RECE~V~D
CLERK’S OFFICE
BEFORE
THE
ILLINOIS POLLUTION CONTROL
BOAR1~1AY
- 6 2004
PollutionSTATE
OFControlILLINOISBoard
INTHE MATTER OF:
)
)
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
)
PIPE’S PRE-FILED QUESTIONS TO
THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
NOW COMES Claire
A.
Manning, attorney forthe Professionals ofIllinois for the Pro-
tection ofthe Environment (“PIPE”), and inquires ofthe Illinois Environmental Protection
Agency the following:
1.
Please produce
all
documents relied upon in justification ofthe development ofthe 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” ofbudgets, 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 ofsuch documents, the basis of re-
liance upon such documents for a determination of“reasonableness” ofrates. (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.)
Printed on Recycled Paper in accordance with 35 I II. Adm. Code 101 .202 and I () .302(g)
2.
Please produce any and all published documents, including date of publication, contain-
ing standard industry rates typical ofthose sought for reimbursement ofLUST sites,
which the Agency relied upon in creating this rule. Ifno 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 of the various decision points and timeframes con-
tained within this process.
5.
Please provide examples ofthe various types of communication 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? Ifso, for what reasons?
7.
When does the Agency require 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 ofall forms and standardized documents utilized by the Agency in
its LUST program.
9.
Please provide copies ofall memos or directives that explain or direct LUST unit staff in
how to perform the various types of reviews that are performed.
10.
I-low many employees are paid from the LUST fund? What are their various job titles’?
Job duties? Responsibilities? Qualifications?
2
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35
III. Adm. Code I 01 .202 and I0 1.302(g)
ii.
Please provide any and all statistics and performance measures that the Agency 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 ofrequests that are approved, as
compared to those modified or denied, on a periodic basis? Ifso, please provide all such
statistical measures.
13.
In 734.8 10 UST Removal or Abandonment Costs, how were rates developed for the three
categories ofUSTs to be removed or abandoned and what specific tasks/work were in-
cluded in each category?
14.
In 734.8 15 (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.
In 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 (b) Drilling, Well Installation, and Well Abandonment, how was the
rate of$16.50/foot ofwell length derived for hollow-stem auger well completion and
$12.50/foot ofwell derived for direct-push well completion and what specific tasks/work
were included in each rate?
3
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17.
In Section 734.820 (c) Drilling, Well Installation, and Well Abandonment, how was the
rate of$10.50/foot ofwell 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 ofsoil ofdeveloped 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
forbackfill 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
ofoverburden 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, $1 50/drum ofliquid 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 ofConcrete, Asphalt, or Paving, how were the rates
of “$1.51/foot for 2 inches of asphalt or paving, $1.70/foot for 3 inches of asphalt or pav-
ing, or $2.18/foot for4 inches ofconcrete, asphalt or paving” developed and what
tasks/work are included?
24.
In Section 734.840 (a) Replacement of Concrete, Asphalt, or Paving; Destruction or
Dismantling and Reassembly of Above Grade Structures, how was the rate of$ 10,000
4
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in accordance with 35 III. Adm. Code 11)1 .202 and 11)1.302(g)
per site for the destruction or dismantling and reassembly ofabove grade structures de-
termined and what tasks/work were included?
25.
In Section 734.845 (a)(1) Professional Consulting Services, how was the rate of $960 for
payment ofcosts associated with the preparation for the abandonment ofUSTs 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 for professional oversight developed and what tasks/work
were included? Was overtime pay fornon-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 determined
that one half day would be sufficient for professional oversight drilling offour soil bor-
ings?
29.
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 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 ofa 20-day certification and 45-day report determined
and what tasks/work were included?
3 1.
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’?
5
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32.
In Section 734.845 (a)(6) Professional Consulting Services, how was the rate of$1,600
for the preparation and submittal offree product removal reports determined and what
tasks/work were included?
33.
In Section 734.845 (a)(7) Professional Consulting Services, how was the rate of$500 for
the preparation and submittal ofreports pursuant to Section 734.2 lO(h)(3) determined
and what tasks/work were included?
34.
In Section 734.845 (b)(1) Professional Consulting Services, how was the rate of$3,200
for the preparation ofStage 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 Consulting 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 monitoring well installed and what tasks/work
were included in the determination? Was overtime pay for non-exempt employees per
Department ofLabor 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 ofa Stage 3 Site Investigation Work Plan determined and what
tasks/work were included?
38.
In Section 734.845 (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?
6
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and
101 .302(g)
39.
In Section 734.845 (c)(l) 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 ofremediation objectives other than Tier I determined 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 ofEnvironmental 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)(1) and (b)(1) Soil Removal and Disposal, how was the swell factor
of
5
determined? Why was the rule ofthumb 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 ofSubpart 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 ofAgency review-
~ers? Of Project 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, ofany expected decrease in reimbursement that will result from the pro-
7
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posed regulations? Ifso, 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 ofsites as
compared with the costs ofadministering the program reviewing such costs?
50.
What information does the Agency have regarding the number of sites successfully
remediated in the last five years
—
on a yearly basis? Please provide. What have been the
annual expenditures from the Fund directly related to those remediations?
51.
What information does the Agency have concerning the estimated number ofLUST 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 ofthe cost on a single project as compared to the reimbursement under
historical LUST Fund reimbursement guidelines?
53.
What specific projects and incident numbers 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 oftasks proposed in Subpart I-I to be reimbursed on a
unit rate basis (S/ft, $/yd, S/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 oftasks.
57.
Brian Bauer 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 ofdata 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 forpay-
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 amounts
approved in budgets and thus applications forpayment, 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 ofMr. 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) were used for tank removal or abandonment.
a)
How many projects were in Early Action altogether at the time of this analysis’?
9
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in accordance
with 35111. Adni. Code 101.202 and 101.3(12(g)
b)
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 ofthe U5Ts 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 ofthese
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. Bauer stated on page 5 ofhis 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 ofthe state?
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iii
accordance with 35111. Adm. Code 101.2(12 and 101.302(g)
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 S/ft and nine
(9) LUST sites used for calculating the daily rate ofdirect push?.
62.
On page 6 and 7 ofMr. 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 Abandonment, Mr.
Bauer 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. On page 11 ofMr. 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?
c)
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
..
CECI
determined that field work would be best billed at a half-day rate. The half-day rate is
5
hours...”
a)
According to who?
II
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Adm.
Code 101.202 and 101.302(g)
b)
1-low 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).
e)
Did the consultants indicate any costs for this should be billed separately or on a
time and materials basis? Ifso, what were those costs?
66.
On page 13 ofMr. Bauer’s testimony stated “based on conversations with UST 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 UST removals performed before or after the
reporting ofa 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?
b)
Were considerations given to site specific site dimensions and restrictions?
c)
What consideration, if any, 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 ofcontaminated soil/backfill from being disadvantaged?
f)
Why was a Construction Cost Estimating book utilized instead of an environ-
mental remediation based book such as R.S. Means?
68.
On page 14 of Mr. Bauer’s testimony, he stated, “based on conversations with former
members outhe Agency’s drill rig team...” in regard to drilling costs.
12
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a)
Why were drilling contractors not 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 ofhalf-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 1
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, doôumentation, mapping,
etc. was evaluated?
c)
What consideration was given to wells located in a remote region andlor wells
deeper than the average?
e)
What if the site is over one-half hour travel time away from the consultant’s of-
fice?
71.
According to Mr. Bauer on page 16 ofhis testimony, 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 technician 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 ofthe
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 ofthe state utilized?
75.
Mr. Chappel offered that the Agency developed an overall average rate for professional
services of$81.25 /hour on page 6 ofhis 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 ofthe state?
b)
Was the data set across all consultants?
14
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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 ofwork 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 IEPA’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, etc.) 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 LEPA 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, groundwater sampling, 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 ofWater? Why has the Agency seen fit to disadvan-
tage Owner/Operators in regard to OSFM removal permits, IDOT oversize load permits,
IEPA Bureau ofAir permits, and other permits to investigate or remediate a site?
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. Batter stated on page 26 of the hearing transcripts that the reimbursed personnel rate
is based on the task performed, not necessarily the title, ofthe person performing the task.
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What tasks are allowed? This is not indicated in the table, so how will the Owner / 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-
plemented 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?
b)
How will the drilling of boreholes and installation of monitoring wells be reim-
b ursed?
c)
After completion of the plume identification work, how will the development of
the remediation CAP be reimbursed?
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d)
Does the Agency expect that the Plume Identification CAP will be a non reim-
bttrsable expense for the Owner/Operator or that the remediation 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 1 site
investigation as defined in Section 734.315 Stage 1 Investigation). The Stage 2 Site In-
vestigation is not needed because the Stage I investigation extended to the property
boundaries. The Stage 3 investigation involves up to three rounds ofdrilling 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 groundwater 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 determine the effect of the soil remediation 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 LUST site to TACO Tier 1, Class 1 Residen-
tial Objectives and a CAP was approved by the Agency for conventional technology.
The conventional technology 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
ofthe 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 reimbursable 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 typical 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 ofthe excavation reveal an unanticipated
exceedance of the Csat limit. An Amended CAP and budget must be written to investi-
gate the vertical extent of the Csat limit exceedance. After the vertical extent of the Csat
limit exceedance is investigated, another Amended CAP must be written and approved to
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 ofthe Csat 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 Csat limit ex-
ceedance?
c)
Does the Agency consider the cost ofthe Csat limit 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 to allow the Owner/Operator time to provide the information
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 1-I; how 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
732.505 prevent the rejection ofsuch 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 H 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 ofa 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. Depend-
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 reniediation was
performed by the previous consultant; however, closure samples revealed that residual
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 and 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 ofthe 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 ofprofessional 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 authority
will be 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
costly 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 UST 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 permit, revise the EDD, and write an Amended CAP and Budget reim-
bursable 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
remediate 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?
101.
Assume that the results of the biofeasibility 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 ofsupporting documentation” and a list
ofadditional 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 information 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 ofsuch 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 ofSubpart H will create?
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102.
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 ofwrit-
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 forms along with some
examples; however, no example was provided for an alternative technology CAP budget.
Can the Agency provide an example ofan 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
after 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 ofa 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 o,f a report while the
Owner/Operator is only allowed 30 days to execute the approved plan 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 732.505 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 and necessary.
a)
What does the IEPA consider an unusual or extraordinary expense?
b)
Who at the IEPA will be responsible for making these decisions?
c)
How will the Owner/Operator make these 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 IEPA rejects a work plan or approves a work plan
with modifications?
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Respectfully submitted,
~
4.
Claire A. Manning, Attorney
J
C~1P
CLAIRE A. MANNING
Posegate & Denes, P.C.
111 N. Sixth Street, Suite 200
Springfield, Illinois 62701
(217) 522-6152
(217) 522-6184 (FAX)
claire@posegate-denes.com
26
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35
Ill. Adm. Code 101.202 and IOl.3O2(g)
