RECEIVED
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION CONTROL
BOARD APR 192004
iN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO REGULATION OF
)
PETROLEUM LEAKING UNDERGROUND STORAGE)
TANKS
(35
Iii. Adm. Code 732)
)
iN
THE MATTER OF:
PROPOSED AMENDMENTS TO REGULATION OF
PETROLEUM LEAKING UNDERGROUND STORAGE)
TANKS
(35
Iii. Adm. Code 734)
)
)
)
R04-23
)
(Rulemaking- Land)
NOTICE OF FILING
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph, Suite 11-500
Chicago, Illinois 60601-3218
(Overnight Mail)
SEE ATTACHED SERVICE LIST
(Regular Mail)
Marie Tipsord, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph, Suite 11-500
Chicago, Illinois 60601-3218
(Overnight Mail)
PLEASE TAKENOTICE that I have today filed with the Office ofthe Clerk ofthe
Pollution Control Board the MOTION FOR THE ADOPTION OF EMERGENCY RULES of
the Illinois Environmental Protection Agency for the above-titled proceeding, a copy ofwhich is
herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
DATE: April 16, 2004
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
(217)
782-5544
By:
‘~~~~ssistantCou~l
Kyle Ro
STATE OF ILLINOIS
Pollution Control Board
R04-22
(Rulemaking- Land)
THIS FILING IS SUBMITTED ON RECYCLED PAPER
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
APR 192004
iN THE MATTER OF:
)
)
Pollulion
STATE OF
ControlILLINOISBoard
PROPOSED AMENDMENTS TO:
)
R04-22
REGULATION OF PETROLEUM
)
(Rulemaking
-
Land)
LEAKING UNDERGROUND STORAGE
)
TANKS (35 ILL. ADM. CODE 732)
)
iN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
)
R04-23
REGULATION OF PETROLEUM
)
(Rulemaking
-
Land)
LEAKING UNDERGROUND STORAGE
)
TANKS
(35
ILL. ADM. CODE 734)
)
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S
MOTION FOR THE ADOPTION OF EMERGENCY RULES
NOW COMES the Illinois Environmental Protection Agency (“Illinois EPA”), by
and through its attorney Kyle Rominger, and submits this Motion for the Adoption of
Emergency Rules. The Illinois EPA moves that the Illinois Pollution Control Board
(“Board”) adopt as soon as possible the Illinois EPA’s proposed amendments to 35 Ill.
Adm. Code 732 and the proposed 35 Ill. Adm. Code 734 in an emergency rulemaking
pursuant to Section 27(c) ofthe Environmental Protection Act (“Act”) 4 15 ILCS
5/27(c),
Section 45 ofthe Administrative Procedures Act (“APA”)
5
ILCS
100/5-45,
and Section 102.612 ofthe Board’s procedural rules
35
Ill. Adm. Code 102.612. The
Illinois EPA makes this motion so it can review budgets and applications forpayment
from the Underground Storage Tank Fund (“UST Fund”) prior to the Board’s adoption of
final rules in this rulemaking.
The basis for this Motion is the Board’s Opinion and Order in Illinois Ayers Oil
~,
PCB 03-214 (April 1, 2004). In that opinion the Board found that the Illinois EPA’s
internal rate sheet is an improperly promulgated rule that should have been promulgated
pursuant to the Administiative Procedures Act. Id. at 16, 18. Without the rate sheet, the
Illinois EPA lacks a standard methodology for determining whether the costs submitted
for approval in budgets and applications forpayment are reasonable. A standard
methodology for determining the reasonableness ofcosts is included in the proposed
rules currently before the Board.
The Board’s adoption ofthe proposed rules in an emergencyrulemaking will
allow the Illinois EPA to review budgets and applications for reimbursement prior to the
Board’s adoption offinal rules. Ifemergency rules are not adopted, the Illinois EPA will
be limited to reviewing only applications for payment that are submitted pursuant to
budgets approved prior to the Board’s opinion in the Illinois Ayers case. Reviews of
such applications for payment can continue because the reviews consist ofcomparing the
costs in the applications for payment to the costs approved in the budgets. The Illinois
EPA cannot review other cost submissions, however, (e.g., budgets that have not yet been
approved and applications forpayment that are not submitted pursuant to a budget
approved prior to the Illinois Ayers opinion) until a standard methodology for
determiningwhether the costs are reasonable is adopted in rules.
The Illinois EPA believes the adoption ofthe proposed rules in an emergency
rulemaking is proper. The Board has the authority to adopt rules in an emergency
rulemaking if a situation exists which “reasonably constitutes a threat to the public
interest, safety, or welfare.”
5
ILCS
100/5-45;
415 ILCS
5/27(c); 35
Ill. Adm. Code
2
102.6 12. The Illinois EPA’s inability to approve budgets and applications for payment
from the UST Fund satisfies these criteria. The approval ofbudgets and payments from
the UST Fund drive the remediation ofLeaking Underground Storage Tanks (“LUST”)
sites. Many owners and operators cannot afford the costs of a LUST site remediation on
theirown, and man~that can afford such costs are hesitant to proceed unless they know
the costs will be reimbursed from the UST Fund. Ifthe Illinois EPA cannot approve
budgets and applications forpayment, the remediation of these LUST sites will not
proceed, which reasonably constitutes a threat to the public interest, safety, or welfare.
The fact that these sites constitute such a threat if they are left unremediated has already
been established by the fact that federal and state law requires their remediation. Because
adoption of the proposed rules would allow the Illinois EPA to review budgets and
applications forpayment, thereby allowing remediation to proceed, adoption ofthe rules
in an emergency rulemaking is proper.
The Illinois EPA respectfully requests that the Board adopt the proposed rules in
their entirety as soon as possible, including the changes proposed in Errata Sheet 1 and
the additional amendments set forth below. The Illinois EPA requests that the Board
adopt the rules in their entirety due to the interdependence between proposed Subpart H
and the remainder ofthe rules. The Illinois EPA further respectfully requests that the
Board proceed with its adoption offinal Board rules as quickly as possible so the Illinois
EPA can review budgets and applications for payment pursuant to the final rules once the
emergency rules expire.
3
ADDITIONAL AMENDMENTS TO PROPOSAL
In response to questions and comments at the first hearing in this rulemaking, the
Illinois EPA proposes the following additional amendments to the text ofthe rules
submitted in its proposal to the Board dated January 1, 2004:
1.
In response to concerns raised at the first hearing, the Illinois EPA
proposes to amend the definition of“financial interest” in Sections 732.103 and 734.115
to the following by deleting “advisor.”
“Financial interest” means any ownership interest, legal or beneficial, or
being in the relationship ofdirector, officer, employee, or other active
participant in the affairs ofa party. Financial interest does not include
ownership ofpublicly traded stock.
2.
In response to a suggestion from the Board’s technical staff, the Illinois
EPA proposes to amend Sections 732.300(b)(3)(A), 732.307(f), and 734.445(a) to the
following by replacing “or within” with “and within.” Altered wording is highlighted in
bold lettering.
a.
732.300(b)(3)(A):
A)
At a minimum, the owner or operator shall identify all potable
water supply wells located at the site
and
within 200 feet ofthe
site, all community water supply wells located at the site
and
within 2,500 feet ofthe site, and all regulated recharge areas and
wellhead protection areas in which the site is located. Actions
taken to identify the wells shall include, but not be limited to, the
following:
b.
732.307(f):
f)
Survey ofWater Supply Wells. At a minimum, the owner or
operator shall conduct a water supply well survey to identify all
potable water supply wells located at the site
and
within 200 feet
ofthe site, all community water supply wells located at the site
and within 2,500 feet ofthe site, and all regulated recharge areas
and welihead protection areas in which the site is located. Actions
4
taken to identify the wells shall include, but not be limited to, the
following.
c.
734.445(a):
a)
At a minimum, the owner or operator shall conduct a water supply
well survey to identify all potable water supply wells located at the
site
and
within 200 feet ofthe site, all community water supply
wells located at the site
and
within 2,500 feet ofthe site, and all
regulated recharge areas and welihead protection areas in which
the site is located. Actions taken to identify the wells shall include,
but not be limited to, the following:
3.
In response to a concern about paying for concrete replacement only after
a No Further Remediation Letter is issued, the Illinois EPA proposes to amend Section
732.605(a)(l7) (renumbered to 732.605(a)(16)) and
734.625(a)(16)
to the following by
replacing the second sentence with the sentences highlighted in bold lettering. The intent
is to prevent the UST Fund from paying for the destruction and replacement ofconcrete,
asphalt, orpaving in the same location multiple times.
a.
732.605(a)(17):
~
Costs for destruction and replacement ofconcrete, asphalt~Land
paving to the extent necessary to conduct corrective action and if
the concrete, asphalt, or paving was installed prior to the initiation
ofcorrective action activities, the destruction and replacement has
been certified as necessary to the performance ofcorrective action
by a Licensed Professional Engineer, and the destruction and
replacement and its costs are approved by the Agency in writing
prior to the destruction and replacement.
The destruction and
replacement of concrete, asphalt, and paving shall not be paid
more than once.
Costs associated with the replacement of
concrete, asphalt, or paving shall not be paid in excess ofthe cost
to install, in the same area and to the same depth, the same material
that was destroyed (e.g., replacing four inches ofconcrete with
four inches ofconcrete):
b.
734.625(a)(16):
16)
Costs for destruction and replacement ofconcrete, asphalt, or
paving to the extent necessary to conduct corrective action ifthe
5
concrete, paving, or asphalt was installed prior to the initiation of
corrective action activities, the destruction and replacement has
been certified as necessary to the performance ofcorrective action
by a Licensed Professional Engineer, and the destruction and
replacement and its costs are approved by the Agency in writing
prior to the destruction and replacement.
The destruction and
replacement of concrete, asphalt,
and paving shall not be paid
more than
once. Costs associated with the replacement of
-
concrete, asphalt, or paving shall not be paid in excess of the cost
to install, to the same area and depth, the same material as was
destroyed;
4.
The Illinois EPA proposes to amend Sections 732.606 and 734.630 by
deleting proposed Sections 732.606(ddd) and 734.630(aaa), respectively.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
/(~.—~_~__
Kyle Rom1~iger
Assistant Counsel
DATED:__________
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
6
STATE OF ILLINOIS
)
COUNTY OF SANGAMON
)
SS
)
PROOF OF SERVICE
I, the undersigned on oath state that I have served the attached MOTION FOR
THE ADOPTION OF EMERGENCY RULES on behalf ofthe Illinois Environmental
Protection Agency upon the person to whom it is directed, by placing a copy in an
envelope addressed to:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
(Overnight Mail)
SEE ATTACHED SERVICE LIST
(RegularMail)
Marie Tipsord, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
(Overnight Mail)
-
and mailing it from Springfield, Illinois, on April 16, 2004, with sufficient postage
affixed as indicated above.
SUBSCRIBED AND SWORN TO BEFORE ME
this 16th day ofApril, 2004
~(~5I
,,—j
Notary Public
J~h~
OFFICIAL SEAL
CYNTHIA
L.
WOLFE
~:
NOTARY
PUBUC,
STATE OF
ILLINOIS
1: MY COMMISSION
EXPIRES 3.204007
Party Name
Role
City &
Phone/Fax
State
IEPA
1021 North Grand Avenue East
Springfield 2 17/782-
Petitioner
P.O. Box 19276
IL 62794- 5544
9276
217/782-
-
9807
-
Gina Roccaforte, Assistant
-
Counsel
Kyle Rominger, Assistant
Counsel
Doug Clay
Hodge Dwver Zeman 3150 Roland Avenue
Springfield 217/523-
Interested Party
Post Office Box 5776
IL 62705- 4900
5776
217/523-
4948
Thomas G. Safley
-
Sidlev Austin Brown Bank One Plaza
Chicago
312/853-
& Wood
10 South Dearborn Street
IL 60603 7000
Interested Party
312/953-
7036
William G. Dickett
Karaganis & White, 414 North Orleans Street
Chicago
3
12/836-
Ltd.
Suite 810
IL 60610
1177
Interested Party
3 12/836-
9083
Barbara Magel
Illinois Petroleum
112 West Cook Street
Sprihgfield 217/793-
Marketers
IL 62704 1858
Association
Interested
Party
Bill Fleischi
• ‘United Science
P.O. Box 360
Woodlawn 618/735-
Industries.~Inc.
6295
East Illinois Highway 15
IL 62898- 2411
Interested Party
0360
618/735-
2907
Joe Kelly, PB
Illinois
3150 Roland Avenue
Springfield 217/523-
Environmental
IL 62703 4942
Re2ulatorv GrouD
2
17/523-
Interested
Party
4948
Robert A. Messina, General
Counsel
Carlson
65
B. Wacker Place
Chicago
Environmental, Inc. .Suite 1500
IL 60601
Interested Party
Kenneth James
Chemical Industry
9801 W. Higgins Road
Rosemont
Council of Illinois
Suite
515
IL 60018
Interested Party
Lisa Frede
Barnes & Thornburg
1 North Wacker Drive
Chicago
3 12/357-
Interested Party
Suite 4400
IL 60606 1313
3 12/759-
5646
Carolyn S. Hesse, Attorney
- -
Rapps Engineering &
821 South Durkin Drive
Springfield 217/787-
Applied Science
P.O. Box 7349
IL 62791- 2118
Interested
Party
7349
2 17/787-
6641
MichaelW.Rapps
Office ofthe Attorney Environmental Bureau
Chicago
312/8 14-
General
188 West Randolph, 20th Floor
IL 60601 2550
Interested Party
-.
312/814-
2347
Joel J. Sternstein, Assistant
Attorney Genera
Herlacher Angleton
8731 Bluff Road
Waterloo
61
8/935-
Associates, LLC
IL 62298 2262
Interested Party
618/935-
2694
Tom Herlacher, P.E., Principal
Engineer
Illinois Pollution
100 W. Randolph St.
Chicago
3128143956
Control Board
Suite 11-500
IL 60601
Interested Party
DorothyM. Gunn, Clerk ofthe
Board
Marie Tipsord, Hearing Officer
Huff& Huff. Inc.
512 West Burlington Avenue
LaGrange
Interested Party
Suite 100
IL 60525
James B. Huff, P.E.
Black & Veatch
101 North Wacker Drive
Chicago
Interested Party
Suite 1100
IL
60606
Scott Anderson
Claire A. Manning
111 N. Sixth
Street
Springfield 217-522-
Interested Party
IL 62701 6152
Claire A. Manning, Posegate &
Denes
Marlin
1000 West Spring Street
South
847-468-
Environmental, Inc.
Elgin
8855
Interested Party
.
IL 60177
Melanie
LoPiccolo, Office
Manager
Terracon
870 40th Avenue
Bettendorf (563)
355-
Interested Party
IA
52722 0702
Brian Porter
Illinois Department of One Natural Resources Way
Springfield 2 17/782-
Natural Resources
IL 62702- 1809
Interested Party
1271
2 17/524-
9640
Jonathan Furr, General Counsel
EcoDigital
P0 Box 360
Woodlawn (618) 735-
Development LLC 6295 East Illinois
Hwy
15
IL 62898
2411
Interested Party
Joe Kelly, VP Engineering
Wendler Engineering 1770 West State Street
Sycamore 8
15-895-
Services, Inc,
IL 60178 5008
ilnterested
Party
Glen Lee, Manager
• Great Lakes
1380
Busch Parkway
Buffalo (847) 808-
Analytical
Grove
7766
Interested Party
IL 60089
A.J Pavlick
CSD Environmental
2220 Yale Boulevard
Springfield 2 17-522-
Services,
Inc
IL 62703
4085
Interested
Party
Joseph W. Truesdale, P.E.
CORE Geological
2621 Monetga, Suite C
Springfield 2 17-787-
Services, Inc.
II
62704
6109
Interested Party
Ron Dye, President
Clayton Group
3140 Finley Road
Downers
630.795.3207
Services
Inc
Grove
Interested Party
IL
60515
Monte Nienkerk
PDC Laboratories
2231 W. Altorfer Dr.
Peoria
309-692-
Interested Party
ii 61615
9688
Kurt Stepping, Director ofClient
Services
Atwell-Hicks,
Inc.
940
East Diehi Road
Naperville 630 5770800
Interested Party
Sute 100
IL 60563
Thomas M. Guist, PB, Team
Leader
-
CW3M Company,
701 South Grand Ave. West
Springfield 2 17-522-
IL 62704
8001
Interested Party
Jeff Wienhoff
Suburban
4140 Litt Drive
Hillside
708-544-
Laboratories, Inc.
IL 60162
3260
Interested Party
Jarrett Thomas, V.P.
United Science
6295
East Illinois Hwy 15
Woodlawn 618-735-
Industries, Inc,
IL 62898
2411 e
Interested Party
Dan King, Team Leader
Environmental
551
Roosevelt Road
Glenn
‘Consulting &
#309
Ellyn
•
Engineering, Inc.
IL 60137
Interested Party
•0
Richard Andros, P.B.
MACTEC
8901 N.
Industrial Road
Peoria
Engineering&
IL 61615
Consulting, Inc.
Interested Party
Terrence W. Dixon, P.G.
Illinois Department of 2300 Dirksen
Parkway
Springfield
Transportation
IL 62764
Interested Party
Steven Gobelman
SEECO
-
7350 Duvon Drive
Tinley
Environmental
Park
Services, Inc,
IL 60477
Interested Party
Collin W. Gray
Herlacher Angleton
522 Belle Street
Alton
Associates, LLC
IL 62002
Interested Party
Jennifer Goodman
United
119 East Palatin Road
Palatine
Environmental
Suite 101
IL 60067
Consultants, Inc.
Interested Party
George F. Moncek
McGuire Woods LLP 77 W. Wacker
Chicago
Interested Party
Suite 4400
IL 60601
David Rieser
Greensfelder, Hemker 10 S.
Broadway
St. Louis
3 14-241-
&
Gale
Suite 2000
MO
9090
Interested Party
63104
Tina Archer, Attorney
Midwest Engineering 4243 W. 166th Street
Oak’Forest 708-535-
Services, Inc.
IL ~0452 9981
Interested Party
Em Curley, Bnv. Department
Manager
American
3700 W. Grand Ave.,
Suite A
Springfield (217) 585-
Environmental Corp.
IL 62707 9517
Interested Party
Ken Miller, Regional Manager
Applied
P 0 Box 1225
Centralia
6185335953
Environmental
IL 62801
Solutions. Inc.
Interested Party
Russ Goodiel, Project Manager
Secor International,
400 Bruns Lane.
Springfield
IL 62702
Interested
Party
-
Daniel J. Goodwin
Caterpillar, Inc.-
100 NE
Adams Street
Peoria
3096751658
Interested Party
IL 61629
Eric Minder, Sr. Environmental
Engineer
K-Plus
Suite 1000
Chicago
312-207-
Environmental
600 W. Van Buren
Street
IL 60607 1600
Interested Party
Daniel Caplice
Harry
Wa1~ton
2510 Brooks Drive
Decatur, IL 62521
I