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

P.05

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

2. COMPANY

638

969

7979

TO

13123461859

P.8?

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)