RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARrJ~
032004
STATE
OF ILLINOIS
IN THE MATTER OF:
)
Pollution Control Board
)
PROPOSED AMENDMENTS TO:
)
R04-22
REGULATION PETROLEUM LEAKING
)
(Rulemaking
-
UST)
UNDERGROUND STORAGE TANKS
)
35 ILL. ADM. CODE 732
)
INTHE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
)
R04-23
REGULATION PETROLEUM LEAKING
)
(Rulemaking
-
UST)
UNDERGROUND STORAGE TANKS
)
Consolidated
35 ILL. ADM. CODE 734
)
NOTICE OF FILING
TO: SEEATTACHEDPROOFOFSERVICE
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk
of the Pollution Control Board the RESPONSE OF UNITED SCIENCE
INDUSTRIES, INC. TO ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S
MOTION FOR ADOPTION OF EMERGENCY RULES for the above-titled
proceeding, a copy of which is herewith served upon you.
Respectfully submitted,
/
Curtis W. Martin~ttorneyfor
/
DaLee Oil Comp~ny,
~.
Petitioner/Appe(llant
DATE: April 30, 2004
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing instrument was served
upon the following individuals by enclosing the same in an envelope addressed to said
persons at their last known address as disclosed by the pleadings of record herein,
with postage fully prepaid, and by depositing said envelope in a~UthtedStates Post
Office mail box in Mt. Vernon, Iffinois, at 5:00 P.M., on the
30
—
day of____________
2004.
Gina Roccaforte
Kyle Rominger
JEPA
1021 North Grand Avenue East
P.O. Box 19276
William G. Dickett
Sidley Austin Brown & Wood
Bank One Plaza
10 South Dearborn Street
Chicago, IL 60603
Bill Fleischi
Illinois Petroleum
Marketers Association
112 West Cook Street
Springfield, IL 62704
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
Thomas G. Safley
Hodge Dwyer Zeman
3150 Roland Avenue
P.O. Box 5776
Springfield, IL 62705-5776
Barbara Magel
Karaganis & White, Ltd.
414 North Orleans Street
Suite 301
Chicago, IL 60610
Robert A. Messina
General Counsel
Illinois Environmental
Regulatory Group
3150 Roland Avenue
Springfield, IL 62703
Lisa Frede
Chemical Industry Council
of Illinois
2250 East Devon Avenue
Des Plaines, IL 60018
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
Tom Herlacher, P.E.
Principal Engineer
Herlacher Angleton Associates, LLC
8731 Bluff Road
Waterloo, IL 62298
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
Jonathan Furr, General Counsel
Iffinois Department of
Natural Resources
One Natural Resources Way
Springfield, IL 72702-1271
A.J. Pavlick
Great Lakes Analytical
1380 Busch Parkway
Buffalo Grove, IL 60089
David L. Rieser, Partner
McGuire Woods LLP
77 West Wacker Drive
Chicago, IL 60601
Kurt Stepping
Director of Client Services
PDC Laboratories
2231 West Altorfer Drive
Peoria, IL 61615
Daniel J. Goodwin
Secor International, Inc.
400 Bruns Lane
Springfield, IL 62702
Dorothy M. Gunn
Clerk of the Board
Marie Tipsord, Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street
Chicago,
IL 60601
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
Brian Porter
Terracon
870 40th Avenue
Bettendorf, IA 52722
Glen Lee, Manager
Wendler Engineering Services, Inc.
1770 West State Street
Sycamore, IL 60178
Joseph W. Truesdale, P.E.
CSD Environmental Services, Inc.
2220 Yale Boulevard
Springfield, IL 62703
Monte Nienkerk
Clayton Group Services, Inc.
3140 Finley Road
Downers Grove, IL 60515
Thomas M. Guist, PE
Team Leader
Atwell-Hicks, Inc.
940 East Diehi Road
Suite 100
Naperville, IL 60563
Richard Andros, P.E.
Environmental Consulting &
Engineering, Inc.
551 Roosevelt Road, #309
Glen Ellyn, IL 60137
Steven Gobelman
Illinois Department
of Transportation
2300 Dirksen P’arkway
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
Erin Curley, Env. Department
Manager
Midwest Engineering Services, Inc.
4243 W. 166th Street
Oak Forest, IL 60452
Russ Goodiel, Project Manger
Applied Environmental
Solutions, Inc.
P.O. Box 1225
Centralia, IL 62801
Eric Minder
Senior Environmental
Engineer
Caterpillar, Inc.
100 NE Adams Street
Peoria, IL 61629
Terrence W. Dixon, P.G.
MACTEC Engineering &
Consulting, Inc.
8901 N. Industrial Road
Peoria, IL 61615
Collin W. Gray
SEECOEnvironmental Services, Inc.
7350 Duvon Drive
Tinley Park, IL 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
Ken Miller, Regional Manager
American Environmental Corp.
3700 W. Grand Ave., Suite A
Springfield, IL 62707
Jarrett Thomas, Vice President
Suburban Laboratories, Inc.
4140 Litt Drive
Hillside, IL 60162
Daniel Caplice
K-Plus Environmental
600 West Van Buren Street
Suite 1000
Chicago, IL 60607
Upon penalties as provided by law pursuant to 735 ILCS 5/1-109 (1992 State
Bar Edition), the undersigned certifies that the statements set forth in this Proof of
Service are true and correct.
urtis W. Martin
RECE~VED
CLERK’S OFFICE
MAY 03 2004
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE
OF
ILLINOIS
Pollution Control Board
IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
)
R04-22
REGULATION PETROLEUM LEAKING
)
(Rulemaking
-
UST)
UNDERGROUND STORAGE TANKS
)
35 ILL. ADM. CODE 732
)
IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
)
R04-23
REGULATION PETROLEUM LEAKING
)
(Rulemaking
-
UST)
UNDERGROUND STORAGE TANKS
)
Consolidated
35 ILL. ADM. CODE 734
)
RESPONSE OF UNITED SCIENCE INDUSTRIES, INC. TO ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY’S MOTION FOR ADOPTION
OF EMERGENCY RULES
NOW COMES United
Science Industries,
Inc.
(“USI”) by its attorneys, Shaw
& Martin, P.C., and, in reply to the
Illinois Environmental Protection Agency’s
(“Agency”) Motion for Adoption of Emergency Rules, objects and states as follows:
As a historical review, in January, 2004, the Agency first filed proposed
Leaking Underground Storage Tank (“LUST”) Rules with the Pollution Control
Board (“Board”). The first hearing regarding the LUST Rules was held by the
Board on March 15, 2004, with further hearings scheduled for May 25 and 26, 2004
in light of numerous objections to the proposed LUST Rules by various
stakeholders, including USI.
On April 1, 2004, the Board issued a decision in
“Illinois Ayers Oil Company v
Illinois Environmental Protection Agency,
PCB 03-214” in which the Board found a
“rate sheet” utilized by the Agency in its determination ofreasonableness of
remediation budgets and LUST Fund Reimbursement requests to be a rule not
properly promulgated under the Illinois Administrative Procedure Act, 5 ILCS
100/1-1
et seq.
(“APA”) The Agency now posits that without the use of a rate sheet it
has no “standard methodology” for determining whether costs submitted for
approval in budgets and applications for payment are reasonable and that such
standard methodology exists in the proposed emergency rules.
There is no question that the development of a process which effectively,
efficiently, expeditiously and fairly reviews budgets and reimbursement requests
(“submittals”) is necessary. However, the Agency’s proposed emergency rules meet
none of these qualifications. In fact, the Environmental Protection Act, 415 ILCS
5/1
et seq.
(“Act”) and the its current corresponding Rules require the Agency to
review submittals based upon actual costs, industry standards, documented
expenditures, scope of work, and budget and project plan presentations certified by
licensed professional engineers and geologists. The Board in
Ayers
recognized the
significance of the certifications of professional engineers and geologists as apposed
to the rate sheet utilized by the Agency, and for sound reason. It is the professional
engineer or geologist who typically visits a LUST site, who is familiar with the
scope of work and costs associated with the scope of work necessary to remediate a
LUST site and who certifies such pursuant to the requirements of the Act and the
corresponding rules.
USI, as a member of the recently incorporated Not for Profit professional
organization known as “PIPE”, desires to cooperate with the Agency in an effort to
establish a methodology for the Agency’s review of costs associated with the
remediation of leaking underground storage tank sites throughout Iffinois. USI’s
goal is the establishment of an expeditious and fair reimbursement process that
recognizes the reasonableness of the actual costs associated with remediation as
well as a deference afforded the judgment inherent in the professional engineer’s or
geologist’s certification required by the Act and corresponding Rules. To that end,
USI objects to the Agency’s request for emergency rulemaking inthis matter since
the proferred “emergency” is alone the creation of the Agency, resulting directly
from its decision to utilize a rate sheet to determine reimbursement from the LUST
Fund without complying with procedures required under Sections 27 and 28 of the
Act and Section 5-45 of the APA.
Illinois caselaw and Board precedent, knowledge ofwhich the Agency cannot
deny, requires public rulemaking pursuant to the APA prior to the Agency’s use of
standardized rates, formulas, data andlor methodology for reimbursement of
remediation costs related to underground storage tank sites. See
Senn Park
Nursing Center v. Miller,
104 Ill. 2d 169, 470 N.E. 2d 1029, 83 Ill. Dec. 609, (1984)
and
Citizen’s for a Better Environment v. Illinois Pollution Control Board,
152
Ill.App. 3d 105, 504 N.E.2d 166, 105 Ill.Dec. 297 (1st Dist. 1987). Even after
Ayers,
the Agency continued using the rate sheet until April 21, 2004 when it was
instructed by the Circuit Court of Sangamon County to cease such use in Cause No.
2003-MR-32 entitled “CW3M Company, Inc. v Illinois Environmental Protection
Agency.” Since that time, the Agency has re-evaluated numerous reimbursement
claims and provided amended reimbursement letters to USI and various other PIPE
members, essentially reinstating the entirety of the requested reimbursement, all
without use of any rate sheet.
Thus, while the Agency has reviewed countless numbers of LUST fund claims
for nearly fifteen (15) years, the Agency now suddenly seeks the Board’s immediate
approval of the use of the rate sheet via its Motion for Adoption of Emergency
Rules. Illinois law is clear that the Agency cannot create its own circumstances, call
it an “emergency”, and then request emergency rulemaking of the Board as a
situation that “reasonably constitutes a threat to the public interest, safety, or
welfare.” See 5 ILCS 100/5-45,
Citizens for a Better Environment,
and
Senn Park.
The Agency’s mere need to adopt the emergency Rules in order to alleviate its
administrative need which, by itself does not threaten the public interest, safety or
welfare, does not constitute an emergency warranting the immediate
implementation of the rules proposed by the Agency.
In addition to the procedural deficiencies outlined above, as should be evident
to the Board from its first hearing in this matter, PIPE members, including USI,
take significant issue with the “rate sheet” developed by the Agency and now
proposed in Subpart H. USI and other interested parties should be given the
opportunity, pursuant to the requirements of the APA, at the next regularly
scheduled hearing on May 25 and 26, to air their issues and submit their own
approach to the reasonableness determination the Agency is called upon to provide
by the Act and its Rules. Because the Agency’s justification for the emergency
rulemaking is purely administrative, no emergency exists as contemplated by the
APA and the Agency’s Motion should be denied.
WHEREFORE, for the reason set forth herein, United Science Industries,
Inc., respectfully requests the Board deny the Agency’s Motion for Adoption of
Emergency Rules.
Respectfully submitted,
/~:g~
‘i~.
for
Inc.
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing instrument was served
upon the following individuals by enclosing the same in an envelope addressed to said
persons at their last known address as disclosed by the pleadings ofrecord herein,
with postage fully prepaid, and by depositing said envelope in a United States Post
Office mail box in Mt. Vernon, Illinois, at 5:00 P.M., on the
3c)~
day of
~
2004.
Gina Roccaforte
Kyle Rominger
IEPA
1021 North Grand Avenue East
P.O. Box 19276
William G. Dickett
Sidley Austin Brown & Wood
Bank One Plaza
10 South Dearborn Street
Chicago, IL 60603
Bill Fleischi
Illinois Petroleum
Marketers Association
112 West Cook Street
Springfield, IL 62704
Kenneth James
Carison Environmental, Inc
65 East Wacker Place
Suite 1500
Chicago, IL 60601
Thomas G. Safley
Hodge Dwyer Zeman
3150 Roland Avenue
P.O. Box 5776
Springfield, IL 62705-5776
Barbara Magel
Karaganis & White, Ltd.
414 North Orleans Street
Suite 301
Chicago, IL 60610
Robert A. Messina
General Counsel
Illinois Environmental
Regulatory Group
3150 Roland Avenue
Springfield, IL 62703
Lisa Frede
Chemical Industry Council
of Illinois
2250 East Devon Avenue
Des Plaines, IL 60018
Michael W. Rapps
Rapps Engineering &
Applied Science
821 South Durkin Drive
P.O. Box 7349
Springfield, IL 62791-7349
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
Tom Herlacher, P.E.
Principal Engineer
Herlacher Angleton Associates, LLC
8731 Bluff Road
Waterloo, IL 62298
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
Jonathan Furr, General Counsel
Illinois Department of
Natural Resources
One Natural Resources Way
Springfield, IL 72702-127 1
A.J. Pavlick
Great Lakes Analytical
1380 Busch Parkway
Buffalo Grove, IL 60089
David L. Rieser, Partner
McGuire Woods LLP
77 West Wacker Drive
Chicago, IL 60601
Kurt Stepping
Director of Client Services
PDC Laboratories
2231 West Altorfer Drive
Peoria, IL 61615
Daniel J. Goodwin
Secor International, Inc.
400 Bruns Lane
Springfield, IL 62702
Dorothy M. Gunn
Clerk of the Board
Marie Tipsord, Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street
Chicago, IL 60601
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
Brian Porter
Terracon
870 40th Avenue
Bettendorf, IA 52722
Glen Lee, Manager
Wendler Engineering Services, Inc.
1770 West State Street
Sycamore, IL 60178
Joseph W. Truesdale, P.E.
CSD Environmental Services, Inc.
2220 Yale Boulevard
Springfield, IL 62703
Monte Nienkerk
Clayton Group Services, Inc.
3140 Finley Road
Downers Grove, IL 60515
Thomas M. Guist, PE
Team Leader
Atwell-Hicks, Inc.
940 East Diehi Road
Suite 100
Naperville, IL 60563
Richard Andros, P.E.
Environmental Consulting &
Engineering, Inc.
551 Roosevelt Road, #309
Glen
Ellyn, IL 60137
Steven Gobelman
Illinois Department
of Transportation
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
Erin Curley, Env. Department
Manager
Midwest Engineering Services, Inc.
4243 W. 166th Street
Oak Forest, IL 60452
Russ Goodiel, Project Manger
Applied Environmental
Solutions, Inc.
P.O. Box 1225
Centralia, IL 62801
Eric Minder
Senior Environmental
Engineer
Caterpillar, Inc.
100 NE Adams Street
Peoria, IL 61629
Terrence W. Dixon, P.G.
MACTEC Engineering &
Consulting, Inc.
8901 N. Industrial Road
Peoria, IL 61615
Coffin W. Gray
SEECO Environmental Services, Inc.
7350 Duvon Drive
Tinley Park, IL 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
Ken Miller, Regional Manager
American Environmental Corp.
3700 W. Grand Ave., Suite A
Springfield, IL 62707
Jarrett Thomas, Vice President
Suburban Laboratories, Inc.
4140 Litt
Drive
Hillside, IL 60162
Daniel Caplice
K-Plus Environmental
600 West Van Buren Street
Suite 1000
Chicago, IL 60607
Upon penalties as provided by law pursuant to 735 ILCS 5/1-109 (1992
State
Bar Edition), the undersigned certifies that
the statements set forth in this Proof of
Service are true and correct.