ILLINOIS POLLUTION CONTROL BOARD
    PMA & ASSOC., INC.,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    )
    )
    )
    )
    PCB No. 07-63
    )
    (LUST Appeal)
    )
    )
    )
    PETITIONER'S RESPONSE TO RESPONDENT'S
    MOTION FOR SUMMARY
    JUDGMENT
    Pursuant to 35 ILL. ADM. CODE
    §§
    101.500(d) and 101.516(a), petitioner PMA
    &
    Assoc., Inc. ("PMA") submits this response to
    Respondent's Motion for Summary
    Judgment
    ("Motion") filed by the Illinois Environmental Protection Agency ("Agency").
    I. INTRODUCTION.
    This appeal, like several others with which we will soon move to have this matter
    consolidated, comes to the Board
    in a brown paper wrapper marked "claim lacking
    documentation," but it
    is much more than that. At issue is whether the Agency is
    empowered, on review
    of an application for reimbursement pursuant to and within a
    previously-approved budget, to disregard its previous decision, to disregard the
    applicant's evidence, and to attempt to limit reimbursement to one out-of-pocket cost
    incurred by the consultant, rather than the cost incurred by the owner/operator for all
    the relevant services as defined by 35
    ILL. ADM. CODE Part 732 Subpart H. Contrary
    to the Agency's view (Motion at 4), the issue
    is one of law. As shown below, both the
    statutory provisions which the Agency purports to enforce and the legislative history
    of the regulations at issue demonstrate that the Agency has no such power.
    -1-
    Electronic Filing, Received, Clerk's Office, August 28, 2007
    II. THE
    FACTS.
    PMA is the owner of a Leaking Underground Storage Tank ("LUST") site. Rec. at
    014-15.
    It retained United Science Industries, Inc. ("USI") as consultant-contractor
    for remediation of the site pursuant to the portions
    of the Illinois Environmental Pro-
    tection Act governing such remediation, 415 ILCS 5/57
    et seq.
    (the "LUST Act"), and
    USI filed with the Agency a Corrective Action Plan ("Plan") and a budget
    in two parts,
    which are attached hereto
    as Exhibits A and B.
    1
    The Agency approved the Plan and
    budget in pertinent parts. Rec. at 042-43. The approved budget called for analysis
    costs of $9,955, which included 29 BTEX soil samples with MTBE
    in one part of the
    budget and four more
    in another. Exhibit A at F-2; Exhibit B at F-3; Rec. at 044.
    After the Plan was completed, PMA sought reimbursement for $2,096.88
    in anal-
    ysis costs, based
    on only 24 BTEX soil samples with MTBE, at $87.37, which was
    the price set
    by 35 ILL. ADM. CODE Part 732 Appendix D as adjusted for inflation
    under 35
    ILL. ADM. CODE
    §
    732.870. Rec. at 020. It submitted in support an August
    18, 2006 invoice from USI to PMA seeking,
    inter alia,
    $21,567.20 for "Field Pur-
    chases and Other". Rec. 108. Attached to the invoice was detail material stated
    on
    forms originally prepared by the Agency and customarily used by USI as back-up for
    its invoices.
    2
    Among the back-up were Rec. 118, detailing charges of $21,514.56
    including $2,096.88 for 24 soil samples at $87.37 each, and Rec. 130, which detailed
    the additional $52.64. To establish that 24 such samples had
    in fact been collected,
    1
    The Agency has filed as the "Administrative Record" ("Rec.") only part of the information which was
    before it when it made its decision. Because the Agency cannot
    be permitted to prevail by filing an
    incomplete record and then seeking jUdgment on the distorted record, additional matters demon-
    strating that the Agency
    is not entitled to judgment are attached as exhibits hereto.
    2
    We are advised that some of these forms were no longer being used by the Agency, but USI had
    continued to use them
    as detail to its invoices.
    -2-
    sent for analysis, analyzed by an approved lab on the basis claimed, and properly
    handled by USI
    in the resultant evaluation of the Plan's success, USi attached results
    from Prairie Analytical Systems, Inc. ("Prairie") for the 24 samples.
    Rec. 119-29.
    Finally, PMA submitted certifications, under penalty of perjury, from John Mont-
    gomery, PMA's President, and Joseph
    M. Kelly, P.E., that the $2,096.88 was "not for
    corrective action
    in excess of the minimum requirements of 415 ILCS 5/57", that
    "costs ineligible for payment from the Fund
    ... are not included", and that "the costs
    for remediating said LUST site are correct and reasonable". Rec. 032.
    The Agency denied the analysis costs claim
    in its entirety, stating:
    $2,096.88, deduction for costs that lack supporting documentation. Such costs are
    ineligible for payment from the Fund pursuant to
    35 Ill. Adm. Code 732.606(gg).
    Since there is no supporting documentation
    of costs, the Illinois EPA cannot
    determine that costs will not be used for activities in excess
    of those necessary to
    meet the minimum requirements
    of Title XVI of the Act; therefore, such costs are
    not approved pursuant to Section 57.7(c)(4)(C)
    of the Act because they may be used
    for corrective action activities in excess
    of those required to meet the minimum
    requirements
    of Title XVI of the Act.
    Need invoices for charges associated with Analysis Costs.
    Rec. 003 (the "Decision").
    In consultations with USI, the Agency insisted that PMA
    had to submit invoices from Prairie for the portion of the services performed by it and
    that reimbursement would
    be limited to those invoices. The Agency disregarded the
    documentation
    USI and PMA
    had
    submitted, disregarded the sworn certifications
    submitted to
    it, and based its decision on no admissible evidence in its record.
    m. SUMMARY JUDGMENT STANDARDS
    In ruling on a motion for summary judgment, the Board "must consider the
    pleadings, depositions, and affidavits strictly against the movant and
    in favor of the
    opposing party." McDonald's Corp.
    v. IEPA, PCB 04-14 at 2 (Jan. 22, 2004). The
    -3-
    movant must submit evidence showing there is no issue as to any material fact and
    that it
    is entitled to judgment as a matter of law.
    fo.
    Summary judgment should be
    granted only when the movant's right to same
    is clear and free from doubt.
    Id.
    IV.
    ApPLICABLE LAW.
    LUST Act
    §
    57.7(c), as amended by P.A. 92-554
    §
    5, provides:
    (l) Agency approval of any plan and associated budget, as described in this
    subsection (c), shall be considered final approval for purposes
    of seeking and
    obtaining payment from the Underground Storage Tank Fund
    if the costs associated
    with the completion
    of any such plan are less than or equal to the amounts approved
    in such budget.
    (3) In approving any plan submitted pursuant to subsection (a) or (b)
    of this Section,
    the Agency shall determine, by a procedure promulgated by the Board under Section
    57.14, that the costs associated with the plan are reasonable, will be incurred in the
    performance
    of site investigation or corrective action, and will not be used for site
    investigation or corrective action activities in excess
    of those required to meet the
    minimum requirements
    of this Title.
    LUST Act
    §
    57.7(c)(4), as amended by P.A. 92-651
    §
    74, P.A. 92-735
    §
    5, and P.A.
    92-574
    §
    5, provides substantially the same?
    LUST Act
    §
    57.8 states:
    (a) Payment after completion
    of corrective action measures. The owner or operator
    may submit an application for payment for activities performed at a site after
    completion
    of the requirements of Sections 57.6 and 57.7, or after completion of any
    other required activities at the underground storage tank site.
    (I) In the case of any approved plan and budget for which payment is being sought,
    3
    LUST Act
    §
    57.7(c)(4), as amended by those acts, provides:
    (A) Agency approval
    of any plan and associated budget, as described in this item (4), shall be
    considered final approval for purposes
    of seeking and obtaining payment from the Underground
    Storage Tank Fund
    if the costs associated with the completion of any such plan are less than or equal
    to the amounts approved
    in such budget.
    (C) In approving any plan submitted pursuant to Part (E) of this paragraph (4), the Agency shall
    determine, by a procedure promulgated by the Board under item (7)
    of subsection (b) of Section
    57.14, that the costs associated with the plan are reasonable, will be incurred in the perfonnance
    of
    corrective action, and will not be used for corrective action activities in excess of those required to
    meet the minimum requirements
    of this title.
    -4-
    the Agency shall make a payment detennination within 120 days of receipt of the
    application. Such determination shall be considered a final decision. The Agency's
    review shall be limited
    to generally accepted auditing and accounting practices. In
    no case shall the Agency conduct additional review
    of any plan which was
    completed within the budget, beyond auditing for adherence to the corrective action
    measures in the proposal.
    If the Agency fails to approve the payment application
    within 120 days, such application shall be deemed approved by operation
    of law and
    the Agency shall proceed
    to reimburse the owner or operator the amount requested in
    the payment application. However, in no event shall the Agency reimburse the
    owner or operator an amount greater than the amount approved in the plan.
    35 ILL. ADM. CODE
    §
    732.800 states:
    a) Methods for Determining Maximum Amounts. This Subpart H provides three
    methods for detennining the maximum amounts that can be paid from the Fund for
    eligible corrective actions costs. All costs associated with conducting corrective
    action are grouped into the tasks set forth in Sections 732.810 through 732.850
    of
    this Part.
    1) The first method for determining the maximum amount that can be paid for each
    task is to use the maximum amounts for each task set forth in those Sections, and in
    Section 732.870
    ....
    b) The costs listed under each task set forth in Sections 732.810 through 732.850 of
    this Part identify only some of the costs associated with each task. They are not
    intended as an exclusive list
    of all costs associated with each task for the purposes of
    payment from the Fund.
    With respect to the sections referenced in
    §
    732.800(b), 35 ILL. ADM. CODE
    §
    732.835
    deals with sample handling and analysis and states:
    Payments for costs associated with sample handling and analysis must not exceed the
    amounts set forth in
    ... Appendix D of this Part. Such costs must include, but are
    not limited to, those associated with the transportation, delivery, preparation, and
    analysis
    of samples, and the reporting of sample results....
    Appendix 0, referenced in
    §
    732.835, provides in pertinent part:
    Chemical
    BETX Soil with MTBE
    Max. Total Amount
    per Sample
    $85
    And with respect to that rate, 35 ILL. ADM. CODE
    §
    732.870 states:
    The maximum payment amounts set forth in this Subpart H must be adjusted
    -5-
    annually by an inflation factor detennined by the annual Implicit Price Deflator for
    Gross National Product as published by the U.S. Department
    of Commerce in its
    Survey
    of Current Business.
    Also relevant are 35 ILL. ADM. CODE
    §§
    732.845 and 732.850, which state in part:
    Section 732.845 Professional Consulting Services
    Payment for costs associated with professional consulting will be reimbursed on a
    time and materials basis pursuant to Section 732.850
    ....
    Section 732.850 Payment on Time and Materials Basis
    This Section sets forth the maximum amounts that may be paid when payment
    is
    allowed on a time and materials basis.
    a) Payment for costs associated with activities that have a maximum payment
    amount set forth in other Sections
    of this Subpart H (e.g., sample handling and
    analysis, drilling, well installation and abandonment, or drum disposal[)] must not
    exceed the amounts set forth in those Sections, unless payment
    is made pursuant to
    Section 732.860
    of this Part....
    35 ILL. ADM. CODE
    §
    732.606(gg), relied upon by the Agency in the Decision,
    states merely, "Costs ineligible for payment from the Fund include but are not limited
    to
    ... [closts that lack supporting documentation".
    V.
    ARGUMENT.
    A.
    The Agency's Attempt, on Reimbursement Application,
    To
    Reverse Its Findings on Budget Approval
    Is
    Improper.
    There
    is no dispute that
    in
    reviewing PMA's proposed budget, the Agency
    approved contemplated analysis costs
    in the amount of $9,955 based on 33 BTEX
    soil samples with MBTE and the reimbursement rate set forth
    in
    Subpart H. See p. 2
    above. There also
    can be no dispute as to what that approval means. LUST Act
    §
    57.7(c), as amended by P.A. 92-554
    §
    5, expressly provides (emphasis added):
    (1) Agency approval of any plan and associated budget, as described in this
    subsection (c),
    shall be considered final approval for pUlposes of seeking and
    obtaining payment from the Underground Storage Tank
    Fund
    if
    the costs
    -6-
    associated with the completion of any such plan are less than or equal to the
    amounts approved in such budget.
    (3) In approving any plan submitted pursuant to subsection (aj or (bj of this
    Section, the Agency shall determine,
    by a procedure promulgated by the Board
    under Section 57.14,
    that the costs associated with the plan are reasonable, will be
    incurred in the performance ofsite investigation or corrective action, and will not
    be used
    for site investigation or corrective action activities in excess of those
    required
    to meet the minimum requirements ofthis Title.
    For purposes of that provision:
    the term" plan" shall include:
    (A) Any site investigation plan submitted pursuant to subsection (a)
    of this Section;
    (B) Any site investigation budget submitted pursuant to subsection (a)
    of this
    Section;
    (C) Any corrective action plan submitted pursuant to subsection (b) of this Section;
    or
    (D)
    Any corrective action plan budget
    submitted pursuant to subsection (b) of this
    Section.
    LUST Act
    §
    57.7(c)(5), as amended by P.A. 92-554
    §
    5 (emph. added). Section 57.7
    as amended by the other acts of the 92
    nd
    legislature provides in substance the same.
    Hence,
    as a matter of law, the Agency's approval of PMA's budget constituted
    findings that the proposed costs were "reasonable", would "be incurred
    in the
    performance of site investigation or corrective action", and would "not be used for site
    investigation or corrective action activities
    in excess of those required to meet the
    minimum requirements of this Title."
    §
    57.7(c)(3) as amended by P.A. 92-554.
    Having made that decision
    in approving the budget, on application for payment "[i]n
    no case shall the Agency conduct additional review of any plan which was completed
    within the budget, beyond auditing for adherence to the corrective action measures
    in
    the proposal." LUST Act
    §
    57.8(a)(1).
    The claim that the Agency "cannot determine that costs will not be used for
    -7-
    activities in excess of those necessary to meet the minimum requirements" of the Act,
    and hence must be denied under "Section 57.7(c)(4)(C) of the Act because they may
    be used for corrective action activities in excess of those required to meet the
    minimum requirements" of the Act (Rec. 003),
    is not only contrary to the previous
    finding,
    it is specious. This was a
    reimbursement
    application; the claimed costs "will
    not" be used for
    any
    activities -
    the activities have been completed.
    The Decision's
    erroneous future tense reflects a failure to appreciate that an application for payment
    under
    §
    57.8
    is not
    a plan or report under
    §
    57.7(c)(4)(C), which it invokes.
    This result is not changed by the rulemaking commenced in 2004 which resulted
    in substantial changes to 35 ILL. ADM. CODE Part 732, including adoption of maximum
    reimbursable amounts for many common LUST clean-up activities (the "Rulemaking
    Proceedings,,).4 Indeed, the legislative history for those amendments makes clear
    that after-the-fact reconsideration of approved budgets
    is improper. For example,
    during that rulemaking the Agency sought to have emergency regulations adopted,
    claiming that otherwise it could only process applications for payment submitted
    pursuant to budgets approved prior to Illinois Ayers Oil Co., PCB 03-214 (Apr.
    1,
    2004). Its rationale for being able to make payments under approved budgets was
    that "[r]eviews of such applications for payment can continue because the reviews
    consist of comparing the costs
    in the applications for payment to the costs approved
    in the budgets."
    Illinois Environmental Protection Agency's Motion for the Adoption
    of
    Emergency Rules,
    R04-22A (Apr. 19,2004) at 2 (Exhibit C).
    4
    In the Matter of Proposed Amendments to Regulation of Petroleum Leaking Underground Storage
    Tanks (35
    III. Adm. Code 732), R04-22A. Excerpts of papers filed in those proceedings bearing on
    issues in this appeal are attached hereto as exhibits; in addition, for the reader who wishes to cite full
    documents
    in the Board's electronic database, the filing date thereof in R04-22A is provided.
    -8-
    Moreover, Doug Clay, manager of the Agency's LUST Section, later testified:
    the statute talks about review based on generally accepted audit and accounting
    practices
    .... [T]his refers to when there's been a budget approved ahead of time,
    and that is what we do. The budget has been approved. And what the LUST claims
    unit will do is basically add up invoices, make sure that the costs are eligible and
    consistent with the plan
    ... and budget that had been approved.
    Transcript
    of
    Proceedings Held May
    25,
    2004,
    R04-22A (Jun.1, 2004) at 23-24
    (Exhibit D). LUST Claims Unit head Doug Oakley gave similar sworn testimony:
    When we look at budget approved claims, it is different than early action, in that we
    don't look at individual rates. We look to make sure the costs associated with certain
    activities are within the line that - that's like six budget line items. And
    if the costs
    for those activities fall at or below those line items,
    that's as far as we go, other than
    looking for mandatory documents.
    Id.
    at 84.
    Q....
    You have to have an approved budget and has been reviewed and compared to
    something to determine what is being reasonable? And then it's reimbursed, right?
    A. (BY MR. OAKLEY)
    If
    the type ofamounts are equal to or less than those line
    items, it will be paid.
    Transcript
    of
    Proceedings Held May
    26,
    2004,
    R04-22A (Jun.1, 2004) at 60 (Exhibit
    E) (emph. added).
    Q. But so long as all of the items are contemplated within the budget and the budget
    has been specific enough, and those items that are being claimed for recovery are in
    fact part
    of the budget, you approve that?
    A. (BY MR. OAKLEY)
    Right.
    Transcript of Proceedings Held May
    25,
    2004,
    R04-22A (Jun.1, 2004) at 91 (Exhibit
    D) (emph. added).
    The Agency further stated:
    Setting forth rates in the rules will allow owners, operators and consultants to know
    the amounts considered reasonable for purposes
    of reimbursement from the UST
    Fund, and
    the Illinois EPA can easily review and approve costs as long as they do
    not exceed the applicable maximum payment amounts.
    -9-
    Illinois Environmental Protection Agency's Response to Prefiled Questions,
    R04-22A
    (Jun.
    15, 2005) at 22 (emph. added) (Exhibit F).
    The rules will also help simplify the reimbursement process by setting forth the rates
    that are considered reasonable for reimbursement from the UST Fund.
    Owners and
    operators and consultants will know the amounts that will be considered
    reasonable
    for the activities being proposed, and the Illinois EPA can easily review
    and approve costs
    as long as they do not exceed the applicable maximum payment
    amounts.
    Id.
    at 35 (emph. added). Agency witness Gary King made similar points in comparing
    the Agency's proposal with a counterproposal from USI:
    it seems like what
    is being proposed here is [not] that much different than what the
    agency
    is proposing, we'rejust using different terms and setting different points on
    the normal distribution. The agency's proposal
    is basically saying, you know, we're
    going to take the average, which I think
    is sort of taking as a median, we got 50
    percent of cases falling below that point of normal distribution, that will be your
    expedited unit rate. They call it maximum, but it's the expedited.
    If
    you come in
    with costs under that point, it's going
    to fly through the system.
    . .. So it seems to
    me that
    if we could just get beyond the semantics, that we're sort of getting to the
    same point here, and that
    is where do you set that point in which you get expedited
    review. And there are problems
    if you set it too high, everything moves to that high
    point
    ... The agency proposal set at a median, so that percent of them apply ....
    Transcript
    of
    Proceedings Held July
    27,
    2005,
    R04-22A (Aug. 8, 2005) (Exhibit G) at
    158 (emph. added).
    Here the amount billed by
    USI to PMA and sought by PMA from the Agency was
    less
    than what the Agency had previously found to be "reasonable" and to "be
    incurred
    in the performance of ... corrective action activities [not] in excess of those
    required to meet the minimum requirements" of the Act. Its attempt to reconsider
    those findings
    on application for payment under LUST Act
    §
    57.8 is not only without
    statutory basis, it
    is unreasonable and contrary to the representations which the
    Agency made
    in obtaining approval of the Subpart H regulations.
    - 10-
    The Agency's Attempt
    to
    Pay Only
    Before the amendments sought in the Rulemaking Proceedings, reimbursement
    for remediation activities generally was governed by a "time
    and materials" basis.
    5
    In
    the Rulemaking Proceeding, the Agency sought - and succeeded in the case of the
    services now at issue - to replace that system with a new one providing for "lump
    sum" maximum amounts which
    it
    would pay for bundles of services in a series of
    identified task areas. See
    Statement of Reasons, Synopsis of Testimony, Statement
    Regarding Material Incorporated
    by Reference, and Statement of Amendment to the
    Board's Version ofthe Rules,
    R04-22A (Jan. 13, 2004) at 21, 29-30 (Exhibit H). The
    goal, the Agency repeatedly said, was to "streamline" the remediation reimbursement
    process
    (id.
    at 30, 34). This was to be accomplished as follows:
    Subpart H divides all response activities into tasks and sets forth the maximum
    amounts that can be paid from the UST Fund for each task. Because
    of the difficulty
    of enumerating every cost that may be associated with a site, Section 732.800(b)
    explains that the costs identified in Subpart H are only the major costs associated
    with a particular task.
    The maximum payment amount is intended to include all
    costs associated with completing the identified task.
    Id.
    at 30 (emph. added). The Agency told the Board that "Illinois EPA anticipates a
    cost savings
    as a result of the streamlining".
    Id.
    at 34. Indeed, Mr. Clay told the
    Board he supported the amendments because
    The new budget and reimbursement process would eliminate the majority
    of budgets
    and reimbursement packages submitted based on a time and material basis and
    replace them with submittals based on unit rates and lump sums for specific tasks
    established in the regulations.
    We believe this will streamline the approval of
    budgets and the processing of reimbursement claims. Currently, there is a tremend-
    ous amount
    of time spent reviewing budgets and the processing of reimbursement
    claims.
    5
    The Agency had in fact applied a secret "rate sheet" to certain costs, but that practice was held to be
    unlawful by the Board
    in Illinois Ayers Oil Co., PCB 03-214 (Apr. 1,2004).
    -
    11 -
    Testimony
    of
    Douglas W Clay in Support
    of
    the Environmental Protection Agency's
    Proposal
    to Amend
    35
    III. Adm. Code
    732 (attached to
    Illinois Environmental
    Protection Agency's First Errata Sheet
    to its Proposal for the Amendment
    of 35
    III.
    Adm. Code
    732, R04-22A (Mar. 8,2004)) at 2 (Exhibit I).
    In numerous instances, industry participants objected because it was not clear
    what all was to
    be included in the proposed lump sum. The Agency repeatedly
    replied that everything related to a task was included.
    Q.... Do you have a list of tasks that you utilize to develop those original numbers
    of hours at the rater?]
    MR. CLAY: I think we included in the original testimony a list
    of tasks that were
    not intended to be all inclusive.
    The scope of work is what you need to do to meet
    regulations.
    .
    ..
    That list oftasks was not intended to be all inclusive.
    Transcript
    of
    Proceedings Held July
    27,
    2005,
    R04-22A (Aug. 8, 2005) at 16-17
    (Exhibit
    G) (emph. added).
    Q.... [H]ow is it competitive bidding provisions are supposed to apply in the
    absence
    of the scope of work?
    MR. CLAY: The scope
    of work is what it takes to meet the regulations, I've
    answered that.
    MR. [KOCH]: So, how am I to know what is and what is not included for purposes
    of using competitive bidding?
    MR. CLAY: It'swhatever it takes to meet the regulations
    ....
    Id.
    at 43-45.
    Cf
    Statement
    of
    Reasons, Synopsis
    of
    Testimony, Statement Regard-
    ing Material Incorporated
    by Reference, and Statement
    of
    Amendment to the Board's
    Version
    ofthe Rules,
    R04-22A (Jan. 13,2004) at 30 (Exhibit H) (emph. added):
    the costs identified in Subpart H are only the major costs associated with a particular
    task.
    The maximum payment amount is intended to include all costs associated
    with completing the identified task.
    - 12 -
    The Agency argued, and the Board agreed in its first-notice decision, that tasks not
    specifically listed
    in the description could not be reimbursed separately:
    As to the suggested change
    to allow for tasks not specifically listed under a
    maximum payment amount to
    be reimbursed separately, the Agency believes that
    such a change will eventually result in Subpart H becoming a reimbursement on time
    and materials basis for every item not specifically identified in the rules. The
    Agency states that developing an all-inclusive list
    of costs associated with each task
    identified in Subpart H would be impossible.
    Opinion and Order
    of
    the Board,
    R04-22A (Dec. 1, 2005) at 45 (Exhibit J). Compare
    Comments
    of
    the Illinois Environmental Protection Agency,
    R04-22A (Sep. 23, 2005)
    at
    18 (Exhibit K).
    Those principles were expressly and repeatedly applied to analysis costs such as
    now at issue. For example, Daniel
    A.
    King asked the Agency:6
    Pursuant to 734.835 Sample Handling and Analysis, costs associated with
    transportation, delivery, preparation, analysis and reporting
    of samples are
    reimbursable costs and should be billed in accordance with the rates listed in
    734.Appendix
    D.
    It
    is the Agency's intent that the per sample rates listed may be
    divided up between the entity doing the transportation, deliver, analysis, etc.?
    The Agency responded:
    Sections 734.835 and 734.Appendix D merely set forth the maximum payment
    amounts owners and operators may be reimbursed for costs associated with sample
    handling and analysis. Please note that an individual maximum payment amount for
    shipping
    is included at the bottom of Section 734.Appendix D.
    The Board's
    proposed rules
    do not address, and the Illinois EPA did not envision the rules
    addressing, how the amounts reimbursed to
    an owner or operator are divided
    among the parties performing the work.
    Illinois Environmental Protection Agency's Response to Prefiled Questions,
    R04-22A
    (Jun. 15,2005) at
    12 (emph. added) (Exhibit F). Similarly, Jay P. Koch asked:?
    Subpart
    H, Appendix D provides rates for Sample Handling and Analysis. Section
    6
    Prefiled Questions
    of
    Daniel A. King,
    R04-22A (May 4, 2005)
    Ilf
    41 (Exhibit L).
    7
    Prefiled Questions
    of
    Jay
    P.
    Koch,
    R04-22A (May 4, 2005)
    Ilf
    6 (Exhibit M).
    - 13 -
    734.835 indicates that these rates are for transportation, delivery, preparation,
    analysis and result reporting. Often times analytical samples are transported to a
    central shipping location by one party, delivered to the laboratory by another and
    then analyzed by the lab (a third party). Are the rates provided in Appendix D
    to
    cover the activities of all three parties described above?
    The Agency responded, "The Illinois EPA included all costs associated with sample
    handling and analysis, regardless
    of the number of parties involved, in the maximum
    payment amounts it proposed under Sections 734.35 and 734.Appendix D."
    Illinois
    Environmental Protection Agency's Response
    to Prefiled Questions,
    R04-22A (Jun.
    15, 2005) at 14-15 (Exhibit
    F).
    Thus, as adopted 35 ILL. ADM. CODE
    §
    732.835, dealing with sample handling and
    analysis, expressly states (emph. added):
    Payments for costs associated with sample handling and analysis must not exceed the
    amounts set forth in Section Appendix D
    of this Part. Such costs
    must include, but
    are not limited to,
    those associated with the
    transportation, delivery, preparation,
    and analysis of samples, and the reporting of sample results.
    Similarly, 35 ILL. ADM. CODE
    §
    732.800(b) as adopted states (emph. added):
    The costs listed under each task set forth in Sections 732.810 through 732.850 of this
    Part identify
    only some of the costs associated with each task, They are not
    intended
    as an exclusive list
    of all costs associated with each task for the purposes of
    payment from the Fund.
    There can be no doubt that the Board relied on the Agency's representations in
    its decisions. For example, the Board adopted the Agency's logic for deleting
    references to "materials, activities, or services" because pursuant to the proposed
    Subpart
    H, payment would generally no longer be made based on "materials,
    activities, or services".
    Opinion and Order
    of
    the Board,
    R04-22A (Feb. 17, 2005) at
    9 (Exhibit
    N). It said new Subpart H intended to "streamline payment from the UST
    Fund" with "lump sum"
    or unit rates for many activities.
    Id.
    at 11. It adopted the
    - 14-
    Agency's logic that under the proposal "less time [will be] required for Agency
    review".
    !d.
    at 17, 24.
    8
    it also expiained that the amounts provided in proposed
    Subpart H for its
    11 categories of tasks covered "all reimbursable tasks" in those
    categories
    (id.
    at 17, 24), and it stated that Subpart H
    enumerates only the "major costs" associated with a task. The section clarifies that
    the maximum payment amount is intended to include all costs associated with an
    activity and the subpart does not enumerate eligible costs.
    Id.
    at 12 (emph. added). The Board said it proposed "a rule that includes
    lump sum
    maximum payments for certain tasks".
    Id.
    at 82 (emph. added). Finally, language
    evidencing that all services and costs related to a task area were covered by the
    lump sum was included
    in the final regulations (see p. 14 above), and when the
    Board finally decided that professional consulting would "be reimbursed
    on a time
    and materials basis pursuant to Section 732.850" (35
    ILL. ADM. CODE
    §
    732.845), it
    expressly provided that professional services associated with the "sample handling
    and analysis" task were not covered
    (35 ILL. ADM. CODE
    §
    732.850(a)).
    The foregoing
    is, we submit, more than sufficient to deny the Agency's Motion,
    but if there were any doubt it
    is dispelled by events which occurred as a result of
    changes which the Board required. Specifically, the Board sought to temper the
    harshness of the Agency's "average equals maximum" approach by allowing reim-
    bursement of a larger amount when it was established through a competitive bidding
    process.
    In offering the amendment, Mr. Clay made clear that consultants are
    entitled to the Subpart H amounts even if parts of the services
    in a task area are
    8
    After first notice, the Agency reiterated its goal of streamlining, based in significant part on the
    premise that at the reimbursement stage "the Illinois EPA
    can easily review and approve costs as long
    as they do not exceed the applicable maximum payment amounts".
    Illinois Environmental Protection
    Agency's Response to Prefiled Questions,
    R04-22 (Jun. 15, 2005) at 15, 22, 35 (Exhibit F).
    - 15 -
    acquired, or could be acquired, at a lower price:
    Q....
    So I go out and I get three bids as the Agency has allowed me. And it also
    allows me that
    if I wanted to, I could do the work for the lowest bid. How do I get
    paid for my handling for my time to
    go get those bids for the scope of work?
    Because
    I'm a person who is using a subcontractor with the indirect financial
    interest. I mean, how
    do I get paid?
    A.
    (By Mr. Clay) In that case, I think
    you would be entitled to that lump sum as if
    the owner and operator were paying for the subcontractor.
    And then, you know,
    that's sort
    of a business decision. That's a decision you're making, that you want, in
    your case, your company to do the work
    as opposed to the low bidder.
    Transcript
    of Proceedings Held Aug.
    9,
    2004,
    R04-22A (Aug. 20, 2004) at 86-87
    (Exhibit
    0) (emph. added).
    See also id.
    at 67-68 (emph. added):
    Q. [Member Johnson] ... [Y]our proposed language is the maximum payment
    amount for the work bid shall
    be the amount of the lowest bid, unless the lowest bid
    is less than the maximum payment amount set forth in Subpart
    H, in which case the
    maximum payment amount set forth in Subpart H shall be allowed.
    ... [1]1's
    implying that regardless
    of what the bids are
    [--]
    you get three of them, they're all
    under the amount that you've defined
    as the maximum number ... [-- w]e're going
    to get the maximum payment allowed.
    Am I reading that right?
    A.
    (By Mr. Clay)
    Yes.
    Mr. Clay admitted he didn't expect charges to be submitted at less than what Subpart
    H deemed reasonable often.
    Transcript
    of Proceedings Held July
    27,
    2005,
    R04-22A
    (Aug.
    8, 2005) (Exhibit G) at 156.
    C.
    PMA Submitted Adequate Documentation
    To Support Payment
    of
    the Amount Claimed.
    As shown above, the amount charged
    by USI to PMA, and sought in reim-
    bursement by
    PMA, was exactly what Subpart H provided for the tasks at issue,
    adjusted for inflation
    as provided under 35 ILL. ADM. CODE
    §
    732.870. There can be
    no dispute that this amount is, as a matter of law, reasonable. In the Rulemaking
    Proceedings, the Agency stated, "Under the Board's First Notice Proposal costs are
    - 16 -
    Electronic Filing, Received, Clerk's Office, August 28, 2007
    considered reasonable as long as they do not exceed the applicable maximum
    payment amount lump sums".
    liiinois Environmental Protection Agency's Response
    to Prefiled Questions,
    R04-22 (Jun. 15, 2005) at 34 (Exhibit F). Similarly, Mr. Clay
    testified that the "numbers that we proposed, the Board has now proposed
    in their
    first notice, we believe are fair
    and reasonable."
    Transcript
    of
    Proceedings Held July
    27, 2005,
    R04-22A (Aug. 8, 2005) at 55 (Exhibit G). See also
    Illinois Environmental
    Protection Agency's Post Hearing Comments,
    R04-22A (Sep. 23, 2004)
    at 7-8
    (Exhibit
    P) (amounts set forth in Subpart H "are reasonable for the work being
    performed" and "generally consistent with the amounts owners and operators request
    for reimbursement
    and the amounts the Illinois EPA approves"). Moreover, the
    Board expressly found that, except
    as rejected with respect to professional services,
    the Board has found the maximum payment rates to be 'reasonable' and not in
    'excess'
    of activities necessary to meet the 'minimum'requirements of the Act.
    Opinion and Order
    of
    the Board,
    R04-22 (Dec. 1, 2005) at 62-63 (Exhibit J).
    Because the services provided by Prairie are only a part of those covered by the
    Subpart H lump sum, the Agency's demand for documentation of Prairie's charges
    and its attempt to limit reimbursement
    to those amounts is improper. In this regard,
    Rezmar Corp.
    v. IEPA, PCB 02-91 (Apr. 17, 2003), and Malkey v. IEPA, PCB 92-104
    (Mar.
    11, 1993), cited in the Motion, are inapposite because both involved appeals
    before the Agency
    and Board adopted the bundle-of-services, lump-sum approach.
    Moreover, historically the usual function of subcontractor invoices was
    as
    evidence for a consultant's handling charge, not at issue here (see
    Transcript
    of
    Proceedings Held Aug.
    9,
    2004,
    R904-22 (Aug. 20, 2004) at 37 (Exhibit I)), and the
    Agency told the Board
    in the rulemaking that "[w]ith the new streamlining process"
    - 17-
    Electronic Filing, Received, Clerk's Office, August 28, 2007
    many documents "will no longer be submitted to the Agency", specifically citing
    subcontractor invoices.
    !d.
    at 45. indeed, it said a reimbursement application
    properly could include merely "an invoice with a minimum amount of information to
    document the costs requested for reimbursement (e.g., the task performed, the
    amount charged for the task, and the date the task was conducted)."
    Comments
    of
    the Illinois Environmental Protection Agency,
    R04-22A (Sep. 23, 2005) at 19 (Exhibit
    K). PMA has provided
    at least
    that information here.
    9
    it bears noting that in offering those final comments, in an attempt to beat back
    industry proposals and to obtain approval of its proposals, the Agency
    repeatedly
    stressed that USI supported or did not object to provisions which were in fact adopted
    by the Board.
    Id.
    at 16, 18, 20, 21, 22, 23, 25, 26. It is disconcerting that after
    having explained its proposals
    in ways designed to win USI's and the Board's
    approvals, the Agency now seeks to breach those representations.
    VI.
    CONCLUSION.
    The statute makes clear that when, as here, an owner-operator seeks reimburse-
    ment for
    an amount equal to or less than that set forth in a previously-approved
    budget, the Agency
    is supposed to abide by its previous decision that the budgeted
    costs are "reasonable" and to "be incurred
    in the performance of ... corrective action
    activities [not]
    in excess of those required to meet the minimum requirements" of the
    Act (see
    pp. 4-5, 6-7 above). Moreover, in approving the Subpart H rate at issue, the
    Board found it "to
    be 'reasonable' and not in 'excess' of activities necessary to meet
    9 See pp. 2-3 above. The Motion (at 5) disparages USI's use of a "stock items" form for billing of the
    service at issue, but of the forms available (see
    p. 2 above), all prepared before Subpart H was issued,
    none was
    more
    apt. In any case, the Decision was not based on use of the wrong form, and the
    Motion, it aptly may be said, seeks to put form above substance.
    - 18-
    the 'minimum' requirements of the Act" (p. 17 above). As the Agency repeatedly
    made clear (pp. 11-15 above), under its proposals the sum allowed for sample
    handling and analysis tasks covers not just the laboratory analysis of the soil, but
    everything related thereto. Thus, under the regulation as adopted the lump sum at
    issue "must include, but [is] not limited
    to, those associated with the transportation,
    delivery, preparation, and analysis of samples, and the reporting of sample results"
    (35
    ILL.
    ADM. CODE
    §
    732.835). Here Prairie merely analyzed the samples and
    reported the results to US/. Everything else was done and provided by US/.
    It was the Agency which proposed the lump-sum, bundle-of-services approach
    which now applies, and it did
    so on the logic that it would review less paperwork and
    on the assurance that applications which were within previously-approved budgets
    and the Subpart H limits would
    be paid (pp. 8-11, 15 above). Its current attempts to
    walk away from its representations,
    and to evade the terms of the law, must be
    rejected. The reimbursement sought by PMA was proper, and PMA submitted
    appropriate documentation thereof
    (pp. 2-3, 17-18 above). The denial of the claim
    was thus erroneous.
    For all the foregoing reasons, the Agency's Motion must
    be denied.
    August
    28,2007
    PMA & ASSOC., INC.
    John
    T. Hundley
    Mandy
    L. Combs
    THE SHARP LAW FIRM, P.C.
    P.O. Box 906 - 1115 Harrison
    Mt. Vernon,
    IL
    62864
    618-242-0246
    Counsel for Petitioner PMA
    &
    Associates, Inc.
    - 19-
    Amendment Number:
    1818995011
    November
    1,2002
    x
    ----
    Site Classification
    January 5,2005
    This form must be submitted in duplicate.
    The Agency
    is
    aulhorized
    to
    require tbis informt3ioo under 415 ILCS 5/1. Disclosure of
    !his .
    r"'Illite<!. failure to 00 so may result in the delay
    crt
    denial of any budget or P"Y"'ont_
    This form has boen approved
    by
    the Forms Management Cent"'.
    _S"""W......"C"""o.,;,.;m.,;,.;e_T_R..;.ol1_t_e,.;.;,3.,,;aIl=d.;.;.R;;.:;o..:.;u.;..;:te:.-l:..4;..;;6
    City:
    Jonesboro (Ware Township)
    ..;;.;;.;;;;.;;.;;.;;......
    IEPA Generator No.:
    Site
    Address:
    Zip:
    62952
    County:
    lEMA Incident No.: 20021598
    IEMA Notification Date:
    ~~;.;:.;.-=---------
    ____Billing Package for costs incurred pursuant to 35 Illinois Administrative
    Code (lAC), Part 732
    ("new program").
    Name(s) ofreport(s) documenting the costs requested:
    BILLING FORM FOR
    UNDERGROur~D
    TANKS SITES
    _______________Date(s):
    DO NOT SUBMIT "NEW PROGRAM" COSTS AND "OLD PROGRAM"
    COST AT THE SAME TIME, ON THE SAME FORMS.
    x
    Budget Proposal
    ____Budget Amendment (Budget Amendments must include only the cost
    over the previous budget.)
    Site Name:
    1:P~MA~~~~~i.In~c
    _
    This
    fonn is being submitted as a:
    Date this form was Prepared:
    This form is being submitted for the Site Activities indicated below (check one):
    ____Early Action
    ----
    Other (indicate activities)
    ----
    Low Priority Corrective Action
    A. SITE INFORMATION
    IL 532-2263
    LPC 494 Rev. 2/99
    lEMA No.
    20021598
    Number of Petroleum USTs in Illinois presently owned or operated
    by
    the owner or operator; allY subsidiary,
    parent or joint stock company of the owner or operator; and any company owned by any parent, subsidiary or
    joint stock company of the owner or operator:
    Zip: 62998
    20021598
    State:
    .:.:::.
    _
    101 or more:
    _
    _---:.7__(Number ofUSTs includes USTs presently at the site and USTs that have
    A-2
    This form must be submitted ill duplicate.
    Fewer than 101:
    --..:..:;;.--
    If
    eligible for reimbu..rsement, where should reimbursement checks be sent? Please note that only owners or operators
    ofUSTs may be eligible for reimbursement. Therefore, payment can only be made to an owner or operator
    Pay to the order of:
    City: WolfLake
    Send in care of:
    JDim
    Montgomery
    Address: 6860 State Route 3 North
    Number ofUSTs at the site:
    been removed) -
    Number ofincidents reported to IEMA:
    Incident Numbers assigned to the site due
    to releases from USTs:
    Please list
    all tanks which have ever been located at the site and are presently located at the site.
    Size
    Did UST
    Type of
    Product Stored
    (gallons)
    have a release?
    Incident
    No.
    Release
    GASOLINE
    3,000
    IYesl
    No
    20021598
    UST System
    GASOLINE
    1,000
    [!§J
    No
    20021598
    UST System
    GASOLINE
    1,000
    IYesl
    No
    20021598
    USTSystem
    GASOLINE
    4,000
    @s]
    No
    20021598
    UST System
    GASOLINE
    2,000
    [!§J
    No
    20021598
    UST System
    DIESEL
    4,000
    IYesl
    No
    20021598
    USTSystem
    DIESEL
    2,000
    ~
    No
    20021598
    USTSystem
    Yes
    No
    Yes
    No
    Yes
    No
    Yes
    No
    lEMA No. 20021598
    __....;$;:..;:0-,,0;.;;.0
    (or)
    _--:;;$2:::;z.,4.;,;;O~O.:.;;.OO=--_(
    or)
    $0.00
    post remediation cont. samples
    $0.00
    Method
    ill
    _..;.$;;;;.20;;.;;•
    .;;..OO;......._per foot
    Total Feet to be Bored:
    per Hour =
    Total Feet bedrock to be Bored:
    120
    feet to be bored for
    ""
    ----
    feet to be bored for
    _____per foot bedrock
    =
    feet x
    ----
    ft
    ofbedrock
    =
    ----
    ft
    ofbedrock
    =
    feet x $.
    120
    Method II
    feet
    =
    feet to be bored for
    --~-
    ----
    ----
    feet
    =
    ----
    feet to be bored for
    ____feet
    =
    feet to be bored for
    COSTS
    Rourn
    ------
    x
    _8_borings to
    Borings:
    borings to
    __borings to
    __borings to
    __borings to
    Borings:
    __borings through
    __borings through
    -----
    Hoursx$
    Method I
    ~---
    1.
    Drilling Costs - This includes the costs for drilling labor, drill rig usage, and other drilling equipment.
    Borings which
    are to be completed as monitoring wells should be listed here. Cost associated with
    disposal
    of cuttings should not be included here.
    An
    indication must be made as to why each boring is
    being conducted (I.e., classification, monitoring wells, migration pathways).
    E.
    ofMobilizations @
    ~.......;;$..;.2.;;..50';';'.;..00.;....~per
    mobilizations
    =
    $250.00
    Number
    Other Cost
    ofunits
    Unit cost Total Cost
    Headspace
    Analysis Containers (Inv. Samples)
    8
    ea
    $O.i5
    $1.20
    VOA Sampler Kits
    (!nv.
    Samples)
    8
    ea
    $10.00
    $80.00
    Latex Gloves (Inv. Samples)
    8
    or
    $0.40
    $3.20
    2.
    Professional Services (e.g., P.E., geologist) -
    section ofthe fonus.
    These costs must be listed
    in
    Section I, the Personnel
    E-l
    This form must submitted in duplicate.
    lEMA No. 20021598
    4.
    Disposal Costs. This includes the costs for disposing ofboring cuttings and any water generated while
    perfonning borings
    or installing wells.
    Number
    Materia!
    of units
    Unit cost Total Cost
    $0.00
    $0.00
    _____per
    drum =
    _____per gallon
    =
    E-2
    $2,734.40
    ____gallons x
    ----
    drums x
    Tbis form must submitted in duplicate.
    Disposal
    of Cuttings:
    Disposal of Water:
    Describe how the water/soil will be disposed:
    Transportation Costs:
    3.
    Monitoring Well. Installatioll Materials
    ~
    Costs listed here must be costs associated with well casing
    well screens, filter pack., annular seal, surface seal, well covers, etc. List items below in a
    time
    and
    materials format.
    Total Investigation Costs:
    1.
    Pbysical Soil Analysis. This must only include
    analysis
    costs for classification ofsoil types at the site.
    Preparation of
    CAP
    This form must submitted in duplicate.
    __________samples x
    sample
    =
    lEMA No.
    20021598
    analpsis
    only.
    ______pel' sample--
    sample
    =
    ______per sample ==
    ______per sample ==
    _
    _______per sample =
    _
    ______per sample
    =
    _
    sample
    ==
    _______per sample
    ==
    ~
    _______per sample =
    .....,__
    ~
    _______per sample
    =
    _
    _______. per sample =
    _
    _______persample==
    _
    ______persample=
    _
    ______persample=
    _
    _______persample=
    _
    __________samples x
    __________samples x
    __________samples x
    __________Saillples x
    ----------
    samples x
    __________samples x
    __________samples x
    __________samples x
    __________Saillples x
    __________samples x
    __________samples
    x
    __________samples x
    __________samples
    x
    __
    ~-------samples
    x
    sample ==
    _
    Indicate method to be performed:
    __________samples x
    per sample
    =
    _
    __________samples x
    per sample
    =
    Indicate method to be performed:
    __________samples x
    per sample =
    __________samplesx
    sample=
    _
    _ .......-::-_.......
    _~--=samples
    x
    per sample
    ==
    Indicate the ASTM or SW.846 method to be performed:
    __________samples x
    per sample =
    ----------
    samples x
    ----------
    samples
    x
    Soil Analysis Costs - This must be for laboratory
    Preparation of
    CAP
    Groundwater Remediation
    2.
    F.
    ANALYSIS COSTS
    $5.00
    $85.00
    $85.00
    $10.00
    $680.00
    IEMANo.
    ~_
    ..........
    20021598
    ......,;......,;---
    __
    $;;;.,;8;.;;5;.;...0~0:......._per
    sample Q
    sample
    ==
    ------
    per sample =
    sample =
    _________ per sample
    ==
    ------
    per sample
    ==
    ------
    _______perper samplesample
    =
    ""
    _______per sample
    ==
    ------
    ________
    perper samplesample
    =
    =
    ______.•
    ~-
    sample =
    ______per sample
    =
    _______per sample
    =
    _______________ samples
    x
    _______,......__samples x
    ___________samples x
    __________samples x
    _________-'--samp]es
    x
    ____________sampksx
    ___________samples
    x
    __________samples
    x
    __=;;;.;,;;.;;...__per sample
    Q
    ________per sample
    ==
    --......,;---
    per sample
    =
    __...::.::..:.;;.,;,__per sample
    ==
    --';";;;';~'---
    per sample
    ==
    Flashpoint*
    samples
    x
    $25.00
    per sample
    =
    Paint Filter'"
    samples
    x
    $10.00
    per sample
    Q
    "'denotes samples necessary tor landfill acceptance
    __________samples x
    peT
    sample ""
    ___________samples x
    per sample
    =
    ___________samples x
    per sample Q
    ___________samples x
    per sample Q
    Excavation & Disposal
    21
    BTEX
    samples x
    $85.00
    samples x
    BTEX*
    samples x
    $85.00
    1
    pH*
    samples x
    $5.00
    TCLPLead *
    samples x
    $85.00
    Alternative Technology
    8
    .;;:;B..;TE_X
    saIDples x
    ___________samples x
    ___________samples x
    ______________
    sam~esx
    ____________samples x
    ___________ samples x
    3.
    Groundwater Analysis Costs -
    This
    must be for laboratory
    ana(vsis
    only.
    Preparation of CAP
    __________samples x
    _______per sample
    =
    ____________samples x
    ______per sample ==
    __________samples x
    F-2
    _______per sample
    =
    This form must submitted in duplicate.
    lEMA No.
    20021598
    Groundwater Remediation
    samples x
    per sample ""
    samples x
    per sample ""
    samples x
    per sample ""
    samples x
    per sample =
    samples x
    per sample =
    samples x
    per sample =
    samples x
    per sample =
    samples x
    sample =
    samples x
    sample =
    Excavation & Disposal
    samples x
    per sample ""
    samples x
    per sample
    =
    samples x
    per sample =
    samples x
    per sample =
    samples x
    sample =
    samples x
    per sample =
    Alternative TechlJlolgy
    samples x
    per sample =
    samples x
    per sample =
    samples x
    sample
    =
    samples x
    per sample
    =
    samples x
    per sample ""
    samples x
    per sample ""
    TOTAL ANALYSIS COST
    =
    F-3
    This form must submitted in duplicate.
    $2,675.00
    owner
    $216.00
    $3,325.00
    IEMANo.
    20021598
    hours x
    $95.00
    hours x
    $108.00
    per hour '"
    hours x
    hours x
    $2,850.00
    hours x
    $35.00
    per hour '"
    $175.00
    CA Work:
    Onsite Prof. oversight, kickoff meeting
    hours x
    $50.00
    per hour
    '"
    $600.00
    hours
    x
    $95.00
    per hour '"
    CA Work:
    Proj. Admin, vendor carr., landfill acceptance/waste char.
    dientlIEPA corr., CACR work
    hours
    x
    $115.00
    per hour
    =
    $805.00
    Report Prep: CAP Budget, Reimbursement pkg and CACR certification
    hours x
    $65.00
    per hour
    =
    $975.00
    Report Prep: CAP compilation, miscellaneous corr.
    hours x
    $65.00
    per hour
    =
    $2,600.00
    CA Work:
    Ian
    Reim. Reg:
    Preparation of reimbursement packages
    Report Prep: CAD Maps, figures (CAP and post remediation maps)
    Report Prep: Manifests, copying and mailing
    Report Prep: Hydraulic conductivity calculations for modelling
    G-l
    PROJECT MANAGER
    35
    (Title)
    Task
    to be performed for the above hours:
    PROFESSIONAL ENGINEER:
    7
    (Title)
    Task to be performed for the above hours:
    ASSISTANT PROJECT MGR:
    15
    (Title)
    Task to be performed for the above hours:
    ASSISTANT PROJECT MGR:
    40
    (Title)
    Task to be performed for the above hours:
    Tbis form must be submitted in duplicate.
    PROJECT MANAGER
    30
    (Title)
    Task to be performed for the above hours:
    PROJECT MANAGER
    45
    (title)
    Task
    to
    be performed for the above hours:
    All personnel cost that are not included elsewhere in the budget/billing fonn must be listed here. Cost must be listed per
    task,
    not personnel type. The following are some examples oftask: Drafting, data collection, plan, report, or budget
    preparation
    (Le., site classification work plan, 45 day report, or high priority corrective action budget), sampling, field
    oversite (i.e., drilling/well installation, corrective action, or early action), or maintenance.
    The above list is not inclusive
    ofall possible task.
    PROJECT COORDINATOR
    30
    (Title)
    Task to be performed for the above hours:
    DRAFTSMAN
    12
    (Title)
    Task to be performed for the above hours:
    CLERICAL I-A
    5
    (Title)
    Task
    to be performed for the above hours:
    DIVISION MANAGER.PG
    2
    (Title)
    Task to be performed for the above hours:
    ENVIRONMENTAi TECH
    60
    (Title)
    Task
    to be performed for the above hours:
    ENVIRONMENTAL TECH
    10
    hours x
    (Title)
    Task to be perfonned for the above hours:
    ..:C;;:.A;;;..,;,W.:..;o;;;.;r;.;;k;;;.:
    _TP:=:o~st:.:.re;;;;m=ed=i;;.;:at;;;.;io;.;;n;.,;;s;,;;;am=p..:.:lin:;;jg;;;.;:_P;;.;I;;;;D~,..;;;s.;;;;;am..:.:p&,;l;;;.e..;;c.;;;.ol;;;.le;;.;c;.;;;ti;.;;o;;;;n,~b;.,;;o;;,;;.rm;;;;·
    :lijg,--
    logs
    G.
    PERSONNEL
    IEMA No.
    20021598
    _____per hour '"
    (Title)
    ----
    hours x
    _____per hour '"
    Task to be perfonned for the above hours:
    ~E:::x~c:.::.av.:..:a:.:t::.:io::::n~:
    _
    (Title)
    ----
    hours x
    Task to be perfonned for the above hours:
    .::E:;:;x::::c:.::a~va::t::.=:io~I1~::.....-
    _
    Excavation and Disposal
    (Title)
    ----
    hours
    x
    _____per hour '"
    Task to be performed for the above hours:
    .::E;:;x~c:.::a:.;v:l1l:.:.:t~io~n~::......
    _
    _____per hour '"
    _____per hour
    =
    _____per hour
    =
    _____per hour =
    (Title)
    ----
    hours x
    Task to be perfonned for the above hours:
    .:::E~x::::ca:::.v:.:a;:,:t:.:::io~n::.:
    _
    (TItle)
    ----
    hours x
    Task to be perfonned for the above hours:
    .:::E~x::::c:.::.av:.:a;:,:ti:.:::·o~n::.:
    _
    ____hours
    x
    (Title)
    Task to be performed for the above hours:
    ~E:.;x~c~lIv:.;a::t::.:io~J!I.~::......
    __
    (Title)
    Task to be performed for the above bours:
    .::E;:;x~c~av:.;a::t::.:io~n.:..:::......
    __
    ----
    hours x
    Backfill
    (Title)
    ----
    hours x
    _____per hour ""
    Task to be performed for the above hours:
    ~B~a~c~kfi~d~I::...-
    _
    ____hours x
    _____per hour =
    (Title)
    Task to be perfonned for the above hours:
    ~B~a~c~k.fi~il~I.::...:
    _
    (TItle)
    ----
    hours x
    _____per hour
    =
    Task to be perfonned for the above hours:
    ~B~a~c~kfi~l~ll:..:
    _
    _____per hour
    =
    _____per hour =
    ____hours x
    (Tide)
    Task to be performed for the above hours:
    ~B~a~c~kfi~l~U.::...:
    _
    (Title)
    ----
    hours x
    ,Task to be perfonned for the above hours:
    ..::B=a::::c::kfi~il~l::......
    _
    ____hours
    x
    _____per hour
    =
    (Title)
    Task to be perfonned for the above hours:
    .:B~a~c~kfi~I~II.::...:
    _
    ____hours x _____per hour
    =
    (Title)
    Task to
    be
    perfonned for the above hours:
    ~B;;::a~c:.::kfi~l~n.::...:
    _
    G-2
    This form must be submitted in duplicate.
    lEMA No.
    20021598
    Groundwater Remediation
    (Title)
    ----
    hours x
    per hour '"
    Task to be performed
    for the above hours:
    Groundwater Remediation:
    ____------ x
    perhour =
    (Title)
    Task to be performed
    for the above hours:
    Groundwater Remediation:
    150
    hours
    x
    Alternative Teclmolo :
    Alternative Technology:
    $55.00
    $8,250.00
    $45.00
    hours x
    LABORER
    (Title)
    Task to be perfonned for the above hours:
    Alternative Technology
    OPERATOR
    150
    (Title)
    Task to be performed for the above hours:
    on
    g
    $32.50
    hours
    x
    Alternative Technolo :
    SITE SUPERVISOR
    150
    {'ntle}
    Task
    to
    be perfonned for the above hours:
    DRIVER I-A
    150
    hours x
    (Title)
    Task to be performed for the above hours:
    DRIVER
    H-B
    8
    hours
    x
    (l'tqe)
    Task to be perfonned for the above hours: Alternative Technology:
    haul excavator to and from site
    hour
    =
    (TItle)
    ----
    hours
    x
    hour
    =:
    Task to be performed for the above hours:
    .:.A.:;;:;I:;;;te:.::.r.:.:n::.at::.:iv.:..;e::..T;;;.e;:;c:.::h::;:;lIl;;:;:o:.:logy~:...:
    _
    (Title)
    ----
    hours x
    Task to be performed for the above hours:
    .:.A::.:I~te:::.r.::::D1.:::at~iv.:..;e::..T~ec~b:.:n:.:::o~lo:,g:gy~:
    _
    Transportation
    _____per hour
    =
    _____per hour ""
    (Title)
    ----
    hours
    x
    -----
    per hom
    =:
    Task to
    be performed for the above hours:
    ...:T::..::r.:::a.:::lls:::Jp~o~rt.:::a:::.:t~io~Il~:
    _
    (Title) .
    ----
    hours x
    Task to be perfonned for the above hours:
    ...:T;.::,r.::a.:.:.l1ls:::Jp::.::o:.;::,rta.=.::t::.::io~n:.:..:
    _
    (Title)
    ----
    hours x
    Task to be performed for the above hours:
    ...:T:.:.r.::a::ns::J;p::.::o:.;::,r.::ta::.::t.:.:.io~n:.:.:
    _
    TOTAL PERSONNEL COST __
    --::::.:$5:.:2~,7...:.46:::.:.,;;.;OO::..._
    __
    G-3
    This form must be submitted in duplicate.
    This form must be submitted in duplicate.
    Own or
    Total
    Equipment
    Rent?
    Time
    Used
    Unit Rate
    Cost/Item
    CA Oversight
    Utility Vehicle (PM meeting and rem. kickoff)
    Own
    3
    day
    $60.00
    $180.00
    Utility Vehicle (Remediation-Technician)
    Own
    15
    day
    $60.00
    $900.00
    Utility Vehicle (Investigation-Technician)
    Own
    1
    day
    $60.00
    $60.00
    PID (Remediation)
    Own
    15
    day
    $105.00
    $1,575.00
    Pill (Investigation)
    Own
    1
    day
    $105.00
    $105.00
    Groundwater Remediation
    Excavation
    &
    Disposal
    Excavation Transportation
    Subtotal Page H-l
    $2.820.00
    lEMA No.
    -----'''-'---'-
    20021598
    All Equipment must be listed below
    in
    a time and materials format.
    Handling charges should not be
    added here; use Section J
    B-1
    H.
    EQUIPMENT COST
    I
    Own or
    Total
    Equipment
    Rent?
    Time Used
    Unit Rate
    CostlItem
    Backflll
    Backfill Transportation
    Alternative Technology
    Excavator (excavate contaminated soil)
    Own
    15
    day
    $775.00
    $11,625.00
    Semi Trailer wlDump
    Bed (haul cont. soiJlbackfill)
    Own
    150
    hour
    $32.50
    $4,875.00
    Semi wlLowboy (haul excavator to and from site)
    Own
    10
    hour
    $55.00
    $550.00
    Backhoe (backfill excavation, break up cont. soil)
    Own
    15
    day
    $200.00
    $3,000.00
    Service Vehicle
    Own
    15
    day
    $60.00
    $900.00
    Utility Vehicle
    Own
    15
    day
    $60.00
    $900.00
    Skidsteer wfTiller Attachment
    Own
    150
    hour
    $35.00
    $5,250.00
    Dovetail Trailer (haul backhoe)
    Own
    2
    day
    $50.00
    $100.00
    5
    Ton Trailer (haul Skidsteer)
    Own
    2
    day
    $50.00
    ' $100.00
    Service Vehicle (post rem. soil sampling/haul skidder)
    Own
    1
    day
    $60.00
    $60.00
    Imperial Trailer (post remediation soil sampling)
    Own
    1
    day
    $45.00
    $45.00
    Case Skidsteer with Sampling Attachment
    Own
    10
    hr
    $35.00
    $350.00
    Subtotal Page H-2
    $27.755.00
    Total (Pages H-l and H-2)
    $30.575.00
    lEMA No.
    20021598
    ----'-"=;.;;.;;,--
    H-2
    This form must be submitted in duplicate.
    IEMA No.
    20021598
    I.
    FIELD PURCHASES AND
    OTHER COST.
    All field purcl1ases must be listed below
    in
    a time and materials format. Handling charges must not be added
    here; use Section J, Handling Charges to calculate the handling charges.
    Do Handling
    Field Purchase
    Quantity
    PricelItem
    Total Cost
    Charges
    Apply
    CA
    Oversight
    Camera
    2
    $10.00
    each
    $20.00
    N
    VOA Sampler Kits
    21
    $10.00
    each
    $210.00
    N
    LatexGloves
    21
    $0040
    each
    $8.40
    N
    Photo Processing
    2
    $7.50
    each
    $15.00
    y
    Sample Shipment
    3
    $50.00
    each
    $150.00
    y
    Hearlspace Analvsis Containers
    21
    $19.00
    each
    $399.00
    N
    TreatabilitylFeasibility Study
    I
    $3,500.00
    each
    $3,500.00
    y
    Groundwater Remediation
    Excavation & Disposal
    Landfill Disposal Fee (per ton)
    350
    $16.50
    ton
    $5,775.00
    N
    OTR Pen:nits
    1
    $50.00
    each
    $50.00
    y
    Manifests
    10
    $1.00
    each
    $10.00
    N
    Backfill
    Backfill
    Clay
    tons
    0
    $0.00
    ton
    $0.00
    N
    Backfill
    CA-6
    tons
    350
    $10;00
    ton
    $3,500.00
    y
    Backfill
    Type
    tons
    0
    $0.00
    ton
    $0.00
    N
    Transportation
    Visaueen
    500
    $0.75
    ft
    $375.00
    N
    Alternative Technology
    Chemical Oxidation Compound
    9396
    $4.00
    Ib
    $37,584.00
    N
    Catalyst
    1879
    $1.00
    Ib
    $1,879.00
    N
    Nitrile Gloves
    30
    $0.50
    pair
    $15.00
    N
    Polycoated Tyvek Suits
    3
    $27.50
    each
    $82.50
    N
    I
    Subtotal Page I-I
    $53,572.90
    I-I
    This form must be submitted in duplicate.
    lEMA No. __.:;;.20,;;,,;0;.;;;2;.;;;.15;;.;;9...;;8__
    Other cost
    ~
    A listing and description of all other oost which will be/were incurred and are not specmcially
    listed on this form should be attached. The listing should include a cost breakdown
    in
    a time and materials
    fonnat.
    Other Cost
    Quantity
    Price/Item
    Total Cost
    TOTAL OTHER COSTS ==
    $0.00
    Subtotal Page 1-)
    $53,572.90
    Total P es
    1m}
    and 1-2
    1-2
    This form must be SlJ bmitted ill duplicate.
    $53572.90
    lEMA No. _---=2.;;.,;00;,.::;2.::.;;15;.:;,9.;;.,.8__
    J.
    HANDLING CHARGES
    Handling Charges are eligible for payment on subcontractor billings and/or field purchases only ifthey are
    equal
    to or less than the amounts determined
    by
    the following table:
    Subcontractor or Field
    Purchase Cost
    $1 • $5,000
    $5,001 - $15,000
    $15,001 • $50,000
    $50,001 - $100,000
    $100,001 - $1,000,000
    A.
    Subcontractor Charges
    Eligible Handling Charges as a
    Percellltage
    of Cost
    12%
    $600
    +
    10% ofamt. over $5,000
    $1,600
    +
    8% of amt. over 15,000
    $4,400
    + 5%
    of amt. Over $50,000
    $6,900
    +
    2% ofamt. over $100,000
    Section
    in
    these
    Formswbere
    Subcontractor
    Cost is Listed
    Subcontract Amount
    Subtotal J-1 Subtotal:
    $0.00
    J-1
    THIS FORM MUST BE SUBMITTED IN DUPLICATE
    This form must be submitted in duplicate.
    "Use chart at top ofPage J-I to calculate the allowable handling charge.
    Copies
    of invoices for subcontractor costs and receipts for field purchases are required for billing submissions.
    Field Purchase
    Field Purchase Amount
    Photo Processing
    $15.00
    Sample Shipment
    $150.00
    TreatabilitylFeasibility Study
    $3,500.00
    OTRPerrmts
    $50.00
    Backtill
    $3,500.00
    Subtotal Page J-2
    $7.215.00
    Subtotal Pages J-l and
    J~2:
    $7,215.00
    Handlin~
    Charge*:
    $821.50
    IEMANo.
    --.....;..;;...;;.;;;.;;;.;..;...;...,.--
    20021598
    B. Field Purchase
    lEMA No.
    20021598
    L. HIGH PRIORITY CORRECTIVE ACTION
    Corrective Action at High Priorty Sites may involve both soil and groundwater remediation. Below provide a
    summary
    of costs for the remediation type{s) chosen and attach the appropriate sections ofthe budgetlbilling
    fonus to support the summary
    ofcosts.
    A.
    Preparation of the Corrective Action Plan
    1.
    Investigation Costs:
    2.
    Analysis Costs:
    "\
    .:l.
    Personnel Costs:
    4.
    Equipment Costs:
    5.
    Field Purchases and Other Costs:
    6.
    Handling Charges:
    B.
    Groundwater Remediation
    $2,734.40
    $21,181.00
    $2,820.00
    $4,302.40
    $417.30
    $0.00
    $0.00
    $0.00
    $0.00
    Analysis Costs:
    Equipment Costs:
    Field Purchases and Other Costs:
    Personnel Costs:
    -~------------';"';"'''---~--
    1.
    2.
    3.
    4.
    5.
    Handling Charges:
    $0.00
    Of
    the above cost, please provide a break down ofthe costs associated with operation and
    maintenance
    (O&M), ifapplicable, as requested below:
    ______Months ofO&M x
    ______per month
    =
    C.
    Excavation and Disposal
    1.
    2.
    3.
    4.
    Analysis Costs:
    Personnel Costs:
    Equipment Costs:
    Field Purchases
    and Other Costs:
    $1,995.00
    $0.00
    $0.00
    $6,210.00
    5.
    Handling Charges:
    $5.69
    Ofthe above cost, please provide a break down ofthe costs associated with excavation,
    transportation,
    and disposal, as requested below:
    Transportation:
    Excavation:
    Disposal:
    __
    ..;;;..;~
    __cu. yds. x __$;:;.;8;;.;;.5;..;4;......-. per cu. yds.
    =
    _...:$2=,O:.:;:6.::.:0.~69:.....-_
    __2_4_1__cu. yds. x __$.;..1_.5_5__per cu. yds.
    =
    _.....:::;$::.37:.:;5;,;.:.0:.:;:0__
    __..;;2;..;4.;;.1__
    cu. yds. x
    $23.93
    per ell. yds.
    = _...:$:;.::;5.l.:,7...:..7.::.:5•
    .;;.00~_
    Lool
    Tbis must be submitted in duplicate.
    ______permonth =
    IEMANo.
    20021598
    D.
    Alternative Tedmoiogy, Type
    1.
    Investigation Costs:
    2.
    Analysis Costs:
    $680.00
    3.
    Personnel Costs:
    $31,565.00
    4.
    Equipment Costs:
    $27,755.00
    5.
    Field Purchases and Other Costs:
    $39,560.50
    6.
    Handling Charges:
    $0.00
    Ofthe above cost, please provide a break down ofthe following costs as requested below if
    applicable:
    Excavation:
    cu. yds.
    x
    per cu. yds.
    =
    ~_
    Transportation:
    cu. yds. x
    ell.
    yds. =
    _
    Treatment:
    cu. yds. x
    per ell. yds.
    =
    _
    Operation and Maintenance
    (O&M):
    E.
    Backfill
    ------
    Costs
    Months ofO&M
    x
    1.
    2.
    3.
    Personnel Costs:
    Equipment Costs:
    Field Purchases and Other Costs:
    $0.00
    $0.00
    $3,500.00
    4.
    Handling Charges:
    $398.51
    Ofthe above cost, please provide a break down of the following costs as requested below if
    applicable:
    Type of backfill: Clay
    0
    ell. yds. x
    per cu. yds.
    =
    Type of backfill:
    CA-6
    241
    ell. yds. x
    $16.15
    per
    cu. yds. =
    $3,898.51
    Type of backfill: TyPe
    0
    cu. yds. x
    per cu. yds. =
    L-2
    This must Ire submitted in duplicate.
    AND
    "'-VAAL..
    .....,,,,J.
    UNDERGROUND
    TANKS
    A. SITE INFORMATION
    Site Name:
    PMA Associates, Inc
    Site Address:
    .;;;S;..;W.;...;;C;.;;o;;;.tn;,;;e;,;;r.,;;R;;;.o;.;;u;,;;te;;..;;;.3,.;;an;,;;d;;;.;::.:R;,;;o.::ut;,;;e:..,:I:..;46:..:::..
    City:
    Jonesboro (Ware Township)
    Zip:
    ...;.;;;.;..;;.;;.---------
    62952
    County:
    Union
    IEPA Generator No.:
    -.;;.;=~------------
    1818995011
    IEMA Incident No.:
    ..:;:;.;:;;.:.;:;.;:;;;;;.;;..;;;-------
    20021598
    IEMA Notification Date:
    November 1,2002
    Date this form was Prepared:
    January
    5, 2005
    This form is being submitted as a:
    x
    Budget Proposal
    ____Budget Amendment (Budget Amendments must include
    only the
    cost
    over the previous budget.)
    Amendment Number:
    Billing Package
    for costs incurred pursuant
    to
    35 Illinois Administrative
    ----Code (IAC), Part 732 ("new program").
    This form is being submitted for the Site Activities indicated below (check one):
    Name(s)
    of report(s) documenting the costs requested:
    _...;;.;X~_High
    Priority Corrective Action
    ----
    Site Classification
    This form must be submitted in duplicate.
    The
    Agency is authorized 10 require this informtaloD undet 415 ILCS
    5/t.
    Disclosure(lf!hi~
    infonnation is
    requited. Failure (0 do so may result
    in
    the deJay {lr denial ofany bOOgel Of pa}lllent reque\"\t ooretmder.
    This form has been approved by the Forms Management Center.
    A-l
    DO NOT SUBMIT "NEW PROGRAM" COSTS AND "OLD PROGRAM"
    COST AT THE SAME TIME, ON THE SAME FORMS.
    ----------------
    Date(s):
    ____Other (indicate activities)
    ____Low Priority Corrective Action
    ----
    Early Action
    IL 532-2263
    LPC 494 Rev. 2/99
    lEMA
    N()'~.,;;;;.2.;;"cOO;.;;;2.;;;.;15.,;.9.,;.8
    ~
    If eligible for reimbursement, where should reimbursement checks be sent? Please note that only owners or operators
    of USTs may be eligible tor reimbursement Therefore, payment can only be made to an owner or operator
    Pay
    to the order of:
    .;;,P.;;,M;:;A:.;;.:.As=so;;;.c;;,;i;;;;at;;;;es;;.;,:.;;I;;,;n;;;.c
    _
    Send in care
    of:
    Address: 6860 State Route 3 North
    City: WolfLake
    State:
    ..:::..--------
    Zip: 62998
    Number of Petroleum USTs
    iIll
    Hlinois presently owned or operated by the owner or opentor; allY subsidiary,
    parent
    or joint stock company of the owner or operator; and any company owned by any parent. subsidiary or
    joint stock company of the owner or operaton
    Fewer than 10 I:
    --,;;.;;;..--
    101 or more:
    -----
    Number of USTs at the site:
    been removed)
    __7;..,..._ (Number of USTs includes USTs presently at the site and USTs that have
    Number of incidents reported
    to IEMA:
    Incident Numbers assigned
    to the site due to releases from USTs:
    20021598
    Please list all tanks which have ever been located at the site and are presently located at the site.
    Size
    DidUST
    Type of
    Product Stored
    (gallons)
    have a release?
    Incident No.
    Release
    GASOLINE
    3,000
    IYesl
    No
    20021598
    UST System
    GASOUNE
    1,000
    No
    20021598
    USTSystem
    GASOLINE
    1,000
    IYesl
    No
    20021598
    UST System
    GASOLINE
    4,000
    tyesl
    No
    20021598
    UST System
    GASOLINE
    2,000
    J!3
    No
    20021598
    UST System
    DIESEL
    4,000
    IYesl
    No
    20021598
    UST System
    DIESEL
    2,000
    ~
    No
    20021598
    UST System
    Yes
    No
    Yes
    No
    Yes
    No
    Yes
    No
    A.2
    This form must be submitted in duplicate.
    lEMA No 20021598
    E. INVESTIGATION COSTS
    Method
    I
    ----
    .Method II
    ----
    Method
    III
    Not Applicable __x.;....,_
    L
    Drilling Costs - This includes the costs for drilling labor, drill rig usage, and other drilling equipment.
    Borings which are to be completed as monitoring wells should be listed here. Cost associated with
    disposal of cuttings should not be included here. An indication must
    be
    made as to why each boring is
    being conducted (I.e., classification, monitoring wells, migration pathways),
    _~4_
    borings to
    25
    100
    feet to
    be
    bored for
    post remediation monitoring wells
    ___ borings to
    ___ borings to
    ___borings to
    ___ borings to
    ----
    feet::;
    ----
    feet to be bored for
    ____feet:::
    feet to be bored for
    -------
    ;::
    ----
    feet to
    be
    bored for
    ____feet::;
    feet to be bored for
    Total Feet to be Bored:
    100
    Hours
    ~
    x
    per hour
    Borings:
    100
    feet )(
    $23.00
    _.......;$....;2,t,;;.,3.;..OO_,O_O__(or)
    $0.00
    __borings through
    __borings
    through
    ----
    ft of bedrock ::
    ----
    ft of bedrock ::
    Total Feet bedrock to be Bored:
    Borings:
    _____Hours x $
    feet x $
    -----
    per foot bedrock
    =
    per Hour ;::
    __
    ....;$;,..;O;.;.;.O~O
    (or)
    $0.00
    --.=....._-
    # of Mobilizations
    @
    $250.00
    $250.00
    Number
    Other Cost
    of units
    Unit cos
    I
    Total Cost
    LatexGloves
    15
    pr
    $0.40
    $6.00
    Headspace Analysis Containers
    15
    ea
    $0.15
    $2.25
    2.
    Professional Services (e.g., P.E., geologist) -
    section of the forms.
    E-l
    These costs must be listed in Section I, the Personnel
    This form must submitted
    in
    duplicate.
    lEMA No.
    20021598
    3.
    Monitoring Wen Installation Materials. Costs listed here must be costs associated with well casing
    well screens, filter pack, annular seal, surface seal, well covers, etc. List items below in a time and
    materials
    format.
    Number
    Material
    of units
    Unit cost Total Cost
    Well Installation Materials
    (4 wells x 25' each)
    100
    ft
    $16.50
    $1,650.00
    ...
    4.
    Disposal Costs - This includes the costs for disposing of boring cuttings and
    any
    water generated while
    performing borings or installing wells.
    Disposal
    of Cuttings:
    Disposal
    of Water:
    Transportation Costs:
    ----
    drums x
    ____gallons
    x
    -----
    per drum =
    _____per gallon
    =
    $0.00
    $0.00
    Describe how the water/soil will be disposed:
    Total Investigation Costs:
    $4,208,25
    E-2
    This fonn must submitted in duplicate.
    ANALYSIS COSTS
    IEMANo.
    20021598
    1.
    Physical Soil Analysis - This must only include
    analysis
    costs for classification of soil types at the site.
    Preparation of CAP
    _____________________
    samp~sx
    __________________ samples x
    Indicate method to be performed:
    ____________________ samples x
    _
    ........:--__-:--
    ~<:llIJlplC~
    x
    Indicate method to be performed:
    ___________samples
    x
    _________________ samples
    x
    ____________samples
    x
    __________ per sample =
    ________per sample =
    ________per sample =
    _
    ------
    per sample
    =
    ____,..-
    per
    sample
    =
    ______per sample:=
    sample:
    _ ......--:":"
    ~
    ~
    __ samples x
    per sample :=
    Indicate the ASTM or SW-846 method to be performed:
    This form must submitted in duplicate.
    2.
    Soil Analysis Costs - This must be for laboratory
    Preparation of CAP
    ___________samples x
    __________samples x
    _____________ samples x
    ___________samples
    x
    _______________ samples
    x
    ________________ samples x
    ___________ samples
    x
    _____________samples x
    ________________ samples x
    ____________samples
    x
    Groundwater Remediation
    x
    ________________ samples x
    ___________ samples
    x
    _________________ samples
    x
    ___________samples x
    F.l
    analysis
    only.
    _______per sample
    =
    ------
    per sample:=
    ______per sample
    =
    _
    ___......;__per sample =
    -------
    per sample
    =
    ______per sample
    =
    _
    _______per sample
    =
    -------
    per sample
    =
    _____....;,,_per sample
    =
    __________
    persamp~=
    -------
    per sample:
    ________per sample =
    _______per sample =
    _
    ------
    per sample =
    _______per sample
    =
    lEMA No.
    -------
    20021598
    Excavation & Disposal
    21
    PAH(excavadon smpls)
    samples x
    $160.00
    per sample
    ==
    samples x
    sample:
    samples x
    per sample:
    samples x
    per sample
    =
    samples
    x
    per sample:
    samples x
    per sample :
    samples x
    sample
    =
    samples x
    per sample:;;
    samples x
    sample
    =
    samples x
    per sample ==
    Alternative TedullOlogy
    4
    Sulfate (pre-rem. baseline)
    samples
    x
    $15.00
    per sample
    =:
    4
    Total Iron (pre-rem. baseline) samples
    x
    $15.00
    per sample
    ==
    4
    TCLP Iron (pre-rem.
    bl)
    samples x
    $85.00
    per sample ==
    8
    PAH(post
    rem)
    samples
    x
    $160.00
    per sample ==
    8
    Sul(ate (post rem.)
    samples'x
    $15.00
    per sample
    ==
    8
    Total Iron (post rem)
    samples
    x
    $15.00
    per sample
    ==
    8
    TCLP Iron (post rem)
    samples x
    $85.00
    per sample ==
    $3,360.00
    $60.00
    $60.00
    $340.00
    $1,280.00
    $120.00
    $120.00
    $680.00
    3.
    Groundwater Analysis Costs - This must be for laboratory
    analysis
    only.
    Preparation of CAP
    __________samples x
    __________samples x
    __________samples x
    __________samples x
    __________samples x
    __________samples x
    __________samples x
    __________samples x
    ------
    _______
    perper
    sample::
    sample:
    _______per sample ==
    ------
    ______
    perper samplesample ==
    ==
    ------
    ______
    perpersample
    sample:
    ==
    ______per sample ==
    __________samples x
    _______per sample ==
    __________samples x
    _______per sample ==
    __________samples x
    sample
    ==
    F-2
    This form must submitted in duplicate.
    IEMANo.
    20021598
    Groundwater Remediation
    samples x
    sample
    =
    samples x
    per sample::::
    samples x
    per
    sample::::
    samples x
    per sample:::
    x
    per sample:::
    samples x
    per sample:::
    samples
    x
    per sample
    =
    samples
    x
    per sample:::
    samples
    x
    per sample:::
    Excavation
    &
    Disposal
    samples x
    per sample:::
    samples
    x
    per sample:::
    samples
    x
    per sample;;;;
    samples
    x
    per sample:::
    Alternative Tedm.olgy
    4
    Sulfate (baseline)
    samples
    x
    $10.00
    per sample:::::
    $40.00
    4
    Total Iron (baseline)
    samples
    x
    $15.00
    per sample:::
    $60.00
    4
    TDS (baseline)
    samples
    x
    $10.00
    per sample:::
    $40.00
    4
    Sulfate (:eost remediation)
    samples
    x
    $10.00
    per sample:::
    $40.00
    4
    Total Iron (post rem.)
    samples
    x
    $15.00
    per sample:::::
    $60.00
    4
    TDS <post remediation)
    samples
    x
    $10.00
    per sample:::
    $40.00
    4
    PAM
    (post remediation)
    samples
    x
    $160.00
    per sample:::
    $640.00
    4
    BTEX (post remediation)
    samples
    x
    $85.00
    per sample:::::
    $340.00
    TOTAL ANALYSIS COST ""
    F.3
    Tbis
    form must submitted in duplicate.
    $7,280.00
    lEMA No.
    20021598
    G.
    PERSONNEL
    All personnel cost that are not included elsewhere in the budgeubilling form must be listed here. Cost must be listed per
    task, not personnel type. The following are some examples of task: Drafting, data collection. plan, report, or budget
    preparation (i.e., site classification
    work plan, 45 day report, or high priority corrective action budget), sampling, field
    oversite (I.e., drilling/well installation, corrective action, or early action), or maintenance. The above list is not inclusive
    of
    all possible task.
    ENVIRONMENTAL TECH
    10
    hours
    x
    $65.00
    $650.00
    (TItle)
    Task
    to be performed for the above hours:
    .;;S:.;;;a:;;;;;m;;jp;.;.li;,;;;n~g::..:
    _...:Pr..:.e;,;;;-..;;.re;:;;;m,;,;;ed=i;,;;;at;;;.;io:.:n.:;..b;:;;a;;,,;;s.;;.el;;;;in:.:.;e:..;s;;;;a;;;;m;;I;p;.;,h;;;.n;>lg
    _
    $650.00
    $2,850.00
    _....;$;,.;;6.;;.5;..;.O-'-O__
    per hour ::
    _..;;;$.;;.;95;;.;,.O,,;;,.O:...-_peT
    hour ::
    (Title)
    ----
    hours
    x
    Task to
    be performed for the above hours:
    ENVIRONMENTAL TECH
    10
    hours x
    (TltIe)
    Task to be performed forthe above hours:
    ..;;S:;;;;;a:':;":.:J1p:;;;;;l:;;;;;in;l;;&!l.:.,:_...:P...:o;.;.s:.::.tr:;;;;;e;;;,:rn:;.::e;;;.;d;;;,:ia:;;t:;;;;;io:.;;;ll:..lg<,;.ro;,;;;u::;:n:;;;;;d:.;.w;.,:;a;,;;;te;;;;r.;;s:;;;;;am=p:;;;;;li;;,;,ng
    ......
    _
    PROJECT MANAGER
    30
    hours
    x
    (Title)
    Task to be performed for the above hours:
    .;;C::.:A.:;;;P:..:;,P.:;;:r.:JePl:.:::.-...:;P.,;;o:;st:.:I;.;·e;:.:rn~e;;d;::ia:rti:.:;o.:.:n.;;a:;;;;;m:;;;;;e:;;;;;n:.::.de;:;;;d;;..C.::.:..:AP~(g;z:r.;;o:;;;;;un;,;;d;;,;w:;;;;;a:.:te::.;r~r~e,;
    __
    and submittal
    _____per hour =
    ______perhour ::
    ______per hour
    =
    (Title)
    ----
    hours
    x
    Task
    to
    be
    performed for the above hours:
    ~R:.:::e:lp~o::.::;rt.::..:;.P..::.;re:lp;:.:.:
    _
    (Title)
    ----
    hours x
    Task
    to be performed for the above hours:
    ..:C::;;A~W:.:..::::o:.:rk::::_....,..
    _
    -----
    per hour ::
    -----
    per hour ::
    -----
    per hour ::
    ------
    per hour ::
    (Title)
    ----
    hours
    x
    Task to be performed for the above hours:
    .:R:.::e:.:im::::..• .:::R::e:.:llq..::.;:
    _
    (Title)
    -----
    hours
    x
    Task to be performed
    for the above hours:
    .:R;,;;;e:Jlp:;;;o;.;,rt;;,.;;;.P,;;.;ll'e:;Jp;,;,:
    _
    (Title)
    ----
    hours x
    Task to be performed for the above hours:
    .:R::::e:!:p~o;:.rt:;,;P:;,;ll':.:e:!:p:;.:
    _
    (Title)
    ----
    hours x
    Task
    to be performed for the above hours:
    (Title)
    ----
    hours x
    Task to be performed for the above hours:
    -----
    per hour ::
    ----
    hours
    x
    _____per hour ::
    Task to
    be performed for the above hours:
    ~C~A.:...::.W.:.::o~r.;::k~:
    _
    G.}
    This form must he submitted in duplicate.
    20021598
    _____1'-- hour :::
    hour =
    lEMA No.
    _____per hour :::
    _____1'-- hour
    =
    _____1'-. hour
    =
    _____per hour ""
    _____per hour
    =
    _____per hour :::
    _____ per hour :::
    _____ per hOllr :::
    _____per hour :::
    _____.1""--
    hour :::
    _____per hour :::
    _____per hour =
    ----
    hours x
    ____hours x
    ____hours x
    ____hours
    x
    ____hours
    x
    ____hours x
    ----
    hours
    x
    ____hours x
    ----
    hours x
    ----
    hours x
    ----
    hours x
    ----
    hours x
    ----
    hours x
    (Title)
    Task to be performed for the above hours:
    x
    (Title)
    Task to
    be performed for the above hours:
    (Title)
    Task to be performed for
    the above hours:
    .=E~x~c~av~a~t~io~n~:
    _
    (Title)
    Task to be performed for the above hours:
    Task to be performed for the above hours:
    (Title)
    Task to
    be
    performed for the above hours:
    (Title)
    Task to
    be performed for the above hours:
    (TItle)
    Task to be performed for the above hours:
    ~B~a~c::;kfiI~I~:
    _
    This form must be submitted in duplicate.
    G.2
    (Title)
    Task to be performed for the above hours:
    !;B~a~c~kfi~a~Il:...:
    _
    (TItIe)
    Task
    to be performed for the above hours:
    .!B~a~c~kfi~B~n!:...:
    ....;
    _
    (TItle)
    Task to be performed for the above hours:
    (TItle)
    Task to
    be
    performed for the above hours:
    (Title)
    Task
    to be performed for the above hours:
    ~B~a~c~kfi~l~n~:
    _
    (TItle)
    Task to be performed for the above hours:
    ~B:::;a~c~kfi~I~Il.:..:
    _
    Excavation and Disposal
    Backfill
    IEMANo.
    Groundwater Remediation
    ____hours x
    hour
    :=
    (Title)
    Task to be performed for the above hours:
    .::G~r~o:.=;u:.=;n~d~w~a~te~>r~R~em~ed~l~·a~ti~o~n:.:..:
    _
    ____hours x
    hour
    =
    (TItle)
    Task to be performed for the above hours: .
    .::G~r~o:.=;u~l1l:.:;d~w~a~t~er~R~em~e~dl~·a~ti:::o:::n:.:..:
    _
    ----
    hours
    x
    AlteJrnillUve Technology
    (Title)
    Task to be performed for the above hours:
    _____per hour
    :=
    Alternative Technology:
    (Title)
    Task to be performed for the above hours:
    _____per hour
    Alternative Technology:
    _____per hour
    =
    _____per hour ::;
    _____per hour
    :=
    _____per hour =
    _____per hour
    =
    ____hours x
    (Title)
    Task to be performed for the above hours:
    .!.A~I~te~r~n~at~i~ve~T-=e~ch~l1I:::o~lo~g~yt.::
    _
    ----
    hours
    x
    (lltle)
    Task
    to be performed for the above hours:
    .:;A~I:::te~rn~a~ti~ve~T.::e:::;ch~n;;;:o~lo~g~yt.::
    _
    ____hours
    x
    Cl'1t1e)
    Task to be performed for the above hours:
    .:;A~I:::te~:r.::n~a~ti~ve~T.::e:::;ch~n:::o~lo~gy~:
    _
    ('hUe)
    ----
    hours x
    Task to be performed for the above hours:
    .!.A~I~te~rn~a~ti~ve~T-=ee~h~n~o::;:l~ogi2.Yt.::
    _
    ____hours
    x
    (Title)
    Task to be performed for the above hours:
    .::.A~I:.:::te~r~n~a~ti~ve~T.::e~ch~n~o~l~ogi2.:Y!.::
    _
    Transportation
    _____per hour
    :=
    _____per hour =
    _____perhour =
    ____hours x
    (TItle)
    Task to be performed for the above hours:
    ..:T~r~a~ns~po~rta:.:::.t~io~n~:~
    _
    ____hours x
    (Title)
    Task
    to
    be
    performed for the above hours:
    ..;:T;.;:,r.:a;:n:=Jsp~o~rta.=t~io~n;:;.:
    _
    (Title)
    Task to be performed for
    the
    above hours:
    .;T~r~a~n~spr;::o~rt~at~i()::::n~:
    - __-----_
    ____hours
    x
    TOTAL PERSONNEL COST __
    .......:::$..:,:4,,;;.;:15:.;:;O,;;;:.O.:;,.O
    _
    G.3
    This form must be submitted in duplicate.
    H.
    EQUIPMENT COST
    LEMA No.
    --'""'-'-------
    20021598
    All Equipment must be listed below in a time and materials
    format
    added here; use Section
    J
    Handling charges should uot be
    Own or
    Total
    Equipment
    Rent?
    Time Used
    Unit Rate
    CostJItem
    CA
    Oversight
    Utility Vehicle(post remediation GW sampling)
    Own
    1
    day
    $60.00
    $60.00
    Water Level Indicator (post rem GW sampling)
    Own
    15
    day
    $30.00
    $450.00
    Groundwater Remediation
    ExcavatioD & Disposal
    Excavation Transportation
    Subtotal Page H-l
    $510.00
    H.I
    This form must be submitted in duplicate.
    lEMA No. __2..;.0.;..02..;1;,;;.5.;;.;98;;..".._
    I
    I
    Own
    or
    Total
    Equipment
    Rent?
    Time Used
    Unit Rate
    Cost/Item
    Backfill
    Backfill Transportation
    Alternative Technology
    Subtotal Page H-2
    $0.00
    Total (Pages H-l and H-2)
    $510.00
    H-2
    This
    form must be subm.itted in duplicate.
    lEMA No.
    20021598
    I.
    FIELD PURCHASES AND OTHER COST
    An field purchases must be listed below in a time and materi.als format. Handling charges must not be added
    here; use Section
    J~
    Handling Charges to calculate the handling charges.
    Do Handli.ng
    Field Purchase
    Quantity
    PricelItem
    Total Cost
    Charges
    Apply
    CA Oversight
    Sample Shipment
    I
    $50.00
    each
    $50.00
    y
    Groundwater Remediation
    Excavation & Disposal
    Backfill
    Backfill
    Clay
    tODS
    0
    $0.00
    $0.00
    Backfill
    CA-6
    tODS
    0
    $0.00
    ton
    $0.00
    Backfill
    Type
    tons
    0
    $0.00
    ton
    $0.00
    Transportation
    Alternative Technology
    ISubtotal Page I-I
    $50.00
    (-I
    This form must be submitted in duplicate.
    Other cost. A listing and description of all other cost which will be/were incurred and are not specificiaHy
    listed
    on this form should be attached. The listing should include a cost breakdown in a time and materials
    format.
    This form mlUst be submitted in duplicate.
    TOTAL OTHER COSTS ==
    $0.00
    Total Cost
    Total Pages
    1-1 and 1-2
    Subtotal Page 1-1
    $50.00
    PricelItem
    1-2
    lEMA
    No._-122.22~L_
    Other Cost
    Quantity
    J.
    HANDLING CHARGES
    lEMA No.
    _.....;;~~~_
    Handling Charges are eligible for payment on subcontractor billings and/or field purchases only if they are
    equal to or less than the amounts detennined
    by
    the following table:
    Eligible Handling Charges
    as a
    Percentage of Cost
    12%
    $600
    +
    10% of amt. over $5,000
    $1,600
    +
    8% of amt. over 15,000
    $4,400
    +
    5% of amt. Over $50,000
    $6,900
    +
    2% of amt. over $100,000
    J.l
    THIS FORM MUST BE SUBMITTED IN DUPLICATE
    Subcontractor or Field
    Purchase Cost
    $1 - $5,000
    $5,001 - $15,000
    $15,001 - $50,000
    $50,001 - $100,000
    $100,001- $1,000,000
    A.
    Subcontractor Charges
    Section in these
    Fonns where
    Subcontractor
    Cost
    is Listed
    Subcontract Aunount
    Subtotal
    J-I Subtotal:
    $0.00
    lEMA No. _.....,;2:.;0:.;:.02::.;1:..:::5.:;..98;;;...,._
    B. Field Purchase
    Field Purchase
    Field Purchase Amount
    :Sample
    ~hlPment
    $50.00
    $0.00
    Subtotal Page J-2
    $50.00
    Subtotal Pages
    J~
    I and J-2:
    $50.00
    Handline: Charge*:
    $6.00
    *Use chart at top of Page J-I to calculate the allowable handling charge.
    Copies
    of invoices for subcontractor costs and receipts for field purchases are required for billing submissions.
    J-2
    This form must be submitted in duplicate.
    PRIORITY CORRECTIVE ACTION
    lEMA No.
    20021598
    Corrective Action at High Priorty Sites may involve both soil and groundwater remediation, Below provide a
    summary of costs for the remediation type(s) chosen and attach the appropriate sections of the budgetlbilling
    forms to support the summary of costs,
    A.
    Preparation of the Corrective Action Plan
    1.
    Investigation Costs:
    2,
    Analysis Costs:
    3,
    Personnel Costs:
    4,
    Equipment Costs:
    5.
    Field Purchases and Other Costs:
    6.
    Handling Charges:
    B.
    Groundwater Remediation
    1.
    Analysis Cost,>:
    $4,208.25
    $0.00
    $4,150.00
    $510.00
    $50.00
    2.
    3,
    4.
    5.
    Personnel Costs:
    Equipment Costs:
    Field Purchases and Other Costs:
    Handling Charges:
    $0.00
    $0.00
    $0.00
    $0,00
    Of the above cost, please provide a break down of the costs associated with operation and
    maintenance (O&M), if applicable, as requested below:
    ______Months of O&M x
    C.
    Excavation and Disposal
    ......
    per month :;;
    1.
    2.
    3.
    4.
    5.
    Analysis Costs:
    Personnel Costs:
    Equipment Costs:
    Field Purchases and Other Costs:
    Handling Charges:
    $3,360.00
    $0.00
    $0.00
    $0.00
    $0.00
    Of the above cost, please provide a break down of the costs associated with excavation,
    transportation, and disposal, as requested below:
    Transportation:
    ___,;;,...
    CU,
    yds. x
    ~.
    Excavation:
    Disposal:
    ___.;;O
    CU. yds.
    x
    per cu, yds. =
    _
    ______
    O~
    cu.yds.x
    percu.yds.=
    _
    cu.yds.:;;
    _
    L.I
    This must be submitted in duplicate.
    L-2
    E.
    Backfill Costs
    This must be submitted in duplicate.
    IEMANQ.
    20021598
    $0.00
    $0.00
    $0.00
    $0.00
    $3,920.00
    ------
    per month:::
    _______per cu. yds. :::
    _
    _______per
    cu. yds.
    =
    _
    _______per
    cu.
    yds. ;;;:
    _
    Analysis Costs:
    Equipment Costs:
    Field Purchases and
    Other Costs:
    Excavation:
    TranspOliation:
    EquipmentPersonnel
    Costs:Costs:
    --------------------
    Field Purchases
    and Other Costs:
    Type of backfill:
    Clay
    0
    cu. yds. x
    Type of backfill:
    CA-6
    0
    cu. yds.
    x
    Type of backfill:
    Type
    0
    cu.yds.x
    _______cu. yds.
    x
    cu. yds. :::
    _
    yds. x
    , cu. yds. :::
    _
    Treatment
    cu. yds.
    x
    per cu. yds.
    =
    _
    Operation and Maintenance (O&M):
    ------
    Months
    of O&M
    x
    2.
    3.
    Personnel Costs:
    6.
    Handling Charges:
    Of the above cost, please provide a break down of the following costs as requested below if
    applicable:
    4.
    5.
    4.
    Handling Charges:
    $0.00
    Of the above cost, please provide a break dol,\'!1 of the following
    cost~
    as requested below if
    applicable:
    1.
    2.
    3.
    D.
    Alternative Technology, Type
    1.
    Investigation Costs:
    PROPOSED AMENDMENTS TO:
    REGULATION OF PETROLEUM
    LEAKING UNDERGROUND STORAGE
    TANKS (35 ILL. ADM. CODE 732)
    ECEIVED
    CLERK'S OFFICE
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    APR 19 2004
    IN THE MATTER OF:
    )
    STATE OF
    ILLINOIS
    )
    Pollution Control Board
    )
    R04-22
    )
    (Rulemaking - Land)
    )
    )
    IN THE MATTER OF:
    )
    )
    PROPOSED AMENDMENTS "TO:
    )
    REGULATION
    OF PETROLEUM
    )
    LEAKING UNDERGROUND STORAGE )
    TANKS (35 ILL. ADM. CODE 734)
    )
    R04-23
    (Rulemaking - Land)
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY'S
    MOTION
    FOR THE ADOPTION OF EMERGENCY RULES
    NOW COMES the Illinois Environmental Protection Agency ("Illinois EPA"),
    by
    and through its attorney Kyle Rominger, and submits this Motion for the Adoption of
    Emergency Rules. The Illinois EPA moves that the Illinois Pollution Control Board
    ("Board") adopt
    as soon as possible the TIlinois EPA's proposed amendments to 35 Ill.
    Adm. Code 732 and the proposed 35 Ill. Adm. Code 734 in an emergency rulemaking
    pursuant to Section 27(c) of the Environmental Protection Act ("Act") [415 ILCS
    5/27(c)], Section 45 of the Administrative Procedures Act ("APA") [5 ILCS
    100/5-45],
    and Section 102.612 ofthe Board'sprocedural rules [35 Ill. Adm. Code 102.612]. The
    Illinois EPA makes this motion so it can review budgets and applications for payment
    from the Underground Storage Tank Fund ("UST Fund") prior to the Board'sadoption
    of
    final rules in this rulemaking.
    L
    The basis for this Motion is the Board'sOpinion and Order in Illinois Ayers Oil
    Co., PCB 03-214 (April
    1, 2004).
    In
    that opinion the Board found that the Illinois EPA's
    internal rate sheet is
    an improperly promulgated rule that should have been promulgated
    pursuant
    to the Administrative Procedures Act. Id. at 16, 18. Without the rate sheet, the
    Illinois EPA lacks a: standard methodology for determining whether the costs submitted
    for approval in budgets and applications for payment are reasonable. A standard
    methodology for determining the reasonableness
    of costs is included in the proposed
    rules currently before the Board.
    The Board's adoption
    of the proposed rules in an emergencyrulemaking will
    allow the Illinois EPA to review budgets and applications for reimbursement prior to the
    Board'sadoption
    of final rules. If emergency rules are not adopted, the Illinois EPA will
    be limited
    to reviewing only applications for payment that are submitted pursuant to
    budgets approved prior to the Board's opinion in the Illinois Ayers case. Reviews
    of
    such applications for payment can continue because the reviews consist of comparing the
    costs in the applications for payment to the costs approved in the budgets. The Illinois
    EPA cannot review other cost submissions, however, (e.g., budgets that have not yet been
    approved and applications for payment that are not submitted pursuant to a budget
    approved prior to the Illinois Ayers opinion) until a standard methodology for
    determining whether the costs are reasonable is adopted in rules.
    The Illinois EPA believes the adoption
    ofthe proposed rules in an emergency
    rulemaking is proper. The Board has the authority to adopt rules
    in an emergency
    rulemaking if a situation exists which "reasonably constitutes a threat to the public
    . interest, safety, or welfare." 5 ILCS 100/5-45; 415 ILCS 5/27(c);
    35 Ill. Adm. Code
    2
    1
    2
    3
    ILLINOIS POLLUTION CONTROL BOARD
    May 25, 2004
    1
    4
    IN THE MATTER OF:
    5
    6
    7
    PROPOSED AMENDMENTS TO:
    REGULATION OF PETROLEUM LEAKING
    UNDERGROUND STORAGE TANKS
    (35 ILL. ADM. CODE 732)
    R04-22
    (UST Rulemaking)
    8
    IN THE MATTER OF:
    9
    10
    11
    12
    PROPOSED AMENDMENTS TO:
    REGULATION OF PETROLEUM LEAKING
    UNDERGROUND STORAGE TANKS
    (35 ILL. ADM. CODE 734)
    R04-23
    (UST Rulemaking)
    Consolidated
    13
    The Rulemaking Proceeding, before the Illinois
    14
    Pollution Control Board, was held May 25, 2004, at the
    15
    McLean County Law and Justice Center, Room 700,
    16
    Bloomington, Illinois, commencing at 9:00 a.m.
    17
    18
    19
    20
    21
    22
    23
    24
    Reported By:
    License No.:
    Ann Marie Hollo, CSR, RMR
    084-003476
    2
    1
    APPEARANCES:
    Illinois Pollution Control Board
    2
    100 West Randolph Street
    Suite 11-500
    3
    Chicago, Illinois 60601
    By: Marie Tipsord, Esq., Hearing Officer
    4
    Illinois Pollution Control Board Members:
    5
    Chairman J. Philip Novak, Esq.
    G. Tanner Girard, Ph.D.
    6
    Thomas E. Johnson, Esq.
    Andrea Moore, Esq.
    7
    Anand Rao, Senior Environmental Scientist
    Alisa Liu, P.E.
    8
    Pose gate & Denes, P.C.
    9
    111 North Sixth Street
    Springfield, Illinois 62701
    10
    By:
    Claire A. Manning, Esq.
    Appearing on behalf of PIPE and ISPE
    11
    Barnes & Thornburg
    12
    Suite 4400
    One North Wacker Drive
    13
    Chicago, Illinois 60606-2809
    By:
    Carolyn S. Hesse, Esq.
    14
    Appearing on behalf of CW3M
    15
    Illinois Environmental Protection Agency
    1021 North Grand Avenue East
    16
    Springfield, Illinois 62794
    By:
    M. Kyle Rominger, Esq.
    17
    Appearing on behalf of IEPA
    18
    Illinois Environmental Protection Agency Witnesses
    Gary P. King, Douglas W. Clay, P.E.,
    19
    Harry A. Chappel, P.E., Brian Bauer,
    Hernando A. Albarracin, and Chris Kohrmann
    20
    21
    22
    23
    24
    Exhibit Number
    Exhibit Number 16
    Exhibit Number 17
    Exhibit Number 18
    Exhibit Number 19
    Exhibit Nos. 20 - 22
    Exhibit Number 23
    EXHIBITS
    Marked
    9
    9
    9
    10
    10
    11
    Admitted
    11
    11
    11
    11
    11
    11
    Electronic Filing, Received, Clerk's Office, August 28, 2007
    23
    1
    made to that?
    2
    MR. BAUER:
    Sure.
    Basically, we added a
    3
    whole section for the kind of -- we had an oversight.
    4
    We only included costs for engineering barriers. So
    5
    this time, we also included any costs for replacement
    6
    of asphalt and or concrete as part of the corrective
    7
    action in this.
    8
    We also, under some of the costs, based on
    9
    some of the comments from -- I believe it was probably
    10
    the rates.
    That they made some comments about the
    11
    rates for tax purposes and mobilization charge. We'll
    12
    cover that a little later.
    13
    MR. ROMINGER:
    On page 229 through 231 of the
    14
    transcript, we said we would look into Section
    15
    578 (a) (1) of the Act regarding a requirement and its
    16
    relation to the Agency's review of all reports versus
    17
    10 percent of the reports submitted.
    18
    MR. CLAY:
    The issue was, you know, whether
    19
    the Agency is looking at all the reports, and I think
    20
    10 percent was used. There's actually a 20 percent
    21
    number in the regulations at 732.504 (a) (3). And so I
    22
    don't believe there's any percentage in the statutes
    23
    themselves.
    24
    At 578 (a) (1), the statute talks about review
    Electronic Filing, Received, Clerk's Office, August 28, 2007
    24
    1
    based on generally accepted audit and accounting
    2
    practices. And this is when this refers to when
    3
    there's been a budget approved ahead of time, and that
    4
    is what we
    do.
    The budget has been approved.
    And
    5
    what the LUST claims unit will do is basically add up
    6
    invoices, make sure that the costs are eligible and
    7
    are consistent with the plan that had been approved,
    8
    the plan and budget had been approved.
    9
    In addition, 732.504 (a) (3) talks about the 20
    10
    percent of site classification reports being
    11
    reviewed. That is the goal as stated in 732.504(a)
    12
    That section goes on further under 732.504(b)
    13
    to state the Agency may conduct a full review of any
    14
    plan or report not selected in accordance with the
    15
    provisions of this section.
    16
    In 732.504(c), notwithstanding any other
    17
    limitation of review, the Agency may conduct a full
    18
    technical review of any plan of report identified in
    19
    this section.
    20
    And in 732.504(d), it identifies the Agency's
    21
    decision on whether or not to select plans, reports
    22
    for full review shall not be subject to appeal.
    23
    MR.
    ROMINGER:
    In the same area on pages 228
    24
    through 229 and page 231, the Agency was to look at
    84
    1
    function versus a full review of the Agency.
    2
    When the Agency reviews a claim for payment
    3
    of a cost that's already been in an approved budget,
    4
    does it do a full review? Would it consider what the
    5
    Agency reviews, a full review of those claimed costs
    6
    that are already in an approved budget, and does it
    7
    take an additional 120 days to do so?
    days, and I would characterize it as an audit.
    8
    9
    A.
    (BY MR. CLAY)
    I would say we have up to 120
    I'd
    10
    like Doug Oakley to talk about exactly what they look
    11
    like.
    12
    MR. OAKLEY:
    When we look at budget approved
    13
    claims, it is different than early action, in that we
    14
    don't look at individual rates. We look to make sure
    15
    the costs associated with certain activities are
    16
    within the line that -- that's like six budget line
    17
    items. And if those costs for those activities fall
    18
    at or below those line items, that's as far as we go,
    19
    other than looking for mandatory documents.
    20
    Q.
    So if the costs are all included in the
    21
    budgeted approved amount, they're approved?
    What we would do, for instance, you have
    not a bottom line.
    It's within those six lines.
    22
    23
    24
    A.
    Amounts, plural.
    It's within the six
    it's
    1
    field investigations. Let's say investigation.
    85
    That
    2
    would be one line, or I believe six of them. And then
    3
    you have a total at the bottom. What we do is look at
    4
    the individual lines to make sure the activities
    5
    associated with those individual lines are equal to or
    6
    less than.
    7
    Q.
    So in your opinion, if one doesn't match up
    8
    and it's over in terms of the number of hours or it's
    9
    over in terms of the number of -- the particular
    10
    amount?
    11
    12
    A.
    Q.
    Amounts only. We don't look at hours, right.
    If it's over the amounts that have been
    13
    budgeted, it would be a complete denial then?
    14
    15
    16
    A.
    Q.
    A.
    No.
    Then what would happen?
    We would deny down the amount that was
    17
    approved for that particular line. And then at that
    18
    point, an amendment would be required or something.
    19
    Q.
    And so what happens then?
    Do you write a
    20
    letter to the applicant?
    21
    A.
    Yes.
    What we do is we write a final decision
    22
    letter and explain which line that they exceeded, and
    23
    that's that.
    24
    Q.
    And you consider you have 120 days to perform
    1
    A.
    91
    Well, I'm saying if a claim was submitted for
    2
    a budget that was approved that included ineligible
    3
    costs, I believe we would deny those costs.
    4
    Q.
    Even if you earlier approved the costs as
    5
    being eligible in the budget?
    6
    A.
    We do not approve costs in budgets.
    I'm
    7
    talking about the claim review process.
    8
    9
    MR. CLAY:
    Let me give you an example.
    If on one of the line items -- and I think
    10
    this is one of the line items. Field purchases. And
    11
    if there is a flagpole on the invoice for the field
    12
    purchases, Doug is going to cut that because that is
    13
    obviously not corrective action.
    14
    Now, as he said, he didn't do a detailed
    15
    review where he looks at, you know, every single item,
    16
    but that's going to be something that jumps out at us
    17
    as an obvious ineligible item that would be cut.
    18
    Q.
    But so long as all of the items are
    19
    contemplated within the budget and the budget has been
    20
    specific enough, and those items that are being
    21
    claimed for recovery are in fact part of the budget,
    22
    you approve that?
    23
    24
    A.
    Q.
    (BY MR. OAKLEY)
    Right.
    But you have 120 days within which the Agency
    1
    2
    3
    ILLINOIS POLLUTION CONTROL BOARD
    May 26, 2004
    1
    4
    IN THE MATTER OF:
    5
    6
    7
    PROPOSED AMENDMENTS TO:
    REGULATION OF PETROLEUM LEAKING
    UNDERGROUND STORAGE TANKS
    (35 ILL. ADM. CODE 732)
    R04-22
    (UST Rulemaking)
    8
    IN THE MATTER OF:
    9
    10
    11
    12
    PROPOSED AMENDMENTS TO:
    REGULATION OF PETROLEUM LEAKING
    UNDERGROUND STORAGE TANKS
    (35 ILL. ADM. CODE 734)
    R04-23
    (UST Rulemaking)
    Consolidated
    13
    The Rulemaking Proceeding, before the Illinois
    14
    Pollution Control Board, was held May 26, 2004, at the
    15
    Lincoln Library, Carnegie North Room, 326 South
    16
    Seventh Street, Springfield, Illinois, commencing at
    17
    9:30 a.m.
    18
    19
    20
    21
    22
    23
    24
    Reported By:
    License No. :
    Ann
    Marie Hollo, CSR, RMR
    084-003476
    2
    1
    APPEARANCES:
    Illinois Pollution Control Board
    2
    100 West Randolph Street
    Suite 11-500
    3
    Chicago, Illinois 60601
    By: Marie Tipsord, Esq., Hearing Officer
    4
    Illinois Pollution Control Board Members:
    5
    Chairman J. Philip Novak, Esq.
    G. Tanner Girard, Ph.D.
    6
    Thomas E. Johnson, Esq.
    Andrea Moore, Esq.
    7
    Anand Rao, Senior Environmental Scientist
    Alisa Liu, P.E.
    8
    Posegate & Denes, P.C.
    9
    III North Sixth Street
    Springfield, Illinois 62701
    10
    By:
    Claire A. Manning, Esq.
    Appearing on behalf of PIPE and ISPE
    11
    Barnes & Thornburg
    12
    Suite 4400
    One North Wacker Drive
    13
    Chicago, Illinois 60606-2809
    By:
    Carolyn S. Hesse, Esq.
    14
    Appearing on behalf of CW3M
    15
    Illinois Environmental Protection Agency
    1021 North Grand Avenue East
    16
    Springfield, Illinois 62794
    By:
    M. Kyle Rominger, Esq.
    17
    Appearing on behalf of IEPA
    18
    Illinois Environmental Protection Agency Witnesses
    Gary P. King, Douglas W. Clay, P.E.,
    19
    Harry A. Chappel, P.E., Brian Bauer,
    Hernando A. Albarracin, and Chris Kohrmann
    20
    21
    22
    23
    EXHIBITS
    Exhibit Number
    Marked
    Admitted
    Exhibit
    Number
    24
    8
    8
    Exhibit
    Number
    25
    17
    17
    Exhibit
    Number
    26
    30
    30
    Exhibit
    Number
    27
    43
    43
    Exhibit
    Number
    28
    191
    191
    24
    60
    1
    Approved budgets -- when the Agency approved
    2
    a budget, and let's assume they used these rate
    3
    sheets, or whatever sheet, they're only going to
    4
    approve a certain amount for hours or rates or unit
    5
    rate, correct? I mean, you have to get an approved
    6
    budget?
    7
    A.
    (BY MR. CLAY)
    Yes.
    There has to be an
    8
    approved budget before payment can be made.
    9
    Q.
    And what is only going to be reimbursed is
    10
    only going to be a part of the approved budget? I
    11
    think you've provided that testimony before. You have
    12
    to have an approved budget and has been reviewed and
    13
    compared to something to determine what is being
    14
    reasonable? And then it's reimbursed, right?
    15
    A.
    (BY MR. OAKLEY)
    If the type of amounts are
    16
    equal to or less than those line items, it will be
    17
    paid.
    18
    Q.
    And I believe the testimony has already been
    19
    provided previously that the Agency feels that the
    20
    proposed rules will be in line with 90 percent, or
    21
    whatever within these sites will be in line with what
    22
    has already been reimbursed? The rates that you felt
    23
    were reasonable, being reimbursed, approved by the
    24
    budget and so forth?
    ....
    __
    _
    _
    -." ..". .
    _
    .
    JUN 15 2005
    R04-22
    STATE
    OF
    ILLINOIS
    (Rulemaking - Land)
    Pollution Control Board
    BEFORE THE ILLINDIS POLLUTION CONTROL BOARD
    R
    .
    ,
    ECEIVED
    CLERK'S
    Oi=i='~i=
    IN THE MATTER OF:)
    .
    . ..v_
    )
    )
    )
    )
    .)
    PROPOSED AMENDMENTS TO:
    REGULATION OF PETROLEUM.
    LEAKING UNDERGROUND STORAGE
    TANKS (35 ILL. ADM. CODE
    732)
    IN THE MATTER OF:
    )
    )
    PROPOSED AMENDMENTS TO:')
    REGULATION OF PETROLEUM.
    )
    LEAKING UNDERGROUND STORAGE )
    TANKS (35 ILL. ADM. CODE 734)
    )
    R04-23
    (Rulemaking - Land)
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY?S
    RESPONSE TO PRE-FILED QUESTIONS
    'NOW'COMES the lllinois Enviro!iinental'ProtectioIi Agency ("Illinois EPA"),
    by .
    .."..'t.,;':..'."
    "
    :
    and through one ofits attorneys, Kyle Rominger, and submits the following responses to .
    the pre-filed questions
    of United Science Industries, Inc. ("USI"), CW3MCompany, Inc..
    ("CW3M"), and CSD Environmental Services, Inc. ("CSD") for the July 27,2005,
    hearing. The Illinois EPA would like to thank the Hearing Officer for granting an
    extension for the filing
    ofthese responses.
    The responsys are divided into four sections: .the first contains responses to
    Daniel King'squestions, the second contains responses to Jay Koch's questions, the third
    contains responses to
    CW3M'squestions, and the fourth contains responses to CSD's
    questions. The number of each response corresponds to the numbers ofthe pre-filed
    questions. To miriimize the number
    ofcitations, most responses refer only to the
    provisions
    ofPart 734. Where appropriate, however, the responses would also apply to
    the corresponding provisions ofPart 732 unless the context ofthe response indicates
    otherwise.
    Answers to the Pre-Filed Questions of Daniel King of USI
    1.
    The maximum payment amounts for activities required under Section'
    734.210(a) are found throughout Subpart
    H and depend upon the activities being
    performed. For example, amounts for tank removal activities are addressed in Section '
    734.810, amounts for free product removal activities and groundwater removal and
    ",
    disposal activities
    are
    addressed in Section 734.815, amounts foisoil removal and
    disposal activities are addressed in Section 734.825, and amounts for professional
    consulting services are addressed
    in Section 734.845. As alternatives to the amounts set
    forth in these Sections, owners and operators
    carldefermine"m~xiinum
    payment
    amourit~
    '.;..' .,H
    lrl~~~'!:;;
    l!~;:I,
    ::: .!ll: .. : ..
    _~.
    \"<,. "'"';11
    'U(
    :'. ""
    > .," .,",
    ,~;~ liqf9f.;(:::~':'fir·:~:.;.·"
    ",!,
    ':;,. ::: ::\{);.':.:; l.!!> .
    I
    ,\'
    ,:'"
    via bidding under Section 734.855. Owners and
    op~i~ibf~ c'ah'aH£s~ek
    alternative
    maximum payment amounts for unusual and extraordinary circumstances underSection '
    734.860.,
    2.
    The maximum payment amounts for activities required under Seciion
    734.21
    O(b) are found throughout Subpart H and depend upon the activities being
    performed. Examples
    of activities that might beperformed to comply with Section,
    734.21
    O(b) and the Sections containing the maximum payment amounts for those
    activities are set forth in question 1 above. As alternatives
    to the maximum payment
    amounts, owners and operators can also bids costs Sec'tion 734.855 and seek alternative
    maximum payment amounts for unusual and extraordinary circumstances under Section.
    734.860.
    2
    39.
    Section 734.340(c) is not new language proposed by the Illinois EPA. The
    Section merely repeats language
    t~at
    already exists in Section 732.407(c).
    40.
    The illinois EPA included costs'associated with the preparation ofmaps in
    the maximum payment amounts it proposed for the preparation and submission ofplans
    and reports (Section 734.845). In many cases; the preparation of a map requires only the
    updating
    of an existing map from an .earlier plan or report" As with other costs;. if the
    maxi~um
    paymen,t amounts set forth in the rules are insufficient for a particular site, they
    can
    be exceeded through the bidding or the unusual or extraordinary circumstances
    provisions..
    41.
    Sections 734.835 and 734.Appendix
    D
    merelyset forth the maximum.
    payment amounts owners and operators may be reimbursed for costs associated with .
    .
    .
    sample handling and analysis. Please note that
    an
    individual maximum payment amount
    :
    .
    ., .."
    .
    for shipping is included at the bottom of Section 734.Appendix D. The Board'sproposed
    . rules do not address, and the illinois
    EPA did
    n~t
    envision the rules addressing, how the'
    amounts. reimbursed to
    all
    owner or operator are-divided among the parties performing
    the work.
    42.
    The instaIIation
    ofmonitoring wells, including their depths, should
    comply with Section 734.430 and generally accepted engineering practices.
    43.
    Some maximum payment amounts are applicable through all phases
    of:
    work. For example, the maximum payment amounts.for sample handling and analysis
    (Section 734.AppendixD) are applicable during the early action phase, the
    site.
    investigation phase, and the corrective action phase.
    12
    44.
    Sec~ons
    734.315,734.320, and 734.325 contain general requirements
    regarding the depths
    ofborings. The Board'srules do not mandate the use of a specific
    tool for borings.
    45.
    The owner or operator should propose the most cost-effective method of
    disposal.
    '. 46.
    The Illinois EPA included all submittals ofplans, budgets, reports, '
    . applications for payment, and other documentation
    in the maximum paymentamounts it
    proposed for professional consulting services under Section 734.845. For example, the"
    TIlinois
    EPA proposed $4,800 as the maximum payment amount for the preparation and.
    submission ofa1120-Day and 45-Day Reports, regardless
    ofhow many 20-Day and 45-
    Day reports are submitted.. '
    47.
    The
    maximum paynient amounts theTIlino1s:EPAproposed to the Board
    wer~
    either evaluated against actUal reimbursement
    sub:mitt~ls
    directly or developed
    using'costs that were. evaluated against actual reimbursement'subniittals.
    Answers to the Pre-Filed Questions of Jay Koch of USI .
    L
    ,Please refer to the response to Daniel
    King~s
    question 29.
    2.
    If an alternative technology corrective action plan is rejected one or more
    times,
    but is eventually approved, the TIlinois EPA envisions that reasonable and justified
    profe~sional
    service hours that do not exceed the maximum payment amounts set forth in
    Section 734.Appendix E would'be reimbursed. If an alternative technology corrective
    action
    plan is rejected one or more times and as a result is never approved and '
    implemented, and
    then a conventional technology corrective action plan is submitted, '
    approved, and implemented, the,TIlinois EPA does not envision that costs associated the
    13
    I
    preparation and submission ofthe alternative technology corrective action plan would be
    eligible for reimbursement. The Illinois EPA envisions that the costs
    ~ssociated
    with the
    preparation and submission ofthe conventional technologycorreytive action plan would
    be subject to the maximum payment amount set forth in Section 734.845(0)(1).
    .3.
    The Illinois EPA envisions that the determination ofwhether an unusual
    or extraordinary circumstance exists at a particular site will be .based upon site-specific
    circumst~ces.
    What may be an unusual or extraordinary.circumstance at one site may.
    not be aThUllusual or extraordinary circumstance at another site.. During previous
    . hearings the Illinois EPA gave.some examples ofwhat might be considered an unusual or
    extraordinary circumstance. However, developing a list of unusual or extraordinary
    circumstances that could
    be applied prior to knowing the specific circumstances ofa.
    . particular site would be impossible. Furthermore, the Administrative Procedures Act
    prohibits
    the lllinois EPA front publishing the requested lists of specific examples unless
    they are adopted
    in rules.
    4.
    The illinois EPA would not objectto the. addition ofone or more
    .
    .
    .
    representatives to the LUST Advisory Committee ifthe Board determines that the
    Committee'scurrent composition does not provide adequate representation of interested
    parties.
    5.
    Please see the response to Daniel King'squestion 17...
    6.
    The Illinois EPA included all costs associated with sample handling and .
    analysis, regardless
    ofthe numbetof parties involved, in the maximum payment amounts.
    it proposed under.Sections 734.835 .and734.Appendix D.Please note that an individual
    maximpm payment amount for shipping is included at the bottom
    ofSection
    14
    734.Appendix D. This amount was proposed for costs associated with the shipping of
    samples to the laboratory. The Illinois EPA included costs associated with transporting
    samples from the collection site
    backto the office for shipping in the maximum paynient
    .:;
    amoUnts it proposed for travel (Section 734.845(e)}.
    7.
    One of.the goals the Illinois EPA hopes to achieve through this
    mlemakingis a reduction
    in the time it spendsreviewing plans,budgets, reports, and'- ..
    applications 'forpayment. ')
    , 8:
    The Illinois EPA believes that such
    an
    audit would be Gostly and time
    . consuming and is unnecessary.' The Illinois EPA has explained how it developed
    the .
    rates it proposed to {he Board; and the Board determined thaNhose rates,as amended in
    the Board'sFirst Notice Proposal, will provide reimbursement ofreasonable remediation
    costs. Any party thafbelieves
    th~prop6sed
    amencl.illents will not provide
    reimb~semeIlt
    .
    .
    ~freasonable remediatio~
    costs has the'opportunityto present
    testim~ny
    and comments
    to the Board.
    9.
    . This question is addressed to the Board..
    1-0. '. The provision proposed bythe Dlinois EPA that would make :'costs.an
    owner or operator is required to pay
    to a governmental'entity or other person in order to
    conduct corrective action" ineligible for reimbursement is not included in the Board's
    First Notice Proposal. Pursuant
    to the
    Boai-d~s
    First Notice Opinion and Order, such .
    costs should be reviewed
    on a site-specific basis. Because a site-specific determinationis
    necessary, and because the Administrative Procedures Act requires
    the .Illinois EPA to
    adopt the requested lists as rules, the Illinois EPA cannot provide the requestedlists in .
    these responses.
    15
    "
    .
    6:
    Groundwater must be remediated in accordance with the Tiered Approach
    to Corrective Action Objectives ("TACO") regulations (35
    ill. Adm. Code 742).
    Groundwater remediation required as a: part of corrective action is eligible for
    reimbursement from the UST Fund.
    7.
    The Illinois EPA did not consider any effect on property values
    in cases
    where groundwater ordimmces are used as institutional controls. Groundwater
    .'
    ordinances,have always been available as aninstitutional control underTACO and have
    been used
    at hundreds, ifnot thousands, of sites..
    . 8.
    Intel: alia,
    use ofthe proposed rules will help reduce costs to the UST
    Fund
    by helping to streamline the LUST Program. The proposed rules will allow a
    greilter standardization
    of information submitted to the lllinois EPA, which in
    turn
    will
    . allow for shorter document preparation time and shorter document reviewtime, thereby
    reducing per-project costs for the owner's or operator"s consultant and the Illinois EPA.
    Use ofthe proposed rules will also help reduce per-project costs by simplifying the
    reimbursementprocess. Setting forth rates in the rules will allow owners, operators, and .
    consultants to know the amounts considered reasonable
    for purposes ofreimbUrsement
    from the USTFui:ld, and the lllinois
    EPA can easily review and approve costs as long as
    they do not exceed the applicable maximum payment amounts. Finally, maximum
    payment amounts for the preparation and submission
    ofvarious documents will reduce
    costs
    by encouraging the submission of compiete documents that can be approved in one
    submission, withoutthe need for the preparation, submission, and review
    of amendments
    or additional information.
    . 22
    K.
    1;.
    The question, as posed, makes the activities associated with the
    development
    of Tier 2 or Tier3 remediation objectives sound daunting. However, the
    activities consist mainly
    of entering minimal data into computer softWare that
    " .' .
    .automatically runs the required calculations. The Illinois EPA does not believe that
    payment
    on a time and material basis is necessary for this task .' ",
    2.
    The Illinois EPA does not track the requested infonnation.
    .&
    The Illinois EPA does not track the requested infonnation.
    L.
    1.'
    .
    The Illinois EPA included costs associated with applications for payment
    from the UST Fund throughout the maximum payment amounts it proposed for
    professional consulting services under Section 734.845. The Illinois EPA did,not include.
    a particular num:ber
    of applications for payment under any subsection bfSection 734.845,
    2.
    Yes.
    3.
    The Illinois EPA used the rate of $80 per hour multiplied by the total
    numbers
    ofhours allocated to a particular task Time associated with seeking
    reimbursement was included in the total number
    ofhours allocated to each task
    4.
    Please see the response to question D(2) above.
    5.
    Under the Board'sFirst Notice Proposal costs .are considered reasonable
    as long
    as they do not exceed the applicable maximum payment amount lump sums or
    unit rates.
    :, .
    6.
    The Illinois EPA multiplied eight hours ofpersonnel time by the average -,
    rate of $80 per hour. '
    34
    7.
    An
    unforeseen circumstance that requires the amendment-ofa-corrective
    action plan
    mayor may not be an unusual or extraordinary circmnstance. i\.n. o\vner or '
    operator can
    seek
    reimbu~sement
    for the preparation and submission ofthe amended plari:;'
    under Section 734.860 ifhe or she can make the demonstration required under that
    Section.
    M.
    1:; ", > >,
    The Illinois EPA does not know how the referenced statistics were
    >'
    generated and therefore declines to answer this question.
    >
    2.
    The Illinois EPA does not know how the referenced statistics were
    generated and therefore declines to answer this question.
    3.
    The IllinQis EPA believes the proposed rules will help improve review
    times and review consistency in the LUST Program.
    Interalia,
    the proposed rules
    wil1,~'
    ~
    "
    help streamline the LUST Program by allowing for a greater standardization of '
    I
    information submitted to the Ulinois EPA. Greater standardization will allow for shorter
    docmnent preparation time, shorter documehtreview time, and more consistent reviews.
    The rules will also help simplify the reimbursement process by setting forth the rates that
    are considered reasonable for reimbursement from the tJST Fund. Owners and operators
    and consultants will know the amounts that will
    be considered reasonable for the
    activities being proposed, and the Illinois EPA can easily review and approve costs as
    long as they do
    not exceed the applicable maximum payment amounts.
    4.
    >
    The Illinois EPA will continue to review information submitted to It to
    determine whether the information demonstrates, compliance with the Environmental
    Protection Act and the Board'sregulations.
    35
    [
    1
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    2
    3
    4
    IN THE MATTER OF:
    PROPOSED AMENDMENTS TO:
    R04-22
    (UST Rulemaking)
    1
    5
    REGULATION OF PETROLEUM LEAKING)
    6
    UNDERGROUND STORAGE TANKS (35
    7
    ILL. ADM. CODE 732)
    8
    9
    IN THE MATTER OF:
    R04-23
    10
    PROPOSED AMENDMENTS TO:
    (UST Rulemaking)
    11
    REGULATION OF PETROLEUM LEAKING) (Consolidated)
    12
    UNDERGROUND STORAGE TANKS (35
    13
    ILL. ADM. CODE 734)
    14
    15
    Proceedings held on July 27, 2005, at 10:00 a.m., at
    16
    Southern Illinois University School of Law, Room 206,
    17
    1150 Douglas Drive, Carbondale, Illinois, before Marie
    18
    Tipsord, Chief Hearing Officer.
    19
    Volume I
    20
    Reported by: Angela R. Kelly, CSR
    21
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    CSR License No:
    84004498
    KEEFE REPORTING COMPANY
    11 North 44th Street
    Belleville, IL 62226
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    A P PEA RAN C E S
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
    By: G. Tanner Girard, Ph. D.
    Board Member
    Illinois Pollution Control Board
    702 N. Schrader Avenue
    Havana, II, 62664
    By: Thomas E. Johnson
    Board Member
    Illinois Pollution Control Board
    2125 South First Street
    Champaign, Illinois 61820
    By: Anand Rao
    Senior Environmental Scientist
    Illinois Pollution Control Board
    100 West Randolph Street, Ste. 11-500
    Chicago, Illinois 60601
    By: M. Kyle Rominger
    Assistant Counsel
    Illinois Environmental Protection Agency
    1021 North Grand Avenue East, PO Box 19276
    Springfield, Illinois 62794-9276
    By: Gary P. King
    Manager, Division of Remediation Management
    Bureau of Land
    Illinois Environmental Protection Agency
    1021 North Grand Avenue East, PO Box 19276
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    Springfield, Illinois 62794-9276
    By: Doug Clay
    Bureau of Land
    Illinois Environmental Protection Agency
    1021 North Grand Avenue East, PO Box 19276
    Springfield, Illinois 62794-9276
    4
    1
    2
    3
    4
    5
    NUMBER
    Exhibit 94
    Exhibit 95
    E XH I
    BIT S
    MARKED
    9
    10
    5
    6
    MR. SINK: Yes.
    MR. CL.AY: Well, professional services, for
    7
    example, a drilling event, if you were to say
    8
    investigation may be included in the stage one, stage
    9
    two, stage three professional services. It was for
    10
    excavation, it could be in preparation for that, and the
    11
    professional services could be an early action, soil
    12
    removal early action, could be under your corrective
    13
    action plan of soil removal under corrective action.
    14
    Professional services, we feel, is accounted for
    15
    throughout depending on what part of the mediation you
    16
    have to be in.
    17
    MR. SINK: So in this $960 for professional
    18
    services, exactly what tasks did that
    --
    those involve,
    19
    what was that scope of the work?
    20
    MR. CLAY: It's the tasks associated as you
    21
    see in your question, preparation for the abandonment
    22
    removal. And I think if you look at our original
    23
    testimony, you could further get an explanation as to
    24
    exactly what that is and how we arrived at that $960.
    16
    1
    HEARING OFFICER TIPSORD:
    Anything else?
    2
    Moving right along then.
    3
    MS. ROWE: I'm sorry, Carol Rowe, CW3M.
    4
    Just to follow up with Barry's question. I think where
    5
    he was trying to get to was when the agency developed
    6
    their number and their projections, and in this case,
    7
    preparation, there was I think in the earlier hearings
    8
    you had a set number of hours at set at a rate. In those
    9
    developments, did you guys ever put together a scope of
    10
    work report to say those five tasks or those ten tasks
    11
    that we can think of at this point we would consider in
    12
    that, you know, because a lot of answers to these
    13
    questions were is this included, and the answer was
    14
    well, it's all included. Well, at some point, what is
    15
    extraordinary? How do we define that out here, if the
    16
    answer is always what was included. Do you have a list
    17
    of tasks that you utilize to develop those original
    18
    numbers of hours at the rate.
    19
    MR. CLAY: I think we included in the
    20
    original testimony a list of tasks that were not
    21
    intended to be all inclusive. The scope of work is what
    22
    you need to do to meet regulations. You know that was
    23
    stated before in testimony, but we did give some
    24
    examples of the types of things that we identified were
    17
    1
    going into a corrective action plan, and that list was
    2
    developed in consultation with the CECI Consulting
    3
    Engineers Counsel, which is now ACEC, but we did not
    4
    necessarily do that for all of the numbers. That list of
    5
    tasks was not intended to be all inclusive.
    6
    MS. DAVIS: Cindy Davis with CSD
    7
    Environmental.
    If the task list is all inclusive, how
    8
    do we know what tasks are included in the cost, and what
    9
    tasks aren't?
    16
    subpart
    B.
    Not even site investigations, a whole other
    17
    part of work. How is an engineers to certify a cost
    18
    associated with a bid obtained to perform that water
    19
    supply well survey, in an entirely different phase of
    20
    work than what the agency has intended the payment
    21
    amount to fall under, or that activity to fall under
    22
    with regard to payment amount, and wouldn't that
    23
    certification provided by an engineer be provided on an
    24
    illegal basis because that's not the agency's
    43
    1
    intentions? Although maybe it's not illegal, because
    2
    it's never stated that that's where the regular costs
    3
    was to be allocated.
    4
    So my question really is, is how are we to
    5
    make any kind of heads or tails of this regulation, and
    6
    how is it competitive bidding provisions are supposed to
    7
    apply in the absence of the scope of work?
    8
    MR.
    CLAY: The scope of work is what it takes
    9
    to meet regulations, I've answered that.
    10
    MR.
    COOK: It is what it takes to meet the
    11
    regulations, but requirement under site investigation
    12
    where the agency's division of cost are covered under
    13
    early action, if that is in fact were required to show
    14
    that the cost cover all the cost in the maximum payment
    15
    amount, the maximum payment amount for 20 and 45 day
    16
    reports is an early action activity, there's no
    17
    opportunity to demonstrate that those costs are being
    18
    covered under site investigation. It's impossible, yet
    19
    we would be expected to know how those allocations were
    20
    envisioned, but not communicated; is that correct?
    21
    22
    question.
    MR. CLAY: I mean, I don't understand the
    I mean, you're making a statement and
    23
    apparently you understand it, you're making this
    24
    characterization, so.
    44
    1
    MR. COOK: Let me put this another way. The
    2
    $960 for preparation for tank abandonment, is it
    3
    reasonable that that cost is covered under the site
    4
    investigation phase?
    5
    MR. CLAY: No.
    6
    MR. COOK: Is it reasonable to say that the
    7
    cost to consult with the agency with regard to the
    8
    preparation for that abandonment is included in the
    9
    cost, in that $960?
    10
    MR. CLAY: What consultation is required?
    11
    MR. COOK: They have to call and talk to the
    12
    agency or talk to the fire marshall about scheduling
    13
    tank removal, is value that cost included?
    14
    MR. CLAY: Yes, if they need to call OSFM as
    15
    part of that, that would be included.
    16
    MR. COOK: The cost to coordinate with JULIE;
    17
    is that included?
    18
    MR. CLAY: If that were required, yes.
    19
    MR. COOK: Are either of those two tasks that
    20
    you just described listed any where in regulation
    21
    relative to $960?
    22
    MR. CLAY: I don't believe they're listed
    23
    specifically.
    24
    MR. COOK: So, how am I to know what is and
    45
    1
    what is not included for purposes of using competitive
    2
    bidding?
    3
    MR. CLAY: It's whatever it takes to meet the
    4
    regulations, and as a professional, I would hope you
    5
    would know what it takes to meet regulations.
    6
    MR. COOK: I would hope I would as well.
    7
    However, I'll save that for later, never mind.
    8
    HEARING OFFICER TIPSORD: MR. TRUESDALE.
    9
    MR. TRUESDALE: I have a quick yes or no.
    10
    With relation to competitive bidding, did you not state
    11
    in prior testimony today, Doug, that if you were to ask
    12
    the consultants in this room to list what they
    13
    considered to be items included in the scope of work for
    14
    a particular task, you would expect to get different
    15
    lists from each consultant?
    16
    MR. CLAY: Yes, I did.
    17
    MR. TRUESDALE: Okay.
    18
    MR. RUARK:
    Following up on that question,
    19
    if each consultant would look at this $960 and picture
    20
    different things being performed for that, how am I, as
    21
    an owner operator, a lay person, going to evaluate that
    22
    to tell a consultant they ought to know what is in
    17
    testimony, the documentation we did for those numbers is
    18
    what we provided in testimony.
    19
    MR. SCHWEIGERT: The issue becomes then to me
    20
    in my next question is how can we determine fair,
    21
    because let's say it's $960, and your range on average
    22
    was $500 to $2,000, and we don't know that range and you
    23
    set it at $960, how can it be fair then that for the
    24
    consultant that comes out, and the work is actually
    55
    1
    going to cost $2,000, they lose for the one that comes
    2
    out, they do it for $500, they win.
    If you don't know
    3
    your range, and how broad that is, how can this possibly
    4
    be fair?
    5
    MR. CLAY: The numbers that we proposed, the
    6
    board has now proposed in their first notice, we believe
    7
    are fair and reasonable.
    8
    MR. SCHWEIGERT: That's just a statement. If
    9
    you do not have the definitive date to support that,
    10
    where we can see that that range of cost is fair, is it
    11
    your intent the some people will lose and some people
    12
    will win. Fair to me means the range is high enough,
    13
    that the people will come out on average and will make a
    14
    reasonable amount of money as a professional in the
    15
    field, and will not have to take this on an
    16
    extraordinary basis to bidding. You said before you did
    17
    not believe professional services should go to bidding,
    18
    on average, and I agree with that completely. How
    19
    without a range can you say this is fair?
    13
    for a corrective action plan for $5/120/ we would
    14
    anticipate paying that. Now/ if you showed an invoice
    15
    for $4/000/ we're not going to pay $5/120.
    16
    MR. COOK: Are we still required to bill/
    17
    Doug/ on a time and materials basis?
    18
    MR. CLAY: No/ we would expect to see -- I
    19
    would think we would see a one page invoice from you
    20
    that says preparation/ corrective action plan for
    21
    $5/120/ we would review that/ and I'm assuming that
    22
    corrective action plan had been submitted/ and we would
    23
    pay it.
    24
    MR. COOK: And in this instance where
    156
    1
    averages are maximums/ maximums become minimums too/
    2
    because if they're not/ then how do you ever make up on
    3
    the site where the level of effort the five times what's
    4
    necessary/ or what paid for/ how do you ever make that
    5
    up? You have to charge that much to have any hope
    6
    whatsoever of coming close to breaking even/ and that's
    7
    inherently problematic.
    8
    BOARD MEMBER JOHNSON: Contrary to statute/
    9
    too/ I guess the agency would have to say that they are
    10
    going to consider any billing statements submitted for
    11
    $5/120/ that's the figure/ as inherently reasonable/
    12
    because that's what the statute requires/ only allows
    13
    you to pay reasonable cost.
    14
    MR. CLAY: Reasonable costs incurred.
    15
    BOARD MEMBER JOHNSON: That's a question from
    16
    the very first hearing.
    I asked how are you going
    17
    handle that if, in fact, that reasonable cost is less
    18
    than the maximum allowable, I'm not sure I understand
    19
    what you're saying.
    20
    MR. CLAY: If it's less than, then you know
    21
    we wouldn't anticipate that.
    22
    MR. COOK: Duane just brought up a excellent
    23
    point, that is that the tank owner's reimbursement, if
    24
    they own one site, which the vast majority of tank
    157
    1
    owners remain within the responsible party basically in
    2
    the state of Illinois, have one to two incidents, so if
    3
    there site, on the plot data points, their site happens
    4
    to fallout here, outside of the realm of the undefined
    5
    ordinary, they are in trouble.
    6
    MR. DOTY: To really look a little bit
    7
    further, you're only going to reimburse maximum costs
    8
    incurred. putting yourself in the shoes of the tank
    9
    owner, you either got two or three sites, you either get
    10
    fully reimbursed or you don't. You can't get 80 percent
    11
    reimbursed on one job, and 20 percent reimbursed on
    12
    another.
    It won't come out in the wash for the tank
    13
    owner.
    14
    MR. G. KING: I do have sort of an
    15
    observation question. At times, it seems like what is
    16
    being proposed here is that much different than what the
    17
    agency is proposing, we're just using different terms
    18
    and setting different points on the normal distribution.
    19
    The agency's proposal is basically saying; you know;
    20
    we're going to take the average, which I think is sort
    21
    of taking as a median, we got 50 percent of cases
    22
    falling below that point of normal distribution, that
    23
    will be your expedited unit rate. They call it maximum,
    24
    but it's the expedited. If you come in with costs under
    158
    1
    that point, it's going to fly through the system.
    If
    2
    it's something above that, then we have to go to our
    3
    other sections on usual circumstances or, you know, come
    4
    in and justify. Some of the values that you are coming
    5
    in with, I mean, I understand all the problems with how
    6
    the numbers were arrived at and scope of work, but it
    7
    seems like a lot of consultant groups would like to move
    8
    that point beyond the median and put it out there
    9
    somewhere where it might cover at least 80 percent of
    10
    the situations. So it seems to me that if we could just
    11
    get beyond the semantics, that we're sort of getting to
    12
    the same point here, and that is where do you set that
    13
    point in which you get expedited review. And there are
    14
    problems if you set it too high, everything moves to
    15
    that high point, and you haven't saved any money. The
    16
    agency proposal set at a median, so that 50 percent of
    17
    them apply, and the other one, you know, obviously have
    18
    different circumstances, and are going to have to be
    19
    reviewed on a site by site basis. Now is that a fair
    20
    characterization of where we are at this point in time?
    I'
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    IN THE MATTER OF:
    )
    )
    PROPOSED AMENDMENTS TO
    )
    REGULATION OF PETROLEUM
    )
    LEAKING UNDERGROUND STORAGE )
    TANKS (35 ILL. ADM. CODE 732)
    )
    R eLf .-
    'l./7/
    (Rulemaking - Land)
    STATEMENT OF REASONS, SYNOPSIS OF TESTIMONY, STATEMENT
    REGARDING MATERIAL INCORPORATED BY REFERENCE.
    AND STATEMENT
    OF AMENDMENT TO THE BOARD'SVERSION OF THE RULES
    NOW COMES the Illinois Environmental Protection Agency ("Illinois EPA") and,
    pursuant to
    35 Ill. Adm. Code 102.202, submits its Statement ofReasons, Synopsis of
    TestimonY,.Statement Regarding Material Incorporated by Reference, and Statement of
    Amendment to the Illinois Pollution Control Board's("Board's")Version ofthe Rules for the.
    above referenced proceeding.
    I.
    STATEMENT OF REASONS
    A.
    Facts in Support, Purpose and Effect
    1.
    Background
    In this proposal the Illinois EPA submits proposedamendments to 35 Ill. Adm. Code 732
    ("Part 732"), the rules governing the Leaking Underground Storage Tank ("LUST") Program.
    Part 732 prescribes the corrective action measures that must be taken in response to releases
    from petroleum underground storage tanks ("USTs").
    It
    also sets forth procedures and
    requirements for seeking payment from the Underground Storage Tank Fund ("UST Fund").
    The amendments
    ar~
    proposed in response to Public Act 92-0554, which amended the LUST
    Program'sresponse requirements for UST releases reported on or after June 24, 2002, and Public
    Subpart F: Payment or Reimbursement
    Section
    732.~Ol
    - Applications for Payment. Because, Under the proposed new Subpart
    H, payment from the UST Fund will generally no longer be submitted and paid on a "time and
    materials" basis, references to "materials, activities,
    or services" are deleted from Section
    732.601(a). In conjunction with the proposed amendments to Sections 732.200 and 732.204,
    Section 732.601(a) is also amended to reflect that a budget plan is not required for early action
    activities, other than free product removal activities conducted more than 45 days after
    confirmation ofthe presence of free product.
    New Sections 732.601 (b)(9) through (11) are proposed to require the submission
    of
    c'ertain information as part ofthe application for payment. The information under Section
    732.601(b)(9) is necessary to provide adequate documentation
    of the costs incurred by and
    owners and operators, and has always been required
    by the Illinois EPA prior to providing
    payment from the UST Fund. The information under Section 732.601(b)(10) is necessary to
    confirm that subcontractors have been paid in cases where handling charges are requested.
    Finally, the information under Section 732.601(b)(11) is necessary to confirm that sample
    analyses for which costs are requested were conducted
    by an accredited laboratory in cases
    where Section 732.106 requires analysis by an accredited laboratory.
    In
    conjunction with the amendments to Section 732.305(d) and 732.405(d), Section
    732.601(t) is amended to require the submission ofa budget plan prior to the Illinois EPA.'s
    review of a corresponding application for payment, except for early action costs other
    th~
    costs
    associated with free product removal activities conducted more than 45 days after the
    confirmation
    ofthe presence of free product. Due to numerous additional citations that need to
    21
    Section 732.703(c) is amended to allow sites located in a right-of-way of any highway
    authority to perfect a No Further Remediation Letter via a Memorandum
    of Agreement between
    the highway authority and the Agency. Currently, such perfection of a No Further Remediation
    Letter is available only to sites located in Illinois Department of Transportation right-of-ways.
    Corresponding amendments are made to Sections of Section 732.703(c).
    Section 732.704 - Voidance ofa No Further Remediation Letter. Section 732.704(a)(2)
    is amended to delete unnecessary language. Owners and operators must complete any
    groundwater monitoring program prior to the issuance of a No Further Remediation Letter.
    For consistency with the language
    of other provisions, Section 732.704(a)(5) is amended
    to refer to the 45-day period for recording the No Further Remediation Letter rather than a 45-
    day period for perfection
    ofthe letter. The amendment makes no substantive change to the
    Section because the date
    of perfection is the date ofrecording.
    Section 732.704(a)(7) is amended in conjunction with the proposed amendments
    to
    Section 732.703(c). Sections 732.704(b) and (b)(1) are amended for consistency with Section
    732.704(b)(2).
    Subpart H: Maximum Payment Amounts
    The Agency proposes new Subpart H as a part
    of the amendments designed to streamline
    payment from the UST Fund. Subpart H contains proposed maximum amounts that can be paid
    from the UST Fund for various release response activities. The maximum'amounts for some
    activities are set forth as lump sums or unit rates, while the maximum amounts for others will
    continue to require review on a time and materials basis due to the inability to adequatelyc
    determine standard lump sums or unit rates for all sites. A more detailed description
    of the
    Subpart follows.
    29
    Section 732.800 - Applicability. Section 732.800(a) explains that Subpart H divides all
    response activities into tasks and sets forth the maximum amounts that can be paid from the UST
    Fund for each task. Because
    of the difficulty of enumerating every cost that may be associated
    with a site, Section 732.800(b) explains that the costs identified in Subpart H are only the major
    costs associated with a particular task. The maximum payment amount is intended to include all
    costs associated with completing the identified task. Section 732.800(c) explains that Subpart H
    sets forth only the maximum payment amounts for eligible costs. Whether a particular costs is
    eligible for payment is still determined under Subpart F.
    Section 732.810 - UST Removal or Abandonment Costs. Section 732.810 sets forth the
    maximum payment amounts for costs associated with the removal or abandonment ofUSTs.
    The maximum payment amount is based upon the volume
    of each UST removed or abandoned in
    place.
    Section 732.815 - Free Product or Groundwater Removal and Disposal. Section 732.810
    sets forth the maximum payment amounts for costs associated with the removal and disposal
    of
    free product or groundwater. Payment of costs associated with the removal of free product or
    groundwater via handbailing or a vacuum truck is based upon the number of gallons removed.
    Payment for costs associated with other methods ofremoval is determined on a time and
    materials basis.
    Section 732.820 - Drilling, Well Installation, and Well Abandonment. Section 732.820
    sets forth the maximum payment amounts for costs associated with drilling, well installation,
    and
    well abandonment, excluding drilling conducted as part of free product removal or an alternative
    technology. Payment for costs associated with drilling are based upon the drilling method used
    and the number
    of feet drilled. Payment for costs associated with the installation and
    30
    associated with sample handling and analysis. The maximum payment amounts are based upon
    the analysis conducted. Maximum payment amounts are also provided for sampling devices and
    sample shipping.
    Section 732.APPENDIX E - Personnel Title and Rates. Section 732.APPENDIX E sets
    forth the titles and maximum hourly rates for personnel when personnel costs are paid on a time
    and materials basis. The Section also sets forth the educational, licensing, and experience
    requirements applicable to each title and rate.
    B.
    Technical Feasibility and Economic Reasonableness
    1.
    Technical Feasibility
    No new technical requirements are created by the proposed amendments. The only
    amendments affecting technical requirements are those updating existing methods and
    procedures. Therefore, the Illinois
    EPA believes that no issues of technical feasibiiity are raised
    in this proposal.
    2.
    Economic Reasonableness
    This proposal may result in both increased and decreased.incidental costs to the Illinois
    EPA and the Board.
    As a result of the proposed amendments, the Illinois EPA anticipates
    incurring costs related to fOnTIS revisions, internal training, public outreach, and an expected
    increase in application for payment submittals during the year following the adoption
    ofthe
    proposed amendments due to the deadline added at Section 732.601(0. The Illinois EPA
    anticipates a costs savings as a result of the streamlining of plan, budget plan, and report reviews
    provided
    by the proposed changes to Subpart E and addition of Subpart H.
    As a result of the proposed deadline for the submission of applications for payment, the
    Board may see an increase in the number of appeals relating to applications for payment from the
    34
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    IN THE MATTER OF:
    )
    )
    PROPOSED AMENDMENTS TO
    )
    REGULATION OF PETROLEUM
    )
    LEAKING UNDERGROUND STORAGE )
    TANKS (35 ILL. ADM. CODE 732)
    )
    R04-22
    (Rulemaking - Land)
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY'S FIRST ERRATA SHEET
    TO ITS PROPOSAL
    FOR THE AMENDMENT OF 35 ILL. ADM. CODE 732
    NOW COMES the Illinois Environmental Protection Agency ("Illinois EPA"), by
    and through its attorneys Kyle Rominger and Gina Roccaforte, and submits this First
    Errata Sheet to its proposal for the amendment
    of 35 Ill. Adm. Code 732. The Illinois
    EPA proposes the following amendments
    to the text of the rules submitted in its proposal
    to the Board dated January 1,2004:
    1. Amend Section 732.110(e) to the/ollowing to replace "Section
    732.
    703(d)
    "
    with
    "Section
    732.
    703(c) or (d)" in the first sentence. Aform addressing site ownership is not
    necessary
    for sites subject to Section
    732.
    703(c).
    e)
    Except in the case of sites subject to Section 732.703Cc) or Cd) onhis Part,
    reports documenting the completion
    of corrective action at a site must
    contain a form addressing site ownership. At a minimum, the form shall
    identify the land use limitations proposed for the site,
    ifland use
    limitations are proposed; the site'scommon address, legal description, and
    real estate tax/parcel index number; and the names and addresses
    of all
    title holders
    of record of the site or any portion of the site. The form shall
    also contain the following certification,
    by original signature, of all title
    holders
    ofrecord onhe site or any portion of the site, or the agentCs) of
    such personCs):
    I hereby affirm that I have reviewed the attached report entitled
    and dated
    , and that I accept the terms and
    conditions set forth therein, including any land use limitations, that
    apply to property I own. I further affirm that I have no objection to
    the recording
    of a No Further Remediation Letter containing the
    terms and conditions identified in the report upon the property I
    own.
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    IN THE MATTER OF:
    )
    )
    PROPOSED AMENDMENTS TO
    )
    REGULATION OF PETROLEUM
    )
    LEAKING UNDERGROUND STORAGE )
    TANKS (35 ILL. ADM. CODE 732)
    )
    R
    04-22
    (Rulemaking - Land)
    TESTIMONY OF DOUGLAS W. CLAY IN SUPPORT OF
    THE ENVIRONMENTAL PROTECTION AGENCY'S PROPOSAL TO AMEND
    35 ILL. ADM. CODE 732
    My name is Doug Clay. I am the manager ofthe Leaking Underground Storage
    Tank ("LUST") Section within the Bureau
    of Land of the Illinois Environmental
    Protection Agency. I have been in
    my current position since September of 1994. The
    . LUST Section is primarily responsible for reviewing the technical adequacy
    ofplans,
    reports and associated budgets for the remediation
    ofreleases from underground storage
    tanks regulated under Title XVI
    of the Environmental Protection Act ("Act") and 35 Ill.
    Adm. Code, Parts
    731 and 732.
    Prior to assuming
    my current position, I was the manager ofthe Disposal
    Alternative Unit within the Permit Section
    of the Bureau of Land. I have also worked in
    the Permit Section in the Bureau
    of Water. I have been employed at the Illinois EPA
    since 1983 following the receipt
    of a B.S. degree in Civil Engineering from the
    University
    of Illinois. I have been a Registered Professional Engineer in Illinois since
    1989. A copy
    of my resume is attached.
    Today I will be testifying in support
    of the proposed amendments to 35 Ill. Adm.
    Code, Part 732. These amendments are the result of: (1) modification to the Illinois
    Environmental Protection Act
    by Public Acts 92-0554 and 92-0735; (2) the need to
    reform the current budget and reimbursement process; and (3) to clarify issues that have
    arisen since Part 732 was last amended.
    My testimony will provide a brief overview and
    focus on a portion
    of Subpart C (Section 732.306 only), Subpart D, Subpart E, portions of
    Subpart F and Subpart G.
    Overview - The proposed regulatory amendments are intended to streamline the
    leaking underground storage tank remediation process, clarify remediation requirements
    and most notably reform the budget and reimbursement process. The
    new budget and
    reimbursement process would eliminate the majorityD"fbudgets and reimbursement
    packages submitted based on a time and material basis and replace them with submittals
    based on unit rates and lump sums for specific tasks established in the regulations. We
    believe that this will streamline the approval
    ofbudgets and the processing of
    reimbursement claims. Currently, there is a tremendous amount oftime spent reviewing
    budgets and reimbursement packages. Furthermore, the majority
    of plan and report
    denials, amendments to plans and reports submitted
    by consultants, and appeals before
    the Illinois Pollution Control Board are related to budget and reimbursement issues,
    as
    opposed to technical issues. The Agency believes that the proposed amendments will
    allow more efficient use
    ofBoard and Agency resources, improve consistency, lower
    remediation costs, expedite cleanups and allow tank owners and operators to be
    reimbursed
    in a more timely manner. The proposed costs in Subpart H were developed
    with input from the consulting industry and other trade organizations plus nearly
    15 years
    of Agency experience administering the leaking underground storage tank reimbursement
    program, and are generally consistent with the rates we currently approve for
    reimbursement. Over the past
    15 years, the Agency has approved over one-halfbillion
    2
    ILLINOIS POLLUTION CONTROL BOARD
    December 1, 2005
    IN THE
    MATTER OF:
    )
    )
    PROPOSED AMENDMENTS TO:
    )
    REGULATION OF
    PETROLEUM LEAKING)
    UNDERGROUND STORAGE TANKS (35
    )
    ILL. ADM.
    CODE 732)
    )
    IN THE
    MATTER OF:
    )
    )
    PROPOSED
    AMENDMENTS TO:
    )
    REGULATION OF
    PETROLEUM LEAKING)
    UNDERGROUND STORAGE TANKS (35
    )
    ILL. ADM.
    CODE 734)
    )
    Proposed Rule. Second Notice.
    R04-22(A)
    (UST Rulemaking)
    R04-23(A)
    (UST Rulemaking)
    Consolidated
    OPINION
    AND ORDER OF THE BOARD (by G.T. Girard):
    On January 13, 2004, the Illinois Environmental Protection Agency (Agency) filed two
    proposals for rulemaking.
    On January 22, 2004, the Board accepted and consolidated the
    proposals for hearing. The
    Board held numerous hearings and received substantial comment
    before proceeding to first notice
    on February 17,2005, pursuant to the Illinois Administrative
    Procedure Act (lAPA)
    (5 ILCS 100/5-5
    et. seq.
    (2004). After an additional hearing and
    numerous comments, the Board today adopts a second-notice proposal and opens a subdocket B
    in this rulemaking, to address ongoing issues involving scope of work and reimbursement for
    professional consulting services.
    The
    Board's authority in rulemaking proceedings stems from Section 5(b) of the
    Environmental Protection
    Act (Act) (415 ILCS 5/5 (2004)), which provides that the Board "shall
    determine, define and implement the environmental control standards applicable in the State
    of
    Illinois and may adopt rules and regulations in accordance with Title VII of the Act." 415 ILCS
    5/5(b) (2004). Title VII
    of the Act sets forth the statutory parameters for rulemaking by the
    Board. 415 ILCS 5/26-29 (2004). The Board may adopt a rule after hearing and determination
    of the economic reasonableness and technical feasibility of the rule.
    See
    415 ILCS 5/27 (2004).
    The Board's decision is based
    on the record before the Board including all testimony and
    comments filed with the Board. 35 Ill. Adm. Code 102.418.
    SUMMARY OF TODAY'S ACTION
    The Board today adopts the proposal for second notice pursuant to the lAPA (5 ILCS
    100/5-5
    et. seq.
    (2004). Due to the comments received after the first notice began and in
    consideration
    of the prior comments in this rulemaking, the second notice differs from the first
    45
    to change the phrase "maximum payment amount" in the first-notice opinion and the Agency
    agrees with the Board's decision.
    Id.
    Section 734.630(ccc).
    The Agency does not believe that the deletion of this subsection as
    suggested
    by CW
    3
    M is necessary. PC 62 at 14. The Agency states that the proposed rule does
    not require the reclassification
    of groundwater by an adjusted standard so CW
    3
    M's reliance on
    35 Ill. Adm. Code 620.260 has not been adequately explained, according to the Agency.
    Id.
    In
    response to CW
    3
    M's claim that this subsection has a negative effect on property values, the
    Agency asserts that the effect
    of remediation on property values is not a factor in UST Fund
    reimbursement.
    Id.
    The Agency asserts that reimbursement for the UST Fund is limited to costs
    necessary to meet the requirements
    of the Act and use of a groundwater ordinance as an
    institutional control meets the minimum requirements.
    Id.
    Section 734.665. The Agency is opposed to changes in auditing language proposed by
    CW
    3
    M. PC 62 at 15. The Agency argues that although the owner/operator is the individual
    charged with providing the plans, reports, budgets, and applications to the Agency, those
    documents are often submitted directly by the consultant.
    Id.
    The Agency maintains that in
    many cases the owner/operator's only involvement is signing the documents and as a result the
    owner/operator is unlikely to have additional information about the documents.
    Id.
    The Agency
    asserts that limiting the Agency's review to information maintained by the owner/operator would
    limit the review to the document the Agency already has,
    in most instances.
    Id.
    The Agency
    asserts that the Agency needs to review information maintained by the owner/operator's
    consultant
    in order to conduct a complete and proper review of the information for the
    owner/operator.
    !d.
    The Agency further states that providing a list of documents required during an
    inspection
    is impossible because the Agency cannot know what information is in the possession
    of the consultant or owner/operator until the Agency conducts the review. PC 62 at 15. The
    Agency does not believe that the suggested changes are necessary or that CW
    3
    M has provided
    sufficient justification to warrant a change. PC 62 at 15-16.
    Section 734.800. The Agency argues that the changes suggested by
    CW
    3
    M and CSD
    would entirely alter the intent and effect
    of Subpart
    H.
    PC 62 at 17. The Agency states that the
    rates
    in Subpart H are
    maximum
    payment amounts, not "speed bumps" for reimbursement.
    Id.
    The Agency asserts that allowing reimbursement above the maximum payment amounts outside
    of the bidding and unusual or extraordinary circumstances provisions would render those
    provisions superfluous. The Agency also believes that the changes suggested by CW
    3
    M would
    result
    in frequent attempts to exceed the "threshold" amounts in the rules rather than routine
    requests at or below those rates.
    Id.
    As to the suggested change to allow for tasks not specifically listed under a maximum
    payment amount to be reimbursed separately, the Agency believes that such a change will
    eventually result in Subpart H becoming a reimbursement on time and materials basis for every
    item not specifically identified in the rules. PC 62 at
    18. The Agency states that developing an
    all-inclusive list
    of costs associated with each task identified in Subpart H would be impossible.
    !d.
    62
    alternative proposal would result in a process that violates the Act and the lAPA. Therefore, the
    Board will not adopt the concept.
    Sufficiency of Rates
    The Board notes that USI stated that in general the rates proposed in Subpart Hare
    acceptable with the use of both the bidding process and the unusual and extraordinary
    circumstance provisions. In making this determination, USI employed three tests. The first test
    was whether the "unit
    of measure" assigned to the work activity was appropriate to the work
    being performed. Exh. 109 at 37-38. The second test was whether the regulations provided
    sufficient detail to allow a scope
    of work to be authored for a bid specification to allow for
    competitive bidding. Exh. 109 at 38-39. The third test was whether USI believes the price
    accurately reflects prevailing market prices and the whether the price includes conditions likely
    to be encountered at most sites in Illinois. Exh. 109 at 39. However, USI does challenge the
    maximum rates for professional consulting services.
    CW
    3
    M's alternative proposal would use the Agency's proposed rates as interim rates
    until a process
    is in place to develop a database to be used in developing rates. PC 63 at 4.
    CW
    3
    M specifically states that CW
    3
    M does not endorse the rates as proposed.
    ld.
    In proceeding to first notice with the proposal the Board stated:
    The Board will not discuss each and every proposed lump sum maximum
    payment amount; however, the Board has carefully reviewed all the rates
    proposed by the Agency. Other than the rates discussed in more detail in this
    opinion, the Board finds the rates are reasonable and supported by the record.
    R04-22,
    23 (Feb. 17, 2005) at 79.
    Given the acceptance by USI, and even CW
    3
    M, of many of the maximum payment amounts
    listed
    in Subpart H, the Board finds that the maximum payment amounts, except as discussed
    below, are reasonable and supported by the record. The Board, as discussed above, further finds
    that absent a defined scope
    of work, the record does not support the rates for professional
    services
    in Section 732.845/734.845. The Board will amend the rule to allow for professional
    services to be reimbursed based on time and materials basis.
    Statutory Authority
    As discussed above and in the Board'sfirst-notice opinion, Section 57.7(b)(2) of the Act
    allows reimbursement for corrective action that mitigates "any threat to human health, human
    safety, or the environment resulting from the underground storage tank release." 415 ILCS
    5/57.7(b)(2) (2004). Section 57.7(c)
    of the Act (415 ILCS 5/57.7(c) (2004)) requires the Agency
    to determine that costs associated with any plan "are reasonable, will be incurred in the
    performance
    of site investigation or corrective action, and will not be used for site investigation
    of corrective action activities in excess of those required to meet the minimum requirements of
    this Title." 415 ILCS 5/57.7(c) (2004). The Board has examined a substantial and detailed
    record
    in this proceeding and based on that examination, the Board has found the maximum
    63
    payment rates to be "reasonable" and not in "excess" of activities necessary to meet the
    "minimum" requirements
    of the Act. For this reason, employing maximum payment rates is
    consistent with the Act and therefore appropriate for the Board to adopt.
    4. An Agency Database
    An ongoing issue in this proceeding has been the quality of the data available to develop
    rates. Participants asked prior to first notice and again after first notice that the Board require the
    Agency to develop a database sufficient to support rates. More specifically, both USI and
    CW
    3
    M, in their alternative proposals, suggest that additional data be developed concerning the
    maximum payment amounts in Subpart H. USI offered testimony concerning the use
    of
    Automated Budget and Reimbursement Approach (ABRA) to collect data concerning both rates
    and scope
    of work. Exh. 109 at 72. The Agency is concerned that the database software
    presented by USI
    is complicated, confusing to understand, and cumbersome to use. PC 62 at 29.
    The Agency also does not believe that the large majority
    of consulting firms would embrace the
    use
    of the database software.
    ld.
    Finally, the Agency feels implementation and maintenance of
    such a database would require significant resources the Agency does not have.
    ld.
    The Board addressed the issue of requiring the Agency to develop and maintain a
    database concerning reimbursement rates and scopes
    of work at in the first-notice opinion. The
    Board stated:
    The Board acknowledges that many participants have made meaningful
    comments about the value
    of an electronic database to track reimbursement rates.
    However, the Board will not require the Agency to develop an electronic database
    of reimbursement information. The Board is not convinced that an electronic
    database
    is necessary to administer either these specific rules or the UST program.
    R04-22, 23 (Feb.
    17,2005) at 68.
    The Board appreciates the efforts
    of USI to seek out the development of a system that will allow
    for collection
    of data concerning reimbursement rates as well as the scope of work for tasks.
    However, the participants are in effect asking the Board to direct the Agency to maintain or
    developed a process to be used internally by the Agency. The Board
    is unwilling to direct the
    Agency to do so, especially given the financial consequences to the Agency for the development
    and maintenance
    of such a process. And as stated at first notice, the Board is not convinced that
    an electronic database
    is necessary to administer either these specific rules or the UST program.
    Therefore, the Board will not direct the Agency to either use the ARBA system or develop a
    system for collection
    of data concerning reimbursement rates.
    5. Agency Review Process
    The issue of how the Agency performs reviews of materials submitted in the UST
    program and the length
    of time such reviews take has been discussed from the beginning of this
    rulemaking process. Most recently, CSD expresses concern that due process
    is not afforded to
    owners/operators who cannot afford to appeal an adverse Agency decision to the Board. PC 64
    at
    4. CSD demands that the Board provide an alternative to appeals to the Board in the rule or
    R04-22
    (Rulemaking - Land)
    PROPOSED AMENDMENTS TO:
    REGULATION OF PETROLEillv1
    LEAKING
    UNDERGROUND STORAGE
    TANKS (35 ILL. ADM. CODE 732)
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    SEP 23 2005
    IN
    THE MATTER OF:
    )
    STATE
    OF
    ILLINOIS
    )
    Pollution Control Board
    )
    )
    )
    )
    IN THE MATTER OF:
    )
    )
    PROPOSED AMENDMENTS
    TO:
    )
    REGULATION OF PETROLEUM
    )
    LEAKING
    UNDERGROUND STORAGE )
    TANKS (35 ILL. ADM. CODE 734)
    )
    R04-23
    (Rulemaking - Land)
    COM"t'.1ENTS OF THE ILLINOIS ENVIRONMENTAL PROTECTION
    AGENCY
    NOW COMES the Illinois Envirorunental Protection Agency ("Illinois EPA"), by
    and through one of its attorneys, Kyle Rominger, and submits the following comments.
    These comments are divided into three sections.
    The first section contains comments on
    testimony submitted to the Board in response to its Proposed Rule First Notice Opinion
    and Order dated February
    17,2005, ("First Notice Proposal"). The second section
    contains comments on public comments submitted to the Board in response to its First
    Notice Proposal. The third section contains a few suggested non-substantive changes to
    the
    rules'proposedbythe-"Board to correct 'mtrrorertors-anQpromote'consisfencyamong
    the rules' provisions.
    While
    many suggestions and issues deserving comment have been raised, time
    . does not permit the Illinois EPA to provide detailed comments on
    an ofthem in this
    document. Moreover, the usefulness
    ofthis document would be diminished by its length
    ifthe illinois EPA addressed each issue and suggestion raised in the testimony and public
    Electronic Filing, Received, Clerk's Office, August 28, 2007
    appropriate or necessary, or that CW3M has provided sufficient justification to warrant a
    change to the Board'sFirst Notice Proposal.
    9.
    Section 734.800
    a.
    CW3M suggests changing Sections 734.800{a) and (c) to create a
    presumption
    ofreasonableness for the costs set forth in Subpart H.
    It
    also
    suggests amending language in other sections to change maximum payments
    amounts into amounts that are "considered reasonable."
    See,~,
    the suggested
    changes to the first sentences
    of Sections 734.810 and 734.815. CW3Mdoes not
    provide any additional testimony
    to support these changes.
    CSD suggests changing the maximum payment amounts in Subpart H to
    "threshold values at or below which proposed budgets and requests for
    reimbursement can be approved without significant review, but require the
    owner/operator to submit actual costs for Agency review and approva1."
    Exh.99
    at 3. Reimbursement could exceed the threshold value under a "longer and more
    detailed review."
    Id.
    USI does not appear to believe that a fundamental shift in Subpart H to
    "considered reasonable" or "threshold" amounts is necessary, at least in Sections
    734.810 through 734.840. USI states in its testimony that "USI'sexperience in
    ---_.__
    .~
    .. _,_.
    ---------------------------
    LUST work in Illinois indicates that the billing methods, units of measure and
    prices [set forth in Section 734.810 through 734.840 of the Board'sFirst Notice
    Proposal] are not highly inconsistent with those prevailing in the market today.
    And, to the extent that the maximum payment amounts are inconsistent with
    prevailing market rates or insufficient to cover unique situations, the scope
    of
    16,
    Electronic Filing, Received, Clerk's Office, August 28, 2007
    ..
    work for these aCtivities is defined in sufficient detail to accommodate the use of
    the competitive bidding provision and extraordinary circumstances provision
    provided
    in 734.855 and 734.860 as a means of establishing alternative maximum
    payment amounts." Exh. 109 at 33-34.
    The changes suggested
    by CW3M and CSD would entirely alter the intent
    and effect ofSubpart
    H.
    As stated in the Board'sproposal, Subpart H "provides
    methods for determining the maximum amounts that can be paid from the Fund
    for eligible corrective action costs." 35 Ill. Adm. Code 734.800(a) (proposed)
    (emphasis added). The
    maximum payment amounts in Subpart H were developed
    and intended
    to be used as maximums, not speed bumps. Still, they are not
    absolutes. The maximum payment amounts can be exceeded via the bidding and
    the unusual or extraordinary circumstances provisions in the Board'sFirst Notice
    Proposal.
    Allowing costs to be reimbursed over and above the maximum payment
    amounts, outside
    of the bidding and the unusual or extraordinary circumstances
    provisions, renders the bidding and the unusual or extraordinary circumstances
    provisions superfluous. Furthermore, based on past experience, the Illinois EPA
    believes
    th~
    changes suggested by CW3M would result in frequent ifnot common
    attempts to exceed "considered reasonable" or "threshold" amounts set forth in
    the rules rather than routine requests for reimbursement at or below the
    "considered reasonable" or "fr..reshold" amounts because of a desire for more
    expeditious reviews and approvals. The Illinois EPA does not believe the
    suggested changes are necessary or appropriate, or that CW3M or CSD has
    17
    provided sufficient justification to warrant a change to the Board'sFirst Notice
    Proposa1.
    b.
    CW3M suggests changing Section 734.800(b) to allow costs not
    specifically listed under a particular task to
    be reimbursed separately from the
    maximum payment amount for the task.
    CW3M does not provide any additional
    testimony to support this change.
    The suggested change would alter the entire structure ofSubpart H, which
    includes an costs associated with a particular task
    in the maximum payment
    amount allowed for the task. Allowing individual costs associated with a task to
    be reimbursed over and above the maximum payment amount for the task will
    result in the eventual devolution of Subpart H into reimbursement on a time and
    materials basis for every item and task not specifically identified in the rules. As.
    the Illinois EPA testified, the development
    of an all-inclusive list of costs
    associated with
    each_ task identified in Subpart H would be impossible. The
    Illinois
    EPA's testimony is echoed in US}'s comments, where USI states that "[i]t
    is reasonable to believe that
    it would be impossible to capture, in a rule of this
    nature, a list
    of all products or services that may be needed during a UST
    remediation project."
    PC 59 at 44. The Illinois EPA does not believe that the
    suggested change is appropriate
    or that CW3M has provided sufficient
    justification to warrant a change to the Board'sFirst Notice Proposal.
    c.
    CW3M suggests changing Section 734.800(c) to eliminate the
    submission
    of cost breakdowns and invoices for costs paid by "lump sum or unit
    ofproduction" and to allow reimbursement in excess of the maximum payment
    18
    amounts of Subpart H if the reimbursement app licant provides "separate and
    adequate justification of [cost] reasonableness on a time and materials basis."
    Exh. 106 at Section 734.800(c). CW3M does not provide any additional
    testimony
    to support these changes.
    Regarding the first change, a description
    ofthe type of supporting
    documentation the Illinois EPA believes is necessary in a reimbursement
    application
    is already in the record ofthese proceedings. One item that certainly
    is necessary is an invoice with a minimum amount information to document the
    costs requested for reimbursement (e.g., the task performed, the amount charge.d
    for the task, and the date the task was conducted). Regarding the second change,
    the Board'sproposal already allows an owner or operator
    to exceed the maximum
    payment amounts via bidding and the unusual or extraordinary circumstances.
    provisions. The Illinois EPA does not believe the suggested changes are
    necessary or appropriate, or that CW3M has provided sufficient justification
    to
    warrant a change to the Board'sFirst Notice ProposaL
    d.
    CW3M suggests adding a Section 734.800(d) to provide
    reimbursement
    ofemergency activities on a time and materials basis. CW3M
    does not provide any additional testimony
    to support this change. There is
    nothing
    to show that emergency activities need to be reimbursed differently than
    non-emergency activities. Under the Board'sproposal emergency activities
    will
    be reimbursed to the same extent and in the same manner as non-emergency
    activities. The Illinois EPA does not believe the suggested change is necessary or
    19
    appropriate, or that CW3M has provided sufficient justification to warrant a
    change
    to the Board'sFirst Notice ProposaL
    10.
    Section 734.810
    CW3M suggests changing Section 734.810 to exclude several costs from the
    maximum payment amounts allowed for UST removal and abandonment and to
    reimburse the costs on a time and materials basis. CW3M also suggests changing the
    maximum payment amounts for UST removal and abandonment. CW3M does not
    provide any reasoning for excluding the identified costs from the maximum payment
    amounts, nor does it explain how its suggested maximum payment amounts were
    calculated.
    CSD also suggests changing the maximum payment amounts in Section 734.810
    and suggests reimbursing costs associated with filling USTs abandoned in place on a time
    and materials basis. The payment amounts suggested by CSD are based upon
    RS Means
    calculations and are different that the amounts suggested by CW3M.
    USI states in its testimony that it "agrees with the Board when they state that the
    rates ,should be based upon actual experience in the UST program in Illinois. RS Means
    and other sources that do not specifically track costs associated with the I11inois UST
    program are not likely
    to reflect the requirements and costs unique to the Illinois
    Underground Storage Tank Program and the peculiarities
    of the Agency's administration
    of the program." Exh. 109 at 32 (citations omitted). USI further states that it believes the
    maximum payment amounts set forth in Section 734.810 ofthe Board'sFirst Notice
    Proposal "are appropriate," and that it has <t
    no
    objection to their implementation."
    rd. at
    ----.---,
    20
    40 (no objection to the maximum payment amounts in Sections 734.810 through 734.840,
    excluding drilling mobilization costs).
    PIPE previously proposed alternative rates for
    UST removal and abandonment
    that were based on the 2004
    RS Means Environmental Costs Handling Options and
    Solutions
    publication. See First Notice Proposal at 81.
    In
    its First Notice Proposal the
    Board stated that it "is not convinced that basing rates
    on
    RS Means
    in and ofitse1fi8
    appropriate. Although as indicated above, the
    Agency's method for developing the
    maximum payment amounts had statistical limitations, the Agency'srates were based on
    real data from actual sites in Illinois. Therefore, the
    Board rejects alternative rates, such
    as
    RS Means,
    and the Board will propose the rates as developed by the Agency for first
    notice." Id.
    CW3M and CSD have suggested alternative payment amounts for Section
    734.810, but they have not provided sufficient additional testimony to show
    why the
    Board must adopt their suggested rates over the
    maximum payment amounts proposed by
    the Board, or that the bidding and the unusual or extraordinary circumstances provisions
    will not allow for reimbursement
    ofreasonable costs in cases where an owner's or
    operator's costs exceed the maximum payment amounts proposed by the Board. The
    Illinois
    EPA does not believe the suggested changes are necessary or appropriate, or that
    sufficient justification to warrant
    a
    change to the Board's First Notice Proposal has been
    provided. Please see the Illinois
    EPA's comments on Section 734.800 (above) for a
    discussion
    ofCSD's suggested change of the maximum payment amounts to "threshold"
    amounts.
    11.
    Section 734.820
    21
    C\V3M suggests adding a provision to Section 734.820 to make the maximum
    payment amounts for travel associated with professional consulting services also
    applicable to drilling costs to cover drilling contractors' mobilization charges. See Exh.
    106 at 21. USI states in its testimony that the maximum payment amounts proposed
    by
    the Board in Section 734.820 "are appropriate" and that it "has no objection to their
    implementation," with the exception
    of the omission ofa maximum payment amount for
    mobilization. Exh. 109 at 40.
    The Illinois EPA testified that mobilization costs were included in the drilling
    rates it proposed to the Board. Transcript
    of May 26,2005, at 46-47. The Board's
    proposal expressly includes mobilization charges in the maximum payment amounts for
    drilling. See
    35
    Ill.
    Adm. Code 734.820(a) (proposed) ("Such costs must include, but not
    be limited to, those associated with mobilization."). Furthermore, the travel rates that
    C\V3M proposes to make applicable to drilling costs were developed and intended to
    be
    used for travel costs associated with professional consulting services, not drilling costs.
    Neither CW3M nor
    USI provide sufficient additional testimony to show why the
    proposed maximum payment amounts do not provide reimbursement for reasonable
    mobilization costs, or why the bidding and the unusual
    or extraordinary circumstances
    provisions will not allow for reimbursement
    ofreasonable costs associated with drilling
    in cases where the owner's or operator'sdrilling costs exceed the maximum payment
    amounts proposed
    by the Board. The Illinois EPA does not believe the suggested
    changes are necessary or appropriate,
    or that sufficient justification to warrant a change to
    the Board'sFirst Notice Proposal has been provided.
    12.
    Section 734.825
    22
    CW3M continues to suggest changing the maximum payment amounts under
    Section 734.825 based upon amounts approved under Illinois Department
    of
    Transportation ("!DOT") contracts. CW3M also suggests changing the "swen factor"
    and "weight/volume" conversion factor set forth in Section 734.825, and suggests adding
    a reimbursement amount
    of$14.25 per cubic yard for "additional expenses" associated
    with the transportation
    qf soil that is temporarily stockpiled on:'site or off-site.
    USI states that it believes the maximum payment amounts set forth
    in Section
    734.825
    of the Board'sFirst Notice Proposal "are appropriate." Exh. 109 at 40.
    It
    has
    "no objection to their implementation." Id. (no objection to the maximum payment
    amounts in Sections 734.810 through 734.840, excluding drilling mobilization costs).
    The Illinois
    EPA submitted
    as
    Exhibit 89
    a
    letter from mOT that explains the
    costs
    in mOT'scontracts "should not be used to compare or justify cost[s] proposed by
    IEPA in this rulemaking." Exh. 89 at 2. The Board has already considered testimony
    from CW3M regarding IDOT contract costs
    and decided not to use those costs to
    determine the maximum payment amounts under Section 734.825. See,
    ~
    Exh. 29 at
    49, Appendix
    J. CW3M has not provided sufficient additional testimony to show why
    the Board must adopt its suggested rates over the maXimum payment amounts propose.d
    by the Board, or that the bidding
    and the unusual or extraordinary circumstances
    provisions will not anow for reimbursement
    of reasonable costs in cases where an
    owner's or operator'scosts exceed the maximum payment amounts proposed
    by the
    Board.
    The weight/volume conversion factor
    now suggested by CW3M is 1.2 tons per
    cubic yard, lower than the 1.5 tons per cubic yard conversion proposed by the Board.
    23
    amount by a sum roughly equal to the transportation charge for hauling contaminated soil
    to a landfill, even in cases where the soil is stockpiled on-site. The Illinois EPA does not
    believe the suggested changes are necessary
    or appropriate, or that sufficient justification
    to warrant a change to the
    Board'sFirst Notice Proposal has been provided.
    13.
    Section 734.830
    CW3M suggests changing Section 734.830
    by adding a "stop fee" for drum
    disposaL
    To accomplish this CW3M suggests making the maximum payment amounts
    for travel associated with professional consulting services also applicable to dmm
    disposal.
    USI states that it believes the maximum payment amounts set forth in Section
    734.825 of the Board'sFirst Notice Proposal "are appropriate." Exh. 109 at 40. It has
    "no objection to their implementation." Id. (no objection to the maximum payment
    amounts in Sections 734.810 through 734.840, excluding drilling mobilization costs).
    The Board'sproposal already includes any "stop fees" or other travel fees
    associated drum disposal in the maximum payment amounts for drum disposal. See 35
    Ill. Adm. Code 734.830 (proposed) (maximum payment amounts include payment for
    costs associated with drum purchase, transportation, and disposal). Furthennore, the
    maximum payment amounts for travel set forth in Section 734.845(e) were developed
    and intended to be used for travel costs associated with professional consulting services,
    not
    drum
    disposal. CW3M has not provided any additional testimony to show why the
    Board must adopt a "stop fee" in addition to the
    maXimllii1 payment amounts proposed by
    the Board, or that the bidding and the unusual or extraordinary circumstances provisions
    will not allow for reimbursement
    ofreasonable costs in cases where an owner'sor
    25
    operator'scosts exceed the maximum payment amounts proposed by the Board. The
    Illinois EPA does not believe the suggested changes are necessary, or that sufficient
    justification to warrant a change
    tD the Board'sFirst Notice Proposal has been provided.
    14.
    Section 734.840
    CW3M suggests changing the maximum payment amounts in Section 734.840 for
    costs associated with concrete, asphalt, and paving.
    In
    support of the changes it
    references its prior testimony in this rulemaking and states that the suggestedrates-ar-e
    consistent with prevailing rates. Exh. 106 at2S.
    USI states that it believes the maximum payment amounts set forth in Section
    734.840 of the Board's First Notice Proposal "are appropriate." Exh. 109 at 40.
    It
    has
    "no objection to their implementation." ld. (no objection to the maximum payment
    amounts in Sections 734.810 through 734.840, excluding drilling mobilization costs).
    The Board has already considered the prior testimony submitted by CW3M and
    others regarding the maximum payment amounts for concrete, asphalt, and paving, and
    declined to make any changes to the amounts proposed by the Illinois EPA. See First
    Notice and Opinion at 81. CW3M has not provided any additional testimony to show
    why the Board must adopt CW3M's suggested rates over the maximum paymentamounts
    proposed by the Board,
    or that the bidding and the unusual or extraordinary
    circumstances provisions will not allow for reimbursement
    ofreasonable costs in cases
    where an owner'sor operator's costs exceed the maximum payment amounts proposed
    by
    the Board. The Illinois EPA does not believe the suggested changes are necessary or
    appropriate, or that sufficient justification to warrant a change to the Board'sFirst Notice
    Proposal has been provided.
    26
    ,J,.:A""f"
    LuG;:)
    """[Y'"
    ~',
    "" ".
    'nrIU""ll'S
    .., '.
    ,I'[V
    "
    PO Box
    ]i.JC.1
    ,':\?(/~;
    h.:::;( l!-
    ~-h;;,,:'j\'\'ClY
    15
    \/'/c,c<II,;~'.-"/11.
    IL
    (,)?e98
    :011
    F.I('(:
    800,3/2.8;dO
    phone 618,73S2411
    filx
    61B.7352907
    -----------------www.uritedscience.conl -----------------
    May 3,2005
    Ms, Maric E. Tipsord
    I-tearing Officer
    Illinois Pollution Control Board
    100 West Randolph, Suite 11-500
    Chicago, 1L 60601
    Re:
    Premed Questions llnd Availability
    Dear Ms. Tipsord:
    In regard to the April 20, 2005 Hearing Order, please find attached a copy
    of the prefiled
    questions submitted
    on behalf of United Science Industries, Inc (USI) for the Agency's
    review. USI appreciates the opportunity to have additional hearings in the Southcm
    Illinois area. Currently,
    USI is
    rmavailable
    for hearings on the following dates: 6/6,6/7,
    6/8,6/9, 6!l4,
    6/15,
    711,
    7/4, 7/5, 7/6, 7/28 and 7/29,
    1:
    YO~re a~ve
    al.'y
    q,~estl~ons,
    plcascfcel free
    to
    contact
    me
    at (618)735.2411.
    \
    '
    .'
    ,,/
    /,/.
    ./
    /t:?!
    Daniel A. King
    Manager of Business Development
    United Science Industries, Inc.
    End
    (1)
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 3,2005
    Questions:
    (NOTE: All questions and regulations references have been asked relative to the
    proposed 734 regulations, where applicable questions would also apply to corresponding
    sections
    of 732 and possibly 731 regulations as well)
    1. Pursuant to 734.21 O(a) there are activities that are required to be performed within
    24 hrs
    of the confirmation of the release. Pursuant to 734.625(a)(I) Early Action
    activities conducted pursuant to Subpart B are eligible for reimbursement.
    However, Subpart H does not include a pay item inclusive of these tasks.
    Does the Agency intend to revise Subpart H to include a pay item for the
    completion of activities pursuant to 734.21 O(a)?
    If the Agency does not intend to revise Subpart H to include a pay item for these
    costs, with what current Subpart H pay item are these costs associated?
    2. Pursuant to 734.21 O(b) there are six (6) activities that are required to be
    performed within 20 days of the notification of the release to lEMA.
    734.210(b)(l) Remove Petroleum to prevent further release
    734.21
    O(b)(2) Visually inspect Release and prevent further migration
    734.210(b)(3) Monitor/mitigate fire, explosion,
    &
    vapor hazards
    734.210(b)(4) Remedy hazards posed by excavated or exposed soils
    734.21
    O(b)(5) Measure for the presence of a release
    734.21
    O(b)(6) Determine the possible presence of free product
    However, Subpart H does not include a pay item inclusive of these tasks.
    Does the Agency intend to revise Subpart H to include a pay item for the
    completion
    of activities pursuant to 734.21 O(b)?
    If the Agency does not intend to revise Subpart H to include a pay item for these
    costs, with what current Subpmi H pay item are these costs associated?
    3. Pursuant to 734.21 O(d) the owner/operator is required to prepare a 45-day report.
    In the event
    of an Early Action extension (734.21 O(g)) is it necessary and required
    to submit a 45-day report within 45+14 days from notification to lEMA
    if all
    Early Action activities are not yet complete?
    Doing so would require the submission
    of an amended 45-day report at the
    conclusion
    of early action activities and potentially result in an unnecessary
    duplicated effort.
    5/3/2005
    Page 1 of 10
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 3,2005
    Does the early action extension provided for in 734.210(g) also extend the
    submission deadline for the report that is required in 734.210(d) to the end of the
    early action period?
    If not, and two reports are required to be submitted under this circumstance,
    would the preparation of the second 45-day report be considered an extenuating
    circumstance and therefore reimbursable on a time and materials basis pursuant to
    734.850?
    4. Pursuant to 734.210(g) an owner/operator may request in writing that activities
    continue beyond the 45+14 day period.
    Are the costs associated with performing this activity eligible and reimbursable?
    If yes, is this activity considered an extenuating circumstance and therefore
    reimbursable on a time and materials basis pursuant to 734.850?
    If not, what applicable Subpart H pay items would apply to performing this task?
    5. Section 734.810 of Subpart H allows for reimbursement of tank removal and
    abandonment costs, performed pursuant to 734.210(f), on a per UST basis based
    on the relative size of the tank.
    Is it the Agency's intent that this cost would include the cost for abandonment
    slurry?
    6. Taking into consideration that a waiver of the removal requirements set forth by
    the Office
    of the State Fire Marshall (OSFM) to allow abandonment-in-place may
    only be granted when unusual situations, determined by OSFM, are present that
    make
    it infeasible to remove the UST(s),and as such no typical situation exists,
    should all tank abandonment activities be considered as extraordinary
    circumstances?
    7. Section 734.845(e) allows for reimbursement of costs associated with travel time,
    per diem, mileage, transportation, vehicle charges, lodging and meals for
    professional personnel. However, there
    is not a complimentary section within
    Subpart H to allow for travel costs associated with field personnel.
    Would the Agency consider adding a Subpart H Pay Item for field equipment
    mobilization charges as an hourly rate, by the mile, or a mileage scale
    in addition
    to a field equipment mobilization permitting item on a time and materials basis?
    If the Agency does not intend to revise Subpart H to include a pay item for these
    costs, with what current Subpart H pay items are these costs associated?
    5/3/2005
    Page 2 of 10
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 3,2005
    8. Section 734.845(a)(l) allows $960.00 for professional services associated with
    the preparation for abandonment or removal
    of USTs, however, professional
    services are also required but not limited to the following;
    Preparation for Early Action Soil Abatement
    Preparation for a Drilling Event
    Preparation for Implementation
    of Conventional Corrective Action
    Preparation for Implementation
    of Alternative Technologies
    Would the Agency consider the addition of $960.00 for preparation for an Early
    Action soil abatement, preparation for a drilling event, preparation for
    implementation
    of conventional corrective action, and preparation for
    implementation
    of alternative technologies?
    If the Agency does not intend to revise Subpart H to include a pay item for these
    costs, with what current Subpart H pay item are these costs associated?
    9. Pursuant to 734.845 costs associated with professional consulting services must
    include project planning and oversight, field work, field oversight, travel, per
    diem, mileage, transportation, vehicle charges, lodging, meals, and the
    preparation, review, certification, and submission
    of all plans, budgets, reports,
    and applications for payment, and other documentation. Sections 734.845(a-f)
    include provisions for each of the above mentioned, with the exception of costs
    associated with applications for payment pursuant to 734.625(a)(l4)
    Does the Agency intend to revise Subpart H to include a pay item for the
    owner/operator's reimbursement of the costs associated with the preparation,
    certification, and submission
    of a payment application for the following?
    Early Action?
    Site Investigation Stage I?
    Site Investigation Stage 2?
    Site Investigation Stage 3?
    Corrective Action?
    If the Agency does not intend to revise Subpart H to include a pay item for these
    costs, with what current Subpart H pay item are these costs associated?
    10. In accordance with section 734.845(a)(2)(A-C) owner/operators may be
    reimbursed for professional oversight
    of field activities when one or more of the
    following circumstances
    is taking place:
    removal/abandonment of UST's,
    ETD&B
    of contaminated backfill, soil sampling around abandoned UST's, and
    when a UST line release
    is repaired.
    5/3/2005
    Page 3 of 10
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 3,2005
    This allowance does not account for professional supervision for the confirmation
    of the release, the immediate actions taken to prevent any further release, and the
    identification and mitigation
    of fire, explosion and vapor hazards.
    Would the Agency entertain the addition
    of language to section 734.845(a)(2)(B)
    which would allow for the reimbursement of professional oversight of these
    activities on a time and materials basis pursuant to 734.850?
    11. Pursuant to section 734.605(b)(3), an Eligibility
    &
    Deductibility letter is required
    to complete an "application for payment". Pursuant to 734.625(a)(l5) the costs
    associated with obtaining an Eligibility
    &
    Deductibility letter are considered to be
    eligible and reimbursable. However, Subpali H does not include a pay item
    inclusive
    ofthis task.
    Does the Agency intend to revise Subpart H to include a pay item for the
    preparation and submission
    of an Eligibility
    &
    Deductibility letter?
    If the Agency does not intend to revise Subpart H to include a pay item for these
    costs, with what current Subpart H pay item are these costs associated?
    12. Pursuant to 734.345(b), an owner/operator as a minimum requirement must
    conduct "best efforts" to obtain off-site access in accordance with 734.350.
    However, Subpart H does not include a pay item inclusive
    of this task.
    Does the Agency intend to revise Subpart H to include a pay item for conducting
    "best efforts" to obtain off-site access?
    If the Agency does not intend to revise Subpart H to include a pay item for these
    costs, with what current Subpart H pay item are these costs associated?
    13. Pursuant to 734.21O(f) the owner/operator may, as a part of early action, perform
    ex-situ treatment of contaminated fill material.
    Will the owner/operator be
    reimbursed for these activities in accordance with 734.850, on a time and
    materials basis?
    14. What technologies does the Agency consider "conventional" for the ex-situ
    treatment
    of contaminated fill material?
    15. In our experience, UST removal rates vary depending upon the equipment
    required to remove said UST. For instance, tanks from 110-2000 gallons may be
    removed with a backhoe, however, tanks with capacities from 2,001 - 10,000
    gallons require a larger piece
    of equipment, such as an excavator, to be removed.
    Any tanks larger than 10,000 gallons must be removed with a crane. Each of these
    graduations increase the cost for the required personnel and equipment to carry
    out the removal.
    5/3/2005
    Page 4
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    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 3, 2005
    Would the Agency be willing to restructure the UST volume pay item schedule to
    account for these equipment limitations?
    16. The titles listed within 734.APPENDIX E do not include a job description for the
    personnel.
    When performing a task where payment will be in accordance with Appendix E,
    will reimbursement be based solely on the educational degree and experience
    of
    the person performing the task, regardless of the task performed, the efficiency of
    completing the task, and/or the success of regulatory compliance achieved by the
    owner/operator by performing the task?
    If not, would the Agency consider adding a section which would briefly describe
    the tasks to be performed by each
    of the personnel listed in Appendix E?
    17. Pursuant to Section 734.340(d) remote monitoring may be required during an
    alternative technology.
    How will costs associated with Agency required remote monitoring be
    reimbursed?
    18. In accordance with section 734.315(a)(2)(E) a hydraulic conductivity test must be
    completed during Stage 1 Site Investigation activities. However, Subpart H does
    not include a pay item for costs associated with performing and analyzing a
    hydraulic conductivity test.
    Does the Agency intend
    to revise Subpart H to include a pay item for costs
    associated with performing and analyzing a hydraulic conductivity test?
    If the Agency does not intend to revise Subpart H to include a pay item for these
    costs, with what current Subpart H pay item are these costs associated?
    19. Pursuant to 734.315(a)(3) an initial water supply well survey must be conducted
    in accordance with 734.445(a). Currently 734.845(b)(7) of Subpart H provides
    for the reimbursement
    of costs associated with water supply well surveys
    conducted pursuant to 734.445(b
    &
    c). However, there is no Subpart H pay item
    associated with activities conducted
    in accordance with 734.445(a).
    Does the Agency intend to revise Subpart H to include a pay item for costs
    associated with conducting an initial water supply well survey?
    If the Agency does not intend to revise Subpart H to include a pay item for these
    costs, with what current Subpart H pay item are these costs associated?
    20. In accordance with section 734.845(b)(7), a lump sum rate
    of $160 will be
    allotted for potable water well surveys which must be conducted pursuant
    to
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    sections 734.445(b) or (c). The external costs associated with completing a
    typical well survey are approximately $100 for ISGS and ISWS provided
    information. Given this typical situation, labor costs associated with this task
    would amount to $60.
    Does the Agency feel that $60
    is sufficient for the professional labor to comply
    with the requirements set forth in section 734.445?
    Is it also expected that this amount would account for time allotted for the
    Professional Engineer's review and certification,
    as required by 734.445(d)(4)?
    21. Pursuant to 734.825(a)(l), for the purposes of reimbursement, the volume of soil
    removed and disposed of must be determined by the dimensions of the excavation
    plus 5%.
    Will a site map with a cross section showing varying depths be sufficient to verify
    this volume?
    If yes, will it continue to be necessary to provide the following to the Agency:
    a. Copies of the weight tickets from the landfill accepting the waste?
    b. Copies of the special waste manifest?
    c. Copies of the landfill invoice (provided that the landfill acted as a
    subcontractor to the primary contractor)?
    Would the additional cost
    of collecting GPS coordinates to determine the volume
    of the excavated material be considered reimbursable on a time and materials
    basis pursuant to section 734.850?
    22.
    It
    is USI's experience that offsite investigations often require widely varying and
    unknown scopes of work.
    Would the Agency consider revising the Subpart H pay item associated with
    preparation and submittal
    of a Site Investigation Completion Report pursuant to
    734.845(b)(8) to T&M if completed during Stage III due the variability and
    inconsistencies within this stage
    of work?
    23. Pursuant to 734.320(b)(3)(A) the owner/operator
    is required to include within
    their Stage 2 Site Investigation Plan one or more maps detailing hydraulic
    gradient and groundwater flow direction. In order to obtain this information, an
    additional site visit, apart from the installation
    of groundwater monitoring wells,
    is required to collect the necessary data.
    Does the Agency intend to revise Subpart H to include a pay item for costs
    associated with completing a survey
    of groundwater flow direction and gradient?
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    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 3,2005
    If the Agency does not intend to revise Subpart H to include a pay item for these
    costs, with what current Subpart H pay item are these costs associated?
    24. In addition to the half-day for each monitoring well drilled in accordance with
    section 734.845(b)(2)(B) and 734.845(b)(6)(B), would the Agency entertain the
    addition of one (1) additional half-day for each required trip to the site including:
    well development, well surveying, and well sampling?
    25. It
    is mentioned within the Illinois Pollution Control Board's "Discussion" notes,
    page 80, that section 734.845(b)(5) and (6) will be deleted from the regulations
    and that the language "payment for costs associated with Stage 3 site
    investigations will be reimbursed pursuant to Section 734.850" will be added
    in
    its place, however, this language has not been included in the Board's proposed
    section 734.845 (b).
    Is this omission an error?
    26. In Brian Bauer's Prefiled Testimony submitted March
    5, 2004, Mr. Bauer
    indicates that "neither incidental expenses nor decontamination charges" were
    necessary, thus the rate for direct push injections
    is substantially lower than direct
    push soil borings ($15/ft vs. $18/ft). Based on our experience, costs associated
    with expendable items will not change drastically between investigation and
    injection activities. Although investigation activities utilize expendable materials
    used only for sample collection, injection activities utilize expendable points to
    prevent soil from clogging the injection rod. As a result, the cost differential
    between these two activities
    is insignificant.
    Additionally, decontamination
    between injection points
    is still necessary to prevent cross contamination.
    Would the Agency be willing to increase the per foot rate for Direct Push
    injections listed
    in 734.820(a) to $I 8.00/foot.
    27. Is the cost for the placement of an engineered barrier pursuant to 742.1105
    eligible for reimbursement? For the purposes ofreimbursement,
    is it required that
    the design
    of said barrier be approved by the Agency prior to implementation? If
    yes, why then would the same proposed rates not apply for engineered barriers as
    they do for replacement of surface materials?
    28.
    It
    is our understanding that conventional groundwater remediation strategies
    include the use
    of institutional controls.
    What other groundwater remediation mechanisms are characterized as
    "conventional" by the Agency? Subpart H does not include a pay item inclusive
    of these tasks.
    Does the Agency intend to revise Subpart H to include a pay item for the
    completion
    of activities pursuant to 734.21 O(a)?
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    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 3,2005
    If the Agency does not intend to revise Subpart H to include a pay item for these
    costs, with what current Subpart H pay item are these costs associated?
    29. Pursuant to 734.340 an owner/operator may choose to use an alternative
    technology for corrective action
    in response to a release.
    In the event the cleanup strategy utilizes both conventional and alternative
    remedial methods, and the owner/operator elects to submit a single corrective
    action plan (CAP) inclusive
    of both technologies, will the costs associated with
    the preparation and submission of the CAP be reimbursed pursuant to 734.850 on
    a time and materials basis?
    Or will the owner/operator
    be required to submit two (2) CAPs?
    If two (2) CAPs must be submitted, will the Agency consider the cost for the
    conventional technology CAP reimbursable pursuant to 734.845(c)(I) and
    consider the cost for the alternative technology CAP reimbursable pursuant to
    734.850?
    30.
    It
    is USI's experience that an Agency project manager may request a groundwater
    remediation CAP be proposed after soil remediation has been completed. Would
    the submission
    of two (2) separate CAPs be reimbursed pursuant to 734.845(c)(1)
    for each submittal independently?
    31. In accordance with 734.355(c) any action by the Agency to require a revised CAP
    pursuant to 734.355(b) must be subject to appeal to the board with
    35 days after
    the Agency's final action.
    Should 734.355(c)
    be revised to include budgets as well as plans?
    32. The competitive bidding requirements provided
    in 734.855 provide an alternative
    means for establishing the maximum payment amounts. One
    of the requirements
    of 734.855 (a) is that any bid solicited under 734.855 be based upon the same
    scope of work as the applicable Subpart H maximum payment amounts. Since the
    scopes
    of work have not been defined as part of Subpart H, maximum payment
    amounts, how are the owners/operators to use 734.855
    as a reasonable alternative
    to determine maximum payment amounts?
    33. Section 734.860 provides that the Agency may reimburse an amount
    in excess of
    Subpart H, maximum payment amounts, if an owner or operator incurs or will
    incur eligible costs that exceed the maximum payment amounts set forth
    in
    Subpart
    H.
    Since no scope of work is defined in relation to Subpart H, maximum
    payment amounts,
    is an owner/operator to assume that all costs incurred in
    response to a release above the maximum payment amount are extraordinary or
    unusual
    in the definition of eligible under 734.675?
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    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 3,2005
    34. How will the Agency determine prevailing market rates pursuant to 734.875?
    35. How does the Agency intend to collect the data needed to require with 734.875?
    36. Would the Agency consider adjusting the maximum payment amounts on January
    1
    of each year instead of July 1 of each year so that it would be more consistent
    with the fiscal year most often utilized by private businesses (owners/operators
    and consultants)?
    37.
    If the inflation factor in a given year is greater than 5.0% the adjustment in the
    maximum
    payment amount under 734.870 would be limited to 5.0%.
    Why not adjust by the increase
    in the CPI since it is reflective of actual market
    conditions?
    38. When engineering a remedial strategy for an active station, conventional
    technologies are often not applicable (ex. a dig and haul is not possible when a
    live system
    is in place), therefore one must look to alternative remedial designs.
    In reference to Section 734.340(b), an owner/operator must submit a budget that
    demonstrates that the cost for said alternative technology will not exceed the cost
    of conventional technologies.
    Is it the Agency's intent to hold an owner/operator liable for costs in excess of the
    conventional technology amount when a conventional technology is not feasible?
    Would this circumstance be considered extraordinary?
    39. Pursuant to section 734.340(c) what
    is the Agency's intent in rendering an owner!
    operator "ineligible to seek payment for the subsequent performance
    of a
    corrective action using conventional technology" when prior approval for
    implementing an alternative technology
    is not first attained?
    Would the owner/operator be considered ineligible to seek payment for the
    subsequent performance
    of an alternative technology as well?
    40. Pursuant
    to
    section
    734.320(b)(3)(A-D)
    and
    734.325(b)(2)(A-D)
    an
    owner/operator is required to produce one (1)
    or more maps, however, no limit is
    placed on the number of maps which may be required. Is it assumed that map
    preparation costs are to be included within the primary reporting lump sum task
    for each phase (ex. EA-$4800, SI-$1600/$3200, CA-$5120)?
    If so, how can a lump sum amount be determined if the scope of work (one (1) or
    more maps) cannot be determined?
    41. Pursuant to 734.835 Sample Handling and Analysis, costs associated with
    transportation, delivery, preparation, analysis and reporting
    of samples are
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    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 3,2005
    reimbursable costs and should be billed in accordance with the rates listed in
    734.APPENDIX D. Is it the Agency's intent that the per sample rates listed may
    be divided up between the entity doing the transportation, deliver, analysis, etc.?
    42. When determining acceptable depths for well installation activities, what entity,
    Agency or consultant, decides what depth
    is sufficient?
    43. Are Subpart H unit rate reimbursable amounts billable within all applicable
    phases
    of work?
    44. Pursuant to 734.315 Stage 1 Site Investigation, 734.320 Stage 2 Site
    Investigation, and 734.325 Stage 3 Site Investigation, an owner/operator may be
    required to advance soil borings
    in an attempt to fully delineate soil contamination
    present on-site. As a result, what constitutes a "soil boring"? i.e. are minimum
    depths required or must specific tooling be utilized?
    45. Pursuant to 734.815 Free Product or Groundwater Removal and Disposal and
    734.830 Drum Disposal, an owner/operator may be reimbursed for costs
    associated with disposal
    of petroleum contaminated soil and/or groundwater as a
    result of drilling activities. Who determines, however, whether media should
    drummed or disposed
    of in bulk?
    46. Pursuant to 734.845 Professional Consulting Services, how many submittals are
    included
    in each unit rate reporting pay item?
    47. Have all rates associated with Subpart H pay items been historically evaluated
    against actual reimbursement submittals?
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    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    IN THE MATTER OF:
    PROPOSED AMENDMENTS TO:
    REGULATION OF PETROLEUM LEAKING
    UNDERGROUND STORAGE TANKS
    35
    ILL. ADM. CODE 732
    IN THE MATTER OF
    REGULATION OF PETROLEUM LEAKING
    UNDERGROUND STORAGE TANKS
    PROPOSED NEW IlL. ADM. CODE 734
    Proposed Rule. First Notice
    )
    ) R04-22
    ) (UST Rulemaking)
    )
    )
    )
    )
    ) R04-23
    ) (UST Rulemaking
    )
    Consolidated)
    )
    RECEIVED
    CLERK'S OFFICE
    MAY 042005
    STATE OF ILLINOIS
    Pollution Control Board
    PRE-FILED QUESTIONS FROM Jay P. Koch FOR THE ILLINOIS POLLUTION
    CONTROL BOARD'S 1
    st NOTICE OF AMENDMENT TO 35 ILL. ADM. CODE 734
    AND 35 ILL. ADM. CODE 732.
    Below are questions proposed
    by Jay P. Koch in response to the TIlinois Pollution Control
    Board's request for pre-filed questions. These questions are presented in order to gain a
    .better understanding
    ofthe Agency's intent and approach to the implementation and
    administration
    ofthe proposed rules and the UST program subsequent thereto
    in
    order to
    facilitate the preparation and development
    of accurate, factual and meaningful testimony
    for the hearing(s) to be held this summer in the above referenced matters.
    Questions:
    1.
    In
    Mr. Clay'stestimony, he stated that groUndwater remediation is, by definition,
    considered to be an alternative technology. Some, but not all, IEPA technical reviewers
    require that a Corrective Action Plan, in order to be acceptable, address both soil and
    groundwater remediation. In a situation where the owner/operator is proposing a
    corrective action to the agency for both soil and groundwater remediation and assuming
    that the proposed method
    of soil remediation would be excavation, transportation and
    disposal, how would the Agency administer the Subpart H maximum payment amounts?
    Would this be treated as a c.onventional cap (maximum lump sum payment amount) or an
    alternative technology CAP (Time
    &
    Materials) or would it be a hybrid?
    2. Several consultants have recently mentioned that it is very difficult to have alternative
    technology CAPS (for soil remediation) approved by the Agency. If an alternative
    Page I of7
    technology CAP is submitted to the Agency and it is not approved, how does the Agency
    intend to deal with associated reimbursement issues under Subpart H? Specifically,
    if an
    alternative technology CAP is rejected one or more times, but is eventually approved
    by
    the Agency, will the Agency reimburse all professional service hours that are reasonable
    and justified so long as the rates for professional services are consistent with Appendix
    E?
    If the alternative technology Corrective Action Plan was rejected by the Agency
    reviewer on one or more occasions, and as a result the owner/operator elects to
    subsequently submit a CAP for a conventional technology, will the costs associated with
    the development
    ofthe alternative technology CAP be paid pursuant to Subpart H on a
    time and materials basis with the costs ofthe subsequently prepared conventional
    technology CAP being reimbursed on a maximum lump sum payment basis in
    accordance with 734.845
    (c) (1)?
    3. How does the Agency intend to administer the "extraordinary circumstances"
    provision?
    In
    order to avoid the landslide ofquestions and conflicts that are almost
    certain to arise after the implementation of any rule changes ofthe magnitude represented
    by Subpart H, is the Agency, prior to the final implementation
    ofthe rule, willing to
    publish on a regulation by regulation basis, examples of the types of situations that it
    believes will warrant a claim for "extraordinary circumstances"?
    4. Market research and analysis performed by USI indicates that nearly ninety-five
    percent
    ofthe owners/operators that are currently engaged in LUST clean-ups in Illinois
    are individuals or very small businesses. Many of these individuals and small businesses
    do not belong to the organizations that are listed as being the parties that will appoint the
    Members
    ofthe LUST Advisory Committee. Will the lEPA consider allowing an
    additional seat or seats on the LUST Advisory Committee in order to assure the
    representation ofthis category of owner/operator?
    5. The Agency is proposing revisions that would allow the Agency to remotely monitor
    alternative technologies? Is reimbursement for these activities to be handled on a time
    and material basis?
    6. Subpart H, Appendix D provides rates for Sample Handling and Analysis. Section
    734.835 indicates that these rates are for transportation, delivery, preparation, analysis
    and result reporting. Often times analytical samples are transported to a central shipping
    location
    by one party, delivered to the laboratory by another and then analyzed by the lab
    (a third party). Are the rates provided in Appendix D
    to cover the activities of all three
    parties described above?
    7. In numerous instances in the Agency'stestimony, the Agency testified that the
    proposed rules were being presented in order to "reform the budget and reimbursement
    process" and to "streamline the approval of budgets and the processing of reimbursement
    claims". An additional goal stated by the Agency was to "streamline the UST
    remediation process". Does this mean that the Agency'sintentions are to improve upon
    (reduce to the greatest extent practicable) the amount oftime that it takes for the various
    reviews, approvals and/or reimbursements?
    Page 2
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    \
    I
    I-
    I
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    8,
    The Agency testified that the rates are generally consistent with the rates the Agency
    currently approves. The Board accepted the Agency'sposition on this matter as part of
    the rule that was published at 1
    st
    notice. The consulting community, on the other hand,
    believes that the rates that are provided in the proposed regulations are not consistent
    with those that have historically been reimbursed. Instead the consulting community is
    confident that the amount
    of time that has been allowed for various professional service
    tasks and
    by extension the maximum lump sum payment amounts are substantially below
    those which have been historically reimbursed
    by the Agency. This has been a
    significant point
    ofcontention during this rulemaking and represents a conundrum. A
    simple answer to this conundrum would be to have a qualified and reputable independent
    third party audit the historical reimbursement records
    ofthe Agency with regard to the
    average costs for professional services per hour as well as the average number of
    professional service hours incurred per labor classification per task and to allow the audit
    report
    to be published, available to the public and placed on the record in this rulemaking.
    Is the Agency willing to allow an independent auditor to perform a statistically valid
    review
    ofthe Agency'shistorical files and to provide the results ofthat audit to be
    entered into the record in this proceeding?
    9. The Board has acknowledged that the method that the Agency used to establish the
    rates provided in Subpart H was not based upon scientific or statistically valid means.
    The Board has further acknowledged that it is largely relying upon the experience of the
    Agency and that the Board finds the rates proposed
    by the Agency in Subpart H to be
    reasonable. I would generally agree with the Board's assessment and opinion with the
    exception that
    I
    believe that the number ofhours that have been allotted for professional
    and consulting service tasks that are subjectto the maximum lump sum payment amounts
    and therefore, by extension the maximum lump sum payment amounts themselves are
    substantially inaccurate. for those services the rates that have been established for
    professional services and consulting.
    It
    appears that the number ofhours that the
    Agency has allotted to professional service tasks is woefully inadequate.
    Since the
    Board has acknowledged that the Agency did not use statistically valid means to establish
    the rates, what independent validation steps has the Board taken,
    or does it plan to take,
    in order to assure that the number
    ofhours that the Agency has allotted for professional
    and consulting services is sufficient to allow a reasonably proficient professional to
    complete each of the necessary tasks?
    10. Can the Agency please provide a list ofthe governmental fees and permits that it is
    considering not being eligible for reimbursement? Can the Agency provide a list of
    examples ofthe types ofpayments to other persons that it considers to be ineligible for
    reimbursement?
    11. Because this rulemaking is likely to be the most momentous in the history of the
    Illinois LUST program and is likely to have a profound financial impact on numerous
    owners/operators and consultants across the State
    of Illinois, is the Board willing to make
    a second request for the Illinois Department of Commerce and Community Affairs to
    perform an economic impact study
    ofthese proposed regulations?
    It
    is my understanding
    Page
    3 of7
    that, when requested to do so last year, the DCEO declined to provide this assessment for
    budgetarj reasons.
    12.
    In
    their 2004 testimony, the Agency indicated that 375 consultants perfonned work
    on LUST Sites
    in the last three years. Can the Agency provide a list of the names of the
    consulting finns that,
    in the aggregate, submitted fifty percent (50%) ofthe work plans,
    budgets and reports to the Agency from the period January 2003 to the present?
    13. The Agency objected to the notion of providing a "Defined Scope of Work" for the
    Subpart
    H payment items. The Board, at first notice, agreed with the Agency's position
    on this matter.
    On page 78, the Board seems to suggest that the consulting connnuriity
    wanted a defined scope
    ofwork to be separately developed for each project and also
    suggest that such a requirement would result in a highly cumbersome rule. I agree with
    the Board in that regard. As a point
    of clarification it has not been usrs desire that a
    detailed scope
    of work be prepared for each project. Rather, USI would like some
    definition to
    be set forth, on a task by task or regulation by regulation basis, that will help
    everyone understand
    what is to be considered "typical" and what is to be considered
    ."extraordinary". Would the Agency consider publishing,
    in advance of the effective date
    of this rule, some broad guidelines as to what is "typically required" on a task by task or
    regulation
    by regulation basis?
    14. Is it the Agency's intention that upon satisfaction ofthe deductible, and provided
    that the limitations
    on total payments provided for in 734.620 have not been exceeded,
    that the LUST
    Fund reimburse all corrective action costs that are eligible under 734.625?
    15. If funds are not available under the LUST Fund program, or as a result of the
    implementation
    of Subpart H, the Agency is unable to pay for all ofthe eligible (pursuant
    to 734.625) corrective action costs incurred by an owner/operator in excess of the
    deductible, does this
    in any way relieve the owner/operator ofthe responsibility to
    comply
    with IEPA regulations and remediate the site?
    16. If the answer to the above question is "no" then, does the Agency intend to enforce
    the Act
    and the LUST regulations, including the levying of fines and penalties, against
    owners/operators that are unable to comply?
    17. A practice, which has become common in the industry in Illinois, and which is
    necessitated
    by long reimbursement cycles, is for consultants and/or contractors to
    perfolTI1 corrective action work for the owner/operator and to generally wait for payment
    for their services until
    such time that the owner/operator has been reimbursed by the
    LUST Fund. What is the
    Agency'sopinion on consultants/contractors deferring payment
    for their services
    in excess of the deductible until such time that the owner/operator is
    reimbursed?
    What is the IPCB's opinion on this issue? Do the Agency and the Board
    believe that the proposed regulations, or any portion thereofhave any bearing
    on this
    practice
    on the part of the consuItant's/contractors?
    Page 4
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    f
    I
    f
    18. In the late 1980'sand the early 1990'sthe Agency administered a Joint Payment
    Progra.m whereby the Agency would make joint reimbursement payments to the
    Owner/Operator and their primary consultant/contractor. Why did the Agency do away
    with this program?
    19. In Mr. Chappel'stestimony, he indicated that the activities conducted by a
    consultant in each step
    of the LUST process and the estimated personnel time required
    for each activity were provided to the Agency by ACECI. Who, at ACECI or from other
    organizations, participated in this process? What are their qualifications and credentials?
    How much experience, do they have in Illinois LUST work and in what capacity? What
    scope
    of work was given to them in order for them to determine what was required at
    each step in the process? After receiving the estimated personnel titles and the estimated
    number
    ofhours from ACECI did the Agency make any modifications or additions to the
    information provided
    by ACECI before incorporating the information into the proposed
    rule? Why in this instance did the Agency rely on a third party to estimate the
    appropriate staffmg and level
    of effort required instead ofusing information from its
    historical experience? When was the information provided to the Agency
    by ACECI?
    20. Is the Agency familiar with a USEPA initiative referred to as TRIAD?
    21. Is it the Board or the Agency'sintention that personnel that do not meet the degree,
    licensing or experience requirements
    of Appendix E. but that have been previously
    employed in their respective positions prior to the effective date
    of the rules, be
    grandfathered into their current positions?
    In
    the alternative will these personnel be
    disqualified from their positions and subject
    to layoff? If a person does not meet the
    degree, licensing and experience requirements for the Project Manager labor category,
    but can demonstrate that it has been able to successfully develop work plans and budgets,
    gain Agency approval of those work plans and budgets and successfully manage the
    project with a high level
    of reimbursement by the Agency, can is it the intent of Subpart
    H and the Agency that this person will no longer be considered qualified to perform their
    job and therefore
    be subject to potential layoff by their employer?
    22. If a person does not strictly meet the degree, licensing or experience requirements of
    Appendix E how would the Agency go about determining what T&M billing rate would
    be applicable to the individual?
    23. 734.850 indicates that the reimbursement of personnel costs will be based upon the
    work being performed and not the classification or title of the person performing the
    work. Can the Agency provide a list of the classifications/titles that it considers to be
    appropriate to the various tasks/regulations? .
    24. Does the Agency consider consulting/professional services to be subject to the
    bidding requirements in Subpart H 734.855 as an alternative means of establishing the
    maximum payment amount? I assume the bidding requirement only pertains to
    contractors since the rule clearly delineates that consultants will be paid for bid
    Page 5
    of7
    solicitation preparation and bid review on a time and materials basis. Please clarify the
    Agency's intentions with regard to this matter.
    25. lfthe answer to the question above is "yes" what scope of work should be used in the
    bid solicitation since the scope
    of work associated with professional services is usually
    unknown at the time that the owner/operator hires the consultant?
    26. By what means is the owner/operator and his or her consultant required to solicit
    bids? If a bid solicitation results in less than three bids, how many rounds ofsolicitation
    are required?
    27. As an example, an owner/operator has an approved budget for a corrective action to
    excavate, transport and dispose
    of2,000 yards of contaminated soil. One evening during
    the corrective action
    work it rains two inches and the excavation fills with water which
    becomes contaminated when it comes into contact with soils
    in the excavation. The costs
    of the water disposal was not in the budget. How would the Agency administer this type
    of situation, assuming that the owner/operator makes a claim for reimbursement of the
    water disposal costs
    froni. the LUST Fund?
    28. As an example, an owner/operator hires a consultant to perform consulting and
    professional oversight services at its LUST site. The consultant performs the work
    required to obtain Agency approval
    of a Corrective Action Plan for conventional
    technology. The consultant bills the owner/operator for the service and the
    owner/operator is reimbursed. The owner/operator pays the consultant. After the
    completion
    ofthe excavation work stipulated
    in
    the approved CAP, the Agency reviewer
    requests a groundwater remediation to be performed. How will Subpart H be applied to
    this situation? Will the time necessary to develop the groundwater CAP be reimbursed on
    a time and materials basis.
    29.
    In
    calculating the maximum lump sum payment atnounts for the various plans and
    reports required as part
    of Early Action, Site Investigation and Corrective Action phases
    of a project, did the Agency assume that the various plans and reports would
    be approved
    by the Agency reviewer on the 1
    st submission? I assume this is the case since $640 is
    provided for Amended Plans and Amended Reports?
    30. 734.845 (f) provides $640 for the amendment of a plan or report.
    It
    would appear
    that this amount could be excessive in some instances and insufficient
    in other instances.
    Because the degree ofmodification or amendment to a plan or report can vary widely, it
    seems more appropriate and cost effective for the LUST Fund for this task to be
    performed on a time and materials basis. Would the Agency consider the use
    of a T&M
    billing method for the development of amended plans and reports?
    31. 734.800 (b) states that only some of the costs associated with each task are provided
    in Section 734.810 through 734.850 and that they are not intended as an exclusive list of
    all of the costs associated with each task for the purposes of payment from the Fund.
    734.800 (c) goes on to state that Subpart H sets forth only the methods that can be used
    to
    Page 6 of7
    . detennine the maximum amounts that can be paid from the Fund for eligible corrective
    action costs.
    The rules go on to state that whether a particular cost is eligible for payment
    must be detennined in accordance with Subpart F.
    If
    a cost item that is typically
    incurred
    ona LUST project has been accidentally omitted from Subpart H, how would
    the owner/operator go about seeking reimbursement for that costs?
    32.
    If an owner/operator engages the services of a professional consultant and the
    consultant,
    in good faith, initiates the development of a corrective action plan, only to
    find out after
    the work was initiated and a substantial amount oftime, energy and money
    had been expended that the project conditions warrant a level ofeffort that is likely to
    cause its charges for
    the professional/consulting services to greatly exceed the maximum
    payment amount provided in Subpart H.
    In
    this instance, does the Agency prefer to be
    notified immediately ofthe potential "extraordinary circumstance"?
    It
    seems as though
    all parties involved
    would want to know whether the Agency would consider the situation
    to be extraordinary or not before continuing to proceed with the work. In the example
    provided above, how should the owner/operator and his or her consultant handle this
    situation
    with the Agency?
    33. Does the Agency intend to develop internal standard operating procedures to help
    improve and ensure unifonnity, consistency and objectivity
    in its technical review of
    work plans, budgets and reports?
    34. The time to prepare and submit an application for reimbursement is an eligible cost
    under 734.625 (a) (14).
    No maximum lump sum payment amount is provided for these
    activities. Will a
    maximum lump sum payment amount be provided for this activity?
    35. Under 734.445
    (c) the Agency may require additional investigation of potable water
    supply wells.
    From reading this provision within the regulations, this requirement is
    contingent and at the discretion
    ofthe individual Agency reviewer. Does the Agency
    consider wells surveys conducted pursuant to this paragraph to
    be typical or
    extraordinary?
    36. Historically, the
    Agency has reimbursed on a time and materials basis the costs for
    field instrumentation, equipment, materials and supplies (field purchases), materials and
    supplies (stock items)
    and subcontractors related to professional and consulting services.
    Subpart H provides
    Appendix D which deals with acceptable rates for sample handling,
    transportation, delivery, analysis and reporting and Appendix
    E
    which provides personnel
    titles, qualifications and acceptable hourly rates. However, Subpart H does not provide a
    list
    of field instrumentation, equipment and materials and supplies that are acceptable in
    situations where the rules can for time and materials billing. Will the Agency be
    providing time and materials rates for field instrumentation, equipment and materials and
    supplies that will
    be considered to be the maximum payment amounts for those items
    when the work is associated
    with a time and materials task?
    Page 7 of7
    ILLINOIS POLLUTION CONTROL BOARD
    February
    17,2005
    IN THE MATTER OF:
    )
    )
    PROPOSED AMENDMENTS TO:
    )
    REGULATION OF PETROLEUM
    LEAKING)
    UNDERGROUND STORAGE TANKS (35
    )
    ILL. ADM. CODE 732
    )
    IN THE
    MATTER OF:
    )
    )
    PROPOSED AMENDMENTS TO:
    )
    REGULATION OF PETROLEUM
    LEAKING)
    UNDERGROUND STORAGE TANKS (35
    )
    ILL. ADM. CODE 734
    )
    Proposed Rule. First Notice.
    R04-22
    (UST Rulemaking)
    R04-23
    (UST Rulemaking)
    Conso1idated
    OPINION AND
    ORDER OF THE BOARD (by G.T. Girard):
    Today the Board will proceed to first notice under the Illinois Administrative Procedure
    Act
    (5 ILCS 100/1-1
    et. seq.
    (2002)) with a rulemaking proposed by the Illinois Environmental
    Agency (Agency). The Agency originally proposed amendments to the regulations concerning
    the leaking Underground Storage Tank (UST) program in January 2004. The Board has held
    seven days
    of hearings and received substantial comment on the Agency'sproposaL The Board
    received comments from industry, trade groups, and professional organizations including a group
    formed as a result
    of the proposal called Professionals of Illinois for the Protection of the
    Environment (PIPE). The Board has evaluated the comments in this proceeding and the
    additional language changes suggested
    by both the Agency and the participants. The first-notice
    proposal adopted by the Board today reflects the
    Board's consideration of aU the comments and
    testimony the Board has received.
    During this process, which began over a year ago, the Agency has submitted three
    errata
    sheets reflecting changes based on the questions and comments at the hearings. In addition,
    PIPE and other participants have suggested changes to the proposaL Based on all the
    suggestions and the record
    of this proceeding, the Board proposes for first notice a rule that
    includes lump sum maximum payments for certain tasks, but not a scope
    of work for those tasks.
    The Board
    is proposing the maximum payment amounts proposed by the Agency in most cases.
    The Board
    is cognizant that the methods used to develop the rates by the Agency were not
    scientifically or statistically recognized methods. However, the Agency's experience in the UST
    program is also an element to be taken into consideration. In addition, the first-notice proposal
    will include provisions for bidding, extraordinary circumstances, and an annual inflation
    adjustment. The Board is convinced that the first-notice proposal, as a whole, will allow for
    reimbursement
    of reasonable remediation costs.
    9
    also proposes amendments to subsection (h) to require the Agency to provide notice of the UST
    Fund'sbalance to owners and operators.
    Id.
    Section 732.6011734.605
    The Agency'sproposes changes to this section are necessary because
    of changes made
    throughout Part 732. R04-22Prop. at 21. For example, references to "materials, activities, or
    services" are deleted because pursuant to the proposed Subpart H, payment from the UST Fund
    will generally no longer be made based on "materials, activities, or services".
    Id.
    The Agency
    proposed new subsections (b)(9) and (b)(1
    0)2 requiring certain information be a part of the
    application for reimbursement.
    !d.
    The Agency seeks amendment of subsection (f) to require
    the submission of a budget plan prior to the Agency's review of a corresponding application for
    payment.
    Id.
    Subsection (g)
    is amended to include a general reference rather than a reference to
    revised budget plans. R04-22Prop. at 22. The Agency recommends the addition
    of subsection
    (i) and
    G)
    as well.
    Id.
    Subsection (i) would prohibit submission of applications for payment of
    deferred costs prior to the submission of a completion report.
    Id.
    Subsection
    G)
    would require
    the submission
    of applications for payment of corrective action costs no later than one year after
    the issuance of a no further remediation (NFR) letter.
    Id.
    Section 732.602/734.610
    The Agency proposes revisions to this section in combination with other changes
    proposed in Part 732. For example, the Agency proposes amendments to reflect that:
    (I) the
    Agency performs "full" reviews of all applications for payment; (2) budget plans are not required
    for early action other than free product removal; and (3) line item estimates are no longer
    required as a part of the budget plan. R04-22Prop. at 22.
    Section 732.603/734.615
    The Agency proposes changes for consistency and also language to provide that the
    Board or a court may order payment from the UST Fund. R04-22Prop. at 22-23.
    Section 732.604
    Because
    of changes made in P.A. 92-0554, the Agency undesignated subsections (a) and
    (b) as statutory language; but retained the wording in the rule for releases reported prior to the
    effective date ofP.A. 92-0554. R04-22Prop. at 23.
    Section 732.605/734.625
    2The Agency in the original proposal included a new subsection (b)(11); however, in the third
    errata
    sheet, the Agency withdrew subsection (b)(1I). Exh. 87 at 20.
    11
    Section 732.612/734.660
    The Agency proposes amendments to clarify that payment of an ineligible cost
    constitutes an "excess payment" from the UST Fund. R04-22Prop. at 28.
    Section 732.614/734.665
    The Agency'sproposal adds this new section to set forth record retention requirements
    and auditing procedures. R04-22Prop. at 28. In both the second and third
    errata
    sheets the
    Agency suggests changes to the proposed language. Exh. 15 at
    11; Exh. 87 at 22.
    Section 732.7011734.705
    The proposal amends this section to correct a cross-reference and to reference reports
    submitted pursuant to Section 732.202(h)(2). R04-22Prop. at 28.
    Section 732.702/734.710
    The Agency proposes amending this section to clarify that an owner or operator
    is not
    relieved
    of the responsibility for cleaning up contamination that migrates off-site where a NFR
    letter has been issued. R04-22Prop. at 28.
    Section 732.703/734.715
    The Agency's amendment would ensure that attachments to a NFR letter are filed with
    the letter. R04-22Prop. at 28.
    In
    addition, the amendatory language would allow a site located
    along a right-of-way of any highway authority to perfect a NFR letter via a Memorandum of
    Agreement with the highway authority. R04-22Prop. at 29.
    Section 732.704/734.720
    The Agency proposes clarifying language to this section as well as requiring owners or
    operators to complete groundwater-monitoring programs prior to the issuance
    of a NFR letter.
    R04-22Prop. at 29.
    Subpart H
    The Agency proposes a new subpart that proposes maximum amounts that will be paid
    from the UST Fund for certain activities. R04-22Prop. at 29. The Agency proposes the new
    subpart to "streamline payment from the UST Fund."
    !d.
    The Agency proposes lump sum or
    unit rates for some activities while other rates will be determined on a time and materials basis.
    Id.
    The following paragraphs will more completely summarize the Agency'sproposed new
    subpart.
    12
    Section 732.800/734.800. This section explains what the subpati contains and noted that
    the subpati enumerates only the "major costs" associated with a task. R04-22Prop. at 30. The
    section clarifies that the maximum payment amount
    is intended to include all costs associated
    with an activity and the subpart does not enumerate eligible costs.
    !d.
    Section 732.810/734.810. This section establishes the maximum payment amounts for
    costs involved in removing or abandonment of a UST. R04-22Prop. at 30.
    Section 732.815/734.815. The maximum payment amounts for removal
    of free product
    are set forth in this section. R04-22Prop. at 30; Exh. 87 at 23.
    Section 732.820/734.820. The maximum payment amounts for costs
    of drilling, well
    installation, and well abandonment are set forth
    in this section. R04-22Prop. at 30. The Agency
    proposes the addition of direct-push platform drilling in the first
    errata
    sheet. Exh. 1 at 4.
    Section 732.825/734.825. The maximum payment amounts for costs of soil removal,
    transportation, and disposal are set forth in this section. R04-22Prop. at 31.
    Section 732.830/734.830. The maximum payment amounts for costs associated with
    disposal
    of material using 55-gallon drums are set forth in this section. R04-22Prop. at 31.
    Section 732.835/734.835. This section addresses the cost associated with handling and
    laboratory analysis
    of samples. R04-22Prop. at 31. The specific maximum payment amounts
    are set forth in Appendix D of the proposal.
    Section 732.840/734.840. The maximum payment amounts for costs
    of replacement of
    concrete, asphalt, and paving are set forth in this section. R04-22Prop. at 31. The maximum
    payment for dismantling
    of concrete, asphalt, or paving is also included.
    Id.
    In
    the second
    errata
    sheet the Agency proposes language to increase the maximum payment for replacement.
    Exh. 15 at 9.
    Section 732.845/734.845.
    In
    the proposal, the Agency included this section setting forth
    maximum payment amounts for consulting services. R04-22Prop. at 31-32. The Agency
    recommended several changes to the proposal in the third
    errata
    sheet. Exh. 87 at 24-25.
    Section 732.850/734.850. The language
    of this section delineates the procedure for the
    Agency to determine rates based on time and material. R04-22Prop. at 32. Personnel costs
    cannot exceed the rates included in Appendix E and are determined based on the work being
    done, not the title
    of the person performing the work.
    Id.
    The Agency suggests an amendment
    to reflect other changes proposed in the third
    errata
    sheet. Exh. 87 at 35-36.
    Section 732.855/734.855.
    In
    the proposal, the Agency proposed language to address the
    circumstance where the costs associated with an activity exceeded the maximum payment
    amount. R04-22Prop. at 32.
    In
    the third
    errata
    sheet, the Agency suggests renumbering this
    section to Section 732.860 and adding a new Section 732.855. Exh.
    87 at 36-38.
    17
    Mr. Clay testified that the provisions in Section 732.614/734.665 are based upon other
    Board and Agency rules addressing retention and inspection
    of records. Exh. 3 at 9. Mr. Clay
    stated that the Agency plans
    to perform periodic audits of owners, operators, and consultants.
    Id.
    Mr. Clay further testified that the Agency does not intend to look at a company's financial
    statements; rather the Agency will review documents related
    to payments from the UST Fund.
    Exh.
    88 at 26. Mr. Clay explained that the Agency needs to ensure that records related to
    reimbursement are retained for a celiain period of time in case the Agency needs to review the
    records.
    Id.
    Response to Testimony by Participants. Mr. Clay testified that PIPE submitted
    agendas from meetings between the Agency and PIPE. Exh.
    88 at 3. Mr. Clay wanted to clarify
    that the agendas were prepared by PIPE and did not necessarily reflect what was actually
    discussed at the meetings.
    Id.
    Mr. Clay also sought to clarify the reason the Agency has
    proposed these revisions to the UST rules.
    Id.
    Mr. Clay emphasized that the changes were
    brought about because
    of statutory change and in order to streamline the preparation and review
    of budgets and applications for payment. Exh. 88 at 3-4.
    In
    addition, the Agency believes the
    proposal will allow for more efficient use
    of consultant, Board, and Agency resources while
    improving consistency in the Agency's decisions. Exh.
    88 at 4. Mr. Clay stated that the Agency
    fmiher believes that the proposed changes could help control cleanup costs, expedite cleanups,
    and ultimately allow owners and operators to be reimbursed
    in a more efficient and timely
    manner.
    Id.
    Regarding the economic savings that may be expected because of this proposal, Mr. Clay
    stated that the Agency has not performed a formal economic analysis
    to determine the savings
    that may be generated by the proposal. Exh.
    88 at 4. Mr. Clay noted that based on recent data,
    $25 million more a year is being paid out from the UST Fund than
    is being received and if this
    difference
    is not reduced, delays in payments could occur.
    Id.
    Under this proposal, the Agency
    believes there will be significant savings in cleanup costs with reasonable rates being established
    in regulations.
    Id.
    Mr. Clay testified that there will be less time needed for consultants to
    prepare budgets and reimbursement packages and less time required for Agency review.
    Id.
    Mr.
    Clay also stated that limiting reimbursement to Tier 2 remediation objectives and requiring use
    of groundwater ordinances "will significantly reduce" the cost of cleanup. Exh. 88 at 4-5.
    In
    response to testimony concerning the time the Agency takes to make a decision under
    the UST program, Mr. Clay pointed out that the Act provides the Agency with 120 days to
    respond to submittals. Exh. 88 at 5. Mr. Clay opined that "any change to that timeframe would
    need
    to be a statutory change" and a reduction of that timeframe would impact the Agency's
    administration
    of the UST program.
    Id.
    Secondly, Mr. Clay noted that the Agency's actual time
    for review
    is often less than 120 days. Exh. 88 at 6.
    In
    the period from May 2003 through May
    2004, the Agency completed review
    of more than half the submittals within sixty days. Exh. 88
    at 6. Mr. Clay further pointed out that 25% of the submittals were decided within thirty days.
    Id.
    Mr. Clay opined that the amount of time the Agency takes to review a submittal is largely
    based on the quality
    of the submittal.
    Id.
    The Agency is also opposed to the concept of requiring the Agency to prepare a draft
    denial letter prior to the Agency decision. Exh.
    88 at 13. Mr. Clay testified that such a process
    24
    For Section 732.840/734.840(b), Mr. Bauer indicated that the limit has been established
    at $10,000 per occurrence. Exh. 9 at
    12. For reimbursement the activities must be submitted on
    a time and materials basis to the Agency.
    Id.
    Mr. Bauer testified concerning the rates for professional consulting services in Section
    732.845/734.845. Exh. 9 at 12-15. Mr. Bauer stated that after consultation, the American
    Consulting Engineers Council ofIllinois
    3
    (ACECl), the Agency determined that fieldwork
    should be billed on a half-day rate, which
    is five hours billed at $80 per hour. Exh. 9 at 12. The
    Agency included additional expenses for vehicles or mileage, photo ionization detector (PID),
    and miscellaneous supplies to develop the maximum
    of$500 per half-day. Exh. 9 at 12-13. Mr.
    Bauer testified that maximum half-day increments had been established for oversight
    ofUST
    removal, removal of contaminated soil, soil borings, line release repair, free product removal,
    and groundwater sampling event. Exh. 9 at 13-15.
    Mr. Bauer testified that Section 732.Appendix E/734.Appendix E establishes personnel
    titles and rates to be used when submitting activities on a time and materials basis. Exh. 9 at 15.
    The titles must be used and the consultant'spersonnel must be able to meet the title
    requirements.
    Id.
    The rates are based on the task performed and not the title of the person
    performing the task.
    Id.
    Mr. Bauer stated that the consolidation of titles is essential to maintain
    consistency in Agency reviews and to expedite the review process.
    Id.
    Mr. Bauer indicated that
    the maximum hourly rates are based on the average rate the Agency has seen on budgets and
    reimbursement claims. Exh. 9 at 16.
    Harry Chappel
    Mr. Chappel is a unit manager in the leaking UST section within the Bureau of Land and
    has been
    in his current position since 2002. Exh. 11 at 1. Mr. Chappel was previously employed
    by the Agency from 1976 to 1995 and was in private practice from 1995 to 2002.
    Id.
    Since
    1979, Mr. Chappel has been a registered professional engineer.
    Id.
    Mr. Chappel's testimony
    supports the proposed language in Subpati H. Mr. Chappel testified that the proposal
    is a result
    of modifications to the Act and "the need to reform the current reimbursement procedures."
    Id.
    Mr. Chappel testified that Section 732.800/734.800 specifies all reimbursable tasks will
    be limited to the maximum amounts set forth in Subpart
    H. Exh. 11 at 2. The Agency grouped
    reimbursable activities into eleven categories.
    Id.
    Mr. Chappel'stestimony includes several
    attachments in support
    of the proposed maximum allowable rates. Exh. 11 at 3.
    For Section 732.825/734.825, Mr. Chappel testified that the rate for soil excavation,
    transportation and disposal was developed using randomly selected projects. Exh.
    11 at 3. The
    maximum rate for the cost to excavate, transport, and dispose (ETD)
    is the sum of costs for each
    activity plus one standard
    of deviation rounded up to a whole dollar amount.
    Id.
    The result is
    $57 per cubic yard.
    !d.
    Mr. Chappel indicated that the rate for backfill would be $20 per cubic
    yard.
    Id.
    This maximum rate was developed by using the sum of the costs to backfill plus one
    3 On July 1, 2004, the Consulting Engineers Council of Illinois became the American Consulting
    Engineers Council
    of Illinois. Tr.6 at 7-8.
    82
    Use of Phrase "Maximum Payment Amounts"
    PIPE argues that the Agency's use of the phrase "maximum payment amount" is
    inconsistent with Section 732.860/734.860 and Section 734.800(b). PC 6 at 9. PIPE notes that
    those sections
    of the proposal indicate that the amount in Subpart H may be exceeded and are not
    exclusive.
    !d.
    PIPE suggests that the phrase "reasonable costs" or "usual and customary costs"
    as alternatives. PC 6 at 10.
    The Board agrees that "maximum payment amount"
    is a phrase which denotes the
    highest amount payable for a task. However, the Board believes that in the context
    of the rules,
    the phrase
    is appropriate and the Board declines to make a change.
    Compaction (Section 732.606/734.630(w))
    PIPE raised the issue of compaction and backfill in PIPE'spublic comment. PIPE
    suggests that compaction
    of backfill material should be an eligible cost. The Board disagrees
    with PIPE. Section 732.606(w), which
    is identical to Section 734.630(w), is existing language.
    The Board is not convinced that this record supports removing compaction
    of backfill material
    from the list
    of costs which are currently ineligible for reimbursement.
    CONCLUSION
    The Agency originally proposed amendments to the regulations concerning the leaking
    UST program in January 2004. The Board has held seven days
    of hearings and received
    substantial comments on the proposal. The Board has evaluated the comments in this proceeding
    and the additional language changes suggested by both the Agency and the participants. The
    first-notice proposal adopted by the Board today reflects the Board'sconsideration
    of all the
    comments and testimony the Board has received.
    Based on the record
    of this proceeding, the Board proposes for first notice a rule that
    includes lump sum maximum payments for certain tasks, but not a defined scope
    of work for
    those tasks. The Board is proposing the maximum payment amounts proposed by the Agency
    in
    most cases. The Board is cognizant that the methods used to develop the rates by the Agency
    were not scientifically
    or statistically recognized methods. However, the Agency's experience in
    the UST program
    is also an element to be considered.
    In
    addition, the first-notice proposal will
    include provisions for bidding, extraordinary circumstances, and an annual inflation adjustment.
    The Board is convinced that the first-notice proposal, as a whole, will allow for reimbursement
    of reasonable remediation costs.
    As noted above the proposal includes a provision for bidding, and further, the proposal
    allows for the preparation
    of a request for bids and the review of the bids to be reimbursed on a
    time and materials basis. The Board
    is also proposing that Stage 3 investigations be reimbursed
    based on time and materials. The Board will also propose for first notice a definition for
    "financial interest" and language prohibiting reimbursement for handling charges when the
    primary contractor has a financial interest in the subcontractor. The Board will also retain the
    1
    1
    2
    3
    4
    ILLINOIS POLLUTION CONTROL BOARD
    August 9, 2004
    5
    6
    7
    8
    9
    10
    11
    12
    13
    IN THE MATTER OF:
    PROPOSED AMENDMENTS TO:
    REGULATION OF PETROLEUM
    LEAKING UNDERGROUND STORAGE TANKS
    (35 ILL. ADM. CODE 732)
    IN THE MATTER OF:
    PROPOSED AMENDMENTS TO:
    REGULATIONS OF PETROLEUM
    LEAKING UNDERGROUND STORAGE TANKS
    (35 ILL. ADM. CODE 734)
    R04-22
    (UST Rulemaking)
    R04-23
    (UST Rulemaking)
    14
    The following proceedings were held before the Illinois
    15
    Pollution Control Board, August 9, 2004, at the Department
    16
    of Natural Resources Building, One Natural Resources Way,
    17
    Springfield, Illinois, before Ann Marie Hollo, CSR, RMR.
    18
    19
    20
    21
    22
    23
    24
    Keefe Reporting Company
    11 North 44th Street
    Belleville, Illinois 62226
    (618) 277-0190
    (800) 244-0190
    Keefe Reporting Company
    (618) 244-0190
    1
    APPEARANCES:
    2
    3
    OFFICE OF THE ILLINOIS POLLUTION CONTROL BOARD
    James R. Thompson Center, 100 W.
    4
    Randolph Street, Suite 11-500
    Chicago, Illinois 60601
    5
    By: Marie Tipsord, Esq.
    6
    Hearing Officer
    7
    ILLINOIS POLLUTION CONTROL BOARD MEMBERS:
    8
    G. Tanner Girard, Ph.D, Thomas E. Johnson, Esq.,
    9
    AND
    10
    Alisa Liu, P.E., Technical Staff Member
    11
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
    12
    1021 North Grand Avenue East
    Spingfield, Illinois 62794
    13
    By: M. Kyle Rominger, Esq.
    14
    15
    Posegate & Denes, P.C.
    111 North Sixth Street, Suite 200
    16
    Springfield, Illinois 62701
    By:
    Claire A. Manning, Esq.
    17
    On behalf of PIPE
    18
    19
    20
    21
    22
    23
    24
    Keefe Reporting Company
    (618) 244-0190
    2
    1
    2
    3
    4
    5
    6
    7
    is not consistent with the Act.
    A few issues have been raised regarding
    the applications for payment. One is that the
    requirement that applications for payment
    include proof of payment to subcontractors.
    There has been requests to strike this
    requirement because of hardship of obtaining
    37
    8
    canceled checks.
    Canceled checks are not the
    9
    10
    11
    12
    13
    14
    15
    16
    17
    18
    19
    only proof of payment that may be submitted.
    Applications for payment may also contain lien
    waivers or affidavits from subcontractors. One
    of these methods of proof of payment should be
    reasonably obtained.
    Proof of payment of subcontractors' costs
    is necessary to show the consultant is entitled
    to handling charges. Handling charges, by
    definition, means administrative insurance and
    interest costs as -- and the reasonable profit
    for procurement, oversight and payment of
    20
    subcontractors and field purchases.
    If
    the
    21
    22
    23
    24
    consultant paid the subcontractor's bill, he or
    she is entitled to handling charges. However,
    many consultants have the owner/operator pay
    the subcontractors directly, and therefore are
    Keefe Reporting Company
    (618) 244-0190
    Electronic Filing, Received, Clerk's Office, August 28, 2007
    1
    2
    3
    4
    5
    6
    7
    8
    9
    10
    11
    12
    HEARING OFFICER TIPSORD:
    You have a
    follow-up on that?
    BOARD MEMBER JOHNSON:
    No.
    HEARING OFFICER TIPSORD:
    Go ahead.
    BOARD MEMBER JOHNSON:
    I was looking over
    this, Doug, the new Section 855, which bothers
    me. I was used to calling it ordinary,
    extraordinary, an unusual expenses 855.
    But I assume that that was going to be the
    addition that was going to engender the most
    interest or most questions.
    QUESTIONS BY BOARD MEMBER JOHNSON:
    67
    13
    Q
    The biggest question I had was in Section
    14
    C, in part, in 855, your proposed language is the
    15
    maximum payment amount for the work bid shall be the
    16
    amount of the lowest bid, unless the lowest bid is
    17
    less than the maximum payment amount set forth in
    18
    Subpart H, in which case the maximum payment amount
    19
    set forth in Subpart H shall be allowed.
    20
    And this goes back, I guess, to
    21
    essentially our first hearing when we talked about
    22
    your Subpart H maximum payments is
    to me this
    23
    implies that no longer is going to be -- I mean,
    24
    it's implying that regardless of what the bids are,
    Keefe Reporting Company
    (618) 244-0190
    Electronic Filing, Received, Clerk's Office, August 28, 2007
    1
    you get three of them, they're all under the amount
    2
    that you've defined as the maximum number, payment
    3
    allowed. We're going to get the maximum payment
    4
    allowed. Am I reading that right?
    68
    5
    6
    A
    Q
    (By Mr. Clay) Yes.
    Do you recall the question somebody asked
    7
    in the first hearing that these are maximum amounts,
    8
    and if in fact the amount comes in underneath that,
    9
    that's what's going to be reimbursed, rather than
    10
    the amount delineated in Subpart H?
    11
    A
    Because someone could, without bidding, go
    12
    in and do the work for the amounts in Subpart H, we
    13
    put it in C that way to allow them to go ahead and
    14
    use Subpart H.
    15
    And I would have to agree with you;
    16
    that would be reasonable to take the lowest bid,
    17
    since we've also stated in testimony that someone
    18
    who's conducting this bidding has already
    19
    predetermined or prequalified these bidders as
    20
    someone that would be acceptable to them.
    21
    Q
    And you're going to require not only if I
    22
    get five bids, I'm going to want all five of them so
    23
    I can't pick and choose which ones I submit to you,
    24
    then this seems to imply as well that if I go out
    Keefe Reporting Company
    (618) 244-0190
    1
    Q
    You do a cleanup for 200,000.
    You get
    86
    2
    done Monday.
    You went to submit the reimbursement
    3
    on a Friday for your reimbursement. Obviously you
    4
    haven't paid the trucker, you haven't paid the
    5
    landfill, you haven't paid anybody yet. So you're
    6
    not going to have the waiver or anything.
    7
    8
    9
    10
    11
    12
    13
    14
    15
    16
    17
    MS. DAVIS:
    That is a problem.
    HEARING OFFICER TIPSORD:
    Excuse me,
    excuse me. We're drifting into testimony.
    MS. DAVIS:
    Okay.
    HEARING OFFICER TIPSORD:
    Please stick to
    questions.
    If you want to comment on this at
    the end of the day, I'll be more than happy to
    let you testify.
    MS. DAVIS:
    That was my -- that was the
    end of the question.
    QUESTIONS BY MS. DAVIS:
    18
    Q
    And the next question I have is, in the
    19
    case of a drilling aspect where I own my own
    20
    drilling company, and let's say a particular site I
    21
    can't do a drilling for the set price. So I go out
    22
    and I get three bids as the Agency has allowed me.
    23
    And it also allows me that if I wanted to, I could
    24
    do the work for the lowest bid. How do I get paid
    Keefe Reporting Company
    (618) 244-0190
    1
    for my handling for my time to go get those bids for
    2
    the scope of work? Because I'm a person who is
    3
    using a subcontractor with the indirect financial
    87
    4
    5
    interest.
    A
    I
    mean, how do I get paid?
    (By Mr. Clay) In that case, I think you
    6
    would be entitled to that lump sum as if the owner
    7
    and operator were paying for the subcontractor. And
    8
    then, you know, that's sort of a business decision.
    9
    That's a decision you're making, that you want, in
    10
    your case, your company to do the work as opposed to
    11
    the low bidder.
    12
    13
    14
    15
    MS. DAVIS:
    Okay.
    HEARING OFFICER TIPSORD:
    Go ahead.
    MR. SCHUMACHER:
    Brad Schumacher.
    QUESTIONS BY MR. SCHUMACHER:
    16
    Q
    I didn't get an answer. If I sent in my
    17
    reimbursement claim, I am not going to have any
    18
    waivers, cancelled checks, affidavit, because I
    19
    haven't paid my contractor yet. So are you going to
    20
    deny my claim? Or how does that work? Obviously,
    21
    we're going to pay our subcontractor, but what if my
    22
    terms are 90 days, I submit a claim, and you're
    23
    going to not process the claim because I don't have
    24
    the waivers? Or backups that I'm paying the
    Keefe Reporting Company
    (618) 244-0190
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    EcelV
    CLERK'S OFFICE
    SEP 23 2004
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY'S
    POST HEARING COMMENTS
    n-J THE MATTER OF:
    )
    )
    PROPOSED AMENDMENTS TO:
    )
    REGULATION OF PETROLEUM
    )
    LEAKING UNDERGROUND STORAGE )
    TANKS (35 ILL. ADM. CODE 732)
    )
    IN THE MATTER OF:
    )
    )
    PROPOSED AMENDMENTS TO:
    )
    REGULA
    nON OF PETROLEUM
    )
    LEAKING UNDERGROUND STORAGE )
    TANKS (35 ILL. ADM. CODE 734)
    )
    R04-22
    (Rulemaking - Land)
    R04-23
    (Rulemaking - Land)
    STATE OF
    illiNOiS
    Pollution Control Board
    NOW COMES the Illinois Environmental Protection Agency ("Illinois EPA"), by
    and through one of its attorneys, Kyle Rominger, and submits the following post-hearing
    comments:
    The Illinois
    EPA would like to thank the Board, Hearing Officer Tipsord, and the
    Board staff for their attention and patience in this rulernaking proceeding. The Illinois
    EPA would also like to thank all
    of the parties that contributed to this proposal through
    discussions with the Illinois EPA and through comments and testimony provided to the
    Board.
    As stated in the hearings held in this rulemaking, a portion
    of the outreach process
    that the Illinois
    EPA normally conducts prior to submitting proposed rules to the Board
    did not occur
    in this rulemaking due to anti-trust concerns expressed by outside parties.
    This uncommon curtailment
    of the Illinois EPA's outreach meant that many issues
    usually discussed and settled prior to the submission
    ofrules to the Board were raised in
    investigation statute up to date." Id. Copies of the legislative transcript pages cited
    above are provided in Attachments A, B, and C of this document.
    As noted in the legislative record, Public Acts 92-0554 and 92-0735 were passed
    to amend Title XVI for distinctly different reasons. There is not such total and manifest
    repugnance between the two Public Acts that they cannot stand together. Because the
    two Public Acts make changes
    to Title XVI that do not irreconcilably conflict, they must
    be construed together in a manner that gives each its full effect. Specifically, the site
    classification system was replaced with the site investigation and remediation
    requirements
    of Public Act 92-0554, and Licensed Professional Geologists were added to
    the Licensed Professional Engineer supervision and certification requirements as
    provided in Public Act 92-0735.
    After the Public Acts were signed into law, the Illinois EPA carefully researched
    and studied how the amendments to Title XVI must be interpreted and applied. The
    Illinois
    EPA has been very careful to ensure that both its proposal and its implementation
    ofTitle XVI
    arecon~istent
    with the changes made by the Public Acts and the
    legislature's intent.
    2.
    The Proposed Maximum Payment Amounts.
    As explained in the hearings, the Illinois EPA believes the maximum amounts set
    forth in its proposal are reasonable for the work being performed, unless a higher amount
    is justified through bidding or because
    of unusual or extraordinary circumstances.
    Several questions were raised about the Illinois EPA'sdevelopment of the proposed
    maximum amounts. Many
    ofthese questions concerned the use of historical information
    and whether the amounts developed from such information reflect current market prices.
    7
    Although the Illinois EPA used historical information in its development of some of the
    maximum amounts, the amounts set forth in the proposal are generally consistent with the
    amounts owners and operators request for reimbursement and the amounts the Illinois
    EPA approves for payment from the Underground Storage Tank: Fund ("UST Fund").
    See, e.g., Exhibit 4 at.3; Exhibit 10 at 2; Exhibit 12 at 6. The Illinois EPA believes the
    maximum amounts set forth in its proposal are not out of date and do not need to be
    increased by any inflationary rate to make them consistent with current market prices.
    The amounts proposed are already consistent with the current market.
    While there has been much discussion about the development
    of the proposed
    maximum amounts, very little has been said about the amounts themselves. Some
    evidence has been presented to show that the maximum amounts should be something
    other than what the Illinois EPA proposes. So far, however, neither alternative amounts
    (other than personnel and lab rates listed in the appendices) nor adequate justification for
    alternative amounts have been submitted to the Board. While the Illinois EPA has
    remained open to
    dis~ussing
    alternative amounts with interested parties as long as the
    amounts can be justified, it too has not been provided with alternative amounts (other
    than personnel and lab rates listed in the appendices) or adequate justification for
    alternative amounts.
    Although the proposed rules set forth maximum amounts that will be paid for
    certain tasks, owners and operators are not constrained
    by these amounts. These
    "default" maximum amounts can be exceeded through bidding or through site-specific
    approval when unusual or extraordinary circumstances are encountered. The addition
    of
    bidding, which the Board suggested as an option, is one of the most significant changes
    8
    CERTIFICATE OF SERVICE
    I, the undersigned attorney at law, hereby certify that I served the foregoing
    document upon all persons entitled to same by causing copies to be deposited
    in the
    United States Post Office mailbox at 14th and Main Streets,
    Mt.Vernon, IL, before
    6:00 p.m. this date,
    in envelopes with proper first- class postage affixed, addressed
    as follows:
    Dorothy
    M. Gunn, Clerk
    Illinois Pollution Control Board
    James
    R. Thompson Center
    100
    West Randolph Street
    Suite 11-500
    Chicago, IL 60601
    James G. Richardson, Esq.
    Illinois Environmental Protection Agency
    1021
    N. Grand Ave. East
    Springfield, IL 62702
    Hon. Carol Webb
    Illinois Pollution Control Board
    1021
    N. Grand Ave. East
    P.O. Box 19274
    Springfield, IL 62794
    August 28, 2007
    ~-
    John T. Hundley
    Mandy
    L. Combs
    THE SHARP LAW FIRM, P.C.
    P.O. Box 906 - 1115 Harrison
    Mt. Vernon, IL 62864
    618-242-0246
    Counsel for Petitioner PMA
    &
    Associates, Inc.
    Brenda\USI\PMA\SummJudgResponse.doc
    - 20-

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