BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

T-TOWN DRIVE THRU, INC.,

Petitioner,

v.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

)

)

)

PCB No. 07-085

)

(LUST Appeal)

)

)

)

PETITIONER'S MOTION FOR RECONSIDERATION

Pursuant to 35 ILL. ADM. CODE

§§

101.520 and 101.902, petitioner T-Town Drive

Thru, Inc. ("Petitioner"), by its attorneys, The Sharp Law Firm, P.C., moves the Board

to reconsider its

Opinion and Order

of

the Board

dated April 3, 2008 ("Order").

The grounds for this motion are that

in rendering the Order the Board misapplied

applicable law and,

in proceeding into areas not addressed by the parties, drew

inferences

of fact which were mistaken. Because those errors were essential to the

result reached, the Order should be reconsidered and reversed.

In further support, Petitioner states as follows.

I. INTRODUCTION.

Seeking to remediate a Leaking Underground Storage Tank ("LUST") site

pursuant to the Environmental Protection Act ("Act"), Petitioner filed a corrective

action plan and budget which the Illinois Environmental Protection Agency ("Agency")

approved after modifying them

in modest respects. The approved budget called for

analysis costs

of $15,867.57. After completion, Petitioner sought reimbursement for

$8,109.02

in analysis costs for services rendered in connection with tests which are

subject to the unit-price reimbursement rates set forth

in 35 ILL. ADM. CODE Part 732

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Electronic Filing - Received, Clerk's Office, May 8, 2008

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Appendix D. In each case, the amount sought was the approved amount set forth in

that appendix, adjusted for inflation under 35 ILL. ADM. CODE

§

732.870.

The Agency denied the analysis costs claim

in its entirety, claiming there was "no

supporting documentation" of the costs.

In fact, Petitioner had submitted with the

application

an October 20, 2006 invoice to Petitioner from its remediation contractor

with attachments detailing $7,787 of the costs at issue and

an October 11, 2006

invoice from that contractor with attachments itemizing the additional $322.02 at

issue. However, the Agency had insisted that Petitioner submit invoices

from

a

subcontracting lab

for the portion of the services performed by it and that

reimbursement be limited to those invoices. The Agency disregarded the contractor's

invoices, as well as sworn certifications as to the propriety of the expenses at issue.

Petitioner appealed, and filed its

Petitioner's Motion for Summary Judgment

("Motion"). Petitioner argued (a) that because there was

no dispute that the work in

fact had been done and because the reimbursement application was consistent with

the approved budget, the Agency,

on reimbursement application, had attempted to

revisit and reverse its budget findings, which was improper (Motion at 7-11); (b) that

the Agency was attempting to pay only what a subcontracting laboratory had charged

for part of the services at issue, which also was improper

(id.

at 12-17); and (c) that

Petitioner had

in fact submitted adequate documentation to support payment of the

amount claimed

(id.

at 17-19).

The Agency responded with its

Response

to Petitioner's Motion for Summary

Judgment and Respondent's Cross-Motion for Summary Judgment

("Cross-Motion").

It contended it "had no choice" but to deny payment because "the burden is

on

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applicants to demonstrate that incurred costs are related to corrective action, properly

accounted for, and reasonable", which, it said, requires "an accounting of all costs"

even when a unit price is set by regulation and budget approval (Cross-Motion at

2,

4). Comprising only 4% pages, the Cross-Motion was a plainly inadequate rebuttal of

Petitioner's Motion and reflected the attitude that, as one Agency employee warned

Petitioner's contractor, ''The Agency always wins."

In its Order, the Board has sided with the Agency. In so doing, it went far beyond

the points argued by the Agency and construed matters far beyond the arguments

and showings of either of the parties. While it may be said that the entry into

uncharted waters was necessitated by the inadequate Cross-Motion showings, the

result was that the Board's inferences and conclusions

in those waters were untested

by the adversarial process which is essential to the discovery of truth. As a result the

Board erred. Moreover, in some respects it appears the Board overlooked applicable

law. These errors are particularly important because, as shown previously, the issue

raised herein applies in a significant number of cases with an aggregate value far

beyond the $8,109.02 at issue here,1 and because, as the Order notes at 1, this is

the Board's first adjudicatory interpretation of the Part 732, Subpart H rules. In light

of those aspects, we are confident that the Board wants to get its decision right, and

we submit the following points and authorities to assist in that regard.

II.

THE BOARD'S INFERENCE THAT THE CONTRACTOR

WAS ATTEMPTING DOUBLE-DIPPING WAS ERRONEOUS.

In the Order, the Board recognized that the sum sought was "both within the

approved budget amount and equal to the Subpart H maximum payment amounts"

1

See

Petitioner's Motion to Consolidate

filed September 12, 2007.

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and hence "reasonable" (Order at 21, 22), and that the claimed work was in fact done

(id.

at 24). It also recognized that under the law approval of the budget

"shall be

considered final

approval for purposes of seeking and obtaining payment" from the

Fund

"if

the costs associated with the completion of any such plan are less than or

equal to the amounts approved

in such budget."

Id.

at 22,

quoting

Act

§

57.7(c)(1) as

amended by P.A. 92-554 (Board's emphasis).2

The Board further agreed that where a contractor and a subcontractor both

contribute to a Subpart H item, how the fixed amount "might be allocated between

contractor and subcontractor

is irrelevant". Order at 22. However, it said that that

principle was not controlling here because there was no showing that Petitioner's

contractor had contributed any services to the bundle of services that was entitled to

the unit price.

Id.

at 24. Drawing conclusions not urged by the Agency, and dealing

with changed reimbursement protocols which it apparently did not appreciate

(see

pp. 6-8 below), the Board inferred that Petitioner's contractor was fully reimbursed for

its services through separate charges for consulting services and was

in essence

attempting to double-dip.

Id.

It further inferred that the contractor was attempting to

evade limits

on handling charges which apply when a subcontractor does all the work

at issue.

See

Order at 25. Under those circumstances, it said, the contractor cannot

be entitled to the greater price under Subpart H just because that sum

is reasonable

and was approved

in the budget; to allow such would be to emasculate the

regulations

on handling charges.

Id.

The key to the Board's decision, and to its error, was the inference that this was

2 Act

§

57.7(c)(4)(A) as amended by P.A. 92-651, PA 92-735 and P.A. 92-574 is similar.

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a situation "[w]here a contractor, not seeking a handling charge,

adds no work

to a

task that

is performed by a subcontractor for less than the Subpart H maximum".

Order at 25 (emphasis added). It inferred that that situation applied - again a

position not urged by the Agency - because

in the record submitted by the Agency

the only evidence the Board could find of sample-related work by the contractor was

work which had been submitted under - and paid as - consulting services, apart from

the Subpart H category for sample handling and analysis. Order at 24.

To allow a contractor to be compensated for the same work under both 35

ILL.

ADM. CODE

§§

732.845 and 732.850 (governing payment for consulting services on a

time-and-materials basis) and under

35 ILL. ADM. CODE

§§

732.835 and Appendix

0

(governing costs associated with sample handling and analysis) would be manifestly

improper. Petitioner

in no way contends otherwise. However, no double-dipping was

attempted here because the work which the Board seized upon

in its Order

3

was not

the work which

is relevant in the sample handling and analysis charges.

The scope of work for the Sample Handling and Analysis task

is initially defined

at 35

ILL. ADM. CODE

§

732.835, which reads:

Payment for costs associated with sample handling and analysis must not exceed the

amounts set forth in Section Appendix D

of this Part. Such costs must include, but

are not limited to, those associated with the transportation, delivery, preparation, and

analysis

of samples, and the reporting of sample results.

Consistent therewith, the Agency's "Analytical Cost Form" for the Sample Handling

3

The Order called into question $5,479.62 in costs associated with professional consulting

services. Of this amount $4,539.36 was for professional consulting time

and $940.26 was for

consultants' materials. The Board erroneously inferred that these costs were for "sample

handling

and analysis" tasks conducted pursuant to

§

732.835. All of these charges were for

"sampling", a field activity, or for other field activities conducted pursuant

to

§

732.845.

See

Rec.

030,032,056,060,134,136,138 and 139.

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Electronic Filing - Received, Clerk's Office, May 8, 2008

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and Analysis task contains the following instructions (Rec. 024, emphasis added):

The laboratory analysis charge includes all cost associated with the transportation

and/or delivery and analysis

of each applicable sample. The charge includes but is

not limited to costs associated with laboratory personnel,

sample handling,

transportation and/or delivery of samples to the laboratory,

sampling equipment,

sampling containers,

sample disposal and

all aspects of the applicable laboratory

analysis.

Please enter the number of samples for each analysis and the actual cost

per analysis up to the maximum cost per analysis.

Absent from the matters to be included under either of those descriptions is

sample

collection,

the work which led the Board to infer that Petitioner's consultant

was attempting double-dipping (Order at 24). This

is so because sample

collection

is

performed in the field, and 35 ILL. ADM. CODE

§

732.845 defines the professional

consulting task to include that work, stating (emphasis added):

Payment for costs associated with professional consulting will be reimbursed on a

time and materials basis pursuant to Section 732.850. Such costs must include, but

are not limited to, those associated with project planning and oversight;

field work;

field oversight; travel; per diem; mileage; transportation; vehicle charges; lodging;

meals; and the preparation, review, certification, and submission

of all plans, budget

plans, reports, applications for payment and other documentation.

See also

the "Personnel Title Description and Duties and Summary" listing on the

Agency's website, stating for persons covered

as professional consulting:

Technician I, II, III, IV, and Senior Technician

Provides a variety

offield

and office

work

including mapping,

sampling,

surveying,

and equipment maintenance. A college degree is not generally required. Performs

routine labor tasks related to

on-site

installation, maintenance, and repair of

machinery and equipment and

sampling activities.

http://www.epa.state.il.us/land/lust/forms/budget-forms/forms-1/titles-and-duties.html.

copy attached as Exhibit

A; emphasis added to material in italics. Also relevant are

the "Instructions for Budget

& Billing Forms" posted on the Agency's website.

Regarding the Analytical Costs Form they provide:

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Electronic Filing - Received, Clerk's Office, May 8, 2008

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Include in the

"Cost

($)

per Analysis"

charge

all costs

associated with sample

handling and analysis

of each sample including but not limited to laboratory

personnel, sample handling, sample preparation, all aspects

of the laboratory

analysis,

sample jars,

and

other sampling containers, sample kits,

sample disposal

fees, and reporting

of sampling results. Include the number of samples for each

parameter and the actual cost per analysis (up to the maximum total amount per

sample listed in Appendix D

of 35 Ill. Adm. Code 732 or 734.) ...

Include in the

soil sampling equipment

charge

all costs associated

with sampling

equipment including but not limited to EnCore sampler, purge and trap sampler, or

equivalent sampling device.

Include in the

sample shipping charge

all costs associated with sample shipping

including but not limited to transportation and/or delivery

of samples to the labor-

atory (e.g. FedEx, UPS, or any other courier service),

ice, coolers,

and

bubble wrap.

The maximum total amount per sample listed in Appendix D is the maximum total

amount for shipping all samples (soil and groundwater) collected in a calendar day.

http://www.epa.state.il.us/land/lust/forms/budget-forms/forms-1/instructions.pdf, copy

attached

as Exhibit B, at 8; emphasis added.

Thus, under Agency policy manifested to remediation contractors, "sample

handling and analysis" does

not

include sample collection work. Sample

collection

is

treated as professional consulting, whereas other sample-related services - whether

performed by the contractor, a laboratory or any combination of service providers -

are included

in sample

handling

and analysis.

Although it plainly

is easy to confuse the "sample handling and analysis" task and

the "sampling" or "sample collection" task, the distinction

is clear in public-record

documents which the Agency has created, and the distinction

is manifested in the

regulations which the Board has adopted. While one might question the logic or

wisdom of that distinction,4 the indisputable facts are that the distinction originated

4

Finding the distinction illogical or unwise would not justify disregarding it here. As the Agency

repeatedly stressed during the Subpart H rulemaking, the rates stated

in Subpart H were based

on the Agency's empirical experience with costs in the various proposed classifications. Because

sample

collection

was not treated as sample

handling and analysis

when the Subpart H rates

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Electronic Filing - Received, Clerk's Office, May 8, 2008

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with the Agency, not with Petitioner's contractor, and that Petitioner's contractor

attempted

no double-dipping or other evasion of the rules in following that distinction.

That fact was not disputed by the Agency below, and its failure to dispute the matter

was not

an oversight.

If the Agency did not recognize the distinction between

JJsampling"

and JJsample handling"

as

proper, it would not have approved

compensation

of

the sampling work

as

professional consulting.

The remedy

would have been to disallow

that

item,

not

the sample handling and analysis charge.

III.

THE BOARD ERRED IN INFERRING THERE

WAS No "EVERYTHING ELSE" IN THIS CASE.

Not only did the Board mistake professional consulting costs incurred for

"sampling" as costs incurred for "sample handling and analysis", it erroneously

inferred from the record submitted by the Agency that there were

no costs or work,

other than the laboratory's analysis, properly includable under sample handling and

analysis. These mistakes are understandable, because the Subpart H rules are new

and because, plainly unbeknownst to the Board, Agency procedures and protocols

tell the applicant not to submit documentation of the many miscellaneous services

included

in the per-analysis charge.

For example, the instructions for completion of the "Analytical Cost Form"

require

the owner/operator to "[i]nclude in the 'Cost ($) per Analysis' charge all costs

associated with" the handling of the samples. The requirement to incorporate "all

costs" associated with the task into the unit rate forces the applicant

to omit

any

details associated with such costs. Not only do the forms fail to provide any place for

were researched, proposed and found reasonable, it cannot now be added to that task without

reconsideration as to what rate would be reasonable for that task as amended. See

also

35 ILL.

ADM. CODE

§ 102.702.

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the detailing of the non-laboratory work provided, the instructions tell the applicant

not

to provide a separate itemization of such work and costs.

administrative record,

by design

of

as to

accounting which the Order faults Petitioner for not providing.

In

short, if there was nothing in "Sample Handling and Analysis" besides sample

analysis, the task would not

be titled as it is; its definition in

§

732.835 would not be

stated

as it is; and the Agency would not have issued the instructions which it has.

However, lest there

be any doubt, Petitioner, in cooperation with its contractor, has

prepared the following explanation of the services at issue

and who provided them:

(a)

Cost-per-Analysis Charges:

The per-analysis charges imposed by the

contractor pursuant to

§

732.835 included both items provided by the contractor (and

treated

as "stock items") and items provided by a third party:

(i)

"Stock Items":

Petitioner's contractor assembles and stocks a variety of

materials and supplies included within the sample handling

and analysis task.

It

provides these items for the benefit of its client without separate charge. The

Agency and Subpart H require that the costs of the labor

and materials provided

by the contractor

as well as the costs of subcontractor services be incorporated

into the per-analysis rate, instead of being delineated

in detail or separately

charged to the owner/operator. The contractor adhered to these requirements

in

this instance. Costs associated with items provided by the contractor as part of

the per-analysis charge include the labor and material costs to procure,

assemble, stock, manage and provide the following stock items, among others:

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Electronic Filing - Received, Clerk's Office, May 8, 2008

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Sample Jars

Sampling Kits

5

Sample Containers

Chain-of-Custody Records

(ii)

Third-Partv Services:

Petitioner's contractor subcontracted the actual

analysis to a laboratory and incurred a cost per sample for this subcontracted

component of the bundled services. The contractor did not assess a handling

charge for the lab analysis costs because those costs were, by definition, only

one component of the more inclusive sample handling

and

analysis task.

(iii)

Explanation

of Petitioner's Cost:

Per the Agency's instructions, the total

cost-per-analysis charged to Petitioner by the contractor included all the cost

items listed above. The contractor's rates to Petitioner for these services have

been found to be reasonable by the Board. Indeed, the Agency routinely

reimburses analytical laboratories the same rate charged by the contractor here.

(b)

Soil Sampling Equipment Charges.

Consistent with the regulations, some

costs are reimbursable

in addition to the per-analysis charges. The contractor stocks

and provides TerraCore Samplers or equivalent sampling devices. The contractor

charged Petitioner a reasonable rate pursuant to Subpart

H.

6

(c)

Sample Shipping Charges.

Sample shipping charges, also imposed

pursuant to the regulations separate from the per-analysis charge, also include

elements provided by the contractor as well as items provided by a third party. The

5

Sampling kits consist of three separate vials and a jar. The contractor purchases the vials and

obtains the jars from the laboratory. The individual components (vials and jars) are then assem-

bled

by the contractor from inventory and charged to the client as part of the per-analysis price.

6

The description of the sampling equipment on the "Stock Items" form provided by the contractor

here erroneously listed the Terracore Samplers

as "Soil Sample Collection-VOA Sampling

Preservation Kit". This was a clerical error

on the contractor's part.

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Electronic Filing - Received, Clerk's Office, May 8, 2008

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contractor assembles and stocks a variety of materials and supplies which are

included within the per-unit cost of the sample-shipping task. The Agency, and

Subpart

H, require that the costs of such materials and services provided by the

contractor be incorporated into the rate-per-day for shipping. Costs treated as "stock

items" and provided by the contractor as part of the per-shipping-event charge

include, but are not limited to, the labor and material costs to procure, stock, manage

and provide the following items and services:

Bubble Wrap

Coolers

Ice

Shipping Bags and Liners

Packing Tape and Labels

Petitioner's contractor also coordinates with third parties which transport the samples

coolers to the laboratory. Per the Agency's instructions, the total sample shipping

charge per day assessed to Petitioner by the contractor included all the costs

associated with the items and services listed above. The contractor's rates to

Petitioner for these services have been found to be reasonable by the Board.

Indeed, the Agency routinely reimburses these charges

in other contexts.

In short, the finding that there was no "everything else" here was erroneous due

to a misleading record dictated by the Agency. That finding should be vacated, and

because how the previously-approved sums are split between the contractor and the

subcontractors

is irrelevant, those sums should be allowed.

IV. THE BOARD ERRED IN RELYING UPON

INAPPLICABLE PORTIONS

OF ACT

§ 57.7.

Also critical to the Board's result were the premises that "if some portion of the

claimed $8,109.02

in costs cannot be accounted for, then those costs were surely not

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Electronic Filing - Received, Clerk's Office, May 8, 2008

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'used for . . . corrective action activities . . . required to meet the minimum

requirements of this Title (XVI)'" and that hence such costs must be denied (Order at

25,

quoting

Act

§

57.7(c)(3) as amended by P.A. 92-554). In this regard, the Board

adopted the only rationale voiced by the Agency

in denying the claim. Rec.003.

Indisputably, Act

§

57.8 governs reimbursement applications and provides that

[i]n the case

of any approved plan and budget for which payment is being sought, the

Agency shall make a payment determination within 120 days

of receipt of the

application. Such determination shall be considered a final decision. The Agency's

review shall be limited to generally accepted auditing and accounting practices.

In

no case shall the Agency conduct additional review of any plan which was

completed within the budget, beyond auditing for adherence to the corrective

action measures in the proposal.

If the Agency fails to approve the payment

application within 120 days, such application shall be deemed approved by operation

of law and the Agency shall proceed to reimburse the owner or operator the amount

requested in the payment application. However, in no event shall the Agency reim-

burse the owner or operator an amount greater than the amount approved in the plan.

§

57.8(a)(1) (emphasis added). In denying reimbursement here, the Agency relied

on "Section 57.7(c)(4) of the Act because [the requested reimbursements] may be

used for corrective action activities

in excess of those required to meet the minimum

requirements of Title XVI of the Act". Parroting that sub-section

as contained in the

version

of

§

57.7 as amended by P.A. 92-574, 92-651 and 92-735,7 the Agency twice

spoke of the corrective action activities

in the future tense (Rec. 003), a conceptual

error which Petitioner pointed out

in the Motion but the Board dismissed as

"quibbl[ing] with the denial letter's grammar" (Order at 25).

7

As amended

by

P.A. 92-574, 92-651 and 92-735,

§

57.7(c)(4)(C) prOVides:

In approving any plan submitted pursuant to Part (E) of this paragraph (4), the Agency shall

determine, by a procedure promulgated by the Board under item (7)

of subsection (b) of Section

57.14, that the costs associated with the plan are reasonable, will be incurred in the performance

of corrective action, and will not be used for corrective action activities in excess of those

required to meet the minimum requirements

of this title.

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However, grammar was

not

the essence of Petitioner's objection to the reason

invoked by the Agency (which reason was supposed to limit the Board's review

on

appeal). The point was that

§

57.7(c)(4)(C) cited by the Agency does not apply at the

reimbursement application stage.

By its express terms,

§

57.7(c)(4)(C) applies only

to "any plan submitted pursuant to Part (E) of this paragraph (4)",

and Part (E) does

not include reimbursement applications within its scope. Rather,

§

57.7(c)(4)(E)

limits the "plans" subject to

§

57.7(c)(4)(C) to:

(i) Any physical soil classification and groundwater investigation plan submitted

pursuant to item

(l )(A) of subsection (a) of this Section, or budget under item (2) of

subsection (a) of this Section;

(ii) Any groundwater monitoring plan or budget submitted pursuant to subsection

(c)(2)(B)

ofthis Section;

(iii) Any corrective action plan submitted pursuant to subsection

(c)(1 )(A) of this

Section; or

(iv) Any corrective action plan budget submitted pursuant to subsection (c)(l)(B)

of

this Section.

Hence

budgets

submitted under

§

57.7 are subject to review for whether they

will

result in use for corrective action activities in excess of those required to meet the

minimum requirements of this title;

reimbursement applications

under

§

57.8 are

not.

Agency objection to going beyond the minimum requirements of the Act is statutorily

authorized

only

at the budget stage.

8

Section 57.7(c)(3) as amended by P.A. 92-554 - the comparable provision cited

in the Order - leads to no different result. It provides that "[i]n approving

any plan

submitted pursuant to subsection

(a)

or (b)

of

this Section,

the Agency shall

8

The Board also felt that compliance with Subpart H and an approved budget was insufficient to

entitle one

to payment because "whether the costs requested have been properly accounted for .

. .,

so as to warrant reimbursement, is addressed not in Subpart H ('Maximum Payment

Amounts'), but rather

in Subpart F ('Payment from the Fund')." Order at 22. However, to the

extent Subpart F

is interpreted in conflict with the language of Act

§§

57.7 and 57.8, the Board's

conclusions are improper

as a matter of law.

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determine, by a procedure promulgated by the Board under Section 57.14, that the

costs associated with the plan are reasonable, will

be incurred in the performance of

site investigation or corrective action, and will not

be used for site investigation or

corrective action activities

in excess of those required to meet the minimum

requirements of this Title" (emphasis added). Reimbursement applications are

submitted pursuant to

§

57.8 and are not plans submitted pursuant to

§§

57.7(a)-(b).

Not only

is the

§

57.7(c)(4)(C) (or

§

57.3(c)(3)) test statutorily inapplicable on

reimbursement review, it

is impractical. If the Agency requires that a monitory well be

installed and then the well detects no contaminant

in excess of permitted amounts,

can the Agency then disallow the cost of the well because it exceeded "minimum

requirements

of [the Act]"? If a site must be remediated because of leaks from one

or more of four tanks

on the site, and an after-the-fact examination reveals that two of

the four tanks

had not leaked, are costs to be denied because their removal

exceeded minimum requirements of the Act? The examples could go

on and on.

Pulling a standard from

§

57.7 and applying it under

§

57.8 is not only statutorily

unauthorized, it opens the door to widespread

post-hoc

second-guessing of

decisions the Agency is supposed to make before the work

is done.

v. THE BOARD ERRED BVWEIGHING CONTRACTOR

COSTS

RATHER THAN OWNER-OPERATOR COSTS.

The Order also erred by conflating Petitioner and its contractor and focusing on

the costs to the contractor rather than to the owner-operator. This is statutorily

wrong.

E.g.,

§

57 (purpose to "establish requirements for eligible owners and

operators

... to seek payment for any costs associated with ... corrective action");

§

57.1 (Act applies to owners and operators);

§

57.8(a) (''The owner or operator may

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Electronic Filing - Received, Clerk's Office, May 8, 2008

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submit an application for payment");

§

57.8(e) (limits on payments for "costs of

corrective action incurred by such owner or operator");

§§

57.8(d), 57.8(g) (similar);

§

57.9(a) (the "Fund shall be accessible by owners and operators").

Moreover, the error again opens the door to wholesale

post-hoc

second-

guessing of matters the Agency and the Board have previously approved. If the

Agency can demand proof

(an "accounting") that the contractor's services plus the

lab charge equal the previously-agreed rate under Appendix

D, what is to prevent

revisiting any other Subpart H

rate?9 If the Agency after-the-fact can say that

services such

as summarized in Part III above do not equal the approved Appendix D

rate less the out-of-pocket paid to the

lab, what is to prevent the Agency from

auditing a well-drilling reimbursement request and determining that because the

rig

actually utilized was acquired "used" and was fully depreciated, and because the

operator actually operating the

rig was less experienced and paid less than the

average operator, the Subpart H rate was not "actually incurred" by the contractor

and was not necessary to meet the minimum requirements of the Act?

Many other examples could, of course, be offered, but the point hopefully

is

made. The costs which are to be examined under the Act are the costs charged to

the owner-operator. If those costs have been previously approved

in the budget as

reasonable and have been actually incurred,lO they are supposed to be paid. To

9

Indeed, the premise that out-of-pocket expenses plus the value of contract or labor equals the

reimbursable amount converts Appendix D pricing into the very time-and-materials system which

the Agency and the Board said Subpart H abolished.

10

No one contends that mere budget approval of, for example, 20 tests would require payment

for 20 tests when only 16 tests had proven sufficient, but that is not the issue. Rather, the issue

is what sort of an accounting is appropriately required when the Agency, the owner-operator and

-15-

Electronic Filing - Received, Clerk's Office, May 8, 2008

---

after-the-fact review whether the contractor actually incurred costs equal to that

charged the owner

is not the statutory test and is improper.

With all due respect, the former statutes and regulations have never been

interpreted to require that the contractor document and account for all of

its

expenses, and

35 ILL. ADM. CODE

§

732.601 (b)(9), relied upon in the Order, cannot

be so interpreted either. See 35

ILL. ADM. CODE

§

732.601 (a) (twice making clear that

the application at issue

is from the owner or operator);

Proposed Rule: First Notice

in

R04-22A and R04-23A, at 63 (rejecting proposal for contractors to be made "UST

Remediation Applicants" because "only the owner or operator may seek

reimbursement from the UST program");

Proposed Rule: Second Notice

in R04-22A

and R04-23A, at

71 (modifying auditing proposal because "[t]he owner/operator is the

individual who will be reimbursed" and bears the responsibility for recordkeeping).

VI.

CONCLUSION.

Whatever the reason, the Order went far beyond the arguments submitted on the

cross-motions for summary judgment and drew inferences of fact and conclusions of

law which were erroneous. Although

in many cases the Board's mistakes were

understandable, they were nonetheless mistakes. The Board was right that when

both the contractor and a subcontractor contribute to a bundle of services which

is

subject to a lump-sum rate under Subpart H, how that payment is divided between

them

is irrelevant. The Board was manifestly wrong, however, in inferring that the

contractor here contributed nothing to the bundle of services at issue. The Agency

did not deny reimbursement because the contractor was double-dipping or

the contractor have agreed that the work is to be done on a per-unit basis. The proper inquiry is

the number of units performed, not an attempt to renegotiate the agreed unit price.

- 16-

Electronic Filing - Received, Clerk's Office, May 8, 2008

---

attempting to evade the handling-charge rule, and it did not argue such in support of

its Cross-Motion. It thus was procedurally improper for the Board to draw those

inferences, and, as shown herein, factually wrong as well.

In approving the budget the Agency determined that the rates approved therein

were necessary to meet the minimum requirements

of the Act and were reasonable;

there

is no dispute that the work was done in conformance with the Plan and budget;

and there

is no dispute that the contractor has invoiced the Petitioner in accordance

therewith. The requirements for payment under

§

57.8 were met, the Agency's

decision was wrong, and accordingly the Board's affirmance thereof should be

vacated and judgment granted to the Petitioner.

May

8,2008

T-TOWN DRIVE

.

THRU, INC.

By

~c:xLr_

on~

John T. Hundley

Mandy

L. Combs

THE SHARP LAW FIRM, P.C.

P.O. Box 906 - 1115 Harrison

Mt. Vernon, IL 62864

618-242-0246

Counsel for Petitioner T- Town Drive Thru, Inc.

-17-

Electronic Filing - Received, Clerk's Office, May 8, 2008

---

CERTIFICATE OF SERVICE

I, the undersigned attorney at law, hereby certify that I served the foregoing

document upon all persons entitled to same by causing copies to

be deposited in the

United States Post

Officemailboxat14thandMainStreets.Mt.Vernon.IL. before

6:00 p.m. this date,

in envelopes with proper first- class postage affixed, addressed

as follows:

Dorothy

M. Gunn, Clerk

Illinois Pollution Control Board

James

R.

Thompson Center

100 West Randolph Street

Suite 11-500

Chicago,

IL 60601

James

G. Richardson, Esq.

Illinois Environmental Protection Agency

1021 N. Grand Ave. East

Springfield, IL 62702

Hon. Carol Webb

Illinois Pollution Control Board

1021 N. Grand Ave. East

P.O. Box 19274

Springfield,

IL 62794

May

8,2008

John T. Hundley

Mandy

L. Combs

THE SHARP LAW FIRM, P.C.

P.O. Box 906 - 1115 Harrison

Mt. Vernon, IL 62864

618-242-0246

Counsel for Petitioner T- Town Drive Thru, Inc.

Brenda\USI\T-Town/ReconsiderationMtn .doc

- 18 -

Electronic Filing - Received, Clerk's Office, May 8, 2008

---

LUST Budget and Billing Fonns - Illinois EPA - Bureau of Land

I Table of Contents

Page 1 of2

Engineer I, II, and III

Performs assessment of remedial activities, compiles and analyzes environmental data, designs

remediation systems, prepares corrective action plans and completion reports, and is responsible for

on-site supervision of the installation of remediation systems. May oversee drilling and monitoring

well installation.

Professional Engineer and Senior Professional Engineer

Must be a professional engineer licensed in the State of Illinois. Is generally limited to performing

final report review, senior design, and complex data analysis. May supervise or direct the work

activities of lower level professionals and technicians. Will perform very limited fieldwork and have

limited involvement in projects. Duties include reviewing reports, developing strategies, and

attending client meetings. Is responsible for approving designs, reports, plans, and specifications

before submittal to clients and regulatory agency.

Geologist I, II, and III

Performs routine tasks related to remediation system design and aquifer testing. Conducts

assessment and remedial activities including drilling and monitoring well installation, sampling, and

compiling data. May oversee drilling and monitoring well installation.

Professional Geologist and Senior Professional Geologist

Is generally limited to performing final report review, senior design, and complex data analysis. May

supervise or direct the work activities of lower level professionals and technicians. Will perform very

limited fieldwork and have limited involvement in projects. Duties include reviewing reports,

developing strategies, and attending client meetings. Is responsible for approving designs, reports,

plans, and specifications before submittal to clients and regulatory agency.

Scientist I, II, III, IV, and Senior Scientist

Performs assignments related to site assessment, gathering general site data, well searches and

plotting, and analytical data reduction.

Project Manager and Senior Project Manager

Supervises and assigns tasks to staff member working on contracted projects. Is generally

responsible for all major decisions involving the project. Is responsible for gathering field data and

competent at data analysis. Serves as on-site technical expert and may do hydrological site

characterization and writes corrective action plans and completion reports.

~-IIIII!!~~~~-"

EXHIBIT

A

http://www.epa.state.il.us/Iand/Iust/fonns/budget-fonns/fonns-l /titIes-and-duties.html

5/8/2008

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---

LUST Budget and Billing Forms - Illinois EPA - Bureau of Land

Page 2

of2

Provides a variety of field and office work including mapping, sampling, surveying, and equipment

maintenance. A college degree is not generally required. Performs routine labor tasks related to on-

site installation, maintenance, and repair of machinery and equipment and sampling activities.

Account Technician

I,

II, III, IV, and Senior Account Technician

Prepares reimbursement packages and budgets.

Administrative Assistant I, II, III, IV, and Senior Administrative Assistant

operates computer for word processing, spreadsheets, and statistical typing, prepares

correspondence, generate reports, and performs general office work, typing, copying, and filing.

Draftsperson/CAD I, II, III, IV, and Senior Draftsperson/CAD

Is responsible for developing scaled maps, engineering drawings, and contour maps of professional

quality using CAD computer programming.

Copyright

©

2007 Illinois EPA

Agency Site Map I Privacy Information I Kids Privacy I Web Accessibility I Agency Webmaster

http://www.epa.state.il.us/land/lust/forms/budget-forms/forms-l /titles-and-duties.html

5/8/2008

Electronic Filing - Received, Clerk's Office, May 8, 2008

---

View the most recent updates to this document.

Instructions for the Budget and Billing Forms

Updated December 2007

The Illinois Environmental Protection Agency (Illinois EPA) has revised the

Budget and

Billing Forms

for payment from the Underground Storage Tank Fund (Fund). The

Illinois EPA's new forms shall

be used for all bUdgets and applications for payment for

all sites subject to 35 Illinois Administrative Code (35 III. Adm. Code) 734, 732, or 731,

except

as noted below. The

Budget and Billing Forms

reflect the amendments to 35 III.

Adm. Code 732 and the adoption of 35 III. Adm. Code 734. When using these forms,

please follow the instructions for each particular form that pertains to your site.

Maximum Payment Amounts

The Illinois EPA will only approve payment from the Fund for corrective action costs

actually incurred

up to the maximum amounts listed in Subpart H, Appendix 0, and

Appendix E of 35 III. Adm. Code 732 or 734-unless bidding is used or the unusual or

extraordinary circumstance provisions are followed. The Subpart

H, Appendix 0, and

Appendix E maximum payment amounts will be adjusted for inflation each year on the

first day of July of that year. The first adjustment was made

on July 1, 2006. The

maximum amounts that are applicable for costs submitted

in a budget are the amounts

in effect on the date the Illinois EPA receives the budget. Please note that, once the

Illinois EPA approves a cost, the applicable maximum payment amount for that cost

may not

be increased by proposing the cost in a subsequent budget (35 III. Adm. Code

732.870(d) or 734.870(d)). The maximum amounts that are applicable for costs not

approved

in a budget by the Illinois EPA, such as early action costs, are the amounts in

effect on the date the costs were incurred.

Signature Requirements

For owners and operators other than individuals, a duly authorized representative must

sign the forms

on behalf of the owner or operator. For the following entities, the duly

authorized representative must

be one of the following persons:

1.

For a corporation, a principal executive officer of at least the level of vice president,

or a person authorized

by a resolution of the board of directors to sign the

applicable document if a copy of the resolution, certified

as a true copy by the

secretary of the corporation,

is submitted with the document.

2.

For a sole proprietorship, the sole proprietor.

3.

For a partnership, a general partner.

4.

For a municipality, state, federal, or other public agency, the head of the agency or

a ranking elected official.

5.

For a limited liability company, a member for a member-managed company and

either a manager or a member for a manager-managed company.

6.

For a land trust, a beneficiary of the land trust who meets the definition of "owner"

or "operator" under 35 III. Adm. Code 731,732, or 734.

Budgets

Title XVI of the Environmental Protection Act requires owners or operators to submit a

budget prior

to seeking payment from the Fund, except in the case of costs asso .

EXHIBIT

j~

Electronic Filing - Received, Clerk's Office, May 8, 2008

---

with early action activities. Owners or operators of sites subject to 35 III. Adm. Code

731 are not required to submit budgets.

For owners or operators conducting site investigation pursuant to 35

III. Adm. Code 734,

the certification that the costs

of the Stage 1 investigation will not exceed the amounts

set forth

in Subpart H, Appendix 0, and Appendix E serves as the bUdget for the Stage

1 site investigation. The actual costs for conducting the Stage 1 site investigation must

be submitted

on budget forms concurrently with the results of the Stage 1 site

investigation and the next

Site Investigation Plan

and budget (submitted on its own

budget forms) or with the

Site Investigation Completion Report

if the site investigation is

complete.

Likewise, the actual costs for conducting the Stages 2 and/or 3 site

investigation must be submitted

on budget forms concurrently with the results of the

previous site investigation and the next

Site Investigation Plan

and bUdget (submitted

on its own budget forms) or with the

Site Investigation Completion Report

if the site

investigation is complete. When preparing budget forms, complete and submit only the

pages that apply.

If multiple budgets are included in one submittal, only one bUdget

certification form

is required.

BUdget amendments to an approved budget must be submitted on the same forms as

the original budget was submitted. Any new budgets for new activities shall

be

submitted on the Illinois EPA's new

BUdget and Billing Forms.

These new forms should

not be combined with other versions

of

BUdget and Billing Forms

and vice versa.

An original and one copy of the complete

budget

for sites subject to 35

III. Adm. Code

734 or 732 must be submitted with an associated plan. The forms may be copied;

however, one form must include original signatures. The original and one copy should

be mailed to:

Illinois Environmental Protection Agency

Bureau of Land - #24

Leaking UST Section

1021 North Grand Avenue East

Post Office Box 19276

Springfield, Illinois 62794-9276

Applications for Payment

If an owner or operator has received approval of a budget on old forms, the

corresponding application for payment must

be submitted on the old forms.

Any new

budgets for new activities and corresponding applications for payment shall

be

submitted on the Illinois EPA's new

Budget and Billing Forms.

These new forms should

not be combined with other versions

of

BUdget and Billing Forms

and vice versa.

When submitting

an application for payment, an accounting of all costs must be

provided (i.e., invoices and receipts). Invoices and receipts must contain enough

documentation to support the amount requested for payment from the Fund. Any costs

not substantiated by invoices or receipts will not

be paid. Invoices and receipts must

include the date the work was performed and a breakdown

of all costs with

documentation of activities conducted and materials purchased. For example,

an

invoice from the accredited laboratory noting the date of sample collection, number of

samples analyzed, amount charged, etc. is required for payment

of analytical costs. If

2

Electronic Filing - Received, Clerk's Office, May 8, 2008

---

the invoices and receipts do not contain detailed information, additional documentation

must

be submitted providing the required information. Invoices and receipts must also

provide adequate documentation that the work approved

in the applicable plan and

budget was conducted.

Proof of payment of subcontractor costs

can be shown in one of three ways:

1.

Cancelled checks - photocopy of fronts and backs of cancelled checks.

a.

One payment per site to one payee for the entire amount of one invoice with a

note indicating the date of the invoice

and the invoice number being paid.

b.

One payment per site to one payee for the entire amount of several invoices

with a note indicating the dates of the invoices, invoice numbers,

and the

amounts being paid

on said invoices.

c.

Payment to one payee for multiple sites for the entire amount of several

invoices with a note indicating the sites involved, including incident numbers,

dates of the invoices, invoice numbers,

and the amounts being paid on said

invoices.

2.

Lien waivers with the name of the company, invoices(s) being paid, date payment

took place,

and the amount(s) paid on said invoice(s) along with necessary

signatures.

3.

Affidavits with the name of the company, invoice(s) being paid, date payment took

place,

and the amount(s) paid on said invoice(s) along with necessary signatures.

Please note that

an application for payment for site classification pursuant to 35 III.

Adm. Code 732 cannot be submitted until a

Site Classification Completion Report

has

been approved or approved with modifications

by the Illinois EPA. Likewise, an

application for payment for the previous stage of site investigation pursuant to 35 III.

Adm. Code 734 cannot be submitted until either a

Site Investigation Plan

and budget for

the next stage of investigation or a

Site Investigation Completion Report

(if further

investigation

is not required) has been approved or approved with modifications by the

Illinois

EPA.

The complete

application for payment

with original signatures for sites subject to 35

III. Adm. Code 734, 732, or 731 should be mailed to:

Illinois Environmental Protection Agency

Bureau of

Land - #24

Leaking UST Claims Unit

1021 North Grand Avenue East

Post Office Box 19276

Springfield, Illinois 62794-9276

3

Electronic Filing - Received, Clerk's Office, May 8, 2008

---

732

732

732

732

731

732

731

Pursuantto:

732

732

732

732

734

734

734

734

734

734

734

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General Information for the Budget and

P

B

P

BP

B

P

B

P

Billin Forms

P

P

B

PP

B

PP

P

P

B

P

BP

PP

B

P

PP

B

P

P

B

PB

P

B

P

BP

P

B

PB

P

B

P

BP

P

B

B

BB

Payment Certification Form

Owner/Operator and Professional

Engineer/Geologist Billing Certification

Form

Private Insurance Coverage

P

P

P

P

P

Questionnaire

Private Insurance Affidavit

P

P

P

P

P

Federal Taxpayer Identification Form

P

P

P

P

P

Women and Minority Business

P

P

P

P

P

Enter rises Form

Copies of all bills and receipts for which

P

P

P

P

P

a ment is sou ht

P

=

Application for Payment only

B

=

Budget only

4

Electronic Filing - Received, Clerk's Office, May 8, 2008

---

General Information for the Budget and Billing Forms

Complete the form with the requested information.

On the first page of the form, there is

an area to designate the applicable regulations

and the site activities for which the package

is being submitted. If the site activities

involved are those of a Stage 1 site investigation pursuant to 35

III. Adm. Code 734, the

only submittal

is that of actual costs. If the site activities involved are those of a Stage 2

and/or 3 site investigation pursuant to 35

III. Adm. Code 734, you must select from the

drop-down box whether the submittal is that

of actual costs (for work done during the

previous stage

of investigation) or a proposed budget.

On the second page

of the form, include information pertaining to payment from the

Fund (if eligible), such as where payment checks should be sent. Please note that only

owners or operators

of USTs are eligible for payment from the Fund. Therefore,

payment can only

be made to an owner or operator of the USTs. The Illinois EPA is not

required to and will not recognize

an assignment or other delegation of payment as

justification for issuing payment to anyone other than the owner or operator. The

address, as completed

on this form, will be used as the mailing address for payment

checks and any final determination letters regarding payment from the Fund.

Lastly, at the end of page 2

is a table to be completed by listing tanks that have ever

been or are presently located at the site. Please note that there

is only enough space

for entry of one incident number. Therefore,

if more than one incident number was

assigned to a particular tank, multiple lines

of the table must be used to list the

additional incident numbers (as well as to indicate whether there was a release and, if

so, the type

of release associated with that incident number). For a tank with multiple

incident numbers, it should somehow be indicated that the information pertains to the

same tank. An example follows:

Product Stored in UST

unleaded gasoline

Size

(gallons)

10,000

Did UST

have a

release?

Yes

IZl No D

Incident No.

Type of Release

Tank Leak / Overfill /

Pi in Leak

888888

overfill

Yes

IZl No D

Yes IZl No D

Yes IZl No D

Click, as instructed, if additional rows of the table are needed.

Budget Summary

Select the regulations (either Part 734 or Part 732) that apply to the owner or operator

of the USTs for which the release was reported. The corresponding column headings

will appear.

PART 734:

If Part 734

is selected, in each column, as appropriate, select from the drop-down box

one

of the follOWing:

5

Electronic Filing - Received, Clerk's Office, May 8, 2008

---

• "Proposed" if the budget is a proposed budget,

• "Actual" if the bUdget

is a summary of actual costs incurred during the previous

stage of site investigation, or

• "N/A" (not applicable) if the budget doesn't apply to that particular column

heading.

Enter budget summary information

in only the columns that apply to the budget at-hand.

For example, if the proposed budget pertains to Stage 2 Site Investigation costs and

accompanying it are actual costs

of the Stage 1 Site Investigation, then "N/A" should be

selected for columns labeled "Free Product," "Stage 3 Site Investigation," and

"Corrective Action." Then, under the column labeled "Stage 1 Site Investigation,"

"Actual" should be selected from the drop-down box, and actual costs of the Stage 1

site investigation should be entered on the appropriate lines. Under the column labeled

"Stage 2 Site Investigation," "Proposed" should be selected from the drop-down box,

and proposed costs for Stage 2 of the site investigation should be entered

on the

appropriate lines. Following

is an example, in part:

Choose the applicable regulation:

8

734

0

732

734

Free Product

Stage 1 Site

Stage 2 Site

Stage 3 Site

Corrective

Investigation

Investigation

Investigation

Action

N/A

Actual

Proposed

N/A

N/A

Drilling and Monitoring

Well Costs Form

$

$

2,000.00

$

2,000.00

$

$

Stage 1 site investigation bUdgets must always be submitted as actual costs incurred.

The actual costs must

be submitted with a proposed Stage 2 Site Investigation Plan, a

Stages 2 and/or 3 Site Investigation Plan, or a Site Investigation Completion Report (if

no additional site investigation is required after Stage 1).

The actual costs of Stage 2 (if Stage 2 was needed) must

be submitted with the

proposed Stage 3 Site Investigation Plan or Site Investigation Completion Report (if no

additional work is required after Stage 2). The actual costs

of Stage 3 (if Stage 3 was

needed) must

be submitted with a Site Investigation Completion Report. Please note

that,

if contingency work is proposed (to either complete a stage or carry out the next

stage), costs of the contingency work must be submitted as proposed costs. See the

Site Investigation Process flowchart and accompanying explanation for information

about the various combinations

of stages that may be encountered.

List the total dollar amount from each of the forms listed,

as applicable. The "Total" will

be automatically calculated.

PART 732:

6

Electronic Filing - Received, Clerk's Office, May 8, 2008

---

If Part 732 is selected, budget summary information should be entered in only the

column that applies to the budget at-hand. List the total dollar amount from each

of the

forms listed, as applicable. The "Total" will be automatically calculated.

Billing Summary

The total amounts from each individual form should be entered in the appropriate box.

Please note that early action activities

or corrective action conducted pursuant to 35 III.

Adm. Code 731 neither requires nor allows for pre-approval of costs in a budget.

Therefore, the first column

of this form "$ Amount Approved in the Budgef' will not be

completed for Part 731 or early action applications for payment.

Drilling and Monitoring Well Costs Form

Section 1 - Drilling

Include in the "Rate per Foot ($)" drilling charge for advancement of a boring or the

installation

of a well all costs associated with advancing the boring including but not

limited to all drilling labor (including driller, driller assistant

or laborer, etc.), drill rig time,

drill rig and operator travel time and per diem, driller mileage, mobilization,

decontamination, Shelby tubes, soil boring abandonment, all remediation compound

injection costs (including slurry preparation and mixing equipment), bentonite, boring

surface patches, and concrete saw.

An indication must be made as to

why each boring is being advanced (i.e., defining the

extent

of contamination, classification boring, installation of monitoring wells,

investigation

of migration pathways, injection of a remediation compound) and the

drilling type (either hollow-stem auger/conventional [HSA], push-driven technologies

[PUSH],

or Injection).

If the Subpart H minimum payment

amount applies, then the box should be checked

indicating such. Upon doing so, the field for "Total Drilling Costs" zeroes out so that the

total drilling costs can be entered manually.

In addition, an asterisk appears, indicating

that the total drilling costs have been adjusted to reflect one

or more Subpart H

minimum payment amounts. (More than one might apply

if the proposed budget or

actual costs bUdget includes more than one round

of drilling.)

When the Subpart H minimum payment amount box is not checked, the "Total Drilling

Costs" are automatically calculated.

Section 2 - Monitoring/Recovery Wells

Include in the "Rate per Foot ($)" charge all costs associated with the installation of a

monitoring

or recovery well (excluding drilling) including but not limited to costs

associated with labor to install wells, all well materials (such as well casings, risers,

screens, caps and plugs, filter packs, annular seals, surface seals, sand, gravel,

bentonite, concrete, well covers, and locks), and labor and equipment (including

groundwater pump) for well development done by the driller.

Analytical Costs Form

7

Electronic Filing - Received, Clerk's Office, May 8, 2008

---

Include in the "Cost ($) per Analysis" charge all costs associated with sample handling

and analysis

of each sample including but not limited to laboratory personnel, sample

handling, sample preparation, all aspects

of the laboratory analysis, sample jars and

other sampling containers, sample kits, sample disposal fees, and reporting

of sampling

results. Include the number

of samples for each parameter and the actual cost per

analysis (up to the maximum total amount per sample listed

in Appendix D of 35 III.

Adm. Code 732 or 734).

For laboratory analyses not included

in Appendix D, the Illinois EPA will determine

reasonable maximum payment amounts on a site-specific basis.

Include

in the soil sampling equipment charge all costs associated with sampling

equipment including but not limited to EnCore sampler, purge-and-trap sampler, or

equivalent sampling device.

Include

in the sample shipping charge all costs associated with sample shipping

including but not limited to transportation and/or delivery

of samples to the laboratory

(e.g., FedEx, UPS, or any other courier service), ice, coolers, and bubble wrap. The

maximum total amount per sample listed

in Appendix D is the maximum total amount for

shipping all samples (soil and groundwater) collected

in a calendar day.

Remediation and Disposal Costs Form

Section A - Conventional Technology

Excavation, Transportation, and Disposal of contaminated soil and/or the 4-foot

backfill material removal during early action activities:

Include in the "Cost per Cubic Yard ($)" all costs associated with the excavation,

transportation, and disposal

of contaminated soil and/or backfill material exceeding the

applicable remediation objectives including but not limited to all non-consulting

personnel (subcontractors); trucker/equipment operator labor; trucker/equipment

operator travel and per diems; truck charges; visqueen truck liner; backhoe charges;

equipment (including concrete breaker); equipment mobilization; skid steer;

concrete/asphalt excavation, transportation, and disposal; landfill charges;

decontamination; barriers; cones; tape; permit fees; traffic control; and other materials

and related expenses.

The volume

of soil removed and disposed must be determined by the following equation

using the dimensions

of the resulting excavation:

Soil [(Excavation Length

in feet x Excavation Width in feet x Excavation Depth in feet of

contaminated soil) -;- 27] x 1.05 bulking factor

A conversion factor

of 1.5 tons/cubic yard will be used to convert tons to cubic yards.

The volume

of soil removed from within four feet of the outside dimensions of the UST

and disposed pursuant to early action provisions must be determined

in accordance

with Appendix C

of 35 III. Adm. Code 732 or 734.

Backfilling the Excavation:

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Include in the "Cost per Cubic Yard ($)" all costs associated with the purchase,

transportation, and

placement of clean material used to backfill the excavation resulting

from the removal and disposal

of soil, including but not limited to all non-consulting

personnel (subcontractors), trucker/equipment

operator labor, trucker/equipment

operator travel and per diems, truck charges, visqueen truck liner, backhoe charges,

equipment,

equipment mobilization, backfill material (clay, sand, gravel), barriers,

cones, tape,

permit fees, traffic control, and other materials and related expenses.

The volume of backfill material must be determined by the following equation using the

dimensions

of the backfilled excavation:

Soil [(Excavation Length in feet x Excavation

Width in feet x Excavation Depth in feet of

contaminated soil) -;- 27] x 1.05 bulking factor

A conversion factor

of 1.5 tons/cubic yard will be used to convert tons to cubic yards.

The volume of backfill material used to replace soil removed from within four feet of the

outside

dimensions of the UST and disposed pursuant to early action provisions must

be determined in accordance with Appendix C of 35 III. Adm. Code 732 or 734.

Overburden Removal and Return:

Include in the "Cost per Cubic Yard ($)" all costs associated with the removal and

subsequent return of soil that does not exceed the applicable remediation objectives but

whose removal is required in order to conduct corrective action, including but not limited

to all non-consulting personnel (subcontractors), trucker/equipment

operator labor,

trUCker/equipment

operator travel and per diems, truck charges, visqueen truck liner,

backhoe charges, equipment,

equipment mobilization, barriers, visqueen, cones, tape,

permit fees, traffic control, and other materials and related expenses.

The volume of soil removed and returned must be determined by the following equation

using the

dimensions of the excavation resulting from the removal of soil:

Overburden Soil [(Excavation Length

in feet x Excavation Width in feet x Excavation

Depth in feet

of non-contaminated soil) -;- 27]

A conversion factor

of 1.5 tons/cubic yard will be used to convert tons to cubic yards.

Section B - Alternative Technology

This section must be used for any remediation technology other than conventional

technology. Alternative technology includes

but is not limited to soil vapor extraction,

land-farming, bio-piles, low-temperature thermal desorption,

air sparging, bio-sparging,

in-situ bioremediation, chemical oxidation,

or dual-phase extraction. Other alternative

technologies

may be proposed.

Include a time and materials breakdown

of all costs. Include in the "Total Cost of the

System" all costs including

but not limited to all non-consulting personnel

(subcontractors), equipment, materials, construction, installation, operation and

maintenance, system

shutdown and closure, and other expenses of the proposed

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Electronic Filing - Received, Clerk's Office, May 8, 2008

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remediation system. Maximum payment amounts for costs associated with alternative

technology will be determined by the Illinois

EPA on a site-specific basis.

Also include the information listed in the

Remediation System Information

document.

The volume of soil to be treated in-situ must be determined by the following equation:

Soil [(Length in feet x Width in feet x Depth in feet

of contaminated soil)

+

27]

A conversion factor

of 1.5 tons/cubic yard will be used to convert tons to cubic yards.

All materials, equipment, field purchases, and subcontractor costs

must be listed on the

Remediation Materials

Costs

Summary Sheet

and

Non-ConSUlting Personnel

Costs

Summary Sheet,

and the totals from those forms should be placed on the "Total Cost of

the System" line in Section B. All professional consultant time (design time, oversight

time, etc.) must be listed on the

Consulting Personnel

Costs

Form.

Section C - Groundwater Remediation and/or Free Product Removal System

This section must be used if a groundwater remediation and/or free product removal

system (such as pump-and-treat

or dual-phase vapor extraction) is proposed in a plan.

Include a time and materials breakdown

of all costs. Include in the "Total Cost of the

System" all costs including but not limited to all non-consulting personnel

(subcontractors), equipment, materials, construction, installation, operation and

maintenance, system shutdown and closure, and other expenses

of the proposed

removal system. Maximum payment amounts for costs associated with the proposed

removal system will be determined by the Illinois

EPA on a site-specific basis.

Also include the information listed in the

Remediation System Information

document.

All materials, equipment, field purchases, and subcontractor costs

must be listed on the

Remediation Materials

Costs

Summary Sheet

and

Non-Consulting Personnel

Costs

Summary Sheet,

and the totals from those forms should be placed on the "Total Cost of

the System" line in Section C. All professional consultant time (design time, oversight

time, etc.)

must be listed on the

Consulting Personnel

Costs

Form.

Section D - Groundwater and/or Free Product Removal and Disposal

This section must be used if groundwater or free product is removed via vacuum truck

or other similar method from a groundwater monitoring well, recovery well, or container

(such as a drum).

Include in the "Cost per Gallon ($)" all costs associated with the removal, transportation,

and disposal of free product or contaminated groundwater including but not limited to all

non-consulting personnel (subcontractors), truck driver labor, mobilization, vac truck,

mileage, equipment, materials, disposal fees, and other related expenses.

If

the Subpart H minimum payment amount applies, then the box should be checked

indicating such. Upon doing so, the field for "Total Cost" zeroes out so that the total

groundwater and/or free product removal and disposal cost can be entered manually.

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In addition, an asterisk appears, indicating that the total groundwater and/or free

product removal and disposal cost has been adjusted to reflect the Subpart H minimum

payment amount. (More than one might apply

if the proposed budget or actual costs

budget includes more than one round

of groundwater and/or free product removal and

disposal.)

When the Subpart H minimum payment

amount box is not checked, the ''Total Cost" is

automatically calculated.

Section E - Drum Disposal

This section must be used whenever a solid or liquid waste generated as a result of

corrective action (e.g., soil borings, water bailed for well development or sampling, or

hand-bailed free product) is disposed in a 55-gallon drum.

Include

in the "Cost per Drum ($)" all costs associated with drum disposal including but

not limited to drum purchase, drum dolly, transportation, truck charge and mobilization,

truck driver labor, and disposal fees.

If the Subpart H minimum payment

amount applies, then the box should be checked

indicating such. Upon doing so, the field for "Total Drum Disposal Costs" zeroes out so

that the total drum disposal costs can be entered manually.

In addition, an asterisk

appears, indicating that the total drum disposal costs have been adjusted to reflect the

Subpart H minimum payment amount. (More than one might apply

if the proposed

budget or actual costs bUdget includes more than one round

of drum disposal.)

When the Subpart H minimum payment

amount box is not checked, the "Total Drum

Disposal Costs" are automatically calculated.

Non-Consulting Personnel Costs Form

(Note: For this form to function properly, Adobe Reader 8.0 is required.)

This form should only be used to list personnel costs that are not associated with

professional consulting services. Professional consulting services (that is, services

performed by the primary consulting firm)

must be listed separately on the Consulting

Personnel Costs Form. Do not include costs that are part

of maximum payment

amounts listed in the

Maximum Payment Amounts

sheets.

a.

Employee Name

- List the name of the employee (required for application for

payment only).

b.

Personnel Title

- List the title of the employee. Personnel titles must be

comparable to the task being performed.

c.

Hours

- List the number of hours worked or proposed to be worked for that

particular task.

d.

Rate ($)

- List the hourly rate of the employee. Personnel costs must be based

upon the

work being performed, regardless of the title of the person performing the

work.

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Electronic Filing - Received, Clerk's Office, May 8, 2008

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e.

Total Cost - Enter the total dollar amount requested for each task (Hours X Rate).

f.

Task - Complete an individual line item for each task conducted. The following are

some examples

of tasks: remediation system installation, operation and

maintenance, or alternative technology remediation construction. Provide

additional details to supplement this information; for example, the details may

include the number

of trips for operation and maintenance, number of hours for

each trip, and

how often trips are proposed.

g.

Cumulative Total of Non-Consulting Personnel Costs Summary Sheet(s)-

Enter the total non-consulting personnel costs (the sum of all tasks).

Remediation Materials Costs Summary Sheet

(Note: For this form to function properly, Adobe Reader 8.0 is required.)

Include all costs for materials, equipment, and field purchases associated with a

groundwater remediation and/or free product removal system and/or alternative technology.

Such costs include but are not limited to remediation compounds, nutrients for in-situ

bioremediation, and soil

vapor extraction equipment.

a.

Materials, Equipment, or Field Purchase - List all the materials, equipment, and

field purchases used

or proposed to be used that are not part of maximum

payment amounts listed in the

Maximum Payment Amounts

sheets.

b.

Time or Amount Used - List, if applicable, the amount of time or the number of

individual items used.

c.

Rate ($) - List the rate at which an item is charged.

d.

Unit - List the unit of the rate charged, which may be hourly, daily, weekly,

monthly, yearly, etc. or may be based upon an activity such as per foot, cubic yard,

square foot, gallon, etc.

e.

Total CosUltem - List the total cost of the material, equipment, or field purchase.

f.

Subcontractor - If a service is provided by a subcontractor, list the name of the

subcontractor.

g.

Cumulative Total of Remediation Materials Costs Summary Sheet(s) - Enter

the total cost

of all materials, equipment, and field purchases.

UST Removal and Abandonment Costs Form

This section applies to UST removal, abandonment, and disposal activities.

Include

in the "Cost ($)" all costs associated with the excavation, removal, disposal,

and/or abandonment of UST systems including but not limited to all non-consulting

personnel (subcontractors), mobilization, equipment, materials, decontamination,

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Electronic Filing - Received, Clerk's Office, May 8, 2008

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barriers, cones, tape, PID, slurry, disposal fees, permit fees, and other related

expenses.

Please list all tanks that have been removed from

or abandoned at the site for which

payment from the Fund is requested. The maximum total amount payable per UST is

based on the UST volume, as prescribed

in the regulations.

Paving, Demolition, and Well Abandonment Costs Form

Section A - Concrete and Asphalt Placement/Replacement

This section must be used for costs associated with concrete, asphalt, and paving

installed as an engineered barrier, as well as for costs associated with the replacement

of concrete, asphalt, and paving.

Include

in the "Cost ($) per Square Foot" all costs associated with concrete, asphalt, and

paving placement or replacement, including but not limited to all non-consulting personnel

(subcontractors), placement

or replacement labor, per diems, equipment, materials and

delivery, base preparation/compaction/leveling, surface preparation and equipment, forms,

and other related expenses.

In addition, include in the accompanying plan or report

documentation

of the material (either asphalt, paving, or concrete), the depth of material, and

the square footage

of the asphalt, paving, or concrete being placed or replaced.

Section B - Building Destruction or Dismantling and Canopy Removal

This section must be used for costs associated with the destruction or the dismantling

and reassembly

of above grade structures.

Include

in the "Unit Cost ($)" all costs including but not limited to all personnel (primary

consultant and subcontractors), per diems, equipment, mobilization, truck charges, backhoe

charges, materials, asbestos abatement, barriers, cones, tape, permit fees, and other related

expenses. Payment will be determined on a time and materials basis.

The total cost for the destruction

or the dismantling and reassembly of above grade

structures must not exceed $10,000 per site. A time and materials breakdown

of all

costs must be submitted with the application for payment.

Section C - Well Abandonment

This section must be used for the abandonment of monitoring or recovery wells that are

abandoned pursuant to regulations promulgated by the Illinois Department

of Public

Health at 77

III. Adm. Code 920.120. Please note that each monitoring well must be

listed individually.

Include

in the "Cost ($) per Foot" all costs including but not limited to all personnel (primary

consultant and subcontractors), labor, per diems, transportation, equipment (including

jackhammer), mobilization, bentonite, concrete, and other related expenses.

Consulting Personnel Costs Form

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Electronic Filing - Received, Clerk's Office, May 8, 2008

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(Note: For this form to function properly, Adobe Reader 8.0 is required.)

Include all costs associated with professional consulting services (that

is, services provided

by the primary consulting firm). Personnel not directly part

of the primary consulting firm

must be listed on the

Non-Consulting Personnel

Costs

Form.

In

the "Personnel Title" fields, use the titles listed at Appendix E of 35 III. Adm. Code 732 or

734. The highest maximum hourly rate for each personnel title listed

in Appendix E may be

proposed in the budget, but the amount billed in the application for payment must be based

upon the degree, licensing, and experience requirements identified

in Appendix E.

Include in the "Rate ($)" the costs associated with professional consulting services provided

by the primary consulting firm including but not limited to plan, budget, and report

preparation, application-for-payment preparation, certifications, project oversight, and field

activities.

A separate line should be used for each employee performing tasks

in each remediation

category.

a.

Employee Name

- List the name of the employee (required for application for

payment only).

b.

Personnel Title

- Select the title of the employee using the personnel titles listed

in Appendix E

of 35 III. Adm. Code 732 or 734 (also listed in the

Maximum

Payment Amounts/Personnel Titles and Requirements

document). Personnel titles

must be comparable to the task being performed.

c.

Hours

- List the number of hours worked or proposed to be worked for that

particular task.

d.

Rate ($)

- List the hourly rate of the employee. The rate may not exceed the

maximum hourly rate listed in the applicable

Maximum Payment

Amounts/Personnel Titles and Requirements

document. Personnel costs must be

based upon the work being performed, regardless of the title of the person

performing the work.

e.

Total Cost

- Enter the total dollar amount requested for each task (Hours X Rate).

f.

Remediation Category

- Select the appropriate remediation category abbreviation

from the

Remediation Categories List

document that is applicable to each phase of

corrective action that has been or is proposed to be performed.

g.

Task

- Complete an individual line item for each task conducted. The following are

some examples

of tasks: preparation of CAP and budget, site investigation

fieldwork, operation and maintenance, alternative technology oversight, or

alternative technology remediation design. Provide additional details to

supplement this information; for example, the details may include the number

of

trips for operation and maintenance, number of hours for each trip, and how often

trips are proposed.

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Electronic Filing - Received, Clerk's Office, May 8, 2008

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h.

Cumulative Total of Consulting Personnel Costs Form(s) - Enter the total

consulting personnel costs (the sum

of all tasks).

Multiple pages

of the form must be used if additional space is needed.

Consultant's Materials Costs Form

(Note: For this form to function properly, Adobe Reader 8.0 is required.)

Include on the form the costs associated with materials provided by the professional

consulting service (that

is, the primary consulting firm) including but not limited to lodging

and

per diems, mileage (or vehicle), private utility locator, permit fees, well survey fees,

NFR Letter recording fees, manifests, copies, and other equipment and supplies (such as

PIO, FlO, explosimeter, OO/ORP/pH meters, hand augers, cameras/photo development,

gloves, plastic bags, decon kit [for consultant's nondisposable field equipment], equipment

to survey wells, peristaltic pump, purge pump, rope, bailers, measure wheel, transducer,

data logger, water level indicator/interface probe, plastic tubing, metal detector, and

barricades).

a.

Materials, Equipment, or Field Purchase - List all the materials, equipment, and

field purchases used or proposed to be used that are not part of maximum

payment amounts listed

in the

Maximum Payment Amounts

sheets.

b.

Time or Amount Used - List, if applicable, the amount of time or the number of

individual items used.

c.

Rate ($) - List the rate at which an item is charged.

d.

Unit - List the unit of the rate at which an item is charged, if applicable. The unit

may be hourly, daily, weekly, monthly, yearly, etc. The unit and unit rate may also

be based on an activity such as per foot, cubic yard, square foot, gallon, etc.

e.

Total Cost - List the total cost of materials, equipment, or field purchase.

f.

Remediation Category - Enter the appropriate remediation category abbreviation

from the

Remediation Categories List

document that is applicable to each phase of

corrective action that has been or is proposed to be performed.

g.

Description/Justification - Enter a description of the materials, equipment, or

field purchase and/or justification for its use.

h.

Cumulative Total of Consultant's Materials Costs Form(s) - Enter the total

costs

of all materials, equipment, and field purchases.

Multiple pages

of the form must be used if additional space is needed.

Bid Summary Form

As an alternative to the maximum payment amounts set forth in Subpart H, Appendix 0,

and Appendix E of 35 III. Adm. Code 734 or 732, one or more payment amounts may be

determined via bidding

in accordance with 35 III. Adm. Code 734.855 or 732.855. Each

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Electronic Filing - Received, Clerk's Office, May 8, 2008

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bid must cover all costs included in the maximum payment amount that the bid is

replacing.

The following items must be provided to the Illinois EPA with the associated budget:

1. A copy of the scope of work provided to the subcontractors requesting bids;

2. Copies of

all

bids received (a minimum of three bids is required unless unusual

or extraordinary circumstances apply), accompanied by completed and signed

Contractor Certification Forms

and bid details; and

3. A completed and signed copy of the

Bid Summary Form.

Contractor Certification Form

Whenever a job is bid, completed and signed

Contractor Certification Forms

must

accompany the

Bid Summary Form.

Bid details should be attached.

Handling Charges Form

Handling charges for field purchases and subcontractor billings must be calculated

based on the table below.

Handling charges do not need to be submitted in a

budget.

Submit copies of invoices and/or receipts of the subcontractor charges and/or

field purchase with an application for

payment Include a breakdown of the date the

work was conducted, as well as documentation

of all activities and materials purchases,

with invoices and/or receipts.

If the invoices and receipts do not contain this

information, submit additional documentation providing this information.

Subcontract and Field

Purchase Cost

$1 - $5,000

$5,001 - $15,000

$15,001 - $50,000

$50,001 - $100,000

$100,001 - $1,000,000

Miscellaneous Forms

Eligible Handling Charges as a

Percentage of Cost

12%

$600 + 10% of amt. over $5,000

$1,600

+ 8% of amt. over $15,000

$4,400

+ 5% of amt. over $50,000

$6,900 + 2%

of amt. over 100,000

The following forms should be completed, signed, and submitted, as applicable:

• Owner/Operator and Licensed Professional Engineer/Geologist Budget

Certification Form

• Owner/Operator and Licensed Professional Engineer/Geologist Billing Certification

Form

• Payment Certification Form

• Private Insurance Coverage Questionnaire and Private Insurance Affidavit

• Federal Taxpayer Identification Number and Legal Status Disclosure Certification

Requirements

• Women and Minority Business Enterprises Form

• Personnel Weekly Work Sheet

• Materials Weekly Work Sheet

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Electronic Filing - Received, Clerk's Office, May 8, 2008

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Reference Documents

The following reference documents should be used, as applicable, when completing

budgets and/or applications for payment:

• Personnel Title Descriptions and Duties Summary

• Remediation Categories List

• Remediation System Information

• Maximum Payment Amounts (March

1, 2006 through June 30, 2006)

• Maximum Payment Amounts (July

1, 2006 through June 30,2007)

• Maximum Payment Amounts (july 1, 2007 through June 30, 2008)

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Electronic Filing - Received, Clerk's Office, May 8, 2008