CLERK’S

OFFICE

APR

27

20D9

)

?IjUon

StATE

OF

Control

ILLINOIS

Board

)

AS

09-2

(Adjusted

Standard

—

Land)

John

Therriault,

Clerk

Illinois

Pollution

Control

Board

James

R.

Thompson

Center

100

West

Randolph

Street

Suite

11-500

Chicago,

IL

60601

Llewellyn

Kennedy

Well

&

Associates

60

Revere

Drive,

Suite

888

Northbrook,

IL

60062

Bradley

Halloran,

Hearing

Officer

Illinois

Pollution

Control

Board

James

R.

Thompson

Center

100

West

Randolph

Street

Suite

11-500

Chicago,

IL

60601

PLEASE

TAKE

NOTICE

that

I

have

today

filed

with

the

office

of

the

Clerk

of

the

Pollution

Control

Board

the

BRIEF

OF

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

copies

of

which

are

herewith

served

upon

you.

Respectfully

submitted,

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

William

D.

Ingersoll

Division

of

Legal

Counsel

1021

North

Grand

Avenue,

East

P.O.

Box

19276

Springfield,

Illinois

62794-9276

217/782-5544

217/782-9143

(TDD)

Dated:

April

23,

2006

BEFORE

THE

POLLUTION

CONTROL

BOARD

OF

THE

STATE

OF

ILLINOIS

IN

THE

MATTER

OF:

PETITION

OF

MAXIMUM

iNVESTMENTS,

)

LLC

FOR

AN

ADJUSTED

STANDARD

)

FROM

35

ILL.

ADM.

CODE

740.210(A)(3)

)

FOR

STONEY

CREEK

LANDFILL

IN

)

PALOS

HEIGHTS,

ILLINOIS

)

NOTICE

---

BEFORE THE POLLUTION CONTROL

BOARD

CLERK’S

OFFICE

OF THE STATE

OF ILLINOIS

7

2009

IN THE

MATTER OF:

)

STATE

OF

ILLINOIS

)

Pollution

Control

Board

PETITION

OF MAXIIVIUM

iNVESTMENTS,

)

AS 09-2

LLC

FOR AN ADJUSTED

STANDARD

)

(Adjusted Standard

— Land)

FROM

35 ILL. ADM.

CODE 740.210(A)(3)

)

FOR

STONEY CREEK

LANDFILL IN

)

PALOS HEIGHTS, ILLINOIS

)

)

)

BRIEF OF ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

This

brief is made in response to the Order

of the Board dated February 5, 2009

and the

related

Hearing Officer scheduling Order

dated March 3, 2009. The Board’s February

5 Order

granted Petitioner’s

Motion to Reconsider and

accepted

the

petition. The Board further directed

that the parties respond with briefs

on the following issue:

The

Board has an additional concern regarding

the requested relief

The

Board

has

clear

authority to grant adjusted standards

to rules of general

applicability under

Section 28.1 of the Act (415 ILCS 5/28.1

(2006)); however,

the Board cannot adjust statutory requirements.

See 415 ILCS 5/28.1

(a) (2006).

In this

case,

petitioner

requests adjustment

of a

standard

adopted in the Board

rules that also appears to

be a statutory requirement. See

e.g. 415 ILCS 5/58.2

and 58.7 (2006). The Board directs the petitioner

and the Illinois Environmental

Protection Agency to address

this

issue

in briefs to be filed with

the Board. The

hearing officer is directed to establish a briefing

schedule with the parties.

BACKGROUND

Petitioner,

by one of its officers, previously

contacted the Illinois

EPA

regarding

the

possibility

of obtaining

a

limit

of liability for prospective

purchasers of real property pursuant

to

Section

22.2b of the Act (415 ILCS

5/22.2b). Among the several

requirements

to be satisfied

before

obtaining such a release

is having a response

action

plan approved

by

the Illinois

EPA.

Petitioner

was informed

that the Agency would only

be willing to perform

such a plan

review

if

1

---

the site

was enrolled

in

the Site Remediation

Program

(SRP).

See

Section

58 et

seq.

of

the Act

and

related

regulations

at 35 Ill.

Adm.

Code

740. This

position

was

taken to

assure

that funding

would

be provided

by

the requester

for the

review

services

expected

of

the Agency.

However,

Petitioner

is

apparently

unable

to

satisfy

the

owner

signature

requirement

to enter

the

SRP,

and

here

seeks

relief from

that

regulatory

requirement

in 35 Iii.

Adm.

Code

740.2 l0(a)(3).

Petitioner

alleges

that it

holds

a

tax

lien on

the relevant

property,

but

obviously

realizes

that

it

cannot take

a

deed without

disqualifying

itself

from

another

requirement

in

Section

22.2b

— i.e.,

that the person

is not

otherwise

liable

under Section

22.2, which

would

create

liability

by

ownership

status.

While

the Agency

cannot

confirm

all

of the

factual

allegations

made

by

Petitioner,

we

can

assume

them

to be

true for the

sake of the

issue

before

the Board

in this brief.

DISCUSSION

Petitioner’s

claims

that “the

property

will forever

remain

abandoned

and off the

tax

rolls”

may

be

accurate

predictions,

but are not

responsive

to the Board’s

inquiry.

Instead,

as the Board

expressed

concern,

the definition

of

“Remediation

Applicant”

in

Section

58.2

and the

requirement

of

owner

authorization

in Section

58.7(b)(1)(F).

So,

while

the

Petitioner

sought

relief from

the

regulatory

requirement

at

Section

740.21

0(a)(3),

the regulatory

requirement

is

merely a

corresponding

requirement

contained

in the

Environmental

Protection

Act. The

Board

correctly

pointed

out that

Section

28.1 authorizes

it

to

grant

relief

from

regulations

it has

promulgated.

The

legislature

did not extend

the

authority

to

effectively

amend

legislation

through

an adjusted

standard process.

There

is

also a practical

limitation

on

Petitioner’s

desires

here.

Even

if the

relief

were

granted,

the

illinois

EPA

still would

not be

required

to

proceed toward

a Section

22.2b

release

—

usually

referred

to as

a Prospective

Purchaser

Agreement.

First,

please note

that

the

grant

of

2

---

such

a

release

is

worded

in

the

statute

using

the

permissive

“may”

rather

than

“shall.”

Further,

the

release

is

ultimately

provided

by

the

State

of

Illinois.

In

practice,

this

means

the

Agency

works

out

acceptable

language and

response

action

approval,

and

then

refers

the

matter

to the

Attorney

General

for

final

revision

and

execution.

It

is believed that

the

Attorney

General

must

execute

a

release

since

it

is from

the

State

of

Illinois,

rather

than

just

the

Illinois

EPA.

CONCLUSION

Consistent

with

the

Board’s

initial

concerns

and

the

discussion

above,

the

Illinois

EPA

contends

that

the

Board

is

not

granted

the

authority

to

modify

statutory

requirements

through

the

adjusted

standard

process

found

at

Section

28.1

of

the

Act.

Respectfully

submitted,

ILLINOIS ENVIRONMENTAL

PROTECTION

AGENCY,

William

D.

Ingersoll

Division

of

Legal

Counsel

1021

North

Grand

Avenue,

East

P.O.

Box

19276

Springfield, Illinois

62794-9276

217/782-5544

217/782-9143

(TDD)

Dated:

April

23,

2006

3

---

CERTIFICATE

OF

SERVICE

I,

the

undersigned attorney

at

law,

hereby

certify

that

on

April

23,

2009,

I

served

true

and

correct

copies

of the

BRIEF

OF

ILUNOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

by

placing

true

and

correct

copies

in

properly

sealed

and

addressed

envelopes

and

by

depositing

said

sealed

envelopes

in

a U.S.

mail

drop

box

located

within

Springfield, Illinois,

with

sufficient

First

Class

Mail

postage

affixed

thereto,

upon

the

following

named

persons:

John

Therriault,

Clerk

Illinois

Pollution

Control

Board

James

R. Thompson

Center

100

West

Randolph

Street

Suite

11-500

Chicago,

IL 60601

Liewellyn

Kennedy

Weil

& Associates

60

Revere

Drive,

Suite

888

Northbrook,

IL

60062

Bradley

Halloran,

Hearing

Officer

Illinois

Pollution

Control

Board

James

R. Thompson

Center

100

West

Randolph

Street

Suite

11-500

Chicago,

IL 60601

ILUNOIS ENVIRONMENTAL

PROTECTION

AGENCY,

William

D.

Ingersoll

Division

of

Legal

Counsel

1021

North

Grand

Avenue,

East

P.O.

Box

19276

Springfield,

Illinois

62794-9276

217/782-5544

217/782-9143 (TDD)