ILLINOIS POLLUTION CONTROL BOARD
    WEBB AND SONS, INC.,
    Petitioner,
    vs.
    PCB 07-24
    (UST Appeal)
    ILLINOIS ENVIRONMENTAL PROTECTION
    AGENCY,
    Respondent.
    Proceedings held on December 11th,
    2006, at 10 p.m. at the Illinois Pollution
    Control Board Hearing Room, 1021 North Grand
    Avenue East, North Entrance, Springfield,
    Illinois, before Carol Webb, Chief Hearing
    Officer.
    Reporter: Beverly S. Hopkins, RPR
    IL CSR No. 084-004316, MO C.C.R. No. 968
    reporter@keefereporting.com
    618-277-0190 1-800-244-0190
    11 North 44th Street, Belleville, Illinois 62226

    APPEARANCES
    ILLINOIS POLLUTION CONTROL BOARD
    Ms. Carol Webb
    Hearing Officer
    1021 North Grand Avenue East
    Springfield, Illinois 62794
    Phone: (217) 524-8509
    WEBB AND SONS, INC.
    Mr. Jeffrey W. Tock
    Harrington & Tock
    201 W. Springfield
    Suite 601
    Champaign, Illinois 61824
    Phone: (217) 352-8707
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
    Mr. James G. Richardson
    Enforcement Program
    1021 North Grand Avenue East
    Springfield, Illinois 62794
    Phone: (217) 782-5544
    INTERROGATION INDEX
    QUESTIONS BY MR. TOCK
    7, 39, 62
    QUESTIONS BY MR. RICHARDSON
    32, 60
    EXHIBITS
    Exhibit 1
    10
    Exhibit 2
    23
    Exhibit 3
    27
    Exhibit 4
    40
    Exhibit 5
    54
    Exhibit 6
    66
    Exhibit 7
    67
    Exhibit 8
    67
    (All exhibits were retained by the hearing
    officer.)
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    HEARING OFFICER WEBB: Good morning.
    2
    My name is Carol Webb, and I'm a hearing officer
    3
    with the Pollution Control Board. This is PCB
    4
    07-24, Webb and Sons versus IEPA. Webb and Sons
    5
    not related to me incidentally. It is December
    6
    11, 2006, and we are beginning at 11 a.m..
    7
    I'll note for record there are no
    8
    members of the public present. Members of the
    9
    public are allowed to provide public comment if
    10
    they so choose.
    11
    At issue in this case is the rejection
    12
    of petitioner's proposed budget regarding an
    13
    underground storage tank at 1201 DeWitt Avenue in
    14
    Mattoon, Coles County. The decision deadline is
    15
    February 15, 2007.
    16
    You should know that it is the
    17
    Pollution Control Board and not me that will make
    18
    the final decision in this case. My purpose is
    19
    to conduct the hearing in a neutral and orderly
    20
    manner so that we have a clear record of the
    21
    proceedings. I will also assess the credibility
    22
    of any witnesses on the record at the end of the
    23
    hearing.
    24
    This hearing was noticed pursuant to
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    the Act and the Board's rules and will be
    2
    conducted pursuant to Sections 101.600 through
    3
    101.632 of the Board's procedural rules.
    4
    At this time I'd like to ask the
    5
    parties to make their appearances on the record.
    6
    MR. TOCK: My name is Jeff Tock. I'm
    7
    here on behalf of petitioner, Webb and Sons.
    8
    HEARING OFFICER WEBB: Thank you.
    9
    MR. RICHARDSON: Greg Richardson on
    10
    behalf the Illinois EPA.
    11
    HEARING OFFICER WEBB: Thank you very
    12
    much. Are there any preliminary matters to
    13
    discuss on the record?
    14
    MR. TOCK: That on the record I have
    15
    filed the motion to incorporate documents by
    16
    reference and seek approval and authorization,
    17
    permission from the hearing officer to file those
    18
    documents in this matter.
    19
    HEARING OFFICER WEBB: Well, your
    20
    motion is accepted. Are you moving to admit
    21
    these documents right now?
    22
    MR. TOCK: Well, I'm -- not to admit
    23
    them into evidence at this time --
    24
    HEARING OFFICER WEBB: Okay.
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    MR. TOCK: -- but under the 35 ILL
    2
    Adm. Code 101.306(a), I believe I need to have
    3
    your authorization to use these documents.
    4
    HEARING OFFICER WEBB: Okay. Yes,
    5
    yes. I will accept the motion to incorporate the
    6
    documents by reference.
    7
    MR. TOCK: Thank you.
    8
    HEARING OFFICER WEBB: Anything else
    9
    to discuss before we begin?
    10
    MR. TOCK: No.
    11
    HEARING OFFICER WEBB: Okay. Mr.
    12
    Tock, would you like to make an opening
    13
    statement?
    14
    MR. TOCK: Yes. If it would, please
    15
    you, the hearing officer, instead of please the
    16
    court, this is an appeal from a denial of the
    17
    Corrective Action Plan budget submitted by Webb
    18
    and Sons, Inc., but it only pertains to the
    19
    personnel costs that are in that budget which
    20
    were totally rejected.
    21
    The comments that we received back by
    22
    petitioner from the Environmental Protection
    23
    Agency requested that the hours of the various
    24
    personnel and the personnel costs be broken down
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    on an hourly basis to submit a much more detailed
    2
    as to what is going to be performed by each of
    3
    those personnel so that the Agency could perform
    4
    a further review.
    5
    It is the position of the petitioner
    6
    that it was unreasonable for the Agency to have
    7
    denied those personnel costs in that the costs
    8
    were provided in sufficient detail that they
    9
    should have been approved. And that is the
    10
    reason for this appeal is for the determination
    11
    by the Pollution Control Board that it was
    12
    improper to -- for the Agency to have denied
    13
    those personnel costs and to seek approval of
    14
    those costs.
    15
    HEARING OFFICER WEBB: Thank you. Mr.
    16
    Richardson, would you like to make an opening
    17
    statement?
    18
    MR. RICHARDSON: No, I have no opening
    19
    remarks.
    20
    HEARING OFFICER WEBB: Okay. Thank
    21
    you. Mr. Tock, you may present your case.
    22
    MR. TOCK: I would call as my first
    23
    witness Mr. Kevin Saylor.
    24
    HEARING OFFICER WEBB: Mr. Saylor,
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    will you have a seat up here and the court
    2
    reporter will swear you in.
    3
    (The witness was sworn in by the court reporter.)
    4
    DIRECT EXAMINATION
    5
    BY MR. TOCK:
    6
    Q. Will you state your name, please?
    7
    A. Kevin Saylor.
    8
    Q. By whom are you employed?
    9
    A. HDC Engineering.
    10
    Q. What is your position with HDC?
    11
    A. I am the environmental division
    12
    manager.
    13
    Q. What is your educational background
    14
    and training?
    15
    A. I have a bachelor's in civil
    16
    engineering from the University of Illinois. I
    17
    graduated in December of '93. Since then, I have
    18
    worked in the environmental field in a variety of
    19
    different positions including both private
    20
    consulting, leaking underground storage tank work
    21
    in other states and in Illinois. I also worked
    22
    as a reviewer for the Public Water Supply section
    23
    for the state of North Carolina.
    24
    Q. You are an engineer by training; is
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    that correct?
    2
    A. Engineer by training, and been
    3
    licensed since 2003.
    4
    Q. Is that license by the state of the
    5
    Illinois?
    6
    A. Yes.
    7
    Q. Is that normally referred to as a
    8
    professional engineer or PE?
    9
    A. Yes.
    10
    Q. In your employment with HDC
    11
    Engineering, have you prepared for submission to
    12
    the Illinois EPA proposals and budgets for
    13
    various leaking underground storage tank
    14
    projects?
    15
    A. Yes.
    16
    Q. How many such projects have you been
    17
    involved in?
    18
    A. Several -- several projects. I put
    19
    together a list just to get an idea, and I have
    20
    over 50 plans and budgets that I've been involved
    21
    with.
    22
    Q. Over what period of time?
    23
    A. Since 2001.
    24
    Q. So you're talking about over 50
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    separate budgets in support of those plans?
    2
    A. Uh-huh.
    3
    Q. What sort of plans were they? Site
    4
    investigation or remediation, Corrective Action,
    5
    what type of plans and budgets are we talking
    6
    about?
    7
    A. They ranged from site classification
    8
    to site investigation, when the regulations were
    9
    changed, Corrective Action delineation and
    10
    Corrective Action Plans.
    11
    Q. How -- And what was the total number
    12
    that you have prepared and submitted to Illinois
    13
    Environmental Protection Agency?
    14
    A. Over 50.
    15
    Q. Over 50? Of those plans, how many of
    16
    them were rejected in total as to personnel
    17
    costs, as in this case with Webb.
    18
    A. Just this one and a previous budget
    19
    for Webb for site investigation and a previous
    20
    budget for a site called Goodin, which is in
    21
    Paxton.
    22
    Q. Is it your testimony then that for the
    23
    other 51, that those three plans were rejected by
    24
    the Agency, the other 51 plans were -- there was
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    no request made by the Agency for a breakdown in
    2
    personnel hours?
    3
    A. No, there was not, not to the extent
    4
    that we have seen with Webb. In several
    5
    instances we did have personnel hours cut, but
    6
    they were not rejected in total except for Goodin
    7
    and Webb.
    8
    (The reporter marked Exhibit No. 1
    9
    for purposes of identification.)
    10
    Q. (By Mr. Tock) Mr. Saylor, I'm going
    11
    to show you what has been marked as Exhibit No. 1
    12
    with today's date and ask if you can identify
    13
    this document if you would, please?
    14
    A. Yes, this is the Form G, the personnel
    15
    forms, that were submitted with the Corrective
    16
    Action Plan budget.
    17
    Q. In this Webb application; is that
    18
    correct?
    19
    A. Yes.
    20
    Q. Did you prepare this budget?
    21
    A. I did, and my division did.
    22
    Q. Are you familiar with the breakdown of
    23
    the personnel in this Exhibit No. 1?
    24
    A. Yes.
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    Q. Is this a form that is provided by the
    2
    Agency, Environmental Protection Agency?
    3
    A. Yes.
    4
    Q. Starting with the first line, high
    5
    priority investigation and preliminary costs, the
    6
    first entry is for senior project manager; is
    7
    that correct?
    8
    A. Yes.
    9
    Q. And the hourly rate is $98 an hour; is
    10
    that correct?
    11
    A. Yes.
    12
    Q. Is that rate within the range of the
    13
    rates approved by the Illinois Environmental
    14
    Protection Agency for the time period July 1,
    15
    2006, to June 30, 2007?
    16
    A. Yes.
    17
    Q. Is there a standard rate sheet at this
    18
    time that has been adopted by the Agency for all
    19
    the different types of personnel that are listed
    20
    on Exhibit 1, Sheets G-1, 2 and 3?
    21
    A. Yes.
    22
    Q. Are the hourly rates for each one of
    23
    the personnel listed in this exhibit within the
    24
    range of the authorized rates approved by the
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    Agency?
    2
    A. Yes.
    3
    Q. The information that's contained on
    4
    Exhibit 1, this is for the personnel involved in
    5
    the preparation and implementation of the
    6
    Corrective Action Plan; is that correct?
    7
    A. Yes.
    8
    Q. Are these tasks similar in all
    9
    Corrective Action Plan projects that differ only
    10
    by perhaps the size or the extent, the volume of
    11
    one project compared to another?
    12
    A. Yes, they are similar. It does depend
    13
    on the extent of contamination, how many
    14
    agreements you may need, you know, how much soil
    15
    you're digging out.
    16
    Q. Is this what is typically called a
    17
    dig-and-haul operation?
    18
    A. Yes.
    19
    Q. And what is meant by a dig and haul?
    20
    A. Dig and haul means that primarily you
    21
    are removing the contamination by excavation and
    22
    hauling it off site to dispose of at a landfill.
    23
    Q. If you could just go through and look
    24
    at these sort of group summaries. You have high
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    priority investigation and preliminary costs,
    2
    what is included within that aspect of the
    3
    personnel costs on this exhibit?
    4
    A. The way that we have it broken out on
    5
    this exhibit is that everything under that
    6
    subheading was time used to get to the point
    7
    where the Corrective Action Plan is prepared and
    8
    submitted.
    9
    Q. This is all preliminary work to the
    10
    actual preparation of the Corrective Action Plan;
    11
    is that correct?
    12
    A. It includes preparation of the
    13
    Corrective Action Plan as well, and all work that
    14
    went up towards that point.
    15
    Q. That Corrective Action Plan has now
    16
    been approved by the Agency; is that correct?
    17
    A. Yes, it was approved with a slight
    18
    modification.
    19
    Q. The second part on Page G-2 it says,
    20
    CAP Implementation (dig and haul), what is --
    21
    what are the personnel costs included within that
    22
    category?
    23
    A. The personnel costs are broken out
    24
    into this subheading to -- to take into account
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    the time that will be required to do the actual
    2
    dig and haul, the consultant oversight of that,
    3
    you know, supervising excavation of backfill,
    4
    soil sampling, you know, the field work involved
    5
    in the excavation.
    6
    Q. The next category is Additional Well
    7
    Monitoring/Well Replacement/TACO sample
    8
    collection, what type of work is performed by the
    9
    personnel under that category?
    10
    A. This is another subdivision of the
    11
    field work. This was -- some of these hours also
    12
    got us to the point where we could do the Tiered
    13
    Approach to Corrective Action, Corrective Action
    14
    protected modeling, and also some of the wells
    15
    will be -- are planned to be destroyed through
    16
    excavation. So the costs in this section allow
    17
    for field work to sample monitoring wells,
    18
    replace monitoring wells, collect the required
    19
    TACO boring.
    20
    Q. The last category is CACR Report, what
    21
    does CACR stand for?
    22
    A. This is -- that is the Corrective
    23
    Action Completion Report.
    24
    Q. And are all the personnel and the
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    hours under that subheading related to the
    2
    preparation of that completion report?
    3
    A. Yes. The way that we presented this
    4
    is that CACR Report, the Highway Authority
    5
    Agreements reimbursements is that this is the
    6
    follow-up time after the excavation is taken
    7
    place after, you know, the replacement wells are
    8
    installed and resurveyed and resampled. This is
    9
    the time that we would be required to finish up
    10
    any agreements, Highway Authority Agreements,
    11
    environmental end use controls and to complete
    12
    the CACR and the reimbursement.
    13
    Q. Is there anything unique or unusual
    14
    about this Corrective Action Plan compared to
    15
    other Corrective Action Plans that you have done?
    16
    A. As far as the field work goes, no.
    17
    Q. How many other Corrective Action Plans
    18
    have you done?
    19
    A. Off the top of my head, around 10.
    20
    Under 10.
    21
    Q. Based upon your experience in
    22
    preparing those other 10 Corrective Action Plans,
    23
    were there -- modify that -- were there also
    24
    budgets that you prepared and submitted as part
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    of those Corrective Action Plans?
    2
    A. Yes.
    3
    Q. Were all of those approved?
    4
    A. No.
    5
    Q. What Corrective Action Plans were not
    6
    approved?
    7
    A. There were a couple of instances where
    8
    after we did the excavation, more work was
    9
    required by the EPA. And we had submitted a
    10
    technical plan and a budget to do that, however,
    11
    the entire budget was rejected at that point.
    12
    Q. So as far as Corrective Action Plans
    13
    that were actually approved, how many did you
    14
    prepare?
    15
    A. Around five, I'm thinking.
    16
    Q. Were the -- the -- I'll call them unit
    17
    costs, the costs of doing the dig and haul, the
    18
    high priority investigation, preliminary costs,
    19
    the various categories that we've just gone
    20
    through on Exhibit 1, were they substantially
    21
    similar for each one of those Corrective Action
    22
    Plans?
    23
    A. The other plans were -- were very
    24
    similar, yes.
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    Q. They're all dig-and-haul projects; is
    2
    that correct?
    3
    A. Uh-huh.
    4
    Q. And those were the previous plans that
    5
    were -- the budget was approved by EPA without
    6
    modification or with slight modification?
    7
    A. With modification, yes, but there were
    8
    personnel dollars approved.
    9
    Q. And have all of those plans now been
    10
    implemented and the Corrective Action performed?
    11
    A. Not all, but some have.
    12
    Q. Are they in progress though and have
    13
    not been completed?
    14
    A. They're being scheduled, yes.
    15
    Q. Do you have an opinion as to whether
    16
    or not the -- the breakdown in the budget for
    17
    personnel under different job categories and the
    18
    rates and the hours were the usual and customary
    19
    rates and hours for the performance of the work
    20
    necessary for the Corrective Action Plans based
    21
    upon the previous Corrective Action Plans that
    22
    you submitted and approved by the Agency?
    23
    MR. RICHARDSON: I'm going to object
    24
    to that question for an opinion. I don't think
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    there's adequate foundation and the relevance of
    2
    other projects, other plans really has no bearing
    3
    on this matter.
    4
    HEARING OFFICER WEBB: Overruled. You
    5
    can answer it. Do you need the question
    6
    repeated?
    7
    A. If I can paraphrase and make sure I
    8
    understand what is being asked, is this presented
    9
    similarly to other plans that we presented?
    10
    Q. (By Mr. Tock) Well, not just the
    11
    presentation, the form of it. But the content in
    12
    terms of the scope of the work, the hours of the
    13
    work and the rates being charged being within the
    14
    allowed limits of EPA?
    15
    A. Yes, it is similar.
    16
    Q. The high priority investigation,
    17
    preliminary costs for senior project manager,
    18
    professional engineer and engineer III, there is
    19
    a description of the work to be performed by each
    20
    one of those; is that correct?
    21
    A. Yes.
    22
    Q. Included in the -- in the work is two
    23
    LUST project appeals, can you explain what that
    24
    description is about?
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    A. Yes. There have been two appeals
    2
    related to the Webb project. One involves
    3
    reimbursement for the initial excavation. The
    4
    second involved a budget for Stage II of site
    5
    investigation. And the Webb project started with
    6
    tank removal. It was regulated under 731, so we
    7
    proceeded with tank removal and soil excavation.
    8
    And when we got to the point where you realized
    9
    that the soil excavation exceeded what we had
    10
    urgently anticipated, we contacted the EPA at
    11
    that point to discuss the situation with them.
    12
    Tom Henninger talked to us at that
    13
    point because there is not a project or a unit
    14
    assigned to the project yet. He suggested that,
    15
    you know, we stop excavation, we opt into the
    16
    current regulations so that we could operate
    17
    under approved budget, and go through the site
    18
    investigation and delineation. And so we did.
    19
    And then we submitted for reimbursement for those
    20
    initial costs, and $77,000 of that was not
    21
    reimbursed. So our first appeal involved
    22
    recouping those costs. And that was -- we were
    23
    successful in that. However, there was no
    24
    opportunity for us to regain any of HDC's
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    consulting personnel time for that appeal.
    2
    Q. When you say HDC's consulting, what
    3
    are you referring to? Is that engineering time?
    4
    Is it staff time within HDC? Is it attorney's
    5
    fees? What is that?
    6
    A. It is staff time within HDC. It is
    7
    not attorney's fees.
    8
    Q. So this was all time that was spent by
    9
    HDC Engineering to perform the work necessary to
    10
    pursue the appeal of the denial of the $77,000;
    11
    is that correct?
    12
    A. Yes, it involved, you know, document
    13
    preparation, phone calls, letters, meetings here
    14
    with various members of the EPA, the LUST action.
    15
    Q. And of that $77,000 that was in
    16
    dispute, how much of that was eventually approved
    17
    by the Agency?
    18
    A. I believe we got it all back. I
    19
    believe all of it was approved.
    20
    Q. So all of the time that you spent
    21
    resulted in you having the budget approved as you
    22
    originally submitted it; is that correct?
    23
    A. The reimbursement, yes.
    24
    Q. Yes, the reimbursement, excuse me.
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    What was the second Webb appeal about?
    2
    A. The second Webb appeal involved site
    3
    investigations. We initially went into site
    4
    investigation and submitted our first plan and
    5
    budget. That plan and budget was rejected in its
    6
    totality. The EPA stated that we were proposing
    7
    to do too many borings. The amount of borings we
    8
    proposed was -- was -- were too many. And so we
    9
    submitted the second Stage I plan and budget,
    10
    basically narrowed down the amount of borings and
    11
    investigation to what we had been told would be
    12
    accepted by the project manager. That was
    13
    approved, with some personnel cuts. Then we got
    14
    to Stage II. We completed Stage I and still
    15
    required additional delineation, so we submitted
    16
    a plan which incidentally included a lot of what
    17
    we initially proposed in the first one, and the
    18
    plan was approved this time, and most of the
    19
    budget, except zero personnel dollars.
    20
    And at that point we were required to
    21
    submit an exhaustive, you know, hourly by task,
    22
    by person breakout for their review. We provided
    23
    that breakout, and the project manager went
    24
    through and cut, I want to say, roughly half of
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    the personnel costs, even after the hourly
    2
    breakout was provided. So the second appeal was
    3
    -- was submitted to regain those personnel hours
    4
    that were cut from the Stage II site
    5
    investigation budget.
    6
    Q. How much of those cuts, personnel
    7
    costs were recovered?
    8
    A. Probably around 90%. I don't know the
    9
    number off the top of my head. I know that there
    10
    was some that was not approved. Maybe around a
    11
    thousand dollars.
    12
    Q. So when you have included in the
    13
    personnel costs on Exhibit 1, the two appeals,
    14
    which you have just testified to in explanation
    15
    of the work that you had to perform, that was
    16
    above and beyond the work that you would have
    17
    ordinarily done if you had gotten approval of
    18
    your budget in the first instance; is that
    19
    correct?
    20
    A. Yes.
    21
    Q. Then you were essentially approved in
    22
    those amounts that you had originally requested,
    23
    and you performed the work and were reimbursed;
    24
    is that correct?
    KEEFE REPORTING COMPANY
    22

    1
    A. Uh-huh.
    2
    Q. Now you had testified, I believe, that
    3
    the second Webb appeal was a result of you had
    4
    made application for a Stage II site
    5
    investigation; is that correct?
    6
    A. Yes.
    7
    Q. And the personnel costs on that was
    8
    broken down similar to what you have in Exhibit
    9
    1; is that correct?
    10
    A. Yes.
    11
    Q. If I may, I don't know how you want to
    12
    proceed. One of the documents that has been
    13
    included in the motion was that petition from the
    14
    second Webb appeal. If I could have the witness
    15
    review that at this time.
    16
    HEARING OFFICER WEBB: 05-183?
    17
    MR. TOCK: Yes.
    18
    HEARING OFFICER WEBB: Okay.
    19
    MR. TOCK: If we could mark that as
    20
    Exhibit 2.
    21
    (The reporter marked Exhibit No. 2
    22
    for purposes of identification.)
    23
    Q. (By Mr. Tock) Mr. Saylor, do you have
    24
    in front of you Exhibit 2?
    KEEFE REPORTING COMPANY
    23

    1
    A. Yes.
    2
    Q. If you would look at Pages G-1 and
    3
    G-2, the personnel costs for this Stage II site
    4
    investigation; is that correct?
    5
    A. Yes.
    6
    Q. And are those forms that appear there
    7
    the same as the forms that appear in Exhibit 1 of
    8
    this case?
    9
    A. Yes.
    10
    Q. And the breakdown is similar in
    11
    fashion in terms of the title of the personnel,
    12
    the job description, the number of hours, the
    13
    hourly rate and the total hours?
    14
    A. Yes.
    15
    Q. This is the personnel, these two
    16
    costs -- excuse me, these two, Pages G-1 and G-2,
    17
    these were rejected by the Agency; is that right?
    18
    A. Yes, rejected. And they required
    19
    further breakout than what was shown.
    20
    Q. Attached to that petition in Exhibit 2
    21
    there is a letter from Mr. Harry Chappel attached
    22
    at Exhibit C, do you find that?
    23
    A. Yes, I've got it.
    24
    MR. RICHARDSON: Excuse me. What
    KEEFE REPORTING COMPANY
    24

    1
    document are you referring to?
    2
    MR. TOCK: This is the 05-183
    3
    petition.
    4
    MR. RICHARDSON: But this letter, what
    5
    was the date, please?
    6
    MR. TOCK: The date of the letter is
    7
    February 8, 2005, attached as Exhibit C to that
    8
    petition.
    9
    MR. RICHARDSON: Thank you.
    10
    Q. (By Mr. Tock) This is an Attachment A
    11
    to Mr. Chappel's letter of February 8, 2005. Can
    12
    you turn to that page, Section 1, paragraph 2?
    13
    A. Yes.
    14
    Q. And can you read that, please?
    15
    A. $70,610 for costs that lack supporting
    16
    documentation, 35 ILL Adm. Code 732.606(gg).
    17
    Continue?
    18
    Q. No. If could you drop down to the
    19
    next paragraph --
    20
    A. Okay.
    21
    Q. -- it starts the Agency?
    22
    A. The Agency is requesting that proposed
    23
    personnel costs be further broken down to provide
    24
    sufficient justification for the proposed
    KEEFE REPORTING COMPANY
    25

    1
    personnel costs. The Agency is requesting
    2
    information regarding the task performed by each
    3
    person and the amount of time for each task
    4
    performed. The Agency is requesting
    5
    justification for the estimated amount of time to
    6
    complete each task.
    7
    Q. Did you provide that information to
    8
    the Agency?
    9
    A. Yes, we did.
    10
    Q. Was that done by your letter dated,
    11
    excuse me, February 25, that's Exhibit E to the
    12
    petition, directed to Mr. Malcom?
    13
    A. Yes.
    14
    Q. And attached to that letter is then
    15
    the hourly breakdown and response to Mr.
    16
    Chappel's letter; is that correct?
    17
    A. Yes.
    18
    Q. And then even that breakdown was then
    19
    reviewed by the Agency and only a portion of it
    20
    was approved, correct?
    21
    A. Correct.
    22
    Q. And then did you subsequently appeal
    23
    the rejection by the Agency of the hourly
    24
    breakdown?
    KEEFE REPORTING COMPANY
    26

    1
    A. Yes.
    2
    Q. And you were able to recover most of
    3
    what had been cut; is that right?
    4
    A. That is correct. I believe the total
    5
    was $7,906 was denied, and on appeal the
    6
    settlement was for $6,936.
    7
    Q. And on your prior testimony, you had
    8
    said that out of the 54 budgets that you had
    9
    prepared and submitted, the Webb -- the first
    10
    Webb appeal was one of only three where the
    11
    personnel costs had been requested to be broken
    12
    down on an hourly basis, as you did in your
    13
    letter of, what was it, February -- February 15;
    14
    correct?
    15
    A. Yes, it was the site investigation
    16
    Stage II, which is what that appeal was
    17
    regarding. This Corrective Action Plan budget
    18
    and a project called Goodin, it's Incident No.
    19
    930181, that is also in Harry Chappel's unit.
    20
    Q. Okay. Now in this matter that we're
    21
    here on today --
    22
    (The reporter marked Exhibit No. 3
    23
    for purposes of identification.)
    24
    Q. (By Mr. Tock) -- I'm showing you what
    KEEFE REPORTING COMPANY
    27

    1
    has been marked as Exhibit 3.
    2
    HEARING OFFICER WEBB: Are we back to
    3
    the record now, or is that in the Administrative
    4
    Record, Exhibit 3?
    5
    MR. TOCK: Exhibit 3 on the record.
    6
    HEARING OFFICER WEBB: Okay. Is in
    7
    the Administrative Record or in your motion to --
    8
    MR. TOCK: Excuse me. It -- this was
    9
    part of the Administrative Record that was
    10
    received from the Agency.
    11
    HEARING OFFICER WEBB: Okay.
    12
    MR. TOCK: Page 001 of the
    13
    Administrative Record.
    14
    HEARING OFFICER WEBB: Okay. Thank
    15
    you.
    16
    Q. (By Mr. Tock) Can you identify this
    17
    Exhibit 3, please?
    18
    A. Yes. It is the approval letter for
    19
    our Corrective Action Plan and budget for the
    20
    Corrective Action Plan involving this appeal.
    21
    Q. And in accordance with this letter,
    22
    was the Corrective Action Plan approved?
    23
    A. Yes, it was, with modification.
    24
    Q. Were those modifications acceptable to
    KEEFE REPORTING COMPANY
    28

    1
    you?
    2
    A. Yes.
    3
    Q. What about the budget? The budget was
    4
    not approved, was it?
    5
    A. Portions of the budget were approved.
    6
    Mainly most of the investigation costs, it looks
    7
    like all of the analysis costs, the equipment
    8
    costs were approved, and field purchases and
    9
    other costs had slight modification approximately
    10
    $600. Zero personnel costs were approved.
    11
    Q. On page 5 of this exhibit under
    12
    Section 2, paragraph 3, would you read that
    13
    paragraph, please?
    14
    A. $103,360 for personnel costs deemed
    15
    unreasonable. Such costs are ineligible for
    16
    payment from the Fund pursuant to 35 ILL Adm.
    17
    Code 732.606(hh). The Agency is requesting an
    18
    hourly breakdown of each task performed by each
    19
    job title in order to make a more thorough review
    20
    of the proposed personnel costs.
    21
    Q. Did you interpret this request for an
    22
    hourly breakdown to request the same information
    23
    as in the first Webb appeal?
    24
    A. I'm sorry. Could you repeat the
    KEEFE REPORTING COMPANY
    29

    1
    question?
    2
    Q. Did you interpret this request in this
    3
    paragraph 3 for an hourly breakdown to be a
    4
    request to you to submit the same sort of hourly
    5
    breakdown that you did in the first Webb appeal?
    6
    A. Yes.
    7
    Q. Did you have any concern that even
    8
    after you had provided that hourly breakdown,
    9
    that it would still be rejected as in the first
    10
    Webb appeal?
    11
    A. Yes.
    12
    Q. Is that the reason why you recommended
    13
    taking the appeal at this time of the rejection
    14
    as shown in Exhibit 3?
    15
    A. Yes, that and because, you know, for
    16
    projects that don't appear to be in Chappel's
    17
    unit, we're not asked to do that additional
    18
    breakout.
    19
    Q. What do you mean by Chappel unit?
    20
    A. Well, meaning, that the two -- the two
    21
    projects that we've been requested to provide an
    22
    additional personnel breakout, were both under
    23
    Harry Chappel's unit.
    24
    Q. What is -- what do you mean by a unit?
    KEEFE REPORTING COMPANY
    30

    1
    A. Well, from what I understand, it's a
    2
    managerial hierarchy of the EPA LUST section,
    3
    that there --
    4
    Q. How many units are there in the EPA?
    5
    A. Five or six, I believe.
    6
    Q. And do you have any request from any
    7
    unit other than Mr. Chappel's unit to provide
    8
    hourly breakdowns?
    9
    MR. RICHARDSON: I'm going to object.
    10
    I don't know what the relevance is to this matter
    11
    as the other units and the work they do.
    12
    HEARING OFFICER WEBB: Overruled.
    13
    Q. (By Mr. Tock) You can go ahead an
    14
    answer.
    15
    HEARING OFFICER WEBB: You can answer.
    16
    A. Can I have the question again, sorry?
    17
    Q. (By Mr. Tock) You said there are four
    18
    or five units within the LUST section of the EPA;
    19
    correct?
    20
    A. Yes.
    21
    Q. And do all these sections to your
    22
    knowledge review leaking underground storage tank
    23
    sites for purposes of site -- not site -- the
    24
    extent of the contamination of the site, the site
    KEEFE REPORTING COMPANY
    31

    1
    delineation, the Corrective Action that needs to
    2
    be done of those sites?
    3
    A. Yes. It's my understanding that, you
    4
    know, the units -- all of the units review
    5
    leaking underground storage tank technical plans
    6
    and budgets.
    7
    Q. Of the 54 plans and budgets that you
    8
    have submitted, how many of those have been to
    9
    units other than Mr. Chappel's?
    10
    A. All but 14.
    11
    Q. And so 14 from 50, that's roughly
    12
    around 40?
    13
    A. Uh-huh.
    14
    Q. And of those 40, did any of those
    15
    units request a breakdown of your personnel cost
    16
    on an hourly basis?
    17
    A. No.
    18
    MR. TOCK: I don't have any further
    19
    questions. Thank you.
    20
    HEARING OFFICER WEBB: Okay. Mr.
    21
    Richardson?
    22
    CROSS-EXAMINATION
    23
    BY MR. RICHARDSON:
    24
    Q. Mr. Saylor, in looking, I think it's
    KEEFE REPORTING COMPANY
    32

    1
    Petitioner's Exhibit No. 1, it's also pages 54
    2
    through 56 of the Agency record, let's look at
    3
    senior project manager. When I look at the task
    4
    to be performed for the above hours, am I correct
    5
    that there is no hourly breakdown of how many
    6
    hours are allocated to each task being performed?
    7
    A. There is an hourly breakdown for each
    8
    -- each personnel title.
    9
    Q. Yes. But if I want to know how many
    10
    hours the senior project manager spent on
    11
    Corrective Action Planning, I could not divine
    12
    that answer from page 54, could I?
    13
    A. No.
    14
    Q. Now we talked about a couple of
    15
    previous appeals. The first Webb and Sons appeal
    16
    which, I think, you mentioned was for
    17
    approximately $77,000, was that -- was a petition
    18
    filed with the Pollution Control Board in that
    19
    appeal?
    20
    A. Yes.
    21
    Q. Was that matter settled before a Board
    22
    decision was made?
    23
    A. I believe so.
    24
    Q. So it was a settlement with the Agency
    KEEFE REPORTING COMPANY
    33

    1
    versus going to a hearing and obtaining a Board
    2
    order in the matter?
    3
    A. I believe so.
    4
    Q. And now I think you have Petitioner's
    5
    Exhibit No. 2 in front of you still, is that what
    6
    we've been calling the second Webb and Sons
    7
    appeal?
    8
    A. Yes.
    9
    Q. And did that go to a Board hearing and
    10
    Board decision, or is that settled prior to a
    11
    hearing and a Board order?
    12
    A. That was settled prior to hearing.
    13
    Q. Okay. Now in the other matters you
    14
    have dealt with, the various submissions you've
    15
    made to the Agency, have you ever included an
    16
    item, such as you do for the senior project
    17
    manager here, to LUST project appeals?
    18
    A. No, we have not had to.
    19
    Q. But I'm asking you, have you ever done
    20
    that?
    21
    A. No.
    22
    Q. And your answer would be no?
    23
    A. No.
    24
    Q. Now in talking about the $77,000
    KEEFE REPORTING COMPANY
    34

    1
    appeal, I think that's the first Webb and Sons
    2
    appeal, you said there was no opportunity to
    3
    recou those costs -- or recoup those costs?
    4
    A. There was not an opportunity to recoup
    5
    our personnel costs that went in.
    6
    Q. Now, were you involved in the
    7
    settlement negotiations concerning that matter?
    8
    A. That was handled by our attorney at
    9
    the time.
    10
    Q. Okay. Did you ever bring that to
    11
    anyone's attention that you -- your consulting
    12
    firm would like to be recouped for the costs that
    13
    went into that first appeal?
    14
    A. In this budget we did.
    15
    Q. This budget, being the appeal we're
    16
    here about today?
    17
    A. Uh-huh.
    18
    Q. But you're saying when you were
    19
    discussing the settlement of the first Webb and
    20
    Sons appeal, you did not raise that issue with
    21
    anyone?
    22
    A. No.
    23
    Q. Now, in the second Webb and Sons
    24
    appeal, did you seek the cost of the -- the cost
    KEEFE REPORTING COMPANY
    35

    1
    of the time allotted to the first project appeal
    2
    in the second appeal?
    3
    A. No.
    4
    Q. Why didn't you seek that then instead
    5
    of waiting until today, which, I guess, we can
    6
    call the third project appeal?
    7
    A. Because the appeal for site
    8
    investigation was just for site investigation.
    9
    The site investigation costs that were denied,
    10
    that was the purpose of that appeal.
    11
    Q. And that was which appeal, the second
    12
    appeal?
    13
    A. Yes.
    14
    Q. But there is personnel time in that
    15
    appeal, is there not?
    16
    A. Yes.
    17
    Q. And we're talking about personnel time
    18
    here?
    19
    A. Yes.
    20
    Q. So what -- what prevented you from
    21
    including the first appeal cost in the second
    22
    one?
    23
    A. Based on our experience with site
    24
    investigation budgets and delineation budgets, if
    KEEFE REPORTING COMPANY
    36

    1
    you put in personnel costs for anything that is
    2
    not related to doing, for example, five borings
    3
    and four wells in a status report, it's rejected.
    4
    Q. But you don't -- we don't know what
    5
    would have happened here because you never
    6
    submitted a second appeal?
    7
    A. Well, I imagine it would --
    8
    Q. Well, I mean, do you know -- you don't
    9
    know what would have happened --
    10
    A. No.
    11
    Q. -- you didn't include it? But you're
    12
    aware of the cost from the first appeal when you
    13
    made the second submission for the second appeal?
    14
    A. Uh-huh.
    15
    Q. And have you ever included project
    16
    appeal costs in any of your other submission that
    17
    you've ever dealt with?
    18
    A. No.
    19
    Q. This is your first one?
    20
    A. (Nods head.)
    21
    MR. RICHARDSON: I have no further
    22
    questions.
    23
    HEARING OFFICER WEBB: Okay. Any
    24
    redirect?
    KEEFE REPORTING COMPANY
    37

    1
    MR. TOCK: Yes, if I can just find the
    2
    document I'm looking for. If I can take a few
    3
    minutes to see what I'm looking for.
    4
    HEARING OFFICER WEBB: Sure.
    5
    MR. TOCK: I'm having a little
    6
    difficulty locating the exhibit I'm looking for.
    7
    If we could take a break so I can find it.
    8
    HEARING OFFICER WEBB: Yeah, we can
    9
    take five.
    10
    (A short break was taken.)
    11
    MR. TOCK: No further questions.
    12
    HEARING OFFICER WEBB: No further
    13
    questions. Okay. So nobody has any further
    14
    questions for this witness?
    15
    MR. RICHARDSON: No.
    16
    HEARING OFFICER WEBB: Okay. Thank
    17
    you very much, Mr. Saylor.
    18
    THE WITNESS: Thank you.
    19
    HEARING OFFICER WEBB: Mr. Tock, you
    20
    may call your next witness.
    21
    MR. TOCK: I call Mr. Malcom, please.
    22
    HEARING OFFICER WEBB: Would the court
    23
    reporter please swear the witness.
    24
    (The witness was sworn in by the court reporter.)
    KEEFE REPORTING COMPANY
    38

    1
    DIRECT EXAMINATION
    2
    BY MR. TOCK:
    3
    Q. Could you state your name, please?
    4
    A. James Malcom.
    5
    Q. You are employed by the Illinois EPA;
    6
    is that correct?
    7
    A. Yes, it is.
    8
    Q. How long have you been employed by the
    9
    Agency?
    10
    A. Four eight years.
    11
    Q. What is your current position with the
    12
    EPA?
    13
    A. I'm a project manager in the LUST
    14
    section.
    15
    Q. Are you a senior project manager or
    16
    any particular designation of the project
    17
    manager?
    18
    A. I'm a Stage III.
    19
    Q. Who is the unit manager?
    20
    A. It's Harry Chappel.
    21
    Q. How long have you been a project
    22
    manager?
    23
    A. For eight --
    24
    Q. Eight years?
    KEEFE REPORTING COMPANY
    39

    1
    A. -- years, yes.
    2
    Q. Have all eight years been in Mr.
    3
    Chappel's unit?
    4
    A. No, huh-uh.
    5
    Q. How long have you been with Mr.
    6
    Chappel's unit?
    7
    A. For four years.
    8
    Q. What do you do as a project manager in
    9
    a LUST unit?
    10
    A. You -- you review technical plans and
    11
    budgets.
    12
    Q. You reviewed the plans and budgets for
    13
    the Corrective Action Plan for Webb that we're
    14
    here for today?
    15
    A. Sure.
    16
    Q. Didn't you?
    17
    A. Uh-huh.
    18
    MR. TOCK: Exhibit 4, please.
    19
    (The reporter marked Exhibit No. 4
    20
    for purposes of identification.)
    21
    Q. (By Mr. Tock) Mr. Malcom, you have in
    22
    front of you Exhibit No. 4, and I ask if you can
    23
    identify this as your LUST technical review notes
    24
    for this Webb submittal?
    KEEFE REPORTING COMPANY
    40

    1
    A. Correct, yes.
    2
    Q. So this was a review by you of the
    3
    Corrective Action Plan and budget submitted by
    4
    the petitioner, Webb and Sons; right?
    5
    A. Correct.
    6
    Q. The bottom of the first page you have
    7
    some technical review; is that correct?
    8
    A. Yes, uh-huh.
    9
    Q. Then on the second page it says
    10
    approve with modifications, plan and budget;
    11
    correct?
    12
    A. Sure, uh-huh.
    13
    Q. When you did your review, you reviewed
    14
    not only the technical plans but also the budget;
    15
    is that correct?
    16
    A. Yes.
    17
    Q. And based upon your review of the
    18
    budget, you felt that the budget, as submitted,
    19
    should be approved; is that correct?
    20
    A. No, it's not.
    21
    Q. Where am I wrong in that statement?
    22
    A. That the overall hours were
    23
    excessively high and it was a red flag to stop
    24
    and get some more input on it from Mr. Chappel.
    KEEFE REPORTING COMPANY
    41

    1
    Q. Why does your LUST technical review
    2
    notes, Exhibit 4, not say that?
    3
    A. It's a simple oversight.
    4
    Q. Then why does it say that you
    5
    recommended approving with modifications, plan
    6
    and budget?
    7
    A. It should have said plan only, but I
    8
    failed to show that the budget was, in fact,
    9
    denied.
    10
    Q. Some place in front of you there, Mr.
    11
    Malcom, should be the Exhibit 3, the December 12,
    12
    2006, letter from the Agency to Doris Webb, did
    13
    you find that?
    14
    A. Yes.
    15
    Q. Page 5 of that document contains a
    16
    Section 2?
    17
    A. Uh-huh.
    18
    Q. Did you prepare that Section 2?
    19
    A. Yes.
    20
    Q. When did you prepare that Section 2?
    21
    A. The same day as the entire letter
    22
    itself.
    23
    Q. You prepared the letter dated
    24
    September 12 for Mr. Chappel's signature; is that
    KEEFE REPORTING COMPANY
    42

    1
    right?
    2
    A. Uh-huh.
    3
    Q. What changed between your LUST
    4
    technical review notes on August 30, which is
    5
    Exhibit 4, and the preparation of the letter
    6
    dated September 12th to cause you to provide all
    7
    of this information under both Section 1 and
    8
    Section 2 that does not appear in your LUST
    9
    technical review notes, Exhibit 4?
    10
    A. Harry Chappel took the budget itself
    11
    and reviewed it with the other supervisors and
    12
    they came up with the final decision, and that
    13
    must have taken 12 days here.
    14
    Q. You said he reviewed it with other
    15
    supervisors?
    16
    A. Right. Which is Tom Henninger, Doug
    17
    Clay, Cliff Wheeler.
    18
    Q. Is there any record of that meeting?
    19
    A. Harry might have something, but as far
    20
    as me, no.
    21
    Q. Please look at Exhibit 1 in front of
    22
    you, the personnel costs.
    23
    A. Okay.
    24
    Q. I would like to go through each one of
    KEEFE REPORTING COMPANY
    43

    1
    these personnel and start with under high
    2
    priority investigation, senior project manager.
    3
    Do you have an opinion as to what number of hours
    4
    should have been allowed for this Corrective
    5
    Action Plan for that position?
    6
    A. Not offhand. But compared to other
    7
    sites it -- it was excessive.
    8
    Q. You said compared to other sites, how
    9
    do you do your review of a budget to determine
    10
    whether or not it's an appropriate budgeted
    11
    amount and not too much?
    12
    A. The -- the rates are set and the
    13
    hours, you get a feel for what's normal or what
    14
    you see on, you know, I've done lots and you can
    15
    get a feel for what's the norm.
    16
    Q. What do you feel the norm should have
    17
    been on this project?
    18
    A. For the senior project manager and
    19
    those job tasks for project review and oversight
    20
    and supervision and development and
    21
    subcontractors' quotes and planning for a dig and
    22
    haul, probably 60.
    23
    Q. 60 hours?
    24
    A. Right. And that's the average. And
    KEEFE REPORTING COMPANY
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    1
    I've never seen 453. I mean, that just seemed
    2
    really excessive.
    3
    Q. Have you ever had an application where
    4
    the petitioner was trying to recover for appeal
    5
    costs on prior appeals in that same LUST case?
    6
    A. Actually said as a task, no.
    7
    Q. Next entry is for professional
    8
    engineer, 84 hours at $87 an hour, do you feel
    9
    the 84 hours is an excessive amount?
    10
    A. Based on experience, sure.
    11
    Q. What do you feel would be an average
    12
    number for that category?
    13
    A. For a CAP and budget and meetings, 20.
    14
    Q. Next category engineer III, 68 hours,
    15
    do you feel that was excessive?
    16
    A. Sure, for that with the planning and
    17
    the TACO equations, site assessment, probably 35.
    18
    Q. Those three personnel were the only
    19
    ones in this Exhibit 1?
    20
    A. Uh-huh.
    21
    Q. That requested any sort of a payment
    22
    for LUST appeal --
    23
    A. Sure.
    24
    Q. -- is that correct?
    KEEFE REPORTING COMPANY
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    1
    A. Uh-huh.
    2
    Q. So the next personnel category, senior
    3
    scientist?
    4
    A. Sure.
    5
    Q. In that description of the work to be
    6
    performed, there is no reference to an appeal is
    7
    there?
    8
    A. Right.
    9
    Q. The number of hours requested is 150,
    10
    is that what's in the normal range?
    11
    A. It's a little excessive, but not
    12
    unusual.
    13
    Q. Did you find this to be an acceptable
    14
    number of hours at the time that you did your
    15
    review in August?
    16
    A. It's not acceptable, but it may have
    17
    been okay as far as -- as far as me, but Harry
    18
    usually looks through them if, you know,
    19
    something catches his eye.
    20
    Q. The rest of the personnel described
    21
    and the hours, the rates and the total dollar
    22
    amounts that are in this Exhibit 1 --
    23
    A. Uh-huh.
    24
    Q. -- is there any one of them that you
    KEEFE REPORTING COMPANY
    46

    1
    found to be acceptable or rejectable to you?
    2
    A. On a G-3, the scientist III, for the
    3
    16 hours would seem excessive for filing of the
    4
    NFR and closing up seven wells.
    5
    Q. What, in your opinion, would be an
    6
    average number for that task?
    7
    A. The -- the wells we -- we reimburse
    8
    $10 a foot. It's not a personnel thing. And
    9
    filing of the NFR surely isn't 16 hours.
    10
    Q. Do you have a number that you would
    11
    have approved on that scientist III for the
    12
    number of hours?
    13
    A. For filing of the NFR, I'd seen as low
    14
    as an hour and as high as two hours.
    15
    Q. Would you have approved two hours?
    16
    A. Sure. And other than those, the hours
    17
    were acceptable so it was excessive but not
    18
    totally out of the realm of stuff I've seen and
    19
    approved.
    20
    Q. Who are unit managers you worked for
    21
    before working for Mr. Chappel?
    22
    A. Kendra Brokamp. And Brian Bauer.
    23
    Q. Are both of those people still with
    24
    the Agency?
    KEEFE REPORTING COMPANY
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    1
    A. Kendra is not. Brian is.
    2
    Q. In your experience with Kendra Brokamp
    3
    and Brian Bauer, do you have any knowledge of any
    4
    petition that was rejected for personnel costs
    5
    and the request made for a submission by the
    6
    petitioner for the hourly breakdown of each
    7
    person under the personnel cost category?
    8
    MR. RICHARDSON: I'm going to object
    9
    to that. I do not see the relevance in past
    10
    supervisors here at the Agency.
    11
    HEARING OFFICER WEBB: Are you asking
    12
    about personnel costs?
    13
    MR. TOCK: Yes.
    14
    HEARING OFFICER WEBB: I'm going to
    15
    overrule it. You can answer.
    16
    A. Kendra, sure, absolutely. Brian,
    17
    sure. It was not unheard of.
    18
    Q. (By Mr. Tock) You've just gone
    19
    through Exhibit No. 1 and you've identified the
    20
    first three personnel categories on page 1, the
    21
    senior project manager, the professional engineer
    22
    and engineer III where you felt that the times
    23
    were excessive. If an hourly breakdown of the
    24
    various tasks were provided to you for those
    KEEFE REPORTING COMPANY
    48

    1
    three personnel, would that assist you in being
    2
    able to determine what's an appropriate or
    3
    acceptable number of hours would be for each one
    4
    of those personnel?
    5
    A. Sure. And it would show, you know,
    6
    for future job descriptions, we know the time it
    7
    takes for, you know, to prepare a CAP or, you
    8
    know, a budget because I don't know for sure
    9
    except on what's submitted and I've seen and
    10
    what's normally submitted. And I've done
    11
    hundreds.
    12
    Q. Your review of a particular budget,
    13
    such as the Webb budget, is based upon your
    14
    experience and training; is that correct?
    15
    A. Absolutely.
    16
    Q. And you have said that for a senior
    17
    project manager for a Corrective Action Plan you
    18
    felt that 60 hours was an average number for that
    19
    position; correct?
    20
    A. For all of the jobs that are written,
    21
    sure.
    22
    Q. If Webb were to respond -- excuse
    23
    me -- to the request of the Agency as stated in
    24
    Exhibit 3 to provide an hourly breakdown --
    KEEFE REPORTING COMPANY
    49

    1
    A. Uh-huh.
    2
    Q. -- and they did so and showed 80 hours
    3
    for the work that's described --
    4
    A. Uh-huh.
    5
    Q. -- that would not have been acceptable
    6
    to you, would it?
    7
    A. If the hours, you know, for each task
    8
    shown were to say 80, I mean, I'm not sure if
    9
    you're saying hourly breakdown or as it's shown.
    10
    Q. Well, you have said that for
    11
    Corrective Action Plan --
    12
    A. Uh-huh.
    13
    Q. -- you feel that 60 is an average
    14
    number of hours --
    15
    A. Sure.
    16
    Q. -- that you'd approve?
    17
    A. Uh-huh, yes.
    18
    Q. What would --
    19
    A. If it came as 80, I would have
    20
    accepted it because it's in that average as far
    21
    as, you know, what is usually seen.
    22
    Q. You previously said that the average
    23
    was 60. Is there a range that you approve rather
    24
    than just looking at a single point of 60 hours?
    KEEFE REPORTING COMPANY
    50

    1
    A. A range, sure. I mean, if it's not
    2
    really excessive and I haven't seen it in a
    3
    budget and it's not a flag, then sure. And it's
    4
    usually approved minus Harry's scan.
    5
    Q. What is the range that you approve for
    6
    this type of a Corrective Action Plan?
    7
    A. For project review and oversight and
    8
    supervision and what's stated, if it came in from
    9
    60 to 100, I would have accepted it, but --
    10
    Q. What's the acceptable -- Excuse me. I
    11
    didn't want to interrupt you.
    12
    A. That's fine. Go ahead.
    13
    Q. What's the acceptable range for a
    14
    professional engineer where you said the average
    15
    was 20, what's the acceptable range to you?
    16
    A. For that -- those tasks, if it would
    17
    have came in from 20 to 40 hours or so, I
    18
    probably wouldn't have had a problem.
    19
    Q. What about the engineer III, what's an
    20
    acceptable range?
    21
    A. If it would have exceeded -- or if it
    22
    would have been under 50, I'm sure I would have
    23
    accepted it.
    24
    Q. When you do a --
    KEEFE REPORTING COMPANY
    51

    1
    A. In a -- these three, the appeals were,
    2
    you know, also a reason for the -- the hourly,
    3
    you know, breakdown as well.
    4
    Q. Can you tell me why all personnel
    5
    costs as proposed in this budget were stricken
    6
    when your testimony today is that you found only
    7
    four of the personnel categories to be
    8
    unacceptable?
    9
    A. Harry Chappel took it to the other
    10
    supervisors, and they decided to ask for a
    11
    thorough breakdown of all costs.
    12
    Q. Of the Corrective Action Plans and
    13
    budgets that you reviewed --
    14
    A. Uh-huh.
    15
    Q. -- and budgets specifically --
    16
    A. Uh-huh.
    17
    Q. -- can you give me a percentage of how
    18
    many of those budgets you or your unit --
    19
    A. Uh-huh.
    20
    Q. -- makes a request or a breakdown on
    21
    an hourly basis?
    22
    A. As far as myself, probably 10%. It's
    23
    usually budget that have lots of hours and are
    24
    excessive, which this is.
    KEEFE REPORTING COMPANY
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    1
    Q. Well, in -- in this budget, if it were
    2
    up to you, I understand you got a unit manager,
    3
    but if you are reviewing this budget --
    4
    A. Uh-huh.
    5
    Q. -- you've identified four categories
    6
    of personnel that were excessive --
    7
    A. Uh-huh.
    8
    Q. -- why not approve all of the other
    9
    categories and either reduce the hours for these
    10
    four individuals who are asked for an hourly
    11
    breakdown on just the four?
    12
    A. Because I wasn't sure the hours
    13
    associated with the appeals.
    14
    Q. Let me reask my question. I
    15
    understand that you're uncertain about how many
    16
    hours go with the appeals.
    17
    A. Uh-huh.
    18
    Q. So those -- there were three personnel
    19
    involved with appeals?
    20
    A. Uh-huh, yes.
    21
    Q. There were about 16 other line item
    22
    personnel costs that you found to be acceptable?
    23
    A. Sure, uh-huh.
    24
    Q. Why not approve those 16 and ask for
    KEEFE REPORTING COMPANY
    53

    1
    additional breakdown in terms of hours for the
    2
    four personnel that you found objectionable?
    3
    A. It was Harry Chappel's and the other
    4
    supervisors' decision.
    5
    Q. If it had been your decision, which
    6
    way would you have done it?
    7
    A. I would have denied the -- the four
    8
    and approved the -- the others. And that would
    9
    have went to Harry for signature and he would
    10
    have saw that.
    11
    Q. And after that, he's your head of the
    12
    unit and it's his decision; right?
    13
    A. You got it.
    14
    Q. My next exhibit is from the documents
    15
    that were submitted pursuant to the motion to
    16
    incorporate. This is the Administrative Record
    17
    and PCB 05-183. It's certain excerpts from the
    18
    record.
    19
    (The reporter marked Exhibit No. 5
    20
    for purposes of identification.)
    21
    MR. TOCK: I guess I got my copy of
    22
    that. I've been getting them from the hearing
    23
    officer. I just gave you my copy. If I can get
    24
    a copy from one of your records.
    KEEFE REPORTING COMPANY
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    1
    HEARING OFFICER WEBB: Oh.
    2
    MR. TOCK: They're all supposed to be
    3
    the same.
    4
    Q. (By Mr. Tock) Mr. Malcom, before you
    5
    is Exhibit 5, which is an excerpt from the
    6
    Administrative Record in Pollution Control Board
    7
    Case 05-183. If you turn to the second page of
    8
    the exhibit, the number at the bottom says 23?
    9
    A. Uh-huh.
    10
    Q. LUST technical review notes reviewed
    11
    by James R. Malcom, III, that's you correct?
    12
    A. Uh-huh.
    13
    Q. Do you recall reviewing this Webb
    14
    proposal in 2005?
    15
    A. Vaguely.
    16
    Q. Down at the bottom of the page 23 just
    17
    above the date it says PM recommendation/comment,
    18
    what does PM stand for?
    19
    A. Project manager.
    20
    Q. And that's you?
    21
    A. Correct, yes.
    22
    Q. Approved plan, modified budget?
    23
    A. Uh-huh.
    24
    Q. Then there was the letter from Mr.
    KEEFE REPORTING COMPANY
    55

    1
    Chappel that appears in, I think, that's Exhibit
    2
    2, the Webb petition, that requested the
    3
    breakdown for number of hours for each personnel
    4
    and then you reviewed the response that's
    5
    attached. I don't need you to look at that
    6
    letter. But you reviewed the response that's the
    7
    letter from HDC Engineering dated February 15,
    8
    2005, that starts at page 3 of this Exhibit 5?
    9
    A. Sure.
    10
    Q. So that's where HDC provided the
    11
    breakdown for the number of hours that appear in
    12
    Attachment A and Attachment B?
    13
    A. Correct.
    14
    Q. Is that correct?
    15
    A. Uh-huh.
    16
    Q. On Attachment B of this exhibit, which
    17
    is number 15 at the bottom --
    18
    A. Okay.
    19
    Q. -- there are a number of handwritten
    20
    notes?
    21
    A. Sure.
    22
    Q. Are those your notes?
    23
    A. No, these are Harry's notes in the
    24
    unit manager's meeting.
    KEEFE REPORTING COMPANY
    56

    1
    Q. So although the letter of HDC is
    2
    addressed to you, you did not do the review of
    3
    the hourly breakdown that was submitted; is that
    4
    correct?
    5
    A. No, huh-uh. That goes to the
    6
    supervisor and Harry took it to the supervisor's
    7
    meeting and they look through it and make a
    8
    decision to stay consistent.
    9
    Q. Okay. On the bottom page number 8,
    10
    which is part of this group exhibit, the top of
    11
    that says LUST technical review notes?
    12
    A. Page 8?
    13
    Q. Number 8 at the bottom of this Exhibit
    14
    5.
    15
    HEARING OFFICER WEBB: I think they're
    16
    out of order.
    17
    Q. (By Mr. Tock) The pages are out of
    18
    order. But if you look for the bottom numbers --
    19
    A. Okay.
    20
    Q. -- LUST technical review notes
    21
    reviewed by James R. Malcom.
    22
    A. Uh-huh.
    23
    Q. You actually didn't make that review,
    24
    did you?
    KEEFE REPORTING COMPANY
    57

    1
    A. Of January 25th?
    2
    Q. That's correct.
    3
    A. As far as what was this --
    4
    Q. This is a review of the HDC letter?
    5
    A. I did not, no, but it was reviewed and
    6
    the decision came and I put forth a letter and
    7
    Harry signed it.
    8
    Q. So when you say the decision was made,
    9
    that means Mr. Chappel made the decision, you
    10
    wrote the letter?
    11
    A. He and the other supervisors.
    12
    Q. Are all projects reviewed by all
    13
    supervisors?
    14
    A. Just budgets that are excessive. And
    15
    in order to stay consistent throughout the
    16
    section, all supervisors will look through it,
    17
    and, yeah.
    18
    MR. TOCK: May I have a moment,
    19
    please?
    20
    HEARING OFFICER WEBB: (Nods head.)
    21
    Q. (By Mr. Tock) Mr. Malcom, do you know
    22
    if any records are kept as to what percentage of
    23
    budgets that are submitted to the Agency are
    24
    deemed to be excessive and call for the review by
    KEEFE REPORTING COMPANY
    58

    1
    the unit managers?
    2
    A. I do not know that.
    3
    Q. Do you have an opinion as to the
    4
    number of projects that you reviewed that are
    5
    deemed to be excessive that go to unit managers?
    6
    A. In eight years I've only submitted
    7
    four, so unless it's really excessive, they don't
    8
    look through it.
    9
    Q. And then -- is this the first Webb
    10
    appeal, one of those four or five?
    11
    A. The -- I think the second appeal as
    12
    well.
    13
    Q. So there's Webb --
    14
    A. Two.
    15
    Q. -- Webb one and Webb two?
    16
    A. Yep.
    17
    Q. In both of those?
    18
    A. Afraid so.
    19
    Q. So in this case, that's about half of
    20
    the cases that you know of that's gone to the
    21
    unit managers?
    22
    A. Uh-huh.
    23
    Q. And you're aware that the Agency
    24
    settled the first Webb appeal and paid out all
    KEEFE REPORTING COMPANY
    59

    1
    that had been requested?
    2
    A. Sure, uh-huh.
    3
    MR. TOCK: I have no further
    4
    questions.
    5
    HEARING OFFICER WEBB: Mr. Richardson?
    6
    CROSS-EXAMINATION
    7
    BY RICHARDSON:
    8
    Q. Mr. Malcom, no two LUST sites are
    9
    exactly alike, are they?
    10
    A. They're similar but exactly alike, no.
    11
    Q. And in this particular case, would the
    12
    information you provided concerning personnel
    13
    cost, a breakdown could have helped you determine
    14
    if some of the extra hours that maybe you thought
    15
    were excessive in the submittal, it might have
    16
    helped you to determine if maybe some extra hours
    17
    more than normal would have been appropriate
    18
    depending upon what the breakdown indicated; is
    19
    that right?
    20
    A. Sure, uh-huh.
    21
    Q. And am I correct that when you looked
    22
    at, especially the top three positions on page 54
    23
    of the record, and when you saw that some of the
    24
    information or some of the requests concerned two
    KEEFE REPORTING COMPANY
    60

    1
    LUST project appeals, you weren't inclined to
    2
    reimburse prior LUST project appeal work; is that
    3
    correct?
    4
    A. Correct.
    5
    Q. Had you ever reimbursed that directly
    6
    as presented?
    7
    A. No.
    8
    Q. And am I correct that whether you red
    9
    flag something, as the excessive hours that you
    10
    have testified to here, as your work goes to Mr.
    11
    Chappel or if it's a routine matter, all your
    12
    work, all your decisions end up going through Mr.
    13
    Chappel; is that correct?
    14
    A. Correct, yes.
    15
    Q. And he can add --
    16
    A. Absolutely.
    17
    Q. -- whatever he wants --
    18
    A. Uh-huh.
    19
    Q. -- or sign it as you present it to
    20
    him?
    21
    A. Correct, yes.
    22
    MR. RICHARDSON: I have no further
    23
    questions.
    24
    HEARING OFFICER WEBB: Thank you.
    KEEFE REPORTING COMPANY
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    1
    Anything further, Mr. Tock?
    2
    MR. TOCK: Yes, if we may.
    3
    REDIRECT-EXAMINATION
    4
    BY MR. TOCK:
    5
    Q. Exhibit 1, the personnel time hours
    6
    breakdown, this is a form that is prepared by
    7
    EPA; is that correct?
    8
    A. Correct, yes.
    9
    Q. Is there a form that is required by
    10
    EPA that requires a more minute breakdown than
    11
    this form? Does, for an example, some form that
    12
    would say if any task takes more than five hours,
    13
    you have to provide an hourly breakdown?
    14
    A. Not as far as I know, no.
    15
    Q. So as far as you know, the form on
    16
    which this budget request was submitted, was in a
    17
    form approved by EPA?
    18
    A. Sure, uh-huh.
    19
    Q. And the EPA does not have any other
    20
    form that requires any greater breakdown than
    21
    this?
    22
    A. Not as far as I know.
    23
    MR. TOCK: I have no further
    24
    questions. Thank you.
    KEEFE REPORTING COMPANY
    62

    1
    MR. RICHARDSON: Nothing further.
    2
    HEARING OFFICER WEBB: Okay. Thank
    3
    you very much, Mr. Malcom. Are you, Mr. Tock,
    4
    going to call anymore witnesses?
    5
    MR. TOCK: No, I'm not. But I would
    6
    like to make certain that the other documents
    7
    that I have provided as part of the motion to
    8
    incorporate documents be included as evidence.
    9
    HEARING OFFICER WEBB: You're moving
    10
    those now as evidence?
    11
    MR. TOCK: I would move all -- all
    12
    documents that have been marked into evidence and
    13
    then, if need be, to mark these with exhibit
    14
    numbers.
    15
    HEARING OFFICER WEBB: Okay. Let's go
    16
    through them. Okay. Exhibit 1, which is page 54
    17
    of the record, is already part of the record so I
    18
    assume there's no objection to that?
    19
    MR. RICHARDSON: Correct.
    20
    HEARING OFFICER WEBB: That is
    21
    admitted. Also, Exhibits 3 and 4 are also part
    22
    of the administrative record, page 1 and page 8,
    23
    there's no objection there I assume?
    24
    MR. RICHARDSON: Correct.
    KEEFE REPORTING COMPANY
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    1
    HEARING OFFICER WEBB: Okay. All
    2
    right. Exhibit 2 is the petition for 05-183 and
    3
    Exhibit 5 is the administrative for 05-183, an
    4
    earlier Webb and Sons appeal. Is there an
    5
    objection to this?
    6
    MR. RICHARDSON: I won't object to
    7
    their admission, but I would object to their
    8
    relevance to this proceeding.
    9
    HEARING OFFICER WEBB: Okay. In the
    10
    future, Mr. Tock, probably instead of a motion to
    11
    incorporate by reference, if you have a case that
    12
    has an Administrative Record, you want to do a
    13
    motion to supplement the administrative record.
    14
    I know this is your first hearing, so it's --
    15
    it's not a big deal. But in the future, we are
    16
    only supposed to consider documents that were
    17
    part of the Administrative Record when the Agency
    18
    made their determination.
    19
    Now, in this particular situation is
    20
    it's a little unusual in that we have several
    21
    appeals on the same site with the same people in
    22
    a very short period of time. I do feel that the
    23
    Agency should have been aware of this information
    24
    when they made their determination, so I am going
    KEEFE REPORTING COMPANY
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    1
    to admit it as relevant. I think it's background
    2
    information. Like I said, it pertains to the
    3
    same site within a short period of time, and I
    4
    think it gives a comprehensive picture on what's
    5
    going on with this site, so I am going to admit
    6
    it for that reason. Now, are we going to mark
    7
    the rest of the documents that were in your
    8
    motion?
    9
    MR. TOCK: If you -- if you would,
    10
    please.
    11
    HEARING OFFICER WEBB: What's left?
    12
    MR. TOCK: Testimony of Douglas W.
    13
    Clay and that's the 2006 date stamp marked 1 of
    14
    2006. That was his testimony regarding the
    15
    Illinois Pollution Control Board's proposed 35
    16
    ILL Adm. Code 732.845 and 734.835.
    17
    HEARING OFFICER WEBB: Mr. Richardson,
    18
    do you have anything to say about this?
    19
    MR. RICHARDSON: Again, I have no
    20
    objection to the admissibility, but I'll object
    21
    to the relevance of it.
    22
    HEARING OFFICER WEBB: I'm not sure
    23
    what is in here since we didn't use it. I
    24
    suppose the Board can take notice of this since
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    this is a public record that is -- that's in the
    2
    Board's regulatory proceeding, so I will admit it
    3
    as a public record. This would be Exhibit 6.
    4
    (The reporter marked Exhibit No. 6
    5
    for purposes of identification.)
    6
    HEARING OFFICER WEBB: Should this be
    7
    attached in the binder clip, this one, as part of
    8
    this? Should this all be together as Exhibit 6?
    9
    MR. TOCK: These are different. This
    10
    Exhibit 6 is submitted March 1 of 2006. These
    11
    were submitted in March of 2004. There are
    12
    different statements, different testimony.
    13
    HEARING OFFICER WEBB: Okay.
    14
    MR. TOCK: So I'd like those marked as
    15
    six and seven.
    16
    HEARING OFFICER WEBB: But are these
    17
    two together?
    18
    MR. TOCK: Whatever numbers we are up
    19
    to. Seven and eight, yes.
    20
    HEARING OFFICER WEBB: And you're not
    21
    objecting to the admissibility of these three; is
    22
    that correct?
    23
    MR. RICHARDSON: Correct, correct.
    24
    Again, a relevance objection but not
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    admissibility.
    2
    HEARING OFFICER WEBB: You want to
    3
    label that as seven and eight.
    4
    (The reporter marked Exhibit Nos. 7
    5
    and 8 for purposes of
    6
    identification.)
    7
    HEARING OFFICER WEBB: Was there
    8
    anything else in that motion, any other
    9
    documents? Was that it?
    10
    MR. TOCK: I think that was it.
    11
    HEARING OFFICER WEBB: Okay. Let me
    12
    -- I have some copies here that I can get in
    13
    order. Okay. Mr. Tock, do you have anything
    14
    further to present?
    15
    MR. TOCK: Nothing further.
    16
    HEARING OFFICER WEBB: Mr. Richardson,
    17
    you may present your case.
    18
    MR. RICHARDSON: I have --
    19
    HEARING OFFICER WEBB: You're not
    20
    calling anybody?
    21
    MR. RICHARDSON: I am not calling any
    22
    additional people. I have nothing --
    23
    HEARING OFFICER WEBB: Nothing more to
    24
    say. Okay. Very good. Before we hear any
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    closing arguments, let's go off the record just
    2
    to discuss the briefing schedule.
    3
    (A discussion was held off the
    4
    record.)
    5
    HEARING OFFICER WEBB: We've just had
    6
    an off-the-record discussion regarding
    7
    post-hearing briefs, and the parties have agreed
    8
    to a briefing schedule as follows: The
    9
    transcript of these proceedings will be available
    10
    from the court reporter by December 14th and will
    11
    be posted on the Board's Website. The public
    12
    comment deadline is December 29th. Public
    13
    comment must be filed in accordance with Section
    14
    101.628 of the Board's procedural rule.
    15
    Petitioner's brief is due by December 29th.
    16
    Respondent's brief is due by January 12th, and
    17
    the mailbox rule will not apply. Mr. Tock, would
    18
    you like to make any closing arguments?
    19
    MR. TOCK: No.
    20
    HEARING OFFICER WEBB: Okay. Mr.
    21
    Richardson?
    22
    MR. RICHARDSON: No.
    23
    HEARING OFFICER WEBB: All right. No
    24
    members of public here to make any statements on
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    the record so I will proceed to make a statement
    2
    as to the credibility of witnesses testifying
    3
    during this hearing. Based on my legal judgment
    4
    and experience, I find both of the witnesses
    5
    testifying to be credible. At this time I will
    6
    conclude the proceedings. We stand adjourned.
    7
    And I thank you all for your participation.
    8
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    STATE OF ILLINOIS
    COUNTY OF FAYETTE
    C E R T I F I C A T E
    I, BEVERLY S. HOPKINS, a Notary Public
    in and for the County of Fayette, State of
    Illinois, DO HEREBY CERTIFY that the foregoing 69
    pages comprise a true, complete and correct
    transcript of the proceedings held on December
    11th, 2006, at the Illinois Pollution Control
    Board Hearing Room, 1021 North Grand Avenue East,
    North Entrance, Springfield, Illinois, in
    proceedings held before Hearing Officer Carol
    Webb, and recorded in machine shorthand by me.
    IN WITNESS WHEREOF I have hereunto set
    my hand and affixed by Notarial Seal this 13th
    day of December, 2006.
    _____________________________
    Beverly S. Hopkins, CSR, RPR
    CSR License No. 084-004316
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