BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
IN THE MATTER OF:
)
RECE
~
PROPOSED AMENDMENTS TO:
)
REGULATION OF PETROLEUM LEAKING
)
R04-22
MAY
i i 2O0~
UNDERGROUND STORAGE TANKS
)
(UST Rulemaking)
STATE OF ILLNO~S
(35
ILL. ADM. CODE
732),
)
pollution
Contro’ Board
)
iN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
)
REGULATION OF PETROLEUM LEAKING
)
R04-23
UNDERGROUND STORAGE TANKS
)
(UST Rulemaking)
(35
ILL. ADM. CODE 734)
)
Consolidated
)
NOTICE OF FILING
TO:
ALL
COUNSEL OF RECORD
(Service List Attached)
PLEASE TAKE NOTICE
that on May 11, 2004, filed with the Clerk of the Illinois
Pollution Control Board of the State of Illinois an original, executed copy of CW3M Company,
Inc.’s Prefiled Testimony and General Comments on the Environmental Protection Agency’s
Proposal to Adopt
35
Iii. Adm. Code 734 and to Adopt Amendments to
35
Ill. Adm. Code 732;
and Testimony of Vince E. Smith for the Environmental Protection Agency’s Proposal to Adopt
Amendments to
35
Ill. Adm. Code 732 and the Environmental Protection Agency’s Proposal to
Adopt
35
III. Adm. Code 734 in the above-captioned matter.
Dated: May 11, 2004
Respectfully submitted,
CW3M Company
By:
___________
e of Its Att~neys
Carolyn S. Hesse, Esq.
Barnes & Thornburg LLP
One North Wacker Drive -Suite 4400
Chicago, Illinois 60606
(312) 357-1313
21 8497v I
This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.2021
CERTIFICATE OF SERVICE
I, on oath state that I have served the attached CW3M Company, Inc.’s Prefiled
Testimony and General Comments on the Environmental Protection Agency’s Proposal to Adopt
35 Ill. Adm. Code 734 and to Adopt Amendments to 35 Ill. Adm. Code 732; and Testimony of
Vince E. Smith for the Environmental Protection Agency’s Proposal to Adopt Amendments to
35 Ill. Adm. Code 732 and the Environmental Protection Agency’s Proposal to Adopt 35 Ill.
Adm. Code 734 by placing a copy in an envelope addressed to the Service List Attached from
CW3M Company, Inc., 701 West South Grand Avenue, Springfield, IL 62704 before the hour of
5:00 p.m., on this 1
1th
Day ofMay, 2004.
(Qs
/.~)
Carol Rowe
This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202
2
Service List
Gina Roccaforte
Kyle Rominger
IEPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
217/792-5544
217/782-9807 (fax)
William G. Dickett
Sidley Austin Brown.& Wood
Bank One Plaza
10 South Dearborn Street
Chicago, IL 60603
312/853-7000
312/953-7036 (fax)
Bill Fleischi
Illinois Petroleum Marketers Association
112 West Cook Street
Springfield, IL 62704
217/793-1858
Robert A. Messina
General Counsel
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, IL 62703
217/523-4942
217/523-4948
Lisa Frede
Chemical Industry Council ofIllinois
2250 East Devon Avenue
Des Plaines, IL 60018
(847)
544-5995
Thomas G. Safley
Hodge Dwyer Zeman
3150 Roland Avenue
P.O. Box 5776
Springfield, IL 62705-5776
217/528-4900
217/523-4948 (fax)
Barbara Magel
Karaganis & White, Ltd.
414 North Orleans Street
Suite 801
Chicago, IL 60610
312/836-1177
312/836-9083 (fax)
Joe Kelly, PB
United Science Industries, Inc.
6295
East Illinois Highway 15
P.O. Box 360
Woodlawn, IL 62898-0360
618/735-2411
618/735-2907 (fax)
Kenneth James
Carison Environmental, Inc.
65
East Wacker Place
Suite 1500
Chicago, IL 60601
Michael W. Rapps
Rapps Engineering & Applied Science
821 South Durkin Drive
P.O. Box 7349
Springfield, IL 62791-7349
217/787-2118
217/787-6641 (fax)
Joel J. Stemstein, Assistant Attorney General
Matthew J. Dunn, Division Chief
Office ofthe Attorney General
Environmental Bureau
188 West Randolph,
20th
Floor
Chicago, IL 60601
312/814-2550
312/814-2347 (fax)
Dorothy M. Gunn, Clerk ofthe Board
Marie Tipsord, Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street, Suite 11-500
Chicago, IL 60601
312/814-3956
Scott Anderson
Black & Veatch
101 North Wacker Drive
Suite 1100
Chicago, IL 60606
Claire A. Manning
Posegate & Denes
111 North Sixth Street
Springfield, IL 62701
(217) 522-6152
Jonathan Fun, General Counsel
Illinois Department ofNatural Resources
One Natural Resources Way
Springfield, IL 72702-1271
217/782-1809
217/524-9640 (fax)
A.J. Pavlick
Great Lakes Analytical
1380 Busch Parkway
Buffalo Grove, IL 60089
847/808-7766
David L. Rieser, Partner
McGuire Woods LLP
77 West Wacker Drive
Chicago, IL 60601
312/849-8249
Tom Herlacher, P.E.
Principal Engineer
Herlacher Angleton Associates, LLC
8731 Bluff Road
Waterloo, IL 62298
618/935-2261
618/935-2694
(fax)
James E. Huff, P.E.
Huff & Huff, Inc.
512 West Burlington Avenue
Suite 100
LaGrange, IL
60525
Melanie LoPiccolo, Office Manager
Marlin Environmental, Inc.
1000 West Spring Street
South Elgin, IL 60177
847/468-8855
Brian Porter
Terracon
870
40th
Avenue
Bettendorf, IA 52722
563/355-0702
Glen Lee, Manager
Wendler Engineering Services, Inc.
1770 West State Street
Sycamore, IL 60178
815/895-5008
Joseph W. Truesdale, P.E.
CSD Environmental Services, Inc.
2220 Yale Boulevard
Springfield, IL 62703
217/522-4085
Monte Nienkerk
Clayton Group Services, Inc.
3140 Finley Road
Downers Grove, IL 60515
630/795-3207
2
Kurt Stepping
Director of Client Services
PDC Laboratories
2231 West Altorfer Drive
Peoria, IL 61615
309/692-9688
Daniel J. Goodwin
Secor International, Inc.
400 Bruns Lane
Springfield, IL 62702
Richard Andros, P.E.
Environmental Consulting & Engineering, Inc.
551
Roosevelt Road, #309
Glen Ellyn, IL 60137
Steven Gobelman
Illinois Department ofTransportation
2300 Dirksen Parkway
Springfield, IL 62764
Jennifer Goodman
Herlacher Angleton Associates, LLC
522
Belle Street
Alton, IL 62002
Ron Dye
President
Core Geological Services
2621 Monetga
Suite C
Springfield, IL 62704
(217) 787-6109
Erin Curley, Env. Department Manager
Midwest Engineering Services, Inc.
4243 W.
166th
Street
Oak Forest, IL 60452
708/535-9981
Thomas M. G~tist,PE
Team Leader
Atwell-Hicks, Inc.
940 East Diehi Road
Suite 100
Naperville, IL
60563
630/577-0800
Dan King, Team Leader
United Science Industries, Inc.
6295
East Illinois Hwy 15
Woodlawn, II 62898
618/735-2411
Terrence W. Dixon, P.G.
MACTEC Engineering & Consulting, Inc.
8901 N. Industrial Road
Peoria, IL
61615
Collin W. Gray
SEECO Environmental Services, Inc.
7350 Duvon Drive
Tinley Park 60477
George F. Moncek
United Environmental Consultants, Inc.
119 East Palatine Road
Palatine, IL 60067
Tina Archer, Attorney
Greensfelder, Hemker & Gale
10 South Broadway
Suite 2000
St Louis, MO 63104
314/241-9090
Ken Miller, Regional Manager
American Environmental Corp.
3700 W. Grand Ave., Suite A
Springfield, IL 62707
217/585-9517
3
Russ Goodiel, Project Manager
Applied Environmental Solutions, Inc.
P.O. Box 1225
Centralia, IL 62801
618/533-5953
Eric Minder
Senior Environmental Engineer
Caterpillar, Inc.
100 NE Adams Street
Peoria, IL 61629
(309) 675-1658
208776v1
Jarrett Thomas
Vice President
Suburban Laboratories, Inc.
4140 Litt Drive
Hillside, IL 60162
(708) 544-3260
Daniel Caplice
K-Plus Environmental
600 West Van Buren Street
Suite 1000
Chicago, IL 60607
(312) 207-1600
4
BEFORE THE POLLUTION CONTROL BOARD ~r~CE1VED
OF THE STATE OF ILLINOIS
RKS OFFICE
MAY
1120
N THE
MATTER OF:
)
STATE OF ILLINOIS
PROPOSED
AMENDMENTS
TO:
)
~OllUtiOflContt~OJBoard
REGULATION OF PETROLEUM LEAKING
)
R04-22
UNDERGROUND STORAGE TANKS
)
(UST Rulemaking)
(35
ILL. ADM. CODE 732),
)
)
IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
)
REGULATION OF PETROLEUM LEAKING
)
R04-23
UNDERGROUND
STORAGE TANKS
)
(UST Rulemaking)
(35
ILL. ADM. CODE 734)
)
Consolidated
)
TESTIMONY OF VINCE E. SMITH FOR THE ENVIRONMENTAL PROTECTION
AGENCY’S PROPOSAL TO ADOPT AMENDMENTS TO
35 ILL. ADM. CODE 732 AND THE ENVIRONMENTAL PROTECTION
AGENCY’S PROPOSAL TO ADOPT 35 ILL. ADM. CODE 734
My name is Vince Smith. I am employed with the CW3M Company as the senior
environmental engineer. I have been in my current position since June 2000. Prior to assuming
my current position, I was employed by the City of Springfield, Illinois, Department of Public
Works, the Illinois Department ofNuclear Safety, and Alpha Testing, Inc. I received a B.A. in
Mathematics from Culver-Stockton College in 1984 and a B.S. in Civil Engineering from the
University ofMissouri
—
Rolla in 1985. I am a Registered Professional Engineer in the State of
Illinois. My resume is attached.
The testimony was prepared with the assistance of Carol L. Rowe and Jeffrey Wienhoff
of CW3M Company who are available to assist with providing information during today’s
proceedings. Ms. Rowe is an Illinois Licensed Professional Geologist and Mr. Wienhoff is an
Illinois Enrolled Professional Engineer Intern. Their resumes are also attached.
CW3M Company, Inc. is an environmental consultant, which has been doing LUST work
since the company was created in 1991. CW3M has the equipment and abilities to perform tank
removals, excavations, groundwater treatment and soil vapor plant construction and operation,
bioremediation, landfarming, and demolition work in-house. Typically, CW3M subcontracts
laboratory services, drilling, a portion ofthe trucking, and landfill disposal. Many ofour clients
own a single facility, and are located in remote parts of the state, not close to landfills,
consultants, or other services.
The pre-filed testimony offers comments on the proposed technical modification of 732,
creation of 734 and extensive testimony against Subpart H: Maximum Payment Amounts. The
basis for our testimony against the rates proposed stems from serious concerns regarding the
collection and evaluation of data utilized to support the rates as well as a concern that the
streamlined approach misses payment for vital components of LUST work. The spreadsheets
that have been made available for inspection have revealed serious flaws in the selection criteria,
the age ofthe data, the input ofdata and the statistical evaluation. The Agency has not presented
a clear rationale for its statistical formulas. In some cases that were used to develop rates in the
proposed rules, the Agency only uses an average, while other times, the median value is selected,
or the average plus one standard deviation is used as the basis for rate setting. From the
Agency’s pre-filed testimony and discussion during the March 15, 2004 hearing, it appears that
the agency’s intent was to use rates consistent with historically approved rates and that 90 of
costs would fall into the approvable range. However, our evaluation ofthe rates and supporting
data indicates the opposite is in fact true.
CW3M acknowledges that the data, in the form ofbudgets and reimbursement requests, is
presented to the Agency in various formats and that they have had difficulty in correctly
2
extrapolating the information. Errors have been carried forward in the rate calculations. The
collection of meaningful data and proper evaluation of the data is an essential element to
establishing a means of determining reasonableness.
In the Agency’s attempt to streamline the review process, they have created a system that
is discriminatory to owners/operators across the state who are not located in close proximity to
consulting or clean-up contractors, landfills, etc. The effort to simplif~’the process resulted in
the Agency’s creation of lump sum maximum values for activities conducted to meet the
technical requirements of 732 and 734. The lump sum values are arbitrary, lack understanding
or consideration ofsite variations, and actual clean-up costs and are based upon severely flawed
methods with no supporting evidence. The lump sum values exacerbated the already flawed
underlying maximum rates, which incorrectly represents true costs and were improperly
calculated. Even when the Agency relied on published estimator guides, they miss-used the
guides.
While we agree that efforts to streamline the program are beneficial to the Fund, the
Agency’s oversight efforts, and consultant’s compliance work, the means of streamlining has not
been well thought out and we believe will have long term negative effects on the entire program.
The rate structure as proposed, will ultimately lead to failure of the program. Smaller owners
and operators who must rely on the Fund to afford corrective action would no longer be able to
clean up their sites if the proposed rates are adopted because too many of their costs would not
be reimbursable. Illinois has come a long way and has achieved technical superiority in
compliance with LUST regulations. Cost cutting will result in less field oversight to assure
compliance and technical reports which are less comprehensive than those the Agency reviews
today. The old adage, “you get what you pay for” is applicable to this program.
3
OSHA requirements dictate that all excavations be conducted under the supervision ofan
excavation competent person. CW3M’s field practices have combined the requirements to
incorporate the excavation-trained person’s responsibilities with those of technical oversight.
Such person cannot be performing equipment operations or other activities, which require their
undivided attention and would not allow them to be observing all on-site activities. UST
removal operations require considerably more observance of all activities being conducted,
including excavation and confined space activities. If consultants, UST removal contractors, and
excavation contractors are required to limit required personnel from the job sites to meet the
Agency’s budgetary numbers, serious violations of OSHA and other regulations will occur and
could result in serious injuries, death and penalties.
During the March
15,
2004 presentation of Agency testimony and the subsequent
question period, Mr. Jay Koch of United Science Industries, Inc. suggested that the Agency, in
conjunction with the consulting industry, develop a means of gathering cost data in a format that
could be accurately and statistically analyzed. The Agency responded that there was not time for
such an exercise because, due to Fund solvency concerns, actions were needed immediately.
This statement is in conflict with various other statements and facts regarding the proposed rates
and Fund solvency.
The Agency’s emergency need for rate setting is self-inflicted.
By and large, the
consultants who perform LUST work have been good stewards ofthe Fund. Large drops in the
balance ofthe Fund have not been caused by consultants, but by State reallocation of the money.
We understand the State’s budgetary crisis, but please don’t blame Fund declines on abuse
caused by consultants. The Illinois State Legislature increased the maximum amount payable•
from the Fund for each occurrence from $1 million to
$1.5
million. Increased costs associated
4
with remediation of LUST sites were the driving force for increasing the maximum amount.
However, the Agency’s proposal further reduces the amounts payable, in direct conflict with the
intention ofthe State Legislature.
CW3M has serious concerns regarding the Agency’s proposed auditing procedures. The
language in the Act allows the JEPA to audit information that was submitted to IEPA, as
necessary, to determine that the document under review is complete and accurate. The language
in the proposed rule indicates that the IEPA’s interpretation of the Act is that they can do
whatever, to whomever, whenever. CW3M concurs that some records should be retained, but
contend that the regulated entity, which is the owner / operator, should be the keeper of the
records. If the Agency wishes to periodically verify hours or other costs, particularly if they
have reason to suspect illegal activities, the Agency already has the ability to obtain the
information. There are currently mechanisms available for the Agency to collect necessary
documentation (i.e. deny payment or approval until the proper documentation is submitted), or
investigate possible fraud. If fraud or criminal acts are suspected, they should be investigated
through the Illinois Attorney General’s office and the Illinois State Police, who are authorized,
qualified, and trained to conduct such investigations.
Detailed discussions regarding the technical and fiscal components of the proposed 734
regulations and modifications Part 732 have been presented in CW3M’s pre-filed testimony for
the May 2004 hearing. My colleagues and I are available to answer questions regarding our
opinions as presented in our testimony. We thank the Board and parties present for their time
and efforts dedicated to this rulemaking procedure.
218457v1
5
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
PROPOSED AMENDMENTS TO:
)
R04-22
EVCD
REGULATIONS OF PETROLEUM LEAKING
)
(UST RuIemakinflC~RKsOFFICE
UNDERGROUND STORAGE TANKS
(35
)
ILL. ADM. CODE 732
)
MAY ~
~2t3Ok
IN THE MATTER OF:
)
)
R04-23
REGULATIONS OF PETROLEUM LEAKING
)
(UST Rulemaking)
UNDERGROUND STORAGE TANKS
)
Consolidated
(PROPOSED NEW ILL, ADM. CODE 734
)
CW3M COMPANY, INC.’S PREFILED TESTIMONY AND
GENERAL COMMENTS ON THE ENVIRONMENTAL PROTECTION
AGENCY’S PROPOSAL TO ADOPT 35 ILL.
ADM. CODE 734 AND TO
ADOPT AMENDMENTS TO 35 ILL. ADM. CODE 732
APPENDICES
ATTACHMENT A
Resumes
APPENDIX A
CW3M Company vs. IEPA No. 03-MR-0032
APPENDIX B
Environmental Justice
APPENDIX C
Statistical Demonstration
APPENDIX D
Porosity, Void Ration, and Unit Weight ofTypical Soils in
Natural State
APPENDIX E
USEPA DOCUMENTATION
APPENDIX F
“How to Select an Environmental Consultant”
APPENDIX G
Corrected IEPA Spreadsheets
APPENDIX H
PCB 92-31
APPENDIX I
CW3M Examples Site-Specific Approved Costs
APPENDIX J
CW3M Examples Illinois Department of Transportation
2003 Awarded Rates
APPENDIX K
National Construction Estimator Instructions and
Explanations
APPENDIX L
Comparison to CECI Ad-Hoc Committee
APPENDIX M
Agency Personnel Affidavits
APPENDIX N
Historic Rate Sheet Evaluation
PROPOSED
NEW
35
ILLINOIS
ADMINISTRATIVE CODE 734
CW3M
Company
GENERAL COMMENTS
I.
STATEMENTS OF REASONS
A.
Facts in Support, Purpose and Effect
1.
Background
The Agency states that the proposed amendments to 732 and the creation of734 are in
response to Public Acts
92-0554
and 92-0735. However, only a portion ofthe
amendments are relative to Public Acts 92-0554 and 92-0735 and the majority of changes
are beyond those required to respond to Public Acts 92-0554 and 92-0735.
The Agency indicates that the other amendments are designed to streamline the
reimbursement process. Careful review ofthe Agency’s proposed changes indicates that
adoption ofthe changes would be detrimental to UST owners and operators as well as
consultants and contractors who provide the required technical and regulatory assistance.
In the Agency’s attempt to streamline the review process, they have created a system that
is discriminatory to owners/operators across the state who are not located in close
proximity to consulting or clean-up contractors, landfills, etc. The effort to simplify the
process resulted in the Agency’s creation of lump sum maximum values for activities
conducted to meet the technical requirements of 732 and 734. The lump sum values are
arbitrary, lack understanding or consideration ofsite variations, and actual clean-up costs
and are based upon severely flawed methods with no supporting evidence. Even when
the Agency relied on published estimator guides, they miss-used the guides. In general,
the technical requirements are placed in conflict with the fiscal limitations. An
owner/operator will not be able to meet the technical requirements ofthe Act given the
lump sum amounts proposed. Further, the lump sum values proposed by the Agency will
force owner/operators to leave sites unremediated, particularly those with groundwater
contamination, or those not located in close proximity to necessary services.
The Agency is proposing to eliminate the majority ofbudgeting based upon “time and
materials” estimating. This is grossly inaccurate and discriminatory to a large percentage
of owners/operators. Several examples are presented to illustrate this point. Further, the
process of collecting and statistically analyzing the data used by the Agency to develop
rates and lump sums is unscientific, inaccurate, and misleading.
The Agency’s haste to draft new regulations to “simplify” budgeting and reimbursement
claims is completely lacking any real world experience or knowledge of the effort and
costs associated with work, or the complexities or unique characteristics of each site.
Numerous requirements simply cannot be accomplished given the short-sighted lump
sums. The Agency’s zeal to limit appeals for reimbursement claims has lead to a
proposal that will severely reduce the number and extent of UST clean-ups across the
State. The high rate ofappeals is a direct result of the IEPA’s recent practice ofimposing
maximum lump sum values although no such rule is in effect.
The Agency’s proposed maximum allowable rates and lump sum costs for activities will
ultimately lead to lack ofproper field supervision for investigative and corrective action
work. The hourly maximum rates are in conflict with the lump sum allowable costs; to
conduct the required work using personnel rates at or below the maximum hourly rates do
not equate to the maximum lump sum values for activities using estimated times to
conduct each task. Accordingly, proper field supervision cannot be conducted. Lack of
supervision seriously jeopardizes the integrity of sampling, results and assurances that the
work was conducted in accordance with the approved plan and the regulations. Further,
lack ofsupervisory personnel could result in serious OSHA violations and potential
injury to on-site personnel or nearby residences and properties.
OSHA requirements dictate that all excavations be conducted under the supervision ofan
excavation competent person. CW3M’s field practices have combined the requirements
to incorporate the excavation-trained person’s responsibilities with those of technical
oversight. Such person cannot be performing equipment operations or other activities,
which require their undivided attention and would not allow them to be observing all on-
site activities. UST removal operations require considerably more observance of all
activities being conducted, including excavation and confined space activities. If
consultants, UST removal contractors, and excavation contractors are required to limit
required personnel from the job sites to meet the Agency’s budgetary numbers, serious
violations of OSHA and other regulations will occur and could result in serious injuries,
death and penalties.
The Illinois State Legislature increased the maximum amount allowable for each
occurrence. Increased costs associated with remediation of LUST sites were the driving
force for increasing the maximum amount. However, the Agency’s proposal further
reduces the amounts payable, in direct conflict with the intention of the State Legislature.
The primary underlying flaw in the Agency’s proposal is that it does not present
anywhere the complete methods utilized to create its lump sum or hourly maximum rates.
Through deposition testimony for CW3M Company, Inc. v. Illinois Environmental
Protection Agency, Docket No. 03-MR-0032, Circuit Court of Sangamon County,
Illinois and in Illinois Ayers Oil Company v. Illinois Environmental Protection Agency,
PCB No. 03-214, fundamental flaws were discovered in the methods used by the Agency
to determine reasonableness of rates. It stands to reason that, since the rates proposed in
Part 734 are even lower rates than ones utilized less than one year ago, that the flaws
have been compounded. The Agency failed to collect and statistically analyze datato
develop its rates. As the underlying data is not even presented for review and discussion
in this proposal, the IEPA is attempting to proceed unchallenged, certain that if the
IEPA’s process was to be closely scrutinized, it would be thrown out as invalid. During
cross-examination ofMr. Brian Bauer in Illinois Ayers v. LEPA, PCB No. 03-214 (p.
224), Mr. Bauer states that he has been involved in development offive or six rate sheets.
He said that he pulled numbers from budgets that were either approved or approved as
2
modified CW3M v. IEPA, Docket No. 03-MR-0032. Circuit Court of Sangamon
County. Illinois (p. 22 ofdeposition), thus rates above the approved numbers were not
used to develop the rate sheets and the rate sheets do not represent the full range of the
rates submitted to the IEPA.
The previous rates sheets should be provided by the Agency to the Board for this
rulemaking proceeding. These rate sheets could then be reviewed and evaluated to
determine if the proposed rates are consistent with the previous rate sheets developed by
the Agency. Although none of the previous rate sheets went through formal rulemaking,
they were allegedly created using the Agency’s available data. Mr. Bauer further states
that no one else at the Agency or any outside statistical professionals have reviewed the
rate sheets, the input data or the procedures used to evaluate the data and that there is no
reason for anyone else to review the data for accuracy or validity (Illinois Ayers v. IEPA,
PCB No. 03-214). Given the mathematical and statistical questions and errors, CW3M
believes that proposing a rate structure is premature. CW3M believes that the practice
and the procedures used to set rates should first be evaluated through rulemaking. It
would not be necessary for the Agency have actual rates reflected in 732 and 734,
however, the procedures to develop such rates should be part of the regulations. The
rates themselves could be published as guidance, allowing the Agency to make, at a
minimum, annual inflationary adjustments, or price adjustments due to outside factors
such as new fees, without going through rulemaking each time. The procedures to
develop rates are the most critical element and should be the focus of these proceedings.
Throughout the Agency’s testimony during the March 15, 2004, hearing, claims were
made which lacked either supporting documentation or which were not scientifically
defendable; randomly selected samples were not random, averages accounted for more
than 50 ofthe data, and recently collected data means within the past three or four
years. The rate sheet was developed and prepared secretly, and as additional information
is released, the entire rate development process used by the Agency becomes more
suspect.
In Doug Oakley’s testimony in Riverview FS. Inc. v. Illinois Environmental Protection
Agency, PCB No. 97-226 (pages 29-33 Hearing Transcripts), a
guidance
excavation and
disposal rate of $50 per cubic yard was developed in 1993, and was adjusted upwards to
$55
in about three years. A guidance rate was not the maximum allowable rate, but was
intended to be a rate at or below which claims were determined to be immediately
approvable, above which required a time and materials review, which may or may not be
approvable. For comparison purposes, the inflation factor proposed by the Agency in the
Errata Sheet can be used to compare the 1996 guidance rate with the currently proposed
maximum rate. Conservatively assuming the
$55
rate began at the end of 1996, the
Implicit Price Deflator for the Gross National Product was
95.054
on January 1, 1997,
while it was 106.162 on October 1,2003, the $55
guidance
rate should now be $61.43,
instead of the
$57
proposed as a
maximum allowable
rate.
For years, people outside the Agency, and even some within the Agency, were lead to
believe that the rates developed by the Agency were done using scientific methods to
3
analyze the information submitted to the Agency. Now, the Agency has admitted that the
rates were not developed using random selection. For the few rates that the Agency has
submitted any supporting documentation, mathematical errors are apparent in that
documentation, and, instead ofjustifying the proposed rate, additional questions are
raised.
Another belief was that the rates represented an average plus one standard deviation of
budgets or costs submitted, which would include roughly five of every six submittals.
Now, it is apparent that some of the proposed rates JEPA has been using are simply
averages, or in some cases, less than averages. In the Agency’s testimony at hearing,
somehow up to 90 of all costs can be included in an average (transcript p. 299),
although this is highly improbable. Although not clear, some of the rates appear to have
been “created”, and then data to support them was prepared. While Mr. Chappel stated at
hearing that the reviewed the budgets as submitted (transcript p. 282), Mr. Bauer in a
previous deposition stated the costs were taken from budgets which were approved or
approved with modifications (CW3M Company. Inc. v. Illinois Environmental Protection
Agency, Bauer Deposition, page 22, December 2003). Mr. Doug Clay stated during the
March 15, 2004 hearing that the proposed rates are consistent with rates historically
approved by the Agency (In the Matter of: Proposed Amendments to Regulations of
Petroleum Leaking underground Storage Tanks 35111. Adm. Code 732 and Ill. Adm.
Code 734 (Consolidated). R04-22 and R04-23, Illinois Pollution Control Board,
Testimony in Support of The Environmental Protection Agency’s Proposal to Amend
35
Ill. Adm. Code 732, March 5, 2004.) and the costs incurred by consultants to perform
corrective action work would be in line with the proposed numbers (transcript p.80 &
299). CW3M strenuously disagrees with that statement and contends that the proposed
rates are significantly lower than rates previously or historically approved by the Agency.
Historically, the Agency would allow for higher costs where site conditions or site-
specific variables created higher costs. Further discussion is provided in our comments
regarding Subpart H and examples are presented in Appendix Ito illustrate costs
previously deemed reasonable due to site conditions or locations. Mr. King’s testimony
and responses to stakeholders’ questions also contradicts Mr. Clay’s assertion that the
proposed rates are consistent with historically approved rates. On page 59 ofthe March
15,
2004 transcripts, Mr. King states that the Agency has “looked to narrow what the
scope of what was reimbursed”, thereby reducing the reasonable amounts.
In the Agency’s testimony, it was implied that public sector input was sought, and
included in the creation ofsome of the limits. It was assumed that the public sector
entities that were consulted approved of the proposed limits. Now it is clear that the
Agency obtained information from the public sector, only to reduce the rates or number
ofhours, yet still claim the public sector provided the numbers. Similarly, numbers
obtained from published estimation guides are taken out ofcontext and used improperly.
Similarly, the Agency has forgotten or ignored that the Board set a rate of 1.68 tons per
cubic yard ofsoil during the last revision ofthe 732 regulations. The Agency’s proposed
regulations remove the references to 2.0 g/cm3 (1.68) and replace it with 1.5.
4
Additionally, the Agency has inserted invasive authority to audit procedures because of
rumors and innuendo which they have heard in order to inspect consultants, yet at the
same time they will not to let anyone inspect their work.
Inconsideration ofthe aforementioned reasons, the credibility ofany ofthe proposed
maximum payment amounts is questionable. After reviewing the existing regulations and
the Act, no references to rate setting, or limiting overall expenditures from the Fund were
found. The Act states the Agency is supposed to follow a procedure promulgated by the
Board (57.7(c)(3), PA
92-554).
The regulations currently state the Agency is to
determine reasonableness by reviewing each element necessary to accomplish a particular
task. The implementation of lump sum maximum rates and hours do not comply with the
currently required review process. In contrast to the current procedure, the Agency is
proposing to remove even the definition of “line item estimate” from the proposed
regulations.
The Agency has attempted for many years to develop reasonableness guidelines against
which to review budgets and reimbursement claim submittals. The difficulty in trying to
establish a protocol is acknowledged. But rather than attempting to deal with site-
specific variables, the Agency has tried to simplify the process by creating lump sum
arbitrary rates. The Agency states in STATEMENT OF REASONS, SYNOPSIS OF
TESTIMONY, AND STATEMENT REGARDING MATERIAL INCORPORATED BY
REFERENCE, I. STATEMENT of REASONS, B. Technical Feasibility and Economic
Reasonableness, 2. Economic Reasonableness, that adoption ofPart 734 will be a cost
savings to the Agency and reduce the number of appeals to the Board. Yes, in fact, the
number of appeals would be dramatically reduced as the owner or operator would no
longer have any recourse to recover costs deemed unreasonable by the Agency. If Part
734 is adopted, the Agency can hide, protected from scrutiny for its development of rates
and proceed unquestioned. The Agency is attempting to legitimize its flawed rate
development process using the Board and failing to disclose its methods. This is the
major concern of this Part. Under appeals, the Agency is forced to disclose its methods
for determining reasonableness and must be accountable for its decision-making. Under
the proposed Section 734 and modifications to Section 732, there is no accountability for
the Agency.
Further, CW3M contends that if the Agency didn’t utilize the proposed rates or if it used
its previous rates as guidance rather than law, the number ofappeals before the Board
would be greatly reduced. On page 78 of the March 15, 2004 hearing transcript, Mr.
Doug Clay conveyed that the Agency is seeing increased costs, increased number of
hours, implying that consultants are “pushing the envelope more and more as to what I
would maybe characterize as seeing more abuses or attempted abuses....” (transcript p.
78). Throughout the testimony and subsequent discussions, the Agency indicated that
734 would streamline the review process and that the Agency had been overwhelmed
with budget submittals and amendments. It is the opinion of CW3M that over the past
two to three years the increase in budget submittals is likely to be directly correlated with
the Agency’s use of its internal rates sheet as law. When the Agency issues a review
letter and makes deductions to proposed budget amounts, a statement is always added to
S
the description ofthe deductions, which reads, “Please note that additional information
and/or supporting documentation may be provided to demonstrate that the costs are
reasonable”. Accordingly, consultants will submit a budget amendment along with
justification for the costs, assuming that the Agency is sincere and will re-evaluate the
proposed costs. However, over the past two to three years, project managers have
refused to reconsider a rate or cost because the rate sheet was used as law, even though
they are telling consultants additional or supporting documentation can be submitted to
support the proposed cost. CW3M has on many occasions submitted supporting
documentation and had costs rejected a second or third time; with each rejection, the
Agency continues to tell us that we can submit additional information to support our
costs. So the Agency has created this swamp ofbudget amendments by their own
actions, which were mled as illegal use ofrate sheets. Based on CW3M’s experience, the
contention that consultants are “pushing the envelope” is not true, consultants are merely
responding to Agency deductions and implications that additional submittals would
remedy the situation has lead to the animosity apparent at the March
15,
2004 hearing.
By proposing rates, the Agency should be required to disclose all data and statistical
methods utilized in determining the reasonableness ofthe rates proposed.
Through deposition testimony for CW3M v. JEPA, Docket No. 03-MR-0032, Circuit
Court of Sangamon County, Illinois, CW3M learned that the Agency’s rate development
process is a self-fulfilling prophecy. The sites the Agency gathered data from for
inclusion in their database were hand selected and only included “approved” rates and not
those submitted reflecting the consulting market. (CW3M Company, Inc. v. Illinois
Environmental Protection Agency, Bauer Deposition, pp. 16-22, December 2003) By
using only approved rates, the range ofcosts were dramatically altered and narrowed to
fit the Agency’s current rate structure. Once statistically analyzed, the new rates become
even lower than the previous rates, as demonstrated in Appendix C. With regard to
selection ofrates to use in the database, the Agency did not use a random selection, but
rather hand-selected budgets, stating they threw out those of duplicated consultants.
(CW3M Company, Inc. v. Illinois Environmental Protection Agency, Bauer Deposition,
p. 16, December 2003) The Agency’s intent was to gather data from a cross-section of
numerous consultants, however, because the party gathering the data proceeded to do so
unsupervised, and had no knowledge or experience in statistical analyses, he failed to
recognize the statistical importance of including rates not approved and using true
random selection to sample the population (CW3M v. IEPA, Bauer Deposition, pp. 17-19,
December 2003). Random selection would have resulted in higher percentages of
budgets from consulting firms doing larger percentages of LUST work. The Agency
acknowledged that it had no criteria to follow to select budgets used in rate calculations.
(CW3M v. IEPA, Bauer Deposition, 15:17, December 2003)
During the March 15, 2004 presentation of Agency testimony and the subsequent
question period, Mr. Jay Koch ofUnited Science Industries, Inc. suggested that the
Agency, in conjunction with the consulting industry, develop a means ofgathering cost
data in a format that could be accurately and statistically analyzed. The Agency
responded that there was not time for such an exercise because, due to Fund solvency
6
concerns, actions were needed immediately. This statement is in conflict with various
other statements and facts regarding the proposed rates and Fund solvency. Mr. Doug
Clay, in his pre-filed testimony stated that the proposed rates were consistent with
historic rates and stated during questioning that he believes 90 of consultant’s rates and
remediation costs will come in within the proposed maximum rates. However, Mr. Harry
Chappel stated in deposition that probably 99.5 of the submitted budgets have
deductions imposed. (CW3M v. IEPA, Chappel Deposition, pp. 35-36, December 2003)
While CW3M can demonstrate that the proposed rates are lower than historic rates, the
Agency’s belief that historic rates are consistent with the proposed rates leads us to then
question what is the urgency of adopting the proposed rates to remedy Fund solvency.
The Fund has remained solvent for many years supporting remediation costs as
previously incurred and approved. The only dramatic impact on the Fund was Governor
Blagojevich’s use ofthe UST Fund to balance a severe shortfall in the State’s budget. If
consultant’s and remediation costs are unchanged and the IEPA and the OSFM are not
tapping the Fund for any greater volumes than they have historically, it becomes obvious
that the Fund’s jeopardy was not created by consultants and remediation costs. No such
references are found in Public Acts
92-0554
or 92-0735. Therefore, “fixing” the
solvency of the Fund should not be the sole burden of the environmental consultants and
contractors, as is proposed by the Agency. The Agency’s proposed rates and maximum
lump sum amounts will have severe impacts on UST owners/operators and consultants,
driving many ofthem out of LUST remediation work or out of business. Owners and
operators should not be punished for Fund solvency when they had no control over its use
for other State purposes. Ifthe Illinois General Assembly allowed the UST Fund to be
utilized for other purposes, then the Agency should work with the legislature to remedy
Fund solvency.
Also with regards to solvency ofthe UST Fund, the Pollution Control Board ruled in
1992 (City of Roodhouse v. IEPA, PCB No. 92-31, Illinois Pollution Control Board,
September 17, 1992.) that it was not the Agency’s statutory authority to preserve the
Fund or limit payments from the Fund in order to protect the solvency ofthe Fund.
If the
LUST Fund is unstable, it is primarily due to the re-appropriation of money from it by the
Governor and Legislature, not due to excessive rates charged by consultants. Ifthe
elected officials feel the need and wish to stabilize the UST Fund, they can do so by a
combination offour things: I. Use the revenues ofthe UST Fund more for UST purposes
instead of other uses, 2. Decrease the expenditures for the administration ofthe UST
Fund, 3. Create legislation to reduce the expenditures for UST Cleanups, 4. Increase the
revenues for the UST Fund. None ofthe options are currently within the statutory
authority granted to the Agency. The same Public Act that somehow, in the Agency’s
interpretation, necessitated the need to decrease the expenditures from the UST Fund,
also raised the limit per incident from $1,000,000 to
$1,500,000.
The Agency does not
have the authority to reduce the reimbursement levels in order to protect the LUST Fund
(~j~yof Roodhouse v. IEPA, PCB No. 92-31, Illinois Pollution Control Board,
September 17, 1992.), a decision that has apparently been ignored or forgotten.
The Agency has created, implemented, and is now attempting to legitimize its “rate
sheet”, which was poorly designed, poorly maintained, and a poorly-kept secret. Now,
7
based on the Agency’s declaration the fund is failing, rates which were already in effect
need to be rushed through rulemaking to stabilize the UST Fund balance. Since the
Agency has testified that they are currently operating consistent with the proposed rates,
but not implementing them, their approval as regulation should have no impact on the
Fund balance; therefore the Agency’s sense ofurgency is unfounded.
The Agency interpretation of the auditing authority described in the Act finds a similar
approach. In reviewing the language in the Act, it appears that the intent was to allow the
IEPA to obtain information, as necessary, to determine that the document under review is
complete and accurate. The IEPA’s interpretation of the language is that they can do
whatever, to whomever, whenever.
Additionally, while Mr. Clay stated during the hearing that the Agency is not currently
enforcing the proposed regulations, they are only using the costs they have found to be
reasonable. A review of theirpractices reveals a different truth. In two recent review
letters from the agency, CW3M has had their proposed drilling plan modified to meet the
Stage I investigation requirements by the IEPA Project Manager (Mathias Development
Co., #03-0411,2/9/04 & L.E. Anderson Bros., Inc., #03-0909, 2/11/04).
The IEPA is currently enforcing regulations that have not been enacted, and now wishes
to expand their duties to include the investigation of crimes, which have yet to be
committed. Without any cause, and without any limits, the IEPA is now attempting to
empower themselves to regulate consultants and regulate registered professionals. The
proposed language would allow IEPA to conduct raids at a frequency and intensity of
their choosing. Do the limits of the audit stop at the consultant’s office, or can it be
extended to the homes of employees?
There are currently mechanisms available for the Agency to collect necessary
documentation (i.e. deny payment or approval until the proper documentation is
submitted), or investigate possible fraud. If fraud or criminal acts are suspected, they
should be investigated through the Illinois Attorney General’s office and the Illinois State
Police, who are authorized, qualified, and trained to conduct such investigations.
As clearly demonstrated during the March 15, 2004 hearing, there is mutual mistrust and
a tenuous relationship betweenthe IEPA and the consultants. The same Agency that
refUsed to release data used to create the mystical rates proposed in Appendix H is now
requesting that the consultants allow them unrestricted access to every computer, file
cabinet, and scrap ofpaper in their possession.
If the Board decides that the “auditing” described in the Act extends to consultants and
registered professionals, then strict limitations as to the basis, frequency, and depth need
to be developed.
S
PROPOSED AMENDMENTS TO 35 ILLINOIS ADMINISTRATIVE
CODE 732
AND
PROPOSED NEW
35
ILLINOIS ADMINISTRATIVE CODE 734
CW3M
Company
SECTION-SPECIFIC COMMENTS
The following comments are presented to the Board regarding the proposed 734
regulations presented by the Agency. For ease of review, CW3M has duplicated the
language and reference from the Section being commented on followed by the comments,
which are presented in italics.
732.110 & 734.135
Form and Delivery of Plans, Budgets, and Reports: Signatures and
Certifications
b)
All plans, budgets, and reports shall be mailed or delivered to the address
designated by the Agency. The Agency’s record of the date of receipt shall be
deemed conclusive unless a contrary date is proven by a dated signed receipt from
certified or registered mail.
As
many documents are hand-delivered or sent by
private
carrier, such as Federal
Express and UPS, to ensure receipt (as is also impliedby the language ofthis section),
CW3M recommends the following additional language to encompass hand-delivered
documents:
b)
All plans, budgets, and reports shall be mailed or otherwise delivered to
the address designated by the Agency. The Agency’s record ofthe date of
receipt shall be deemed conclusive unless a contrary date is proven by a dated
signed receipt executed by Agency personnel acknowledging receipt of
documents, by hand delivery, by private delivery service, or by postal service
dated signed receipt of certjfled or registered mail.
d)
All plans, budgets, and reports submitted pursuant to this Part, excluding
Corrective Action Completion Reports submitted pursuant to Section
734.345
of
this Part, shall contain the following certification from a Licensed Professional
Engineer or Licensed Professional Geologist. Corrective Action Completion
Reports submitted pursuant to Section 734.345 of this Part shall contain the
following certification from a Licensed Professional Engineer.
I certify under penalty of law that all activities that are the subject ofthis
plan, budget, or report were conducted under my supervision or were conducted
under the supervision ofanother Licensed Professional Engineer or Licensed
Professional Geologist and reviewed by me: that this plan, budget, or report and
all attachments were prepared under my supervision; that, to the best ofmy
knowledge and belief, the work described in the plan, budget, or report has been
9
completed in accordance with the Environmental Protection Act 415 ILCS S,35
Ill. Adm. Code 734, and generally accepted engineering practices or principles of
professional geology; and that the information presented is accurate and complete.
I am aware there are significant penalties for submitting false statements or
representations to the Agency, including but not limited to fines, imprisonment, or
both as provided in Sections 44 and
57.17
of the Environmental Protection Act
415 ILCS
5/44
and 57.17.
The certjflcation has
two
primaryflaws or contradictions. First, the cert4/ication is
requiring the Licensed Professional Engineer to certjfy that the plan, budget, or report
has
been completedin accordance with principles ofprofessional geology. This
certjfication should be revised with a selection or distinguishmentfor which profession
the certjfication is being made.
Secondly, the certification requires compliance with the Environmental Protection Act
1415 ILCS 5 and 35 Ill. Adm. Code 734. As will be demonstrated in later Sections and
discussions, the requirements cannot be met both on technical levels as well as within
the cost structure proposed by the Agency. In calculating costsfor certain activities in
many areas ofthe State, the proposed lump sum values are unattainable utilizing
standard industry costs and generally accepted engineeringpractices, principles of
professionalgeology and/or OSHA requirements.
732.202 & 734.2 10
Early Action
h)
The owner or operator shall determine whether the areas or locations of
soil contamination exposed as a result of early action excavation (e.g., excavation
boundaries, piping runs) or surrounding USTs that remain in place meet the most
stringent Tier I remediation objectives of 35 Ill, Adm. Code 742 for the
applicable indicator contaminants.
1)
At a minimum, for each UST removed, the owner or operator shall
collect and analyze soil samples as follows:
A)
One wall sample shall be collected from each UST
excavation wall. The samples shall be collected from locations
representative ofsoil that is the most contaminated as a result of
the release. If an area ofcontamination cannot be identified on a
wall, the sample shall be collected from the center of the wall
length at a point located one-third of the distance from the
excavation floor to the ground surface. For walls that exceed 20
feet in length, one sample shall be collected for each 20 feet of
length, or fraction thereof, and the samples shall be evenly spaced
along the length ofthe wall.
10
B)
Two samples shall be collected from the excavation floor
below each UST with a volume of 1,000 gallons or more. One
sample shall be collected from the excavation floor below each
UST with a volume of less than 1,000 gallons. The samples shall
be collected from locations representative of soil that is the most
contaminated as a result of the release. Ifareas of contamination
cannot be identified, the samples shall be collected from below
each end of the UST if its volume is 1,000 gallons or more, and
from below the center ofthe UST if its volume is less than 1,000
gallons.
C)
One sample shall be collected from the floor ofeach 20 feet
of UST piping run excavation, or fraction thereof. The samples
shall be collected from a location representative of soil that is the
most contaminated as a result of the release. If an area of
contamination cannot be identified within a length of piping run
excavation being sampled, the sample shall be collected from the
center of the length being sampled. For UST piping abandoned in
place, the samples shall be collected in accordance with subsection
(h)(2)(B) ofthis Section.
D)
If backfill is returned to the excavation, one representative
sample of the backfill shall be collected for each UST with a
volume of less than 12,000 gallons and two representative samples
ofthe backfill shall be collected for each UST with a volume of
12,000 gallons or more.
The additional sampling requirements of
this
Section have technical merit; however,
the personnel costs associated with field oversight, inspection and sampling have been
ignored within the Agency’s lump sum proposed costs.
In order to collect samples in accordance with the proposed criteria, a senior
professional (such as an engineer or a geologist) would be required to be on site
throughout the entire excavation process. The entire excavation would need to be
completed in order to evaluate each wall and the excavationfloor to assess theproper
sample locations and to collect representative samples from the backfill materiaL It
has been the practice ofthe CJØM Company to have a senior professional on site
during these types ofactivities and while we concur that a senior professional should
be on site to evaluate the excavation, fill material and sampling locations, the proposed
lump sum costs do not allowfor the presence ofsuch personneL The maximum
payment amounts listed in Section 734.845(a)(2) allow only one-half day ofoversight
for UST removal or one-halfdayfor UST removal with disposal of250 cubic yards of
contaminatedfill materiaL
II
As discussed in much greater detail in comments to Section 734.800, the allowable time
and lump sum costs do not begin to cover the actual time and costs associated with
these early action activities. In an instance where no backfill is disposed, but the USTs
are removed, there Ic no allowancefor time or the personnel costs associated with
excavating and sampling the piping.
Section 734.21
OW
prohibits removal offill material in excess of4
feet
from the outside
dimensions ofthe tanks; however, Section 734.210 (h)(C) required excavating and
sampling ofthe piping trenches. One must assume that thisfill material should be
returned to its excavation and not be disposed of However, the lump sum costs provide
no allowance for the costs incurred with excavating the piping trenches, examining
and sampling the trench, nor backfilling the trench.
CW3M recommends adding or altering the language regarding sample collection to
accommodatefor situations, which may be encountered thatprohibit sample collection.
One example ofsuch a situation is an excavation, which cannot be dewatered
effectively to obtain wall orfloor samples or where wall orfloor samples are so
saturated that accurate laboratory analysis cannot be completed. Another example Ic a
situation where the excavation wall adjoins to or ends at a structure, such as afooting,
basement or retaining wall, which prevents soil sample collection. The current
language makes no allowancefor suchfield conditions prohibiting sample collection.
732.307
Site Evaluation
732.307(f)
Contacting the Illinois State Geological Survey, the Illinois State
Water Survey, and the Illinois Department ofPublic Health (or the county of local
health department delegated by the Illinois Department of Public Health to permit
potable water supply wells) to identif~’potable water supply wells other than
community water supply wells; and
The Agency made no allowancefor the costs ofconducting the initial water supply well
surveys in Subpart H. The time spent conducting the well survey is variablefrom site
to site dependent upon the area surrounding the LUSTsite and the number ofwells
that are reported in the surveys; collecting, and organizing and reporting the data.
732.309
Site Classification Completion Report
732.309(a)(3) A
narrative that, at a minimum, identifies each entity contacted to
identify potable water supply wells pursuant to this Section, the name and title of
each person contacted at each entity, and field observations associated with the
identification ofpotable water supply wells;
Subpart Hprovides no allowance or reimbursementfor detailedsurveys, which may
include property inspections and interviews, contacting property owners, securing
12
accessfor inspections, etc or for preparing the report required in 732.309. Costs
associated with this type ofactivity should be allowable and should be estimated on a
site-spec(flc time and materials basis.
732.312
Classification by Exposure Pathway Exclusion
BOARD NOT: Owners or operators proceeding under subsection (a)(2) or ~ (k)-of this
Section are advised that they may not be entitled to full payment from the Fund and that
applications for payment must be submitted no later than one year afterthe date the
Agency issues a No Further Remediation Letter ef-reimbufsement. Furthermore, owners
or operators may only be reimbursed for one method of site classification. See Subpart F
of this Part.
While mod4/ication to the Section 732.312 Board Note may allow the Agency to archive
its files sooner than they currently are able to do so, this submittal limitation may cause
severe hardshipfor owners or operators or their beneficiaries.
As has been CW1M’s experience on afew cases, Illinois Pollution Control Board
appeals may be pending and settlement negotiations are in progress. There is no
incentivefor the Agency to expedite the process andfinal disposition ofa case when it
can exceed one year. In such a circumstance, the owner or operator would be
preventedfrom submittal ofa claim until the appeal is settled or reaches a decision by
the Board.
Should an owner or operator submit a plan or budget, which is rejectedby the Agency
and deems an appeal is its best course ofaction, the time to reach settlement or a
decision by the Board may extend beyond the timeframefor allowance ofsubmittalfor
an application forpayment (following approval ofthe budget).
For 731 sites (where no budget is in place), the Agency has historically utilized the
general review and payment guidelinesfor 732 sites, except for the 120-day review
clock. Ifthe reviewprocess exceeds one year, as it often does, and some costs are
denied or resubmittal is required, the owner or operator would not have the
opportunity to do so with the time constraints ofthis Board Note.
An owner or operator’s incapacitation, illness, inaccessibility or even death can cause
delays in submittal offinal plans, budgets or requestsfor payment
For these reasons and other unanticipated reasons, modWcations to the 732.312 Board
Note should be stricken.
734.310
Site Investigation
--
General
13
a)
Prior to conducting site investigation activities pursuant to Section
734,315, 734.320, or
734.325
ofthis Part, the owner or operator shall submit to
the Agency for review a site investigation plan. The plan shall be designed to
satisfy the minimum requirements set forth in the applicable section and to collect
the information required to be reported in the site investigation plan for the next
stage of the investigation, or in the site investigation completion report, whichever
is applicable.
b)
Any owner or operator intending to seek payment from the Fund shall,
prior to conducting any site investigation activities, submit to the Agency a site
investigation budget with the corresponding site investigation plan. The budget
shall include, but not be limited to, a copy of the eligibility and deductible
determination ofthe OSFM and an estimate of all costs associated with the
development, implementation, and completion of the site investigation plan,
excluding handling charges and costs associated with monitoring well
abandonment. Costs associated with monitoring well abandonment shall be
included in the corrective action budget. Site investigation budgets should be
consistent with the eligible and ineligible costs listed in Sections
734.625
and
734.630 ofthis Part and the maximum payment amounts set forth in Subpart H of
this Part. A budget for a Stage I site investigation shall consist ofa certification
signed by the owner or operator, and by a Licensed Professional Engineer or
Licensed Professional Geologist, that the costs of the Stage I site investigation
will not exceed the amounts set forth in Subpart H ofthis Part.
This Subsection requires an estimate ofall costs associated with the development,
implementation, and completion ofthe site investigation plan along with certjfication
that the costs do not exceed the amounts setforth in Subpart H. As is demonstrated in
detail in comments regarding Subpart H,for many sites, accurate completion ofsite
investigation activities cannot be conductedfor the amounts listed in Subpart H.
Estimates are developed by professional consultants on a time and material basis
which includes signj,tIcant experience regarding the amount oftime required to
complete each task, location of the site relative to consulting and drilling service
providers, as well as contingenciesfor frequently encountered difficulties (such as
auger refusal, poor sample recovery, concrete boring, etc.).
Utilizing the Agency’s lump sum estimates, which provide no site-spec~cfactors, the
cost estimatesfor many sites will exceed the maximum payment amounts, and
therefore, the budget cannot be certWed. Ifa true estimate exceeds the amounts in
Subpart H, the licensedprofessional would be required to submit afraudulent
certWcation or the plan would be rejectedwithout such certjfication.
Further, the technical requirements of 734.315(a) may be dramatically djfferentfrom
site to site, dependent upon the number and size oftanks, depths oftanks, size of
excavation, size ofthe property, number ofexcavation samples, number and length of
piping runs and associated number ofpiping excavation samples, and depth to
groundwater. The maximum payment amount does not allowfor any deviation or
adjustment ofcostsfor sites that require a much more comprehensive Stage 1
investigation.
734.315
Stage I Site Investigation
Section 734.315fails to address situations where sample recovery is poor or non-
existent due to the nature ofsubsurface materials, such as weathered bedrock, coarse
or wet sand. There is no provision ofallowable associated costfor additional drilling
in attemptto securesufficient recoverable sample as required by 734.315(a)(1)(G).
734.320
Stage 2 Site Investigation
The technical requirements of 734.320(a) may be dramatically djfferentfrom site to
site, dependent upon the number ofsamples collected during the Stage 1 investigation
(which were based on the number ofearly action samples exceeding Tier 1 remediation
objectives which were collected on the basis ofthe number and size oftanks).
734.320(a)(1) requires “Soil samples be collected in appropriate locations and at
appropriate depths, based upon the results ofthe soil sampling and other investigation
activities conducted to date....” The language itself implies that the Agency cannot
establish a set number of borings or pre-determine sample depths, however, Subpart H
pre-establishes the amount oftime for professional consulting servicesfor report
preparation. However, the length oftime to prepare a report will vary due basedon the
quantity ofbore logs, well completion reports, and samples included.
b)
The Stage 2 site investigation plan shall include, but not be limited to, the
following:
2)
A characterization ofthe site and surrounding area, including, but
not limited to, the following:
A)
The current and post-remediation uses ofthe site and surrounding
properties; and
B)
The physical setting of the site and surrounding area including, but
not limited to, features relevant to environmental, geographic, geologic,
hydrologic, hyrogeologic, and topographic conditions;
CJØM objects to the characterization requiring the post-remediation uses ofthe she
and the surrounding properties. Only in limited instances does the property owner of
the UST site know with any certainty thefuture use ofthe property. If the LUSTsite is
an activefacility and the owner or operator plans to continuefuel sales, thefuture use
is definable. Ifthe LUST site is a closed or soon to be closedfacility and the property
ownerplans to sell the real estate, the owner or operator will have no idea what the
15
future use ofthe property will be. Similarly, post-remediation use ofthe surrounding
properties is anyone’s guess. If the entire investigation and remediation process
requires severalyears to complete, the site investigation characterization ofthe
properties will likely be outdated.
Further, the current orfuture uses ofproperties should have no bearing on the results
ofthe site investigation or development ofcorrective action plans. If an off-site
property is affected by a release, remediation ofthatproperty should not be
downgraded iffuture
use
may be commercialrather than residential. Decisions as to
conduct remediation or to rely upon land use or institutional controls should
lie
with
theproperty owner and not the Agency. Property owners should not be discriminated
against or disallowed remediation oftheir property by the Agency based on the sole
potentialfuture
use
ofthe property. Mr. Doug Clay stated during the Agency’s
testimony on March 15, 2004 that the development ofhigher clean-up objectives or
use
ofinstitutional controls or engineeredbarriers was at the discretion ofthe tank and
property owners. Such decisions should remain in the property owners discretion.
If off-she access or investigation is not required ofan off-she property and no
communication has been established, that property owner has no reason to disclose
information regarding theirproperty to the UST owner, operator or their professional
consultant
734.325
Stage 3 Site Investigation
c)
Upon completion ofthe Stage 3 site investigation the owner or operator
shall proceed with the submission ofa site investigation completion report that
meets the requirements of Section 734.330 ofthis Part.
The Stage 3 site investigation should contain a provision that allowsfor additional off-
site investigation, jfnecessary, to completely define the extent ofsoil and groundwater
contamination and to allowfor collection ofall data requiredfor submittal ofthe site
investigation completion report
For example, during Stage 3 she investigation activities, three off-site properties are
investigated as a result ofcontaminationfound at the property boundaries ofthe LUST
site. Stage 3 investigation includes one soil boring/groundwater monitoring well on
each ofthe properties. (Previous experience with the Agency indicates that proposing
numerous borings/monitoring wells on each off-site property would be denied as
exceeding the minimum requirements ofthe Act) The results ofthe investigation
confirm soil and groundwater contamination on one ofthe off-she properties at levels
well in exceedance of the most stringent Tier 1 remediation objectives. In order to
define the full extent ofsoil and groundwater contamination and to complete the site
investigation completion report, additional off-she investigation is necessary.
16
There was considerable debate during the Agency’s testimony on March 15, 2003
regarding the extent ofsite investigation plans and what happens when the plume has
not been delineated at the end ofStage 3. The Agency ‘.c suggestion was that the
proposals include contingenciesfor additional drilling so that all work can be done
within the 3 stages. However, there is no criteriafor how much additional drilling
should be proposed or
if
the Agency modjfies or reduces the drilling plan and b is later
determined that the drilling is necessary. if additional drilling is necessary, there Ac no
mechanismfor the owner or operator to be reimbursedfor the additional costs. The
Agency stated that it is not their intention to modjfy theplans proposed by consultants.
CW~Mrecommends that
if
the Agency alters plans or circumstances arisefor which
the consultant built in contingency borings, but the Agency approved investigationt is
still not sufficient to delineate the plume, that these circumstances qualify as unusual
or extraordinary and receive adequate reimbursement to complete the task in a
technically competent manner.
734.330
Site Investigation Completion Report
b)
A description of the site, including but not limited to the following:
I)
General site information, including but not limited to the site’s and
surrounding area’s regional location; geography, hydrology, geology,
hydrogeology, and topography; existing and potential migration pathways
and exposure routes; and current and post-remediation uses;
CWM objects to the she investigation completion report requiring the post-
remediation uses ofthe site and the surrounding properties. Only in limited instances
does the property owner ofthe USTshe know with any certainty thefuture use ofthe
property. If the LUSTsite is an activefacility and the owner or operatorplans to
continuefuel sales, thefuture use is definable,
if
the LUST site is a closed or soon to
be closedfacility and the property owner plans to sell the real estate, the owner or
operator will have no idea what thefuture use ofthe property will be. Similarly, post-
remediation use ofthe surrounding properties is anyone’s guess. If the entire
investigation and remediation process requires several years to complete, the site
investigation characterization ofthe properties will likely be outdated.
Further, the current orfuture uses ofproperties should have no bearing on the results
ofthe site investigation or development ofcorrective action plans. If an off-site
property is affected by a release, remediation ofthat property should not be
downgraded iffuture use may be commercial rather than residentiaL Decisions as to
conduct remediation or rely upon land use or institutional controls should lie with the
property owner and not the Agency. Property owners should not be discriminated
against or disallowed remediation oftheir property by the Agency based on the sole
potentialfuture
use
ofthe property.
17
If off-site access or investigation is not required ofan off-site property and no
communication has been established, that property owner has no reason to disclose
information regarding their property to the UST owner, operator or their professional
consultant
732.404
High Priority Site
732.404(e)(2) The Agency may require additional investigation ofpotable water
supply wells, regulated recharge areas, or wellhead protection areas if site-specific
circumstances warrant. Such circumstances shall include, but not be limited to,
the existence of one or more parcels of property within 200 feet ofthe current or
modeled extent of soil or groundwater contamination exceeding the most stringent
Tier
I
remediation objectives of 35 III. Adm. Code 742 for the applicable
indicator contaminants where potable water is likely to be used, but that is not
served by a public water supply or a well identified pursuant to subsections (1) or
(b) of this Section. The additional investigation may include, but shall not be
limited to, physical well surveys (e.g., interviewing property owners, investigating
individual properties for wellheads, distributing door hangers or other material
that requests information about the existence ofpotable wells on the property,
etc.).
The Agency made no allowancefor the costs ofconducting the initial water supply well
surveys in Subpart H, much less allowance for detailed surveys which may include
property inspections and interviews, contacting property owners, securing accessfor
inspections, etc. The time spent conducting the well survey is variablefrom site to site
dependent upon the area surrounding the LUST site and the number of wells that are
reported in the surveys; collecting, organizing and reporting the data which the Agency
may require of 732.404(e) (2) could be exponentially variable. Costs associated with
this type ofactivity should be allowable and should be estimated on a site-specj/ic time
and materials basis.
The additional investigation requirement provides no reliefto owners or operators who
have made goodfaith attempts to secure the information, but were unable to attain the
information for reasons beyond their control, such as no response forproperty/well
owners, no access to properties to visually inspect/locate the wells, etc.
732.405
Plan Submittal and Review
Section 732.405(b) contains language that could place contradictory requirements
upon the certjfying professionaL
Such budget plans shall include, but not be limited to, a copy of the eligibility and
deductibility determination ofthe OSFM and ~ a line item estimate ofall costs
associated with the development, implementation and completion of the
18
applicable activities, excluding handling charges. Formulation ofbudget plans
should be consistent with the eligible and ineligible costs listed at Sections
732.605 and 732.606 ofthis Part and the maximum payment amounts set forth in
Subpart H of this Part.
Providing a true estimate ofall costs associated with a proposed plan may not be
consistent with the costs setforth in Subpart H. Please review detailed discussions
regarding the rates proposed in Subpart H.
734.335
Corrective Action Plan
734.335(1)(5) A description of the current and projected future uses of the site;
CW3M objects to the corrective action plan requiring the projected future uses ofthe
site. Only in limited instances does the property owner ofthe UST site know with any
certainty the future use ofthe property. Ifthe LUST site is an activefacility and the
owner or operator plans to continuefuel sales, the future use is definable. Ifthe LUST
site is a closed or soon to be closedfacility and the property owner plans to sell the real
estate, the owner or operator will have no idea what the future use ofthe property will
be. Similarly, post-remediation use ofthe surrounding properties is anyone’s guess. If
the entire investigation and remediation process requires severalyears to complete, the
projectedfuture
use
ofthe property may become outdated and irrelevant.
Further, the current or future uses ofproperties should have no bearing on the results
ofthe site investigation or development ofcorrective action plans. Ifa property is
affected by a release, remediation ofthat property should not be downgraded4ffuture
use may be commercial rather than residentiaL Decisions as to conduct remediation or
rely upon land use or institutional controls should
lie
with the property owner and not
the Agency. Property owners should not be discriminated against or disallowed
remediation oftheirproperty by the Agency based on the sole potentialfuture
use
of
the property.
732.407 & 734.340
Alternative Technologies
(b)
An owner or operator intending to seek payment for costs associated with
the use of an alternative technology shall submit a corresponding budget in
accordance with Section 734.335 of this Part. In addition to the requirements for
a corrective action budget at Section
734.335
of this Part, the budget must
demonstrate that the cost ofthe alternative technology will not exceed the cost of
conventional technology and is not substantially higher than other available
alternative technologies.
For several reasons, CIØM recommends striking a portion ofthe
last sentence.
CW3M, by standard practice evaluates corrective action options, including alternative
technologies,forevery site. Oflen, there are technical and legal reasons, which limit
19
the
use
ofsome or all alternative technologies. For example, some alternative
technologies arepatented and may not be used by anyone other than the patent holder
without a licensing agreement with the patent holder. To adequately compare costsfor
all other technologies requires that corrective action plans be developedfor each in
order to develop cost estimates. This is overly burdensome and the Agency in no way
provides the resources necessary to complete multiple plans and budgets and then fully
evaluate one against another, Further, by limiting the use ofalternative technologies
on the basis ofcost alone will notpromote development ofnew technologies or allow
the alternative technologies to be refined and possibly become more efficient and less
costly. Additionally, some alternative technologies areproprietary and cost and
Ikensing information may not be readily available. Accordingly, CW3M recommends
that the last sentence be re-written asfollows, “In addition to the requirementsfor a
corrective action budget at Section 734.335 ofthis Fart, the budget must demonstrate
that the cost ofthe alternative technology will not exceed the cost of conventional
technology and is not substantially higher than other available alternative
734.340(d)
The Agency may require remote monitoring of an alternative
technology. The monitoring may include, but shall not be limited to, monitoring
the alternative technology’s operation and progress in achieving applicable
remediation objectives.
The Agency needs to better define what it means by remote monitoring andfor what
types ofremediation it may require such monitoring. The Agency also must recognize
that a remote monitoring system cannot monitor “progress in achieving the applicable
retnediation objectives
“.
Only qualjfiedpersonnel can extract and evaluate data
gathered by remote monitoring to determine effectiveness. The Agency also must
recognize the costfor installation, maintenance and data management ofremote
monitoring systems must all be deemed reasonable costs associated with such type of
system.
732.409
Groundwater Monitoring and Corrective Action Completion
Reports
732.409(a)(2)(C)
A narrative that, at a minimum, identifies each entity
contacted to identify potable water supply wells pursuant to this Section, the name
and title of each person contacted at each entity, and field observations associated
with the identification of potable water supply wells;
Subpart Hprovides no allowance or reimbursementfor detailed surveys, which may
include property inspections and interviews, contacting property owners, securing
accessfor inspections, etc or forpreparing the report required in 732.409. Costs
associated with this type ofactivity should be allowable and should be estimated on a
site-specific time and materials basis.
734.345
Corrective Action Completion Report
20
734.345(l)(D) The anticipated post-corrective action uses ofthe site and areas
immediately adjacent to the site;
CW3M objects to the corrective action completion report requiring the post-corrective
action uses ofthe site and the surrounding properties. The current orfuture use ofthe
properties has no bearing on completion ofcorrective action or the demonstration that
remediation objectives have been obtained. Decisions as to conduct remediation or rely
upon land use or institutional controls should lie with the property owner and not the
Agency. Property owners should not be discriminated against or disallowed
remediation oftheir property by the Agency based on the sole potentialfuture use of
theproperty.
if off-site access is denied or investigation is not required ofan off-site property and no
communication has been established with the off-site property owner, thatproperty
owner has no reason to disclose information regarding his or her property to the UST
owner, operator or their professional consultant
732.411 & 734.350
Off-site Access
(b)(3) That, in performing the requested investigation, the owner or operator will
work so as to minimize any disruption on the property, will maintain, or its
consultant will maintain, appropriate insurance and will repair any damage caused
by the investigation;
The costs associated with minimizing disruption to a property (such as non-business
hours, weekends, etc.) or damage repair (such as repairing tire tracks, asphalt,
concrete, landscaping, etc.) have not been considered in Subpart H.
if
the Agency is
requiring that these potential issues be addressed with off-site property owners, the
Agency must present a mechanismfor reimbursing more than the lump sum
investigation costs for investigation activities.
(0
The owner or operator is not relieved ofresponsibility to clean up a
release that has migrated beyond the property boundary even where off-site
access is denied.
çJ)
should be stricken in its entirety. To include this language is contradktory to all
previous requirements ofowners or operators and the Agency’s determination ofbest
efforts regarding attempts to secure off-site access,
if
an owner or operator has made
every reasonable and required effort to access an off-site property for purposes of
investigation and/or remediation, the owner or operator should be relievedofclean-up
responsibilities under 732 & 734. By removing this paragraph, an off-site property
owner is still not prohibitedfrom pursuing a civil action against the tank owner or
operator. If an off-site property owner denies access after being informed ofthe
21
provisions ofthese sections, that property owner should be held accountablefor their
own actions.
Section 734.445
Water Supply Well Survey
The Agency made no allowancefor the costs ofconducting water supply well surveys
in Subpart H. The time spent conducting the well survey is variablefrom site to site
dependent upon the area surrounding the LUSTsite and the number ofwells that are
reported in the surveys. This activity should be conducted and charged on a time and
material basis, which accounts for sites with numerous wells identjfied.
734.445(a)(2) Contacting the Illinois State Geological Survey, the Illinois State
Water Survey, and the Illinois Department of Public Health (or the county or local
health department delegated by the Illinois Department ofPublic Health to permit
potable water supply wells) to identi& potable water supply wells other than
community water supply wells; and
734.445(c)
The Agency may require additional investigation ofpotable water
supply wells, regulated recharge areas, or wellhead protection areas if site-specific
circumstances warrant. Such circumstances shall include, but not be limited to,
the existence ofone or more parcels ofproperty within 200 feet of the current or
modeled extent of soil or groundwater contamination exceeding the most stringent
Tier I remediation objectives of 35 Ill. Adm. Code 742 for the applicable
indicator contaminants where potable water is likely to be used, but that is not
served by a public water supply or a well identified pursuant to subsections (I) or
(b) of this Section. The additional investigation may include, but shall not be
limited to, physical well surveys (e.g., interviewing property owners, investigating
individual properties for wellheads, distributing door hangers or other material
that requests information about the existence ofpotable wells on the property,
etc.).
The Agency made no allowancefor the costs ofconducting the initial water supply well
surveys in Subpart H, much less allowancefor detailedsurveys which
may
include
property inspections and interviews, contacting property owners, securing access for
inspections, etc. As mentioned above, the time spent conducting the we/i survey is
variablefrom site to site dependent upon the area surrounding the LUSTsite and the
number ofwells that are reported in the surveys; collecting, organizing and reporting
the data which the Agency may require of 734.445(c) could be exponentially variable.
Costs associated with this type ofactivity should be allowable and should be estimated
on a site-spec4/ic time and materials basis.
The additional investigation requirement provides no reliefto owners or operators who
have made goodfaith attempts to secure the information, but were unable to attain the
informationfor reasons beyond their control, such as no response for property/well
owners, no access to properties to visually inspect/locate the wells, etc.
22
734.445(d)(3) A narrative that, at a minimum, identifies each entity contacted to
identify potable water supply wells pursuant to this Section, the name and title of
each person contacted at each entity, and field observations associated with the
identification of potable water supply wells;
Subpart Hprovides no allowance or reimbursementfor detailed surveys, which may
includeproperty inspections and interviews, contacting property owners, securing
access for inspections, etc or for preparing the report required in 734.445(d)(3). Costs
associated with this type ofactivity should be allowable and should be estimated on a
site-spec
jfic
time and materials basis.
732.503 & 734.505
Review ofPlans, Budget, or Reports
(c)
For corrective action plans submitted by owners or Operators not seeking
payment from the Fund, the Agency may delay final action on such plans until
120 days after it receives the corrective action completion report required
pursuant to Section 734.345 ofthis Part
To delay review ofcorrective action plans submitted by owners or operators not seeking
paymentfrom the Fund is highly discriminatory against those owners or operators.
These owners or operators may need the assurance that a plan to be implemented by
the Agency is approvableprior to committing their resources. With no guaranty that
implementation ofthe plan will result in approval oftheir corrective action completion
report, they are exposing themselves to rejection and increased costs to conduct
additional work that will be requiredfor approval ofthe corrective action completion
report Accordingly, the Agency should be required to review those plans under the
same time requirements as an owner or operator seeking paymentfrom the Fund.
732.505 & 734.5 10
Standards for Review of Plans, Budgets, or Reports
734.510(a)
A technical review shall consist of a detailed review ofthe steps
proposed or completed to accomplish the goals of the plan and to achieve
compliance with the Act and regulations. Items to be reviewed, if applicable,
shall include, but not be limited to, number and placement ofwells and borings,
number and types of samples and analysis, results of sample analysis, and
protocols to be followed in making determinations. The overall goal ofthe
technical review for plans shall be to determine if the plan is sufficient to satisfy
the requirements ofthe Act and regulations and has been prepared in accordance
with generally accepted engineering practices or principles ofprofessional
geology. The overall goal of the technical review for reports shall be to determine
if the plan has been fully implemented in accordance with generally accepted
engineering practices or principles of professional geology, if the conclusions are
23
consistent with the information obtained while implementing the plan, and if the
requirements of the Act and regulations have been satisfied.
While the regulated community is required to secure the services ofprofessional
consultants capable ofdeveloping and implementing plans and corrective action work
which is in accordance with generally accepted engineering practices or principles of
professional geology, there is no similar requirementfor the Agency to employ
individuals with engineering or geology backgrounds to review the requiredplans,
budgets or reports. While those with non-engineering or non-geology degrees may be
capable oflearning and understanding the requirements ofthe Act or the regulations,
they are not licensed engineers or geologists and have not had the education or
training to become such. Further, the Agencyproject managers conducting the
reviews who are not Licensed Professional Engineers or Geologists are practicing
engineering or geology without a license and should not be allowed to rewrite plans
that a professional engineer or geologist has certWed.
The LUST Section Manager is a LicensedProfessional Engineer and some ofthe Unit
Managers are Licensed Professional Engineers or Geologists, however, they are not
involved in the day-to-day review ofthe requiredplans, budgets, or reports. During
discovery depositions (CWM v. IEPAJ No. 03-MR-0032, Circuit Court ofSangamon
County), Mr. Harry Chappel, LUSTSection Unit Manager, testWedthat he typically
only reviews the letters written by project managers. (CWM v. JEPA, Chappel
Deposition, p. 11, December 2003) Mr. C/rappelfurther testified that on occasion he
may do in depth project reviewsfor purposes ofoversight or to investigate a policy-
related issue ident(fled in a letter developed by a project manager. (CWM v. JEPA,
Chappel Deposition, p. 11, December 2003)
Given the minimal oversight by licensedprofessionals, it is clear that unqualjfied
project managers would be required to practice engineering or geology without a
license in order for the Agency to implement this Section. The projectmanagers are
further compromising generally accepted engineering practices or principles of
professionalgeology by requiring modifications in plans or reducing allowable costs to
fit the maximum rates proposed in Subpart H. If a LicensedProfessional Engineer or
Geologist incorporates provisions in a plan or budget which conform to generally
accepted engineering practices or principles ofprofessional geology and an
unqual(fled project manager alters the proposal, the work cannot be done in
accordance with the proposed 732 or 734 or generally accepted engineeringpractices
or principles ofprofessional geology.
Accordingly, this section should be re-written to reflect the capabilities ofthe Agency’s
project managers; references to reviewing plans, budgets or reportsfor adherence or
compliance in accordance with generally accepted engineeringpractices orprinciples
ofprofessionalgeology should be stricken or,
ifleft
as written, the Agency should be
required to employ only Licensed Professional Engineers or Geologistsfor review of
plans, budgets and reports submitted in accordance with 734.
24
(b)
A financial review shall consist of a detailed review ofthe costs associated
with each element necessary to accomplish the goals of the plan as required
pursuant to the Act and regulations. Items to be reviewed shall include, but not be
limited to, costs associated with any materials, activities, or services that are
included in the budget. The overall goal of the financial review shall be to assure
that costs associated with materials, activities, and services shall be reasonable,
shall be consistent with the associated technical plan, shall be incurred in the
performance of corrective action activities, shall not be used for corrective
activities in excess ofthose necessary to meet the minimum requirements of the
Act and regulations, and shall not exceed the maximum payment amounts set
forth in Subpart H of this Part.
The proposed requirements of 734.510(b) set the stagefor confliction with other
requirements of 734. By requiring a detailed review ofthe costs associated with each
element necessary to accomplish a plan, the Licensed Professional Engineer or
Geologist is required to submit a detailed accounting ofall costs necessary to
accomplish the plan or meet the requirements ofthe Act or the regulations. As
proposed in Subpart H, the Agency has developed lump sum unit ratesfor multiple
activities. In developing several examplesfor comments regarding Subpart H, CW3M
has concluded that many activities, especiallyfor those in remote areas, that the
required work cannot be completedfor the allotted costs proposed in Subpart H.
Therefore, detailed cost projections would be irrelevant Further, a licensed
professional cannot certjfy that the work could be donefor the amounts listed in
Subpart H when a detailedcost analysis shows otherwise. The Agency would be
requiring line item estimates to be compared to lump sum maximum allowable costs;
setting the stage for comparing apples to oranges. Additional discussions ofthe
impossibility ofmeeting the technical requirements and the cost limitations setforth in
Subpart H are contained in other parts ofthese comments.
732.60 I & 734.605
Applications for Payments
(b)(lO) Proof ofpayment of subcontractor costs for which handling charges are
requested;
The Agency is reverting back to practices required prior to 1992 and subsequently
abolished by requiring owners or operators to submit proofofpayment. The Agency’s
current practice is to pay handling chargesfor invoices billed directly to the consultant
and to invoices billed to the owner or operator. In some cases, the Agency presently
requests copies ofcancelled checksfor invoices not billed directly to the owner or
operator.
25
For accounting reasons, many subcontractors invoice (or type on the invoice) owners
or operators to segregate sites when the owner or operator has multiple sites or the
subcontractor works with multiple consultants as a means ofproject separation.
CW3M is always sent invoicesfrom its subcontractors; however, the addressee listed on
the invoice is occasionally the owner or operator. When the owner or operator is listed,
as a manner ofprojectdistinguishment, the subcontractor still looks to CWMfor
payment ofthe invoke. Additionally, the incurrence ofhandling charges includes
more than just payment of an invoice. Costs are also incurred to secure certjflcates of
insurance, verj/’y subcontractor invoices, secure required back-up or supporting
documentation, request and secure revisions to the invoice and prepare the invoice for
paymen4 document payments or prepare and secure lien waivers.
Mr. Doug Oakley stated during the March 15, 2004 hearing that the reason the Agency
proposed 734.605(b)(10) was because the Agency receives callsfrom subcontractors
wanting to know the status of reimbursement claims or subcontractors claim they
haven’t been paid. Requiring proof ofpayment will in no way after the number of
inquiries or the time spent by Agency personnel to respond to such inquiries. They
would still have to dig through packages to locate copies of cancelled checks in order to
respond. Besides, it is not the Agency’s task to track payments to subcontractors. That
task should be let up to the party responsible for payment
Holding subcontractor invoicesfor submittalfor payment until all cancelled checks are
returned will cause delay in submittal ofpayment claims, which inadvertently increases
the costs for handling a subcontractor’s invoice. This requirement is unduly
burdensomefor owners, operators or their consultants; thousand of checks would be
required to be managedon a monthly basis, increasing the costsfor preparation and
submittal of reimbursement claims. As many banks do not return checks and accounts
are managed electronically, additional measures would be required to obtain the
checks. Section 734.605(b)(10) should be stricken usa requirement for payment as it is
unnecessary and unduly burdensome.
(b)( 11) If the owner or operator requests costs for one or mote quantitative
analysis of samples required to be certified pursuant to Section 734.420 ofthis
Part, a copy ofthe accredited laboratory certification required pursuant to that
Section.
Pursuant to Section 734.420, analytical results are required to be accompanied by an
accredited laboratory cert(fication to the technical staffof the LUST Section.
Duplicate submittal is unnecessary and unduly burdensome.
U)
All budgets, budget amendments, and applications for payment of
corrective action costs shall be submitted no later that one year after the date the
Agency issues a No Further Remediation Letter pursuant to Subpart G ofthis
Part. For releases for which the Agency issued a No Further Remediation Letter
prior to the effective date of this subsection U)~all budgets, budget amendments,
26
and applications for payment shall be submitted no later than one year after the
effective date of this subsection U).
WhileSection 734.605(1) may allow the Agency to archive itsfiles sooner than they
currently are able to do so, this submittal limitation may cause severe hardship for
owners or operators or their beneficiaries.
As has been CW3M’s experience on afew cases, Illinois Pollution Control Board
appeals may be pending and settlement negotiations are in progress. There is no
incentivefor the Agency to expedite the process andfinal disposition of a case can
exceed one year. In such a circumstance, the owner or operator would be prevented
from submittal of a claim until the appeal is settled or reaches a decision by the Board.
Should an owner or operator submit a plan or budget, which is rejected by the Agency
and deems an appeal is its best course ofaction, the time to reach settlement or a
decision by the Board may extend beyond the timeframefor allowance ofsubmittalfor
an applicationfor payment (following approval of the budget).
For 731 sites (where no budget is in place), the Agency has historically utilized the
general review and payment guidelinesfor 732 sites, exceptfor the 120-day review
clock. If the review process exceeds one year, as it often does, and some costs are
denied or resubmittal is required, the owner or operator would not have the
opportunity to do so with the time constraints of 734.6050).
An owner or operator’s incapacitation, illness, inaccessibility or even death can cause
delays in submittal offinalplans, budgets or requestsfor payment
For these reasons and other unanticipated reasons, 734.605(j) should be stricken.
732.602 & 734.6 10
Review of Applications for Payment
(d)
Following a review, the Agency shall have the authority to approve, deny
or require modification of applications for payment or portions thereof. The
Agency shall notify the owner or operator in writing ofits final action on any
such application for payment. Except as provided in subsection (e) of this
Section, if the Agency fails to notify the owner or operator of its final action on an
application for payment within 120 days after the receipt of a complete
application for payment, the owner or operator may deem the application for
payment approved by operation of law. If the Agency denies payment for an
application for payment or for a portion thereofor requires modification, the
written notification shall contain the following information, as applicable:
1)
An explanation of the specific type of information, if any, that the
Agency needs to complete the review;
27
2)
An explanationof the Sections of the Act or regulations that may
be violated if the application for payment is approved; and
3)
A statement of specific reasons why the cited Sections ofthe Act
or regulations may be violated if the application for payment is
approved.
Section 734.610(d) should be strengthened to require the Agency to supply detailed and
itemized information to meet the above. Currently, the Agency only provides a blanket
statement that reads, “Deduction for costs which are unreasonable as submitted
(Section 57.7(4) of the Act and 35111. Adm. Code 732(hh)).” This in no way provides a
description of what costs were ineligible or why, why the Act would be violated ifthe
costs were approved.
732.606 & 734.630
Ineligible Corrective Action Costs
732.606 (mm) & 734.630(u) Handling charges for subcontractor costs when the
contractor has not submitted proof ofpayment ofthe subcontractor costs;
As mentioned above, the Agency is reverting back to practices requiredprior to 1992
and subsequently abolished by requiring owners or operators to submit proof of
payment The Agency’s current practice is to pay handling chargesfor invokes billed
directly to the consultant and to invoices billed to the owner or operator. In some
cases, the Agency presently requests copies ofcancelled checksfor invoices not billed
directly to the owner or operator.
For accounting reasons, many subcontractors invoice (or type on the invoice) owners
or operators to segregate sites when the owner or operator has multiple sites or the
subcontractor works with multiple consultants as a means ofproject separation.
CW’M is always sent invoicesfrom its subcontractors; however, the addressee listed on
the invoice is occasionally the owner or operator. When the owner or operator is listed,
as a manner ofproject distinguishment, the subcontractor still looks to CW?Mfor
payment of the invoke. Additionally, the incurrence of handling charges includes
more than justpayment of an invoke. Costs are also incurred to secure certificates of
insurance, verfly subcontractor invoices, secure required back-up or supporting
documentation, request and secure revisions to the invoice andpreparethe in voice for
payment, documentpayments or prepare and secure lien waivers.
Holding subcontractor in voicesfor submittalfor payment until all cancelled checks are
returned will cause delay in submittal ofpayment claims, which inadvertently increases
the costsfor handling a subcontractor’s invoice. This requirement is unduly
burdensomefor owners, operators or their consultants; thousand of checks would be
required to be managedon a monthly basis, increasing the costsfor preparation and
submittal of reimbursement claims. As many banks do not return checks and accounts
are managed electronically, additional measures would be required to obtain the
28
checks. Further, the Agency has made no aiowanceforpaymentfor costs incurred to
prepare reimbursement claims, except as part of lump sum reporting costs. They have
added additional burdens without corresponding allowances for the costs incurred to
meet those requirements. Doug Oakley’s testimony regarding the proposed
amendments to Part 732 that the Agency has imposedthis requirement because
subcontractors contact the Agency to determine payment status of their invoices
(Oakley 2004a). Subcontractors often contact the Agency requesting status of
payments to help spur the Agency’sslow review, partkularly when their payment is
dependent upon the Agency’s review of their costs and a “reasonable” determination
has been made on the subcontractor’s invoice. Prime contractors or consultants will
often withhold some or all ofsubcontractor payments until the Agency’s determination
has been madeprior to incurring a cost that cannot be recovered; some subcontractors
guarantee the “reasonableness” of their work. Finally, it is not the Agency’s task or
their responsibility to ensurepayment of all invoices incurred in the private sector.
This responsibility should be left up to the owner, operator or prime contractor.
Section 734.630(b) should be stricken as a requirementfor payment as it is
unnecessary and burdensome.
732.606(r) & 734.630(nn)
Costs submitted more than one year after the date
the Agency issues a No Further Remediation Letter pursuant to Subpart U of this
Part;
While Section 734.630(nn) may allow the Agency to archive its files sooner than they
currently are able to do so, this submittal limitation may cause severe hardship for
owners or operators or their beneficiaries.
As has been CW3M’s experience on afew cases, Illinois Pollution Control Board
appeals may be pending and settlement negotiations are in progress. There is no
incentivefor the Agency to expedite the process andfinal disposition of a case can
exceed one year. In such circumstances, the owner or operator would be prevented
from submittal of a claim until the appeal is settled or reaches a decision by the Board.
Should an owner or operator submit a plan or budget, which is rejectedby the Agency
and deems an appeal is its best course of action, the time to reach settlement or a
decision by the Board may extend beyond the timeframefor allowance of submittalfor
an applicationfor payment (following approval ofthe budget).
For 731 sites (where no budget is in place), the Agency has historically utilized the
general review and payment guidelines for 732 sites, exceptfor the 120-day review
clock. If the review process exceeds oneyear, as it often does, and some costs are
deniedor resubmittal is required, the owner or operator would not have the
opportunity to do so with the time constraints of 734.6050).
An owner or operator’s incapacitation, illness, inaccessibility or even death can cause
delays in submittal offinal plans, budgets or requestsfor payment
29
For these reasons and other unanticipated reasons, 734.630(’nn) should be stricken.
732.606(yy) & 734.630(uu) The treatment or disposal of soil that does not
exceed the applicable remediation objectives for the release, unless approved by
the Agency in writing prior to the treatment or disposal;
CW3M recommends deletion of 734.63(uu)for the primary reason that it is impossible
to know with 100 certainty that ~g soil was disposed that may have been clean. An
understanding offield activities and equipment operation associated with excavation
would reveal this as an impractical requirement
While the Agency offered no specf/ic testimony regarding thisproposed requirement,
we are assuming that their intent is to prevent abuse of the Fund. If the Agency has
specf/ic examples ofhow and where such an abuse has occurred, they should provide
that information or should attempt other means ofprevention. The Agency already
has many tools at its disposal to preventabuse or over-excavation of clean soils. Early
action excavations are limited to the backfill material surrounding the tank, not to
exceed 4feet Corrective action excavations aretypically conducted under an approved
corrective action plan,for which the extent of contamination has been pre-determined
through extensive drilling and sampling activities. The results of which are used to
determine the area to be excavated.
There is no practical means tofield-implement this requirement to assure that
absolutely no clean soil is removed or excavated. If one were excavating with a spoon
and collected samples everyfoot of excavation, one could have more certainty that no
soil clean soil was beingremovedfor disposaL As this is an obviously inefficient and
cost-prohibitive means to conduct large excavations, it is notfeasible. The excavation
equipment itself, such as trackhoes and backhoes, have large buckets with which to
remove the soiL As discussed in detail in Subpart H, qualified and trained oversight
technicalpersonnel on site during an excavation will monitor the soils being removed.
If the apparent extent of contamination is reached, the profrssional will evaluate
continued excavation by use offield equipment or sampling. If lead,for example is the
contaminant of concern, field instrumentation, such as a photo-ionization detector or
visual/odor indications are unable to readily assess the presence of contamination. If
Subpart H is adopted, there will be insufficient resources to allow proper oversight
Further, even when the extent of contamination has been pre-determined, there are
likely small areas along the perimeter where the plume lines have been assessedfrom
one boring to the next that were not pre-evaluated (otherwise, drilling during plume
delineation would be conducted on 1-foot intervals rather than 20-foot intervals). The
cost to pre-assess and assess during an excavation would be cost-prohibitive as
comparedto a very small or inadvertent amount ofsoil removal during an excavation.
For these reasons, Section 734.630(uu) should be eliminated.
30
732.606 (ccc) & 734.630(yy) Costs associated with sample collection or
transportation required as a result of improperly collected, transported, or
analyzed laboratory samples;
The Agency modf/led its originally proposed language for 734.630(yy). Initially, the
Agency proposed to deem costs associated with sample collection, transportation or
analyses ofimproperly collected, transported or analyzed samples as ineligible
corrective action costs. CW3M contends that is unfair to require owner, operators or
consultants to “eat” costs associated with re-collection and transportation of
improperly analyzed samples but yet allowing the laboratory to charge for second
analyses when the same laboratory may have caused the necessity to collect duplicate
samples. CW~Mrecommends that 734. 630(yy) either be stricken in its entirety or be
revised back to its originally proposedformat to avoid inequitable penaltyfor a
laboratory error.
732.606 (ddd) & 734.630(aaa)
Costs an owner or operator is required to
pay to a governmental entity or other person in order to conduct corrective action,
including but not limited to permit fees, institutional control fees, and property
access fees;
The Agency itself assesses numerousfees to owners or operators to conduct corrective
action activities and has historicallyfound their own fees reasonable and hence
reimbursed owners or operatorsfor these costs. Example ofsuch fees includes, but is
not limited to AirPollution Control permit and sitefees associated with groundwater
treatment units and soil vapor extraction systems, Water Pollution Controlpermit and
feesfor dischargesfrom groundwater treatment systems, Bureau ofLandfees for
manjfests, County Recorderfeesfor filing institutional controls and agreements, City
or Countyfeesfor demolition or excavations, etc. These are necessary and required
elementsfor corrective action work and should remain reasonable and reimbursable
expenses.
It was not until approximately one year ago that the Agency began to re-think its
position regarding payment of permitfees. Governor Blagojevich, in his attempts to
generate revenues and to balance the State’s budget, proposed assessment of or
dramatic increases in State fres. Onesuchfee was the permitfrefor NPDES permits.
Historically, there had been no such fee imposed on sites with NPDESpermits.
Effective July 1, 2003, an annualfee of $15,000 was assessed (category-dependent) for
NPDES permits. Such permits are requiredfor LUSTsites discharging treated
effluent to storm sewers. CW3M immediately contacted the Agency to determine ff this
fee would be reimbursable. The Agency’s response at the time was that they would not
reimburse such afee, as it was “unreasonable”, however, they later apparently decided
to reimburse owners and operators ofsuchfres (CW3M Company, Inc. v. Illinois
Environmental Protection Agençy, Chappel Deposition, 31:21-32:10, December 2003).
The owners / operators should not be penalized jf the IEPA ‘s permitfees were raised to
unreasonable levels.
3!
Mr. Gary King stated during the March 15, 2004 hearing that he didn
‘t believe it was
the Illinois State Legislature’s intent to transferfunds from the UST Fund to another
Statefund. CWM hasfound no evidence to support this as the legislative intent,
therefore, that argument has no merit In reality, it is more likely that the State
Legislators were unaware that imposing this type offre in some cases would merely
transfer dollars from one fund to another. In either case, General Revenue dollars
increase. As these fres have historically been deemed a corrective action expense,
there is no reasonfor the Agency to deem them non-reimbursable and Section
734. 630(aaa) should be stricken in its entirety. If the permitfre was deemed a
corrective action expense in the past, it should continue to be deemed an eligible
corrective expense, regardless ofthe amount During the current legislative session,
several bills arepending to address or eliminate thefres.
732.606(eee) & 734.630(bbb)Costs associated with the maintenance, repair, or
replacement of leased or subcontracted equipment.
Common practice regarding maintenance and repair of equipment that is utilized by
contractors on an hourly or daily basis is that those costs are inclusive in the rate. For
example, repair of a backhoe utilized on an excavation is not a cost that should be
eligible for reimbursement; the repair cost would be an indirect cost absorbed into the
equipment’s hourly rate.
Leased equipment, however, falls into a djfferent category and should be dealt with
accordingly. Groundwater treatment systems, soil vapor extraction systems, and air
sparging systems are typically leased orpurchasedfrom the manufacturer by owners,
operators or their consultants. The leases are long-term and do not include
maintenance or repair that results from daily operation and the effrcts ofprolonged
exposure to contamination and the elements. Most systems have warranties to cover
the major system componentsfor a period of time. Use of these systems is analogous to
car leasing or purchasing. Fueling the vehicle, wear and tear and damage caused by
operation are not covered by the lease or warranty.
CWM has extensive experience with the Agency regarding groundwater treatment
systems. Initially, CW3M leased groundwater treatment systems to owners or operators
on a monthly basis. The monthly fee was all-inclusive; it included a monthly
equipment lease as well as afre for all repairs necessary to maintain operation of that
fee. The Agency approved the rates initially and, after appeals and settlement of
several cases, requested that CWM modify its billing to include one ratefor equipment
and one ratefor maintenance. Further, the Agency hasfound reasonable and
approved budgets for equipment rental and maintenance costs. These are legitimate
corrective action costs associated with operating a treatment system and the Agency
has offered no testimony as to why an item found reasonablefor 10+ years should now
be ineligible. January 2003 IEPA rate sheets clearly list operation and maintenance as
an acceptable cost with an associated rate. Accordingly, 734.630(bbb) should be
32
modjfled to distinguish between these types of repair and maintenance costs to allow
for those associated with long-term treatment system uses.
732.606(fff) & 734.630(ccc) Costs that exceed the maximum payment amounts
set forth in Subpart H ofthis Part.
Section 734.630(ccc) should be re-written to allowfor costs deemed reasonable by the
Agency when extenuating circumstances or costs are encountered that are adequately
justjfled.
732.614 &
734.665
Audits and Access to Records; Records Retention
The Agency has the authority to audit all data, reports, plans, documents and budgets
submitted pursuant to
Title XVI ofthe Act and this Part.
If the data, report, plan,
document or budget audited by the Agency pursuant to this Sectionfails to conform to all
applicable requirements of
Title XVI of the Act and this Part,
the Agency may take
appropriate actions.
415 ILCS 5/57.15
a)
Owners or operators that submit data, reports, plans documents, or budgets
under this Part, and Licensed Professional Engineers and Licensed
Professional Geologists that
certify
such data, reports, plans, documents,
or budgets, shall maintain all books, records, documents, and other
evidence directly pertinent to the data, reports, plans, documents, or
budgets, including but not limited to all financial information and data
used in the preparation or support of applications for payment. All books,
records, documents, and other evidence shall be maintained in accordance
with accepted business practices and appropriate accounting procedures
and practices.
b)
The Agency or any ofits duly authorized representatives shall have access
to the books, records, documents, and other evidence set forth in
subsection (a) of this Section during normal business hours for the purpose
of inspection, audit, and copying. Owners, operators, Licensed
Professional Engineers, and Licensed Professional Geologists shall
provide proper facilities for such access and inspection.
c)
Owners, operators, Licensed Professional Engineers, and Licensed
Professional Geologists shall maintain the books, records, documents, and
other evidence set forth in subsection (a) ofthis Section and make them
available to the Agency or its authorized representative until the latest of
the following:
I)
The expiration of4 years after the date the Agency issues a No
Further Remediation Letter issued pursuant to Subpart G ofthis
Part;
33
2)
For books, records, documents, or other evidence relating to an
appeal, litigation, or other dispute or claim, the expiration of3
years after the date offinal disposition of the appeal, litigation, or
other dispute or claim; or
3)
The expiration of any other applicable record retention period.
Section 734.665 should be stricken in its entiretyas the Agency’sproposal has
overstepped its bounds and statutory authority. Section 57.15 of the Act states infull:
“The Agency has the authority to audit all data, reports, plans, documents and budgets
submitted pursuant to this Title. If the data, report, plan or budget audited by the
Agencypursuant to this Sectionfails to conform to all applicable requirements of this
Title, the Agency may take appropriate actions. “(emphasis added) Title XVI only
provides the Agency with the authority to audit submitted data reports plans,
documents and budgets. Ifthe Agency has questions about any of these things or jthe
cost information is not supported, JEPA can do as it has been doing
—
askfor more
information or deny the costs.
Appropriate actions should not be misconstrued as an open allowance for illegal
search and seizure. Title XVI only regulates owners or operators of underground
storage tanks. It does not give the Agency authority to regulate Professional Engineers
or Geologists. The Illinois Department ofProfessional Regulations regulates and
promulgates rulesfor Licensed Professional Engineers and Geologists; therefore, the
Agency has no regulatory authority to extend its authority to regulate Licensed
Professional Engineers and Geologists. Mr. Doug Clay confirmed during the March
iS, 2004 hearing (Transcripts, page 185) that the Agency is not in a position to enforce
the Professional Engineers or the Professional Geologists Act
It may be appropriate to require owners or operators of undergroundstorage tanks to
maintain certain types of records to support the documents submitted to the Agency.
However, the Act does not give the Agency authority to audit consultants and proposed
Section 734.665, places no controls or restrictions on the Agencyfor when and under
what circumstances these records should be madeavailable.
Audits of records of Licensed Professional Engineers or Geologists also violate client-
privileged information. CW3M, as well as the majority ofconsultants maintains
confidentiality agreements with its clients. Open, unrestricted audits violate such
confidentiality. Section 1252.110(a)(6) of the Rulesfor Administration of the
Professional Geologist Licensing ActFart 1252 prohibits the Licensed Professional
Geologistfrom disclosing information concerning the lawful business affairs or
technicalprocesses of a client or employer.
As stated in a publication providedby the Agency and the Illinois Department of
Commerce and Community Affairs titled, “How to Select an Environmental
Consultant”, “To prevent the unauthorized disclosure of the information given to the
consultant or information generated by the consultant, include a confidentiality
34
provision in the professional services agreement”. (IEPA, 1994) A copy of this guide
is provided in Appendix F.
During the March 15, 2004 hearing, Mr. Doug Clay answered questions regarding the
proposed audit. He indicated thatfinancial records were not the targets of the audit;
the Agency wants a means to secure supporting documentationfor charges when there
is a question of their authenticity. The simple answerfor this question is for the
Agency to request that supporting documentation be submitted.
The Agency has numerous legal avenues to obtain records in the event offraud or
violations and Section 734.665 is unnecessary and overreaches the Agency’s authority.
As was clearly demonstrated by Agency personnel during the March 15, 2004 hearing,
there are personality conflicts between the Agency and many ofthe consultants
present. Such an open-ended audit procedure invites miss-use or abuse by the Agency
against consultants whom the Agency disagrees with or dislikes. If the Agency is going
to require theproduction ofsuch records, it should providefor the reimbursement of
such costs. The Agency provides no mechanism to reimburse owners or operatorsfor
the cost of copies and/orfacilities for inspection. Most service stations have no such
facilities.
732.702 & 734.710
Contents ofa No Further Remediation Letter
A No Further Remediation Letter issued pursuant to this Part shall include all ofthe
following:
(d)(3)
No Further corrective action concerning the occurrence is necessaryfor
the protection ofhuman health, safety and the environment,
or, if the No Further
Remediation Letter is issued pursuant to Section 734.350(e) of this Part, that the
owner or operator has demonstrated to the Agency’s satisfaction an inability to
obtain access to an off-site property despite best efforts and therefore is not
required to perform the conective action requirements of this Part, but is not
relieved of responsibility to clean up portions of the release that have migrated
off-site. 415 ILCS 5/57.1 0(c)( I )-(3)J
Section 734.710(d)(3) contains contradictory language. If an owner or operator is not
required to perform corrective action requirements of this Part as a result ofinability to
secure off-site access, despite best efforts, they should not be held responsible to clean
up portions of the release that have migrated to inaccessible off-site properties.
If an owner or operator has made every reasonable and required effort to access an
off-site propertyfor purposes of investigation and/or remediation, the owner or
operator should be relievedof clean-up responsibilities. If an off-site property owner
denies access after being informed of the provisions of 734.350, that property owner
should be held accountablefor his or her own actions.
35
Section 732. 70(d)(3)
c~
734. 710(d)(3) should be re-written asfollows:
(d)(3)
No Further corrective action concerning the occurrence is necessary/or
the protection ofhuman health, safety and the environment,
or, if the No Further
Remediation Letter is issued pursuant to Section 734.350(e) of this Part, that the
owner or operator has demonstrated to the Agency’s satisfaction an inability to
obtain access to an off-site property despite best efforts and therefore is not
required to perform the corrective action requirements of this Part, but is not
relieved ofresponsibility to clean up portions ofthe release that have migrated
off site. 415 ILCS 5/57.IO(cXl)-(3)
SUBPART H: MAXIMUM PAYMENT AMOUNTS
732.800 & 734.800
Applicability
a)
This Subpart H divides all activities conducted pursuant to this Part into
tasks and sets forth the maximum total amount an owner or operator can
be paid from the Fund for all costs associated with each task. Payments to
owners or operators shall not exceed the amounts set forth in this Subpart
H.
b)
The costs listed under a particular task identify only some ofthe costs
associated with the task; they are not intended as an exclusive list of all
costs associated with the task for purposes of payment from the Fund.
c)
This Subpart H sets forth only the maximum amounts that may be paid
from the Fund for eligible costs. Whether a particular cost is eligible for
payment shall be determined under Subpart F of this Part.
lit the Agency’s attempt to streamline the reimbursement and budget reviewprocesses,
they have created a system that is discriminatory to owners/operators across the state
who are not located in close proximity to consulting or clean-up contractors, landfills,
etc. The effort to sitnp4/’y the process resulted in the Agency’s creation of lump sum
maximum valuesfor activities conducted to meet the technical requirements of 732 and
734. The lump sum values are arbitrary, lack understanding or consideration of site
variations and actual clean-up costs. Section 734.800(b) implies there are other costs
or activities, which may be required to meet the technical requirements of this Part,
however, there is no means establishedfor payment of these costs or required activities.
In general, the technical requirements areplaced in conflict with thefiscal limitations.
An owner/operator will not be able to meet the technical requirements of the Act given
the lump sum amounts proposed. Further, the lump sum values proposed by the
Agency willforce owner/operators to leave sites unremediated, particularly those with
groundwater contamination or those not located in close proximity to necessary
services.
36
The Agency is proposing to eliminate budgeting based upon “time and materials”
estimating. This is grossly inaccurate and discriminatory to a large percentage of
owners/operators. Several examples are presented to illustrate this point Further, the
process ofcollecting and statistically analyzing the data usedby the Agency to develop
rates and lump sums is inaccurate and misleading. TheAgency has relied on one
individual to compile, manipulate and analyzecost datafor development of its rate
sheets. (CW3MCompany, Inc. v. Illinois Environmental Protection Agency, Bauer
Deposition, pp. 13-19, December 2003) The discovery deposition ofBrian P. Bauer on
December 3, 2003 illustrates the manner in which the Agency developed its rate sheets
to determine reasonableness, which is thefoundation for the maximum costs presented
in this Subpart. (CW3M Company, Inc. v. Illinois Environmental Protection Agency,
Baiter Deposition, pp. 13-23, December 2003)
During the January 7, 2004 Board hearingfor Illinois Ayers V. IEP4, PCB 03-214,
Mr. Brian Bauer testWed (transcriptpp. 231 & 232) that no one Outside of the Agency
nor anyone with a statistical background has reviewed the methods by which the
Agency compiles data and analyzes itfor rate setting. Mr. Bauerfurther testWed that
hefelt there was no reason or needfor anyone else to look at his data because it was
basic statistics and anybody could do it. (Illinois Ayers v. JEPA, PCB 03-214, transcript
p. 232) Whether Mr. Bauer truly believed that the task was so simple that anyone
could do it or whether arrogance intervened and he felt no one else could competently
do this work is unclear. Signj/lcantflaws arepresent that undermine the entire
process and remove all confidence that the Agency developed their proposed rate
structure competently and in goodfaith, or whether the Agency intentionally created
errors in order to derive an answerfor which they were seekingjust(fication. If the
errors are simply mistakes made by the Agency serious questions arise about any
number being proposed due to incompetence. For example, in attachment 12 of the
Agency ‘is pre-filed testimonyfor the March 15, 2004 hearing, a table is presented to
just(fy the Agency’sproposed rate of $4,800.00 lump sum maximum for 45-Day Report
and early action consultingfees. Flow did they select the sites that were included in
this table? Negative dollar amounts were insertedinto the table as the costfor this
work for the sites where the total number of hours were notprovided. Simple
understanding of mathematics indicates that the negative numbers have a dramatic
effect on the calculated average. Was the Agency trying to legitimize a pre-determined
rate of $4,800.00 or were the negative numbers mistakenly left in the table and the
average calculated by the Agency in error? These types of question raise serious
concerns over every rate proposed by the Agency.
Another major issue surrounding development ofrates concerns the rationale for
using averages. In a sworn affidavit by Brian Bauer dated April 15, 2003 in CW~Mv.
IEPA, Mr. Bauer states “The standard deviation of that sample is calculated, and a
number representing one standard deviation above the sample average is assigned to a
category in the rate sheet That is the maximum rate or cost that will be approvedfor
that particular category.” In developing the $4,800.00 lump sum rate, the Agency only
used the average; the net effect being that one-halfofthe costs will be deemed
37
unreasonable. Why did the Agency break awayfrom its prior practice of using at a
minimum the mean plus one standard deviation and insteaduse only the average?
Was it yet again an attempt to justify a pre-derived number? The use of an average is
in direct conflict with Mr. Doug Clay’s testimony on March 15, 2004 when he testWed
that he believedthat approximately 90 of consultants and contractorfees would come
in at or below the Agency ‘sproposed rate structure. Given the method of rate
development using only averages, there is absolutely no way that 90 ofthe charges
can be within the “reasonable” range. Further, IEPA may have used only costs that
IEPA had previously approved to calculate the average. A copy of the affidavit is
provided in Appendix A. Just evaluating the costs presented in the sampling of the
table presented by the Agency in Attachment 12 indicates that approximately 60 of
the sample pool would have costs above the Agency’s proposed maximum rate.
The Baiter deposition (CW3M v. IEPA4, Bauer Deposition, December 2003) reveals the
followingflaws in the Agency’s development of rates
1)
Selection Criteria
The Agency has no “real criteria “for selection of reimbursement claims
or budget submittals from which to draw individual cost data. Agency
personnel hand-select sites or packages to review rates. One would
think
that a selection process should have a standardset of criteriafor
each time the rates are reviewed. For example, everypackage submitted
between January 1 and March 1 would be included in the samplepool.
Agency personneljust hand-selected afew that they believe represent the
various consultants in the market This offers additional bias; a
representative sampling cannot occur. If a given consultant conducts
work on a large portion of L UST sites, representative sampling would
not give equal weight to a package submitted by a consultant who does
limited work with LUST sites.
The selection process was manipulated to try and obtain a cross-section
of numerous consultants (CIØM v. IEPA, Bauer Deposition, p. 16,
December 2003), but in doing so, the data was biased and was not
representative.
In addition, only costs or rates in approved packages or budgets were
incorporated into the database. (CW3M v. IEPA, Bauer Deposition, p.
22, December 2003) The setting of rates then becomes a self-fulfilling
prophecy. When only approved rates are included in the pool of rates to
be averaged, rates that exceeded the approved value were excluded and
the rate is automatically lower than what the average would be (fall
rates submitted were evaluated.
2)
Unsupervised Collection of Data and Rate Development
38
Mr. Bauer’s deposition indicates that he went around collecting data
from other project managers, LUST Fiscal, catalogs and hand-selected
budget packages and developed the rates on his own initiative with no
authority, directives or supervision. (CW3M v. IEPA, Bauer Deposition,
pp. 17-23, December 2003) Mr. Bauer has noformal training in
statistical analysis. (CW?M v. IEPA, Bauer Deposition, pp. 6-9,
December 2003)
3)
Flawed Statistical Analysis
The flaws in the analysis are compoundedyear after year as rates are
re-evaluated, resulting in decreasing rates, when in reality most costs
increase year afteryear. Proposed Part 732 & 734 requires that
Licensed Professional Engineers and Geologist submit costs, which do
not exceed costs presented in Subpart H. Under this scenario, the
Agency will be unable to accumulate any new cost information or
assess cost increases present in the market place.
CWM ran a statistical analysis ofone proposed rate using the
Agency’sprotocol; please refer to Appendix C. Even when adding in a
very small inflationary increase, the rate goes down from one year to
the next and does not reflect actual costs or the reality ofmarket
The Agency acknowledged that over the past severalyears it has not
taken into account inflation when evaluating new rates.
4)
Rates are Based on Incomplete Costs
When developing the lump sum maximum rates, the Agency clearly left
out many of the costs associated with each activity.
5)
Rates are Discriminatory to Remote Locations, Sites not in Close
Proximity to Services
The Agency’s current rate structure does not take into accountsite-
spec4/ic factors, particularly, the location of the site in proximity to
services (consultant, drilling contractors, landfills, etc.) Up until the
rates and the lump sum maximum costs associated with the proposed
Section 734 were developed, the Agency allowedfor site-spec4/icfactors
to be a consideration in determinations of reasonableness or allowed
owners or operators to submit additional information to support higher
costs.
The deposition of Brian Bauer clearly states that site-spec4/icfactors,
such as distance are notfactored into the development of the Agency’s
rates (CW3M v. IEPA, Bauer Deposition, p. 4, December 2003), while at
39
the March 15, 2004 hearing Mr. Clay states that distances were
considered (transcriptp. 279-280), again leading to the question of
whether Mr. Clay was, in fact, aware of the true methods in which the
rates were calculated.
6)
Rates are Discriminatory to Consultants for Remote Locations, Sites not
in Close Proximity to Services
As mentionedabove, the Agency’sproposed rate structure does not take
into account site-spec4/icfactors. Under the proposed rate structure,
consultants would be prohibitedfrom providing consulting services to
UST owners or operators who were not in their immediate vicinity or
close proximity. This is highly discriminatory and verges on pricefixing
within the marketplace. It also prevents owners or operatorsfrom
choosing a trainedprofessional who will best serve their needs. In many
remote locations or smaller communities, there may be few to no
professionals operating locally, thus owners or operators in these
locations will have no services available, or be required to secure the
services ofa local consultant regardless of their experience or
reputation.
The Agency’s haste to draft new regulations to “simpljfy” budgeting and
reimbursementclaims is completely lacking any real world experience or knowledge of
the effort and costs associated with work or the complexities or unique characteristics
of each site. Numerous requirements simply cannot be accomplished given the short-
sighted lump sums, The Agency’s zeal to limit appeals for reimbursement claims has
lead to a proposal that will severely reduce the number and extent of UST clean-ups
across the State.
Thefailure to recognize and accommodate for suchfactors is highly discriminatory to
sites locatedfarther awayfrom environmental services. The Agency has promoted
environmental justice programs and efforts to target poverty-stricken areas of the State.
“Team Illinois” identjfied Cairo, Illinois as one small community badly in need of
assistance. (JEPA, 2004) CW3Mhas conducted LUST corrective action work in Cairo,
Illinois. Costs to conduct early action work, particularly backfill excavation and
disposal was done at considerably higher costs than other sites and exceeded the
maximum lump sum allowable costs ofthis Subpart due to the extremedistance to the
closest Illinois landfilL In this case, the landfilldistance is the drivingfactorfor all
costs associated with the excavation and disposaL Trucking and personnel costs
increase in directproportion to the distance.
The Illinois State Legislature increased the maximum amount allowablefor each
occurrence. Increased costs associated with remediation ofLUSTsites were the
drivingforce for increasing the maximum amount However, the Agency’sproposal
40
further reduces the amountspayable, in direct conflict with the intention of the State
Legislature.
The recently decided Board case Illinois Ayers v. IEPA, (PCB No. 03-214), the Board
relied on the technical inputfrom licensedprofessionals to help reach its final decision
regarding the amount of and extent of site investigation work required to meet the
minimum requirements of the Act CW3Msuggests that the Agency likewise rely on
the knowledge and expertise of trainedprofessionals who perform LUST compliance
work on a daily basis as a means or determining needs and costs for each individual
site. These professionals are morefamiliar with the site than IEPA personneL
In CW3M v. IEPA, Agen cy personnelprovidedsworn affidavits to support the
Defendant’s Motionfor Summary Judgement (please see Appendix M) The sworn
affidavits state that, “jfmaximum cost and rate sheet information is made available as
a public document, it is possible that all proposed budgets and reimbursement requests
would be submitted incorporating the maximum costs and rates. This could undercut
any competition among the contractors, substitute the rate sheetfigures in place of
market-drivenfigures, and deplete the Underground Storage Tank Fund by greater
amounts than the present situation in which contractors are required to simply submit
budgets and reimbursement requests which are based on their documented costs.” The
proposed Subpart H is in direct conflict with this sworn statement The Agency should
reconsider its proposed Subpart H and instead develop a methodologyfor collection
and analyses of costs and develop rates which could instead be published but not
necessarily incorporatedas regulation, thereby allowing them to be periodically
updatedwithout requiring Board action each time.
732.810 & 734.810
UST Removal or Abandonment Costs
Payment for costs associated with UST removal or abandonment ofeach UST shall not
exceed the amounts set forth in this Section. Such costs shall include, but not be limited
to, those associated with the excavation, removal, disposal, and abandonment ofUST
systems.
UST Volume
Maximum Total Amount per UST
110-999 gallons
$2,100.00
1,000-14,999 gallons
$3,150.00
15,000 or more gallons
$4,100.00
The maximum allowable costs presented in Section 734.810 should be stricken in their
entirety as they grosslyfail to compensate owners or operatorsfor costs associated with
the removal of underground storage tanks andfail to take into account the extreme
variables, which may be present during tank removal activities.
Factors, such as location of the UST removal site from the OSFM licensed contractor,
distance of the sitefrom the OSFM Tank Specialist, weather (particularly humidity
41
and temperature), location oftank(s) at afacility, the tank andpiping condition, extent
and location ofpiping, groundwater depth, soil stability, number of tanks present at
site, and type and thickness ofoverburden, were clearly not accountedfor by the
Agency when developing its maximum allowable rates. CW3M obtained a copy,from
the Illinois Department of Transportation website, of the awarded bid tabs for every
project in 2003 which contained bid itemsfor environmental work, such as tank
removaL A summary of the information is included in Appendix J. The awarded
average rate for tank removal was $6,424.03 pertank. It should also be noted that
lOOT projects are awarded through competitive bidding.
The location of the UST site in proximity to the removal contractor is important when
the traveltime is greater and mobilization costs are higher. When the site is located in
a remote area of the State or the removal contractor has to travel a greater distance to
the site, typically, the contractor will uncover the USTs the day before the scheduled
removal and arrive early to the site on the day of the removal to begin venting
operations. In this case, overnight stay is requiredfor several individuals. The current
number of OSFM Tank Specialists is less than it was afew years ago, requiring them
to travel greater distances to tank removal sites. As the work cannot progress until
their arrival and authorization, the removal contractor potentially has to wait
The time necessary for uncovering the tanks is dependent upon the type and thickness
of the overburden. For high and heavy traffic areas, the overburden will consist of
reinforcedconcrete, which requires additional time for destruction and removal. If the
water table is very shallow, the excavation may require continuous dewatering in order
to access and remove the tanks. If the tanks recently heldfresh product, ventilation
operations will take longer to achieve the required LEL (Lower Explosive Limit).
Several otherfactors can also complicate activities to achieving the required LEL.
These include, but are not limited to, ambient air temperature (the warmer the
temperature, the more volatiles aregenerated in the UST by fuel residues), higher
humidity levels, and whether or not the tank was relined and the condition ofthe lining
(fuelresidues and vapors can become trapped between the tank and the liner).
The condition of the tank itself will also affect the removal operation. If the tank has
corroded to the extent that it is taking on water (shallow groundwater conditions),
continuouspumping activities will be required in order to 14/i the tankfrom the
excavation. Older tanks may have fittings or l4fting lugs that have become corroded
requiring alternative measures be developed to safely remove the tank. Long or
extended piping trenches will require tedious excavating to expose the piping in its
bedding so that the OSFM Tank Specialist can observe the piping in situ and assess
soil conditions to determine jf the piping contributed to the release. As mentioned
above, the piping overburden can,
if
reinforced concrete, take additional time and
effort to remove.
If numerous tanks are located at afacility and all are not within the same bedding or
pit, multiple excavations will have to be conducted to expose the tanks, increasing the
time and associated costs. If tanks are located in close proximity to a building, active
42
tank, or other structure, special excavationprecautions will be required to assure that
the walls are stable and will not collapse causing damage to neighboring structures.
Soil conditions and stability also play a sign 4/kant role in the safety ofan excavation.
Severe contamination can erode soil stability properties and must be assessed and
guardedagainst during excavation and tank removal operations. Benching and
sloping activities may be necessary and can be applied where sufficient space is
available. More aggressive means ofslope stability, such as wall supports, cribs or
piles, must be applied when there is insufficient space or soil stability cannot be
achieved using sloping or benching measures.
The Agency’s proposed rate per tank does not take into account the number of tanks
being removed. An economy ofscale factor cannot be applied
if
only one tank is
removed. The necessary equipment utilized during tank removal activities is the same
whetherthere is one tank to remove or multiple. Excavating equipment, site safety
equipment, ventilating equipment, grounding systems, etc. will be necessary; the costs,
on a daily basis, can be spread out over multiple tanks, however, when only one is
being removed, all equipment costs must be attributed to a single tank
Over the past 14 years, CW3M has conducted work experiencing some or all of the
factors listed above. The rates and total UST removal costs were found acceptable
using time and materialsformats or by providing the Agency with the site-spec4/Ic
factors, which affected the total costs. For the reasons mentioned above, and because
the Agency did notfactor any site-spec4/Ic variables into it rate building, this Section
should be stricken.
732.8215 & 734.8 15 Free Product r Groundwater Removal and Disposal
Payment for costs associated with the removal and disposal of free product or
groundwater shall not exceed the amounts set forth in this Section. Such costs shall
include, but not be limited td, those associated with the removal, transportation, and
disposal of free product or groundwater, and the design, construction, installation,
operation, maintenance, and closure of free product or groundwater removal systems.
a)
Payment for costs associated with each round offree product or groundwater
removal via hand bailing or a vacuum truck shall not exceed a total of $0.68 per
gallon or $200.00, whichever is greater.
The Agency has attempted to oversimpljfy the costs associated with free product or
groundwater removal and disposaL The costsfor removal and disposal are highly
variablebased upon site-specjficfactdrs. •The amount of water present or the product-
to-water ratio dictates whether or not the material recovered can be reclaimed or if
disposal is required. The condition of the product will also dictate whether or not it
can be reclaimedor
if
it must be disposed of Facilities capable of water/product
separation, reclamation and/or disposal are scarce and are not immediately available to
most UST owners or operators. Again, additional costs are associated with transport
43
for sites not located in close proximity to facilities permitted to handle the recovered
materiaL Trucking costs are typically at least $8100/hourfor transport. Costs for
recovery, separation or disposal that have been encountered by CW’Mhave ranged
from as low as $0. 59/gallon to over $2.00/gallon. Transport costs are usuallynot
included in these rates. These costs do not begin to cover technical orfield personnel
on site who are supervising, conducting, coordinating or collecting samples associated
with free product or groundwater removal. Such personnel are mandatory to ensure
that all regulations are beingfollowed andproperfield documentation is being
generated/recorded and collected.
If adopted, UST owners or operators will be forced to minimize or not conductfree
product removal activities or be stuck with costs that will not be eligiblefor
reimbursement The Agency’sproposal will have a severe impact on tank owners or
operators with limited resources
41
reimbursement cannot be obtained. Theproposed
maximum costs will ultimately lead to reducedprotection of the environment and
violations ofthe Act and this Part
b)
Payment for costs associated with the removal of free product or groundwater via
a method other than hand bailing or vacuum truck shall be determined on a time and
material basis and shall not exceed the amounts set forth in Section 734.850 of this Part.
Such costs shall include, but not be limited to, those associated with the design,
construction, installation, operation, maintenance, and closure of free product removal
systems.
Section 734.815(b) acknowledges thatfree product or groundwater removal by means
other than hand bailing or vacuum truck involves too manyfactors and variablesfor
there to be lump sum maximum costs. The Agency’s rationalefor this determination
should be applied to all other activities where site-spec4fic or location-spec4/Icfactors
dictate costs associated with compliance of this Part
732.820 & 734.820
Drilling, Well Installation, and Well Abandonment
Payment for costs associated with drilling, well installation, and well abandonment shall
not exceed the amounts set forth in this Section, excluding drilling conducted as part of
free product removal or an alternative technology. Payment for costs associated with
drilling conducted as part of free product removal or an alternative technology shall be
determined in accordance with Section 734.850 ofthis Part instead ofthis Section.
a)
Payment for costs associated with each round ofdrilling shall not exceed the
following amounts. Such costs shall include, but not be limited to, those
associated with mobilization, drilling labor, decontamination, and drilling for the
purposes of soil sampling or well installation.
44
Type of Drilling
Maximum Total Amount
Hollow-stem auger
greater of $23.00 per foot or $1,500.00
Direct-push platform
greater of $18.00 per foot or $1,200.00
b)
Payment for costs associated with the installation ofmonitoring wells, excluding
drilling, shall not exceed the following amounts. Such costs shall include, but not
be limited to, those associated with well construction and development.
Type ofBorehole
Maximum Total Amount
Hollow-stem auger
greater of $1 6.50/foot (well length)
Direct-push platform
greater of$12.50/foot (well length)
An evaluation of the above proposed costsfor drilling and well installation as
compared to the costs presently andpreviously approved by the Agency reveals
signjficant reductions in allowable costs, contrary to Mr. Clay’s March 15, 2004
testimony. Drilling an installation of a 15’monitoring well under the proposed
maximum costs ($592.50) is $75.00 less than the amount IEPA approved in 2001. In
addition, the Agency has for severalyears made a modest allowancefor mobilization
per each round or day of drilling in the amount of $260.00. While thisfigure was
already inadequatefor remote sites or sites located a significant distancefrom the
drilling contractor or consultant, at least the Agency recognized that there are separate
costs associated with mobilization. Drilling contractors must mobilize a drilling rig,
support truck (equipped with decontamination equipmentand supplies) and the
drilling personneL On aper hour basis, this was already insufficient to mobilize much
farther than 30-50 milesfrom the driller’s home base. In addition, ifan approved
drilling event consists of a large number of borings and/or monitoring wells, which
cannot be completed in one day or more, there is no allowancefor overnightstay and
additional personnel costs.
c)
Payment for costs associated with the abandonment ofmonitoring wells shall not
exceed
$1.50 (modifiedto $10. 00)
per foot of well length.
Theproposed allowance of $10.00 perfool of well length for well abandonment is
wholly inadequatefor the true costs associated with the activity. Using a 15’ well as an
example, the drilling contractor would only be provided $150.00 per well. The driller
cannot even afford to mobilize to a sitefor $150.00, much less incur the labor,
equipment and materialsupplies to properly abandon a well. The driller will be
required to mobilize the rig, support truck andpersonnel and removefrom the site the
well materialsfor disposaL The Agency had been approving,for 731 sites
reimbursement claims, andfor budgets costsfor abandoning 15’ wells, amounts of
$300.00 to $350.00 per wellplus allowancesfor mobilization. These rates have been
evaluated by the Agency and deemedreasonable.
The proposed rates will result in owners or operators leaving groundwater monitoring
wells in place and not properly abandoning them.
45
732.825 &
734.825
Soil Removal and Disposal
Payment for costs associated with soil removal, transportation and disposal shall not
exceed the amounts set forth in this Section. Such costs shall include, but not be limited
to, those associated with the removal, transportation, and disposal of contaminated soil
exceeding the applicable remediation objectives or visibly contaminated fill removed
pursuant to Section 734.210(f) of this Part, and the purchase, transportation, and
placement ofmaterial used to backfill the resulting excavation.
a)
Payment of costs associated with the removal, transportation, and disposal
of contaminated soil exceeding the applicable remediation objectives,
visibly contaminated fill removed pursuant to Section 732.2 10(0 ofthis
Part, and concrete, asphalt, or paving overlying such soil or fill shall not
exceed a total of $57.00 per cubic
yard.
The proposed maximum allowable payment for costs associated with excavation,
transportation and disposal ofsoil orfill material should be stricken entirely. To place
a maximum lump sum amount on this type of activity shows extreme lack of knowledge
for what it takes to complete these tasks.
The Agency has since at least 1997 utilized afactor of $55.00 percubicyard as a
guidancefigurefor determining reasonableness, while making allowances for site-
specjfic conditions or locations, which can drastically alter the costs. During the past
two to three years, LUST Section Project Managers have been attempting to enforce
the $55.00 per cubicyard rate to all sites, regardless ofsite-specjflc conditions or
locations. Onlyfollowing recent landfill tippingfee rate increases, did the Agency
adjust the lump sum rate to $57.00 per cubicyard. CWMobtaineda copy,from the
Illinois Department of Transportation website, of the awarded bid tabs for every project
in 2003 which contained bid items for environmental work, such as excavation and
disposaL A summary of the information is included in Appendix J. It should also be
notedthat the 1DOT work is competitively bid. The awarded average ratefor
excavation and disposal, per cubic yard, was $99. 75, and the standard deviation was
more than the average. It should also be pointed out that all available information
from IDOT was used, 36 entries in all, while the Agency only used 25 selectedfrom
sometime during the past three orfour years.
Appendix F contains an excerptfrom a 1988 publicationfrom the United States EPA,
which states that landfill disposal ofgasoline-contaminated soils, including
transportation, rangedfrom $125 to $200 per cubic yard. Excavation, transportation
and disposal costs have increased signjflcantly since 1988.
The Agency hasfailed to take into account cost increase and inflationaryfactors over
the past 9 years but as soon as landfill disposalfees were increased, the Agency
suddenly made an allowance for those costs. Mr. Harry Chappel, LUSTSection Unit
46
Manager, test(fledthe rates were increased to accountfor an increase in landfill
disposalfees. (CW1M v. IEPA. Chappel Deposition, p. 31, December 2003)
The discovery deposition of Brian P. Bauer on December 3, 2003 illustrates that the
Agency developed its ratefor excavation, transportation and disposal without taking
into account site-specificfactors such as the distance between a site and a landfill or
complex excavations. (CW~Mv. IEPA, Bauer Deposition, p. 44, December 2003)
Failure to accountfor or make adjustments for site location is a gross oversight by the
Agency when the distance to a landfill is the drivingfactor when calculating the cost of
an excavation and disposal. As Agency personnel spend little to no time in the field
and have no background in business costs, they lack the necessary experience and
training to adequately pre-define costs. Trucking, equipment and personnel hours are
all completely dependent upon the distance. The number of available trucks can also
impact the total cost of excavation, transportation and disposaL Duringpeak seasons
for road construction and grain hauling, available trucks arefew and are at a
premium. For some sites, where space is limited or restricted, the size and number of
trucks may have to be minimized because there is insufficient roomfor them to
maneuver, turn around, dump orfilL For sites with space restrictions, (trucks are not
reduced to an appropriate number to match site accommodations, additional costs can
be incurredfor traffic control, blocking streets or waiting for site access. On busy
streets or at busy intersections, site activities require traffic assistance to protect the
safety of other motorists, pedestrians, on-sitepersonnel and trucks. When site space
limitations are present, these safetyfactors can become worse. The on-site professional
makes adjustments or mod(fication, as necessary, to safrly and efficiently manage the
job. CWM has preparedseveral examples to illustrate the impact of the distance
factor, which show thatfor a large majority of the sites in Illinois, the maximum
allowable rate proposed by the Agency is unattainable.
Site-spec(JIc conditions or complexities should also be accommodated for when
evaluating reasonable rates for excavation, transportation and disposal. Soil
conditions and excavation wall stability can affect the efficiency of an excavation.
Should soil properties be present which create wall collapse, sloughing or unsafe
conditions, measures must be employed to protectpersonnel, equipment and
surrounding structures. These efforts can disrupt an excavation or at a minimum,
increase the costs associated with the excavation by requiring benching, sloping or
retaining walls. The Agency has failed to accountfor these types offield conditions.
Mr. Clay stated during discussions ofthe landfill rates at the March 15, 2004 hearing
that the Agency did consider a reasonable distance in calculating their rates
(Transcript, page 279). However, he was unsure whatfigure was utilized. This is
contradictory to deposition testimony offered by Brian Bauer (CW3M Company. Inc. v.
Illinois Environmental Protection A~~’ency,Bauer Deposition, 44:4, December 2003)
who was person who prepared the rates.
In previously conducted early action and corrective action budgets, the Agency has
approved mobilization and demobilization chargesfor each piece of equipment brought
47
to a site which is necessary in order to conduct the work. While the rate approved by
the Agency was insufficient for remote sites, at least they acknowledged that
contractors incur some costs in order to move equipment Under the newlyproposed
lump sum rate, the costs for mobilization and demobilization have been completely
ignored.
The rates have not been adjusted in nineyears to accountfor inflation. (CW~M
Company, Inc. v. Illinois Environmental Protection Agency, Bauer Deposition, 39:3,
December 2003) According to the Gross Domestic Product Implicit Price Deflator for
Gross National Product, between 1996 and 2003 inflation should have raisedpricing
by over 11.
Not only has the Agency failed to accountfor site-specf/icfactors, they
havefailed to adjust their rate (exceptfor landfilldisposalfees) in nine years. There
has been no allowance for inflation, personnel cost increases and raises, higherfuel
costs (which dramatically affect trucking and equipment rates), higher vehicle/truck
and equipmentpurchase and repair costs, higher insurance costs (particularly
following 9/11/01), higher license and operating/permitfees imposed by the State, etc.
In lieu of lump sum maximum rates, the Agency should review budget on a time and
materials basis and rely on estimates provided by Licensed Professional Engineers and
Geologists who are regulated by the Department ofProfessional Regulations.
(a)(1) Except as provided in subsection (a)(2) of this Section, the volume of soil
removed and disposed shall be determined by the following equation using
the dimension of the resulting excavation: (Excavation Length X
Excavation Width x Excavation Depth) x 1.05. A conversion factor of 1.5
tons per cubic yard shall be used to convert tons to cubic yards.
The Agency’s proposed conversionfactor of 1.5 tons per cubic yard is nothing more
than an attempt to overturn the Pollution Control Board’sfinal decision regarding soil
density as was promulgated as amendments to 732 in April 2002. Considerable
testimony wasfiled with regards to appropriate conversion factors and soil density.
The Board noted in 732.Appendix C the following:
Site specific information may be used to determine the weight of backfill
material ifsite conditions such as backfill material, soil moisture content, and
soil conditions differ significantly from the default values.
BOARD NOTE: The weight of backfill material is calculated by using the
default bulk density values listed in TACO regulation at 35 Ill. Adm. Code 742,
Appendix C, Table B. The weight of backfill material to be removed is basedon
a dry bulk density value of 1.8 g/cm for sand and a moisture content of 10
percent which equals 1.98 g/cm3. The Board has rounded the removed backfill
density to 2.0 g/cm3. The weight of backfill material to be replaced is based on a
dry bulk density value of 2.0 g/cm for gravel.
48
TheAgency is proposing to eliminate the above language, which when converted
equates to approximately 1.68 tons per cubk yard, and impose an arbitrary conversion
factor of 1.5 tons per cubicyard. The Agency is attempting to ignore values listed in
TACO regulation at 35 IlL Adm. Code 742, Appendix C, Table B and impose a
conversionfactor with no scientf/ic basis.
Mr. Harry Chappe4 LUSTSection Unit Manager, testffied that the Agency recently
decided to just use one-and-a-h aiffor all soil types. (CW3M Company, Inc. v. Illinois
Environmental Protection Agency, Chappel Deposition, 46:2, December 2003) Mr.
Chappel commented that the Agency believed that the 1.5 conversionfactor was the
average of most of the soils in Illinois, however, there was no detailed evaluation
conductedfor the Agency to justffy ignoring 732.Appendix C The Agency has been
operating in violation of 732.Appendix Cfor some time by simply imposing its own rule
and disregarding 732.Appendix C which was developed utilizing scientf/ic data and
testimony derived during hearingsfor the April 2002 amendments to 732.
After conducting hundreds ofsoil excavations, CW3Mhas gained considerable
experience in soil properties. The most common soilsfound in central and southern
Illinois consist ofglacial till or stjf glacial clays. These materials have weights of 1.70
and 2.22 g/cn? (Peck, 1974). Arbitrarily assigning 1.5 tons per cubicyard is
inaccurate and has no scientific basis.
The conversion rate approved by the Board, 2.0 g/cm3, should be left as Ic currently
and modf/led to in this Part and the Agency should beforced to comply with its own
regulations.
b)
Payment for costs associated with the purchase, transportation, and
placement ofmaterial used to backfill the excavation resulting from the
removal and disposal of soil shall not exceed a total of$20.00 per cubic
yard.
The proposed maximum allowable paymentfor costs associated with the purchase,
transportation andplacement of material used to backfill the excavation should be
stricken entirely. To place a maximum lump sum amount on this type of activity shows
extreme lack of knowledgefor what it takes to complete these tasks.
The Agency has since at least 1995 utilized afactor of $20.00 per cubicyard as a
guidancefigurefor determining reasonableness, while making allowances for site-
specf/ic conditions or locations, which can drastically alter the costs. During the past
two to three years, LUST Section Project Managers have been attempting to enforce
the $20.00 per cubic yard rate to all sites, regardless of site-specific conditions or
locations. The Agency has not increased this rate in nineyears and hasfailed to take
into account cost increase and inflationaryfactors over the past 9 years.
In previouslyconducted early action and corrective action budgets, the Agency has
approved mobilization chargesfor each piece of equipment brought to a site which is
49
necessary in order to conduct the work. While the rate approved by the Agency was
insufficientfor remote sites, at least they acknowledged that contractors incur some
costs in order to move equipment Under the newlyproposed lump sum rate, the costs
for mobilization have been completely ignored.
The discovery deposition ofBrian P. Bauer on December 3, 2003 illustrates that the
Agency developed its rate for excavation, transportation and disposal without taking
into account site-specf/ic factors such as the distance between a site and a landfill or
complex excavations. (CK’3M Company, Inc. v. Illinois Environmental Protection
Agency, Bauer Deposition, 44:4, December 2003) It is likely that the Agency did not
take into accountsite-specf/ic factors when developing its rates for purchase,
transportation andplacement of backfill material. Failure to accountfor or make
adjustmentsfor site location is a gross oversight by the Agency when the distance to a
material supplier is the drivingfactor when calculating the cost of backfilling. As
Agency personnel spend little to no time in the field and have no background in
business costs, they lack the necessary experience and training to adequatelypre-define
costs. Trucking, equipment and personnel hours are all completely dependent upon
the distance. The number of available trucks can also impact the total cost of
transportation and backfilL During peak seasons for road construction and grain
hauling, available trucks arefew and are at a premium.
The rates have not been adjusted in nine years to accountfor inflation. (CW3M
Company, Inc. v. Illinois Environmental Protection Agency, Bauer Deposition, 39:3,
December 2003) According to the Gross Domestic Product Implicit Price Deflator for
Gross National Product, between 1996 and 2003 inflation should have raisedpricing
by over 11.
Not only has the Agencyfailed to accountfor site-specificfactors, they
havefailed to adjust their backfill rate in nineyears. There has been no allowancefor
inflation, personnel cost increases and raises, higherfuel costs (which dramatically
affect trucking and equipment rates), higher vehicle/truck and equipmentpurchase
and repair costs, higher insurance costs (particularly following 9/11/01), higher license
and operating/permitfees imposedby the State, etc.
Appendix E contains an excerptfrom a l988publicationfrom the United States EPA,
which states that backfill material cost rangedfrom $10 to $20 per cubicyard.
Grading the backfill added $2.50 to $3.50per cubicyard to the overall cost Equipment
and transportation costs have increased significantly since 1988.
In lieu of lump sum maximum rates, the Agency should reviewbudgets on a time and
materials basis and rely on estimates provided by LicensedProfessional Engineers and
Geologists who are regulated by the Department of Professional Regulations.
(b)(l) Except as provided in subsection (b)(2) ofthis Section, the volume of
backfill material shall be determined by the following equation using the
dimensions of the backfihled excavation: (Excavation Length x Excavation
50
Width x Excavation Depth) x
1.05.
A conversion factor of 1.5 tons per
cubic yard shall be used to convert tons to cubic yards.
The Agency’s proposed conversionfactor of 1.5 tons per cubicyard is nothing more
than an attempt to overturn the Pollution Control Board’sfinal decision regarding soil
density as was promulgated as amendments to 732 in April 2002. Considerable
testimony wasfiled with regards to appropriate conversionfactors and soil density.
The Board noted in 732.Appendix C thefollowing:
Site specific information may be used to determine the weight o(backfill
material ifsite conditions such as backfill material, soil moisture content, and
soil conditions differ significantly from the default values.
BOARD NOTE: The weight of backfill material is calculated by using the
default bulk density values listed in TACO regulation at 35 III. Adm. Code 742,
Appendix C, Table B. The weight of backfill material to be removed is based on
a dry bulk density value of 1.8 g/cm for sand and a moisture content of 10
percent which equals 1.98 g/cm3. The Board has rounded the removed backfill
density to 2.0 g/cm3. The weight a/backfill material to be replacedis based on a
dry bulk density value of2.0 g/cm for gravel.
The Agency isproposing to eliminate the above language, which when converted
equates to approximately 1.68 tons per cubic yard, and impose a conversionfactor of
1.5
tons per cubic yard. The Agency is attempting to ignore values listed in TACO
regulation at 35
IlL
Adnt Code
742,
Appendix C, Table
B
and impose a conversion
factor with no scientific basis.
Mr. Harry Chappe4 LUST Section Unit Manager, testffied that the Agency recently
decided to just use one-and-a-halffor all soil types. (CW’M Company, Inc. v. Illinois
Environmental Protection Agency, C/rappel Deposition, 46:2, December 2003) Mr.
Chappel commented that the Agency believed that the 1.5 con version factor was the
average of most of the soils in Illinois, however, there was no detailed evaluation
conductedfor the Agency to justffy ignoring 732.Appendix C The Agency has been
operating in violation of 732.Appendix Cfor some time by simply imposing their own
rule and disregarding 732.Appendix C which was developed utilizing scientffic data
and testimony derivedduring hearings for the April2002 amendments to 732.
The conversion rate approved by the Board, 2.0 g/cm3, should be left as is currently
and modWed to in this Part and the Agency should beforced to comply with its own
regulations.
c)
Payment for costs associated with the removS and subsequent return of
soil that does not exceed the applicable remediation objectives but whose
removal is required in order to conduct corrective action shall not exceed a
511
total of $6.50 per cubic yard. The volume ofsoil removed and returned
shall be determined by the following equation using the dimensions ofthe
excavation resulting from the removal of the soil: (Excavation Length x
Excavation Width x Excavation Depth). A conversion factor of 1 .5 tons
per cubic yard shall be used to convert tons to cubic yards.
The excavation and removal of soil that is not to be disposed of but is required to be
removed to access contaminated soil is a process with limited usefulness and
applicability. The process is not exact and can be quite tedious when attempting to
segregate contaminated materialfrom clean material, especially when trying to apply a
clean up objective rather than a visual or odor indication of contamination. Large
buckets on excavating equipment are not designed to “nitpick” through soilfor
segregation.
The type of excavation and the size or layout of the property being excavated will also
have an impact on the feasibility and associated costsfor excavation, removal and
placement If a trench is being excavated and the removed soil can simply beplaced on
one side of the trench and the opposite side is open and availablefor truck or other
equipment activity, placement can be completed relatively inexpensively. However,
if
the excavating equipment has to walk all the way across a large site to place soil so it
will not disrupt the excavation and movement oftrucks and other equipment, or
if
trucks are loaded to move soil to another location on the property out oft/re way,
considerably more costs will be incurred. The exercise of excavating to segregate clean
from contaminated soil Ic tedious and time consuming in and of itself, requiring more
effort than is allowed under the Agency’sproposed $6.50 per cubic yard rate. The
material will also be required to be tested as is it removed and stockpiled. The
contractor will have to waitfor analytical results to yerjfy contamination levels in the
removed soil before it can be moved again andplacedback into the excavation.
For the reasons listed above, Section 734.825(c) should be stricken as written; the
work, when deemed technicallyfeasible or able to be conducted given site constraints,
should be conducted on a time and material basis. The cost estimate should be
developed and prepared by a Licensed Profrssional Engineeror Geologist with the
necessary experience and credentials to accurately assess the costs.
732.830 & 734.830
Drum Disposal
Payment for costs associated with the purchase, transportation, and disposal of 55-gallon
drums containing waste generated as a result ofcorrective action (e.g., boring cuttings,
water bailed for well development or sampling, hand-bailed free product) shall not
exceed the following amounts or a total of $500.00, whichever is greater.
Drum Contents
Maximum Total Amount per Drum
Solid waste
$250.00
Liquid waste
$150.00
52
The maximum proposed costsfor purchase, transportation, and disposal of 55-gallon
drums of waste are reasonable for sites located in close proximity to a disposalfacility
and when numerous drums are beingdisposed of at one time. However, for sites
located in remote areas oft/re State or wherefacilities to transport and dispose of the
materials are not in close proximity, the maximum lump sum proposed amount is
insufficient When the proposed cost includes the drum itself transportation and
disposal, it will be inadequatefor many sites. The drum itself
if
purchased
individually and is an IDOT.-approved drum (requiredfor transportation), will cost
approximately $65.00. If the site is located 2 hours from the disposalfacility,
approximately 4.5-5 hours of truck time will be required to load, secure and transport
the waste. At $70.00 per hourfor a tandem axle dump truck, licensedfor special waste
hauling, $350.00 will be incurredfor transportation. Most landfills have higher rates
for drums than they wouldfor soil on aper yard basis due to the special handling
required. The actual disposal would cost $200.00 (Allied Waste March 2004). In order
to load the drum into a truck, a backhoe or other equipment andpersonnel will be
required. An hour of backhoe time, at $85. 00 per hour with operator, plus
mobilization, at the Agency’s historic approval rate of $200.00, adds $250.00 to the
cost The alternative to utilizing a backhoe would be to secure truckingfrom the
landfill utilizing a truck with a lifting mechanism especially designedfor drums,
however, most landfills, especially in southern Illinois, arenot equipped with such
equipment.
Given this site location and variables, cost to dispose of one drum could exceed
$865.00. Obviously, the costper drum would be signjficantly less
if
a large number
were being loaded, transported, and disposed of however, this scenario is for a single
drum, which could be the scenario for sites with minimal drilling or sampling
activities. Liquid disposal costs could experience the same degree offluctuation or
range of costs dependent upon the location of the site.
For the reasons listed above, Section 734.830 should be stricken as written; the work,
when deemedtechnicallyfeasible or able to be conducted given site constraints, should
be conducted on a time and material basis. The cost estimate should be developed and
prepared by a Licensed Professional Engineer or Geologist with the necessary
experience and credentials to accurately assess the costs.
732.840 & 734.840
Replacement of Concrete, Asphalt, or Paving; Destruction or
Dismantling and Reassembly ofAbove Grade Structures
a)
Payment for costs associated with the replacement of concrete, asphalt, or
paving shall not exceed the following amounts:
Depth of Replacement Material
Maximum Total Amount
per Square Foot
Two inches of asphalt or paving
$1 .51
53
Three inches of asphalt or paving
$1.70
Four inches of concrete, asphalt or paving $2.18
For depths other than those listed above, the Agency shall determine
reasonable maximum payment amounts on a site-specific basis.
The rates provided, takenfrom the National Construction Estimator, are taken out of
context, and are not used correctly. Four inches of concrete or asphalt paving is
inadequatefor a commercialfacility. A more realistic rate, $6.01 persquarefoot,
calculatedfrom the 2004 Edition oft/re National Construction Estimator, for
commercial construction, is presented in Appendix £
For the reasons listed above, Section 734.830 should be stricken as written; the work,
when deemedtechnicallyfrasible or able to be conducted given site constraints, should
be conducted on a time and material basis. The cost estimate should be developed and
preparedby a Licensed Professional Engineer or Geologist with the necessary
experience and credentials to accurately assess the costs.
b)
Payment for costs associated with the destruction or the dismantling and
reassembly of above grade structures shall not exceed the time and
material amounts set forth in Section 734.850 of this Part. The total cost
for the destruction or the dismantling and reassembly ofabove grade
structhres shall not exceed $10,000 per site.
The Agency’s basisfor the $10,000 maximum allowable amount per sitefor
dismantling and reassembly of above gradestructures is out-dated and not based upon
any real evaluation of costs and lacks support The Agency has used the $10,000
figure since the early 1990’s as a gauge to determine whether or not a structure could
be removed. If a building,for example, were valued at less than $10,000, the Agency
would allowfor its demolition as part of corrective action costs. Historically, once
determined eligiblefor destruction, the Agency would payfor its demolition, removal
and disposal on a time and materials basis. In more recentyears,for budget approvals,
the Agency has translated the structure’s worth into a maximum allowable costfor its
destruction. Accordingly, there is no real basisfor the maximum amount payablefor
$10,000 per site.
Section 734.840(b) should therefore be re-written to allowfor the destruction of above
grade structures on a time and material basis, which takes into account the size,
building material composition and condition oft/re structure and the distance required
to travel to a permitted disposalfacility. The composition oft/re structure would
include evaluating wall andfloor materials, a determination oft/re presence of
asbestos-containing material and the weight or density oft/re material to be disposed
of Special segregation, notjfication, handling and disposal of asbestos-containing
materials are a requirement that cannot be ignored. Varying compositions will have
54
varying disposal costs as well The LicensedProfrssional Engineeror Geologist with
experience in evaluation and cost estimating is much better equipped to develop a
reasonable projected cost rather than reliance upon an out-dated and improperly used
estimate as developed by the Agency. The Agency has attempted to streamline or
itemized the costs associated with structure demolition usingfigures not originally
developedfor such a purpose.
732.845 & 734.845
Professional Consulting Services
Payment for costs associated with professional consulting services shall not exceed the
amounts set forth in this Section. Such costs shall include, but not be limited to, those
associated with project planning and oversight; field work, field oversight; travel; per
diem; mileage; transportation; and the preparation, review, certification, and submission
ofall plans, budgets, reports, applications for payment, and other documentation.
a)
Early Action and Free Product Removal. Payment of costs for
professional consulting services associated with early action and free
product removal activities conducted pursuant to Subpart B of this Part
shall not exceed the following amounts
1)
Payment for costs associated with the preparation for the
abandonment ofUSTs shall not exceed a total of $960.00
In the Agency’s attempt to simplify the methods to determine cost reasonableness, they
have overlooked the complexities of some sites and the special requirements necessary
to complete the work in accordance with regulations and safety requirements. The
Agency has not offered how it developed this amount, the number of sites or extremes
found at sites, or any other supporting documentation for the Board or the regulatory
community tojudge the reasonableness, oftheir proposed rate.
For most sites, costs topreparefor UST abandonment or removal should not exceed
theproposed amount of $960.00. However, some sites require considerably more
effort, plans and designs prior to conducting the work In April 2001, CW~’M
conducted an extremely complicated USTremoval. (Smoot 99-2755) What was once a
very large parcel of land with a gasoline station in the front and a bulkplant operation
in back with all USTs servicing both operations located between the twofacilities, was
divided during a real estate transaction. When dividing the property, the property line
was adjusted in and around the USTs segregating those which serviced eachfacility.
While this sounds simple enough, the complication arises as the tanks were not sorted
or distributed by facility. Almost every other tank serviced the oppositefacility.
CL?Mworked with the OSFMto develop and design a removalprocess that would
allow the tanksfor the bulkplant to be safely removed while protecting the other tanks,
which were active at the station. Detailed engineering drawings andplans were
required by the OSFM. To protect the active tanks, one at a time was drained, piping
55
disconnected andpile was driven around its backfill/bedding perimeter. Once the
adjoining bulk plant tank was uncovered, removed, contaminated backfill removed and
replaced, the product was restoredto the active tank and its system was reassembledfor
operation. This process continuedfor each lank until all were completed. A total of
seven 12,000-gallon tanks were removed. The OSFM Tank Specialist on site deemed it
the most complicated UST removal ever witnessed by their office.
While this type of site and its complexities are not the norm, this situation demonstrates
that inflexible maximum lump sum amounts cannot workfor every site in Illinois.
Therefore, Section 734.845 should be re-written or stricken to allow for circumstances
or site-spec(tic cases to be treatedfairly and equitably. Owners or operators ofsites
which do notfit a standardscenario should not be punished or penalizedbecause their
site experiences circumstances do notfit the Agency’s cookie cutterprice-fixing
amounts.
2)
Payment for costs associated with early action field work and field
oversight shall not exceed a total of $500.00 per half-day. The
number of half-days shall not exceed the following:
A)
If one of more USTs are removed, one half-dayplus up to
one half-day for each 250 yards, or fraction thereof, of
visibly contaminated fill material removed and disposed in
accordance with 734.2 10(1);
Section 734.845(2)(A) should be stricken in its entirety. There is no demonstrated basis
for limitingfield oversightfor professional consulting services to such an outrageous
proposed maximum rate. The proposed rate clearly illustrates the Agency’s lack of
understanding offield activities associated with UST removals and excavation work.
The proposed rate does not accountfor all site variables that dictate the amount offield
oversight necessary to safely complete the work while maintaining compliance with
current UST regulations (Part 732, proposed Part 734 and 41 111. Adm. Code Parts 170
and 172).
To safely and efficiently remove underground storage tanks, the contractor and/or
consultant must mobilize all equipment and personnel the daypreceding the UST(s)
removaL The contractor will need to re-assess the USTs prior to uncovering to
determine jfany additional liquids have accumulated in the tank(s), as is often the case
for leaking tanks particularly at a site with a high water table. The liquids should be
removedjust prior to venting operations to avoid additional accumulation. Most UST
removals are scheduledfor the morning orfor all day (or multiple days), dependent
upon the number of tanks present. The contractor is required to have the site and
tanks ready, exposed and ventilating upon the arrival of the OSFM Tank Specialist.
The time of arrival of the OSFM Tank Specialist is variable dependent upon howfar
they must travel to reach the site. Typically, the site is ready early in the morning to be
preparedfor the OSFM Tank Specialist, as their exact arrival time is not
56
predetermined. Accordingly, most preparation work is completed on the day prior to
the scheduled removal(s).
Severalfactors affect the cost ofmobilization of equipment andpersonnel to a site for
UST removal work. The distance to the site is a primaryfactor. If the contractor
and/or consultant must travel a sign j/icant distance, afull day is required to mobilize
and ready the sitefor the next day’s removal work. The length of time requiredfor
UST removal is also highly variable; majorfactors contributing to the lime required
include number of tanks, weather (particularly humidity and temperature), location of
tank(s) atfacility, tank andpiping condition, extent and location ofpiping,
groundwater depth, soil stability, and type and thickness of overburden. Thesefactors
were clearly not accountedfor by the Agency when developing its maximum allowable
oversight rates.
When the site is located in a remote area ofthe State or the removal contractor has to
travela greater distance to the site, typically, as mentioned above, the contractor will
uncover the USTs the day before the scheduledremoval and arrive early to the site on
the day ofthe removal to begin venting operations. In this case, overnight stay is
requiredfor severalindividuals.
The time necessary for uncovering the tanks is dependent upon the type and thickness
of the overburden. For high and heavy traffic areas, the overburden will consist of
reinforced concrete, which requires additional timefor destruction and removal If the
water table is very shallow, the excavation may require continuous dewatering in order
to access and remove the tanks. If the tanks recently heldfresh product, ventilation
operations will take longer to achieve the required LEL (Lower Explosive Limit).
Several otherfactors can also complicate activities to achieving the required LEL.
These include, but are not limited to, ambient air temperature (the warmer the
temperature, the more volatiles are generated in the USTbyfuel residues), higher
humidity levels, and whether or not the tank was relined and the condition of the lining
(fuel residues and vapors can become trapped between the tank and the liner).
The condition of the tank itself will also affect the amount of time to remove it. Ifthe
tank has corrodedto the extent that it is taking on water (shallow groundwater
conditions), continuous pumping activities will be required in order to l(ft the tank
from the excavation. Older tanks may havefittings or ljfting lugs that have become
corroded requiring alternative measures be developed to safely remove the tank. Long
or extended piping trenches will require tedious excavating to expose the piping in its
beddingso that the OSFM Tank Specialist can observe the piping in situ and assess
soil conditions to determine if the piping contributed to the release. As mentioned
above, the piping overburden can, (reinforced concrete, take additional time and
effort to remove.
If numerous tanks are located at a facility and all are not within the same bedding or
pit, multiple excavations will have to be conducted to expose the tanks, increasing the
time and associated costs. If tanks are located in close proximity to a building or other
57
structure, special excavation precautions will be required to assure that the walls are
stable and will not collapse causing damage to neighboring structures. Soil conditions
and stability also play a sign jficant role in the safety ofan excavation. Severe
contamination can erode soil stabilityproperties and must be assessed and guarded
against during excavation and tank removal operations. Benching and sloping
activities may be necessary and can be applied where sufficient space is available.
More aggressive means ofslope stability, such as wall supports, cribs or piles, must be
applied when there is insufficient space or soil stability cannot be achieved using
sloping or benching measures.
Should the removal(s) take an entire day, as they often do, initiation of removal of
contaminated fill may or may not occur. Site constraints typically dictate whether the
excavation can begin. For sites with limited space, there is often no sufficient room for
UST removals, much less roomfor trucks to access the excavation. For smaller sites,
much of the available space is utilized to store the removed overburden (soil, paving or
concrete) until it removalfrom the site, house the removal equipment (air compressors,
service trucks, etc.), and spacefor setting the UST on the surfacefor cutting and
cleaning activities. The required exclusion zone generally prohibits trucksfrom
enteringthe site until all tanks are removed, cleaned, and inspected. Under these types
of conditions, excavation, transportation and disposal may not be able to begin on the
day of the tank removals. CWM has often begun transportation and disposal activities
at sites once the removal is over; however, limited quantities of soil can be moved when
the activities start later in the day. The scheduling of trucking is d(ficult until the
tanks are at least all vented, at which point it may be too late in the day to secure the
trucks.
Given the descriptions above, a minimum oftwo full days can be necessary to safely
remove USTs. Additionaldays are necessary when there is large number of tanks.
The Agency’s proposed maximum rate for the excavation and disposal volume of 250
cubicyards also shows a lack of understandingfor site variables and the oversight
necessary to ensure the work proceeds in accordance with all regulations and
profrssionalism and to ensuresamples are collectedfrom required locations and
handledproperly. The profrssional must be on site also to make immediatefield
decisionsfor circumstances which arise that don’t conform to the norm or when
certain regulatory requirements cannot be met For example, a site with an extremely
high water table mayflood the excavation once the water table is accessed. Once
flooded or (a floor is too saturatedfor proper sampling, the professional will assess
the situation and make sure all necessary documentation is collected to present to the
Agency to demonstrate the site-spec(fic conditions which prevented the sampling. For
this and other reasons, CW3M contends that a professional must be on site at all times
when work is in progress. Under the Agency’s proposed rate system, the UST program
will move back to the Dark Ages and backhoe operators will be collecting samples. It is
not their on-sitefunction and they typically lack the education, training, experience
and regulatory backgrounds necessary to oversee ajob site.
58
The Agency’s proposed ratefor oversight does not take into account the number of
tanks being removed. An economy of scalefactor cannot be applied (only one tank is
removed. The necessary equipment utilized during tank removal activities is the same
whether there is one tank to remove or multiple. Excavating equipment, site safety
equipment, ventilating equipment, grounding systems, etc. will be necessary; the costs,
on a daily basis, can be spread out over multiple tanks, however, when only one tank is
being removed, all equipment costs must be attributed to a single tank.
For a remote site, theprofessional is not even afforded sufficient time to drive to the
site, much less perform their required work. Twelve to 16-hour days are not
uncommon in the field.
With regards to the allowance of one half-day oversightfor 250 cubicyards of soil
removal, the Agency has not taken into account site-spec(ficfactors, which dictate the
amount of soil that can reasonably removed in a day.
Site-specj/ic conditions or complexities should also be accommodatedfor when
evaluating reasonable ratesfor excavation, transportation and disposal. Soil
conditions and excavation wall stability can affect the efficiency of an excavation.
Should soil properties be present which create wall collapse, sloughing or unsafe
conditions, measures must be employed to protectpersonnel, equipment and
surrounding structures. These efforts can disrupt an excavation or at a minimum,
increase the costs associated with the excavation by requiring benching, sloping or
retaining walls. An OSHA excavation competent person needs to be present to
evaluate the excavation. The Agency’s proposedprofessional ratesfail to accountfor
these types offield conditions.
The rates have not been adjusted in nine years to accountfor inflation. (CW3M
Company, Inc. v. Illinois Environmental Protection A j’ency, Bauer Deposition, 39:3,
December 2003) Not only has the Agencyfailed to accountfor site-spec4ficfactors,
they havefailed to adjust the proposedprofessional rates (exceptfor landfill disposal
fees) in nineyears. There has been no allowancefor inflation, personnel cost
increases and raises, higherfuel costs (which dramatically affect trucking and
equipment rates), higher vehicle/truck and equipmentpurchase and repair costs,
higher insurance costs (particularlyfollowing 9/11/01), higher license and
operating/permitfees imposedby the State, etc.
The proposed rate apparently includes mileage, transportation and costs associated
with overtime rates and overnight stays and the Agency has failed to make
accommodationsfor these costs as welL Overtime rates are applicablefor nonexempt
employees as required by the Department ofLabor.
Over the past 14 years, CWM has conducted work experiencingsome or all of the
factors listed above. The rates and total UST removal costs werefound acceptable
using time and materialsformats or by providing the Agency with the site-spec(Jic
factors, which affected the total costs. For the reasons mentioned above and because
59
there is no justjficationfor the Agency’sproposed rate, and because the Agency did not
factor any site-specj/ic variables into it rate building, this Section should be stricken
and reasonable costs should be determinedon a time and material basis by the
professional overseeing the work and relying on estimates provided by Licensed
Professional Engineers and Geologists who are regulated by the Department of
Professional Regulations.
B)
If one ofmore USTs remain in place, one half-day for
every four soil borings, or fraction thereof, drilled pursuant
734.21 0(h)(2);
While one-half day is sufficientfor on-site work to drillfour soil borings, the
maximum rate clearly does not accountfor mobilization to the site, travel expenses,
and the oversight of UST abandonment work.
The proposed rate does not accountfor all site variables that dictate the amount offield
oversight necessary to safrly and properly complete the work while maintaining
compliance with current UST regulations (Part 732, proposed Part 734 and 41 IlL
Adm. Code Parts 170 and 172).
Theproposed rate does not accommodatefor the distance required to travel to the site,
the number of tanks being abandoned, the condition of the tanks being abandoned, the
location and travel timefor the OSFM Tank Specialist and any cleaning of
liquid/sludge removal work that is requiredfor abandonment in place. The OSFM
requires that a licensed contractor perform UST abandonment and on-site personnel
must possess the required licensing to supervise the work.
As site-spec(tic variables have not been evaluated or included in the Agency’s proposed
maximum oversight rate and because there is no jus4flcationfor the Agency’s
proposed rate, Section 734.845 (B) should be strkken and reasonable costs should be
determined on a time and material basis by the profrssional overseeing the work and
rely on costs provided by and certified by Licensed Professional Engineers and
Geologists who are regulated by the Department of Professional Regulations.
C)
One half-day if a UST line release is repaired.
While one-h alfday may be sufficient for on-site work to oversee a line releasefor some
sites, the maximum rate clearly does not accountfor mobilization to the site, travel
expenses or the amount of work associated with the repair, such as the length of the
piping run and the number of repairs required to restore operation.
The proposed rate does not accountfor all site variables that dictate the amount offield
oversight necessary to safely andproperly complete the work while maintaining
compliance with current UST regulations (Part 732, proposed Part 734 and 41 IlL
60
A dnz Code Parts 170 and 172). Section 734.845(C) does notfactor the length ofpiving
to be assessed, sampled and repaired or what type of overburden is present above the
lines. Signjflcant amount of time may be necessary to saw cut, excavate and expose a
line release, particularly when the exact location is unknown.
The proposed rate does not accommodatefor the distance required to travel to the site
or the location and travel timefor the OSFM Tank Specialist The OSFM requires
that a licensed contractor perform UST line repairs and on-site personnel must possess
the required licensing to supervise the work.
As site-specific variables have not been evaluated or included in the Agency’s proposed
maximum oversight rate and because there is nojustification for the Agency’s
proposed rate, Section 734.845(C) should be stricken and reasonable costs should be
determined on a time and material basis by the professional overseeing the work and
rely on costs provided by and certifiedby LicensedProfessional Engineers and
Geologists who are regulated by the Department ofProfessional Regulations.
3)
Payment for costs associated with the preparation and submission of 20-
day and 45-day reports, including, but not limited to, field work not
covered by subsection (a)(2) ofthis Section, shall not exceed a total of
$4,800.00.
The maximum proposed rate of $4,800. 00for preparation and submission of2O-day
and 45-day reports, includingfieldwork will be insufficientfor many sites. The Agency
indicated that it utilized the ConsultingEngineers Council of Illinois recommendations
to create the rate proposed. (CECI, 2003) The Agency then tried to justify this rate by
providing Attachment 12 of the Pre-filed Testimonyfor the March 15, 2004 hearing.
Appendix L of this document provides an in-depth analysis of how the Agency utilized
the CECI’s recommendation. The rate of $4,800 was based on the number of hours
CECI had indicated, however, the Agencyfailed to add the other site specjfIc and
incidental charges associated with completing the required work. The Agency did not
providefor inspection what sites were selectedfor evaluation to determine this rate,
therefore, it lacks support to be a catch all rate for early action reporting andfield
work. While the Agency provided a table illustrating itsjustjfication for the rate of
$4,800.00, the table itself represents the Agency’sflawed approach to rate setting. The
Agency utilized negative numbers to calculate an average rate.
As with otherproposed rates in this Part, the Agencyfails to recognize the individuality
of sites and accommodatefor costs that may be incurred to meet the technical
requirements of this Part. Thefollowing examples are situations CW3M has
encountered when conducting early action work that can affect the total costfor
compliance. Should the early action period be extended to allowfor sufficient time to
schedule and conduct UST removals, excavation and disposal, sampling with time to
obtain all necessary/requiredsupporting documentation, a second or addendum to the
45-day report will be preparedand submitted to the Agency. It will contain updated
61
information, documentation of UST removals, excavation, disposal, backfilling, liquid
disposal, groundwater conditions and excavation sample results. Under the proposed
lump sum rate, there is an insufficient amount of data available to provide the
additional information.
To properly prepare the 45-day report and assess the UST site, a site visit is necessary.
Duringsuch visit, the site, utilities and tanks will be mapped, the USTs will be
inspected to determine f/there is product or liquid requiring immediate removal, the
area surrounding the site will be assessedfor potential impacts, use ofsurrounding
property and to determine any site constraints that may hinder or cause djfficulty
during UST removals or excavation. Sampling activities may also be conducted during
this site visit When a site isnot located in immediate proximity to the professional,
they will be required to travel to andfrom the site, in addition to performing the on-site
work. For very remote sites, such as Cairo, Illinois, the professionals could easily have
a 12-hour day to travel to andfrom the site and complete the necessary work This one
activity could consume one-quarter to one-third of the available maximum lump sum
amount to complete, leaving very little to complete the required reports and any
necessary additional visits.
On some occasions, CW3Mhas conducted work at sites where the property is not
owned by the UST owner or operator. On-site access agreements are then required.
Additional coordination efforts must takeplace to inform the property owner and
conductthe work in a manner that does not reasonably interfere with the owner’s use
ofthe property. CW1M has also encountered sites where the tanks are partially located
on adjoining or off-site properties. In this type ofsituation, access agreements must be
securedfrom this property own erprior to proceeding with the work Additional efforts
are necessary to coordinate activities with the landowner andprovide them with reports
documenting the work completed.
As site-specific variables have not been evaluated or included in theAgency’s proposed
maximum oversight rate and because there is no justificationfor the Agency’s
proposed rate, Section 734.845(3) should be stricken and reasonable costs should be
determined on a time and material basis by the professional overseeing the work and
rely on costs provided by and certified by Licensed Professional Engineers and
Geologists who are regulated by the Department ofProfessional Regulations.
5)
Payment for costs associated with the field work and field oversight for
free product removal shall not exceed a total of $500.00 per half.day. The
Agency shall determine the reasonable number of half-days on a site-
specific basis.
That the Agency proposes to determine the number of half-days necessaryfor free
product removalfield work and oversight in and of itself implies that site-specjfic
factors may be present which will dictate the time neededto complete the work.
62
The Agency has attempted to oversiniplffy the costs associated with free product or
groundwater removal and disposal. Facilities capable of water/product separation,
reclamation and/or disposal are scarce and are not immediately available to most UST
owners or operators. Oversight time may be extended f/the liquids cannot be
transported to a permittedfacility located in close proximity to the site. The method of
free product recovery and the type of subsurface material will affect the rate at which
free product is recoveredfor removalfrom the site. For example, large diameter wells
or sumps located in a recovery trench willproduce recoverable free product more
quickly than a standard size monitoring well. The rate of recovery in a well or sump is
dictated by the type ofgeology present at the site or the type of materials utilized in a
recovery trench. Sites with very sandy material will take less time to recover after
pumping than sites with materials of a lower hydraulic conductivity. The professional
will be required to monitor and assist in the removal activities. Additionaltime is
incurred when recovery is slower.
Also, the professional will be required to make arrangements, cofltact various licensed
disposal and transportation contractors, complete authorization activities, potentially
pre-sample the liquids and schedule the work The professional will be required to
travel to andfrom the site to oversee the work. For a remote site, the professional is
not even afforded sufficient time to drive to the site, much less perform their required
work
If the proposed rates are adopted by the Board, UST owners or operators will be forced
to minimize or not conductfree product removal activities or be stuck with costs that
will not be eligiblefor reimbursement, even though the costs are clearly eligible
corrective action costs for which the Fund was designed to reimburse owners and
operators. The Agency’s proposal will have a severe impact on tank owners or
operators with limited resources f/reimbursement cannot be obtained. The proposed
maximum costs will ultimately leadto reducedprotection ofthe environment and
violations of the Act and this Part
As site-specific variables have not been evaluated or included in the Agency’s proposed
maximum oversight rate and because there is no justification for the Agency’s
proposed rate, Section 734.845(5) should be stricken and reasonable costs should be
determined on a time and material basis by the professional overseeing the work and
rely on costs provided by and certified by Licensed Professional Engineers and
Geologists who are regulatedby the Department ofProfessional Regulations.
7)
Payment for costs associated with the preparation and submission of
reports submitted pursuant to Section 734.2 10(h)(3) of this Part shall not
exceed a total of$500.00.
Section 734.210(h)(3) requires submittal of a report 30 daysfollowing completion of
early action activities demonstrating compliance with the most stringent Tier 1
remediation objectives of 35 III. Adm. Code 742. The report requires a characterization
63
of the site and assembly ofsupporting documentation including analytical results,
maps, and comparison of on-site data to the Tier I remediation objectives. The
preparation, assembly, review, certification and submittal ofthis reportfor a meager
$500.00 is absurd and lacks any real evaluation of the effort necessary to create the
report or any site-specificfactors that affect the total cost The number ofsamples
being evaluated and reported and drafted on maps will dictate the time requiredfor the
professional to complete the task.
As site-specific variables have not been evaluated or included in the Agency’sproposed
report rate and because there is no justification for the Agency’sproposed rate, Section
734.845(a)(7) should be stricken and reasonable costs should be determined on a time
and material basis by the professional overseeing the work and the Agency should rely
on costs provided by and certified by Licensed Professional Engineers and Geologists
who are regulated by the Department ofProfessional Regulations.
732
b)
Site Evaluation and Classification. Payment ofcosts for professional
consulting services associated with site evaluation and classification
activities conducted pursuant to Subpart C of this Part shall not exceed the
following amounts:
1)
For site evaluation and classifications conducted pursuant to
Section 732.307 of this Part, payment for costs associated with the
preparation and submission ofsite classification plans, site
classification preparation, field work, field oversight, and the
preparation and submission of the site classification completion
report shall not exceed a total of $9,870.00.
The Agency’s attempt to simplify and quantify a lump sum ratefor site classification
activities fails to recognize two keyfactors: the extent offield work to be conducted in
the field (i.e., number of borings and/or monitoring wells) and the distance to the site
for the professional. If monitoring wells are installed, a minimum oftwo trips is
required. Thefirst trip includes the drilling and well installation. During thefirst trip,
the well(s) will be developed, f/production occurs during the timeframe personnel are
on site. The second trip is needed to measure the static depth to groundwater, conduct
a slug test, purge and sample the well(s) and survey the surface elevation of each well.
If the well(s) do notproduce during the day of drilling, a third trip may be required to
develop the wells prior to conducting sampling and slug testing activities as
development must occur prior to well sampling and slug testing and development
cannot occur on the same day as slug testing because it can result in inaccuratefield
data. Both primary trips require two professional staff be on site to conduct the work
properly and in accordance with OSHA requirements (29 CFR Part 1910). If the well
configuration does not result in groundwater elevations of one monitoring well
upgradient and three downgradient, additional drilling could be required, creating the
needfor additionalfield timefor the professional.
64
While most of the site classification criteria is fairly standardized, site-specificfactors
can cause higher costs to be legitimately incurred. In addition to thefield work
mentioned above, f/the professionals are required to travel a significant distance to
reach the site, additional time will be spent traveling and mobilizing to the site and may
even require an overnightstay, depending on the extent of work to be completed.
Travel expenses themselves will be higher. The proposed rate of $9,870.00 is
significantly less than the previous standard amount allotted by the IEPA of
$13,400.00, which could be adjusted f/additionalfield work was necessary.
The Agencyfailed to provide the back-up or supporting documentationfor its table
presented in Attachment 13 of the March 15, hearing Pre-filed Testimony. Without
such documentation, the selection criteria, data entry and evaluation cannot be
adequately assessed. CW3M questions why the Agency used merely an average rather
than an average plus one standard deviation as it did with some other rates,
automatically determining that 50 of the sites willfall out of the range of reasonable.
Also,from what timeframe was the work conducted? How did the Agency select these
sites?
As site-specific variables have not been evaluated or included in the Agency’s proposed
report rate and because there is nojust4/Icationfor the Agency’s proposed rate, Section
732.845(b)(1) should be stricken and reasonable costs should be determinedon a time
and material basis by the professional overseeing the work and rely on costs provided
by and certified by LicensedProfessional Engineers and Geologists who are regulated
by the Department ofProfessional Regulations.
c)
Low Priority Corrective Action. Payment of costs for professional
consulting services associated with low priority corrective action activities
conducted pursuant to Subpart D of this Part shall not exceed the
following amounts:
2) Payment of costs associated with low priority groundwater monitoring
field work and field oversight shall not exceed a total of$500.00 per
half-day, up to a maximum of seven half-days.
The Agency failed to provide the back-up or supporting documentationfor how it
determined that 5 hoursfor only one person is sufficientfor low priority monitoring of
all sites in Illinois. The Agency’s lump sum ratefalls to recognize two keyfactors: the
extent offield work to be conducted in thefield (Le., number of wells to be measured,
purged and sampled) and the distance to the sitefor the professionaL The lump sum
rate also fails to accommodate circumstances that may be encountered during the
three-year monitoringperiod, such as insufficient groundwater for sampling (which
couldrequire a return trip to attempt to retrieve a sample) or sample verificationfor
exceedences (as Ic often requested by Agency project managers). This rate, as well as
the reporting rates are less than the rates previously allottedby the Agency to conduct
low priority corrective action.
65
734
d)
Site Investigation: payment of costs for professional consulting services
associated with site investigation activities conducted pursuant to Subpart
C ofthis Part shall not exceed the following amounts:
1)
Payment for costs associated with Stage 1 site investigation
preparation shall not exceed a total of$1,600.00,
The Agency’s attempt to simplf/y and quantjy a lump sum rate for Stage 1
investigation preparation activities fails to recognize site-specificfactors of thefirst
round ofinvestigation. The extent offield work to be conducted in Stage I (Le.,
number of borings and/or monitoring wells) will be dictated by the number of USTs
that were located at the site, the number of tank beds which housedthe USTs and the
number of samples collected during early action (from UST excavations andfrom
along product lines). The costs to prepare drilling andfieldplans and to conduct other
preparations will be dictated by the extent ofdrilling necessary to meet the
requirements of 734.315.
As site-specific variables have not been evaluated or included in the Agency’sproposed
report rate and because there is nojustjfication for the Agency ~cproposed rate, Section
734.845(b)(1) should be stricken and reasonable costs should be determined on a time
and material basis by the professional overseeing the work and the Agency should rely
on costs provided by and certified by LicensedProfessional Engineers and Geologists
who are regulated by the Department ofProfessional Regulations.
2)
Payment for costs associated with Stage I field work and field
oversight shall not exceed $500.00 per half-day. The number of
half-days shall not exceed the following:
A)
On half-day for every four soil borings, or fraction thereof,
drilled as part of the Stage I site investigation but not used
for the installation ofmonitoring wells. Borings in which
monitoring wells are installed shall be included in
subsection (b)(2)(B) of this Section instead of this
subsection (b)(2)(A); and
B)
One half-day for each monitoring well installed as part of
the Stage 1 site investigation.
The Agency’s attempt to simpljfy and quantjfy a lump sum ratefor Stage I
investigation preparation activ/ties fails to recognize two keyfactors: the extent offield
work to be conducted in Stage 1 (1e., number of borings and/or monitoring wells) and
the distance to the site for the professional. If monitoring wells are installed, a
66
minimum of two trips is required. Thefirst trip includes the drilling and well
installation. During thefirst trip, the well(s) will be developed, f/production occurs
during the timeframe personnel are on site. The second trip is neededto measure the
static depth to groundwater, conduct a slug test, purge and sample the well(s) and
survey the surface elevation of each well. If the well(s) do notproduce during the day
ofdrilling, a third trip may be required to develop the wellsprior to conducting
sampling and slug testing activities as development must occur prior to well sampling
and slug testing and development cannot occur on the same day as slug testing because
it can result in inaccuratefield data. Both primary trips require two profrssional staff
be on site to conductthe work properly and in accordance with OSHA requirements
(29 CFR Part 1910).
The costper boring or well Ic less when there are numerous wells or borings and
higher when there are only one or afew. The smaller number of borings or wells to be
drilled loses the economy of scale battle. The oversight time, especially when
significant travel time is require, along withfield equipment and supplies, is
significantly higher per unit, as there arefewer unitsfor which to spread out the costs.
Thesefactors have not been accountedfor in the lump sum half-day rate scheme
proposed by the Agency.
If the professionals are required to travela significant distance to reach the site,
additional time will be spent traveling and mobilizing to the site and may even require
an overnight stay, depending on the extent ofwork to be completed. Travel expenses
themselves will be higher. CW3Mhas severalsites in the Cairo, Illinois area. Travel to
these sites isfour hours one way. To conduct work at a site, assuming a workload that
would require eight hours, a sixteen-hour day would be necessary to complete thefirst
visit of the Stage I investigation.
As site-specj/ic variables have not been evaluated or included in the Agency’s proposed
report rate and because there is nojustjficationfor the Agency’sproposed rate, Section
734.845(b)(2)(A) and 734.845(b)(2)(B) should be stricken and reasonable costs should
be determined on a time and material basis by the professional overseeing the work and
the Agency should rely on costs provided by and certified by Licensed Profrssional
Engineers and Geologists who are regulated by the Department ofProfessional
Regulations.
3)
Payment for costs associated with the preparation and submission
of Stage 2 site investigation plans shall not exceed a total of
$3,200.00.
The Agency’s attempt to simpQfy and quantjfy a lump sum ratefor Stage 2
investigation plans fails to recognize two keyfactors: the extent offield work which
was conducted during Stage I and the amount proposed to be conducted during Stage
2, orpotentially conducted (Le., number of borings and/or monitoring wells). In order
to prepare a plan to conduct the second stage of the investigation, the plan should
67
include the results of the Stage I investigation. The extensiveness of the Stage 1
investigation will determine the cost of the preparation of the Stage 2 investigation
plan.
The extent offield work conducted in Stage I (i.e., number of borings and/or
monitoring wells) was dictated by the number of USTs that were located at the site, the
number of tank beds which housedthe USTs and the number ofsamples collected
during early action (from UST excavations andfrom along product lines). Therefore,
the costs to prepare boring logs, Well Completion Reports, review/assess analytical
results and assemble and summarize the results in a report to the Agency will correlate
directly to the amount of work conducted and proposed to be conducted. For example,
it will require more personnel hours to preparefifteen boring logs than it to preparE
four borings logs, etc.
As site-specific variables have not been evaluated or included in the Agency’sproposed
report rate and because there is no justification for the Agency’sproposed rate, Section
734.845(b)(3) should be stricken and reasonable costs should be determined on a time
and material basis by the professional overseeing the work and the Agency should rely
on costs provided by and certified by Licensed Professional Engineers and Geologists
who are regulated by the Department of Professional Regulations.
4)
Payment for costs associated with Stage 2 field work and field
oversight shall not exceed $500.00 per half-day. The number of
half-days shall not exceed the following.
A)
One half-day for every four soil borings, or fraction
thereof, drilled as part ofthe Stage 2 site investigation but
not used for the installation ofmonitoring wells. Borings
in which monitoring wells are installed shall be included in
subsection (b)(3)(B) of this Section instead ofthis
subsection (b)(3)(A); and
B)
One half-day for each monitoring well installed as part of
the Stage 2 site investigation
The Agency’s attempt to simplf/y and quantjy a lump sum rate for Stage 2
investigation activities fails to recognize three keyfactors: the extent offield work to be
conducted, or potentially conducted, in Stage 2 (Le., number of borings and/or
monitoring wells), and the distance to the sitefor the professional. If monitoring wells
are installed, a minimum of two trips Ic required. Thefirst trip includes the drilling
and well installation. During thefirst trip, the well(s) will be developed, f/production
occurs during the timeframe personnel are on site. The second trip is needed to
measure the static depth to groundwater, conduct a slug test, purge and sample the
well(s) and survey the surface elevation of each well. If the well(s) do notproduce
68
during the day of drilling, a third trip may be required to develop the wells prior to
conducting sampling and slug testing activities as development must occur prior to well
sampling and slug testing and development cannot occur on the same day as slug
testing because it can result in inaccuratefield data. Both primary trips require two
professional staffbe on site to conduct the work properly and in accordance with
OSHA requirements (29 CFR Part 1910).
The cost per boring or well Ic less when there are numerous wells or borings and
higher when there are only one or afrw. The smaller number of borings or wells to be
drilled loses the economy of scale battle. The oversight time, especially when
significant travel time Ic required, along with field equipment andsupplies, is
signjficantly higherper unit, as there arefewer unitsfor which to spread out the costs.
Thesefactors have not been accounted for in the lump sum half-day rate scheme
proposed by the Agency.
If the professionals are required to travel a significant distance to reach the site,
additional time will be spent traveling and mobilizing to the site and may even require
an overnight stay, depending on the extent of work to be completed. Travel expenses
themselves will be higher. CW3Mhas several sites in the Cairo, Illinois area. Travel to
these sites is four hours one way. To conduct work at a site, assuming a workload that
would require eight hours, a sixteen-hour day would be necessary to complete thefirst
visit of the Stage 2 investigation.
As site-spec(ftc variables have not been evaluated or included in the Agency’sproposed
report rate and because there Ic no justification for the Agency’s proposed rate, Section
734.845(b)(4)(A) 734.845(b)(4)(B) and should be stricken and reasonable costs should
be determined on a time and material basis by the professional overseeing the work and
the Agency should rely on costs provided by and certified by Licensed Professional
Engineers and Geologists who are regulated by the Department of Professional
Regulations.
5)
Payment for costs associated with the preparation and submission
of Stage 3 site investigation plans shall not exceed a total of
$3,200.00
The Agency’s attempt to simpljfy and quant(fy a lump sum ratefor Stage 3
investigation plansfails to recognize three keyfactors: the extent offield work which
was conducted during Stage 2, the amount proposed to be conducted during Stage 3, or
potentially conducted (Le., number of borings and/or monitoring wells) and the extent
or number ofpotentially affected off-siteproperties. In order to prepare a plan to
conduct the third stage ofthe investigation, the plan should include the results of the
Stage 2 investigation. The extensiveness ofthe Stage 2 investigation will determine the
cost of the preparation of the Stage 3 investigation plan.
69
The extent offield work conducted in Stages 2 and 3 (i.e., number of borings and/or
monitoring wells) was dictatedby thefindings of Stage 1 and 2, respectively.
Therefore, the costs to prepare boring logs, Well Completion Reports, review/assess
analytical results and assemble and summarize the results in a report to the Agency
will correlate directly to the amount of work conducted and proposed to be conducted.
For example, it will require more personnel hours to preparefifteen boring logs than it
to preparefour borings logs, etc.
Thefactors, which affrct the cost of conducting additional off-site investigations,
include the number ofpotentially affectedproperties, the number of owners ofsuch
properties, the number of requests, which will be required to secure access or a denial
ofaccess, and the amount oftime spent negotiating access and access agreements.
Additional off-site investigations would be required f/the results ofthefirst round of
off-site investigations did not define the extent ofcontamination and additional drilling
would be necessary to define the plume off-site. The current use of the property may
prompt owners to request special considerations as conditions of access.
As site-specific variables have not been evaluated or included in the Agency’sproposed
report rate and because there is no justificationfor the Agency’s proposed rate, Section
73 4.845(b)(5) should be stricken and reasonable costs should be determinedon a time
and material basis by the professional overseeing the work and the Agency should rely
on costs provided by and certifiedby Licensed Professional Engineers and Geologists
who are regulated by the Department ofProfessional Regulations.
6)
Payment for costs associated with Stage 3 field work and field
oversight shall no exceed $500.00 per half-day. The number of
half-days shall not exceed the following:
A)
One half-day for every four soil borings, or fraction
thereof, drilled as part of the Stage 3 investigation but not
used for the installation ofmonitoring wells. Borings in
which monitoring wells are installed shall be included in
subsection (b)(6)(B) of this Section instead of this
subsection (b)(6)(A); and
B)
One half-day for each monitoring well installed as part of
the Stage 3 site investigation.
The Agency’s attempt to simpl4fy and quantf/y a lump sum ratefor Stage 3
investigation activitiesfails to recognize three keyfactors: the extent offield work to be
conducted, or potentially conducted, in Stage 3 (i.e., number of borings and/or
monitoring wells) the extent or number ofpotentially affected off-site properties, and
the distance to the sitefor the professionaL If monitoring wells are installed, a
minimum of two trips Ic required. Thefirst trip includes the drilling and well
installation. During thefirst trip, the well(s) will be developed, f/production occurs
70
during the timeframe personnel are on site. The second trip is neededto measure the
static depth to groundwater, conduct a slug test, purge and sample the well(s) and
survey the surface elevation of each well. If the well(s) do not produce during the day
of drilling, a third trip may be required to develop the wells prior to conducting
sampling and slug testing activities as development must occur prior to well sampling
and slug testing and development cannot occur on the same day as slug testing because
it can result in accuratefield data. The amount of time necessary to conductpumping
or slug tests is highly variable and totally dependent on the hydraulic conductivity of
the unit(s) being tested. Given the costs constraints proposed by the Agency, the
professional cannot accurately conduct the test and be providedfull compensation.
Both primary trips require two professional staffbe on site to conduct the work
properly and in accordance with OSHA requirements (29 CFR Part 1910).
The cost per boring or well is less when there are numerous wells or borings and
higher when there are only one or afew. The smaller number ofborings or wells to be
drilled loses the economy of scale battle. The oversight time, especially when
significant travel time is require, along with field equipmentand supplies, is
significantly higher per unit, as there arefewer unitsfor which to spread out the costs.
Thesefactors have not been accountedfor in the lump sum half-day rate scheme
proposed by the Agency.
Thefactors, which affect the cost ofpreparingfor and conducting off-site
investigations, include the number ofpotentially affectedproperties and the number of
owners ofsuch properties. The current use of theproperty mayprompt owners to
request special considerations as conditions of access. The professional will be
required to make arrangements f/advance with the off-site property owners and
potentially alternate drilling dates or times to accommodate the use of the property so
as to minimize disruption to use of the property.
If the professionals are required to travel a significant distance to reach the site,
additional time will be spent traveling and mobilizing to the site and may even require
an overnight stay, dependingon the extent of work to be completed. Travel expenses
themselves will be higher. CW3M has severalsites in the Cairo, Illinois area. Travel to
these sites isfour hours one way. To conduct work at a site, assuming a workload that
would require eight hours, a sixteen-hour day would be necessary to complete thefirst
visit of the Stage 3 investigation.
As site-specific variables have not been evaluated or included in the Agency’sproposed
report rate and because there is no just(ficationfor the Agency’sproposed rate, Section
734.845(b)(6)(A) and 734.845(b)(6)(B) should be stricken and reasonable costs should
be determined on a time and material basis by the professional overseeing the work and
the Agency should rely on costs provided by and certified by Licensed Professional
Engineers and Geologists who are regulated by the Department of Professional
Regulations.
71
7)
Payment for costs associated with the preparation and submission
of investigation completion reports shall not exceed a total of
$1,600.00.
The Agency’s arbitrary proposed cost for preparation and submission of investigation
completion reports lacks accountabilityfor site-specific variables, which dictate the
amount of time necessary to conduct this task. As mentioned above with regards to
costs associated with plan development, the amount of or extent ofinvestigation work
conducted will drive the costs to prepare completion reports. The amount of analytical
data that must be evaluated and reported, the number of boring logs and Well
Completion Reports, the amount of drafting to illustrate boring and monitoring well
locations, etc. are all components of the site investigation completion report and will be
variablefrom site to site.
Once aspect ofthe site investigation process that the Agencyfailed to acknowledge is
providing reports to off-site property owners f/off-site investigations are conducted.
Each property owner is entitled to a detailedreport documenting thefindings. CW1M
has conducted off-site investigations that have included numerous properties, up to
eight or ten. To evaluate and report a significant amount of data and include reports
to property owners, can drastically affrct the costs.
For these reasons and because there Is nojustification for the Agency’sproposed rate,
Section 734.845(b)(7) should be stricken and reasonable costs should be determined on
a time and material basis by the professional overseeing the work and the Agency
should rely on costs provided by and certifiedby LicensedProfessional Engineers and
Geologists who are regulated by the Department of Professional Regulations
732 & 734
e)
Corrective Action. Payment of costs for professional consulting services
associated with corrective action conducted pursuant to Subpart C ofthis
Part shall not exceed the following amounts:
I)
For conventional technology, payment for costs associated with the
preparation and submission of corrective action plans shall not
exceed a total of $5,120.00. For alternative technologies, payment
for costs shall be determined on a time and materials basis and
shall not exceed the amounts set forth in Section 734.850 ofthis
Part.
Development of corrective action plans for conventional technologies sounds
simplistic, however, site variables and complexities can affect the amount of time
necessary to develop a plan suitable to a site. If contamination at a site is contained
and is minimal, developing a plan can be fairly simple. However, f/contamination is
widespread, contamination or indicator parameters are heterogeneous, off-site
properties have been impacted, specific migratory pathways have complicated the
72
spread of contamination, etc. and development of corrective action plans may be more
design and labor-intensive. Prior to developing the corrective action plan, the
professional shall be required to evaluate the site against the available remediation
methods while taking into account the current andfuture uses of the property and
selecting the most feasible option that is compatible with the owner’s or operator’s
plansfor thefacility. If off-site contamination is present, the professional will be
required to make the same evaluationfor each affected off-site property. Based upon
theproperty owner’s wishes or demands, the types of selected remediation may varyfor
each property.
C!ØM has considerable experience developing corrective action plans. Another factor
that drives costs for plan development is the Agency’sproject manager assigned to the
site. When project managers inflect their own personal wishes or their own “rules”
onto a project, the consultant can experience considerable additional costs to develop
plans. CJ?Mrecently experiencedsuch a situation. Long after the project manager
had approved the site investigation and deemedthe plume defined, he rejecteda
corrective action plan and required additional investigation. In this type of scenario,
the only alternatives are to appeal the denial or conduct the work, write anotherp/an
and not be compensatedfor the work. With an arbitrary lump sum maximum rate for
corrective action plan development, the IEPAproject manager cannot even authorize
additionalfunds when theyfeel it isjustified and the expenses were incurred at their
direction or because of their own errors.
Section 732.845 also completely ignored the costs to conduct a site investigation to
determine the extent of contamination for a high priority site, similar to the costs
proposedfor 734 sites. Common practice has been to complete the investigation
following the classification of the site, including the off-site investigation, f/needed,
and include all costs associated with the investigation and site assessment report(s)
within the budget for the corrective action plan. Under the proposed changes to 732,
this entire step in the process has been omitted. During the March 15, 2004 hearing,
questions were raised regarding this issue. Mr. Doug Clay suggested opting in to 734
at thisjuncture. However, the owner or operator should be afforded the opportunity to
continue under 732 f/they so choose and should be afforded the proper regulatory
provisions to do so; f/not why amend 732 at alL
The Agency’s proposed maximum rate does not allowfor variations in the level of work
required to prepare a plan that addressees all of the potential site-specific
requirements. For these reasons and because there is nojustificationfor the Agency’s
proposed rate, Section 734.845(c) should be stricken and reasonable costs should be
determinedon a time and materials basis by the professional overseeing the work and
the Agency should rely on costs providedby and certified by Licensed Profrssional
Engineers and Geologists who are regulatedby the Department of Professional
Regulations
73
2)
Payment for costs associated with corrective action field work and
field oversight shall not exceed the following amounts:
A)
For conventional technology, a total
of $500.00
per half-
day, not to exceed one half-day for each 250 cubic yards,
or fraction thereof, ofsoil removed and disposed.
The Agency’s proposed maximum ratefor the excavation and disposal volume of 250
cubicyards also shows a lack of understandingfor site variables and the oversight
necessary to ensure the work proceeds in accordance with all regulations, the approved
corrective action plan, and to ensuresamples are collectedfrom required locations and
handledproperly. The professional on site also is required to make immediatefield
decisionsfor circumstances which arise that don ‘t conform to the norm or when
certain regulatory requirements cannot be met For example, a site with an extremely
high water table mayflood the excavation once the water table is accessed. Once
flooded or f/afloor is too saturatedfor proper sampling, the professional will assess
the situation and make sure all necessary documentation is collected to present to the
Agency to demonstrate the site-specific conditions which prevented the sampling. The
professional may develop afieldplan for handling or removal of recovered
groundwater. For this and other reasons, CWM contends that a professional must be
on site at all times when work is in progress.
The Agency
~c
proposed ratefor oversight does not take into account the size of the
excavation. An economy ofscalefactorfor on-site equipment (such as site safety,
barricades,fencing, etc.) cannot be benefitedfromfor a small excavation. The
equipment is required to safelyperform the work, however, there has been no
allowancefor it at the site.
The professional will be required to make arrangements, contact various licensed
disposal facilities, trucking companies, materials suppliers, complete disposal
applicationsfor disposal authorization, and potentially pre-sample the materials to be
disposed offor waste characterization analysis. The professional will be required to
travelto andfrom the site to oversee the work. For a remote site, the professional is
not even affordedsufficient time to drive to the site, much less perform their required
work
With regards to the allowance of one half-day oversightfor 250 cubicyards ofsoil
removal, the Agency has not taken into accountsite-specificfactors, which dictate the
amount of soil that can reasonably removed in a day.
The discovery deposition ofBrian P. Bauer on December 3, 2003 illustrates that the
Agency developed its rate for excavation, transportation and disposal without taking
into accountsite-specificfactors such as the distance between a she and a landfill or
complex excavations. (CW3M v. lEFt Bauer Deposition, p. 44, December 2003) As
discussed above, the time it takesfor trucks to go to andfrom the landfillcan impact
74
the time it takes to excavate a tank and surrounding material, which impacts how long
the professional must be onsite.
Site-specific conditions or complexities should also be accommodatedfor when
evaluating reasonable rates for excavation, transportation and disposal. Soil
conditions and excavation wall stability can affect the efficiency of an excavation.
Should soilproperties be present which create wall collapse, sloughing or unsafe
conditions, measures must be employed to protectpersonnel, equipment and
surrounding structures. These efforts can disrupt an excavation or at a minimum,
increase the costs associated with the excavation by requiring benching, sloping or
retaining walls. A trainedprofessional is required to assess these types ofsituations
and developfield implementation plans to remedy the problem and safely complete the
corrective action work. The Agency hasfailed to accountfor these types offield
conditions.
The rates have not been adjusted in nineyears to accountfor inflation. (CW3M
Company, Inc. v. Illinois Environmental Protection Agency, Bauer Deposition, 39:3,
December 2003) Not only has the Agencyfailed to accountfor site-specificfactors,
they havefailed to adjust their rate (exceptfor landfill disposalfees) in nineyears.
There has been no allowancefor inflation, personnel cost increases and raises, higher
fuel costs (which dramatically affect trucking and equipment rates), higher
vehicle/truck and equipmentpurchase and repair costs, higher insurance costs
(particularly fob wing 9/11/01), higher license and operating/permitfees imposed by
the State, etc.
If recovery trenches are excavated, the only methodfor billing is the cubicyard rate
proposed by the Agency 734.825(a). However, excavation, transportation and disposal
are only ancillary factors in trench excavations. Because excavation, transportation
and disposal are components of the trench installation, it is unclear whether or not
trench installation/recovery system installation is considereda conventional or
alternative technology. Recent conversations and decisions by the Agency indicate they
view the costs to excavate and install a recovery trench should be the same as
conventional costs to conduct excavation and disposal activities. Given the current
regulations and corrective action plan developmentprocedures, trench or recovery
system installation is not an alternative technology. Section 734.815 requires that the
costs associated with free product or groundwater “systems” be submittedfor approval
on a time and materials basis, however, the installation of the recovery system, not the
treatment “system
“,
is not addressed and is left out The recoverytrench Is a more
carefully controlled excavation, which is measured to more precise dimensions and
walls controlledfor installation oflarge-diameter recovery sumps. Sloughing and wall
cave-ins are carefully controlled, often with trench boxes, for safety as well as to
control the type of backfill materialsurrounding the sumps, which is typically septic
gravel (2” washed rock or higher). The recovery sumps must be installed level, which
required control ofthefloor’s surface. Thefloor surface and sumps are surveyed
during construction to ensure grade and slopefor recovery. These steps are typically
not necessary f/soil is being excavatedfor strictly disposal. If recovery systems are
75
installed, recovery transfer lines and discharge lines are usually installedfollowing the
excavation, but prior to final fill and grade workfor restoration to avoidmultiple
disruptions and movement of materials. Personnel oversightfor this type of work
clearly cannot be included in the 250 cubic yardper day rate.
Theproposed rate apparently includes mileage, transportation and costs associated
with overnight stays and has not made accommodationsfor these cost either.
Over the past 14 years, CW~Mhas conducted work experiencingsome or all of the
factors listed above. The ratesfor oversight have been acceptable using time and
materials formats or by providing the Agency with the site-specific factors, which
affrcted the total costs.
The Agency’s proposed maximumfield oversight rate does not allow the professional to
adequately or responsibly oversee the work required to meet the specifications required
in the corrective action plan. The proposed rate does not address any potential site-
specific requirements, including the details of the corrective action plan or the site’s
location. For these reasons and because there is nojustification for the Agency’s
proposed rate, Section 734.845(c) (2)(A) should be stricken and reasonable costs should
be determined on a time and materials basis by the professional overseeing the work
and relying on costs providedby and certified by LicensedProfessional Engineers and
Geologists who are regulated by the Department ofProfessional Regulations
732
3)
Payment for costs associated with the development of remediation
objectives other than Tier I remediation objectives pursuant to 35
Ill. Adm. Code 742 shall not exceed a total of $800.00.
The proposed rate does not address any potential site-specific requirements and the
Agency also did not allowfor costs offield activities associated with data collection
neededfor development of alternative remediation objectives. For these reasons,
Section 732.845(3) should be stricken and reasonable costs should be determined on a
time and materials basis by the professional overseeing the work and relying on costs
provided by and certified by Licensed Professional Engineers and Geologists who are
regulated by the Department of Professional Regulations.
732 & 734
3)
Payment for costs associated with Environmental Land Use
Controls and highway Authority Agreements used as institutional
controls pursuant to 35111. Adm. Code 742 shall not exceed
$800.00 per Environmental Land Use Control or Highway
Authority Agreement.
The costs incurred to develop and secure Highway Authority Agreements with the
Illinois Department of Transportation are relatively low andpredictable as the process
is defined and requires little negotiation or modifications. However, securing Highway
76
Authority Agreements with other entities, such as villages, cities, or counties is less
predictable, particularly when the entity has no prior experience entering into such an
agreement Considerably more time is spent explaining the process and negotiating the
Agreement to the satisfaction of both parties. Development of Environmental Land
Use Controls is even more unpredictable as the agreements are often with private
property owners or individuals with no knowledge ofthe process or the legal
requirements.
The Agency’sproposed maximum rate does not allow theprofessional to adequately or
responsiblyprepare the documents and conduct the work required to meet the
specifications requiredfor each type ofagreement The proposed rate does not address
any potential site-specific requirements and there is nojustification for the Agency’s
proposed rate. For these reasons, Section 734.845(3) should be stricken and
reasonable costs should be determined on a time and materials basis by the
professional overseeing the work and relying on costs provided by and certified by
Lkensed Professional Engineers and Geologists who are regulated by the Department
of Professional Regulations.
f)
Development of Tier 2 or Tier 3 Remediation Objectives. Payment of
costs for professional consulting services associated with the development
of Tier 2 or Tier
3
remediation objectives in accordance with
35
Ill. Adm.
Code 742 shall not exceed the following amounts
1)
Payment for costs associated with field work and field oversight
forthe development of reinediation objectives shall not exceed
$500.00 per half-day. The number of half-days shall not exceed
the following:
A)
One half-day for every four soil borings, or fraction
thereof, drilled solely for the purpose ofdeveloping
remediation objectives. Borings in which monitoring
wells are installed shall be included in subsection
(d)(l)(B) ofthis Section instead of this subsection
(d)(l)(A); and
B)
One half-day for each monitoring well, installed solely
for the purpose of developing remediation objectives.
As with the maximum lump sum costs proposed by the Agency in Section 734.845 (b),
the Agency’s attempt to simpljfy rate structurefor drilling and sampling activitiesfails
to recognize keyfactors: the extent offield work to be conducted (i.e., number of
borings and/or monitoring wells) and the distance to the sitefor the professional. If
monitoring wells are installed, a minimum of two trips is required. Thefirst trip
includes the drilling and well installation. During the first trip, the well(s) will be
77
developed, 4fproduction occurs during the timeframe personnel are on site. The
second trip is needed to measure the static depth to groundwater and to conduct a slug
test or a pump test If the well(s) do not produce during the day of drilling, a third trip
may be required to develop the wells prior to conducting hydraulic conductivity testing
activities as development must occur prior to testing and development cannot occur on
the same day as testing because it can result in accuratefield data. The amount of time
necessary to conductpumping or slug tests is highly variable and totally dependent on
the hydraulic conductivity of the unit(s) being tested. Given the costs constraints
proposed by the Agency, the professional cannot accurately conduct the test and be
providedfull compensation. Both primary trips require two professional staffbe on
site to conductthe work properly and in accordance with OSHA requirements (29 CFR
Part 1910).
The cost per boring or well is less when there are numerous wells or borings and
higher when there are only one or afew. The smaller number of borings or wells to be
drilled loses the economy of scale battle. The oversight time, especially when
sign jficant traveltime is required, along with field equipment and supplies, is
significantly higher per unit, as there arefewer unitsfor which to spread out the costs.
Thesefactors have not been accountedfor in the lump sum half-day rate scheme
proposed by the Agency.
If the professionals are required to travel a significant distance to reach the site,
additional time will be spent traveling and mobilizing to the site and may even require
an overnight stay, depending on the extent of work to be completed. Travel expenses
themselves will be higher. CW3M has several sites in the Cairo, Illinois area. Travel to
these sites isfour hours one way. To conduct work at a site, assuming a workload that
would require eight hours, a sixteen-hour day would be necessary to complete thefirst
visit
As site-specific variables have not been evaluated or included in the Agency’sproposed
report rate and because there is no justificationfor the Agency’sproposed rate, Section
734.845(d) should be stricken and reasonable costs should be determined on a time and
material basis by the profrssional overseeing the work and rely on costs provided by
and certified by Licensed Professional Engineers and Geologists who are regulated by
the Department of ProfessionalRegulations.
2)
Excluding costs set forth in subsection (d)(l) of this Section,
payment for costs associated with the development of Tier 2 or
Tier 3 remediation objectives shall not exceed a total of $800.00.
Theproposed rate does not address any potential site-specific requirements and there is
nojustjfication for the Agency’sproposed rate. For these reasons, Section 734.845(3)
should be stricken and reasonable costs should be determined on a time and materials
basis by the professional overseeing the work and rely on costs provided by and
78
certified by Licensed Professional Engineers and Geologists who are regulated by the
Department ofProfessional Regulations.
4) 53
Payment for costs associated with the preparation and submission
of corrective action completion reports shall not exceed a total of
$5,120.00.
It is assumed that the Agency’sMarch 5, 2004 pre-filed testimony, changes were made
to Section 734.845(c); in doing so, the previously included 734.845(c) (5) was omitted in
the revised 734.845(c).
As with the site-specj/ic costs associated with corrective action plan developmentfor
either a conventional or an alternative technology, the costs to develop the corrective
action completion report can also be highly variable. When developing a corrective
action completion report, the extent and type ofthe corrective action will dictate the
level of reporting necessaryfor the corrective action completion report. The sampling
requirements ofthe completed corrective will also affect the amount of time and level
of reporting for the completion report Alternative technologies often involve
significantly more soil and/or groundwater sampling, thus increasing the time and
effort ofpreparing the data within the completion report If off-site remediation is
conducted, additional reporting and supporting or backup documentation may be
required.
Theproposed rate does not address any potential site-specific requirements and there is
nojustification for the Agency’sproposed rate. The Agency provided no basis as to
how they developed this rate. For these reasons, Section 734.845(4) should be stricken
and reasonable costs should be determined on a time and materials basis by the
professional overseeing the work and relying on costs provided by and certifiedby
Licensed Professional Engineers and Geologists who are regulated by the Department
of Professional Regulations.
732.850 & 734.850
Payment on Time and Materials
This Section sets forth the maximum amounts that may be paid when payment is allowed
on a time and material basis.
a)
Payment for costs associated with activities that have a maximum payment
amount set forth in other sections ofthis Subpart F! (e.g. sample handling
and analysis, drilling, well installation and abandonment, drum disposal,
or consulting fees for plans, field work, field oversight, and reports) shall
not exceed the amounts set forth in those Sections, unless payment is
made pursuant to Section 734.855 of this Part.
79
c)
Maximum payments amounts for costs associated with activities that do
not have a maximum payment amount set forth in other sections ofthis
Subpart H shall be determined by the Agency on a site-specific basis,
provided, however, that personnel costs shall not exceed the amounts set
forth in Section 734.Appendix B of this Part. Personnel costs shall be
based upon the work being performed, regardless ofthe title ofthe person
performing the work. Owners and Operators seeking payment shall
demonstrate to the Agency that the amounts sought are reasonable.
BOARD NOTE: Alternative technology costs in excess ofthe costs ofconventional
technology are ineligible forpayment from the Fund. See Sections 734.340(b) and
734.630(z) ofthis Part.
CW3M contends that the professional, either a Licensed Professional Engin eer or a
Licensed Professional Geologist is best suited to make a determinationfor the
personnel necessary to perform any given task under th-is Part. Dependent upon site-
specWc issues, the level of experience or knowledge should dictate which personnel
conduct certain tasks.
Nowhere in Section 734, does the Agency attempt to define whatpersonnel should
conduct what type of work. CW3Magrees that ih eAgency should not specifically
define these roles. The professional conducting the work should assign tasks based
upon knowledge, experience, training and education.
Further, limiting consultants by predetermining the types of tasks appropriatefor each
personnel title is highly discriminatory to smaller consultingfirms. If the Licensed
Profrssional Engineer or Geologist is limited to conducting only very limited activities
and afirin isforced to hire otherpersonnel to make the categories match the Agency’s,
they areforced to incur overhead expenses which cannot be used to generate revenue
(paying licensed professionals full salary when onlysmall portions of thefr time can be
billable). Limiting theprofessional’s role in corrective action activities also places the
entireprogram’s integrity at risk. The Agency’sproposed average rates andpersonnel
limitations will leadtoforcing consultants to utilize unqualified or lower paid
personnel to conduct the work with no oversight or assistance.
With regards to the Board Note, the new limitations on the costsfor conventional
technologies will not match real world costs. IEPA is attempting to lower conventional
technology costs below market conditions and as a result, it becomes more unlikely that
alternative technologies can be tested and implemented at or below the costs of
conventional technologies. Such actions couldlead to the demise of alternative
technologies. Proven technologies may not be able to be utilized and emerging
technologies will be halted because theirfield demonstrations cannot be approved with
the resource limitations. It should also bepointed out that no conventionaltechnology
i~includedfor groundwater reinediation.
80
732.855 & 734.855
Unusual or Extraordinary Expenses
Ifan owner or operator incurs unusual or extraordinary expenses that cause costs eligible
forpayment to substantially exceed the amounts set forth in this Subpart H, the Agency
may determine maximum payment amounts for the expenses on a site-specific basis.
Owners and operators seeking payment for unusual or extraordinary expenses shall
demonstrate to the Agency that such expenses are unavoidable, reasonable, and necessary
in order to satisfy the requirements ofthis Part.
Given the Agency’s methodsfor determining reasonableness and maximum payment
amounts, there is little doubt that owners and operators who incur costs higher than
the maximum amounts will utilize Section 734.855frequently. At the close of the
March 15, 2004 hearing, discussions regarding the provision began. Board Member
Girard asked ~the landfill was located 200 milesfrom the LUST site, would the higher
costsfor excavation and disposal be consideredan unusual or extraordinary. CW3M
had similar questions. Previous discussions with the Agency indicated that their
proposed maximum rate of $57/cubic yard did notfactor distance to landfill or to the
consultant. (CW3Mv. IEPA, Bauer Deposition, p. 44, December 2003) When
responding, Doug Clay indicated that the Agency had basedthe $57/cubic yard on
some distance but no Agency personnelpresent had any idea what that number was.
CW3Mobtained a copy,from the Illinois Department of Transportation website, ofthe
awarded bid tabsfor everyproject in 2003 which contained bid itemsfor environmental
work, such as excavation and disposal. These awards were completedfollowing
competitive bidding. A summary of the information is included in Appendix .1. The
awarded average ratefor excavation and disposal, per cubicyard, was $99. 75, and the
standard deviation was more than the average, which indicates that the cost is highly
variablefrom site to site. It should also be pointed out that all available information
was used, 36 entries in all, while the Agency only used25 selectedfrom sometime
during thepast three orfour years.
Without knowing what distance the Agency will develop to match its maximum rate
and how the total costs wereprepared utilizing the distance, it is difficult tofurther
assess anyproposed limit is reasonable. CW?M contends that establishing a maximum
rate that automatically limits sitesfrom conducting conventionalsoil remediation is
highly discriminatory and that many sites will need to utilize the provisions ofSection
734.855. While set rates may, atface value, appearto benefit tank owners and
operators and reduce demands on the Agency and the Board, discriminatory rate
setting may ultimately leadto even more appeals ofthe provisions of 734.
Sites that are remote and located long distancesfrom their proftssional consultant and
other services (drilling, laboratory, liquid disposal, etc.) will also experience higher
costs or costs that exceed the Agency’sproposed maximum rates, particularly
personnel who are required to travel. There is no allowancefor greater traveltimes in
this Part.
~
81
Sites dealing with emergency operations will also likely incur costs that exceed the
proposed maximum rates. On-site personnel requirements will be higher as 1 person
may be insufficient Following the Agency’s Emergency Operations lead, at least two
technically competentpersons should be on-site during emergency operations and
work in a “buddy system
“.
Not only is this an OSHA safety requirement, site
conditions may require multiple activities to assess and mitigate the cause ofthe
emergency.
Given the Agency’spast responsiveness to allowingfor higher costs associated with
unusual or extraordinary circumstances, it is highly unlikely the Agency will ever
allow such costs, regardless of thejustification provided. Mr. Harry Chappel indicated
that he was unaware ofany circumstancefor which an owner or operator was provided
higher rates or additional bu4et amountsfor unusual circumstances even when
justification is provided. (C!’VM v. IEPAJ Chappel Deposition,p. 40, December 2003)
Mr. Clay stated on page 281 of the March 15, 2004 hearing transcript that hefelt the
large majority of the sites wouldfall within the proposed rates. However, when only
averages were used to set the rates, it is already a given that 49 of the sites cannotfall
at or below the proposed rates. Further, he indicated that the Agency would deny most
claims of “extraordinary circumstances”, which suggests that a large number of
decisions would be appealedto the Board.
732.865 & 734.865
Increase in Maximum Payment Amounts
The maximum payment amounts set forth in this Subpart H shall be adjusted annually by
an inflation factor determined by the annual Implicit Price Deflator for Gross National
Product as published by the U.S. Department of Commerce in its Survey ofCurrent
Business.
a)
The inflation factor shall be calculated each year by dividing the latest
published annual Implicit Price Deflator for Gross National Product by the
annual Implicit Price Deflator for Gross National Product for the previous
year. The inflation factor shall be rounded to the nearest 1/lOO°~.In no
case shall the inflation factor be more than five percent in a single year.
Given the Agency ‘c proposed met4od of determining an annual inflation value, there
should be no limit to percentage increase each year; it is what is. If inflation rises
more than 5, owners and operators will experience increases in corrective action
costs comparable to the inflation factor. For any year where inflation is greater than
5, the rates will never reflect the amount over 5.
b)
Adjusted maximum payment amounts shall become effective on July 1 of
each year and shall remain in effect through June 30 of the following year.
The first adjustment shall be made on July 1, 2006, by multiplying the
82
maximum payment amounts set forth in this Subpart H by the applicable
inflation factor. Subsequent adjustments shall be made by multiplying the
latest adjusted maximum payment amounts by the latest inflation factor.
As the proposed rates are already lower than the Agency has historically deemed
reasonable and because the proposed rates were developed over one year ago and were
based by rates that where then one to four years old already, the inflation factor should
be applied to the proposed maximum rates now and again one year or at the start ofthe
next Statefiscal year after adoption. There is no reason to wait over two years to add
an inflation factor when the proposed rates are already significantly lower than those
previously being paid.
SUBPART H: MAXIMUM PAYMENT AMOUNTS
In conclusion of comments regarding Subpart H, CW~Mrecommends thefollowing
course of actionfor establishing a rate structurefor the Agency to utilize to make
reasonableness determinations. As was apparent during the March 15, 2004 hearing,
consultants representing UST owners and operators expressed great concern regarding
the Agency’s proposed rate structure. It is our opinion that jfprocedures for rate
setting could be addressed in a manner consistent with proper statistical analysis and
practicality, the Agency could achieve concurrence with the regulatedcommunity.
o
The Board should proceed with rulemakingproceedingsfor Part 734
without Subpart H or any reference to maximum rates.
o
Redevelop Subpart Hfor a later rulemaking procedure. The replaced
Subpart H should include:
Detailedproceduresfor the submittal of data in theform ofbudgets and
payment requests. Allow the Agency a means ofcollecting data in aformat
that is comparable and can be properly analyzed.
Detailed proceduresfor selecting the data to be evaluated. Selected data
should not be limited to data from only budgets that IEPA has approved or
approved as modified. The data should include thefull range of costs as
submitted.
Detailedproceduresfor statistical analysis of the data sets, such as the
selection and evaluation criteria utilized in SW 846.
Detailed proceduresfor publishing the data.
Detailedproceduresfor use of the data as guidance. Thisshould include a
processfor evaluation of site-specificfactors which may dictate costs that
exceed the guidance rates.
83
Developed rates should be detailed unit costs or individual task amounts
rather than lump sum rates which include multiple tasks.
0
The rates should be published guidance rates and should not be adoptedas
rule, thereby allowing the Agency to periodically and easily update the rates
for inflation and as new data is generated and analyzed. The rates, utilized
as guidance would also be readily adaptablefor unusual and extraordinary
circumstances. A mechanismfor inflationary increases can also easily be
applied to the published guidance. This recommendation also reduces the
frequency on which the Board has to act on rate modifications.
o
During this interim, the Agency should utilize the most current version RS
Meansfor unit cost rate guidance. This will provide the Agency a means of
determining reasonableness during the process of collecting, analyzing and
publishing data until legitimate rates can be determined.
732 & 734.Appendix E Personnel Titles and Rates
CWM requests that the Agency provide the back-up or input data used to develop the
rates so that the inputs and statistical analysis can be evaluatedfor accuracy.
84
REFERENCES
CW3M Company, Inc. v. Illinois Environmental Protection Agency. Docket No. 03-MR-0032, Circuit
Court of Sangamon County, Illinois,
Discovery Deposition ofHarry Chappel,
December 4,2003.
Illinois Ayers Oil Company v. Illinois Environmental Protection Agency, PCB No. 03-214. Illinois
Pollution Control Board, April 1,2004.
Riverview FS, Inc. v. Illinois Environmental Protection Agency, PCB No. 97-226. Illinois Pollution
Control Board, May 3,2001.
City ofRoodhouse v. Illinois Environmental Protection Agency, PCB No. 92-3 1, Illinois Pollution
Control Board, September 17, 1992.
In the Matter of: Proposed Amendments to Regulations of Petroleum Leaking underground Storage Tanks
35 III. Adm. Code 732 and Ill. Adm, Code 734 (Consolidated), R04-22 and R04-23, Illinois Pollution
Control Board, Testimony in Support of The Environmental Protection Agency’s Proposal to Amend 35
Ill. Adm. Code 732, March 5,2004.
In the Matter of: Proposed Amendments to Regulations of Petroleum Leaking underground Storage Tanks
35 Ill. Adm. Code 732 and Ill, Adm. Code 734 (Consolidated), R04-22 and R04-23, Illinois Pollution
Control Board, Hearing Transcripts, March 15, 2004.
IEPA, 1994. Illinois Environmental Protection Agency & Illinois Department of Commerce and
Community Affairs,
How to Select an Environmental Consultant,
November, 1994.
CW3M Company, Inc. v. Illinois Environmental Protection Agency. Docket No. 03-MR-0o32, Circuit
Court of Sangamon County, Illinois,
Discovery Deposition ofBrian P. Bauer,
December 3,2003
IEPA, 2004. Illinois Environmental Protection Agency,
JEPA Joins “Team Illinois’ KickoffEfforts.
Internet: http://www.epa.state.il.us/director/highlights/team-illinois.html.
Peck, 1974. Ralph Peck, Walter Hanson, and Thomas Thornburn,
Foundation Engineering. Second
Edition,
John Wiley & Sons, Inc., 1974
Allied, 2004. Rose Wagehoft,
Allied Waste Company, Brickyard Disposal & Recycling,
Telephone
Conversation with Debra J. Eggleston,
CW’M Company,
March 5,2004.
Smoot 99-2755. CW3M Company, Inc.,
45-Day Report Addendum, Smoot Oil Company, Inc. Dongola
Bulk Plant, Incident Number 99-2755, Dongola, Illinois,
May 18, 2001.
Smoot 99-2755. CW3M Company, Inc.,
45-Day Report Addendum, Smoot Oil Company. Inc. Dongola
Bulk Plant, Incident Number 99-2 755, Dongola, illinois,
May 18, 2001.
CECI 2003. Consulting Engineers Council of Illinois.
Materials Provided to the IEPA by the Ad Hoc
Committeefor LUST Revisions,
April 2003.
85
