October 16, 2013 Meeting Minutes

  MINUTES
 

DRYCLEANER ENVIRONMENTAL RESPONSE TRUST FUND
COUNCIL of ILLINOIS

CHICAGO MARRIOTT NAPERVILLE
NAPERVILLE, ILLINOIS

OCTOBER 16, 2013

John Polak, Chairperson, called the Drycleaner Environmental Response Trust Fund Council of Illinois meeting to order at 10:18 a.m. A quorum was present. Roll call was taken with the following members present:

John Bredenkamp
Sung Do Kang
Daniel Kim (arrived at 10:20 a.m.)
Young B. Kim
Paul Kwak
Jerry Lewicki

John Polak
(via telephonic conference)

Also present were:
H. Patrick Eriksen, Program Administrator's Office
John McCarthy, Program Counsel
Juho So, Program Administrator's Office

Randy Jackson, Program Administrator’s Office
Yong Kim, Program Administrator's Office

PRELIMINARY BUSINESS

The minutes from the August 21, 2013 Council meeting were reviewed. Mr. Kang wished to comment on the Council’s decision modifying the compliance program requirements and the Council’s decision to seek legislation extending the sunset date of the Trust Fund. Both of these issues were acted on at the August 21, 2013 Council meeting. Chairman Polak determined it would be more appropriate for Mr. Kang to discuss these topics under “Other Issues as Presented” as the Council at this time is simply acting on the accuracy of the minutes as reported.

On a motion by Mr. Lewicki and a second by Mr. Bredenkamp, the minutes were approved by a vote of 6-0.

Daniel Kim joined the meeting at 10:20 a.m.
  APPEAL OF LICENSE LATE PAYMENT FEES
  1.

Appeal of License Late Payment Fees – Fame Cleaners, Barrington, IL; Site #0001190:

   

Mr. Eriksen reviewed background information with the Council noting that Ms. Hee Sook Kim is the owner/operator of Fame Cleaners located at 227 N Northwest Highway in Barrington, IL. She has operated the drycleaning facility since October 1995 and the facility has been licensed every year except for calendar year 2013. Ms. Kim paid her 2013 license fee on May 6, 2013 and incurred a $415 license late payment penalty. Ms. Kim is appealing the penalty due to financial hardship.

The license fee payment history reflects Ms. Kim paid the license fees timely except for calendar years 2007, 2008, 2009 and 2010. For these four (4) years in which she paid the fee late, she paid the appropriate license fee penalty.

Dr. So translated for Ms. Kim. Ms. Kim indicated business has been very slow for the past several years and she has been late in making her rent payment for the past two (2) years. She is requesting the late fees be waived to lessen the financial hardship she has incurred and she stated she would pay all future license fees on time.

A motion was made by Mr. Kang and seconded by Mr. Young Kim to waive the license late payment fees of $415.

The Council discussed the motion with Mr. Kwak asking Mr. Kang why the Council should waive the entire late fee when in almost all cases the Council has only reduced the late fee not waived it. Mr. Kang responded the Council has waived the entire late fee for several drycleaners and due to poor economy, he felt it was appropriate to waive the entire late fee. Mr. Polak expressed concern with a blanket waiver although he could sympathize with the financial plight Ms. Kim is facing. It was his position that the Council should not waive the entire late fee.

Mr. Kang called for the vote on his motion. On a roll call vote, Mr. Young Kim, Mr. Kang and Mr. Daniel Kim voted to waive the entire late fee. Mr. Bredenkamp, Mr. Lewicki, Mr. Kwak and Mr. Polak voted against the motion. The motion failed on a vote of 3-4.

Mr. Bredenkamp made a motion to reduce the $415 in late payment penalties to $78, which is the amount the Administrator calculated that represents an effective annual interest rate of 20% for the period of time the license fee was delinquent. The motion was seconded by Mr. Kwak and passed by a vote of 7-0.

  ADMINISTRATIVE RULE AMENDMENTS
 

Mr. Eriksen reviewed with the Council proposed rule amendments to implement HB3349, which was signed into law by Gov. Quinn on August 13.

The amendments incorporate statutory revisions to the issuance of cancellation notices and communication of procedures for seeking reinstatement of required financial assurance for environmental liability coverage that cancelled or expired.

After discussion by the Council, on a motion by Mr. Lewicki and a second by Mr. Bredenkamp, the Council voted 7-0 for the Administrator to move forward with the filing of the administrative rule amendments with the Secretary of State and the Joint Committee on Administrative Rules.

  APPROVAL OF PROGRAM BILLINGS
  Mr. Eriksen noted there were three (3) bills before the Council for their review and approval. They were:
  1. Williams & Company Consulting, Inc         $52,261.00
Standard flat fee billing for August 2013, licensing, underwriting, claims processing and site inspections.
  2. Williams & Company Consulting, Inc         $41,858.00
Standard flat fee billing for September 2013, licensing, underwriting, claims processing and site inspections.
  3. John J. McCarthy                                      $5,486.38
Professional legal services to the Council for the period of August 7, 2013 through October 3, 2013.
 

On a motion by Mr. Bredenkamp and a second by Mr. Lewicki, the bills were approved by a vote of 7-0.

  REVIEW OF ACTIVITY REPORT AND FINANCIAL STATEMENTS
 

Mr. Eriksen reviewed the September 30, 2013 monthly activity report with the Council noting there were 970 licensed drycleaners and 526 insured; open remedial claims totaled 210, with estimated reserves to complete cleanup at these facilities at $25 million.

Mr. Eriksen referenced the August 31, 2013 monthly activity report was included in the Council packet.

The September 30, 2013 financial statements reflect a fund balance of $2,146,968. Fiscal year-to-date claim payments total $556,411. The August 31, 2013 financial statements were also included in the packet for the Council’s reference.

  CLAIM PAYMENTS IN EXCESS OF $75,000
 

Mr. Eriksen noted there were six (6) claim payment requests in excess of $75,000 requiring Council review and action.

  A. Scot Cleaners, Glenview, ILClaim #50618, Site #0001514;
   

Mr. Jackson reviewed background information with the Council noting the request is for additional site investigation activities that hopefully will document that further remediation of the contaminated soil at the drycleaning facility is no longer necessary. The estimated cost to complete such investigation, including contingency, is $9,150.

After discussion by the Council, on a motion by Mr. Lewicki and a second by Mr. Kang, the Council approved the Administrator’s request of $9,150 in additional budget costs by a vote of 7-0.

  B.

Barry Regent Cleaners, Chicago, ILClaim #50239, Site #0001037:

   

Mr. Jackson reviewed background information on the facility noting the budget request is for $25,000 to conduct related site investigation and Community Right-To-Know (RTK) activities at the facility. In September 2013, the RTK requested that an additional down-gradient well be installed to physically determine if chemicals of contamination had migrated off-site. This additional off-site sampling could reduce the notification distance.

On a motion by Mr. Lewicki and a second by Mr. Young Kim, the Council approved the budget request of $25,000 by a vote of 7-0.
  C.

Burling Professional Cleaners, Bradley, IL; Claim #50102, Site #0002085:

   

Mr. Eriksen stated the Administrator has two (2) separate budget requests for this drycleaning facility and Mr. Jackson would review the specifics of the two (2) different requests.

Mr. Jackson stated the first request is for $1,800 to complete Tier 3 modeling at the drycleaning facility. The Council had previously approved Tier 3 bedrock modeling for the facility which was completed but Illinois EPA (IEPA) disagreed with several of the parameters used by the consultant to predict the extent of migration of the contamination. IEPA also determined that several layers of modeling were required to predict groundwater flow in varying hydraulic scenarios found within the vertical plane. The consultant repeated the modeling using the revised parameters and provided an updated report to IEPA in July 2013. IEPA has requested one (1) additional parameter change to the model. The Administrator stated this is necessary to hopefully reduce the scope of remediation at this facility.

On a motion by Mr. Lewicki and a second by Mr. Bredenkamp, the Council approved $1,800 in Tier 3 modeling costs by a vote of 7-0.
  D.

Burling Professional Cleaners, Bradley, IL; Claim #50102, Site #0002085:

   

Mr. Jackson stated this budget request was for $96,500 to begin remediation at the facility. Soil contamination above C-sat will be required to be remediated and IEPA conditionally approved the RAP in September 2013. The budget request is for over-excavation and disposal of contaminated soil at the drycleaning facility.

In addition, the Administrator is requesting the Council waive the two (2) bid requirement as the current consultant has conducted extensive site investigation at the site and is familiar with the site specific conditions which are necessary to efficiently complete the required modeling for groundwater plume delineation and implementation of the remedial activities.

On a motion by Mr. Lewicki and a second by Mr. Bredenkamp, the Council approved the remedial costs of $96,500 and waiver of the (2) bid requirement by a vote of 7-0.

  E. Northview Cleaners, Chicago, IL; Claim #50591, Site #2534:
   

Dr. So reviewed background information with the Council noting active remediation is required due to the high level of contamination in the soil and groundwater. The area to be remediated is approximately 300 sq. ft. of interior of the facility and the hot spot area is isolated down to 5–6 ft below ground surface. The Administrator is asking for $105,850 in remedial costs for the implementation of Chemical Oxidant Retention Ponds (CORPs) at the facility. In addition, the Administrator also is requesting waiver of the two (2) bid requirement as the consultant has extensive site investigation experience at the facility and is familiar with the site specific conditions which are important to the successful implementation of the remedial activities.

On a motion by Mr. Lewicki and a second by Mr. Bredenkamp, the Council approved the $105,850 in remediation costs and waiver of the (2) bid requirement by a vote of 7-0.

  F.

Crystal Cleaners, Morton Grove, IL; Claim #50317, Site #1879:

   

Dr. So reviewed background information with the Council stating active remediation is required due to the high level of soil and groundwater contamination. The proposed remedial action method is chemical oxidation via gravity feeding utilizing Chemical Oxidant Retention Ponds (CORPs). The total budget request is $177,500 and the Administrator is also requesting waiver of the (2) bid requirement as the current consultant has conducted extensive site investigation activities at the facility and is familiar with the site specific conditions which are important to the successful implementation of the remedial activities.

Dr. So noted it is not anticipated at this time that the total remedial costs will exceed the remedial action cap of $300,000.

On a motion by Mr. Lewicki and a second by Mr. Young Kim, the Council approved the budget request of $177,500 and waiver of the (2) bid requirement by a vote of 7-0.

 

Mr. Daniel Kim inquired if it would be possible for the Administrator to provide photographs of the drycleaning facilities that are being brought to the Council for budget review and approval. Mr. Eriksen replied it was doable and his request would be implemented for all future budget requests.

  OTHER ISSUES AS PRESENTED
 

Mr. Eriksen reported he would be meeting with the compliance programs today at 1:00 p.m. to discuss the perc operator training, revisions to the site inspection form and other compliance program related issues. Kevin Greene from the Illinois Environmental Protection Agency (IEPA) would be participating in the meeting.

The next Council meeting is tentatively scheduled for Wednesday, December 4, 2013. Council members noted at this time they had no conflicts with that date.

Mr. Eriksen reported that Dong Jun Kim, of the Environmental Drycleaners Compliance Program, has transferred ownership of the program to Charles Kwon, former Council member. He noted Mr. Kim will remain as a third party inspector and Cleanus, Inc. will continue to support the Environmental Drycleaners Compliance Program.

Mr. Kang addressed the Council stating that he would like the Council to review at the next Council meeting two (2) issues. The first would be to revisit the compliance program modifications adopted by the Council at their August 21, 2013 Strategic Planning meeting and secondly, revisit the Council’s position on seeking extension of the Fund’s sunset date.

Mr. Kwak asked Mr. Kang why he wished to revisit these issues; what is the purpose of the request? Mr. Lewicki saw no reason to reopen these issues for further discussion as both motions passed by a strong majority at the last meeting. Mr. Bredenkamp concurred with Mr. Lewicki’s position and made a motion that Mr. Kang’s request to put review of the compliance program modifications and the Council’s position to extend the sunset date not be put on the December 2013 meeting agenda. The motion was seconded by Mr. Lewicki.

Mr. Bredenkamp stated the Council needs to continue to move forward or else they will go backwards by relooking at these issues that have been discussed at exhaustive lengths by the Council. Revisiting these topics is just a delay tactic to avoid addressing issues facing the Fund. Mr. Polak noted that Mr. Bredenkamp’s motion was somewhat of a “double negative” motion and was concerned that it might not be sufficiently clear to the Council members on what they were voting on. He asked Mr. Bredenkamp if he would be willing to withdraw his motion and make it in another format. Mr. Polak also requested Mr. Kang explain to the Council members why he wishes these items to be considered again by the Council in December.

Mr. Bredenkamp withdrew his motion and he also asked Mr. Kang to explain why he wishes these two (2) issues to be placed on the December agenda for discussion.

Mr. Kang distributed to the Council two (2) documents. The first was a copy of HB3349, which created the Drycleaner Environmental Response Trust Fund task force and the second was the minutes from the Council’s May 14, 2009 Council meeting. Mr. Kang stated he wishes the Council to reconsider their decisions on the compliance program modifications and the sunset date extension inasmuch as they will also be reviewed and addressed by the task force once it is up and running. Regarding the compliance program requirements, he stated the Council made modifications at their May 2009 meeting and additional modifications now might be confusing to many drycleaners due to the short timeframe since the last changes. It was noted that it has already been communicated to the compliance programs that the Council is not requiring any CEUs for calendar year 2013 and that the required site inspection timeframe has been extended from every two (2) years to every four (4) years. These modifications were approved by the Council to provide some regulatory relief to the drycleaning industry who feels that they have been subject to over-regulation, which has added additional operating costs and time constraints to their businesses.

Mr. Kang referenced a recent article from a Korean newspaper in which the Korean American Drycleaners Association reported they were taking exception to Council actions from the August 21, 2013 Council meeting. Dr. So translated the last paragraph of the article for the Council.

After additional discussion by the Council, Mr. Kang made a motion to place the compliance program requirement revisions, passed by the Council at the August 21, 2013 Council meeting and reconsideration of extending the Fund’s sunset date, on the December 2013 meeting agenda for further review and consideration. The motion was seconded by Mr. Young Kim. Mr. Polak requested a roll call vote. Voting “no” were Mr. Bredenkamp, Mr. Lewicki, Mr. Daniel Kim and Mr. Polak. Voting “yes” were Mr. Young Kim, Mr. Kang and Mr. Kwak. The motion failed by a vote of 3-4.

  PUBLIC COMMENT PERIOD
 

Mr. Wong Kang, representing the Korean American Drycleaners Association, made some general comments regarding the discussion and interaction on the compliance program requirements and the sunset date extension issues brought forward by Mr. Kang. He suggested the Council adopt a procedure whereby if a Council member wishes an issue reconsidered, they must bring forth and present reasons of why the previous decision made was good or bad and why it should be reconsidered.

  ETHICS TRAINING
 

Mr. Polak suggested the ethics training be deferred until the December 4, 2013 Council meeting. On a motion by Mr. Lewicki and a second by Mr. Daniel Kim, the Council voted 7-0 to defer ethics training until the December 4, 2013 Council meeting.

  CLOSED SESSION
 

Mr. Eriksen noted there were several matters regarding potential litigation for discussion by the Council in Closed Session. On a motion by Mr. Bredenkamp and a second by Mr. Lewicki, the Council voted 7-0 to go into Closed Session at 11:33 a.m.

On a motion by Mr. Bredenkamp and a second by Mr. Lewicki, the Council voted 7-0 to go back into open session at 11:53 a.m.

1.

Mr. Lewicki made a motion to settle all outstanding civil penalties owed by Grace Engineering for $6,000. The motion was seconded by Mr. Bredenkamp and was approved by the Council by a vote of 7-0.

2.

Mr. Lewicki made a motion to settle all outstanding license late payment fees with Playfield Cleaners for $450. The motion was seconded by Mr. Young Kim and passed by a vote of 7-0.

3. On a motion by Mr. Young Kim and a second by Mr. Lewicki, the Council voted 7-0 to settle the 2012 license late fees for Signature Cleaners for $250.
4.

On a motion by Mr. Young Kim and a second by Mr. Lewicki, the Council voted 7-0 to settle 2012 and 2013 license late payment fees for Lion Cleaners for $430.

There being no further business, on a motion by Mr. Bredenkamp and a second by Mr. Lewicki, the Council voted 7-0 to adjourn the meeting at 11:56 a.m.

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