BEFORE THE ILLINOIS POLLUTION CONTROL BOARDR
CLERK'S
ECEIVED
OFFICE
PUBLIC COMMENT
Now comes Professionals of Illinois for the Protection of the Environment (PIPE), by and
through its attorneys, Claire A
. Manning, Brown, Hay & Stephens LLP, and offers the following
Post-hearing comment in this proceeding, for the consideration of the Illinois Pollution Control
Board (Board) .
The Professionals of Illinois for the Protection of the Environment (PIPE) would like to
thank the Pollution Control Board for the opportunity "to further address the issue of payment
for professional services" in this Docket B
. See R04-22 (B) and R04-23
(B), January 5, 2006
.
As the Board recognized in opening this docket, the Environmental Protection Act ("Act")
sets
forth the Board's general rulemaking authority in Section 27 which requires that the Board,
among other considerations, determine the "economic reasonableness and technical feasibility"
of any rule
. More specifically, the relevant section reads
:
"The Board may adopt substantive regulations
as described in this Act
. Any such
regulations may make different provisions as required by circumstances for different
contaminant sources and for different geographical areas
; may apply to sources outside
this State causing, contributing to, or threatening environmental damage in Illinois
; may
IN THE MATTER OF :
)
MAY 1
1 2006
PROPOSED AMENDMENTS TO :
STATE OF ILLINOIS
)
R04-22 (B)
Pollution
REGULATION
PETROLEUM LEAKING
Control Board
) (Rueemaking-UST)
UNDERGROUND STORAGE TANKS
) C~
35 ILL. ADM . CODE 732
)
~1
l~
IN THE MATTER OF :
P
)
PROPOSED AMENDMENTS TO :
)
R04-23 (B)
REGULATION PETROLEUM LEAKING
)
(Rulemaking - UST)
UNDERGROUND STORAGE TANKS
)
Consolidated
35 ILL. ADM. CODE 734
)
make special provision for alert and abatement standards and procedures respecting
occurrences or emergencies of pollution or on other short-term conditions constituting an
acute danger to health or to the environment
; and may include regulations specific to
individual persons or sites
. In promulgating regulations under this Act, the Board shall
take into account the existing physical conditions, the character of the area involved,
including the character of surrounding land uses, zoning classifications, the nature of the
existing air quality, or receiving body of water, as the case may be, and the technical
feasibility and economic reasonableness of measuring or reducing the particular type of
pollution. The generality of this grant of authority shall only be limited by the
specifications of particular classes of regulations elsewhere in this Act
." 415 ILCS
5/27(a)
This general grant of rulemaking authority recognizes the special place the Board holds
in Illinois law for controlling and abating pollution -
and for adopting rules which do so in a
measurable, but economically reasonable and technically feasible manner
. Despite this special
role, very little record time or evidence has been spent in recognition of what the Illinois
Environmental Protection Agency's proposed standard rates would mean to the environment
.
Instead, this rule has simply been, and continues to be, about cutting reimbursement costs
applicable to owners and operators of leaking underground storage tanks
. Moreover, this rule
has been, and continues to be, based upon an unsupported and unproven assumption that
professional service charges for clean-up need to be standardized - and curtailed
. Underlying
this rule is an even more dangerous and unsupported assumption, held fast by the Agency as
"truth self evident"
: that somehow such economic reduction and standardization will result in
more efficient and expeditious clean-up of Illinois UST sites
.
The Board has never passed on a rule with so little supporting data justifying it
-
and it
should not do so now
. The Board was right to refuse, in Docket A, to promulgate the Agency's
rates as reasonable, in large part because the Agency did not justify the numbers
. The Board
would likewise be right now, to decline to promulgate the Agency's rates
- many of which are
2
less than proposed previously, again because the Agency has not supported those numbers with
any measurable data whatsoever
.
Rather, as was evident at the March 23 hearing, the Agency's numbers were simply
reached - and proposed -
on the basis of a peer discussion of paper reviews of hundreds of
thousands of different types of reimbursement requests that have come into the Agency's UST
unit since it began
. While the Agency styles this review as based upon 140 hours of combined
experience, the Board certainly realizes that this experience is not borne of performance of actual
work on a real site, but instead is based solely on a paper review of thousands of requests for
reimbursement and, importantly, a review that is void of any real site information or data
.
The Board has heard from persons experienced in actual site remediation clean- up, in the
form of testimony and comments from those companies who actually perform a majority of the
UST remediation work in Illinois
. The Board should listen to those voices and, unless and until
real and verifiable data is presented to the Board justifying standard costs for reimbursement of
tasks related to clean-up costs for UST sites, the Board should decline to adopt standard
reimbursement costs
. Until then, reimbursement for professional services should be based upon
the time and materials actually necessary to do e job .
BROWN, HAY & STEPHENS, LLP
Claire A
. Manning, Esq .
Registration No . 3124724
205 S . Fifth Street, Suite 700
P .O. Box 2459
Springfield, IL 62705-2459
(217) 544-8491
Claire A. Manning
On Behalf of the Profession
Protection of the Environmen
3
BROWN, RAY & STEPHENS, LLP
Claire A. Manning, Esq .
Registration No
. 3124724
205 S . Fifth Street, Suite 700
P.O. Box 2459
Springfield, IL 62705-2459
(217) 544-8491
(217) 241-3111 (fax)
cmanninga,bhslaw
.com
PROOF OF SERVICE
The undersigned states that a true and correct copy of the foregoing PUBLIC
COMMENT, was served upon those people listed on the Pollution Control Board's service list
on its website, by placing a copy of such in the U .S
. Mail, May 9, 2006, from Springfield,
Illinois.
4
1%me j ht)vlul~- ~
J
