will
the reasonable and customary rate sheetfor the LUSTprogram thatIEPA
is
working on now with the Consulting Engineers Counsel also apply to our
program?
IEPA:
‘
•
As to 740.830(n), the Board used the same language in 740.730(p) forthe ERTC.
As to 740.830(w), this question is premature since the Agency has nOt proposed to the Board a
change to the Board regulations on the LUST reimbursement program under Part 732.
RCGA:
12. According to
the rules,
no costs incurredprior to DCCA approval
(step 4) are reimbursable. It is key thatthe IEPA will acceptfor step
1,
a
general or rough budgetfor the site.
Otherwise,
thepotential developer
will have to spendafair amount ofmoney,
which is not reimbursable, and
they mayfind out that the money doesnot exist or the site doesn’t meet
DCCA ‘s approval.
IEPA:
I concur.
RCGA:
13.
Step 6
is an optionfor the RA. However, jf this step is not done,
the developer risks the JEPA disapproval ofcosts durinEfinal approval
5
(step, 9). This will be after they are incurred, so the RA
is wise to pursue
pre-approval.
The Rules state in
740.805.a thatthis budget can’t be
submitteduntil the RAP is submitted
The costs to complete a RAP can be
considerable (hundreds ofthousands ofdollars) and the RA runs the risk
that the IEPA will not approve these costs.’
IEPA:
.
I concur, although the costs can be quite variable from site to site.
RCGA:
14.
The additional time associatedwith going through this program is
going to be cumbersome. There is no indication ofhow quicklyIEPA will
complete Step 2 or ofhow quicklyDCCA will complete their approval.
NormallyJEPA has
60’ or 90 days to approve reports.
The wayI readSection
740.805
e and g 2,
the JEPA gives itselfan additional 60 days to approve
theprojected budget. IE, for this step alone,
the IEPA will have between
120 and 150 days.
IEPA:
‘
The interpretation ofthe proposed rules is correct. The procedures for
reimbursement could well prove to be cumbersome, but this is the framework set forth in the
legislation. An applicant is required to follow these procedures only if and whenthe applicant
chooses to seek reimbursement.
RCGA:
•
15. Assuming thatEPA initial approval (Step 2) and DCCA approval (Step
4) take 30 days each and IEPApre approval (Step 6) takes 120. days, the
developer will have an additional 180 days before they can
begin site
remediation.
This
is on top of the time
it
will takefor their consultant to
submit all ofthe budgets conduct the site investigation and generate the
RAP.
IEPA:
An applicant who wants to
take advantage ofreimbursement under the BSRP
must be very careful in planning ahead on site activities to account forAgency and DCCA
reviewtimes.
RCGA:
16.
I.E.
at a minimum the
“additional 60 days” needs to be
eliminated
and ~fpossible, the timefor’initialIEPA and DCCA
approval needs to be
defined, hopefully as a limitedperiod Also,
the IEPA will hopefully
understand that the initial budget thatwill be submittedwill not be very
detailed
IEPA:
I disagree that
the “additional 60 days” needs to be eliminated. If it is eliminated
then the Agency will have’to review the RAP and the budget plan within the same 60 days. This
would mean that the Agency would be given no time to review, by regulation, the budget plan.
6
D.
TECHNICAL FEASIBILITY
No new technical requirements are created by the proposed Subpart H.
All that will be
required ofRAs and their consultants will be to maintain records ofsite activities
and expenses.
and assemble them for purposes ofthe applications for review.
These activities are similar to
those long required ofLUST owner/operators seeking payment from the UST Fund.
Therefore,
the Agency concludes that no issues of technical feasibility are raised in this proposal.
E.
ECONOMIC REASONABLENESS
As described previously, Section
58.15(B)
ofthe Act prescribes in substantial detail how
the BSRP is to function. As a result, there is little discretion as to the form and content ofthe
procedures, and any economic issues are diminished forthe purposes ofthis rulemaking.
Moreover, no new regulatory burdens are imposed as a result ofthis proposal.
Application for
the BSRP reimbursement is elective, and potential applicants may decide forthemselves if the
benefits outweigh the costs.
.
.
TifiS FILING IS
SUBMITTED
ON RECYCLED
PAPER.
7
STATE OF ILLiNOIS
)
COUNTY OF SANGAMON)
PROOF OF
SERVICE
•
I, the undersigned, on oath state that I have served the attached Testimony ofGary P. King
on behalfofthe Illinois Environmental Protection Agency upon the person to whom it is directed,
by placing a copy in an envelope addressed to:
Dorothy M. Gunn, Clerk
Pollution Control Board
James
R.. Thompson Center
100 West Randolph St.,
Ste 11-500
Chicago, Illinois 60601
(Federal Express)
Attorney General’s Office
Environmental Bureau
188 W. Randolph, 2O~’Floor
Chicago, illinois 60601
(15t Class)
Robert T. Lawley
Dept. OfNatural Resources
OneNatural Resources Way
Springfield, Illinois 62702
(1St Class)
See Attached Service List
(Vt
Class)
OFFICIAL
SEAL
BRENDA•BOEHNER
NOTARY
PUBLIC,
STATE
OF
IWNOIS
~:
?MY
COMMISSION
EXPIRES
U.14~2OO5?
~
and mailing it from Springfield,’ Illinois on
I
1~
b
f(LI..I
S~SCR~ED
AND SWORN TO BEFO~~
thsLE~ayof/f~r~)
~o~3
Notary Public
•THIS ‘FILING IS SUBMITTED ON RECYCLED PAPER
Dickett
Diver
Dunn
Dye
Dyer
Frede
Gobelman
Gunn
Hambley, Ph.D.,
P.B.,
P.O.
Jamison
Lawley
Mack
Messina.
Moncek
R 03~.20SERVtCE LIST*
IN THE MATTER OF: BROWNFIELDS SITE
RESTORATION
PROGRAM;
AMENDMENTS TO
35 iLL
ADM. CODE 740
Updated
April
11,2003
fname
Matthew
ErinB.
company
Hearing
Offic&
Illinois
Pollution Control Board
TheJeff
Diver Group, LLC
Environmental Department
Man~iger
Midwest Engineering Services,
Inc.
William 0.
Sidley
Austin Brown & Wood
The
JeffDiver Group, LLC
Chie.f
Environmental
Bureau
Office Of the AltorneyGeneral
Ronald.R.
CORB Geological Services,
Inc.
Judith
S~
Assistant Counsel
Illinois Environmental
Protection.
Agency
Lisa
,
Chemical
Industry
Council of
Illinois
Steven
‘
IDOl
Bureau of
Design &
Environment
DorothyM.,
Clerk
illinois Pollution
Control Board
Douglas F.
Practical
Biwironme.ntat
Consultants, Inc.
EnvironmentaL Operations, Inc.
Chief Legal Counsel
Illinois
Department
f
Natural
Resources
Deutsch, Levy & Engel, Chtd.
Illinois
Environmental
Regulatory Group
United Environmental
Address.
100W. Randolph Street
Suite
11-500
1749
South t’IapervileRoad.
Suite 102
4243
W.
I 66thStre~t
Bank One
Plaza
10
S. Dearborn
Street
1749 South
Napervi~ie
Road,
Suite
102
188W. Randolph, 2t~th
Floor
2621
MOn
t~go,
Suile
C
1021
North Grand 4venue East
P.O.Box
19276
2250
E.
Devon
Avenue;
Suite
239
2300
S.
Dirksen
Pthkwñy
IOU W.
Randolph
Street
Suite 11-500
919
N.PlumGrov~Road,SuiteE
111 1~4.SxthStr4Suit~30l
OneNatural Resoutces Way
225
W.
Washingtot~
Street
Suite 1700,
3150Roland
Aven~ue
119
11 Palatine
Rdad, Suite
101
citystate
Chicago’,
IL
Wheaton,
IL
Oak Forest,
u:~
Jeffrey R.
Matt
George F.
Robert
Karen
Kavanagh
Robert
A.
George F.
zip
60601
6Q1~7
60452
Chicago, IL
60603
Wheaton,
ii.,
Chicago. IL
60187
60601
62704
62794-9276
Springfleld,
EL
Springfield., IL
Des
Plaines, IL
‘
60018.
Springfield,
IL
62703
Chicago, IL
60601
Schaumburg. IL
60173
Springfield,
IL
Springfield, IL
62701
62702-1271
Chicago,IL
.60606
Springfield,
IL
Palatine, IL
62703
60067
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‘A-
R 03-20 SERVICE LIST~
‘
IN
THE
MATTER OF:
BROWNT~ELDSSITE
RESTORATION PROGRAM;
AMENDMENTS TO
35
ILL ADM. CODE740
Updated April11.
2003
Consultants,
Inc.
.
Perznn
Chris
Office
of
the
AttorneyGeneral
188W. Randolph,
Suite
20
-
,
Chicago, IL
60601
Environmental
LawBureau
.
Petersen
Daniel W.
ERM, Inc.
~.
7O4NorihDeerpath Drive
‘
Vernon
Hills, IL
60061
Poplawalci
,‘
Steven
Bryan Cave, L.L.P.
OneMetropolitan ~q.,
Suite3600
‘
St. Louis,MO
63102
Rapps, PB.
h~ichae1
.
Rapps Engineering& Applied
‘
821 S. Durkin Drive
Springfield,
IL
62704
Science,
Inc.
Sechen
Glenn
C.
Schain,
Burney, Ross & Chron,
.
222
N.
LaSa1leStre~t,
Suite 1910.
Chicago, IL-
60601
Ltd.
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Vogel
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Muselte H.
The Sto!ar Partnership
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TheLammert
BUilding
St.
Louis,,MO
63101-1.290
911 .W. Was hingto~i,
71b
Floor
Yonkauski, Jr.
Stanley
‘
Legal
Services
‘OneNatural Resoudc~
Way
-
‘
Springfield, IL
62702-1271
illinois-Department
of
Natural’
Resources
.
‘
*Subject tochange without notification. Please contact ~he
Clerks Office-at 312-814-3’16
i. ió obtain the current list.