RECEiVED

CLERK~SOFFICE

BEFORE

THE ILLINOIS

POLLUTION CONTROL

BOA1~

282003

STATE

OF ILLINOIS

Pollution

Control Boqrd

McDONALD’S CORPORATION,

)

Petitioner,

)

)PCB

V•

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY,

)

Respondent.

)

NOTICE OF FILING

AND

CERTIFICATE OF SERVICE

The undersigned hereby states on oath that on

this 28th day of July,

2003, copies of Petition

For

Review Of Lust Fund Payment Denial were filed with the illinois

Pollution

Control Board and

served

First

Class

Mail, postage

pre-paid, upon

the parties

named on

the

attached

Service

List.

McDonald’s Corporation

BY~~

its attorney

Barbara A. Magel

Mark D. Erzen

Karaganis, White

& Magel Ltd.

414

North Orleans Street, Suite 810

Chicago, illinois

60610

312/836-1177

Fax 312/836-9083

MDEMc0O1.DOC

SERVICE LIST

John J. Kim, Esq.

Assistant Counsel

Illinois Environmental Protection Agency

Division of Legal Counsel

1021 North Grand Avenue East

Springfield, illinois

62794-9276

CLERK’S

OFFICE

JUL

2003

BEFORE

THE

ILLINOIS POLLUTION CONTROL BOA1~TE

OF ILLINOIS

Pollution

Control Board

McDONALD’S

CORPORATION,

)

Petitioner,

)

)PCB

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY,

)

Respondent.

)

PETITION FOR REVIEW OF LUST

FUND

PAYMENT DENIAL

Pursuant

-~57.8(i)

and

§40

of the

illinois

Environmental

Protection

Act,

415

ILCS

5/57.8(i)

and

5/40,

and

Subpart

of Part

105

of the

Rules of the illinois

Pollution

Control

Board,

il1.Adm.Code

Title

35,

§~105.400

seq.,

Petitioner

McDonald’s

Corporation

respectfully asks the illinois

Pollution

Control Board

review

and

reverse the June 23,

2003

decision of the illinois Environmental Protection Agency insofar as that decision partially denies

McDonald’s

Corporation’s

application

for

reimbursement

from

the

Leaking

Underground

Storage Tank (“LUST”) Fund.

INTRODUCTION

This

appeal

arises

out

of the

June

23,

2003

decision

of the

illinois

Environmental

Protection

Agency

(“TEPA”)

denying reimbursement

from

the Leaking

Underground

Storage

Tank

Fund

for

$31,515.00

costs

that

were

incurred

McDonald’s

Corporation

(“McDonald’s”)

relating

the

remecliation

site

located

22nd

Street

Oak

Brook,

illinois,

IEPA

Incident Numbers 902922

and 952344.

The reason given by IEPA for its denial of

those costs

was that

McDonald’s “failed to

demonstrate

that

the

costs

for ‘compaction’

were

reasonable” as that

term

is used in

§22.1 8b(b)(4)(C) of the Illinois Environmental Protection Act

(the “Act”).

This

appeal

being

filed

because

the

costs

compaction were

demonstrated

“reasonable” as that term is used in the Act in at least two respects:

FIRST, the compaction at issue in this instance was limited only to the amount needed to

insure that the clay soil which

was being used as clean backfill would

not

settle or subside,

and

would

thus

remain

grade.

See

ill.Adm.Code Title

35,

§732.605(a)(9)

(“Types of costs

that

may be

eligible

for payment

from

the Fund include

...

(9)

the placement of clean

backfill to

grade to

replace excavated soil contaminated by petroleum at levels in

excess of the established

corrective

action

objectives.”)

The

compaction

issue

this

instance

did

not

attempt

compact the clean backfill to any specific

density or for any other purpose, and the clean backfill

was

not

tested

for

density.

See

ill.Adm.Code

Title

35,

§732.606(w)

(“Costs

ineligible

for

payment

from

the

Fund

include

but

are

not

limited

to:

...

(w)

Costs

associated

with

the

compaction and

density testing

of backfill material”).

The compaction at issue

in this

instance

was therefore reasonable under the Act because it was necessary

to insure that the clean backfill

would remain at grade.

SECOND,

the

use

soil

clean

backfill

at this

site

—

even

including

the

cost

compaction

—

reduced

the total

cost

of the remediation

below

the cost

that

would

have been

incurred if

crushed

stone

had

been

used

clean

backfill.

The

use

of soil

with

necessary

compaction was therefore

cost-effective

than using

backfill material that

did

not

require

compactionto

remain at grade.

PETITION TO APPEAL

In compliance with ill.Adm.Code Title 35,

105.408, Petitioner McDonald’s Corporation

states as follows

in support of its Petition To Appeal:

The

Petitioner

this

matter

McDonald’s

Corporation

(“McDonald’s”).

McDonald’s is

the owner of a site located at 1120 West 22nd Street in Oak Brook, illinois, 1EPA

Incident Numbers 902922

and 952344.

ill.Adm.Code Title 35, §~l05.400(a),105.402.

The

Respondent

this

matter

the illinois

Environmental

Protection

Agency

(“IEPA”).

IILAdm.Code Title

35,

105.400(b).

This

Petition

being filed to

appeal

the

IEPA’s

decision dated June

23,

2003,

insofar

as that

decision denied $31,515.00

costs

based

upon

IEPA’s

determination that

“the

owner/operator failed

demonstrate

were reasonable...

.“

The IEPA’s

decision is

attached as

Exhibit

ilLAdm.Code Title

35,

105.408(a).

This

Petition

Appeal

being filed within

thirty-five days of service of the

IEPA’s June 23,

2003

decision.

The IEPA’s

June 23, 2003

decision was received after June 23,

2003, thus making this Petition To Appeal timely.

ill.Adm.Code Title 35,

105.408(b).

The grounds

for this

Appeal from

the

IIEPA’s

June 23, 2003

decision is

that the

decision

contrary

the requirements of the

Act.

Section

22.l8b(d)(4)(C)

of the

Act,

415

ILCS 5/22.l8b(d)(4)(C)

(now repealed).

Section

22.18b(d)(4)(C)

the

Act

provided

that,

approved

for

reimbursement from the LUST Fund, a cost had to be demonstrated to be “reasonable.”

Here,

Petitioner McDonald’s

has

demonstrated that

the

costs

were

reasonable.

See

Letter dated May 20, 2003 from Devine and Yung ofMACTEC Engineering and Consulting,

Inc. to Douglas Oakley or IEPA, attached as Exhibit 2.

As that letter indicates, the “compaction”

costs were necessary

to insure only that the clean backfill would remain at grade, and the use of

clay soil as clean

backfill was also cost-efficient,

saving approximately

$50,000 when compared

to the cost of crushed stone.

WHEREFORE,

 McDonald’s

 Corporation respectfully prays that the illinois Pollution

Control Board reverse the June 23, 2003

decision ofthe IEPA, and

approve reimbursement from

the LUST Fund of $31,515.00

in costs relating to compaction.

McDonald’s

BY:

their attorney

Barbara A. Magel

Mark D. Erzen

Karaganis, White & Magel Ltd.

414 North Orleans Street, Suite 810

Chicago, illinois

60610

312/836-1177

Fax 312/836-9083

MDEMc0O1.DOC

LITIGATION

6306237370

07114

‘03

16:24

~

ILUNO1S

ENVIRONMENTAL

PROTECTION AGENCY

1021

N0RTI4

GRAND

Av~LJEEAST,

P.O. ~0x19276,

INON~LO,

ku~ois62794-9276

JAt.~s

ThoMpsoN C(~NTER,

100

WEST

RAM~OU’H,

SLJmz

1 1-300, CHICAOO, IL 60601

Roo

.AcOJEVICH,

COV~RNOR

RENEE

CIPRIANO,

DU~#cTOR

217/782-6762

CERTIF2D

MAU~

JUN

2003

McDonald’s Corporation

Attn~DenKoide

McDonald’s Plaza

Oak Brook, Illinois

60523

Re:

LPC #0434705070

DuPage County

Oak Brook/McDonald’s Corporation

1120

West 22nd Street

LUST Incident Nun3ber 902922

LUST FISCALFIB

Dear Mr.

Koide:

On May

12,

 2003, theAgency

sent

you

a letterregarding the site referen.ced above. Upon

further

review, an additional

voucher for

$1,684.19 will

prepared for

submission to the Comptroller’s

Office

for payment as

funds become available.

 In addition,

there

 are costs from this

claim

which

are

not

being paid.

Listed in AttachmentA are the costs that are not being paid. and the reasons

they are not being paid.

Anunderground storage tank

owneror operatornia.y appeal this decision to the Illinois Pollution

Control Board

(Board) pursuant to Section

57.8(i)

and

 Section. 40 ofth.eBhinois

Environmental

Protection Act. Anowner or

operator who

seelcs

 to appeal

the

Agency’s decisionmay,

within

days afterthe

notii3cation

of

the final Agency

 decision,

petitionfor a hearing

 beforethe

Board;

however,

the

35~day

periodmay be extended fora period of

time not to exceed 90 daysbywritten

notice provided to

the Board

 from,

the appli.can.t

 and theAgency

within the

35-day

initial,

 appeal

period.

For

information

 regarding

the

 ~Iing

 ofan appeal,please contact:

Rocxcotto

4~O2

Nort1~

M~Iri

Streat,

R~ckford,

!L GilD3

—

(875)

~r37-776O

Ej.cip~

—

595

South State, Ei~)p,II. 60123

—(847) 60~•31

BL,gEAU O~

lJ~D.

PtOR~A

—

7620 N,

Ur~Iver~ity

St..

P~or~a,

IL 61614 —1309)

I~93.)

—45005.

Six~JaSiree~

Rd.,

Sprin~fle)~,

62706—

(217) 7~.5I

M’~ior’t—2309 W. MaIn St.,

SUIW

EXHIBIT

LITIGATION

6306237370

 07/14

 ‘03 16:24 N0.7~2

u.~/u~

Page 2

Dorothy Gunn, Cleric

Illinois Pollution Control Board

State of

Illinois

 Center

100 West

RandoJph,

 Suite 11-500

~bicago,

illinois

60601

312/814.3620

Forinformation regarding the filing of

an

extension, please contact:

Illinois Environmental Protection Agency

Division ofLegal

 Counsel

1021 North Grand Avenue East

Springfield,

DJinois

62794-9276

217/782-5544

Ifyou kave any questions, please

contact Lienra

Iiackman or myselfat 217/782-6762.

Sine

1)’,

Deu~’as

E. Oakley, Manager

LUST Claims Unit

Planning & Reporting Section

Bureau ofLand

DEO:LH: ct\03 1 987.doc

cc:

MATEC Engineering &

Consulting,Inc.

LITIGATION

6306237370

 07/14

 ‘03 16:25 NO.f~

~i’~’~

Attachment A

Accounting Deductions

Re:

LPC ~?O434705070

DuPage County

OakBrook/McDonald’s Corporation

1120 West 22nd Street

LUST Incident No. 902922

LUST FSCAL

FILE

Item#

Description ofDeductions

$31,515.00,

deduction in costs that the owner/operator failed to demonsiratewere

reasonable (Section

22.18b(d)(4)(C)

ofthe Environmental Protection Act).

deduction in the amount of

$7,68Ô.OO

was made on the R.W. Collins invoice

numbered 1132324 for the ineligible costs forcompaction.

A deduction in the amount of$2,025.00

Was

made on. theR.W. Collins invoice

numbered 113255 for theineligible costs for compaction..

A deduction

in. the amount of$21,810.00 was made on theR.W.

Collins invoice

numbered #113293 fo~

the ineligible costs for compaction.

LH:ct\03 I988.dcc

MACTEC

May 20, 2003

fllinois Environmental Protection Agency

Bureau ofLand

#24

LUST Claims Unit

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

Attention:

Mr. Douglas E. Oakley

Subject:

Claims

for Reimbursementunder LUST Fund

LPC

#0434705070

DuPage County

McDonald’s Corporation

1120 West22nd Street, Oak Brook, Illinois

IEPA Incident Nos. 902922 & 952344

MACTEC Project No. 52000-2-2681-08

Dear Mr. Oakley::

Referenceis madeto the twa Illinois EnvironmentalProtection Agency (EPA)’s

letters, both dated.

May 12, 2003 addressed to McDonald’s Corporation (McDonald’s) regardingMcDonald’s requests

for reimbursement ofcorrective action costs from the Illinois Underground Storage TankFund for

the

above-referenced

facility.

In the

Agency’s

letter,

$1,234.19

associated

with furnishing

and

installing limestonefor the property and $3 1,96~.00

associated with compaction offill material and

transportation of CA-i crushed stone, were deducted from the costs ofreimbursement.

Based

or’ the

telephone

conversations

between Ms.

Carmen Yung of Mactee

Engineering

and

Consulting of Georgia, Inc., (MACTEC) and Ms. Lieura Hackman of the IEPA on May

15,

2003

and between Ms. Carmen Yung and Ms. Valerie Davis ofthe IEPA on May 16, 2003, MACTEC is

submitting the following informationfor your consideration:

$1,234.19 and $450

—

Cost for Furnishing and Installing Limestone for the Property (R.W. Collins

Invoices #113255)

Crushed stone was used to provide temporary paving over the entrance and exit ways of the subject

property and the

Village of Oak Brook’s

soil pile located at 31~

Street in Oak Brook to facilitate

MACTEC

Engineering

and Consulting,

Inc.

1200

Jorie

Blvd.,

Suite

230

•

Oak

Brook,

IL 60523

EXHIBIT 2

McDonald’s Corporation,

Oak

Brook; Illinois

May

20, 2003

LAW

Project No. 52000~2-2681-O8

Claims

for Reimbursement

movement of

trucks

 during excavation and transportation of contaminated soil and backfill soil.

The crushed stone

was later used as backfill

material

for

part

 of the excavated

areas

 (to provide

support to the asphalt driveway).

 Since it

was used

 as backfill material, the cost for transportation

and

 placing of the limestone at

 the Village of

Oak

 Brook’s

 soil pile should be eligible for

reimbursement.

$31,515

—

 CostforCompaction

The Village of

Oak Brook’s soil

 pile located at3l~~

 Street in

Oak

 Brook

was

 loaded to

trucks and

transported to

and placed

 at the subject property as backfill material (which was

described in R.W.

Collin’s

invoices as

“Load clay

fill

source

pile,

haul

 to 22” St., place

and

 compact with

sheepsfoot roller”).

The backfill soils, after being placed in the

excavations were rolled over by a sheepsfoot roller a

few times in order to

prevent

voids

and

 severe settlement. The “compaction” performed at the site

was part

 of the soil placement

process and

 should notbe treated as compaction accouiing to the

industry standard

 (which would require slower placement in

thin

 lifts, in-place .density testing

and

highercosts).

Therefore, we feel that

 the above cost should be eligible forreimbursement.

Moreover,

the cost

of using the Village of Oak Brook’s

soil

pile

as backfill

material including

loading, transportation and placement at $15.00 per cubic yard is substantially lower than the cost

ofusing crushed stone at $18.00 per cubic yard. In total, McDonald’s has saved more than $50,000

by using the Village of Oak Brook’s

soil instead of crushed Stone.

Also, by using the Village of

Oak Brook’s soil, McDonald’s has helped the Village of Oak Brook

to dispose oftheir unwanted

soil and turned it into use.

McDonald’s

should not be penalized by employing cost saving

and

environmental

conservation methods

site

remediation when McDonald’s

could

have

obtained

fall reimbursement if crushed stone wasused as backfill material.

It is therefore requestedthat the above costs be includedforreimbursement.

•

•~

McDonald’s Corporation, Oak Brook;

Illinois

May 20.

2003

LAWProjectNo. 52000-2-2681.08

Claims

forReimbursement

Should

you

have

any

questions

regarding this

submittal

or require

any

additional information,

please feel free to contact Ms. Carmen Yung at 630-328-0420.

Sincerely,

MACTEC Engineering and Consulting of Georgia, Inc.

•~

C~rt~en

Y. Y~ng

Brian M. Devine, P.E.

Senior Envirohmental Pi~ofessional

Principal

Cc:

DenKoide, McDonald’s