RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAY 112005
iN
THE MATTER
OF.
PoHutlOnSTATE OFControlILLINOISBoard
PROPOSED AMENDMENTS TO:
)
REGULATION OF PETROLEUM LEAKING
)
R04-22.
UNDERGROUND STORAGE TANKS
)
(Rulemaking
-
UST)
35
ILL. ADM. CODE 732
)
IN THE MATTER OF:
PROPOSED AMENDMENTS TO:
)
REGULATION OF PETROLEUM LEAKING
)
R04-23
UNDERGROUND STORAGE TANKS
)
(Rulemaking
-
UST)
35.
ILL. ADM. CODE 734
)
Consolidated
Proposed Rule. First Notice
PREFILED QUESTIONS FROM
CINDY
S. DAVIS,
P.G.
AND
JOSEPH W.
TRUESDALE,
P.E, P.G. OF,CSD ENVIRONMENTAL SERVICES, INC. REGAURDING
THE ILLINOIS POLLUTION CONTROL BOARD’S 1ST NOTICE OF
AMMENDMENTS TO
35
ILL. ADM CODE 732 AND 35 ILL. ADM. CODE 734
SUBPART H: MAXIMUM PAYMENTS AMOUNTS
A.) The Board acknowledged that the research and collection of data used to determine
maximum lump payment amounts which were proposed by the Agency are not based on
any scientific or statisticallyrecognized method.
1.
Is it possible to evaluate the data the Agency currently has
.
in its possession to
determine statistically valid maximum payment amounts?
2.
Is it possible the Agency may have underestimated the tasks needed or the
number of hours it takes to complete the tasks when establishing the maximum
payment amounts in proposed Subpart H?
a.
Ifnot, why?
3.
What recourse will the owner/operator have if there are deficiencies in the
proposed maximum payment amounts?
a..
Ifnone, why?
4.
Will specific procedures be developed by the Agency to perform the triennial
review to determine whether or not current maximum payment amounts are
consistent with prevailing market rates and suggest changes needed to make the
maximum payment amounts consistent with prevailing market rates, pursuant to
proposed 732.875 and
734.875?
a.
If not, why?
b.
Ifso, will those procedures be made public information?
1.
Ifnot, why?
5.
If any,procedures developed by the Agency to perform the triennial review and
identif~’any changes needed to make maximum payment amounts consistent with
prevailing market rates involve a long delay before implementation, how will the
Agency compensate the owner or operator during the delay?
6.
What additional measures has the Agency considered using to identify and correct
any deficiencies in maximum payment amounts, in a timely fashion, other than
the triennial review conducted. pursuant to proposed 732.875 and
734.875?
a..
Ifnone, why?
7.
If the Agency fails to find or fix any deficiencies in a timely manner, are there any
repercussions to the Agency or the State ofIllinois?
8.
What procedure will the Agency use to .notify the owners/operators when the
maximum payment amounts have been adjusted?.
9.
How did the Agency determine the annual inflation factor was the appropriate
factor to use to adjust the maximum lump sum rates?
a.
Did the Agency consider any other factors?
1.
Ifno, why?
B.) The Agency stated in testimony at hearing on May 26, 2004 that drillers and tank
removal contractors (among others). were contacted to verify that the maximum payment
amounts derived by the Agency were consistent with prevailing market rates.
1.
Which specific drillers and tank removal contractors were contacted to. verify that
the maximum payment amounts derived by the Agency were in fact consistent
with prevailing market rates?
732.855 &
734.855
BIDDING
C.) The Agency is proposing that a bidding process be used as an alternative to the maximum
payment amount set forth in Subpart H.
1.
What reasoning did the Agency employ to propose that “bids must not be
obtained from persons in which the owner or operator, or the owner’s or
operator’s primary contractor, has a financial interest” in 732.855
(a)
if “the
maximum payment amount for the work bid must be the amount of the lowest
bid, unless the lowest bid is less than the maximum payment amounts set forth in
Subpart H”, and “the owner or operator is not required to use the lowest bidder to
perform. the work, but instead may use another person qualified and able to
perform the work, including, but not limited to, a person in which the owner or
operator, or the owner’s or operator’s primary consultant, has a direct or indirect
financial interest” as proposed by the Agency in
734.855
(c)?
2.
Does the Agency realize that if a consultant owns their own contracting firm it
will be difficult, if not impossible, to obtain quotes from multiple competitors?
3.
If a consultant cannot find a competitor to give a quote and their own contracting
firm cannot perform the service for the maximum payment, what other
information can be provided to the Agency to prove the price being requested is
reasonable?
4.
Would documentation from RS Means or some other nationally recognized cost
data source suffice as supporting documentation for the unusual or extraordinary
provision in lieu ofthe bidding process?
a.)
Ifno, why?
732.8~5& 734.825
SOIL REMOVAL
AND
DISPOSAL
D.) The Agency is proposing that payment. for costs associated with the removal,
transportation, and disposal of contaminated soil exceeding the applicable remediation
objectives, visibly, contaminated fill, and concrete, asphalt, or paving ov~rlyingsuch
contaminated soil or fill must not exceed a total of$57.00 per cubic yard.
1.
Since the only unit price proposed is for the sum of the removal, transportation
and disposal costs, does the Agency intend to approve as reasonable any and all
costs submitted for the individual components of removal, transportation and
disposal as long as the sum ofthese cost are less than the proposed unit price of
$57.00 per cubic yard?
2.
What type of supporting documentation will the Agency require in order to
review requests forpayment for soil removal and disposal?
3.
Since the proposed maximum payment amount is based wholly on the total
volume in cubic yards of soil removed, transported and disposed of, and “the
volume of soil removed and disposed must be determined by. the following
equation using the dimensions of the resulting excavation: (Excavation Length x
Excavation Width x Excavation Depth) x 1.05?’, pursuant to proposed
732.825
(a)(l) and
734.825
(a)(l), is any supporting documentation other than the above
calculation required to review requests forpayment for soil removal and disposal?
a.) Ifso, why?
4.
Ifyard tickets indicating the total weight ofsoil received by the landfill, converted
to cubic yards using a conversion factor of
1.5
tons per cubic yard, pursuant to
proposed 732.825 (a)(l.) and 734.825 (a)(l), would that suffice as supporting
documentation for the unusual or extraordinary provision if the resulting
conversion results in a different volume of soil removed and disposed when
compared to the volume of soil removed and disposed determined by the
following equation using the dimensions ofthe resulting excavation: (Excavation
Length x Excavation Width x Excavation Depth) x
1.05”,
pursuant to proposed
732.825 (a)(1) and 734.825 (a)(1)?
a.) Ifno, why?
732.845 & 734.845. PROFESSIONAL CONSULTING SERVICES
E.) In the testimony of Brian Baur in support of the Illinois Environmental Protection
Agency’s proposal to adopt 35 Ill. Adm. Code 734 & 732, Mr. Bauer stated that the per
foot unit costs for drilling were based on “assuming an average 100 feet of drilling per
everit, eight soil borings advanced to a depth of 10 to 15 feet” and the average per foot
unit cost for well installation were “based on a monitor well installed to a depth of20 feet
below the ground surface.” The current proposals for 732 & 734 indicate that
professional consulting services associated with site investigation conducted pursuant to
Subpart C and payment for costs associated with field work and field oversight to define
the extent ofcontamination resulting from the release, must not exceed a total of$390.00
per half-day, and the number of half days...must not exceed “one half-day for every four
soil borings, or fraction thereof, drilled”, and “one half-day for each monitoring, well
installed”.
.
1.
What average soil boring and monitoring, well depths were assumed in the
proposed $390.00 per half-day?
2.
At what soil boring and monitoring depths would payment of costs for
professional consulting services associated with site investigation conducted
pursuant to Subpart C or payment for costs associated with field work and field
oversight to define the extent of contamination resulting from the release be
considered an unusual or extraordinary circumstance?
3.
.
Ifno specific soil boring or monitoring well depths would be considered unusual
or extraordinary circumstances, for payment of costs associated with site
investigation conducted pursuant to. Subpart C or with field work and field
oversight to define the extent of contamination resulting from the release, why,
not?
F.) In the Agency’s proposed 732.845 (d)(1.), payment for costs associated with the
preparation and submission of investigation plans for sites classified pursuant to Section
732.307 must not exceed A.) a total of $3,200.00 for plans to investigate on-site
contamination and B.) a total of $3,200.00 forplans to investigate off-site contamination.
1.
Is the total reimbursement for costs associated with the preparation arid
submission of ALL plans to investigate on-site contamination or off-site
contamination, for sites classified pursuant to Section 732.307, to be limited to
$3,200.00 or is the total reimbursement for costs associated with the preparation
and submission of EACH plan to investigate on-site contamination or off-site
contamination, for sites classified pursuant to Section 732.307,’ to be limited to
$3,200.00, assuming more than one plan is required to complete investigation of
on-site and / or off-site contamination?
2.
Since investigation of off-site contamination requires identification, notification
and completion of “best efforts” to obtain off-site access in accordance with
732.411’ and 734.350 for one or more additional properties, were these costs
included in the maximum payment amount for costs associated with the
preparation and submission ofplans to investigate off-site contamination, for sites
classified pursuant to Section 732.307?
a.
If so, how many off-site properties where considered when developing
maximum payment amounts for costs associated with the preparation and
submission of plans to investigate off-site contamination, for sites
classified pursuant to Section 732.307?
b;
Ifnot, why?
G.) In the Agency’s proposed 734.32’S (c), “upon completion ofthe Stage 3 site investigation
the owner or operator must proceed with the submission of a site investigation
completion report that meets the requirements ofSection 734.33 0”.
1.
Ifupon completion ofthe Stage 3 site investigation, the requirements of Section
734.330 (b)(3) and (b)(4) have not yet been meet, would this be considered an
unusual or extraordinary circumstance, and would a Stage 4 site investigation plan
also be required on a time and materials basis?
a.
Ifnot, why?
H.) In the Boards discussion of issues in their Proposed Rule: First Notice. Opinion and
Order of the Board, it is stated that “payment for costs associated with Stage 3 site
investigations will be reimbursed pursuant to Section 734.850” (Payment on Time and’.
Materials Basis); however, 734.845 (b)(S) states that “payment for costs associated with
.
the preparation and submission ofStage 3 site investigation plans must not exceed a total
of$3,200.00, while 734.845
(a)(5)
states that “payment for costs associated with Stage 3
site investigation will be reimbursed pursuant to Section 734850.
1.
Has this error been corrected?
.
I.) The Agency stated in testimony that groundwater remediation is considered an alternative
technology, and the Agency’s proposal for 732 and 734 indicates that payment for costs
associated with preparation and submission of corrective action plans for conventional
technology must not exceed a total of $5,120.00, and payment for cost associated with
alternative technologies must be determined on a time and materials basis.
1.
If a site has both soil and groundwater contamination, is the owner/operator
required to submit two plans, one for conventional dig and haul for the soil
contamination and one for an alternative technology for the groundwater
contamination?
a.
Ifso, are these plans to be submitted concurrently or consecutively?
b.
How is the owner/operator reimbursed for the preparation ofthese plans?
2.
Ifthe owner/operator submits a conventional plan for dig and haul, conducts the
remediation and the sidewall or floor samples still exceed the applicable
remediation objectives, is the owner/operator to submit an additional corrective
action plan?
.
a.
If so how is the owner/operator reimbursed forpreparation ofthis plan?
3.
‘
Does the Agency intend to limit how many corrective action plans are submitted
for a site?
4.
How does the Agency intend to control the costs of alternative technology
corrective action plans?
5.
Has the Agency considered requiring alternative technology corrective action
plans to be submitted in phases, with the first phase consisting ofa review of two
or more technologies and a proposal for design ofthe chosen technology, and the
second phase consisting of the implementation of the selected remediation
technology?
a.
If not, will the Agency developing a framework in which the
owner/operators submit the alternative technology plans in this manner to
ensure the corrective action technology chosen is agreeable to the Agency
prior to incurring design fees?
1.
Ifnot, why?
2.
If the Agency will allow the plans to be submitted in two phases,
will the Agency continue to allow the owner/operator to request
reimbursement ofthese plans every 90 days independently of each
other?
a.
Ifnot, why?
J.) In the Agency’s proposed 734.845 (c)(4) and 732.845 (d)(8), “payment for costs
associated with the preparation and submission of corrective action completion reports
must not exceed a total of
$5,120.00”.
,
1.
Are individual completion reports to be submitted independently following
completion of soil remediation and groundwater remediation, if conducted
consecutively?
a.
If so, is the maximum payment for cost associated with the preparation
and submission of corrective action completion reports to be considered
reasonable for EACH completion report submitted?
1.
Ifnot, why?
K.) In the Agency’s proposed 734.845 (d)(6)(B) and .732.845 (d)(2), “payment for costs
associated with the development of Tier 2 or Tier 3 remediation objectives must not
exceed a total of$800.00. Evaluationunder 35 JAC 742 TACO includes evaluation ofup
to six (6) separate routes ofpotential exposure for fifty-five
(55)
potential contaminants
of concern as listed in proposed 732 and 734 Appendix A and B and may include
calculation to predict ‘impact from remaining groundwater contamination, evaluation of
both surface and sub-surface soils and evaluation ofmixtures ofcontaminants ofconcern.
For Tier 3 specifically, the Agency’s own TACO Fact Sheet 1: Introduction indicates that
“a Tier 3 review and evaluation draws on expertise beyond’ the immediate BOL proj.ect
manager”.
1.
Given these circumstances and inherent variability of Tier 2 and Tier 3
evaluations under TACO, wouldn’t it seem more appropriate to consider payment
of costs associated with the development of Tier 2 or Tier 3 remediation
objectives on a time and materials basis?
.
a.
Ifnot, why?
2.
How many Tier 3 evaluations does. the LUST section review in one year on
average?
.
3.
How many Tier 3 evaluations has the LUST section reviewed in “total,
historically?
.
.
L.) In the Agency’s proposed 734.845 and 732.845, payment for costs associated with
professional consulting services must not exceed the amounts set forth in those sections,
and such costs include, but are not limited to, applications for payment from the Fund.
1.
Did the Agency provide costs for seeking payment from the Fund including, but
not limited to, completion ~f applications for partial or final payment, pursuant to
proposed 732.605 (a)(14) and 734.625 (a)(14), in their proposed maximum
payment amounts for 732.845 (a), (b) and (c), as well as, 734.845 (a), (b)(l),
(b)(3),
(b)(5)
and (c)?
a. Ifnot, why?
b. If so, how many applications for partial or final payment were provided for
under each professional consulting services sub-section?
2.
‘
Did the Agency allow for and include costs for completion of applications for
partial or final payment every 90 days as’ provided for in the Environmental
Protection Act SectiOn 57.8?
a. Ifnot, why?
3.
What unit rates and how many hours did the Agency use to determine the cost
,associated with seeking payment from the Fund including, but not limited to,
completion of applications for partial or final payment, pursuant to proposed
732.605 (a)(14) and 734.625 (a)(14), in their proposed maximum payment
amounts forprofessional services?
4.
Will the Agency be requesting detailed time and material type breakdown on
invoices for items which have maximum payment amounts for unit rates. or lump
sums?
.
a. Ifyes, why?
5.
Will the Agency attempt to control the profit margin on maximum payment
amounts for unit rates or lump sums?
a. If yes, what will be considered an appropriate profit margin, how will these
margins be determined, and will they be made available to the public?
6.
How did the Agency determine $640 was the appropriate amount for
reimbursement of revised corrective action plans if a plan and its associated
budget must be amended due to unforeseen circumstances (734.845 (f))?
7.
If a plan and its associated budget must be amended due to “unforeseen
circumstances” wouldn’t the amendment of that plan and budget logically fall
under the unusual or extraordinary circumstances provisions of734.860?
a.
Ifno, why?
IEPA CONSISTENCY OF
REVIEWS
M.)Statistics derived from the IEPA’s database and attached as.part of CSD’s questions,
show the Agency reviewers approve, with or without modification,
50
of the reports
submitted.
Some reviewers only approve
25
of the reports, with or without
modifications, while some reviewers approve
75
ofthe reports.
1.
How does the Agency explain this variation of approval rates between project
managers?
2.
How does the Agency explain an overall average approval rate of only 50 of
submittals?
3.
What does the Agency intend to do’ to improve the approval rate of approvals,
expedite closure of active incident numbers, and ensure consistency amongst
reviewers?
4.
Will the Agency develop a standard for review?
a.
If not, why?
1.
Without a written standard, how will the Agency assure the public
that all Agency reviewers will require the same level of effort for
all items subject to a maximum payment amount and will not, in
some cases, require more information or effort from some
owners/operators or. consultants, without consideration of
providing additional.compensation under unusual or extraordinary
circumstances and as a result, impose an unfair financial penalty?
b.
Ifthe Agency were to develop a standard for review will they, share that
standard with the public so we can .follow it to ensure we submit the
information in the format desired by the Agency?
1.
Ifnot, why?
SCOPE OF
WORK
.
N.) The Board determined a scope of work was not necessary because they and the Agency
believe the variability is accounted for in the rates. The board further stated that the
proposal includes a bidding process for’ projects that cannot be undertaken for the
maximum rate in Subpart H and that including a scope of work would be cumbersome.
Statistics derived from the IEPA’s database and attached as part of CSD’s questions,
show the Agency reviewers approve with or ‘without modification only
50
of the
reports submitted. CSD finds the 50 approyal rate is troublesome. We would like the
proposed regulations to be more explicit so that we are more certain that we know what
the Agency wants in order to approve a report when submitted. When CSD submits our
reports, we find that each project manager at IEPA has his or her own set of criteria for
approving reports. Some project managers want a complete history of the project to date
with a table summarizing all ‘the analytical data some only want what you are proposing
for this particular stage, some want 3 cross sections, some want 2, etc... It is difficult and
frustrating from the consulting side to know what the Agency expects in each report. We
are asking the IEPA to consider a scope of work to help ensure consistency amongst
project managers and in turn, promote consistency amongst consulting firms’ and
streamline the Agency review and approval process.
1.
Willthe Agency consider modifying the standard forms prescribed and provided
by the Agency, as required in proposed 732.110 (a) and 734.135 (a), to include
more specific details ofwhat is required to be submitted in the report?
a.
Ifnot, why?’
b.
Ifthe Agency considers this effort to be too burdensome, will the Agency
consider establishing a work group of consultants and IEPA reviewers to
propose revisions to the forms?
1.
Ifno, why?
2.
‘
How was the variability from site to site been taken into account in development
ofthe maximum payment amounts as suggested by Mr. Clay?
3.
Why does the Agency believe’ that a defined scope of work is not necessary for
some if not every aspect of a UST cleanup to determine reasonable maximum
payment amounts, when the Agency’s own solution to determine reasonableness
as an alternative to the maximum payment amounts via the bidding process
proposed in 734.855 is predicated upon bids being based on the same “scope of
work”?
UNUSUAL OR EXTRAORDINARY CIRCUMSTANCES
0.)
In the Agency’s proposed 734.860 and 732.860, unusual or extraordinary circumstances,
the provisions for administering these subsections are somewhat vague and arbitrary.
1.
How often does the Agency expect to grant site specific maximum payment
amounts forunusual or extraordinary circumstances?
2.
What are some additional examples of situations which the Agency would
consider to be an unusual or extraordinary circumstance?
3.
What would the Agency consider to be a usual or ordinary circumstance?
4.
What procedure will the Agency establish for the public to use if they feel they
have an extraordinary circumstance?
5.
.
What type of information will be required to demonstrate to the Agency that the
costs for which a site specific maximum payment amount are being sought, are
the result of an unusual or extraordinary circumstance, are unavoidable, are
reasonable, and are necessary?
5.
Will the Agency’s decisions on extraordinary circumstances be subject to appeal
to the Board?
a.
Ifnot, why?
6
Would the Agency be willing to post a Question and Answer type page on their
website in order to track and inform owner/operators and consultants regarding
,requests for unusual’ or extraordinary circumstances, as well as, the Agency’s
decisions regarding whether or not those situations were considered to be unusual
or extraordinary and / or questions received by the Agency regarding general
administration ofprogram?
.
a.
Ifnot,why?
‘
IBPA Unit Manager and Project Manager ResDonse TyDe Analysis
2003 to Present
Includes both initial and amended submittals
Average
IQI~i
Days for
Decisions
‘
Resnonse
Averaee
Days for
Anprovals
ADoroval
Modified
or
Denied
Average
Days for
Mod/Den
McGill
596
18.37
36
414 69.46
31.75
182 30.54
45.75
Rossi
.
540 16.64
38
290
53.70
35.21
250 46.30
41.92
Davis
443
13.65
30
197 44.47
25.36
246 55.53
33.67
Hale
407 12.54
56
191 46.93
44.49
216 53.07
66.18
Zuehlke
386 11.90
44
159
41.19
32.38
227
58.81
48.69
Kaiser
326 10.05
58
164 50.31
48.87
162 49.69
68.22
Rothenng
293 9.03
58
184 62.80
53.14
109 37.20
‘67.13
Femandes
254 7.83
44
143 56.30
44.71
III 43.70
43.98
~
Malcom
682 25.24
33
273 40.03
30.50
409 59.97
‘33.85.
Hawbaker
403 ‘14.91
90
183 45.41
83.09
220
54.59
95.63.
Donnelly
391 14.47
41
111 28.39
39.78
280 71.61
41.71
Kuhlman
364 13.47
78
188
51.65
71.31
176 48.35
86.02
Weller
353 13.06
98
125 35.41
88.93
228 64.59
103.03
Bauer
271 10.03
96
70 25.83
91.16
201 74.17
98.06
Schwartzkopf
238 8.81
108
108 45.38
100.50
,
130 54.62
114.96
~‘..,.‘,.
Benanti
420 20.96
101
143. 34.05
87.27
277 65.95
108.39
Piggush
347 17.32
116
181 52.16
113.38
‘
166 47.84
119.31’
Heaton
294 14.67
86
118 40.14
‘
77.86
176
5.9.86
91.95
Putrich
214 10.68
39
98 45.79
41.10
116 54.21
37.24
McCain
193 9.63
95
111 57.51
89.05
82’ 42.49
102.95
Friedel
189 9.43
95
83 43.92
,
91.64
.106 56.08
97.31
Rahman
168 8.38
68
89 52.98
59.64
79 47.02
77.29
Urish
,
167 8.33’
58
99 59.28
54.02
68 40.72
62.87
Daly
‘
8 0.40
5.1
7
87.50
56.57
1 12.50
14.00
Lowder
4 0.20
368
0 0.00
0.00
4 100.00
368.00
367 19.60
332 17.74
330 17.63
242 12.93
219 11.70
200 10.68
88 4.70
79 4.22
14 0.75
1 0.05
66
200
54.50
59
154 46.39
36
132 40.00
80
170 70.25
89
121 55.25
83
131
65.50
77
37 42.05
52
‘
46 58.23
40
9 64.29
30
1
100.00
Barrett
Wallace
Myers
Hamilton
Ransdell
Covert
Thorsen
Tucka
Dolan
Nickell
Jones
Bloome
Gaydosh
Layman
South
Kasa
Ingold
Dilbaitis
Reynolds
63.88
54.54
31.86
80.66
79.56
78.05
69.84
49.41
47.22
30.00
167 45.50
178 53.61
198 60.00
72 29.75
98 44.75
69 34.50
51 57.95
33 41.77
5 35.71
0 0.00
69.39
63.02
38.03
78.67
101.19
92.94
81.57
56.00
27.00
0.00
532 35.70
308 20.67
282 18.93
165 11.07
74 4.97
42 2.82
32 2.15
28 1.88
27 1.81
51
292 54.89
45.73
240 45.11
56.41
69
206 66.88
67.54
102 33.12
73.09
112
168
59.57
105.76
114 40.43
120.93
100
97
58.79
90.37
68 41.21
114.35
52
43
58.11
47.33
31 41.89
58.00
44
33 78.57
38.09
9 21.43
65.33
79
25 78.13
81.20
‘
7 21.88
71.00
49
23 82.14
51.57
5.
17.86
39.60
,84
18 66.67
77.11
9 33.33
98.00
GRAND
TOTAL
11,313
65
5,635 49.81
59.90
5,678 50.19
70.71
4/27/2005 3:12:14PM
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