BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS

Pollution Control Board

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),

)

R04-22

(UST Rulemaking)

RECEIVED

CLERK’S OFFICE

SEP

232005

STATE OF ILLINOIS

Pollution Control Board

IN THE

MATTER OF:

PROPOSED AMENDMENTS TO:

REGULATION

OF PETROLEUM LEAKING

UNDERGROUND

STORAGE TANKS

(35

ILL.

ADM. CODE

734)

)

R04-23

(UST Rulemaking)

Consolidated

)

ALL COUNSEL OF

RECORD

(Service List Attached)

NOTICE OF FILING

PLEASE

TAKE

NOTICE

that

September

23,

2005,

filed

with

the

Clerk

of the

Illinois

Pollution

Control

Board of the

State of Illinois

original, executed copy of Additional

Comments

and

Revised

Regulations

from

CW3M,

Company,

Inc.

for

the

Illinois

Pollution

Control

Board’s First Notice

of Amendments

Ill.

Adm.

Code

734 and

Ill.

Adm.

Code

732 in

the above-captioned matter.

Dated:

September 23, 2005

Respectfully

submitted,

CW3M Company

Carolyn S.

Hesse,

Esq.

Barnes

Thornburg

LLP

One North Wacker Drive -Suite 4400

Chicago, Illinois 60606

(312) 357-1313

296296v1

By:

One of Its At

eys

TO:

(This filing submitted

recycled paper

as defined in 35

III.

Adm.

Code

101.2021

CERTIFICATE OF SERVICE

oath

state

that

have

served

the

attached

Additional

Comments

and

Revised

Regulations

from

CW3M,

Company,

Inc.

for the

Illinois

Pollution

Control

Board’s

First Notice

of Amendments

35111.

Adm.

Code

734

and

Ill.

Adm.

Code

732

placing

a copy

envelope

addressed

the

Service List Attached

from

CW3M

Company,

Inc.,

701

West

South

Grand

Avenue,

Springfield,

62704

before

the

hour

5:00

p.m.,

this

26”

Day

September, 2005.

Carol Rowe

This

filing submitted

recycled

paper

defined

in 35111. Adm.

Code

101.2021

Service List

Gina Roccaforte

Thomas

Safley

Kyle Rominger

Hodge Dwyer Zeman

IEPA

3150 Roland Avenue

1021

North Grand Avenue

East

P.O.

Box 5776

P.O. Box

19276

Springfield,

62705-5776

Springfield,

IL 62794-9276

217/528-4900

217/792-5544

217/523-4948

(fax)

217/782-9807

(fax)

William G.

Dickett

Barbara Magel

Sidley Austin Brown

& Wood

Karaganis & White, Ltd.

Bank

One Plaza

414 North Orleans Street

South

Dearborn Street

Suite 801

Chicago, IL

60603

Chicago, IL

60610

312/853-7000

312/836-1177

312/953-7036

(fax)

312/836-9083

(fax)

Bill

Fleischi

Joe Kelly,

Illinois

Petroleum Marketers Association

United Science Industries,

Inc.

112

West Cook Street

6295

East Illinois Highway

Springfield,

62704

P.O. Box

360

217/793-1858

Woodlawn,

62898-0360

618/735-2411

618/735-2907

(fax)

Robert

A. Messina

Kenneth James

General Counsel

Carison Environmental, Inc.

Illinois Environmental Regulatory

Group

East Wacker Place

3150

Roland Avenue

Suite

1500

Springfield,

62703

Chicago, IL

60601

217/523-4942

217/523-4948

Lisa Frede

Michael

Rapps

Chemical Industry Council of Illinois

Rapps

Engineering &

Applied Science

2250 East Devon Avenue

821

South Durkin Drive

Des Plaines,

IL 60018

P.O. Box 7349

(847) 544-5995

Springfield,

6279 1-7349

217/787-2118

217/787-6641

(fax)

Joel J.

Sternstein, Assistant Attorney General

Matthew J.

Dunn, Division Chief

Office of the Attorney General

Environmental Bureau

188

West Randolph, 20tl~

Floor

Chicago, IL

60601

312/814-2550

312/814-2347 (fax)

Dorothy M.

Gunn, Clerk of the Board

Marie Tipsord, Hearing

Officer

Illinois

Pollution Control

Board

100

West Randolph Street, Suite

11-500

Chicago, IL

60601

312/814-3956

Scott Anderson

Black & Veatch

101

North Wacker Drive

Suite

1100

Chicago, IL

60606

Claire A. Manning

Brown, Hay &

Stephens,

LLP

205 South

Fifth Street

Suite 700

P.O.

Box 2459

Springfield, Illinois 62705-2459

(217) 544-8491

(217)241-3111 (fax)

Jonathan Furr, General Counsel

Illinois Department of Natural Resources

One Natural Resources Way

Springfield,

72702-127 1

217/782-1809

217/524-9640 (fax)

A.J. Pavlick

Great Lakes Analytical

1380

Busch Parkway

Buffalo Grove, IL

60089

847/808-7766

Tom Herlacher, P.E.

Principal Engineer

Herlacher Angleton Associates, LLC

8731

Bluff Road

Waterloo, IL

62298

618/935-2261

618/935-2694 (fax)

James E.

Huff, P.E.

Huff& Huff,

Inc.

512 West Burlington Avenue

Suite

100

LaGrange, IL

60525

Melanie

LoPiccolo, Office Manager

Marlin Environmental,

Inc.

1000

West Spring Street

South Elgin,

60177

847/468-8855

Brian Porter

Terracon

870 40” Avenue

Bettendorf,

52722

563/355-0702

Glen Lee, Manager

Wendler Engineering Services, Inc.

1770

West

State Street

Sycamore, IL

60178

815/895-5008

Joseph

W. Truesdale, P.E.

CSD Environmental Services,

Inc.

2220

Yale

Boulevard

Springfield,

62703

217/522-4085

David L.

Rieser, Partner

McGuire Woods LLP

West Wacker Drive

Chicago, IL

60601

312/849-8249

Kurt Stepping

Director of Client

Services

PDC

Laboratories

2231

West Altorfer Drive

Peoria,

61615

309/692-9688

Daniel J. Goodwin

Secor

International, Inc.

400 Bruns

Lane

Springfield,

62702

Monte Nienkerk

Clayton Group Services, Inc.

3140

Finley Road

Downers Grove, IL

60515

630/795-3207

Thomas M.

Guist, PE

Team Leader

Atwell-Hicks, Inc.

940 East Diehl

Road

Suite

100

Naperville,

60563

630/577-0800

Dan King, Team

Leader

United Science Industries,

Inc.

6295 East Illinois Hwy

Woodlawn,

62898

618/735-2411

Richard Andros, P.E.

Environmental Consulting

551

Roosevelt

Road, #309

Glen Ellyn,

60137

Engineering, Inc.

Terrence

Dixon,

P.G.

MACTEC Engineering

& Consulting, Inc.

8901

N. Industrial Road

Peoria,

61615

Steven Gobelman

Illinois

Department of Transportation

2300

Dirksen Parkway

Springfield,

62764

Jennifer Goodman

Herlacher

Angleton Associates, LLC

522

Belle Street

Alton,

62002

Ron

Dye

President

Core Geological Services

2621

Monetga

Suite C

Springfield,

IL 62704

(217) 787-6109

Collin W.

Gray

SEECO Environmental

Services,

Inc.

7350 Duvon Drive

Tinley Park

60477

George F. Moncek

United Environmental

Consultants,

Inc.

119 East Palatine Road

Palatine,

60067

Tina Archer, Attorney

Greensfelder, Hemker

& Gale

South Broadway

Suite 2000

St. Louis,

63104

314/241-9090

Erin Curley, Env.

Department Manager

Midwest Engineering

Services, Inc.

4243

West

166th

Street

Oak Forest,

60452

708/535-9981

Russ Goodiel, Project Manager

Applied Environmental Solutions, Inc.

P.O.

Box

1225

Centralia, IL 62801

618/533-5953

Eric Minder

Senior Environmental Engineer

Caterpillar,

Inc.

100 NE Adams Street

Peoria, IL 61629

(309) 675-1658

208776v I

Ken Miller, Regional Manager

American Environmental

Corp.

3700

West Grand Ave., Suite

Springfield,

62707

217/585-9517

Jarrett Thomas

Vice President

Suburban Laboratories,

Inc.

4140 Litt

Drive

Hillside,

IL 60162

(708) 544-3260

Daniel Caplice

K-Plus

Environmental

600

West Van Buren Street

Suite

1000

Chicago, IL 60607

(312) 207-1600

RECEIVED

CLERK’S OFFICE

BEFORE THE

POLLUTION CONTROL BOARD

SEP

232005

OF THE

STATE

OF ILLINOIS

STATE OF ILLINOIS

IN THE MATTER OF:

)

Pollution Control Board

)

PROPOSED AMENDMENTS TO:

REGULATION OF

PETROLEUM

)

R04-22

LEAKING

UNDERGROUND STORAGE TANKS

)

(UST Rulemaking)

(35

ILL. ADM. CODE

732),

)

IN THE MATTER OF:

)

PROPOSED AMENDMENTS TO:

)

REGULATION OF PETROLEUM

)

R04-23

LEAKING

UNDERGROUND STORAGE TANKS

)

(UST Rulemaking)

(35

ILL. ADM. CODE

734)

)

Consolidated

)

Proposed Rule.

First Notice

ADDITIONAL

COMMENTS

& REVISED

REGULATIONS FROM CW3M

COMPANY,

INC.

FOR THE ILLINOIS POLLUTION CONTROL BOARD’s

1st NOTICE OF AMENDMENTS

ILL. ADM. CODE 734

AND 35

ILL.

ADM. CODE

732

The

following

additional

comments

have

been

prepared

the

CW3M

Company

response to testimony

presented at the July 27,

2005

hearing.

During the

July

27,

2005

hearing, considerable

testimony

was

presented

and

subsequent

discussions

occurred

regarding

the

rates

developed

the

Agency

and

cost

data extracted

United

Science

Industries

(USI)

from

the

LUST

Program.

On the

basis of the July

27,

2005

hearing, the data presented and the flavor

ofthe

discussions, CW3M has modified

its proposed regulations, which

are

presented

in Appendix A ofthis document.

CW3M,

CSD

Environmental,

and

USI

presented

additional

testimony

and

proposed regulations to the Board

prior to

the July

27,

2005

hearing.

a result,

the

Board

requested

that we either comment on

each other’s

proposals

or work together

develop

one

alternate

proposal

that

could

presented

the

Board.

During

the

hearing,

all

indicated

that

would

attempt to

consolidate

our

efforts

into

one

proposal

simpli&

the

consulting

industry’s

concerns

and

streamline

the

proceedings for the

Board.

Contrary

our

intents,

were

forced

into separate

submittals

once

again.

Legal counsel

for the consultants interpreted the Agency’s August

11,

2005 Questions

veiled

threats of anti-trust

violations.

Whether

intended

not,

such

concerns

derailed

combined

efforts of the

consultants.

The

Agency questioned

why

alternate

rates

were

not

previously

presented;

ignoring

the

alternative

proposal

presented

last

summer

PIPE.

While we believe

that the July

27, 2005

hearing demonstrated

that

philosophically

the

consultants

are

clearly

aligned

the

problems

and

solutions

with

the

First

Notice

regulations,

have

differing

approaches

how

the

regulations

should

developed

correct

rate

deficiencies.

Due

reasons

discussed

above,

cannot

work

together

for

one

combined

proposal,

therefore,

while

we fundamentally

agree

the

best

way

implement

the

cost

portion of the

rules,

have

had

prepare

and

submit

our

own

versions

since

cannot

corroborate on

rates.

Further,

we believe that we are aligned

on the technical portion

the

proposed

regulations.

common

practice

for

parties

unite

or work

together

rulemaking proceedings,

however,

from the

inception of PIPE,

all parties

involved

have been careful not corroborate

on rate setting.

the

basis of the

testimony of USI

and

their considerable

effort

extract

real

data

from

the

LUST

Program

and

properly

evaluate

the

data,

CW3M

has

modified

its

proposal

a manner that

would allow the

proceedings to move

forward

while

ensuring

the

long-term

rate establishment

the

LUST

Program

fair

and

reasonable

and

won’t

lead

the

demise

of those

providing

LUST

remediation

services

this

State.

CW3M

attempted

simplify

Subpart

into

user-friendly,

less complicated format

while allowing

for reimbursement ofreasonable costs.

a preface to further discussion

regarding our proposal, we must qualify and

acknowledge that

we have not, nor has USI developed

the perfect rule.

However, either

proposal

is much closer to

fair and equitable rule

as opposed

to the ones presented by

the

Agency.

The

parties

most

active

this

rulemaking

process

are

engineers,

geologists

and

scientists

and

are

not

professional

rule

makers.

Our

proposal

requires

polishing

and

some

re-crafting

enable

work

completely

within

the

entire

framework

of the

regulations.

also

believe

that

the

concept

of threshold

expedited

and

maximum

rate development

needs additional thought

and

input from

the

Board and

the

Agency

convert the

concept

into

rules,

however,

we believe

is the

solution

that

can satisfy all

parties, and more importantly, the needs of the

program.

USI’s

review

and

analyses

of the

data

also

confirmed

the

Agency’s

earlier

testimony

that

extracting exact

task

costs

from

the

historical

data

is not

practical or

even

possible,

given

the

wide

variety of task

names

and

breakdowns

the

various

consultants.

For these reasons,

USI

could

not further

breakdown

costs beyond “early

action”,

“site classification or

investigation” and “corrective action”.

During

the

July

27,

2005

hearing,

there

was

discussion

creating

both

“threshold”

and

“maximum”

rates.

The

threshold

rate

would

lower

rate.

entice

consultant

owner/operator

attempt

reach

those

rates,

the

program

needs

a carrot.

The

most favorable carrot that could be

offered would

be speeding

the

review

process

that

the

project

and

reimbursement

could

move

quicker

pace.

Our

proposed regulations

present

language allowing the Agency to

develop an

expedited

review process

for budget requests

that

can meetthe threshold or expedited

values.

While the Agency

has testified

it has a right to

120 days for review,

the

truth

of the

matter

that

has a

mandate of

120

days,

and

mandate can

shortened.

The

expedited

review

would

compatible

with

the

Agency’s

current

process

screening or auditing

reports

for a

full review

rather than

conducting

full

review on

each and every

submittal.

the

spirit

of negotiation,

are

suggesting

that

the

Agency’s

initially

proposed

rates

used

interim

threshold

or expedited

values

until

process

place

collect and

evaluate program

cost

data,

has

been

clear

throughout

these

proceedings,

and

confirmed

USI’s statistical

analysis, that

the

Agency’s

rates

are

seriously

flawed

and

not

represent

true

costs,

and

are

not

endorsing the

rates,

however,

they

could

used

interim

basis

as being

somewhere

near

below

the

threshold

proposed for the

expedited

rates.

USI’s statistical

analysis of the

Agency’s

files clearly demonstrates that the Agency’s rates

are not consistent with the

rates

historically and

currently

being

deemed

reasonable

the

Agency,

which

was

the

stated justification ofthose rates but not

supportable or defensible.

The

Board

stated

in the

First Notice

“Although the Agency’s methodologyfor

determining

the

maximum

rates

not statistically

defensible,

the

Agency’s

data

from

actual

applications for

reimbursement for

sites

Illinois.

The

Agency ‘s

testimony

is that

the

rates as developed will be

inclusive

ninety

percent of the 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

primarily

based

the

Agency’s

experience

administering

the

UST program

Illinois.

The

Boardfurther

finds

that

the

rates

are

reasonable.

Any

deficiencies

the

maximum

rates

are

obviated by the

language dealing with extraordinary circumstances and the

addition

of the bidding process.

“

The

phase totals presented

by USI’s statistically defensible

data,

taken

from

actual

LUST

reimbursement

applications

Illinois,

indicate

deficit

exceeding

60,

for

consultant

services,

over

the

life

project.

This

exerdise

invalidates

the

credibility

the

entire

Agency

rate

structure

and

“experience”, as

CW3M, and every other entity that has offered

an opinion

on Subpart

has

tried

point

out

throughout

these

proceedings.

The

“experience”

of the

Agency

also

brought

into

question when

proposing

rates

based

the

assumption

that

051-IA regulations will

have

violated.

While bidding

is an

option

some

cases,

adds

unnecessary

time

delays

and

expense

the

program

through

the

bid

procedure

itself

Setting

realistic

rates

would

not

require

bidding

regular

basis

(over

the

time),

thereby

reducing

overall

costs.

Bidding

for

consulting

services,

especially

for

each

phase

of the

project,

not

practical,

nor

a turnkey

consultant’s

ability

obtain

competitive

bids

when

they

are

capable

of doing

the

work themselves.

If the

proposed

rates

were

reflective

of the

market

and

consistent

with

rates

previously

deemed

reasonable

the

Agency,

there

little

doubt

that

these

proceedings

would

have

been

less

controversial

and the Agency

might

have

secured

the

support

industry.

move

these

proceedings

forward

a positive

manner,

and remove the animosity

from

between

the regulated and regulators,

is essential

develop

real

and

reasonable

rates.

Further,

the

Act requires

that all

reasonable

costs

reimbursable.

During

the

July

27,

2005

hearing,

another

interesting

point

was

raised;

developing

lump sum

payments

may be

in violation of the Act.

For this reason and to

properly

collect

data,

believe

that

payment

requests,

particularly

for

the

variable

personnel

costs,

should

submitted

time

and

material

basis.

consultants

are

required

cap

their

submittals

at a maximum

but

submit

costs

less

that the

maximum

lump

sum

rate, they

are clearly

the

losing side of the

lump

sum

“win some,

lose

some”

rationale.

the flip

side,

payment of

lump sum

maximums

when

the

costs

incurred

don’t

reach

exceed

the

maximum

pay

than

reasonable costs, as defined

by the Act.

CW3M’s opinion

that

IEPA

wants

realize

a cost

savings

forcing

industry

substantially

less

reimbursement

than

prevailing

market

rates

previously

deemed

reasonable

well

forcing

industry

now comply with

secret or

undefined scopes of work.

The

impetus to

include

rates

was that

the secret

“Rate

Sheets”

used

the

Agency

were

about

invalidated,

and

the

Agency

needed

a replacement

system

for review.

Now

that

the

rate structure

has been

made

public

and the

Agency and

Board

are

unwilling

develop

detailed

scopes

of work

for

the

lump

sum

payment

amounts,

the

Agency will

try

force

fit

additional

tasks

into

the

lump

sum

rates.

Now

instead

of secret

“Rate

Sheets”

will

have

secret

scopes

of work,

which

will

have

the

same

negative

impact

the

industry

the

secret “Rate

Sheets” did, higher rates of appeals, and increased animosity between the

Agency

and

the

consultants.

The

Agency

has

refused

disclose

what

tasks

included when developing the rates or what tasks should be

inclusive within the

lump

sum

payment amounts.

Either the

Agency

is unable to list specific tasks

to include

a lump

sum rate because

IEPA does not

have adequate experience to know what tasks

list

or,

based

the

IEPA’s

Responses to

Pre-Filed Questions,

June

14,

2005,

the

Agency

intends that any task that

may come up

or that was

not

previously addressed

being

part of

the

lump

sum

payment amounts

will

later

deemed

part

of the

rate.

CW3M

proposing

task

lists

and

scopes

work

part

of the

attached

regulation,

however, we feel that the

final task

lists and scopes of work would best be

developed

jointly

the

Agency

and

the

LUST

Advisory

Committee,

but

published

periodically by

the

Agency outside of the confines ofthe rules.

This allows

modifications

without

the

cost

and

time

necessitated

rulemaking

proceedings.

Similarly,

the

rate structure

should

also

managed

the

same

way.

As the

entire

country

is aware and

intimately

affected by

Hurricane

Katrina and skyrocketing fuel

prices,

the

Agency

and Board

should

made

aware

of how these

rising

costs

affect

remediation

work.

Mobilization,

travel,

equipment

operation,

materials

(including

PVC

piping),

shipping,

utilities,

etc.

have

all

increased

for

all

of us

conducting

the

work.

Rate

structures

should

established

ways

that

allow

for

what

are

sometimes higher

but maybe only temporary costs increases.

However,

mirroring the

Agency’s

structure of Subpart

we have

presented

the

rates

and scopes

of work

appendices to the proposed rule.

Our interpretation

of the

Board’s opinion

is that even

though the

rates may be

flawed,

with

the

bidding

and

unusual

circumstances

contingencies

the

Agency’s

proposed

rates, where

too

low,

should

adjusted

to market

conditions.

This could

plausible

and

possibly

even

acceptable,

however,

the

Agency

has

testified

that

therewill

very few

reasons for them to accept or approve

unusual

or extraordinary

circumstances.

This

the

heart

of our

concerns

over

the

rate

structure

IEPA

proposed.

For

the

reasons

outlined

USI’s

testimony,

the

bidding of professional

services

not

practical,

nor

bidding

turnkey

consultants.

For

these

reasons,

alternatives other than the bidding need

to be provided.

Failure

to adequately and fairly adopt

rates will

have

little

impact on how

the

Agency does business.

However,

a poorly designed system of determining

maximum

rates

can

have

a serious

impact

owners,

operators

and those

of us

providing

the

services.

The

futures of our businesses are at stake.

The tyrannical monarchy that the

Agency

has

become

collects

the

money,

makes

the

laws,

then

spends

the

money

lavishly

upon

itself,

while

giving

the

taxed the

leftovers.

Consultants,

who have

standing

the

eyes of Agency,

are

now

proposed

regulated

them

well,

through

the

auditing

language.

any

fees

result

this

new

self-appointed

authority are due,

we are

sure

they will

in a “whatever

it takes to do the job”

lump

sum

already created.

The LUST fund

was established to protect the environment

and

assist owners

and

operators,

not

to create

a bureaucratic

regime

which answers

no one.

The Board,

through the

invalidation of the illegal

“rate sheets”

has

stood up

them

once, and we

are

asking them to

again,

behalf of the taxpayers

and

the

owner

operators,

sooner

rather

than

later.

The

concept

taxation

without

representation

was

the impetus

for the

revolutionary war.

uncooperative Agency,

coupled

with an

expensive

and

untimely appeal

process has

not provided

the owner /

operators

with a

voice.

We are asking that the Board be that voice.

The

Agency testified that the proposed rates were

developed with the

input of

industry

and

are

generally

consistent

with

the

rates

the

Agency

currently

approves.

Significant

testimony

was

presented

during

last

year’s proceedings that

only

limited

rates

were

developed

with

industry’s

input

and when

industry’s

input

was

used

for

professional

consulting

services,

the

Agency

misused

the

information

obtained

from

industry

because

the Agency

only

used

only

portions

of the

information rather

than the

whole and skewed

the

number of hours

industry

suggested

for certain

tasks.

Testimony

presented

during

the

July

27,

2005

hearing confirmed

that

the

proposed

rates

were

not

consistent

with

rates

the

Agency

currently

had

historically

approved;

the

Agency’s

proposed

rates

are

considerably

less.

Again,

this

suggests

that the Agency’s

proposed rates cannot allow for reimbursement of reasonable

costs,

clearly

violation of the Act.

From

the

comments made

by the Board

its

presentation of First Notice, we

interpreted their use of the

Agency’s rates not

endorsement of those rates but

the only alternative they

felt had

been made available.

Although

an alternate proposal

was

submitted

PIPE,

went

unnoticed.

has

been

our

intention

provide the

Board

with

alternative

rates.

However,

following

several

attempts

develop rates,

several

factors

make

the

task

impossible

extract

enough

representative

data

accurately quantify personnel

costs

on a per task basis.

The testimony and data

presented by USI at the

July 27, 2005 hearing confirm

that

the

Agency’s

proposed

rates

are

inadequate

well

severely

flawed.

Extraction of data

the

format

which

the

Agency

framed

Subpart

H cannot

accomplished

and

converted

into

rates

and

defended

any

acceptable

statistical

10

analysis.

US!

encountered

the

same

difficulty

that

the

Agency

did;

the

data

not

easily

sorted

due to

differing job

classifications

and billing

structures

consultants

preparing

reimbursement claims.

USI

did, however,

successfully extract relevant and

defensible

data for the phases of LUST remediation.

We attempted to

develop a

rate

structure

utilizing this

information,

however,

without

all

of the

data,

could

not

develop

the

normal

technical

situation to correspond

the

each of the

phases.

For

example,

personnel

services

for

site

investigation

are

roughly

represented

two

categories:

report

preparation/data

evaluation

and

field

activities

(drilling/sample).

Was

the

normal

situation reflective of five

wells

and three borings

per

site/phase

something altogether different,

such

as twenty-five wells and

fifteen

borings?

Hence,

the

importance of a

scope

of work.

Without

knowledge

the

amount

level

work,

the

rates

are

meaningless.

doesn’t

require

much thought

conclude that

site requiring more extensive work will have higher personnel costs.

believe

our

proposal

utilizes

the

basic

framework

that

the

Agency

proposed,

however,

offers

opportunity

create

rule

that

meets

the

requirements of the

Act,

allows

owners

and operators

fairly

reimbursed

and

established

a forum

for

the

Agency

and outside

affected

parties to

work

together

refine

the

process

of reasonable

determinations

for

the

long-term

viability

the

Program.

The wide

gap between the Agency

and the owner/operators and consultants

has

been apparent at every

stage

of the

rulemaking proceedings.

The

gap represents

the

same

gap

payment of reasonable

costs.

The

Agency’s

rates

will

force

many

consultants

out

of business

that

cannot operate

at a significant

loss

year after

year.

Owners

and operators

cannot

will

not

assume

financial;

liability

for

costs

that the

Act guarantees

payment of

The Agency has nothing to

lose.

One

concern voiced by

the

Agency was

that ifconsultants submit proposal

claim

during

a data collection

period,

they would

intentionally

drive

the

costs

that the

resulting

rates would favor them.

This notion

attacks the character of those

of us~20striveto work efficiently

and only bill for quality work

as costs

are

incurred.

For

this

reason,

have

proposed

that

professional

service

charges

billed

and

submitted

for reimbursement

time

and materials

format.

Only

charges that were

actually and legitimately

incurred would

be submitted

for payment.

adopt a

rule

that

fundamentally

bad because

the

alternatives

are

not

the

same

format

alternative

rates

are

not

presented

the exact

format

initially

presented

the

Agency

have

yet

evolve

into

the

perfect

rule

wrong.

Just

because the

Agency

presented

a proposal,

there

nothing that requires

the

Board to

adopt

it if

cannot realistically

work to the betterment of the program.

Although this

program

was intended to treat all owners / operators equally,

the

result

of this

particular

rule

discrimination

against

small

business,

especially

one

located

area

without

high

property

values.

desirable

urban

areas,

the

land

beneath

a LUST

site

can still

be quite valuable,

making out of pocket expenses

for a

particular

owner

operator

much

easier

absorb.

For

ongoing

business,

especially

a large

one,

out of pocket expenses

can

also be

absorbed, but,

for a

single

station

owner

small-town

downstate

Illinois, the

land

almost

worthless, and

the

income

ended

when

the

station

closed.

There

way

absorb

increased

out of

pocket expenses, which

is a by-product of a deficient reimbursement process.

This

part

the

reason

why there

are

many

inactive

open

LUST

incidents

Illinois,

and

the

proposed

rule

only

makes

difficult to

remediate

them

increasing

the out

of pocket costs to the owner / operator.

Although CW3M

and

US!

independently

submitted

proposals, we

believe this

effort

is a positive step toward

flushing

out

ideas and concepts to develop a rule worth

finalizing.

could

support

either

proposal

me16~r~j,f

the

two.

CW3M

proposed

use of the Agency’s rates as

expedited

interim rates.

Although the

rates are

flawed and have

real

merit, they

may mirror

the

target of the expedited

rate

structure

and

were

proposed

a compromise

keep

the

process

moving

forward

and give

the

Agency

some

sense of structure

during

data

collection

and

provide

carrot

for

industry

attempt

meet

lower rates where applicable.

USI’s

proposed

rates

are,

however,

much

closer

to the

real

world

and

actual

market conditions.

could

support

their rate

structures

and the

appendices they

have

developed

for

rates

and scopes

of work.

The rates

presented

US!

truly

reflect

unit

rates

historically

and currently

deemed

reasonable

the

Agency.

Mountains

of data,

the forms of

reimbursement

payments

and

approved

budgets

could

provided

the

Board

undeniably

defend

the

rates.

have

objections to

any of the technical

changes

734

proposed

USI.

Many of the

proposed

modifications

are

the

same

those

proposed

CW3M

and

commented on

during these proceedings.

A few of the

modifications

have

the

same

intent

but

variable

proposed

alternative

language.

The

Board

can

evaluate those

issues and determine which

language

is better suited

to this

rule.

summary,

feel

that

the

Board

needs

exercise

its

authority

and

responsibility

in these proceedings.

This

rule,

proposed,

not

ready

for

Second

Notice,

unless the

primary concern

to protect the

LUST

fund, at the

expense

of the

protection of the environment.

If environmental

protection

is a primary

concern, and

protection of the

LUST

fund

also

desirable,

then the

rule needs

significantly

altered.

If the

needs

of small

owner / operators carry

any weight, then the rule

is not

ready for Second Notice.

There

has

been

support

the

Agency’s

proposal

the

Board’s

First

Notice.

From

Rff1Ofl~

numerous

participants

these

proceedings,

participant

has

stepped

forward

defend

the

Agency’s

proposal

process of rate

development.

The

Board

needs

responsive

the

numerous

public

testimony and comments.

The

Board

has

the

authority

direct

the

Agency

re-evaluate

its

proposed

rates and the alternate rate structure utilizing threshold or expedited

payment amounts

addition

maximum

payment

amounts

and

coordinate

this

effort

with

the

participants to

reconfigure

Subpart

The record

clearly confirms that the Agency’s

proposed

rates

are

flawed

and

are

substantially

less

than

rates

historically

and

previously

determined

reasonable.

Without

proper

evaluation of

the

LUST

real

data,

maximum

rates

should

not

established.

unequivocally

wrong,

dangerous

the health

of the

program

and

Illinois businesses and has

absolutely

support.

The

lump

sum

system

proposed

the

Agency

allows

for overpayment as

well

underpayment, which appear

a violation

of the

Act’s

requirement to

reimburse

reasonable

costs.

the

first

public

hearing,

the

Agency

stated that there

was

not

time to collect data,

due an

urgency caused

by the LUST

fund’s

diminishing

balance.

the

time that has

passed

since the

first

hearing,

the

data could

have been

collected,

analyzed,

and

if necessary

re-collected

and

re-analyzed.

The

Agency’s

unwillingness to cooperate,

validated by the Board’s near carte

blanche

acceptance of

the

Agency’s

proposed

rule

for

First

Notice,

has

not

allowed

for

any

opportunity

compromise.

The

main

thing

the

consulting

community,

behalf of

the

owner

operators,

have

asked

for from

the

beginning of this rulemaking, and

are

still

waiting

for,

is a fair system of reimbursement, based

statistically

defendable methods,

not

out

date

guestimates

defended

improperly

analyzed

non-random

data

taken

from

a semi-randomly selected

file drawer.

the

Board

fails

respond

the

testimony

and

the

record,

the

only

remaining

option

for

owners

operators

and

service

providers

is to

seek

legislative

intervention to correct the flaws of the

proposed rule.

In the opinion of CW3M, the

only acceptable options are, for

the Board, which

is comprised of professionals

with rulemaking

expertise, to do one of the following:

15

Utilize

the alternative

proposals

submitted

USI

and

CW3M,

along

with

information presented

hearing and

the

public comment

period

reconfigure

Subpart

and bring the revised

proposal through

First

Notice again, or

Utilize

the

alternative

proposals

submitted

US!

and

CW3M

reconfigure

Subpart

remove

all

rates

and

present

method

for

which

the

rates

can

developed

using

properly

collected

and

analyzed data and bring this

revision through

First Notice again,

Sever

Subpart

and proceed

with

its

redevelopment while

finalizing

the technical portions of 732 and

734 and

redirect

the

participants to

work

together

come

forward

with

a more

appropriate

rule,

which

has public support outside of the Agency.

behalf of all

of the

owners and operators we represent and for the

viability of our

collective

businesses, we

hope that our efforts

will

not have

been

in vain and that the

Board

will

recognize

the

serious

flaws

with

the

pending

proposal.

will

continue

offer

our assistance

and

input

needed

the

Board and the

Agency

develop

rule

that

enhances

the

LUST

program

and

ensures

the

long-term

success

and viability of the program.

Dated: September 23, 2005

Respectfully submitted,

CW3M

Company

By:

___________

9-23-05