ILLINOIS POLLUTION CONTROL B0AIW

RECEWED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’S OFFICE

)

SEP23200k

PROPOSED AMENDMENTS TO:

REGULATION OF PETROLEUM

LEAKING UNDERGROUND STORAGE

TANKS (35 ILL. ADM. CODE 732)

)

IN THE MATTER OF:

PROPOSED AMENDMENTS TO:

REGULATION OF PETROLEUM

LEAKING UNDERGROUND STORAGE

TANKS

(35

ILL. ADM. CODE 734)

NOTICE OF FILING

Dorothy M. Gunn, Clerk

Matthew Dunn, Chief

Illinois Pollution Control Board

Environmental Bureau

James R. Thompson Center

Office ofthe Attorney General

100 West Randolph Street, Suite 11-500

100 W. Randolph,

12th

Floor

Chicago, Illinois 60601

Chicago, Illinois6O6Ol

General Counsel

Department ofNatural Resources

One Natural Resources Way

Springfield, IL 62702-1271

PLEASE TAKE NOTICE that I have filed today with the Illinois Pollution Control

Board the Illinois Environmental Protection Agency’s Post Hearing Comments, a copy of which

is herewith served upon you.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

By:

/~_~—~

Kyle ~ominger

Assistant Counsel

Dated: September 22, 2004

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217)

782-5544

IN THE MATTER OF:

)

STATE OF ILUNOIS

R04-22

PoUutiOfl Control Board

(Rulemaking

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Land)

R04-23

(Rulemaking

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Land)

)

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

)

PROPOSED AMENDMENTS TO:

)

REGULATION OF PETROLEUM

)

LEAKING UNDERGROUND STORAGE

)

TANKS (35 ILL. ADM. CODE 732)

)

IN THE MATTER OF:

PROPOSED AMENDMENTS TO:

REGULATION OF PETROLEUM

LEAKING UNDERGROUND STORAGE

TANKS

(35

ILL. ADM. CODE 734)

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S

POST HEARING COMMENTS

NOW COMES the Illinois Environmental Protection Agency (“Illinois EPA”), by

and through one ofits attorneys, Kyle Rominger, and submits the following post-hearing

comments:

The Illinois EPA would like to thank the Board, Hearing Officer Tipsord, and the

Board staff for their attention and patience in this rulemaking proceeding. The Illinois

EPA would also like to thank all ofthe parties that contributed to this proposal through

discussions with the Illinois EPA and through comments and testimony provided to the

Board.

As stated in the hearings held in this rulemaking, a portion ofthe outreach process

that the Illinois EPA normally conducts prior to submitting proposed rules to the Board

did not occur in this rulemaking due to anti-trust concerns expressed by outside parties.

This uncommon curtailment ofthe Illinois EPA’s outreach meant that many issues

usually discussed and settled prior to the submission ofrules to the Board were raised in

RECE WED

CLERK’S OFFICE

SEP 23 2004

STATE OF ILLINOIS

Pollution Control Board

R04-22

(Rulemaking

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Land)

)

R04-23

)

(Rulemaking

—

Land)

)

the hearings. As discussed in the hearings, and as evidenced by the Illinois EPA’s three

errata sheets and the additional changes proposed in this document, the Illinois EPA has

made significant changes to its proposal in response to the suggestions and concerns

raised by the Board and interested parties. The result is a proposal that improves upon

the original and continues to benefit all parties involved in the Leaking Undergi~ound

Storage Tank (“LUST”) Program. The proposal not only reflects the statutory changes

made to the LUST Program in 2002, but it also streamlines theLUST Program in a way

that allows for (1) quicker and easier submittals ofplans, budgets, reports, and

applications for payment by owners and operators, (2) quicker and easier reviews ofsuch

submittals by the Illinois EPA, and (3) fewer appeals to the Board.

The remainder ofthis document is divided into three sections. The first section

contains additional comments on the Illinois EPA’s proposal, including additional

explanation of, or information about, the proposal as requested by the Board and

interested parties. The second section contains a few additional changes to the Illinois

EPA’s proposal as a result ofthe last hearing. The Illinois EPA believes these changes

will further improve the LUST rules. Finally, the last section ofthis document contains a

few brief comments on the alternative proposal submitted at the last hearing by the

Professionals ofIllinois for the Protection ofthe Environment (“PIPE”).

While many issues and suggestions deserving of a comment orresponse have

been raised in this rulemaking, time does not permit the Illinois EPA to comment on, or

respond to, all ofthem in this document. Moreover, if all ofissues and suggestions were

addressed in detail, the usefulness ofthis document would be diminished by its length.

The absence ofa comment orresponse by the Illinois EPA should not be construed as

acquiescence in, or support for, changes to the LUST Program other than those proposed

by the Illinois EPA.

THE PROPOSED AMENDMENTS

The 92’~General Assembly’s Multiple Amendments to Title XVI.

At the last hearing, PIPE stated that the Public Acts amending Title XVI in 2002

were conflicting, and that the Public Acts signed into law later in the year amended the

Public Acts that were signed into law earlier in the year. Tr. of August 9, 2004, hearing

at 144. A review ofthe Public Acts and the law on statutory construction reveals that the

Public Acts are not inconsistent with each other, and that they must be interpreted in a

manner that gives each its full effect.

In 2002 the 92’~General Assembly amended Title XVI by the following four

Public Acts:

Public Act 92-0574, which implemented recommendations from

the Illinois Regulatory Review Commission by amending several

Titles ofthe Act. Title XVI was amended by changing “the

effective date ofthis amendatory Act of 1993” to “September 13,

1993” in Sections 57.7(c)(4)(D), 57.13(a), and 57.13(b), and by

deleting the handling charges provision of Section 57.8(f).

Public Act 92-0651, the First General Revisory Act of2002, which

changed a reference to the Underground Storage Tank Fund from

“Leaking Underground Storage Tank Fund” to “Underground

Storage Tank Fund” in Section

57.7(c)(4)(B).

Public Act 92-0735, which amended Titles XVI and XVII by

adding provisions that allow Licensed Professional Geologists to

perform certain work and provide certain certifications previously

limited to Licensed Professional Engineers. In Title XVI,

Licensed Professional Geologists were given the ability t~perform

the same work and provide the same certifications as Licensed

Professional Engineers, other than the certification ofcorrective

action completion reports.

•

Public Act 92-0554, which amended Title XVI by deleting

provisions requiring physical soil classification, site classification,

and classification-based remediation and replacing them with

provisions requiring only site inYestigation and corrective action.

The numerous Licensed Professional Engineer supervision and

certification requirements that were spread throughout the physical

soil classification, site classification, and classification-based

remediation provisions were replaced with a single, general

supervision and certification requirement in Section

57.7(f).

•

addition, the aggregate payment caps set forth in Section

57.8(d)

were increased by one million dollars each and the individual

occurrence payment caps set forth in Section 57.8(g) were

increased by $500,000 each.

The above Public Acts were passed by the legislature and signed into law at

various times. Because they were all passed during the same legislative session,

however, the general rule of interpreting their changes chronologically based upon the

date they became law does not apply. Section 6 ofthe Statute on Statutes 5 ILCS 70/6,

entitled “Multiple amendments of same subject matter

—

Conflicts,” states the following:

Two or more Acts which relate to same subject matter and which are enacted by

the same General Assembly shall be construed together in such manner as to give

full effect to each Act except in case of an irreconcilable conflict.

***

An irreconcilable conflict between 2 ormore Acts which amend the same section

ofan Act exists only if the amendatory Acts make inconsistent changes in the

section as it theretofore existed.

The rules of construction provided for in this section are applicable to Acts

enacted by the same General Assembly throughOut the 2 year period ofits

existence.

When reviewing multiple bills passed in the same legislative sessiorr that pertain

to the same subject matter or amend the same statute, courts hold that the primary

question is the legislature’s intent rather than the technical priority of the passage ofthe

acts. People v. Chicago and North Western Railway Co., 20 Ill.2d 462, 467, 170 N.E.2d

614, 617 (Ill. 1960) (same subject matter); People v. Southern Railway Co., 17 Ill.2d

550,.

554-55,

162 N.E.2d 417, 420 (Ill.

1959)

(same subject matter or same statute). In

determining the legislature’s intent, the whole legislative record is open to examination.

Southern Railway, 612 N.E. 2d at 420. Once the legislature’s intent is ascertained, it will

be given effect irrespective ofthe bills’ priority of enactments. j~ Ifthe two enactments

can be construed so that both may stand, the court must so construe them. Chicago and

North Western Railway, 170 N.E.2d at 617; Southern Railway, 612 N.E. 2d at 420. A

later enactment will not, by implication, repeal an earlier one unless there is such total

and manifest repugnance that the two cannot stand together. Southern Railway, 612 N.E.

2d at420.

In the current situation, the Public Acts listed above do not make inconsistent

changes to Title XVI as it existed at the start ofthe

92nd

General Assembly. The changes

made by Public Acts 92-0574 and

92-0651

clearly do not create irreconcilable conflicts,

and therefore will not be addressed further. The changes made by Public Acts

92-0554

and 92-0735 also do not create irreconcilable conflicts. The legislative record, which is

open to examination in determining the legislature’s intent, reveals that Public Acts 92-

0554 and 92-0735 were passed to make separate and distinct changes to the LUST

Program. According to discussions in both chambers ofthe General Assembly, Public

Act 92-0554 (House Bill 4471) was intended to streamline the cleanup proc&ss for LUST

sites by replacing the site classification system with site investigation and remediation,

and to increase payments from the Underground Storage Tank Fund. Tr. of92’~General

Assembly House ofRepresentatives, Regular Session,

109th

Legislative Day at 105

(March 21, 2002) (statements ofRep. Hassert); Tr.

0f92nd

General Assembly Senate,

Regular Session,

88th

Legislative Day at 16-17 (April 18, 2002) (statements of Sen.

Jacobs). In contrast, Public Act 92-0735 (Senate Bill 1968) was passed to bring Titles

XVI and XVII up to date with the Professional Geologist Licensing Act by allowing

Licensed Professional Geologists to perform certain work and provide certain

certifications. Tr. of92~1General Assembly Senate, Regular Session, 82’~Legislative

Day at 68-69 (April 4, 2002) (statements ofSen. Welch). “When the original Titles XVI

and XVII were passed allowing engineers to do the site investigations, geologists

weren’t licensed. Since that time, they’ve been licensed, and this bill will bring the

—

site

investigation statute up to date.” Id. Copies ofthe legislative transcript pages cited

above are provided in Attachments A, B, and C ofthis document.

As noted in the legislative record, Public Acts

92-0554

and 92-0735 were passed

to amend Title XVI for distinctly different reasons. There is not such total and manifest

repugnance between the two Public Acts that they cannot stand together.. Because the

two Public Acts make changes to Title XVI that do not irreconcilably conflict, they must

be construed together in a manner that gives each its full effect. Specifically, the site

classification system was replaced with the site investigation arid remediation

requirements ofPublic Act 92-0554, and Licensed Professional Geologists were added to

the Licensed Professional Engineer supervision and certification requirements as

provided in Public Act 92-073

After the Public Acts were signed into law, the Illinois EPA carefully researched

and studied how the amendments to Title XVI must be interpreted and applied. The

Illinois EPA has been very careful to ensure that both its proposal and its implementation

ofTitle XVI are~consistent with the changes made by the Public Acts and the

legislature’s intent.

The Proposed Maximum Payment Amounts.

As explained in the hearings, the Illinois EPA believes the maximum amounts set

forth in its proposal are reasonable for the work being performed, unless a higher amount

is justified through bidding or because ofunusual or extraordinary circumstances.

Several questions were raised about the Illinois EPA’s development ofthe proposed

maximum amounts. Many ofthese questions concerned the use ofhistorical information

and whether the amounts developed from such information reflect current market prices.

Although the Illinois EPA used historical information in its development ofsome ofthe

maximum amounts, the amounts set forth in the proposal are generally consistent with the

amounts owners and operators request for reimbursement and the amounts the Illinois

EPA approves for payment from the Underground Storage Tank Fund (“UST Fund”).

See, e.g., Exhibit 4 at.3; Exhibit 10 at 2; Exhibit 12 at 6. The Illinois EPA belie’ves the

maximum amounts set forth in its proposal are not out ofdate and do not need to be

increased by any inflationary rate to make them consistent with current market prices.

The amounts proposed are already consistent with the current market.

While there has been much discussion about the development ofthe proposed

maximum amounts, very little has been said about the amounts themselves. Some

evidence has been presented to show that the maximum amounts should be ~omething

other than what the Illinois EPA proposes. So far, however, neither alternative amounts

(other than personnel and lab rates listed in the appendices) nor adequatejustification for

alternative amounts have been submitted to the Board. While the Illinois EPA has

remained open to discussing alternative amounts with interested parties as long as the

amounts can be justified, it too has not been provided with alternative amounts (other

than personnel and lab rates listed in the appendices) or adequate justification for

alternative amounts.

Although the proposed rules set forth maximum amounts that will be paid for

certain tasks, owners and operators are not constrained by these amounts. These

“default” maximum amounts can be exceeded through bidding or through site-specific

approval when unusual or extraordinary circumstances are encountered. The addition of

bidding, which the Board suggested as an option, is one ofthe most significant changes

to the Illinois EPA’s proposal. Bidding adds incredible flexibility to the rules by

allowing owners and operators to tailor maximum reimbursement amounts to the specific

circumstances of theirown site. They can exceed any or all ofthe “default” maximum

amounts set forth in the rules as long as theyjustify higher amounts with at least three

bids.

Allowing owners and operators to determine reasonable payment amounts

through bidding will allow reimbursements from the UST Fund to be responsive to site

specific-conditions and to accurately reflect current market prices. It will also help the

Illinois EPA monitor market prices and determine when the “default” maximum amounts

in the rules no longer reflect the current market.

Taken as a whole, Subpart H provides a flexible and immediately ithplementable

method for determining whether amounts requested by owners and operators are

reasonable, and therefore can be reimbursed from the UST I~und.The testimony

provided by BP Products North America, Inc., at the June 22, 2004, hearing notes the

need for flexibility and cites the Tiered Approach to Corrective Action Objectives

(“TACO”) rules of35 Ill. Adm. Code 742, as a model offlexibility for both the regulated

community and the Illinois EPA. ~ Exhibit 72. The TACO rules provide three

different methods, or Tiers, for developing remediation objectives. Subpart H provides a

similar amount of flexibility by providing three different methods for determining

whether amounts requested for reimbursement are reasonable. The “default” maximum

amounts set forth in Subpart H are similar to the Tier 1 remediation objectives in TACO.

Both owners and operators and the Illinois EPA only need to compare corrective action

costs to the maximum amounts in Subpart H to determine whether the costs are

reasonable. Similar to Tier 2 ofTACO, the bidding provisions ofSubpart H allow

owners and operators to exceed the “default” maximum amounts and tailor the amounts

considered reasonable for reimbursement purposes to site-specific circumstances.

Finally, the unusual and extraordinary circumstances provision gives owners and

operators a third way to determine maximum payment amounts if the first two are

insufficient. These three alternatives will ensure that, in accordance with Title XVI,

owners and operators will receive reimbursement from the UST Fund for reasonable

costs ofcorrective action.

Reimbursementto Tier 2 Remediation Objectives On-site and Required

Use of Available Groundwater Ordinances.

In its Third Errata Sheet the Illinois EPA proposes to limit reimbursement to the

achievement ofTier 2 remediation objectives, and to make groundwater remediation

ineligible if a groundwater ordinance already approved by the Illinois EPA can be used as

an institutional control. There appeared to be some confusion and concern about these

provisions at the last hearing. Since the last hearing the Illinois EPA has continued to

discuss these provisions with interested parties to help clear up the confusion and address

the parties’ individual concerns.

Limiting the reimbursement ofon-site corrective action to the

achievement ofTier 2 remediation objectives.

The Illinois EPA proposes to limit the reimbursement of on-site activities to the

achievement ofTier 2 remediation objectives to help ensure that the UST Fund’s

resources are used in the most cost-effective manner. Limiting reimbursement to Tier2

objectives will not result in less protective cleanups. Rather, the use ofTier 2 objectives

will ensure that UST Fund resources are not used for cleanups that are more stringent

than necessary to protect human health, and therefore more expensive.

From a human health perspective, remediation to Tier 2 remediation objectives is

as equally protective as remediation to Tier 1 (and Tier 3) objectives. The only

difference is that Tier 2 objectives are developed from site-specific information, and

therefore tailored to site-specific circumstances. The Tier 1 objectives are ‘default”

objectives that were developed using conservative assumptions so that they would be

acceptable to use at any site. As a result, the achievement ofTier 1 objectives often

means that an owner or operator has performed more cleanup than is necessary to

adequately protect human health.

From a cost perspective, remediation to Tier 2 objectives is generally less

expensive than remediation to Tier 1 objectives. The lower cost is the reason responsible

parties in the Site Remediation Program, where the State does not reimburse corrective

action costs, overwhelmingly use Tier 2 instead of Tier 1 objectives. The LUST Program

in Illinois is designed to ensure that sites are cleaned up in accordance with TACO to

levels that protect human health, and to ensure that owners and operators are reimbursed

for the reasonable costs of such cleanups. It is not designed to cover the costs of

additional remediation, such as remediation needed to make a site more marketable or to

increase a site’s property value. Limiting reimbursement to the achievement ofTier 2

remediation objectives on-site will help ensure that the UST Fund’s limited resources are

not used to pay for more remediation than is necessary to protect human health.

The limitation ofon-site reimbursement to the achievement ofTier 2 remediation

objectives has somehow become associated with a required use ofinstitutional controls.

and engineered barriers. Although institutional controls and engineered barriers can be

used to develop Tier 2 remediation objectives, the Illinois EPA is not proposing to

require their use.1 An owner or operator can develop Tier 2 objectives and cleanup to

those objectives without the use of any institutional controls or engineered barriers.

Requiring the use ofavailable groundwater ordinances as~an

institutional control.

The Illinois EPA’s proposal to use a groundwater ordinance when one is available

is the one instance where the use ofan institutional control would be required. The

Illinois EPA is proposing this amendment as a means of ensuring that the UST Fund’s

limited resources are not used to cleanup groundwater that cannot be used as a source of

potable water due to local groundwater use restrictions. Under this proposal, an owner or

operator would not be required to seek the passage ofa local groundwater ordinance or

Illinois EPA approval ofsuch an ordinance. The use ofa local groundwater ordinance

would be required only if such an ordinance has already been passed by the local

government and approved by the Illinois EPA for use as an institutional control (e.g., an

ordinance that covers an entire city was previously approved foruse as an institutional

control at another site).

Appeals ofUnreasonable Costs.

At the last hearing, Doug Clay provided several examples ofunreasonable costs

that have been submitted to the Illinois EPA; See Tr. ofAugust 9, 2004, hearing at 27-

32. Mr. Clay was later asked to investigate whether any ofthe Illinois EPA’s decisions

regarding those costs have been appealed to the Board. j~at 112-113. The Illinois EPA

‘As discussed in the next paragraph, the Illinois EPA is proposing a separate amendment that requires the

use of a groundwater ordinance as an institutional control under certain circumstances. Any required use of

a groundwater ordinance under that amendment is independent of, unrelated to, this amendment.

subsequently reviewed the examples provided by Mr. Clay at the hearing. None ofthe

Illinois EPA’s decisions regarding the examples have been appealed to the Board.

Changes in Risk Factors.

At the last hearing, Harry Walton with the Illinois Environmental Regulatory

Group questioned the Illinois EPA about the risk posed by cleanups to Tier 2 remediation

objectives versus cleanups to Tier 1 remediation objectives. In one question Mr. Walton

asked the Illinois EPA to evaluate the change in risk for the inhalation pathway with

respect to the f0~or

, fraction oforganic carbon. Tr. ofAugust 9, 2004, hearing at 63. The

Illinois EPA has evaluated the change in the fraction of organic carbon and deterniined

that a site-specific f0~value will increase the contaminant concentration that is allowed in

the soil. The risk for the inhalation pathway, however, would not increase hecause the

contaminant concentration cannot exceed the soil saturation concentration, or CSAT.

II.

ADDITIONAL CHANGES TO THE ILLINOIS EPA’S PROPOSAL

The Illinois EPA proposes the following additional changes to its proposal:

In response to comments regarding the use of “may” in the second

sentence ofeach ofthe following Sections, the Illinois EPA proposes to change “may” to

“shall” so that the Sections read as follows.

Section 732.202(h)(1):

At a minimum, for each UST that is removed, the owner Or

operator shall collect and analyze soil samples as follows. The

Agency shall allow an alternate location for, or excuse the

collection of, one or more samples if sample collection in the

following locations is made impracticable by site-specific

circumstances.

Section 732.202(h)(2):

At a minimum, for each UST that remains in place, the owner or

operator shall collect and analyze soil samples as follows. The

Agency shall allow an alternate location for, or excuse the drilling

of, one ormore borings if drilling in the following locations is

made impracticable by site-specific circumstances.

Section 734~~210(h)(l):

At a minimum, for each UST that is removed, the owner or

operator shall collect and analyze soil samples as follows. The

Agency shall allow an alternate location for, or excuse the

collection of, one or more samples if sample collection in the

following locations is made impracticable by site-specific

circumstances.

Section 734.21 0(h)(2):

At a minimum, for each UST that remains in place, the owner or

operator shall collect and analyze soil samples as follows. The

Agency shall allow an alternate location for, or excuse the drilling

of, one or more borings if drilling in the following locations is

made impracticable by site-specific circumstances.

In conjunction with the proposed amendments to Sections 732.606(kk)

and 734.630(gg), and the proposed additions ofSections 732.606(ggg) and 734.630(ddd),

set forth below, the Illinois EPA proposes to amend the Board Note in Sections 732.408

and 734.410 to the following:

Section 732.408

Remediation Objectives

For sites requiring High Priority corrective action or for which the owner or

operator has elected to conduct corrective action pursuant to Section 732.300(b),

732.400(b) or 732.400(c) ofthis Part; the owner or operator shall propose

remediation objectives for applicable indicator contaminants in accordance with

35 Ill. Adm. Code 742. Owners and operators seeking payment from the Fund

that perform on-site corrective action in accordance with Tier 2 remediation

objectives of35 III. Adm. Code 742 shall determine the following parameters on a

site-specific basis:

Hydraulic conductivity

(K)

Soil bulk density

(Pb)

Soil particle density(p~)

Moisture content (w)

Organic carbon content (f~)

Board Note: Failure to use site-specific remediation objectives on-site and to

utilize available groundwater ordinances as institutional controls may result in

certain corrective-action costs being ineligible for payment from the Fund. See

Sections 732.606(ggg) and (hhh) ofthis Part.

Section 734.410

Remediation Objectives

The owner or operator shall propose remediation objectives for applicable

indicator contaminants in accordance with 35 Ill. Adm. Code 742. Owners and

operators seeking payment from the Fund that perform on-site corrective action in

accordance with Tier 2 remediation objectives of35 Ill. Adm. Code 742 shall

determine the following parameters on a site-specific basis:

Hydraulic conductivity (K)

Soil bulk density

(Pb)

Soil particle density

(Ps)

Moisture content (w)

Organic carbon content (foc)

Board Note: Failure to use site-specific remediation objectives on-site and to

utilize available groundwater ordinances as institutional controls may result in

certain corrective action costs being ineligible for payment from the Fund. See

Sections 734.630(ddd) and (eee) of this Part.

In conjunction with the addition ofSections 732.606(ggg) and

734.630(ddd) set forth below, the Illinois EPA proposes to amend Sections 732.606(kk)

and 734.630(gg) to the following to allow owners and operators to seek reimbursement of

costs associated with the achievement of Tier 1 remediation objectives on-site if a court

oflaw voids or invalidates a No Further Remediation Letter and orders such remediation:

Section 732.606(kk):

kk)

Costs incurred for additional remediation after receipt ofa No

Further Remediation Letter forthe occurrence for which the No

Further Remediation Letter was received. This subsection (kk)

does not applyto the following:

Costs, except costs incurred for MTBE remediation

pursuant to Section 732.3 lO(i)(2) of this Part;

Monitoring well abandonment costs;

County recorder or registrar oftitles fees for recording the

No Further Remediation Letter

Costs associated with seekingpayment from the Fund; and

Costs associated with remediation to Tier 1 remediation

objectives on-site if a court of law voids or invalidates a No

Further Remediation Letter and orders the owner or

operator to achieve Tier 1 remediation objectives in

response to the release.

Section 734.630(gg):

gg)

Costs incurred after receipt of a No Further Remediation Letter for

the occurrence for which the No Further Remediation Letter was

received. This subsection (gg) does not apply to the f~llowing:

Costs incurred for MTBE remediation pursuant to Section

734.405(i)(2) ofthis Part;

Monitoring well abandonment costs;

County recorder or registrar oftitles fees for recording the

No Further Remediation Letter;

Costs associated with seeking payment from the Fund; and

Costs associated with remediation to Tier 1 remediation

objectives on-site if a court oflaw voids or invalidates a No

Further Remediation Letter and orders the owner or

operator to achieve Tier 1 remediation objectives in

response to the release.

The Illinois EPA proposes to add the following Sections 732.606(ggg) and

734.630(ddd) to limit the reimbursement ofon-site corrective action activities to the

achievement ofTier 2 remediation objectives. Exceptions are provided for sites where

Karst geology prevents the development of Tier 2 remediation objectives, and where a

court oflaw voids or invalidates a No Further Remediation Letter and orders the owner

or operator to achieve Tier 1 remediation objectives on-site.

Section 732.606(ggg):

~ggg) Costs associated with on-site corrective action to achieve

remediation objectives that are more stringent than the Tier 2

remediation objectives developed in accordance with 351ll. Adm.

Code 742. This subsection (ggg) does not apply if Karst geology

prevents the development ofTier 2 remediation objectives for on-

site remediation, or if a court oflaw voids or invalidates a No

Further Remediation Letter and orders the owner or operatorto

achieve Tier 1 remediation objectives on-site in response to the

release.

Section 734.630(ddd):

(ddd) Costs associated with on-site corrective action to achieve

remediation objectives that are more stringent than the Tier 2

remediation objectives developed in accordance with 35 Ill. Adm.

Code 742. This subsection (ddd) does not apply if Karst geology

prevents the development ofTier 2 remediation objectives for on-

site remediation, or if a court of law voids or invalidates a No

Further Remediation Letter and orders the owner or operator to

achieve Tier 1 remediation objectives on-site in response to the

release.

The Illinois EPA proposes to amend Sections 732.800 and 734.800 to the.

following to provide a better “roadmap” for Subpart H.

Section 732.800

Applicability

This Subpart H provides three methods for determining the

maximum amounts that can be paid from the Fund for eligible

corrective action costs. All costs associated with conducting

corrective action are grouped into the tasks set forth in Sections

732.8 10 through 732.850 ofthis Part. The first method for

determining the maximum amount. that can be paid for each task is

to use the maximum amounts for eachtask set forth in those

Sections. In some cases the maximum amounts are specific dollar

amounts, and in other cases the maximum amounts are determined

on a site-specific basis.

As an alternative to using the amounts set forth in Sections

732.810 through 732.850 ofthis Part, the second method for

determiningthe maximum amounts that can be paid for one or

more tasks is bidding in accordance with Section 732.855 of this

Part. As stated in that Section, when bidding is used, if the lowest

bid for a particular task is less than the amount set forth in Sections

732.8 10 through 732.850, the amount in Sections 732.8 10 through

732.850 ofthis Part may be used instead ofthe lowest bid. Finally,

the third method for determining maximum amounts thaf can be

paid from the Fund applies to unusual or extraordinary

circumstances. The maximum amounts for such circumstances can

be determined in accordance with Section 732.860 ofthis Part.

The costs listed under each task set forth in Sections 732.8 10

through 732.850 of this Part identify only some ofthe costs

associated with each task. They are not intended as an exclusive

list ofall costs associated with each task for the purposes of

payment from the Fund.

This Subpart H sets forth only the methods that can be used to

determine the maximum amounts that can be paid from the Fund

for eligible corrective action costs. Whether a particular cost is

eligible forpayment shall be determined in accordance with

Subpart F ofthis Part.

Section 734.800

Applicability

This Subpart H provides three methods for determining the

maximum amounts that can be paid from the Fund for eligible

corrective action costs. All costs associated with conducting

corrective action are grouped into the tasks set forth in Sections

734.8 10 through 734.850 ofthis Part The first method for

determiningthe maximum amount that can be paid for each task is

to use the maximum amounts for each task set forth in those

Sections. In some cases the maximum amounts are specific dollar

amounts, and in other cases the maximum amounts are determined

on a site-specific basis.

As an alternative to using the amounts set forth in Sections

734.8 10 through 734.850 ofthis Part, the second method for

determining the maximum amounts that can be paid for one or

more tasks is bidding in accordance with Section 734.855 ofthis

Part. As stated in that Section, when bidding is used, if the lowest

bid for a particular task is less than the amount set forth in Sections

734.8 10 through 734.850, the amount in Sections 734.8 10 through

734.850 ofthis Part may be used instead ofthe lowest bid. Finally,

the third method for determining maximum amounts that can be

paid from the Fund applies to unusual or extraordinary

circumstances. The maximum amounts for such circumstances can

be determined in accordance with Section 734.860 of this Part.

The costs listed under each task set forth in Sections 734.8 10

through 734.850 of this Part identify only some ofthe costs

associated with each task. They are not inteflded as an exclusive

list ofall costs associated with each task forthe purposes of

payment from the Fund.

This Subpart H sets forth only the methods that can be used to

determine the maximum amounts that can be paid from the Fund

for eligible corrective action costs. Whether a particular cost is

eligible for payment shall be determined in accordance with

Subpart F ofthis Part.

In response to comments about a time-frame for submitting the results of

the Illinois EPA’s triennial reviews ofthe “default” maximum payment amounts to the

Board, the Illinois EPA proposes to amend Sections 732.875 and 734.875 to the

following:

Section 732.875

Agency Review of Maximum Payment Amounts

No less than every three years the Agency shall review the amounts set forth in

this Subpart H and submit a report to the Board on whether the amounts are

consistent with the prevailing market rates. The report shall identify amounts that

are not consistent with the prevailing market rates and suggest changes needed to

make the amounts consistent with the prevailing market rates.

Section 734.875

Agency Review ofMaximum Payment Amounts

No less than every three years the Agency shall review the amounts set forth in

this Subpart H and submit a report to the Board on whether the amounts are

consistent with the prevailing market rates. The report shall identify amounts that

are not consistent with the prevailing market rates and suggest changes needed to

make the amounts consistent with the prevailing market rates

III.

COMMENTS ON PIPE’S ALTERNATIVE PROPOSAL

As stated above, the Illinois EPA has made significant changes to its proposal in

response to the concerns and suggestions raised in the hearings, including those raised by

PIPE. Since the last hearing, the Illinois EPA and PIPE met to discuss PIPE’s remaining

issues in an effort to see if any areas ofdisagreement could be narrowed further. The

meeting ended with the confirmation that each party continues to hold the same positions

that were expressed in the last hearing. Discussion was hampered to a certain extent

because ofthe incompleteness ofPIPE’s alternative proposal. However, the Illinois EPA

agreed to further discussions with PIPE ifPIPE could provide the dollar figures left out

ofits proposal, or sufficient justification for alternative amounts in the Illinois EPA’s

proposal.

At the last hearing Doug Clay and Gary King provided comments on many ofthe

issues that have been raised by PIPE. ~ Tr. ofAugust 9, 2004, hearing at 19-27, 32-38,

and

55~60;

Exhibit 88 at 3-19. For brevity, most of those comments will notbe repeated

here. However, the Illinois EPA respectfully requests that the Board review those

comments along with the following additional comments on PIPE’s alternative proposal:

UST Remediation Applicant

PIPE’s alternative proposal borrows the term “Remediatioñ Applicant” from Title

XVII and adds such persons to the LUST rules.

Exhibit 90 at 9. The Illinois EPA

believes this addition is inappropriate. As explained by Gary King in the last hearing, the

term “remediation applicant” is used in Title XVII so that anyone with potential liability

for contamination can enter the Site Remediation Program. Tr. ofAugust 9, 2004,

hearing at 57-60. Under the federal UST regulations and Title XVI ofthe Act, only UST

owners and operators are liable forUST releases and eligible for reimbursement from the

UST Fund. The LUST rules should continue to stay narrowly focused on UST owners

and operators in order to maintain consistency with federal and State law. Furthermore,

anyone desiring to assume responsibility for a particular UST, and access the UST Fund

for corrective action costs associated with a release from the UST, can already do so by

becoming an owner or operator ofthe UST.

Free product removal

PIPE’s alternative proposal requires the removal offree product “as required to

address the health and safety ofthe site.” Exhibit 90 at 13. This standard is inconsistent

with the federal rules, which requires that free product be removed “to the maximum

extent practicable.” 40 C.F.R.

280.64 (2004). As Doug Clay stated at the last hearing,

inconsistency with the federal rules would jeopardizeUSEPA’s authorization ofthe

Illinois LUST Program. Tr. ofAugust 9, 2004, hearing at 42. The LUST rules should

continue to require free product removal to the maximum extent practicable~so that they

remain consistent with federal law. The Illinois EPA’s proposal, as amended by the

errata sheets, requires such removal. See proposed amendments to Section 732.203 and

proposed Section 734.215.2

Reviews ofplans, budgets, reports, and applications for payment.

45-Dayreviews

The shortened review times in PIPE’s alternative proposal are inconsistent with

the statutorily prescribed review times for documents submitted under Title XVI. Title

XVI sets a review time of 120 days. 415 ILCS 5/57.7(c)(4) and 57.8(a)(1) (as amended

by P.A. 92-0554).~Under PIPE’s proposal, however, the Illinois EPA must review

The one-eighth of an inch measurement proposed by the Illinois EPA in Sections 732.203 and

734.215

not intended to defme when free product removal is practicable, but rather the amount of free phase

hydrocarbons that must be present in order for the free product removal requirements ofSections 732.203

and 734.2 15 to apply.

~The 120-day timeframes were not altered by any of the Public Acts amending Title XVI in 2002.

applications for payment within 45 days aftertheir receipt. Exhibit 90 at 18 (proposed

Section 734.5 05(c)). In addition, if the Illinois EPA intends to reject or require the

modification of a plan, budget, or report, it most notify the owner or operator ofits

intention within 45 days after receipt ofthe document. Exhibit 90 at 18 (proposed

Section

734.505(d))..

In order for the Illinois EPA to determine whether it intends to

reject or require the modification of a plan, budget, or report it must review the plan,

budget, or report. This, in effect, reduces the Illinois EPA’s review time to 45 days.

Such a short timeframe will be extremely difficult for the Illinois EPA to meet for all of

its reviews. Compare PIPE’s proposed alternative 45-day review time with the LUST

Section’s current review times provided by Doug Clay. See Exhibit 88 at 6. The LUST

rules should continue to provide 120-day review times so that they remain consistent with

Title XVI.

Draft review letters

Along with the shortened review times, the written notification that PIPE’s

alternative proposal requires the Illinois EPA to provide when the illinois EPA intends to

modify or reject a plan, budget, or report is inconsistent with Title XVI. The Illinois EPA

is not required to provide the owner or operator with such a “draft” decision letter. Title

XVI only requires the Illinois EPA to issue a final decision within 120 days. Otherwise,

the submittal is denied by operation oflaw. 415 ILCS 5/57.7(c)(4) (as amended by 92-

0554).

The idea of“draft” review letters in the LUST Program is borrowed from the

Illinois EPA’s permit program, where draft permits are sometimes issued prior to the

final grant ofa permit. Although Illinois EPA decisions in the LUST Program can be

appealed to the Board in the same manner as provided for permit decisions, broad

analogies between decisions in the LUST Program and decisions in the permit program

are inappropriate. There are significant distinctions between the two programs. For

example, the workload ofthe Illinois EPA’s LUST Section is much greater than the

workload ofthe Illinois EPA’s Land Permit Section. The LUST Section has an

exponentially higher number of sites to deal with than the Permit Section. The number of

plans, budgets, reports, and applications forpayment reviewed in the LUST Section far

exceeds the number ofpermit applications reviewed in the Permit Section. And, only a

few permits are typically sought for a permitted facility over an extended period oftime,

while in the LUST Program there are manyplans, budgets, reports, and applications for

payment submitted for a single site in a relatively short period oftime. Extensions of

time are routinely granted for permit reviews, and the permit review clock re-starts with

each submission ofnew or additional information. In the LUST Program, however, the

clock never stops or re-starts. All LUST submittals must be reviewed within 120 days

after their receipt. Finally, there are mandatory and time-critical-aspects ofthe LUST

Program that do not exist in the permit program. Permit applicants seek permits

voluntarily. The length time an applicant takes to complete the permitting process is not

critical because if the permit is never issued and the permitted facility is never

constructed or operated, no potential threat to human health and the environment will

arise. In contrast, the LUST Program is designed to respond to existing threats to human

health and the environment. Owners and operators in the LUST program are required to

take corrective action to remediate these threats. The Illinois EPA and the people ofthe

State ofIllinois have a strong interest in seeing that this remediation is undertaken and

completed as quickly as possible. The issuance of “draft” review letters would only

create additional work forthe Illinois EPA and delay its review and approval ofplans,

budgets, and reports. The ultimate result would be a delay in the cleanup of

contaminated sites. Because ofthe above noted differences and others that exist between

the LUST Program and the permit program, the required issuance of“draft” review

letters should not be added to the LUST Program.

PIPE suggests that the “Wells letters” used in the Illinois EPA’s permitting

process would be appropriate in the LUST Program. A review ofcaselaw shows that

“Wells letters” are inapplicable to the decisions made in the LUST Program. What

became known as the “Wells letter” emanated from Wells Manufacturing Co. v. IEPA,

195 Ill.App.3d 593, 552 N.E.2d 1074, 142 Ill. Dec. 333 (1st Dist. 1990). In that case the

Agency had received numerous complaints about the operation ofthe permitted facility

and denied the renewal ofits operating permit based upon alleged violations ofthe Act.

Id., 552 N.E.2d at 1076, 142 Ill. Dec. at 335. The only information Wells had submitted

to the Illinois EPA to renew its permit was a required two-page form in which it certified

that there had been no changes to its equipment. Id.,

552

N.E.2d at 1075, 142 Ill. Dec. at

334. The court found that the Illinois EPA had not given Wells an opportunity to present

evidence that it was not a polluter prior to denying its application. Id., 552 N.E.2d at

1076, 142 Ill. Dec. at 335. “In effect, it denied Wells the right to operate its busiriess

because it may be violating the Act, but never gave it an opportunity to submit

information which would disprove the allegation.” Id.,

552

N.E.2d at 1077, 142 Ill. Dec.

at 336. A denial or modification ofa plan, budget, orreport in the LUST Program is not

the same as the denial of a permit, which in the Wells case resulted in a denial ofthe right

to operate a business. The denial or modification ofplan only means that the owner or

operator must change the method by which he or she proposes to investigate or cleanup a

release. The denial or modification ofa budget only means that the Agency has not

approved proposed costs-that have not yet been incurred. And, the denial or modification

ofa report merely means that additional work is needed to meet the requirements ofthe

Board’s rules and Title XVI. Decisions in the LUST Program do not deny owners and

operators the right to operate a business.

The Wells case has come to stand forthe proposition that “it is improper for the

Agency to deny a permit based upon potential violation of the Act without providing the

applicant an opportunity to submit information which would disprove the potential

violation.” ESG Watts, Inc. v. IEPA, PCB 94-243, 94-306, 94-307, 94-308 94-309, 95-

133, and 95-134 (consolidated) (March 21, 1996) at 8. This does not equate to a

requirement that the Illinois EPA must issue a “Wells letter” prior to every final decision.

For example, in Community Landfill Co. and City ofMorris v. IEPA, PCB 01-170

(December 6, 2001), Community Landfill Co. (“CLC”) argued that the Illinois EPA was

required to issue a “Wells letter” to inform CLC that its surety was no longer on the list

ofapproved surety companies. j~at 12. The Board rejected CLC’s argument,

explaining that:

essentially, a “Wells letter” provides a permit applicant with the opportunity to

respond when the Agency seeks information beyond the contents ofthe permit

application. In this case, there is no question that CLC understood the financial

assurance requirements ofSection 8 11.712(b) in that CLC needed to provide

proofoffinancial assurance.

. . .

In this instance, the financial information

submitted by CLC was the basis forthe denial; the Agency did not rely on

information outside ofthe application when it denied the permit on the basis of

the surety company being removed from the 570 list.

Id. This analysis is directly applicable to the Illinois EPA’s decisions in the LUST

Program. Decisions in the LUST Program are based upon information submitted by the

owner or operator. The Illinois EPA reviews that information and determines whether it

satisfies the requirements ofthe Act and the Board’s rules. Ifit does, the submittal is

approved. Ifit does not, the submittal is denied or modifications are required. Because

the Illinois EPA does not rely upon outside information when reviewing LUST Program

submittals, there is no outside information that the owner or op.erator needs an

opportunity to rebut, and therefore no need for a “Wells letter.”

Shifting the burden ofproof

PIPE’s alternative proposal also provides a burden ofproofthat is inconsistent

with current law. Title XVI provides that owners and operators may appeal lllinois EPA

decisions to the Board in accordance with the same procedures provided for permit

appeals under Section 40 ofthe Act. 415 ILCS 5/57.7(c)(4) and 57.8(i) (as amended by

P.A. 92-0554).~As reflected in the Board’s procedural rules, Section 40 ofthe Act

places the burden ofproofupon the petitioner. 415 ILCS 5/40; 35 Ill. Adm. Code

105.112. In the LUST Program the burden ofproofis on the petitioning owner or

operator. See, e.g., Ted Harrison v. IEPA, PCB 99-127 (July 24, 2003); Platolene 500,

Inc. v. IEPA, PCB 92-9 (May 7, 1992) 99-127 (July 24, 2003). PIPE’s alternative

proposal, however, shifts the burden ofproofto the Illinois EPA. See Exhibit 90 at 18

(proposed Section 734.505(b)). In order to maintain consistency with the Act and the

Board’s procedural rules, the LUST rules should not shift the burden ofproofon appeal.

to the Illinois EPA.

“Provisions regarding the appeal of Illinois EPA decisions under Title XVI were not altered by any ofthe

Public Acts passed in 2002.

Agency denial ofsubmittals after 120 days

PIPE’s alternative proposal allows the Illinois EPA, at the end ofthe 120-day

review period, to deem that submittals should be rejected. Exhibit 90 at 19 (proposed

Section 734.505(f)). Ifthe Illinois EPA makes such a determination, it must then provide

a written notification to the owner or operator that includes the reasons for the rejection.

j~ This provision is inconsistent with Title XVI, which provides that submittals are

either rejected or approved by operation oflaw at the end ofthe 120-day review period,

depending upon the type ofsubmittal. 415 ILCS 5/57.7(c)(4) (as amended by P.A. 92-

0554) (technical submittals denied by operation oflaw) and 57.8(a)(1) (as amended by

P.A. 92-0554) (applications for payment approved by operation oflaw). Because

submittals are approved or denied by operation of law at the end ofthe 120:day review

period, the Illinois EPA has no authority to deem that a submittal should be rejected at

the end of the period and issue a denial letter. Because PIPE’s alternative proposal is

inconsistent with Title XVI, it should not be added to the Board’s LUST rules.

Illinois EPA project manager requirements

Finally, another change proposed by PIPE regarding Illinois EPA reviews

requires that Illinois EPA project managers who perform technical reviews must be either

a licensed professional engineer or a licensed professional geologist. Exhibit 90 at 21

(proposed Section 734.510(a)). As explained by Gary King at the last hearing, such a

requirement would make approximately 85 to 90 percent ofthe Illinois EPA’s current

project managers ineligible to review technical submissions. Tr. ofAugust 9, 2004,

hearing at 213. Allowing only 10 to 15 percent ofthe Illinois EPA’s project managers to

review technical submissions would cripple the LUST Program. Each week, on average,

the LUST Section receives a stack ofplans and reports more than seven feet in height.

Tr. ofAugust 9, 2004, hearing at 20. Slightly more than half of these documents are

reviewed within 60 days after their submission, and almost three-quarters are reviewed

within 90 days. Tr. ofAugust 9,2004, hearing at 20-21; Exhibit 88 at 6. Allowing only

10 to 15 percent ofthe Illinois EPA’s project managers to review these documents would

ensure that the reviews could no longer be conducted in a timely manner. Such a

limitation would also likely result in many submissions being denied by operation oflaw

because the Illinois EPA would not be able to review them all within the 120-day

statutory deadline. Therefore, a requirement that Illinois EPA project managers who

perform technical reviews must be either a licensed professional engineer or a licensed

professional geologist should not be added to the LUST Program.

PIPE’s Alternative Subpart H

As stated above, the Illinois EPA has made substantial changes to its proposal in

response to the concerns and suggestions raised in the many hearings held in this

rulemaking. Some ofthe suggestions set forth in PIPE’s alternative proposal, including

PIPE’s Subpart H, have already been incorporated into the Illinois EPA’s proposal.

Those that have not been incorporated would, in the Illinois EPA’s opinion, make

changes to the LUST Program that are unnecessary or inappropriate. The Illinois EPA is

opposed to PIPE’s alternative proposal to the extent that it is inconsistent with the Illinois

EPA’s proposal.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

/2~& ~

Kyle Rominger

Assistant Counsel

DATED:

___________

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

STATE OF ILLINOIS

92ND 

GENERAL

ASSEMBLY

HOUSE OF REPRESENTATIVES

TRANSCRIPTION DEBATE

109th Legislative Day               

March 21, 2002

signify by voting yes’; those opposed vote no’. The

voting is open. Have all voted who wish? Have all voted

who wish? Mr. Clerk, take the record. On this question,

there are 110 Members voting ‘yes’, 0 voting ‘no’, and 0

voting ‘present’. 

And

the House does adopt... does pas’s

House Bill 4438. 

And

this Bill, having received 

Constitutional Majority, is hereby declared passed. House

Bill 5842. Mr. Brady. Mr. Clerk, read the Bill.”

Clerk Bolin: “House Bill 5842, a Bill for an Act in relation to

insurance.   

Second Reading of this House Bill. No

Committee Amendments. No Floor Amendments. No Motions

filed.”

Speaker Hartke: “Third Reading. House Bill 4471. Representative

Hassert. Mr. Clerk, read the Bill.”

Clerk Bolin: “House Bill 4471, a Bill for an Act concerning

environmental protection. Third Reading of this House

Bill.

Speaker Hartke:

“Representative Hassert.”

Hassert:

“Thank you, Mr. Speaker, Members of the General

Assembly. This Bill simply amends the Underground Storage

Tank Act of the EPA. It streamlines the underlying process

that they’re under right now for cleanup and basically,

increases the payments that they can access to the fund

from the LUST Fund.  I’ll be happy to answer any

questions.”

Speaker Hartke: “Is there any discussion? The Chair recognizes

the Gentleman from Cook, Representative Lang.”

Lang: “Thank you. Inquiry of the Clerk, please.”

Speaker Hartke: “Mr. Clerk, your question.”

Lang: “I would like to know what Amendments have been adopted on

this Bill?”

Clerk Bolin: “Committee Amendments 1 and 2 have been adopted to

_____________________________________

105

Attachment A

STATE OF ILLINOIS

92ND GENERAL ASSEMBLY

HOUSE OF REPRESENTATIVES

TRANSCRIPTION DEBATE

109th Legislative Day               

March 21, 2002

the Bill.”

Lang: “Thank you, Mr. Clerk.”

Speaker Hartke: “Further discussion? Seeing no one is seeking

recognition, the question is, ‘Shall the House pass House

Bill 4471?’ All those in favor will signify by votin~

‘yes’; those opposed vote ‘no’. The voting is open. Have

all voted who wish? Have all voted who wish? Mr. Clerk,

take the record. On this issue, there are 110 Members

voting ‘yes’, 0 voting ‘no’, and 0 voting ‘present’. And

the House does pass House Bill 4471. This Bill, having

received a Constitutional Majority, is hereby declared

passed. The Chair recognizes Representative Mitchell. For

what reason do you seek recognition?”

Mitchell, B.: “Mr. Speaker let the records show on House Bill

4055 I was off the floor and I wish to register a ‘no’

vote. I would... Thank you.”

Speaker Hartke: ‘The Journal will reflect your wishes. House

Bill 3812. Representative Jones. John Jones. Mr. Jones,

would you like to call House Bill 3812? Representative.

Mr.- Clerk, read the Bill.”          

Clerk Bolin: “House Bill 3812, a Bill for an Act concerning

townships. Second Reading of this House 

Bill. Amendment

#1 was adopted in committee. No Floor Amendments. No

Motions filed.”

Speaker Hartke: “Third Reading. House Bill 4364. Representative

Giles. Mr. Clerk, read the Bill.”

Clerk Bolin: “House Bill 4364, a Bill for an Act ‘regarding higher

education student assistance. Third Reading of this House

Bill.

Speaker Hartke: “Representative Giles.”

Giles: “Thank you, Mr. Speaker and Ladies and Gentlemen of the

House. House Bill 4364 is a Bill that is amended by the

106

STATE OF ILLINOIS

92ND GENERAL ASSEMBLY

REGULAR

SESSION

SENATE TRANSCRIPT

88th Legislative Day                

April 18, 2002

SENATOR DtJDYCZ:

Thank you, Mr. President. House Bill 4257 amends the Park

District Aquarium-and Museum Act providing that aquariums and

museums run by a park district must be open to the public free of

charge for at least fifty-two days a year, six of which must be

between the months of June and August, each year. You may recall,

two years ago we passed this provision on a 

on a trial basis

for a two-year period, and it’s been a complete success and this

legislation takes that 

that trial period out. Makes it

permanent.

PRESIDING OFFICER: (SENATOR WATSON)

Is there any discussion? Is there any discussion? If not,

the question is, shall House Bill 4257 pass. All those in favor,

vote Aye. Opposed, vote No. The voting is open. Have all voted

who wish? Have all voted who wish? Have all voted who wish?

Take the record. On that question, there’s 57 voting Yes, no

voting No, no voting Present. House Bill 4257, having received

the required constitutional majority, is declared passed. House

Bill 4471. Mr. Secretary, please read the bill.

SECRETARY HARRY:

House Bill 4471.

(Secretary reads title of bill)

3rd Reading of the bill.

PRESIDING OFFICER: (SENATOR WATSON)

Senator Jacobs.

SENATOR JACOBS:

Thank you, Mr. President, Ladies and Gentlemen of the Senate.

House Bill 4471 is an Agency bill which replaces the system of

physical soil classification for leaking underground 

investigation and site classification for leaking underground

storage tanks with a system of site investigation and corrective

action. It deletes high priority 

and

low priority and no further

___________

16

Attachment B

STATE OF ILLINOIS

92ND GENERAL ASSEMBLY

REGULAR SESSION

SENATE TRANSCRIPT

88th Legislative Day                 

April 18, 2002

action classification. States that the IEPA will 

will not 

excuse me. It increases the 

the maximum amount of the IP 

EPA shall approve for payment from the Fund. This bill is an

Agency bill, as I indicated. According to the IEPA 

industry

and the Illinois EPA, they can reduce remediation costs,

streamline the corrective action process and require all leaking

underground tank cleanups to proceed using the tiered approach. I

know of known opposite 

no known opposition and I ask for your

support. I know there’s some questions.

PRESIDING OFFICER: (SENATOR WATSON)

Discussion? Senator Donahue.

SENATOR DONAHUE:

Thank you very much, Mr. President. I have a question of the

sponsor.

PRESIDING OFFICER: (SENATOR WATSON)

Sponsor indicates he’ll yield, Senator Donahue.

SENATOR DONAHUE:

Senator Jacobs, I’d like to ask you two questions for the

purposes of legislative intent. Initially, with regard to the

amendments at 

page 31 dealing with increasing the per-occurrence

monetary limitation from one million dollars to 1.5 million

dollars

if an owner/operator has completed remediation and

expended more than one million dollars at a site, and thus, was

restrained by the one-million-dollar-per-occurrence limitation

currently in the law, and we now increase the recovery limitation

to 1.5 million dollars per occurrence, does that mean that we

intend to allow a person whom has completed remediation to submit

past bills in excess of one-million-dollar limitation?

PRESIDING OFFICER: (SENATOR WATSON)

Senator Jacobs.

SENATOR JACOBS:

No, it is not the intention of the legislation to allow for

17

STATE OF ILLINOIS

92ND GENERAL ASSEMBLY

REGULAR SESSION

SENATE TRANSCRIPT

88th Legislative Day                

April 18, 2002

recovery of costs in excess of one million dollars for those sites

that have already completed remediation.

PRESIDING OFFICER: (SENATOR WATSON)

Senator Donahue.

SENATOR DONAHUE:

Senator, again, my second question is only to clarify for

legislative intent 

along the same line of reasoning as my first

question 

at page 29 the legislation proposes to amend the

current law to allow individuals with certain numbers of tanks to

recover more expenses incurred each calendar year. In particular,

and just by way of example, the legislation proposes to increase

the amount an owner/operator of less than one hundred and one

tanks may recover per calendar year from one million dollars, as

currently the law, to two million dollars. By increasing the

total amount that this owner/operator may claim per calendar year~

against the Fund, is it your intent to allow the persons whom 

were restrained by the one-million-dollar limitation per calendar

year prior to enactment of these proposed amendments to file for

recovery of expenses in excess of one million dollars, but less

than two millibn dollars proposed in the limitation?

PRESIDING OFFICER: (SENATOR WATSON)

Senator Jacobs.

SENATOR JACOBS:

Thank you, Senator. No, it is not the intention to allow for

recovery of expenses incurred in pas,t calendar years in excess of

the one-million- or two-million-dollar-calendar-year limitation,

whichever may be applicable under the current law. It is the

intention to allow the Illinois EPA to increase the amount that an

owner/operator may claim against the Fund for expenses incurred

after the enactment of the legislation.

PRESIDING OFFICER: (SENATOR WATSON)

Is any 

any other discussion? Any other discussion? If

18

STATE OF ILLINOIS

92ND GENERAL ASSEMBLY

REGULAR SESSION

SENATE TRANSCRIPT

88th Legislative Day                 

April 18, 2002

not, the question is, shall House Bill 4471 pass. All those in

favor, vote Aye. Opposed, vote No. The voting is open. Have all

voted who wish? Have all voted who wish? Have all voted who wish?

Take the record. On that question, there’s 58 voting Yes, no

voting No, no voting Present. House Bill 4471, having received

the required constitutional majority, is declared passed. House

Bill 4988. Mr. Secretary, please read the bill.

SECRETARY HARRY:

House Bill 4988.

(Secretary reads title of bill)

3rd Reading of the bill.

PRESIDING OFFICER: (SENATOR WATSON)

Out of the record, Mr. Secretary. 4989. Senator 

please

read the bill, Mr. Secretary.

SECRETARY HARRY:

House Bill 4989.

(Secretary reads title of bill)

3rd Reading of the bill.

PRESIDING OFFICER: (SENATOR WATSON)         

Senator Peterson.

SENATOR PETERSON:

Thank you, Mr. President, Members of the Senate. House Bill

4989 amends Article XV sic (XL) of the Insurance Information and

Privacy Protection Act of the Illinois Insurance Code to authorize

the Director to 

of Revenue to enforce the privacy provisions of

the federal Gramm-Leach-Bliley Act. This is an initiative of the

Department of Revenue. I ask for your support.

PRESIDING OFFICER: (SENATOR WATSON)

Is there any discussion? Is there any discussion? If not,

the question is, shall House Bill 4989 pass. All those in favor,

vote Aye. Opposed, vote No. The voting is open. Have all voted

who wish? Have all voted who wish? Have all voted who wish? Take

19

STATE OF ILLINOIS

92ND GENERAL ASSEMBLY

REGULAR SESSION

SENATE TRANSCRIPT

82nd Legislative Day                

April 4, 2002

ACTING SECRETARY HAWKER:

Senate Bill 1951.

(Secretary reads title of bill)

3rd Reading of th~bill.

PRESIDING OFFICER: (SENATOR DONAHUE)

Senator Jacobs.

SENATOR JACOBS:

Thank you, Madam President, Ladies and Gentlemen of the

Senate. Senate Bill 1951 merely changes or 

or provides an

exemption from licensure concerning law enforcement officers

employed by an employer in connection with the affairs of that

employer. Now, with the amendment, I know of no known opposition

and ask for your support.                   

PRESIDING OFFICER: (SENATOR DONAHUE)

Is there any discussion? Is there any discussion? Seeing

none, the question is, shall Senate Bill 1951 pass. Those in

favor will vote Aye. Opposed, Nay. And the voting’s open. Have

all voted who wish? Have all voted Who wish? Have all voted who

wish? Take the record. On that question, there are 56 Ayes, no

Nays, none voting Present. Senate Bill 1951, having received the

required constitutional majority, is declared passed. Senator

Myers, on Senate Bill 1958. Senator Sieben, on Senate Bill 1963.

Senator Welch, on Senate Bill 1968.  Read the bill, Madam

Secretary.

ACTING SECRETARY HAWKER:

Senate Bill 1968.

(Secretary reads title of bill)

3rd Reading of the bill.

PRESIDING OFFICER: (SENATOR DONAHUE)

Senator Welch.

SENATOR WELCH:

Thank you, Madam President. What this bill does is allow for

68

Attachment C

STATE OF ILLINOIS

92ND GENERAL ASSEMBLY

REGULAR SESSION

SENATE TRANSCRIPT

82nd Legislative Day                

April 4, 2002

the licensed professional geologist to perform and review site

investigations. When the original law was passed allowing

engineers to do 

the site investigations, geologists weren’t

licensed..  Since that time, they’ve been licensed, and this bill

will bring the 

the site investigation statute up to date. So,

I would urge an Aye vote.

PRESIDING OFFICER: (SENATOR DONAHUE)

Is there any discussion? Any discussion? Senator Burzynski.

SENATOR BURZYNSKI:

Thank you, Madam President. Would the sponsor yield, please?

PRESIDING OFFICER: (SENATOR DONAHUE)

He indicates he’ll yield, Senator Burzynski.

SENATOR BURZYNSKI:                       

Thank you.  Senator, what 

what committee did this go

through?

PRESIDING OFFICER: (SENATOR DONAHUE)

‘Senator Welch.

SENATOR WELCH:

It went through the Environment and Energy Committee.

PRESIDING OFFICER: (SENATOR DONAHUE)

Are there further discussions? Is there further discussion?

Seeing none, the question is, shall Senate Bill 1968 pass. Those

in favor will vote Aye. Opposed, Nay. And the voting’s open.

Have all voted who wish? Have all voted who wish? Have all voted

who wish? Take the record. On that question, there are 56 Ayes,

no Nays, none voting Present. Senate Bill 1968, having received

the required constitutional majority, is declared passed. Senator

Dillard, do you wish to return this bill? Senator Dillard seeks

leave of the Body to return Senate Bill 1972 to the Order of 2nd

Reading for the purposes of an amendment. Hearing no objection,

leave is granted. And on the Order of 2nd Reading is Senate Bill

1972. Madam Secretary, have there been any amendments approved

69

217782985?                  

2177829857

1’

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TO:

Phone

FaxPhone

~17

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CC:

REMARKS:

Urgent

Foryour review

RepIyASAP

Please Comment

This facsimile contains CONFIDENTIAL 1NFORMATION which may be LEGALLY PRIVILEGED and

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SEP—22—2854 59:

G—2;—C4; 8:43AM

ILLINOIS POLLUTION CONTROL B0AIW

Date

Number ofpages including cover sheet

FROM:

v.jO

f~J

11 1~P-/A-~i

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Pollution Control Board

James R.

Thompson

Center

100 West

Randolph Street

Suite 11-500

Chicago, Illinois 60601

Phone

312-814-3620

Fax Phone

312-814-3669

Web Site

http://www.ipcb.stateil.

us!

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Post Office Box 5776

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CaseName: In

the Man~rof:Proposed

Arnër.drnents to 

RegoIatio:~of

Petro~8umLeaking U~derground.Storag~Tanks

(35

lii. Adm.

code 732)

onsotidated 

R04~22and R04-23)

Board Members: Glrard, G.T; . . - ,.

:He~riflg.offjcers:

Tipscrd, M.;

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1 North Wacker Drive

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chicago

IL 60606

312/357-1313

312/759-5646

Carolyn S. Hesse, Attorney

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Interested

Party

414

North 

Orleans Street

Suite 810

Chicago

IL 60610

312/836-1177

312/836-9083

.!,Lnited Science

P.O. Box ..~3

Industries,

Inc.

6295 East Illinois

Highway

Interested

Party 

1 c

Carison

Environmental,

65 E. Wacker Place

Chicago

Suite 1500

IL 60601

Interested

P~irtv

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Applied Science

Interested Party

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:‘-

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821 South Durkin Dnve

P 0 Box 7349

I..s~

:‘H,HH.HH-

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Springfield

217/787 2118

IL 62791-7349

217/787 6641

Environmental

gment&

TeChnOjQgies

Interested Party

Michael 

W Rapps

2Ol2WestCollegeAvenue

Suite 208

Craig

Gocker, President

Normal

~09/454-17l7

IL 61761

309/454-2711

Office o~the~

A~y~nira1

Inte~e~tedParty

E~ivironmeritaIBureai.~

188 West Randolph, 20th

Floor

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3 Sternstelfl,AssIstarL Attorney Gë~era

- * --

Herlacher

~pgi~p-p

8731

Bluff 

Road

Waterloo

IL 62298

618/935-2262

618/935-2694

‘eatch  

101 North Wacker

Drive

Suite

1100

Page2 of7

Hepler, Broom,

MacDonald,

Hebrank

True

Intel

—

Ot?1~

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CORE Geological

Services, Inc.

Interested Party

rin field

2621 Monetga, Suite C        

•

217-787-6109

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Ron Dye, President

CIavtonGroup,,~..~

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3t40 Finley Road     

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795

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Monte Nienkerk

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Kurt Stepping, Director of Client Services                 

Atwc1I-i3Jci~,~

940 East Diehl Road

NapervilI~

- -

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Interested Party 

Sute ~L00

60563-            

. - -

Thomas N

Guist, PE, Tea L~ader

CW3M Company,

•

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—F

Inc.

701 South Grand Ave. West

pringie         

•

217-522-8001

Interested Party

•

Jeff 

Wienhoff

—

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~4140Ll~Drive

JarrettThornas 

VP~ * -

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SEP—22—2004 59:00

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2231 W.

Altorfer Dr.

Interested

Party              

ill 61615

309-692-9688

Environmentat

ç.p.nsulting &

Int—--~-1~~~-’1

551 Roosevelt Road

#309

Glenn Eltyn

IL 60137

~fl~Qfl

Associates, LLC

Interested Party

Jennifer Goodman

Chicago

IL

60601

77 W. Wacker

Interested Party Suite 

4400

—

David Rieser

_~3

1d~i~

~r-..

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‘i~3~’~.

~3 ~

~JJ~bs

Broadway

Tina 

-Aiclier~Attorney

4.~r

312/849-8100

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21778298137

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Page 4 of 7

Midwest

~ng~i~tIqg

S~ry!c~~,.Thc~.

Interested Party

4243 W. 166th Street

Oak Forest

7085359981

60452

Erin Curley, Env. Department Manager

American

r~0_i:!i~1!~.! 3700 W Grand Ave Suite Springfield

cQIp_

IL 62707

Interested

P’arty                  

(217) 585 9517

Applied

•

Solutions, Inc.

Interested

Party

lçen

Mi1ler~

RegionaL I~1anac

P 0 Box 1225

•

Delete Me 2

Centralia

•

IL 62801

61853~5953

Secor

International

Interested

Party

400 B

runs

Lane

I-

SpringfieldIL 62702

- -

— -

- —,

Interested Party

Da~ielJGoodwin

I -

—- -

100 NE Adams Street

ILPeoria61629

J3096751658

Eric Minder, Sr. Environmental Engineer

K.~pt—’-—’~:::~~1-ui.

Environmental -

Thterested

Party

Illinois Society of

Professional

~t~0v0aOflBliren 

Street ft 60607:

I L~o~46eQ,~,

—

——-

ban~eJC~p~ice

i~—~

300 West Edwards

~sPrln~field

August 

Board

concluded

seventh day of

hearings; with agreement

participants, date 

days

from August 9, 2004, will be

811112004

‘ ‘

Hearing

Officer

Order/Correspondence

set

for filing of comments to

considered by

Board prior to first notice, requests for

additional

hearings may be made at that time; comments must be

tiled 

in Board’s

Chicago

Office

by 4:30 p.m., September 23, 2004, mailbox rule does not apply

(s-~rvIce

list not

Included in

viewable

f’-’

/9/2

004

Sheet

—i

s Environmental Protection Agency

d Errata Sheet(_

it 87 from

Hearing held 8/9/04)

8/~/~OU4;

8/2/2004

P?eflted Testimony-

Preflled Testimony

PIPE’?~mpös?d,

A1t~m~te~Ean~uei9’H~

U.~4I

,,~

,2I~

.i.,(

Additional

Testimony

of Douglas W. Clay in Support of the

IllinoIs Environmental

Protection Agency’s Proposal; Illinois

Environmental

Protection 

Agency’s Third Errata

Sheet

7/16/2004

7/7/2004

7/1/2004

Tra~scnp~-

Exhibit

List

Transcript

Jiily 6, 20Q4 hearlng~rarls*1pt

‘—~

— - — — -

~T~--2~

Updated

Ust

of exhibits including

three(3) exhibits submitted at hearing held on July

6, 2004

(SpringfIeld,

IL)

(Due

the

volume of the exhibits,

the

viewable file is not

available. Please contact the Clerk’s Office at

312/814-3629

to view or obtain a copy)

June22 200~.hearing

ti~nScr~pt

- ‘~ 1 .

~—

;

—

• SEP—22-2004 59:55

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Bank One Plaza

10 South Dearborn Street

I William G. Dickett

Case Name

In ~he liater o ReaUI~tiono Petroleum Leak ig

Unde

groLrld

Storage

TanKs

(Proposa~new

35Th

Ad~’Coda 734j

(Coisol d~’tad R0~’22 and R04 23)

Board Members GI-ard G T,

bert 

A. Messina, General Counsel

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IEPA

SpringfIeld

Petitioner

East

IL 62794-9276

P.O. Box 19276

217/782-5544

217/782-9807

ars

Association

Interested Party

Roland Avenue

Springflekl

Interested Party

Rc

217/523-4942

217/523-4948

Chemica.LTh.?ljis~y2250 E. Devon Avenue

DesPlaines

Council of Illinois I Suite 239

IL 60018-4509

ml crested

Party 

-I

Engineering &

Applied Science

Interested Party

821 South

Durkin Drive

Springfield

P.O.

Box 7349

IL 62791-7349

217/787-2118

• 217/787-6641

https://www.ipcb.state.il .us/COOL/InternallCaseView.asp?referer=CaseEdit.asp&case=6287, 9/14/2004

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2012 West College Avenue Normal              

309/454 1717

Technologies

Interested

Party

Suite 208        

IL 61761             

309/454-2711

Craig S Gocker President

Office

of the

AtJIeyn~r.a!.

Interested

Party

Environmental

Bureau    

188 West Randolph, 20th

Floor               

Joel

Sternstein,

Assistant Attorney 

Genera

i~:~.: ;-~,~..-::

:.~. ~

Angleton

‘~

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Wäterfoc~ 

Associates

LIC

r

U

IL. ~22p8

Interested

Party

—

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-~-161~’935-2694,

‘~—=-~

~r:.~

- —~

Tom HerFacher P E,

Principa~Engineer      

—

-. .-

—

PoNuon

i.0O W. Randolph St.

Interested Party

upte 1

Dorothy M. Gunn, Clerk of the Board

Marie Tipsord Heanng Offfcer

—

3128143956

•

Huff & Huff, Inc.

512 West

Burlington

LaGrange

Interested

Party

Avenue Suite 100

IL 60525

James E.

Huff,

P.E.

Inl~erestedParty.. ~Sulte110C~    

~L 60606

- -~2~

ScottAriderson  

~- I

- -

Posegate & Denes /

S rin

fi Id

111 N. Sixth Street

IL 62701

Interested P

;

De~.tment of

f•

Na!~”~•l_ResourcesOne Natural Resources Way

Interested

Party

Burroughs,

103 W.

Vandalia

Street

Edwardsville

618/656-0184

~~rrue

Suite 300

IL

62025

618/656-1801

Interested

Party

______________________________ _________________________

Musette H. Vogel

..illliil4l4Ilifi$lIl~12lI~i~If

illhil2i2iI...i:f_

i.1i

-:-.—II—.---_I-,—..llllIiIi2il4--,lfi

:fr~9;; 

-1A-~1

P~1ck

i-~~~-~-

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2220 Yale Boulevard

Springfield

217-522-4085

I Services, Inc

IL 62703

Interested

Party             

______________________________ ________________________

Joseph W. Truesdale, P.E.

1Get~lö~cat

~ - i~ :!.

~- -

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—

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-hf

—

SEP—22—2004 09:00

9—22—04; 8:43AM

Claire

A. Manning

217-522-6152

217/782-1809

217/524-9640

-I

https://www.ipcb.state.il.us/COOL/Intemal/CaseView.asp?refererCaseEdit.asp&case=6287 9/14/2004

217782982)?                   

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8

Page3 of7

ScesI

Interested

Party

3140 Finley Road

630.795.3207

~~~r—-—~

Monte Nienkerk

Suburban

LaboratoriesL Inc 4140 Litt Drive

Tnt~r~ted

PartvI...

~omas VP

Environmental

Consulting 

551

Roosevelt Road

Engjneerlr~,Inc.

#309

Inter~~F~d

~irtvJ

•

Richard Andros, P.E.

- -

:-:

544 3260

Glenn Ellyn

IL 60137

•

ACTEC ;

agjji~iiflL~

,~iciuIfinn -

2300 Dirksen Parkway

Peoria

IL 61615

~1I

—

- .-

—-

Springfield

IL 62764

https://www.ipcb.state.il.us/COOL/InternallCaseView.asp?referer=CaseEdit.asp&case6287 9/14/2004

SEP—22—2004 09:00

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Illinois

Transportation

InterP~tPd

~~rtv

Steven Gobelman

I’

Herlacner

Angleton

522 Belle Street

Aiton

Associates, LLC

XL 62002

Interested Party

____________________________ _______________________

Jennifer

Goodman

~n’Ifed-~ 

2lf..~

:~:--.,

coi~uitañts~inc!-lli~ulte

L~1

1L60067

-1I~ii9t~.

Ill

~tere~téà P~tty~.-~

I

:-z~

—(

~GeorgeF~ Mohcek -

I8~’~

—ll4;~~i~1

ll~r

McGuire Woods

77 W. Wacker

Suite 4400

Applied

Environmental

Solutions, Inc.

•‘__~_O~

TOTflL P.2)8

STATE OF ILLiNOIS

COUNTY OF SANGAMON

PROOF OF SERVICE

I, the undersigned, on oath state that I have served the attached Illinois Environmental

Protection Agency’s Post Hearing Comments upon the persons to whom they are directed by

placing copies in envelopes addressed to:

Dorothy Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph, Suite 11-500

Chicago, Illinois 60601

(Overnight Mail)

SEE ATTACHED SERVICE LIST

(First Class Mail)

Marie Tipsord

Illinois Pollution Control Board

James R. Thompson Center

100W. Randolph, Suite 11-500

Chicago, Illinois 60601

(Overnight Mail)

and mailing them from Springfield, Illinois on September 22, 2004, with sufficient postage

affixed as indicated above.

SUBSCRIBED AND SWORN TO BEFORE ME

this 22nd day ofSeptember, 2004.

OFFICIA~~

SEAL

CYNTHIA L. WOLFE

NOTARY

PUBUC STATE

OF IWNOIS

MY COMMISSION EXPIRES 3.20.2007 ~i

)