RECE1V~D
CLERK’S OFFICE
BEFORE
OFTHETHEPOLLUTIONSTATE OFCONTROLILLINOIS
BOARD
STATE
APR
OF
19
ILLU\IOIS
2004
PROPOSEDIN THE MATTERAMENDMENTSOF:
TO:
)))
pollution Control Boar
REGULATION OF PETROLEUM LEAKING
)
R04-22
UDERGROUND STORAGE TANKS
)
(UST Rulemaking)
(35
ILL. ADM. CODE 732),
)
)
IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
)
REGULATION OF PETROLEUM LEAKING
)
R04-23
UNDERGROUND STORAGE TANKS
)
(UST Rulemaking)
(35
ILL. ADM. CODE 734)
)
Consolidated
)
NOTICE OF FILING
TO:
ALL COUNSEL OF RECORD
PLEASE TAKE NOTICE
that on April 19, 2004, we filed with the Clerk ofthe Illinois
Pollution Control Board of the State of Illinois an original, executed copy of CW3M Company,
Inc.’s Objection to the Illinois Environmental Protection Agency’s Motion for the Adoption of
Emergency Rules.
Dated: April 19, 2004
Respectftilly submitted,
•
CW3M Company
•
By:
L’.Ax\~-L/--
OneofItsAtt4rneys
~
kc~’~
Carolyn S. Hesse, Esq.
Jonathan P. Froemel, Esq.
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
215347v1
This filing submitted on recycled paper as defined in 35
III.
Adm. Code 101.202
CLERK’S OFFICE
APR 192004
STATE OF
ILLINOIS
CERTIFICATE OF SERVICE
Pollution Control
Board
I, on oath state that I have served the attached CW3M Company, Inc.’s Objection to the
Illinois Environmental Protection Agency’s Motion for the Adoption of Emergency Rules by
placing a copy in an envelope addressed to All Counsel of Record from One North Wacker
Drive, Suite 4400, Chicago, Illinois, before the hour of 5:00 p.m., on this
19th
Day of
Afril, 2004.
~
Carolyn S. He~~e
This filing submitted on recycled paper as defined in 35
III.
Adm. Code 101.202
2
Service List
Gina Roccaforte
Kyle Rominger
IEPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
217/792-5544
217/782-9807 (fax)
William G. Dickett
Sidley Austin Brown & Wood
Bank One Plaza
10 South Dearborn Street
Chicago, IL 60603
312/853-7000
312/953-7036 (fax)
Bill Fleischi
Illinois Petroleum Marketers Association
112 West Cook Street
Springfield, IL 62704
217/793-1858
Robert A. Messina
General Counsel
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, IL 62703
217/523-4942
217/523-4948
Lisa Frede
Chemical Industry Council ofIllinois
2250 East Devon Avenue
Des Plaines, IL 60018
(847)
544-5995
Thomas G. Safley
Hodge Dwyer Zeman
3150 Roland Avenue
P.O. Box 5776
Springfield, IL 62705-5776
217/528-4900
217/523-4948 (fax)
Barbara Magel
Karaganis & White, Ltd.
414 North Orleans Street
Suite 801
Chicago, IL 60610
312/836-1177
312/836-9083 (fax)
Joe Kelly, PE
United Science Industries, Inc.
6295 East Illinois Highway 15
P.O. Box
360
Woodlawn, IL 62898-0360
618/735-2411
618/735-2907 (fax)
Kenneth James
Carison Environmental, Inc.
65 East Wacker Place
Suite 1500
Chicago, IL 60601
Michael W. Rapps
Rapps Engineering & Applied Science
821 South Durkin Drive
P.O. Box 7349
Springfield, IL 62791-7349
217/787-2118
217/787-6641 (fax)
Joel J. Sternstein, Assistant Attorney General
Matthew J. Dunn, Division Chief
Office of the Attorney General
Environmental Bureau
188 West Randolph,
20th
Floor
Chicago, IL 60601
312/814-2550
312/814-2347 (fax)
Dorothy M. Gunn, Clerk ofthe Board
Marie Tipsord, Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street, Suite 11-500
Chicago, IL 60601
312/814-3956
Scott Anderson
Black & Veatch
101 North Wacker Drive
Suite 1100
Chicago, IL 60606
Claire A. Manning
Posegate & Denes
111 North Sixth Street
Springfield, IL 62701
(217) 522-6152
Jonathan Furr, General Counsel
Illinois Department ofNatural Resources
One Natural Resources Way
Springfield, IL 72702-1271
217/782-1809
217/524-9640 (fax)
A.J. Pavlick
Great Lakes Analytical
1380 Busch Parkway
Buffalo Grove, IL 60089
847/808-7766
David L. Rieser, Partner
McGuire Woods LLP
77 West Wacker Drive
Chicago, IL 60601
312/849-8249
Tom Herlacher, P.E.
Principal Engineer
Herlacher Angleton Associates, LLC
8731 Bluff Road
Waterloo, IL 62298
618/935-2261
618/935-2694
(fax)
James E. Huff, P.E.
Huff & Huff, Inc.
512 West Burlington Avenue
Suite 100
LaGrange, IL
60525
Melanie LoPiccolo, Office Manager
Marlin Environmental, Inc.
1000 West Spring Street
South Elgin, IL 60177
847/468-8855
Brian Porter
Terracon
870
40th
Avenue
Bettendorf,-IA 52722
563/355-0702
Glen Lee, Manager
Wendler Engineering Services, Inc.
1770 West State Street
Sycamore, IL 60178
815/895-5008
Joseph W. Truesdale, P.E.
CSD Environmental Services, Inc.
2220 Yale Boulevard
Springfield, IL 62703
217/522-4085
Monte Nienkerk
Clayton Group Services, Inc.
3140 Finley Road
Downers Grove, IL
60515
630/795-3207
2
Kurt Stepping
Director of Client Services
PDC Laboratories
2231 West Altorfer Drive
Peoria, IL 61615
309/692-9688
Da~ie1J. Goodwin
Secor International, Inc.
400 Bruns Lane
Springfield, IL 62702
Richard Andros, P.E.
Environmental Consulting & Engineering, Inc.
551
Roosevelt Road, #309
Glen Ellyn, IL 60137
Steven Gobelman
Illinois Department ofTransportation
2300 Dirksen Parkway
Springfield, IL 62764
Jennifer Goodman
Herlacher Angleton Associates, LLC
522 Belle Street
Alton, IL 62002
Ron Dye
President
Core Geological Services
2621 Monetga
Suite C
Springfield, IL 62704
(217)787-6109
Erin Curley, Env. Department Manager
Midwest Engineering Services, Inc.
4243 W.
166th
Street
Oak Forest, IL 60452
708/535-9981
Thomas M. Guist, PB
Team Leader
Atwell-Hicks, Inc.
940 East Diebi Road
Suite 100
Naperville, IL 60563
630/577-0800
Dan King, Team Leader
United Science Industries, Inc.
6295 East Illinois Hwy
15
Woodlawn, Ii 62898
618/735-2411
Terrence W. Dixon, P.G.
MACTEC Engineering & Consulting, Inc.
8901 N. Industrial Road
Peoria, IL 61615
Collin W. Gray
SEECO Environmental Services, Inc.
7350 Duvon Drive
Tinley Park 60477
George F. Moncek
United Environmental Consultants, Inc.
119 East Palatine Road
Palatine, IL 60067
Tina Archer, Attorney
Greensfelder, Hemker & Gale
10 South Broadway
Suite 2000
St Louis, MO
63104
314/241-9090
Ken Miller, Regional Manager
American Environmental Corp.
3700 W. Grand Ave., Suite A
Springfield, IL 62707
217/585-9517
L
3
Russ Goodiel, Project Manager
Jarrett Thomas
Applied Environmental Solutions, Inc.
Vice President
P.O. Box 1225
Suburban Laboratories, Inc.
Centralia, IL 62801
4140 Litt Drive
618/533-5953
Hillside, IL 60162
(708) 544-3260
Eric
Minder
Daniel Caplice
Senior Environmental Engineer
K-Plus Environmental
Caterpillar, Inc.
600 West Van Buren
Street
100 NE Adams Street
Suite 1000
Peoria, IL 61629
Chicago, IL 60607
(309) 675-1658
(312) 207-1600
208776v1
4
REcE~vED
•
CLERK’S OFFICE
APR 192004
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE
OF ILLINOIS
IN THE MATTER OF:
)
Pollution Control Board
)
R04-22
PROPOSED AMENDMENTS TO REGULATION OF
)
(Rulemaking-Land)
PETROLEUM LEAKING UNDERGROUND STORAGE)
TANKS (35 Ill. Adm. Code 732)
)
iN THE MATTER OF:
)
)
R04-23
PROPOSED AMENDMENTS TO REGULATIONS OF
)
(Rulemaking-Land)
PETROLEUM LEAKING UNDERGROUND STORAGE)
TANKS
(35
Ill. Adm. Code 734)
)
CW3M COMPANY, INC.’S OBJECTION TO THE
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S
MOTION FOR THE ADOPTION OF EMERGENCY RULES
Plaintiff, CW3M Company, Inc. (“CW3M”), objects to the Illinois Environmental
Protection Agency’s (“IEPA”) Motion for the Adoption of Emergency Rules (“Motion”). In
support of its objection, CW3M states as follows:
BACKGROUND FACTS
On January 23, 2003, CW3M filed a three count complaint for declaratory judgment and
mandatory injunction (the “Complaint”) in the Circuit Court of Sangamon County, Illinois,
Chancery Division, Case No. 03-MR-0032, entitled
CW3M Company, Inc. v. Illinois
Environmental Protection Agency.
CW3M appealed IEPA’s denial of a Freedom ofInformation
Act request for information concerning JEPA’ s LUST rate sheets (“Rate Sheets”) and further
sought the invalidation of IEPA’s use of the Rate Sheets as de facto rules to determine the
reasonableness ofLUST site reimbursement costs (the “Rate Sheet Rules”).
In January 2004, JEPA filed proposed LUST Rules with the Board (the “LUST Rules”).
On March 15, 2004, the Board held its first hearing on the proposed LUST rules. Additional
hearings are scheduled for May 25 and 26,
2004. Rates contained in the proposed LUST Rules
are not
the same as the rates contained in the Rate Sheet Rules. At the hearing on March
15,
2004,
it was obvious that stake holders such as CW3M opposed numerous provisions of the
proposed LUST Rules. Documents filed by IEPA to support the proposed LUST Rules also
indicated serious flaws in the proposed LUST Rules.
On April 16, 2004, IEPA filed its Motion for Adoption of Emergency Rules which ask
the Board to adopt the proposed LUST Rules.
CW3M’s Complaint is set for trial on
April 21, 2004. Despite repeated demands by CW3M for JEPA to admit that the Rate Sheet
Rules were invalid, JEPA to date has not stipulated to the invalidity ofthe Rate Sheet Rules.
ARGUMENT
I.
No Emergency Exists to Justify Emergency Rulemaking.
JEPA argues, without support, that without its improperly promulgated Rate Sheet Rules,
it
lacks
any method for determining whether the costs submitted for approval and budgets and
applications for payment are reasonable. IEPA’s Motion, p. 2. IEPA fttrther argues without
support that it therefore cannot approve budgets and applications. IEPA’s Motion, p. 3. Finally,
IEPA expresses concern for the consultants like CW3M who “are hesitant to proceed unless they
know the costs will be reimbursed from the UST Fund.” IEPA’s Motion, p. 3. These
unsupported justifications do not justify the exercise of emergency rulemaking powers pursuant
to
5
ILCS 100/5-45. Therefore, the Board should deny IEPA’s Motion.
IEPA’s “emergency” is based entirely on the alleged additional administrative burden a
case-by-case analysis of LUST reimbursement requests and budget proposals would entail. Yet
IEPA fails to make any factual connection between its past use ofthe illegal Rate Sheets, and its
alleged current and future inability to determine the reasonableness ofLUST costs. Before IEPA
-2-
began to use the Rate Sheets as a bar to obtaining reimbursement for costs and tasks in excess of
the Rate Sheet amount, IEPA reimbursed hundreds, if not thousands, of requests. Without the
crutch of the Rate Sheets, JEPA administrators will only be burdened with the additional task of
actually reviewing the work performed or the budget proposal submitted for reasonableness,
without automatically cutting anything that was “above average.”
IEPA’s alleged concern over providing certainty for the regulated community is
disingenuous. Anyone in attendance during the initial hearing on the proposed LUST Rules
understands that a little bit of uncertainty is a small price to pay to avoid the random chaos
inflicted by IEPA’s application ofthe proposed LUST Rules orthe existing Rate Sheet Rules.
IEPA’s administration ofLUST fund reimbursement requests and budget proposals forms
the heart of the alleged “emergency.” Yet, these administrative justifications are insufficient to
constitute an emergency under 5 ILCS 100/5-45.
Citizens for a Better Environment v. The
Pollution Control Board,
152 Ill. App. 3d 105, 504 N.E.2d 166
(1st
Dist. 1987). As the court in
Citizensfor a Better Environment
stated, “the need to adopt emergency rules in order to alleviate
an administrative need, which, by itself, does not threaten the public interest, safety, or welfare,
does not constitute an ‘emergency’.”
Id.,
152 Ill. App. 3d at 109. As in
Citizens for a Better
Environment,
the IEPA’s justifications concerning the administrative burden of reviewing the
reasonableness ofcosts submitted is wholly inadequate.
Further, in
Citizens,
the court recognized that the Board could have adopted rules years
before.
Id.,
152
Ill. App. 3d at 110. As in
Citizens for a Better Environment,
in the instant case,
IEPA could have started the rulemaking process much earlier. In fact, 1996 Amendments to the
Illinois Environmental protection Act provides as follows at subparagraph
57.7(c)(4)(C)
“In
approving any plan submitted pursuant to Part (E) of this paragraph (4), the Agency shall
-3-
determine, by a procedure promulgated by the Board under item (7) ofsubsection 57.14, that the
costs associated with the plan
are reasonable.
. . .“
emphasis added
Further, at least as early as January
2003, IEPA knew, or should have
known
as a result
of CW3M’s Complaint, that the LUST Rules were of questionable validity. Yet, rather than
addressing these challenges properly by immediately following the proper procedures for
promulgating rules, JEPA instead filed a Motion for Summary Judgment against CW3M on the
grounds that IEPA was not required to promulgate these rules. Only after this unsupported
Motion for Summary Judgment was denied did IEPA follow the appropriate procedures to begin
the rulemaking process.
IEPA’s inexcusable delay does not threaten the public interest, safety, or welfare, but
merely threatens to increase IEPA’s administrative burden in determining the reasonableness of
reimbursements under the LUST Fund.
JEPA’s actions in this case are similar to the actions taken by the Illinois Department of
Public Aid in
Senn Park Nursing Center v. Jeffrey C. Miller,
104 Ill.2d 169, 470 N.E.2d 1029
(1984). In
Senn Park,
after the circuit court invalidated illegally promulgated rules concerning
the reimbursement for Medicaid services, the Department of Public Aid filed an emergency
rulemaking in an effort to circumvent the circuit court’s determination.
Senn Park,
104 Ill.2d at
174, 470 N.E.2d at 1032. The appellate court invalidated the emergency rule.
Id.
In the instant case, less than a week before trial on CW3M’s Complaint concerning
whether the LUST Rules were improperly promulgated, IEPA, like the Department of Public Aid
in
Senn Park,
attempted to circumvent the circuit court by propounding an emergency rule when
no emergency existed. The appellate court in
Senn Park
invalidated emergency rulemaking
under similar circumstances.
-4-
Because IEPA’s justification for the emergency rulemaking is purely administrative, no
emergency exists. IEPA’
s Motion should therefore be denied.
WHEREFORE, for the reasons set forth herein, CW3M Company, Inc. respectfully
requests that the Board deny the
Illinois Environmental Protection Agency’s Motion for
Emergency Rulemaking.
Carolyn S. Hesse, Esq.
Jonathan P. Froemel, Esq.
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
CHDSO1 215269
By:
Respectfully submitted,
Company
One of Its
L
-5-