Raymond
    1.
    Reott
    Reott Law OffIces, LLC
    Jorge T. Mihalopoulos
    312-332-7544
    35 East Wacker Drive,Suite 650
    312-5465078
    rreott@reottlaw.com
    Chicago, flhinois 60601
    .~
    Jtm@reottlaw.com
    312-332-7545,
    Fax
    3l2~782~451~cLERK~5
    OFFICE
    MAY952005
    STATE OF
    ILLJNOI
    Pollution Control Board
    May 2, 2005
    Marie Tipsord
    Hearing Officer
    Illinois Pollution Control Board
    100 W. Randolph, Suite 11-500
    Chicago, Illinois 60601
    Re:
    In Re Proposed Amendments to Regulation ofPetroleum Leaking Underground
    Storage Tanks; R04-22 and R04-23 (Consolidated)
    Dear Ms. Tipsord:
    Pursuant to the March 11, 2005 hearing officer order in the above rulemaking, I am
    submitting these comments on the proposed rules.
    By way ofbackground, I am an environmental lawyer with over 20 years of experience.
    I have appeared before the Board and given oral and written testimony in a number of
    rulemakings over the last ten years related to the U.S.T. program and TACO objectives.
    Recent discussions with Illinois EPA personnel have uncovered a potential ambiguity
    which ought to be clarified in the pending Part 732 and 734 rules. At several points in
    the proposed rules, the rules provide in substance something like the following: Unless
    the owner or operator submits a report pursuant to Section 734.2 l0(h)(3) ofthis Part
    demonstrating that the most stringent Tier 1 remediation objectives of35 Ill. Adm. Code
    742 for the applicable indicator contaminants have been met, the owner or operator must
    investigate the site, conduct corrective action, and
    ... .
    (See, e.g., Section 734.300.) The
    ambiguity is created because some ofthe “most stringent Tier 1 remediation objectives”
    may be for pathways which have been severed by preexisting institutional controls. The
    most important example would be in the City of Chicago where the Tier 1 soil criteria for
    the migration to the groundwater pathway have been met throughout the City by the
    City’s adoption of(and the Illinois EPA’s apprOval of) the City of Chicago ground~water
    ordinance as an approved institutional control.
    With regard to a site in the City of Chicago, the Illinois EPA staff have expressed
    concerns recently that the proposed Section 734 regulations would require the owner or
    operator to investigate and delineate contamination which is above the Tier 1 criteria only
    for the migration of groundwater pathway but below those criteria for all the other
    remaining pathways. Essentially, the owner would be delineating contamination that
    already is addressed by the existing City ofChicago groundwater ordinance institutional
    control. Similar provisions exist in other places in the regulations such as Sections
    734.3 10, 734.3 15, 734.320, 734.325 and 734.335.
    There is no regulatory basis to require an owner or operator to delineate contamination
    where the only pathway for which the contamination exceeds the most stringent Tier 1
    remediation objectives is a pathway which already is controlled by an existing approved
    institutional control. In other provisions in the proposed regulations, and in the Board’s
    opinion in this matter, the regulations endorse the proposition that the failure to use
    available groundwater ordinances as an institutional control may result in certain
    corrective action costs being ineligible for payment from the fund. See the Board Note to
    Proposed Section 734.410; Section 734.630 (ccc). According to the Board’s February 17,
    2005 opinion at page 21, the proposed regulations are intended to require owners or
    operators to use a groundwater ordinance as an institutional control if the ordinance
    already has been approved by the Illinois EPA. This prevents sites from seeking
    reimbursement for costs which are unnecessary because ofpreexisting approved
    institutional controls and would seem to be consistent with the overall purpose ofthe
    rulemaking to streamline the UST reimbursement program and to reduce requests for
    unnecessary costs.
    I suggest that the Board amend the proposed provision at part 734.300 to provide as
    follows:
    “Unless the owner or operator submits a report pursuant to Section 734.2 10(h)(3)
    ofthis Part demonstrating that the most stringent Tier 1 remediation objectives of35
    I11.Adm.Code742 for the applicable indicator contaminants have been met for all
    pathways not otherwise controlled by an approved institutional control, the owner or
    operator must investigate the site, conduct corrective action, and prepare plans, budgets,
    and reports in accordance with the requirements ofthis subpart C.
    The additional language is shown as an underlined insert. The Board should make
    similar parallel revisions to the other sections containing similar phrasing such as
    Sections 734.3 10, 315 and 320.
    In addition, the exclusion from the recoverable costs contained in proposed Section
    734.630(ccc) is too narrowly drawn. As currently worded, the exclusion relates only to
    costs
    “
    associated with groundwater remediation” if a groundwater ordinance already
    approved by the Agency for use as an institutional control in accordance with 35 Ill.
    Adm. Code 742 can be used as an institutional control for the release being remediated.
    That provision ought to be slightly broader to make it clear that the excluded costs
    include costs
    “
    associated with groundwaterremediation or soil remediation if 1) the
    only basis for the soil remediation is the migration to groundwater pathway and 2) a
    groundwater ordinance already approved by the Agency would make the remediation of
    the soil pathway unnecessary.” The current wording would appearto invite parties to
    submit requests for reimbursement for soil remediation costs where the only basis for that
    soil remediation would be the migration to groundwater pathway already addressed by an
    approved institutional control. This could be a very frequent occurrence within the City
    of Chicago as well as the other communities around Illinois which have adopted
    groundwater ordinances approved by the Agency as institutional controls pursuant to
    Section 742.
    Because ofthe length ofthe proposed rule making and the various opinions and
    submissions in this matter, it is possible that there are additional instances where the
    same language ought to be conformed to the changes suggested above. I suggest that the
    Board staff conduct a comprehensive search ofthe pending rulemaking proposal to
    identify any such parallel provision which would need to be conformed.
    Sincerely yours,
    /
    ~~
    Rayn~ton’dT. Reott
    RTR/ld
    CC:
    Jorge Mihalopoulos
    Rulemaking Service List

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