RECEIVED

CLERK’S OFFICE

JUN 07 2004

BEFORE

TILE

ILLINOIIS POLLUTION

CONTROL

BOA~lution

STATE OFControlILLINOISBoard

TN THE MATTER OF:

PROPOSED AMENDMENTS TO:

REGULATION PETROLEUM LEAKING

UNDERGROUND STORAGE TANKS

35

ILL. ADM. CODE 732

IN THE MATTER OF:

PROPOSED AMENDMENTS TO:

REGULATION PETROLEUM LEAKING

UNDERGROUND STORAGE TANKS

35 ILL. ADM. CODE 734

To:

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph, Suite 11-500

Chicago, Illinois 60601

Ms. Marie E. Tipsord

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph, Suite 11-500

Chicago, IL 60601

NOTICE OF FILING

PLEASE TAKE NOTICE that on June 7, 2004, I filed with the Clerk ofthe Illinois

Pollution Control Board, via fax, an original ofthe PRE-FILED TESTIMONY OF CINDY S.

DAVIS, JOSEPH W. TRUESDALE, DUANE DOTY, JOSEPH M. KELLY, ROBERT J.

PULFREY and BARRY SINKwith the Clerk and the HEARING OFFICER of the ILLINOIS

POLLUTION CONTROL BOARD, copies ofwJ~iichare heresy ~~ved upon you: On June 8,...~

2004, I caused the original and 9 (nine) such d5ic,Ltnients to b?”~aile9(via U.S. Mail.

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Claire A. Manning,

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Attorney

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CLAIRE A.

MANNING

Pose.gate

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Denes, P.C.

111 N. Sixth Street, Suite 200

Springfield, Illinois 62701

(217) 522-6152

(217)

522-6184

(FAX)

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OF SERVICE

The undersigned, being duly sworn, states that a true and correct copy ofthe foregoing

PRE-FILED TESTIMONY OF CINDY S. DAVIS, JOSEPH W. TRUESDALE, DUANE

DOTY, JOSEPH M. KELLY, ROBERT I. PULFREY and BARRY SINK with the CLERK and

the HEAPING OFFICER of the ILLINOIS POLLUTION CONTROL BOARD, was served on

the individuals as listed below, by mailing the same via the United States postal service,

Springfield, Illinois on June 8, 2004:

Gina Roccaforte

Kyle Rominger

TEPA

1021 North Grand Ave. East

P.O. Box 19276

Springfield, IL 62794

Thomas G. Safley

Hodge, Dwyer, Zeman

3150 Roland Avenue

P.O. Box

5776

Springfield, IL 62705

William G. Dickett

Sidlëy, Austin, Brown & Wood

Bank One Plaza

10 South Dearborn Street

Chicago, IL 60603

Barbara Magel

Karaganis & White, Ltd.

414 North Orleans St., Suite 810

Chicago, IL 60610

Bill Fleischli

Illinois Petroleum Marketers Association

112 West Cook Street

Springfield, IL 62704

Joe Kelly, PE

United Science Industries, Inc.

P.O. Box 360

6295 East Illinois Highway 15

Woodlawn, IL 62898-03 60

Robert A. Messina, General Counsel

Illinois Environmental Regulatory Group

3150 Roland Avenue

Springfield, IL .62703

Kenneth James

Carlson Environmental, Inc.

65 E. Wacker Place, Suite 1500

Chicago, IL 60601

Lisa Frede

Chemical industry Council of IL

2250 E. Devon Ave., Suite 239

De~P1aines,IL 60018

Carolyn S. Hesse

Barnes & Thornburg

1 NorthWacker Drive, Suite 4400

Chicago, IL 60606

Michael

W.

Rapps

Rapps Engineering & Applied Science

821 S. Durkin Drive

P.O. Box 7349

Springfield, IL 6279107349

Joel J. Sternstein

Office ofthe Attorney General

Enviromn ental Bureau

188 West Randolph, 20t1t Floor

Chicago, IL 60601

Tom Herlacher

Hen acher Angleton Associates, LLC

Pnnted

on Recycled Piper in Accordance

with

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Code

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8731 Bluff Road

Waterloo, IL 62298

Jennifer Goodman

Herlacher Angleton Associates

522 Belle Street

Alton, IL 62002

James E. Huff, FE

Huff & Huff, Inc.

512 W. Burlington Ave., Suite 100

LaGrange, IL 60525

Scott Anderson

Black & Veatch

101 N. Wacker Dr., Suite 1100

Chicago, IL 60606

Melanie LoPiccolo, Office Manager

Marlin Erivironmental, Inc.

1000 West Spring St.

South Elgin, IL 60177

Brian Porter

Terracon

870 40tI~Avenue

Bettendorf, IA 52722

Jonathan Fun; General Counsel

Illinois Dept. ofNatural Resources

One Natural Resources Way

Springfield, IL 62702

Joe Kelly, VP Engineering

EcoDigital Development LLC

P.O. Box 360

6295 East Illinois Highway 15

Woodlawn, IL 62898

Glen Lee, Manager

Wendler Engineering Services, Inc.

1770 West State St.

Sycamore, IL 60178

A.J. Pavlick

Great Lakes Analytical

1380 Busch Parkway

Buffalo Grove, IL 60089

Joseph W. Truesdale, PE

CSD Environmental Services

2220 Yale Blvd.

Springfield, IL 62703

Ron Dye, President

CORE Geological Services, Inc.

2621 Monetga, Suite C

Springfield,

IL

62704

Monte Nienkerk

Clayton Group Services, Inc.

3140 Finley Road

Downers Grove, IL 60515

Kurt Stepping

PDC

Laboratories

2231 W. Altorfer Drive

Peoria, IL 61615

Thomas M. Guist, PE

Atwell-Hicks, Inc.

940 E. Diehi Road, Suite 100

Naperville, IL 60563

Jeff Wienhoff

CW3M Company, Inc.

701 S. Grand Ave. West

Springfield, IL 62704

Jarrett Thomas, V.P.

Suburban Laboratories, Inc.

4140 Litt Drive

Hillside, IL 60162

Dan

King

United Science Industries, Inc.

6295 East Illinois Highway 15

Woodlawn, IL 62898

Richard Andros, PE

Environmental Consulting &

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Prinler3 on Recycled Paper in Accordancewith 35 UI. Adro, Code 101.202 and 101. 302(g)

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Engineering, Inc.

551

Roosevelt Rd., #309

GlennBllyn,IL 60137

Terrence W. Dixon

MACTEC Engineering

& Consulting, Inc.

8901 N. Industrial Road

Peoria, IL 61615

Steve Gobelman

Jilinois Dept. ofTransportation

2300 Dirksen Parkway

Springfield, IL 62764

Collin W. Gray

SEECO Environmental Services, Inc.

7350 Duvon Drive

Tinley Park, IL 60477

George Moncek

United Environmental Consultants

119 E. Palatine Road, Suite 101

Palatine, IL 60067

David Rieser

.McGuire Woods LLP

77 W. Wacker, Suite 4400

Chicago, IL 60601

Tina Archer

Greensfelder, Hethker & Gale

10 S. Broadway, Suite 2000

St. Louis, MO 63104

Erin Curley

Midwest Engineering Services, Inc.

4243 W. 166th st.

Oak Forest, IL 60452

Ken Miller, Regional Manager

American Environmental Corp.

3700 W. Grand Avenue, Suite A

Springfield, IL 62707

Russ Goodiel

Applied Environmental Solutions, Inc.

P.O. Box 1225

Centralia, IL 62801

Daniel Goodwin

Secor International, Inc.

400 Bruns Lane

Springfield, IL 62702

Eric Minder

Caterpillar, Inc.

100 N.E. Adams St.

Peoria, IL 61629

Daniel Caplice

K-Pl,l1~sEnvironmental

6OQ/\~T.Van Burei(~Suite 1000

C~i~go,

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CLAIRE A. MANNING

111 N. Sixth Street) Suite 200

Springfield, Illinois 62701

(217)

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SUBSCRIBED AND SWORN to before me this

11th

day ofMay, 2004

NOTARY PUBLIC

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(217) 522-6184

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Printed or Recycled Paper in Aceorda~ecwith 35111. Adm. Code 101.202 and 101. 302(g)

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

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PROPOSED AMENDMENTS TO:

)

R04-22

REGULATION PETROLEUM LEAKiNG

)

(Rulemaking

-

UST)

UNDERGROUND STORAGE TANKS

)

35

ILL. ADM, CODE 732

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IN

THE MATTER OF:

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PROPOSED AMENDMENTS TO:

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R04-23

REGULATION PETROLEUM LEAKING

)

(Rulemaking

-

UST)

UNDERGROUND STORAGE TANKS

)

Consolidated

35 ILL. ADM. CODE 734

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TESTIMONY OF CINDY S. DAVIS ON BEHALF OF THE PROFESSIONALS OF

ILLINOIS FOR THE PROTECTION OF THE ENVIRONMENT (“PIPE”), CSD

ENVIRONMENTAL AND HEARTLAND DRILLING

My name is Cindy S. Davis. I am a licensed Professional Geologist in Illinois and

I am the sole owner ofCSD Environmental Services, Inc. and Heartland Drilling &

Remediation Inc., both located in Springfield.

I am also the Acting Chairperson for the Board ofDirectors for the Professionals

in Illinois for Protection ofthe Environment, referred to as “PIPE” PIPE is an

organization ofvarious businesses who perfomi remedial clean-ups of underground

storage tank sites as well as businesses who provide services to the remediation process,

such as landfills, laboratories, etc.

I am also a member ofthe Consulting Engineers Council ofIllinois (CECI) and

was a team member on the “Ad Hoc Work Group on LUST Reimbursement Reform,”

This is the group that the Agency, in their testimony, referred to as the “CECI”

workgroup. The workgroup was actually comprised ofmembers ofthe CECI and

the

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Illinois Petroleum Marketers (IPMA), an Illinois organization comprised of owners and

operators ofbusinesses who market arLd sell gasoline (primarily, gas station and

convenience store owners). The “Ad Hoc Group’s” purpose was to provide substantive

input to the TEPA for changes to the LUST program.

Since the filing ofthis rule proposal, PIPE has continued to work closely with

representatives ofIPMA, CECI, IPMA, Illinois Society of Professional Engineers (ISPE)

arid the Illinois Association of Laboratories, to coordinate the common interests ofthe’

professional community regarding this proposed rule. We have also met three times

with the Illinois Environmental Protection Agency in an effort to narrow the issues before

the Board in this rulemaking. We hope to continue to meet after these hearings and, if

possible, present the Board with alternative language that might narrow our dispute.

I have been self-employed since 1992 as the owner of CSD Environmental

Services, Inc. I formed Heartland Drilling and Remediation, Inc. in 2002. Prior to

forming CSD Environmental, I was employed by the Illinois Environmental Protection

Agency from 1985 until 1992. From April of 1990 to June of 1992, I was employed in

the LUST Section as a Sub Unit Manager. I have thirteen (13) years of experience in the

LUST field and nineteen (19) years in the environmental field. My experience is unique

since I have been both a regulator with the IEPA and a private consultant and owner ofa

rernediation business. While I worked at the Agency, I hired many of the Project

Managers in the LUST section, many ofwhom are still employed today, and I worked

with many ofthe Agency representatives who have testified in this proceeding. I have an

appreciation for theirjob of ensuring that those who access the fund are seeking

reimbursement for the reasonable cost ofa protective clean-up but, as the head of a

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company who has performed about a substantial number of UST remediations in this

state, I also have a special understanding ofthe cost ofwhat’s “reasonable.”

In March of2004, at the request ofthe IPMA, I called a meeting ofthe IPMA

Associate Members, to discuss the IEPA’s proposed changes to 35 Ill. Adm. Code, Part

732 and 734. The purpose of ourmeeting

was to gather information

from the IPMA

Associate Members oftheir perceived impact to IPMA constituents, if the regulations as

proposed were adopted. Consultants and Contractors at the meeting agreed that we all

had a common cause and gave birth to the idea of either joining an existing organization

or creating a new organization to formally voice our concerns and issues. After several

meetings, the creation ofPIPE emerged and was incorporated as a not for profit

corporation in April of2004, PIPE was formed to represent the Professionals in Illinois

who provide environmental consulting andlor remediation services. Our member firms

conduct or provide services on nearly all ofthe underground storage tank cleanups

conducted in the State of Illinois.

I have several concerns regarding the proposed rules ofwhich I will testify to

today. Before I get into the specifics, I would like, though, to express to the Board our

appreciation for the opportunity to be heard today. Also, while we have disagreements

with the Agency about the specifics of these rules, we share the common goal ofensuring

that the Underground Storage Tank fund is available for the purpose for which it was

created: the safe and protective remediation of Illinois sites that have been contaminated

by leaking underground storage tanks. Our major disagreements result from our

knowledge that we cannot continue to perform these remediations pursuant to the

conditions for reimbursement set forth in these rules.

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Many

ofthe rates set forth in the proposed regulations are below current

market rates

and do not reflect industry standards in Illinois. The Agency

developed their proposed rates from

an improper statistical method,

or, lack of

statistical method, oftheir current database. The rates are ~ based upon a

representative sample. Further, many ofthese rates were established in an

internal rate sheet that, instead ofbeing adjusted upward over the course of

years to account for inflation, was in many cases adjusted downwards in an

inappropriate and unfair approach to constraining costs. For example, the

rates for reimbursement for professional services that the Agency would find

“reasonable” has actually decreased over the course of the years, even though

every one knows that the hourly or salaried cost ofhuman services (and

related health insurance, medicare, worker’s compensation, etc.) has risen.

Further, the proposal does not take into consideration that hourly personnel

rates are determined by using a standard method of taking the employees

direct wages plus company contributions ofFICA, medicare and

unemployment multiplied by a

overhead

and profit multiplier to establish an

hourly rate. RS Means, which PIPE proposed to the Agency during

discussions on their emergency rule proposal, uses this concept. We would

ask that the Board look at the methodology contained in the following

industry

publications, which are specifically designed to establish reasonable

ratcs for the costs of environmental remediation: RS Means Environmental

Cost Handling Options and Solutions (ECHOS) “Environmental Rernediation

Cost Data

—

Unit Price,”

10th

Annual Edition, 2004, and ECHOS

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“Environmental Remediation Cost Data

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Assemblies,”

10th

Annual Edition,

2004. In meeting with the Agency concerning their desire to promulgate a

rule on an emergency basis, we were able to successfully assert that the RS

Means methodology presents a method for establishing reasonableness.

2.

Subpart H. The rates proposed in Subpart H are proposed as “maximum

payment amounts”. The IEPA proposed during the “Ad Hoc Group”

meetings, the concept oflump sum payments for some reports, with the

understanding that if the report was completed for less than the lump sum the

consultant would profit, if the report was completed formore, the consultant

would lose money.

The IEPA referred to this as “win some lose some.”

However,

the proposed “maximum” payments

in Subpart

H

are either break

even or lose.

3.

EPA’s Proposed Rates. The IEPA implemented the proposed rates in Subpart

H by distributing a.”rate sheet” to theirproject managers. We have a unique

situalion, in that the IEPA actually implemented the same rates as are

proposed in Subpart H. The IEPA enforced the use ofthese rates for

approximately four months during which consultants and contractors found

their budgets and subsequent reimbursement claims reduced by any amount

over the price

indicated on

the “rate sheet”. During this time frame,

consultants and contractors lost significant amounts ofrevenue. In addition,

some ofour clients wrongly perceived that we were price gouging since the

TEPA did not want to pay our current rates

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rates had been approved in the past as reasonable. CSD with permission of

the owner/operator challenged the IEPA’s use of the rate sheet in PCB 03-214

illinois Ayers Oil C’ompany v. Illinois Environmental Protection Agency.

The

Illinois Pollution Control Board

ruled in favor of Ayers on

April 1, 2004,

stating the use of a “rate sheet”

was improper since the rate sheet was a rule

that was

not promulgated.

4.

The proposed rules do not define a “scope

of work”

and the Agency’s

proposal does not take into consideration the level ofwork deemed necessary

by a professional licensed professional engineer or licensed professional

geologist. The Ad Hoc Group informed the Agency a lump sum price cannot

be determined without a clear defined scope of work. Estimating in the

consulting and contracting field is done following a specific method. First, we

identify the tasks to complete ajob (scope ofwork), second, we identify the

personnel need to complete the task, and thirdly, the number of hours needed

for each personnel required per task. Once all ofthese items are determined a

cost estimate to complete the work can be prepared. The proposed Subpart H

does not define the scope ofwork required for those items which they have

assigned a lump sum cost. Without a clear definition of the work to be

completed, a lump sum price cannot be fairlydetermined. Also, since the Act

specifically requires that corrective action plans and budgets be certified by a

licensed professional engineer or licensed professional geologist, it is difficult

to accept that an agencyreviewer who, in most cases, does not have this

technical expertise, is iii a position ofrejecting what that professional has

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determined to be a reasonable number of borings to do a particular job

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reasonable number ofhours to do it.

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5.

Requests for Payments from the Underground Storage Tank Fund are limited

to a timeframe of every 90 days. Currently under the regulations, an owners or

operator can submit a reimbursement request on the following intervals:

• At the end ofearly action (45 days)

• After approval by the IEPA ofthe Site Classification Completion Report

or a Site InvestigatiOn Report; (greater than

450

working days)

• At approval ofa Corrective Action Plan (at least 90 to 120 days); and

• On a 90 day basis after IEPA approval ofa Corrective Action Plan (90

days).

The proposed regulations should be rewritten to allow reimbursement requests

to be submitted on a more frequent basis. It is my recommendation to allow

reimbursement requests as fbllows:

• At the end of early actio:n (45 days)

• Upon completion and sub~nittalofeach Stage ofSite Investigation

—

(breaking the Site Investigation into stages will allow money from the

fund to be paid to the owner or operator quicker).

• Upon IEPA approval ofa Corrective Action Plan; and

• Every 30 days after approval of the Corrective Action Plan.

6.

The negative cash flow in the Underground Storage Tank fund has nothing to

do with the fund being overcharged. In responsc to questioning -from the

Board at the last hearing, Doug Clay testified that while the number of UST

incidents is declining on an annual basis, the number ofreimbursement dollars

is increasing. While that simple statement may be true, it has no relationship

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to the actual cost ofremediation

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or the number ofremediations currently

being performed and pcnding, in one stage or another.

Interesting, while we asked the Agency to present information regarding the

actual liability out there (remediation actually being performed and costs

associated with what aspects of that remediation), the Agency did not present that

information. We believe that the Agency should be keeping track of the liability

on the fund, as well as the actual dollars Spent. There are other signIficant reasons

why the fund is currently under stress.

• First, while there are indeed fewer incidents being reported the last few years

(628 in 2003; 617 in 2002; 832 in 2001), the corrective action work that is

currently being performed and yet to be reimbursed (in many cases the most

expensive part ofthe remediation) generally involves sites that had incidents

that were reportedin the year 2000 and previously (1221 in 2000; 1729 in

1999; 1818 in 1998; 1279 in 1997).

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• Second, when there

was

a significant balance in the fund, even though the

balance represented “committed” dollars (waiting for Agency approvals or

pending time frames for submittal ofreimbursement requests), the money was

transferred out ofthe fund in an effort to balance the budget.

• Third, the cost of doing business, especially in Illinois, has gone up —not

down. That includes the business ofperforming remediations of leaking

underground storage tank sites.

7.

The IEPA’s proposed Staged Site Investigation is too prescriptive in regards

to placement ofwells and location of soil samples. Each site is different and

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the characterization of the extent ofcontamination must be tailored to the site.

The IEPA should allow the Professional Engineer or Geologist to choose the

placement ofsoil borings/samples and groundwater monitoring wells based

upon their knowledge ofthe site conditions.

8.

The UST reimbursement procedure which the Agency uses to deny or approve

(with modifications) plans, budgets or reimbursement requests is seriously

flawed. Currently, the Agency uses a variation ofthe permit procedure. The

project manager sends a letter at the end of their 120 day review period (and

generally not a day before) informing the owner or operator of, generally, the

denial or reduction in the budget or reimbursement request. This letter

generally represents the first (and only) communication that the requestor has

with the Agency. The Agency provides very little detail as to what items were

reducedor why, but relies on the statement, “exceeds the minimum

requirement ofthe act.”

The owner or operator then has three choices, which they generally

make in consultation with the consultant they have hired to remediate the

property:

• Resubmit, literally guessing at what the problem might be (and triggering

a whole new 120 day review period).

• Appeal to the Board, which necessitates hiring an attorney ai~dpresents

complications regarding proof, given that you’rc not sure what the denial

was about in the first place

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and you cannot present any new information

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to the Board because you have to rely on the “record” the Agency used to

make its decision (See Todd’s Service Station);

• Accept the decision arid eat the lost cost.

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The current procedures cause two problems 1) the owner/operator is never

allowed the opportunity to provide additional information to the Agency

before a final decision is made; and 2) the owner/operator must hear the legal

costs if he/she is not in agreement with the Agency’s decision. In the case of

Illinois Ayers v. the IEPA,

the legal fees were in excess of$40,000. The

owner/operator must decide ifthe reductions made by the Agency outweigh

the cost ofhiring an attorney. In many cases, the owner doesn’t appeal the

reductions due to the costs ofa hiring

an attorney. This results in a disruption

of the checks and balances system used in our government.

PIPE suggested to the IEPA during discussions held after the EPA filed a

motion for Emergency Rulemaking, that the procedures for denials or

approvals be modified. In their amended emergency rule proposal, the

Agency agreed

and

proposed to change the procedure to allow a draft denial

letter be issued to the owner/operator allowing the owner/operator to provide

additional information orjustificatiori prior to a final decision.

PIPE suggests to the IPCB that the same language be incorporated into the

proposed regulations. As to the legal costs, the owner/operator must incur to

bring an appeal before the IIPCB, PIPE suggests that a mediation or possibly

an arbitration step be introduced into the regulations which will allow the

owner/operator and the IEPA an opportunity to resolve the issues prior to

coming before the Board.

9.

The proposed rules under

732.855

and

734.855

allow an owner or operator

who incurs unusual or extraordinary expenses that exceed the payments of

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Subpart H to request the

Agency

consider the expenses on a site specific basis.

The Agency has the authority to make this decision. The Agency in their

testimony stated, they feel very few sites will be evaluated under the rule.

PIPE

disagrees with the Agency, especially when the Agency failed to list the

scope ofwork required for each lump sum task, nor did they define a “typical

site” in the regulations. PIPE suggests a definition of an “atypical” site be

identified in the proposed nile. The Ad Hoc Group provided the Agency with

an “atypical site form”, or a change order form per say to be used whenthe

consultant determines the conditions at the site warrant

extra expenses. PIPE

also suggests a

peer review committee be formed with designated Agency

LUST supervisors and at least two members who are not Agency employees

with a background in engineering or consulting or contracting and have

experience in determining reasonableness of costs. In the original discussions

regarding the UST fund, I understand that such a cost containment panel was

contemplated. When the Agency was asked by ISPE at the last hearing how

the

reimbursement dollars of the fund are distributed, the Agency indicted that

(beyond the final amount) they do not keep track ofhow reimbursement

dollars are distributed. We believe that they should. We have indicated to

the

Agency the importance

ofdeveloping

a database

where they could

monitor the cost ofthe various different projects related to IJST site

reniediation

and

develop a proper methodology for determining the

reasonableness of

that cost. Instead oftelling us (or the Board) how

reimbursement

dollars have been

spent for the last several years, the Agency

-

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has focused on

giving the Board old information, and selected non-

representative sites, in

support of this proposal. We suggest that we

are more

informed on the costs ofremediating UST sites in Illinois and we urge the

Board to listen

-

without falling victim to the Agency’s finger pointing. We

are not the cause, but we certainly hope to be part ofthe solution.

-

Thank you.

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RECEIVED

POSEG ATE & DENES, P.C.

CLERK’S OFFICE

Attoriiey~

I~t

L~nv

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North

c~°’

5tr~et,

Suite

200

JU1~ U

P.O.

i3ox

338

STATE OF IW~O(S

Sprin~ficld,

IL

62705-0338

PollutiOn Control Board

Cdroi Flansi~nPosegate

Telephone (217) 5Z2-ó 152

JN~O Denes

FaCsitnde (217) 522-6184

Claire A. Manning

O~

Counsel

-

FAX

TRANSMISS1O~

DATE:________________

TIME:

_________________

TO:

______________________

FAX NO:______________

FROM:

___________________________

FAX NO: (217) 522~6I84

RE:

MESSAGE:

This document is being

sent via facsimile and ,)ci~ U.S. Mail

Overnight Delivery

____

Electronic Mail

-

~

Facsimile only

NUMBER OF PACES ENCLUD INC THIS SHEET:

) ~

cONFIDEN1rIALITY

NO1iCE~ The docunients

ac mp~nying this fax transmission c~ain

nfldntial information

llonging to

the

sender which

is

legally privileged. The inforn~ationis intenUed only br the

use of the individual or

en lily

named above.

If

you

arc (tot

the

intended

recipient, you

are

hereby notified hat any

r_cadlng,

disclosure, copying,

distri

hut iou

or lIme taking of any

action

in reliance on or

rcgardiiig

time cuHtents of tImi~faxed inturination is

strictly

prohibited.

It y~u1m:iv~

recL’ived this I.ax in

error, please

iuuniemiiately motily us by telc1-houme

to

arrange

for

return of tIme original

d4 Cu

tiettt5 10 miS.

NOlE; II ANY PART OF

Tills

il&ANSMISSI()N WAS MISSING OR LJNflE,~l)AflLK. PLE1~SECALL TillS ()1Ii( F

IMMFI)IArLt.Y Al (21 7~522—a 152.

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARDJUN

RECEIVED

CLERK’S

07200k

OFFICE

INTHEMATTEROF:

)

STATE0~9~d

REGULATIONUNDERGROUNDPROPOSEDAMENDMENTSPETROLEUMSTORAGETO:TANKSLEAKING

)))

)

R04-22(Rulemaking

-

pollutIon

UST)

Control

35

ILL. ADM. CODE 732

)

IN THE MATTER OF:

)

)

PROPOSED AMENDMENTS TO:

)

R04-23

REGULATION PETROLEUM LEAKING

)

(Rulemaking

-

UST)

UNDERGROUND STORAGE TANKS

)

Consolidated

35

ILL. ADM. CODE 734

)

PIPE TESTIMONY OF BARRY F. SINK, P.E., REGARDING THE

ENVIRONMENTAL PTOECTTON AGENCY’S PROPOSAL TO AMEND

35 ILL. ADM. CODE 732 AND 35 ILL. ADM. CODE 734

My name is Barry Sink. I am a Professional Engineer for United Science

Industries, Inc. located in Woodlawii, Illinois. I have been at United Science Industries,

Inc. since April of2002. Prior employment includes 20 years as a Project Engineer in the

mining industry with Old Ben Coal Company in Franklin County, Illinois and

5

years

experience as a Project Engineer in the cement

industry with Lafarge Corporation, Joppa

-

Plant

in

Grand Chain, Illinois. I received a

B.S. degree in Mining Engineering in 1977

from the University of Missouri-Rolla. I have been a Licensed Professional Engineer in

-

the

State of Illinois since 1980.

Section 734.135(d) of Subpart A of

Part 734 requires all plan, budgets, and

repoits submitted to contain the following certification from a Licensed Professional

Engineer or Licensed Professional Geologist:

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I certif~iunder penalty of law that all activities that are the subject of this plan,

budget, or report were conducted under my supervision or were conducted under

the supervision of another Licensed Professional Engineer or Licensed

Professional Geologist and reviewed by me; that this plan, budget or report and all

attachments were prepared under my supervision; that, to the

best of my

knowledge and belief, the work described in the plan, or budget, or report has

been completed in

accordance with the

Environmental Protection Act

415

ILCS

5, 35 111. Adm. Code734, and generally accepted engineering practices or

principles ofprofessional geology; and that the information presented is accurate

and complete. I am aware that there are significant penalties for submitting false

statements or representations to the Agency, including but not limited to fines,

imprisonment, or both as provided in

Section 44 and 57.17 of the Environmental

Protection Act

415

ILCXS 5/44 and

57.17.

It is the Licensed Professional Engineer’s duty to embrace the Engineer’s Creed and to

work diligently under the Code of Ethics for Engineers. The above certification

acknowledges that members of the Profession

are expected to exhibit the highest

standards of h6nesty and integrity. Licensed Professionals should hold

paramount

the

safety, health and

welfare of the public, avoid

deceptive acts, and conduct themselves

honorably, responsibly, ethically, and lawfully

so

as to enhance the honor, reputation and

usefulness ofthe profession. As a Licensed Professional Engineer in the State ofIllinois,

I do my best to uphold the integrity ofthe Profession, act for each employer or client as a

faithful agent or trustee, and abide by the applicable laws and standards of the State of

Illinois. That is not an easy task;- however it is an honorable and worthy standard and

goal.

It is

my testimony that Subpart H: Maximum Payment Amounts; Section 734.845

Professional Consulting Services will

make the ethical ProfessiOnal hesitant to perform

professional services associated with LUST projects. The Subpart H maximum payment

amounts force the Professional Engineer and/or Professional Geologist to carefully

evaluate the financial ability of the owner/operator

to pay professional fees which exceed

2

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the “one time lump sum” reimbursement. Only then can the professional provide

professional services designed to protect the safety, health and welfare of the public.

Professionals are “normal” members of society who have families to support and lives to

live. The one time lump sum payment approach for reimbursement of professional

services associated with the preparation

and

submittal of plans, reports,

and budgets is an

over~simplificationof the professional process associated with the remediation of LUST

sites. The Agency’s assumptions associated with this “lump sum approach” suggest the

followirig:

• That the process of remediation is strictly a “cook book” process. That each

LUST site is “typical” in nature and can

be easily matched to a remediation

strategy that is 100 effective when obtaining remediation objectives. All the

professional has to do is “plug and chug”.

• That each owner/operator is “typical” with the same personality, goals, and

objectives for

every LUST property. That an owner/operator is relatively

“detached” from the rernediation process and that communication between the

Professional and owner/operator is an “insignificant” cost factor. That the

professional guidance for an individual owner/operator who owns one LUST site

in a rural

setting is the same

as for the corporation who owns multiple LUST

sites.

• That the extent and the magnitude of the associated contamination do not affect

the amount of work required to develop a remediation strategy with the

owner/operator and

then to design the plans.

That the professional effort takes

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exactly the same effort no matter the size ofthe property, size and magnitude of

the associated plume, number ofoffsite properties, or site specific complexities.

• That environmental remediation design is a perfect science in which the end

result of each

corrective action activity proposed and approved in a plan will

perform as intended, always meeting the stringent objectives necessary for

closure. The assumption is that an amended plan should never be necessary to

meet the objective and satisfy the goals ofthe owner/operator.

• The assumption is that the site investigation based upon the site specific

information provided by the owner/operator; the FOIA information, the

intermittently spaced soil borehole logs, the monitoring wells, and modeling

provides a

“perfect” picture of the LUST site. The assumption is that analytical

results from the closure samples collected during Corrective Action phase are

always consistent with the site investigation and that they never provide any

“new data” which could affect the remediation plan. Unknown tanks, utilities,

geologic conditions are never discovered during the reinediation process. The

site investigation provides an accurate representation

of the LUST site for the

professional.

• That each owner/operator, offsite property owner, municipality, and highway

authority readily

embraces the

tools of TACO to raise the remediation objective.

• That the

language and potential financial

liabilities dictated by IDOT within a

Highway Authority Agreement

are acceptable to an owner/operator.

• That the geology of each site is always

“typical” and easily interpreted.

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• That the location of the

LUST site is not a significant factor in the cost of

professional services.

That the cost for professional design for a LUST site in

downtown Chicago is identical to a LUST rural site located on the banks of the

Mississippi River.

The assumptions associated with the “one size fits all” lump sum approach to

professional services, as proposed by the Agency in Subpart H, places any Licensed

Professional of integrity in a serious dilemma. The options for the Licensed Professional

are

limited:

• Accept a contract to provide professional services only after evaluating the

financial condition of the owner/operator. Perform the professional services

necessary in an ethical and responsible manner passing on any fees that exceed

the Agency “lump sum” to the owner/operator.

• Perform the professional services in a responsible manner and donate the excess

fees which are not reimbursable to the owner/operator as a gift. Don’t worry

about making a profit, feeding the family, or paying the bills.

• Limit the hours dedicated to a LUST site, hope for the best, and be prepared to

terminate professional services when the owner/operator’s money runs out.

• Get out of the LUST business all together and leave it for those of less integrity.

The unacceptable options forthe Licensed Professional are:

• Coerce the owner/operator who has limited financial resources to accept

institutional controls in order to save money, laying aside the real desire of the

owner/operator, the future use of the property, the environment, and public

safety.

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• Use deceptive practices in order to make a profit.

The testimony given by Mr. Harry Chappel that the size of the LUST site has no

effect upon the”Scope of Professional Services” is not true and exemplifies the failure of

the lump sum fees proposed in Subpart H to provide the equitable reimbursement for

Professional Services.

I would also like to offer testimony concerning engineered barriers. Section

742.200 (Definitions) ofSubpart B (General) ofPart

742 (Tiered Approach to Corrective

Action Objectives) defines an engineered barrier as follows:.

“Engineered Barrier” means a. barrier designed or verified using engineering

practices that limits exposure to or controls migration of the contaminants of

concern.

This definition is very clear that any barrier utilized to protect the huniari health and

environment by preventing the completion of an appropriate exposure pathway must be

“designed or verified using engineering practices”.

The utilization of an engineered

barrier as provided within TACO is an important tool to owner/operators who seek to

effectively remediate their LUST site.

Section 742.1100 (Engineered Barriers)(d) and (e)

of Subpart K (Engineered

Barriers) of Part

742 (Tiered

Approach to Corrective Action Objectives) requires the

effective maintenance of an engineered barrier as follows:

d)

Any no further remediation determination based upon the use of

engineered

barriers

shall require effective maintenance of the engineered

barrier.

The maintenance requirements shall be included in an

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institutional control under Subpart J. This institutional control shall

address provisions for temporary breaches of the barrier

by requiring the

following if intrusive construction work is to be performed in which the

engineered barrier is to be temporarilybreached:

1)

The construction workers shall be notified by the site

owner/operator in advance ofintrusive activities. Such notification

shall enumerate the

contaminant of concern

known to be present;

and

2)

The site owner/operator shall require construction workers to

implement protective measures consistent with good industrial

-

hygiene practice.

e) Failure to maintain an engineered barrier in accordance with that no

further remediation determination shall be grounds for voidance of the

determination and the instrument memorializing the Agency’s no further

remediation determination.

Section 73

4.630

(Ineligible Corrective Action Costs) (tO of Subpart F (Payment

From the Fund)

of Part 734 limits eligible costs associated with and engineered

barrier as

stated:

“Costs associated with the installation of concrete, asphalt, or paving as an

engineered barrier to the extent they exceed the cost of installing an engineered

barrier constructed of asphalt four inches in depth. This subsection does not apply

if the concrete, asphalt, or paving being used as an engineered barrier was

replaced

pursuant to

Section

734..625(a)(16)

of this

part.”

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It seems possible that this reimbursement rule was drafted by individuals associated with

the asphalt industry. The engineering characteristics of asphalt and concrete are not

identical.

Site specific conditions dictate the design of engineered barriers including the

construction materials. This reimbursement rule will limit the utilization of engineered

-

barriers as a rernediation tool based upon the owner/operators out-of-pocket expenses

associated with a properly designed engineered barrier.

-

The construction material and

thickness of an engineered barrier are

determined by

the property use, traffic conditions,

and maintenance issues associated with the engineered barrier. An engineered barrier for

a LUST site which will see only pedestrian traffic will be designed to handle pedestrian

traffic. An engineered barrier for a LUST site at commercial property which will see

passenger

car traffic will be designed to handle the wheel loading ofthe

passenger

car.

An engineered barrier for a LUST site at a property which will see semi trailer traffic

must be designed to handle

the wheel loading of a loaded semi trailer. Other factors to

be

considered include the type of heavy equipment utilized to unload a

semi trailer and

the long term durability/maintenance cost for the engineered barrier. The barrier must be

designed to meet the site specific conditions.

Section 734.840 (Replacement of Concrete, Asphalt, or Paving....) (a) of Subpart

H (Maximum Payment Amounts) limits the maximum payment for four inches of

concreted, asphalt, or paving to $ 2.18 per square foot. Owner/Operators who would like

to consider an engineered barrier at many sites will have two options:

• Pay any additional engineered barrier costs over $2.18 per square foot out of

pocket. (The cost a 6” thick concrete engineered barrier for an industrial site in

Southern Illinois is reasonable at $4.18 per

square foot, of which only $2.18 per

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square foot would be eligible fur reimbursement. The total cost a typical 30’ X

50’

barrier would be $6,270. The reimbursable cost would be $3,720 and the out

of pocket expense to

the owner/operator for would be $3,000.)

• Choose an alternative method of remediation which will be eligible for full

reimbursement even thought it may be much more costly to implement.

(Utilization of conventional technology for excavation, disposal, and backfill of

the same 30’ X

50’

area to a depth of 10 feet would be $115,500. The cost would

be 100 reimbursable with no out ofpocket expense to the owner/operator.

My testimony is that the maximum payment forreimbursement of engineered barriers

will limit the utilization ofTACO by o’c~rner/operatorsand will result in poor stewardship

of the LUST fund. The “cookie cutter” approach to reimbursement for engineered

barriers as proposed by the Agency is not consistent with the definition ofan

-

“engineered” barrier

which is to be designed to be protective of

human health and the

environment. The Agency has falsely assumed that fourinches of asphalt will always

provide a properly engineered barrier.

Thank

you.

9

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN

THE MATTER OF

)

PROPOSED AMENDMENTS TO:

)

R04-2•2

REGULATION PETROLEUM LEAKiNG

)

(Rulemaking

-

UST)

UNDERGROUND STORAGE TANKS

)

35

ILL. ADM. CODE 732

)

-

IN

THE MATTER OF:

)

)

PROPOSED AMENDMENTS TO:

)

R04-23

REGULATION PETROLEUM LEAKING

)

(Rulemaking

- UST)

UNDERGROUND STORAGE TANKS

)

Consolidated

35

ILL. ADM. CODE 734

)

PIPE TESTIMONY OF ROBERT J. PULFREY IN OPPOSITION TO THE

ENVIRONMENTAL PTOECTION AGENCY’S PROPOSAL TO AMEND 35 ILL.

ADM. CODE 732 A~5 ILL. ADM. CODE 734

My

name

is Robert J.

Puifrey. I am a Geologist by profession and have been

employed as such for almost thirty years graduating with a B.S. in Geology from St.

Joseph’s College in, iN and an M.S. in Geology in 1971 from Oklahoma State University

OK. I am currently a Senior Project Manager for United Science Industries, Inc. having

been involved in the environmental

investigation

and remediation field for fifteen years.

Three of the fifteen years was given to public

service as a Hydrologist for USEPA

Region IV in the

RCRA Branch. In years

prior to USEPA, I was also employed as a

geologist for the Department of Interior, both Bureau of Land Management and US

Geological

Survey.

-

I state this for the

reason that I have firsthand knowledge of

what

responsibility a public agency has and

how

the public sector system is supposed to work.

The entire authority and function of a public agency

is given by legislation, i.e.,

by law and, in this particular case, the Statutory Authority of

Protection ofHuman Health

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and the Environment. All rules, regulations, policies, guidelines, either proposed or

promulgated

arc

to be for the benefit of the public health

and

the environment. These

rules, regulations, policies, and guidelines are also to provide a standard so that both the

regulated community

and

regulating authority have a

basis on which to proceed. When

these standards are not followed by either community, chaos and confusion result. For

instance, requiring a budget for free product removal when the current rules clearly do

not require such brings confusion between the

two

parties because

two different standards

are being followed. Often times, the only resolution is through the filing of an appeal.

There is a process for Administrative Rule

Making and it must be followed. Usurping the

rule-making

process by enforcing or applying rules

or regulation or standards before they

are published

or promulgated will, and has caused a

rift between the regulating and

regulated

communities given

the application of

two different standards. In additjon, as a

public agency, there has to be free and open disclosure of

what standards the Agency is

following. The regulated communityhas a right to know, Nothing is to be kept secret. It

gocs with

the function of being a “public agency”. It

galls me as

a former public servant

to see the system ignored or misused.

Having said that, I turn next to

address

the Agency’s

Subpart H proposed basis for

drilling

rates. Having been in mining exploration for approximately fourteen years

and

the enviromriental field for fifteen years, I have contracted and supervised most types of

drilling and

am familiar with the basis of what drillers charge. The basis on which

drillers charge is highly dependent on the type of lithologies that are encountered

and the

type of drilling employed. The cost of drilling unconsolidated materials will be one cost

versus the cost of drilling bedrock due to the type of material involved and

the type of

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drilling method required. So too is the type of unconsolidated material, for instance,

drilling in a

silty

sand is far different -than in

highly variable materials of clay, silt and

sand and mixtures thereof, This if often the case in Illinois where glacial till is

predominant with thick clay

layers interspersed with some sand, possibly gravels, and

silty clay. To compare drilling rates from the State of Texas, Colorado, Oklahoma, and

Arizona with their predominantly

uniform lithologies of sand and silt is not at all

comparable to Illinois. Drilling rates from the States of Indiana, Ohio and Michigan are

much more comparable because of the riresence of glacial till.

I now turn to address an issue of primary importance, i.e., protection of human

health and the environment. Whether a regulator or an environmental consultant, the

protection ofhuman health and the environment is our purpose and our function by what

we do. As a former regulator, I can safely say that the primary statutory authority of the

Environmental Protection Agency is for the protection of

human health and the

environment. Somehow, along the way, this has been replaced by protection of the

LUST fund which has taken precedence over protection of human health and the

environment.

-

What I see as a former regulator, and currently as an environmental

consultant, is the scope ofprojects now driven by monetary

factors rather

than protection

of human health and

the environment.

In my professional opinion, the Agency lately

seems to be “minoring on the major points and majoring on the minor points.” Take for

instance, on a number of projects that I am managing which includes sites with

significant

levels of soil contamination, the Agency has

rejected several Corrective

Action Plans on minor points rather than conditional approval while ignoring the high

levels of soil contamination that need to be removed by excavation. In three separate

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incidents, these sites over time developed free product during the time of Agency

indecision and rejection thereby making a bad situation worse.

I also would like to remind the Agency of the time in 1998-99 when the

Superfimd Division ofUSEPA was brought before Congress to be chastised in “studying

the problem to death” rather than getting the CERCLA sites cleaned up. As an

environmental consultant, I have a fiduciary responsibility ofprotection of human health

and the environment with the added responsibility ofrecommending using the most

feasible method(s) available at a reasonable cost depending upon the site conditions and

the preference of the tank and property owner.

Thank you.

4

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-

RECEWVED

CLEF~K’SOFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

JUN

072004

-

N

THE MATTER OF:

)

PROPOSED AMENDMENTS TO:

)

R04-22

REGULATION PETROLEUM LEAKING

)

(Rulemaking

-

UST)

UNDERGROUND STORAGE TANKS

)

35

ILL. ADM. CODE 732

)

iN THEMATTER OF:

-

-

)

)

PROPOSED AMENDMENTS

TO:

)

R04-23

REGULATION PETROLEUM LEAKING

)

(Rulemaking

-

UST)

UTNDERGROTJND

STORAGE

TANKS

)

Consolidated

-

-

35 ILL. ADM. CODE 734

)

-

PIPE TESTIMONY OF JOSEPH M. KELLY, P.E. REGARDING THE

ENVIRONMENTAL PTOECTION AGENCY’S PROPOSAL TO

AMEND

35

ILL.

ADM. CODE 732 AND

35

ILL. ADM. CODE 734

My name is Joseph M. Kelly. I am a licensed Professional Engineer (PE) in

Illinois and have been licensed since 1984 as a civil engineer. I am the Vice President of

Engineering for EcoDigital Development Group, LLC (EDG) and the Senior Professional

Engineer for United Science Industries, Inc. (USI). I have been involved in engineering

for twenty-four

years

and have been working strictly in the environmental industry since

1991.

I have been employed by USI since 1994 whereupon I was hired

as a

certifying

PB and Project Manager. I had prior involvement in

site investigation, sampling,

remediation, closure, and

other

applicable environmental

and engineering experience. At

that time USI was working on a number of LUST projects under the guidance

of the

Illinois Environmental Protection Agency, Bureau of Land, LUST Section (Agency). 35

AC 732 was in the process of being implemented and most,

if not all, of the projects

Were under 35 AC 731. Both USI and the Agency were smaller and worked well

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together to resolve technical issues. Because USI worked to

only perform work that was

approved or in coordination with Agency guidance, USI was very

successful in obtaining

reimbursement for their clients

and

built

a reputation they built on. At that time the

Agency was very consistent

in its approach and

how they wanted to review technical

and

fiscal data and information.

Over the past several years USI has tried to work with the Agency

and

follow

the

policies and procedures outlined in the regulations as well as the Agency’s interpretation

of those regulations. Up

until about 2001, USI and

the Agency seemed to work well in

conjunction

while

trying to investigate, rernediate

and

close a number of client’s LUST

sites. For approximately the last three years the Agency has

taken

a different stance

and

has begun to shift its focus. Before 35 AC 742 (TACO), the focus seemed to be to clean

up the environment, including all soil and groundwater contamination, until protection of

human

health and

the environment was assured. TACO allowed for a more site-specific

approach and helped to allow closure of sites where contamination remained, but there

was not an apparent threat of human exposure. This allowed for what

many

considered a

more common sense or middle of the road approach. Unfortunately, the focus now seems

to have shifted. The “protection of the Fund” outweighs protection of

human health and

the environment. The pendulum has

swung far to one side

with no consideration of the

owner/operator’s concerns and liability. The Agency would prefer

everyone

“TACO

out” to

save

the

Fund regardless if the landowner wants a clean site. In many instances

engineered

barriers and

institutional controls do not provide an owner/operator

opportunities for economic development. If

we

want to turn all LUST sites into parking

lots, then this approach would work across the state.

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I know

of no one

who advocates abusing the LUST fund for charges not

performed

or over priced rates or other abuses, at least within our organization. Yet,

there are evidently finns, according to the Agency, who are not ethical in the

performance of or at least how they charge for their -work. So, the Agency decided to

initiate rate reductions in 2001, even though these rates had been previously reimbursed

and considered reasonable. The reduclions were made retroactive regardless ofwhen the

work

was performed. Also, there was no warning or document sighting a change in

Agency policy. As a result, consulting

and

engineering

firms and contractors were forced

to decide if they would reduce rates or allow clients to pay for current rates and make up

the

difference.

The Agency decided to enforce even more drastic cuts in rates and scopes ofwork

that they considered “reasonable” for

purposes of

reimbursement in the last

three years.

Personnel cuts and cuts in other areas of a budget have been noted with increasing

frequency. Scopes of work in light of technical requirements are even in question. The

Agency has cited that costs are “unreasonable” with no provision for explanation or the

detail that

might

explain the budgeted costs on existing Agency budget forms. Additional

information and explanations of what it takes to do the work often falls on deaf ears.

Even though the Agency says “we’re not the consultants” the plans and budgets are often

modified or rejected based on what

they

deem as acceptable. Acceptability is based more

on what it will cost rather than what is deemed necessary based on documented practices

and

logical courses of action based on engineering principals and common sense. Once

again,

firms are faced with the decision to take it or pass on the

reduc-ed reimbursement

and allow clients to

make up the difference.

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USI works with the Agency to resolve technical issues despite inconsistencies

within the Agency. Denials or rejections on the

119th

day, requests for extensions or

more information, modified budgets for

worked needed

to complete the project and other

obstacles often require us to perfonn additional work and amend budgets for extra

personnel hours in order to comply with Agency requests. Therefore, appeals to the

Illinois Pollution Control Board (IPCB) are for budget amounts and not technical issues.

During the March 15, 2004 hearing before the IPCB and others, the Agency stated

that there is a lot of time reviewing budgets and reimbursement. They also stated that

•“the majority ofplans and report denials, amendments to plans and reports submitted by

consultants and appealed

before

the IPCB are related to budget and reimbursement issues

as opposed to technical

issues.” USI works through the technical issues with the Agency

only to have budgets cut, modified or denied or amended budgets denied after supplying

additional information for technical approval. This is partially due to

changes in what the

Agency deems as appropriate technical information, especially with alternative

technology and also due to differences in Agency reviewers. So, the technical issues get

resolved only to have cuts in budgets after cost estimates were increased dealing with re-

suhinittals after rejections on the 119th day or requests for more information.

On March iS, 2004 during the hearing

before

the IPCB,

the Agency stated that

“more and more administrative time is being spent, not on the oversight ofLUST cleanup

activities, but on the oversight of budget approvals.” This is because they have decided

to dictate to consultants and other finns what is “reasonable”. Yet, based on their

testimony, their evaluation and decisions are based on review of documents and not on

actual experience. The Agency stated, “About a year ago we began the process of

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developing a new system.

. .“

This system seeks to try and fit all LUST projects into a

mold in which “one size fits all.”

The Agency admitted during the hearing cited above, that the rates they used for

the proposed

rules

were developed in-house.

Yet, there is no provision for variation.

-

Assuming USI rates are in the data set, it would seem those rates, being previously

reimbursed, assuming they have not changed, would now be “reasonable”.

The Agency has also admitted that there is no list or specific work breakdown

structure in order to create consistency. Yet, USI proposed such a structure over a year

ago and this was ignored. The breakdown was based on phases, tasks and subtasks so

that the Agency could collect consistent data and force consultants and others to fill out

budgets

and

billing packages the same way and

take out the guesswork. The Agency has

stated before that everyone charges differently

and

it is hard, if not impossible, for them

to make comparisons. USI personnel cuts have many times been due to the fact the

Agency is not used to seeing consulting and contracting man-hours listed within the same

budget. So, for Site Classification or Corrective Action, large cuts were made by the

Agency that USI considered as inappropriate

and

unsubstantiated. As a result, appeals

get filed.

The Agency also stated ‘~ButI would say the numbers that we’re approving for

reimbursement

and budgets and reimbursement packages are consistent with the

proposed rules.” I think this is because the rate sheet they have been using over the past

several years consists of the same

dollar amounts pm-oposed in Subpart H. If

owner/operators can

only get

specific amounts for personnel, unit rates for drilling or soil

remediatjon, equipment rates, and other costs, approved in budgets set by the Agency, it

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only makes sense that reimbursement packages will be at or below the budget amounts.

If the budgets and reimbursement packages

are being dictated by the Agency internal rate

sheet or guidance documents, the logical conclusion is that the numbers would match the

proposed rules that use the same comparative documents.

They have been in essence

•

fbrcing the data for the last three years to fit their model, It should be noted that the costs

being approved

are in line with what is being proposed, it does not mention how the

proposed rates are in line with what has actually been submitted by owner/operators and

cut.

One person in attendance, as written in

the hearing transcripts,

stated that they did

not understand how all o.f the information collected was applied, reimbursed and then in

April 2002 everything changes. I agree it appears as stated above that the Agency has

changed in its perceived role in the regulatory

process. Making sure costs that

are

submitted for reimbursement. are reasonable and necessary is good, but collecting raw

data and then deriving a one-size fits all lump sum payment schedule without noting what

is in the scope of work is detrimental.

The Agency stated in the proceedings more than once that they relied on 15 years

of experience and review of budgets and reimbursement

processes of invoices, etc. It

seems that Agency is dictating what is reasonable and necessary without taking into

consideration the owner/operator, consultant or Professional Engineer certifications.

The Agency continues to state that

there are abuses or attempted abuses, so the

Agency wants the Board to adopt Subpart H. Drastic changes in how costs ar~

reimbui-sed serves to punish an entire industry

instead of singling out those who have

committed the infractions. The Agency in its review of costs and what is reasonable has

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been playing consultant and requests more information, which requires more plans, more

reviews, more budgets, more personnel time, more time, etc. The Agency on more than

one occasion has requested more work without adequate compensation or budget

approval.

The

Agency has contended that the

IPCB has upheld the proposed rates, Then,

the testimony changed to state that they were unsure if any of the rates had been upheld.

Based on the Illinois Ayers decision, I don’t think their rates would he upheld.

The Agency has stated that there is nothing preventing owner/operators from

proceeding with site investigation work without approved budgets. In reality, most, if not

all, of the LUST sites will not proceed without- an approved budget. Yet, the way the

proposed rules read, if you did not plan for every contingency, and you have to submit a

revised plan and budget it will not get reimbursed.

The Agency has stated that there are no standard rates, methodology and

submittals. Yet, this does not take in-to consideration that each site is different; each

owner/operator may be using a turn-key firm or a consultant that puts together various

subcontractors to complete the work. There are,

therefore,

many variables

and cost

considerations. It seems

the Agei~cylooks

at the money first and then decides if

the

scope of work is adequate. The way the current regulations are written, such as, 732.505

(a) the full technical review

“shall consist of a detailed review of the steps proposed or

completed to accomplish the goals of the plan and to achieve compliance with the Act

and regulations. Items to be reviewed, if applicable, shall include, but not be limited to,

number and placement of wells and borings, nun-iher and types of samples and analysis,

results of sample analysis, and protocols to hejbllowed in making -determinations. ~

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overall goal ofthe technical review (orplans shall be to determine if’the plan is sufficient

to satisfi the requirements of the Act and regulations and has been prepared in

accordance with generally accepted engineei-ing practices. The overall goal of the

technical review for reports shall be to determine ~fthe plan has been fully implemented

in accordance with generally accepted engineering practices, ~f the conclusions are

consistent with the information obtained while implementing the plan, and ~f the

-

requirements of’ the Act and regulations have been satisfied.”

The technical review

should be based on its

own merits. Then the financial review looks to determine if the

costs associated with the teclmical plan are in line.

Based

on

732.505 (c),

“A flulifinancial review shall consist of a detailed review of

the costs associated with each element necessary to accomplish the goals of the plan as

required pursuant to the Act and regulations. Items to be reviewed shall include, but not

he limited to, costs associated with any materials1 activities or services that are included

in the budget.plan. The overall goal of the financial review shall be to assure that costs

associated with materials, activities

and

services shall be reasonable, shall be consistent

-with the associated technical plan, shall be incurred in the performance of corrective

action activities, and shall not be used for corrective action activities in excess of those

necessary to meet the i-ninimum requirements of the Act and regulations.”

It seems that

financial review is trying to

figure out how to cut out

costs or reduce rates- below some

ceiling the Agency has set state wide. If the budget needs to be reduced, then the scope

of

work is reduced or cuts are made leaving the plan intact but not enough money to

perform the work. So, the contractor is faced with notifying the owner/operator that the

proposedwork cannot be completed as budgeted.

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Another area I would like to

address is conversion rates for excavated soil and

backfill. The Agency states that the conversion factor should be

1.5

tons per cubic yard

although it may be closer to 1.2 or less. A higher conversion factor decreases the yardage

they will reimburse. According to the Civil Engineers Handbook (1983, page 7-77) soils

vary

between 1.15 (loose) to over

1.6 (compacted) tons/ cu yd. Yet, the loose

(excavated) sands, clays, silts, silty clay, etc. vary-between 1.15 to 1.2 tons/ cu yd. This

results in a 24 to 30 reduction in the volume that should be paid for. Soils

are less in

weight due to excavated yardage not compacted. Therefore, if an owner/operator uses

the actual weight of soil disposed at a landfill from scales that indicate the weight in tons,

they can

-

convert to yards. The conversion factor the Agency prescribes is closer to

compacted soils

and not excavated soils. There is no

bulk density soil numbers from

across the state.

The

swell factor the Agency prescribes is

5

which is below what is typical in

calculating soil volume due to expansion after excavation. Generally accepted

engineering practices dictate that

15

to 20 is more common.

Besides,

the swell factor

is being used to calculate a budget volume. It is better to slightly over estimate soil

volume so that an amended budget does not have to be submitted if the volume is

underestimated.

The other use

of swell factor might be used

to convert the “loose” soil

volume, calculated from the weight conversion factor, to compute a compacted volume to

compare to the excavation dimensions,

During

the

hearing on March 15, 2004 the topic of sample number, sample set and

other statistics terminology was discussed. EPA SW-846 was cited as

a reference for

statistical analysis. Despite the fact that the document refers to accurately collecting

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samples for chemical analysis, the need for a representative

number of samples, sample

accuracy and precision are still the

same. Quoting from SW-846, “Statistical techniques

for obtaining accurate

and

precise samples

are relatively simple and easy to implement.

Some form of random sampling usually achieves sampling accuracy. In random

sampling, every unit in the population has a theoretically equal chance

of being sampled

arid measured,

Consequently, statistics generated by the sample

are

unbiased estimators

of

true population parameters. In other words,

the sample is representative of the

population. In the case- of determining

statewide lump

sum payments and time and

material rates, the sample set does not appear sufficient for accurately determining these

numbers.

SW-846 also states, “Sampling precision is most commonly achieved by taking

an appropriate number

of samples from the population.” The document goes on to say,

“Increasing the

number

or size of samples taken from a population, in addition to

increasing sampling precision, has the secondary effect of increasing sampling accuracy.”

Also, “Sufficient precision is most often obtained by selecting an appropriate nurnbei’ of

samples.”

The hope is that the true mean and sample mean will be accurate, precise and in

alignment. The standard deviation or statistical measure of dispersion is defined as “a

statistical measure of the amount by which a set of values differs from the arithmeticai mean,

equal to the square root

o

the mean of the diffcrences squared.” Arithmetic mean is defined as

“the average ofa set olnunibers, calculated by adding the-rn together and then dividing their sum

by the number of terms.” The confidence interval is defined as, “expected range of outcome: a

range of statistical values within which a result is expected to fall with a specific probability.”

Precision and accuracy are the expected outcome assuming the appropriate number of values is

obtained and they are representative ofthe entire population. Otherwise, the confidence level or’

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reliability measure as defined as “a measure of how reliable a statistica.l result is, expressed as a

percentage that indicates the probability of the result being correct.” is diminished.

It is not imown if the samples arc representative ofthe entire population. The question of

the number of sites that were analyzed was brought up in the hearing and was never answered.

Therefore, based on the questions and probable continued questioning, it is apparent that there is

doubt about how well the proposed numbers accurately represent the costs to perform the various

phases and do not take into account the various scopes ofwork, let aloneregions ofthe state.

The

Agency has stated previously that they use the National Construction

Estimator

(Craftsman Book Company), This may contain some data that

is applicable to

sites but it is mainly for new construction and does not necessarily compare to

environmental work. Picking a S/ft2 for asphalt and then expecting the same price for

concrete is not realistic. Concrete prices vary, as does asphalt depending on where the

site is located. By comparison the RS Means,

Environmental Remediation Cost Data

contains a variety of data for comparison, for

unit

rates or lump

sum amounts. This

data

is more

accurate than picking

and choosing specific sites to match the data set in order to

create state wide acce~tablecosts. Based on a comparison of the published personnel

rates, equipment rates, and

materials

vs. what the Agency deems reasonable, in their

proposed rules, are -far below those documented in this pricing guide.

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Thank you.

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BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD

IN THE MATTER OF:

)

)

PROPOSED AMENDMENTS- TO:

)

R04-22

REGULATION PETROLEUM LEAKING

)

(Rulethaking

-.

UST)

UNDERGROUND STORAGE TANKS

)

35

ILL. ADM. CODE 732

)

INTHEMATTEROF:)

-

)

PROPOSED AMENDMENTS TO:

)

R04-~23

REGULATION

PETROLEUM

LEAKING

)

(Rulemaking

-

UST)

UNDERGROUND STORAGE TANKS

)

Consolidated

35 ILL. ADM.CODE 734

)

-

P~ETESTTh,4ONY OF JOSEPH W. TRUESDAY, P.G, RE., REGARDING

THE ILLINOIS ENVIRONMENTAL PTOECTION AGENCY’S PROPOSAL TO

AMEND 35 ILL. ADM, CODE 732 AND 35 ILL. ADM. CODE 734

My name is Joseph W. Truesdale. I

am a senior project manager and managing

agent for CSD Environmental Services, Inc. (CSD) located in Springfield, Illinois. I am a

licensed Professional Engineer (RE.) and a licensed Professional Geologist (P.G.) in the

State ofIllinois. I hold B.S. degrees in environmental engineering and applied geology /

-

hydrogeology, as well as, an Associate degree in surveying and construction

management. I have worked in the civil and environmental consulting industry since

1993, and have been ernployedby CSD since 1998.

-

$ubpa~1

-

In the matter of: Regulation of Petroleum Leaking Underground Storage Tanks

(Proposed new

35

Ill. Adin. Code 734 and amended

35

Ill. Adm. Code 732)

(Consolidated: R04-22 and R04-23); the Illinois Environmental Protection Agency

(Agency) initially p-reposed, that “soil samples shall not be collected from soil below the

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groundwater table” during the various stages of site assessment. United State

Environmental Protection Agency, Office of Underground Storage Tanks (OSWER)

publication EPA 5l0-B-97-0Ol (March 1997),

Expedited Site Assessment Tools For

Undei~groundStorqge Tank Site: A Guide For ~çguiators

states that “the site assessment

process is critical to making appropriate corrective action decisions.

When site assessments are complete, they provide accurate information about the

presence and fribution of

contaminants, thereby facilitating cost-effective and efficient

remediation. When they

.

are incomplete, they can provide inaccurate or misleading

information which

can

delay effective remediation, increase overall corrective action

costs,

and result in an increased risk to human health and the environment.” This same

publication goes on to state that some of the most significant limitations noted

historically with conventional site assessments are that

“the results of the assessment are

usually focused

on mapping the boundaries

of the groundwater plume rather than the

source areas or locating the most significant contaminant mass. In addition, the approach

to mapping generally ignores the 3-dimensonal nature ofcontaminant migration.”

The

Illinois State Geological

Survey,

Bulletin

95, Handbook of Illinois

Strat~raphv

states that “deposits ofPleistocene age are the surficial materials in virtually

all of IllInois. Nearly 80 percent of the state was covered at least once by continental

glaciers that left characteristic deposits (drift).”

Tank systems at many Leaking

Underground Storage Tank (LUST) sites in

Illinois extend to near or below

shallow

groundwater tables. Since petroleum based contaminants consist primarily of

hydrophobic organic molecules, a vast majority of the contaminant mass (often times

more than 90°/i)can become adsorbed-to the aquifer solids beneath the water table or

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within the seasonal smear zone, if water table fluctuations are common. This

phenomenon is most prevalent in unconsolidated fine-grained aquifers, and / or aquifers

with significant, natural organic

-

material both t~ioal of glacial drift.

Failure to

reasonably attempt to quantify the total mass of contaminants in the subsurface and their

relative distribution (both above and below the water table) during site investigation can

severely inhibit subsequent implementation of effective corrective action and / or risk

management strategies as described in: Water Resources Research, Vol. 30, No. 8, Pages

2413-2422, August 1994,

Effects of rate-limited desorption on the feasibility of in-situ

bioremediation,

V.A. Fry and J.D. Istok Water Resources Research, Vol. 27, No. 4,

Pages

547-556,

April 1991,

Analytical Modeling ofAquifer Decontamii-iatio~kyPumping

When Trw-i-sport is Affected by Rate-Limited Sorption,

Mark N. Goltz and Mark E. Oxley;

and Water Resources Research, Vol. 29, No. 9, Pages 3201-3208, September 1993,

An

Analytical Solution to the Solute Transport L~guationWith Rate-Limited Deso~ptionand

Decay,

V.A. Fry and J.D. Istok;

-

I applaud and whole heartedly support the Agency in their current position of

proposing some sort of more comprehensive site investigation including collection of a

sufficient number of samples for laboratory chemical analysis necessary to map or

otherwise determine the magnitude and location(s) of the most significant contaminant

mass, including samples from below the water table. The result of any such laboratory

chemical analysis should then be compared to their appropriate objectives, depending on

their relative location in the subsurface.

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Subpart 2

-

In the matter of: Regulation of Petroleum Leaking Underground Storage Tanks

(Proposed new 35 Ill. Adm. Code 734 and amended 35 Ill. Adni. Code 732)

(Consolidated: R04-22 and R04-23); the Illinois Environmental Protection Agency

(Agency)

is proposing that a

5

increase in volume, or “fluff’ factor as described in the

prcfiled testimony of Harry A. Chappel, for excavated soils and replacement fill material

will be allowed for purposes of determining the

quantity

eligible for payment. Although

it is common engineering knowledge that the volume and relative density of soils and / or

rock change when excavated or compacted, the 5 increase proposed by the Agency is

not consistent with values commonly used in engineering practice. The technical book

titled

Construction Planning, Equipment, and Methods, published by McGraw Hill Book

Company states that “when the volume of earth increases because of loosening, this

increase is defined as swell.” The associated Table

5-1

in this book illustrates that percent

swell for “earth and rock” ranges from 12 to 60

and the typical value for earthen

material (soil) is

25.

However, the backfill material used following UST removal

typically consists ofsand or gravel which has a lower percent swell ranging from only 12

to 15

.

Givcn the inherent variability of swell for various geologic materials, it is

unreasonable to assume a single allowable percentage swell for purposes of these

regulations.

As I see it, it is part of the responsibility ofthe licensed Professional Engineer (or

-

licensed Professional Geologist) to select the appropriate design variables, in light of site

specific criteria, in order to obtain a reasonable estimate for which they are consequently

required to certify, During the process of this rulemaking, it may be more prudent to

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evaluate these costs relative to their appropriate units independently (ie. disposal per. ton,

trucking per. mile or hour, backfill per. ton and excavation per hour or cubic yard), rather

than attempting to perform numerous conversions and trying to lump items of

inconsistent units together into one unit cost.

~ubpart3

-

In the matter of: Regulation of Petroleum Leaking Underground Storage Tanks

(Proposed new 35 Ill. Adm, Code 734 and amended 35 Ill. Adm.- Code 732)

(Consolidated: R04-22 and R04-23); the Illinois Environmental Protection Agency

(Agency) is proposing that maximum payment amounts be established in Subpart H for

various activities conducted-in association with LUST sites; however, in Subpart H and

throughout the remainder of the proposed regulations, the Agency routinely uses the

terminology “shall include, but not be limited to.” It is unreasonable to assume that fixed

maximum payment amounts can be established for activities that do not have a clearly

defined, fixed, scope ofwork that can be readily identified without significant variability.

~ubpart4

-

During the May 25, 2004 hearing there was discussion regarding the number of

sites receiving NFR letters vs. the number of new incidents vs. the amounts being

reimbursed from the LUST fund. One observation I’ve made is that essentially all the

easily remediated sites that environmental contractors could dig out of have NFR letters

issued already. There is far less “dig and haul” conducted now in compai~sonto the

l990s,

What we have left are the more technically challenging sites where the

contaminant mass is less easily accessible, andlor’ sites with extensive groundwater

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impact.

As a result, a tremendous amount of data is needed to determine where

contaminants are located

and howbest to remediate them (EPA 510-F-97-004).

As the number ofnew incidents decreases, and the easily addressed sites continue

to drop out of the program, this trend should continue such that the majority of the costs

reimbursed through the LUST fund will be allocated to fewer and fewer more technically

challenging sites that would subsequently require higher costs to effectively address.

-

SubpartS

During the March 15, 2004 and subsequent hearings there was discussion

regarding allowing sites which have received NFR letters to retain eligibility under the

LUST fund to address future, previously unidentified, impacts or risks associated with

prior releases. The question was posed why an owner / operator would elect to obtain an

NFR letter despite ofa denial for access to off-site property suspected to be impacted as a

result of the release. In Doug Clay’s testimony on page 216 from the March

15,

2004

hearings he stated that “the reason someone would do this is because they need their NER

letter to sell their property”. Mr. Clay goes on to say on page 217 that “I think the owner

/ operator is making a business decision.”

Several of the owner / operators that I deal with are apprehensive about leaving

undisclosed contamination or employing multiple environmental land use restriction on

properties to manage future risks associated with -known contamination since the NFR

letter in and of it self does not serve to protect the owner / operators frofri any potential

future liability associated with that contamination

I think that that line of argument can be extended to include NFR letters obtained

using TACO, and that many savvy business owners would be more apt to employ the

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many options available under TACO to obtain an NFR letter if a mechanism existed to

address, and provide financing through the LUST fund, for future, previously

unidentified, impacts or risks associated with prior releases. The Agency has continually

presented their position that they have in no way attempted to overlook or otherwise limit

the use of TACO, and in fact have routinely suggested their desire to see TACO utilized

more often.

It is my position that one ofthe most significant reasons that TACO is not utilized

-

more frequently is that the owner / operator are in fact making a business decision which

will limit their potential future financial obligations should a previously unidentified

impact or change to site conditions present additional financial liability and / or other

risks. It is also my position that a mechanism allowing for continued future eligibility to

address these potential fii~ancialliabilities and / or other risks would serve to promote use

of TACO. In addition, it is my position that it is likely that a large majority of the site

receiving NFR letters via this approach would never need to access the LUST fund again

to address future concerns; however, the availability would surely make the business

decision of the owner / operators to use risk management strategies available under

TACO much less uncertain and more frequently used.

I believe that the additional degree ofsecurity that the owner / operator (or

potential buyer) would not be faced substantial future financial obligations associated

with undisclosed contamination or employing multiple environmental land use restriction

on properties to manage future risks associated with known contamination since the NFR

letter in and of it self does not serve to protect the owner / operators from any potential

future liability associated with that contamination. Ii~my opinion, this would almost

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certainly also make property transfers involving sites with environmental land use control

restrictions much more marketable and would facilitate more frequent use ofTACO.

-

Subpart?

American Heritage Dictionary ofthe English Language, Third Edition defines

reasonable

as “1. Capable ofreasoning : RATIONAL. 2. Governed by or in accordance

with reason or sound thinking. 3. Within the bounds of common sense. 4. Not extreme or

excessive : FAIR”

-

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BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD

IN THE MATTER OF:

)

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PROPOSED AMENDMENTS TO:

)

R04-22

REGULATION PETROLEUM LEAKING

)

(Rulemaking

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UST)

UNDERGROUND STORAGE TANKS

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-

35 ILL.

ADM.CODE732

)

IN THE MATTER OF:)

)

PROPOSED AMENDMENTS TO:

)

R04-23

REGULATION PETROLEUM LEAKING

)

(Rulemaking

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UNDERGROUND STORAGE TANKS

)

Consolidated

35 ILL. ADM. CODE 734

)

PIPE TESTiMONY OF DUANE I)OTY, P.O. REGARDING THE ILLINOIS

ENVIRONMENTAL PTOECTION AGENCY’S PROPOSAL TO

AMEND 35 ILL.

ADM. CODE 732 AND

35

ILL. ADM. CODE 734

My

name is Duane Doty. I

am the Genera-i Manager for United Science

Industries, Inc. (USI) located in, Woodlawn, Illinois. I am a licensed Professional

Geologist in the State of Illinois. I have consulted underground storage tank (LIST)

Owners and Operators in regard to compliance issues associated with releases from

underground storage tanks since 1988.

-

In regard to Section 734.843, Professional Consulting Services, the basis for

-

reimbursement in half-day increments does not appear to allow for several variations

commonly encountered during the perfbrmance of the field work and field oversight

activities addressed in this section. In addition, I question the rational used to determine

a half-day equals five

(5)

hours.

I

feel it’s generally accepted that a business day consists of eight (8) hours.

Therefore, a half-day equals four (4) hours, not five

(5).

Further, it’s not uncommon for

many businesses to operate during more- than one eight (8) hour shift in a 24-hoar day.

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Should the Illinois Pollution Control Board

(IPCB)

determine the reimbursement of

professional consulting services for field work andlor field oversight on half-day

increments is a reasonable approach, I respectfully suggest that the IPCB consider the

unit of measure (whether it’s tenned a “half-day” or a “half-shift” or similar) be modified

to equal four (4) hours and not limit the Owner/Operator’s reimbursement to only two

units per calendar day. I feel consultants, contractors, etc., should feel confident they

have the latitude to maintain or improve productivity as needed by remaining on-site to

work long days in an effort to maintain a schedule, avoid weather delays, backfill

excavations

prior to weekends andlor holidays, take advantage of seasonally extended

day light hours, etc., without jeopardizing the Owner/Operator’s eligibility in regard to

reimbursement. Doing so will increase the efficiency of the project and, therefore, reduce

overall project costs.

This opportunity is lost

if the number of reimbursable hours

worked on-site is directly or indirectly limited by limiting the number of half-days (or

similar unit ofmeasure) permissible per calet~idarday.

In Mr. Bauer’s testimony filed prior to the March 15, 2004, hearing he explains

that, “Based on conversation-s with former members of the Agency’s drill rig team”, the

half-day

rate relative to the consultant oversight of the advancement of four (4) soil

borings

“,..

allows an additional hour of field time that should account for travel time

andlor any other incidental time that is needed.”. Mr. Bauer again makes reference to the

one (1) hoar of travel time in his testimony regarding the groundwater sample collection

events required as part of Low Priority Corrective Action. Although I concur with Mr.

Bauer’s acknowledgement that travel time is necessary and, therefore, should be

considered a reimbursable task critical to the performance of field work andlor. field

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oversight, I question the assumption that all, or even the majority, ofproject sites will be

located within a 30 minute radius of the consultant. It is my recommendation that the

issue of travel time be revisited to determine how the half day rate should be adjusted to

better represent the typical costs to be incurred as part of a “half-day” inclusive of travel

and oversight, or, remove travel time from the half day unit of measure and determine

reasonable travel costs separate from field work or field oversight (i.e., actual hours of

travel time multiplied by the applicable personnel rate).

I also. suggest the Agency revisit the conclusion that the half-day rate of $500 is

reasonable and sufficient if this rate is to include all instrumentation used by the

professional, transportation, lodging, etc. It’s not unconunon for a professional to require

various types of instrumentation including a photoionization detector (PID), water level

indicator, combustible gas indicator, surveying equipment (conventional or GPS),

oil/water interface meter, peristaltic pump, data logger and transducers, etc. throughout a

typical scope of work associated with LUST compliance.

For example, according to the Agency’s proposed Subpart I-I, Appendix B, the

Agency suggests a reasonable hourly rat-c for a Project Manager with 8 years or less of

work related experience and/or college level education with significant coursework in the

physical, life, or environmental sciences is $90/hr. Such a Project Manager that travels

30 minutes to a job site, oversees four (4) hours of field work, and returns in 30 minutes

from the job site, accounts for

$450

of the $500 half-day rate. For years the Agency has

determined, and reimbursed, reasonable daily rates for the use of each of the instruments

described above (and others) and recognized the standard industry practice of charging

this instnurientation on a daily basis, The generally accepted standard daily rates relative

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to each of these instruments range from less the $50/day to more than $100/day.

Obviously, after considering the five (5) hours of work and/or pversight by the Project

Manager, it is not reasonable to conclude the remaining

$50

is a reasonable amount

inclusive of any and all instrumentation. Furthermore, to consider this

$50

remainder is

also inclusive of all transportation, expenses, lodging (if necessary), etc., is even more

unreasonable.

-

Performance offield work and/or oversight by personnel identified in Appendix E

with rates greater than that ofProject Manager (Sr. ProjectManager, Engineer III,

Professional Engineer, Sr. Professional Engineer, and Sr. Professional Geologist) or

travel time beyond a 30 minute radius only further supports the need to re-evaluat~the

$500/half day rate proposed by the Agency.

Mr. Bauer’s pre-filed testimony also states that “Based on conversations with

underground storage tank removal contractors it appears that consultants arc not always

present when the USTs are actuallybeing removed.” In support of Mr. Bauer’s

conclusion, I recognize that consultants are not always present during UST removal.

Often times, a release from an underground storage tank is not discovered until during the

removal ofthe UST and/or supportive system (i.e., product lines, dispensers, etc.). It is

unlikely a consultant would be present prior to the discovery of a release. However,

during the removal of a UST known to have had a release (a very

common scenario),

it is

common practice for a consultant to be present during the removal of the UST(s) in an

effort to document the event, evaluate the condition ofthe UST system, determine the

source ofthe release, prepare a site map, sample the excavation, and collect the data

necessary to comply with the Agency reporting requirements. To disadvantage an

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Owner/Operator by limiting his/her reimbursement of costs incurred in regard to

professional

consulting services to one half-day increment regardless ofhow many USTs

were removed and/or how long it took the contractor to remove it/them is not reasonable.

Instead, the Owner/Operator should remain eligible to receive reimbursement for as many

half-day increments (or alternative unit ofmeasure) as were required to complete the

UST removal activities and perform the required data collection and professional

oversight.

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regard to costs associated with report preparation, the Agency’s proposal to

reimburse

the Owner/Operator for various plans/reports, such as a Corrective Action Plan

(CAP) proposing conventional technology, on a fixed rate basis does not appear to

accommodate variations in the scope ofwork. Scope ofwork has a direct effect on the

effort dedicated to a plan or report. For example, the preparation of a CAP to address a

small plume ofon-site soil contamination does nbt require the same level of effort as the

preparation of a

CAP to address widespread soil and groundwater contamination that has

migrated onto several off-site properties. I feel that the Agency’s rationale in support of

the proposed UST removal or abandonment costs (Section 732.8 10) may also be

applicable in determining the reasonable costs associated with report preparation. In his

pre-filed testimony, Mr. Bauer explained the Agency’s rationale supporting their 732.810

proposal as follows: “...,it was determined that smaller tanks (110-999 gallons) cost less

and that larger tanks (15,000 gallons or more) cost more to remove or abandon than

medium-sized tanks (1,000 gallons to 14,999 gallons).”. It is reasonable to conclude that

CAPs proposing remedial action to address a small volume (i.e., 1,000 cubic yards or

less) ofon-site soil contamination cost less and CAPs addressing a large volume (i.e.,

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greater than 5,000 cubic yards) of contaminated soil and widespread groundwater

contamination, both of which have impacted the site and one or more off-site properties,

cost more to prepare than a CAP addressing on-site soil and groundwater contamination.

Another factor in regard to costs associated with report preparation that I feel is ofgreat

concern is the requirement ofAgency review and approval, and the authorization to

modify both the scope ofwork and/or the proposed budget. The Owner/Operator has

little to no control in regard to the Agency’s adequacy, efficiency, interpretation,

competency, or timeliness in regard to the review/approval/modification ofreports, plans,

budgets, reimbursement request, etc.- The potential for-human error is just as real for the

Agency as it is for the Owner/Operator. The Agency’s proposal to refuse additional

compensation for the preparation ofamended pians, reports, clarify an Agency

misinterpretation, etc., does not appear to relieve the Owner/Operator in the event such

activities are ncccssary as a result ofAgency involvement (directlyor indirectly). As a

result, the Owner/Operator becomes burdened with additional costs that are ineligible for

reimbursement as a result ofan Agency error.

-

Also, it is not uncommon for unforeseen conditions discovered after the execution

ofan Agency approved plan to require the submittal ofamended plans and/or budgets. It

does not seem reasonable to refuse an Owner/Operator reimbursement for costs

associated with the preparation of an amended plan andlor budget required as a result of

conditions unforeseen by both the Owner/Operator and the Agency.

I concur with the Agency that some ofthe proposed regulation revisions exhibit a

potential to streamline the reporting process for both the Owner/Operator and the

Agency. However, the 120-day Agency review timeline remains unchanged. It seems

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appropriate that the 120-day review period should be reduced to reflect the benefit ofthe

Agency’s effort to streamline this process.

As several participants expressed in the March

15,

2004, hearing, the manner in

which the Agency elected to research historical costs appears to be questionable. As a

result, several of the Agency’s conclusions are also in question, Regardless ofthe

validity, or invalidity, ofAttachment 9 as referenced in Harry Chappel‘s pre-filed

testimony, reimbursement ofconventional excavation and off-site disposal ofpetroleum

contaminated soil using the cubic yard as a standard unit ofmeasure can provide a

streamlined and potentially reasonable means to reimburse the Owner/Operator.

Although its methods may be questionable, the Agency has determined that petroleum

contaminated soil can be excavated and transported to a landfill at a rate of 500 cubic

yards per day from almost every current, and future LUST site located in the State of

Illinois. Although there has been discussion in regard to extraordinary circumstances, it

-

is my experience that the Agency does not consider remote locations or small volumes of

contaminated soil extraordinary. These conditions can significantly increase the cost per

cubic yard for excavation and/or transportation. However, the -environment, human

health and safety, and the Owner/Operators responsible for small plumes of contaminated

soil at sites remotely located can greatly benefit from the timeliness and effectiveness of

conventional technology. To indirectly limit the benefit of conventional technology by

directly limiting the Owner/Operator’s ability to receive reimbursement for costs incurred

based solely on remote location and/or a small volume ofsoil to be abated is

unreasonable. This situation could be addressed by either recognizing these conditions as

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extraordinaryor by offering a scale reflecting extended transportation requirements or

less than average volumes of soil requiring abatement.

Subpart C: Site Investigation and Corrective Action, in my opinion, includes the

revisions with the greatest potential to improve current regulations. The Agency should

-

be commended for proposing this Subpart. The benefits ofa pre-determined initial scope

ofwork (Stage I) and the ability for an Owner/Operator to request reimbursement

throughout the investigation instead being required to wait until the Agency approves a

completion report are two revisions that will allow

a

far more streamlined process than

that required ofcurrent regulations. However, T recommend the Agency consider some

minor modifications. It appears that depending upon the layout of the UST system,

-

borings advanced in accordance with 734.3 15(a)(1)(A-C) could result in the advancement

ofmultiple borings in virtually the same location. This would be the case especially

when investigating a release from a UST system constructed such that product lines

include one or more 90-degree angles (a very common situation). Advancing borings

perpendicular in both directions and at equal distances

(15’)

from both sides ofa 90-

degree angle can result in placing two borings at the same location. UST systems

including multiple pump islands parallel to one another can also cause a similar result.

This may be resolved if the regulation included direction explaining that the borings

advanced in accordance with these regulations maintain a specified minimum interval

between borings (i.e., 15’). Depending upon the number ofUSTs located in the tankhold,

borings advanced in accordance with 734.3 15(a)(l)(B) could also result in an interval

between borings of less than

15’.

Requiring a minimum distance between borings could

resolve this concern as well.

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Also, in an effort to avoid unnecessary Agency denials or modifications ofStage

2 and Stage 3 plans, it

would be helpful

ifthe Agency provided some explanation

-

regarding the rationale that will be used when reviewing these plans.

I also have concerns regarding the experience requirements proposed in Appendix

E. I strongly disagree that it is necessary forthe Agency to attempt to impose experience

requirements on personnel employed by private businesses. Current regulations require

that the work be performed by, or under the supervision ofa licensed Professional

Geologist (PU) or Professional Engineer (PE). These licensed professionals must certify

to this and this should be sufficient. There is no good reason to disadvantage or

disqualify

young professionals capable cf providing quality work.

In conclusion, it is my observation that the majority ofthe consulting community

recognizes that cost containment is a necessity. It is also my observation that the

consulting comnnmity will require that any cost containment measure be reasonable and

fair. With modification, the Agency’s proposed revisions could achieve this.

Thank you.

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