ILLINOIS POLLUTION CONTROL BOARD
WEBB AND SONS, INC.,
Petitioner,
vs.
PCB 07-24
(UST Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
Proceedings held on December 11th,
2006, at 10 p.m. at the Illinois Pollution
Control Board Hearing Room, 1021 North Grand
Avenue East, North Entrance, Springfield,
Illinois, before Carol Webb, Chief Hearing
Officer.
Reporter: Beverly S. Hopkins, RPR
IL CSR No. 084-004316, MO C.C.R. No. 968
reporter@keefereporting.com
618-277-0190 1-800-244-0190
11 North 44th Street, Belleville, Illinois 62226
APPEARANCES
ILLINOIS POLLUTION CONTROL BOARD
Ms. Carol Webb
Hearing Officer
1021 North Grand Avenue East
Springfield, Illinois 62794
Phone: (217) 524-8509
WEBB AND SONS, INC.
Mr. Jeffrey W. Tock
Harrington & Tock
201 W. Springfield
Suite 601
Champaign, Illinois 61824
Phone: (217) 352-8707
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
Mr. James G. Richardson
Enforcement Program
1021 North Grand Avenue East
Springfield, Illinois 62794
Phone: (217) 782-5544
INTERROGATION INDEX
QUESTIONS BY MR. TOCK
7, 39, 62
QUESTIONS BY MR. RICHARDSON
32, 60
EXHIBITS
Exhibit 1
10
Exhibit 2
23
Exhibit 3
27
Exhibit 4
40
Exhibit 5
54
Exhibit 6
66
Exhibit 7
67
Exhibit 8
67
(All exhibits were retained by the hearing
officer.)
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HEARING OFFICER WEBB: Good morning.
2
My name is Carol Webb, and I'm a hearing officer
3
with the Pollution Control Board. This is PCB
4
07-24, Webb and Sons versus IEPA. Webb and Sons
5
not related to me incidentally. It is December
6
11, 2006, and we are beginning at 11 a.m..
7
I'll note for record there are no
8
members of the public present. Members of the
9
public are allowed to provide public comment if
10
they so choose.
11
At issue in this case is the rejection
12
of petitioner's proposed budget regarding an
13
underground storage tank at 1201 DeWitt Avenue in
14
Mattoon, Coles County. The decision deadline is
15
February 15, 2007.
16
You should know that it is the
17
Pollution Control Board and not me that will make
18
the final decision in this case. My purpose is
19
to conduct the hearing in a neutral and orderly
20
manner so that we have a clear record of the
21
proceedings. I will also assess the credibility
22
of any witnesses on the record at the end of the
23
hearing.
24
This hearing was noticed pursuant to
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the Act and the Board's rules and will be
2
conducted pursuant to Sections 101.600 through
3
101.632 of the Board's procedural rules.
4
At this time I'd like to ask the
5
parties to make their appearances on the record.
6
MR. TOCK: My name is Jeff Tock. I'm
7
here on behalf of petitioner, Webb and Sons.
8
HEARING OFFICER WEBB: Thank you.
9
MR. RICHARDSON: Greg Richardson on
10
behalf the Illinois EPA.
11
HEARING OFFICER WEBB: Thank you very
12
much. Are there any preliminary matters to
13
discuss on the record?
14
MR. TOCK: That on the record I have
15
filed the motion to incorporate documents by
16
reference and seek approval and authorization,
17
permission from the hearing officer to file those
18
documents in this matter.
19
HEARING OFFICER WEBB: Well, your
20
motion is accepted. Are you moving to admit
21
these documents right now?
22
MR. TOCK: Well, I'm -- not to admit
23
them into evidence at this time --
24
HEARING OFFICER WEBB: Okay.
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MR. TOCK: -- but under the 35 ILL
2
Adm. Code 101.306(a), I believe I need to have
3
your authorization to use these documents.
4
HEARING OFFICER WEBB: Okay. Yes,
5
yes. I will accept the motion to incorporate the
6
documents by reference.
7
MR. TOCK: Thank you.
8
HEARING OFFICER WEBB: Anything else
9
to discuss before we begin?
10
MR. TOCK: No.
11
HEARING OFFICER WEBB: Okay. Mr.
12
Tock, would you like to make an opening
13
statement?
14
MR. TOCK: Yes. If it would, please
15
you, the hearing officer, instead of please the
16
court, this is an appeal from a denial of the
17
Corrective Action Plan budget submitted by Webb
18
and Sons, Inc., but it only pertains to the
19
personnel costs that are in that budget which
20
were totally rejected.
21
The comments that we received back by
22
petitioner from the Environmental Protection
23
Agency requested that the hours of the various
24
personnel and the personnel costs be broken down
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on an hourly basis to submit a much more detailed
2
as to what is going to be performed by each of
3
those personnel so that the Agency could perform
4
a further review.
5
It is the position of the petitioner
6
that it was unreasonable for the Agency to have
7
denied those personnel costs in that the costs
8
were provided in sufficient detail that they
9
should have been approved. And that is the
10
reason for this appeal is for the determination
11
by the Pollution Control Board that it was
12
improper to -- for the Agency to have denied
13
those personnel costs and to seek approval of
14
those costs.
15
HEARING OFFICER WEBB: Thank you. Mr.
16
Richardson, would you like to make an opening
17
statement?
18
MR. RICHARDSON: No, I have no opening
19
remarks.
20
HEARING OFFICER WEBB: Okay. Thank
21
you. Mr. Tock, you may present your case.
22
MR. TOCK: I would call as my first
23
witness Mr. Kevin Saylor.
24
HEARING OFFICER WEBB: Mr. Saylor,
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will you have a seat up here and the court
2
reporter will swear you in.
3
(The witness was sworn in by the court reporter.)
4
DIRECT EXAMINATION
5
BY MR. TOCK:
6
Q. Will you state your name, please?
7
A. Kevin Saylor.
8
Q. By whom are you employed?
9
A. HDC Engineering.
10
Q. What is your position with HDC?
11
A. I am the environmental division
12
manager.
13
Q. What is your educational background
14
and training?
15
A. I have a bachelor's in civil
16
engineering from the University of Illinois. I
17
graduated in December of '93. Since then, I have
18
worked in the environmental field in a variety of
19
different positions including both private
20
consulting, leaking underground storage tank work
21
in other states and in Illinois. I also worked
22
as a reviewer for the Public Water Supply section
23
for the state of North Carolina.
24
Q. You are an engineer by training; is
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that correct?
2
A. Engineer by training, and been
3
licensed since 2003.
4
Q. Is that license by the state of the
5
Illinois?
6
A. Yes.
7
Q. Is that normally referred to as a
8
professional engineer or PE?
9
A. Yes.
10
Q. In your employment with HDC
11
Engineering, have you prepared for submission to
12
the Illinois EPA proposals and budgets for
13
various leaking underground storage tank
14
projects?
15
A. Yes.
16
Q. How many such projects have you been
17
involved in?
18
A. Several -- several projects. I put
19
together a list just to get an idea, and I have
20
over 50 plans and budgets that I've been involved
21
with.
22
Q. Over what period of time?
23
A. Since 2001.
24
Q. So you're talking about over 50
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separate budgets in support of those plans?
2
A. Uh-huh.
3
Q. What sort of plans were they? Site
4
investigation or remediation, Corrective Action,
5
what type of plans and budgets are we talking
6
about?
7
A. They ranged from site classification
8
to site investigation, when the regulations were
9
changed, Corrective Action delineation and
10
Corrective Action Plans.
11
Q. How -- And what was the total number
12
that you have prepared and submitted to Illinois
13
Environmental Protection Agency?
14
A. Over 50.
15
Q. Over 50? Of those plans, how many of
16
them were rejected in total as to personnel
17
costs, as in this case with Webb.
18
A. Just this one and a previous budget
19
for Webb for site investigation and a previous
20
budget for a site called Goodin, which is in
21
Paxton.
22
Q. Is it your testimony then that for the
23
other 51, that those three plans were rejected by
24
the Agency, the other 51 plans were -- there was
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no request made by the Agency for a breakdown in
2
personnel hours?
3
A. No, there was not, not to the extent
4
that we have seen with Webb. In several
5
instances we did have personnel hours cut, but
6
they were not rejected in total except for Goodin
7
and Webb.
8
(The reporter marked Exhibit No. 1
9
for purposes of identification.)
10
Q. (By Mr. Tock) Mr. Saylor, I'm going
11
to show you what has been marked as Exhibit No. 1
12
with today's date and ask if you can identify
13
this document if you would, please?
14
A. Yes, this is the Form G, the personnel
15
forms, that were submitted with the Corrective
16
Action Plan budget.
17
Q. In this Webb application; is that
18
correct?
19
A. Yes.
20
Q. Did you prepare this budget?
21
A. I did, and my division did.
22
Q. Are you familiar with the breakdown of
23
the personnel in this Exhibit No. 1?
24
A. Yes.
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Q. Is this a form that is provided by the
2
Agency, Environmental Protection Agency?
3
A. Yes.
4
Q. Starting with the first line, high
5
priority investigation and preliminary costs, the
6
first entry is for senior project manager; is
7
that correct?
8
A. Yes.
9
Q. And the hourly rate is $98 an hour; is
10
that correct?
11
A. Yes.
12
Q. Is that rate within the range of the
13
rates approved by the Illinois Environmental
14
Protection Agency for the time period July 1,
15
2006, to June 30, 2007?
16
A. Yes.
17
Q. Is there a standard rate sheet at this
18
time that has been adopted by the Agency for all
19
the different types of personnel that are listed
20
on Exhibit 1, Sheets G-1, 2 and 3?
21
A. Yes.
22
Q. Are the hourly rates for each one of
23
the personnel listed in this exhibit within the
24
range of the authorized rates approved by the
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Agency?
2
A. Yes.
3
Q. The information that's contained on
4
Exhibit 1, this is for the personnel involved in
5
the preparation and implementation of the
6
Corrective Action Plan; is that correct?
7
A. Yes.
8
Q. Are these tasks similar in all
9
Corrective Action Plan projects that differ only
10
by perhaps the size or the extent, the volume of
11
one project compared to another?
12
A. Yes, they are similar. It does depend
13
on the extent of contamination, how many
14
agreements you may need, you know, how much soil
15
you're digging out.
16
Q. Is this what is typically called a
17
dig-and-haul operation?
18
A. Yes.
19
Q. And what is meant by a dig and haul?
20
A. Dig and haul means that primarily you
21
are removing the contamination by excavation and
22
hauling it off site to dispose of at a landfill.
23
Q. If you could just go through and look
24
at these sort of group summaries. You have high
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priority investigation and preliminary costs,
2
what is included within that aspect of the
3
personnel costs on this exhibit?
4
A. The way that we have it broken out on
5
this exhibit is that everything under that
6
subheading was time used to get to the point
7
where the Corrective Action Plan is prepared and
8
submitted.
9
Q. This is all preliminary work to the
10
actual preparation of the Corrective Action Plan;
11
is that correct?
12
A. It includes preparation of the
13
Corrective Action Plan as well, and all work that
14
went up towards that point.
15
Q. That Corrective Action Plan has now
16
been approved by the Agency; is that correct?
17
A. Yes, it was approved with a slight
18
modification.
19
Q. The second part on Page G-2 it says,
20
CAP Implementation (dig and haul), what is --
21
what are the personnel costs included within that
22
category?
23
A. The personnel costs are broken out
24
into this subheading to -- to take into account
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the time that will be required to do the actual
2
dig and haul, the consultant oversight of that,
3
you know, supervising excavation of backfill,
4
soil sampling, you know, the field work involved
5
in the excavation.
6
Q. The next category is Additional Well
7
Monitoring/Well Replacement/TACO sample
8
collection, what type of work is performed by the
9
personnel under that category?
10
A. This is another subdivision of the
11
field work. This was -- some of these hours also
12
got us to the point where we could do the Tiered
13
Approach to Corrective Action, Corrective Action
14
protected modeling, and also some of the wells
15
will be -- are planned to be destroyed through
16
excavation. So the costs in this section allow
17
for field work to sample monitoring wells,
18
replace monitoring wells, collect the required
19
TACO boring.
20
Q. The last category is CACR Report, what
21
does CACR stand for?
22
A. This is -- that is the Corrective
23
Action Completion Report.
24
Q. And are all the personnel and the
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hours under that subheading related to the
2
preparation of that completion report?
3
A. Yes. The way that we presented this
4
is that CACR Report, the Highway Authority
5
Agreements reimbursements is that this is the
6
follow-up time after the excavation is taken
7
place after, you know, the replacement wells are
8
installed and resurveyed and resampled. This is
9
the time that we would be required to finish up
10
any agreements, Highway Authority Agreements,
11
environmental end use controls and to complete
12
the CACR and the reimbursement.
13
Q. Is there anything unique or unusual
14
about this Corrective Action Plan compared to
15
other Corrective Action Plans that you have done?
16
A. As far as the field work goes, no.
17
Q. How many other Corrective Action Plans
18
have you done?
19
A. Off the top of my head, around 10.
20
Under 10.
21
Q. Based upon your experience in
22
preparing those other 10 Corrective Action Plans,
23
were there -- modify that -- were there also
24
budgets that you prepared and submitted as part
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of those Corrective Action Plans?
2
A. Yes.
3
Q. Were all of those approved?
4
A. No.
5
Q. What Corrective Action Plans were not
6
approved?
7
A. There were a couple of instances where
8
after we did the excavation, more work was
9
required by the EPA. And we had submitted a
10
technical plan and a budget to do that, however,
11
the entire budget was rejected at that point.
12
Q. So as far as Corrective Action Plans
13
that were actually approved, how many did you
14
prepare?
15
A. Around five, I'm thinking.
16
Q. Were the -- the -- I'll call them unit
17
costs, the costs of doing the dig and haul, the
18
high priority investigation, preliminary costs,
19
the various categories that we've just gone
20
through on Exhibit 1, were they substantially
21
similar for each one of those Corrective Action
22
Plans?
23
A. The other plans were -- were very
24
similar, yes.
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Q. They're all dig-and-haul projects; is
2
that correct?
3
A. Uh-huh.
4
Q. And those were the previous plans that
5
were -- the budget was approved by EPA without
6
modification or with slight modification?
7
A. With modification, yes, but there were
8
personnel dollars approved.
9
Q. And have all of those plans now been
10
implemented and the Corrective Action performed?
11
A. Not all, but some have.
12
Q. Are they in progress though and have
13
not been completed?
14
A. They're being scheduled, yes.
15
Q. Do you have an opinion as to whether
16
or not the -- the breakdown in the budget for
17
personnel under different job categories and the
18
rates and the hours were the usual and customary
19
rates and hours for the performance of the work
20
necessary for the Corrective Action Plans based
21
upon the previous Corrective Action Plans that
22
you submitted and approved by the Agency?
23
MR. RICHARDSON: I'm going to object
24
to that question for an opinion. I don't think
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there's adequate foundation and the relevance of
2
other projects, other plans really has no bearing
3
on this matter.
4
HEARING OFFICER WEBB: Overruled. You
5
can answer it. Do you need the question
6
repeated?
7
A. If I can paraphrase and make sure I
8
understand what is being asked, is this presented
9
similarly to other plans that we presented?
10
Q. (By Mr. Tock) Well, not just the
11
presentation, the form of it. But the content in
12
terms of the scope of the work, the hours of the
13
work and the rates being charged being within the
14
allowed limits of EPA?
15
A. Yes, it is similar.
16
Q. The high priority investigation,
17
preliminary costs for senior project manager,
18
professional engineer and engineer III, there is
19
a description of the work to be performed by each
20
one of those; is that correct?
21
A. Yes.
22
Q. Included in the -- in the work is two
23
LUST project appeals, can you explain what that
24
description is about?
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A. Yes. There have been two appeals
2
related to the Webb project. One involves
3
reimbursement for the initial excavation. The
4
second involved a budget for Stage II of site
5
investigation. And the Webb project started with
6
tank removal. It was regulated under 731, so we
7
proceeded with tank removal and soil excavation.
8
And when we got to the point where you realized
9
that the soil excavation exceeded what we had
10
urgently anticipated, we contacted the EPA at
11
that point to discuss the situation with them.
12
Tom Henninger talked to us at that
13
point because there is not a project or a unit
14
assigned to the project yet. He suggested that,
15
you know, we stop excavation, we opt into the
16
current regulations so that we could operate
17
under approved budget, and go through the site
18
investigation and delineation. And so we did.
19
And then we submitted for reimbursement for those
20
initial costs, and $77,000 of that was not
21
reimbursed. So our first appeal involved
22
recouping those costs. And that was -- we were
23
successful in that. However, there was no
24
opportunity for us to regain any of HDC's
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consulting personnel time for that appeal.
2
Q. When you say HDC's consulting, what
3
are you referring to? Is that engineering time?
4
Is it staff time within HDC? Is it attorney's
5
fees? What is that?
6
A. It is staff time within HDC. It is
7
not attorney's fees.
8
Q. So this was all time that was spent by
9
HDC Engineering to perform the work necessary to
10
pursue the appeal of the denial of the $77,000;
11
is that correct?
12
A. Yes, it involved, you know, document
13
preparation, phone calls, letters, meetings here
14
with various members of the EPA, the LUST action.
15
Q. And of that $77,000 that was in
16
dispute, how much of that was eventually approved
17
by the Agency?
18
A. I believe we got it all back. I
19
believe all of it was approved.
20
Q. So all of the time that you spent
21
resulted in you having the budget approved as you
22
originally submitted it; is that correct?
23
A. The reimbursement, yes.
24
Q. Yes, the reimbursement, excuse me.
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What was the second Webb appeal about?
2
A. The second Webb appeal involved site
3
investigations. We initially went into site
4
investigation and submitted our first plan and
5
budget. That plan and budget was rejected in its
6
totality. The EPA stated that we were proposing
7
to do too many borings. The amount of borings we
8
proposed was -- was -- were too many. And so we
9
submitted the second Stage I plan and budget,
10
basically narrowed down the amount of borings and
11
investigation to what we had been told would be
12
accepted by the project manager. That was
13
approved, with some personnel cuts. Then we got
14
to Stage II. We completed Stage I and still
15
required additional delineation, so we submitted
16
a plan which incidentally included a lot of what
17
we initially proposed in the first one, and the
18
plan was approved this time, and most of the
19
budget, except zero personnel dollars.
20
And at that point we were required to
21
submit an exhaustive, you know, hourly by task,
22
by person breakout for their review. We provided
23
that breakout, and the project manager went
24
through and cut, I want to say, roughly half of
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the personnel costs, even after the hourly
2
breakout was provided. So the second appeal was
3
-- was submitted to regain those personnel hours
4
that were cut from the Stage II site
5
investigation budget.
6
Q. How much of those cuts, personnel
7
costs were recovered?
8
A. Probably around 90%. I don't know the
9
number off the top of my head. I know that there
10
was some that was not approved. Maybe around a
11
thousand dollars.
12
Q. So when you have included in the
13
personnel costs on Exhibit 1, the two appeals,
14
which you have just testified to in explanation
15
of the work that you had to perform, that was
16
above and beyond the work that you would have
17
ordinarily done if you had gotten approval of
18
your budget in the first instance; is that
19
correct?
20
A. Yes.
21
Q. Then you were essentially approved in
22
those amounts that you had originally requested,
23
and you performed the work and were reimbursed;
24
is that correct?
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1
A. Uh-huh.
2
Q. Now you had testified, I believe, that
3
the second Webb appeal was a result of you had
4
made application for a Stage II site
5
investigation; is that correct?
6
A. Yes.
7
Q. And the personnel costs on that was
8
broken down similar to what you have in Exhibit
9
1; is that correct?
10
A. Yes.
11
Q. If I may, I don't know how you want to
12
proceed. One of the documents that has been
13
included in the motion was that petition from the
14
second Webb appeal. If I could have the witness
15
review that at this time.
16
HEARING OFFICER WEBB: 05-183?
17
MR. TOCK: Yes.
18
HEARING OFFICER WEBB: Okay.
19
MR. TOCK: If we could mark that as
20
Exhibit 2.
21
(The reporter marked Exhibit No. 2
22
for purposes of identification.)
23
Q. (By Mr. Tock) Mr. Saylor, do you have
24
in front of you Exhibit 2?
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1
A. Yes.
2
Q. If you would look at Pages G-1 and
3
G-2, the personnel costs for this Stage II site
4
investigation; is that correct?
5
A. Yes.
6
Q. And are those forms that appear there
7
the same as the forms that appear in Exhibit 1 of
8
this case?
9
A. Yes.
10
Q. And the breakdown is similar in
11
fashion in terms of the title of the personnel,
12
the job description, the number of hours, the
13
hourly rate and the total hours?
14
A. Yes.
15
Q. This is the personnel, these two
16
costs -- excuse me, these two, Pages G-1 and G-2,
17
these were rejected by the Agency; is that right?
18
A. Yes, rejected. And they required
19
further breakout than what was shown.
20
Q. Attached to that petition in Exhibit 2
21
there is a letter from Mr. Harry Chappel attached
22
at Exhibit C, do you find that?
23
A. Yes, I've got it.
24
MR. RICHARDSON: Excuse me. What
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document are you referring to?
2
MR. TOCK: This is the 05-183
3
petition.
4
MR. RICHARDSON: But this letter, what
5
was the date, please?
6
MR. TOCK: The date of the letter is
7
February 8, 2005, attached as Exhibit C to that
8
petition.
9
MR. RICHARDSON: Thank you.
10
Q. (By Mr. Tock) This is an Attachment A
11
to Mr. Chappel's letter of February 8, 2005. Can
12
you turn to that page, Section 1, paragraph 2?
13
A. Yes.
14
Q. And can you read that, please?
15
A. $70,610 for costs that lack supporting
16
documentation, 35 ILL Adm. Code 732.606(gg).
17
Continue?
18
Q. No. If could you drop down to the
19
next paragraph --
20
A. Okay.
21
Q. -- it starts the Agency?
22
A. The Agency is requesting that proposed
23
personnel costs be further broken down to provide
24
sufficient justification for the proposed
KEEFE REPORTING COMPANY
25
1
personnel costs. The Agency is requesting
2
information regarding the task performed by each
3
person and the amount of time for each task
4
performed. The Agency is requesting
5
justification for the estimated amount of time to
6
complete each task.
7
Q. Did you provide that information to
8
the Agency?
9
A. Yes, we did.
10
Q. Was that done by your letter dated,
11
excuse me, February 25, that's Exhibit E to the
12
petition, directed to Mr. Malcom?
13
A. Yes.
14
Q. And attached to that letter is then
15
the hourly breakdown and response to Mr.
16
Chappel's letter; is that correct?
17
A. Yes.
18
Q. And then even that breakdown was then
19
reviewed by the Agency and only a portion of it
20
was approved, correct?
21
A. Correct.
22
Q. And then did you subsequently appeal
23
the rejection by the Agency of the hourly
24
breakdown?
KEEFE REPORTING COMPANY
26
1
A. Yes.
2
Q. And you were able to recover most of
3
what had been cut; is that right?
4
A. That is correct. I believe the total
5
was $7,906 was denied, and on appeal the
6
settlement was for $6,936.
7
Q. And on your prior testimony, you had
8
said that out of the 54 budgets that you had
9
prepared and submitted, the Webb -- the first
10
Webb appeal was one of only three where the
11
personnel costs had been requested to be broken
12
down on an hourly basis, as you did in your
13
letter of, what was it, February -- February 15;
14
correct?
15
A. Yes, it was the site investigation
16
Stage II, which is what that appeal was
17
regarding. This Corrective Action Plan budget
18
and a project called Goodin, it's Incident No.
19
930181, that is also in Harry Chappel's unit.
20
Q. Okay. Now in this matter that we're
21
here on today --
22
(The reporter marked Exhibit No. 3
23
for purposes of identification.)
24
Q. (By Mr. Tock) -- I'm showing you what
KEEFE REPORTING COMPANY
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1
has been marked as Exhibit 3.
2
HEARING OFFICER WEBB: Are we back to
3
the record now, or is that in the Administrative
4
Record, Exhibit 3?
5
MR. TOCK: Exhibit 3 on the record.
6
HEARING OFFICER WEBB: Okay. Is in
7
the Administrative Record or in your motion to --
8
MR. TOCK: Excuse me. It -- this was
9
part of the Administrative Record that was
10
received from the Agency.
11
HEARING OFFICER WEBB: Okay.
12
MR. TOCK: Page 001 of the
13
Administrative Record.
14
HEARING OFFICER WEBB: Okay. Thank
15
you.
16
Q. (By Mr. Tock) Can you identify this
17
Exhibit 3, please?
18
A. Yes. It is the approval letter for
19
our Corrective Action Plan and budget for the
20
Corrective Action Plan involving this appeal.
21
Q. And in accordance with this letter,
22
was the Corrective Action Plan approved?
23
A. Yes, it was, with modification.
24
Q. Were those modifications acceptable to
KEEFE REPORTING COMPANY
28
1
you?
2
A. Yes.
3
Q. What about the budget? The budget was
4
not approved, was it?
5
A. Portions of the budget were approved.
6
Mainly most of the investigation costs, it looks
7
like all of the analysis costs, the equipment
8
costs were approved, and field purchases and
9
other costs had slight modification approximately
10
$600. Zero personnel costs were approved.
11
Q. On page 5 of this exhibit under
12
Section 2, paragraph 3, would you read that
13
paragraph, please?
14
A. $103,360 for personnel costs deemed
15
unreasonable. Such costs are ineligible for
16
payment from the Fund pursuant to 35 ILL Adm.
17
Code 732.606(hh). The Agency is requesting an
18
hourly breakdown of each task performed by each
19
job title in order to make a more thorough review
20
of the proposed personnel costs.
21
Q. Did you interpret this request for an
22
hourly breakdown to request the same information
23
as in the first Webb appeal?
24
A. I'm sorry. Could you repeat the
KEEFE REPORTING COMPANY
29
1
question?
2
Q. Did you interpret this request in this
3
paragraph 3 for an hourly breakdown to be a
4
request to you to submit the same sort of hourly
5
breakdown that you did in the first Webb appeal?
6
A. Yes.
7
Q. Did you have any concern that even
8
after you had provided that hourly breakdown,
9
that it would still be rejected as in the first
10
Webb appeal?
11
A. Yes.
12
Q. Is that the reason why you recommended
13
taking the appeal at this time of the rejection
14
as shown in Exhibit 3?
15
A. Yes, that and because, you know, for
16
projects that don't appear to be in Chappel's
17
unit, we're not asked to do that additional
18
breakout.
19
Q. What do you mean by Chappel unit?
20
A. Well, meaning, that the two -- the two
21
projects that we've been requested to provide an
22
additional personnel breakout, were both under
23
Harry Chappel's unit.
24
Q. What is -- what do you mean by a unit?
KEEFE REPORTING COMPANY
30
1
A. Well, from what I understand, it's a
2
managerial hierarchy of the EPA LUST section,
3
that there --
4
Q. How many units are there in the EPA?
5
A. Five or six, I believe.
6
Q. And do you have any request from any
7
unit other than Mr. Chappel's unit to provide
8
hourly breakdowns?
9
MR. RICHARDSON: I'm going to object.
10
I don't know what the relevance is to this matter
11
as the other units and the work they do.
12
HEARING OFFICER WEBB: Overruled.
13
Q. (By Mr. Tock) You can go ahead an
14
answer.
15
HEARING OFFICER WEBB: You can answer.
16
A. Can I have the question again, sorry?
17
Q. (By Mr. Tock) You said there are four
18
or five units within the LUST section of the EPA;
19
correct?
20
A. Yes.
21
Q. And do all these sections to your
22
knowledge review leaking underground storage tank
23
sites for purposes of site -- not site -- the
24
extent of the contamination of the site, the site
KEEFE REPORTING COMPANY
31
1
delineation, the Corrective Action that needs to
2
be done of those sites?
3
A. Yes. It's my understanding that, you
4
know, the units -- all of the units review
5
leaking underground storage tank technical plans
6
and budgets.
7
Q. Of the 54 plans and budgets that you
8
have submitted, how many of those have been to
9
units other than Mr. Chappel's?
10
A. All but 14.
11
Q. And so 14 from 50, that's roughly
12
around 40?
13
A. Uh-huh.
14
Q. And of those 40, did any of those
15
units request a breakdown of your personnel cost
16
on an hourly basis?
17
A. No.
18
MR. TOCK: I don't have any further
19
questions. Thank you.
20
HEARING OFFICER WEBB: Okay. Mr.
21
Richardson?
22
CROSS-EXAMINATION
23
BY MR. RICHARDSON:
24
Q. Mr. Saylor, in looking, I think it's
KEEFE REPORTING COMPANY
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1
Petitioner's Exhibit No. 1, it's also pages 54
2
through 56 of the Agency record, let's look at
3
senior project manager. When I look at the task
4
to be performed for the above hours, am I correct
5
that there is no hourly breakdown of how many
6
hours are allocated to each task being performed?
7
A. There is an hourly breakdown for each
8
-- each personnel title.
9
Q. Yes. But if I want to know how many
10
hours the senior project manager spent on
11
Corrective Action Planning, I could not divine
12
that answer from page 54, could I?
13
A. No.
14
Q. Now we talked about a couple of
15
previous appeals. The first Webb and Sons appeal
16
which, I think, you mentioned was for
17
approximately $77,000, was that -- was a petition
18
filed with the Pollution Control Board in that
19
appeal?
20
A. Yes.
21
Q. Was that matter settled before a Board
22
decision was made?
23
A. I believe so.
24
Q. So it was a settlement with the Agency
KEEFE REPORTING COMPANY
33
1
versus going to a hearing and obtaining a Board
2
order in the matter?
3
A. I believe so.
4
Q. And now I think you have Petitioner's
5
Exhibit No. 2 in front of you still, is that what
6
we've been calling the second Webb and Sons
7
appeal?
8
A. Yes.
9
Q. And did that go to a Board hearing and
10
Board decision, or is that settled prior to a
11
hearing and a Board order?
12
A. That was settled prior to hearing.
13
Q. Okay. Now in the other matters you
14
have dealt with, the various submissions you've
15
made to the Agency, have you ever included an
16
item, such as you do for the senior project
17
manager here, to LUST project appeals?
18
A. No, we have not had to.
19
Q. But I'm asking you, have you ever done
20
that?
21
A. No.
22
Q. And your answer would be no?
23
A. No.
24
Q. Now in talking about the $77,000
KEEFE REPORTING COMPANY
34
1
appeal, I think that's the first Webb and Sons
2
appeal, you said there was no opportunity to
3
recou those costs -- or recoup those costs?
4
A. There was not an opportunity to recoup
5
our personnel costs that went in.
6
Q. Now, were you involved in the
7
settlement negotiations concerning that matter?
8
A. That was handled by our attorney at
9
the time.
10
Q. Okay. Did you ever bring that to
11
anyone's attention that you -- your consulting
12
firm would like to be recouped for the costs that
13
went into that first appeal?
14
A. In this budget we did.
15
Q. This budget, being the appeal we're
16
here about today?
17
A. Uh-huh.
18
Q. But you're saying when you were
19
discussing the settlement of the first Webb and
20
Sons appeal, you did not raise that issue with
21
anyone?
22
A. No.
23
Q. Now, in the second Webb and Sons
24
appeal, did you seek the cost of the -- the cost
KEEFE REPORTING COMPANY
35
1
of the time allotted to the first project appeal
2
in the second appeal?
3
A. No.
4
Q. Why didn't you seek that then instead
5
of waiting until today, which, I guess, we can
6
call the third project appeal?
7
A. Because the appeal for site
8
investigation was just for site investigation.
9
The site investigation costs that were denied,
10
that was the purpose of that appeal.
11
Q. And that was which appeal, the second
12
appeal?
13
A. Yes.
14
Q. But there is personnel time in that
15
appeal, is there not?
16
A. Yes.
17
Q. And we're talking about personnel time
18
here?
19
A. Yes.
20
Q. So what -- what prevented you from
21
including the first appeal cost in the second
22
one?
23
A. Based on our experience with site
24
investigation budgets and delineation budgets, if
KEEFE REPORTING COMPANY
36
1
you put in personnel costs for anything that is
2
not related to doing, for example, five borings
3
and four wells in a status report, it's rejected.
4
Q. But you don't -- we don't know what
5
would have happened here because you never
6
submitted a second appeal?
7
A. Well, I imagine it would --
8
Q. Well, I mean, do you know -- you don't
9
know what would have happened --
10
A. No.
11
Q. -- you didn't include it? But you're
12
aware of the cost from the first appeal when you
13
made the second submission for the second appeal?
14
A. Uh-huh.
15
Q. And have you ever included project
16
appeal costs in any of your other submission that
17
you've ever dealt with?
18
A. No.
19
Q. This is your first one?
20
A. (Nods head.)
21
MR. RICHARDSON: I have no further
22
questions.
23
HEARING OFFICER WEBB: Okay. Any
24
redirect?
KEEFE REPORTING COMPANY
37
1
MR. TOCK: Yes, if I can just find the
2
document I'm looking for. If I can take a few
3
minutes to see what I'm looking for.
4
HEARING OFFICER WEBB: Sure.
5
MR. TOCK: I'm having a little
6
difficulty locating the exhibit I'm looking for.
7
If we could take a break so I can find it.
8
HEARING OFFICER WEBB: Yeah, we can
9
take five.
10
(A short break was taken.)
11
MR. TOCK: No further questions.
12
HEARING OFFICER WEBB: No further
13
questions. Okay. So nobody has any further
14
questions for this witness?
15
MR. RICHARDSON: No.
16
HEARING OFFICER WEBB: Okay. Thank
17
you very much, Mr. Saylor.
18
THE WITNESS: Thank you.
19
HEARING OFFICER WEBB: Mr. Tock, you
20
may call your next witness.
21
MR. TOCK: I call Mr. Malcom, please.
22
HEARING OFFICER WEBB: Would the court
23
reporter please swear the witness.
24
(The witness was sworn in by the court reporter.)
KEEFE REPORTING COMPANY
38
1
DIRECT EXAMINATION
2
BY MR. TOCK:
3
Q. Could you state your name, please?
4
A. James Malcom.
5
Q. You are employed by the Illinois EPA;
6
is that correct?
7
A. Yes, it is.
8
Q. How long have you been employed by the
9
Agency?
10
A. Four eight years.
11
Q. What is your current position with the
12
EPA?
13
A. I'm a project manager in the LUST
14
section.
15
Q. Are you a senior project manager or
16
any particular designation of the project
17
manager?
18
A. I'm a Stage III.
19
Q. Who is the unit manager?
20
A. It's Harry Chappel.
21
Q. How long have you been a project
22
manager?
23
A. For eight --
24
Q. Eight years?
KEEFE REPORTING COMPANY
39
1
A. -- years, yes.
2
Q. Have all eight years been in Mr.
3
Chappel's unit?
4
A. No, huh-uh.
5
Q. How long have you been with Mr.
6
Chappel's unit?
7
A. For four years.
8
Q. What do you do as a project manager in
9
a LUST unit?
10
A. You -- you review technical plans and
11
budgets.
12
Q. You reviewed the plans and budgets for
13
the Corrective Action Plan for Webb that we're
14
here for today?
15
A. Sure.
16
Q. Didn't you?
17
A. Uh-huh.
18
MR. TOCK: Exhibit 4, please.
19
(The reporter marked Exhibit No. 4
20
for purposes of identification.)
21
Q. (By Mr. Tock) Mr. Malcom, you have in
22
front of you Exhibit No. 4, and I ask if you can
23
identify this as your LUST technical review notes
24
for this Webb submittal?
KEEFE REPORTING COMPANY
40
1
A. Correct, yes.
2
Q. So this was a review by you of the
3
Corrective Action Plan and budget submitted by
4
the petitioner, Webb and Sons; right?
5
A. Correct.
6
Q. The bottom of the first page you have
7
some technical review; is that correct?
8
A. Yes, uh-huh.
9
Q. Then on the second page it says
10
approve with modifications, plan and budget;
11
correct?
12
A. Sure, uh-huh.
13
Q. When you did your review, you reviewed
14
not only the technical plans but also the budget;
15
is that correct?
16
A. Yes.
17
Q. And based upon your review of the
18
budget, you felt that the budget, as submitted,
19
should be approved; is that correct?
20
A. No, it's not.
21
Q. Where am I wrong in that statement?
22
A. That the overall hours were
23
excessively high and it was a red flag to stop
24
and get some more input on it from Mr. Chappel.
KEEFE REPORTING COMPANY
41
1
Q. Why does your LUST technical review
2
notes, Exhibit 4, not say that?
3
A. It's a simple oversight.
4
Q. Then why does it say that you
5
recommended approving with modifications, plan
6
and budget?
7
A. It should have said plan only, but I
8
failed to show that the budget was, in fact,
9
denied.
10
Q. Some place in front of you there, Mr.
11
Malcom, should be the Exhibit 3, the December 12,
12
2006, letter from the Agency to Doris Webb, did
13
you find that?
14
A. Yes.
15
Q. Page 5 of that document contains a
16
Section 2?
17
A. Uh-huh.
18
Q. Did you prepare that Section 2?
19
A. Yes.
20
Q. When did you prepare that Section 2?
21
A. The same day as the entire letter
22
itself.
23
Q. You prepared the letter dated
24
September 12 for Mr. Chappel's signature; is that
KEEFE REPORTING COMPANY
42
1
right?
2
A. Uh-huh.
3
Q. What changed between your LUST
4
technical review notes on August 30, which is
5
Exhibit 4, and the preparation of the letter
6
dated September 12th to cause you to provide all
7
of this information under both Section 1 and
8
Section 2 that does not appear in your LUST
9
technical review notes, Exhibit 4?
10
A. Harry Chappel took the budget itself
11
and reviewed it with the other supervisors and
12
they came up with the final decision, and that
13
must have taken 12 days here.
14
Q. You said he reviewed it with other
15
supervisors?
16
A. Right. Which is Tom Henninger, Doug
17
Clay, Cliff Wheeler.
18
Q. Is there any record of that meeting?
19
A. Harry might have something, but as far
20
as me, no.
21
Q. Please look at Exhibit 1 in front of
22
you, the personnel costs.
23
A. Okay.
24
Q. I would like to go through each one of
KEEFE REPORTING COMPANY
43
1
these personnel and start with under high
2
priority investigation, senior project manager.
3
Do you have an opinion as to what number of hours
4
should have been allowed for this Corrective
5
Action Plan for that position?
6
A. Not offhand. But compared to other
7
sites it -- it was excessive.
8
Q. You said compared to other sites, how
9
do you do your review of a budget to determine
10
whether or not it's an appropriate budgeted
11
amount and not too much?
12
A. The -- the rates are set and the
13
hours, you get a feel for what's normal or what
14
you see on, you know, I've done lots and you can
15
get a feel for what's the norm.
16
Q. What do you feel the norm should have
17
been on this project?
18
A. For the senior project manager and
19
those job tasks for project review and oversight
20
and supervision and development and
21
subcontractors' quotes and planning for a dig and
22
haul, probably 60.
23
Q. 60 hours?
24
A. Right. And that's the average. And
KEEFE REPORTING COMPANY
44
1
I've never seen 453. I mean, that just seemed
2
really excessive.
3
Q. Have you ever had an application where
4
the petitioner was trying to recover for appeal
5
costs on prior appeals in that same LUST case?
6
A. Actually said as a task, no.
7
Q. Next entry is for professional
8
engineer, 84 hours at $87 an hour, do you feel
9
the 84 hours is an excessive amount?
10
A. Based on experience, sure.
11
Q. What do you feel would be an average
12
number for that category?
13
A. For a CAP and budget and meetings, 20.
14
Q. Next category engineer III, 68 hours,
15
do you feel that was excessive?
16
A. Sure, for that with the planning and
17
the TACO equations, site assessment, probably 35.
18
Q. Those three personnel were the only
19
ones in this Exhibit 1?
20
A. Uh-huh.
21
Q. That requested any sort of a payment
22
for LUST appeal --
23
A. Sure.
24
Q. -- is that correct?
KEEFE REPORTING COMPANY
45
1
A. Uh-huh.
2
Q. So the next personnel category, senior
3
scientist?
4
A. Sure.
5
Q. In that description of the work to be
6
performed, there is no reference to an appeal is
7
there?
8
A. Right.
9
Q. The number of hours requested is 150,
10
is that what's in the normal range?
11
A. It's a little excessive, but not
12
unusual.
13
Q. Did you find this to be an acceptable
14
number of hours at the time that you did your
15
review in August?
16
A. It's not acceptable, but it may have
17
been okay as far as -- as far as me, but Harry
18
usually looks through them if, you know,
19
something catches his eye.
20
Q. The rest of the personnel described
21
and the hours, the rates and the total dollar
22
amounts that are in this Exhibit 1 --
23
A. Uh-huh.
24
Q. -- is there any one of them that you
KEEFE REPORTING COMPANY
46
1
found to be acceptable or rejectable to you?
2
A. On a G-3, the scientist III, for the
3
16 hours would seem excessive for filing of the
4
NFR and closing up seven wells.
5
Q. What, in your opinion, would be an
6
average number for that task?
7
A. The -- the wells we -- we reimburse
8
$10 a foot. It's not a personnel thing. And
9
filing of the NFR surely isn't 16 hours.
10
Q. Do you have a number that you would
11
have approved on that scientist III for the
12
number of hours?
13
A. For filing of the NFR, I'd seen as low
14
as an hour and as high as two hours.
15
Q. Would you have approved two hours?
16
A. Sure. And other than those, the hours
17
were acceptable so it was excessive but not
18
totally out of the realm of stuff I've seen and
19
approved.
20
Q. Who are unit managers you worked for
21
before working for Mr. Chappel?
22
A. Kendra Brokamp. And Brian Bauer.
23
Q. Are both of those people still with
24
the Agency?
KEEFE REPORTING COMPANY
47
1
A. Kendra is not. Brian is.
2
Q. In your experience with Kendra Brokamp
3
and Brian Bauer, do you have any knowledge of any
4
petition that was rejected for personnel costs
5
and the request made for a submission by the
6
petitioner for the hourly breakdown of each
7
person under the personnel cost category?
8
MR. RICHARDSON: I'm going to object
9
to that. I do not see the relevance in past
10
supervisors here at the Agency.
11
HEARING OFFICER WEBB: Are you asking
12
about personnel costs?
13
MR. TOCK: Yes.
14
HEARING OFFICER WEBB: I'm going to
15
overrule it. You can answer.
16
A. Kendra, sure, absolutely. Brian,
17
sure. It was not unheard of.
18
Q. (By Mr. Tock) You've just gone
19
through Exhibit No. 1 and you've identified the
20
first three personnel categories on page 1, the
21
senior project manager, the professional engineer
22
and engineer III where you felt that the times
23
were excessive. If an hourly breakdown of the
24
various tasks were provided to you for those
KEEFE REPORTING COMPANY
48
1
three personnel, would that assist you in being
2
able to determine what's an appropriate or
3
acceptable number of hours would be for each one
4
of those personnel?
5
A. Sure. And it would show, you know,
6
for future job descriptions, we know the time it
7
takes for, you know, to prepare a CAP or, you
8
know, a budget because I don't know for sure
9
except on what's submitted and I've seen and
10
what's normally submitted. And I've done
11
hundreds.
12
Q. Your review of a particular budget,
13
such as the Webb budget, is based upon your
14
experience and training; is that correct?
15
A. Absolutely.
16
Q. And you have said that for a senior
17
project manager for a Corrective Action Plan you
18
felt that 60 hours was an average number for that
19
position; correct?
20
A. For all of the jobs that are written,
21
sure.
22
Q. If Webb were to respond -- excuse
23
me -- to the request of the Agency as stated in
24
Exhibit 3 to provide an hourly breakdown --
KEEFE REPORTING COMPANY
49
1
A. Uh-huh.
2
Q. -- and they did so and showed 80 hours
3
for the work that's described --
4
A. Uh-huh.
5
Q. -- that would not have been acceptable
6
to you, would it?
7
A. If the hours, you know, for each task
8
shown were to say 80, I mean, I'm not sure if
9
you're saying hourly breakdown or as it's shown.
10
Q. Well, you have said that for
11
Corrective Action Plan --
12
A. Uh-huh.
13
Q. -- you feel that 60 is an average
14
number of hours --
15
A. Sure.
16
Q. -- that you'd approve?
17
A. Uh-huh, yes.
18
Q. What would --
19
A. If it came as 80, I would have
20
accepted it because it's in that average as far
21
as, you know, what is usually seen.
22
Q. You previously said that the average
23
was 60. Is there a range that you approve rather
24
than just looking at a single point of 60 hours?
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1
A. A range, sure. I mean, if it's not
2
really excessive and I haven't seen it in a
3
budget and it's not a flag, then sure. And it's
4
usually approved minus Harry's scan.
5
Q. What is the range that you approve for
6
this type of a Corrective Action Plan?
7
A. For project review and oversight and
8
supervision and what's stated, if it came in from
9
60 to 100, I would have accepted it, but --
10
Q. What's the acceptable -- Excuse me. I
11
didn't want to interrupt you.
12
A. That's fine. Go ahead.
13
Q. What's the acceptable range for a
14
professional engineer where you said the average
15
was 20, what's the acceptable range to you?
16
A. For that -- those tasks, if it would
17
have came in from 20 to 40 hours or so, I
18
probably wouldn't have had a problem.
19
Q. What about the engineer III, what's an
20
acceptable range?
21
A. If it would have exceeded -- or if it
22
would have been under 50, I'm sure I would have
23
accepted it.
24
Q. When you do a --
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A. In a -- these three, the appeals were,
2
you know, also a reason for the -- the hourly,
3
you know, breakdown as well.
4
Q. Can you tell me why all personnel
5
costs as proposed in this budget were stricken
6
when your testimony today is that you found only
7
four of the personnel categories to be
8
unacceptable?
9
A. Harry Chappel took it to the other
10
supervisors, and they decided to ask for a
11
thorough breakdown of all costs.
12
Q. Of the Corrective Action Plans and
13
budgets that you reviewed --
14
A. Uh-huh.
15
Q. -- and budgets specifically --
16
A. Uh-huh.
17
Q. -- can you give me a percentage of how
18
many of those budgets you or your unit --
19
A. Uh-huh.
20
Q. -- makes a request or a breakdown on
21
an hourly basis?
22
A. As far as myself, probably 10%. It's
23
usually budget that have lots of hours and are
24
excessive, which this is.
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Q. Well, in -- in this budget, if it were
2
up to you, I understand you got a unit manager,
3
but if you are reviewing this budget --
4
A. Uh-huh.
5
Q. -- you've identified four categories
6
of personnel that were excessive --
7
A. Uh-huh.
8
Q. -- why not approve all of the other
9
categories and either reduce the hours for these
10
four individuals who are asked for an hourly
11
breakdown on just the four?
12
A. Because I wasn't sure the hours
13
associated with the appeals.
14
Q. Let me reask my question. I
15
understand that you're uncertain about how many
16
hours go with the appeals.
17
A. Uh-huh.
18
Q. So those -- there were three personnel
19
involved with appeals?
20
A. Uh-huh, yes.
21
Q. There were about 16 other line item
22
personnel costs that you found to be acceptable?
23
A. Sure, uh-huh.
24
Q. Why not approve those 16 and ask for
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additional breakdown in terms of hours for the
2
four personnel that you found objectionable?
3
A. It was Harry Chappel's and the other
4
supervisors' decision.
5
Q. If it had been your decision, which
6
way would you have done it?
7
A. I would have denied the -- the four
8
and approved the -- the others. And that would
9
have went to Harry for signature and he would
10
have saw that.
11
Q. And after that, he's your head of the
12
unit and it's his decision; right?
13
A. You got it.
14
Q. My next exhibit is from the documents
15
that were submitted pursuant to the motion to
16
incorporate. This is the Administrative Record
17
and PCB 05-183. It's certain excerpts from the
18
record.
19
(The reporter marked Exhibit No. 5
20
for purposes of identification.)
21
MR. TOCK: I guess I got my copy of
22
that. I've been getting them from the hearing
23
officer. I just gave you my copy. If I can get
24
a copy from one of your records.
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HEARING OFFICER WEBB: Oh.
2
MR. TOCK: They're all supposed to be
3
the same.
4
Q. (By Mr. Tock) Mr. Malcom, before you
5
is Exhibit 5, which is an excerpt from the
6
Administrative Record in Pollution Control Board
7
Case 05-183. If you turn to the second page of
8
the exhibit, the number at the bottom says 23?
9
A. Uh-huh.
10
Q. LUST technical review notes reviewed
11
by James R. Malcom, III, that's you correct?
12
A. Uh-huh.
13
Q. Do you recall reviewing this Webb
14
proposal in 2005?
15
A. Vaguely.
16
Q. Down at the bottom of the page 23 just
17
above the date it says PM recommendation/comment,
18
what does PM stand for?
19
A. Project manager.
20
Q. And that's you?
21
A. Correct, yes.
22
Q. Approved plan, modified budget?
23
A. Uh-huh.
24
Q. Then there was the letter from Mr.
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1
Chappel that appears in, I think, that's Exhibit
2
2, the Webb petition, that requested the
3
breakdown for number of hours for each personnel
4
and then you reviewed the response that's
5
attached. I don't need you to look at that
6
letter. But you reviewed the response that's the
7
letter from HDC Engineering dated February 15,
8
2005, that starts at page 3 of this Exhibit 5?
9
A. Sure.
10
Q. So that's where HDC provided the
11
breakdown for the number of hours that appear in
12
Attachment A and Attachment B?
13
A. Correct.
14
Q. Is that correct?
15
A. Uh-huh.
16
Q. On Attachment B of this exhibit, which
17
is number 15 at the bottom --
18
A. Okay.
19
Q. -- there are a number of handwritten
20
notes?
21
A. Sure.
22
Q. Are those your notes?
23
A. No, these are Harry's notes in the
24
unit manager's meeting.
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Q. So although the letter of HDC is
2
addressed to you, you did not do the review of
3
the hourly breakdown that was submitted; is that
4
correct?
5
A. No, huh-uh. That goes to the
6
supervisor and Harry took it to the supervisor's
7
meeting and they look through it and make a
8
decision to stay consistent.
9
Q. Okay. On the bottom page number 8,
10
which is part of this group exhibit, the top of
11
that says LUST technical review notes?
12
A. Page 8?
13
Q. Number 8 at the bottom of this Exhibit
14
5.
15
HEARING OFFICER WEBB: I think they're
16
out of order.
17
Q. (By Mr. Tock) The pages are out of
18
order. But if you look for the bottom numbers --
19
A. Okay.
20
Q. -- LUST technical review notes
21
reviewed by James R. Malcom.
22
A. Uh-huh.
23
Q. You actually didn't make that review,
24
did you?
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A. Of January 25th?
2
Q. That's correct.
3
A. As far as what was this --
4
Q. This is a review of the HDC letter?
5
A. I did not, no, but it was reviewed and
6
the decision came and I put forth a letter and
7
Harry signed it.
8
Q. So when you say the decision was made,
9
that means Mr. Chappel made the decision, you
10
wrote the letter?
11
A. He and the other supervisors.
12
Q. Are all projects reviewed by all
13
supervisors?
14
A. Just budgets that are excessive. And
15
in order to stay consistent throughout the
16
section, all supervisors will look through it,
17
and, yeah.
18
MR. TOCK: May I have a moment,
19
please?
20
HEARING OFFICER WEBB: (Nods head.)
21
Q. (By Mr. Tock) Mr. Malcom, do you know
22
if any records are kept as to what percentage of
23
budgets that are submitted to the Agency are
24
deemed to be excessive and call for the review by
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the unit managers?
2
A. I do not know that.
3
Q. Do you have an opinion as to the
4
number of projects that you reviewed that are
5
deemed to be excessive that go to unit managers?
6
A. In eight years I've only submitted
7
four, so unless it's really excessive, they don't
8
look through it.
9
Q. And then -- is this the first Webb
10
appeal, one of those four or five?
11
A. The -- I think the second appeal as
12
well.
13
Q. So there's Webb --
14
A. Two.
15
Q. -- Webb one and Webb two?
16
A. Yep.
17
Q. In both of those?
18
A. Afraid so.
19
Q. So in this case, that's about half of
20
the cases that you know of that's gone to the
21
unit managers?
22
A. Uh-huh.
23
Q. And you're aware that the Agency
24
settled the first Webb appeal and paid out all
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that had been requested?
2
A. Sure, uh-huh.
3
MR. TOCK: I have no further
4
questions.
5
HEARING OFFICER WEBB: Mr. Richardson?
6
CROSS-EXAMINATION
7
BY RICHARDSON:
8
Q. Mr. Malcom, no two LUST sites are
9
exactly alike, are they?
10
A. They're similar but exactly alike, no.
11
Q. And in this particular case, would the
12
information you provided concerning personnel
13
cost, a breakdown could have helped you determine
14
if some of the extra hours that maybe you thought
15
were excessive in the submittal, it might have
16
helped you to determine if maybe some extra hours
17
more than normal would have been appropriate
18
depending upon what the breakdown indicated; is
19
that right?
20
A. Sure, uh-huh.
21
Q. And am I correct that when you looked
22
at, especially the top three positions on page 54
23
of the record, and when you saw that some of the
24
information or some of the requests concerned two
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LUST project appeals, you weren't inclined to
2
reimburse prior LUST project appeal work; is that
3
correct?
4
A. Correct.
5
Q. Had you ever reimbursed that directly
6
as presented?
7
A. No.
8
Q. And am I correct that whether you red
9
flag something, as the excessive hours that you
10
have testified to here, as your work goes to Mr.
11
Chappel or if it's a routine matter, all your
12
work, all your decisions end up going through Mr.
13
Chappel; is that correct?
14
A. Correct, yes.
15
Q. And he can add --
16
A. Absolutely.
17
Q. -- whatever he wants --
18
A. Uh-huh.
19
Q. -- or sign it as you present it to
20
him?
21
A. Correct, yes.
22
MR. RICHARDSON: I have no further
23
questions.
24
HEARING OFFICER WEBB: Thank you.
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Anything further, Mr. Tock?
2
MR. TOCK: Yes, if we may.
3
REDIRECT-EXAMINATION
4
BY MR. TOCK:
5
Q. Exhibit 1, the personnel time hours
6
breakdown, this is a form that is prepared by
7
EPA; is that correct?
8
A. Correct, yes.
9
Q. Is there a form that is required by
10
EPA that requires a more minute breakdown than
11
this form? Does, for an example, some form that
12
would say if any task takes more than five hours,
13
you have to provide an hourly breakdown?
14
A. Not as far as I know, no.
15
Q. So as far as you know, the form on
16
which this budget request was submitted, was in a
17
form approved by EPA?
18
A. Sure, uh-huh.
19
Q. And the EPA does not have any other
20
form that requires any greater breakdown than
21
this?
22
A. Not as far as I know.
23
MR. TOCK: I have no further
24
questions. Thank you.
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MR. RICHARDSON: Nothing further.
2
HEARING OFFICER WEBB: Okay. Thank
3
you very much, Mr. Malcom. Are you, Mr. Tock,
4
going to call anymore witnesses?
5
MR. TOCK: No, I'm not. But I would
6
like to make certain that the other documents
7
that I have provided as part of the motion to
8
incorporate documents be included as evidence.
9
HEARING OFFICER WEBB: You're moving
10
those now as evidence?
11
MR. TOCK: I would move all -- all
12
documents that have been marked into evidence and
13
then, if need be, to mark these with exhibit
14
numbers.
15
HEARING OFFICER WEBB: Okay. Let's go
16
through them. Okay. Exhibit 1, which is page 54
17
of the record, is already part of the record so I
18
assume there's no objection to that?
19
MR. RICHARDSON: Correct.
20
HEARING OFFICER WEBB: That is
21
admitted. Also, Exhibits 3 and 4 are also part
22
of the administrative record, page 1 and page 8,
23
there's no objection there I assume?
24
MR. RICHARDSON: Correct.
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HEARING OFFICER WEBB: Okay. All
2
right. Exhibit 2 is the petition for 05-183 and
3
Exhibit 5 is the administrative for 05-183, an
4
earlier Webb and Sons appeal. Is there an
5
objection to this?
6
MR. RICHARDSON: I won't object to
7
their admission, but I would object to their
8
relevance to this proceeding.
9
HEARING OFFICER WEBB: Okay. In the
10
future, Mr. Tock, probably instead of a motion to
11
incorporate by reference, if you have a case that
12
has an Administrative Record, you want to do a
13
motion to supplement the administrative record.
14
I know this is your first hearing, so it's --
15
it's not a big deal. But in the future, we are
16
only supposed to consider documents that were
17
part of the Administrative Record when the Agency
18
made their determination.
19
Now, in this particular situation is
20
it's a little unusual in that we have several
21
appeals on the same site with the same people in
22
a very short period of time. I do feel that the
23
Agency should have been aware of this information
24
when they made their determination, so I am going
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1
to admit it as relevant. I think it's background
2
information. Like I said, it pertains to the
3
same site within a short period of time, and I
4
think it gives a comprehensive picture on what's
5
going on with this site, so I am going to admit
6
it for that reason. Now, are we going to mark
7
the rest of the documents that were in your
8
motion?
9
MR. TOCK: If you -- if you would,
10
please.
11
HEARING OFFICER WEBB: What's left?
12
MR. TOCK: Testimony of Douglas W.
13
Clay and that's the 2006 date stamp marked 1 of
14
2006. That was his testimony regarding the
15
Illinois Pollution Control Board's proposed 35
16
ILL Adm. Code 732.845 and 734.835.
17
HEARING OFFICER WEBB: Mr. Richardson,
18
do you have anything to say about this?
19
MR. RICHARDSON: Again, I have no
20
objection to the admissibility, but I'll object
21
to the relevance of it.
22
HEARING OFFICER WEBB: I'm not sure
23
what is in here since we didn't use it. I
24
suppose the Board can take notice of this since
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this is a public record that is -- that's in the
2
Board's regulatory proceeding, so I will admit it
3
as a public record. This would be Exhibit 6.
4
(The reporter marked Exhibit No. 6
5
for purposes of identification.)
6
HEARING OFFICER WEBB: Should this be
7
attached in the binder clip, this one, as part of
8
this? Should this all be together as Exhibit 6?
9
MR. TOCK: These are different. This
10
Exhibit 6 is submitted March 1 of 2006. These
11
were submitted in March of 2004. There are
12
different statements, different testimony.
13
HEARING OFFICER WEBB: Okay.
14
MR. TOCK: So I'd like those marked as
15
six and seven.
16
HEARING OFFICER WEBB: But are these
17
two together?
18
MR. TOCK: Whatever numbers we are up
19
to. Seven and eight, yes.
20
HEARING OFFICER WEBB: And you're not
21
objecting to the admissibility of these three; is
22
that correct?
23
MR. RICHARDSON: Correct, correct.
24
Again, a relevance objection but not
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admissibility.
2
HEARING OFFICER WEBB: You want to
3
label that as seven and eight.
4
(The reporter marked Exhibit Nos. 7
5
and 8 for purposes of
6
identification.)
7
HEARING OFFICER WEBB: Was there
8
anything else in that motion, any other
9
documents? Was that it?
10
MR. TOCK: I think that was it.
11
HEARING OFFICER WEBB: Okay. Let me
12
-- I have some copies here that I can get in
13
order. Okay. Mr. Tock, do you have anything
14
further to present?
15
MR. TOCK: Nothing further.
16
HEARING OFFICER WEBB: Mr. Richardson,
17
you may present your case.
18
MR. RICHARDSON: I have --
19
HEARING OFFICER WEBB: You're not
20
calling anybody?
21
MR. RICHARDSON: I am not calling any
22
additional people. I have nothing --
23
HEARING OFFICER WEBB: Nothing more to
24
say. Okay. Very good. Before we hear any
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closing arguments, let's go off the record just
2
to discuss the briefing schedule.
3
(A discussion was held off the
4
record.)
5
HEARING OFFICER WEBB: We've just had
6
an off-the-record discussion regarding
7
post-hearing briefs, and the parties have agreed
8
to a briefing schedule as follows: The
9
transcript of these proceedings will be available
10
from the court reporter by December 14th and will
11
be posted on the Board's Website. The public
12
comment deadline is December 29th. Public
13
comment must be filed in accordance with Section
14
101.628 of the Board's procedural rule.
15
Petitioner's brief is due by December 29th.
16
Respondent's brief is due by January 12th, and
17
the mailbox rule will not apply. Mr. Tock, would
18
you like to make any closing arguments?
19
MR. TOCK: No.
20
HEARING OFFICER WEBB: Okay. Mr.
21
Richardson?
22
MR. RICHARDSON: No.
23
HEARING OFFICER WEBB: All right. No
24
members of public here to make any statements on
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the record so I will proceed to make a statement
2
as to the credibility of witnesses testifying
3
during this hearing. Based on my legal judgment
4
and experience, I find both of the witnesses
5
testifying to be credible. At this time I will
6
conclude the proceedings. We stand adjourned.
7
And I thank you all for your participation.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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STATE OF ILLINOIS
COUNTY OF FAYETTE
C E R T I F I C A T E
I, BEVERLY S. HOPKINS, a Notary Public
in and for the County of Fayette, State of
Illinois, DO HEREBY CERTIFY that the foregoing 69
pages comprise a true, complete and correct
transcript of the proceedings held on December
11th, 2006, at the Illinois Pollution Control
Board Hearing Room, 1021 North Grand Avenue East,
North Entrance, Springfield, Illinois, in
proceedings held before Hearing Officer Carol
Webb, and recorded in machine shorthand by me.
IN WITNESS WHEREOF I have hereunto set
my hand and affixed by Notarial Seal this 13th
day of December, 2006.
_____________________________
Beverly S. Hopkins, CSR, RPR
CSR License No. 084-004316
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