NOTICE OF FILING

RECEaVED

CLERK’S OFFICE

TO:

John Kim

Special Assistant Attorney General

Illinois Environmental Protection Agency

1021

North Grand Avenue East

P.O. Box

19276

Springfield, Illinois 62794-9276

Carol

Sudman

Hearing Officer

Illinois Pollution

ControlBoard

1021 North Grand Avenue East

P.O.

Box

19274

Springfield, Illinois 62794-9274

PLEASE TAKE

NOTICE

that

on

March 26,

2004,

filed with the

Clerk of the

Illinois

Pollution

Control

Board

of the

State

of Illinois

an

original,

executed

copy

of a

Petition

for

Review of Illinois Environmental Protection Agency Decisions and Motion to Consolidate.

Dated:

March 26, 2004

Carolyn S. Hesse

Barnes

& Thornburg LLP

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606

(312)

357-1313

176723v1

Respectfully submitted,

Home

Oil Company

By:

—

~

One ofIts AUo~eys

OF THE STATE OF ILLINOIS

HOME OIL COMPANY,

Petitioner,

V.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

MAR

26

2004

STATE OF ILLINOIS

Pollution Control

Board

)

PCB 02-205, PCB 02-206, PCB

04-1~~

)

(UST Fund Appeal)

)

(Consolidated)

)

)

)

This

filing submitted on recycled paper

as defined in 35

Ill. Adm. Code

101.202

---

CERTIFICATE OF SERVICE

I,

on

oath

state

that

I

have

served

the

attached

Petition

for

Review

of

Illinois

Eivironmental Protection Agency Decisions

and Motion to

Consolidate

by placing

a copy in an

envelope addressed to:

John Kim

Special Assistant Attorney General

Illinois Environmental Protection Agency

1021

North Grand Avenue East

P.O. Box

19276

Springfield, Illinois 62794-9276

Carol Sudman

Hearing Officer

Illinois Pollution Control Board

1021

North Grand Avenue East

P.O.

Box

19274

Springfield, Illinois 62794-9274

from

One North Wacker

Drive,

Suite

4400,

Chicago, Illinois,

before the hour of 5:00

p.m.,

on

this

26th

Day of March, 2004.

C~olynS.He~’

This

filing submitted on recycled paper as defined in

35

III.

Adm.

Code 101.202

2

---

BEFORE

THE POLLUTION

CONTROL BOARD

OF THE STATE OF ILLINOIS

~~ED

HOME OIL COMPANY,

)

MAR

262004

)

Petitioner,

)

STATE OF ILLINOIS

)

Pollution Control Board

v.

)

PCB 02-205, PCB 02-206, PCB

04-I~~

)

(UST Fund Appeal)

ILLINOIS ENVIRONMENTAL

)

(Consolidated)

PROTECTION AGENCY,

)

)

Respondent.

)

MOTION TO CONSOLIDATE

NOW COMES Home

Oil

Company

by

one of its

attorneys, Carolyn Hesse of Barnes

&

Thornburg, pursuant

to

35

Ill.

Adm.

Code

101.406

and hereby moves

to

consolidate the appeal

of Illinois

Environmental Protection

Agency

(“Agency”) decisions

filed on

this

date with PCB

02-205 and PCB 02-2061.

In support ofthis motion, Petitioner states as follows:

1.

An

underground

storage

tank

(“UST”)

appeal

was

filed

contemporaneously with

this,

Motion

to

Consolidate.

Two

UST

appeals

were filed previously related to

this site: PCB 02-205 and PCB 02-206.

2.

All

three

appeals

involve

a

denial

of reimbursement of costs

from

the

Leaking

Underground

Storage

Tank

Trust

Fund

to

perform

corrective

action activities

at property located at 2700

West Main

Street, Belleville,

St.

Clair County,

Illinois.

This property is owned by Home Oil

Company.

3.

All

appeals

are

related

to

corrective

action

activities

for

the

same

underground

storage tanks that leaked.

This

filing submitted

on recycled paper

as defined

in 35

III.

Adm. Code 101.202

---

4.

The

three

different

Agency

letters

denying

reimbursement

apply

to

activities

at the site, but cover different periods of time and different costs

and expenses related to the corrective action activities.

5.

Because

the

factual

bases

of

the

three

petitions

are

closely

related,

consolidating

the petition filed on this

date with the two

previously filed

petitions

into

one proceeding

will

be

more

convenient to

the

Board,

the

Agency

and

Petitioner.

Consolidation

will

also

result

in

a

more

expeditious and complete determination ofthe claims and would not cause

material

prejudice to

any

party.

Further,

consolidation ofthe

claims

will

provide

for

a

more

efficient

administration

of

justice

and

reduce

duplication of efforts

that would

be

required if the appeals

were

handled

separately.

The burden of proof for the three appeals

is

identical

and will

be based on nearly identical facts and background information.

WHEREFORE,

Petitioner,

Home

Oil

Company,

respectfully

requests

that

the

Board

grant its motion to

consolidate the petitions filed on behalfof Home Oil Company.

Dated:

March 26, 2004

Respectfully submitted,

Home

Oil Company

By:

CX

~Q4c-~J~

~

One of Its Att~neys

Carolyn S. Hesse,

Esq.

Barnes & Thornburg

LLP

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606

(312) 357-1313

211459v1

This

filing submitted on recycled paper

as

defined in 35

III. Adm. Code 101.202

2

---

BEFORE THE POLLUTION CONTROLBOARD

RECEIVED

OF THE STATE OF ILLINOIS

CLERK’S

OFFICE

EOME OIL COMPANY,

)

MAR

262004

)

STATE OF ILLINOIS

Petitioner,

)

Pollution Control Board

v.

)

PCBO4-___

)

(USTFund Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

PROTECTION AGENCY DECISIONS

Home Oil Company, by its attorneys, Carolyn S. Hesse of Barnes & Thornburg, pursuant

to

the

Illinois

Environmental

Protection

Act,

415

ILCS

5/1

et. seq.

(the “Act”) and

35

Illinois

Administrative

Code

Section

105.400

et.

seq.,

hereby

appeals certain decisions

by

the

Illinois

Environmental Protection Agency (the “Agency”).

1.

Home

Oil

Company

(“Home”)

is

the

owner of property

located

at

2700

West

Main Street, Belleville,

St.

Clair County,

Illinois.

The site was a gasoline service

station

that had

underground storage

tanks

(USTs)

on

the property which

stored

gasoline, heating

oil, and diesel fuel.

2.

LUST

Incident Number

910367 was

obtained following a site investigation.

The

site was also assigned LPC #1630105092-St.

Clair County.

3.

On

August

29,

2003,

the

Agency

received

Home’s

complete

request

for

reimbursement of

costs

from the

Illinois Underground

Storage

Tank Fund

(the

“Request”) for the period from July

1, 2002

to August

31, 2002,

in the amount of

$17,929.09.

This

filing submitted on recycled

paper as

defined in 35

111.

Adm. Code

101.202

---

4.

The Agency denied certain costs in the Request in a letter dated January 28, 2004,

a copy of which is attached hereto as Exhibit

A.

5.

In

Attachment

A,

Technical

Deductions,

of the

January

28,

2004,

letter

the

following

is

stated, “This

reduction

is

based

on

the lease

and

installation of the

SVE/Vapor

Treatment

system.

The

following information must

be

provided

to

the Agency prior to

the approval of these costs.”

Attachment A then

listed

four

items for which the Agency requested information.

6.

On

March

2,

2004,

CW3M

on

behalf of Home,

responded

to

the

Agency’s

requests for information.

See

Exhibit B.

7.

By

letter

dated

March

22,

2004,

the

Agency

rejected

Home’s

response

to

the

Agency’s request for additional information.

See

Exhibit C.

8.

This

petition

is

timely

filed

because

the

Agency’s

January

28,

2004,

letter

requested

additional

information

and,

thus,

was not

a

final

decision despite the

Agency’s inclusion of its standard language regarding it being a final decision.

9.

The letter

dated

March

22,

2004

rejecting

Home’s response

to

the information

requested by the Agency triggers the appropriate time period for filing an appeal.

10.

Home

is

appealing

this

March

22,

2004

denial

which

relates

back

to

the

January 28, 2004 letter because:

(a)

the Agency denied certain costs by claiming that the owner/operator failed

to

demonstrate the costs were reasonable;

(b)

the Agency is seeking to

enforce rates and procedures for certain activities

that are inconsistent

with rates and

procedures IEPA has

approved in

the

past;

(c)

the Agency is

seeking to enforce rates and procedures for certain activities

that the Agency proposed in proposed rules before the Board;

and

This

filingsubmitted on recycled paper as defined in35 Ill. Adm. Code 101.2021

---

(d)

the Agency’s use of rates and procedures that

have not

been adopted by

the Board is in violation of the Administrative

Procedures Aát.

11.

Home

disagrees with the Agency’s decision and believes that the

costs

submitted

for reimbursement are corrective action costs,

are reasonable and are the types of

costs

that

are

eligible

for

reimbursement

under

the

Act

and

implementing

regulations.

12.

The Agency’s letter denying reimbursement, Exhibit C, which

references Exhibit

A,

provides

no

further explanation

of the Agency’s

reasons or

bases

for denial

that could aid Petitioner in setting forth its

grounds ofappeal.

WHEREFORE,

Home

Oil

Company respectfully requests

that the

Board

enter an

order

that

will

provide that

it be

reimbursed

from

the UST Fund for

its

submitted

costs

and

for its

attorneys’ fees and costs in bringing this appeal.

Respectfully submitted,

Home

Oil Company

By:

________________

One ofIts Att~neys

Carolyn S. Hesse, Esq.

Barnes & Thornburg

LLP

OneNorth Wacker Drive

Suite 4400

Chicago, Illinois 60606

(312)357-1313

211471v1

This

filing submitted on recycled

paper

as defined in 35

III. Adm. Code 101.202

---

~.,

~.

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

1021

NoRTH

GRAND

AVENUE

EAST,

P.O.

Box 19276,

SPRINGFIELD,

ILLINOIS

62794-9276

JAMES

R.

THOMPSON

CENTER,

100

WEST

RANDOLPH,

SUITE

11-300,

CHICAGO,

IL

60601

ROD

R.

BLAGOJEVICH,

GOVERNOR

RENEE

CIPRIANO,

DIRECTOR

217/782-6762

1PEr~FTXTED1

i,LsN

9

~ 2004

JAN

2

.8

2004

~

I

Mr. Keith Stadelman

Home Oil Company

P.O.

Box 571

Carlinville, Illinois

62626

Re:

LPC#1630105092--St.ClairCounty

Belleville/Home Oil Company

2700

West Main

Street

LUST Incident #910367

-.

LUSTFISCAL FILE

Dear

Mr.

Stadelman:

The Agency has completed the review of the request for reimbursement of corrective action costs

from

the Illinois Underground Storage Tank Fund for the above-referenced facility.

The invoices

reviewed covered the period from July

1, 2002 to

August 31,

2Q02.

The amount requested was

$17,929.09.

The deductible amount for this

claim is

$1 5,O00.00, which was previously deducted from the

Invoice Voucher dated October 8,

1991.

Listed in

Attachment A are the costs which are not being

reimbursed from

this request and the reasons the~e

costs

are not being reimbursed.

On August 29, 2003, the Agency received your complete request for payment for this claim.

As a

resultof the Agency’s review of this claim, a voucher for $9,265.11 will be prepared for

submission

to the Comptroller’s Office -for payment as funds become available based

upon the

date the Agency received your complete request for payment ofthis claim.

Subsequent claims

that have beenlare submitted will be ~bcessed

based upon the date complete subsequent billings

requests

are received by the Agency.

This

constitutes the Agency’s final action

with regard to the above invoices.

An underground

storage tank owneror operator may appeal this final decision to the Illinois Pollution

Control

Board

(Board) pursuant to

Section 22.18b(g) and Section

40 of the Act

by filing a petition for a

hearing within 35

days after the date of issuance ofthe final decision.

However, the 35-day

period may be extended for a period

of

time not to

exceed

90

days by

written notice from

the

owner or operator and the Illinois EPA within the initial

35-day appeal period.

If the owner or

ROCKFORD

—

4302

No~h

Main

Street,

Rockford,

IL

61103

—

1813’ 987-771,0

•

DES

PI,\INES

-

9511

W.

HDrrison

St.,. Do~

I’I,,incs,

IL

1,01111,

—

11347; 2)4-4(5)1)

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—

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Sl~tu.Elgin,

IL 6012.1—

‘t-17i

1,08-11

11

•

Po,RIA

-

5413

N.

Univt’rsitv St.,

Puori,~,IL 1,1614

—

131)91

603.5461

3L5E.AL-

I,r

L~.u

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Pcoe,.s—

71,20

N.

Uj,iversjjy St.,

PeuriD,

IL 1,11,14

-

5(11,

1,’) (-541,3

•

Cll.AMI’;I,;’.

—225

S,,uth

First

Str,pt, Chuntx,ign,

IL

1,11121)

-2171 27tt-~______________

SPRINGFIELD

—4300

S. Sixth

Street Rd., Springfield,

IL 62706

—

(21 7

786-6892

•

COLLINSVILLE

—

2009

M,tII

Street, CuIIinsviIIe,

IL 62234

—

11,1111

346-SI 211

MARtc,~

—

2:10’)

\\‘.

tst,,in

SI.. Suite

111,,

M,~riun,

IL

62Q5~1

—

1,1 III 993—72(111.

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---

Page 2

operator wishes to receive a 90-day

extension,

a written request that includes a statement ofthe

date the final decision was received, along with a copy of this decision, must

be sent to the Illinois

EPA as soon as possible.

For information regarding the filing of an appeal,

please contact:

Dorothy Gunn,

Clerk

-

Illinois Pollution Control Board

State ofIllinois

Center

100 West Randolph, Suite 11-500

Chicago, Illinois 60601

312/814-3620

For information regarding the filing

of an extension, please contact:

-

Illinois Environmental Protection Agency

Division of Legal Counsel

1021

North Grand Avenue East

Springfield, Illinois

62794-9276

217/782-5544

i.~TVED

-,

-.

2004

If you

have any questions, please contact Diana Gobelman of my staff or John Barrett of the

LUST

Section

technical

staff at

217/782-6762.

E.

Oakley, Mai~ager

LUST

Claims Unit

-

Planning & Reporting Section

Bureau ofLand

DEO:DLG:mls\043454.doc

Attachment

cc:

CW3M

S

Ly’

---

Attachment A

Accounting Deductions

Re:

LPC #1630105092

--

St. Clair County

BellevillefHome Oil Company

2700

West Main Street

LUST Incident No. 910367

LUST FISCAL FILE

I

Item #

Description ofDeductions

1.

$488.30,deduction in costs that the owner/operator failed to demonstrate were

reasonable (Section 22.1 8b(d)(4)(C) of the Environmental Protection Act).

Per diem

-

time charged and rate; mileage

-

amount billed and rate; hotel

-

nights billed

and rate; handling chargOs for hotel.

DG\thls\043453.doc

---

Attachment

A

~

t~D

Technical Deductions.

-

7(3(JL~

Re:

LPC #1630105092

—

St. ClairCounty

Belleville/Home Oil Company

-

2700 West Main St.

LUST Incident No. 910367

LUST FISCAL FILE

-

Item#

Description of Deductions

$6,519.41,

deduction in costs that the owner/operator failed to demonstrate were

reasonable (Section 22.1 8b(d)(4)(C) ofthe Environmental Protection Act).

This reduction is based on the lease and installation ofthe SVE/Vapor Treatment

system.

The following information must be provided to the Agency prior to the

approval of these costs.

-

1.

A

copy ofthe invoice or bid specification for the SVE/Vapor Treatment System

from the manufacturer ofthe system.

Ifthe invoice or bid specification does

not contain the technical

specifications ofthe remediation system additional

documentation must be submitted outlining the components ofthe system -as

well as individual costs ofthe components;

or

Ifthe remediation system has not been purchased from a manufacturer, the total

cost to construct the remediation system must be provided.

In additional, an

itemized cost breakdown of the material and subcontractors used, and the

personnel required to

assemble the remediation system must be provided that

includes a list ofeach person’s job title, the responsibilities, time spent,

and rate

for each job title.

The specifications associated with the remediation system

should also be provided.

2.

The expected life ofthe remediation system and disposition of all

components

ofthe remediation system once the remediation reaches the end of the

remediation project2tn addition, a reasonable salvage value ofthe remediation

system must be provided.

3.

A list of any additional

costs that may be included

in the purchase price ofthe

remediation system including supporting documentation (i.e., bids, receipts, and

invoices).

---

Page

2

4.

$1393.55,

deduction in costs that the owner/operator failed to

demonstrate were

reasonable

(Section 22.1 8b(d)(4)(C) ofthe Environmental Protection Act).

This reduction is based

on the lease ofthe Mobile Groundwater System.

The

system was installed

on or about July 26,

2002.

The Agency feels that pro-

-

-

rating of the monthly operation is appropriate.

JDB/mls/04345 1 0.doc

~E1VED

---

~JjL~!.LJe’f

..Q.~J3

~J.

?L~cJrJJ

~W~M

Comn~nv

L~1tv1~0nmenta1

Consulting

Services

701

W.Souih

Grv,d A’,eflUe

S~r1ngflc(d,

II..

62704

March 2,

2004

-

Mr.

John

Barrett, Project Manager

-

Illinois

Environmental Protection Agency

Bureau

of

Land,

LUST Section

1021 North

Grand Avenue

East

Springfield,

IL

62794-9276

-

Re:

-

LPC

#1630105092—St.

Clair

County

-

BellevffleIllome Oil Company

-

2700 West Main

Street

LUST

Incident

Number 91-0367

LUST

Fiscal

File—Reimbursement Deductions

-

Dear

Mr.

Barrett:

-

-

-

This letter is

in

response to

the

technical

deductions presented in the Agency’s

January

28,

2004

letter

to

Home

Oil

Company.

In previousreimbursement subniittals, the

Agency

has decided that the

cost estimate

provided

in

the

Corrective Action Plan

which

compared

the

conventional

technology

to

alternative technologies

would

be used

as

a

hard

and

fast

budget.

On the basis

of

the information provided

in

that costs

comparison

the Agency

deducted

costs for the

installation

for the

SVE.system.

Brian

Baner

during

discovery

depositions

testified

to these

facts.

(See

attached deposition,

pgs

51-79).

Additionally

o~n

page

126 of

the

same deposition, Mr. Bauer discusses

allowing

-

$90,000 for

maintenance and

data collection.

This

is the

line item directly below the

lease

rate line items.

On that basis,

CW3M prepared

the

lease rate for

the SVE

system

utilizing

that same cost estimate.

Additionally,

during

a standard

FOIA review,

CW3M

reviewed

the file for incident 97-

2081.

In this project

a line item estimate for

a

AS/SVE Equipment

Rental

was

provided

at

$4,500.00

per month.

No

further

documentation was provided detailing the

cost.

The Agency

approved

the

rental rate

in

a

letter

dated

February

25,

2002.

In summary,

while

CW3M

did

not

pre~are

the

costs estimate provided in the

CAP,

it

was

forced by the Agency -to live

within the

cost estimate

provided

for

the

installation

costs.

The Agency cannot

take

the

cost estimate and

enforce it

as

a budget

in

one

-

instance

and

then

turn around

and not

follow it in

another.

Therefore,

since the Agency

had previously

decided

to

use

the

cost

estimate

as a budget.

CW3M simply followed the

same

procedure

in

establishing

its

monthly

lease rate for the

SVE/Vapor Treatment

System.

Additionally,

through

review

of

the files

of

incident 97-2081,

the

rate of

$4,500

per month for a Soil Vapor Extraction plant was demonstrated to be

reasonable

701

W.

South Grand Avenue

400 W. Jack~ori,

Suite C

—~

Springfield, IL

62704

Marion,

XL

62959

EXHIBIT

(217)522-8001

(618)997-2238

.

-~-~-

Si

Phone:

(217) 522J001

Fa.~:

(217)522.8009

---

and approvable by the IEPA.

Therefore we respectfully request a review-of the

technical deductions to

the reimbursement request.

-

For your convenience, we have included copies of the referenced cost estimates,

depositions,

and relevant information from

incident 97-2081.

If you

have any-

-questions

or

concerns regarding this

information, please do

not hesjtate to

contact either Mr. Jeff

-

Wienhoff or me.

We can be

reached at (217) 522-8001.

Carol L.

Rowe, P.O.

-

-

Senior Environmental

Geologist

Attachments

-

-

-

xc

Mr. Keith Stadelman,

Home

Oil Company

(w/o

attachments)

-

Mr. William T.

Sinnott,

CW~M

Company,

Inc.

(w/o attachments)

Rome Oil 91-0367/iepacorl 6.doc

---

~9.

2002

4:05PM

BARNES

AN~T~ORN8URG

st~Th~in~

Re~e~~ells

(2Q~

Drilling

20 we1L~x30’ xS30Ift~

Well

Instsllation 20 x

$~950

(labor,

~ateria1s,etc~)~.

•

Well

~)ev~1oprnec±

$200 ~20=

Well

Vaults

20 x $1000

~ackhoe.S

days x $200

L~.bor

(ths~1l

well

vaults)

Stays x $175i1~r

(3

people)

x

4brs

Subtotal

—

‘Power

XnstaJ1~norz.

(rawer Pol;

Meter,

etc..)

$2,500

Shipping, O~-load~

Set pad, etc.

$2,500

Montbly Lease (Va~r)

$2,500/month x 3~

~ionths

(3

years) ~

$90,000

Morit~ly

Lease(SVE)

S2,000(naanth

36 mouths (3

years)

S

72,000

Monthly

Opera~o~,

M~inteuancc,

~)ats.

Collec~on,etc.

(3 years)

$90,000

Thitial

St~rtup,

Sa~p~ing,

ct~.

S~5.~5Q0

Suhto~l

$262,500

•

(assume

no repafrs)

~r~Samp1hig

Soi’ b~ings(as~u~ae

20’) 20

boxingz x 20V

~

SiC/ft

$12,000

20 Sa~.ples

~ $175/sample (analysis, sample co11ec~on.)

$3,500

Mobii~±Ion

4 Days

~

$500/day

~2.0QQ

Subtotal

,

$17,500

TOT~.LCOST

=

5352,500’**

(3

years)

(if

remed~ated

iii

2 years assume S2~S~500)

Note:

These

cost

estimates

are for lmp1~x~en.tation

enly, they

do

not

include costs

for

design,

pl.znnirig, permit~ng,

2nd reporting.

NO.989

P~

~4

~PLEMENTATXON

‘COST LSTIMATE

-.

SVE

~j~g~l2ciO’

÷/-~

Treneb.er (Ren.~1)10 days

x

$300

PVC Pipe 2”,

~‘,

~ 4”

$125/ft~ 1200’

Fittings,

etc.

Misc. Equipment, Field ?urohases,

etc.

Labor (lr~staU

Piping)

10 Days x 5175 (3 people)

x

10 hrs

$I~’0°0

$19,000

$4,000

$4,000

•$~,o00

J1500

$49,500

$3.;000•

$1,500

$500

$500

SI ~

52.3,000

I

I

I

I

I

‘I

I

TCT~LP.~

---

1

STIPULATION

2

It is stipulated

and

agreed, by

and

•

between the

parties hereto, through their

3

attorneys, that

the deposition

of BRIAN BAIJERmay

be taken

before Julie A. Brown, a Notary Public and

4

Certified Shorthand Reporter, upon

oral

interrogatoriee, on the

19th of December AiD.,

5

2002, at the

instonce of the

Petitioner at the hour

of 9:05 o’clock A.M.,

1021

North Grand Avenue East,

6

Springfield,

Sangomen County,

Illinois;

7

That the oral interrogatories and

the

answers of the witness

may be taken

down in

shorthand by the Reporter and

afterwards

tronscribed;

That all requiremenu of the Civil

10

Practice Act and

the Rules of the Illinois

Pollution Control Board

as so

dedimus, are

11

expressly waived;

12

That any objections as to competency,

materiality or relevancy

are

hereby reserved, but

13

any objection

as to

the form of question is watved

unless specifically noted;

14

•

•

-

That the deposition, or any parts thereof

15

may be used for

any

purpose for which

depositions

are competent, by

any of the

parties hereto,

16

without foundation proof;

17

That any party hereto may

he furnished

copies of the

deposition

at tao or her own

expense.

18

t9

20

21

Brian Bauer

Condenselt!~

12119/02

•

•

•

Page3

INDEX

2

DEPONENT

PAGE NUMBER

•

3

Brian Bauer

•

4

Examination by

Ms. Hesse

5

5

6

7

8

9

1

BEFORE

THE

PoLLuTION

CONTP.OL

BOARO

2

OF

Tat

STATE

OF

tLLItlOt5

3

HOME

Ott

cOt4pAstY,

4

?etit~oner,

5

vs.

No.

?CS

12—215

•

tl©.

9CR 02—256

ILLtNOtS

EtNIROtt?CNTAL

/

7

PROTECTtON

AoEttCI,

Respondent.

it

11

THE OEPOSITION of

BRIAN RACER,

taken

ia

12

the

above—entitled

case before Julie A. Bcswn,

a

12

Notary

Public

of

Christian

County,

acting

within

14

a.nd

for

the

county

of

aangassozt,

State

ef

Illinois,

13

at

9:55

o’clock AM.,

on Oecetsber

19, 2002,

at

1021

16

North orand Avenue East,

spriagfield, sangamsa

17

County,

tilinois, pursuant to notice.

Is

19

25

21

22

Baidwin Reporting

t Legal—Visual services

22

Serving

cllinois,

tadiana

a

Missouri

24hrs

217)758—2835

Fax

(217)785—2535

24

1—800—248—2835

£ X H

I

B

I.T S

MARKED

FOR

LDENTIFICATION

•

22

24

25

55

66

73

77

79

85

133

10

11

NUMBER

Exhibit

1

12

Exhibit

2

Exhibit 3

13

Exhibit 4

Exhibit S

14

Exhibit

6

Exhibit

7

15

Exhibit

B

Exhibit

9

16

Exhibit 10

17

18

19

20

21

22

23

24

Page 2

APPEARANCES:

BARNES &

ThGRNBTJXD

BY:

Carolyn S. Hesae, Esq.

10 South

LaSalle Sbtet

Chicago,

Illinois

60603

On behalfof Petitioner.

BARNES

& TDRNBURG

BY:

Beth

A.

Harvey,

Esq.

10

South

LaSalle

Street

Chicago, Illinois

60603

On behalf of Petitioner.

MIS. JDHNK1M

Attorney at

Law

Illinois Environmental Protection Agency

1021

North Grand Avenue East

Springfield, Illinois

62702

On behalf of Respondent

ALSO

PRESENT:

Mr.

Jeff Wienhoff

Page

2

3

4

5/

6

/7

9

10

11

12

13

14

15

16

17

16

19

20

21

Li

~.

~

Li s~

‘:Jr5~

Baldwin Reporting

& Legal-Visual Services

~e2-Page

---

12/19/02

Th~

Condenselt!

Brian Baiier

1

(Whereupon the Deponent was

2

sworn

by the Notary Public.)

3

BRIAN

BAUER

4

having been

first duly sworn

by

the Notary

Public,

5

deposeth

and saith

as follows:

-

6

EXAIvffi’~’ATION

7

-

~YMS.HESSE:

8

Q

Let the record reflect that

this

is

a

9

deposition that’s being taken pursuant to the

10

Illinois

Civil

Procedure Rules

and the Illinois

11

Pollution Control Board Rules

and that it’s being

12

taken by

agreement of the parties.

We agreed to

13

the time

and the place for the deposition.

14

M.r. Bauer,

I represent Home

Oil Company

15

in an appeal,

actually two appeals that

were

filed

16

before the Illinois

Pollution Control Board.

My

17

name

is

Carolyn Hes-se and sitting next to me is

18

Beth Harvey who’s

also

an attorney with the same

19

law finn.

-

20

Could you state your full name and spell

21

it,

please, for the

Court Reporter?

-

22

A

Brian

Philip Bauer, B-R-I-A-N,

-

-

23

P-H-I-L-I-P, B-A-U-E-R.

24

Q,

Have you ever been deposed before, Mr.

1

Batter?

Page

6

2

A

No,Ihaven’t.

-

3

Q

So

I’m going to quickly

go

over

a few of

4

the

procedural things with the deposition.

All of

5

your

answers need to

be verbal.

The

Court Reporter

6

cannot take

down a nod ofthe

head or a shake of

7

the

head or

anything

else.

All

she can take down

8

is what you

and I say--

9

A

Okay.

-

10

Q

(Continuing.)~-

during the

deposition.

ii

Also, she can

only

get down what

one of us

is

12

saying

at a time.

So

that means I

have to

remember

13

not to

interrupt

you

and when you’re

answering

a

14

question

and likewise, if you’ll let

me finish a

15

question, that

would

be

good.

16

A

All right.

17

Q

If you need to take

a break, if you want

8

to get a drink of water, go to the re.~troom, have

~9

to mii:e

an

important

call

or anything

like

that,

20

let

me

know

and we can

take a break.

21

.-~

Okay.

22

Q

This

is

not

meant to be a tonnre

23

chamber.

I did not bring bamboo

shoots,

just

24

paper.

So

nothing under the fingernails.

1

A

All right.

-

2

Q

If you

do not understand

a question, let

3

me

know because it’s very important that you

4

understand the

questions I’m

asking

and if you

do

5

answer a question, I will

assume that you

6

understood the

question.

7

A

Okay.

-

-

-

8

Q

Understood?

Your testimony here

is sworn

9

testimony.

You’re under oath.

It’s as if you’re

10

in

a

court

room

and because you’re sworn to tell

11

the truth,

adverse consequences could result if you

12

do not

do

so.

Do you

understand that?

13

A

I understand.

14

Q

Did you review any documents

to prepare

15

for

the

deposition

today?

16

A

I looked over the

file a

little

bit

17

yesterday.

18

Q

Okay.

By

the file, what are you

19

referring

to?

-

20

A

The

LUST

technical division file, I

21

guess.

The whole, you know, what we have in

our

22

file room.

-

-

23

Q

Okay.

To your knowledge,

was

everything

24

thatwas produced in that part of the

1

administrative

record?

-

2

A

Yeah, I believe so.

I

-think

it

was.

3

Q

Okay.

4

A

Basically the same thing.

5

Q

Were there any other documents that you

6

looked at to prepare that were not produced as

part

7

of the

administrative

record?

8

A

I looked over the

interrogatories that

9

was in part of the record.

Wasn’t

it?

I looked at

10

that.

-

-

Q

I’m going to ask you a little bit of

questions about your background too.

-

A

Okay.

Q

What

is your educational background?

A

I got

a bachelor’s of science in

Biology.

Want to know the school?

Q

Yes, please.

A

From

Northland College, Ashland,

Wisconsin.

I

have

a master’s from

U ofI.

uls

actually

here in Springfield in environmental

studies.

Q

Okay.

When did

you receive your

bachelor

A

1990.

-

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P~irrt~

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-

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---

~nan

Bauer

Condenselt!

I

Q

Andyourmaster’s?

2

A

Idon’tremember.

‘96, ‘97. I’mnot

3

really

sure.

One of those

dates.

4

Q

And if

you’re not sure of an answer, just

5

say you’re not sure.

-

6

A

I’m really

not.

I’d

have

to look

on

the

7

paper.

Q What kind of courses did you take in

environmental studies?

-

A

Risk assessment when I was there. Then I

had some general classes, like environmental

humanities, environmental economics, ecology

type

of classes.

-

-

-

Q

What kind of

environmental

risk

assessment courses were they?

-

A

You

mean--

-

Q

The term risk assessment-has

been- applied

-

different ways

and I’m curious

as to what

kind of

risk assessment you

studied.

Was it

the

probabilistic, statistical analysis- type

of

things

-

or was

it’more policy oriented?

A

It was

more figuring out what an

-

individual’s risk was from

exposure to

a

particular

chemical

in figuring

Out, you know, based

on, it

Page

10

1

was

all mathematical

modeling, I would say in that

2

aspect.

I

mean there was

some policy but inos,t

of

3

it was

trying to calculate a person’s

risk of,

you

4

know, of having cancer or something like that from

5

an exposure to a particular

chemical through

afl

6

the different pathways.

-

7

Q

Where do you reside?

-

8

A

In

Dawson.

-

9

Q

Could you explain to me your employment

10

background?

For example, how long have you worked

11

at Illinois

EPA?

12

A

I’ve worked at the Illinois

EPA

in that

13

section since April

of

‘92.

14

Q

Were you employed before

that?

15

A

Yeah, on and off at different,

you know,

16 jobs while

I was going

to school.

Nothing--

17

Q

Whatkindofjobs?

18

A

Oh, I’ve

worked in

a warehouse, worked in

19

a gas station.

I went

to forest service,

fighting

20

forest fire, trails, stocking shelves at a grocery

21

store for a long time. Things like that.

22

Q

And

youmentioned you’ve been at

IEPA

23

since

1992?

24

.‘~

Correct.

Q

And what

was

your first

job with Illinois

2EPA?

-

A

Project manager

for the

LUST Section.

Q

As

a project manager, what

do

you do?

A

Review technical reports

and corrective

action plans, reimbursement requests.

Just

all

kinds

of anything they ask of you, I mean I guess.

Q

Have -you done any other jobs

at Illinois

EPA Since being the

project manager or

in addition

to or other than being a project manager in the

LUST

section?

A

For,

it was

about nine

months, I

temporarily was

assigned over as

the unit manager.

Q

And when was

that?

-

A

Last year.

I believe it’s, I started in

July of,

I think 2000.

Yeah, I think July,

about

eight

or nine

months from there.

-

-

Q

And what was your job function

as a unit

manager?

20

A

Ijust

oversaw the,

abdut

six

project

21

managers, their daily

work.

Signed the letters,

22

you know, personnel type issues and I didn’t

23

maintain a lot, there was

some project management

24

at that time because I was temporary.

So

I had,

I

had a full deck then.

-

Q

Okay.

Since you’re the first one I’m

deposing from Illinois

EPA,

could you explain to me

how is

the Leaking Underground Storage Tank Section

organized?

-

-

A

Sure.

The

section manager is

Doug Clay

and then there

are

five

unit managers, I believe,

and each unit manager has

about seven, eight,

I

think one has nine project managers underneath them

-

where they report

to them.

Q

And the unit manager reports

to the

section manager?

A

Correct.

-

Q

And then

there’s seven to nine--

A

Project managers.

Q

(Continuing.)--project managers. How do

projects

gets-assigned to a project

manager?

A

By

the unit manager.

Q

Does

the,

how

does the

unit manager

detennine who’s going

to

look at which project?

For example,

if,

is

it.

well,

is there some

rationale?

Does he look at the work load

of the

person?

A

Yeah.

I would

assume so.

I can’t speak

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Baldwin Reporting & Legal-Visual Services

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12/19102

Condenselt!

Brian )3auer

Page

13

for

the

other unit managers

-

and how they

do it.

I

really don’t know how the other unit managers

do

it.

I know how I

did it

when I was

assigned the

project.

You would have to definitely look at what

they ha-ye due

coming

up,

you know, how much time

they have, what other projects

they have on their

plate.

There’s a lot of

different factors that

-

would fall into that.

ç

Who

is the unit manager for the unit

you’re in?,

-

A

Hany

Chapel.

-

Q So if youwere asked to look at a special

reimbursement request,

Mr.

Chapel would ask

you to

doso?

15

A

He might, yes.

16

Q

When projects- are- assigned, for’ example,

17

Home

Oil, would, how would that assignment be

18

made?

Would it be a particular Home

Oil report

or

19

would the whole Home

Oil file be

assigned to a

20

particular project manager?

21

A

Are

you

asking how I

got assigned to it?

22

MR.

KIM:

Can I

ask

that you

clarify?

When you

23

say report, what

type

of--

24

MS.

HESSE:

Q

Well, for example,

a report

Page

14

1

such as a corrective action plan.

2

A

Uh-huh.

-

3

Q Would, when,- whatI’m trying to find out

4

is when the

assignments

are made is how are the

5

assignments generally made?

Does the project

-

6

manager say I’m assigning Home

Oil to you?

You get

7

everything that comes into

Home Oil

to

look

at or

8

would

the

unit manager sa~

to

the

project manager

9

here’s

a report on this particular file, look

at

10

it?

11

A

They should,

a project manager

gets

12

everything

once they’re assigned

to the project.

1.3

But

that, I’m not

the technical project manager on

14

the Home

Oil

site.

-

15

Q

Who

is

the

technical

project manager?

16

A

I believe

it

was

assigned

to

John

Barret.

17

Q

John

Barret?

18

A

Yeah.

19

Q

Is John Barret still with

IEPA?

20

A

Yes. He was not the project,

there

was

21

no one

assigned to the project, I believe, when the

22

reimbursement claim

came

in.

23

Q

So

John

Barret

is now the technical

24

proJect manager?

Page

15

1

A

That’s what the

database indicates.

I

2

don’t think he’s worked on it.

3

Q

And you said there was

no technical

4

project manager assigned when the reimbursement

5

request came in?

-

-

6

A

Correct.

-

-

-

-

7

Q Now, does the technical project,manager

8

also review

reimbursement requests?

9

AYes.

-

10

Q

Are there ever separate

teams of people

11

that review whatwas done technically and what the

12

reimbursement request was for?

13

A

I don’t understand what you’re saying

but

14

I think I’ll

answer.

I,

as part of one of my other

15

duties, I review all reimbursement requests that

16

have no project managers

or

projec-t managers that

17

have left the

agency or went

on to another

18

section.

I review all of those.

I volunteered for

19

that

like

two years ago

or something like

that and

20

just for

consistency purposes, they asked me if I’d

21

do that.

So I’ve been

doing that for a while.

22

q

So that’s one of your

jobs,

is kind

of

23

orphan sites in a way for a project manager?

24

A

For reimbursement.

Page 16

1

Q

For reimbursement

purposes.

Do you ever

2

review projects for

the technical

purposes?

3

A

Yes.

Yeah.

-

4

Q

Okay.

Have you done

any of that for Home

SOil?

-

A

No.

I’ve never done anything on the

technical side for this site.

Q

So on Home Oil, you’ve only looked at

reimbursement requests.

Is that

correct?

A

Yeah.

I mean I’ve looked at the

technical file with it but I didn’t make any

technical decisions.

Q

Just, I’m just trying

to make sure I

understand

and it’s

clear

to me because things

are

a

little mystery sometimes when

you’re not within

the agency.

So,

there

might be a technical

project

manager who would look

at something like

a

corrective action

plan

or

another

type

of work plan

and look

at

that for its

technical

merits.

Is

that

correct?

A

Cortect. yeah.

Q

And then there may

be another person

who

doesn’t.necessarily look

at a work plan

for its

technical

merits’but may still read the work plan.

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Brian ~auer

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1

Is

that correct?

2

A

Ijust

looked

at itto

compare

it

to, I

3

look

at

the technical,

to

do a technical bill

4

review, you have

to look at

the, the technical

-

5

documentation.

-

6

-Q

And what is the purpose?

7

A

To see

if they’re

consistent.

I mean

g

there has to

be documentation in order for, for

9

reimbursement to be made, technical

documentation.

10

If there’s

nothing that says

they did, they’re

ii

billing u~

for 20

borings but there’s no

report

12

that says they

did

20 borings, the

agency, they

13

would cut

that.

There’s no technical

documentation

14

for

it

and that’s what I was

doing, whatI do

15

sometimes.

-

16

Q

About how

many projects are assigned to

17

younow?

18

A

Technical?

19

Q

Technical’.

-

-

20

A

Anywhere between three and -four hundred.

21

Q

And how many projects are

assigned to you

22

now for fiscal review?

23

MR.

KIM:

Let me ask, when you say, can

you

24

clarify what you mean by projects?

Page

18

1

MS.

HESSE:

Okay.

2

MR.

KIM: Just so

we’re

on the same page.

3

MS.

HESSE:

That’s a good point, John.

-

4

Q

By projects, for example, if someone

5

comes to you

and says I ‘want you to

be in charge of

6

reviewing

all the technical documents for Home Oil,

7

I would call that one project?

-

8

A

lJh-huh.

-

9

Q

Okay.

10

A

Yeah.

-

-

11

Q

So does that change the answer to your

12

question?

-

-

-

13

A

The, I guess-on a database, if you looked

14

up mn.y

name,

there would be between.three and four

15

hundred

Sites that-were,

anything that ever came in

16

on

those

sites.

Some of

those sites

might not

come

17

in for years

or

be closed, but probably.

18

Q

About ho~many active

ones

do

you deal

19

with at any

given time?

20

A

How

many?

21

Q

How many sites--

22

A

Do I

have-sitting on

my

desk?

23

Q

Let’s

start with that,

That’s-a good

way

24

to

define

it.

How many files

do

you

have sitting

Page

19

1

at your

desk that

need to be reviewed or youjust

2

reviewed or things are happening on at the current

3

time?

-

4

A

I would probably say there’s

20, 25

-

S

different reports

sitting on my desk right now that

-

6

need to be reviewed, technical reports.

7

Q

How much of your time sort of percent

8

wise

do

you spend looking -at the

technical reports

9

giving technical review versus

the, fiscal reports

10

pending fiscal review?

-

-

II

A

I’d probablysay 50 percent ofmy time is

12

technical

and maybe

30

percent would be for

-

13

reimbursement reviews.

14

Q

What do

you do

the other 20 percent?

15

A

Give depositions. ~No.

I

do some other,

16

other, I’d say other duties

as

assigned.

17

Q

Under-the LUST section or

other,

-serve

18

other functions for the Agency in general?

19

A

Under

LUST and research,

stuff like

20

that.

-Other work groups, things like that.

I

21

would do

that.

-

22

Q

What kinds of research do you do?

23

A

Presently, I’m working on

a, redoing the

24

budget forms, budget billing forms, taking up

quite

a bit of my

time.

Q

Would those be the

budget forms that

someone who’s doing a LUST clean up would fill out?

A

Yes.

-

-

Q

And not

agency budget forms for personnel

or other expenses within Illinois

EPA?

A

No.

It’s

for outside to submit to the

agency for clean ups of, LUST clean ups.

Q

And how did you happen to

get involved in

the Home

Oil site?

A

It was

a site that was given to me

-

because there was

no project manager at the time.

Q

And how long has John Barret been the

project manager?

A

I have no

idea.

--

Q

Okay.

Is he new at IEPA?

-

A

He’s not that new.

I mean I’d

say he’s

been here over a year, maybe.

Probably longer

th-an

that.

Q

What I’d

like to do

is go through

the

reimbursement request packages and some of

the

notes

that were made.

Some of the questions may

be

questions for you.

I know other people have worked

on

this

also.

Page

17

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Baldwin Reporting & Legal-Visual Services

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A

1Th-huh.

Q

And like I said before, you’re the first

one I’m talking to so you’re -going to

get probably

the

most questions

until

-I

can

get things narrowed

down.

-

A

Okay.

Q

Okay?

The reason I’m going through

all

of these

is we have the

denial letters and it

basically describes deductions but I feel ‘like if

we go

through this, we’ll

have, a better

understanding what the

deductions were

about.

There were two denial letters sent to Mr.

Stadelman at Home Oil.

One is

dated-May 2nd,

2002.

Another is dated August 22nd, 2Q01.

This

was

a later letter also,

was part of our appeal.

MR.

KIM: What

are the

first two letters that

you referred to?

What are the dates?

-

MS. liESSE: It’s the August

22nd,

2001

letter.

MR.

KIM: Okay,

and looking for an April

or a

May -letter?

MS.

HESSE:

There’s

the May 2002

letter, May

2,

2002.

MR.

KIM:

April

19, 2002?

Is that what you’re

looking for?

-

MS.

HESSE:

Yes.

MR.

KIM:

I

have a copy of it.

I’ve got the

letters if you

need him to look at something.

-

That’s

fine.

-

MS. HESSE:

The August letters.

Okay.

Do you

have copies?

Could you mark this as Deposition

Exhibit

1?

8

(Whereupon said document was

9

dulymarked for purposes of

10

identification

as Exhibit I,

11

as

of this

date.)

12

MS.

HESSE:

Q

Mr.

Bauer, I’m

showing you

13

what was marked as Deposition Exhibit Number I.

14

Could you identify what that is, please?

A

The August 22nd, 2001

LUST

fiscal

letter.

Q

Okay, and in the letter; did

you,

by

the

fiscal

letter, is this a letter that Illinois

EPA

-

sent to Home Oil denying request for reimbursement?

.‘~

Yes.

Q

Did you prepare this letter?

.‘~

No.

I prepared

Attachment A,

technical

deductions

is

the

only thing that I would have

prepared.

It has

been

retyped by someone

else,

but.

Brian B a-uer

-

Page

23

1

Q

So you

prepared the

description that said

2

there was

an

581,548.90

deduction?

3

AYes.

-

--

4

Q

When you used the

phrase deduction for

5

costs

lacking supporting

technical documentation,

6

what

did you mean?

-

-

7

A

That

the,

that the work, I’m trying

to

8

figure

out where we’re at here.

I believe this is

9

the one that, we first denied it

because there was

10

no

reports in the technical file

documenting work

11

that was

done

so

we couldn’t make any comparisons

12

to, what was

done and

then these two letters, May

13

2nd and the April

19th,

2002

letters

are like a

14

complete review of it after we received the

15

technical

documentation.

Is that what you, I

16

believe that’s what was

the case.

17

-

Q

So the

first letter ~as

the, you believe

18

there was not sufficient technical information in

19

the record,

a report

or

something?

20

A

Correct.

-

2i~

MR.

KJIvI: I

know it’s

going to be confusing but

22

maybe because there are three different letters

23

with three different dates,

should we just, if you

24

say

first, second or third letter, should wejust

-

Page 24

1

assume you’re referring

to whatever letter and just

2

do

this

in chronological order so--

3

MS. HESSE: Yes.

4

MR.

KIM:

So letter one would be the letter

5

dated August 22nd, 2001.

Letter two would be the

6

letter dated April

19th, 2002

and the letter three

7

would be the letter dated

May 2nd, 2002?

8

MS.

HESSE: That’s fine

with me.

-

9

MR.

KIM:

Okay.

Just for ease

of reference.

10

MS. HESSE:

Q

After letter number one was

11

sent,

did Home -Oil submit a report that described

-

12

the work that was

done?

13

A

I believe

so.

14

-

-

MS. HESSE:

Could you mark this

as

Exhibit 2?

(Whereupon said

document was

-

duly

marked for

purposes of

identification

as

Exhibit 2,

as of this

date.)

MS,

HESSE:

Q

Mr.

Bauer.

I’ll show you

what’s been marked as

Deposition

Exhibit Number 2.

-

Could you identify

that.

please’?

A

A corrective

action status report

received September

2 8th,

2001.

Q

Okay.

Would you refer to the report

Baldwin Re-oorting & Legal-Visual

Services

12/19/02

‘

CondenseIt!~

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Pric7e

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---

Brian

Bauer

Condenselt!

itself rather

thanjust the cover sheet?

Does

this

appear to be a report -that was submitted to the

agency to provide

the technical information that

was referred to in

letter number one?

-

A

Yes.

-

-

Q

Did ynu review

this report?

A

I looked at

it

in conjunction with my

review of reimbursement package.

Q

There’s

a phrase in here releasable

November 27th, 2001, Reviewer MM.

Who- would that

be?

Its

stamped

on there with apparently an

-

agency stamp.

A

I don’t know.

I could take a guess.

Q

Okay.

Guess.

-

A

It’s the

screeners from

FOIA.

I

think

it’s

a

FOIA

screener.

-

MR.

KIM: I

believe that’s correct.

I believe

MM refers to Mark McClain who is one of the

FOIA

screeners for the Bureau ofLand.

MS.

HESSE:

Could

you mark

this

as.

Exhibit

3?

(Whereupon said documentwas

duly marked for purposes of

identification as Exhibit

3,

as

of this

date.)

-

-

Page

26

i

MS.

HESSE:

Q

Mr.

Bau.er, I’m going to hand

2

you what’s been marked as Deposition Exhibit Number

3

3

and ask you to identify that, please.

4

A

The

Apr11

19th, 2002

agency letter to

5

Home

Oil

denying reimbursement claim.

6

Q

Since you have

another copy, I’ll take

7

this

one back.

&

A

Sure.

9

Q

And what was your role in review of this

-10

reimbursement claim that’s referenced in letter

11

number two?

12

A

I reviewed

it.

I

did a technical review

13

of

the reimbursement claim

and, you mean as part of

14

the letter?

You want to know what I

did?

15’

Q

Well,

as part of the letter.

Did you

16

draft any part of

the letter or

attachments?

17

A

I would

do Attachment A,

technical

18

deductions.

I would just note that someone else

19

retyped my letter, just in case

it

wasn’t the exact

-

20

same thing that I wrote.

-

21

Q

Who is Kevin Mably?

22

.1

He’s

the accountant reviewer.

23

Q

Does he work

for Doug Oakley?

24

A

Yes.

12/19/02

Page 27

1

Q

And you work for Harry

Chapel directly?

2

AYeS.

-

3

Q

Are these both separate

unit that both

4

report

to

Doug Clay then?

5

A

The

LUST claims

unit which- Doug Oakley

6. and Kevin Mably are

in

do

not report

to

Doug Clay.

-7

They report to Bill .Razinsky who is

a different

S

section, I believe.

I mean I evep get confused on

9

the bureaucracy of our agency about who goes

to

10

where and stuff but

that’s,

they do not report to

11

Doug.

Doug Clay does

not

have control over Doug

12

Oakley or Kevin

Mably.

--

-

13

Q

He has

control over the technical

14

reviewers?

15

A

Yes.

16

Q

The technical aspects

of the

LUST

17

program.

-

18

‘A

19

Q

20

fiscal

21

A

22

Q

23

A

24

Q

-

Page,28

could you

go through the items in the

description

and giveme an explanation of what these are about?

A

Okay.

Item

one for 52,242

deduction,

owner operator failed to

demonstrate were

reasonable.

The

deduction was for the

rate of the

field supervisor and per

diem rate and the rate

that they charged was

deemed not reasonable so it

was adjusted accordingly.

Q

Why

was

there, why or how was

it

deemed’

not

reasonable?

In

what sense?

-

A

That the rate used was

too

high.

Q

How do you go

about,

I assume you see

a

lot of reimbursement requests.

Correct?

-

A

Yes.

-

Q

How do you determine

if a rate is too

high that’s being requested for reimbursement’?

MR.

KIM:

Answer it if you can answer.

THE DEPONENT:

Iknow

the answer. We have

comparatory rate

sheets.

MS.

HESSE:

Q

And what’s

on

the rate

sheet?

A

All

the different rates

for eve~hing

that we come across in

our review.

-

Q

How

was

this rate sheet developed?

Let me

ask first, who developed

the rate

Page

25

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24

That’s

correct.

Okay,

and Doug Oakley

is more of the

financial

accountant?

Correct.

-

For lack of a better term.

Yes.

Reviewers.

In

the technical deductions,

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Reporting

&

Legal-Visual Services

~e25-Page

---

l2/19I0~

Conderiseit! ~

Brian

Baner

1

sheet?

A

Who developed

it?

Q

Yes.

Did you work on developing it?

-

--

A

Yes, I did.

-

Q

Did

anybody else work

on developing

it?

A

Some of the costs were

done with Doug

Oakley’s group

and I can’t think

of his name.

Bill.

Q

There’s

a lot -of people named Bill.

If

you

remember later, you can tell us.

A

You can

ask Doug Oakley.

He’ll know who

actually

worked on

it.

-

I think there are numerous

accountants actually worked on

it

to gather data

on

his side and I did, -worked

on it

on

the technical

side.

-

16

Q

-

-What

kind of work did-you do on the

17

technical side to come up with the information?

18

Howwould you obtain information?

-

19

A

I get copies of budgets, of all the

-

20

budgets

submitted:

Just do a statistical analysis

21

of those budgets.

-

22

Q Okay. What kind of statistical analysis

23

did

you do.orhow

did

you go about doing this?

24

A

Well, youjust, like for a certain item,

Page 30

i

you would look at, you know, as many,we take a

2

random sample of the budgets for

any certain time

3

period that

came

in,

‘add up

all

those costs, take

4

the average

and the standard of deviation and that

5

would be your maximum cost.

6

Q

When

you say for a certain item,

what

7

‘kind

of item

are

you. talking about?

8

A

It could be a personnel rate.

It

could

9

be

a,

a piece of equipment.

Say

a

PID,

a

10

photoionization detector that runs per day.

11

Q So you have

charts

that list all these

12

rates for each

of these individual items,

like

13

renting a

PID

or

renting a backhoe or rates

of

14

different people?

15

A

Yes.

16

Q

How

do you

determine appropriate rates

17

for people’?

-

-

18

-

A

We have

a general.

I guess

like job

19

description and

they would have, we’ve gone through

20

the titles

and

lump

together because each

21

consultant calls

their

people different. Okay?

So

22

it

would

lump together what they would do by task,

3

what

the people

were doing

and

so that

it

could be,

24

so that, just so that.

you -know, just

not because

1

they call

it

that they’re notgoing to get that.

2

If they’re not doing that task, they would be in

3

the particular title.

I think that makes sense.

4

,

Q When w~rethe rates

developed?

5

A

I don’t know. We’ve had rates for a long

6

time.

-

7

Q Okay. Two years?

Three years? Five

8

years? Ten years?

Fifteen years?

9

A

Our

first rate sheet came out probably

10

around a little after Title 16 came into effect for

11

budgets. So ‘90, youknow, maybe ‘94, around

12

there.

Imean it’s a guess.

-

13

-

Q Have any adjustments been made to those

14

rate sheets?

15

A

All the time.

All the time.

16

.

Q What kind of adjustments do you make?

17

Youbeing what kind of adjustments does Illinois

18

EPAmake?

-

19

A

Well, we’ve

taken

samples,y~uknow, and,

20

of what people

are

submitting and readjust the

21

rates based on what’s out there today, 2002, as

22

compared to what we’ve done in 1994. The rates

23

have definitely

changed.

So

we--

24

Q So the rates you’re usingnow are the

1

current rates?

-

2

A

They’re based on the recent data, yes.

3

Q Recent data?

-

4

A

I’mnot sure about, because when this

5

deduction was made,

if’,

you know, ifthere’s

a, a

6

new rate or not, I don’tknow offhand.

-

7

Q When looking at rates for personnel, is

8

any allowance made for the experience of the

9

person?

A

Maybe to some extent but it’s pretty much

based upon a task.

I don’t think thatwe could

differentiate from someone that had20 years doing

one thing and 10 years doing the same thing.

It’s

based on a task.

Usually more experienced people

do different tasks.

So maybe there is some

experience based in that.

Q How about is any allowance made or

flexibility

made for complexity of the site?

MR.

KIM:

Can we clarify’?

When

you say

allowance, you know, when this is taken into

account, are you referring

to when, developing the

information

on

the rate sheet or

are you referring

to

when reviewing

a reimbursement package’?

MS.

HESSE: Well,

let’s

ask that

as two

Ra~dwinRei.orting

& Legal-Visual Services

Page 29

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---

Brian Bauer

Condenselt! ~

i

separate

questions.

Good point, John.

2

Q

In developing the rate sheet,

is

3

there any allowance or

consideration taken into

4

account for

the experience of the person?

For

s

example,

do

you have

a separate rate

for field

-

6

supervisors

who’ve had five years of experience

.7

versus

ones

that have had 20

years

of experience?

8

AN0.

-

9

Q

When allowing requests

or reviewing

-

10

requests for reimbursement,

do

you take

into

11

account a field supervisor at a simple

site who’s

12

had five years of experience versus a field

13

supervisor at a

site that’s complex and has had

14

more experience?

15

MR.

KIM:

Can you clarify what you mean by

16

simple and-complex?

I know they’re somewhat

17

generic but just so there’s some kind

of dividing

18

line somewhere.

19

MS.

HESSE:

What I’m trying to do with those

is

20

differentiate some of the sites that

do not have,

21

for example, by a simple site, a site where the,

22

whatever it is that needs to be done is something

23

that’s relatively straightforward versus a site

24

where youmayhave issues where contaminations

-

Page 34

migrated off site or it’s a site that due to

neighboring structures, existing structures or

other factors might be, require a greater level of

skill to

dealwith.

Does that clarify it any?

MR.

KIM:

I

think that’s, well, the

point I was

trying to make is, Mr. Bauer can

answer the

question

if he’s

able but Ijust wanted to sort of make

clear that it’s

a,

generally speaking

it’s a

subjective kind of question because some people

are

going to say my site is

simple

and other people

might look at it and say it’s

a very complicated

site and vise versa but with the sort of

-

-

qualification of

the description you’ve given, if

Mr.

Bauer

can answer, go right ahead.

THE

DEPONENT:

I

don’t believe so.

MS. HESSE:

Q

So if a site

is complicated,

so ifthere’s

a complicated site with off site

migration issues,

with-traffic pattern issues, with

sui+ounding building structure issues, there would

not

be reimbursement for

a field supervisor who’s

more experienced

in dealing with those type of

issues

as

opposed to a green supervisor who’s on

his first tank pull?

In other words.

a field

supervisor is

a

field supervisor

is a field

I

supervisor.

Is that right?

-

-

2

A

I would suppose

so.

That information

3

though is not usually provided into, for us saying

4

that so we never really, that’s never come up.

5

They don’t

provide that information to us

sayiI~g

6

that I got 20 years- of experience, I should get

7

more.

I don’t know but I would add too that we

8

would, if additional information, youknow,

Special

9

circumstances arise, we would, we domake those

10

considerations on rates or things like that

if

they

11

provide additional

documentation or

something that

12

would justify

that.

-

13

Q

Going back to the sheet youhave

with the

14

various rates, is therejust one set ofnumbers on

15

the sheets or are there several numbers on ‘the

16

sheets like the mean and one standard deviation?

17

How are the sheets set up?

18

-

A

It’s amaximum rate.

-

19

Q So on the sheet the onlynumber there is

20

the maximum rate?

21

A

Correct.

22

Q

In

developing the rates, for example, for

23

just one, for example, renting

a PID--

24

A

Uh-huh.

Q

(Continuing.)--what

is the range of cost

that

would be

considered for

a

PD rental?

I don’t

know what they rent for.

Say they rent for a

hundred dollars

a day--

A

Uh-huh.

Q

(Continuing.)--on average,

What would

the maximum rate be allowed

for a

PID?

MR. KIM:

Are you asking

him

basically what the

figure

is

that exists

right now on the

rate sheet?

MS. HESSE:

I’m

trying to

get an understand.uig

of what

the rate sheet represents.

MR. KIM:

Okay.

THE DEPONENT: I can

do

a hypothetical.

MS. HESSE:

That’s

fine.

THE

DEPONENT: I don’t, you know,

I

don’t want

to

state that.

I don’t know,

you know, without

looking

at

the sheet.

MS. HESSE:

Q

I

don’t expect

you to have

all

the numbers memorized.

It’s

okay.

-

A

But

say the

PID,

for example, was. the

dollar amount

on the

sheet is

a hundred

dollars,

that

would be the maximum cost

we would pay

and

it

would be

like per

day.

We would pay each

day.

Like we pay a hundred

dollars

each day and that

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number is

our maximum cost -because that was the

2

average

of one

standard deviation and the range is

3

basically mathematically, I think.

97

and

a half

-

4

percent of

all

costs under

a- hundred dollars of all

5

costs

come into

the

agency have been

undet that

6

hundred

dollar range.

-

7

Q

How was

one

standard deviation selected

8

as

the

maximum as opposed to two standard

9

deviations

or

some other?

10

A

I think

two standard deviations was

99

11

and a half percent or

something like

that.

I mean

12

it was, I

don’t know.

It was just what we used.

I

13

can’t really say how we

picked it but I think that

14

it just drove-the

cost up

too

high, I guess.

I

15

really

don’t know.

16

Q

Who picked the

one standard deviation

as

17

for setting the maximum cost?

18

A

Idon’tknow.

19

Q

Was,

it wasn’t

you’?

20

A

No.

They were using that prior to my,

21

they’ve been using that for

a long time.

-

22

Q

If someone has costs that are

above the

23

maximum on your sheet and they believe their costs

24

are justified, what would they, what kind of

Page 38

demonstration do they need to

do to get the cost

reimbursed,

their actual costs

reimbursed?

A

Write

additional documentation that shows

that those costs

are reasonable.

Q

In

some ofthe

answers to

-

interrogatories, I think there were some that were

attributable to you, it says that

the person

seeking reimbursement, andyou werejustmentioning

too, needs to

demonstrate costs

are reasonable.

What is

it that they need to show to demonstrate

the costs, that their costs

are reasonable?

A

It could be anything.

I mean

1 don’t

have

a

specific example for

stuff but, you know,

let’s

say their trucking charges or something like

that are,

if we have a standard rate for that, we

say,

oh, your rate is

too

high.

They could provide

us

with documentation that they had

to

go

200 miles

or something like that.

Sort of

the

average,

whatever that might be

and therefore’it was

a lot

higher and it

took longer

to do and costs more

money.

-

Q

Would they need to

make that kind

of

demonstration if the

costs

were within

the

or below

the number on

the

IEPA charts of what the maximum

1

number

is?

2

MR.

KLM:

For example?

3

MS. HESSE:

Q

If your maximum number for a

4

PD

that we were using-before-is

a hundred dollars,

5

ifI send you the package

of invoices where I’m

6

asking for a

PD

rental

of

595,

would I have to

do

7

anything

more to demonstrate my

costs

were

8

reasonable?

-

-

-

-

9

ANo.

Q

If I sent you

a package

where my

PD

-

costs

were 5105

a day, what would happen?

A

And the rate was

a hundred dollars?

-

Q

And the rate was

a hundred dollars.

My

hypothetical.

X

We

would cut, we, I guess

we would

cut

five dollars per day off the rate.

Q

-

And- would you reimburse for the hundred

dollars

then?

A

If everything

else was okay

with

the

reimbursement package, I mean there was

no other

problems.

-

Q

Are these rates for what IEPA

believes

are reasonable published anywhere?

AN0.

1

Q

Are

there

any

rules?

-

2

AN0.

3

Q

Guidance documents?

-

4

A

It’s a guidance

document,

1 would say.

5

Q

Are they, is

it a guidance document that

6

if I were submitting a claim for reimbursement I

7

could find and look at

so--

8

-

A

You being an,

outside the

agency?

9

Q

Being outside the

agency.

10

AN0.

11

Q

Are

there any policy

statements on what

12

rates

are reimbursable?

13

A

I don’t believe so.

-

14

Q

So basically the only way I could find

15

out

what was reimbursable

is to submit

a claim

and

16

see what

happens

after the

agency

reviews

it’?

17

A

if you wanted to know the maximum

rate,

18

yeah.

19

MR.

KIM: Ju~t

to clarify

that,

do

you

mean

if

20

.you were trying to

find out what information is

on

21

the rate sheet or

are you asking--

22

MS. HESSE:

Q

If

I’m someone submitting

a

23

claim for reimbursement and

I know what my

costs

24

are. I know what

it

cost me,

is there

any way

I

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& Legal-Visual

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41

1

couldknow

in

advance whether those rates that I’m

2

being charged are reasonable?

3

A

No.

You’d just charge

the maximum then

4

if you knew the rates, wouldn’t you?

5

Q

How was

the per

diem

determined for the

6

maximum rate that

IEPA would allow?

-

7

A

It was based

on, I got it from the Fed.

-

8

It was, I think that’s

What the

federal government

9

considers was, the

IRS

or if it was

the, without

10

looking somewhere with the

Fed.

That’s

what they

11

might do,

more than what the

state gives out.

12

Q

And do, you know what the per diem amount

13

is?

14

A

No, notoff hand.

15

Q

Do you

know what the per

diem

covers?

16

A

it’s

intended to cover lodging, meals

and

17

incidentals.

-

18

Q

And if someone typically would submit a

19

claim with a per

diem for say ~40 and 35

was

your

20

maximum number, what would you

do

with that claim?

21

A

Cut it down

to

35.

22

Q

Would you approve the

35 for

-

23

reimbursement then?

24

-

A

If everything

else was

all right with

it,

1

-

yes.

Q

Referring

to letter number

two

and the

technical

deductions, item number 2, could you

explain

that,’please?

A

51,200 deduction for cost due to lack of

~upporting

-

documentation.

The

deduction is for

costs

associated with site safety

and security

equipment.

Q

Could you explain that, please?

A

There was

a rate for site safety

and

security equipment billed

per

day,

as

I recall,

and

we were unsure what site safety and

security

equipment was.

There was not

documentation of

specifically what they’re asking for.

Q

So the,

so that I can understand,

does

IEPA-

allow for costs for

safety and security

equipment in general?

-

A

I

don”t know

what

you consider safety and

security equipment or what you would consider it.

Q

Warning tape to

warn

of excavation

holes,

barriers, barricades.

A

We

do

allow for that.

-

Q

You

do

allow for that?

A

We

do

allow for barricades

or tape.

Page

42

I

Q

Warning lights?

The

little

lights that

-

2

flash at night when it’s

dark?

-

3

A

Barricades?

4

Q

Probably.

5

AYeah.

-

6

Q

What

about things like personal safety

7

equipment?

Disposable gloves, tie back suits,

8

respirators, first aid

kits being’on

hand?’

9

A

I would say some of that equipment should

10

be,

is just the cost of doing business and we

don’t

11

see

that.

I’ve never had anyone bill for a first

12

aid kit but things

like

disposable gloves, yes, bat

13

those

are usually billed

out

separately.

14

Q

As

what?

Part

of materials or something

15

else?

16

A

Under stock items,

I believe.

17

‘Q

And how would cost for, how would you

18

determine what

IEPA would

allow for safety- and

19

security equipment?

20

A

Same

way we would

do a

PrO

but we would

21

have to know the individual equipment that they

22

were billing for.

Like the gloves, we have

a rate

23

for gloves.

Then we lump it

all together.

I don’t

24

know what it

is.

-

Page

44

I

Q

Now,

if, so on this

one

to

Iryto’

2

clarify, you’re

saying the reason you

did not

3

reimburse for safety

and security equipment is

4

because you did not know exactly what equipment

5

they had?

-

6

A

Correct.

-

-

7

Q

Did you contact Home

Oil or

its

8

consultant to ask for that information?

9

AN0.

-

Q

So you did

not

call

them and say you

did

not

include information on

this.

Would you send

me

that information, I’m reviewing your package.

-

ANO.

Q

Any particular reason?

A

I typically

don’t do that.

They have the

chance to submit the documentation

after the fact

and send

me ~ letter and I’ll write up

a memo

and

process

it

if it’s

okay.

Q

So they would have an opportunity

to

send

you

a memo

saying this

is

what our safety

site,

safety and

security equipment was?

A

Yes.

-

Q

And then once

you got that, would you

compare

it to

the rates

in

your chart?

p~4l-P~e4

1~/

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Page 45

1

ASure.

--

2

Q

And then

what would happen if

it was

3

within the rates

in your chart?

Would you approve

4

it

for reimbursement?

-

S

A

If everything else

was

okay,

I would

6

approve

it for reimbursement and send a memo over

7

to Doug

Oakley’s group

or they,

and they would

8

-process

it

however they process it.

9

Q

In

the procedure for reviewing, how does

10

that work?

Youjust triggered another

question

11

here.

When

the reimbursement package

comes

in,

12

where does

it go first?-

13

A

To Doug Oakley’s group.

-

14

Q

And what do they do?

-

15

A

I

don’t know.-

I

don’t want to speak for

16

them, but,

I

guess.

17

Q

What do you think,

what

is your

18

understanding that they do?

I’ll phrase it that

19

way.

I’ll let

Doug

speak for himself tomorrow.

20

A

They do,

they might do

a completeness

21

review.

I’m not sure but then they assign it to an

22

accountant.

They

do a technical review.

Not

a

23

technical.

I take that back, an

accounting

review

24

and then they would send it over to the technical

1

review to

do

a review.

2

Q

And,

okay.

So they look at it first.

‘Do

3

they always

send

it

to the people in the technical

4

review to

do

a technical review?

-

5

A

I don’t believe

so.

6

Q

Do you know when they

do and when they

7

don’t?

MR.

KIM: You’re asking for his understanding?~

MS.

HESSE:

Q

Your understanding.

A

Can I ask you something?

-

MR.

KIM:

Can we

go off the record?

-

(Discussion off the record.)

MS. HESSE:

Q

Ready to

go back on

the

record?

A

Yes.

There are three reasons that they,

I believe that they would kick it over for a

technical

review.

If

it

was over

a certain length

of time.

I

think it’s

ten years.

Ten years

over.

Q

Is that for the

certain length of time,

let

me follow up

on

that point.

Is that for the

entire length of the project being more thai~a ten

year project?

.-~

Yes.

Q

So

it’s

not being reimbursed for work

Page

46

1

that

was

done ten years

ago?

2

A

It’s based

on

the incident.

If it’s

over

3

ten years old theykick it over to us

4

automatically.

There

is,

sometimes if they have

5

technical

questions that they might identify and

6

then all

packages over 530,000 are sent over to us

7

for review.

‘

-

-

8

Q

And I think you said there might be

a

9

third

one?

A

If they have question-s.

Q

Okay.

-

A

If it’s

over ten years or

if it’s

over

530,000.

Q

Then

there’s, they’re sent to the

-

-

technical unit for review?

-

-

A

Correct.

Q

Item

number

3 in letter number two, could

you explain what that’s

about?

;

A

Item number 3, 53,051.66

is

deduction for

lack of supporting documentation.

Failed to

-

-

demonstrate costs

are

for corrective action

perfonned

in accordance with the plan.

This

deduction

is

for costs incurred on

May 11th and

12th, 2000

and June

19th,

and 20th, 2000.

I’m

going

to have to look at my notes.

Yougot

a’ copy

of them right there.’

Q

Which notes would you like to see?

-

AMynotes.

-

-

Q

I have a tabbed copy of a record here.

Which are

your notes?

-

A

Ijust need this one, I think.

Maybe.

MR. KIM: Is there page

numbers on

there?

MS.

HARVEY:

It’s the Bates pages

on

the

bottom.

MR. KIM:

Why don’t you identify which page

numbers you’re

looking at?

MS.

HESSE: We’ll mark those in Exhibit 2

to

-

make

it easier.

THE

DEPONENT:

Page

15,

May

11th

and

12th,

2000.

MS. HESSE:

Q

Were things

cut

off the

bottom of those pages?

A

Well, that-don’t help me either.

-

MR.

KIM:

I

think one of

the pages,

I think the

page he just referred to

was

included with the

supplement to the record as

part

of

the, identified

as

pages from the

administrative

record and

identified

as

having

been partially

obscured when

Baldwin

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Brian

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1

copying and I

believe that page

15

of

the

2

administrative record

was

one of those pages.

3’

MS. HESSE: Would this be the page?

4

MR.

KIM: That’s

not correct.

The next page,

-

s

page

3.

You’re looking at page 2.

That

is

6

correct.

-

‘

-

7

MS.

HESSE: Page

14

was cut off.

8

THE DEPONENT:

What does it say?

9

MR.

KIM:

I think his notes were part of the-

10

documents identified

as

having been not copied

11

clearly

and have been provided separately with the

12

-supplement to the record.

-

13

THE

DEPONENT:

I

believe that

on

those

-

14

particular

dates there

was time that was

charged to

15

go

to the site but there was

never an explanation

16

of

whatever was

done

on

those particular days.

The

17

status

report listed out

days.

that things were done

18

and, you know, when they visit the site and what

19

they did, it listed

all the

times that were billed,

20

just about, when they were

at site and those

21

particular times were not documented in the

22

technical report.

23

MS. HESSE:

Q

Did you

look at, in the

24

reimbursement packages, the summary

ofwork

performed

to

see

if there was a description there

of what work was performed on

those days?

A

Yes.

Q

Were there any entries?

-

A

I’m sure there were.

I

don’t

recall

what

they were.

-

-

Q

But the reason you did not allow for

entries is that was not described in

the status

report.

Is that correct?

Am I understanding

-

correct?

A

Right.

The entries

that they are given

-

on

the reimbursement package

are kind of vague

in

nature.

They don’t really specifically tell you

what was

done.

They

might say that corrective

action, you know,

on

site corrective action.

I’m

just giving that

example. I’m sure they don’t use

that but,

and then in the

report another example

is

they told

u.s

that there was, you know,

we were on

site,

we were

digging a trench.

We were doing

stuff,

you- know, doing

that and there was

no

documentation

of that, those activities in Exhibit

22

2.

23

Q

-

Looking at item number 4,

~ouldyou

24

explain

what that’s

about.

please,

and this

is

in

letter number two.

-

A

Can we take

a break?

MS.

HESSE: Absolutely.

-

(Whereupon a short

break was

taken.)

-

-

MS.

HESSE:

Q

Just before our -break, I~

believe

I asked

you to

describe or

give me

more

information with respect to item number 4.

This

is

-

on technical

deductions for letter number two.

A

Item number 4, 575,055.24 deduction.

Owner’

operator failed to demonstrate were

-

reasonable and for costs

associated with corrective

action that was

not conducted in accordance with

an

agency

approved plan.

The

basis for that

determination

was made,

I’d have to say that the

other letter, the third letter, the

May 2nd, 2002

letter, that reimbursement package, this

-

reimbursement package were reviewed

conburren-tly so

that the

determination was made using both

data.

It was the, the

basis for

this

was, was

the

corrective action plan that was

previously

submitted to, for the proposed work indicated that

to install the recovery wells

and the trenching and

the-piping

and stuff like that would cost

-

1

approximately $72,500,

I’m saying approximately,

2

and these two packages combined were for, i’d

say

3

about

5127,000.

So

that, they did

not

feel that

4

that was

a reasonable overall cost.’

-

5

Q

So

all

the costs

were denied then?

6

A

Correct.

-

7

Q

And the agency

did

not

deny the

amount

up

8

to what you thought was reasonable.

Is

that

9

correct?

A

Correct.

Q

If you

could refer to the information in

the

corrective action status report, what type

of

activities,

and I’m

saying because

I don’t expect

you to keep

everything memorized, what kind of

activities

were performed for which reimbursement

was

requested

in the two packages

that are

reflected by

letters number two and three?

A

I

belie\7e it was

the installation of

the

SVE

groundwater recovery wells

and the,

and

the

lines

from the wells to wherever they were going.

Stuff

like that.

Some of the trenching,

things

like that.

I guess

that’s what they

did during

that period

of time.

This

also documents,

I guess

they

continued

to

do. tried to

continue to

do work

Page 49

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Condenselt! ~

I

on

the

things that were beyond the

range of the

2

billing period

so

I foresee additional

costs

coming

3

in on

the, beyond the $127,000

for the same work

4

that was proposed to be 572,000.

S

Q

Now,

the work that they did that’s

6

reflected

in the status

report,

did we mark

that as

7

an

exhibit?

8

MR.

KIM: Ithink that’s Exhibit Number

1.

No,

9

Number

2.

10

MS. HESSE:

Q

Was

that work done work that

11

was

completely on

site,

meaning the Home Oil

-

12

property?

-

13

A

I think

there was

some off site work

-

14

done,

if that’s what you’re ‘referring

to.

I mean

15

there was

some on site and also

on the neighboring

16

property.

-

17

Q

And ifwork was

done on

the neighboring

18

property, would that indicate that some of the

19

contamination had migrated offsite?

-

20

A

Yes.

21

Q

Is there anything else reflected in the

22

status report for work that they did?

23

A

I

don’t know what you’re -looking for.

24

Q

You mentioned installation of the soil

1

vapor extraction system.

Is that correct?

2

Different equipment or wells for it?

3

A

Well, that was the main

thing was

the

4

installation of the recovery wells

and the soil

5

vapor extraction well.

They were

one

and the

6

same.

I

believe it was

all combined.

7

Q

Did the status report reflect if they had

8

any particular

difficulties with

the project’?

9

A

I think they refer to one

point in time

IC)

where

they weren’t able

to

do work for a while

11

because of

the

weather.

12

Q

And how could the weather

impact doing

13

the work like installing

systems?

14

A

I

don’t know.

I guess

you’d have to ask

15

them.

I suppose if

it

was

too rainy they might not

16

be able to

do

it.

You want to

dig a hole in the

17

rain?

18

Q

How about

thunder storms?

19

A

Could

be

the case too.

20

Q

If the soil is extremely

wet, could that

21

make it more

difficult to install

these systems?-

22

A

Yeah, I’m sure

it

could.

23

Q

When you looked at these particular

24

-costs,

did you

also Idok at the

corrective action

1

plan?

A

Yes,

-

-

Q

-

Is

this a plan that required approval

by

Illinois

EPA?

A

I don’t know if,

if it

required

it

but it

did

receive

approval.

I

suppose

at some p’oint in.

time, yes, it would approve

a con-ectiv~

action

plan is necessary, so.

-

Q

And that would be,

that approval would

come from someone in the technical unit?

A

That is

correct.

-

Q

You would review, the

plan for the

technical merits

of it?

A

Right,

yes.

Q

What is the purpose

of that type of

review?

A

To insure that what is,

oh,

I guess in

-

this particular case, to insure what was

being

-

proposed would have a successful

likelihood of

mediating

the

site.

-

MS.

HESSE: Mark this

as an exhibit.

(Whereupon

said document was

duly marked for purposes of

identification as Exhibit 4,

Page

56

1

as

of this date.)

-

2

MS. HESSE:

Q Mr. Bauer,

I’m going to

hand

3

you what’s been

marked as Deposition Exhibit Number

4

4.

Could you identify what that is,

please?

5

-

A

It’s an

amended corrective action

6

groundwater soil remediation plan

received November

7

6th,

1996.

S

Q

And there’s a cover letter

addressed to

a

9

Mr.

Chris Kohnriann?

10

A

Yes.

11

Q

Is he

still with the

agency?

12

A

Yes.

13

Q

Was he the project manager at the

time?

-14

A

Yes, I believe so.

15

Q

So

~ie

would have been the person

who

16

reviewed the plan for

its technical merits,

the

17

likelihood of being successful in remediating?

18

A

Yes.

19

Q

And so you

would

not have done

that

20

review?

21

A

No.

22

Q

But you

did

look at this report in

the

23

context

of reviewing the reimbursement packages?

24

A

Yes.

Page

53

Brian B anex

Page

55

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

Page 54

P~1Aurir~

rfirny &

Lc~al-Visua1Services

---

Brian

Bauer

Condenselt!

Q

So you’ve seen it before?

A

Yes.

-

-

Q

What, could you describe to me what

information is included

in this report?

A

Basic site history

and geologic

situations

an,d the, some results of their- pump

-

tests

and I believe a pilot test

and the

documentation

as to

type of proposed remediation

technology, how it’s

going to

be

applied to the

site.

Q

Does

it

include- any cost estimate

information?

-

-

A

Yes,

it does.

Appendix E

of the report,

number, page number 434, implementation cost of the

SVE system.

-

Q

And does it include installation of the,

of

an

SVE

system?

-

A

Yeah.

it includes

all components

of the

system

and the recovery wells, the piping, things

-

like that.

-

-

Q

How many wells does it assume that there

23

A

Twenty.

-

-

24

Q

And how many wells were installed?

1

A

Idon’trecall.

-

2

Q

Does it include information with respect

3

to how much piping

was

installed or--

-

4

AYes.’

-

5

Q

(Continuing.)--they

estimate

would

be

6

installed?

-

-

7

AYeah.

8

Q

Do you recall offhand-how much was

9

installed?

-

10

A

No,Idon’t.

11

Q

Did these costs

for the cost estimate for

12

the

SVE

system include

anything other than