BEFORE
THE POLLUTION CONTROL BOARD
CLERK’S
OFFICE
OF THE STATE OF ILLINOIS
~
2 ~ 2
ILLINOIS
STATE TOLL HIGHWAY
AUTHORITY (Des Plaines South),
Petitioner,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
SThTE OF
ILLINOIS
PoJJutj0~Control Board
)
PCBNo.04-
Jo
)
(LUST Appeal
—
Ninety Day Extension)
)
)
Kenneth W. Funk
Deutsch, Levy & Engel
225 West Washington
Street
Suite
1700
Chicago,
IL
60606
NOTICE
)
PLEASE TAKE NOTICE
that
I have
today
filed
with
the office of the
Clerk
of the
Pollution
Control Board a REQUEST FOR NiNETY DAY
EXTENSION OF APPEAL PERIOD, copies of which
are herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: December 23, 2003
CLERK’S
OFFICE
BEFORE
THE POLLUTION CONTROL
BOARD
OF THE STATE OF ILLINOIS
OEC
2 ~ 2003
STATE OF ILLINOIS
ILLINOIS
STATE TOLL HIGHWAY
)
Pollution
Control
Board
AUTHORITY (Des Plaines South),
)
Petitioner,
)
v.
)
PCB No. 04-
/
03
ILLINOIS ENVIRONMENTAL
)
(LUST Appeal
—
Ninety Day Extension)
PROTECTION AGENCY,
)
Respondent.
)
REQUEST FOR
NINETY
DAY EXTENSION
OF APPEAL PERIOD
NOW
COMES
the Respondent, the Illinois
Environmental
Protection Agency
(“Illinois
EPA”), by
one of its
attorneys, John J. Kim,
Assistant
Counsel and
Special Assistant Attorney
General,
and,
pursuant
to
Section
40(a)( 1) of the
Illinois
Environmental
Protection
Act
(415
ILCS
5/40(a)(1))
and
35
Ill.
Adm.
Code
105.208,
hereby
requests
that
the
Illinois
Pollution
Control Board (“Board”) grant an extension ofthe thirty-five
(35)
day period for petitioning for a
hearing to
April
26,
2004,
or any
other date not
more than a total of one
hundred twenty-five
(125)
days from the date of the Illinois EPA’s final decision.
In support thereof, the Illinois EPA
respectfully states as follows:
1.
On November
18, 2003, the Illinois
EPA issued a final decision to the Petitioner.
(Exhibit A)
2.
On December
15,
2003,
the Petitioner made a written request to the Illinois
EPA
for an
extension oftime
by which
to file
a petition for review, asking the
Illinois EPA join in
requesting that the Board
extend the thirty-five
day
period for
filing
a petition to
ninety
days.
The Petitioner did not represent when the final decision was received.
(Exhibit B)
1
3.
The additional time requested by the parties may eliminate the need for a hearing
in this matter or, in the alternative, allow the parties to
identify issues and limit the scope of any
hearing that may be necessary to resolve this matter.
WHEREFORE, for the reasons
stated
above, the parties request
that the Board,
in the
interest of administrative and judicial
economy, grant this request for a ninety-day
extension of
the thirty-five day period for petitioning for a hearing.
Respectfully
submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Assistant Counsel
Special Assistant Attorney General
Division ofLegal
Counsel
1021
North Grand Avenue, East
P.O.Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143
(TDD)
Dated: December 23, 2003
This filing
submitted
on recycled paper.
2
N~)20 ‘03 16:36 FR WIGHT & COMPANY
630
969
7979
TO
13123461859
P.02
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
1021
NORTH
Git~’Io
AVENUE
EAST,
P.O. Box
19276,
5PR:NCFIELO,
ILLfNOIS
62794-9276,
217..782-3397
JAMgs
R.
THOMPSON
CeNTE~,
100
WEST
RANOOLPH,
SUITE
11-300, CHic~co,II 60601,
31
2-81 4-6026
Roo
R.
5LAGOJEVICH, GOVERNOR
RENEE
CIPRIANO,
DIRECTOR
CERTIFIED
MAIL
7002
3J5O
0000
b2E7
L’Th3
NOV
18
20fl3
Illinois State Toll Highway Authority
Attn:
John Wagner
2700 Ogden Avenue
Downers Grove, IL 60515
Re:
LPC #0310635373
--
Cook County
Des Flames/Des Plaines Oasis (Des Flames South)
Northwest Tollway (1-90), East Bound, Mile Post
4.5
LUST Incident No- 941812
& 20021210
LUST Technical File
Dear Mr. Wagner:
_‘;;~
‘.:__.
-
NOV
20 ~O3
The Illinois Environmental Protection
Agency (Illinois EPA) has reviewed the High Priority
Corrective Action Plan
(plan) submitted for the above-referenced incident.
This plan, dated
August 4, 2003, was received by the Illinois EPA on August 7, 2003.
Citations in
this letter are
from the Environmental Protection
Act (Act) and
35 illinois Administrative Code
(35
111. Adim
Code).
Pursuant to Section
57.7(c)(4)
of the Act and
35
Iii. Mm. Code
732.405(c),
the plan is
approved.
The activities proposed in
the plan are appropriate to demonstrate compliance with Title XVI of.
the Act and
35
IlL
Adm. Code 732.
Please note that all activities associated with the remediation
of
this
release proposed in the plan must be executed in accordance with all applicable regulatory
and statutory requirements, including compliance with the proper permits.
In addition, the budget for the High Priority Corrective Action Plan is modified
pursuant to
S~ctiø~
57.7(c)(4)
of the Act arid
35
III. Adm.
Code 732.405(c).
Based on the modifications
listed in Section 2
of Attachment A, the amounts listed
in Section
1 of Attachment A are
approved.
Please note that the
costs
must be
incurred in
accordance with
the approved plan.
Be
aware
that the amount of reimbursement may be limited by Sections 57.8(e),
57.8(g)
and
57.8(d)
of the Act, as well as 35111. Adrn. Code 732.604, 732.606(s), and
732.611.
NOTE:
Amended plans and/or budgets must be submitted and approved prior to
the issuance of
a No Further Rernediation (NI~R)
Letter.
Costs associated with a plan
or
budget that have not
been approved prior to the issuance of an NFR
Letter will not be reimbursable.
-
4302
North
Main
Str
—
595 South
St
BUREAU
(,‘
1~r.~c,-
I’~OwIA
—
7620
N,
Unh_...._
—
4500
5. Sixth Street
St.,
Des
Plnines, 1L60016-(847)
294-40(X)
~
ri~,
1. 61614
—(309) ~,93-5463
irst
Street. Champ,~i~n,
ft. 61820. (2t~)
278-5800
-
eat,
CoIlinsviIl~.
IL
62234
—
(618) 346-51
20
v,
~v1artnfl.
IL 62959— (61 ~)
993.~20O
217/782-6762
I~1OU20
‘03 16:36 FR WIGHT 5~COMPANY
630 969 7979 TO 13123461859
P.03
Page 2
All
future
correspondence
must
besubmitted to:
illinois Environmental
Protection
Agency
Bureau
of
Land-#24
Leaking
Undergrotind Storage
Tank Section
1021 North
Grand
Avenue
East
Post Office Box 19276
Springfield,IL 62794-9276
Please
submit
allcorrespondence in duplicate
and
include the Re: block shown at the
beginning
of this letter.
An underground storage tanksystem
owner
or
operator may appeal
this decision to the illinois
Pollution Control Board. Appeal rights
are
attached.
Ifyou have
any
questions or
need
further
assistance, please contact
the illinoisEPA project
manager, Steve Jones, at
217/524-1253.
Sincerely,
~4W~O4C,4~
74?I5~N~-.~
Hernando A. Albarracin
Unit Manager
Leaking Underground Storage Tank
Section
Division ofRernediation Management
Bureau of Land
1-1AA:S~STHA
Des
Plaines South Oasis 941812& 20021210CAP& Budget.doc
Attachments:
Attachment A
Appeal Rights
c:
Wight&Co.
Division File
NOL) 20
‘03 16:36 FR tAUGHT
8. COMPANY
630 969
7979
TO 13123461859
P.04
Attachment A
Re:
LPC #0310635373
--
Cook
County
Des Plaines/Des Plaines Oasis (Des Flames South)
Northwest Tollway (1-90),
East
Bound,
Mile
Post4.5
LUSTIncidentNo. 941812& 20021210
LUST Technical
File
Citations
in
this attachment
are
from the Environmental Protection Act (Act) and 35 illinois
Administrative Code
(35
III. Adm.
Code).
SECTION
1
As a
result ofthe illinois
EPA~s
modification(s) in Section
2
of
this Attachment A, the following
amounts are approved:
$1,002.19
Investigation Costs
$3,217.26
Analysis Costs
$7,501.84
Personnel Costs
$1,279.80
Equipmezn Costs
$99,176.60
Field Purchases and Other Costs
/‘~
$4,172.47
Handling Charges
-
SECTION
2
I.
$2,745.00 for an adjustment in costs for monitoring well abandonment.
The Illinois EPA
has determined that these
COsts
are not reasonable as submitted
(Section
57.7(c)(4)(C)
of
the Act and
35
Ill. Adm. Code 732.606(hh)).
One of the overall goals of the financial
review is to assure that costs associated with
materials, activities, and services, are
reasonable
(35
III. Adm. Code
732.505(c)).
Please note that additional information
and/or supporting documentation may be provided to demonstrate the costs are
reasonable.
2.
$38.00 for an adjustment in costs forgroundwater BTEX/MTBE —24 hour turnaround
samples. The illinoisEPA hasdetermined
that these costs are not reasonable as
submitted (Section
57.7(c)(4)(C)
of theAct
and
35 111. Adm. Code732.606(hh)). One of
the overall
goals of the financial review is to
assure
that
costs associated with materials,
activities, and services
are
reasonable
(35
Dl. Adm. Code
732.505(c)).
Please note that.
additional information
and/or supporting documentation may be provided
to demonstrate.
the costs
are
reasonable.
3,
S20,535.00 for an adjustment
in
personnel costs. The illinoisEPA has determined that
these costs are not reasonable as submitted (Section
577(c)(4)(C)
of the Act and 35
111.
Adrn.
Code 732.606(hh)).
One of the overall goals of the financial review is to assure
that costs associated
with materials, activities, and services are reasonable
(35
Ill. Adni.
Code
732.505(c)).
Please note that additional
information andlor supporting
NOL) 20
‘03 16~36FR WIGHT 2~COMPRNY
630 969 7979 TO 13123461859
P.05
Page
2
documentation maybe provided to demonstrate the costs
are reasonable.
4.
$450.00 for an adjustment in costs for support
vehicle.
The flhlnoisEPA
has determined
that these
costs
are
not
reasonable as submitted
(Section 577(c)(4)(C) oftheAct
and
35
01.
Adm.
Code 732.606(hh)). One of
the overall goals of the financial
review is to assure
that costs
associated with materials, activities, and
services are reasonable
(35
111. Adni.
Code 732.505(c)).
Please note
that
additional information and/orsupporting
documentation may be provided to demonstrate the costs are
reasonable.
5.
$77,194.80 for an
adjustment in costs for soil
removal and disposal.
The flhinois EPA has
determined that these costs are not reasonable as submitted (Section
57,7(cX4)(C)
of the
Act and 3511!. Adrn. Code 732.606(hh)).
One of the overall goals of the financial review
is to assure that costs associated with
materials,
activIties, and services are reasonable
(35
111.
Adm. Code 732.505(e)).
Pleasenote
that
additional information and/or supporting
documentation may be provided to demonstrate the costs arc reasonable.
6.
$8,020.33 for an adjustment in costs for backfill.
The illinois EPA has determined that
these costs
are not reasonable as submitted (Section
57.7(c)(4)(C)
of the Act and
35
111.
Adrn. Code 732.606(hh)).
One ofthe overall goals ofthe financial review is to
assure
that costs associated with materials, activities, and services arereasonable
(35.111.
Adm.
Code
732.505(c))
Please note that additional information
and/or
supporting
documentation maybeprovided to demonstrate the costs are reasonable.
7.
$2,16931 for
an apportionment of
J.nvestigation Costs. The IllinoisEPA has determined
that the apportionment shall be based on
the
number of eligible USTs as listed in the
Office of the Illinois State Fire
Marshal’s
letter dated January 9, 1997 (35 ilL Adm. Code
732.608(b)). The illinoisEPAmay
apportion payment ofcosts for plans submitted under,
Section
57
.7(c)(4)(E)(iii) of the Act if:
(1) theowner or operator
was
deemedeligible o
access theFund for
payment
ofcorrective action costs forsome, but not all, of the
underground storage
tanks at
the
site; and (2) the owner or operator
failed
tojustify all
costs attributable to
each underground storage tank
at
the site (Section 57.8(m) of the Act
and 35
Iii.
Adm. Code
732,608).
Total number
of USTs
19
Numberof EIig~ble
USTs
-~
6
Number of Ineligible USTs
13
Percentage
of
Eligible USTs
31.6
Total Volume of USTs (gallons)
261,500
Volume of Eligible USTs (g~ons)
—
60,500
Volume of
Ineligible
USTs (gallons)
201,000
Percentage Volume of
Eljgible USTs
23.1
NOL)
20
‘03 16:37 FR L~JIGHT& COMPANY
630 969 7979 TO 13123461859
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Page 3
8.
$6,963.94 for an apportionment
of Analysis
Costs.
The Illinois EPA has determined that
the apportionment
shall
be based on the number
ofeligible JJSTs as listed in the Office of
the Illinois State Fire
Marshal’s
letter dated
January
9,
1997 (35
Ill.
Adm. Code
732.608(b)).
The flhinois EPA may apportion payment ofcosts
forplans
subnutted under
Section
57.7(c)(4)(E)(iii)
ofthe Act if:
(1) the owner or operator was deemed eligible to
access the Fund for payment
of
corrective action costs for some, but not all, of the
underground storage tanks at the site; and (2) the owner or operator failed to justify all
costs attributable to
each underground storage tank at the site (Section
57.8(m)
ofthe Act
and
35111.
Adm.
Code 732.608).
9.
$16,238.16 foran
apportionment ofPersonnel Costs.
The illinois EPA has determined
that the apportionment shall be based on the number ofeligible USTs as listed in the
Office ofthe Illinois State Fire Marshal’s letter dated January
9,
1997
(35111.
Adn~.
Code
732.608(b)).
The illinois EPA may apportion payment ofcosts for plans
submitted under
Section 57.7(c)(4)(E)(iii) ofthe Act if:
(1) the owner or operator was deemed
eligible to
access the Fund for payment of corrective action costs for some, but not all,
of the
underground storage tanks at the site; and (2) the owner or operator failed
to
justify all
costs attributable to each underground storage tank at the site (Section
57.8(m)
ofthe Act
and 35 ill. Adm. Code 732.608).
-
10.
$2,770.20 for an apportionment ofEquipment Costs.
The Illinois EPA has determined
that the apportionment shall be based on the numberof eligible USTs as listed
in the
Office of the flhinøis State Fire
Marshal’s letter dated January 9,
1997
(35
Iii. Adm. Code
732.608(b)).
The Illinois EPA may apportion payment ofcosts for plans submitted under
Section 57.7(c)(4)(E)(iii) of the Act if:
(1) the owner or operator was deemed eligible
to
access the Fund for payment of corrective action
costs forsome,
but not all, ofthe
underground storage tanks at the site; and (2) the owner or operator failed to justify all
-
costs attributable to each underground storage tank at the site (Section 57.8(m)
of
the
Act
and 35
111. Adm. Code 732.608).
11.
$214,673.40 for an apportionment of Field Purchases and Other Costs.
The Illinois EPA
has determined that the apportionment shall be based on the numberofeligible USTs as
listed
in
the Office ofthe Illinois State Fire Marshal’s letter dated January
9,
1997 (35 Ui.
Adin. Code 732.608(b)).
The Illinois EPA may apportion payment of costs for plans
submitted under Section 57.7(c)(4)(E)(iii) of the Act if:
(1) the owner or operator was
deemed eligible to access the Fund for payment ofcorrective action coSts for some, but
not all, of the underground storage tanks at the site;
and (2) the owner or operator failed
to justify all costs attributable
to
each underground storage tank at the Site (Section
57.8(m) of the Act and 35
Ill.
Adrn.
Code 732.608).
12.
$9,031.55
for an apportionment of Handling Charges.
The Illinois EPA has determined
that the apportionment shall be based on the number ofeligible USTs as listed
in the
Office of the Illinois
State Fire Marshal’s letter dated January 9,
1997 (35 Iii.
Adm. Code
N~’
28
‘83 16:3? FR WIGHT
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969
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TO
13123461859
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Page 4
732.608(b)).
The Illinois EPA may
apportion payment
of
costs
forplans
submitted under
Section 57.7(c)(4)(E)(iii)
of theAct if:
(1) the owner oroperator was deemed eligible
to
access the Fund
for payment ofcorrective action costs for some, but not
all, of
the
underground storage tanks at the site; and (2) the owneror operator failed
to
justify
all
costs attributable to each underground storage tank at the site (Section 57.8(m) of the Act
and
35111.
Adm. Code
732.608).
Budget Adjustment Summary
SJ~THADes Plaines South OasIs 941812 & 20021210 CAP & Budget.doc
Budget
Modifications
Approved
Budget
CAP
Costs as
due to
Approved
Costs aftec
Modifications
Budget Costs
listed in
CAP
unreasonable
Costs
before
Apportionment
due
to
Category
Budget
costS
Anvortionment
(~1.6)
ADoortionrnent
Investigation
$5,916.50
$2,745.00
$3,171.50
$1,002.19
$2,169.31
Analysis
-
$10,219.20
$38.00
$10,181.20
$3,217.26
$6,963.94
?ersonnel_
$44,275.00
$20,535.00
$23,740.00
—
$~0L84
$16,238.16
~quipment
—
$4,500.00
$450.00
$4,050.00
$1,279.80
$2,770.20
Field Purchases
Handling
$399,065.13
-
$85,215.13
$99,176.60
—
$214,673.40
-
$13,204.02
$0.00
$13,204.02
$4,172.47
$9,031.55
Total
—
$477,179.85
$108,983.13
$368,196.72
$116,350.16
$251,846.56
LAW
OFFICES
EARL
A.
DEUTSCH
PAUL
N.
LEVY
TERRYL.
ENGEL
FRANKR.
COl-IEN
JERRY I.
RUDMAN
MICHAEL.
J.
DEVINE
STUART
BERKS
KENNETH
W. FUNK
PHILLIP
J.
ZISOOK
DENNIS
E.
FRISBY
STEVEN
B.
(SAACSON
ALVIN
J.
HELFGOT
JOEL A.
STEIN
BRIAN 0.
SAUCIER
JAMESE.
OHALLORAN
AARON B.
ZARKOWSKY
KAREN
KAVANAGH
MACK
GREGG A.
GAROFALO
JEFFREY
B.
HORWITZ
MOVENDA
MUTHARIKA
KNAPP
DAVID J.
BEN-DOV
CATHERINE GLENN
JOELSON
E-mail: lawyers@dlec.corTl
Website: www.dlec.com
FACSIMILE~(3121
346-I85~
COUNSEL
MARSHALL
D.
KROLICK
ARTHUR
J.
SABIN
VIA FACSIMILE 217-782-9807
AND REGULAR MAIL
Illinois Environmental Protection Agency
Division ofLegal Counsel
1021
North Grand Avenue East
P.O. Box
19276
Springfield, Illinois
62794-9276
Attention: Joim Kim, Esq.
December
15, 2003
Re:
LPC #03 10635373
-
Cook
County;
Des Plaines/Des Plaines Oasis (Des Plaines South)
Northwest To11~vay(1-90), East Bound, Mile Post 4.5
LUST Incident
Nos.
941812
and 20021210
Dear Mr. Kim:
The undersigned,
as a Special Assistant Attorney General, represents the Illinois State Toll
HighwayAuthority in connectionwith the referenced LUST Incidents. Ihave receiveda copyofthe
Agency’s
letter, dated November
18,
2003, modifying
the Authority’s
High
Priority Corrective
Action Plan and Budget previously submitted to the Agency.
A copy ofthat letter is enclosed.
Please be
advised that the Authority does not agree with the Agency’s position as set
forth
in its letter ofNovember 18, 2003; however, in hopes ofresolving the open issues with the Agency,
and avoiding
the necessity of an
appeal
to the Illinois Pollution
Control Board,
our client hereby
requests an extension, pursuant to Sections 40 and 57.8 ofthe Illinois Environmental Protection Act,
to extend the period within which it may appeal the Agency’s decision for an a~litional
ninety (90)
days.
DEUTSCH,
LEVY
&
ENGEL
CHARTERED
SUITE
1700
225
WEST
WASHINGTON
STREET
CHICAGO,
ILLINOIS
60606
(312)
346-1460
It
is
our understanding
that
upon
receipt
of this
letter
you
will pi-oceed
to
prepare
the
necessarymotion for filing with Illinois Pollution Control Board to effectuate the extension. Ifyour
understanding is other than as indicated herein or ifI can provide any further information, please let
us know immediately.
;Your assistance and cooperation is appreciated.
Very truly yours,
Kenneth
.
Funk
KWF/ccf
Enclosures
cc: Victor Azar,
Esq.
Ms.
Mary Kruk
-
161791.2
CERTIFICATE OF
SERVICE
I, the undersigned
attorney
at law, hereby certify
that on
December 23,
2003,
I served
true
and
correct
copies
of
a
REQUEST
FOR
NINETY
DAY
EXTENSION
OF
APPEAL
PERIOD,
by placing true and correct copies in properly sealed and addressed envelopes and by
depositing said sealed envelopes in a U.S. mail drop box
located within Springfield, Illinois, with
sufficient First Class Mail postage affixed thereto, upon the following named persons:
Dorothy M.
Gunn, Clerk
Kenneth W. Funk
Illinois Pollution Control Board
Deutsch, Levy & Engel
James
R.
Thompson Center
225 West Washington Street
100 West Randolph Street
Suite 1700
Suite
11-500
Chicago, IL
60606
Chicago, IL
60601
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
2oe~
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)