TTER OF:

~MENDMENTS TO:

dN PETROLEUM LEAKING

D~JNDSTORAGE TANKS

4.

CODE 732

I

IN THE M tTER OF:

)AMENDMENTS TO:

IoN PETROLEUM LEAKING

ÔUND STORAGE TANKS

CODE 734

yM. Gunn, Clerk

i~isPollution Control Board

•ds R.. Thompson Center

~V.Randolph. Suite 11-500

k~ago,Illinois 60601

JAY P.

United

(618)73

(618) 73

jay@ Un

~OCH

;i5nce Industries, Inc.

-~411

~2907 (FAX)

edscience.com

Ms. Marie E. Tipsord

Illinois Pollution Control E~oard

James R. Thompson Center

100 West Randolph, Suite 11-500

Chicago, IL 60601

Un~~!

Scien6 1ndustrie’~1nc,

Jay P. Koch, President

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with

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IN THE M~

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35

ILL. A

RECE~VED

CLERK’S OFFICE

)

SEP23200k

STATE OF ILUNOIS

)

R04-22

Poflution Control Board

)

(Rulemaking

-.

UST;

)

)

)

)

R04-.23

)

(Rulemaking UST)

)

Consolidated

)

To:

Th

Ill.

Ja

10

Ci

N

the Illino

ADDITI’

23 (RUL

NOTICE OFFILING

w comes JAY P. KOCH, on behalf ofUnited Science Industries, Inc., and files with

Pollution Control Board, via fa~and an original via U.S. Mail a R~QU~STFOR

~~ALHEARING WiTH REGARDS TO

R04-22

(RULE AKING-UST)

AND

R04~

MAKING-UST) copies of which are herewith s

ed up

you.

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RE CE ~VED

CLERK’S OFFICE

SEP 23 2004

PROOF ~

STATE OF ILLINO1S

Pollution Control Board

The

dersigned, being duly sworn, states that a true and correct copy of the foregoing

REQUEST OR ADDITIONAL HEARING WITH REGARDS TO R04-22 (RULEMAKING-

UST) AND 04-23 (RULEMAKING-UST) with the CLERK and the HEARING OFFICER of

the ILLINO ?OLLUTJON CONTROL BOARD, was served on the individuals as listed below,

by mailing e same via the United States postal service, Springfield, Illinois on September 23

2004:

Gina Rocca bite

Claire Manning

Kyle Romi ~r

Posegate &

Denes,

P.C.

Douglas Cl

~r

111 N 6th Street

IEPA

Springfield, IL 62701

1021 North b~randAve. East

P.O. Box 1 2t76

Robert A. Messina, General Counsel

Springfield IL 62794

Illinois Environmental Regulatory Group

3 150 Roland Avenue

Thomas G. ~Skfley

Springfield, IL 62703

Hodge,D y~r,Zeman

3150 Rol d/Avemie

Kenneth James

P.O. Box

16

Carlson Environmental, Inc.

Springfiel IL 62705

65

E, Wacker Place, Suite ~.500

Chicago, IL 60601

William

It~ickett

Sidley, A t~n,Brown & Wood

Lisa Frede

Bank One, laza

Chemical Industry Counci1, of IL

10 South ~arbom Street

2250 E. DevonAve., Suite 239

Chicago,

60603

DesPlaines, IL 60018

Barbara agel

Carolyn S. Hesse

Karagani

/

~ White, Ltd.

Barnes & Thornburg

414 No

~rleans St., Suite 810

1 North Wacker Drive, Suite 4400

Chicago,

60610

Chicago, IL 60606

Bill Flei h~li

Michael W. Rapps

Illinois

tfoleum Marketers Association

Rapps Engineering & Applied Science

112 Wes Cook Street

821 S. Durkin Drive

Springfi

4,

IL 62704

P.O. Box 7349

I

Springfield, IL 6279107349

Joe Kell

.

PE

United 6~enceIndustries, Inc.

Joel S. Sternstcin

P.O. Bo

F

~60

Office of the Attorney General

6295

E t(Illinois Highway 15

EnvirOnmental Bureau

Woodla1 n, IL 62898-0360

188 West Randolph. 20th Floor

I

.

Chicago, IL 60601

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tier

ugleton Associates, LLC

~dad

62298

Dcflan

n~letonAssociates

;r~et

i~f,PE

f~Inc.

li/ngton Ave., Suite 100

60525

.r~on

~tch

Dr.. Suite 1100

60606

~D1~’iccolo,Office Manager

~viJronrnental,Inc.

Spring St.

~ri,JL 60177

~enue

f~IA52722

~n, General Counsel

e~t.of Natural Resources

ira! Resources Way

l~,IL 62702

Engineering

La! Development LLC

~~60

~tI

Illinois HIghway 15

~vh,IL

62898

Manager

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 E. Diehl Road, Suite 100

Naperville, IL

60563

Jeff Wienhoff

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

Tom Herlac,

Herlacher A

8731 Bluff~

Waterloo, 1-1/

Jennifer Gc~

Herlacher

522 Belle

Alton, IL

James E. F

Huff &

Flu

512 W.Buj

LaGrange,~

Scott And~

Black &

101 N.W~

Chicago, ~

Melanie L

Marlin En

1000 We~

South El~

Brian Po

Terracon

87040th~

Bettendo~

Jonathan

Illinois

r

One Nat

Springfi

Joe Kell

EcolJigi

P.O. Bo

6295

Woodla~

GlenL~

Wendit

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fros, PE

~aLtConsulting &

I

Inc.

~ Rd., #309

JL 60137

:bixon

~i4gineering& Consulting, Inc.

Lu~ttialRoad

511615

ithan

~ of Transportation

~ Parkway

IL 62764

~±ay

L~ironrnentalServIces, Inc.

r~Drive

c,IL 60477

biacek

~vfroninentalConsultants

arine Road, Suite 101

60067

~ser

Woods LLP

~ctker,Suite4400

60601

id~r,Heinker & Gale

a~way,Suite 2000

,~1O63104

~gineering Services, Inc.

IJ66~st.

b~t,IL 60452

ldr,

Regional Manager

ri Environmental Corp.

3700 W. Grand Avenue, Suite A

Springfield, IL 62707

Russ Goodiel

Applied Environmental Solutions, Inc.

P.O. Box 1225

Centralia, IL 62801

Daniel Goodwin

Secor International, Inc.

400

Bruns Lane

Springfield, XL 62702

Eric Minder

Caterpillar, Inc.

100 N.E. Adams St.

Peoria, IL 61629

Daniel Caplice

K-Plus Environnuental

600 W. Van Buren St., Suite 1000.

Chicago, IL 60607

Craig S. Gocker,

Environmental Management & Tecithology

2012 West College Aye, Suite 208

Norrn.al, IL 61761

Steve Gobelman

Illinois Dept. of

Transpor:ation

2300 Dirksen Parkway

Springfield, XL 62764

Monte Nierikerk

Clayton Group Services, Inc.

3140 Finley Road

Downers Grove, IL 60515

JAY P. KOCH

6295 E Illinois Hwy 15

Woodlawn, IL 62898

(618)735-2411

(618)735-2907 (FAX)

jay@unitedscience.com

Richard An

Environmeri

Engineerin~

551 Roosev~

Glenn Ellyx~

Terrence

V~

MACTEC

8901 N. Inc

Peoria. IL

Steve Gob

Illinois De~

2300 Dir1c.~

Springfielc~

Collin W.

SEECO B

7350

Duv~

Tinley Pa~

George M

United En

119 E. Pa

Palatine.

David Ri

McGuire

77W. W

Chicago,

Tina Arc

Greensf~

10 S. Br’~

St. Loui~

Erin Cu:

Midwes

4243 W

OakFo

Ken Mi

Amenic

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RECE~V~J

I

BEFORE TIlE

ILLINOIS POLLUTION CONTROL ~

OFFiCE

IN

TFI MATTER OF:

)

)

STATE

SEPOF

23ILLINOIS

2004

PROTh SlED

AMENDMENTS

TO:

)

R04-22

Pollution Control Board

REGU ATION PETROLEUM LEAKING

)

(Rulemaking

-

LIST)

UNDE .~3ROUNDSTORAGETANKS

)

35 ILL ~DM.CODE732

)

INTH MATTER OF:

)

)

PROP ~ED AMENDMENTS TO:

)

R04-23

REGI. ,ATION PETROLEUM LEAKING

)

(Rulemaking

-

liST)

UND

~GROUND STORAGE TANKS

)

Consolidated

351L .AtM.C0DE734

REQ ‘AST FOR

AN

ADDITIONAL HEARING

Now comes United Science Industries, Inc., USI, by and through itt; President, Jay

P.

K

I

and hereby requests an additional hearing before the Illinois Pollution Control

Boar th the above stated matter.

BA( ~GROUND &

RATIONALE

FOR REQUEST

Iunited Science Industries, Inc. has participated in the numerous hearings held

befo !the XPCB since March of this year relating to the above referenced proposed rule.

USI ~articipation in the hearing process has been at the

fi~level

and

also as a member

ofti ~Prof~ssionalsof Illinois for the Protection of the Environment (PU’E).

As the IPCB is aware, there has been a significant amount of debate and

con .dversy surrounding this rulemaking.

Most of the corarovers~’centers not on

tee tn~calis sues but on the subject of Cost containment. One of

th~main points of

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debate/ i~cussionduring the hearings is the validity

of

the

data used by

TEPA to establish

the cos 1

that have been proposed by

JEPA as the maximum payment amounts under

Subp

.

The second is the Agency’s proposal to provide payment/reimbutrsement for a

nurnbe professional service tasks on a lump sum basis.

The

underlying matter is whether or not

the

approach proposed by the

Agency

would ~sult in the

reimbursementlpayment

of “reasonable” costs incurred and

necessary

in ord o meet the minimum requirements of the Act. This is the

case b~~causeSection

~ (

~

of Public Act

92-0554

provides: “In approving any plan submitted pursuant

to thi sp.bsection (a) or (b) of this Section, the Agency shall determine by a procedure

prom dated by the Board under Section 57.14, that the costs associated with the plan are

reaso able, will be incurred in performance of site investigation or corrective action, and

will

be used for site investigation or corrective action activitIes in excess of those

requi

to meet the minimum requirements of this Title.”

1rhe~f0~.e,

applicable statutes prescribed that any costs containment rule should

prov~ for the reimbursem~ntJpaymentof the reasonable costs of undert~tkingcorrective

actio (which were necessary and incurred at a LUST site in order to comply with the

mini ~tmrequirements of applicable statues arid regulations.

Fortunately, the statutory

lang age provided above also supplies guidance as to how reasonableness determinations

sho d be made. The statutory language is clear that the determination of reasonableness

sho j1c~be on a plan by plan basis.

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the limited resources of the Agency’s LUST Unit and the volume of

work

the Agency’s LUST Unit must administer annually, I appreciate the Agency’s

desire 0/establish cost thresholds to help guide Agency reviewers in their determinations

of rca o~riablenesswhen evaluating individual work plans and budgets. I can also

appre a e that in the absence of some form of guidance as to gcneraE.zed ranges of

reaso Ileness, the task of performing detailed individual reviews of work plans and

budge s is too daunting. In fact, to the extent that the standardization of rates still allows

for ju i ication of reasonableness on a plan-by-plan basis with the standard forreviewing

justif ~tions as being something less than an unusual or extraordinary circumstance and

as lo

~s the standardization helps facilitate the expeditious review of plans and budgets,

the a ption of thresholds of reasonableness is favorable,

However, the use of a

speci i d costs figure as a near absolute “maximum payment amount” is unreasonable

and 4eby outside the authority granted to the Agency under the statute cited above.

~Ifthe Agency would use their proposed rates for the various LUST tasks provided

in S b~partH

as benchmarks for determining cost

reasonableness an~not absolutes

(m imum payment amounts which can only be exceeded in unusual or extraordinary

situ i us), it would seem that they would be within their statutory authority in doing so. I

also

lieve the regulated community would be much more receptive no the Agency’s

pro ~al.Finally, I also believe the

regulated community would be especially receptive to

the ~,ency’sproposal

if the regulated community was convinced that the adoption of

Sub a~H would result in the more expeditious review of plans, budgets and repo~sand

wo

be fairly and uniformly administered.

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SI has long held, and continues to believe, that the creation of a database to

track e/ costs of performing investigations and corrective actions at LUST sites is the

most

~urate and feasible way to implement cost containment. More importantly, a

databa e helps to assure a fair, uniform arid objective means for administering the

progra going forward.

The benefits of a database that would allow the Agency to

track o ts pursuant to a standardized work breakdown structure (WBS), a standard

bum

r~iethodologyfor each task within the work breakdown structure, standardized

units f measure and a table of standard resources that could be utilized for time and

mater ~ tasks is invaluable. A database could 1.) provide the statistically reliable

datas ~,hathas been so sorely missing from these proceedings 2.) facilitate the long term

proje i~riof clean-up costs statewide

3.)

expedite the review of budgets and plans and

envir n~nentalclean-up and 4) allow the Agency and the Board to use ~llinois specific

mark t kiata that is consistent with the task and administrative peculiarities of the Illinois’

LUS

program as a means for establishing initial and revisionary baseline cost

cont ~ent thresholds.

Further, a database could be used to automate portions of the budget and claims

revi

process and would provide the JEPA with a means of achieving several of their

state koals for this rulemaking. These goals include: 1.) limiting the amount oftechnical

revi er (IEPA Project Manager) time spent on budget reviews/issues 2.) minimizing

the ~r~eframefor reimbursement; and 3) maximizing the effectiveness of expenditures

fro

~heLUST Fund (containing costs).

~ automated claims review system could

ser io define, over time: the specific activities that are normally Included a given task

8

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as wel s the range of costs that the free market system indicates are reasonable for that

tasks.

flhis approach would help to establish, for an example, whether the Agency’s

propo

to pay a lump sum for professional service task is appropriate.

i~Jnfortunately,the Agency has objected to the creation of a database. Their

positi n1has been that the development of a database would be too complicated, too time

consu ng and too costly to implement. As a result of this position by the Agency, USI

is co ~rried that the IPCB could be hesitant to adopt a component that is critically

need

as part of this rulemaking process. This critical component is the creation of a

datab

Se

to track costs, establish statistically reliable pricing points for LUST clean-up in

Illino

and enable the fair, uniform and expeditious review of plan.~,budgets and

reim i~sementpayments.

order to dispel any hesitance that the JPCB might have regarding the

timel n ss, costs or complexity associated with the development and use of a customized

data 1e for purposes of achieving and administering a costs containment program, TJSI.

has t

n the initiative to develop a functional prototype of an automated administrative

data a e system.

USI developed this automated database system since the August

9th

hearing, and

envi i ns that this, or a similar, automated process could be utilized by the Agency to set

initi 1 costs containment thresholds based upon actual market data and

also in the long

te

a ministration oftheir program.

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ere are a number of benefits to utilizing an automated system such as the

protot

which has been developed. In the instance of the current prototype these

benefi ~ncludebut are not limited to; 1.) the prototype is flexible and would provide the

Agen

with appropriate managerial latitude and discretions in setting the initial

thresh 1~Jpricing levels for expedited budgetary and payment application reviews and

proce thg (this allows the Agency to adjust their workload so that only the reviews that

they b I eve are necessary are required to be performed on a detailed basis; 2.) the novel

busin

and administrative rules that have been built into the system provide a means for

admi ~sering a long term costs containment program based upon competitive market

data

will be specific to LUST clean-ups in Illinois (the system provides a unique cost

conta ~nentincentive measure which has not been previously presente~Lto the

JPCB);

and 3 i ~fheprototypical system is also functional, thereby proving that a database system

can b ~uilt and deployed quickly enough to be inc’uded as part ofthis rulemaking.

There are a number of obvious efficiencies of utilizing an automated budgetary

and ,a~msreview system. However, USI has learned from engaging in the details of the

deve ~ment process that there are also a number of subtle, yet extremely profound,

effic

.

4cies afforded through the use of an automated system. These subtle efficIencies

are

~explicit in this document and have not been previously presented to the IPCB but

are 1

ly to be incredibly enabling to the process of developing and administering a fair

cost dntainment rule. As such, I believe a presentation of the features and benefits ofthe

10

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use of a~automated budgetary review and claims processing system would be

dramati a ly enlightening to the IPCB as it prepares to deliberate this matter.

erefore, I respectfully request. on behalf of USI, that the Board

consider

anothe baring to provide USI with an opportunity to present the features a~dbenefits of

a prot 3)pical automated administrative system for reviewing budget submittals and

payme t pplications.

United Science Industries,

Inc.

President

L

•

.

11

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FAX

(

___

if

~\

UNiTED SCIENCE INDUSTRiES

aa

if

TO:

Phone

Fax Phone

REMARKS:

~omthyM. Gunn, Clerk

Illinois Pollution Control

hoard

~amesR. Thompson Cntr

100 W. Randolph

Suite 11-500, Chicago, IL

~12-814-3669

0

Urgent

El

Foryour review

Dear Ms. 3unn:

Please fil

behalf of

contact n

Jay P.

IS

RECE~VED

CLERK’S OFFICE

SEP 23 200k

I

-.

Date

9-2.~-04

Pollution~~1ATEOF

C~fl~Oi

ILliNOIS

~

I

Number ofpages ineludir~pversheet

Jay P. Koch

United Science

IndustrIes

P0 Box 360

6295

E

Woodlawn, Illinois 62898

FROM:

Phone

Fax Phone

618-735-2411

Ext

112

618-735-2907

Reply ASAP

0

Please Comment

Sincerel

United S

~heattached

Notice

of Fifing as it relates to R04-22

and R04-23 rulemaking, on

)hited Science industries. If you have any questions, please do not hesitate to

•e’at the above numbers.

.iènce

., (nc

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