BEFORE THE POLLUTION
CONTROL BOARD
CLERK’S OFFICE
OF THE STATE OF ILLINOIS
WET ENTERPRISES,
)
)
Petitioner,
)
~
_-.~
)
PCBNo.~
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
NOV
2
1
2003
Respondent.
)
NOTICE
Dorothy M. Gunn, Clerk
Illinois
Pollution
Control Board
State of Illinois
Center
100
West Randolph Street
Suite
11-500
Chicago, IL
60601
John J.
Kim
Assistant
Counsel
Special Assistant
Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O.
Box
19276
Springfield,
IL
62794-9276
PLEASE
TAKE
NOTICE that I have today filed with the office of the Clerk of
the Pollution Control Board
a Petition for Review of Final Agency Leaking
Underground Storage Tank Decision,
a copy of which is herewith served upon you.
Robert E. Shaw
IL ARDC No. 03123632
Curtis
W. Martin
IL ARDC No. 06201592
SHAW & MARTIN,
P.C.
Attorneys at Law
123
S.
10th Street,
Suite 302
P.O. Box 1789
Mt. Vernon, Illinois
62864
Telephone
(618) 244-1788
•
By
/~urtis W. Martin1/Attorney for
Wei Enterprise
,
Petitioner
vs.
STATE OF ILLINOIS
Pollution Control
Board
BEFORE THE POLLUTION
CONTROL BOARD
CLERK’S OFPia
OF THE STATE OF
ILLINOIS
Al
‘~iOV
2 12003
WET ENTERPRISES,
)
STATE OF ILLINOIS
Poliuti0,~Control Board
Petitioner,
)
vs.
)
PCB
No.
4-
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR
REVIEW
OF FINAL AGENCY
LEAKING UNDERGROUND STORAGE TANK DECISION
NOW COMES the Petitioner,
Wei Enterprises,
(“Wei”), by one of its
attorneys, Curtis
W. Martin of Shaw
& Martin,
P.C., and, pursuant
to Sections
57.7(c)(4)(D) and 40 of the Illinois
Environmental Protection Act (415 ILCS
5157.7(c)(4)(D)
and 40) and
35 Ill. Adm.
Code
105.400-412, hereby requests
that the
Illinois Pollution
Control Board
(“Board”) review the final decision of the Illinois
Environmental
Protection Agency (“Agency”) in the above cause, and in support
thereof, Wei respectfully states as follows:
1.
On July
16,
2003, the Agency issued
a Final Decision to
Wei, a copy of
which is attached hereto as Exhibit A.
2.
On July
23,
2003, Wei made a written request to the Agency
for an
extension of time
by which to file a Petition for review to ninety days, a copy of
which is attached hereto as Exhibit
B.
3.
On August
20,
2003, the Agency joined in Wei’s request that the Board
extend the thirty-five
day period for filing a Petition to ninety days, a copy of which
is attached hereto as Exhibit
C.
4.
The
grounds for the Petition herein are as follows:
Wei submitted to the Agency, through its consultant,
United Science
Industries,
Inc.,
(“USI”)
a Revised High Priority Site Investigation Corrective Action
Plan (“Plan”) and corresponding Budget
(“Budget”) (also collectively referred to
herein as “CAP #3”).
The Plan and Budget satisfy the requirements
of the Act,
415
ILCS
5/1
et seq.,
and the regulations promulgated thereunder,
in that they were
prepared
and fully implemented
in accordance with
generally accepted engineering
practices
and were consistent with the information obtained while implementing
the Plan.
The costs
associated with each activity
and service necessary to
accomplish the goals of the Plan were reasonable
and consistent
and were incurred
in the performance
necessary to meet the minimum requirements
of the Act and the
regulations
promulgated thereunder.
The Agency modified the Plan and Budget and also requires Wei
within that modified Budget to further delineate the groundwater
contamination
by
additional drilling and sampling.
However, the Budget as modified by the Agency
does not permit Wei to receive reimbursement
for costs incurred to date much less
to perform the additional activities to provide the further
delineation the Agency
requires.
A procedural history of this site is required in order to place this
appeal
in its proper perspective.
On September
13,
2000,
the Agency
approved the
Site Classification
Completion Report submitted
by Wei.
On May 29,
2002,
Wei
submitted a High Priority Corrective Action Plan
and Budget
(“CAP #1”) which
proposed soil remediation by an alternative technology of land farming!
aeration/excavation
and disposal.
CAP #1
proposed groundwater monitoring with
a
subsequent
amended
CAP
for groundwater
after the effect ofthe soil remediation
on
the groundwater was determined.
On September
23,
2002, however,
CAP #1 was
denied with the Agency rejecting the alternative technology and requesting an
active groundwater remediation proposal.
In response to the initial Agency denial of CAP #1,
Wei submitted a
second High
Priority Corrective Action Plan and Budget
(“CAP #2”) which proposed
excavation and
disposal as the method of soil remediation
and chemical oxidizing
compound application as the method of groundwater remediation.
The Agency
denied CAP #2
on February
18,
2003, the
120th day following its submittal,
this
time requiring a three dimensional delineation
of the soil contamination
by means
of additional soil borings
and sampling before the proposal of excavation and
disposal would be accepted.
The additional borings
and samples would have
required Wei to incur an estimated additional
$22,000.00 in laboratory charges.
Accordingly, Wei in March 2003 informally requested of the Agency the opportunity
to perform a “vertical extent only” investigation regarding the soil contaminations.
This opportunity
was denied by the Agency on the basis that
a
CAP had to
accompany the investigation.
On April 28,
2003,
Wei submitted the current
Revised High Priority
Corrective Action Plan and Budget
(“CAP #3”), this
time to specifically target
the
bases of the Agency’s denial of CAP #2 as set forth in a cover letter
from USI that
accompanied
CAP #3.
Primarily,
CAP #3 sought to engage in additional
soil
investigation in order to perform a three dimensional delineation of contaminated
soil and clean soil at the site as previously required by the Agency.
By letter dated July
16,
2003, the decision under appeal herein, the
Agency modified
CAP #3 to essentially provide for vertical extent investigation
only
(exactly what Wei had previously informally requested) and denied the proposed
excavation and disposal
approach and budget.
Moreover, the modifications to
CAP
#3
included a requirement
to investigate the south
of the site,
a topic not addressed
in the rejection of
CAP
#1 or CAP #2,
although neither
CAP #1 nor CAP #2
addressed this southern investigation
either.
The Budget within CAP #3 was also
modified to permit the investigation of soil and groundwater contamination to date,
but
not any additional investigation the Agency otherwise requires.
More specifically:
(1)
The Agency’s adjustment of $7,573.18 in handling
charges
associated with subcontractor
charges
for corrective actions was without technical
justification and the modifications to the budget by the Agency were arbitrary
and
capricious.
Further,
the Agency has failed to notify Wei of which actions and
associated
costs are considered corrective actions to which the handling
charges
apply.
(2)
The Agency’s adjustment of $782,330.45
in Investigation
Costs,
Analysis
Costs, Personnel
Costs,
Equipment
Costs, Field Purchases
and other costs
was arbitrary
and capricious
and not supported by any technical justification.
Further, the Agency has not identified for Wei what
costs it considers
directed
toward
corrective action.
Wei’s Plan and Budget within
CAP #3 adequately
address
the need for soil and groundwater contamination
identification and remediation and
the Agency’s modification to each prevent Wei from addressing
either.
(3)
The Agency’s adjustment of $3,583.00 in Investigation
Costs,
Analysis
Costs,
Personnel Costs and Equipment Costs was on a cost incurred basis
with no technical justification and is therefore
arbitrary and capricious.
Wei
maintains that the costs of each item
(a through n) at the time they were incurred
were reasonable and are subject to reimbursement.
(4)
The Agency’s adjustment of $20,575.00
for Personnel Costs as
being inconsistent with the associated technical plan lacks technical justification
and fails to identify the specific costs the Agency considers
corrective action costs.
The Agency’s adjustment
is therefore arbitrary and capricious.
The Plan and Budget submitted
by
Wei contain
a technical scope of
work and associated budget sufficient to complete the investigation
and remediation
at the site.
Each time Wei has presented a new proposal to address a previous
Agency basis
for denial/modification, the Agency then raises
a new and different
basis for denial/modifications.
The Agency’s repeated arbitrary
and capricious
denials/modification of Wei’s proposed Plans
and Budgets obfuscates the Agency’s
primary statutory
mandate
and frustrates
the entire purpose and
goal ofthe Act
and its regulations,
i.e., to protect human health and the environment.
Free
product continues to linger at the Wei site and Wei’s efforts to remediate
it are
hindered and are
at the mercy ofthe Agency’s arbitrary and capricious conduct.
WHEREFORE,
Petitioner, Wei Enterprises,
for the reasons stated
above,
requests that the Board reverse the decision ofthe Agency and rule in favor of the
Petitioner’s request for approval of its Plan and Budget as being reasonable,
justifiable,
necessary,
consistent with
generally accepted engineering practices,
and
eligible
for reimbursement
from the UST Fund,
and that
Petitioner recover its
attorney’s fees
and costs incurred herein pursuant
to 415 ILCS
5/57.8(1) and
35 Ill.
Adm.
Code
732.606(1).
Respectfully submitted,
SHAW
& MARTIN,
P.C.
Robert E. Shaw
IL ARDC
No.
03123632
Curtis W. Martin
IL ARDC No. 06201592
SHAW & MARTIN, P.C.
Attorneys
at Law
123 S.
10th Street, Suite 302
P.O. Box 1789
Mt.
Vernon, Illinois
62864
Telephone
(618) 244-1788
By
At
rney
for
WeiEnterprises~tioner
/~,~‘°/fC
.
~
J
.
~.
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
1021
NORTH GRAND AVENUE
EAST,
P.O.
Box 19276,
SPRINGFIELD,
ILLINOIS
62794-9276, 217-782-3397
JAMES
R.
THOMPSON
CENTER,
100
WEST
RANDOLPH,
SUITE
11-300,
CHICAGO,
IL 60601, 312-814-6026
ROD
R.
BLAGOJEVICH,
GOVERNOR
RENEE
CIPRIANO,
DIRECTOR
217/782-6762
CERTIFIED MAIL
7002
~150
0000
1E24.
0E~1
JUL
162flfl3
Wei Enterprises
Attention:
Susan Wei
529
Maple Street
Shiloh, illinois
62269
Re:
LPC #163 1255004
—
St. Clair County
ShilohfWei Enterprises
529
Maple Street
LUST Incident No.
982904
LUST Technical File
Dear Ms. Wei:
The illinois Environmental
Protection Agency (Illinois EPA) has reviewed the High Priority Site
Investigation
Corrective Action Plan (plan) submitted for the above-referenced incident.
This
information, dated April 28,
2003, was received by the illinois EPA
on April
30, 2003.
Citations
in
this
letter are from the Environmental
Protection Act (Act) and 35
Illinois Administrative
Code (35
III. Adm.
Code).
Pursuant to Section
57.7(c)(4)
of the Act and
35
Iii. Adm.
Code 732.405(c),
the plan is
modified.
The modifications listed below
are necessary, in
addition
to those
provisions already
outlined in
the plan, to demonstrate compliance with Title XVI of the Act
and 35 III. Adm.
Code 732.
Please note
that the activities proposed
in the plan
are for investigative purposes only.
Final
approval for corrective action
activities is
contingent upon the submittal of a High Priority
Corrective Action Plan that documents the results of the proposed investigation
and satisfies the
requirements
set forth in
Section 57.7(c)(l) of the Act and 35
131. Adm.
Code 732.404.
The
required modification(s) is/are as follows:
1.
The investigation
plan includes high
priority
corrective
action
activities
and budget.
However, since the soil
and groundwater contamination have not been
delineated to
the
south
of the site, high priority corrective actionlbudget proposals for this
site cannot be
evaluated.
Therefore,
all
high priority corrective action
activities
and budget proposed in
this plan have not been reviewedlapproved.
The modifications
to this plan include only
high
priority corrective action
investigation
activities
and budget in
order to
develop,
ROCRIORD —4302
North
Main
Street,
Rockford,
IL 61103— (815)
987-7760
•
DES
PLAINES— 9511
W.-Harrison
St.,
Des
Plaines,
IL 60016 —(847)
294-4000
ELG~N
—
595
South State, Elgin,
IL 60123 —(847)
608-3131
PtO~i’.
—
5415
N.
University St.,
Peoria,
IL
61614
—(309) 693-5463
BUREAU
OF
LAND
-
PEoRIA —7620 N. University St., Peoria,
IL 616)4 —(309) 693-5462
•
CNAMPAIGN
—2125
South
First Street, Champaign,
IL 61820—1217)
278-5800
SPRJNCFeLD
—4500
S.
Sixth Street
Rd., Springfield,
IL 62706—1217) 786-6892
•
COLLINSVILLE —2009
MalI
Street, CoIIinsviJt~,IL 62234—1618)
346-5120
MARION
—2309 W.
Main
51., Suite
1 16.
Marion, IL
62959
—16181 9~
U
~
PRINTED
or~RECYCLED
PAREL
.
I
Page 2
propose and submit to the Agency an adequate High Priority
Corrective Action Plan
and
Budget.
The Agency has allotted
for the
investigation
work/plume identification that has occurred
to date (this plan/review does not include activities/budgets
associated with free product).
In addition, the Agency has modified the investigation plan to only
include the “SB”
delineation and the sample analysis associated with .those borings.
Once the results have
been completed and the extent of contamination has been delineated, then a high priority
corrective action
plan can be properly developed for submittal to the Agency.
In addition, since the site has free product, the calculations presented in the investigation
plan cannot be reviewed/approved pursuant to 35 JAC Part 742.
Once
the remediation
activities/free product removal
has been completed use of the Tier II calculations
in
35
IAC Part 742 may be completed for review.
2.
The Agency has determined that the following areas should be included in
the estimations
for the soil/groundwater excavation activities:
BH-15, BH-l6iMW-6, BH-6/MW-2, and
BH-22!MW- 10.
-
3.
The Agency has determined from information currently in
its possession that PNA
contamination exists in the groundwater.
Once
remediation activities
have been
completed, further PNA evaluation in
the groundwater may be necessary.
In addition,
the budget for the High Priority Site Investigation Corrective Action Plan
is modified
pursuant to Section
57.7(c)(4) of the Act
and 35 ill. 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.
Adm. Code 732.604, 732.606(s),
and 732.611.
Please note
that, if the. owner or operator agrees with the iilinoi2 EPA’s modifications,
submittal
of an
amended plan and/or budget, if applicable, is not~required(Section57.7(c)(4) of the Act
and 35 Ill. Adm.
Code 732.503(f)).
Additionally, pursuant to
Section 57.8(a)(5) of the Act and
35
Iii. Adm. Code 732.405(e),
if reimbursement will be
sought for any
additional costs that may
be
incurred as
a result of the Illinois EPA’s modifications,
an
amended budget must be submitted.
NOTh:
Amended plans and/or budgets
must be submitted
and approved prior to the issuance of
a No Further Remediation
(NER)
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.
Pursuant
to 35
Ill. Adm.
Code 732.401,
the site investigation
results
and
a High Priority
Corrective Action Plan demonstrating compiianc.e
with the requirements, set
forth in Section
Page 3
57.7(c)(1) of the Act and
35
Ill. Adm.
Code 732.404 must be
submitted within
90 days of the
date of this letterto:
Illinois Environmental Protection Agency
Bureau ofLand
-
#24
Leaking Underground Storage Tank Section
1021 North Grand Avenue East
Post Office Box
19276
Springfield, IL
62794-9276
Please submit
all correspondence in
duplicate and include the Re: block shown
at the beginning
of this
letter.
An underground storage tank system owner or operator may appeal
this decision to the Illinois
Pollution Control Board.
Appeal rights are attached.
If you have any questions or need further assistance, please contact Mindy Weller at 2 17/782-
6762.
Sincerely,
Chappél, P.E.
Unit Manager
Leaking Underground’Storage Tank Section
Division of Remediation Management
Bureau of Land
HAC:MW:mw\982804-5.DOC
Attachment:
Attachment A
cc:
Bob Pulfrey, UST
Division File
Appeal Rights
An underground storage tank owner or Operator may appeal
this
final decision to the Illinois
Pollution
Control Board pursuant
to Sections 40
and 57.7(c)(4)(D) of the Act
by filing a petition
for a hearing within
35
days after the date ofissuance of the final decision.
However, the 35-day
period may be extended for a period of time not to
exceed 90 days by written notice from
the
owner or operator and the Illinois EPA within the initial 35-day appeal
period.
If the owner or
operator wishes to receive a 90-day
extension, a written request
that includes a
statement of the
date the final decision was received, along with
a copy of this
decision, must be sent to the
IllinOis EPA as soon as possible.
For information regarding the filing of an appeal, please contact:
Dorothy Gunn, Clerk,
Illinois
Pollution
Control Board
State of Illinois Center
100 West Randolph, Suite 11-500
Chicago, IL
60601
312/814-3620
For information regarding the filing of an extension, please contact:
Illinois Environmental Protection
Agency
Division of Legal Counsel
1021 North Grand Avenue East
Post Office Box
19276
Springfield, IL
62794-9276
217/782-5544
1’
Attachment A
Re:
LPC.#
1631255004—
St.
Clair County
Shiloh/Wei Enterprises
529
Maple Street
LUST Incident No. 982804
LUST Technical
File
Citations in this
attachment are from the Environmental Protection Act
(Act) and 35 Illinois
Administrative Code (35 Ill.
Adm.
Code).
SECTION
1
As
a result of the Illinois EPA’s modification(s) in
Section
2 of this Attachment A, the following
amounts are approved:
$20,430.84
$31,021.00
$17,050.00
$2,048.00
$53.15
$35.18
SECTION 2
Investigation Costs
Analysis
Costs
Personnel Costs
Equipment Costs
Field Purchases and Other Costs
Handling Charges
7
1.
$7,553.18
for an
adjustment in
handling charges.
Handling charges are eligible for
payment only if they are equal
to
or less than the amount determined by the following
table (Section 57.8(g) of the Act and
35 Ill.
Adm.
Code 732.607):
Subcontract or Field
Purchase Cost:
$0~$5,U00
$5,001
-
$15,000’
$15,001
-
$50,000
$50,001
-
$100,000
$100,001
-
$1,000,000
Eligible flandling Charges as a
Percentage of Cost:
12
$600 plus
10
of amount over $5,000
$1,600 plus
8
of amount over $15,000
$4,400 plus 5
of amount over $50,000
$6,900 plus 2
of amount over $100,000
The plan includes subcontractor charges for actions that are considered corrective actions
that are not a part of the Agency modified investigation plan associated with
this budget.
Therefore, the Agency has modified the budget to reflect the modifications to the plan.
2.
$782,330.45 for an
adjustment in
Investigation Costs, Analysis
Costs, Personnel
Costs,
Equipment Costs, Field Purchases and
Other Costs.
These costs
are inconsistent with the
Page
2
associated technical
plan.
One of the overall
goals of the financial review is
to
assure
that costs
associated with
materials, activities, and
services shall be consistent with
the
associated technical
plan
(35 Ill.
Adm. Code 732.505(c)).
The budget includes costs that are considered corrective action costs that are not
a part
of’’
the Agency modified investigation plan associated with this
budget.
Therefore,
the
Agency has modified the budget to reflect the modifications to the plan.
The Agency has allotted for the investigation work/plume identification that has occurred
to date (this
plan/review does not include
activities/budgets associated
with free product).
In addition,
the Agency has modified the investigation plan to only include the “SB”
delãneation and the sample analysis associated with those borings.
Once
the results have
been completed and the extent of contamination has been delineated, then
a high priority
corrective action plan can be properly developed for submittal to
the Agency.
3.
$3,583.00 for an
adjustment in
Investigation Costs, Analysis Costs, Personnel
Costs and
Equipment Costs.
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 ofthe financial review is to
assure that costs
associated with materials,
activities,
and services are reasonable (35 Ill. Adm.
Code 732.505(c)).
Please note that
additional information and/or supporting documentation may be provided to demonstrate
the costs
are reasonable.
.
The budget includes the following costs
that do not
appear reasonable to the Agency as
charged:
a.
Cost per
disposable camera;
b.
Cost per unit of gloves;
c.
Cost per unit of bailers (both teflon and poly);
d.
Cost per unit Of 2”expandable plug;
e.
Cost per unit of 2”xlO’
riser;
f.
Number/cost per unit of bentonite enviro plug;
g.
Cost per moisture content soil
sample;
h.
Cost per saturation/porosity soil sample;
i.
Cost per PNA soil
and groundwater sample;
j.
Hours for Drilling Forman,
Rig. Hand and Laborer for the tasks listed
to be
performed.
The costs
for those
tasks should be included in the boring per foot
charge;
k.
Hours for Project Coordinator for the tasks listed
to be performed;
1.
Costs for VOA. sample preservation kit since
it
was
already
allotted for in the
investigation
costs;
m.
Costs for data logger and transducer;
and
n.
Cost per unit rate for PhD.
Page
3
4.
$20,575.00 for an
adjustment in
Personnel
Costs.
These costs are inconsistent with the
associated technical plan.
One of the overall
goals of the financial review
is to
assure
that costs associated with
materials, activities, and services shall be consistent with
the
associated technical plan (35 Ill.
Adm.
Code 732.505(c)).
The budget includes costs that are considered corrective action costs that are not
a part of
the Agency modified investigation plan
associated with this budget.
Those costs include
the following:
a.
Hours for Professional
Engineer for the tasks listed to be performed;
b:
Hours for Project Manager for the tasks listed
to
be performed;
and
c.
Hours for Draftsman for the tasks listed
to be
performed.
In addition,
the above costs are not reasonable
as submitted (Section 57.7(c)(4)(C) of the
Act and 35 III. 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
Ill. Adm.
Code
732.505(c)).
Please note that additional
information
and/or supporting
documentation may be provided to
demonstrate the costs are reasonable.
HAC:MW:mw\982804-5Attachment A.DOC
P.O.
Box36Q
6295
East Illinois Highway 15
Woodlawn,
Illinois
62898-0360
July23, 2003
Illinois Environmental Protection Agency
Division ofLegal Counsel
1021 North Grand Avenue East
Springfield, IL 62794-9276
Attn:
John Kim
Re:
LPC# ‘1631255004
—
St. Clair
County
ShUohWei Enterprises
529 M;ipte St.
LUST h~cident
No. 982804
LUST TECENICAL
FILE
Corrertive Action Plan
Dear
Mr.
Kim:
Phone:
(618) 735—2411
Fax: (618) 735—2907
s-Mall; unitedscicnce~
unitedactence..com
R~CE~VED
Division
of Le~aI
Counse’
JUL
25
2C;Th
Environmental
Protection
Agency
United’
ScIence
Industries,
Inc.
(tJSI),
on
behalf of our
client,
Wei
Enterprises,
is
requesting
a
90-day
extension
of the
35-day
appeal
period
in
regards
to
the
IEPA
correspondence
ofJuly
16, 2003, included
herein.
I
appreciate your time
and
consideration
in
this
matter.
If you
have any
questions
or
comments regarding this matter please contact
me at 618-735-2411
ext.
145.
Sincerely yours,
UNITED
SCIENCE
rNDUSTRIES, INC.
Enclosures
RIP;crt
EXHIBIT
UNITED
SCIENCE INDUSTRIES
Robert
J. Puiftey
Project Manager
BEFORE THE POLLUTION CONTROL BOARD
OF
THE
STATE
OF ILLINOIS
WEI
ENTERPRISES,
)
Petitioner,
)
v.
)
PCBNo.04-
ILLINOIS ENVIRONMENTAL
)
(LUST Appeal
—
Ninety Day Extension)
PROTECTION AGENCY,
)
Respondent.
)
REO’ITEST 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
111.
Adm.
Code
105.208,
hereby requests
that
the
Illinois
Pollution
Control Board (“E;oard”) grant an extension of the thirty-five
(35)
day period for petitioning for a
hearing to Noverr±~er
18, 2003,
or any
other date not more than a
total of one hundred twenty-
five
(125) days
from
July
16,
2003,
the
date of the
Illinois
EPA’s
final
decision.
In
support
thereof, the Illinois EPA respectfully states as follows:
1.
Or..
July
16,
2003,
the
illinois
EPA
issued
a
final
decision
to
the
Petitioner.
(Exhibit A)
‘
2.
On July
23,
2003,
the Petitioner made a written
request to the Illinois EPA
for an
extension of
time
by which to file
a petition for review, asking
the Illinois EPAjoin 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)
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.
,.
.
.EXHI.BIT~
WHEREFORE,
for
the reasons stated
above,
the parties request that
the
Board,
in
the
interest of adruinist:ative 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
JohnJ.
~m
Assistant Counsel
Special Assistant Attorney General
Division of Legal
Counsel
1 O2LNorth Grand Avenue, East
P.O.
Box 19276
Springfield,
Il1inoi~62794-9276
217/782-5544
217/782-9143
(TDD)
Dated: August 20,
2003
This filing
submitted
on
rccycled pnpcr.
2
I
~.‘V.
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
1021
NORTH~RANO
AV~NU~
E.Asr,
P.O.
~ox
19276,
SPgINC~IELO,IWNOIs
62794-9276,
217-782-3397
JAMES
R.
T,.~OMPSON
C~NT~R,
1 00
WEST
RANDOEPH,
SurrE
11-300. CHlc~~co,
IL 60601,
312-83 4-6026
Roo
R.
BLACOJEVICH,
GOVERNOR
RENEE
CIPRIANO,
DIRECTOR
217/782-6762
CERTIFIED
MAIL
“02
3150
0000
1E2.4
0E~1
ft
JUL
16
2~U~
Wei Enterprises
Attention:
Susan W~:i
529
Maple Street
Shiloh, Ilinois
62269
Re:
LPC #1631255004
St. Clair County
Shiloh/Wei Enterprises
•529 Maple Street
LUST Incident No.
982904
LUST Technical File
Dear Ms. Wei:
The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the High Priority Site
Investigation Corrective Action Plan (plan) submitted
for the above-referenced incident.
This
information,
dated April
28, 2003,
was received by the Illinois EPA on
April 30,
2003.
Citations
in this letter are
from the Environmental Protection Act (Act) and 35
illinois Administrative
Code (35
111. Adm. Code).
Pursuant
to
Section
~7.7(c)(4) of the Act and 35
III. Adin.
Code 732.405(c), the plan is modifed.
The modifications
listed below are necessary, in addition
to those provisions already outl’ir~ed
in
the plan, to
demonstrate compliance with Title XVI of the Act and 35
111.
Mm.
Code 732..
Please note that the activities IDroposed in the plan are for investigative purposes only.
Final
approval for correcti’~’e
action activities is contingent upon the submittal of
a. High Priority
Corrective Action Plan that documents the results of the proposed investigation
and satisfies the
requirements set fort~i
in
Section 57.7(c)(1) of the Act and 35
Dl. Adm.
Code 732.404.
The
required modification(s) is/are as follows:
1.
The investigation plan includes high
priority corrective action
activities
and budget.
However, since the soil
and groundwater contamination have not been delineated to
the
south
of the site, high priority corrective actionlbudget proposals for this site cannot be
evaluated.
Therefore, all
high priority corrective action
activities and budget proposed in
this plan havi~
not been reviewedlapproved.
The modifications
to this plan include only
high
priority corrective action investigation
activities and budget in order to develop,
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—
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60016
—
(841)
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ELGIN.—
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South 5i~eEI~in,
I
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1614—
(309)
693-5463
8UR~AUO~L~D
.
PEORIA
—
7620
N. Unive’siry Si.,
—
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~
IL
61820—
(217)
278-5800
SPRINCfIELO
—
4S00
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Iin~vi)Le,IL
62234
.-
(618)
346-3~1
20
PRINran
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PAp~e
Page 2
propose and submit to the Agency an
adequate High Priority Corrective Action
Plan
and
Budget.
The Agency h:~s
allotted for the investigation worl’~JpIumeidentification that has occurred
to date (this planlreview does not include
activities/budgets
associated with free product).
In addition, the Agency has modified the investigation plan to only include the “SB”
delineation
arni the sample analysis associated with -those borings.
Once the results
have
been completed and the extent of contamination has been delineated, then a
higFi priority
corrective action plan can be properly developed for submittal to the Agency.
In addition, si-ice the site has free product, the calculations presented in
the investigation
plan cannot bc revi~yied/approved
pursuant to 35 IAC Part
742.
Once the remediation
activities/free product removal has been completed use of the Tier II calculations in
35
Lr\C Part
742 may be completed forreview.
2.
‘The Agency has detexmined that the following areas should be
included in
the estimations
for the soil/groundwater excavation activities:
BH-15, BH-161MW-6, BH-6/IvfW-2,
and
BH-22/MW-) 0.
3.
The Agency Las determined from information currently in its possession that PNA
contamination exists in
the groundwater.
Once
remediat~ion
activities have been
completed, further PNA evaluation in the groundwatermay be necessary.
-
In addition, the budg3t for the High Priority Site Investigation Corrective Action Plan
is modified
pursuant
to Section 57.7(cX4)’.of the Act and
35
IlL Acim. 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 (he amount of reimbursement may be limited by Sections 57.8(e),
57.8(g)
and
57.8(d) of the Act, as well as 35
III. Adm. Code 732.604,
732.606(s), and 732.611.
P1ea~note that, if the owner or operator agrees with the Illinois EPA’s modifications,
submittal
of an amended
plan and/or budget, i1~pplicable,
is not required (Section
57.7(c)(4)
of the Act
and 35 III. Adm. Code 732.503(f)).
Additionally, pursuant to
Section 57.8(a)(5) of the Act and
35 IlL Adm. Code 732.405(e), if reimbursement will be
sought for any
additional costs that may
be incurred as
a result of the Illinois EPA’s modifications,
an amended budget must be submitted.
NOTE:
Amended p
aria and/or budgets must be submitted
and approved prior to the issuance of
a No Further Remediation
(NFR) 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.
Pursuant to 35 lll;Adm. Code 732.40 1, the site investigation results and a High Priority
Corrective Action
P
an
demonstrating compliance with the requirements set forth in Section
Page 3
57.7(c)(1) of the
Act and
35
Iii. Adm. Code 732.404 must be submitted within
90
days of the
date of this letter to:
Illinois
Environmental Protection
Agency
Bureau of Land
-
#24
Leaking Underground Storage Tank Section
1021 North Grand Avenue East
Post Office Box
19276
Springfield,
IL
~2794-9276
Please submit
all correspondence in duplicate and include theRe: block shown at the beginning
of this letter.
-
An
underground stora;~etank system owner or operator may appeal
this decision to
the Illinois
Pollution Control Board.
Appeal rights
are attached.
If you have any questiDns or need further assistance, please contact Mindy Weller at 217/782-
6762.
Unit Manager
Leaking Underground Storage Tank Section
Division ofRemedianon Management
Bureau of Land
HAC:MW:mw\982804-5
.DOC
Attachment:
Attachment A
cc:
Bob Puifrey, USI
Division File
Sincerely,
Appeal Rights
An underground storage tank owner or operatormay appeal
this final decision to
the Illinois
Pollution Control Board pursuant to
Sections 40 and 57.7(c)(4)(D) of the Act
by filing a petition
for a hearing within
35 days after the date of issuance of the final decision.
However, the 3:5-day
period may be extend~d
for a period oftime not to
exceed 90 days by written notice from
the
owneror operator and the Illinois EPA within the initial 35-day appeal period.
If the owner or
operator wishes to receive a 90-day extension,
a. written request that includes a statement ofthe
date the final decision was received, along with a copy ofthis decision, must be sent to the
Illinois EPA as soon
as possible.
-
For information regarding the filing of an appeal1 please contact:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
State ofIllinois Center
100 West Randolph, Suite 11-500
Chicago1 IL
60601
312/814-362.0
For information regarding the filing of an
extension, please contact:
Illinois Env:.ronmental Protection Agency
Division of Legal
Counsel
1021 North Grand Avenue East
Post Office Box
19276
Springfield. IL
62794-9276
217/782-5544
-
-
-
.Page2
associated technical
plan.
One ofthe overall goals of the financial review
is to
assure
that costs assoc:iated
with materials, activities, and services shall be
consistent with the
associated
technical plan (35 Ill. Adrn. Code 732.505(c)).
The budget includes costs that are considered corrective action costs that are not a part of
the Agency modified investigation plan associated with this
budget.
Therefore, the
. -
Agency has modified the budget to reflect the modifications to the plan.
The Agency has allotted for the investigation
work/plume identification that has occurred
to date (this pltriIreview does not include activities/budgets
associated with
free product).
In addition, the Agency has modified the investigation plan to only include
the “SB”
delineauon
and the sample analySis~
associated with those borings.
Once the results have
been completed
and the extent ofcontamination has been delineated,
then a high priority
corrective actiOn plan can be properly developed for submittal
to the Agency.
3.
$3,583.00 for an
adjustment in Investigation Costs, Analysis Costs, Personnel Costs and
Equipment Costs.
The Illinois EPA has determined that these costs
are not reasonable
as
submitted (Section 57.7(c)(4)(C) of the Act and 35 III. Adm. Code 732.606(hh)).
One of
the overall goztls 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 infcrmation and/or supporting documentation may be provided to demonstrate
the costs
are r~asonab1e.
The budget includes the following costs that do not appear reasonable to the Agency as
charged:
a.
Cost per disposable camera;
b.
Cost p’~r
unit of gloves;
c.
Cost p~r
unit of bailers (both teflon and poly);
d.
Cost per unit of 2”expandable plug;
e.
Cost per unit of 2”xlO’ riser;
f.
Numbnr/cost per unit ofbentonite enviro plug;
g.
Cost p~r
moisture
content soil
sample;
h.
Cost per saturationlporosity soil sample;
i.
Cost per PNA soil
and groundwater sample;
j.
Hours for Drilling Forman, Rig Hand and Laborer for the tasks listed to be
perfoimed.
The costs for those tasks should be included in the boring per foot
charge;
k.
Hours for Project Coordinator for the tasks listed to be performed;
1.
Costs for VOA sample preservation kit since it WaS
already allotted for in the
investi gation
costs;
m.
Costs
~ordata logger and transducer; and
n.
.
Cost per unit rate for PID:
Page
3
4.
$20,575.00
fcr an
adjustment
in Personnel
Costs.
These Costs are inconsistent with the
associated
technical plan.
One of the overall
goals of the financial review is
to assure
that costs associated with materials, activities,
and services shall be consistent with
the
associated technical plan
(35
Iii.
Adm. Code
732.505(c)).
The budget includes costs that are considered corrective action costs that are not a part of
the Agency modified investigation plan
associated with
this budget.
Those costs include
the following:
-
a.
Hours. for Professional Engineer for the tasks listed to
be performed;
b.~
Houm. for Project Managerfor the tasks listed to be performed; and
c.
Hour~
for Draftsman for the tasks listed
to be performed.
In addition,
the
above costs are ~ot reasonable as submitted (Section 57.7(c)(4)(C) ofthe
Act and
35
Ill.
Adzn. 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. Adm. Code
732.505(c)).
Please note that additional information and/or supporting
documentation may be provided to demonstrate the costs
are reasonable.
IAC:MW:mw\9
82~
04-5Attachment A.DOC
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that
on November
~
2003,
I served true and correct copies of a Petition for Review of Final Agency
Leaking Underground Storage Tank Decision, 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 Mt. Vernon,
Illinois,
with sufficient
Certified
Mail postage affixed thereto,
upon the following named persons:
Dorothy M. Gunn,
Clerk
John J. Kim
Illinois Pollution
Control Board
Assistant
Counsel
State
of illinois
Center
Special Assistant
Attorney General
100 West Randolph Street
Division of Legal Counsel
Suite
11-500
1021 North Grand Avenue, East
Chicago, IL
60601
P.O.
Box
19276
Springfield,
IL
62794-9276
~
/C~irtisW. Martin,
~~orney
for
(
Petitioner, We,?erprises
