NOTICE OF FILING
PROOF OF SERVICE
Section 732.100 Applicability
Section 734.100 Applicability
Section 734.215 Free Product Removal
Section 734.510 Standards for Review of Plans, Budgets, or Reports
Section 734.800 Applicability
Section 734.820 Drilling, Well Installation, and Well Abandonment
Section 734.825 Soil Removal and Disposal
Section 734.830 Drum Disposal
Section 734.835 Sample Handling and Analysis
Section 734.840 Concrete, Asphalt, and Paving; Destruction or Dismantling
and Reassembly of Above Grade Structures
Section 734.845 Professional Consulting Services
Section 734.850 Payment on Time and Materials Basis
Section 734.855 Unusual or Atypical Conditions
Section 734.860 Handling Charges
Section 734.865 Review of Payment Amounts
Section 734.APPENDIX C Backfill Volumes
Section 734.APPENDIX D Sample Handling and Analysis
Chemical
Geo-Technical
Metals
Other
Section 732.APPENDIX E Personnel Titles and Rates
Section 734.APPENDIX F Transportation and Mobilization Costs
Mobilization to and from the site for personnel shall be paid as follows:
Per Diem:

R~CE~VED

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARIAUG

32004

IN THE MATTER OF:

PROPOSED AMENDMENTS TO:

REGULATION PETROLEUM LEAKiNG

UNDERGROUND STORAGE TANKS

ILL. ADM. CODE 732

IN THE MATTER OF:

PROPOSED AMENDMENTS TO:

REGULATION PETROLEUM LEAKiNG

UNDERGROUND STORAGE TANKS

ILL. ADM. CODE 734

To:

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100W. Randolph, Suite 11-500

Chicago, Illinois 60601

)

STATE OF ILLINOIS

PoUutiofl Control Board

R04-22

(Rulemaking

—

UST)

R04-23

(Rulemaking

—

UST)

Consolidated

Ms. Marie E. Tipsord

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph, Suite 11-500

Chicago, IL 60601

NOTICE OF FILING

Now comes CLAIRE A. MANNING, on behalf ofthe Professionals ofIllinois for the

Protection ofthe Environment, PIPE, and files with the Board, via facsimile, with permission, on

August 2, 2004, with hard copy placed in overnight mail on that same date, the attached copies

ofPIPE’S PROPOSED ALTERNATE Li~

CLAIRE A. MANNING

Posegate & Denes, P.C.

111 N. Sixth Street, Suite 200

Springfield, Illinois 62701

(217) 522-6152

Printed

un Recycled Paper in Accordance

with

35 III, Adm. Code 101.202 and 101. 302(g)

PROOF OF SERVICE

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

PIPE’S PROPOSED ALTERNATE LANGUAGE, was served on the individuals as listed be-

low, by mailing via the United States postal service, Springfield, Illinois on August 3, 2004.

Gina Roccaforte

Kyle Rominger

JEPA

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

BarbaraMagel

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.

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

Thornburg

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. Stemstein

Office ofthe Attorney General

Environmental Bureau

188 West Randolph,

20th

Floor

Chicago, IL 60601

Printed on Recycled Paper in Accordance with 35 III. Adm. Code 101.202 and lOt. 302(g)

Tom Herlacher

Herlacher Angleton Associates, LLC

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. Wacker Dr., 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 Fun, 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

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. Altorfer Drive

Peoria, IL

61615

Thomas M. Guist, PE

Atwell-Hicks, Inc.

940 B. Diehl 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

Printed on Recycled Paper in Accordance with 35 III. Adni. (‘ode 1)1.202 and 101. 302(g)

Richard Andros, PE

Environmental Consulting &

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

CollinW. Gray

SEECO Environmental Services, Inc.

7350 Duvon Drive

Tinley Park, IL 60477

Tina Archer

Greensfelder, Hemker & Gale

10 S. Broadway, Suite 2000

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

George Moncek

United Environmental Consultants

119 B. Palatine Road, Suite 101

Palatine, IL 60067

David Rieser

McGuire Woods LLP

77 W. Wacker, Suite 4400

Chicago, IL 60601

Secor International, Inc.

400 Bruns Lane

Springfield, IL 62702

Eric Minder

Caterpillar, Inc.

100 N.E. Adams St.

Peoria, IL 61629

Daniel Caplice

K-Plus Environmental

600 W. Van Buren St.,

Chicago, IL 60607

Suite 1000

CLAIRE A. MANNING

111 N. Sixth Street, Suite 200

Springfield, Illinois 62701

(217) 522-6152

(217) 522-6184 (FAX)

clai rc(~poseqate-denes.com

Printed on Recycled Paper in Accordance with 35 III. Adm. Code 101.202 and 101. 302(g)

RECE

WED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CLERK’S OFFICE

iN THE MATTER OF:

)

AUG

32004

PROPOSED AMENDMENTS TO:

)

R04-22

Pollution

STATE

Control

ILLINOIS

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 JILL. ADM. CODE 734

)

PIPE’S PROPOSED ALTERNATE LANGUAGE

Now comes Professionals ofIllinois for the Protection ofthe Environment, PIPE,

by and through its attorney, CLAIRE A. MANNING, and offers the proposed alternate

language for the Board’s consideration in the above-referenced rulemaking.

BACKGROUND

The Professionals ofIllinois for the Protection ofthe Environment (PIPE) has par-

ticipated in the Board’s rulemaking in this matter since its formation as a Not-for-Profit

Association representing the interests ofbusinesses involved in the remediation ofunder-

ground storage tank sites. Additionally, PIPE, along with a workgroup of other associa-

tions, such as the American Council ofEngineering Companies (“ACEC”) (formerly

known as the Consulting Engineers Council of Illinois, or “CECI”), the Illinois Society

for Professional Engineers (ISPE) and the Illinois Petroleum Marketer’s Association

(IPMA), has met with the Illinois Environmental Protection Agency (“IEPA” or

“Agency”) in an attempt to refine the IEPA’s rule proposal.

Printed on Recycled Paper in Accordance with 35 Ill. Adm. Code 101.202 and lOt. 302(g)

Those meetings have been positive and, to a degree, productive. It is PIPE’s un-

derstanding that, as a result ofthe meetings, and testimony presented at hearing, the IEPA

will be offering, concurrent with PIPE’s filing here, a Third Errata suggesting various

changes in the rule proposal. In large part, PIPE expects to be supporting the Agency’s

proposed changes. However, there remain serious problems with the proposed rules, and

the LIST program, which the consulting community asks that the Board address prior to

moving forward with these rules. For the Board’s convenience, PIPE offers alternative

regulatory language that attempts to address those concerns. It is PIPE’s understanding

that this alternate language will be supported by the other members ofthe workgroup that

has met with the Agency, the ACEA, ISPE and IPMA.

MERGER OF PART 732 AND PART 734

While not a serious concern ofPIPE’s, and not an issue discussed in any detail

with the IIEPA, PIPE questions the necessity ofthe filing ofthese amended rules in two

separate Parts, Part 732 and Part 734. It seems that, with a certain degree ofwordsmith-

ing on the part ofthe Board, the rules could be merged into one set ofrequirements to

apply accordingly. As proposed, two separate sets ofregulatory requirements, which es-

sentially mirror each other in many respects, may cause an unnecessary degree of confu-

sion, especially as future amendments are proposed and promulgated.

SUBPART A: GENERAL PROVISIONS

Applicability.

The IEPA’s applicability clauses, contained in Section 732.100 and

Section 734.100, appear to require an unlawful retroactive application ofamendments

that are just now being proposed. While the IEPA is expected to present language to ad-

dress this issue, PIPE has not had the opportunity yet to view that language and ensure

Printed on Recycled Paper in Accordance with 35111, Adm. Code 101.202 and lOt. 302(g)

that it cannot be read as an attempted retroactive application ofregulatory requirements.

Thus, in this filing, PEPE suggests a modification intended to clarify that the amendments,

particularly those that relate to obligations and cost, do not take effect until after the pro-

posed regulations are promulgated. PIPE would welcome any wordsmithing the Board

feels appropriate to get to this end. Specifically, PIPE proposes the below changes, in

bold, to the Agency’s proposal:

Section 732.100

Applicability

1993, may s~scttc

tion 732.101.

Owners or operators subject to this Part by law or by election shall pro-

ceed expeditiously to comply with all requirements ofthe Act and,

upon

their effective date,

these regulations and to obtain the No Further Reme-

diation Letter signifying final disposition ofthe site for purposes ofthis

Part. The Agency shall not require retroactive compliance with amend-

ments to this Part.

The Agency shall not require retroactive compli-

ance with the amendments to this Part. Any work performed pursu-

ant to budgets or corrective action plans that have been approved

This Part is

intended to implement amendments to the Environmental

Protection Act that were contained in P.A. 92-0554, which became law

on June 24, 2002, and P.A. 92-0735. which became law on July 25,

2002. The relevant statutory amendments applyapplies

to owners or

operators ofany underground storage tank system used to contain petro-

leum and for which a release was reported to IEMA on or after September

23, 1994, but prior to June 24, 2002, in accordance with regulations

adopted by the OSFM. It These

amendments apply

applies to owners or

operators that, prior to June 24, 2002, elected to proceed in accordance

with this Part pursuant to Section 732.101 ofthis Part. This Part applies to

owners or operators ofany underground storage tank system used to con

tam petroleum and forwhich a release has been confirmed and required to

be reported to Illinois Emergency Management Agency (IEMA) on or af

ter September 23, 1994 in accordance with regulations adopted by the Of

flee of State Fire Marshal (OSFM). These amendments do

does not

apply to owners or operators ofsites for which the OSFM does not require

a report to JEMA or for which the OSFM has issued or intends to issue a

certificate ofremoval or abandonment pursuant to Section 57.5 ofthe ~

Environmental Protection Act (Act) 415 ILCS

5/57.5.

Owners or opera

tors ofany underground storage tank system used to contain petroleum

and for which-a release

was

reported to JEMA on or before September 12,

proceed in accordance with this Part pursuant

tn ~

Printed on Recycled Paper in Accordance with 35

Ill.

Adm. Code 1(11.2(12 and

tIll. 3(12(g)

prior to the effective date of these rules shall be paid in accordance

with such approval.

The Agency may use its authority pursuant to the

Act and Section 732.105 of this Part to expedite investigative, preventive

or corrective action by an owner or operator or to initiate such action.

Section 734.100

Applicability

This Part

is intended to implement amendments to the Environmental

Protection Act that were contained in P.A. 92-0554, which became law

on June 24, 2002 and P.A. 92-0735, which became law on July 25,

2002. The relevant statutory amendments apply

applies to owners or

operators ofany underground storage tank system used to contain petro-

leum and for which a release is reported to JEMA on or after June 24,

2002, in accordance with OSFM regulations.

These amendments do It

dees not apply to owners or operators of sites for which the OSFM does

not require a report to JEMA or for which the OSFM has issued or intends

to issue a certificate ofremoval or abandonment pursuant to Section

57.5

ofthe Act. Effective on

the date of the filing of this Part, this Part ap-

plies to

the owners and operators to whom the statutory amendments

referenced above apply.

Owners or operators ofany underground storage tank system used to con-

tain petroleum and for which a release was reported to the proper State au-

thority prior to June 24, 2002, may elect to proceed in accordance with

this Part pursuant to Section 734.105 ofthis Part.

Upon the receipt of a corrective action order issued by the OSFM on or af-

ter June 24, 2002, and pursuant to Section 57.5(g) ofthe Act, where the

OSFM has determined that a release poses a threat to human health or the

environment, the owner or operator of any underground storage tank sys-

tem used to contain petroleum and taken out of operation before January

2, 1974, or any underground storage tank system used exclusively to store

heating oil for consumptive use on the premises where stored and which

serves other than a farm or residential unit, shall conduct corrective action

in accordance with this Part.

Owners or operators subject to this Part by law or by election shall pro-

ceed expeditiously to comply with all requirements ofthe Act and,

upon

their effective date,

these regulations and to obtain the No Further Reme-

diatión Letter signifying final disposition of the site for purposes ofthis

Part.

The Agency shall not require retroactive compliance with this

Part. Any work performed pursuant to budgets or corrective action

plans that have been approved prior to the effective date of these rules

shall be paid in accordance with such approval. The Agency may use

its authority pursuant to the Act and Section 734.125 ofthis Part to expe-

Printed

on Recycled Paper in Accordance with 35 Ill. Adm. Code lOt .202 and 101 . 302(g)

dite investigative, preventive, or corrective action by an owner or operator

or to initiate such action.

Definitions.

PIPE proposes that the following definition be included in the defini-

tion section ofboth Parts, at Section 732.103 and Section 734.115:

“LIST Remediation Applicant” or UST-RA” means any person seeking to perform

orperforming investigation or UST remedial activities under Title XVI ofthe

Act, including the owner or operator ofthe site or persons authorized by law or

consent to act on behalfofor in lieu of the owner or operator ofthe site.

This definition is drawn from an almost identical provision in Board rules regarding the

Site Remediation program. The Site Remediation program, which has earned an excel-

lent, nation-wide reputation for its practical and expeditious approach to clean-up ofIlli-

nois brownfield sites, recognizes that while liability for contamination may lie with the

owner ofthe site, responsibility for interfacingwith the Agency on questions concerning

the propriety ofremediation almost always rests with the consultant the owner has hired

to remediate the property, the Remediation Applicant.

In the UST program, it is clear that owners and operators routinely contract out

the responsibility for remediating the LIST site to a consultant as well and, as a practical

matter, it is this professional applicant (an engineer or geologist) who deals with the

Agency and who assumes the responsibility ofremediating the site in a reasonable and

environmentally protective maimer. Instead ofsuggesting there is something “untoward”

in the assumption ofthis responsibility

(Illinois Ayers Oil Company, Inc.

Illinois Envi-

ronmental Protection Agency,

PCB 04-03-214, Agency Surreply, June 6, 2004), the pro-

gram would work much more effectively if the Agency simply recognizes that these con-

sultants, like brownfields remediation applicants, are “persons authorized by law or con-

sent contract law and agency law to act on behalfofor in lieu ofthe owners ofthe site.”

Printed on Recycled Paper in Accordance with 35 III. Adm. Code 101.202 and 101. 302(g)

To the extent that the Board believes that the word UST-RA should be woven into

the regulations at various places, PIPE would welcome the Board doing so.

For the same reasons expressed above, PIPE proposes amending Section 734.135

All plans, budgets, and reports shall be signed by the owner or operator

and list the owner’s or operator’s full name, address, and telephone num-

ber and, if the owner or operator has consented to the services of an

UST-RA to conduct the remediation, the forms shall so state and be

signed by the UST-RA in addition to the owner or operator.

Data Collection and Plans, Budgets and Reports.

PIPE also proposes, forthe

Board’s consideration, an amendment to Section 734, to be placed at Section 734.135 (a)

or, alternatively, as a new Section 734.140, which would require that the IEPA gather

data and develop efficiencies in its UST program. Throughout its testimony at hearing,

the IEPA asserted that this rule is proposed, in large part, as a cost containment measure,

to protect the UST Fund. PIPE certainly supports the Agency in its efforts to protect the

fund since it the fund is the fiscal mechanism for which the State ofIllinois ensures that

money will be available for its intended purpose: to remediate UST sites to an environ-

mentally acceptable level. PIPE has asserted to the IEPA, and to the Board, that this is a

shared and common goal ofthe parties.

However, PIPE believes that the IEPA’s proposal falls far short ofthis goal.

First, the proposal is not based upon any statistically reliable data concerning the “going

rate” or “usual and customary” costs in Illinois concerning the various items for which

the IEPA seeks containment and reductions. Historically, the Board does not promulgate

a regulatory number that has been proposed, and justified, on the basis of”a file pulled

here and there.” Yet, in this rulemaking, that is what is essentially before the Board as

Printed on Rccyctcd Paper in Accordance with 35 Ill. Adm. Code 1(11.202 and lOt. 302(g)

JEPA justification for its numbers. Indeed, the IEPA maintained at hearing that, short of

the various individual remediation files, it does not keep records ofcost data relevant to

UST remediation (how much was spent in what areas, forwhat projects, for what types of

remediation, for what aspects ofthe remediation, etc.). Nor, apparently, does it keep (or

publish) detailed data relevant to how many UST sites are yet to remediated, where they

are located, and what stage or severity they maybe in.

Further, while various individuals testified to the inefficiencies ofthe current pro-

gram, with its multi-levels ofreview and time-consuming process ofrejection and appeal,

the proposal does not address those inefficiencies. While proposed Section 734.135 al-

lows the Agency to receive forms in electronic format, which would undoubtedly result

in vast efficiencies, as well as an effective data collection mechanism, the section does

not commit the Agency to develop such electronic filing system or database.

The UST Fund has collected Seventy-Eight Million Dollars ($78,000,000.00) in

revenue in Fiscal Year 04 alone, approximately a Twelve Million Dollar

($12,000,000.00) increase from last fiscal year. During this time, there has been a steady

corresponding increase in the costs ofthe fund’s administration. (See Exhibit 76 column

entitled “IEPA Operations”). Nonetheless, at the same time the fund is increasing its

revenue and the costs of its administration, the monies paid out in remediation, the very

purpose

for the fund’s creation, have been

decreasing.

In fact, the IEPA has paid Seven

Million Dollars ($7,000,000.00) less in reimbursement this year, even though the state

collected substantially more revenue. Moreover, this rule is proposed with the assertion

that further decreases (in the costs of remediation) are required to protect the fund.

Printed on Recycled Paper in Accordance with 35 III. Adm, Code 101202 and tOt. 302(g)

While PIPE recognizes the propriety ofdeveloping reasonable rates forcertain

identifiable tasks related to LIST remediation, PIPE also asserts that the state needs to

take stock ofthe costs related to both the administration and implementation ofthis pro-

gram. It can do so by a requirement, and commitment on the part ofthe IEPA, that it col-

lect relevant data and promote filing and review efficiencies. Since the IEPA has money

available to it, from the fund itself, as well as from the USEPA, PIPE proposes the fol-

lowing language be inserted either in Section 734.135 or as a new Section 734.140.

Section 734.135

Form

and

Delivery of

Plans, Budgets, and Reports;

Sig-

natures

and Certifications

All plans, budgets, and reports shall be submitted to the Agency on

forms prescribed and provided by the Agency and, if specified by the

Agency in writing, in an electronic format.

The Agency shall create an

electronic database that will allow for electronic filing of plans, budg-

ets and reports; collect and maintain data relevant to costs and reme-

diation of sites, including costs that are usual and customary in the

clean-up of such sites, as well as data related to the number and sever-

ity of sites yet to be remediated; and provide for expeditious review

and payment of claims that meet the requirements of this Part.

This language should not only allow for a better administration of the UST pro-

gram and fund, it will also allow for a comprehensive database ofrelevant and significant

information which will be available to the Board, for its review in promulgating rules the

next time the JEPA proposes that the Board adopt specific rules applicable to this pro-

gram.

SUBPART B: EARLY ACTION

Section 734.215.

PIPE has pointed out, in testimony, that various parts ofthe

IEPA’s proposal are problematic in that they provide for an over-prescriptive approach to

IEPA review othe technical judgment of the remediation professional who, by statute,

l’ruited on Recycled Paper in Accordance witlt 35 Ill. Adrn. Code 1(11.202 and 1(11. 31)2(g)

must be a licensed professional engineer or licensed professional geologist and must cer-

tify that the work was required to address the contamination at the site. This is especially

onerous when the IEPA review, and potential rejection ofthe LPE or LPG’s judgment,

may very well be conducted by an EPA project manager who does not have similar tech-

nical credentials.

Nonetheless, the interests of the environment, as well as the fund, are not well

served by such an overly prescriptive approach. PIPE understands that the IEPA’s Third

Errata, which will be filed concurrently with PIPE’s proposed language changes, will ad-

dress some ofPIPE’s concerns in this regard. Nonetheless, PIPE suggests the following

specific change to Section 734.215, which is intended to protect and give site-specific

latitude to the remediation professional.

Section 734.215 Free Product Removal

Under any circumstance in which

Where conditions

at a site indicate the

presence offree product, owners or operators shall remove

such

free

product,

as required to address the health and safety of the site, e~—

ceeding one eighth ofan inch in depth, or present as a sheen on groundwa

ter in the tank removal excavation or on surface water, while initiating or

continuing any actions required pursuant to this Part or other applicable

laws orregulations.

PIPE also proposes certain changes to this section, and others like it (which are

more specifically addressed below), with the intention of providing clarity, and greater

efficiency, to the claims review and payment process. Thus, throughout these rules, for

clarity, PIPE suggests that the IEPA phraseology “maximum payment amounts” be

changed to “reimbursable costs.” The first time this language appears in the text ofthe

rules is in Section 734.215(d). Quite simply, the phraseology “maximum payment

amounts” is both confusing and a misnomer, given that Sections 732.855 and 734.855

Printed on Recycled Paper in Accordance with 35111, Adm, Code 1(11.2(12 and 101. 302(g)

allow for the reimbursable costs to be exceeded under certain circumstances. Thus, the

costs set forth in Subpart H are not always “maximum” and to denote them such is mis-

leading. Further, the phraseology “reimbursable costs” is more consistent with the rest of

the rules, and the history ofthe program, where “eligible corrective action costs” and “in-

eligible corrective action costs” have become standard vernacular.

Also for clarity, PIPE proposes that wherever the phraseology “the Agency may

require” appears in the context ofa phrase obligating the owner or operator to fulfill an

obligation, that the Board clarify when and under what circumstances such discretionary

requirements will come into play. Without such clarification, the owner or operator, or

UST- RA, risks submitting a plan only to have that plan rejected because the Agency has

exercised its discretion to require something further. In other words, if the Agency is go-

ing to require something as part ofthe submittal process, these rules ought to make such

requirement clear. Again, the first time this troublesome language appears is in Section

734.215.

Thus, with the two changes referenced above, Section 734.2

15(d)

(as well as the

corresponding section in Part 732):

Any owner or operator intending to seek payment from the Fund shall, prior to

conducting free product removal activities more than 45 days after the confirma-

tion ofthe presence of free product, submit to the Agency a free product removal

budget with the corresponding free product removal plan. The budget shall in-

clude, but shall not be limited to, a copy of the eligibility and deductibility deter-

mination ofthe OSFM and an estimate of all costs associated with the develop-

ment, implementation, and completion of the free product removal plan, exclud-

ing handling charges. The budget should be consistent with the eligible and ineli-

gible costs listed in Sections 734.625 and 734.630 ofthis Part and the maximum

payment amounts

reimbursable costs

set forth in Subpart H ofthis Part. As part

ofthe budget the-Agency may require

The budget shall include

a comparison

between the costs ofthe proposed method of free product removal and other

methods offree product removal.

l’rinted oti Recycled I’aper in Accordance with 35

Ill. Adm. Code 1(11.202 and 1(11. 302(g)

Board Note.

Further, in the Early Action sections ofboth these parts, and

throughout these rules, there is contained a “Board Note” that appears to be left over from

the last Board proceeding concerning these rules. These Board notes warn the reader that

full payment for all costs incurred might not be forthcoming.

Given the context of these rules, and the IEPA’s stated intention that these rules

are a comprehensive set of expectations ofactivities and designated payment amounts for

those activities, these Board notes are, for the most part, obsolete. Their retention causes

confusion in the context of these new rules. In other words, the rules themselves should

clearly state the IEPA’s expectations and the costs the EPA will reimburse for fulfilling

those defmed expectations. Ifthey do, as they should, there should no longer be any rea-

son for these Board notes.

Processing ofFree ProductRemoval Requests.

PIPE also proposes that the

Board tighten the vague language contained in this section concerning the IEPA’s ap-

proval timeframe (which is currently undefined) and the owner or operator’s payment

expectation (which appears to be: clean up free product in advance of an Agency ap-

proval only at the risk ofnot being reimbursed). Free product may pose a significant and

immediate environmental risk. The IEPA should commit to reviewing a free product

submittal plan within a very short timeframe ofthe plan’s receipt and, if it doesn’t ap-

prove the plan within the designated timeframe, the owner and operator should be al-

lowed to move ahead to remove the environmental hazard and expect payment for the

cost of doing such.

Thus, PIPE proposes the following change in Section 734.215(e) and (g) and

similar changes in the corresponding sections ofPart 732, so that it reads as follows:

Printed oti

Recycled Paper

in Accordance with

35 Ill. Adm, Code 101,21)2

and tOt.

302(g)

The Agency shall expeditiously process the free product removal plan. If

the Agency has not approved or rejected the plan within 21 days ofits re-

ceipt, the owner and operator shall proceed with free product removal as

set forth in the plan and the reasonable associated costs ofsuch removal

shall be reimbursed.

If, following approval of any free product removal plan or associated

budget, an owner or operator determines that a revised plan or budget is

necessary in order to complete free product removal, the owner or operator

shall submit, as applicable, an amended free product removal plan or asso-

ciated budget to the Agency for review. The Agency shall expeditiously

review the amended free product removal plan or associated budget. If the

Agency has not approved or rejected the plan or budget within 21 days of

its receipt, the owner and operator shall proceed to remove the free prod-

uct as set forth in the amended plan and the reasonable associated costs of

such removal shall be reimbursed.

SUBPART E: REVIEW OF PLANS, BUDGETS, OR REPORTS

Much testimony was elicited at hearing concerning the fact that the Agency’s

UST review process itself is overly burdensome, too costly and unfairly balanced in favor

ofthe Agency. PIPE and the workgroup have not been able to convince the Agency to

make any efficiency or cost saving changes regarding this process in these rules. While

PIPE is grateful for the Agency’s agreement to create an Advisory Committee, which will

include PIPE and the other associations who have been meeting with the Agency, that

Advisory Committee will not be in a position to address the procedural deficiencies evi-

dent in this process but, in this proceeding, the Board is.

Heretofore, the LIST review process followed closely the Agency and Board’s

permit review process but, as experience and history indicate, these traditional permit re-

view processes do not provide a proper procedural overlay for the LIST reimbursement

review process. This is especially true given the recent statutory change that allows the

IEPA’s non-action within the required statutory timeline to act as a

denial

of the re-

Printed on Recycled Paper in Accordance with 35 III. Adrn, Code 101.202 and lOt. 302(g)

quested approval or reimbursement, as opposed to an

approval

ofthe request, as it is in

the permit process.

There are other distinctions as well. First, in the permit process, the permitee is

generally able to operate under an existing permit. In the UST process, the applicant is

essentially stymied until the Agency acts favorably upon its request or the Board reverses

the Agency’s position. Second, in the permit process, the Agency is required to issue a

Wells

letter prior to denying the permit request, suggesting the reasons for the intended

delay and allowing the permit applicant an opportunity to respond. (See

Wells Manufac-

turing Co., v. Illinois E.P.A. 552

N.E. 2d 1074,

195

Ill. App. 3d

593,

142 Ill. Dec. 333,

(i~~

Dist. 1990). Third, the typical denial ofa UST applicant’s request includes the phra-

seology, “exceeds the minimum requirements of the Act” without any further explana-

tion, even when the matter in dispute concerns the level oftechnical effort required to

remediate the site properly, which level has been certified to in the application itself by a

licensed professional engineer or licensed professional geologist. Thus, while standard

Board law suggests that the denial letter “frames the issues” in dispute and that the peti-

tioning applicant bears the burden ofproving the IEPA wrong, in most LIST cases the ap-

plicant does not even know what those issues are, because there has been no communica-

tion prior to the denial

—

and little or no explanation ofthe denial. As well, the record is

often so minimal in the UST denial that it is near impossible for the petitioner to meet its

burden before the Board, without incurring substantial legal costs. Finally, even if it

does prevail before the Board, the costs ofproceeding before the Board on a UST Reim-

bursement claim are, more often than not, higher than the actual dollar amount in dispute.

Thus, the Agency’s mantra in denying claims (“Take it to the Board”) rings hallow in

Printed on Recycled Paper in Accordance with 35 Ill. Adm. Code 101.202 and tOt. 302(g)

most situations and, in those situations, the UST-RA or owner and operator lose, without

real recourse. PIPE suggests that the procedural imbalances evident in the UST review

process border on violations ofdue process and should, in this rulemaking, be remedied.

PIPE suggests that the following proposed amendments to Subpart E would pro-

vide such a remedy and, accordingly, PIPE respectfully requests that the Board consider

those process changes that, while still based on Section 40 ofthe Act, recognize the

uniqueness ofthe LIST reimbursement process. While this filing only revises Part 734,

similar changes, as relevant, should be made to Part 732.

Section

734.505

Review of Plans, Budgets, or Reports

The Agency may review any or all technical or financial information, or

both, filed by or relied upon by the owner or operator or the Licensed Pro-

fessional Engineer or Licensed Professional Geologist in developing any

plan, budget, or report selected for review. The Agency may also review

any other plans, budgets, or reports submitted in conjunction with the site.

The Agency shall have the authority to approve, reject, or require modifi-

cation ofany plan, budget, or report it reviews. Except as otherwise pro-

vided in this Part, the Agency shall notify the owner or operator in writing

ofits final action on any such plan, budget, or report within 120 days of its

receipt. Ifthe Agency fails to make such final decision within 120 days,

the applicant can consider the Agency to have denied the submittal and

can proceed to invoke the processes set forth in this Part. The Agency

will have the burden ofproof as to why the applicant’s submittal violated

the Act or these regulations or was not otherwise approvable. If the appli-

cant prevails before the Board, the Board may authorize the payment of

the applicant’s legal costs, from the UST fund, to pursue such appeal.

The Agency shall process claims as expeditiously as possible. Where the

submittal, and attendant costs, are consistent with this Part, the Agency

shall approve such submittal within 45 days ofits receipt.

If the Agency intends to reject the submitted plan, budget, or report, or re-

quire modifications thereto, or requests more information, it shall, within

45 days ofthe receipt of such submittal, provide written notification of

such intention. Such written notification shall indicate:

Pri,tted on Recycled Paper in Accordance with 35

Ill.

Adrn. Code 1(11.202 and lOt. 3(12(g)

An explanation ofthe Sections ofthis Act which may be violated~f

the plans were approved;

An explanation oft/ic provisions ofthe regulations, promulgated

under this Act,

in this Part,

which may be violated ifthe submittal

were approved;

An explanation ofthe spec~fictype ofinformation, ifany, which the

Agency deems the applicant did not provide the Agency;

and

A statement ofspecific reasons why the Act and the regulations

might not be met

the plan were approved.

Such explanation

cannot merely state “exceeds minimum requirements ofAct” but

must provide sufficient detail for the applicant to understand the

basis for the Agency’s intended action.

Ifit chooses to modify the submittal in response to the Agency’s written

notification, the applicant shall provide such notification ofmodification

to the Agency within 35 days ofreceipt ofthe Agency’s letter of intention.

The applicant’s notice of modification shall not extend the applicable 120-

day review period.

If, at the end ofthe 120-day review period, the Agency deems that the

submittal should be rejected, it shall provide writtennotification ofthe

reasons for such rejection, which shall include one ormore of those rea-

sons delineated in Section 734.505 (d). Ifthe applicant has modified its

submittal as set forth in Section 734.505 (e), but the Agency continues to

consider the submittal not approvable under the Act and these regulations,

even with such modification, the Agency’s rejection letter shall also in-

clude the specific reasons, as set forth in Section 734.505 (d), as to why it

does not consider the submittal with modification approvable.

An owner or operator may waive the right to a final decision within 120

days after the submittal ofa complete plan, budget, or report by submitting

written notice to the Agency prior to the applicable deadline. Anywaiver

shall be for a minimum of60 days.

The Agency shall mail notices ofits intended action, pursuant to Section

734.505(d) and notices ofits final action, pursuant to Section 734.505(f)

on plans, budgets, or reports by registered or certified mail, post marked

with a date stamp and with return receipt requested. Final action shall be

deemed to have taken place on the post marked date that such notice is

mailed.

Any final action by the Agency to reject or require modifications, or rejec-

tion by failure to act, of a plan, budget, or report, in accordance with See-

Printed on Recycled Paper in

Accordance with 35 III. Adm. Code 101.202 and 1(11,

302(g)

tion 734.505(f) shall be subject to appeal to the Board within 35 days after

the Agency’s final action in the manner provided for the review of permit

decisions in Section 40 ofthe Act.

Where an applicant has timely filed an appeal with the Board, the

Agency shall, at the applicant’s request, agree to a 90 day exten-

sion as provided in Section 40 ofthe Act. During this period, at

the applicant’s request, the Agency will meet with the applicant in

an effort to resolve any dispute over costs and to narrow any issues

that may be appealed to the Board.

Where the applicant prevails before the Board, the Board will au-

thorize payment ofthe applicant’s reasonable attorney’s fees from

the fund, in accordance with Section 57.7 ofthe Act, unless the

Board finds that the appeal was not taken in good faith.

As an alternative to a Board appeal, the parties may mutually

agree, in writing, to the services ofa mediator or arbitrator, who

shall be paid a reasonable fee from the LIST fund. The LIST Advi-

soryCommittee will establish a list ofacceptable neutrals who

need not be lawyers and who shall not be state employees, but who

shall demonstrate an understanding ofissues related to costs and

contracts. The LIST Advisory Committee will set a limitation on

the rate to be paid any such neutral.

In accordance with Section 734.450 ofthis Part, upon the approval of any

budget by the Agency, the Agency shall include as part ofthe final notice

to the owner or operator a notice ofinsufficient funds if the Fund does not

contain sufficient funds to provide payment ofthe total costs approved in

the budget.

Section 734.510

Standards for Review of Plans, Budgets, or Reports

A technical review shall consist ofa detailed review ofthe steps proposed

or completed to accomplish the goals of the plan and to achieve compli-

ance with the Act and regulations. Items to be reviewed, if applicable,

shall include, but not be limited to, number and placement ofwells and

borings, number and types ofsamples and analysis, results ofsample

analysis, and protocols to be followed in making determinations. The

overall goal ofthe technical review for plans shall be to determine if the

plan is sufficient to satisfy the requirements ofthe Act and regulations and

has been prepared in accordance with generally accepted engineering

practices or principles ofprofessional geology. The overall goal ofthe

technical review for reports shall be to determine if the plan has been fully

implemented in accordance with generally accepted engineering practices

or principles of professional geology, if the conclusions are consistent

Printed on Recycled Paper in Accordance with .35 III. Adm. Code 11)1.2(12 and 101. 302(g)

with the information obtained while implementing the plan, and if the re-

quirements ofthe Act and regulations have been satisfied. The technical

review shall be completed prior to the Agency’s issuance ofany letter of

intention to reject or modify in accordance with Section 734/505(d) and

shall be conducted by IEPA personnel who is a licensed professional en-

gineer or geologist. The technical review shall become part of the record.

A financial review shall consist of a detailed review ofthe costs associated

with each element necessary to accomplish the goals ofthe plan as re-

quired pursuant to the Act and regulations. Items to be reviewed shall in-

clude, but not be limited to, costs associated with any materials, activities,

or services that are included in the budget. The overall goal ofthe finan-

cial review shall be to assure that costs associated with materials, activi-

ties, and services are consistent with this Part or otherwise constitute rea-

sonable costs, and work, for the proper remediation ofthe site. The finan-

cial review shall become a part of the record.

SUBPART F: PAYMENT FROM THE FUND

The expeditious processing ofreimbursement payments is as crucial to good

stewardship ofthe fund as is the expeditious and judicious processing of the applications

for approval ofplans, budgets and reports. As was testified to at hearing, the very pur-

pose for the fund is to remediate properties contaminated by leaking underground storage

tanks. It makes no sense whatsoever to delay payments to those who are entitled to be

reimbursed for such remediation. The program should be administered, and the rules

should be promulgated, in a way that promotes expeditious payment because expeditious

payment will, presumably, result in more remediation. Indeed, the legislature, in crafting

Section 57.8 appears to have only considered insufficiency offunds as a valid reason for

delayed payment. While the Act requires that payments must be made within 120 days of

the request for payment, there is no reason why the Agency cannot process this payment

quicker since, as it testified, there is little or no reason to deny the payment so long as the

costs requested for reimbursement have been approved in a previous submittal. These

rules should proscribe that the only reason for delayed payment is an Agency declaration,

Printed on Recycled Paper

in Accordance with 35 III. Adm. Code

11)1.202 and lOt. 302(g)

and notice to the parties, as contemplated by the Act, ofinsufficiency of funds. Toward

these ends, PIPE suggests that the Board tighten the language contained in Subpart F to

accomplish this goal.

Also, and more specifically, PIPE proposes the following changes to Section

734.630 (gg) ofSubpart F, regarding eligible and ineligible costs. Additionally, PIPE

suggests that 734.630(ii)(oo) and (aaa) be deleted and included as eligible costs. The ra-

tionale for such suggested changes will be presented at the Board’s next hearing.

Section 734.630

(gg)

Costs incurred after receipt ofa No Further Remediation Letter forthe occurrence

forwhich the No Further Remediation Letter was received, except:

costs incurred for MTBE remediation pursuant to Section

734.405(i)(2) ofthis Part:

monitoring well abandonment costs;

county recorder or registrar oftitles and fees for recording the No

Further Remediation Letter;

costs associated with seeking payment from the Fund;

incremental costs incurred by a highway authority through mainte-

nance orimprovement of the Right ofWay covered by a Highway

Authority Agreement

costs to investigate and remediate threats to human health and the

environment caused by a previously unknown migration pathway,

costs to investigate and remediate contamination found beyond the

previously defined contaminant plumes which threatens human

health and the environment;

costs to investigate and remediate contamination which is discov-

ered on properties whose owner or operator or their agent were

previously denied access and the requirements ofSection 734.350

were met.

Also, PIPE proposes that, in Section 734.665, the Board only include the relevant

statutory language concerning the Agency’s auditing authority.

SUBPART H: REIMBURSABLE COSTS

Most ofthe testimony at hearing concerned Subpart H. In large part, that is be-

cause Subpart H contemplates reduced costs for work traditionally performed in the

Printed on Recycled Paper in Accordance with 35 Ill. Adm. Code 1(11.202 and 1(11, 302(g)

remediation ofunderground storage tanks

—

at rates that have no factual or statistical ba-

sis. Further, the Agency’s position regarding the application ofthese rates (some of

which are unit rates, some “lump sums” and some based upon “time and material”) re-

mains unclear.

It is now PIPE’s understanding, based upon the workgroup’s last meetingwith the

Agency, that so long as the plan or budget contemplates work that is within the confines

of a unit or lump sum reimburseable cost set forth in Subpart H, it will be approved, and

the costs will be reimbursed, without a later and subsequent, time consuming, line-by-line

time and material justification. It is also PIPE’s understanding that the EPA will be pro-

posing a competitive bid scenario for some or all ofthe costs contained in Subpart H

which will allow applicants, where necessary, to “opt out” ofthe Subpart H costs if com-

petitive bids demonstrate the unreasonableness ofthe specified costs.

However, PIPE still has various concerns with the proposal, particularly in its

failure to delineate “extraordinary Or unusual” circumstances which require thinking (and

payment) outside of the box, as well as its failure to delineate what scope ofwork the

EPA actually contemplates to be paid by the standard and established amounts. Accord-

ingly, PIPE offers the following alternative language that will be supported, with testi-

mony and, to the extent possible, proposed alternative rates, at the Board’s next hearing.

Additionally, PIPE will present, in testimony at hearing, the Appendices G and H which

are referred to in this proposed alternate language.

Section 734.800

Applicability

This Subpart H divides activities conducted pursuant to this Part into tasks

and sets forth the reimburseable costs that an owner and operator can ex-

pect to be paid from the Fund for costs associated with each task. In some

cases, those amounts are listed a a “lump sum,” meaning that the dollar

Printed on Recycled Paper in Accordance with 35 III. Adm. Code 101.202

and lOt. 302(g)

amount set forth is presumed to be reasonable ‘for all tasks delineated in

these rules that are associated with that cost.

The costs listed under a particular task identify costs associated with the

task; they are not intended as an all-inclusive list ofall costs associated

with the task for purposes ofpayment from the Fund. Necessary costs not

listed under a particular task may be considered to represent extenuating

circumstances and, subject to adequate justification pursuant to this Part,

may necessitate additional payment.

Eligibility or ineligibility ofa type ofcosts will be determined pursuant to

Subpart F ofthis Part. This Subpart H sets forth the reimburseable costs

for these eligible costs. Where lump sum or unit costs are contained in this

Subpart, applicants are not required to provide a detailed time or materials

breakdown for costs associated with each task, provided that the costs are

at or below the specified amounts set forth in this Subpart. Costs in excess

ofthese amounts will require separate and adequate justification.

Any and all activities conducted under this Part that are required to be

conducted on an emergency basis, as directed by an entity ofthe State of

Illinois, shall be paid on a time and materials basis.

Section 734.810

UST Removal

or Abandonment Costs

Payment for costs associated with UST removal or abandonment ofeach LIST shall not

exceed the amounts set forth in this Section. With the exception offlowable material

utilized for tank abandonment, such costs shall include those associated with the excava-

tion, removal, disposal, and abandonment ofLIST system. Costs associated with the

flowable fill material will be reimbursed on a time and materials basis

UST Volume

Maximum Total Amount per UST

110

‘

999 gallons

$X,XXX.XX

1,000 —4,999 14,999 gallons

$X,XXX.X.X

5,000 9,999 15,000 or more gallons

$X,.X,X.X.XX

10,000

—

19,999 gallons

SX,.X.XX.XX

20,000 or more gallons

$X,XXX.XX

UST Piping: SXX per linear foot ofpiping trench beyond early action extents.

Section 734.815

Free

Product or Groundwater Removal and Disposal

Payment for costs associated with the removal and disposal offree product or groundwa-

ter shall not exceed the amounts set forth in this Section. Such costs shall include those

associated with the removal, transportation, and disposal of free product or groundwater.

Printed

Recycled Paper in Accordance with 35 III. Adm. Code 11)1.2(12

and 101. 302(g)

Payment for costs associated with each round of free product or ground-

water removal via hand bailing or a vacuum truck shall not exceed a total

of $XXXX per gallon or a minimum of $XXXX, whichever is greater.

Payment for costs associated with the removal offree product or ground-

water via a method other than hand bailing or vacuum truck shall be de-

termined on a time and materials basis and shall not exceed the amounts

set forth in Section 734.850 ofthis Part. Such costs shall include, those

associated with the design, construction, installation, operation, mainte-

nance, and closure offree product removal systems.

Section 734.820

Drilling, Well Installation, and Well Abandonment

Payment forcosts associated with drilling, well installation, and well abandonment shall

not exceed the amounts set forth in this Section, excluding drilling conducted as part of

free product removal or an alternative technology. Payment for costs associated with

drilling conducted as part offree product removal or an alternative technology shall be

determined in accordance with Section 734.850 of this Part instead ofthis Section.

Payment for costs associated with each round ofdrilling shall not exceed

the following amounts. Such costs shall include those associated with

mobilization, drilling, labor, decontamination, and drilling for the pur-

poses ofsoil sampling or well installation.

Type ofDrilling

Maximum Total Amount

Hollow-stem auger

greater of$XX.XX per foot or $X,XXX.XX

Direct-push platform

greater of$XX.XX per foot or SX,XXX,XX

Bedrock drilling

greater of$XX.XX per foot or $X,XXX.XX

Bedrock coring

greater of $XX.XX per foot or SX,XXX.XX

Injection drilling

greater of$XX.XX per foot or SX,XXX.XX

Vacuum Extractor (utility clearance~greaterof$XX.XX per foot or $X.X

Payment for costs associated with the installation ofmonitoring wells, ex-

cluding drilling, be payable at the following amounts. Such costs shall in-

clude, but not be limited to, those associated with well construction and

development.

Printed on Recycled Paper in Accordance with

III. Adm. Code 101.202 and lOt. 302(g)

Type of Borehole

Maximum Total Amount

Hollow-stem auger

$X/foot (well length .2”W less dia.)

Q~Direct-pushplatform

$X/foot

c) Payment for costs associated with the abandonment ofmonitoring wells shall

be paid at

$1Q.50

per foot ofwell length.

d) Payment for costs associated with mobilization ofpersonnel and equipment

pursuant to Section 734.820(a)(b)(c) ofthis Part shall be reimbursed at a lum

sum rate of$X.

Section 734.825

Soil Removal and Disposal

Payment for costs associated with soil removal, transportation, and disposal shall not ex-

ceed the amounts set forth in this Section. Such costs shall include, but not be limited -to

those associated with the removal, transportation, and disposal ofcontaminated soil ex-

ceeding the applicable remediation objectives or visibly contaminated fill removed pur-

suant to Section 734.210(f) ofthis Part, and the purchase, transportation, and placement

ofmaterial used to backfill the resulting excavation.

Payment for costs associated with the removal, transportation, and dis-

posal ofcontaminated soil exceeding the applicable remediation objec-

tives, visibly contaminated fill removed pursuant to Section 732.2 10(f) of

this Part, and concrete, asphalt, or paving overlying such contaminated

soil or fill shall not exceed a total of $XX.XX per cubic yard.

Except as provided in subsection (a)(2) ofthis Section, the volume

ofsoil removed and disposed shall be determined by the following

equation using the dimensions ofthe resulting excavation: (Exca-

vation Length x Excavation Width x Excavation Depth) x 1

.Q15.

A default conversion factor of 1 .~2tons per cubic yard shall be

used to convert tons to cubic yards.

The volume ofsoil removed from within four feet ofthe outside

dimension ofthe UST and disposed ofpursuant to Section

734.2 10(f) ofthis Part shall be determined in accordance with Sec-

tion 734.Appendix C ofthis Part.

Payment for costs associated with the purchase, transportation, placements

an.d compaction of material used to backfill the excavation resulting from

the removal and 

disposal ofsoil shall not exceed a total ofXX.XX per cu-

bic

yard.

Except as provided in subsection (b)(2) of this Section, the volume

ofbackfill material shall be determined by the following equation

using the dimensions of the backfilled excavation: (Excavation

26

Printed on Recycled l’aper in Accordance with

Ill. Adm. Code 1(11.2(12 and 11)1. 302(g)

Length x Excavation Width x Excavation Depth) x I

.~15.

A de-

fault conversion factor of I .~2tons per cubic yard shall be usedto

convert tons to cubic yards.

2)

The volume of backfill material used to replace soil removed from

within four feet of the outside dimension of the UST 

and

disposed

of pursuant to Section 734.2 10(f) of this 

Part

shall be determined

in accordance with Section 734.Appendix C of this Part.

c) Payment for costs associated with the removal 

and subsequent return ofsoil that

does not exceed the applicable 

remediation objectives but whose removal is re-

quired in order to conduct corrective action shall be reimbursed at a lump sum

rate of $X per cubic yard of soil that can be stockpiled next to the excavation cav-

ity. Additional expenses associated with the transportation ofsoil that needs to be

temporarily stockpiled on or off-site shall be reimbursed at a lump sum rate ofto-

tal of$XX.XX per cubic yard. The volume ofsoil removed and staged on-site

~4retumed to the excavation shall be determined by the following equation us-

ing the dimensions ofthe excavation resulting from the removal ofthe soil: (Ex-

cavation Length x Excavation Width x Excavation Depth) x

1.15.

A default con-

version factor of 1

.~,

tons per cubic yard shall be used to convert tons to cubic

yards.

Section 734.830

Drum Disposal

Payment for costs associated with the purchase, transportation, and

disposal of

55-gallon drums containing non-hazardous solids, oil dry, personal protective

equipment, etc. shall be paid at $X.XX per 55-gallon drum. A stop fee is set at

$X.X. Costs associated with the removal of the 

drums containing non-solids shall

be actual disposal 

costs and time and materials. Professional, managerial, techni-

cal and administrative services and related costs, i.f any, associated with the work

contemplated in this Section are not intended to be included in or limited by this

Section.

Section 734.835

Sample Handling and Analysis

Payment for costs associated with sample handling and analysis shall be consistent with

Section 734.Appendix D of this Part. Such costs shall include, but not be limited to,

those associated with the transportation, delivery, preparation, and analysis ofsamples,

and the reporting ofsample results by the laboratory. For laboratory analyses not in-

cluded in this Section, the Agency shall determine reasonable payment amounts on a site-

specific basis.

Section 734.840

Concrete, Asphalt, and Paving; Destruction or Dismantling

and Reassembly of Above Grade Structures

Printed on Recycled Paper in

Accordance with 35 Ill. Adm.

Code 1(11.2(12 and It) I.

302(g)

a)

Payment for costs associated with concrete, asphalt, and paving installed

as an engineered barrier, other than 

and replacement concrete, asphalt and

paving shall be reimbursed at the following 

amounts: Costs associated

with

the replacement of concrete, asphalt 

and

paving used as 

an engi

neered 

barrier

are subject to the 

maximum amounts set forth

in subsection

(h)

this Section instead-of subsection 

Depth 

ofMat~rial

iviaximum Total Amount

per Square Foot

~sphaltand 

paving

3 inches

$1.86

4 inches

$2.38

b-) Payment for costs 

associated wau

inc

ieniacement

~nncrete~

~i~nha1tand paving

shall not exceed the followint~aniounu;

Thickness ofMaterial

Maximum Total Amount

per Square Foot

Asphalt 

and

paving 

—

2 inches

$1.65 $X.XX

3 inches

$1.86 $X.XX

4 inches

$2.38 $X.XX

Concrete

—

2 inches

$2.45 $X.XX

3 inches      

$2.93 $X.XX

4 inches       

$3.41 $X.XX

inches      

$3.89 $X.XX

6inches      

$4~6$X.XX

8 inches      

$5.3

l~$X.XX

For thicknesses other than those listed 

above, the Agency shall determine

reasonable payment amounts on a site-specific 

basis.

c)

Payment 

for costs associated with the destruction or the dismantling and

reassembly of above-grade structures shall not exceed the time and mate-

rial amounts set forth in Section 734.850 ofthis Part. The total cost for

the destruction or the dismantling and reassembly ofabove-grade struc-

tures shall be $10,000.00 per site.

Section 734.845

Professional Consulting Services

Payment for costs associated with professional consulting services shall be paid per unit

task for not exceed the amounts set forth in this Section. Such costs shall include those

associated with project planning and oversight; field work, field oversight; travel; per

diem; mileage; transportation and the preparation, review, certification, and

submission

of all plans, budgets, reports, applications for payment, and other documentation. The

28

Printed on Recycled Paper in Accordance with 35 Ill. Adm. Code 11)1.2(12 and 101.302(g)

costs associated with travel: per diem: mileage and transportation are provided in Appen-

dix F.

EarlyAction and Free Product Removal. Payment ofcosts for profes-

sional consulting services associated with early action and free product

removal activities conducted pursuant to Subpart B ofthis Part

shall not

exceed the following amounts:

Payment for costs associated with preparation for the abandonment

or removal ofeach UST system shall be paid a lump sum not ex

ceed a total of$XXX.XX for tasks including those listed in Ap-

pendix G.

Payment for costs associated with removal or abandonment ofeach

LIST system early action field work and field oversight shall be re-

imbursed at a rate of$XXX.XX per half-day, with the number of

half-days being determined by the LPE or LPG on a site-specific

basis. The reimbursable costs associated with early action field

work The number ofhalf days shall include not exceed the fol-

lowing:

Ifone or more LISTs are removed, Early action activities: a

rate of$XXX per half-day per person, using two persons,

plus up to one half day $XXX for each 200 cubic yards, or

fraction thereof, ofvisibly contaminated fill material re-

moved and disposed of in accordance with 734.2 10(f);

Ifone or more LIST systems remain in place, one half day

$XXX for every two soil borings, or fraction thereof,

drilled pursuant to Section 732.2 10(h)(2) of this Part;

Payment for costs associated with the preparation and submission

of20-day and 45-day reports, including field work not coveredby

subsection (a)(2) ofthis Section, shall be paid a lumpsum rate of

$xxx.

Payment for costs associated with the preparation and

submission

of free product removal plans and reports, field work and field

oversight, and the installation of free product removal systems

andlor all activities conducted on an emergency or time-critical ba-

sis (as directed by a state authority) shall be determined on a time

and materials basis and shall be consistent with the unit amounts

set forth in Section 734.850 of this Part.

Site Investigation. Payment ofcosts for professional consulting services

associated with site investigation activities, as defined in Appendix G, and

Printed on Recycled Paper in Accordance with

35 Ill. Adm. Code 1(11.2(12

and 1(11. 31)2(g)

conducted pursuant to Subpart C of this Part, shall be paid at a lump sum

rate as follows:

Payment for costs associated with Stage I site investigation prepa-

ration, field work, and field oversight shall be paid a lump sum rate

of$X,XXX.XX plus units not exceed a total of $3,200.00 ofthe

following.

$)OO( One half day for every two soil borings, or fraction

thereof, drilled as part ofthe Stage I site investigation but

not used for the installation ofmonitoring wells. Borings

in which monitoring wells are installed shall be included in

subsection (b)(1)(B) ofthis Section instead ofthis subsec-

tion (b)(l)(A): and

$XXX One half day for each monitoring well installed as

part ofthe Stage 1 site investigation.

C)

SXXX for every day ofvacuum extractor boring clear-

ance.

$XXX for collecting data for hydraulic conductivity

evaluation.

Payment for costs associated with the preparation and submission

of Stage 2 site investigation plans shall be paid a lump sum rate of

$X,XXX.XX. The covered tasks include the Stage 1 report and the

preparation of the Stage 2 plan, as defined in Appendix G.

Payment for costs associated with Stage 2 field work and field

oversight shall be paid in units ofthe following:

A) $XXX for 

every

two soil borings, or fraction thereof, drilled

as part ofthe Stage 2 site

investigation but not used for the

installation ofmonitoring wells. Borings in which monitor-

ing wells are installed shall be included in subsection

(b)(3)(B) of 

this Section instead ofthis subsection

(b)(3)(A); and

B) $XXX One half day for each monitoring well 

installed as part

ofthe Stage 2 site investigation.

C) $XXX for collecting data for hydraulic conductivity evalua-

tion if required.

Printed on Recycled Paper

in Accordance with 35 III. Adrn. Code I

t)l

.202 and

lOt.

302(g)

D) $XXX for every day ofvacuum extractor boring clearance

Payment for costs associated with the preparation and submission

ofeach Stage 3 site investigation plan shall be paid on a time and

materials basis.

Payment for costs associated with Stage 3 field work and field

oversight shall be paid in lump sum units as follows:

$XXXOne half day for every two fewsoil borings, or frac-

tion thereof, drilled as part ofthe Stage 3 site investigation

but not used for the installation ofmonitoring wells. Bor-

ings in which monitoring wells are installed shall be in-

cluded in subsection

(b)(5)(B)

of this Section instead ofthis

subsection

(b)(5)(A);

and

$)OO( One half day for each monitoring well installed as

part of the Stage 3 site investigation.

$XXX for every day of vacuum extractor boring clearance

$XXX for collecting data for hydraulic conductivity

evaluation ifrequired.

_____

a time and materials basis for each task not identified mA,

B, C, or D above.

Payment for costs associated with the preparation and submission

of site investigation completion reports which occur after the

Stage I site investigation shall be paid a lump sum total of$XXX.

Payment for costs associated with the preparation and submission

of site investigation completion reports which occur after Stage 2

or Stage 3 site investigation shall be paid on a time and materials

basis.

Corrective Action. Payment of costs for professional consulting services

associated with corrective action activities conducted pursuant to Subpart

C ofthis Part shall be paid in units ofnot exceed the following amounts,

or time and materials, as identified below:

For conventional technology as defined in Appendix G, payment

for costs associated with the preparation and submission ofcorrec-

tive action plans shall not exceed a be a maximum total of

$X,XXX.XX. For a plan for any other corrective action or alterna-

tive technologies, payment for costs shall be determined on a time

Printed on Recycled Paper

Accordance with 35 Ill. Adm. Code 1(11.202 and lOt. 302(g)

and materials basis and shall not exceed the amounts set forth in

Section 734.850 ofthis Part.

For conventional technology, payment for costs associated

with the preparation and submission ofcorrective action

plan addenda, as defined in Appendix G shall be a lump sum

total of$0,000.00, per addendum. For alternative technolo-

gies, pa~entfor such costs shall be determined on a time

and materials basis and shall be consistent with the amounts

set forth in Section 734.850 ofthis Part.

Payment for costs associated with corrective action field work and

field oversight shall be paid in units ofnot exceed the following

amounts, or time and materials as specified below:

For conventional technology as defined in Appendix G, a

lump sum total of$XXX.XX per half day, not to exceed

one half day for each 200 cubic yards, or fraction thereof,

ofsoil removed and disposed.

For alternative technologies, payment for costs shall be de-

termined on a time and materials basis and shall be other-

wise consistent with Section 734.850 ofthis Part.

Payment for costs associated with the development ofremediation

objectives other than Tier 1 remediation objectives pursuant to 35

Ill. Mm. Code 742 shall be determined on a time and materials ba-

sis and shall be otherwise consistent with Section 734.85 0 ofthis

Part. not exceed a total of $800.00. These tasks include the prepa-

ration ofTier 2 remediation objectives, risk-based corrective action

objectives and any Tier 3 analyses.

Payment for costs associated with Environmental Land Use Con-

trols and Highway Authority Agreements used as institutional con-

trols pursuant to 35 Ill. Adm. Code 742 shall be determined on a

time and materials basis and shall be otherwise consistent with

Section 734.850 ofthis Part. not exceed $800.00 per Environ

mental Land Use Control or Highway Authority Agreement.

Payment for costs associated with the preparation and submis-

sion ofeach corrective action status report for conventional tech-

nology, as defined in Appendix G, shall be paid at a lump sum

amount of$XXXX.XX.

Printed on Recycled Paper

in Accordance with 35 III. Adrn. Code 101.2(12 and 1(11. 302(g)

6)

Payment for costs associated with the preparation 

and

submis-

sion of each corrective action completion report for conventional

technology, as defined in Appendix G, shall be paid at a lump sum

amount of$XXXX.XX.

Payment for costs associated with the preparation and submis-

sion of corrective action completion reports for alternative tech-

nology shall be paid on a time and materials basis and shall be

consistent with Section 734.850 of this Part.

d) Miscellaneous Consulting Tasks

Payment for other consulting tasks which are required to satisfy regulatory

requirements shall be paid on a time and materials basis and shall be oth-

erwise consistent with Section 734.850 ofthis Part. These tasks include

the categories shown below, as defined in Appendix G:

1) New project start-up costs

2) Reimbursement requests, for each ofthe following:

Early action, each Stage ofSite Investigation, and not less than every

90 days for Corrective Action activities.

3) Response on a time-critical basis, as directedby a state or local

authority

Section 734.850

Payment on Time and Materials Basis

This Section sets forth the maximum amounts that may be paid when payment is allowed

on a time and materials basis.

Payment for costs associated with activities that have a specific payment

amount set forth in other sections of this Subpart H (e.g, sample handling

and analysis, drilling, well installation and abandonment, drum

disposal,

or consulting fees for plans, field work, field oversight, and reports) shall

be reimbursed at the amounts set forth in those Sections, unless payment is

made pursuant to Section 734.855 ofthis Part.

Payments amounts for costs associated with activities that do not have a

specific payment amount set forth in other sections of this Subpart H shall

be determined by the Agency on a site-specific basis, provided, however,

that personnel costs shall not exceed the amounts set forth in Section

734.Appendix E ofthis Part. Personnel costs shall be based upon the

work being performed, regardless ofthe title of the person performing the

Printed on Recycled I’aper

in Accordance with 35 Ill. Adni, Cote 1(11.21)2 and 101.302(g)

work. Owners and operators seeking payment shall demonstrate to the

Agency that the amounts sought are reasonable.

Section 734.855

Unusual or Atypical Conditions

If the applicant incurs costs which are unusual or atypical, as set forth in Appendix H,

and

the IEPA intends to 

deny such costs, it shall issue a letter ofintent to reject within 45

days ofthe submittal consistent with Subpart E and the parties shall proceed in accor-

dance that Subpart. Ifthe applicant demonstrates that the unusual or atypical costs are

unavoidable, reasonable or necessary, the costs shall be paid.

Section 734.860

Handling Charges

Payment of handling charges shall 

be consistent with the amounts set forth in Section

734.635 of this 

Part and shall be reimbursable without regard to the identify ofthe sub-

contractor.

Section 734.865

Review of Payment Amounts

The LUST Advisory Committee shall annually review the provisions ofthis Subpart H.

As part of its review the LUST Advisory Committee shall determine whether the

amounts set forth in this Subpart 

H generally reflect prevailing market rates. If, as a re-

sult of the review, the LUST Advisory Committee determines that the amounts set forth

in this Subpart H no longer generally reflect prevailing market 

rates, it shall propose ap-

propriate amendments

to the Board, based on standardized market factors.

CONCLUSION

PIPE appreciates this opportunity to provide the Board with alternate language to

the IEPA’s proposal and looks forward to the Board’s next hearing.

Res ectfully 

submitted,

Claire A. Manning, Attorney

CLAIRE

A. MANNING

Posegate & Denes, P.C.

ill N. Sixth Street

Springfield, Illinois 62705

(217) 522-6152

(217) 522-6184 (FAX)

claire@posegate-denes.com

Printed on Recycled

Paper in Accordance with

Ill. Adm. Code

101.202 and 11)1.

302(g)

Section 734.APPENDIX C Backfill Volumes

Volume of Tank in Gallons

Maximum amount ofbackfill Maximum amount ofbackfill

material to be removed:

material to be replaced:

Cubic yards

285

285 to 299

300 to

559

560 to 999

l000to 1049

lOSOto 1149

llSOto 1999

101

2000to2499       

112

124

2500 to 2999

128

143

3000to3999       

143

161

4000 to 4999

175

198

5000to5999       

189

219

6000to7499       

198

235

7500 to 8299       

206

250

8300to9999

219

268

l0,000to 11,999

252

312

12,000 to 14,999

286

357

15,000

345

420

A conversion factor of

1.5

tons per cubic yard shall be used to convert tons to cubic yards.

Printed on Recycled Paper in Accordance with 35111. Adm. Code 101.202 and tOt. 302(g)

Section 734.APPENDIX D Sample Handling and Analysis

Max. Total Amount

per Sample

Chemical

BETX Soil with MTBE (EPA 8260)

$92.00

BETX Water with MTBE (EPA 8260)

$90.00

COD (Chemical Oxygen Demand)

$40.00

Corrosivity

$18.00

Flash Point or Ignitability Analysis EPA 1010

$41 .00

FOC (Fraction Organic Carbon)

$52.00

Fat, Oil, & Grease (FOG)

$84.00

LUST Pollutants Soil

analysis must include all volatile,

base/neutral, polynuclear aromatic, and metal parameters listed

in Section 734.AppendixB ofthis Part

$725.00

Organic Carbon (ASTM-D 2974-87)

$48.00

Dissolved Oxygen (DO)

$33.00

Paint Filter (Free Liquids)

$16.00

PCB / Pesticides (combination)

$249.00

PCBs                           

$136.00

Pesticides

$162.00

$16.00

Phenol

$39.00

Polynuclear Aromatics PNA, or PAH

SOIL EPA 8270          

Si 86.00

Polynuclear Aromatics PNA, or PAH WATER EPA 8270

$186.00

Reactivity

$75.00

SVOC

Soil (Semi-volatile Organic Compounds)

$339.00

SVOC

Water (Semi-volatile Organic Compounds)

$339.00

TK.N (Total Kjeldahl) “nitrogen”

$52.00

TOC (Total Organic Carbon) EPA 9060A

$35.00

TPH (Total Petroleum Hydrocarbons)

$158.00

VOC (Volatile Organic Compound)

Soil (Non-Aqueous)         

$190.00

VOC (Volatile Organic Compound)

Water

$180.00

Geo-Technical

Bulk Density ASTM D4292 / D2937

$34.00

Ex-Situ Hydraulic Conductivity/ Permeability

$255.00

Moisture Content ASTM D2216-90 / D4643-87

$13.00

Porosity

$105.00

Rock Hydraulic Conductivity Ex-Situ

$350.00

Sieve / Particle Size Analysis ASTM D422-63

Dl 140-54

$150.00

Soil Classification ASTM D2488-90/ D2487-90

$68.00

Printed

on Recycled I’apcr

in Accordance with

III. Adm.

Code

lOt

.202 and

101. 302(g)

Metals

Arsenic TCLP Soil

$35.00

Arsenic Total Soil

$25.00

Arsenic Water

$23.00

Barium TCLP Soil

$30.00

Barium Total Soil

$17.00

Barium Water

$15.00

Cadmium TCLP Soil

$35.00

Cadmium Total Soil

$25.00

Cadmium Water

$23.00

Chromium TCLP Soil

$30.00

Chromium Total Soil

$17.00

Chromium Water

$15.00

Cyanide TCLP Soil

$48.00

Cyanide Total Soil

$38.00

Cyanide Water

$38.00

Iron TCLP Soil

$30.00

Iron Total Soil

$17.00

Iron Water

$15.00

Lead TCLP Soil

$35.00

Lead Total Soil

$25.00

Lead Water

$23.00

Mercury TCLP Soil

$44.00

Mercury Total Soil

$29.00

Mercury Water

$29.00

Selenium TCLP Soil

$35.00

Selenium Total Soil

$25.00

Selenium Water

$2 1.00

Silver TCLP Soil

$30.00

Silver Total Soil

$17.00

Silver Water

$15.00

Metals TCLP Soil (a combination ofall RCRA metals listed in

Appendix B of this Part)

$158.00

Metals Total Soil (a combination of all RCR.A metals listed in

Appendix B of this Part)

$145.00

Metals Water (a combination ofall RCRA metals listed in Ap-

pendix B olthis Part)

$147.00

Soil preparation for Metals TCLP Soil (one fee per sample/per        

$79.00

method)

Soil preparation for Metals Total Soil (one fee per sampler

method)

$16.00

Water preparation for Metals Water (one fee per sample~j~

fllCtllO(l)

$11.00

Printed on Recycled Paper in Accordance with 35 Ill. Adm, Code 1(11.202 and 101.31)2(g)

Other

En Core® Sampler, purge-and-trap sampler, or equivalent sam-

pling device

$10.00

Sample Shipping (*maximum total amount for shipping all

samples collected in a calendar day)

$50.00*

Soil 

Dry

Weight Determination (one fee per soil sample)          

$11.00

Printed on Recycled Paper in Accordance with 35 III, Adm. Code 101.202 and 101.302(g)

Section 732.APPENDIX E Personnel Titles and Rates

Title

Degree Required

Ill. Li-

cense

Req’d.

Max.

Hourly

Rate

Engineer I

Engineer II

Engineer III

Engineer IV

Professional Engineer

Professional Engineer II

Senior Prof. Engineer or

Principal

Bachelor’s in Engineering

None

P.E.

$74.00

$82.00

$90.00

$100.00

$1 15.00

$119.00

$137.00

Geologist I

Geologist II

Geologist III

Geologist IV

Professional Geologist

Professional Geologist II

Senior Prof. Geologist

Bachelor’s in Geology or Hydrogeology

None

P.G.

$74.00

$82.00

$90.00

$100.00

$115.00

$119.00

$137.00

Scientist I

Scientist II

Scientist III

Scientist IV

Senior Scientist

Bachelor’s in a Natural or Physical Science

None

$60.00

$65.00

$70.00

$75.00

$85.00

Project Manager I

Project Manager II

Senior Project Manager

None

$90.00

$95.00

$100.00

Technician I

Technician II

Technician Ill

Technician IV

Senior Technician

None

$50.00

$55.00

$60.00

$65.00

$70.00

Account Technician I

Account Technician II

Account Technician III

Account Technician IV

Senior Acct. Technician I

None

$40.00

$45.00

$50.00

$55.00

$60.00

Administrative Assistant I

Administrative Assistant II

Administrative Assistant III

Administrative Assistant IV

Senior Admin. Assistant I

None

$30.00

$35.00

$40.00

$42.50

$45.00

DraftpersonlCAD I

Draftperson/CAD II

DraftpersonlCAD III

Draftperson/CAD IV

Senior Draftperson/CAD

None

$40.00

$45.00

$50.00

$55.00

$60.00

39

Printed on Recycled Paper in Accordance with 35 III. Adm. Code 11)1.2(12 and lOt. 302(g)

Section 734.APPENDIX F Transportation and Mobilization Costs

Mobilization to and from the site for personnel shall be paid as follows:

Outside MetropolitanAreas: 1 hour

50 miles (per corresponding personnel rate

per APPENDIX E)

Inside Metropolitan Areas:

1 hour

25 miles (per corresponding personnel rate

per APPENDIX E)

Vehicle Mileage Rate

$0.00/mile or $00.00/day, whichever is greater (obtain

from R.S.Means).

Per Diem:

(Obtain

from R.S.Means)

Outside Metropolitan Areas: $00.00/day per person

Inside Metropolitan Areas:

$000.00/day per person

Printed on Recycled Paper in Accordance with 35111. Adm. Code 101.202 and 101.

302(g)