BEFORE THE POLLUTION CONTROL BO~ C E
~V E D
OF THE STATE OF ILLINOIS
CLERK’S OFFICE
iN THE MATTER OF:
)
MAY 0 It 2005
)
STATEOFILLINOIS
PROPOSED AMENDMENTS TO:
)
PoHution Control Board
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UNDERGROUND STORAGE TANKS
)
(UST Rulemaking)
(35
ILL. ADM. CODE 732),
)
)
IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
)
REGULATION OF PETROLEUM LEAKING
)
R04-23
UNDERGROUND STORAGE TANKS
)
(UST Rulemaking)
(35 ILL. ADM. CODE 734)
)
Consolidated
)
NOTICE OF FILING
TO:
ALL COUNSEL OF RECORD
(Service List Attached)
PLEASE TAKE NOTICE
that on May 4, 2005, filed with the Clerk of the Illinois
Pollution Control Board of the State of Illinois an original, executed copy of Pre-Filed Questions
from CW3M Company, Inc. for the Illinois Pollution Control Board’s 1st Notice of Amendments
to 35 Ill. Adm. Code 734 and 35 Iii. Adm. Code 732 in the above-captioned matter.
Dated: May 4, 2005
Respectfully submitted,
CW3M Company
~
By:
~
One ofIts Att~neys
Carolyn S. Hesse, Esq.
Barnes & Thornburg LLP
One North Wacker Drive -Suite 4400
Chicago, Illinois 60606
(312) 357-1313
270225v1
This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202
CERTIFICATE OF SERVICE
I, on oath state that I have served the attached Pre-Filed Questions from CW3M
Company, Inc. for the Illinois Pollution Control Board’s
1St
Notice of Amendments to 35 Ill.
Adm. Code 734 and 35 Ill. Adm. Code 732 by placing a copy in an envelope addressed to the
Service List Attached from CW3M Company, Inc., 701 West South Grand Avenue, Springfield,
IL 62704 before the hour of5:00 p.m., on this 4th Day of May, 2005.
Carol
C~-Q
Rowe
~
This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202
2
Service List
Gina Roccaforte
Kyle Rominger
IEPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
217/792-5544
217/782-9807 (fax)
William G. Dickett
Sidley Austin Brown & Wood
Bank One Plaza
10 South Dearborn Street
Chicago, IL 60603
312/853-7000
312/953-7036 (fax)
Bill Fleischi
Illinois Petroleum Marketers Association
112 West Cook Street
Springfield, IL 62704
217/793-1858
Robert A. Messina
General Counsel
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, IL 62703
217/523-4942
217/523-4948
Lisa Frede
Chemical Industry Council of Illinois
2250 East Devon Avenue
Des Plaines, IL 60018
(847) 544-5995
Thomas G. Safley
Hodge Dwyer Zeman
3150 Roland Avenue
P.O. Box 5776
Springfield, IL 62705-5776
217/528-4900
217/523-4948 (fax)
Barbara Magel
Karaganis & White, Ltd.
414 North Orleans Street
Suite 801
Chicago, IL 60610
312/836-1177
312/836-9083 (fax)
Joe Kelly, PE
United Science Industries, Inc.
6295 East Illinois Highway 15
P.O. Box 360
Woodlawn, IL 62898-0360
618/735-2411
618/735-2907 (fax)
Kenneth James
Carison Environmental, Inc.
65
East Wacker Place
Suite 1500
Chicago, IL 60601
Michael W. Rapps
Rapps Engineering & Applied Science
821 South Durkin Drive
P.O. Box 7349
Springfield, IL 62791-7349
217/787-2118
217/787-6641 (fax)
Joel J. Stemstein, Assistant Attorney General
Matthew J. Dunn~Division Chief
Office ofthe Attorney General
Environmental Bureau
188 West Randolph, 20th Floor
Chicago, IL 60601
312/814-2550
312/814-2347 (fax)
Dorothy M. Gunn, Clerk ofthe Board
Marie Tipsord, Hearing Officer
Illinois Pollution Control Board
100 West 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
Brown, Hay & Stephens, LLP
205 South Fifth Street
Suite 700
P.O. Box 2459
Springfield, Illinois 62705-2459
(217) 544-8491
(217) 241-3111 (fax)
Jonathan Furr, General Counsel
Illinois Department ofNatural Resources
One Natural Resources Way
Springfield, IL 72702-1271
217/782-1809
217/524-9640 (fax)
A.J. Pavlick
Great Lakes Analytical
1380 Busch Parkway
Buffalo Grove, IL 60089
847/808-7766
Tom Herlacher, P.E.
Principal Engineer
Herlacher Angleton Associates, LLC
8731 Bluff Road
Waterloo, IL 62298
618/935-2261
618/935-2694 (fax)
James E.Huff,P.E.
Huff & Huff, Inc.
512 West Burlington Avenue
Suite 100
LaGrange, IL
60525
Melanie LoPiccolo, Office Manager
Marlin Environmental, Inc.
1000 West Spring Street
South Elgin, IL 60177
847/468-8855
Brian Porter
Terracon
870 40th Avenue
Bettendorf, IA 52722
563/355-0702
Glen Lee, Manager
Wendler Engineering Services, Inc.
1770 West State Street
Sycamore, IL 60178
815/895-5008
Joseph W. Truesdale, P.E.
CSD Environmental Services, Inc.
2220 Yale Boulevard
Springfield, IL 62703
217/522-4085
2
David L. Rieser, Partner
McGuire Woods LLP
77 West Wacker Drive
Chicago, IL 60601
312/849-8249
Kurt Stepping
Director ofClient Services
PDC Laboratories
2231 West Altorfer Drive
Peoria, IL
61615
309/692-9688
Daniel J. Goodwin
Secor International, Inc.
400 Bruns Lane
Springfield, IL 62702
Richard Andros, P.E.
Environmental Consulting & Engineering, Inc.
551
Roosevelt Road, #309
Glen Ellyn, IL 60137
Steven Gobelman
Illinois Department ofTransportation
2300 Dirksen Parkway
Springfield, IL 62764
Jennifer Goodman
Herlacher Angleton Associates, LLC
522 Belle Street
Alton, IL 62002
Ron Dye
President
CoreGeological Services
2621 Monetga
Suite C
Springfield, IL 62704
(217) 787-6109
Monte Nienkerk
Clayton Group Services, Inc.
3140 Finley Road
Downers Grove, IL 60515
630/795-3207
Thomas M. Guist, PE
Team Leader
Atwell-Hicks, Inc.
940 East Diehl Road
Suite 100
Naperville, IL 60563
630/577-0800
DanKing, Team Leader
United Science Industries, Inc.
6295 East Illinois Hwy
15
Woodlawn, IL 62898
618/735-2411
Terrence W. Dixon, P.G.
MACTEC Engineering & Consulting, Inc.
8901 N. Industrial Road
Peoria, IL
61615
Collin W. Gray
SEECO Environmental Services, Inc.
7350 Duvon Drive
Tinley Park 60477
George F. Moncek
United Environmental Consultants, Inc.
119 East Palatine Road
Palatine, IL 60067
Tina Archer, Attorney
Greensfelder, Hemker & Gale
10 South Broadway
Suite 2000
St. Louis, MO 63104
314/241-9090
3
Erin Curley, Env. Department Manager
Midwest Engineering Services, Inc.
4243 West 166th Street
Oak Forest, IL 60452
708/535-9981
Russ Goodiel, Project Manager
Applied Environmental Solutions, Inc.
P.O. Box 1225
Centralia, IL 62801
618/533-5953
Eric Minder
Senior Environmental Engineer
Caterpillar, Inc.
100 NE Adams Street
Peoria, IL 61629
(309) 675-1658
208776v 1
Ken Miller, Regional Manager
American Environmental Corp.
3700 West Grand Ave., Suite A
Springfield, IL 62707
2 17/585-95 17
Jarrett Thomas
Vice President
Suburban Laboratories, Inc.
4140 Litt Drive
Hillside, IL 60162
(708) 544-3260
Daniel Caplice
K-Plus Environmental
600 West Van Buren Street
Suite 1000
Chicago, IL 60607
(312) 207-1600
4
BEFORE THE POLLUTION CONTROL BOARD
OF
THE
STATE OF ILLINOIS
iN THE MATTER OF:
)
MAY 0 It 2005
PROPOSED AMENDMENTS TO:
STATE OF ILLINOIS
REGULATION OF PETROLEUM LEAKING )
R04-22
pollution Control l3oard
UNDERGROUND STORAGE TANKS
)
(UST Rulemaking)
(35
ILL. ADM. CODE 732),
)
)
IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
)
REGULATION OF PETROLEUM LEAKING )
R04-23
UNDERGROUND STORAGE TANKS
)
(UST Rulemaking)
(35 ILL. ADM. CODE. 734)
)
Consolidated
)
Proposed Rule. First Notice
PRE-FILED
QUESTIONS FROM CW3M COMPANY, INC. FOR THE
ILLINOIS POLLUTION CONTROL BOARD’s 1st NOTICE OF AMENDMENTS
TO 35 ILL. ADM. CODE 734 AND 35 ILL. ADM. CODE
732
In response to the Illinois Pollution Control Board’s (IPCB) Hearing Officer Order dated
April 20, 2005, CW3M responds that CW3M is unavailable for hearings on 6/3 through 6/9, 6/22
through 6/27, 7/1 though 7/4 and 7/19.
In addition, CW3M is filing the following questions in order to prepare for the next
scheduled hearing on the proposed regulations.
.
1.
Will dollars approved in a budget prior to the enactment of the proposed rules be
considered when making decisions on budgets following enactment of the rules? For example, a
site investigation budget is approved prior to these rules for $2,500 for a Stage 1 Site
• Investigation Report, because the current requirements are greater than they will be under the
new rules. Then, after the new rules are enacted, the appropriate $3,200 is requested for a Stage
II plan. Will the Agency approve the $3,200 listed in the proposed rules or will they approve
some other amount?
2.
How will the Agency review Part 731 reimbursement claim submittals,
particularly forwork in progress?
3.
Have Agency personnel done any further research into rates since the last
hearing? Is there anything that the Agency is willing to do to reduce the uncertainties
surrounding the creation ofthe proposed rates?
4.
Since the owners and operators and their consultants are being required to reduce
expenditures from the fund, what is the IEPA going to do to reduce its expenditures from the
fund?
5.
Since the earlier hearings, are 90 of rates being submitted for budget approval
or reimbursement at or below proposed Subpart H numbers? If not, what is the percentage at or
below proposed Subpart H numbers?
6.
What groundwater remediation will still be needed at locations where a
groundwater ordinance is still in place? Must free product be removed? Must contamination
that exceeds the soil saturation limit be removed? Must Class I or II, as applicable, groundwater
quality standards be met at the edge of the area covered by the groundwater ordinance? Will
modeling be required to demonstrate that groundwater quality standards will be met outside of
the area subject to a groundwater ordinance? Will it be necessary to remediate groundwater to
prevent vapor intrusion into buildings? Will any of these activities be reimbursable from the
Fund?
7.
Did the IEPA examine criteria similar to those 35 JAC 620.260
Reclassi~flcationof
Groundwater by Adjusted Standard
with regards to the Agency’s proposal to disallow
reimbursement of groundwater remediation costs within an area designated with a groundwater
ordinance prohibiting potable water well installation? It is clear by 35 IAC 620.260 that the
JEPA and the IPCB recognize that changing groundwater standards can affect, among other
environmental and economic standards, property values. Specifically, did the IEPA consider the
affect on both on-site and off-site property values for sites where IEPA forces owners to leave
contamination in place by not reimbursing clean-up costs when a groundwater ordinance is in
place?
8.
The Agency has stated that the proposed Subpart H maximum amounts are
consistent with current market rates. Ifthis is the case and the proposed rates are adopted, how
will use ofthe proposed rates result in a cost savings to the UST Fund?
9.
No Further Remediation Letters typically include and the Illinois Environmental
Protection Act lists at 58.10(e) a number of circumstances by which a NFR Letter may become
void, including but not limited to previously undiscovered contamination that is above the
remediation objectives.
See
the Act at
58.10(e)(6).
If an NFR Letter becomes void, through no
fault of the owner, because previously unknown contamination is discovered and if further
remediation is required to reinstate the NFR Letter, can the site get back into the UST program
and will the remediation costs be eligible for reimbursement from the Fund?
10.
Will the Agency require the use of institutional controls and/or engineered
barriers to meet Tier II or other remediation objectives?
2
11.
When the Agency derived the number of
$57
per cubic yard as the allowable costs
for excavation, transportation and disposal, what distance between a site and a landfill was used?
Was this
an average distance? What was the range of distances considered? If the distance
between a site and the nearest landfill is greater than the reference distance, will the proposed
rule for “atypical” situations (formerly 732.855/734.855, now 732.860/734.860) apply? What
was the average volume ofsoil per site that was excavated, transported and disposed of when the
$57
per cubic yard of soil rate was derived? What was the range ofsoil volumes?
12.
Who determines when there is an “atypical” situation?
If a professional
engineer/professional geologist submits a report which specifically details why a situation is
unusual or extraordinary, how much weight will be given to the PE/PGs determination, or will
the decision be made solely by the IEPA project manage assigned to the site?
To what extent
must bids be obtained in an “atypical” situation?
13.
How did IEPA determine that a
5
“fluff factor” is appropriate? What is the
technical basis for this number? Explain how the Agency then determined that this was the
equivalent ofa larger number, such as 20?
14.
The Agency met with various trade groups prior to proposing the rule, and used
some of the input provided by these groups. Given the Agency’s limited experience performing
many ofthe activities for which rates have been proposed, and given the voluminous comments
provided by participants whose cumulative experience far outweighs the Agency in conducting
this work, has the Agency reconsidered any of the rates it submitted in its proposal? Did the
IEPA re-examine the rates which were developed using the National Construction Cost
Estimator after IEPA’s interpretations of those rates were proven during hearing to be flawed?
Did the IEPA consider revising the rates to match those derived when properly utilizing the
guide?
15.
Why does the JEPA believe that the use of RS Means is not an appropriate
method ofrate development?
.
Does the IEPA recognize that, while RS Means has numbers that
are national numbers, it also has factors which take into account the state in which the work is
being performed? For what specific reason did the IEPA find that the National Construction
Estimator was
an appropriate reference and RS Means was not?
16.
Has the IEPA recognized the discrepancy between using average costs as rates
and stating that they will cover 90
of packages submitted.
Please explain IEPA’s
understanding and provide examples.
• 17.
Did the IEPA discuss or evaluate following the submittal by PIPE the concept of
revising the average hourly rate of $80.00 (used for setting maximum rates with a predetermined
number of hours per task) to a rate properly weighted for the type of personnel conducting the
work (i.e. technical v. support staff)?
18.
Does the IEPA still maintain based on the record that the rates proposed are
generally
consistent with the current rates?
3
19.
How and under what framework will consultants be reimbursed for the additional
administrative expenses of securing, tracking and submitting proof of payment documentation?
For example did the JEPA consider increasing rates for handling charges to cover this expense or
consider adding this activity as another line item to be reimbursed.
20.
The IPCB stated in its first notice proposal, that it was modifying the way Stage 3
site investigations
would be paid to a time and materials basis. In the actual language of the
proposed rules, the IPCB added to the section labeled
“Early Action and Free Product Removal”
a statement to that effect. However, in the section labeled
“Site Investigation”
on the following
page, there is a line that indicated Stage 3
site investigations
would be paid in lump sums. Will
the JEPA propose modifications to correct the placement of the Stage 3 investigation budget and
billing procedures?
21.
The following questions pertain to the Section for travel reimbursement as
described on page 80 ofthe first notice proposal:
a.
Why did the IEPA find that OSHA regulations requiring a
buddy system were not applicable to LUST field work and
not reimburseable?
b.
What specific reason did the IEPA feel that it would be
appropriate when establishing rates for travel to include in
the average
rates ofjDersonnel who never leave the office?
c.
What specific reason did the IEPA believe that effectively
limiting an owner/operator’s choice of consultant to one
within a specific distance was appropriate for purposes of
reimbursement?
4
22.
•
When the bidding process will be used because a subcontractor’s cost will exceed
Subpart H, related professional services should automatically qualify for the extraordinary
circumstances clause. Does the JEPA find this proposal to be appropriate or inappropriate and
what are IEPA’s reasons?
Dated: May4, 2005
Respectfully submitted,
CW3M Company
By:
C~\p—~~
NUL~Q
One ofIts Attoi~heys
Carolyn S. Hesse, Esq.
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-13
27022 lv1
5
