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RECER/ED

STATE OF ILLINOIS

Pollution Control Board

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN TFE MATTER OF:

)

PROPOSED AMENDMENTS TO:

)

R04-22

REGULATION PETROLEUM LEAKING

)

(Rulemaking

—

liST)

UNDERGROUND STORAGE TANKS

35 ILL. ADM. CODE 732

1)

INTHE MATTER OF:

PROPOSED AMENDMENTS TO:

)

R04-23

REGULATION PETROLEUM LEAKING

)

(Rulemaking

-

UST)

UNDERGROUND STORAGE TANKS

)

Consolidated

35 ILL. ADM. CODE 734

To:

Dorothy M. Gunn, Clerk

Ms. Marie E. Tipsord

Illinois Pollution Control Board

Illinois Pollution Control Board

James R. Thompson Center

James R. Thompson Center

100W. Randolph, Suite 11-500

100 West Randolph, Suite 11-500

Chicago, Illinois 60601

Chicago, IL 60601

NOTICE OF FILING

PLEASE TAKE NOTICE that on May 3, 2004, I filed with the Clerk of the Illinois

Pollution Control Board, an original and nine (9) copies of a RESPONSE OF PROFESSIONALS

OF ILLNOIS FOR THE PROTECTION OF THE ENVIRONMENT (“PIPE”) TO ILLINOIS

ENVIRONMENTAL PROTECTION MOTION FOR EMERGENCY RULEMAKING, copies

ofwhich are herewith served upon you.

C’

(~

A

“~~

Claire A. Manning, Attorney

) ~ç’

CLAIRE

A. MANNING

Posegate & Denes, P.C.

I II N. Sixth Street, Suite 200

SpringI~ield,Illinois 62701

(217) 522-6152

(217) 522-6184 (FAX)

claire(2j~posegate-dcnes.coni

I&.~cy~Icdl~tperii~~

~i,cu w~Lt~3~III. Adu. C ud~I C) I.202 ii&I 10 302(g)

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Pasegate ~ Denes

2175226184

STATE OF ILLINOIS

Pollution Control Board

The undersigned, being duly sworn, states that a true and correct copy of the foregoing

NOTICE OF FILfNG, together with a copy of RESPONSE OF PIPE TO AGENCY’S

EMERGENCY RULEMAKING, was served on the individuals as listed below, by mailing the

same via the United States postal service, Springfield, Illinois on May 4, 2004:

Gina Roccaforte

Kyle Rominger

IEPA

1021 North Grand Ave. East

P.O. Box 19276

Springfield, IL 62794

Thomas G. Safley

Hodge, Dwyer, Zeman

3150 Roland Avenue

P.O. Box 5776

Springfield, IL 62705

William G. Dickett

Sidley, Austin, Brown & Wood

Bank One Plaza

10 South Dearborn Street

Chicago, IL 60603

Barbara Magel

Karaganis & White, Ltd.

414 North Orleans St., Suite 810

Chicago, IL 60610

Bill Fleischli

Illinois Petroleum Marketers Association

112 West Cook Street

Springfield, IL 62704

Joe Kelly, PP

United Science Industries, Inc.

P.O. Box 360

6295 East Illinois Highway 15

Woodlawn, IL 62898-0360

Robert A. Messina, General Counsel

Illinois Environmental Regulatory Group

3150 Roland Avenue

Springfield, IL 62703

Kenneth James

Carison Environmental, Inc.

65 E. Wacker Place, Suite 1500

Chicago, IL 60601

Lisa Frede

Chemical Industry Council of IL

2250 E. Devon Ave., Suite 239

DesPlaines, IL 60018

Carolyn S. Hesse

Barnes & Thornburg

I North Wacker Drive, Suite 4400

Chicago, IL 60606

Michael W. Rapps

Rapps Engineering & Applied Science

821 S. Durkin Drive

P.O. Box 7349

Springfield, IL 6279107349

Joel J. Sternstein

Office of the Attorney General

Environmental Bureau

188 West Randolph,

201h

Floor

Chicago, IL 60601

Torn Hcrlachcr

Herlacher Angleton Associates, LLC

8731 BluftRoad

Waterloo, IL 62298

Cited ni liceyeled I’nper ii A~~,iduc~will, 3~SUI. Adni, (‘iCe III .21)2 ~id III. 302(g)

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.1 cim lbr Goodman

1—lerlaclier An’~letonAssociates

522 Belle Street

Alton, IL 62002

James E. Fluff. PE

l-Iuff& Huff, Inc.

512W. Burlington Ave., Suite 100

LaGrange, IL 60525

Scott Anderson

Black & Veatch

101 N. WackerDr., Suite 1100

Chicago, IL 60606

Melanie LoPiccolo. Office Manager

Marlin Environmental, Inc.

1000 West Spring St.

South Elgin, IL 60177

Brian Porter

Terracon

870

40th

Avenue

Bettendorf, IA 52722

Jonathan Furr, General Counsel

illinois Dept. of Natural Resources

One Natural Resources Way

Springfield, IL 62702

Joe Kelly, VP Engineering

EcoDigital Development LLC

P.O. Box 360

6295 East Illinois Highway 15

Woodlawn, IL 62898

Glen Lee, Manager

Wendler Engineering Services, Inc.

1770 WestState St.

Sycamore, IL 60178

A.J. Pavlick

Great Lakes Analytical

1380 Busch Parkway

Buffalo Grove, IL 60089

Joseph W. Truesdale, PE

CSD Environmental Services

2220 Yale Blvd.

Springfield, IL 62703

Ron Dye, President

CORE Geological Services, Inc.

2621 Monetga, Sute C

Springfield, IL 62704

Monte Nienkerk

Clayton Group Services, Inc.

3140 Finley Road

Downers Grove, IL 60515

Kurt Stepping

PDC Laboratories

223 1 W. Altorfer Drive

Peoria, IL 61615

Thomas M. Guist, PE

Atwell-Hicks, Inc.

940 E. Diehl Road, Suite 100

Naperville, IL 60563

Jeff Wienhoff

CW3M Company, Inc.

701 S. Grand Ave. West

Springfield,

IL

62704

Jarrett Thomas, V.P.

Suburban Laboratories, Inc.

4140 Litt Drive

Hillside, IL 60162

Dan King

United Science Industries, Inc.

6295 East Illinois Highway 15

Woodlawn, IL 62898

Richard Andros, PP

Environmental Consulting &

Engineering, Inc.

551 Roosevelt Rd., #309

Glenn Ellyn, IL 60137

Pitted ii Ceeytded Puper ii Aeeurdnnee will .1_S Ill. Adm. & ‘nile 11)1.21)2 ~tiitl 01. 31)2(g)

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Ten’enc.c W. Dixon

MACTEC Engineering & Consulting, Inc.

3901 N. Industrial Road

Peoria, IL 61615

Steve Gobelman

Illinois Dept. of Transportation

2300 Dirksen Parkway

Springfield, IL 62764

Collin W. Gray

SEECO Environmental Services, Inc.

7350 Duvon Drive

Tinley Park, IL 60477

George Moncek

United Environmental Consultants

119 F. Palatine Road, Suite 101

Palatine, IL 60067

David Rieser

McGuire Woods LLP

77 W. Wacker, Suite 4400

Chicago, IL 60601

Tina Archer

Greens felder, Hernker & Gale

10 S. Broadway, Suite 2000

St. Louis, MO 63104

Eriti Curley

Midwest Engineering Services, Inc.

4243 W. 166)11 St.

Oak Forest, IL 60452

Ken Miller, Regional Manager

American Environmental Corp.

3700 W. Grand Avenue, Suite A

Springfield, IL 62707

Russ Goodiel

Applied Environmental Solutions, Inc.

P.O. Box 1225

Centralia, IL 62801

Daniel Goodwin

Secor International, Inc.

400 Bruns Lane

Springfield, IL 62702

Eric Minder

Caterpillar, Inc.

100 N.E. Adams St.

Peoria, IL 61629

Daniel Caplice

K-Plus Environmental

600 W. Van Buren St., Suite 1000

Chicago, 1 60607

(-~-.~‘

~

SUBSCRIBED AND SWORN to before me this

4111

day of

CLAIRE A. MANNING

Ill N. Sixth Street. Suite 200

Springfield, Illinois 62701

(217) 522-6152

(217) 522-6184 (FAX)

ekIl reC~i~poscitatc-dcncs.com

OFFICIAL

DEBORAH D. COOPER

~

~ NOTARV PUBLIC. STATE OF ILLINOIS

~ MV COMMII)SION EXPIRES 1 1-2~2OO5~

/

Ii’ii,ted

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Poseg~te & IJenes

2175226184

IN THE MATTER OF:

PROPOSED AMENDMENTS TO:

R04-22

-

REGULATION PETROLEUM LEAKING

)

(Rulemaking

—

UST)

UNDERGROUND STORAGE TANKS

)

35 ILL. ADM. CODE 732

1NTFE MATTER OF:

)

)

PROPOSED AMENDMENTS

TO:

)

R04-23

REGULATION PETROLEUM LEAKING

)

(Rulemaking

-

UST)

UNDERGROUND STORAGE TANKS

)

Consolidated

35 ILL. ADM. CODE 734

)

AGENCY’S MOTION FOR EMERGENCY RULEMAKING

NOW COMES the Professionals of Illinois for the Protection of the Environment

(“PIPE”) by and through its attorney Claire A. Manning, and, objects to the Illinois Environ-

mental Protection Agency’s (“Agency”) Motion that the Board adopt revised Part 732 and create

new Part 734 on an emergency basis.

First, PIPE appreciates that a process needs to be developed which effectively, effi-

ciently, expeditiously and

fairly

reviews work pUn budgets and submittals for reimbursement

from the underground storage tank fund. That review should be based upon actual costs, indus-

try standards, documented expenditures, scope of work and budget and project plan presentations

which are certified by licensed professional engineers and geologists as required by the Illinois

Environmental Protection Act (“Act”), 415 ILCS

5/1

Ct. seq., and corresponding Board rules.

As is most likely evident to the Board, because of the significant increase in underground storage

CLERK’S OFFICE

BEFORE TUE

ILLINOIS POLLUTION CONTROL BOAR1)

PoIIut~onControl Board

li’inteil in R~cycl~d

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ii

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l)Il.3(I2Ig)

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2175228184

p.7

tank appeals, there has been a liOtiCcab Ic breakdown in (lie woi’kabi lity of the reimbursement

program in the last few years. That breakdown results from various factors, and PIPE submits

that changes in the Agency’s administration of the program over the course of the last several

years are at the heart of those factors.

First, the Agency began the routine utilization of a “rate sheet” which PIPE maintains

that was developed in an arbitrary fashion and without public promulgation, inconsistent with

the Environmental Protection Act (“Act”) and the Administrative Procedures Act.

5

ILCS 10/5

Second, the Agency has discontinued affording any deference or consideration to the certifica-

tions of the licensed professional engineer and geologists that are required by the Act. Third,

instead of reviewing a portion of the various types of budgets, plans and other claims for reim-

bursement, as contemplated by the Act (see 415 ILCS 5/57.2(c), the Agency reviews each and

every submittal, at various different decision-making points and, as a result, the Agency’s LUST

Unit has grown substantially. Fourth, there is no longer any communication, written or other-

wise, from the Agency to the requestor regarding the Agency’s reasons for amendment of budg-

ets or denial of costs. Finally, the most recent statutory changes, made well over two years ago,

have never been incorporated into regulatory language and, accordingly, the procedural admini-

stration of the LUST program pursuant to these changes has never been subject to public com-

ment or Board review

—

until now.

Now, after years of operating the program without public rulemaking, the Agency moves,

without citing any legal authority, that the Board adopt these important rules, again without pub-

lie review, in wholesale and emergency fashion. The Board should resist this particular effort

and allow this important rulemaking to proceed in. regular and expeditious fashion, with all the

public participation and Board oversight contemplated by the Act.

.3

Printed on Reeycled Pnpei- in icen,’lat,c~with

35

III. Adm, Code il)202 and

!0l,31)2(g)

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In order Lu ensure that the reimbursement process works as intended by the underground

storage tank legislation, PIPE is participating in the Board’s rulemaking docketed as R04-22 and

R04-23. Incorporated as a not-for-profit professional association on April (5, 2004, PIPE is an

association of professionals (engineers, geologists and other professionals), businesses, and con-

tractors who are employed or contracted to remediate, protect and enhance the environment and

protect human health arid safety. The membership consists of professional consultants, engi-

neers, laboratories, contractors and other stakeholders vital to the remediation of LUST incidents

in Illinois. Already, a great number of the businesses who are contracted by owners arid opera-

tors of leaking underground storage tank sites to rernediate those sites, many of which appeared

at the Board’s first hearing in this matter, are members of PIPE.

PIPE desires to cooperate with the Agency in an effort to establish a methodology for the

Agency’s review of costs associated with leaking underground storage tanks. Both parties have

recently had the opportunity to meet and share their respective concerns and, importantly, their

commitment to a mutual goal: making the best use ofthe resources of the fund, so that LUST

sites can continue to be remediated and Illinois’ environment can continue to be protected and

enhanced. PIPE is interested in an expeditious and fair reimbursement process, one that recog-

nizes both the reasonableness of the actual costs associated with remediation, as well as a defer-

ence that should be afforded the professional judgment that is inherent in the professional engi-

neer’s or geologist’s certification required by the Act and Board rules.

PIPE is working with the Agency toward that end. PIPE’s understanding, as aresult of

its discussions with the Agency, is that the Agency will be asking the Board to refrain from act-

ing ot~this emergency Motion pending further discussions, PIPE has indicated a continued will-

ingness to discuss, to the extent it may be deemed necessary, an interim agreed approach to the

3

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review ol’ LUST reimbursement claims until a rule can be formally promulgated by the Board.

These efforts should nai-row the issues and controversy currently before the Board and allow tile

ruicmakmg to proceed more smoothly. Nonetheless, PIPE objects to the Agency’s specific re-

quest for emergency rulemaking in this matter since, with all due respect, any “emergency” is of

the Agency’s own making: a result of its routine application of an arbitrary “rate sheet” and its

avoidance of public rulemaking.

Recently, the Board admonished the Agency for utilizing the rate sheet without promul-

gating it as a rule. In

Illinois Ayes Oil Company v. Illinois Environmental Protection Agency

(Avers

“.)

(PCB 03-2 14, April 1, 2004), the Board considered a contested reimbursement issue,

where the Agency denied Ayers a substantial part of its requested reimbursement, based upon the

Agency’s application of its “rate sheet” and concomitant “reasonableness” determination. At

hearing, witnesses for CSD Environmental (the remediation company responsible for the

Ayers

site and now a member of PIPE) credibly testified as to the reasonableness of its remediation

project and related costs. While the Board opined that the Agency’s rate sheet was invalidly

promulgated, the Board nonetheless considered the Agency’s application of the rate sheet as the

Agency’s interpretation of “reasonableness.” The Board’s decision, which cost the petitioner

more to pursue than the actual dollar amount in dispute, in essence-declared that the position of

CSD Environmental was more reasonable than that of the Agency.

On January 22, 2003, CW3M Company, Inc., another environmental remediation com-

pany and also flOW a member of PIPE, filed suit in Sangamon County seeking to enjoin the

Agency from its standard use of a rate sheet to determine “reasonableness” of remediation and

related costs under the Act. The matter was not heard until April 21, 2004 and, upon tile motion

of tile Agency, tile court declared the matter moot because of the Board’s decision

iiiAvcrs.

4

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cii

Recycled Pnper in ~ieeordnnce~vilh 35 ill. Adin. Code .101.21)2 and 1(11.11)2(g)

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Nonctheless, the court admonished the Agency to discontinue the use of a standard rate sheet that

had not been promulgated as a rule. See

CW’M’ Company, Inc. v. Illinois Environmental Protec-

tion Agency,

Circuit Court of Sangarnon County, NO. 03-MR-0032 (April 21, 2004).

Based in large part upon

tile

above-referenced challenges to the Agency’s use of the rate

sheet as a “rule” regarding “reasonableness,” the Agency now seeks to have the Board promul-

gate its proposed rule as an emergency rule. In support thereof, the Agency asserts: “Without

the rate sheet, the Illinois EPA lacks a standard methodology for determining whether the costs

submitted for approval in budgets and applications are reasonable. A standard methodology for

determining the reasonableness of costs is included in the proposed rules currently before the

Board.” (See Agency Motion at page 2).

Thus, while the Agency has been reviewing LUST fund claims for well over ten years,

certainly prior to the routine use of an established rate sheet, the Agency now seeks the Board’s

immediate blessing of the use of its rate sheet, now incorporated into regulatory language, via

this Motion for Emergency Rulemaking. PIPE strongly objects to the Board’s sanctioning of this

rate sheet by incorporating it into formal Illinois administrative regulation for various reasons.

First and foremost, Illinois caselaw is clear: a state agency cannot create its own emer-

gency and then, in justification of emergency rulemaking, assert the existence of a situation that

“reasonably constitutes a threat to the public

interest, safety, or welfare.” See 5 ILCS 100/5-45;

Senn Park Nursing

Center

v. Miller,

104 Ill. 2d 169,83111. Dec. 609, 470 N.E. 2d 1029 (1984).

See also,

Citizen ~‘for a Better Environment v. Illinois Pollution Control Board,

152 Il1.App.3d

105, 105 Ill. Dec. 297, 504 N.E.2d 166 (1st. Dist. 1987): “the need to adopt emergency rules in

order to alleviate an administrative need, which, by itself, does not threaten the public interest,

safety or wclfare, does not constitute an “emergency.” The policy reasons underlying this case-

5

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.

2175228184

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law are clear: government should not be able to create its own emergency and then use that

emergency as ajustification to administer its program in a way that forecloses Legitimate and re-

quired public input. In this case, those policy reasons are even more evident because it is tile

very foreclosure of the right to participate that here creates the claimed emergency.

Further, while the Agency claims that it needs an “emergency” fix because it can’t utilize

it’s rate sheet, the fix it seeks would delete long standing regulatory language (in Part 732) and

add an entirely new Part 734— all justified by a selfcreated emergency and all without the requi-

site public participation. Even if the “fix” is limited to allowing the Agency to use its proposed

rates (e.g., Subpart H), as it claims is necessary, such “fix” will only serve to create, not dissi-

pate, havoc. This is so because, as is likely clear to the Board from its first-hearing in this pro-

ceeding, PIPE members seriously dispute the Agency’s claim that the proposal before the Board

is reflective of a standard methodology for determining the reasonableness of costs. For the

Board to sanction these rates, without public input and Board review, even in emergency fashion,

is for the Board to legitimize the very rates that PIPE maintains have been arbitrarily established.

Since that hearing, PIPE has become aware of further information, which it plans to pre-

sent at the Board’s next hearing, which further undermines the claimed methodology and reason-

ableness of the Agency’s proposed reimbursement rates in this rulemaking. On the eve of the

CW3M court hearing in Sangamon County, the Agency finally responded to an FOIA request

that had previously been denied. (The denial was one of the issues before the court that, as a re-

sult of the Agency’s belated response, was also declared moot.) Three important documents

were, for the first time, released and have been reviewed by members of PIPE: an Agency 1.998-

1999 sampling of remediation sites; a 2003 rate sheet; and a 2004 rate sheet.

6.

Pi’intcd on Recycled P~peiin accoi-dance with 35 UI. Adiii. Code dl

.202 and k)l.302(g)

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2175226184

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PIPE will submit these documents as denlonstration that proposed Subpart 11 and Appen-

dices were developed utilizing non-representative group Of site rernediations from as far back as

1998-1999. Even then, many of the rates in tile 2003 rate sheet are less than these representative

amounts. Uncannily, in tile 2004 rate sheet, they are lesser still. Thus, while one might presume

that tile cost of remediation and the cost of doing business in Illinois has risen during this period

of time, the rates, as determined “reasonable” by the Agency, have fallen. Simply put, the

Agency’s rates are not a reasonable representation of the current costs of remediation of under-

ground storage tank sites and should not be sanctioned by the Board, especially on an emergency

basis.

The Agency’s claim that it cannot make determinations of “reasonableness” without us-

ing emergency promulgated rates is without merit, especially since the Act requires a certifica-

tion of a licensed professional engineer or geologist on virtually every cost associated with

LUST reimbursement. Indeed, the Act contemplates the Agency’s role as being one of selected

“review” and “audit” of these remediation projects and, while a promulgated rate sheet may be

helpful, it is not a necessary pro-requisite to an Agency approval of costs associated with reme-

diation. To the extent the Agency believes that aconsideration of standardized rates is appi’opri-

ate, PIPE agrees that such rates, if promulgated correctly and fairly, might well serve to expedite

the reimbursement process. When not promulgated fairly or correctly, however, the opposite is

the inevitable result. Further, there are various industry publications that the Agency reviewers

might draw from, including

RSivleans,

tilat annually publish standard rates for the construction

and environmental’ industries. However, these publications do not appear to have been utilized

by the Agency in its development of’ the proposal currently before the Board.

7

Printed ciii Recycled liaper in accordance wilh 35 III. Adm. Code )0);2ll2 and )l11.302(g)

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2175226184

p. 13

Also, as the Board well knows, any emergency rule is only valid for 150 days and, given

the controversy currently evident in this rulemaking, the promulgation of a permanent rule in 1.50

days would be a yeoman’s job. Thus, unless the stakellolders’ positions become less divergent

quickly, any emergency rule would likely terminate prior to a regular rule’s promulgation. In

order to facilitate this rulemaking, and in an attempt to create some degree of harmony in the

processing of LUST budgets, plans and reimbursement claims, PIPE is involved in an ongoing

dialogue with the Agency. As a result of those discussions, PIPE expects that the Agency will

request that the Board hold its request for emergency rulemaking in abeyance so that the parties

might continue to dialogue. The hope is that the Agency will present a more palatable proposal

to the Board. Unless and until that occurs, however, PIPE strenuously objects to-the Agency’s

motion that the Board adopt Part 732 and Part 734 in emergency fashion.

Respectfully submitted,

A

-~‘

Claire

~

A,. Manning,

r—L I’

Attorney

1 ~

CLAIRE A. IVIANNING

Posegate & Denes, P.C.

lii N. Sixth Street

.

Springfield, Illinois 62705

(217) 522-6152

(217) 522-6184 (FAX)

clai re~posegate-dermes.com

8

Printed on

Recycled Paper it

accordance with

35 III. ,\dim Coite 11)1.2(12 and 1111.3112(g)

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2175226184

CLERK’S OFFICE

POSEGATE & DENES,

p.c.

MAY 032004

Attorneys

at

Law

STATE OF ILLINOIS

lii North 6th Sheet, Suite 200

Pollution Control Board

P.O. Box 338

Springfield, IL

62705-0338

Carol Hansen Posegate

Telephone (217)

522-6152

Jane Nolan Denes

Facsimile (217) 522-6184

Claire A. Manning

Of Counsel

FAX TRANSMISSION

DATE:

May3,

TO:

Marie Tipsord

FROM: Claire A. Manning

RE:

R 04-22 and R 04-23

MESSAGE: Response to Motion for Emergency Rulemaking for Filing with IPCB

This document is being sent via facsimile and

x

U.S.

Mail

____

Overnight Delivery

Facsimile only

NUMBER

OF PAGES INCLUDING THIS SHEET:

~

3

CONFIDENTIALITY NOTICE: The documents accompanying this fax transmission contain contidential information

belonging to the sender

which

is legally privileged. The information is intended only for the use of

the

individual or

entity

named above,

if

you are not time intended recipient, you are hereby notified that any reading, disclosure, copying, distribution

or the

taking

of any action

in

reliance on or regarding the contents ott this faxed information is strictlyprohibited. if you

have

received this fax in

error,

please immediately notify us by telephone to arrange for return of the original documents to us.

NOTE: IF ANY

FART

OF THIS TRANSMISSION WAS MISSING OR UNREADABLE, PLEASE CALL THiS OFFICE