IN THE MATTER OF:

PROPOSED AMENDMENTS TO:

REGULATION PETROLEUM LEAKING

UNDERGROUND STORAGE TANKS

35 ILL. ADM. CODE 732

RECER/ED

CLERK’S OFFICE

iN THE MATTER OF:

PROPOSED AMENDMENTS TO:

REGULATiON PETROLEUM LEAKiNG

UNDERGROUND STORAGE TANKS

35 ILL. ADM. CODE 734

To:

Dorothy M. Guim, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph, Suite 11-500

Chicago, Illinois 60601

)

)

)

R04-23

)

)

)

(Rulemaking

—

UST)

Consolidated

Ms. Marie E. Tipsord

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph, Suite 11-500

Chicago, IL 60601

NOTICE OF FILING

PLEASE TAKE NOTICE that on May 4, 2004, I filed with the Clerk ofthe Illinois

Pollution Control Board, an original and nine (9) copies of a PIPE’S PREFILED QUESTIONS

OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, copies of which are

herewith served upon you.

~.

~

CLAiRE A. MANNING

Posegate & Denes, P.C.

11 1 N. Sixth Street, Suite 200

Springfield, Illinois 62701

(217) 522-6152

(217) 522-6184 (FAX)

claire~posegate-denes.corn

Claire A. Manning, Attorney

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STATE OF ILLINOIS

Poflut~onControl Board

R04-22

(Rulemaking

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UST)

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

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NOTICE OF FILING, together with a copy ofRESPONSE OF PIPE TO AGENCY’S

EMERGENCY RULEMAKING, was served on the individuals as listed below, by mailing the

same via the United States postal service, Springfield, Illinois on May 5, 2004:

Gina Roccaforte

Kyle Rominger

IEPA

1021 North Grand Ave. East

P.O. Box 19276

Springfield,

IL

62794

Thomas G. Safley

Hodge, Dwyer, Zernan

3150 Roland Avenue

P.O. Box 5776

Springfield, IL 62705

William G. Dickett

Sidley, Austin, Brown & Wood

Bank One Plaza

10 South Dearborn Street

Chicago, IL 60603

Barb~raMagel

Karaganis & White, Ltd.

414 North Orleans St., Suite 810

Chicago, IL 60610

Bill Fleischui

Illinois Petroleum Marketers Association

112 West Cook Street

Springfield, IL 62704

Joe Kelly, PB

United Science Industries, Irtc.

P.O. Box 360

6295 East Illinois Highway 1 5

Woodlawn. IL 62898-0360

Robert A. Messina~General Counsel

Illinois Environmental Regulatory Group

3150 Roland Avenue

Springfield, IL 62703

Kenneth James

Carison Environmental, Inc.

65

B. Wacker Place, Suite 1500

Chicago, IL 60601

Lisa Frede

Chemical Industry Council ofIL

2250 E. Devon Ave., Suite 239

DesPlaines, IL 60018

Carolyn S. Hesse

Barnes & Thomburg

1

North Wacker Drive, Suite 4400

Chicago, IL 60606

Michael W. Rapps

Rapps Engineering & Applied Science

821 S. Durkin Drive

P.O. Box 7349

Springfield, IL 6279107349

.Toel J. Sternstein

Office ofthe Attorney General

Environmental Bureau

188 West Randolph, 20th Floor

Chicago, IL 60601

Tom Herlacher

Herlacher Angleton Associates, LLC

8731 Bluff Road

Waterloo, IL 62298

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Jennifer Goodman

Herlacher Anglelon Associates

522 Belle Street

Alton, IL 62002

James B. Huff, PE

Huff& Huff, Inc.

512 W. Burlington Ave., Suite 100

LaGrange, IL 60525

Scott Anderson

Black & Veatch

101 N. WackerDr., Suite 1100

Chicago, IL 60606

Melanie LoPiccolo, Office Manager

Marlin Environmental, Inc.

1000 West Spring St.

South Elgin, IL 60177

Brian Porter

Terracon

870 40th Avenue

Bettendorf, IA 52722

Jonathan Furr, General Counsel

Illinois Dept. ofNatural Resources.

One Natural Resources Way

Springfield, IL 62702

Joe Kelly, VP Engineering

EcoDigital Development LLC

P.O. Box 360

6295 East Illinois Highway 1 5

Woodlawn, 1L 62898

Glen Lee, Manager

Wendler Engineering Services, Inc.

1770 West State St.

Sycamore, IL 60178

A.J. Pavlick

Great Lakes Analytical

1380 Busch Parkway

Buffalo Grove, IL 60089

Joseph W. Truesdale, PB

CSD Environmental Services

2220 Yale Blvd.

Springfield, IL 62703

Ron

Dye, President

CORE Geological Services, Inc.

2621 Monetga, Suite C

Springfield, IL 62704

Monte Nienkerk

Clayton Group Services, Inc.

3140 Finley Road

Downers Grove, IL

60515

Kurt Stepping

PDC Laboratories

2231 W. Altorfer Drive

Peoria, IL 61615

Thomas M. Guist, PB

Atwell-1-Iicks, Inc.

940 B. Diehi Road, Suite 100

Naperville, IL 60563

Jeff Wienhoff

CW3M Company, Inc.

701 S. Grand Ave. West

Springfield, IL 62704

Jarrett Thomas, V.P.

Suburban Laboratories, Inc.

4140 Litt Drive

Hillside, IL 60162

Dan King

United Science Industries, Inc.

6295 East Illinois Highway 15

Woodlawn, IL 62898

Richard Andros, PE

Environmental Consulting &

Engineering, line.

551

Roosevelt Rd., #309

Glenn Ellyn, IL 60137

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Terrence W. Dixon

MACTEC Engineering & Consulting, Inc.

8901 N. Industrial Road

Peoria, IL 61615

Steve Gobelman

Illinois Dept. ofTransportation

2300 DirksenParkway

Springfield, IL 62764

Collin W. Gray

SEECO Environmental Services, Inc.

7350 Duvon Drive

Tinley Park, IL 60477

George Moncek

United Environmental Consultants

119 E. Palatine Road, Suite 101

Palatine, IL 60067

David Rieser

McGuire Woods LLP

77 W. Wacker, Suite 4400

Chicago, IL 60601

Tina Archer

Greensfelder, Hemker & Gale

10 S. Broadway, Suite 2000

St. Louis, MO 63104

SUBSCRIBED AND SWORN to before me

CLAIRE A. MANNING

111 N. Sixth Street, Suite 200

Springfield, illinois 62701

(217) 522-6152

(217) 522-6184 (FAX)

claire(ii)p~gate-denes.com

Erin Curley

Midwest Engineering Services, Inc.

4243 W. 166th St.

Oak Forest, IL 60452

Ken Miller, Regional Manager

American Environmental Corp.

3700 W. Grand Avenue, Suite A

Springfield, IL 62707

Russ Goodiel

Applied Environmental Solutions, Inc.

P.O. Box 1225

Centralia, 1L 62801

Daniel Goodwin

Secor International, Inc.

400 Bruns Lane

Springfield, IL 62702

Eric Minder

Caterpillar, Inc.

100 N.E. Adams St.

Peoria, IL 61629

Daniel Caplice

K-Plus Environmental

600 W. Van Buren St., Suite 1000

Chicago, IL 60607

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:~ DEBORAH D. COOPER

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NOTARY PUBLIC. STATE OF ILLINOIS

MY COMMISSION EXPIRES 11-2-2005?

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RECE~VED

CLERK’S OFFICE

BEFORE

THE ILLINOIS POLLUTION CONTROL

BOARD

STATE OF ILLINOIS

IN

THE MATTER OF:

)

Pollution Control Board

)

PROPOSED AMENDMENTS TO:

)

R04-22

REGULATION PETROLEUM LEAKING

)

(Rulemaking

—

UST)

UNDERGROUND STORAGE TANKS

)

35 ILL. ADM. CODE 732

)

IN THE MATTER OF:

)

)

PROPOSED AMENDMENTS TO:

)

R04-23

REGULATION PETROLEUM LEAKING

)

(Rulemaking

-

UST)

UNDERGROUND STORAGE TANKS

)

Consolidated

35 ILL. ADM. CODE 734

THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

NOW COMES Claire A. Manning, attorney for the Professionals ofIllinois for the Pro-

tection ofthe Environment (“PIPE”), and inquircs ofthe Illinois Environmental Protection

Agency the following:

1.

Please produce

all

documents relied upon in justification ofthe development of the reim-

bursement rates set forth in these proposed rules. Please provide all standard rate sheets

that have been utilized by Agency reviewers in the last three years in reviewing the “rea-

sonableness” of budgets, plans and reimbursement claims sought pursuant to the

Agency’s LUST program. Please provide a foundation for all such documents, an expla-

nation of all such documents, the basis for the creation of such documents, the basis of re-

liance upon such documents for a determination of “reasonableness” of rates. (This ques-

tion is not seeking the production of any documents already put into the record by the

Agency but rather seeks any and all documents that may exist, and have been utilized, but

that have

not

yet been made a part of the record.)

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2.

Please produce any and all published documents, including date of publication, contain-

ing standard industry rates typical of those sought for reimbursement of LUST sites,

which the Agency relied upon in creating this rule. If no such published documents were

relied upon, please state such.

3.

Please provide a simple, written explanation, utilizing a flow chart if readily available, of

the Agency’s LUST reimbursement process.

4.

Please provide a written explanation ofthe various decision points and timeframes con-

tained within this process.

5.

Please provide examples of the various types ofcommunication the Agency routinely

sends an entity when it modifies or disapproves an entity’s requested budget, plan or re-

imbursement request. Please explain how this communication is similar or dissimilar to a

permit denial letter. Please compare the LUST reimbursement process to the permit re-

view process.

6.

Does the Agency ever deny reimbursement for items that it has at an earlier point (in a

budget for example) approved? If so, for what reasons?

7.

When does the Agency requite the certification of a licensed professional engineer or ge-

ologist? What significance, if any, does the Agency attribute to such certifications?

8.

Please provide copies of all forms and standardized documents utilized by the Agency in

its LUST program.

9.

Please provide copies of all memos or directives that explain or direct LUST unit staff in

how to perform the various types of reviews that are performed.

10.

How many employees are paid from the LUST fund? What are their various job titles?

Job duties? Responsibilities? Qualifications?

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11.

Please provide any and all statistics and performance measures that the AgePcy maintains

or did maintain related to the LUST program, including any statistics, goals and objec-

tives that may have been prepared for use in the Agency’s strategic planning and per-

formance review process.

12.

Does the Agency track, for example, the number of remediations successfully accom-

plished on a periodic basis? Does it track the number of requests that are approved, as

compared to those modified or denied, on a periodic basis? If so, please provide all such

statistical measures.

13.

In 734.810 UST Removal or Abandonment Costs, how were rates developed for the three

categories ofUSTs to he removed or abandoned and what specific tasks/work were in-

cluded in each category?

14.

In 734.815 (a) Free Product or Groundwater Removal and Disposal, how were the rates

of $.68/gallon or $200 (whichever is greater) developed and what specific tasks/work

were included in each category?

15.

Tn Section 734.820 (a) Drilling, Well Installation, and Well Abandonment, how were the

rates of “greater of $23.00/foot or $1,500” derived for hollow-stem auger soil sampling

and “greater of$ 18.00/foot or $1,200” derived for direct-push soil sampling and what

specific tasks/work were included in each rate?

16.

In Section 734.820 (h) Drilling, Well Installation, and Well Abandonment, how was the

rate of$ 16.50/foot of well length derived for hollow-stern auger well completion and

$ 12.50/foot of well derived for direct-push well completion and what specific tasks/work

were included in each rate?

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17.

In Section 734.820 (c) Drilling, Well Installation, and Well Abandonment, how was the

rate of$ 10.50/foot of well for well abandonment developed and what specific tasks/work

were included?

18,

In Section 734.825 (a) Soil Removal and Disposal, how was the rate of $57/cubic yard

for excavation, transportation, and disposal of soil of developed and what specific

tasks/work were included?

19.

In Section 734.825 (b) Soil Removal and Disposal, how was the rate of $20/cubic yard

for backfill developed and what specific tasks/work were included?

20.

In Section 734.825 (c) Soil Removal and Disposal, how was the rate of $6.50/cubic yard

of overburden removal and backfill developed and what specific tasks/work were in-

cluded?

21.

In Section 734.830 Drum Disposal, how were the disposal rates of $250/drum of solid

waste, $150/drum of liquid waste or $500 (whichever is greater) developed and what spe-

cific tasks/work are included?

22.

In Section 734.835 Sample Handling and Analysis, how was the rate of$ 10.00 for “En-

Core sampler, purge-and-trap sampler, or equivalent device” determined? How was the

shipping rate of $50/calendar day determined?

23.

in Section 734,840 (a) Replacement of Concrete, Asphalt, or Paving, how were the rates

of”$l .51/foot for 2 inches of asphalt or paving, $1 .70/foot for 3 inches of asphalt or pav-

ing, or $2.18/foot for 4 inches of concrete, asphalt or paving” developed and what

tasks/work are included?

24.

In Section 734.840 (a) Replacement of Concrete, Asphalt, or Paving; Destruction or

Dismantling and Reassembly of Above Grade Structures, how was the rate of $10,000

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per site for the destruction or dismantling and reassembly of above grade structures de-

terniined and what tasks/work were included?

25.

In Section 734.845 (a)(1) Professional Consulting Services, how was the rate of $960 for

payment of costs associated with the preparation for the abandonment of USTs developed

and what tasks/work were included?

26.

In Section 734.845 (a)(2), (a)(5), (b)(3), (b)(5) Professional Consulting Services, how

was the $500 per half day rate forprofessional oversight developed and what tasks/work

were included? Was overtime pay for non-exempt employees per Department of Labor

for hours greater than 8 per day factored into the half day rate?

27.

in Section 734.845 (a)(2) (A) Professional Consulting Services, how was it determined

that one half day would be sufficient for professional oversight during tank pull activi-

ties?

28.

In Section 734.845 (a)(2) (B) Professional Consulting Services, how was it deteirnined

that one half day would be sufficient for professional oversight drilling of four soil bor-

ings?

29.

In Section 734.845 .(ã)(2) (A) Professional Consulting Services, how was it determined

that one half day would be sufficient for professional oversight during line release repair

activities?

30.

in Section

734.845

(a)(3) Professional Consulting Services, how was the rate of $4,800

for the preparation and submittal of a 20-day certification and 45-day report determined

and what tasks/work were included?

31.

In Section 734.845 (a)(5) Professional Consulting Services, how was it determined that

one half day would be sufficient for professional oversight during tank pull activities?

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in Section 734.845 (a)(6) Professional Consulting Services, how was therate of 51.600

for the preparation and submittal of free product removal reports detennined and what

tasks/work wete included?

33.

In Section 734.845 (a)(7) Professional Consulting Scrvices, how was 1:he rate of $500 for

the preparation and submittal of reports pursuant to Section 734.210(h)(3) determined

and what tasks/work were included?

34.

in Section 734.845 (b)(l) Professional Consulting Services, how was the rate of $3,200

for the preparation of Stage 1 site investigation, preparation, field work and field over-

sight determined and what tasks/work were included?

35.

In Section 734.845 (b)(2) Professional Consulti.ng Services, how was the rate of $3,200

for the preparation of a Stage 2 Site Investigation Plan determined and what tasks/work

were included?

36.

In

Section 734.845 (b)(3) Professional Consulting Services, how was it determined that

one half day would be sufficient for each monitoringwell installed and what tasks/work

were included in the determination? Was overtime pay for non-exempt employees per

Department of Labor for hours greater than 8 per day factored into the half day rate?

37.

In Section 734.845 (b)(4) Professional Consulting Services, how was the rate of $3,200

for the preparation of a Stage 3 Site investigation Work Plan determined and what

tasks/work were included?

38.

In Section 73

4.845

(b)(1) Professional Consulting Services, how was the rate of $1,600

for the preparation of a Site Investigation Completion Report determined and what

tasks/work were included’?

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39.

In Section 734.845 (c.)(1) Professional Consulting Services, how was the rate of $5,120

for the preparation of a Corrective Action Plan determined and what tasks/work were in-

cluded?

40.

In Section 734.845 (c)(3) Professional Consulting Services, how was the rate of $800 for

the preparation of remediation objectives other than Tier 1 detennined and what

tasks/work were included?

41.

In Section 734.845 (c)(4) Professional Consulting Services, how was the rate of $800 for

the preparation of Environmental Land Use Controls and Highway Authority Agreements

determined and what tasks/work were included?

42,

In Section 734.845 (c)(5) Professional Consulting Services, how was the rate of $5,120

for the preparation of a Corrective Action Completion Report determined and what

tasks/work were included?

43.

in Section 734.825 (a)(l) and (b)(1) Soil Removal and Disposal, how was the swell factor

of

50/s

determined? Why was the rule of thumb that calls for a 15 to 20

expansion of

swell factor depending on soil type not utilized’?

44.

Who at the Agency participated in the development of Subpart H?

45.

To what extent, if any, do the personnel titles and rates found in Section 734.Appendix E

compare to the personnel titles, rates, qualifications and backgrounds of Agency review-

~ers? OfProject Managers?

46.

At what specific point in time did the Agency’s maximum allowable reimbursement

amounts become parallel with the proposed regulations?

47.

Has the Agency calculated, and does the Agency have any documentation regarding the

calculations, of any expected decrease in reimbursement that will result from the pro-

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posed regulations’? lf so, please provide all relevant information related to such calcula-

tions,

48.

Is there an expected annual cost savings to the LUST Fund that will result from the pro-

posed regulations? Please explain.

49.

Has the Agency ever evaluated the costs associated with the actual remediation of sites as

compared \vith the costs of administering the pro gram reviewing such costs?

50.

What information does the Agency have regarding the number of sites successfully

remediated hi the last five years

—

on a yearly basis? Please provide. What have been the

annual expenditures from the Fund directly related to those reinediations?

51.

What information does the Agency have Concerning the estimated number of LUST sites

in Illinois that still need to be remediated? Please provide.

52.

Under the proposed regulations, does the Agency anticipate reimbursing a higher or

lower percentage of the cost on a single project as compared to the reiinbursenient under

historical LUST Fund reimbursement guidelines?

53.

What specific projects and incident niunbers were used to develop the rate schedules in

Subpart H and what contaminants were present? Please give any and all site specific in-

formation regarding such projects. Explain the basis upon which the Agency chose to

use those projects.

54.

Under the proposed rules, does the Agency anticipate reimbursing more/less than the

maximum allowable amounts and on what circumstances?

55.

Why has the Agency proposed that the costs associated with amended plans/budgets/etc.,

are not considered reimbursable?

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56.

In regard to the tasks and/or group of tasks proposed in Subpart H to be reimbursed on a

unit rate basis

(Sift,

.5/yd, $/report, V2 day amount, etc.), is it the Agency’s expectation

that most will view the rates as flat rates and consistently charge those rates for the per-

formance of the associated task or group of tasks.

57.

Brian Baucr stated in his testimony (page 2): “Since 1989 the Agency has reviewed

18,300 applications for payment and paid more than $565,000,000.00 from the

UST

Fund.” “...reviewed over 12,800 budgets..

.“

and “Based on this collective experience,

the Agency believes that the following proposed maximum costs are reasonable and fair.”

and that the “amount of data used to calculate the proposed maximum payment amounts

may appear small, however these averages are consistent with the Agency’s historical

data and the rates the Agency is presently approving in budgets and applications for pay-

ment.” 734.810

a)

Does this mean the Agency has already implemented the proposed rates?

b)

Does the model the Agency is using match the data because the rules have already

been implemented?

c)

If the proposed rates equal what is being approved in budgets and applications for

payment, is this not because the data is being forced to match? In other words, if

Owners/Operators can now, and since 2001, only get certain rates and aniou.nts

approved in budgets and thus applications for payment, did the Agency not en-

force these rates so that the data used for analysis match the proposed rates?

58.

Subpart H, Section 734.8 10. This area is addressed on page 2 of Mr. Bauer’s testimony.

Do the proposed rates include the costs for slurry?

59.

According to Mr. Bauer’s testimony (page 2), twenty (20) LUST sites were evaluated and

nine (9) v~’ereused for tank removal or abandonment.

a)

How many projects were in Early Action altogether at the time of this analysis?

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Why were twenty (20) sites selected? Why were the nine (9) selected from the

twenty (20) sites’?

c)

How many of the nine (9) sites were UST removal and how many were UST

abandonment?

d)

What were the numbers and sizes of the USTs in the nine (9) sites selected?

e)

Where were the sites located from the contractor or consultant?

f)

Were different regions from the state selected?

d)

Were different contractors selected?

e)

How do we know this is representative ofall removal sites?

f~ Mr. Bauer refers to “conversations with UST removal contractors...” How many

were selected and what percentage of the total population of tank contractors doing

work in Illinois do they represent? Were they from one region? How many years of

experience?

60.

Mr. Bauer on page 4 states that rates include “all costs for mobilizing and demobiliz-

ing.

.

to and from the site”, labor, decontamination, drilling, etc.

a)

How far were the sites from the contractor?

b)

Were any of these sites located in remote regions of the state? Were any of these

remote sites included in the data set?

c) Were available resources reference guides such as “Means Guide for Environmental

Work” utilized in compiling costs per foot and well material rates?

d) Does the IEPA define travel costs differently from mobilizing and demobilizing? If

so, how?

61.

Mr. Baiier stated on page

5

of his testimony that forty-nine (49) LUST sites were used to

calculate an average $/ft. Also, on page 6 he stated that nine (9) LUST sites were used

for calculating the daily rate of direct push. On page 8 he said the Agency looked at

thirty seven (37) LUST sites for monitoring well materials.

a)

Was data taken from different regions of the state?

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b)

Were different drilling contractors used in the data set?

c)

Were there different distances to sites taken into consideration?

d)

Were various scopes ofwork over a range oftime utilized?

e)

Why were forty-nine (49) LUST sites used to calculate an average $/fi and nine

(9) LUST sites used for calculating the daily rate of direct push?.

62.

On page 6 and 7 of Mr. Bauer’s testimony he stated the Agency used data “based on con-

versations with consultants.” What consultants were present and were other consultants

beside those in the CECI contacted?

63.

As it pertains to Section 734.820 Drilling, Well Installation and Well Abandorini.ent, Mr.

Baucr stated the Agency evaluated seven LUST sites and extrapolated the data for 2-inch

monitoring wells.

a)

How can you extrapolate 2-inch wells to larger wells?

b)

Has the Agency been involved in installing larger wells?

c)

Why was data not collected for larger wells?

64. Oti page 11 of Mr. Bauer’s testimony he stated, ‘The average cost to abandon a groundwa-

ter-monitoring well is about

$150.00.”

a)

What is this based on?

b)

What is the distance to the wells from the contractor or consultant performing the

abandonment?

e)

How many wells and how deep are the wells used in the data set?

65.

On page 12, Mr. Bauer indicated “the Agency, based on conversation with the

..

CEC!

determined that field work would be best billed at a half-day rate. The half-day rate is 5

hours...”

a)

According to who?

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b)

How far are the sites, which were evaluated, from the consultant?

c)

Why was the CECI consulted and not other consultants?

d)

Do these costs include travel costs (mileage, personnel time and vehicle usage).

c)

Did the consultants indicate any costs for this should be billed separately or on a

time and materials basis? if so, what were those costs?

66.

On page 13 of Mf. Bauer’s testimony stated “based on conversations with LIST removal

contractors it appears that consultants are not always present when the USTs are actually

removed.”

a)

Which contractors did the Agency consult?

b)

Were these contractors referring to LIST removals performed before or after the

reporting of a release to IEMA?

c)

What about contractors that do work with a consultant?

67.

On page 14 of Mr. Bauer’s testimony that soil excavation rates were based on reference

to the 2003 National Construction Cost Estimator (page 13).

a)

Were the rates based on different sites and regions?

h)

Were considerations given to sit.e specific site dimensions and restrictions?

c)

What consideration, ifany, was given to distance to landfill or backfill source?

d)

Were sites within metropolitan, urban or rural remote areas considered?

e)

Even using an infinite number of trucks, progress can be hindered due to site re-

strictions.

How do the revisions proposed by the Agency prevent the

Owner/Operators of small stations/sites in a remote area and addressing small

volumes of contaminated soil/backfill from being disadvantaged?

f)

Why was a Construction Cost Estimating book utilized instead of an environ-

mental rernediation based book such as R.S. Means?

.

68.

On page 14 of Mr. Bauer’s testimony, he stated, “based on conversations with fourier

members of the Agency’s drill rig team.

.

.“

in regard to drilling costs.

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a)

Why were drilling contractors n.ot consulted? 734.845

b)

The half-day rate is to allow for travel, sample collection, logging, mapping,

screening, etc. What about distance to the site and documentation’?

69.

Referring to page 15, under the Professional Consulting Services Free Product Removal,

“The number of half-days shall be determined by the Agency on a site-specific basis.”.

a)

How will the Agency make this determination’?

b)

How many free product removal projects has the Agency been directly involved

in?

70.

Also on page 15, Mr. Bauer stated, “the one half-day per sampling event allows for I

hour for each monitoring well

...

and one additional hour for of field time that should ac-

count for travel time andlor any other incidental time that is needed.” 734.845

a)

How was this determined?

b)

What data relative to travel, packing samples, shipping, documentation, mapping,

etc. was evaluated?

c)

What consideration was given to wells located in a remote region and/or wells

deeper than the average?

c)

What if ti-ic site is over one-half hour travel time away from the consultant’s of-

fice?

71.

According to Mr. Bauer on page 16 of his t:estimony, the maximum hourly rates are based

on averages the Agency has seen. The average hourly rates do not allow for different

levels of engineer, geologist, scientist, and tecimician involvement. Does the Agency as-

sume a one size fits all rate?

72.

On page 3 of Mr. Chappel’s testimony he indicated a maximum rate of $57 per yard is

reasonable for Excavation, Transportation and Disposal. 732.800

a)

What consideration was given to Owners/Operators located in remote areas of the

state? What consideration was given to Owners/Operators located in the Chicago

area who have higher landfill rates and longer trucking times due to traffic?

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b)

Was this an average of various regions, various scopes of work, distance to land-

fill and backfill sources, etc’?

73.

Mr. Chappel stated on page 4 of his testimony that

Also, the conversion factor for

converting tons to cubic yard has been specified.” The conversion factor is 1.5 tons per

cubic yard (732.825).

a)

Where did this number come from?

b)

Were soils or engineering books referenced?

c)

Is this based on state-wide bulk density samples?

74.

On page

5

of his testimony, Mr. Chappel explained that the geotechnical cost for porosity

and soil classification are based on historical results from previous budgets and billing

packages.

a)

How many sites were in the data set?

b)

Were different parts of the state utilized?

75.

Mr. C.happel offered that the Agency developed an overall average rate for professional

services of $81.25 / hour on page 6 of his testimony. 732.845

a)

Is it a straight line average?

b)

Why

was it not a weighted average?

c)

Is Mr. Chappel implying that it is the Agency’s belief that all personnel classifica-

tions contribute equally to the performance of all required tasks?

76,

On page 6 of his testimony, Mr. Chappel stated that nineteen (19) reimbursement re-

quests were used to calculate an average rate for consultant services of $68/hour.

732.845

a)

Were the requests from different regions of the state?

b)

Was the data set across all consultants?

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c)

Were different scopes of work taken into consideration’?

.77

According to Mr. Chappel (page 7) the half-day rate is to allow for project plan-

ning/oversight, travel, per diem, mileage, transportation, lodging, equipment, as well as

plans, reports, applications for payment and documentation. There is no provision for

additional submittals.

a)

Why was data not collected on actual consultant information?

b)

Why were assumptions made?

c)

Who made the assumptions and what were the criteria’?

d)

Is this to be a state wide average?

e)

Why is there no provision for scopes oUwork or complexity?

78.

According to the Agency, a proposed alternative technology cannot exceed costs for con-

ventional technology or other available alternative technologies. Mr. Chappel explained

that “All plans and budgets will be reviewed for reasonableness.”

a)

What criteria will be used?

b)

In the event a cost analysis indicates remediation by conventional means will ex-

ceed $77/yd, will comparison be made to the conventional costs for that site?

c)

In the event a cost analysis indicates a typically more affordable alternative tech-

nology is not feasible due to site restrictions, is it the Agency’s intension to limit

the Owner’s/Operator’s reimbursement of the more expensive, but feasible, tech-

nology?

79.

What is the 1EPA’s experience in authoring reports (Site Investigation Completion Re-

port, Site Classification Completion Report, Corrective Action Completion Report, 45

Day Report, etc.), plans (Site Investigation Work Plan, Site Classification Work Plan,

Corrective Action Plan, ete) and budgets (SIWP, SCWP, CAP, etc.)’?

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80.

What Agency experience is there in regard to completing TACO calculations’? Calcula-

tions using the various formulas in 35 IAC 734?

81.

What IEPA experience was utilized in regard to considering the amount of time and

money to draft a Highway Authority Agreement? Environmental Land Use Control?

Off-site Access Agreements, locating offsite owner’s information, and getting these

agreements signed?

82.

What Agency experience is there in regard to installing monitoring wells, soil sample

drilling, soil screening and sample collection, ground~vatersampling, well development

and purging, and other site investigation activities?

83.

What Agency experience is there in regard to performing corrective action?

84.

A question was asked during the March 15

IPCB

hearing about how the Agency will re-

motely monitor sites. Does the Agency expect the Owner/Operator to pay for a remote

station to be placed in an Agency office or location?

85.

The Agency stated that no permits would be allowed primarily because of the incident

with the escalated NPDES permit rates. Has the Agency considered allowing an exemp-

tion for LUST sites with the Bureau of Water? Why has the Agency seen fit to disadvan-

tage Owner/Operators iii regard to OSFM renioval permits, IDOT oversize load permits,

IEPA Bureau of Air permits, and other permits to investigate or remediate a site1?

86.

Mr. Oakley stated on page 23 of the hearing transcripts that owners and operators were

consulted in regard to proposed recommendations. Which owners and operators? Were

these a cross-section across the state’?

87.

Mr. Bau.er stated on page 26 of the hearing transcripts that the reimbursed personnel rate

is based on the task performed, not necessarily the title, of the person performing the task.

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What tasks are allowed? This is not indicated in the table, so how will the Owner

i’

Op-

erator know what is allowed?

88.

Mr. Clay stated on pages

55-56

of the hearing transcripts that the rules have not been im-

pleniented but that they are using those numbers. Also, he stated that the numbers they

are approving for reimbursement and budgets are consistent with the proposed rules.

What is the difference between saying the rules aren’t implemented, and yet using the

numbers? Is it fair to say that the reason the cost containment amounts included in the

Agency’s proposed revisions agree with budgets and reimbursement, is because the

Agency is already and has been cutting budgets so that reimbursement agrees with the

numbers you are using?

89.

There were a number of issues that are to be deferred to the next hearing. Will these

items be addressed as testimony for the hearing or written documentation distributed’?

90.

What standard did the Agency use before 2001-2002 to review budgets, plans and re-

ports? What standard was used to determine reasonableness? With 15 years of experi-

ence in reviewing documents and admittedly not basing determination on professional

experience, how is the Agency now able to determine what is reasonable’?

91.

A LUST site has been classified as High Priority; however, additional plume identifica-

tion work is required to define the degree and extent of the contamination before a Cor-

rective Action Plan can be developed:

a)

Will the work required to develop the Plume Identification CAP be reimbursed?

h)

How will the drilling of boreholes and installation of monitoring wells be reim-

bursed?

c)

After completion of time plume identification work, how will the development of

the rernediation CAP be reimbursed?

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d)

Does the Agency expect that the Plume Identification CAP will be a non reim-

bursable expense for the Owner/Operator or that the rernediation CAP will be a

non reimbursable expense for the Owner/Operator based upon the maximum

payment amounts?

92.

A LUST site is very small and requires only one round of drilling onsite (a Stage I site

investigation as defined in Section 734.3 15 Stage 1 Investigation). The Stage 2 Site In-

vestigation is not needed because the Stage 1 investigation extended to the property

boundaries. The Stage 3 investigation involves up to three rounds of drilling with offsite

access required for two highway authorities, and four (4) different offsite property own-

ers. Two of the offsite properties are owned by corporations with several tiers of man-

agement and multiple application forms necessary to authorize access. The cost to iden-

tify and secure the multiple offsite access agreements exceeds the maximum payment

amount as provided in Subpart H, Section

734.845

Professional Consulting Services

(b)(4). The Owner/Operator is notified and billed for the work necessary to advance the

Stage 3 investigation.

a)

Will the work required to obtain the multiple offsite access agreements be reim-

bursed?

b)

Does the Agency expect that the site specific cost to obtain multiple offsite access

agreements will be a non reimbursable expense for the Owner/Operator based

upon the maximum payment amounts?

93.

An Owner/Operator has proposed a CAP to remediate soil contamination by the conven-

tional technology of excavation and disposal and to remediate the grotmdwater by the al-

ternative technology of applying oxygen release compound to the floor of the excavation

in order to promote bioremediation. The Agency has modified the CAP to approve the

excavation and disposal; however, the alternative technology for the groundwater was

denied and the CAP was modified to include only the monitoring of groundwater after

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the excavation to detennme the effect of the soil rernediation upon the groundwater. De-

pending upon the post soil remediation groundwater contamination results; an Amended

CAP must be submitted to complete the groundwater contamination:

a)

How will the work required to develop and write the post soil remediation

groundwater Amended CAP be reimbursed to the Owner/Operator when the

original CAP which was modified by the Agency has already been reimbursed?

b)

Does the Agency expect that the Amended CAP for groundwater will be a non

reimbursable expense to the Owner/Operator based upon the maximum payment

amounts?

94.

The Owner/Operator desires to remediate a L1JST site to TACO Tier 1, Class I Residen-

tial Objectives and a CAP was approved by the Agency for conventional technology.

The conventional teclmology was completed; however, closure samples indicate that re-

sidual contamination remains along the property boundary and underneath a structure lo-

cated on the site. This situation was not anticipated based upon the analytical results

available at.the time that the CAP was written. The Owner/Operator has decided to pro-

pose an engineered barrier and a Highway Authority Agreement to deal with the residual

contamination. An Amended CAP and budget is necessary to propose the institutional

controls and engineered barriers. Reimbursement has already been received for the cost

of the original CAP.

a)

How will the work required to develop and write the Amended CAP be reim-

bursed?

b)

Does the Agency expect that the Amended CAP to utilize the tools of TACO will

be a non reünbursable expense to the Owner/Operator based upon the maximum

payment amounts?

c)

Modeling of the residual contamination was not anticipated; however, is now re-

quired by TACO. How does Subpart H address the cost to the Owner/Operator

necessary to model the residual contamination?

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d)

How does Subpart H address the cost to the Owner/Operator necessary to deal

with this typic.al situation where a small amount of residual contamination must

be addressed based upon closure sample analytical results? Does the Agency

consider the cost non reimbursable?

95.

The Owner/Operator proposes conventional technology to address the onsite soil con-

tamination and a groundwater deed restriction to deal with the onsite groundwater con-

tamination. The closure samples from the floor of the excavation reveal an unanticipated

exceedance of the Csat limit. An Amended CAP and budget must be written to investi-

limitgate

theexceedancevertical extentis

investigated,of

the C~another2~limit exceedance.Amended

CAPAftermustthebeverticalwrittenextentand approvedof

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remediate the Csat limit exceedance.

a)

How does Subpart H address the cost to the Owner/Operator necessary to write

the Amended CAP to investigate the vertical extent of the C,at limit exceedance?

b)

How does Subpart H address the cost to the Owner/Operator necessary to write

the second Amended CAP to propose a remediation method for the ~ limit cx-

ceedance?

c)

Does the Agency consider the cost of the C~atlimit Amended CAPs to be non re-

imbursable based upon the maximum payment amounts?

96.

An Owner/Operator proposes an alternative technology for the remediation. of soil and

groundwater at a site. The site is rural with ample space available for landfarming. The

alternative technology of landfarming is presented in a CAP and rejected by the Agency

based upon “lack of supporting documentation” and the need to collect “additional in-

formation” to validate the alternative technology. The Agency did not perform a 45 day

completeness review t:o allow the Owner/Operator time to provide the infonnation

needed by the Agency. The Owner/Operator has already written one CAP and

now

is

faced with the additional expense of obtaining the information requested by the Agency

and writing a revised CAP.

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a)

Utilizing the maximum payment amounts of Subpart H; ho\v will the cost of ob-

taining the additional information and writing the revised CAP be reimbursed?

b)

Could a proper 45 day “completeness review” by the Agency as provided in

732.5 05 prevent the rejection of such alternative technology CAPs?

c)

Could the Agency offer any guidance documents designed to “standardize” the

required supporting documentation for an alternative technology CAP and prevent

the potential for “out of pocket” expense to the Owner/Operator that the maxi-

mum payment amounts of Subpart I-I will create?

97.

The Owner/Operator has proposed to utilize a groundwater ordinance to exclude the

groundwater ingestion migratory pathway; however, a certain amount of work must be

performed by the Owner/Operator in order to educate the municipality concerning the

function and advantages of a groundwater ordinance.

a)

Does the Agency expect that the cost of dealing with the municipality to obtain a

groundwater ordinance will be a non reimbursable expense to the

Owner/Operator?

b)

Once the groundwater ordinance is in place, the Owner/Operator must model the

groundwater contamination to predict the migration of contamination. In accor-

dance with TACO, letters must then be sent to offsite property owners. ~epend-

ing upon on site specific conditions, as many as 10 or 12 property owners may

need to contacted. Based upon the maximum payment amounts, how does Subpart

H address the cost to the Owner/Operator necessary to model the contamination

for a groundwater ordinance, identify the many offsite property owners, and write

the offsite property owner notifications?

c)

Does the Agency expect that the cost of modeling, identifying offsite property

owners and writing the offsite property owner notifications to be a non reimburs-

able expense when utilizing a groundwater ordinance to exclude the groundwater

ingestion pathway?

98.

The Owner/Operator’s LUST site has been “inactive” because a previous consultant has

gone out of business. The LUST site is in the corrective action phase. Soil remediation

or an alternative technology was previously approved in a CAP and the remediation was

performed by the previous consultant; however, closure samples revealed that re~idual

contamination remains.

The site has been inactive for several years.

The

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Owner/Operator contracts a new consultant to complete the remediation process arid ob-

tain closure of the LUST site. The new consultant must FOIA all information and write

an Amended CAP to deal with the residual contamination. The Amended CAP will pro-

pose to utilize the tools of TACO to obtain closure. Assume that an ELUC and a High-

way authority agreement are possible remediation methods. The cost of the original CAP

prepared by the previous consultant has been reimbursed several years ago.

a)

Does the Agency expect that the cost of the Amended CAP written by a new con-

sultant will be a non reimbursable expense to the Owner/Operator?

b)

The new consultant identified in 98 above informs the Owner/Operator that the

cost of professional services to write the TACO CAP will exceed the “maximum

payment amounts” in Subpart H and approved by the Agency. (The cost of re-

viewing the FOIA information, developing an amended CAP, dealing with off-

site property owners to obtain an ELUC and dealing with the highway authoi-ity

will he significantly higher that the maximum payment amounts resulting in “out

of the pocket” expense to the Owner/Operator.) However, since alternative tech-

nologies are reimbursed on a time and materials basis within Subpart H; a more

costl.y alternative technology CAP would be fully reimbursed by the Agency

would result in no “out ofpocket” expense to the Owner/Operator.

c)

Does the Agency expect that the maximum payment amounts of Subpart H will

force an Owner/Operator to bypass the far less costly TACO remediation method

in favor of an alternative technology remediation method because the “out of

pocket” expense to the Owner/Operator is significantly less with the alternative

technology?

99.

During a conventional technology corrective action excavation, an unidentified UST is

discovered. Excavation work is delayed until the details about the unidentified UST are

investigated. Registration of the LIST is necessary and details of the EDD must be

worked out. An Amended CAP and budget are required because of the revised site con-

ditions:

a)

Under Subpart H; is any of the additional work to investigate the UST, obtain a

removal pennit, revise the EDD, and write an Amended CAP and Budget reim-

hursable when the original CAP has already been reimbursed?

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b)

Does the Agency expect that the cost of dealing with the previously unidentified

UST and writing an Amended CAP will be a non reimbursable expense to the

Owner/Operator?

100.

The Owner/Operator would like to utilize a bioremediation alternative technology to

rernediate a LUST site that he is now using as a business office. A biofeasibility study

CAP is proposed to the Agency and approved. The biofeasibility study is performed.

a)

Assume that the results of the biofeasibility study are not favorable and that a

conventional technology Amended CAP is then proposed to the Agency. Utiliz-

ing the maximum payment amounts of Subpart H; how will the biofeasibility

CAP be reimbursed and how will the conventional technology Amended CAP be

reimbursed?

b)

Does the Agency expect that the cost of writing the conventional technology

Amended CAP will be a non reimbursable expense to the Owner/Operator based

upon the maximum payment amounts?

10..

Assume that the results of the hiofeasihility study in question 100 above are favorable.

An Amended CAP is written to propose the alternative technology. The alternative tech-

nology CAP is rejected by the Agency for “lack of supporting documentation” and a list

of additional information is requested in order to demonstrate that the alternative technol-

ogy is reasonable and effective, A revised Amended CAP must be written.

a)

Utilizing the maximum payment amounts of Subpart H; how will the cost of ob-

taining the additional mnformatìon and writing the revised Amended CAP be re-

imbursed?

b)

Could a proper 45 day “completeness review” by the Agency as provided in

732.505 prevent the rejection of such alternative technology CAPs?

c)

Why has the Agency proposed to remove the 45 day completeness review provi-

sion that would prevent the “lack of supporting documentation” rejections?

d)

Could the Agency offer any guidance documents designed to “standardize” the

required supporting documentation for an alternative technology CAP and prevent

the potential for “out of pocket” expense to the Owner/Operator that the maxi-

mum payment amounts of Subpart H will create?

23

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1 02.

After presenting the revised Amended CAP, the Agency rejects the revised Amended

CAP requesting even more information. The Owner/Operator has become frustrated with

the process and the non reimbursable costs are piling up. The Owner/Operator decides

that in order to move the project forward, he will close the office, demolish the buildings

and use the conventional technology of excavation and disposal. Asphalt and concrete

located on the site will be replaced and the site will be sold.

a)

Utilizing the maximum payment amounts of Subpart H; how will the cost of writ-

ing the second revised Amended CAP be reimbursed?

b)

Does the Agency expect that the cost of writing the conventional technology

Amended CAP will be a non reimbursable expense to the Owner/Operator?

103.

The Agency has provided copies of DRAFT budget and billing fonns along with some

examples; however, no example was provided for an alternative technology CAP budget.

Can the Agency provide an example of an alternative technology CAP budget?

104.

Concerning Subpart C: In 734.505 Review of Plans, Budgets, or Reports paragraph (b),

the Agency has 120 days in which to review a plan, budget or report. However, in Sec-

tion 734.335 Corrective Action Plan paragraph (a), the Owner/Operator only has 30 days

afier Agency approval of a site investigation completion report to submit a corrective ac-

tion plan to the Agency. The same 30 days is also required for the presentation of a cor-

rective action completion report in Section 734.345 Corrective Action Completion Re-

ports paragraph (a). The same 30 days is required in Section 734.330 Site Investigation

Report.

a)

Why is the Agency given 120 days for each review of a report while the

Owner/Operator is only allowed 30 days to execute the approved plai~and to pre-

pare and submit a report?

b)

Why not allow the Owner/Operator a more realistic 120 days for report prepara-

tion and submittal?

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105.

Concerning Subpart H as it relates to Subpart C: The completeness review previously

provided in 732.5 05 has been deleted. In recent years, the Agency has almost ignored the

45 day completeness review requirement and now proposes to drop the completeness re-

view all together. At the same time, maximum payment amounts are being proposed in

Subpart H. Without the provision for a completeness review and without enforcement of

this provision, many (if not most) alternative technology CAPs and many CACRs end up

in an endless rejection cycle for “lack of supporting documentation”. Owner/Operators

must submit multiple reports in order to provide the “supporting documentation” that the

Agency could have requested in a 45 day completeness review.

a)

How can the Agency cooperate with the Owner/Operator to stop this endless cy-

cle of rejection for ‘lack of supporting documentation’ in CAPs and CACRs and

reduce the “out of pocket” expense that the maximum payment amounts of Sub-

part H will create for Owner/Operators?

106.

734.850 and 732.855, state that if an Owner/Operator incurs unusual or extraordinary ex-

penses that cause costs to substantially exceed the amounts set forth in Subpart H, the

IEPA may determine maximum payment amounts on a site-specific basis, and that the

Owner/Operator seeking payment for these expenses shall demonstrate the expenses are

unavoidable, reasonable andnecessary.

a)

What does the IEPA consider an unusual or extraordinary expense?

b)

Who at the EPA will be responsible for making these decisions?

c)

How will the Owner/Operator make i;hese demonstrations?

107.

In the language in 732.503(f~,does the IEPA intend that an Owner/Operator will not be

able to submit an amended plan if the EPA rejects a work plan or approves a work plan

with modifications?

25

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Respectfully submitted,

~

A.

Claire A. Manning, Attorney

/ ~

CLA1RE A. MANNING

Posegate & .Denes, P.C.

111 N. Sixth Street, Suite 200

Springfield, Illinois 62701

(217) 522-6152

(217) 522-6184 (FAX)

c1aire~posegate-denes.corn

26

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CLERKS OFFICE

FOSEGATE &

DENES, P.C.

MAY 0112004

Attorneys at Law

111 North 6th Street, Suite 200

STATE OF ILLINOIS

P.O. Box 338

Pollution Control Board

Springfield, IL 62705-0338

Carol Hansen Posegate

Telephone (217) 52.2-6152

Jane Nolan Denes

Facsimile (21.7) 522-6184

Claire A. Manning

Of Counsel

TO:

Marie Tipsord

FROM: Claire A. Manning

RE:

MESSAGE:

Please find enclosed PIPE’S PRE-FILED QUESTIONS TO THE ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY for filing with the IPCB

This docnrnent.is

being sent

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SHEET:

~3

L

CONFIDENTIALITY NOTICE: The documents accompanying this fax transmission contain confidential information

belonging to the sender which is legally privileged. The information is intended only for the use of the individual or entity

named above. If you are not the intended recipient, you

are

hereby notified that any reading, disclosure, copying, distribution

or the taking of any action in reliance on or regarding the contents of this faxed information is strictly prohibited. If you have

received this fax in error, please immediately notify us

by

telephone to arrange for return of the original documents to us.

NOTE: IF ANY PART OF TillS TRANSMISSION

WAS

l’iIISSING OR UNREADABLE, PLEASE CALL ~l’HISOFFICE

IMMEDIATELY

AT (217)

522-6152,

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