BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
PRIME LOCATION PROPERTIES, LLC,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
)
)
)
PCB 09-67
(LUST
Pennit Appeal)
NOTICE OF FILING AND PROOF OF SERVICE
To:
John T. Therriault, Acting Clerk
Illinois Pollution Control Board
100
West Randolph Street
State
of Illinois Building, Suite 11-500
Chicago, IL 60601
Thomas Davis
Assistant Attorney General
500
S. Second Street
Springfield, IL 62706
Carol
Webb
Hearing Officer
Illinois Pollution Control
Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, Illinois 62794-9274
PLEASE
TAKE NOTICE that I have today electronically filed with the Office of the Clerk of
the Illinois Pollution Control Board, pursuant to Board Procedural Rule 101.302 (d), a
PETITIONER'S MOTION FOR LEAVE TO FILE REPLY MEMORANDUM
INSTANTER,
a copy
of which is herewith served upon the hearing officer and upon the attorneys of record in this cause.
The undersigned hereby certifies that a true
and correct copy of this Notice of Filing, together
with a
copy of the document described above, were today served upon the hearing officer and counsel
of record of all parties to this cause by enclosing same in envelopes addressed to such attorneys and to
said hearing officer with postage fully prepaid,
and by depositing said envelopes in a U.S. Post Office
Mailbox in Springfield, Illinois
on the 5
th
day of October, 2009.
Respectfully submitted,
PRIME LOCATION PROPERTIES, LLC, Petitioner
BY:
MOHAN, ALEWELT,
PRILLAMAN
&
ADAMI
BY:
lsi
Patrick D. Shaw
Patrick D. Shaw
MOHAN, ALEWELT, PRILLAMAN
&
ADAMI
1 North Old Capitol Plaza, Suite 325
Springfield, IL 62701-1323
Telephone:
217/528-2517
Facsimile:
217/528-2553
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
PRIME LOCATION PROPERTIES, LLC, )
Petitioner,
)
)
v.
)
)
ILLINOIS ENVIRONMENTAL)
PROTECTION AGENCY,
)
Respondent.
)
PCB No. 09-67
(UST Appeal)
PETITIONER'S MOTION FOR LEAVE TO FILE
REPLY MEMORANDUM
INSTANTER
NOW COMES Prime Location Properties, LLC, by its undersigned counsel,
and moves the Board for leave to file a reply in this matter, stating as follows:
1.
On August 20,2009, the Board entered an Order directing Prime to file a
statement
of its legal fees by September 21,2009, and giving the Illinois Environmental
Protection Agency (hereinafter "IEP A") fourteen days to file a response. No time was provided
in the Order for a reply.
2.
On September 17,2009, Petitioner filed its Motion for Authorization of Payment
of Attorney Fees as Costs of Corrective Action.
3.
On October 1,2009, the IEPA filed its Objection to Attorney Fees.
4.
In the IEPA's Objection to Attorney Fees, clarification is sought with respect to
Petitioner's billing records. Petitioner believes it would be appropriate to reply to that request
and believes it would be prejudiced
ifit was not allowed to reply to said request.
5.
Furthermore, the IEPA raises numerous objections to the Board's ruling in Illinois
Ayers Oil Company
v. IEPA, PCB 03-214 (Aug. 5,2004). Petitioner did anticipate such
reargument
of the Board's prior rulings and while it is quite possible that the Board will not
2
receive the invitation
to
relitigate Dlinois Ayers. Petitioner could be prejudiced by a number of
legal and factual errors that penneate the IEPA's arguments for doing so.
WHEREFORE, Petitioner prays for an Order authorizing the filing of the attached Reply
Brief
Instanter,
and for such other and further relief as the Board deems meet and just.
Respectfully submitted,
PRIME LOCATION PROPERTIES,
LLC,
Petitioner,
BY:
MOHAN, ALEWELT, PRILLAMAN
&
ADAMI,
its attorneys
BY:
1st
Patrick D. Shaw
Patrick D. Shaw
MOHAN, ALEWELT, PRILLAMAN
& ADAMI
1
N. Old Capitol Plaza, Suite 325
Springfield,
IT..
62701
Tel: (217) 528-2517
Fax: (217) 528-2553
C:\Mapa\Prime Location Prop\Mot for Leave to File Reply Instanter.wpdlcrk 10/5109 3 :57
pm
3
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
PRIME LOCATION PROPERTIES, LLC, )
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
)
)
)
PCB No. 09-67
(UST Appeal)
PETITIONER'S REPLY MEMORANDUM
TO OBJECTIONS TO ATTORNEY FEES
NOW COMES Petitioner, PRIME LOCATION PROPERTIES, LLC, by its undersigned
counsel and in reply to Respondent's Objection to Attorney's Fees, states as follows:
I.
CLARIFICATION OF LEGAL RATES
The IEPA complains of what it perceives to be different billings rates of attorney Shaw.
Prime Location Properties, LLC is represented
in this matter by Patrick D. Shaw and Fred C.
Prillaman, both of whom entered an appearance herein. Attorney Prillaman's rate is $220 per
hour, and attorney
Shaw's rate is $165 per hour, both of which are the standard billed rates. Mr.
Prillaman's involvement (4.1 hours) was primarily at the beginning
of the appeal before anybody
filed an appearance for the IEP A.I
II.
ILLINOIS AYERS IS BINDING PRECEDENT ON THE IEPA.
Most of the IEP A response appears to be a running commentary and critique of the
Board's decision
in Illinois Ayers Oil Co. v. IEPA, PCB 03-214, (Aug. 5,2004), including issues
I
In
addition, Prime Location Properties, LLC, the owner/operator ofthe property, is the
entity incurring and paying legal bills, not the consultant.
Electronic Filing - Received, Clerk's Office, October 5, 2009
raised and lost therein. For example, the IEP A argued in Illinois Ayers that no legal defense
costs had been incurred
by the owner/operator because the legal bills were being incurred by
Illinois Ayer's consultant. lllinois Ayers filed a response pointing out that there is no legal
precedent for requiring the party to pay their attorney's fees
in order to receive an award of
attorney's fees.
2
Resp.
In
Opp. Mot. For Leave to Amend, at
~9
(July 16, 2004). The Board did
not reach all
of those arguments, some of which are cited in Footnote 2 herein, but simply found
that whether the owner
or operator paid the legal fees was irrelevant under the statutory language.
lllinois Ayers Oil Co. v. IEPA, PCB 03-214, at p.
2.
The IEPA did not appeallllinois Ayers, and Petitioner will focus it's reply to arguments
that were not raised therein.
A.
THIS IS NOT A COMMON FUND CASE.
At several points, the IEP A comments negatively on the notion that this statute is a fee-
shifting provision, and appears to argue that this case is subject to the common fund doctrine.
(Objection, at p. 7) The common fund doctrine has no applicability here,
but if it did, the attorney
fee demand would be higher.
The common fund doctrine only applies ''where the outcome
of the litigation has created
a common fund
... in which others have an ownership interest." Brundidge v. Glendale Federal
Bank, 168
TIL 2d 235, 238 (1995).
It
is most commonly applied in class action lawsuits where
the class attorney has obtained a benefit for everyone in the class, even people with whom the
2 It
is completely irrelevant whether or not the party entitled to attorneys' fees actually
paid attorney fees. Brubakken v. Morrison, 240 Ill.App.3d 680, 686 (1st Dist. 1992); see also
Pitts v. Holt, 304 Ill.App.3d 871, 874 (1st Dist. 1999) (holding that whether
or not the client
agreed to pay a fee
or whether the attorney agreed to accept any awarded attorney fees are not
valid bases on which to deny or limit an attorney fee award).
2
attorney does not have a client relationship. The members of the class have obtained a right to
payment that is legally enforceable.
In
such cases, courts may use their equitable powers to
spread the cost
of litigation proportionateley among the fund beneficiaries "based upon a
percentage
of the amount recovered on behalf of the plaintiff class." Id.
A common fund was not created in this case. To do so, the Board would have had to find
that not only had the
IEPA violated the law, but that it had done so to the detriment
of a large
class that now have a right to
be reimbursed.
In
such a case, the attorney fees would be awarded
as a percentage
ofthe class's claims. Typically, the attorney obtains an award equal to twenty-
five percent
of the class recovery, which has led to complaints of "strikingly large fee awards ...
disproportionate to the actual efforts expended by the attorneys." Id. at 241. The case cited by
the IEP A merely discusses the considerations for merely awarded the attorney for his
or her
actual efforts.
Unlike common funds which are based on
"court's inherent equitable powers," id. at 238,
the LUST Fund was created
by act of legislation. A cursory review of those provisions indicates
that the Board is only authorized to review the matter which has been timely appealed, and the
Board would appear to have no implied power to create a common fund to provide relief to a
class
of claimants that have been victimized in the past by any course of unlawful IEPA
decisions.
B.
ALL AWARDS OF LEGAL COSTS ARE INTENDED TO ENCOURAGE
LITIGATION AND DISCOURAGE THE LOSING PARTY'S CONDUCT.
In
Chicago v. Illinois Commerce Commission, 187 Ill. App. 3d 468,470 (1st Dist. 1989),
the Illinois Appellate Court ruled that an award
of attorney's fees was meant to discourage
3
conduct upon the part of the state and provide encouragements for those affected by government
action to challenge the state. The IEP A appears to believe the Board has tacitly accepted this
principle that was only meant for attorney-fee awards under the Administrative Procedures Act.
(5 ILCS lOO/1O-55(c»
Certainly, the Chicago case involved a different statute than the one here, but common
sense tells us that all statutory provisions that award a party their legal costs are intended to alter
the status quo. The American Rule is that a party to litigation bears its own legal expenses and
for a statute to expressly override that Rule is a clear indication that different motivations are in
order. Statutes which authorize an award
of legal costs to the prevailing party have three
purposes in mind: (1)
provide access to legal process;
~
Pennsylvania v. Delaware Valley
Citizen's Council, 478 U.S. 546, 565 (1986)("the aim
of such statutes was to enable private
parties to obtain legal help in seeking redress for injuries resulting from the actual
or threatened
violation
of ... laws. Hence, if plaintiffs, ... find it possible to engage a lawyer based on the
statutory assurance that he will
be paid a 'reasonable fee,' the purpose behind the fee-shifting
statute has been satisfied."); (2)
encourage vindication of rights;
~,
Christiansburg Garment
Co. v. EEOC, 434 U.S.
412,416 (1978) (interpreting statutes that cast plaintiff "in the role of 'a
private attorney general,' vindicating a policy that Congress considered of the highest priority ...
[who] should ordinarily recover an attorney's fee unless special circumstances would render such
an award unjust."); (3)
discourage
violations;~,
Riverside v.
River~
477 U.S. 561,578
(1986) ("if those who violate the Nation's fundamental laws are not to proceed with impunity,
then citizens must have the opportunity to recover what it costs them to vindicate these rights in
4
court.").3
Since the IEP A raises the testimony of Cindy Davis, a consultant that testified in the R04-
22 and R04-23 hearings, the larger context of her testimony is relevant here:
Here's what happens. You submit -- I submit our plan. The Agency takes 120
days to review it, gives me a final decision. Sometimes it's 120 days,
sometimes it's earlier.
If
I don't like the amendments, I have my choice to
either resubmit
or I can appeal to the Board.
If
I resubmit it, I have -- since
that was a final decision, I have to resubmit a whole new plan which means it
goes to another 120 day review. I can appeal,
but it's costly to appeal. And
you have to look
at is it $1,500 problem, a $20,000 problem and what's the
appropriate action. You
can't really afford to go and hire an attorney to
represent you in front
of the Board for a $1,500 problem.
In
re Proposed Amendments to Regulations of Petroleum Leaking Underground Storage Tanks
(35 Ill. Adm. Code 732 & 734), R04-22 & R04-23 (June 21,2004 transcript), at p. 102
4
This testimony supports the award of legal costs when the IEPA has wrongfully rejected a
plan
or budget. All ofthe policy considerations for fee awards apply here. When the IEP A
wrongfully rejects a plan or budget that costs less than the estimated cost of an appeal, there is
very little incentive for an owner
or operator to file an appeal. The availability of a fee award
3 Where the statute is silent, Illinois courts frequently look to federal case law. Berlak v.
Villa Scalabrini Home for the Aged, 284 Ill. App. 3d 231, 236 (1 st Dist. 1996); see also Hensley
v. Eckerhart, 461 U.S. 424, 433 n.7 (setting forth standards "applicable in all cases in which
Congress has authorized an award of fees to a 'prevailing party"').
4 Transcript excerpts are attached hereto as Exhibit
A.
5
Electronic Filing - Received, Clerk's Office, October 5, 2009
gives owners and operators (and their consultants) access to the legal protections from wrongful
decisions offered
by the Board. By giving the owner/operator an incentive to appeal, the primary
purpose
of the LUST Fund is promoted, i.e., to provide financial means to cleanup petroleum
contamination. And finally, the availability
of the award serves as a disincentive to future
wrongful decisions. In this case, the IEP
A's decision appeared to be directly contrary to two
prior Board decisions. Prime Location Properties, LLC v. IEPA, PCB 09-67, at
p.l5 (Aug. 20,
2009)(finding decision consistent with Board's decision in Swif-T-Food Mart); Swif-T Food
Mart v. IEPA, PCB 03-185, at p.
11 (May 20,2004) (finding IEPA's argument unpersuasive to
overrule Mac Investments
d/b/a!
Olympic Oldsmobile v. OSFM, PCB 01-29, at p. 11 (Dec. 19,
2002)). Hopefully, this is the last occasion in which any owner/operator will have to either pay
the deductible
or appeal.
Generally, courts have exercised their discretion to award legal costs, except where
special circumstances exist where the purpose
of the fee award runs contrary to the enabling
statute. See Callinan
v. Prisoner Review Bd., 371
m.
App. 3d 272, 277-78 (3
rd
Dist. 2007)
(summarizing caselaw under Freedom
of Information Act, Consumer Fraud Act and federal Civil
Right law, which generally encourage award absent special circumstances that would render such
an award unjust). Petitioner submits that no such special circumstances have been raised herein;
particularly none that would differentiate an award from that given in Swif-T -Food Mart.
C.
THE BOARD
HAS ADDRESSED REASONABLENESS OF
THE FEE
REQUESTED
IN THE
PAST.
The IEP A erroneously states on page 2 that the "standard" of reasonableness of attorney's
fees was not established in Illinois Ayers. This is not correct. The Board ruled that the petitioner
6
had presented "an affidavit and an exhibit to the affidavit specifying the legal services provided"
and the IEP A had merely argued that certain technical issues should not be reimbursed, a
distinction the Board did not accept. lllinois Ayers Oil, PCB 03-214, at p. 9 (Aug. 5,2004).
The Board also indicated in its ruling that "Ayers noted that the burden shifts to the
Agency to rebut the reasonableness
of the fees." Id. This statement was based upon an lllinois
Appellate Court holding that "once an attorney has put forth evidence
of a reasonable fee, "the
court must provide reasons justifying [
a] particular cut in [the] hours or fees imposed." Shortino
v. lllinois Bell Tel. Co., 279
TIL App. 3d 769, 773 (lst Dist. 1996). The Illinois Appellate Court
affirmed the trial court's decision to award the claimed fee where "[t]he objectors put no
evidence in the record which would convincingly counter the fee claim." Id.
The petitioner's evidence
ofthe hours expended and hourly rates filed herein is evidence
of reasonableness ofthe fees sought, just as they were in lllinois Ayers. The IEP A cannot simply
chide the Board's attention to details from the sidelines (Objection, at p. 9), without offering
evidence
or point to issues in the evidence. Other than the clarification sought for the different
billable hourly rates, there is no claim that the hours expended were unreasonable
or the rates
charged unreasonable. There are a number
of cases in which such accusations have been made,
~,Ardt
v. State oflllinois, 292 Ill. App. 3d 1059 (lSI Dist. 1997) (remanding for hearing on
billing
24 hours a day), but none has been made here.
WHEREFORE, Petitioner, PRIME LOCATION PROPERTIES, LLC, prays for an order
awarding the requested attorney fees herein.
7
Respectfully submitted,
PRIME LOCATION PROPERTIES, LLC,
Petitioner,
BY:
MOHAN, ALEWELT, PRILLAMAN
&
ADAMI,
its attorneys
BY:
/s/ Patrick D. Shaw
Patrick D. Shaw
MOHAN, ALEWELT, PRILLAMAN
&
ADAMI
1 N. Old Capitol Plaza, Suite 325
Springfield, IL 62701
Tel: (217) 528-2517
Fax: (217) 528-2553
8
Electronic Filing - Received, Clerk's Office, October 5, 2009
ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
PROPOSED AMENDMENTS TO:
R04-22
REGULATIONS OF PETROLEUM LEAKING (UST Rulemaking)
UNDERGROUND STORAGE TANKS
(35 ILL. ADM. CODE 732)
IN THE MATTER OF:
PROPOSED AMENDMENTS TO:
R04-23
REGULATION OF PETROLEUM LEAKING
(UST Rulemaking)
UNDERGROUND STORAGE TANKS
(Consolidated)
(35 ILL. ADM. CODE 734)
The Rulemaking Proceeding, before the
Illinois Pollution Control Board, was held June
21st, 2004, at 10 a.m. at the offices of the
Illinois Pollution Control Board, 1021 N. Grand
Avenue East, Training Room, 1214 West, North
Entrance, Springfield, Illinois, before Marie E.
Tipsord, Chief Hearing Officer.
Reported by:
Beverly S. Hopkins, CSR, RPR
CSR License No.:
084-004316
KEEFE REPORTING COMPANY
11 North 44th Street
Belleville, IL 62226
•
EXHIBIT
I
II
I
1
MS. MANNING: Yeah, let's talk a little bit about what
2
transpired at these meetings then. There were some litigation
3
going on as well as the Ayers case was pending before the Board
4
and was
decided
by the Board as well that a case CW3M had
5
regarding the rate sheet. And if you could explain a little bit
6
about sort of what the genesis
is,
the Board's meetings with the
7
Agency were regarding the emergency rule proposal and what led to
8
the document that finds itself as Exhibit 44, and then we'll go
9
through that a little bit in terms of what PIPE's concerns got
10
put into the emergency rule?
11
MS. DAVIS: Well, I'm sure everybody is aware the Illinois
12
Ayers case, which was a case -- the Illinois Ayers Beardstown
13
case is a -- was a CEC, is still
is
a CEC client.
14
15
MS. MANNING: In fact, you testified in that proceeding?
MS. DAVIS: I testified in that proceeding and so
did
Jeff
16
Wienhoff. Our main concern with Illinois Ayers was that the
17
Agency was using a rate sheet that we felt was unfair, that
18
hadn't gone through rulemaking. That we never felt we had a
19
chance to comment on. The Agency's standard in the last few
20
years, when they started using the rate sheet, was to -- when we
21
submitted a budget for either a corrective action plan or site
22
investigation, you wquld get a letter back saying we're cutting
23
maybe $1,500 from personnel, just whack, whack, whack. No
24
explanation given to us as to other than it exceeds minimum
95
KEEFE REPORTING COMPANY
Electronic Filing - Received, Clerk's Office, October 5, 2009
1
requirements of the Act. Then we tried to call up the project
2
manager to find out what specifically was wrong with our budget.
3
Sometimes they could help, sometimes they couldn't. We would
4
resubmit, and what we found is we were just wasting time. The
5
Agency
wasn't interested in approving any other costs other than
6
what was on their rate sheet.
7
Hence, the reason we decided to appeal Ayers. I paid for
8
the appeal on Ayers, and not the owner/operator. The reason I
9
did is, I guess it was just something that stuck in me that I
10
didn't feel was right, and it was affecting my business, driving
11
the cost of cleanups up because all we were doing was spending
12
time trying to justify why we were needing more money than the
13
Agency was willing to give to us. The Agency has told us that
14
over and over again that all their project managers full-time on
15
budget, that they'd like to have their project managers spend
16
more time reviewing technical work. All my project managers do
17
is spend all their time trying to justify their costs.
18
Corrective action plan, very few corrective action plans have
19
been approved in the last few years because of the cost problems
20
submitting it back and forth, back and forth, submitting
21
justification and we're just not getting anywhere.
22
So
Ayers kind of brought that to head. The Agency had made
23
some
technical cuts, felt that the borings that we had proposed
24
were excessive and the money that we requested was excessive.
KEEFE REPORTING COMPANY
96
-_
..........
_.-
.
----
1
The Board agreed with Ayers against the Agency and ruled that the
2
rate sheet was invalid in response to that. That was on April
31st. On April 21st, CW3M went into court and the judge --
4
MR. KING:
Just so you know, that is -- as I understand
5
that's not a closed site.
6
7
8
9
MS. DAVIS: Illinois Ayers?
MR. KING:
Yes.
MS. DAVIS:
No.
MR. KING: We are talking about the site that's still an
10
open site so, I mean --
11
12
MS. MANNING: She's just giving background in terms of
MR. KING: Well, I mean, we were questioned about that
13
earlier today, about talking about and asking questions about a
14
site that was, in fact, still an open and not a closed manner. I
15
mean, we got a decision in this.
16
17
HEARING OFFICER TIPSORD:
You beat me to the punch.
I was
just going to remind her that that was
Technically speaking
18
that case is still appealing -- still before the Board currently
19
on some motions.
20
21
22
23
24
MS. MANNING:
Yes.
HEARING OFFICER TIPSORD:
I don't think you have
I mean,
I think she stayed within what the published has been, but thank
you, Mr. King.
MS. MANNING: Whey don't you just stay away from
97
KEEFE REPORTING COMPANY
1.
HEARING OFFICER TIPSORD: Thank you for pointing that out
2
to her.
3
MS. MANNING: Get into the whole reason for this PIPE and
4
CECI joining in an emergency rule motion.
5
MS. DAVIS: Apparently after some decisions were made by
6
the Board, the Agency had trouble with deciding what 'was
7
reasonable. If they can't use the rate sheets, then the
8
determination of reasonable became a problem for them. So they
9
asked the Board for an .emergency rule to go ahead and implement
10
Subpart H as proposed. PIPE met with the Agency and we were
11
opposed to emergency ruling feeling that the Agency created the
12
problem itself, created the emergency, by not going through
13
rulemaking years before on the rate sheet. However,' though the
14
Agency told us they had a problem, they didn't know how to pay.
15
Didn't know how to make payments. So we decided we would work
16
with them and come up -- we have to have an emergency rule to
17
determine reasonableness so let's work together and hopefully we
18
can come up --
19
MS. MANNING: By the way, what did they do with the
20
payments during this period of time?
21
MS. DAVIS: They were held up for a while. And then they
22
agreed that they would process the payments based upon the
23
certification of the professional engineer or the professional
24
geologist.
KEEFE REPORTING COMPANY
98
1
2
MS. MANNING:
Okay.
MS. DAVIS:
The emergency rule that we worked together on,
3
we worked together on establishing price for reasonableness by
4
5
RS Means.
MS. MANNING: Now to be fair, though, this was an interim
6
measure indicating CECI agreed that this an interim measure
7
pending the Board ruling on the rule?
8
MS. DAVIS:
Right.
So we just thought during an emergency
9
meeting, the time frame between rulemaking and now is to help the
10
Agency determine reasonableness and go ahead and proceed payments
11
that RS Means is an estimating book that's used in the
12
construction industry. It's published third party information.
13
And we can start with that. They have pretty much everything
14
included in there. The only problem was RS Means did not have
15
16
17
18
19
20
21
22
23
24
all the personnel data that the Agency needed. So we worked with
the Agency coming up with the personnel titles and rates. And
what we did was pulled data from RS Means where we could and the
Agency proposed -- we started with the Agency's proposed rate in
Subpart H and adjusted them.
MS. MANNING:
By the way, if I could
in now, I don't
think the RS Means book that we're discussing is in the record
yet but we will
we will make sure that before the end of the
hearing it will be.
HEARING OFFICER TIPSORD:
You beat me to another punch.
99
KEEFE REPORTING COMPANY
Electronic Filing - Received, Clerk's Office, October 5, 2009
1
2
MS. DAVIS: The other issue the Agency had was the
excavation, transportation disposal. They felt they had
3
think maybe they had
--
I think they thought maybe they had
I
4
better data than what RS Means was so we worked together to come
5
up with a unit price for those soil removals and disposals
6
because the Agency was insistent that they needed a unit price
7
for that to control cost. And I know there was some cost in here
8
about concrete, asphalt, but I don't remember.
9
BOARD MEMBER JOHNSON:
You say you worked together, you
10
know, took the proposed rates, the Subpart H proposed rates, and
11
you adjusted them accordingly. And in this proposed emergency
12
rulemaking did you adjust
--
did you adjust only up or did you
13
adjust any of them down?
14
MS. DAVIS: No, I think some went down.
I think there was
15
adjustment both ways.
16
BOARD MEMBER JOHNSON:
Okay.
17
MS. DAVIS: I think. I didn't work specifically on that,
18
but I believe there was. But I think the biggest thing that we
19
put in the emergency rule was that is if the Agency would rely
20
upon the professional engineer or the professional geologist
21
certification, and if they thought there was something that
22
wasn't reasonable, the Agency would give us detailed reasons of
23
denial other than exceeds minimum requirements of the Act.
24
And also we worked out an agreement where the Agency would
100
KEEFE REPORTING, COMPANY
Electronic Filing - Received, Clerk's Office, October 5, 2009
1
send us a draft denial letter prior to the 120 days per final
2
decision. And with that draft denial letter, then we would be
3
able to work out, we were hoping, many of our differences prior
4
to the final decision. We felt that that gave us the ability to
5
move the project along and get into remediation faster and also
6
would cut down the number of appeals going to the Board. The
7
Agency
agreed to that, and it was in the emergency rule proposal.
8
MS. MANNING: Talk a little bit about the LPE and LPG
9
certification, if you will, what particular -- what particular
10
decisions that are made that are presented to the Agency have to
11
have that certification, corrective action plan?
12
MS. DAVIS: Well, every -- yes, all budgets, plans,
13
amendments basically have to be certified by the professional
14
engineer or professional geologist. The corrective action
15
submitting report can only be certified by a professional
16
engineer.
17
MS. MANNING: And what kind of difficulty, if any, have you
18
experienced in -- in getting modifications from the Agency or
19
getting denials from the Agency on a budget that includes a scope
20
of work that was signed off by LPE or the LPG determining that
21
that was the appropriate amount of work necessary for that
22
particular task?
23
MS. DAVIS: Well, many times the Agency goes through and
24
cuts our scope of work. We estimate that -- If our engineer
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1
estimates it was going to take 10 hours of a particular person on
2
site to do the work, the Agency a lot of times would cut in half
3
or cut -- or the explanation was it exceeded minimum requirements
4
of the Act. As you could see exceeding requirements of the Act
5
was giving us a lot of problems, which
is
why we liked, in the
6
emergency rule, which is where the Agency actually gave us more
7
reasons than that.
8
Another problem that happens, if the Agency waits until the
9
120th day, gives you a denial letter or adjusts your budget, you
10
had no where to resubmit any information because you have --
11
Here's what happens. You submit -- I submit our plan. The
12
Agency takes 120 days to review it, gives me a final decision.
13
Sometimes it's 120 days, sometimes it's earlier. If I don't like
14
the amendments, I have my choice to either resubmit or I can
15
appeal to the Board. If I resubmit it, I have -- since that was
16
a final decision, I have to resubmit a whole new plan which means
17
it goes to another 120 day review. I can appeal, but it's costly
18
to appeal. And you have to look at is it $1,500 problem, a
19
$20,000 problem and what's the appropriate action. You can't
20
really afford to go and hire an attorney to represent you in
21
front of the Board for a $1,500 problem. So you talk to the
22
owner/operator, and they say, well, they'll either eat that cost
23
and go ahead and pay us or they decide they want to appeal. A
24
lot of times they eat the cost, not because they agree with it,
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but because they can't afford to appeal the decision.
2
BOARD MEMBER JOHNSON:
That's what they've been doing then.
3
If you have a specific plan in which you say it's going to take
4
10 hours and the Agency says, no, it's only going take five, then
5
your owner/operator pays for the additional five hours or you
6
just didn't do the additional five hours worth of work?
7
MS. DAVIS: Most of the time the owner/operator either pays
8
the additional five hours so they can still do the work but --
9
BOARD MEMBER JOHNSON:
Half price.
10
MS. DAVIS: Half the price.
11
MS. MANNING: And in effect, without risking another
12
objection from Mr. King about the Ayers case, and sticking with
13
just the decision the Board has already made in the Ayers case,
14
wasn't the issue in the Ayers case a question of judgment in
15
terms of the amount of work? Wasn't it an issue in the amount of
16
borings?
17
MS. DAVIS: Amount of borings and amount of time necessary
18
to do the work.
19
MS. MANNING: Thank you. Let's go into time frames for a
20
little bit. There's been a lot testimony in the -- there's been
21
quite a bit of testimony in the hearing about the various time
22
frame that it takes, and I believe, when the Agency testified on
23
March 25th, they put an exhibit into evidence that deals with the
24
quick time frames in terms of reimbursement once all the
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