IN THE MATTER OF:
PROPOSED AMENDMENTS TO:
REGULATION PETROLEUM LEAKING
UNDERGROUND STORAGE TANKS
35
ILL. ADM. CODE 732
REcEIVED
CLERK’S OFFICE
IN THE MATTER OF:
PROPOSED AMENDMENTS TO:
REGULATION PETROLEUM LEAKING
UNDERGROUND STORAGE TANKS
35
ILL. ADM. CODE 734
To:
DorothyM. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph, Suite 11-500
Chicago, Illinois 60601
)
)
)
)
)
)
R04-23
(Rulemaking
—
UST)
Consolidated
Ms. Marie E. Tipsord
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph, Suite 11-500
Chicago, IL 60601
served upon you.
NOTICE OF FILING
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN 082004
STATE OF ILLINOIS
)
Pollution Control Board
)
)
)
)
)
R04-22
(Rulemaking
—
UST)
PLEASE TAKE NOTICE that on June 7, 2004, I filed with the Clerk ofthe Illinois
Pollution Control Board, via fax and an original and nine (9) copies via)J,.~S.Mail the PRE-
FILED TESTIMONY OF CINDY S. DAVIS, JO$EPH W. TRUESpALEJ, DUANE DOTY,
JOSEPH M. KELLY, ROBERT J. PULFREY a BARRY S7~,p~~ies/ofwhich are herewith
/
Claire A. Manning, Attorney
CLAIRE A. MANNING
Posegate & Denes, P.C.
111 N. Sixth Street, Suite 200
Springfield, Illinois 62701
(217) 522-6152
(217) 522-6184 (FAX)
claire~posegate-denes.com
Printed on Recycled Paper in Accordance with 35 III.
Mm,
Code 101.202 and 101. 302(g)
PROOF OF SERVICE
The undersigned, being duly sworn, states that a true and correct copy ofthe foregoing
PRE-FILED TESTIMONY OF CINDY S. DAVIS, JOSEPH W. TRUESDALE, DUANE
DOTY, JOSEPH M. KELLY, ROBERT J. PULFREY and BARRY SINK with the CLERK and
the HEARING OFFICER ofthe ILLINOIS POLLUTION CONTROL BOARD, was served on
the individuals as listed below, by mailing the same via the United States postal service,
Springfield, Illinois on June 8, 2004:
Gina Roccaforte
Kyle Rominger
IEPA
1021 North Grand Ave. East
P.O. Box 19276
Springfield, IL 62794
Thomas G. Safley
Hodge, Dwyer, Zeman
3150 Roland Avenue
P.O. Box 5776
Springfield, IL 62705
William G. Dickett
Sidley, Austin, Brown & Wood
Bank One Plaza
10 South Dearborn Street
Chicago, IL 60603
Barbara Magel
Karaganis & White, Ltd.
414 North Orleans St., Suite 810
Chicago, IL 60610
Bill Fleischli
Illinois Petroleum Marketers Association
112 West Cook Street
Springfield, IL 62704
Joe Kelly, PE
United Science Industries, Inc.
P.O. Box 360
6295 East Illinois Highway 15
Woodlawn, IL 62898-0360
Robert A. Messina, General Counsel
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, IL 62703
Kenneth James
Carison Environmental, Inc.
65
E. Wacker Place, Suite 1500
Chicago, IL 60601
Lisa Frede
Chemical Industry Council ofIL
2250 E. Devon Ave., Suite 239
DesPlaines, IL 60018
Carolyn S. Hesse
Barnes & Thomburg
1 North Wacker Drive, Suite 4400
Chicago, IL 60606
Michael W. Rapps
Rapps Engineering & Applied Science
821 S. Durkin Drive
P.O. Box 7349
Springfield, IL 6279107349
Joel J. Sternstein
Office ofthe Attorney General
Environmental Bureau
188 West Randolph, 20t1~Floor
Chicago, IL 60601
Tom Herlacher
Herlacher Angleton Associates, LLC
2
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8731 Bluff Road
Waterloo, IL 62298
Jennifer Goodman
Herlacher Angleton Associates
522 Belle Street
Alton, IL 62002
James E. Huff, PE
Huff& Huff, Inc.
512 W. Burlington Ave., Suite 100
LaGrange, IL
60525
Scott Anderson
Black & Veatch
101 N. WackerDr., Suite 1100
Chicago, IL 60606
Melanie LoPiccolo, Office Manager
Marlin Environmental, Inc.
1000 West Spring St.
SouthElgin,IL 60177
Brian Porter
Terracon
870 40th Avenue
Bettendorf, IA 52722
Jonathan Furr, General Counsel
Illinois Dept. ofNatural Resources
One Natural Resources Way
Springfield, IL 62702
Joe Kelly, VP Engineering
EcoDigital Development LLC
P.O. Box 360
6295 East Illinois Highway 15
Woodlawn, IL 62898
Glen Lee, Manager
Wendler Engineering Services, Inc.
1770 West State St.
Sycamore, IL 60178
A.J. Pavlick
3
Great Lakes Analytical
1380 Busch Parkway
Buffalo Grove, IL 60089
Joseph W. Truesdale, PE
CSD Environmental Services
2220 Yale Blvd.
Springfield, IL 62703
Ron Dye, President
CORE Geological Services, Inc.
2621 Monetga, Suite C
Springfield, IL 62704
Monte Nienkerk
Clayton Group Services, Inc.
3140 Finley Road
Downers Grove, IL
60515
Kurt Stepping
PDC Laboratories
2231 W. AltorferDrive
Peoria, IL 61615
Thomas M. Guist, PE
Atwell-Hicks, Inc.
940 E. Diehi Road, Suite 100
Naperville, IL 60563
JeffWienhoff
CW3M Company, Inc.
701 S. Grand Ave. West
Springfield, IL 62704
Jarrett Thomas, V.P.
Suburban Laboratories, Inc.
4140 Litt Drive
Hillside, IL 60162
Dan King
United Science Industries, Inc.
6295
East Illinois Highway 15
Woodlawn, IL 62898
Richard Andros, PE
Environmental Consulting &
I’rintcd on Recycled Paper in Accordance with 35 III. Adm, Code 101.202 and 101. 302(g)
Engineering, Inc.
551
Roosevelt Rd., #309
Glenn Ellyn, IL 60137
Terrence W. Dixon
MACTEC Engineering & Consulting, Inc.
8901 N. Industrial Road
Peoria, IL
61615
Steve Gobelman
Illinois Dept. ofTransportation
2300 Dirksen Parkway
Springfield, IL 62764
Collin W. Gray
SEECO Environmental Services, Inc.
7350 Duvon Drive
Tinley Park, IL 60477
George Moncek
United Environmental Consultants
119 E. Palatine Road, Suite 101
Palatine, IL 60067
David Rieser
McGuire Woods LLP
77 W. Wacker, Suite 4400
Chicago, IL 60601
Tina Archer
Greensfelder, Hemker & Gale
10 S. Broadway, Suite 2000
CLAIRE A. MANNING
111 N. Sixth Street, Suite 200
Springfield, Illinois 62701
(217) 522-6152
(217) 522-6184 (FAX)
claire(2i~posegate-denes.com
4
St. Louis, MO 63104
Erin Curley
Midwest Engineering Services, Inc.
4243 W. 166th St.
Oak Forest, IL 60452
Ken Miller, Regional Manager
American Environmental Corp.
3700 W. Grand Avenue, Suite A
Springfield, IL 62707
Russ Goodiel
Applied Environmental Solutions, Inc.
P.O. Box 1225
Centralia, IL 62801
Daniel Goodwin
Secor International, Inc.
400 Brims Lane
Springfield, IL 62702
Eric Minder
Caterpillar, Inc.
100 N.E. Adams St.
Peoria, IL 61629
Daniel Caplice
K-~isEnvironmenta
6~~V.Van Bur
t., uite 1000
~h~ago, I 606 7
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with 35
Ill. Adm. Code 101.202 and 101.302(g)
RECEIVEDCLERK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN 082004
IN
THE MATTER
OF:
)
Pot
PROPOSED AMENDMENTS
TO:
)
R04-22
REGULATION PETROLEUM LEAKING
)
(Rulemaking
—
UST)
UNDERGROUND STORAGE TANKS
)
35 ILL. ADM. CODE 732
)
iN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
)
R04-23
REGULATION PETROLEUM LEAKING
)
(Rulemaking
-
UST)
UNDERGROUND STORAGE TANKS
)
Consolidated
35 ILL. ADM. CODE 734
)
TESTIMONY OF CINDY S. DAVIS ON BEHALF OF THE PROFESSIONALS OF
ILLINOIS FOR THE PROTECTION OF THE ENVIRONMENT (“PIPE’”), CSD
ENVIRONMENTAL AND HEARTLAND DRILLING
My name is Cindy S. Davis. I am a licensed Professional Geologist in Illinois and
I am the sole owner ofCSD Environmental Services, Inc. and Heartland Drilling &
Remediation Inc., both located in Springfield.
I am also the Acting Chairperson for the Board of Directors for the Professionals
in Illinois for Protection ofthe Environment, referred to as “PIPE”. PIPE is an
organization ofvarious businesses who perform remedial clean-ups ofunderground
storage tank sites as well as businesses who provide services to the remediation process,
such as landfills, laboratories, etc.
I am also a member of the Consulting Engineers Council ofIllinois (CECI) and
was a team member on the “Ad Hoc Work Group on LUST Reimbursement Reform,”
This is the group that the Agency, in their testimony, referred to as the “CECI”
workgroup. The workgroup was actually comprised ofmembers ofthe CECI and the
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Illinois Petroleum Marketers (IPMA), an Illinois organization comprised ofowners and
operators ofbusinesses who market and sell gasoline (primarily, gas station and
convenience store owners). The “Ad Hoc Group’s” purpose was to provide substantive
input to the IEPA for changes to the LUST program.
Since the filing of this rule proposal, PIPE has continued to work closely with
representatives ofIPMA, CECI, IPMA, Illinois Society ofProfessional Engineers (ISPE)
and the Illinois Association ofLaboratories, to coordinate the common interests ofthe
professional community regarding this proposed rule. We have also met three times
with the illinois Environmental Protection Agency in an effort to narrow the issues before
the Board in this rulemaking. We hope to continue to meet after these hearings and, if
possible, present the Board with alternative language that might narrow our dispute.
I have been self-employed since 1992 as the owner of CSD Environmental
Services, Inc. I formed Heartland Drilling and Remediation, Inc. in 2002. Prior to
forming CSD Environmental, I was employed by the Illinois Environmental Protection
Agency from 1985 until 1992. From April of1990 to June of 1992, I was employed in
the LUST Section as a Sub Unit Manager. I have thirteen (13) years ofexperience in the
LUST field and nineteen (19) years in the environmental field. My experience is unique
since I have been both a regulator with the EPA and a private consultant and owner ofa
remediation business. While I worked at the Agency, I hired’ many ofthe Project
Managers in the LUST section, many ofwhom are still employed today, and I worked
with many ofthe Agency representatives who have testified in this proceeding. I have an
appreciation for theirjob ofensuring that those who access the fund are seeking
reimbursement for the reasonable cost ofa protective clean-up but, as the head of a
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company who has performed about a substantial number ofUST remediations in this
state, I also have a special understanding ofthe cost ofwhat’s “reasonable.”
In March of2004, at the request ofthe IPMA, I called a meeting ofthe IPMA
Associate Members, to discuss the EPA’s proposed changes to 35 Ill. Adm. Code, Part
732 and 734. The purpose ofour meeting was to gather information from the IPMA
Associate Members oftheir perceived impact to IPMA constituents, if the regulations as
proposed were adopted. Consultants and Contractors at the meeting agreed that we all
had a common cause and gave birth to the idea ofeither joining an existing organization
or creating a new organization to formally voice our concerns and issues. After several
meetings, the creation ofPIPE emerged and was incorporated as a not for profit
corporation in April of2004. PIPE was formed to represent the Professionals in Illinois
who provide environmental consulting andlor remediation services. Our member firms
conduct or provide services on nearly all of the underground storage tank cleanups
conducted in the State ofIllinois.
I have several concerns regardingthe proposed rules ofwhich I will testify to
today. Before I get into the specifics, I would like, though, to express to the Board our
appreciation for the opportunity to be heard today. Also, while we have disagreements
with the Agency about the specifics ofthese rules, we share the common goal ofensuring
that the Underground Storage Tank fund is available for the purpose for which it was
created: the safe and protective remediation ofIllinois sites that have been contaminated
by leaking underground storage tanks. Our major disagreements result from our
knowledge that we cannot continue to perform these remediations pursuant to the
conditions for reimbursement set forth in these rules.
3
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Many
ofthe rates set forth in the proposed regulations are below current
market rates and do not reflect industry standards in Illinois. The Agency
developed theirproposed rates from an improper statistical method, or lack of
statistical method, oftheir current database. The rates are
~
based upon a
representative sample. Further, many ofthese rates were established in an
internal rate sheet that, instead ofbeing adjusted upward over the course of
years to account for inflation, was in many cases adjusted downwards in an
inappropriate and unfair approach to constraining costs. For example, the
rates for reimbursement forprofessional services that the Agency would find
“reasonable” has actually decreased over the course ofthe years, even though
every one knows that the hourly or salaried cost ofhuman services (and
related health insurance, medicare, worker’s compensation, etc.) has risen.
Further, the proposal does not take into consideration that hourly personnel
rates are determinedby using a standard method oftaking the employees
direct wages plus company contributions ofFICA, medicare and
unemployment multiplied by a overhead and profit multiplier to establish an
hourly rate. RS Means, which PIPE proposed to the Agency during
discussions on their emergency rule proposal, uses this concept. We would
ask that the Board look at the methodology contained in the following
industry publications, which are specifically designed to establish reasonable
•
rates for the costs ofenvironmental remediation: RS Means Environmental
Cost Handling Options and Solutions (ECHOS) “Environmental Remediation
Cost Data
—
Unit Price,”
10th
Annual Edition, 2004, and ECHOS
4
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“Environmental Remediation Cost Data
—
Assemblies,” 10th Annual Edition,
2004. In meeting with the Agency concerning their desire to promulgate a
rule on an emergency basis, we were able to successfully assert that the RS
Means methodology presents a method for establishing reasonableness.
2.
Subpart H. The rates proposed in Subpart H are proposed as “maximum
payment amounts”. The EPA proposed during the “Ad Hoc Group”
meetings, the concept oflump sum payments for some reports, with the
understanding that if the report was completed for less than the lump sum the
consultant would profit, if the report was completed for more, the consultant
would lose money. The EPA referred to this as “win some lose some.”
However, the proposed “maximum” payments in Subpart H are either break
L
even or lose.
3.
EPA’s Proposed Rates. The EPA implemented the proposedrates in Subpart
H by distributing a “rate sheet” to theirproject managers. We have a unique
situation, in that the EPA actually implemented the same rates as are
proposed in Subpart H. The IEPA enforced the use of these rates for
approximately four months during which consultants and contractors found
theirbudgets and subsequent reimbursement claims reduced by any amount
over the price indicated on the “rate sheet”. During this time frame,
consultants and contractors lost significant amounts ofrevenue. In addition,
some ofour clients wrongly perceived that we were price gouging since the
IEPA did not want to pay our current rates
---
even though many ofthose very
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rates had been approved in the past as reasonable. CSD with permission of
the owner/operator challenged the EPA’s use ofthe rate sheet in PCB 03-214
Illinois Ayers Oil Company v. Illinois Environmental Protection Agency.
The
Illinois Pollution Control Board ruled in favor of Ayers on April 1, 2004,
stating the use ofa “rate sheet” was improper since the rate sheet was a rule
that was not promulgated.
4.
The proposed rules do not define a “scope ofwork” and the Agency’s
proposal does not take into consideration the level ofwork deemed necessary
by a professional licensed professional engineer or licensed professional
geologist. The Ad Hoc Group informed the Agency a lump sum price cannot
be determinedwithout a clear defined scope of work. Estimating in the
consulting and contracting field is done following a specific method. First, we
identify the tasks to complete a job (scope ofwork), second, we identify the
personnel need to complete the task, and thirdly, the number ofhours needed
for each personnel required per task. Once all ofthese items are determined a
cost estimate to complete the work can be prepared. The proposed Subpart H
does not define the scope ofwork required for those items which they have
assigned a lump sum cost. Without a clear definition of the work to be
completed, a lump sum price cannot be fairly determined. Also, since the Act
specifically requires that corrective action plans and budgets be certified by a
licensed professional engineer or licensed professional geologist, it is difficult
to accept that an agency reviewer who, in most cases, does not have this
technical expertise, is in a position of rejecting what that professional has
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determined to be a reasonable number ofborings to do a particular job
—
or a
reasonable number ofhours to do it.
5.
Requests for Payments from the Underground Storage Tank Fund are limited
to a timeframe of every 90 days. Currently under the regulations, an owners or
operator can submit a reimbursement request on the following intervals:
• At the end of early action
(45
days)
• After approval by the EPA ofthe Site Classification Completion Report
or a Site Investigation Report; (greater than 450 working days)
• At approval ofa Corrective Action Plan (at least 90 to 120 days); and
• On a 90 day basis after JEPA approval of a Corrective Action Plan (90
days).
The proposed regulations should be rewritten to allow reimbursement requests
to be submitted on a more frequent basis. It is my recommendation to allow
reimbursement requests as follows:
• At the end of early action
(45
days)
• Upon completion and submittal of each Stage of Site Investigation
—
(breaking the Site Investigation into stages will allow money from the
fund to be paid to the owner oroperator quicker).
• Upon IEPA approval ofa Corrective Action Plan; and
• Every 30 days after approval ofthe Corrective Action Plan.
6.
The negative cash flow in the Underground Storage Tank fund has nothing to
do with the fund being overcharged. In response to questioning from the
Board at the last hearing, Doug Clay testified that while the number ofUST
incidents is declining on an annual basis, the number ofreimbursement dollars
is increasing. While that simple statement may be true, it has no relationship
7
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to the actual cost ofremediation
--
or the number ofremediations currently
being performed and pending, in one stage or another.
Interesting, while we asked the Agency to present information regarding the
actual liability out there (remediation actually being performed and costs
associated with what aspects ofthat remediation), the Agency did not present that
information. We believe that the Agency should be keeping track ofthe liability
on the fund, as well as the actual dollars spent. There are other significant reasons
why the fund is currently under stress.
• First, while there are indeed fewer incidents being reported the last few years
(628 in 2003; 617 in 2002; 832 in 2001), the corrective action work that is
currently being performed and yet to be reimbursed (in many cases the most
expensive part ofthe remediation) generally involves sites that had incidents
that were reported in the year 2000 and previously (1221 in 2000; 1729 in
1999; 1818 in 1998; 1279 in 1997).
• Second, when there
was
a significant balance in the fund, even though the
balance represented “committed” dollars (waiting for Agency approvals or
pending time frames for submittal ofreimbursement requests), the money was
transferred out ofthe fund in an effort to balance the budget.
• Third, the cost ofdoing business, especially in IllInois, has gone up
—
not
down. That includes the business ofperforming remediations ofleaking
underground storage tank sites.
7.
The IEPA’s proposed Staged Site Investigation is too prescriptive in regards
•
to placement ofwells and location ofsoil samples. Each site is different and
8
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the characterization ofthe extent ofcontamination must be tailored to the site.
The IEPA should allow the Professional Engineer or Geologist to choose the
placement ofsoil borings/samples and groundwater monitoring wells based
upon their knowledge of the site conditions.
8.
The UST reimbursement procedure which the Agency uses to deny or approve
(with modifications) plans, budgets or reimbursement requests is seriously
•flawed. Currently, the Agency uses a variation ofthe permit procedure. The
project manager sends a letter at the end oftheir 120 day review period (and
generally not a day before) informing the owner or operator of, generally, the
denial or reduction in the budget orreimbursement request. This letter
generally represents the first (and only) communication that the requestor has
with the Agency. The Agency provides very little detail as to what items were
reduced or why, but relies on the statement, “exceeds the minimum
requirement ofthe act.”
The owner or operator then has three choices, which they generally
make in consultation with the consultant they have hired to remediate the
property:
• Resubmit, literally guessing at what the problem might be (and triggering
a whole new 120 day review period).
• Appeal to the Board, which necessitates hiring an attorney and presents
complications regarding proof, given that you’re not sure what the denial
was about in the first place
—
and you cannot present any new information
to the Board because you have to rely on the “record” the Agency used to
make its decision (See Todd’s Service Station);
• Accept the decision and eat the lost cost.
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The current procedures cause two problems 1) the owner/operator is never
allowed the opportunity to provide additional information to the Agency
before a final decision is made; and 2) the owner/operator must bear the legal
costs if he/she is not in agreement with the Agency’s decision. In the case of
Illinois Ayers v. the IEPA,
the legal fees were in excess of$40,000. The
owner/operator must decide if the reductions made by the Agency outweigh
the cost ofhiring an attorney. In many cases, the owner doesn’t appeal the
reductions due to the costs ofa hiring an attorney. This results in a disruption
ofthe checks and balances system used in our government.
PIPE suggested to the EPA during discussions held after the EPA filed a
motion for Emergency Rulemaking, that the procedures for denials or
approvals be modified. In their amended emergency rule proposal, the
Agency agreed and proposed to change the procedure to allow a draft denial
letter be issued to the owner/operator allowing the owner/operator to provide
additional information or justification prior to a final decision.
PIPE suggests to the IPCB that the same language be incorporated into the
proposed regulations. As to the legal costs, the owner/operator must incur to
bring an appeal before the IPCB, PIPE suggests that a mediation orpossibly
an arbitration step be introduced into the regulations which will allow the
owner/operator and the IEPA an opportunity to resolve the issues prior to
coming before the Board.
9.
The proposed rules under 732.855 and 734.855 allow an owner or operator
who incurs unusual or extraordinary expenses that exceed the payments of
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Subpart H to request the Agency consider the expenses on a site specific basis.
The Agency has the authority to make this decision. The Agency in their
testimony stated, they feel very few sites will be evaluated under the rule.
PIPE disagrees with the Agency, especiallywhen the Agency failed to list the
scope ofwork required for each lump sum task, nor did they define a “typical
site” in the regulations. PIPE suggests a definition of an “atypical” site be
identified in the proposed rule. The Ad Hoc Group provided the Agency with
an “atypical site form”, or a change order form per say to be usedwhen the
consultant determines the conditions at the site warrant extra expenses. PIPE
also suggests a peer review committee be formed with designated Agency
LUST supervisors and at least two members who are not Agency employees
with a background in engineering or consulting or contracting and have
experience in determiningreasonableness ofcosts. In the original discussions
regarding the UST fund, I understand that such a cost containment panel was
contemplated. When the Agency was asked by ISPE at the last hearinghow
the reimbursement dollars ofthe fund are distributed, the Agency indicted that
(beyond the final amount) they do not keep track ofhow reimbursement
dollars are distributed. We believe that they should. We have indicated to
the Agency the importance ofdeveloping a database where they could
monitor the cost ofthe various different projects related to UST site
remediation and develop a proper methodology fordetermining the
reasonableness of that cost. Instead oftelling us (or the Board) how
reimbursement dollars have been spent for the last several years, the Agency
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has focused on giving the Board old information, and selected non-
representative sites, in support ofthis proposal. We suggest that we are more
informed on the costs ofremediating UST sites in Illinois and we urge the
Board to listen
—
without falling victim to the Agency’s finger pointing. We
are not the cause, but we certainlyhope to be part ofthe solution.
Thank you.
12
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER
OF:
)
)
PROPOSED AMENDMENTS TO:
)
REGULATION PETROLEUM LEAKING
)
UNDERGROUND STORAGE TANKS
)
35 ILL. ADM. CODE 732
)
iN THE MATTER OF:)
PROPOSED AMENDMENTS TO:
REGULATION PETROLEUM LEAKING
UNDERGROUND STORAGE TANKS
35 ILL. ADM. CODE 734
PIPE TESTIMONY OF JOSEPH W. TRUESDALE, P.G., P.E., REGARDING
THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S PROPOSAL TO
AMEND 35 ILL. ADM. CODE 732 AND 35 ILL. ADM. CODE 734
My name is Joseph W. Truesdale. I am a senior project manager and managing
agent for CSD Environmental Services, Inc. (CSD) located in Springfield, Illinois. I am a
licensed Professional Engineer (P.E.) and a licensed Professional Geologist (P.G.) in the
State ofIllinois. I hold B.S. degrees in environmental engineering and applied geology /
hydrogeology, as well as, an Associate degree in surveying and construction
management. I have worked in the civil and environmental consulting industry since
1993, and have been employed by CSD since 1998.
Subpart 1
In the matter of: Regulation of Petroleum Leaking ‘Underground Storage Tanks
(Proposed new 35 Ill. Adm. Code 734 and amended 35 Ill. Adm. Code 732)
(Consolidated: R04-22 and R04-23); the Illinois Environmental Protection Agency
(Agency) initially proposed, that “soil samples shall not be collected from soil below the
RECEIVED
CLERK’S OFFICE
JUN08 2004
STATE OF ILLINOIS
Pollution Control Board
R04-22
(Rulemaking
—
UST)
)
)
)
)
)
R04-23
(Rulemaking
—
UST)
Consolidated
Printed on Recycled Paper in Accordance with 35
Ill. Adm. Code 101.202 and 101. 302(g)
groundwater table” during the various stages of site assessment. United State
Environmental Protection Agency, Office of Underground Storage Tanks (OSWER)
publication EPA 510-B-97-00 1 (March 1997),
Expedited Site Assessment Tools For
Underground Storage Tank Site: A Guide For Regulators
states that “the site assessment
process is critical to making appropriate corrective action decisions. When site
assessments are complete, they provide accurate information about the presence and
distribution of contaminants, thereby facilitating cost-effective and efficient remediation.
When they are incomplete, they can provide inaccurate or misleading information which
can delay effective remediation, increase overall corrective action costs, and result in an
increased risk to human health and the environment.” This same publication goes on to
state that some ofthe most significant limitations noted historically with conventional site
assessments are that “the results of the assessment are usually focused on mapping the
boundaries of the groundwater plume rather than the source areas or locating the most
significant contaminant mass. In addition, the approach to mapping generally ignores the
3-dimensonal nature ofcontaminant migration.”
The Illinois State Geological Survey, Bulletin
95, Handbook of Illinois
Stratizraphy
states that “deposits ofPleistocene age are the surficial materials in virtually
all of Illinois. Nearly 80 percent of the state was covered at least once by continental
glaciers that left characteristic deposits (drift).” Tank systems at many Leaking
Underground Storage Tank (LUST) sites in Illinois extend to near or below shallow
groundwater tables. Since petroleum based contaminants consist primarily of
hydrophobic organic molecules, a vast majority of the contaminant mass (often times
more than 90) can become adsorbed to the aquifer solids beneath the water table or
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within the seasonal smear zone, if water table fluctuations are common. This
phenomenon is most prevalent in unconsolidated fine-grained aquifers, and / or aquifers
with significant natural organic material both typical of glacial drift.
Failure to
•
reasonably attempt to quantify the total mass ofcontaminants in the subsurface and their
•
relative distribution (both above and below the water table) during site investigation can
severely inhibit subsequent implementation of effective corrective action and / or risk
management strategies as described in: Water Resources Research, Vol. 30, No. 8, Pages
2413-2422, August 1994,
Effects of rate-limited desorption on the feasibility of in-situ
bioremediation,
V.A. Fry and J.D. Istok; Water Resources Research, Vol. 27, No. 4,
Pages
547-556,
April 1991,
Analytical ModelingofAguifer Decontamination by Pumping
When Transport is Affected by Rate-Limited Sorption,
Mark N. Goltz and Mark B. Oxley;
and Water Resources Research, Vol. 29, No. 9, Pages 3201-3208, September 1993,
An
Analytical Solution to the Solute Transport Equation With Rate-Limited Desorption and
Decay,
V.A. Fry and J.D. Istok;
I applaud and whole heartedly support the Agency in their current position of
proposing some sort of more comprehensive site investigation including collection of a
sufficient number of samples for laboratory chemical analysis necessary to map or
otherwise determine the magnitude and location(s) of the most significant contaminant
mass, including samples from below the water table. The result of any such laboratory
chemical analysis should then be compared to their appropriate objectives, depending on
theirrelative location in the subsurface.
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Subpart 2
In the matter of: Regulation of Petroleum Leaking Underground Storage Tanks
(Proposed new 35 Ill. Adm. Code 734 and amended 35 Ill. Adm. Code 732)
(Consolidated: R04-22 and R04-23); the Illinois Environmental Protection Agency
(Agency) is proposing that a
5
increase in volume, or
“fluff’
factor as described in the
prefiled testimony ofHarry A. Chappel, for excavated soils and replacement fill material
will be allowed for purposes ofdetermining the quantity eligible for payment. Although
it is common engineering knowledge that the volume and relative density ofsoils and / or
rock change when excavated or compacted, the
5
increase proposed by the Agency is
not consistent with values commonly used in engineering practice. The technical book
titled Construction Planning, Equipment, and Methods, published by McGraw Hill Book
Company states that “when the volume of earth increases because of loosening, this
increase is defined as swell.” The associated Table
5-1
in this book illustrates that percent
swell for “earth and rock” ranges from 12 to 60
and the typical value for earthen
material (soil) is
25.
However, the backfill material used following UST removal
typically consists of sand or gravel which has a lower percent swell ranging from only 12
to 15
.
Given the inherent variability of swell for various geologic materials, it is
unreasonable to assume a single allowable percentage swell for purposes of these
regulations.
•
As I see it, it is part ofthe responsibility ofthe licensed Professional Engineer (or
licensed Professional Geologist) to select the appropriate design variables, in light ofsite
specific criteria, in order to obtain a reasonable estimate for which they are consequently
required to certify. During the process of this rulemaking, it may be more prudent to
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evaluate these costs relative to their appropriate units independently (ie. disposal per. ton,
trucking per. mile or hour, backfill per. ton and excavation per hour or cubic yard), rather
than attempting to perform numerous conversions and trying to lump items of
inconsistent units together into one unit cost.
Subpart 3
In the matter of: Regulation of Petroleum Leaking Underground Storage Tanks
(Proposed new 35 Ill. Adm. Code 734 and amended 35 Ill. Adm. Code 732)
(Consolidated: R04-22 and R04-23); the Illinois Environmental Protection Agency
(Agency) is proposing that maximum payment amounts be established in Subpart H for
various activities conducted in association with LUST sites; however, in Subpart H and
throughout the remainder of the proposed regulations, the Agency routinely uses the
terminology “shall include, but not be limited to.” It is unreasonable to assume that fixed
maximum payment amounts can be established for activities that do not have a clearly
defined, fixed, scope ofwork that can be readily identified without significant variability.
Subpart 4
During the May
25,
2004 hearing there was discussion regarding the number of
sites receiving NFR letters vs. the number of new incidents vs. the amounts being
reimbursed from the LUST fund. One observation I’ve made is that essentially all the
easily remediated sites that environmental contractors could dig out of have NFR letters
issued already. There is far less “dig and haul” conducted now in comparison to the
1990’s.
What we have left are the more technically challenging sites where the
contaminant mass is less easily accessible, andlor sites with extensive groundwater
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impact.
•
As a result, a tremendous amount of data is needed to determine where
contaminants are located and how best to remediate them (EPA 51 0-F-97-004).
As the number ofnew incidents decreases, and the easily addressed sites continue
to drop out of the program, this trend should continue such that the majority ofthe costs
reimbursed through the LUST fund will be allocated to fewer and fewer more technically
challenging sites that would subsequentlyrequire higher costs to effectively address.
Subpart
5
During the March
15,
2004 and subsequent hearings there was discussion
regarding allowing sites which have received NFR letters to retain eligibility under the
LUST fund to address future, previously unidentified, impacts or risks associated with
prior releases. The question was posed why an owner / operator would elect to obtain an
NTFR letter despite ofa denial for access to off-site property suspected to be impacted as a
result of the release. In Doug Clay’s testimony on page 216 from the March
15,
2004
hearings he stated that “the reason someone would do this is because they need their NFR
letter to sell their property”. Mr. Clay goes on to say on page 217 that “I think the owner
/ operator is making a business decision.”
Several of the owner / operators that I deal with are apprehensive about leaving
undisclosed contamination or employing multiple environmental land use restriction on
properties to manage future risks associated with known contamination since the NFR
letter in and of it self does not serve to protect the owner / operators from any potential
future liability associated with that contamination.
I think that that line of argument can be extended to include NFR letters obtained
using TACO, and that many savvy business owners would be more apt to employ the
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many options available under TACO to obtain an NFR letter if a mechanism existed to
address, and provide financing through the LUST fund, for future, previously
unidentified, impacts or risks associated with prior releases. The Agency has continually
presented their position that they have in no way attempted to overlook or otherwise limit
the use of TACO, and in fact have routinely suggested their desire to see TACO utilized
more often.
It is my position that one ofthe most significant reasons that TACO is not utilized
more frequently is that the owner / operator are in fact making a business decision which
will limit their potential future financial obligations should a previously unidentified
impact or change to site conditions present additional financial liability and / or other
risks. It is also my position that a mechanism allowing for continued future eligibility to
address these potential financial liabilities and / or other risks would serve to promote use
ofTACO. In addition, it is my position that it is likely that a large majority of the site
receiving NFR letters via this approach would never need to access the LUST fund again
to address future concerns; however, the availability would surely make the business
decision of the owner / operators to use risk management strategies available under
TACO much less uncertain and more frequently used.
I believe that the additional degree of securitythat the owner / operator (or
potential buyer) would not be faced substantial future financial obligations associated
with undisclosed contamination or employing multiple environmental land use restriction
on properties to manage future risks associated with known contamination since the NFR
letter in and of it self does not serve to protect the owner / operators from any potential
future liability associated with that contamination. In my opinion, this would almost
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It) 1.202 and lOt.
302(g)
certainly also make property transfers involving sites with environmental land use control
restrictions much more marketable and would facilitate more frequent use ofTACO.
Subpart 7
American Heritage Dictionary ofthe English Language, Third Edition defines
reasonable
as “1. Capable ofreasoning: RATIONAL. 2. Governed by or in accordance
with reason or sound thinking. 3. Within the bounds ofcommon sense. 4. Not extreme or
excessive : FAIR”
Thank you.
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RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
IN THE MATTER OF:
)
JUN 082004
)
STATE OF ILLINOIS
PROPOSED AMENDMENTS TO:
)
R04-22
Pollution Control Board
REGULATION PETROLEUM LEAKING
)
(Rulemaking
-
UST)
UNDERGROUND STORAGE TANKS
)
35 ILL. ADM. CODE 732
)
IN THE MATTER OF:)
)
PROPOSED AMENDMENTS TO:
)
R04-23
REGULATION PETROLEUM LEAKING
)
(Rulemaking
-
UST)
UNDERGROUND STORAGE TANKS
)
Consolidated
35 ILL. ADM. CODE 734
)
PIPE TESTIMONY OF DUANE DOTY. P.G. REGARDING THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY’S PROPOSAL TO AMEND 35 ILL.
ADM. CODE 732 AND 35 ILL. ADM. CODE 734
My name is Duane Doty. I am the General Manager for United Science
Industries, Inc. (EJSI) located in, Woodlawn, Illinois. I am a licensed Professional
Geologist in the State of Illinois. I have consulted underground storage tank (UST)
Owners and Operators in regard to compliance issues associated with releases from
underground storage tanks since 1988.
In regard to Section 734.845, Professional Consulting Services, the basis for
reimbursement in half-day increments does not appear to allow for several variations
commonly encountered during the performance of the field work and field oversight
activities addressed in this section. In addition, I question the rational used to determine
a half-day equals five
(5)
hours.
I feel it’s generally accepted that a business day consists of eight (8) hours.
Therefore, a half-day equals four (4) hours, not five
(5).
Further, it’s not uncommon for
many businesses to operate during more than one eight (8) hour shift in a 24-hour day.
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Should the Illinois Pollution Control Board (IPCB) determine the reimbursement of
professional consulting services for field work and/or field oversight on half-day
increments is a reasonable approach, I respectfully suggest that the IPCB consider the
unit ofmeasure (whether it’s termed a “half-day” or a “half-shift” or similar) be modified
to equal four (4) hours and not limit the Owner/Operator’s reimbursement to only two
units per calendar day. I feel consultants, contractors, etc., should feel confident they
have the latitude to maintain or improve productivity as needed by remaining on-site to
work long days in an effort to maintain a schedule, avoid weather delays, backfill
excavations prior to weekends and/or holidays, take advantage of seasonally extended
day light hours, etc., without jeopardizing the Owner/Operator’s eligibility in regard to
reimbursement. Doing so will increase the efficiency ofthe project and, therefore, reduce
overall project costs. This opportunity is lost if the number of reimbursable hours
worked on-site is directly or indirectly limited by limiting the number of half-days (or
similar unit ofmeasure) permissible per calendar day.
In Mr. Bauer’s testimony filed prior to the March
15,
2004, hearing he explains
that, “Based on conversations with former members of the Agency’s drill rig team”, the
half-day rate relative to the consultant oversight of the advancement of four (4) soil
borings
“. . .
.allows an additional hour of field time that should account for travel time
and/or any other incidental time that is needed.”. Mr. Bauer again makes reference to the
one (1) hour of travel time in his testimony regarding the groundwater sample collection
events required as part of Low Priority Corrective Action. Although I concur with Mr.
Bauer’s acknowledgement that travel time is necessary and, therefore, should be
considered a reimbursable task critical to the performance of field work and/or field
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oversight, I question the assumption that all, or even the majority, ofproject sites will be
located within a 30 minute radius of the consultant. It is my recommendation that the
issue of travel time be revisited to determine how the half day rate should be adjusted to
better represent the typical costs to be incurred as part of a “half-day” inclusive of travel
and oversight, or, remove travel time from the half day unit of measure and determine
reasonable travel costs separate from field work or field oversight (i.e., actual hours of
travel time multiplied by the applicable personnel rate).
I also suggest the Agency revisit the conclusion that the half-day rate of $500 is
reasonable and sufficient if this rate is to include all instrumentation used by the
professional, transportation, lodging, etc. It’s not uncommon for a professional to require
various types ofinstrumentation including a photoionization detector (PD), water level
indicator, combustible gas indicator, surveying equipment (conventional or GPS),
oillwater interface meter, peristaltic pump, data logger and transducers, etc. throughout a
typical scope ofwork associated with LUST compliance.
For example, according to the Agency’s proposed Subpart H, Appendix E, the
Agency suggests a reasonable hourly rate for a Project Manager with 8 years or less of
work related experience and/or college level education with significant coursework in the
physical, life, or environmental sciences is $90/hr. Such a Project Manager that travels
30 minutes to a job site, oversees four (4) hours of field work, and returns in 30 minutes
from the job site, accounts for $450 of the $500 half-day rate. For years the Agency has
determined, and reimbursed, reasonable daily rates for the use ofeach ofthe instruments
described above (and others) and recognized the standard industry practice of charging
this instrumentation on a daily basis. The generally accepted standard daily rates relative
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to each of these instruments range from less the $50/day to more than $1 00/day.
Obviously, after considering the five
(5)
hours of work and/or oversight by the Project
Manager, it is not reasonable to conclude the remaining
$50
is a reasonable amount
inclusive ofany and all instrumentation. Furthermore, to consider this
$50
remainder is
also inclusive of all transportation, expenses, lodging (if necessary), etc., is even more
unreasonable.
Performance offield work and/or oversight by personnel identified in Appendix B
with rates greater than that ofProject Manager (Sr. Project Manager, Engineer III,
Professional Engineer, Sr. Professional Engineer, and Sr. Professional Geologist) or
travel time beyond a 30 minute radius only further supports the need to re-evaluate the
$500/halfday rate proposed by the Agency.
Mr. Bauer’s pre-filed testimony also states that “Based on conversations with
underground storage tank removal contractors it appears that consultants are not always
present when the USTs are actuallybeing removed.” In support ofMr. Bauer’s
ôonclusion, I recognize that consultants are not always present during UST removal.
Often times, a release from an underground storage tank is not discovered until during the
removal ofthe UST and/or supportive system (i.e., product lines, dispensers, etc.). It is
unlikely a consultant would be present prior to the discovery ofa release. However,
during the removal ofa UST known to have had a release (a very common scenario), it is
common practice for a consultant to be present during the removal of the UST(s) in an
effort to document the event, evaluate the condition ofthe UST system, determine the
source of the release, prepare a site map, sample the excavation, and collect the data
necessary to comply with the Agency reporting requirements. To disadvantage an
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Owner/Operator by limiting his/her reimbursement ofcosts incurred in regard to
professional consulting services to one half-day increment regardless ofhow many USTs
were removed and/or how long it took the contractor to remove itlthem is not reasonable.
Instead, the Owner/Operator should remain eligible to receive reimbursement for as many
half-day increments (or alternative unit ofmeasure) as were required to complete the
UST removal activities and perform the required data collection and professional
oversight.
In regard to costs associated with report preparation, the Agency’s proposal to
reimburse the Owner/Operator for various plans/reports, such as a Corrective Action Plan
(CAP) proposing conventional technology, on a fixed rate basis does not appear to
accommodate variations in the scope ofwork. Scope ofwork has a direct effect on the
effort dedicated to a plan or report. For example, the preparation ofa CAP to address a
small plume of on-site soil contamination does not require the same level ofeffort as the
preparation ofa CAP to address widespread soil and groundwater contamination that has
migrated onto several off-site properties. I feel that the Agency’s rationale in support of
the proposed UST removal or abandonment costs (Section 732.8 10) may also be
applicable in determining the reasonable costs associated with report preparation. In his
pre-filed testimony, Mr. Bauer explained the Agency’s rationale supporting their 732.8 10
proposal as follows: “....it was determined that smaller tanks (110-999 gallons) cost less
and that larger tanks (15,000 gallons or more) cost more to remove or abandon than
medium-sized tanks (1,000 gallons to 14,999 gallons).”. It is reasonable to conclude that
CAPs proposing remedial action to address a small volume (i.e., 1,000 cubic yards or
less) ofon-site soil contamination cost less and CAPs addressing a large volume (i.e.,
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greater than 5,000 cubic yards) ofcontaminated soil and widespread groundwater
contamination, both ofwhich have impacted the site and one or more off-site properties,
cost more to prepare than a CAP addressing on-site soil and groundwater contamination.
Another factor in regard to costs associated with report preparation that I feel is of great
concern is the requirement ofAgency review and approval, and the authorization to
modify both the scope ofwork and/or the proposed budget. The Owner/Operator has
little to no control in regard to the Agency’s adequacy, efficiency, interpretation,
competency, ortimeliness in regard to the review/approvallmodification ofreports, plans,
budgets, reimbursement request, etc. The potential for human error is just as real for the
Agency as it is for the Owner/Operator. The Agency’s proposal to refuse additional
compensation for the preparation ofamended plans, reports, clarify an Agency
misinterpretation, etc., does not appear to relieve the Owner/Operator in the event such
activities are necessary as a result ofAgency involvement (directly or indirectly). As a
result, the Owner/Operator becomes burdened with additional costs that are ineligible for
reimbursement as a result ofan Agency error.
Also, it is not uncommon for unforeseen conditions discovered after the execution
of an Agency approved plan to require the submittal ofamended plans and/or budgets. It
does not seem reasonable to refuse an Owner/Operator reimbursement for costs
associated with the preparation of an amended plan and/or budget required as a result of
conditions unforeseen by both the Owner/Operator and the Agency.
I concur with the Agency that some ofthe proposed regulation revisions exhibit a
potential to streamline the reporting process for both the Owner/Operator and the
Agency. However, the 120-day Agency review timeline remains unchanged. It seems
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appropriate that the 120-day review period should be reduced to reflect the benefit ofthe
Agency’s effort to streamline this process.
As several participants expressed in the March
15,
2004, hearing, the manner in
which the Agency elected to research historical costs appears to be questionable. As a
result, several of the Agency’s conclusions are also in question. Regardless of the
validity, or invalidity, ofAttachment 9 as referenced in Harry Chappel’s pre-filed
testimony, reimbursement ofconventional excavation and off-site disposal ofpetroleum
contaminated soil using the cubic yard as a standard unit ofmeasure can provide a
streamlined and potentially reasonable means to reimburse the Owner/Operator.
Although its methods may be questionable, the Agency has determined that petroleum
contaminated soil can be excavated and transported to a landfill at a rate of500 cubic
yards per day from almost every current,,and future LUST site located in the State of
Illinois. Although there has been discussion in regard to extraordinary circumstances, it
is my experience that the Agency does not consider remote locations or small volumes of
contaminated soil extraordinary. These conditions can significantly increase the cost per
cubic yard for excavation and/or transportation. However, the environment, human
health and safety, and the Owner/Operators responsible for small plumes ofcontaminated
soil at sites remotely located can greatly benefit from the timeliness and effectiveness of
conventional technology. To indirectly limit the benefit of conventional technology by
directly limiting the Owner/Operator’s ability to receive reimbursement for costs incurred
based solely on remote location and/or a small volume of soil to be abated is
unreasonable. This situation could be addressed by either recognizing these conditions as
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extraordinary or by offering a scale reflecting extended transportation requirements or
less than average volumes of soil requiring abatement.
Subpart C: Site Investigation and Corrective Action, in my opinion, includes the
revisions with the greatest potential to improve current regulations. The Agency should
be commended for proposing this Subpart. The benefits of a pre-determined initial scope
ofwork (Stage 1) and the ability for an Owner/Operator to request reimbursement
throughout the investigation instead being required to wait until the Agency approves a
completion report are two revisions that will allow a far more streamlined process than
that required of current regulations. However, I recommend the Agency consider some
minor modifications. It appears that depending upon the layout ofthe UST system,
borings advanced in accordance with 734.3 15(a)(1)(A-C) could result in the advancement
ofmultiple borings in virtually the same location. This would be the case especially
when investigating a release from a UST system constructed such that product lines
include one or more 90-degree angles (a very common situation). Advancing borings
perpendicular in both directions and at equal distances
(15’)
from both sides of a 90-
degree angle can result in placing two borings at the same location. UST systems
including multiple pump islands parallel to one another can also cause a similar result.
This may be resolved if the regulation included direction explaining that the borings
advanced in accordance with these regulations maintain a specified minimum interval
between borings (i.e., 15’). Depending upon the number of USTs located in the tankhold,
borings advanced in accordance with 734.3 15(a)(l)(B) could also result in an interval
between borings ofless than 15’. Requiring a minimum distance between borings could
resolve this concern as well.
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Also, in an effort to avoid unnecessary Agency denials or modifications ofStage
2 and Stage 3 plans, it would be helpful if the Agency provided some explanation
regarding the rationale that will be used when reviewing these plans.
I also have concerns regarding the experience requirements proposed in Appendix
B. I strongly disagree that it is necessary forthe Agency to attempt to impose experience
requirements on personnel employed by private businesses. Current regulations require
that the work be performed by, or under the supervision of a licensed Professional
Geologist (PG) or Professional Engineer (PE). These licensed professionals must certify
to this and this should be sufficient. There is no good reason to disadvantage or
disqualify young professionals capable ofproviding quality work.
In conclusion, it is my observation that the majority ofthe consulting community
recognizes that cost containment is a necessity. It is also my observation that the
consulting community will require that any cost containment measure be reasonable and
fair. With modification, the Agency’s proposed revisions could achieve this.
Thank you.
9
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•
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN 082004
IN THE MATTER OF:
)
)
Pollution
STATE OF
ControlILLINOISBoard
PROPOSED AMENDMENTS TO:
)
R04-22
REGULATION PETROLEUM LEAKING
)
(Rulemaking
-
UST)
UNDERGROUND STORAGE TANKS
)
35 ILL. ADM. CODE 732
)
IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
)
R04-23
REGULATION PETROLEUM LEAKING
)
(Rulemaking
-
UST)
UNDERGROUND STORAGE TANKS
)
Consolidated
35 ILL. ADM. CODE 734
)
PIPE TESTIMONY OF JOSEPH M. KELLY, P.E. REGARDING THE
ENVIRONMENTAL PROTECTION AGENCY’S PROPOSAL
TO AMEND 35 ILL. ADM. CODE 732 AND 35 ILL. ADM. CODE 734
My name is Joseph M. Kelly. I am a licensed Professional Engineer (PB) in
Illinois and have been licensed since 1984 as a civil engineer. I am the Vice President of
Engineering for EcoDigital Development Group, LLC (EDG) and the Senior Professional
Engineer for United Science Industries, Inc. (USI). I have been involved in engineering
for twenty-four years and have been working strictly in the environmental industry since
1991.
I have been employed by USI since 1994 whereupon I was hired as a certifying
PE and Project Manager. I had prior involvement in site investigation, sampling,
remediation, closure, and Other applicable environmental and engineering experience. At
that time USI was working on a number of LUST projects under the guidance of the
Illinois Environmental Protection Agency, Bureau ofLand, LUST Section (Agency), 35
IAC 732 was in the process of being implemented and most, if not all, of the projects
were under 35 IAC 731. Both USI and the Agency were smaller and worked well
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together to resolve technical issues. Because USI worked to only perform work that was
approved or in coordination with Agency guidance, USI was very successful in obtaining
reimbursement for their clients and built a reputation they built on. At that time the
Agency was very consistent in its approach and how they wanted to review technical and
fiscal data and information.
Over the past several years USI has tried to work with the Agency and follow the
policies and procedures outlined in the regulations as well as the Agency’s interpretation
of those regulations. Up until about 2001, USI and the Agency seemed to work well in
conjunction while trying to investigate, remediate and close a number ofclient’s LUST
sites. For approximately the last three years the Agency has taken a different stance and
has begun to shift its focus. Before 35 JAC 742 (TACO), the focus seemed to be to clean
up the environment, including ~ soil and groundwater contamination, until protection of
human health and the environment was assured. TACO allowed for a more site-specific
approach and helped to allow closure of sites where contamination remained, but there
was not an apparent threat ofhuman exposure. This allowed for what many considered a
more common sense or middle ofthe road approach. Unfortunately, the focus now seems
to have shifted. The “protection ofthe Fund” outweighs protection ofhuman health and
the environment. The pendulum has swung far to one side with no consideration ofthe
owner/operator’s concerns and liability. The Agency would prefer everyone “TACO
out” to save the Fund regardless if the landowner wants a clean site. In many instances
engineered barriers and institutional controls do not provide an owner/operator
opportunities for economic development. If we want to turn all LUST sites into parking
lots, then this approach would work across the state.
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lOt. 302(g)
I know of no one who advocates abusing the LUST fund for charges not
performed or over priced rates or other abuses, at least within our organization. Yet,
there are evidently firms, according to the Agency, who are not ethical in the
performance of or at least how they charge for their work. So, the Agency decided to
initiate rate reductions in 2001, even though these rates had been previously reimbursed
and considered reasonable. The reductions were made retroactive regardless ofwhen the
work was performed. Also, there was no warning or document sighting a change in
Agency policy. As a result, consulting and engineering firms and contractors were forced
to decide if they would reduce rates or allow clients to pay for current rates and make up
the difference.
The Agency decided to enforce even more drastic cuts in rates and scopes ofwork
that they considered “reasonable” for purposes of reimbursement in the last three years.
Personnel cuts and cuts in other areas of a budget have been noted with increasing
frequency. Scopes ofwork in light of technical requirements are even in question. The
Agency has cited that costs are “unreasonable” with no provision for explanation or the
detail that might explain the budgeted costs on existing Agency budget forms. Additional
information and explanations of what it takes to do the work often falls on deaf ears.
Even though the Agency says “we’re not the consultants” the plans and budgets are often
modified or rejected based on what they deem as acceptable: Acceptability is based more
on what it will cost rather than what is deemed necessary based on documented practices
and logical courses of action based on engineering principals and common sense. Once
again, firms are faced with the decision to take it or pass on the reduced reimbursement
and allow clients to make up the difference.
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USI works with the Agency to resolve technical issues despite inconsistencies
within the Agency. Denials or rejections on the
119th
day, requests for extensions or
more information, modified budgets for worked needed to complete the project and other
obstacles often require us to perform additional work and amend budgets for extra
personnel hours in order to comply with Agency requests. Therefore, appeals to the
Illinois Pollution Control Board (IPCB) are for budget amounts and not technical issues.
During the March 15, 2004 hearing before the IPCB and others, the Agency stated
that there is a lot of time reviewing budgets and reimbursement. They also stated that
“the majority ofplans and report denials, amendments to plans and reports submitted by
consultants and appealed before the IPCB are related to budget and reimbursement issues
as opposed to technical issues.” USI works through the technical issues with the Agency
only to have budgets cut, modified or denied or amended budgets denied after supplying
additional information for technical approval. This is partially due to changes in what the
Agency deems as appropriate technical information, especially with alternative
technology and also due to differences in Agency reviewers. So, the technical issues get
resolved only to have cuts in budgets after cost estimates were increased dealing with re-
submittals after rejections on the
119th
day orrequests for more information.
On March
15,
2004 during the hearing before the IPCB, the Agency stated that
“more and more administrative time is being spent, not on the oversight ofLUST cleanup
activities, but on the oversight ofbudget ‘approvals.” This is because they have decided
to dictate to consultants and other firms what is “reasonable”. Yet, based on their
testimony, their evaluation and decisions are based on review of documents and not on
actual experience. The Agency stated, “About a year ago we began the process of
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developing a new system..
.“
This system seeks to try and fit all LUST projects into a
mold in which “one size fits all.”
The Agency admitted during the hearing cited above, that the rates they used for
the proposed rules were developed in-house. Yet, there is no provision for variation.
Assuming USI rates are in the data set, it would seem those rates, being previously
reimbursed, assuming they have not changed, would now be “reasonable”.
The Agency has also admitted that there is no list or specific work breakdown
structure in order to create consistency. Yet, USI proposed such a structure over a year
ago and this was ignored. The breakdown was based on phases, tasks and subtasks so
that the Agency could collect consistent data and force consultants and others to fill out
budgets and billing packages the same way and take out the guesswork. The Agency has
stated before that everyone charges differently and it is hard, if not impossible, for them
to make comparisons. USI personnel cuts have many times been due to the fact the
Agency is not used to seeing consulting and contracting man-hours listed within the same
budget. So, for Site Classification or Corrective Action, large cuts were made by the
Agency that USI considered as inappropriate and unsubstantiated. As a result, appeals
get filed.
The Agency also stated “But I would say the numbers that we’re approving for
reimbursement and budgets and reimbursement packages are consistent with the
proposed rules.” I think this is because the rate sheet they have been using over the past
several years consists of the same dollar amounts proposed in Subpart H.
If
owner/operators can only get specific amounts for personnel, unit rates for drilling or soil
remediation, equipment rates, and other costs, approved in budgets set by the Agency, it
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only makes sense that reimbursement packages will be at or below the budget amounts.
If the budgets and reimbursement packages are being dictated by the Agency internal rate
sheet or guidance documents, the logical conclusion is that the numbers would match the
proposed rules that use the same comparative documents. They have been in essence
forcing the data forthe last three years to fit their model. It should be noted that the costs
being approved are in line with what is being proposed, it does not mention how the
proposed rates are in line with what has actually been submitted by owner/operators and
cut.
One person in attendance, as written in the hearing transcripts, stated that they did
not understand how all ofthe information collected was applied, reimbursed and then in
April 2002 everything changes. I agree it appears as stated above that the Agency has
changed in its perceived role in the regulatory process. Making sure costs that are
submitted for reimbursement are reasonable and necessary is good, but collecting raw
data and then deriving a one-size fits all lump sum payment schedule without noting what
is in the scope ofwork is detrimental.
The Agency stated in the proceedings more than once that they relied on 15 years
of experience and review of budgets and reimbursement processes of invoices, etc. It
seems that Agency is dictating what is reasonable and necessary without taking into
consideration the owner/operator, consultant or Professional Engineer certifications.
The Agency continues to state that there are abuses or attempted abuses, so the
Agency wants the Board to adopt Subpart H. Drastic changes in how costs are
reimbursed serves to punish an entire industry instead of singling out those who have
committed the infractions. The Agency in its review of costs and what is reasonable has
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been playing consultant and requests more information, which requires more plans, more
reviews, more budgets, more personnel time, more time, etc. The Agency on more than
one occasion has requested more work without adequate compensation or budget
approval.
The Agency has contended that the IPCB has upheld the proposed rates. Then,
the testimony changed to state that they were unsure if any of the rates had been upheld.
Based on the Illinois Ayers decision, I don’t think their rates would be upheld.
The Agency has stated that there is nothing preventing owner/operators from
proceeding with site investigation work without approved budgets. In reality, most, if not
all, of the LUST sites will not proceed without an approved budget. Yet, the way the
proposed rules read, if you did not plan for every contingency, and you have to submit a
revised plan and budget it will not get reimbursed.
The Agency has stated that there are no standard rates, methodology and
submittals. Yet, this does not take into consideration that each site is different; each
owner/operator may be using a turn-key firm or a consultant that puts together various
subcontractors to complete the work. There are, therefore, many variables and cost
considerations. It seems the Agency looks at the money first and then decides if the
scope of work is adequate. The way the current regulations are written, such as, 732.505
(a) the full technical review
“shall consist of a detailed review of the steps proposed or
completed to accomplish the goals of the plan and to achieve compliance with the Act
and regulations. Items to be reviewed, ~fapplicable, shall include, but not be limited to,
number and placement of wells and borings, number and types of samples and analysis,
results of sample analysis, and protocols to be followed in making determinations. ~
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overallcoal of the technical review for plans shall be to determine if the plan is sufflcient
to satisfy the requirements of the Act and regulations and has been prepared in
accordance with .~enerallyaccepted engineering practices. The overall goal of the
technical reviewfor reports shall be to determine ~fthe plan has been fully implemented
in accordance with generally accepted engineering practices, if the conclusions are
consistent with the information obtained while implementing the plan, and if the
requirements of the Act and regulations have been satisfied.”
The technical review
should be based on its own merits. Then the financial review looks, to determine if the
costs associated with the technical plan are in line.
Based on 732.505 (c),
“Afuilfinancial review shall consist ofa detailed review of
the costs associated with each element necessary to accomplish the goals of the plan as
requiredpursuant 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 plan. 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, and shall not be usedfor corrective action activities in excess of those
necessary to meet the minimum requirements of the Act and regulations.”
It seems that
financial review is trying to figure out how to cut out costs or reduce rates below some
ceiling the Agency has set state wide. Ifthe budget needs to be reduced, then the scope
of work is reduced or cuts are made leaving the plan intact but not enough money to
perform the work. So, the contractor is faced with notifying the owner/operator that the
proposed work cannot be completed as budgeted.
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Another area I would like to address is conversion rates for excavated soil and
backfill. The Agency states that the conversion factor should be
1.5
tons per cubic yard
although it maybe closer to 1.2 or less. A higher conversion factor decreases the yardage
they will reimburse. According to the Civil Engineers Handbook (1983, page 7-77) soils
vary between 1.15 (loose) to over 1.6 (compacted) tons/ cu yd.
Yet, the loose
(excavated) sands, clays, silts, silty clay, etc. vary between 1.15 to 1.2 tons/ cu yd. This
results in a 24 to 30 reduction in the volume that should be paid for. Soils are less in
weight due to excavated yardage not compacted. Therefore, if an owner/operator uses
the actual weight ofsoil disposed at a landfill from scales that indicate the weight in tons,
they can convert to yards. The conversion factor the Agency prescribes is closer to
compacted soils and not excavated soils. There is no bulk density soil numbers from
across the state.
The swell factor the Agency prescribes is
5
which is below what is typical in
calculating soil volume due to expansion after excavation.
Generally accepted
engineering practices dictate that
15
to 20 is more common. Besides, the swell factor
is being used to calculate a budget volume. It is better to slightly over estimate soil
volume so that an amended budget does not have to be submitted if the volume is
underestimated. The other use of swell factor might be used to convert the “loose” soil
volume, calculated from the weight conversion factor, to compute a compacted volume to
compare to the excavation dimensions.
During the hearing on March 15, 2004 the topic ofsample number, sample set and
other statistics terminology was discussed. EPA SW-846 was cited as a reference for
statistical analysis. Despite the fact that the document refers to accurately collecting
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samples for chemical analysis, the need for a representative number of samples, sample
accuracy and precision are still the same. Quoting from SW-846, “Statistical techniques
for obtaining accurate and precise samples are relatively simple and easy to implement.
Some form of random sampling usually achieves sampling accuracy. In random
sampling, every unit in the population has a theoretically equal chance ofbeing sampled
and measured. Consequently, statistics generated by the sample are unbiased estimators
of true population parameters. In other words, the sample is representative of the
population. In the case of determining statewide lump sum payments and time and
material rates, the sample set does not appear sufficient for accurately determining these
numbers. SW-846 also states, “Sampling precision is most commonly achieved by taking
an appropriate number of samples from the population.” The document goes on to say,
“Increasing the number or size of samples taken from a population, in addition to
increasing sampling precision, has the secondary effect ofincreasing sampling accuracy.”
Also, “Sufficient precision is most often obtained by selecting an appropriate number of
samples.”
The hope is that the true mean and sample mean will be accurate, precise and in
alignment. The standard deviation or statistical measure of dispersion is defined as “a
statistical measure of the amount by which a set of values differs from the arithmetical mean,
equal to the square root of the mean of the differences squared.” Arithmetic mean is defined as
“the average ofa set ofnumbers, calculated by adding them together and then dividing their sum
by the number of terms.” The confidence interval is defined as, “expected range of outcome: a
range of statistical values within which a result is expected to fall with a specific probability.”
Precision and accuracy arc the expected outcome assuming the appropriate number of values is
obtained and they are representative ofthe entire population; Otherwise, the confidence level or
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reliability measure as defined as “a measure of how reliable a statistical result is, expressed as a
percentage that indicates the probability of the result being correct.” is diminished.
It is not known if the samples arc representative of the entire population. The question of
the number of sites that were analyzed was brought up in the hearing and was never answered.
Therefore, based on the questions and probable continued questioning, it is apparent that there is
doubt about how well the proposed numbers accurately represent the costs to perform the various
phases and do not take into account the various scopes ofwork, let alone regions ofthe state.
The Agency has stated previously that they use the National Construction
Estimator (CraftsmanBook Company). This may contain some datathat is applicable to
sites but it is mainly for new construction and does not necessarily compare to
environmental work. Picking a $/ft2 for asphalt and then expecting the same price for
concrete is not realistic. Concrete prices vary, as does asphalt depending on where the
site is located. By comparisonthe RS Means, Environmental Remediation Cost Data
contains a variety ofdata for comparison for unit rates or lump sum amounts. This data
is more accurate than picking and choosing specific sites to match the data set in order to
create state wide acceptable costs. Based on a comparison ofthe published personnel
rates, equipment rates, and materials vs. what the Agency deems reasonable, in their
proposed rules, are far below those documented in this pricing guide.
Thank you.
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
)
REGULATION PETROLEUM LEAKiNG
)
UNDERGROUND STORAGE TANKS
)
35 ILL. ADM. CODE 732
)
IN THE MATTER OF:
PROPOSED AMENDMENTS TO:
REGULATION PETROLEUM LEAKING
UNDERGROUND STORAGE TANKS
35 ILL. ADM. CODE 734
PIPE TESTIMONY OF ROBERT J. PULFREY REGARDING THE
ENVIRONMENTAL PROTECTION AGENCY’S PROPOSAL TO AMEND 35 ILL.
ADM. CODE 732 AND 35 ILL. ADM. CODE 734
My name is Robert J. Puifrey. I am a Geologist by profession and have been
employed as such for almost thirty years graduating with a B.S. in Geology from St.
Joseph’s College in, iN and an M.S. in Geology in 1971 from Oklahoma State University
OK. I am currently a Senior Project Manager for United Science Industries, Inc. having
been involved in the environmental investigation and remediation field for fifteen years.
Three of the fifteen years was given to public service as a Hydrologist for USEPA
Region
W
in the RCRA Branch. In years prior to USEPA, I was also employed as a
geologist for the Department of Interior, both Bureau of• Land Management and US
Geological Survey. I state this for the reason that I have firsthand knowledge of what
responsibility a public agency has and how the public sector system is supposed to work.
The entire authority and function of a public agency is given by legislation, i.e.,
by law and, in this particular case, the Statutory Authority ofProtection of Human Health
RECE
WED
CLERK’S OFFICE
JUN 082004
STATE OF
ILLINOIS
Pollution
Control Board
R04-22
(Rulemaking
—
UST)
)
)
)
)
)
)
R04-23
(Rulemaking
—
UST)
Consolidated
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and the Environment. All rules, regulations, policies, guidelines, either proposed or
promulgated are supposed to benefit the public health and the environment. These rules,
regulations, policies, and guidelines are also to provide a standard so that both the
regulated community and regulating authority have a basis on which to proceed. When
these standards are not followed by either community, chaos and confusion result. For
instance, requiring a budget for free product removal when the current rules clearly do
not require such brings confusion between the two parties because two different standards
are being followed. Often times, the only resolution is through the filing of an appeal.
There is a process for Administrative Rule Making and it must be followed. Usurping the
rule-making process by enforcing or applying rules or regulation or standards before they
are published or promulgated will, and has caused a rift between the regulating and
regulated communities given the application oftwo different standards. In addition, as a
public agency, there has to be free and open disclosure of what standards the Agency is
following. The regulated community has a right to know. Nothing is to be kept secret. It
goes with the function ofbeing a “public agency”. It galls me as a former public servant
to see the system ignored or misused.
Having said that, I turn next to address the Agency’s Subpart H proposed basis for
drilling rates. Having been in mining exploration for approximately fourteen years and
the environmental field for fifteen years, I have contracted and supervised most types of
drilling and am familiar with the basis of what drillers charge. The basis on which
drillers charge is highly dependent on the type of lithologies that are encountered and the
type of drilling employed. The cost of drilling unconsolidated materials will be one cost
versus the cost of drilling bedrock due to the type of material involved and the type of
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drilling method required. So too is the type of unconsolidated material, for instance,
drilling in a silty sand is far different than in highly variable materials of clay, silt and
sand and mixtures thereof. This if often the case in Illinois where glacial till is
predominant with thick clay layers interspersed with some sand, possibly gravels, and
silty clay. To compare drilling rates from the State of Texas, Colorado, Oklahoma, and
Arizona with their predominantly uniform lithologies of sand and silt is not at all
comparable to Illinois. Drilling rates from the States of Indiana, Ohio and Michigan are
much more comparable because ofthe presence ofglacial till.
i now turn to address an issue of primary importance, i.e., protection of human
health and the environment. Whether a regulator or an environmental consultant, the
protection ofhuman health and the environment is our purpose and our function by what
we do. As a former regulator, I can safely say that the primary statutory authority ofthe
Environmental Protection Agency is for the protection of human health and the
environment. Somehow, along the way, this has been replaced by protection of the
LUST fund, which has taken precedence over protection of human health and the
environment. What I see as a former regulator, and currently as an environmental
consultant, is the scope ofprojects now driven by monetary factors rather than protection
of human health and the environment. In my professional opinion, the Agency lately
seems to be “minoring on the major points and majoring on ‘the minor points.” Take for
instance, on a number of projects that I am managing which includes sites with
significant levels of soil contamination, the Agency has rejected several Corrective
Action Plans on minor points rather than conditional approval while ignoring the high
levels of soil contamination that need to be removed by excavation. In three separate
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incidents, these sites over time developed free product during the time of Agency
indecision and rejection thereby making a bad situation worse.
I also would like to remind the Agency ofthe time in 1998-99 when the
Superfund Division ofUSEPA was brought before Congress to be chastised in “studying
the problem to death” rather than getting the CERCLA sites cleaned up. As an
environmental consultant, I have a fiduciary responsibility ofprotection ofhuman health
and the environment with the added responsibility ofrecommending using the most
feasible method(s) available at a reasonable cost depending upon the site conditions and
the preference ofthe tank and property owner.
Thank you.
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
)
REGULATION PETROLEUM LEAKING
)
UNDERGROUND STORAGE TANKS
)
35
ILL. ADM. CODE 732
)
iN THE MATTER OF:
PROPOSED AMENDMENTS TO:
REGULATION PETROLEUM LEAKiNG
UNDERGROUND STORAGE TANKS
35
ILL. ADM. CODE 734
PIPE TESTIMONY OF BARRY F. SINK. P.E., REGARDING THE
ENVIRONMENTAL PROTECTION AGENCY’S PROPOSAL TO AMEND
35 ILL. ADM. CODE 732 AND 35 ILL. ADM. CODE 734
My name is Barry Sink. I am a Professional Engineer for United Science
Industries, Inc. located in Woodlawn, Illinois. I have been at United Science Industries,
Inc. since April of2002. Prior employment includes 20 years as a Project Engineer in the
mining industry with Old Ben Coal Company in Franklin County, Illinois and 5 years
experience as a Project Engineer in the cement industry with Lafarge Corporation, Joppa
Plant in Grand Chain, Illinois. I received a B.S. degree in Mining Engineering in 1977
from the University of Missouri-Rolla. I have been a Licensed Professional Engineer in
the State of Illinois since 1980.
Section 734.135(d) of Subpart A of Part 734 requires all plan, budgets, and
reports submitted to contain the following certification from a Licensed Professional
Engineer or Licensed Professional Geologist:
RECENVED
CLERK’S OFFICE
JUN 082004
STATE OF ILLINOIS
POJl~tjo~Control Board
R04-22
(Rulemaking
—
UST)
)
)
)
)
)
)
R04-23
(Rulemaking
—
UST)
Consolidated
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I certify under penalty of law that all activities that are the subject of this plan,
budget, or report were conducted under my supervision or were conducted under
the supervision of another 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 of my
knowledge and belief, the work described in the plan, or budget, or report has
been completed in accordance with the Environmental Protection Act 415 ILCS
5,
35 Ill. Adm. Code734, and generally accepted engineering practices or
principles ofprofessional geology; and that the information presented is accurate
and complete. I am aware that 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 Section 44 and 57.17 of the Environmental
Protection Act 415 ILCXS 5/44 and 57.17.
It is the Licensed Professional Engineer’s duty to embrace the Engineer’s Creed and to
work diligently under the Code of Ethics for Engineers. The above certification
acknowledges that members of the Profession are expected to exhibit the highest
standards of honesty and integrity. Licensed Professionals should hold paramount the
safety, health and welfare of the public, avoid deceptive acts, and conduct themselves
honorably, responsibly, ethically, and lawfully so as to enhance the honor, reputation and
usefulness ofthe profession. As a Licensed Professional Engineer in the State of Illinois,
I do my best to uphold the integrity ofthe Profession, act for each employer or client as a
faithful agent or trustee, and abide by the applicable laws and standards of the State of
Illinois. That is not an easy task; however it is an honorable and worthy standard and
goal.
It is my testimony that Subpart H: Maximum Payment Amounts; Section 734.845
Professional Consulting Services will make the ethical Professional hesitant to perform
professional services associated with LUST projects. The Subpart H maximum payment
amounts force the Professional Engineer and/or Professional Geologist to carefully
evaluate the financial ability ofthe owner/operator to pay professional fees which exceed
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the “one time lump sum” reimbursement. Only then can the professional provide
professional services designed to protect the safety, health and welfare of the public.
Professionals are “normal” members of society who have families to support and lives to
live. The one time lump sum payment approach for reimbursement of professional’
services associated with the preparation and submittal ofplans, reports, and budgets is an
over-simplification of the professional process associated with the remediation of LUST
sites. The Agency’s assumptions associated with this “lump sum approach” suggest the
following:
• That the process of remediation is strictly a “cook book” process. That each
LUST site is “typical” in nature and can be easily matched to a remediation
strategy that is 100 effective when obtaining remediation objectives. All the
professional has to do is “plug and chug”.
• That each owner/operator is “typical” with the same personality, goals, and
objectives for every LUST property. That an owner/operator is relatively
“detached” from the remediation process and that communication between the
Professional and owner/operator is an “insignificant” cost factor. That the
professional guidance for an individual owner/operator who owns one LUST site
in a rural setting is the same as for the corporation who owns multiple LUST
sites.
• That the extent and the magnitude ofthe associated contamination do not affect
the amount of work required to develop a remediation strategy with the
owner/operator and then to design the plans. That the professional effort takes
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exactly the same effort no matter the size of the property, size and magnitude of
the associated plume, number ofoffsite properties, or site specific complexities.
• That environmental remediation design is a perfect science in which the end
result of each corrective action activity proposed and approved in a plan will
perform as intended, always meeting the stringent objectives necessary for
closure. The assumption is that an amended plan should never be necessary to
meet the objective and satisfy the goals ofthe owner/operator.
• The assumption is that the site investigation based upon the site specific
information provided by the owner/operator; the FOIA information, the
intermittently spaced soil borehole logs, the monitoring wells, and modeling
provides a “perfect” picture of the LUST site. The assumption is that analytical
results from the closure samples collected during Corrective Action phase are
always ‘consistent with the site investigation and that they never provide any
“new data” which could affect the remediation plan. Unknown tanks, utilities,
geologic conditions are never discovered during the remediation process. The
site investigation provides an accurate representation of the LUST site for the
professional.
• That each owner/operator, offsite property owner, municipality, and highway
authority readily embraces the tools of TACO to raise the remediation objective.
• That the language and potential financial liabilities dictated by DOT within a
Highway Authority Agreement are acceptable to an owner/operator.
• That the geology ofeach site is always “typical” and easily interpreted.
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• That the location of the LUST site is not a significant factor in the cost of
professional services. That the cost for professional design for a LUST site in
downtown Chicago is identical to a LUST rural site located on the banks of the
Mississippi River.
The assumptions associated with the “one size fits all” lump sum approach to
professional services, as proposed by the Agency in Subpart H, places any Licensed
Professional of integrity in a serious dilemma. The options for the Licensed Professional
are limited:
• Accept a contract to provide professional services only after evaluating the
financial condition of the owner/operator. Perform the professional services
necessary in an ethical and responsible manner passing on any fees that exceed
the Agency “lump sum” to the owner/operator.
• Perform the professional services in a responsible manner and donate the excess
fees which are not reimbursable to the owner/operator as a gift. Don’t worry
about making a profit, feeding the family, or paying the bills.
• Limit the hours dedicated to a LUST site, hope for the best, and be prepared to
terminate professional services when the owner/operator’s money runs out.
• Get out of the LUST business all together and leave it for those ofless integrity.
The unacceptable options for the Licensed Professional are:
• Coerce the owner/operator who has limited financial resources to accept
institutional controls in order to save money, laying aside the real desire of the
owner/operator, the future use of the property, the environment, and public
safety.
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• Use deceptive practices in order to make a profit.
The testimony given by Mr. Harry Chappel that the size ofthe LUST site has no
effect upon the “Scope ofProfessional Services” is not true and exemplifies the failure of
the lump sum fees proposed in Subpart H to provide the equitable reimbursement for
Professional Services.
I would also like to offer testimony concerning engineered barriers. Section
742.200 (Definitions) ofSubpart B (General) ofPart 742 (Tiered Approach to Corrective
Action Objectives) defines an engineered barrier as follows:
“Engineered Barrier” means a barrier designed or verified using engineering
practices that limits exposure to or controls migration of the contaminants of
concern.
This definition is very clear that any barrier utilized to protect the human health and
environment by preventing the completion of an appropriate exposure pathway must be
“designed or verified using engineering practices”. The utilization of an engineered
barrier as provided within TACO is an important tool to owner/operators who seek to
effectively remediate their LUST site.
Section 742.1100 (Engineered Barriers)(d) and (e) of Subpart K (Engineered
Barriers) of Part 742 (Tiered Approach to Corrective Action Objectives) requires the
effective maintenance of an engineered barrier as follows:
d)
Any no further remediation determination based upon the use of
engineered barriers shall require effective maintenance of the engineered
barrier.
The maintenance requirements shall be included in an
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institutional control under Subpart J. This institutional control shall
address provisions for temporary breaches of the barrier by requiring the
following if intrusive construction work is to be performed in which the
engineered barrier is to be temporarily breached:
1)
The construction workers shall be notified by the site
owner/operator in advance ofintrusive activities. Such notification
shall enumerate the contaminant of concern known to be present;
and
2)
The site owner/operator shall require construction workers to
implement protective measures consistent with good industrial
hygiene practice.
e)
Failure to maintain an engineered barrier in accordance with that no
further remediation determination shall be grounds for voidance of the
determination and the instrument memorializing the Agency’s no further
remediation determination.
Section 734.630 (Ineligible Corrective Action Costs) (tt) of Subpart F (Payment
From the Fund) ofPart 734 limits eligible costs associated with and engineered barrier as
stated:
“Costs associated with the installation of concrete, asphalt, or paving as an
engineered barrier to the extent they exceed the cost of installing an engineered
barrier constructed ofasphalt four inches in depth. This subsection does not apply
if the concrete, asphalt, or paving being used as an engineered barrier was
replaced pursuant to Section
734.625(a)(l6)
ofthis part.”
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It seems possible that this reimbursement rule was drafted by individuals associated with
the asphalt industry. The engineering characteristics of asphalt and concrete are not
identical. Site specific conditions dictate the design ofengineered barriers including the
construction materials. This reimbursement rule will limit the utilization of engineered
barriers as a remediation tool based upon the owner/operators out-of-pocket expenses
associated with a properly designed engineered barrier. The construction material and
thickness of an engineered barrier are determined by the property use, traffic conditions,
and maintenance issues associated with the engineered barrier. An engineered barrier for
a LUST site which will see only pedestrian traffic will be designed to handle pedestrian
traffic. An engineered barrier for a LUST site at commercial property which will see
passenger car traffic will be designed to handle the wheel loading of the passenger car.
An engineered barrier for a LUST site at a property which will see semi trailer traffic
must be designed to handle the wheel loading of a loaded semi trailer. Other factors to
be considered include the type of heavy equipment utilized to unload a semi trailer and
the long term durability/maintenance cost for the engineered barrier. The barrier must be
designed to meet the site specific conditions.
Section 734.840 (Replacement ofConcrete, Asphalt, or Paving....) (a) of Subpart
H (Maximum Payment Amounts) limits the maximum payment for four inches of
concreted, asphalt, or paving to $ 2.18 per square foot. Owner/Operators who would like
to consider an engineered barrier at many sites will have two options:
• Pay any additional engineered barrier costs over $2.18 per square foot out of
pocket. (The cost a 6” thick concrete engineered barrier for an industrial site in
Southern Illinois is reasonable at $4.18 per square foot, ofwhich only $2.18 per
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square foot would be eligible for reimbursement. The total cost a typical 30’ X
50’
barrier would be $6,270. The reimbursable cost would be $3,720 and the out
ofpocket expense to the owner/operator for would be $3,000.)
• Choose an alternative method of remediation which will be eligible for full
reimbursement even thought it may be much more costly to implement.
(Utilization of conventional technology for excavation, disposal, and backfill of
the same 30’ X
50’
area to a depth of 10 feet would be
$115,500.
The cost would
be 100 reimbursable with no out ofpocket expense to the owner/operator.
My testimony is that the maximum payment for reimbursement ofengineered barriers
will limit the utilization ofTACO by owner/operators and will result in poor stewardship
ofthe LUST fund. The “cookie cutter” approach to reimbursement for engineered
barriers as proposed by the Agency is not consistent with the definition of an
“engineered” barrier which is to be designed to be protective ofhuman health and the
environment. The Agency has falsely assumed that four inches ofasphalt will always
provide a properly engineered barrier.
Thank you.
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