R~ ~EIVED

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

IN THE MATTER OF:

PROPOSED AMENDMENTS TO: REGULATION

OF PETROLEUM LEAKING UNDERGROUND

STORAGE TANKS (35 ILL.ADM.CODE 732)

IN THE MATTER OF:

PROPOSED AMENDMENTS TO: REGULATION

OF PETROLEUM LEAKING UNDERGROUND

STORAGE TANKS (35 ILL.ADM.CODE 734)

R~ ~EIVED

CLERK’S OFFICE

JUN 15 2005

Dorothy Gunn, Clerk

Pollution Control Board

James R. Thompson Center

100 W. Randolph, Ste. 11-500

chicago, Illinois 60~01

See Attached Service List

Marie Tipsord, Hearing Officer

Pollution Control Board

James R. Thompson Center

100 W. Randolph, Ste 11-500

Chicago, Illinois 60601

PLEASE TAKE NOTICE that I have today filed with the Office of

the Clerk of the Pollution Control Board the Illinois Environmen?al Protection

Agency’s Response To Pre—Filed Questions on behalf of the Illinois

Environmental Protection Agency, a copy of which is herewith served

upon you.

ENVIRONMENTAL PROTECTION AGENCY

OF THE STATE OF ILLINOIS

By:

A~

Kyle Ro~nger

Assistant Counsel

DATE~Ufl~.: 14, 2005

Agency File 

#: .

Illinois Environmental

Protection Agency

1021 North Grand Ave. East

P.O. Box 19276

Springfield, IL 62794-9276

STATE OF ILLINOIS

Pollution Control Board

R 04-22

(Rulemaking 

Land)

R 04-23

(Rulemaking 

Land)

NOTICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

THE

MATTER OF:

)

~KSOFJ9CE

)

JUN152005

PROPOSED AMENDMENTS TO:

)

R04-22

REGULATION OF PETROLEUM

)

(Rulemaking

Land) PoDu~onControl Board

LEAKiNG UNDERGROUND STORAGE)

TANKS

(35

ILL. ADM. CODE 732)

IN THE MATTER OF:.

.. .

)

PROPOSED AMENDMENTS TO:

)

R04-23

REGULATION OF PETROLEUM

)

(Rulemaking

Land)

LEAKING UNDERGROUND STORAGE)

TANKS

(35

ILL. ADM. CODE 734)

)

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S

RESPONSE TO PRE-FILED QUESTIONS

NOW COMES the illinois EnvirônthentálProtéction Agency (“Illinois EPA”), by

and through one ofits attorneys, Kyle Rominger, and submits the following responses to

the pre-filed questions ofUnited Science Industries, Inc. (“USI”), CW3M Company, Inc.

(“CW3M”), and CSD Environmental Services, Inc. (“CSD”) forthe July 27, 2005,

hearing. The Illinois EPA would like to thank the Hearing Officer for granting an

extension for the filing ofthese responses.

The responses are divided into four sections: the first contains responses to

Daniel King’s questions, the second contains responses to JayKoch’s questions, the third

contains responses to CW3M’s questions, and the fourth contains responses to CSD’s

questions. The number ofeach response corresponds to the numbers ofthe pre-filed

questions. To minimize the number ofcitations, most responses refer only to the

provisions ofPart 734. Where appropriate, however, the responses would also apply to

the corresponding provisions ofPart 732 unless the context ofthe response indicates

•

otherwise.

Answers to the Pre-Filed Questions of Daniel King of USI

The maximum payment amounts for activities required under Section•

~..

734.2 10(a) are found throughout Subpart H and depend upon the activities being

perform~d.For example, amounts for tank removal activities are addressed in Section.

734.8 10, amounts for free productremoval activities and groundwater removal and.

disposal activities are addressed in Section 734.8

15,

amounts for.soil removal and

disposal activities are addressed in Section 734.825, and amounts for professional

consulting services are addressed in Section 734.845. As alternatives to the amounts set

for~liii~ithese Sections, owners and operators can determIne maximum payment amourits

via bidding

under Section

• - --

734.855.

.. . • ..~‘—•.

Owners

~.. •

and

op~i~t~

nalso

.-.-••

.•

seek

.,, ~.

alternative

maximum payment amounts for unusual and extraOrdin~rycircumstances under Section

734.860.

The maximum payment amounts for activities required under Seclion

734.210(b) are found throughout Subpart H and depend upon the activities being

performed. Examples of activities that might be performedto comply with Section.

734.210(b) and the Sections containing the maximum payment amounts forthose

activities are set forth in question 1 above. As alternatives to the maximum payment

amounts, owners and operators can also bids costs Section 734.855 and seek alternative

maximum

pa~entamounts for unusual and extraordina~circumstances under Section

734.860.

•

An extension granted under Section 734.210(g) does not extend.the

deadline under Section 734.210(d) for the filing ofa 45-Day Report. Please note that the

submission ofan amended 45-Day Report at the conclusion of early action activities

would not result in unnecessary duplicated effort. The information submitted in the

amended report would be information that was not submitted in the initial 45-Day Report.

The Illinois EPA included costs associated with the preparation and submission of.

amended~45-DayReports in the maximum payment.amounts it proposedfor the•

preparatkn and submission of20-Day and 45-Day Reports (Section

734.845(a)(3)).

The Illinois EPA inôluded costs associated with requesting an extensiori

under Section 734.2 10(g) in thô maximum payment amount it proposed for the

preparation and submission of20-Day and 45-Day Reports (Section

734.845(a)(3)).

The Illinois EPA inôludedthè costs forabandonment slurry in the

•

••

•

maximum payment amounts it proposed for tank removal or abandonment (Section

. ..

. .

734.810).

The maximum payment amounts fortank abandonment are set forth in

Section 734.8 10~The Illinois EPA does not envision the unusual or extraordinary

circumstances provisions (Section 734.860) applying to a tank abandonment merely

because the Office ofthe State Fire Marshal has determined that an unusual situation

makes removal ofthe tank infeasible.

The Illinois EPA included costs associated with fieldpersonnel and

mobilization in the maximum payment amounts it proposed to the Board for specific field

activities. For example, the maximum payment amounts proposed for drilling (Section

734.820) include all costs associated with the field personnel, mobilization, and

equipment needed to perform the drilling.

The Illinois EPA included professional consulting services costs

associated with the preparation for early action soil abatement in the maximum payment

amount it. proposed fo~preparation for the abandonment orremoval ofUSTs (Section

734.845(a)(1)).

The Illinois EPA included.professional consulting services costs

associated with preparation for the implementation of conventional corrective action

technok~gi~sin the maximum payment amount it proposed for the preparation and

submission ofconventionaltechnology corrective action plans (Section 734. 845(c)(1

)).

The Illinois EPA included professional ôonsulting services costs associated with

. ..

preparation fordnllrng events in the maximum payment amounts

it

proposed for site

investigation plans (Section 734.845(b)). Finally, for~to~e~s1onà1consultingservices

costs associated with preparation for the. implementation ofalternative technologies, the

•

Illinois EPA proposed that costs associated with alternative technologies be determined.

on a time and materials basis (Section

734.845(c)(1)).

• -

The Illinois EPA included costs associated with applications forpayment

in the maximum payment amounts it proposed forprofessional consulting services

(Section 734.845).

•

10.

The Illinois EPA included costs associated.with professional oversight of

release confirmation, the immediate actions taken to prevent any further release, and the

identification and mitigation offire, explosion, and vapor hazards in the maximum

payment amounts it proposed under Section 734.845(a).

11.

The Illinois EPA included costs associated with obtaining an eligibility

•

and deductibility letter in the maximum payment amounts it proposed forprofessional

consulting services (Section

734.845).

12.

“Best efforts” to obtain off-site access would be conducted as a part ofthe

Stage 3 site investigation. Under the Board’s First Notice Proposal, costs associated with

Stage 3 site investigations are to be reimbursed on a time and materials basis. ~ First

Notice Proposal Opinion and Order; p. 80.

• ~

...

!~1~3~Yes.

•

14...

“Conventionaltechnology” is by definition the removal and disposal of

contaminated soil. See Section .734.115. There,is no “conventional technology” for the

•

ex-situ treatment of contaminated fill material.

15.

The Illinois .EPA bôlieves the maximum payment amounts set forth in the

• .

•

Board’s First Notice proposal adequately account for the different types ofequipment

needed to remove different sizes,of tanks.

•

• • •

. .

•

16.

Reimbursement ofpersonnel on a time and materials basis is not based

• •

•

solely on the educational degree and experience ofthe person performing the task. Under

Section

734.850(b),

personnel costs must be based upon the work performed, regardless

ofthe title ofthe person performing the work. The Illinois EPA proposed Appendix E in

•

part to establish the minimum education and experience levels a person must have in

order to be billed under a particular title. Please refer to page 34 ofExhibit 13 (Draft

Budget and Billing Forms) submitted at the March

15,

2004, hearing for descriptions and

duties ofeach personnel title as envisioned by the Illinois EPA.

•

. . •

17.

The Illinois EPA envisions that the costs ofremotely monitoring

alternative technologies will be subject to reimbursement on a time and materials basis.

,18.

The Illinois EPA included costs associated with performing and analyzing

hydraulic conductivity tests in the maximum payment amounts it proposed for

professional consulting services for site investigation (Section 734.845(b)).

.19.

The Illinois EPA included costs associated with performing water supply

well surveys under Section 734.445(a)

iii

the maximumpaymènt amount it proposed for

the preparation and submission of20-Day and 45-DayReports (Section 734.

845(a)(3)).

20.

The $160 maximum payment amount for well surveys applies only to well

surveys conducted pursuant to Section 734.445(b). See Section

734.845(b)(7).

The

maximum payment forwell surveys conducted pursuant to Seátion 734~445(c)is

determined on a time and materials basis. See Section 73.~4.845~b)(7).The Illinois EPA

included the “external costs” ofcompleting a well survey under Section 734.445(b) in the

•

maximum payment amount it proposed forthe preparation and submission of20-Dayand

45-flayReports (Section

734.845(a)(3)).

It proposed the $160 maximum payment

amount in Section 734.845(b)(7) to cover labor costs associated with the well survey.

The

Illinois EPA included costs associated with a professional engineer’s review

and certification ofthe well surveys in the maximum payment amounts it proposed for

professional consulting services related to site investigation and Corrective action reports.

•

See Sections 734.845(b) and

(c)(5).

• •

•

. •

•

. •

21.

•

It appearsthat in most cases a properly drawn and scaled site map

•

showing the dimensions ofan excavation will.be sufficient in a~correctiveaction plan to

•

show the volume ofsoil to be removed and disposed. Copies ofweight tickets and

•

-•

special waste manifests may be included in corrective action completion reports to help

document the soil actually removed and disposed. Copies oflandfill invoices are needed

in reimbursement requests to document the’ costs incurred, and for the calculation of

•

handling charges.

The Illinois EPA included costs associated with determining the dimensions of an

•

excavation in the maximum payment amounts jt proposed for professional consulting

services (Section 734.845).

2~..: The Illinois EPA believes the maximum payment amount it proposed for

the preparation and submission ofsite investigation completion reports is appropriate.

Please note that the Board decided that costs associated with the preparation and

submission ofStage 3 site investigation plans and costs associated with Stage 3 site

• investigation field work and fieldoversight will be reimbursed ona time and materials

basis. ~ First Notice Proposal Opinion and Order, p. 80.

23.

The Illinois EPA included costs associated with completing a survey of

groundwater flow direction.and gradient in the maximum payment amounts it proposed

for site investigation fieldwork and field oversight under Section 734.845(b).

24.

The Illinois EPA included costs associated with well development, well

surveying, and well sampling in the maximum payment amounts it proposed for site

investigation field work and field oversight under Section 734.845(b).

25.

Please see the response to CW3M’s question 20.

• 26.

The Illinois EPA believes the maximum payment amount it propose&for

direct push injections is appropriate.

•

. •

27.

The depth ofmaterial being replaced (e.g., 12 inches ofconcrete) maybe

greater than the depth ofthe same material when it is used to create an engineered b anier.

For material being installed solely as an engineered barrierand not asreplacement

material, the Illinois EPA proposed maximum payment amounts for the depths needed to

create an engineered barrier. In cases where replacement material is also used as an

engineered barrier, the Illinois EPA envisions the replacement material falling under the

•

maximum payment amounts for replacement material (Section 734.840(b)).

28.

“Conventional technology” is by definition the removal and disposal of

•

contaminated soil. ~ Section 734.115. There is no “conventional technology” for

•

groundwater remediation.

.~ •

•

• • .

•

...

Please refer to question 1 above for a discussion ofthe maximum payment.

amounts the Illinois EPA proposed for activities re4uired under Section 734.2 10(a).

•

29.

Cleanup strategies atilizing both conventional and alternative technologies

can be submitted in a single corrective action plan. Ifsoil contamination is addressed

solely through conventional technology, costs associated with the preparation and

submission ofthe soil remediation portion ofthe plan are subject to the maximum

payment

amounts for conventional technology plans and costs associated with the

preparation and submission ofthe groundwaterremediation portion ofthe plan are

. •

subject to reimbursement on a time and materials basis. ~ Section 734.845(c)(l). If.

soil contamination is addressed through both conventional technology and alternative

technology, the Illinois EPA envisions costs related to the soil remediation portion ofthe

plan that exceed the maximum payment amount for the preparation and submission of

conventional technology corrective action plans being reimbursable on a time and

•

,..

•.

materials basis. In this last example the costs associated with the groundwater

remediation portion ofthe plan are subject to reimbursement on a time and materials

basis. See Section 734.845(c)(1).

30.

Ifthe soil is addressed though an alternative technology, costs associated

with the preparation and submission ofboth the soil and the groundwater portions ofthe

plan would.be subject to reimbursement on a time and materials basis. ~ Section

734.845(c)(i). Ifsoil:is addressed through conventional technology, costs associated

with thn preparation and submission ofthe soil remediation portion ofthe plan are subject

to the maximum payment amounts for conventional technology plans, and costs

associated with the preparation and submission ofthe groundwater remediation portion of

the plan are subject to reimbursement on a time and materials basis. See Section

734.845(c)(l).

. .

...

. .

31.

A revision.to Section 734.355(c) does not appearnecessary. Under

Section

734.355(b),

the Illinois EPA can only requiré the submission of a revised

corrective action plan. Therefore, the only Illinois EPA decisionto appeal under Section

734.355(c) would be a decision to require a revised corrective action plan.

32.

•

As explained at hearing, the Illinois EPA envisioned the scope ofwork

for each maximum payment amount to be all ofthe activities associated with the

identified task. Therefore, bids for an identified task should include all costs associated

with the task. For example, the scope ofwork forthe $3,150 maximum payment amount

• allowed for the removal ofa 1,000 gallon tank would be all ofthe activities associated

with the tank’s removal, including, but not limited to, its ~excavation,removal, and

disposal. ~

Section 734.810. Therefore, under Section 734.855 a bid forthe removal

of a 1,000 tank should include all costs associated with the removal ofthe tank,

including, but not limited to, its excavation, removal, and disposal.

33.

The Illinois EPA did not envision Section 734.860 being utilized merely

because costs exceed a maximum payment amount. It envisioned Section 734.860 being

utilized when the costs for an identified task exceed the maximum payment amount for

• •

the task due to unusual or extraordinary circumstances. Please see the demonstration that.

must be made under Section 734.860 in order to seek reimbursement under that Section.

Prevailing market rates may be determined from a number ofsources.

One example would be the bids the Illinois EPA receives under Section 734.855.

Another example would be information brought to the attention ofthe Illinois EPA.

through LUST Advisory Committee meetings. The illinois EPA does not have a

definitive list ofresources that it will consult for all costs when conducting reviews under

Section 734.875. Rather, it will use the resources that it believes provide an accurate

assessment ofthe reasonable prevailing market rate for a particular cost Ifthe illinois

EPA determines that a maximum payment amount needs to be adjusted, that adjustment

must proposed to the Board through a rulemaking. Therefore, the public will have an

opportunity to provide testimony and submit comments about the methods the Illinois

EPA used to determine whether the proposed adjustment is need~daiidtheappropriate

•

amount ofthe adjustment.

•

•.

• 35.

Please see the response to question 34 above.

•

36.

The annual Implicit PriceDeflator for GrossNational Product on which

the annual inflation factoris based is published each year in the April issue ofthe United

States Department ofCommerce’s Survey ofCurrent Business. Therefore, adjusting the

maximum payments amounts on January 1 would delay the adjustments by an additional

six months (e.g., adjustments based on the April 2006 publication would not be made

until January 1, 2007, instead ofJuly 1, 2006). The illinois EPA believes the earlier July

1 adjustment date set forth in the Board’s First Notice Proposal is more appropriate.

37.

•

The annual increase based on the annual Implicit Price Deflator for Gross

National Product is applied across the board to all maximum payment amounts, even

though all ofthe individual costs included in a particularmaximum payment amount may

have not~senby the same rate. The

cap ensures that the maximum payment

amounts do not rise too quickly based solely upon the annual inflation factor. If all ofthe

costs included in a maximum payment amount do happen to increase at an annual

inflation rate ofgreater than

owners and operators can exceed the maximum payment.

amount via bidding. The Illinois EPA or anyone else could also propose an appropriate

adjustment to the maximumpayment amount through a Boardrulemaking. A change to

the

cap could also be propósedthrough a Board rulemaking should it prove to be

inappropriate.

•

. .

38.

The Illinois EPA does not agreewith the premisethat an owner’s or

operator’s decision to continue Operating a station during remediation makes

conventional technology infeasible. In such a case, the owner or operator is making a

business decision to continue operating the station during remediation and to remediate

• using an alternative technology instead ofa conventional technology. The Illinois EPA

does not envision thatan owner’s oroperator’s decision to continue operating a station

and conduct remediation using an alternative technology would, by itself, constitute an

unusual or extraordinary circumstance forpurposes ofSection 734.860.

39.

Section 734.340(c) is not new language proposed by the Illinois EPA. The

Section merely repeats language that already exists in Section 732.407(c).

40.

The Illinois EPA included costs associated with the preparation ofmaps in

the maximum payment amounts it proposed forthe preparation and submission ofplans

and reports (Section 734.845). Inmany cases, the preparation ofa map requires only the

updating ofan existing map from an earlier plan or report.. As with other costs,. if the

maximum payment amounts set forth in the rules are insufficient for a particular site, they

can be exceeded through the bidding or the unusual or extraordinary circumstances

provisions..

. .

•

41.

•

Sections 734.835 and 734.Appendix D merely.set forth the maximum

payment amounts owners and operators may be reimbursed for costs associated with.

sample handling and analysis. Please notethãt an individual maximum payment amount

for shipping is included at the bottom of Section 734.Appendix D. The Board’s proposed

rules do not address, and the Illinois EPA did not envision the rules addressing, how the

amounts, reimbursed to an owner or operator are divided among the parties performing

the work.

•

•42.

The installation ofmonitoring wells, including their depths, should

comply with SectiOn 734.430 and generally accepted engineering practices.

43.

Some maximum payment amounts are applicable through all phases of:

work. For example, the maximum payment amounts.for sample handling and analysis

(Section .734.Appendix D) are applicable during the early action phase, the site..

investigation phase, and the corrective actionphase.

. . • •

44.

Sections 734.3 15, 734.320, and 734.325 contain general requirements

regarding the depths ofborings. The Board’s rules do not mandate the use of a specific

tool for borings.

45.

‘

The owner or operator should propose the most cost-effective method of

disposal.

46.

•

The ‘Illinois EPA included all submittals ofplans, budgets, reports,

‘ . •

applications forpayment, and other documentation in the maximum payment amounts it

proposed;for professional consulting services under Section 734.845. For example, the

Illinois EPA proposed $4,800 as the maximum payment ‘amount for the preparation and

submission of all 20-Day and 45-DayReports, regardless ofhow many 20-Day and

45-

• ~Day reports are submitted.

• • • :.. ~‘

•

• .

47.

The maximum payment amounts the Illin’ois~EPAproposed to the Board

were either evaluated against actual reimbursement submittals directly or developed

using’ costs that were evaluated against actual reimbursement submittals.

Answers

to the Pre-Filed Questions of Jay Koch of USI

•

. .

Please refer to the response to Daniel.King’s question 29.

‘

•

Ifan alternative technology corrective action plan is rejected one ormOre

times, but is eventually approved, the Illinois EPA envisions that reasonable and justified

professional service hours that do not exceed the maximumpayment amounts set forth in

Section 734.Appendix E would be reimbursed. Ifan alternative technology corrective

action plan is rejected one or more times and as a result is never approved and

implemented, and then a conventional technology corrective action plan is submitted,

approved, and implemented, the.Illinois EPA does not envision that costs associated the

preparation and submission ofthe alternative technology corrective action plan would be

eligible for reimbursement. The Illinois EPA envisions that the costs associated with the

preparation and submission of.the conventional technology corrective action plan would

be subject to the maximum payment amount set forth in Section

734.845(c)(1).

The Illinois EPA envisions that the determination ofwhether an unusual

or extraordinary circumstance exists at a particular:site will be based upon site-specific

circumstances. What may be an unusual or extraordinary,circumstance at one site may

not be an~unusualor extraordinary circumstance at another site. During previous

hearings the Illinois EPA gavesome examples ofwhat might be considered an unusual or

extraordinary circumstance. However, developing a list of unusual or extraordinary

circumstances that could be applied prior to knowing the specific circumstances ofa

particular site would be impossible. Furthermore, the Administrative Procedures Act

prohibits the illinois EPA from publishing the requested lists of specific examples unless

they are adoptedin rules.

•.

The Illinois EPA would not object to the addition ofone or more

representatives to the LUST Advisory Committee if the Board determines that the

Committee’s current composition does not provide adequate representation ofinterested

parties.

•.

‘~

. •..

•

• 5.

Please see the response to Daniel King’s question 17.

• .

• •

The Illinois EPA included all costs associated with sample handling and

analysis, regardless ofthe number ofparties involved, in the maximum payment amounts.

it proposed under. Sections 734.835 ‘and734.Appendix D. Please note that an individual

•

maximpm payment amount for shipping is included at the bottom ofSection

734.Appendix D. This amount was proposed for costs associated with the shipping of

samples to the laboratory. The Illinois EPA included costs associated with transporting

samples from the collection site back to the office for shipping in the maximum payment

amounts it proposed for travel (Section 734.845(e)).

.‘ ‘

‘

One ofthe goals the Illinois EPA hopes to achieve through this

rulemaking is a reduction in the time it spends reviewingplans, budgets, reports, and’

applications‘forpayment.

‘2

•

‘

‘‘‘

The Illinois EPA believes that such an audit would be costly and time

consuming and is unnecessary. TheIllinois EPA has explained how it developed.the

rates it proposed to the Board, and the Board determined thatthose rates, as amended in

the Board’s First Notice Proposal, will provide reimbursement ofreasonable remediation

costs. Any party that’believes the proposed amendments will not provide reimbursement

• •

ofreasonable remediation costs has the opportunity to present testimony and commOnts

to the Board.

.‘

•

~..

•

This question is addressed to the Board.

1-0.

The provision proposed by the Illinois EPA that would make “costs an

owner

or operator is required to pay to a governmental entity or other person in order to

conduct corrective action” ineligible for reimbursement is not included in the Board’s

First Notice Proposal. Pursuant to the Board’s First Notice Opinion and Order, such

costs should be reviewed on a site-specific basis. Because a site-specific determination, is

necessary, and because the Administrative Procedures Act requires the Illinois EPA to

adopt the requested lists as rules, the Illinois EPA cannot provide the requested lists in

these responses.

. •

•

11.

This question is addressed to the Board.

‘

12.

‘The Illinois EPA does not track the requested information. However, the.

Illinois EPA was able to review the incidents for which some type ofplan orreport was

submitted between January 1, 2003, and May 3 1,2005, and compile the following table

based upon the current consultants forthose incidents.. The consultants are listed based

‘upon the number ofincidents, in descending order. These consultants represent 50.43

ofthe total 5,761 incidents identified. The Illinois EPA stopped compiling this listonce

the “Percent ofTotal” colu.mn~exceeded

50..

‘

424

Groundwater & Environmental Services, Inc.

‘

•4.06

234

Practical Environmental Consultants

3.71

‘

214

Marlin Environmental

. .

3.40

196

Environmental Management, Inc.

•

2.99

•

172

CW3M

.‘ .

‘

•

2.67

154

Handex

2.60

150

LandTech,Jnc.

1.79

103

Environmental Protection Industries

•

1.77

102

Midwest Environmental Consulting &

Remediation

1.58

•

NIESA & Associates

•

1.51

Applied Environmental Technologies

1.44

Herlacher Angleton Associates

1.33

American Environmental,

1.00

CSD

.97

GEOCON

• ..

.97

Superior Environmental Corp.

.91

‘

53.

Gabriel Environmental

.90

EPS Environmental Services, Inc.

.78

Integrity Environmental.ServiCes

. . .

.78

...

Laicon, Inc.

~:‘‘‘

.75

• •

•

Wendler Engineering Services, Inc.

.71

Total: 50.43

Science Industries

vironmental

7.36’

—

6.41

369

• 13.

The Administrative Procedures Act prohibits the Illinois EPA from

publishing the requested guidelines unless they are adopted as rules. Please note that the

unusual or extraordinary circumstances provisions focus on.the circumstances present at

a site, not particulartasks.

•

.-•.•

• 14.

The Illinois EPA will reimburse corrective action costs in accordance with

the Environmental Protection Act and the Board’s rules.

‘.

‘ .. . .

• .

i5..~

An owner’s or operator’s liability for a release is independent from the

ability to. obtain payment from the Underground Storage Tank (“UST”) Fund. Liability is

not impacted in any way by USTFund. eligibility ornon-eligibility, the amount ofany

payments received..from the Fund, or the balance ofthe UST Fund.

‘.

, ‘ ~‘

16.

The Illinois EPA has the statutory duty to enforce violations ofthe

• Environmental Protection Act and Board regulations.

• ‘ .‘

• •, •

•

17.

The Illinois EPA has no opinion on the issue.

•

• .

. . •

18.

The statutory provision forjoint payment was repealed. ~ P.A.87-1088

and P.A. 87-1171 (amendments to 415 ILCS

5/22.l8b(d)(4)(C))~

•

19.

Questions about the development ofinformation provided to the Illinois

EPA by ACECI should be directed to ACECI. Regarding information received from

ACECI, the Illinois EPA made modifications to the information as it deemed appropriate.

The modifications ‘and the reasons for the modifications are reflected in the Illinois

EPA’s testimony in prior hearings. ACECI provided its information to the Illinois EPA

on April 16, 2003.

. •

. .

‘;

•

20.

The Illinois EPA is aware ofTRTAD. TRIAD was not used to develop the

rules the Illinois EPA proposed to the Board.

21.

The Illinois EPA envisioned that Section 734.Appendix B would be used

only to establish billing rates based on objective qualifications. it did not envision a

•person being “grandfathered in” based on his or her current billing rate: ‘Nor did it

envision the Section being used as a basis for laying offemployees that do not meet the

qualifications for a particular billingrate. Anyone can meet the qualifications for several’

ofthe titles in Section 734.Appendix E.

... ‘

• ,: ~

.. ~ ‘ •

, . ‘

•

.22.

A person can onlybe billed under the rates forwhich he or she meets the

qualifications.

23.

Please refer to page 34 ofExhibit 13 ‘(Draft Budget and Billing Forms)

‘

submitted at the March

15,

2004, hearing forthe descriptions and duties ofeach

personnel title as envisioned by the Illinois EPA...

‘

•

‘

24.

•

The Illinois EPA envisions.professional consulting services being subject

• to the bidding provisions ofSection

734.855.

• .

•

• ,

25.

Please refer to the response to Daniel King’s question 32.

•

26.

Section 734.855 does not specify the means by which bids must be

obtained, nor does it specify howmany rounds ofsolicitations are required if a single bid

solicitation results in the submission of less than three bids.

•

27.

The owner or operator could submit a budget amendment to address costs

associated with the water removal.

•

‘

,•

•

28.

Under Section 734.845(c)(1), payment for costs associated with the

preparation and submission of alternative technology corrective action plans, which

include groundwater remediation plans, must be determined on a time and materials

basis.

29.

The Illinois EPA envisions that the maximum payment amounts will

encourage the submission ofcomplete plans and reports that can be approved in one

submission, without the need for amendments or additional information.

30.

‘

The Illinois EPAbelieves the maximum payment amount set forth in the

Board’s First Notice Proposal is appropriate. Please note that Section 734.845(f~only

applies to the amendments Ofplans due to unforeseen circumstances.-

. .

•

31~

‘

Because of’the design and interaction ofSubpart H’sprovisions, the

‘

•

Illinois I~PAdoes not foresee ~theomission of any costs typically incurred on a leaking

underground storage tank (“LUST”) project: Ifa party believes that a cost has been

• •

omitted from Subpart IH, they can bring the ‘omission to the Board’s attention in this

rulemaking or at a later date and request’that Subpart H be amended to address the

•

omittedcost..

• .

•

• •‘. . .

•

‘

32.

•

Section 734.860 does not specify when an owner or operator must seek

reimbursement under the unusual or extraordinary circumstances provisions. An owner

• or operator may seek reimbursement under Section 734.860 at any time as long as they

can make the demonstration required under that Section.

33.

The Illinois EPA has always strived to maintain uniformity, consistency,

and objectivity in its reviews, and will continue to do so in the future.

• 34.

Please see the response to Daniel King’s question 9.

35.

The Illinois EPA does not envision a well surveybeing an unusual or

extraordinary circumstance based solely on the fact that the Illinois EPA requires the well

survey under Section 734.445(c). Please note that.payment for costs associated with such

a well survey must be determined on a time and materials basis. ~ Section

734.845(b)(7)

36.

The Illinois EPA does not believe that individual time and materials rates

are necessary for all ofthe field instrumentation, equipment, materials, and supplies that

maybe used in the remediation ofa release. When payment is made on a time and

materials basis, the costs associated with field instrumentation, equipment, etc., will

either (i) be included as a part ofthemaximum payment amounts applicable’under

Section .734.850(a~,or (ii) determined on a site-specific basis under Section 734.850(b).

Answers to the

Pre-Filed Questions of CW3M

1. ...

. •.

Ifsome but not all ofthe Stage II site investigation activities are

completedunder an investigation plan approved prior to the effective date ofthe Board’s

amendments, the Illinois EPA envisions that. the maximum payment amount for costs

associated with the preparation and submission ofa Stage II site investigation plan

approved after the effective date ofthe amendments will be determined on a site-specific

basis and will depend upon the Stage II site investigation activities that still need to be

completed.

Sites subject to Part 731 will continue to be reviewed on a site-specific

basis, unless the owner or operator elects to proceed under Part 734 in which case the

owner or Operator will be subject to Part 734. ~ Section-734.105...

•

Since the last hearing the Illinois EPA hasnot conducted further research

into the maximum payment amounts it proposed to the Board. Regarding any

-...

uncertainties raised about the maximum payment amounts, the Board stated the following..:

in its First Notice Opinion and Order:

The Board is cognizant that the methods used to develop the rates by the Agency

were not scientifically or statisticallyrecognized methods. However, the

Agency’s experience in the UST program is also an element to be taken into

consideration. In addition, the first-notice proposal will include provisions for

bidding, extraordinary circumstances, and an annual inflation adjustment. The

Board is convinced that the first-notice proposal, as a whole, will allow for

reimbursement ofreasonable remediation costs.

First Notice Opinion and Order, p. 1. (emphasis added)~

Although the Agency’s methodology for determining the maximum rates.is not

statistically defensible, the Agency’s data is frOm actual applications for

‘:

teimbursement for sites in Illinois. The Agency’s testimony is that the rates as

developed will be inclusive ofninety percent ofthe sites remediated in illinois

• (see

Tr.3 at

52)

and based on the Agency’s experience the rates are reasonable

(see’Tr.3

54-56).

Therefore, the Board finds that the Agency’s method for

developing the maximum payment amounts is primarily based on the Agency’s

experience administering the UST program in Illinois. The Board further finds

•

that the rates are reasonable. Anydeficiencies in the maximum rates are obviated

by the language dealing with extraordinary circumstances and the addition ofthe

bidding process.

‘

• ‘.

‘ .‘

•

General Discussion ofMaximum Payment Amounts. The Board will not discuss

•,

each and everyproposed lump sum maximum payment amount; however, the

‘

Board has carefully reviewed all the rates proposedby the Agency. Other than

‘the

r~,tesdiscussed in more detail in this opinion, the Board finds the rates are

reasonable and supported by the record. Furthermore, given the Agency’s

inclusion in the third

errata

sheet ofa bidding process, provisions fortriennial

review ofthe maximum payment amounts, and provisions for the annual

adjustment ofthe maximum payment amounts based on inflation, the Board finds

that the proposal will allow for reimbursement ofreasonable costs forremediation

ofUST sites in Illinois. Therefore, the Board will proceed to first notice with the

rates proposed by the Agency unless the Board specifically indicates a different

rate in this opinion.

First Notice and Opinion and Order, pp. 78-79 (emphasis added).

This question is irrelevant to whether the Board’s First Notice Proposal

contains technical requirements consistent with the Environmental Protection Act and

•

• .

• •‘

provides owners and operators with reimbursement ofreasonable remediation costs.

The illinois EPA does not track the requested information.

•

Groundwater must be remediated in accordancewith the Tiered Approach

to Corrective Action Objectives (“TACO”) regulations

(35

111. Adm. Code 742).

Groundwater remediation required as a part ofcorrective action is eligible for

reimbursement from the UST Fund.

‘ ‘

••

. -.

“

The Illinois EPA did not consider any effect on property values in cases

where groundwater ordinances are used as institutional controls. Groundwater

‘‘

ordinanceshave alwaysbeen available as an’institutional control under TACO and have

been used at hundreds, if not thousands, ofsites.

Inter alia,

use ofthe proposed rules will help reduce costs to the UST

Fund by helping to streamline the LUST Program. The proposed rules will allow a

greater standardization ofinformation submitted to the Illinois EPA, which in turn will

• allow for shorter document preparation time and shorter document review time, thereby

‘. .

reducing per-project Costs forthe Owner’s oroperator’s consultant and the Illinois EPA.

‘

Use ofthe proposed rules will also help reduce per-project costs by simplifying the

reimbursementprocess. Setting forth rates in the rules will allow owners, operators, and

consultants to know the amounts considered reasonable forpurposes ofreimbursement

from the UST Fund, and the illinois EPA can easily review and approve costs as long as

they do not exceed the applicable maximum payment amounts. Finally, maximum

payment amounts for the preparation and submission ofvarious documents will reduce

costs by encouraging the submission ofcomplete documents that can be approved in one

submission, without the need for the preparation, submission, and review ofamendments

. • ,.

or additional information.

. .

With the exception ofcosts relating to the remediation ofMTBE

contamination, costs incurred after the issuance ofa No Further Remediation Letter are

currently ineligible for reimbursement. ~

Section 732.606(kk). Please note that

Board’s First Notice Proposal includes the addition ofseveral new exceptions to this rule.

Seeld.

10.

The Illinois EPA will not require the use ofinstitutional controls or

engineeled barriers unless the owner or operatorpropOses their use as a part of

remediatit~r,in which case the illinois EPA will require their continued use until they are

removed’in accordance with Board regulations. See Section 732.703(e).

• 11.

2 ‘

Please refer to the Illinois EPA’s previous testimony regardingthe

‘‘

‘

development ofthe maximum payment amount it proposed to the Board for excavation,

transpàrtátion, and disposal.

• .

.. . •

. .

•

12.

: The Illinois EPA envisions that an internal committee ofmanagers will

‘

•

review demonstrations ofunusual or extraordinary circumstances under Section’734.860.

Bids are not expressly required under Section 734.860, but the Illinois EPA envisions that

owners and operators will be able to submit bids as a part oftheir demonstration that

costs exceed the maximum payment amounts ofSubpartH.

13.

Please refer to the Illinois EPA’s previous testimony regarding the

development ofthe flufffactor it proposed to the Board.

14.

•

The Illinois EPA has not considered any changes to the rates it proposed

to the Board beyond those it incorporated into its proposal during last year’s hearings.

15.

The Illinois EPA felt that actual historical data from the Illinois LUST

‘

Program was more appropriate to use in developing the rates it proposedto the Board

than information from RS Means. In addition, RS Means would be more difficult to

apply to the Illinois LUST Program than the proposed rules. The Illinois EPA used the

National Construction Estimator instead ofRS Means because the information for which

it was usedwas easierto interpret.

‘

16.

Parties’have argued that the Illinois EPA’s use of average rates in

developing the maximum payment amounts it proposedtothe Board would result in

50.

• ofthe costs submitted forreimbursement falling above, and

falling below, the

proposed pTlaximum payment amounts. Please note that an amount that

‘50

ofcosts

would fall above and

ofcosts would fall below would be the median ofthe costs,

not the average. Although the illinois EPA used average costs in the development of

• some Of the maximum payment amounts it proposedto the BOard, the use ofaverage.

costs did not result in maximum payment amounts equal to the median ofthe costs. For

example, the maximum payment amount proposed for the excavation, transportation, and

disposal ofsoil is greater than the excavation, transportation, and disposal costs at 88 of

the sites surveyed. Also, the maximum payment amount proposed forbackfill is greater

than backfill costs at 86 ofthe sites surveyed. For additional information please see

• Harry Chappel’s written testimony submitted as Exhibits 11 and 12 at the March

15,

2004, hearing.and his oraltestimony at the first few hearings..

17.

The Illinois EPA considered all alternatives brought to its attention.

•

18.

Yes..

•

.‘

•

19.

The Illinois EPA included costs associated with applications forpayment

in the maximum payment amounts it proposed for professional consulting services

(Section 734.845).

‘

20.

The Illinois. EPA requests that the Board take note ofthe issue raised by

CW3M in this question. It appears that the new Section 734.845(b)(5) that was intended

to replace Sections

734.845(b)(5)

and (6) was instead inserted at. Section

734.845(a)(5) ~

and replaced Sections 734.845(a)(5.) and (6).

:

“

‘: . ‘

21.

‘CW3M has yet to identify the specific OSHA regulation requiring

the use of a “buddy system”. at petroleum LUST sites. The Illinois EPA’reviewed

Part 1926 ofthe OSHA regulations (29 CFR 1926); cited by CW3M as containing

t~ebuddy system requirement, and the buddy system required in that Part appears

to applyonly to hazardous substance remediations.’ Because petroleum is not

• •

included in the definition Of “hazardous substance,” the buddy system

requirement does not appear to applyto petroleum LUST releases. Even if the

regulations cited by CW3M did apply to petroleum LUST releases, it is not clear

that the, buddy system requires the presence oftwo consulting firm personnel at a

site.

• ‘

•

• -

The average personnel rate used to develop travel rates includes

personnel from both ends ofthe billing rate spectrum who do not leave the office.

The Illinois EPA believes the average personnel rate used to’ develop the travel

rate is appropriate.

•

The amendments the Illinois EPA proposed to the Board provide

reimbursement ofreasonable remediation costs, as required by the Act. The

maximum payment amounts set.forth in the amendments apply equally to all

consultants, regardless ofwhere they are located. An owner’s or operator’s

decision to incur greater costs by hiring a’ consultant located a greater distance

from a site, as opposed to incurring lesser costs by hiring a consultant located

closer to a site, is a business decision made by the owner or operator.

22.

The Illinois EPA disagrees with the conchision drawn by CW3M in this

question. A demonstration that a subcontractor’s cost exceeds the applicable maximum

payment amount when properly bid does not make the unusual or extraordinary

circumstances provision automatically applicable to related professional services. ‘In

order for the unusual or extraordinary circumstances provision to apply to related

profession-al services the owner or operator must make the demonstration required in

Section 734.860 (i.e., that the professional services costs are eligible for payment from

the UST Fund, exceed the applicable maximum payment amounts set forth in Subpart H,

are the result ofunusual or extraordinary circumstances, are unavoidable, are reasonable,

• ‘and are necessary to satisfy the requirements ofthe Board’s ru1e~).

.• ‘•

Answers

to the Pre-Filed Questions of CSD

‘ .

.•,

‘

•

•,

This question has become moot. The Board held in its First Notice

Opinion

and Order that, while “the Agency’s methodology for determining the maximum

rates is not statistically defensible,.

. .

the rates are reasonable.

Any deficiencies in the

maximum rates are obviated by the language dealing with extraordinary circumstances

and the addition ofthe bidding process.” First Notice Opinion and Order, p. 1.

“

The Illinois EPA has explained how it developed the rates it proposed to

the Board, and the Board has determined that.those rates, as amended in the Board’s First’

Notice Proposal, will provide reimbursement ofreasonable remediation costs. Please see,

for example, the excerpts from the Board’s First Notice Opinion. and Order included in

•

. •

••

•

the response to CW3M’s question 3 above. Any party that believes the proposed

amendments will not provide reimbursement ofreasonable remediation costs has the

opportunity to present their testimony and comments to the Board.

An owner or operatorwho feels that the proposed maxiirrum payment

amounts will not provide reimbursement ofreasonable remediation costs could bid costs

in accordance with the bidding provisions ofthe rules, seek payment under the unusual or

extraordinary circumstances provisions ofthe rules ifthose provisions apply, bring the

issue to the; attention ~ofthe Illinois EPA though the LUST Advisory Committee, seek a

site specific. variance ofSubpart H provisions, orpropose amendments to Subpart H to

• the Board. Please note that an owner or operator mayhave other Options. This response

should not be taken as an exclusive list ofoptions available to an owner or operator.

The Illinois EPA has not yet decided exactly how it will review the

maximum payment amounts to determine whether they are consistent with prevailing

market rates. As stated a prior hearings, however, the Illinois EPA envisions that a part

ofits review will include comparing the maximum payment amounts to bids submitted

under the bidding provisions ofthe rules.

•

The Illinois EPA will reimburse owners’ and operators’ costs in

accordance with the Board’s rules.

‘

•

The Illinois EPA will be keeping track ofcurrent market rates through

various means, including bids received in reimbursement requests and information

submitted through the LUST Advisory Committee. Ifthe Illinois EPA believes a change

to the maximum payment amount is warranted it can propose appropriate changes to the

Board. In addition, the maximum payment amounts are automatically increased each

year by a prescribed inflation factor. ~ Section 734.870.

The Board’s First Notice Proposal doesnot specify any penalties to the

Illinois EPA orthe State if the Illinois EPA fails to fmd or fix any deficiencies in a timely

manner.

. •

Adjustments to the maximum payment amounts by the Illinois EPA.

. -

pursuant to Section 734.875 will be proposed to the Board in a rulemaking proposal,

which iike.this one will include public notices, opportunities for public testimony and

public comments, and the publication ofamendments proposed and adoptedby the

Board.

•

The Illinois EPA chose the inflation factorit proposed to the Board

because the inflation factor is nationally recognized and is determined by an objective

third party. The Agency did not consider other inflation factors because it believes the

one proposed will provide adequate adjustments for inflation.

Drillers:

Western Environmental

Advanced Environmental

Vacuum Trucks/Liquid Haulers:

Enviro-Vac

R.S. Used Oil

... .

•,

•

U.S. Waste

Tanks Removers:

W.J. Scott

Accurate Tank

R.L. Hoerner

‘

R. Carlson and Sons..

C.’

As explained in prior testimony, the Illinois EPA believes that bids used to

determine an alternative maximum payment amount should be true third party bids.

Once bids are obtained and an alternative maximum payment amount is established, the

Illinois EPA believes that an owner or operator should not be limited to hiring the lowest

bidder, but should instead be able to hire anyone the owner or operator chooses as long as

that person is qualified and ableto perform the work..

‘

The Illinois EPA believes that an owner oroperator, or a consultant on the

owner’s or operator’s behalf, will be able to obtain bids in accordance with the bidding

provisions ofthe Board’s First Notice Proposal in cases where the consultant owns their

own, contracting firm.

•

The owner or operator could seek to have the maximum payment amount

determined under the unusual, or extraordinary circumstances provisions if the.

•

requirements ofthose provisions apply. Please note that the inability to obtain a

‘.

• minimum ofthree bids due to a limited number ofpersons providing the services needed

is specifically listed as a circumstance that maybe considered unusual or extraordinary

under Section 734.860.

. ‘ ‘

‘ .

, •

•

. .

The Illinois EPA does not envision that information from only RS Means

or another national cost data source would be sufficient to demonstrate that costs for a

particulartask exceed the applicable maximum payment amount. Information from such

data sources would not reflect the actual costs for a specific site.

The maximum payment amount of

$57

that the Illinois’EPA proposed to

the Board for costs associated with excavation, transportation, and disposal was intended

to apply only to the total ofthe costs associated with excavation, ‘transportation, and

•

disposal. It was not intended to be used to deem individual costs as reasonable.

The Illinois EPA envisions that the supporting technical documentation

will need to be sufficient to document that the work has been completed. Regarding

supporting billing documentation, as stated in prior hearings, whenmaximum payment

amount lump sums and unit rates are used.the Illinois EPA envisions that the owner or

operator will need to submit an invoICe that at a minimum identifies the work that was

• performed, the party that.performedthe.work, the date the..work.was performed, and the

amount billed for the work. Additional documentation maybe necessary where

reimbursement is sought on a time and materials basis.

•

As is required now, the excavation, transportation, and disposal ofthe soil

must be documented in a report. Please refer to the response to question D(2) above

• regarding billing documentation.

‘•-

•

To utilize the unusual or extraordinarycircumstances provisions of

Section 734.860 the owner or operator must make the demonstration required under that

• Section. Yard tickets alone’would not be sufficient to make the required demonstration.

For each half-day, the Illinois EPA assumed one to foursoil borings to a

depth of20 feet or one monitoring well to a depth of 20 feet.

Determinations ofwhether the circumstances at a site are unusual or

extraordinary are to be made on a site-specific basis. See Section 734.860. Therefore,

•

the Illinois EPA cannot provide a stated depth at which a soil boring or a monitoring well

would be considered an unusual or extraordinary circumstance. Furthermore, the

...

Administrative Procedures Act requires the Illinois EPA to adopt such a statement as a

rule.

‘ .

Please see response to questionE(2) above.

Under Section 732.845(d)(1), the illinois EPA proposed a total of$3,200

for all on-site investigation plans and a total of$3,200 for all off-site investigation plans.

Please see the response to question F(2) below regarding off-site investigation plans.

•

As a result ofthis ‘question’the illinois EPA discovered a change that is

neededto the Board’s First Notice Proposal in order to maintain consistency between

Parts 732’~nd734. The off-site investigation phase in Part 732 corresponds to the Stage

3 site investigation in Part 734. Because the Board provided that costs associated with

Stage 3 site investigations under Part 734 must be reimbursed on a time ‘and materials

basis, it should likewise make costs associated with off-site investigatiOns under Part 732

(Sections’.732.845(d)(1) and (2)) reimbursable on a time and materials basis. The Illinois

EPA. suggests thô following amendments to Sections 732.845(d)(1) and (2) tomake Part

,, ‘ ‘

732 consistent with Part 734 (amendments shown in double underlining and double

strike-through). These amendments are consistent with the language for Stage 3 site

investigations set forth on page 80 ofthe Board’s First Notice Opinion and Order.

Payment for costs associated with the preparation and submission

ofinvestigation plans for sites classified pursuant to Section

732.307 ofthis Part shall not exceed the following:

A total of $3,200.00 for plans to investigate‘on-site

contamination.

‘

Plans A total of $3,200.00 forplans to investigate off-site

contamination will be reimbursednursuant to Section

732.850 ofthis Part.’

‘

Payment for costs associated with field work and field oversight to

define the extent of on-site contamination resulting from the

release shall not exceed a total of$390.00 per half-day, plus travel

costs in accordance with subsection (e) ofthis Section. The

number ofhalf-days shall not exceed’the following:

One half-day for every four soil borings, or fraction

thereof, drilled as part ofthe investigation but not used for

the installation ofmonitoring wells. Borings in which

monitoring wells are installed shall be included in

, -

subsection (d)(2)(B) ofthis Section instead ofthis

subsection (d)(2)(A); and

‘

- .. -

One half-day for each monitoring well installed as part of

the investigation.

Payment forcosts associated with field work and field oversight to

define the extent of off-site contamination will be reimbursed

nursuant to Section 732.850 ofthis Part.

G.....

‘

.•

...

Ifthe requirements ofSection 734.330(b)(3) and (4) have not been met

(i.e., the horizontal and vertical extent ofsoil and groundwater contamination exceeding

the” most stringent Tier 1 remediation objectives have not been defmed), then additional

work is needed to complete the Stage 3 site investigation. There is no Stage 4 site

investigation.

‘

Please see the response to CW3M’s question 20.

Please see the response to Daniel King’s question 29.

The owner or operator will need to submit an amended corrective action

plan if the approved plan.does not address the additional remediation that must be

conducted. The Illinois EPA included all costs associated with the preparation and

submission ofcorrective action plans, including amended corrective action plans, in the

maximum payment amounts it proposed to the Board under Section 734.845(c)(1).

Please note that there is an additional maximum payment amount for corrective action

plan amendments that are required due to unforeseen circumstances. See Section

734.845(f).

-‘ ‘ - .

•

No.

The Illinois EPA will review costs associated with the preparation and’

submission ofalternative technology corrective action plans to ensure that,

inter alia,

the

costs are eligible forpayment, are reasonable, and are for’activities that are required as a

part ofcorrective action and do not exceed the minimum requirements ofthe

Environmental Protection Act and’ the Board’s rules.

“ ‘

‘

‘.

This question is unclear. The second phase the question refers to,

implementation ofthe selected plan, is not a part ofthe plan’s preparation and submission::~’

for approval. Furthermore, an alternative technology’s design is-an integral part ofthe

remediation plan that js reviewedprior to the plans’ implementation. The Illinois EPA

will be happy to answer this question at hearing if additional clarification ofthe question

isprovided.

‘

. ‘

•..

‘

•

‘

The rules do not require the submission ‘ofindividual corrective action

completion reports for soil remediation and groundwater remediation. The fllinois EPA

included costs associated with the submission ofall corrective action completion reports

in the maximum payment amounts it proposed to the Board under Sections 732.845(d)(8)

and734.845(c)(4).

. ,.

‘

. ‘

1..

The question, as posed, makes the activities associated with the

development ofTier 2 or Tier 3 remediation objectives sound daunting. However, the

activities consist mainly ofentering minimal data into computer software that

-“ ‘‘

.automatically runs the required calculations. The Illinois EPA does not believe that

payment on a time and material basis is necessary for this task.

‘.‘.

•

The illinois EPA doesnot track the requested information.

The Illinois EPA does not track the requested information.

•L.

‘

The Illinois EPA included costs associated with applications for payment

from the UST Fund throughout the maximum payment amounts it proposed for

professional

consulting services under, Section 734.845. The Illinois EPA did not include~

a particular number ofapplications forpayment under any subsection ofSection 734.845.

Yes.

The Illinois EPA used the rate of$80 per hour multiplied by the total

numbers ofhours allocated to a particular task. Time associated with seeking

reimbursement was included in the total number ofhours allocated to each task.

Please see the response to question D(2) above.

‘

Under the Board’s First Notice Proposal costs ,are considered reasonable

as long as they do,not exceed the applicable maximum payment amount lump sums or

unitrates.

..•

‘

‘ ‘

‘

The Illinois EPA multiplied eight hours ofpersonnel time by the average

rate of $8Q per hour.’

An unforeseen circumstance that requires the amendinent.ofac-orrective

action plan may or may not be an unusual or extraordinary circumstance. An owner or

operator can seek reimbursement forthe preparation and submission ofthe amended pla&’

under Section 734.860 if he or she. can make the demonstration required under that

Section.

. ,

‘

..‘‘

The Illinois EPA does not know how the referenced statistics were~•

generated and therefore declines to answer this question.’

The Illinois EPA does not know how the referenced statistics were

generated and therefore declines to answer this ques~ion.

-‘

‘

The Illinois EPA believes the proposed,rules will help improve.review

times and review consistency in the LUST Program.

Inter alia,

the proposed’rules will ~

help streamline the LUST Program by allowing for a greater standardization of

information submitted to the illinois EPA. Greater standardization will allow for shorter,

document preparation time, shorter document review time, and, more consistent reviews.

The rules will also help simplify the reimbursement process by setting forth the rates that

are

considered reasonable for reimbursement ‘from the UST Fund. Owners and operators

and consultants will know the amounts that will be considered reasonable for the

activities being proposed, and the Illinois EPA can easily review and approve costs as

long as they do not exceed the.applicable maximum payment amounts.

,The Illinois EPA will continue to review information submitted to it to

•

‘

determine whether the information demonstrates, compliance with the Environmental

Protection Act and the Board’s regulations.

The Illinois EPA will be revising its forms to reflect the more specific

requirements ofthe Board’s amended rules.

‘

. ‘

The “variability” referred to in.this question is unclear. The ilhinois.,EPA

will be happy to answer this question at hearing iftdditional clarification ofthe question,

isprovided.

‘

•

This question has become moot. -The Board stated the following in its

First Notice Opinion and Order:

‘

The Board does not believe a defined scope ofwork is required for the lump

sum maximum’ payment rates. The Board agrees with the Agency that the

variability from site to site is accounted ‘for in ,the.rates. Furthermore, the

proposal, as adopted for first notice,’will include a bidding process for projects

that cannot be undertaken forthe maximum rate in Subpart H. The Board also’

•

feels that including a scope ofwork for every project would result in a

• .

cumbersome rule and a rule that could define almost all tasks out ofthe lump sum

category. Therefore, the Board finds that defining the scope ofwork for lump

sum payments is unnecessary and the Board will not propose such language.’

First Notice Opinion and Order, p. 78.

‘

The frequency with which the unusual or extraordinary circumstances

provisions will be utilized will depend upon site-specific circumstances and the number

ofowners and operators seeking to utilize the provisions.

‘

Please see the response to JayKoch’s question 3 above..

Please see the response to JayKoch’s question 3 above.

‘

Section 734.860 sets forth the demonstration that must be made to utilize

the unusual or extraordinary circumstances provisions.

The type ofinformation required will depend upon site-specific

circumstances.

5.sic

Yes. Final actions by the illinois EPA on a proposed budget or an

application for payment are subject to review by the Board. ~ Section 734.505(f) and

734.610(g).

The Illinois EPA is willing to consider posting information on its website,

in an appropriate format and to the extent resources allow, regarding its determinations

on request,s to utilize the unusual or extraordinary circumstances provisions.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

Kyle Romin~r

‘

Assistant Counsel

‘

DATED:

_________

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

STATE OF ILLINOIS

)

COUNTY OF SANGAMON)

PROOF OF SERVICE

I, the undersigned, on oath state that I have served the attached Illinois Environmental

Protection Agency’s Response To Pre-Filed Questions On behalf of the illinois Environmental

Protection Agency upon the person to whom it is. directed, by placing a copy in an envelope

addressed to:

DorothyM. Gunn, Clerk

Marie Tipsord, Hearing Officer

Pollution Control Board

James R. Thompson Center

100 West Randolph St., Ste 11-500

•

100 West Randolph St., Ste 11-500

Chicago, illinois.6060l

‘

Chicago, illinois 60601

See Attached Service List

and mailing it from Springfield, Illinois ~

SUBSCRIBED AI’~DSWORN TOBEFORE ME

thisi~1iday

of_.L..r~e~

()o

BRENDA~O~1ER

.—.~

~ NOTARY PUBLIC, STATE OF ILLINOIS *

j.~~

~~c~~ci(

.E~I!~~

Notary Public

THIS FILING IS SUBMITTED ON RECYCLED PAPER

Printing Service List..

rage

i 01 ht

OaLe County State’s Attorney Office

Interested Party

Ogle County Courthouse

Oregon

110 South

Fourth Street, P.O. IL 61061-

Box 395

0395

815/732-1170

815/732-6607

Michael C. Rock, Assistant State’s Attorne

Brown,

Hay & Stephens LLP

Interested Party

700 First

Mercantile Bank

Building

205

South Fifth St., P.O.. Box

2459

Springfield

IL 62705-

2459

217/544-8491

217/544-9609

Claire A. Manning

Gina

Roccaforte, Assistant

Counsel

Springfield

IL 62794-

9276

Kyle Rominger, Assistant Counsel

Doug Clay

Hodge Dwyer Zeman

Interested Party.

3150 Roland Avenue

Post Office Box 5776

Springfield

IL 62705-

5776

217/523-4900

217/523-4948

Thomas G. Safley

Sidley Austin Brown & Wood’

Interested Party

Bank One Plaza

10 South Dearborn Street

Chicago

IL 60603

312/853-7000

‘312/953-7036

William G. Dickett

414 North Orleans Street

Suite 810

112 West Cook Street

P.O.. Box 360

6295 East Illinois Highway

3150 Roland Avenue

65 E. Wacker Place

Suite 1500

Chicago

312/836-1177

60610~-’:e‘312/836-9083

-~ Spr~igfield ‘

217/793-1858

Woodlawn

62898-

0360

Kenneth James

Chemical’ Industry Council of Illinois

Interested Party

Lisa Frede

Barnes & Thornburg

Interested Party

Carolyn S. Hesse, Attorney’

Rapps Engineering & Applied Science

Interested Party

2250 E. Devon Avenue

Suite 239

1 North Wacker Drive

Suite 4400

821 South Durkin Drive

- P.O~Box 7349

DesPlaines

IL 60018-

4509

Chicago

IL 60606

Springfield

62791-

7349

312/357-1313

312/759-5646

217/787-2118

217/787-6641

Michael W. Rapps

Environmental Management &

Party Name

Role

City & State

Phone/Fax

IEPA

Petitioner

1021 No~thGrand Avenue

East

P.O. Box 19276

217/782-5544

217/782-9807

Karaganis, White & Magel, Ltd.

Interested Party

Barbara Magel

Illinois ‘Petr-ole.u m Marketers Association.

Interested Party

Bill Fleischi

United Science Industries, Inc.

Interested Party

Joe Kelly, PE

Il1in’~isEnvironmental Regulatory Group

Interested Party

Robert A. Messina, General Counsel

~rlson Environmental, Inc.

Interested Party

618/735-2411

618/735-2907

217/523-4942

217/523-4948

Springfield

IL 62703

Chicago

IL 60601

Technologies

2012 West College Avenue

NOrmal

309/454-1717

Suite 208

IL 61761

309/454-2711

http://www.ipcb.state.il.us/coollextemal/casenotifyNew.asp?caseid=6286&notifytype=Ser... 6/10/2005

PrintingServiceList

Page2of4

Interested Party

Craig S. Gocker, President

Office of the Attorney Generai

Chicago

312/814-2.550

Interested Party

Floor es

IL 60601

312/814-2347

RoseMarie Cazeau, Bureau Chief

Herlacher Ancileton Associates, LLC .

8731 Bluff Road

Waterloo

618/935-2262

Interested Party

‘

. .

IL 62298

618/935-2694

Tom Herlacher, P.E., Principal Engineer

Illinois Pollution Control Board ‘

‘ ‘100 W. Randolph St.

‘

Chicago

312/814-3620

Interested Party

‘

Suite 11-500

IL 60601

312/814-3669

Dorothy M. Gunn, Clerk of.the Board

Marie Tipsord, Hearing Officer

Huff & Huff, Inc.

: 512 West Burlington Avenue LaGrange

Interested Party

‘

‘ ‘Suite 100

IL 60525

James E. Huff, P.E.

Black & Veatch

‘

101 North Wacker Drive

Chicago

Interested Party

,Suite 1100 ‘

IL 60606

Scott Anderson

Posegate&Denes

111 N. Sixth Street

Springfield

217-522-6152

Claire A. Manning

Marlin Environmental, Inc

1000 West Spring Street

84’~-~68-8855

Me~ànieLoPiccolo, Office Manager

e LoPft:~

Illinois Department of Natural Resources

‘

Springfield , . 217/-782-1809

InterestedPart~- ‘ .

One Natural Resources Way

‘ 217/S24-9640

Stanley Yonkauski

‘

Burroughs, Herler, Broom, MacDonald, 103 W. Vandalia Street

Edwardsville , 618/656-018.4

Interested Party

Suite 300

‘

IL 62025

618/656-1801

Musette H. Vogel

EcoDigital Development LLC

‘

P0 Box 360

•

Woodlawn

(618) 735-

Interested Party

6295 East Illinois Hwy 15

, IL 62898

2411

Joe Kelly, VP Engineering

Great Lakes Analytical

Buffalo Grove (847) 808-

Interested Party ‘

‘ 1380 Busch Parkway

IL 60,089

7766

A.J Pavlick ‘

CSD Environmental Services, Inc

‘

. Springfield

- Interested Party

‘

2220, Yale Boulevard

‘

IL 62703

‘ 217-522-4085

Joseph W. Truesdale, P.E.

CORE G:ological Services, Inc.

2621 Monetga, Suite C

217-787-6109

Ron Dye, Président--

‘ .

‘

Clayton Group Services Inc

3140 Finley Road

. Grove

630.795.3207

e ,,y

IL60515

Monte Nienkerk

r~t~

2231 W. Altorfer Dr.

309-692-9688

Kurt Stepping, Director of Client Services

http

://www.ipcb.state.il.us/cool/externallcasenotifyNew.asp?cas’eid=6286&notifytype=Ser. ..

6/10/2005

Printing Service List....

Page

o14

Atwell-Hicks, Inç~

Interested Party

ThomasM. Guist, PE, Team Leader

CW3M Company, Inc.

Interested Party

Jeff Wienhoff

Suburban Laboratories, Inc.

Interested Party

Jarrett Thomas, V.P.

Environmental Consulting& Engineering4,

Inc.

Interested Party

Richard Andros, P.E.

MACTEC Engineering & Consulting, Inc.

Interested Party

Terrence W. Dixon, P.G.

Illinois Department of Transportation

Interested Party

Steven Gobelman

SEECO Environmental Services, Inc.

Interested Party

Collin W. Gray

Henlacher Angleton Associates, LLC

Interested Party.

Jennifer Goodman

United Environmental Consultants, Inc.

Interested Party

GeOrge F. Moncek

McGuire ‘Woods LLP’

Interested Party

David Rieser

Greensfelder, Hemker & Gale

Complainant

Tina Archer, Attorney

Midwest Engineering Services, Inc.

Interested Party

En Curley, Env. Department Manager

American EnvirOnmental Corp.

Interested Party

Ken Miller, Regional Manager

AppIled Environmental Solutions,jjj~

Interested Party

Delete Me 2

Secor International, Inc.

Interested Party

Daniel J. Goodwin

Caterpillar, Inc.

Interested Party

Eric Minder, Sr. Envirohmental Engineer

K-Plus Environmental

Interested Pa’rty

940 East Diehi Road

‘ Naperville

‘630 5770800

Sute 100

IL 60563

701 South Grand Ave. West Springfield . 217~522-8001’

4140 Lift Drive.

Hillside

70&-544-3260

551 Roosevelt Road

Glenn Ellyn

#309 ‘

IL 60137

8901 N. Industrial Road

2300 Dirksen Parkway

Springfield

7350 Duvon Drive

TinleyIL

60477Park

Alton

522 Belle Street

IL 62002.

‘-: -

119 East Palatin Road

. , Palatine

Suite 101 ‘

IL 60067. “.

~‘

77 W. Wacker

‘

Chicago

31 ‘ 4 -8100

Suite 4100

‘

IL 60601

10 S. Broadway

‘

St. Louis

‘ 314-241-9090

Suite 2000

““MO ‘63104

4243 W. 166th Street

708-535-9981

3700 W. Grand Ave., Suite A Springfield.

217/585-9517

P 0 Box 1225

Centralla

6185335953

Springfield

400 Bruns Lane

IL 62702

100 NE Adams Street

~O~~29

3096751658

Suite 1000

Chicago

312-207-1600

600 W. Van Buren Street

IL 60607

http://www.ip,cb.state.il.us/coo1Jexterna1JcasenotifyNew.asp?caseid~6286&notifytype~Ser...6/10/2005

rrinnngservlceLlst....

‘

Daniel Caplice

‘

Illinois Society of Professional Engineers 300 West Edwards

Springfield

217-544-7424

Interested Party

IL’ 62704

217-525-6239

Kim Robinson

Brittan Bolin

. ‘

GEl Consultants, Inc.

243 North Lindbergh Blvd.

St. Louis

Interested Party

Suite ,312

7851

‘

314-569-9979

Daniel 3. Goodwin, P.E.

‘

Total number of participants: 52

http://www.ipcb.state.il.us/coollextemal/casenotifyNewasp?çaseid=6286&notifytype=Ser... 6/10/2005