~ECE~VED
CLERK’S OF~(’E
SEP 2 32004
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~ATEOF ILLINOIS
Poflution Control Board
IN THE MATTER OF:
PROPOSED AMENDMENTS TO REGULATION OF
PETROLEUM LEAKING UNDERGROUND STORAGE
TANKS
(35
Iii. Adm. Code 732)
)
)
R04-22
)
(Rulemaking
-
Land)
)
)
IN THE MATTER OF:
PROPOSED AMENDMENTS TO REGULATION OF
PETROLEUM LEAKING UNDERGROUND STORAGE
TANKS
(35
III. Adm. Code 734)
)
)
R04-23
)
)
)
(Rulemaking
-
Land)
NOTICE OF FILING
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100W. Randolph, Suite 11-500
Chicago, Illinois 60601-3218
SEE ATTACHED SERVICE LIST
Marie Tipsord
Illinois Pollution Control Board
James R. Thompson Center
100W. Randolph, Suite 11-500
Chicago, Illinois 60601-3218
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of
the Pollution Control Board the Comments of Daniel J. Goodwin, P.E. on Behalf of the
American Council ofEngineering Companies of Illinois, a copy of which is herewith
served upon you.
Respectfully submitted,
~L/~
Daniel J. Good1~’in,P.E.
SECOR International, Incorporated
400 Bruns Lane
Springfield, Illinois 62702
(217) 698-7247
Date: September 22, 2004
CERTIFICATE OF SERVICE
I hereby certify that the attached Comments ofDaniel J. Goodwin, P.E. on Behalf
ofthe American Council of Engineering Companies of Illinois will be served on the
individuals on the attached Service List by placing a copy in an envelope addressed to the
address shown with first class postage affixed and mailing prior to 5:00 p.m. on
September 23, 2004.
Daniel J. Good~
,
P.E.
Gina Roccaforte
Kyle Rominger
JEPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
217/792-5544
217/782-9807 (fax)
William G. Dickett
Sidley Austin Brown & Wood
Bank One Plaza
10 South Dearborn Street
Chicago, IL 60603
312/853-7000
312/953-7036 (fax)
Bill Fleischi
Illinois Petroleum Marketers Association
112 West Cook Street
Springfield, IL 62704
217/793-1858
Robert A. Messina
General Counsel
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, IL 62703
217/523-4942
217/523-4948
Lisa Frede
Chemical Industry Council of
Illinois
2250 East Devon Avenue
Des Plaines, IL 60018
(847) 544-5995
Service List
Thomas G. Safley
Hodge Dwyer Zeman
3150 Roland Avenue
P.O. Box 5776
Springfield, IL 62705-5776
217/528-4900
217/523-4948
(fax)
Barbara Magel
Karaganis & White, Ltd.
414 North Orleans Street
Suite 801
Chicago, IL 60610
312/836-1177
312/836-9083 (fax)
Joe Kelly, PB
United Science Industries, Inc.
6295
East Illinois Highway 15
P.O. Box 360
Woodlawn, IL 62898-0360
618/735-2411
618/735-2907 (fax)
Kenneth James
Carison Environmental, Inc.
65 East Wacker Place
Suite 1500
Chicago, IL 60601
Michael W. Rapps
Rapps Engineering & Applied Science
821 South Durkin Drive
P.O. Box 7349
Springfield, IL 62791-7349
217/787-2118
217/787-6641 (fax)
Joel I. Sternstein, Assistant
Attorney
General
Matthew
J.
Dunn,
Division
Chief
Office of the
Attorney
General
Environmental Bureau
188 West Randolph,
20th
Floor
Chicago, IL 60601
312/814-2550
312/814-2347 (fax)
Dorothy M.
Gunn,
Clerk of the Board
Marie Tipsord, Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street, Suite 11-500
Chicago, IL 60601
312/814-3956
Scott Anderson
Black & Veatch
101 North Wacker Drive
Suite 1100
Chicago, IL 60606
Claire A. Manning
Posegate & Denes
ill North Sixth Street
Springfield, IL 62701
(217) 522-6152
Jonathan
Furr,
General Counsel
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, IL 72702-1271
217/782-1809
217/524-9640 (fax)
A.J. Pavlick
Great Lakes Analytical
1380 Busch Parkway
Buffalo Grove, IL 60089
247/808-7766
David L. Rieser, Partner
McGuire Woods LLP
77 West Wacker Drive
Chicago, IL 60601
312/849-8249
Tom Henlacher, P.E.
Principal Engineer
Herlacher Angleton Associates. LLC
8731
Bluff
Road
Waterloo, IL 62298
618/935-2261
618/935-2694 (fax)
James B.
Huff,
P.E.
Huff& Huff,
Inc.
512 West Burlington Avenue
Suite 100
LaGrange, IL 60525
Melanie LoPiccolo, Office Manager
Marlin Environmental, Inc.
1000 West Spring Street
South Elgin, IL 60177
847/468-8855
Brian Porter
Terracon
870
40th
Avenue
Bettendorf,- IA 52722
563/3
55-0702
Glen Lee, Manager
Wendler Engineering Services, Inc.
1770 West State Street
Sycamore,
IL 60178
815/895-5008
Joseph W. Truesdale, P.E.
CSD Environmental Services, Inc.
2220 Yale Boulevard
Springfield, IL 62703
217/522-4085
Monte Nienkerk
Clayton Group Services, Inc.
3140 Finley Road
Downers Grove, IL 60515
630/795-3207
Kurt Stepping
Director of Client Services
PDC Laboratories
2231 West Altorfer Drive
Peoria, IL 61615
3091692-9688
Daniel
J. Goodwin
Secor International, Inc.
400 Brims Lane
Springfield, IL 62702
Richard Andros, P.E.
Environmental Consulting & Engineering, Inc.
551 Roosevelt Road, #309
Glen Ellyn, IL 60137
Steven Gobelman
Illinois Department of Transportation
2300 Dirksen Parkway
Springfield, IL 62764
Jennifer Goodman
Henlacher Angleton Associates, LLC
522 Belle Street
Alton, IL 62002
Ron Dye
President
Core Geological Services
2621 Monetga
Suite C
Springfield, IL 62704
(217) 787-6109
Erin Curley, Env. Department Manager
Midwest Engineering Services, Inc.
4243 W.
166th
Street
Oak Forest, IL 60452
708/535-9981
Thomas M. Guist, FE
Team
Leader
Atwell-Hicks, Inc.
940 East
Diehl
Road
Suite 100
Naperville, IL 60563
630/577-0800
Dan
King, Team Leader
United Science Industries, Inc.
6295
East Illinois
Hwy
15
Woodlawn, II 62898
618/735-2411
Terrence W. Dixon, P.G.
MACTEC Engineering & Consulting, Inc.
8901 N. Industrial Road•
Peoria, IL
61615
Collin W. Gray
SEECO Environmental Services, Inc.
7350 Duvon Drive
Tinley Park 60477
George F. Moncek
United Envinonmental Consultants, Inc.
119 East Palatine Road
Palatine, IL 60067
Tina Archer, Attorney
Greensfelder, Hemker & Gale
10 South Broadway
Suite 2000
St Louis, MO 63104
314/241-9090
Ken Miller, Regional Manager
American Environmental Corp.
3700 W. Grand Ave., Suite A
Springfield, IL 62707
217/585-9517
n
Russ Goodiel, Project Manager
Applied Environmental Solutions, Inc.
P.O. Box 1225
Centralia, IL 62801
P~1 O/~~1
~
01 O/.)3.J-D~).)
Eric Minder
Senior Environmental Engineer
Caterpillar, Inc.
100 NE Adams Street
Peoria, IL 61629
(309) 675-1658
208776v1
Jarrett
Thomas
Vice President
Suburban Laboratories, Inc.
4140 Litt
Drive
Hillside, IL 60162
(708) 544-3260
Daniel
Cap~ice
K-Plus Environmental
600 West Van Buren Street
Suite 1000
Chicago, IL 60607
(312) 207-1600
4
RECEFVED
CLERK’S OFFICE
SEP 23 2004
STATE OF ILLINOIS
R04-22
and R04-23 UST Rulemaking (Consolidated) Pollution Control Board
COMMENTS OF DANIEL
J.
GOODWIN, P.E.
ON BEHALF OF
THE AMERICAN COUNCIL OF ENGINEERING COMPANIES OF ILLINOIS
September
22, 2004
On August 11, 2004 the
Hearing Officer in this
matter issued a Hearing
Officer
Order establishing a 45-day period for written comments, following which a
decision would be made regarding the need for further hearings prior to issuance
of a First Notice by the Illinois Pollution Control Board (Board). The following
comments are submitted on behalf of the American Council of Engineering
Companies of Illinois (ACEC-l), formerly known as the Consulting Engineers
Council of Illinois, in response to that Order. These comments are a continuation
of ACEC-I’s previous efforts to provide constructive advice and assistance to
both the Illinois Environmental Protection Agency (Agency) and the Board in their
efforts to improve the Leaking Underground Storage Tank reimbursement
program.
As I stated in my comments at the August 9 hearing, the Agency’s current
proposal as modified by the changes contained in the “Third Errata Sheet” is
much improved in comparison to the previous versions, but there are still
significant issues that remain unresolved, and equally important, new issues
have been raised by the introduction of three important new policies into the
Agency’s proposal. These new proposed policies will be addressed in these
comments first, and then additional comments on other issues will be presented.
1
1. Competitive Bidding. The Agency’s proposal to allow reimbursement in
excess of the maximum lump sum or unit rates if competitive bids from at least
three qualified bidders are obtained may be a good solution to the problem of
determining fair reimbursement amounts for atypical situations. ACEC-l sees at
least two problems in the Agency’s proposed language that must be resolved
before such a provision can be expected to work satisfactorily:
• In most cases it will not be practical to expect the competitive bidding
process to be carried out prior to submittal and approval of the budget,
given the 90-120 day periods that typify the Agency’s budget review and
approval process.
One solution to this problem would be to allow the
owner/operator’s consultant to simply identify in the budget proposal those
items for which bidding will be used and to provide a non-binding estimate
of the expected costs for those items. Once the Agency approved such a
budget, the owner/operator would be entitled to full reimbursement of the
amount of the lowest qualified bid, irrespective of how it compared with the
estimate.
• The Agency is proposing to limit reimbursement for the consultant’s
professional services in conducting the bidding process to only $160.
While ACEC-I cannot propose specific pricing due to constraints of anti-
trust law, we hasten to point out that, using the $90/hour rate for a Project
Manager in the Agency’s proposed Appendix E, and allowing no charges
for administrative or technician support or for such things as postage, a
2
maximum of less than 1 .8 hours could be reimbursed for the services of
the Professional Engineer in performing the following tasks:
--Identifying and pre-qualifying at least three prospective bidders;
--Preparing and issuing biddable plans and specifications;
--Receiving, opening, reviewing, and compiling bids, including any
proposed alternatives to bid plans and specifications;
--Notification of bidders of results, and award of the contract.
In the best of circumstances, it is unlikely that all of these actions could be
completed in a sound fashion with only 1 .8 hours of professional effort. In
the kind of situation where bidding is most likely to be used—atypical site
conditions or other unusual circumstances—just the essential act of
preparing biddable plans and specifications may take several hours effort
involving the Project Manager and perhaps other professionals, as well as
drafting and clerical assistance.
A
solution to this problem would be to
allow the professional services entailed in carrying out the biddingprocess
to be reimbursed on a time and materials basis. The consultant would
have to estimate the time and expenses involved for each subcontract to
be bid out and include that estimate in the budget before the charges
could be reimbursed.
2. The Agency has proposed that reimbursement for use of alternative
technology will require cost estimates for that particular technology, plus at least
two other alternative technologies, plus conventional technology. The cost for
3
the proposed alternative technology may neither be greater than that for
conventional technology, nor substantially higher than that for any of the
alternative technologies. This pre-supposes that there are at least three
workable alternative technologies available for a given site, which may not be the
case. It also assumes that feasibility and estimated costs for three alternative
technologies can be determined with sufficient certainty to allow a meaningful
comparison, without costly collection of additional site-specific data or
performance of pilot testing. It is also noted that there is no provision for taking
into consideration differences in the anticipated length of the remediation
schedule for different technologies. Reimbursement of a marginally higher total
cost for use of a technology that will achieve the remediation objectives in
substantially less time should be an available option. Even though this
alternative technology may have the lowest cost, the owner/operator should be
free to choose a speedier technology.
All of these concerns can be addressed
by addition of appropriate exception language to the Agency’s current proposal.
3. The Agency has proposed that language be added to the rules stipulating that
costs for on-site corrective action to achieve remediation objectives more
stringent than the TACO Tier 2 objectives will be ineligible for remediation, and
that certain site-specific parameters be determined as part of the site
investigation process to be eligible for reimbursement for remediation costs. The
costs for gathering this additional information would be reimbursable.
4
ACEC-l endorses these proposed changes in the rules. We believe the potential
cost savings for the Underground Storage Tank Fund are significant. The use of
Tier 2 clean-up objectives in no way compromises public health or the
environment, and does not increase risk of exposure to unsafe contaminant
concentrations for anyone, either on-site or off-site. ACEC-I believes the
opposition that has been voiced to this proposal reflects either a
misunderstanding of the “Tiered Approach” or unwarranted concern about the
dominance of perception over reality in the real estate marketplace.
4. ACEC-l has a continuing concern with the lack of clear delineation of the
scope of services to be covered by the various lump sum payments for
professional services proposed by the Agency.. This concern has been voiced
previously during the hearings, but the Agency has not alleviated this concern.
We therefore ask that the Board use the detailed information provided in
Attachment B to my earlier pre-filed testimony, as well as relevant information
from PIPE, to remedy this deficiencyin the Agency’s proposal.
5. We are disappointed that the Agency has rejected our proposal to establish a
formal procedure for notifying an owner/operator in advance of the Agency’s
tentative determination to deny or cut a reimbursement payment and for
providing an opportunity to meet to discuss the issues involved before final action
is taken. While this is a change the Agency could make without regulatory
authorization by the Board, the Agency’s unwillingness to do so compels us to
5
ask the Board to mandate such a procedure. The explanation offered by Doug
Clay of the reasons for the Agency’s rejection of this plan in his August 9
testimony (pp. 13-14) is not convincing. One point that he does not address in
his explanation is the fact that the denial letters that are issued presently often do
not contain specific information regarding the reasons for denial and what is
needed to remedy the deficiency. He also does not state why the 120-day
review clock cannot be stopped by a voluntary waiver from the owner/operator,
analogous to the Agency’s routine practice for several categories of permit
actions. This waiver would allow whatever time might be needed to resolve the
issues involved in the tentative denial. This plan would entail essentially no
additional cost, and would greatly reduce the number of appeals to the Board
and their attendant costs.
Finally, it is ACEC-l’s recommendation that at the conclusion of this comment
period, the Board should move ahead with drafting and issuance of a First Notice
based on the record as it stands. There will be further opportunity to comment
after that step, and in our view that is the best way to move toward resolution of
the many unresolved issues remaining in this proceeding.
6
