1. Keefe Reporting Company
      2. Keefe Reporting Company
      3. Keefe Reporting Company
      4. Keefe Reporting Company
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
3
4
IN THE MATTER OF:
5
04D
(1F~’~
OFFICE
MAY
0 7
2003
STATE OP ILLINOIS
Pollution
Control
Board
6
BROWNFIELDS SITE RESTORATION
7
PROGRAM
(35 ILL. ADM.
R03-020
8
CODE 740)
Rulemaking-Land
9
10
11
12
13
14
Proceedings held on April 30,
2003, at 9:59 a.m.,
at the
15
Illinois Pollution Control Board,
600 South Second
16
Street, Suite 402, Springfield,
Illinois, before
Amy
C.
17
Antoniolli,
Hearing Officer.
Reported By:
Karen Bristow,
CSR, RPR
CSR License No.:
084-003688
KEEFE
REPORTING COMPANY
11 North 44th Street
Belleville,
IL
62226
(618)
277—0190
1
1
2
18
19
20
21
22
23
24
Keefe Reporting Company
1
APPEARANCES
2
3
Board Members present:
4
5
Chairman Thomas E.
Johnson
Board Member Lynne
P.
Padovan
6
Board Member Nicholas
J. Melas
Board Member Doris
C.
Karpiel
7
8
Board Staff Members Present:
9
Erin Conley
10
11
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
12
BY:
Kimberly A.
Geving
Assistant Counsel
13
Division of Legal Counsel
1021 North Grand Avenue East
14
Springfield, Illinois
62794-9276
On behalf of the Illinois EPA
15
BY:
Judith S. Dyer
16
Assistant Counsel
Division of Legal Counsel
17
1021 North Grand Avenue East
Springfield, Illinois
62794-9276
18
On behalf of the Illinois EPA
19
20
21
22
23
24
2
Keefe Reporting Company
1
INDEX
2
3
WITNESS
PAGE NUMBER
4
5
GARYKING
9
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
3
Keefe Reporting Company
1
EXHIBITS
2
3
NUMBER
MARKED
FOR I.D.
ENTERED
4
5
IEPA Exhibit No.
1
5
9
6
IEPA Exhibit No.
2
5
7
8
(Exhibits attached to transcript.)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
4
Keefe Reporting Company
1
PROCEEDINGS
2
(April 30, 2003; 9:59 a.m.)
3
(IEPA Exhibits Nos.
1 and 2 marked for
4
identification before the hearing commenced.)
5
HEARING OFFICER ANTONIOLLI:
Welcome, everybody,
to
6
the Illinois Pollution Control Board.
Good morning.
My
7
name is
Amy
Antoniolli, and I have been appointed by the
8
board to serve as hearing officer in this proceeding
9
entitled “In the Matter of Amendments to 35 Illinois
10
Administrative Code 740, Site Remediation Program,”
11
which the board references as R03-20.
Please indicate
12
R03-20 when you submit information to the board
13
regarding this matter.
14
Present today and sitting on my right, your left,
15
is Mr. Nicholas Melas,
the lead board member assigned to
16
this matter.
Seated to the right of Member Melas is
17
Member Lynne Padovan, and seated to my left is Member
18
Doris Karpiel.
Also present from the board today is
19
Pollution Control Board Chairman Mr. Tom Johnson, and
20
also present from the Pollution Control Board is Erin
21
Conley.
22
This proceeding is a rulemaking and was filed on
23
February 18, 2003, by the Environmental Protection
24
Agency.
Today is the first of two scheduled hearings in
5
Keefe Reporting Company
1
this matter.
The second hearing will take place on
May
2
14, 2003,
in Chicago.
Today’s hearing will be governed
3
by the board’s procedural rules for regulatory
4
proceedings.
All witnesses will be sworn in and subject
5
to cross questioning.
6
The purpose of today’s hearing is to hear the
7
prefiled testimony of the agency in this matter and then
8
allow questions to be asked of the agency.
The agency
9
has prefiled testimony for one witness, Mr. Gary King,
10
who is the manager of the Division of Remediation
11
Management within the Bureau of Land of the Illinois
12
Environmental Protection Agency.
The prefiled testimony
13
will be read into the record as if read.
Mr. King may
14
then give an oral
summary
of that testimony.
15
The board will then allow questions directed to the
16
agency’s witness to begin,
although we have no other
17
members of the public present today so far.
Anyone may
18
ask a question.
However,
I do ask that you raise your
19
hand and wait for me to acknowledge you.
If you are
20
speaking over each other, the court reporter will not be
21
able to get your questions on the record.
Please note
22
that any question asked by a board member or staff are
23
intended to help build a complete record for the board’s
24
decision and not to express any preconceived notion or
6
Keefe Reporting Company
1
bias.
2
I have placed a list at the side of the room for
3
anyone else who wishes to testify today.
Also at the
4
side of the room are sign—up sheets for the notice and
5
service list.
If you wish to be on the service list,
6
you will receive all pleadings and prefiled testimony in
7
this proceeding.
In addition, you must serve all of
8
your filings on the persons on the service list.
If you
9
wish to be on the notice list, you will receive all
10
board and hearing officer orders in the rulemaking.
If
11
you have any questions about which list you should be
12
on, please see me.
13
There are also copies of the current service and
14
notice lists at the side of the room.
Please also find
15
copies of the current service and notice list, a few
16
copies of the board’s order and notice of hearing.
Also
17
at the side of the room on the table is the agency’s
18
proposal, an errata sheet and-— that the agency
19
submitted preliminarily making some corrections to the
20
original proposal.
21
At this time I would ask if Member Melas wishes to
22
say anything.
23
BOARD MEMBER
MELAS:
Other than to just welcome
24
everybody here, and we’re looking forward to a
7
Keefe Reporting Company
1
productive meeting.
Hopefully there may be some members
2
of the public that have already spoken here, and they
3
will have an opportunity, of course, to file comments.
4
HEARING OFFICER ANTONIOLLI:
Okay.
At this time,
5
we’ll turn to the agency’s attorney, Ms. Kimberly
6
Geving, for opening statements, if she has any.
7
MS.
GEVING:
Good morning.
As Amy stated, my name
8
is Kimberly Geving.
I’m assistant counsel for the
9
Bureau of Land of the Illinois Environmental Protection
10
Agency.
With me today to my right is Judy Dyer,
11
co-counsel, and to my left is Gary King,
the Division of
12
Remediation Management manager and attorney.
13
I don’t per se have any opening comments at this
14
time except to say that I have also brought extra copies
15
of our testimony that was prefiled under Gary’s name
16
over at the side table as well.
There are about ten
17
copies there, and if anything else is needed,
I could
18
certainly provide those at a later time.
19
I in advance had the court reporter mark as
20
Exhibits 1 and 2 two items.
The first one is Exhibit
21
1--
it is a copy of Gary King’ s testimony-- and Exhibit
22
No.
2
I had marked as errata sheet number 1, and I will
23
be mentioning those this morning and asking Gary to
24
summarize those.
At this time,
if you want to have the
8
Keefe Reporting Company
1
witness sworn in.
2
(Witness sworn.)
3
MS. GEVING:
Then at this time
I would go ahead and
4
lay some foundation for Mr. King’ s testimony, if that’ s
5
all right.
6
HEARING OFFICER ANTONIOLLI:
Please do.
7
MS.
GEVING:
Mr. King,
I’m going to hand you what’s
8
been marked as Exhibit 1 for the record.
Could you
9
please tell me if you can identify that?
10
MR. KING:
Yes,
I’m familiar with this document.
11
MS. GEVING:
And
what is it?
12
MR. KING:
This is a document entitled “Testimony
13
of Gary P. King,” and it’s a document that
I prepared.
14
MS. GEVING:
Is it a current and accurate copy of
15
what was filed with the Court?
16
MR. KING:
Yes, it is.
It certainly appears to be
17
so.
18
MS. GEVING:
Okay.
At this time
I would make a
19
motion to have the board accept this into the record.
20
HEARING OFFICER ANTONIOLLI:
Are
there any
21
objections?
Seeing none,
I will accept the exhibit as
22
Exhibit No.
1, Mr. King’s prefiled testimony.
23
MS.
GEVING:
At this time, Mr. King, I’m handing
24
you what’s been marked as Exhibit No.
2, and if you
9
Keefe Reporting Company
1
could identify that for the record.
2
MR.
KING:
Yes.
This is a document entitled
3
“Errata Sheet Number 1” and just has corrections that
4
we made to our proposal in light of some numbering
5
issues within the rules as they were first filed.
6
MS. GEVING:
And is that a true and accurate copy
7
of what was filed with the board?
8
MR. KING:
It appears to be so, yes.
9
MS.
GEVING:
At this time
I would make a motion to
10
have the board accept Exhibit No.
2 into the record.
11
HEARING OFFICER ANTONIOLLI:
Can I also have a copy
12
of the exhibit?
13
MS. GEVING:
Pardon?
14
HEARING OFFICER ANTONIOLLI:
Can I also have a copy
15
of the exhibit?
16
MS.
GEVING:
Yes, absolutely.
17
HEARING OFFICER ANTONIOLLI:
Okay.
You can go
18
ahead.
19
MS. GEVING:
Okay.
Mr. King,
would you like to
20
provide a summary, then,
of your testimony,
please?
21
MR. KING:
Certainly.
I’ll go back in time just a
22
little bit, give you a little background.
Back in
I
23
believe it was 1997, legislature passed a bill that
24
incorporated the Environmental Remediation Tax Credit
10
Keefe Reporting Company
1
Program, and that provided for a five-year life on that
2
program, and that sunsetted December 31,
2001.
The
3
primary proponents of that from a legislative standpoint
4
was the—— were the Regional Commerce and Growth
5
Association of Greater
St. Louis, and during the course
6
of the years that the tax-- state tax credit provision
7
was in effect, we really did not—— the board of course
8
adopted a set of rules to implement that, and we really
9
did not see much use of that provision over the five
10
years it was in effect.
I think we maybe had a total of
11
four or five tax credit—— tax credits that we approved
12
during that period of time; certainly not what was
13
anticipated would happen.
14
So before the-- that tax credit expired, RCGA
15
wanted to put into place a different type of financial
16
incentive for cleanup and reuse of Brownfield sites that
17
they thought would be more effective and would get more
18
use than the tax credit provision would, and so that was
19
kind of the genesis of the amendments to the
20
Environmental Protection Act, and so what we have
21
carried forth in our rules is the—— in substance is what
22
is in the statute.
The statute is very detailed, and
23
where we had to fill in gaps,
we drew from language
24
which was in the old tax credit rule that the board had
11
Keefe Reporting Company
1
adopted.
2
Basically, the way this program was intended to
3
work,
the new program, the Brownfield Site Restoration
4
Program, is that if somebody were interested in getting
5
funding out of this program, which is now-- was intended
6
to be more of a reimbursement—— a direct reimbursement
7
type program as opposed to a tax credit program,
8
initially it would start with coming to the agency to
9
see if there in fact was money available to do this kind
10
of thing, and that would be kind of-- that would be a
11
nonbinding determination there as to whether it looked
12
like there would be funding for what they would-- the
13
applicant would want to do.
14
The applicant would then go to DCCA under the
15
statutory terms and have-- DCCA would make an
16
eligibility determination as to whether this is the type
17
of project that would qualify for the reimbursement
18
plan.
It then would come back to the agency, go through
19
our site remediation program to get the cleanup done,
20
then once the cleanup was done and the—- no further
21
remediation letter was filed, then they could request
22
reimbursement for their cleanup expenditures in
23
accordance with the-- DCCA’s eligibility determination,
24
then also in accordance with the statutory provisions
12
Keefe Reporting Company
1
and the rules that we’ve proposed here in this
2
proceeding.
3
It is a-- It undoubtedly is a complex proceeding--
4
procedure and it certainly has a lot of steps to go
5
through, but, you know,
in essence, given what has
6
happened with the state budget,
I think it was wise that
7
there was a significant number of steps put into the
8
process before, you know,
in essence somebody would get
9
a reimbursement from the State for this type of project.
10
And so that’ s what we have.
We have had nobody
11
come in to us at this point-- nobody come in to the
12
agency and ask for a preliminary determination asto
13
whether funding was available or not,
so we really have
14
not had anybody come through to-- even to go to the
15
first step of this long process.
16
So that’s kind of--
And
then we-- when we had
17
prepared the proposal, we sent it out to RCGA in
18
December.
They received it and indicated to me they
19
would be submitting some comments back,
and, you know,
20
this is kind of almost,
you know, how these things
21
happen.
We received the comments from RCGA on the
22
afternoon of February 14, and of course we had sent
23
our—— put our proposal in the mail to send to the board
24
on the morning of the 14th, so—— you know,
so rather
13
Keefe Reporting Company
1
than bothering to try to pull that out of the mail or
2
whatever, we——
I just figured in the—— as far as the
3
testimony,
I would go ahead and address the questions
4
that they raised in the e-mail they sent to me, and I
5
did that, went through the specifics of that, as you see
6
in the testimony I prepared.
7
So that’s all I have as far as a summary, and I’d
8
be happy to take any questions.
9
HEARING OFFICER ANTONIOLLI:
We will now proceed
10
with questions for Mr. King.
If anyone has questions,
11
please raise your hand and I will acknowledge you.
12
CHAIRMAN
JOHNSON:
This is a picky point, but just
13
for the record,
all the documents are replete with
14
references to DCCA, and just for the record,
we should——
15
the department formerly known as the Department of
16
Commerce and Community Affairs is now known as what?
17
DCOE?
Is that--
18
BOARD MEMBER PADOVAN:
Economic Opportunity.
19
HEARING OFFICER ANTONIOLLI:
DCEO,
I think.
20
BOARD MEMBER PADOVAN:
Department of Commerce and
21
Economic Opportunity.
22
MR. KING:
We didn’t make those changes the-- at
23
this point because the statute still has the DCCA.
24
CHAIRMAN
JOHNSON:
Right, and whenever these were
14
Keefe Reporting Company
1
drafted, I’m sure that that was-- DCCA was still in
2
existence.
I just wanted to——
3
MR. KING:
Right.
4
CHAIRMAN
JOHNSON:
--
make
note
of
that
change
in
5
department
title
for
the
record.
6
MS. GEVING:
One more point of clarification too.
7
Gary,
if you could for the record state what the acronym
8
RCGA
stands for.
9
MR. KING:
Oh, yeah.
Again, that-- RCGA stands for
10
Regional Commerce and Growth Association of Greater St.
11
Louis.
12
MS.
GEVING:
Thank you.
13
HEARING OFFICER ANTONIOLLI:
Okay.
And I have a
14
question for you, Mr.
King.
In the Section 740.100, in
15
section C, under that purpose section, should we
16
identify DCCA or the new DCEO as the assisting agency?
17
Because that agency is included within the statutory
18
language.
19
MR.
KING:
I would have no objection to that.
20
HEARING OFFICER ANTONIOLLI:
Okay.
Something--
And
21
then again, in Section 740.120, in the definitions, we--
22
would you suggest including DCCA as a definition and
23
defining it as we do with agency as the Environmental--
24
or the Illinois Environmental Protection Agency?
15
Keefe Reporting Company
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MR. KING:
I think that would be a-- Yes,
I
think
2
that’d be good,
and as Board Member Johnson was saying,
3
I think that would be a good place to maybe handle this
4
transition language from DCCA to DCEO.
5
HEARING
OFFICER
ANTONIOLLI:
Very
good.
Member
6
Melas, do you have a——
7
BOARD MEMBER
MELAS:
As an aside, how do you
8
pronounce DCEO?
9
MR. KING:
Well,
I keep thinking decoupage.
I
10
don’t know.
11
CHAIRMAN
JOHNSON:
It’s been DCCA for a long time.
12
BOARD MEMBER
MELAS:
Yeah.
I
just
have
a
question
13
on the 740. 905 (e), which is the preliminary review of
14
these remediation costs, and when RCGA posed their third
15
question to you, Gary,
they asked if the submittal of an
16
amended budget plan could be deemed as a new 60-day
17
waiver of the RAP deadline, and they also asked if only
18
the budget amendment would restart the time for review
19
or if any amendment for the plan would restart the
20
clock.
It seems that the answer to this question is
21
that it’s only a budget amendment that restarts the
22
clock.
Is that the correct assumption?
23
MR.
KING:
Let me explain that a little bit.
I
24
mean,
if you’re looking simply at 905, that’s correct.
16
Keefe Reporting Company
1
Only the budget plan restarts it under 905, because
2
that’s what 905 applies to.
3
BOARD MEMBER
MELAS:
Strictly the budgets.
4
MR. KING:
Right, right.
But there is a-- there
5
are corollary provisions within the other part—— other
6
portions or sections of part 740 that deal with amended
7
remedial
action
plans.
8
BOARD
MEMBER
MELAS:
Oh.
9
MR. KING:
And those would govern our remedial
10
action plan.
11
BOARD MEMBER
MELAS:
And
those also would provide
12
for
that
extension?
13
MR.
KING:
Yeah,
right.
They
would
provide
for
a
14
restart.
15
BOARD MEMBER MELAS:
A restart.
Okay.
Then going
16
down to their sixth question, RCGA wanted to know if
17
there is a fee payment schedule missing from Section
18
940.911.
What is missing there?
19
MR. KING:
My answer there was a very succinct
20
“yes.”
21
BOARD
MEMBER
MELAS:
You
said
yes.
22
MR.
KING:
Yeah,
I
did
say
yes,
so--
but
if
you
23
look
at
Section
910(c),
Section
910,
subsection
C,
there
24
is a parallel fee provision element that could be
17
Keefe Reporting Company
1
included or probably should be included in 911.
Neither
2
one of those is absolutely necessary, because in the
3
actual—— they’re more of a cross—reference to the other
4
payment section under 820, but
I think that’s what they
5
were getting at with the-- with that question.
6
BOARD MEMBER
MELAS:
Okay.
Then just a last
7
question that
I had.
Under Section 740.920, under fees
8
and manner of payment, should we identify that
9
subsection
A
and
B
are
statutory
requirements
with
10
italics and then cite the Section 58.15?
11
MS. GEVING:
If
I might jump in here and answer
12
that question for you,
I think that the rules are worded
13
a little bit differently than the statute, although
14
that’s where the authority for that language comes
15
from.
What I’ve done in previous rules when I—— when
16
language has been changed or derived from the statute,
17
in parentheses
I would put a clause that it’s derived
18
from whatever section of the act that that comes from,
19
and I’d be happy to do that here.
20
BOARD MEMBER MELAS:
Okay.
21
HEARING OFFICER ANTONIOLLI:
Okay.
Are
there any
22
other further questions at this time?
Okay.
Let’s go
23
off the record for a few minutes and we can discuss a
24
prefiling deadline for the next hearing.
18
Keefe Reporting Company
1
(Discussion held off the record.)
2
HEARING OFFICER ANTONIOLLI:
Okay.
We’ll go back
3
on the record now,
and we set the prefiling deadline for
4
May
9,
so the board has a second hearing scheduled for
5
May
14,
2003,
in Chicago.
The hearing is at 1 p.m.
in
6
Room 225 on 100 West Randolph Street, and that’s in the
7
James R.
Thompson Center.
8
The transcript in this matter will be available on
9
the board’ s Internet Web site, and the Web site is
10
www.ipcb.state.il.us.
As soon as it becomes available,
11
we’ll post it there.
If anyone would like a copy of the
12
transcript, please speak to the court reporter
13
directly.
If you choose to order a copy of the
14
transcript from the board,
the cost is 75 cents a page,
15
but as
I mentioned, you can download the transcript from
16
the Web site when it becomes available for no charge.
17
If there’s nothing further,
I want to thank
18
everyone
for
coming
and
for
your
comments
and
19
testimony.
This discussion will continue at the next
20
hearing in Chicago, and that’s all for today.
21
(Hearing
adjourned.)
22
23
24
19
Keefe Reporting Company
1
STATE OF ILLINOIS
)
)
SS
2
COUNTY
OF
ST.
CLAIR)
3
4
5
I,
KAREN
BRISTOW, a Notary Public and
6
Certified
Shorthand
Reporter
in
and
for
the
County
of
7
St.
Clair,
State
of Illinois, DO HEREBY CERTIFY that I
8
was present at 600 South Second Street, Suite 402,
9
Springfield, Illinois,
on April 30, 2003, and did record
10
the aforesaid Hearing; that same was taken down in
11
shorthand by me and afterwards transcribed upon the
12
typewriter, and that the above and foregoing is a true
13
and correct transcript of said Hearing.
14
IN WITNESS WHEREOF I have hereunto set
15
my hand and affixed my Notarial Seal this 3rd day of
16
May,
2003.
~ICIALSEAL”
____
KAREN
BRISTOW
20
Notary Public, State of Illinois
Notary
Public——CSR
My commission expires
10/16/2004
21
#084—003688
22
23
24
20
Keefe Reporting Company
A
10:11,14,17
18:13
coming 12:8
deal
17:6
Erin 2:9 5:20
able 6:21
14:9,19 15:13
board
1:1,15 2:3
19:18
December 11:2
errata 7:18
8:22
about
7:11
8:16
15:20 16:5
2:5,6,6,8 5:6,8
commenced 5:4
13:18
10:3
above 20:12
18:21
19:2
5:11,12,15,18
comments 8:3,13
decision 6:24
essence 13:5,8
absolutely
10:16
anybody 13:14
5:19,20 6:15,22
13:19,21
19:18
decoupage 16:9
even 13:14
18:2
anyone
6:17
7:3
7:10,23 9:19
Commerce 11:4
deemed
16:16
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17:1,2
8:19
19:12 20:6
10:3
summarize 8:24
turn 8:5
910
17:23
3
Keefe Reporting Company
910(c) 17:23
911
18:1
940.911
17:18
4
Keefe Reporting Company
Appendix
Testimony ofGary P. King on behalf ofthe Illinois Environmental Protection
Agency(exhibit 1)
Errata sheetnumber one submitted by the Illinois Environmental Protection Agency
(exhibit #2
EXHiBiT
BEFORE THE
POLLUTION CONTROL BOARD
I
_______
OF THE STATE OF ILLINOIS
~
~
I~3
)
TN THE MATTER OF:
)
)
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 of Remediation Management
within the Bureau of Land of the Illinois Environmental Protection Agency (‘Agency”). I have
been in my current title since May 1990.
Prior to
assuming my current position I was the senior
counsel for the Bureau of Land 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
of the Environmental Protection Act (“Act”) was amended
by P.A. 92-715,
effective July 23,
2002 to add
Subsection (B), the Brownfields Site Restoration Program
(“BSRP”).
Proponents ofthe BSRP legislation hoped it would provide an effective financial
incentive for the cleanup and reuse of Brownfield 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 proposed regulations prescribing procedures and standards for the
administration of the
BSRP.
Section
58.15(B) prescribes in substantial detail the procedures for obtaining
reimbursement under the
BSRP.
B.
REGULATORY DEVELOPMENT
Because the statutory language of P.A.
92-715 is very explicit on many issues relative to
the administration of this program, development of this rulemaking proposal has been straight-
forward. Because much of the language ofthe Section
58.15(B)
BSRP finds parallel language in
the
Section
58.14
ERTC,
the Agency has drawn much of the language for this rulemaking from
35
III. Adm.
Code
740 Subpart G.
The Agency sought input on this rulemaking from the Regional Commerce 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 ofRCGA 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 conmients of
RCGA.
C.
DISCUSSION OF PROPOSED REGULATIONS
Because the procedures ofthe Brownfields 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 of RCGA as to
the proposed
BSRP rules as sent to the Agency on February 14, 2003.
RCGA:
I think overall the IEPA was trying to be prettyfair with these
regulations.
The processfor applyingfor this grant money is
pretty
cumbersome, but most of this is defined by the legislation so Idon’t think
there’s much we
can
do.
IEPA:
Iconcur
RCGA:
1. In 740.805(a), ask IEPA to clar~what “satisj5iing the requirements
ofSection
740.450” means. At this point, the applicant does not have to
have an IEPA-approved
RAP
-
does this language give the IEPA the ability to
reject a budgetplan based on apre-review or completeness review ofthe
RAP.?
IEIPA:
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, will be appropriate.
RCGA:
2. Something that’s not addressed in the legislation or regulations
pertains to the earlier reports required by the SRP.
It appears that the
presumption is that the applicant will have submitted and obtained approval
for these reports already,
but what jfthey haven’t or what
~f
they have
submittedsome ofthe prior reports but not received IEPA approval yet? (The
SRP allows a RA to submit all the reports at one time,
~f
it
chooses, and in
some
cases, not all reports must be submitted.)
IEPA:
Section 740.805(a) provides for the Agency to reject a budget plan unless
a RAP
has been presented to the Agency that meets Section 740.450.
3
RCGA:
3.
740.805(g)(3) states that submittal ofan amendedplan restarts the
timefor review. Does this include
the 60-day waiver? Are they referring 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 IEPA 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 sign~/icant
revisions,
but where the JEPA approves a RAP with
conditions,
itseems IEPA 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
flayingfor
this initial review ($500).
IEPA:
The language of 740.805(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
of the Agency; it is not mandatory.
RCGA:
5.
Under 740.810(d) (andsimilar provisions in
740.811), can the IEPA
reject a RA ‘s cert~flcation?
IEPA:
Yes. See Section
740.830(a)(2).
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 orthe applicant can
file a request for review with the Board as if the Agency had denied the request.
RCGA:
8. It appears the reference to
“budgetplan” 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
submitted under 740.815.
The statute allows IEPA to approve
an application
with mod~flcations
-
the regulationsshould clar~y5~’
that this type of
approval does not require submittal ofan amended application, only
~f
the
IEPA disapproves the application. Also the regulations shouldprobably
spec~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 concern relates 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 IEPA disapproval can file
an
appeal with the Board or submit a new application meeting the points ofthe disapproval.
RCGA:
10.
Under
740.830,
can the IEPA provide spec~f
Ic examples of
subparagraphs (c),
(g),
(h) and (‘)
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 of x-ray fluorescence monitoring equipment.
RCGA:
11.
Also under 740.830,
subparagraph
(n), as currently drafted, gives
the IEPA 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 that IEPA
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
‘74O.’73O(p) for the ERTC.
As to 740.83 0(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. Accordingto
the rules,
no costs incurredprior to DCCA
approval
(step 4) are reimbursable. It is key that the 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 does not exist or the site doesn’t meet
DCCA
‘s approval.
IEPA:
I concur.
RCGA:
13.
Step 6 is an optionfor
the RA.
However,
~f
this step is not done,
the developer risks the IEPA disapproval ofcosts duringfinal 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 that this budget can’t be
submitted until the RAP is submitted.
The costs to complete a RAP can be
coiisiderable (hundreds ofthousands ofdollars) and the RA runs the risk
that the JEPA
will not approve these costs.
IEPA:
I concur, although the costs can be quite variable from site to
site.
RCGA:
14.
The additional time associated with going through
this program
is
going to be cumbersome.
There is no indication ofhow quickly IEPA will
complete Step 2 or ofhow quickly DCCA
will complete their approval.
Normally IEPA has 60 or 90 days to approve reports.
The way Iread Section
740.805
e and g 2,
the IEPA 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 theseprocedures only if and when the applicant
chooses to seek reimbursement.
RCGA:
15. Assuming thatEPA
initial approval
(Step 2) and DCCA approval
(Step
)
4) take 30 days each and IEPA pre approval (Step 6) takes 120 days, the
developer will have an additional 180 days before they can begin site
remediation.
This is on
top ofthe 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 for Agency and DCCA
review times.
RCGA:
16. IE.
at a minimum the
“additional 60 days” needs to
be eliminated
and (possible,
the timefor initial IEPA and DCCA approval needs to
be
defined,
hopefully as a limitedperiod. Also,
the JEPA will hopefully
understand that the initial budgetthat will be submitted will not be very
detailed.
IEPA:
I disagree that the “additional 60 days” needs to
be eliminated. Ifit is eliminated
then the Agency will have to reviewthe 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
9.
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 of LUST owner/operators seeking payment from the UST Fund.
Therefore,
the Agency concludes that no issues of technical feasibility are raised
in this proposal.
F.
ECONOMIC
REASONABLENESS
As described previously, Section 58.15(B) of the 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 for themselves if the
benefits outweigh the costs.
7
IN THE MATTER OF:
BROWNFIELD SITE RESTORATION
PROGRAM
(AMENDMENTS TO 35 ILL.ADM.
CODE 740)
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, 20t~~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 Errata Sheet Number
1
of the Illinois Environmental Protection Agency,
a copy of which is
herewith served upon you.
ENVIRONMENTAL PROTECTION AGENCY
OF THE STATE OF ILLINOIS
By:
KJm~erlyGevfng
Assistant Cfurlsel
DATE:
April 18,2003
Agency File
*:
Illinois Environmental
Protection Agency
1021 North Grand Ave. East
P.O. Box 19276
Springfield,
IL 62794-9276
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
I
EXHIBIT
~1-3o-o3
~
0
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
BROW~FIELDSITE RESTORATION
)
R03-20
PROGRA~
)
(Rulemaking)
)
(AMENDMENTS TO
35
ILL. ADM. CODE 740)
)
)
ERRATA SHEET NUMBER
1
NOW COMES the Illinois Environmental Protection Agency (“Illinois EPA”) through
one ofits
attorneys, Kimberly A. Geving, and submits this ERRATA SHEET NUMBER
1
to the
Illinois Pollution Control Board
(“Board”) and the participants listed on the Service List.
It appears that the Illinois EPA’s February 14, 2003 Proposed Amendments submitted to
the Board were based on a version ofPart 740 that was adopted prior to
themost recent
amendments (which were adopted in April of 2002).
Therefore, the Illinois EPA is now
submitting this
ERRATA SHEET NUMBER
1 to correct the errors
in
its February 2003
submittal.
Language that has already been adopted by the Board, but inadvertently omitted by the
Illinois EPA. will not be reflected with
underlining.
However, corrections to the current proposal
will be reflected with underlining.
Section
Contents page
740.53
5
Establishment ofSoil Management Zones
Contents page
740.62 1
Requirements forNo Further Remediation Letters Issued to
Illinois
I
Department ofTransportation Remediation Sites Located in
Rights-of-
Way
Contents page
740.622
Requirements for Perfection ofNo Further Remediation Letters Issued to
Federal Landholding Entities Without
Authority
to Record Institutional
Controls
Contents page
Subpart H
SUBPART H:
REQUIREMENTS RELATED
TO
SCHOOLS
Contents page
740. 800
General
Contents page
740.805
Requirements Prior to Public Use
Contents page
740.8 10
Engineered
Barriers
and Institutional Controls
Contents page
740.8 15
Public Notice of Site Remedial Action Plan
Contents page
740.820
Establishment
of
Document Repository
Contents page
740.825
Fact Sheet
Contents page
SUBPART I
SUBPART I:
REVIEW OF REMEDIATION COSTS FOR
BROWNFIELDS SITE RESTORATION PROGRAM
740.900
General
740.901
Pre-application Assessment and Eligibility Determination
740.~905
Preliminary Review ofEstimated Remediation Costs
740.9 10
Application for Final Review and
payment ofRemediation Costs
740.911
Application for Final Review and Payment ofRemediation Costs
Where
the Remediation Applicant Will Remediate Groundwater For More Than
2
One Year
740.9 15
.
~gency
Review ofApplication for Review and
payment
ofRemediation
Costs
740.920
Fees and Manner ofPayment
740.925
Remediation Costs
740.930
Ineligible
Costs
Contents page
740.Table A
Volatile Organics Analytical Parameters
740.Table B
Semivolatile Organic Analytical Parameters
740.Table C
Pesticide and Aroclors Organic Analytical Parameters
740.Table D
Inorganic Analytical Parameters
Contents page
AUTHORITY
Implementing Section
58 through
58.8
and
58.10 through
58.15 58.14
and
authorized by Sections
58.5, 58.6,
58.7, 58.1
1~
and 58.14, and
58.15
ofthe
Environmental Protection Act 415
ILCS
5/58
through 58.8 and 58.10
through
58.15 58.14.
Section
740.120
Definitions
Th~
Illinois EPA proposal left out several
of the definitions that were
adopted from the most recent amendments
in April 2002.
In alphabetical
order, the following definitions should have been incorporated into
Section 740.120.
“Federal Landholding Entity” means that
federal department,
agency or
instrumentality with the authority to occupy and control the day-to-day
use, operation, and management ofFederally Owned Property.
“Federally Owned Property” means real property owned in fee by the
United States on which an institutional control is or institutional controls
are sought to be placed in accordance with this Part.
“GIS” means Geographic Information System.
3
“GPS” means Global Positioning System.
“Institutional Control” means a legal mechanism for imposing a~restriction
on land use.
“Land Use Control Memorandum ofAgreement” or “LUC
MOA” means
an agreement entered into between one or more agencies of the United
States and the Illinois Environmental Protection Agency that limits or
places requirements upon the use ofFederally
Owned Property for the
purpose ofprotecting
human
health or the environment,,or that
is used to
perfect a No Further Remediation Letter that contains land use restrictions.
“Perfect” or “Perfected” means recorded or filed for record so as
to place
the publicon notice, or as otherwise provided in Sections
740.621 and
740.622 ofthis Part.
“Soil management zone” or “SMZ” means a three dimensional region
containing soil being managed to mitigate contamination caused by the
release ofcontaminants at a remediation site.
NOTE to
Board:
all the new definitions as proposed in
the Illinois EPA’s
February 2003 submittal for this Section remain the same.
Subpart H
All references in the Illinois EPA February 2003 proposal to Subpart H
should be changed to Subpart I.
Likewise, all numbering ofthe 800 series
in our proposal should be changed to
a 900 series.
The Illinois EPA did
not intend to usurp the existing Subpart H regarding Requirements Related
to Schools.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
KimberfyA. Geving
Assistaht Counsel
Division of
Legal
Counsel
Date:
April
18, 2003
4
1021
North Grand Ave. East
P.O. Box
19276
Springfield, Illinois 62794-9276
(217) 782-5544
THIS FILING
IS SUBMITTED ON RECYCLED PAPER
5
STATE OF
ILLINOIS
)
)
COUNTY OF SANGAMON)
PROOF OF SERVICE
I, the undersigned,
on oath state that I have served the attached Errata Sheet Number
1
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
(l8t Class)
Attorney General’s Office
Environmental Bureau
188 W. Randolph,
20th
Floor
Chicago, Illinois 60601
(15t Class)
SUBSCRIBED AND SWORN TO BEFORE ME
thisjayof)~ç~
2OO~3
~)
~-~\L
~c~Qk~c\cr
NotaiyPublic
Robert T. Lawley
Dept. OfNatural Resources
One
Natural Resources Way
Springfield, Illinois 62702
(Vt Class)
See Attached Service List
(Vt Class)
and maili*~fromSpringfield, Illinois om~4.i~/
OFFICIAL
SEAL
BRENDA BOEHNER
:~
NOTARY
PUBLIC.
STATE
OF
ILLINOIS ~
:~MYCOMMISSION
EXPIRES
J1.14.2005t
..:...~,..4
THIS FILING
IS SUBMITTED ON RECYCLED PAPER
R 03-20 SEIWCE
LIST*
IN THE
MATTER
OF:
BROWNFIELDS
SITE
RESTORATION
PROGRAM;
AMENDMENTS TO
35
ILL
ADM. CODE 740
Updated
April
11,2003
Frede
Lisa
Gobelman
Gunn
Hambley, Ph.D.,
P.13, P.G.
Jamison
Lawley
fnarne
company
Amy
Hearing Officer
Illinois Pollution Control Board
Matthew
The JeffDiver Group. LLC
Environmental Department
Manager
Midwest Engineering Services,
William 0.
Sidley AusUn Brown & Wood
TheJeff
Diver Group, LLC
Chief
Envirorufiatal Bureau
Officeofthe AltorneyGeneral
CORE Geological Services,
nc.
Assistant Counsel
Illinois Environmental
Protection
Agency.
Chemical
industry Council of
lihinois
Steven
IDOT
Bureau of Design &
Environment
DorothyM,
cle&
illinois Pollution Control Board
Douglas
F.
Practical
Environmental
Consultants, Inc.
George F.
Environmental Operations,
Inc.
Robert
ChiefLegal
Counsel
Illinois
Department of
Natural
Resources
Deutsch, Levy & Engel,, Chtd.
llflnois
Bnvironrrientat
Regulatory Group
United Environmental
Moncek
George F.
Address
100 W. Randolph Street
Suite 11-500
1749
South (1apervi~JeRoad,
Suite 102
4243 W.
166th.Stre4t
BankOnePlaza
10 S. Dearborn Street
1749 South
Napecvi~Ie
ROad,
Suite
102
188.W. Randolph,
2thh
Floor
2621 Montego,SuileC
1021
NorthGrand 4venue East
P.O. Box
19276
2250 E. Devon Avtnue, Suite 239
2300 S. Dicksen Pdrlcwãy
100 W. Randolph Skeet
Suite
11
500
919N.Plüm
Grov~
Road, Suite B
ill
N. Sixth
Street, Suite
30!
One Natural
Resougces
Way
225
W. Washingto4 Street
Suite 1700
3150 Roland Avci*ie
119 13. Palatine Road, Suite 101
citystate
Chicago, IL
Wheatort, IL
Oak
Forest,
IL
zip
60601
60 t87
604~2
Chicago,
IL
60603
Wheaton, 1L
Chicago. IL
Springfleld, IL
Springfield,
IL
60187
60601
62704
62794-9276
Des
Plaines,L
60018
Springfield,
IL
62703
Chicago, ~L
Schaumburg,
EL
Springfield,
IL
Springfield,
IL
60601
60173
62701
62702-1271
Chicago,tL
60606
Sprrtgfiekt, IL
62703
Palatine, IL
60067
Antoniolli
Cohn
Curle.y
Dickett
Inc.
‘F
‘a
‘F
I,
‘a
a
Diver
Dunn
Dye
Dyer
.Jeffrey R.
MaLt
Ronald R.
Judith
S.
U
Li
-a
-J
Q
a.
a
-a
U
a
U-
0
C
0
Mack
Messina.
Karen
Kavanagh
Robert A.
0
R 03~20SERVICE UST*
IN
THE MATTER
OF: BROWNFELDS
SITE RESTORATON PROGRAM~AMENDMEm’s
1035 ILL AD.M.
CODE ‘140
Updated April
11.2003
Consultants, Inc.
.
Perzan
Chils
Office
of
th~
Attorney
Gcneral
188
W. Randolph, suite20.
Chicago, IL
60601
Environmental
LawBureau
S
Petersen
Daniel W.
ERM,
Inc.
~.
704
North
Deerpath Drive
Vernon
Hilts, IL
60061
Poplawski
Steven
Bryan Cave, L.L.P.
One Metropolitan §q., Suite3600
St.
Louis, MO
63102
Rappa, P.13.
Michael
.
Rapps Engineering& Applied
821
S.
Durkin Drive
.
Springfield,
IL
62704
Science, Inc.
.
Sechen
Glenn C.
Schain, Burney, Ross & Citron,
.
222 N. LaSalle
Stre~t,
Suite 1910.
Chicago,
EL
60601
Ltd.
.
Vogel
Musette
1-1.
The Stolar
Partnership
The Lammert Bulidling
St.
Louis,
MO
63101-1290
911
W. Washingto~t,
711)
Floor
Yonkauski, Jr.
Stanley
Legal
Services
OneNatural Resoudces
Way
Springfield, IL
62702-1271
‘IllinoisDepartment
of Natural
Resources
*SUbjecL
to change without. notification.
Please contact the
Clerks Officeat 312-814-3461 to obtain thecurrent list.

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