R04-22
(Rulemaking
—
UST)
MAY
I ~
2004
STATE OF ILLINOIS
Pollution Control Board
IN THE MATTER OF:
PROPOSED AMENDMENTS TO:
REGULATION PETROLEUM LEAKING
UNDERGROUND STORAGE TANKS
35 ILL.
ADM.
CODE 734
To:
Dorothy M. Gum, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100W. Randolph, Suite 11-500
Chicago, Illinois 60601
)
)
)
R04-23
)
(Rulemaking
—
UST)
)
Consolidated
)
Ms. Marie E. Tipsord
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph, Suite 11-500
Chicago, IL 60601
NOTICE OF FILING
PLEASE TAKE NOTICE that on May
18,
2004, I filed with the Clerk of the Illinois
Pollution Control Board, an original and nine (9) copies of a RESPONSE OF PROFESSIONALS
OF ILL1NOES FOR THE PROTECTION OF THE ENVIRONMENT (PIPE) TO THE
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S AMENDED MOTION FOR
EMERGENCY RULES, copies of which are herewith served upon you.
CLAIRE A. MANNiNG
Posegate & Denes,
P.C.
ill N. Sixth Street, Suite 200
Springfield, Illinois 62701
(217) 522-6152
(217)
522-6184
(FAX)
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IN THE MATTER OF
IRECE~VED
BEFORE THE ILLINOIIS POLLUTION CONTROL BOARD CLERK’S OFFICE
PROPOSED AMENDMENTS TO:
REGULATION PETROLEUM LEAKING
UNDERGROUND STORAGE TANKS
35
ILL. ADM. CODE 732
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CLERK’S OFFICE
MAY 182604
PROOF OF SERVICE
STATE OF
ILLINOIS
The uiidersigiied, being duly sworn, states that a true and correct ~
~°ard
NOTICE OF FILING, together with a copy of RESPONSE OF PROFESSIONALS OF
ILLINOIS FOR THE PROTECTION OF THE ENVIRONMENT (PIPE)
TO THE
ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY’S AMENDED MOTION FOR EMERGENCY
RULES, was served on the individuals as listed below, by mailing the same via the United States
postal service, Springfield, Illinois on May 18, 2004:
Gina Roccaforte
Kyle Rominger
LEPA
Robert A. Messina, General Counsel
1021 North Grand Ave. East
Illinois Environmental Regulatory Group
P.O. Box 19276
3150 Roland Avenue
Springfield, IL 62794
Springfield, IL 62703
Thomas G. Safley
Kenneth James
Hodge, Dwyer, Zeman
Carison Environmental, Inc.
3150 Roland Avenue
65 B. Wacker Place, Suite 1500
P.O. Box 5776
Chicago, IL 60601
Springfield, IL
62705
Lisa Frede
William G. Dickett
Chemical Industry Council of IL
Sidley, Austin, Brown & Wood
2250 E. Devon Ave., Suite 239
Bank One Plaza
DesPlaines, IL 60018
10 South Dearborn Strcet
Chicago, IL 60603
Carolyn S. Hesse
Barnes & Thornburg
Barbara Magel
I North Wacker Drive, Suite 4400
Karaganis & White, Ltd.
Chicago, IL 60606
414 North Orleans St., Suite 810
Chicago, IL 60610
Michael W. Rapps
Rapps Engineering & Applied Science
Bill Fleischli
821 S. Durkin Drive
Illinois Petroleum Marketers Association
P.O. Box 7349
112 West Cook Street
Springfield,
IL
6279107349
Springfield, IL 62704
Craig S. Gocker, President
Joe Kelly, PE
Environmental Management &
United Science Industries, Inc.
Technologies
P.O. Box 360
2012 West College Avenue Suite 208
6295 East Illinois highway 15
Normal, IL 61761
Woodlawn, EL 62898-0360
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Joel J. Stcrnstein
Office olthe Attorney General
Environmental Bureau
188 West Randolph,
20th
Floor
Chicago, IL 60601
Tom Herlacher
Herlacher Angleton Associates, LLC
8731 Bluff Road
Waterloo, IL 62298
Jennifer Goodman
Herlacher Angleton Associates
522 Belle Street
Alton, IL 62002
James E. Huff, PE
Huff& Huff, Inc.
512 W. Burlington Ave., Suite 100
LaGrange, IL 60525
Scott Anderson
Black & Veatch
101 N. Wacker Dr., Suite 1100
Chicago, IL 60606
Melanie LoPiccolo, Office Manager
Marlin Environmental, Inc.
1000 West Spring St.
South Elgin, IL 60177
Brian Porter
Terracon
870 40~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 F-Iighway 15
Woodlawn, IL 62898
Glen Lee, Manager
Wendler Engineering Services, Inc.
1770 West State St.
Sycamore, IL 60178
A.J. Pavlick
Great Lakes Analytical
1380 Busch Parkway
Buffalo Grove, IL 60089
Joseph W. Truesdale, PB
CSD Environmental Services
2220 Yale Blvd.
Springfield, IL 62703
Ron Dye, President
CORE Geological Services, Inc.
2621 Monetga, Suite C
Springfield. IL 62704
Monte Nienkerk
Clayton Group Services, Inc.
3140 Finley Road
Downers Grove, IL 60515
Kurt Stepping
PDC Laboratories
2231 W. Altorfer Drive
Peoria, IL 61615
Thomas M. Guist, PE
Atwell-Hicks, Inc.
940 E. Diehi Road, Suite 100
Naperville, IL 60563
JeffWienhoff
CW3M Company, Inc.
701 S. Grand Ave. West
Springfield, IL 62704
Jarrett Thomas, V.P.
Suburban Laboratories, Inc.
4140 Litt Drive
HiHside, IL 60162
Prtntcd In Recyc l~d‘a per in Accordance with 351(1. Adm, ( ude It (I .2(12 and 101. 302(g)
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Dan King
United Science Industries, Inc.
6295 East Illinois Highway 15
Woodlawn, IL 62898
Richard Andros, PE
Environmental Consulting &
Engineering, Inc.
551
Roosevelt Rd., #309
GlennEllyn,IL 60137
Terrence W. Dixon
MACTEC Engineering & Consulting, Inc.
8901 N. Industrial Road
Peoria, IL 61615
Steve Gobelman
Illinois Dept. ofTransportation
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 B. Palatine Road, Suite 101
Palatine, IL 60067
David Rieser
McGuire Woods LLP
77 W. Wacker, Suite 4400
Chicago, IL 60601
Tina Archer
Greensfeldcr, 1-leniker & Gale
10
S. Broadway, Suite 2000
St. Louis, MO 63104
Erin Curley
Midwest Engineering Services, Inc.
4243 W. l66t~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, IL 60607
Kim Robinson, Brittan Bolin
Illinois Society of Professional Engineers
300 West Edwards
Springfield, IL 62704
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SUBSCRIBED AND SWORN to before
CLAIRE A. MANNING
Ill N. Sixth Street, Suite 200
Springfield, Illinois 62701
(2 17) 522-6152
(217) 522-6184 (FAX)
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CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION
CONTROL
BO~1
C 2004
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
)
INTHEMATTEROF:
)
)
PROPOSED AMENDMENTS TO:
)
R04-23
REGULATION PETROLEUM LEAKING
)
(Rulemaking
-_
UST)
UNDERGROUND STORAGE TANKS
)
Consolidated
35
ILL. ADM. CODE
734
)
RESPONSE OF PROFESSIONALS OF ILLINOIS FOR THE PROTECTIONQEThE
ENVIRONMENT (PLPE)TO THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY~
AMENDED MOTION FOR EMERGENCY RULES
Now comes the Professionals of Illinois for the Protection of the Environment (PIPE) by
and through its attorney, CLAIRE A MANNING, arid responds to the Illinois Environmental
Protection Agency’s Amended Motion for Emergency Rules, as follows.
Backeround
On April 19, 2004, the Illinois Environmental Protection Agency (IEPA) filed a Motion
for the Adoption of Emergency Rules. Various objections were filed to that rulemaking,
including an objection filed by PIPE ort
May
3,2004 and objections filed by two of its members
CW3M and USI, on April 19, 2004 and May 3, 2004 respectively. Since those objections were
filed, PIPE and its members have met vvith the IEPA on several occasions, in an attempt to
ascertain mutual concerns regarding the entirety at’ this rulemaking and, in particular, the EPA’s
desire for emergency rules while this rulemaking runs its course through the required
public
proceedings.
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In light of hose meetings, the EPA has withdrawn its request that the Board adopt, in
emergency fhshion, its proposed modifications to Part 732 and its proposed new Part 734.
nstead, it now requests that the Board amend current Section 732.505 by adding, in emergency
fashion, a new subsection: Section 732.505(d). That new subsection will provide the EPA with
the regulatory framework it asserts that it needs in order to apply a standard method of reviewing
budgets, corrective action plans and requests for reimbursement while its more expansive
rulemaking proposal is being publicly heard and considered by the Illinois Pollution Control
Board (Board). Accordingly, PIPE withdraws its objection to emergency rulemaking, and
supports the proposed Section
732.505(d).
The individual PIPE members who also filed
objections, CW3M and USI, are also expected to withdraw their objections and offer their
support to this new proposed emergency rule.
Previously, the Illinois Environmental Protection Agency argued that an emergency rule
was necessitated because of the Board’s decision in
Illinois Ayers Oil company v. Illinois
Environ~nentalProtection Agency (“Ayers”),
PCB 03-2 14 (April 1,2004), While PIPE does
not agree that the Ayers decision, in and of itself, justifies emergency rulemaking pursuant to the
APA, it does agree that, given the IEPA’s response to
Ayers.
as well the chaos which has resulted
from the JST unit’s inability to utilize the improperly promulgated rate sheet, a situation
justifying the proposed limited emergency rule now exists.
Proposed Emergency Rule: Section 732.505(d)
The proposed emergency rule ~vilIallow the EPA to utilize a standard method of
reviewing claims while their proposed rules are being heard and considered by the Board.
Specifically, the rule simply adds a new subsection (d) to current Section 732.505, which is
entitled “Standard For Review olPians or Reports.” The new subsection would provide:
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o That For all budgets, corrective action plans. amendments and applications that were
received prior to the cflectivc date of the emergency rule, but arc still subject to EPA
review, the LEPA’s approval will be based upon the ccrtitication of the licensed
pro~ssional engineer (LPE) or licensed professional geologist (LPG).
Section
732.505(M(l)
o That For all budgets and corrective action plans that have been approved pursuant to
Section 732.505, the EPA shall approve as reasonable all costs that are contained
therein, without Further review or modification.
Section 732.505~’d,~(I)
o
That for all budgets, plans, amendments and applications for payment that were
received by the EPA after the effective date ofthe emergency rule (except for
applications for payment of costs that are contained in an approved budget or plan),
so long as the costs are consistent with emergency Appendix D and E, the IEPA will
presume them to be reasonable,
Section 732.505(d) (2)(A) ; Appendix D, ‘~4llowable
Unit Rates;” and Appendix .E. “Personnel Titles and Rates.”
o That, for items not contained in Appendix D and E, costs that are consistent with the
standard industry RS Means publications, ~villbe presumed to be reasonable.
Section
732.505~d,)(2)(B)
o That for costs that are not identified in Appendix D or B and cannot be determined
utilizing the RS Means publications, costs justified by objective evidence such as
catalogue or vendor information will be presumed to be reasonable.
Section
732.505(d,) (2) ~
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That the LPE and LPG will certify, on a form prescribed by the EPA, the
reasonableness of all costs requested for reimbursement. If the costs exceed those
presumed to be reasonable in Section 732.505(d)(2), the LPE or UPO will delineate
and justify those costs. The IEPA can approve those costs based upon this
justification.
Section 732.505(d) (3) and (4)
o That the IEPA will provide written advance notice to the owner or operator whenever
it anticipates denying, modifying or rejecting any portion of a submitted budget, plan,
amendment or application for payment
—
so long as the owner or operator agrees to a
60-day review waiver. During this review period, the owner and operator will be
provided an opportunity to address the reasons given by the EPA for its intended
action.
Section 732.505(cl~)(5)
Section 732.505(d) was carefully drafted, and is the result of many hours ot’meetings and
consultations between PIPE and its representatives and the EPA and its represernatives. PIPE
believes that this negotiated provision is reasonable and workable. Moreover, PIPE agrees that,
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given the circumstances that have arisen since the Board’s decision in
Ayers,
the limited
emergency rule proposed here is both justified and prudent.
Emergency Justification
As justification for emergency rulemaking, the IEPA states that emergency rules are
“needed to.provide a standard methodology For determining the reasonableness of costs
submitted to the EPA for approval” and that “(S)ince the Ayers case, the Illinois EPA has
struggled to develop a new method for determining the reasonableness of the myriad costs it
reviews.” (IEPA Amended Motion, p. 2) The JEPA goes on to state that any standard
methodology would “necessarily be generally applicable, and therefore could not be
implemented until adopted as arule.” (EPA Amended Motion, p. 2)
PIPE certainly appreciates that the EPA now understands the necessity for rulemaking
prior to utilizing any standard methodology in making determinations of reasonableness.
However, it is not this understanding, or the
Ayers
case, which justifies emergency rulemaking.
While PIPE believes that the IEPA was remiss in not proposing these rules to the Board at the
time the UST law was changed, and certainly at the time that the EPA began using a
standardized ‘~ratesheet” for costs, the parties nonetheless find themselves in a situation where
emergency rulemaking is in the public interest.
Indeed, in response to litigation declaring the invalidity of the “rate sheet” (see
CW~vf
Company, Inc. v. Illinois Environmental Protection Agency,
Circuit Court of Sangamon County,
NO. 03-MR-0032 (April 21, 2004), as well as the Board’s decision in
Ayers)
the IEPA
temporarily halted the processing of many claims for remediation and payment from the UST
fund, claiming that if it couldn’t utilize the “rate sheet” it couldn’t process claims. While PIPE
continues to bclieve that this IEPA response was totalLy unjustified, especially given the Act1s
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requirement of LPE or LPG certification of virtually every aspcct ol’a UST rcmediation, PIPE is
also convinced that it is in the public’s interest for the Board to adopt this limited emergency
rule. This particular emergency rule proposal, unlike the IEPA’s previous one, is directly
responsive to the claimed emergency. It specifically resolves an administrative dilemma and sets
forth public parameters that are intended to create stability for the UST fund.
The requirements for Board emergency rulemaking ‘are set forth both in the
Administrative Procedures Act (APA), 5 ILCS 100/5-45 and the Illinois Environmental
Protection Act (Act), 415 ILCS 5/27. Section 27(c) of the Act allows the Board to promulgate
emergency rules pursuant to Section
5-45
of the APA whenever “a situation exists which
reasonably constitutes a threat to public interest, safety or welfare.”
The JEPA argues that these emergency rules are necessary to protect the proceeds of the
UST fund since, without a standard methodology for reviewing claims, the fund will dissipate at
a greater rate than otherwise: “without rules to govern how to determine the reasonableness of
costs, the Illinois EPA’s ability to control costs and maintain consistent and fair reviews is
Limited,” (EPA Amended Motion at p. 2) The IEPA goes on to areue that, based upon recent
submissions, reimbursement dollars have increased since the EPA stopped using the rate sheet
and, accordingly, it is in the public interest to immediately adopt these rules.
PIPE agrees that it is in the public interest for the Board to adopt this limited rule and,
therefore, emergency rulemaking is jusl:ified. PIPE’s major concern is that dollars be available
from the fund For their intended and legislated purpose: to rerriediate sites contaminated by
leaking underground storage tanks. As PIPE has suggested to the EPA, a standard regulatory
methodology For reviewing claims is helpful to that purpose, so long as such standard
methodology has been publicly recognized and adoptcd via rulemaking.
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PIPE disavows any assertion, director otherwise, on the part of the IEPA that the claimed
increase in reimbursements is attributable to any excessive claims since the invalidation of the
rate sheets. Nonetheless, PIPE agrees that, during the pendancy of the regular rulemaking, these
emergency rules are justi fled to ensure that all those accessing the fund, and those reviewing the
claims, are.operating under the same “rules of the game.” In fact, PIPE would assert that if such
were the case prior to
Ayers,
that case
—
and its attendant costs
—
may not have even been
necessary. Indeed, it is PIPE’s belief that these emergency rules, especially with the proviso that
the IEPA will give notice of the reasons for an intended denial, will serve to stabilize the fund.
Such stabilization is in the public interest because it will allow maximum use of limited
resources to remediate and enhance the environment.
While
Citizen ‘sfor a Better Environment v. Illinois Pollution Control Board, 152
IIl.App.3d 105, 105 Iii. Dec. 297, 504 N.E.2d 166 (1st. Dist. 1987), sets the stage for the
appropriateness of emergency rulemaki:ng under the APA, that ease also recognizes the
deference that appropriately should be accorded an agency when they have made a reasonable
justification for the promulgation of an emergency rule. While the EPA’s initial emergency
proposal (that the Board promulgate, in emergency fashion, its modifications to
35
Ill. Adm.
Code Part 732 and adopt a new 35 Ill. Adm. Code Part 734) did not provide any such emergency
justification, proposed subsection (d) does. This is so because this limited subsection will
provide the specific public framework necessary for the regulated community to know what
standards are being utilized by the LEPA in reviewing requests for payment from the fund for the
next 150 days, while the Board considers the entirety of the proposed rules.
In its prior applications of the APA and Section 27(c) of the Act, as well as the
Citi:cns
for a BeitL’r Environment
case, the Board has recognized that, in order to avert uncertainty in the
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administrative process, limited emergency rulemaking was justified. For example, in 1993 the
Board allowed the IEPA, via emergency rulemaking, to extend the compliance date For Stage El
vapor recovery equipment in the Metro-East area, because of the “intolerable uncertainty”
attendant to whether the federal requirements that were the subject of the deadline would actually
be implemented. See
In the il’Iatter ofEmergency Rule A~nendingthe State II Gasoline Vapor
Recovery Rule in the Metro-East Area,
35 11. Adm. Code 219.586(d), R93-12 (May 20, 1993)
While the Board admonished the EPA or its actions in necessitating emergency rulemaking
(“(T)he Board notes that the extreme action of an emergency rulemaking might have been
avoided if the EPA had acted in more timely fashion”), the Board nonetheless concluded that
the emergency rule was justified by the public interest.
The Board has also adopted, in emergency fashion, discrete specific regulatory sections
to deal with specific issues in emergency fashion. For example, in
In the Matter of Emergency
Amendments to the Landfill Rulesfor On-Site Burial ofDead Animals in Flood-Disaster
Counties, 35
III. Adm. Code 807.106, R93-25 (Sept. 23, 1993), the Board adopted 35 Iii. Adrn.
Code Section 807.106 as an emergency rule in order to exempt the burial of dead animals from
specific landfill requirements during the Great Flood of 1993. Also during that flood, the Board
exen~ptedflood-generated waste from open burning requirements. See
In the Matter of
Emergency Amendments to the Open-Burning Rules,
35 111. Adm. Code 237.12 1, R93-15. While
PIPE recognizes that these flood~relatedrules were also justified by public health and safety
considerations, the Board’s adoption of a limited regulatory section to deal with a specific issue,
as the one now proposed here, is well within the parameters of emergency rulemaking.
For these rcasons, PIPE fully supports the adoption of new subsection (d) of Section
732.505 as an emergency rule.
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Emergency Rule’s ISO Day Re~uircment
PIPE recognizes that any emergency rule will automatically terminate after 150 days.
See 5 TLCS 100/5-45. As PIPE acknowledged in its previous filing, promulgating a permanent
rule within this timeftame will be difficult. 1-lowever, because PIPE and TEPA have begun to
meet and will continue to meet, PIPE does not believe promulgation within this timeframe will
be impossible. Rather, PIPE hopes that the parties will be able to identify issues of
commonality, and difference, in order to present them to the Board
—
concisely, within whatever
timeframe the Board suggests is necessary. Toward that end, any Board established tentative
timetable or other direction would provide much assistance in these efforts.
CONCLUS ION
PIPE respectfully requests that the Board adopt proposed subsection (d) to be added to
current 35 Ill. Adm. Code 732.505 as an emergency rule to guide the IEPA’s review of UST
claims for the next 150 days. However, if the Board denies the IEPA’s request, despite its
wholehearted support from PIPE and its members, PIPE respectfully requests that the Board
direct the IEPA in how to proceed with UST reimbursement claims during the pendancy of this
rulemaking, as any halting of the UST program and attendant funding c~useschaos in UST
remediation, presents an intolerable situation for those involved in the business of UST
remediation and, moreover, violates the letter and spirit of the Act.
Respectfully submitted,
A
Claire A. Manning, Attorney
8
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CLAIRE A. I~V1ANNING
Posegate & Denes, P.C.
11 1 N. Sixth Street
Springfield, Illinois 62705
(217)522-6152
(2 17)522-6184 (FAX)
claire~posegate..denes.com
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CLERK’S OFFICE
POSEG.ATE & DENES, P.C.
.
MAY
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2004
Attorneys at Law
111
North
6Ut Street,
Suite
200
STATE OF ILLINOIS
P.O.
Box
338
Pollution Control Board
Springfield, IL 62705-0338
C~iolHansen
Posegate
Telephone (217) 522.6152
Jane Nolan Denes
Facsimile (217) 522-6134
Claire A. Manning
Cf
Counsel
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