NOTICE OF FILING
L. Keller Oil Properties, Inc.
CERTIFICATE OF SERVICE
PETITION FOR REVIEW OF ILLINOIS ENVIRONMENTAL PROTECTIONAGENCY DECISION
L. Keller Oil Properties, Inc.
EXHIBIT.
CERTIFiCATE OF SERVICE
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
1021 North Grand Avenue, East
P.O. Box 19276
BEFORE THE POLLUTION CONTROL BOARDOF THE STATE OF ILLINOIS
OF APPEAL PERIOD
EK:EK\
EXHIBIT

R~~1VED

BEFORE THE

POLLUTION CONTROL BOARD

CLERK’S

OFFICE

OF THE STATE

OF ILLINOIS

NOV

032004

KELLER OIL PROPERTIES,

INC. /

)

STATE OF ILLINOIS

EFFINGHAM

DOWNTOWN

SUPER K

)

PoIl~tj~n

Control

Boarc~

)

Petitioner,

)

PCB 05-22

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

NOTICE

OF FILING

TO:

John Kim

Special Assistant Attorney General

Illinois Environmental Protection Agency

1021

North Grand Avenue East

P.O. Box

19276

Springfield,

Illinois

62794-9276

PLEASE TAKE NOTICE

that

on Noveiriber 3, 2004,

filed with the Clerk ofthe Illinois

Pollution

Control

Board

of the

State

illinois

original,

executed

copy

of a

Petition

for

Review of Illinois Environmental Protection Agency Decision.

Dated:

November 3, 2004

Respectfully submitted,

L. Keller Oil Properties, Inc.

By:

One of Its Att~neys

Carolyn S. Hesse

Barnes

& Thornburg LLP

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606

(312)357-1313

IThis

filing

submitted

recycled

paper as defined in 35

III.

Adm. Code

10 1.2021

CERTIFICATE OF SERVICE

oath

state

that

have

served

the

attached

Petition

for

Review

Illinois

Environmental Protection Agency Decision by placing a copy in

an envelope addressed to:

John Kim

Special Assistant Attorney General

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O.

Box

19276

Springfield, Illinois 62794-9276

from

One North Wacker

Drive,

Suite

4400,

Chicago,

Illinois,

before the hour of 5:00

p.m.,

this

3rd

Day ofNovember, 2004.

Carolyn S.

Hes’~se

CRDSOI

CSI-1244143v1

This

filing

submitted

on recycled paper as defined in

III.

Adm. Code 101.2021

RECE~VED

BEFORE

THE POLLUTION

CONTROL BOARD

CLERK’S

OFFICE

OF THE STATE OF ILLINOIS

NOV

032004

KELLER OIL PROPERTIES,

INC.!

)

STATE OF

ILLINOIS

EFFINGHAM/DOWNTOWN SUPER K

)

Pollution

Control Board

)

Petitioner,

)

PCB No. 05-22

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

PETITION FOR REVIEW OF ILLINOIS ENVIRONMENTAL

PROTECTION

AGENCY DECISION

Keller

Oil

Properties,

Inc.,

its

attorney,

Carolyn S. Hesse of Barnes

Thornburg,

pursuant to the Illinois Environmental

Protection Act,

415

ILCS

5/1

et.

seq.

(the “Act”)

and

Illinois

Administrative

Code

Section

105.400

et.

seq.,

hereby

appeals

certain decisions

the

Illinois Environmental Protection Agency (the”Agency”).

Keller

Oil

Properties,

Inc.,

the

owner of underground

storage

tanks

USTs

at a former gasoline service

station located at

203

South 3~’Street,

Effingham,

Effingham

County,

Illinois

(the

“Station”).

This

gasoline

service station was

also known as “Downtown Shell”

and

is referred

IEPA’s

records

“Effingham!Downtown

Super

K”.

The

USTs

stored

gasoline.

LUST

Incident

Number

970848

was

obtained

following

site

investigation.

The

site

has

also

been

assigned

LPC

#0490255 121-

Effingham County.

This tiling submitted

on recycled

paper as

defined

in 35

III.

Adm. Code 101.2021

May

17,

2004,

the

Agency

received

Amendment

the

High

Priority

Corrective

Action Plan

Budget

(“Budget”)

for

corrective

action

performed

for

the

Station.

The

Budget

dated

May

14,

2004.

See

Exhibit

letter

dated

June

30,

2004,

the

Agency

rejected

the

Budget.

See

Exhibit

The

Agency’s

letter alleged that

the

costs

are not

corrective

action

costs

and

that

the

costs

of the alternative

technology

exceed

the

costs ofconventional technology.

The Agency’s letter of June 30,

2004 provides

additional

information

regarding why JEPA rejected the Budget.

Petitioner believes

the costs

at issue are reasonable corrective

action costs

and that the Agency should approve the Budget.

IEPA’s

actions

are

arbitrary

and

capricious

and

without authority

under

the

Illinois

Environmental

Protection

Act

and

Petitioner

appeals

the

decision in the Agency’s June 30, 2004 letter.

The parties timely filed

Request

for Ninety

Day

Extension

of Appeal

Period.

See

Exhibit

Order

dated

August

19,

2004,

the

Illinois

Pollution

Control Board

extended the appeal period to November 3, 2004.

See Exhibit4.

IThis

filing

submitted

recycled paper as

defined in 35

III. Adm. Code 101.2021

WHEREFORE, Petitioner,

Keller Oil Properties,

Inc.

respectfully requests that

the Board enter an order requiring the Agency to

approve for payment the costs that were

denied in the June 30, 2004 letter and for Petitioner’s attorneys’ fees

and costs in bringing

this appeal.

Respectfully submitted,

Keller Oil Properties, Inc.

By:

O~of Its At~neys

Carolyn S. Hesse, Esq.

Barnes & Thornburg LLP

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606

(312)357-1313

CHDSOI CSH244O98v1

This

filing submitted

on recycled paper

defined

Ill. Adni.

Code 101.2021

C~\VI~’1

COmpany

Environmental Consulting Services

May

14,

2004

Mr.

Eric Kuhiman,

Project Manager

LUST Section,

Bureau of Land

Illinois

Environmental -Protection Agency

1021

North Grand Avenue

East

Springfield,

Illinois

62794-9276

RE:

LPC#0490255121—Effingham County

Effingham/L. Keller Oil Properties, Inc.!

Downtown Shell

203

South

3rd

Street

Incident Number

97-0848

LUST

Technical Reports—Corrective Action Plan Budget Amendment

Dear Mr. Kulilman:

On behalf of L.

Keller Oil Properties, Inc.,

we are submitting this

Corrective Action

Plan

(CAP)

Budget Amendment.

This

amendment includes

costs

for site restoration,

building

demolition,

the construction of access roads

into the farm fields,

lysirneter

sampling

trips

and personnel time,

landfarm operations,

and

the removal of debris

from

the farm fields following spreading

and disking

operations.

The donstruction of access roads into the

fields was not included in any of the prior

submittals,

but

was necessary

in order to

get loaded trucks

into the stockpile locations.

The estimated costs

include 264 tons

of aggregate,- the trucking costs

(22 loads

hour per load),

and the cost for a laborer and backhoe to dump the trucks

and grade the

rock (16 hours

each).

The issued land

application permit requires that concrete

or asphalt pieces larger than

2”

diameter not be spread

or left in the application area.

Removing

the materials

required two laborers and

a backhoe

eight-hour days to

patrol the application

areas

and remove the debris.

The debris was taken for recycling,

and two hours of trucking

were needed.

Although lysimeter sampling was included in

prior submittals,

the travel to

the site,

and

the personnel

time required was not included.

Therefore,

trips for a technician to

the farm are included,

assuming each trip requires

hours.

In the original

approved budget,

a backhoe was included at the landfarm for 14 days,

while spreading was estimated to

take 26

days.

Obviously,

a backhoe

is required to

load the spreader,

additional backhoe days were needed.

Additionally,

10 days of

stockpiling were

done without spreading.

Similarly, the personnel at the landfa

ere

EXHIBIT

701

South Grand Avenue

400

West Jackson, Suite C

Springfield,

62704

Marion,

IL 62959

(217)

522-8001

(618) 997-2238

CW~MCompany,

Inc.

Keller/Downtown Shell

Letter to Eric

Kuhiman

Page 2

estimated to for

days,

while 36

were needed between stockpiling

and spreading.

The budget reflects the additional personnel costs

and mileage for them.

In addition the handling

charges for the site restoration

costs

have been included,

have the costs

for preparing the budget amendment.

Each of these items

necessary to

accomplish the work required in the approved CAP in compliance

with the applicable

regulations.

Should you have

any

questions

or require additional information, please

contact Mr. Vince Smith or me at (217.)

522-8001.

Thank you

for consideration of our

request.

Rowe, P.G.

Senior Environmental Geologist

xc:

Mr. Charles Keller,

Keller Oil Properties, Inc.

Mr. William T.

Sinnott,

CW3M Company, Inc.

D:\CW3M Projects\K97-0848\CAP\CAP 5-04\CAP

budget add

.doc

Illinois Environmental Protection Agency

Owner/Operator and Professional Engineer Budget Certification Form for

Leaking Underground Storage Tanks

Sites

accordance with

415

ThCS

5/57,

ifan owner or

operator intends

to seek payment

from

the

UST Fund,

an owner or operator must submit to the Agency, for the Agency’s approval or modification, a budget

which includes an

accounting of all

costs associated

with

the implementation of the investigative,

monitoring and/or corrective action plans.

I hereby certify that I intend to

seek payment from the UST Fund for performing

Corrective

Action

activities at

Downtown

Shell

LUST

site.

I further certify that the

costs set forth in

this

budget are necessary activities

and

are

reasonable

and

accurate to the best of my knowledge and belief.

I also certify that the costs included in this budget

are

not

for corrective action in excess of the

minimum

requirements of 415 ~CS

5/57

and no costs are

included in this budget which are not described in the corrective action plan.

I further

certify

that costs

ineligible for payment from the

Fund

pursuant to 35

flhinois Administrative

Code Section 732.606 are not

included in the budget proposal or amendment.

Such ineligible costs include but are not limited to:

Costs associated

with

ineligible tanks.

Costs associated with site restoration (e.g., pump islands, canopies).

Costs associated with utility replacement (e.g., sewers, electrical, telephone, etc.).

Costs incurred prior to ~MA

notification.

Costs

associated withplanned tankpulls.

Legal defense costs.

Costs incurred prior to July 28,

1989.

Costs associated with installation of new USTs or

the repair of existing USTs.

Owner/Operator:

________________________________________

___________________________________

~lC~jj,èr~

Qil Pr~p,erties,Inc.

Title:

Charles F.

Keller, President

S.i~a~re:

-~i.-j

__________________________________________

 Date:

_________

Subscribed and sworn to

 efore

 e the~~

~

 of ~

______

when~icerfl

cation

is si~ed.)

(Budget Proposals andBu

etAin

ndment’

•FFCAL

SEAL

___________________________________________

~4~1R0WE

NOTARY PUBLIC,

STATS OF

ILLINOIS

FE.:

Vince

IS.

Smith

P ,E.

Si~a~re:

Subscribed and ~to

fore me

~~day

(Budget Proposal

and

Budg

idi

ents

must be

notarized when

___________________________________________________

 Seal:

“~Ne~ery~ub1ic)

The Agency is

authorized

La require this

information under 415

ILCS

5/i

Disclosure of this

information is

required.

Failure to

may result in the delay or denial of any budget or payment requested hereunder.

This form has been approved by

the Forms Managpment

Center.

532 2273

LPC 499 Rev.

Mar-94

BB:jk\97 1405S.WPD

OFFICIAL

SEAL

CAROL

ROWE

NOTARY PUBLIC,

STATE

OF ILLINOIS

MY COMMISSION

EXPIRES

2-26~2OO5

BUDGET

AND

BILLING FORM FOR

LEAKING UNDERGROUND STORAGE

TANK SITES

SITE INFORMATION

Site Name:

Keller/Downtown Shell

Site Address:

203 South Third Street

City:

Efflngham

Zip:

61920.

County:

Effflngham

IEPA Generator No.:

0490255121

IEMA

Incident No.:

 97-0848

IEMA

Notification Date:

5/15/97

Date

this Form was

Prepared:

May

12, 2004

This

form is

being

submitted

__________

 Budget Proposal

X

 Budget Amendment (Budget Amendments must include only the costs

 over the previous budget.)

Amendment Number:

6

___________

 Billing Package for costs incurred pursuant to

 Illinois Admiuistratiye

Code

(IAC), Part

732

(“New program”).

This

form

is being submitted for the Site

Activities indicated below (check

one):

___________

Early Action

___________

Site Classification

Low Priority Corrective

Action

High

Priority Corrective

Action

Other (indicate activities)

_______________________________________

NOT

SUBMIT “NEW

PROGRAM”

COSTS AND

“OLD

PROGRAM”

COSTS

AT THE

SAME

TIME,

THE SAME FORMS.

A-i

IL 532-2263

LFC 494

Rev.

11/97

This form must be submitted in duplicate.

IEMA No.

97-0848

If eligible for reimbursement where should reimbursement checksbe sent?

 Please note that

only

owners

operators

of USTs may be eligible

 for reimbursement.

 Therefore, payment can only be made to an owner or operator.

Pay to the order of:

 L. Keller Oil Properties, Inc.

Send in care of:

 CW3M Company, Inc.

Address:

P.O. Box

571

City:

 Carlinville

State:

Illinois

Zip:

62626

Number ofPetroleum USTs

Illinois

presently owned

or operated by the

owner

or operator; any subsidiary,

parent

or joint stock

company of the owner

or operator, and any

company owned by any

parent,

subsidiary

joint

stock

company

of the owner or

operator:

Fewer than

101:

____________

101

or more:

Number of USTs at the

site:

(Number

of USTs includes

USTs presently at the

site and USTs

that

have been removed.)

Number of incidents reported to IEMA:

Incident Numbers assigned to

the

site due to releases from USTS:

97-0848

Please

list

all tanks

which have ever been located at the

site and are presently located at the

site.

Product Stored

Size

Did

UST

Type of

(gallons)

have a release?

incident

No.

Release

Gasoline

10.000

Yes

97-0848

UST/Piping

Gasoline

6,000

Yes

97-0848

UST/Piping

Gasoline

12,000

Yes

97-0848

Overfihls/Piping

________________

Yes

________________

Yes

________________

Yes

_________________

Yes

________________

Yes

________________

Yes

___________________

Yes

A-2

This

form

must

be submitted in duplicate.

PROPOSED BUDGET SUMMARY

AND

BUDGET

TOTAL

Investigation

Costs:

Analysis Costs:

Personnel Costs:

Equipment.Costs:

Field Purchases

and

 Other Costs:

Handling

Charges:

TOTAL

PROPOSED BUDGET

90,086.44

IEMA No.

97-0848

 30,092.00

50,831.40

 9,163.04

IEMA No.

97-0848

PERSONNEL

CAP DEVELOPMENT

All personnel costs that

are

not included elsewhere

in the budget/billing

form must

listed here.

Costs must

listed per task, not personnel type.

The following are

some examples

of tasks: Drafting,

data collection,

plan, report,

or budget preparation for

CAPBA

(i.e.,

site classification work plan, 45

day report, or higi

priority corrective action budget),

sampling,

 field

oversite

for

CAP Dev.&

(i.e.,

drilling/well installation,

corrective

action,

early action)of maintenance of

Downtown

The

above

list is

not inclusive of all

possible tasks.

Environmental Engineer

(Title)

Task to be performed for the above hours:

Senior Env. Geologist

--_____________

(Title)

hours

100.00

per

hour

400.00

CAP Budget Amnendment

hours

81.00

per hour

162.00

Task to be performed for the above hours:

Technical Editor

(Title)

Task to be performed for the above hours:

CAP Budget Amendment

2

 hoursx

 55.00

 perhour

110.00

CAP Budget Amendment

Office Manager

(Title)

Task to be performed for the

above hours:

Laborer

hours

40.00

per hour

80.00

CAP Budget Amendment

312

hours

35.00

per hour

10,920.00

(Title)

Task to be performed for the above hours:

Landfarm Operation

Engineering Technician

(Title)

Task to be performed for the above hours:

Field

Supervisor

Coordinator

(Title)

228

hoursx

55.00

perhour

12,540.00

Lamidfarm Operation, Lysimeter Sampling

Trips

168

hoursx

 35.00

 per hour

5,880.00

Task to be performed for the above hours:

(Title)

Landfarm Operation

hours x

per hour

CAP Budget Amendment

G-1

CAPBA

Task to be performed for the above hours:

This form must

submitted in

duplicate.

IEMA No.

97-0848

hours

__________

per hour

(Title)

Task to be performed for the above hours:

 CAP Budget Amendment

hours

___________

per hour

(Title)

Task to be performed for the

above hours:

CAP Budget Amendment

hours

per hour

(Title)

Task to be performed for the above hours:

CAP Budget Amendment

hours x

___________

per hour

.1. ILIC)

Task to be performed for the above hours:

CAP Budget Amendment

hours x

per hour

(Title)

Task to be performed for the

above hours:

CAP Budget Amendment

hours x

 per hour

(Title)

Task to be performed for the

above hours:

CAP Budget Amendment

hours

per hour

(Title)

Task to be performed

for the

above hours:

CAP Budget Amendment

hours

per hour

(Title)

Taskto

performed for the

above hours:

CAP Budget Amendment

hours x

per hour

(Title)

Task to be

performed for the

above hours:

___________________

TOTAL PERSONNEL

COSTS:

30,092.00

G-2

CAPBA

This form

must be

submitted in duplicate.

FIELD

PURCHASES

AND OTHER COSTS

CORRECTIVE

ACTION

IEMA No.

 97-0848

All equipment used must be listed below in a time and materials format.

added here;

use

Section

Handling charges should not be

Field Purchases

Quantity

Item

Price/Item

Total

Cost

Handling

Charges

Site Restoration

Laborer

/hour

35.00

560.00

yes

Backhoe with

operator

 16 /hour

$

 85.00

$

 1,360.00

yes

Trucking Charge

(15 c.y.)

/hour

85.00

1,360.00

yes

Disposal

Charge

/ton

20.00

720.00

yes

Backlfill

(CA6

aggregate)

/ton

11.25

405.00

yes

Backhoe mobilization/demobilization

L.S.

500.00

yes

Laborer / Operator

mileage

/mile

0.38.

30.40

y~s

Sewer Cap

Materials / Permits

L.S.

75.00

yes

Building

Demolition

_________

Building

Demolition

L.S.

9,000.00

yes

Asbestos Inspection

L.S.

500.00

yps

Landfarm Operations

Aggregate for

access road construction

120

/Ton

11.25

1,350.00

yes

Trucking Charge

(15

c.y.)

/hour

85.00

5,440.00

yes

Backhoe with operator

312

/hour

85.00

26,520.00

yes

$____

Subtotal Pag~j-i

47,820.40

I-i

CORRECTIVE ACTION

This form must

submitted in duplicate

CORRECTIVE ACTION

IEMA

N97-0848

Other

Costs

A listing

and

description of all

other costs

which will be/were

incurred

and

are

not

specifically

listed on this form should be attached.

The listing

should include a cost

breakdown in a

time and

materials

format.

Other

Costs

No.

Rate

Cost

Copies

200

0.05

10.00

Mileage

for CW3M

trips

8560.00

0.35

2,996.00

Per Diem

Postage

5.00

Total Other

 3,011.00

10

trips

214 miles per

trip

for lysimeter

sampling

trips

at 214

miles per trip

for landfarm

operations

TOTAL

OTHER

COSTS

Total (Pages I-i

and

1-2)

3,011.00

 50,831.40

1-2 CORRECTIVE ACTION

This form must

submitted in

duplicate

IEMA No.

97-0848

HANDLING

CHARGES

CORRECTIVE

ACTION

Handling charges are

eligible

for payment

subcontractor billings

and/or field purchases only if they

are

equal to or

less

than the

amounts determined by the

following table:

Subcontractor

Section

where cost

is listed

•

Subcontract

Amount

Site Restoration

I-i

Corrective Action

47,820.40

Building Demolition

I-i

Corrective Action

9,000.00

Asbestos

Inspection

I-i

Corrective Action

500.00

Aggregate for access road construction

I-i

Corrective

Action

1,350.00

Trucking Charge (15

c.y.)

I-i

Corrective

Action

5,440.00

Backhoe with operator

1-1

Corrective Action

26,520.00

J-1

CORRECTIVE

ACTION

Subcontractor

or Field

Purchase

Cost

$1-

$5, 000

$5,001

$15,000

$15,001

$50,000

$50,001

$100,000

$100,001

$1,000,000

Subcontractor Charges

Eligible Handling

Charges

Percentage of

Cost

12

$600

10

of

amt.

Over $5,000

$1,600

of amt.

Over

$15,000

$4,400 + 5

of

amt.

Over $50,000

$6,900

+ 2

of amt.

 Over $100,000

Subtotal

3-1

Subtotal:

90,630.40

This form must be submitted

in duplicate

IEMA No.

 97-0848

Subtotal Page

3-2

 Subtotal of Pages J-1

and 3-2:

90,630.40

IHandling- Charge

 9,163.04

Use

chart at top of Page J-l

calculate

the allowable

handling

charge.

Copies

of invoices for subcontractor costs

and

receipts for

field purchases

are required

for

billing submissions

J-2 CORRECTIVE ACTION

Field Purchase

CORRECTIVE ACTION

Field Purchase

Amount

This form must

submitted in

duplicate

17:33

2175228812

CW3M

 COMF~NY

 F~GE

01

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

1021

NOF~TH

GRAND

AVENUE

EAST,

P.O. Box 19276,

SPRINGFIELD,

ILLINOIS

62794-9276~

217-752-3397

JAMES R.

THOMPSON

CENTER,

100 WeST

RANDOLPH,

SuITE

11-300,

CMICACO,

60601,

31 2-514-6026

ROD

BL.~,CoJEvIcH,GovERr’tOR

RENEE

ClPRIp~NO,DIRECTOR

7/782-o7o2

CERTIFIED MAIL

7002

~15D

0000

12.57

JUN30

20fl4

Keller Oil

Properties, Inc.

AtLention:

Charles

Keller

.Avenue

ofMidAmerica

E~ham,

Illinois

61920

Re:

LPC#0490255121--EffinghamCouflty

Effingham / L. Keller Oil Properties

Downtown Shell

20~South 3rd Street &

Fayette Avenue

LUST Incident No. #970848

LUST

Tech.riical File

Dear

Mr.

Keller:

The Illinois

Enviroiimental

Protection Agency (Illinois

EPA) has

reviewed

the

6th

Amendment to

the

High

Prioxity Corrective Action Plan Budget (budget) submitted for the above-referenced

incident.

This

budget, dated May 14, 2004,

was received by the Illinois

EPA on May 17, 2004.

Citations

in this letter are from the Environmental Protection Act (Act)

and

Illinois

Administrative

Code

(35

Ill. Adm.

Code).

The budget is rejected for the reason(s) listed in Attachment A (Section

57.7(c)(4)

ofthe Act and

111. Adm.

Code

732.405(c)

and 732303(b)).

All

future correspondence must be submitted to:

•

illinois Environmental

Protection Agency

-Bureau

Land

#24

Leaking Underground Storage Tank Section

1021

North Grand Avenue East

Post Office Box

19276

Springfield,

62794-9276

Please

submit

all

correspondence

in duplicate and include the Re: block shown at the beginning

of this letter.

RoC~io~o

—

4302 North

Main

Street.

Rocklord, IL

61103

—

(815) 987.7760

•

DES

PLAINES

—

9511

W. Harrison

St.,

Des Flames. ~L

ELOIN

—

595

South

State.

Elgin,

IL 60123

—

(8471 608-3131

•

PSORIA —5415 N.

University

Sc.,

Peoria. IL 61614— (309)i

Bu~t~u

L~NO

—

7620 N.

University

St..

Peoria.

IL 61614

—1309)

693.5462

•

C~jAMPAIcN

—2125

South

First

Street, Champa

SJ’wçncLn

—45005.

.Sivth

Sirer~

Rd.,

Soriri~fieId,

62706

—(217)

756-6892

COLLIr~SvILL5—

2009

MaIl Street.

Collirisville,

MARION —2309 W,

Main SI.,

Su)ie 116,

Marion;

II.

62959—1616) 993-7200

EXHIBIT.

17:33

Page 2

CW3M

00MFI~NY

An underground storage tank

system

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

Illinois

EPA

project

manager,

Eric Kuhiman. at

217/785-5715.-

Sincerely

Harry A.

Chappel, P.E.

Unit Manager

Leaking

Underground Storage Tank Section

Division of Remediatio~i

Management

Bureau

Land

HAC:EK:EK\,

Attachment:

Attachment A

Appeal

Rights

CW3M

Company

Division

File

2175228g12

 PAGE

~2

7/14/2~e4

16:24

2175228559

CWM

•

PAGE

Attachment A

Re:

LPC

#0490255121

Effingham

County

Effingham

Keller Oil

Properties

Downtown Shell

203

South 3rd

Street

Fayette Avenue

•

LUST

Incident

No.

#970 848

LUST Technical File

Citations in this

attach.rnent

ar~from the Environmental Protection Act (Act) and

Illinois

Administrative Code

(35

Ill. Adm.

Code).

Costs

related to

activities, materials, or services not necessary to stop, minimize.

eliminate, or clean up a release ofpetroleum

or-its

effects

accordance with the

minimum requirements of the Act and

regulations

are ineligible for payment from

the

Fund

(35

Ill. Adm.

Code 732.606(y)).

These costs arc not

a corrective action costs.

‘Corrective

action” mea.xis an

activity associated with

compliance with the provisions of

Sections 57.6 and

57.7

of the Act (Section 57.2 ofthe Act and

Ill.

Adin.

Code

732.103).

One of the eligibility requirements for accessing the-Fund is that costs

are

associated with”correctivc

action” (Section

57.9(a)(7)

of-the

Act and 35

III. Adrn.

Code

732.505(c)).

The budget includes such costs.

•

Costs of alternative technology that

exceed the costs of conventional-technology

are

ineligible for reimbursement-from

the

Fund

(35

III. Adm.

Code

732.606(bb)).

These

costs

are for activities

in excess ofthose necessary to meet the minimum requirements of

Title

XVI

of the Act (Section

57.5(a)

the

Act;

35 Ill.

Adrn.

Code 732305(c) and

•

732.606(o)).

EK:EK\

—__57

2554

 16 24

 21752285~9

CWM

PAGE

Appeal

Rights

An underground

storage

tank

owner or operator may appeal

this final decision

the

l!Iinok

Pollution

Control Board pursuant to Sections 40 and 57.7(c)(4)(D) of the Act

tiling

petition

for a

hearing

within

days

after

the date of issuance ofthe final

decision.

Hov~cver.thc

35-day

period may be extended for a

period oftime not

to exceed

90 days by written notice

from the

owner or operator and the Illinois EPA within the initial

35-day appeal period,

lithe

owneror

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 ofthis decision, must

sent to

the

Illinois EPA as. soon as possible.

For information regarding

the

filing

of an appeal, please

contact:

Dorothy Gunn,

Clerk

flhinois Pollution Control Board

State ofIllinois Center

100 West

Randolph,

~Suite1 1-500

Chicago,

60601

312/814-3620

For information regarding the filing ofan extension, please contact

Illinois

Environmental

Protection Agency

Divis ion of Legal--Counsel

1021

North

Grand Avenue East

Post

Office

Box

19276

Springfield,

62794-9276

217/782-5544

BARNES -c~--.ThORNBURG

Suite 4400

One North Wacker Drive

Chicago,

Illinois 60606-2809

U.S.A.

(312) 357-1313

Carolyn

Messe

Fax

(312)

759-5646

(312)

214-8301

Email:

chesse@btlaw.com

www.btlaw.com

 Julyl5,2004

VIAFACSIMILE

 FEDERAL EXPRESS

Mr.

John Kim

Illinois Environmental Protection Agency

1021 North Grand Avenue East

Springfield, Illinois

62702

Re:

 LPC #0490255121

Effingham County

 Effingham

/ L. Keller Oil

Properties

Downtown Shell

203 South

3rd

Street& Fayette Avenue

 LUSTlncidentNo. 970848

LUST

Technical File

Dear John:

On June 30,

2004,

the Illinois

Environmental Protection Agency

issued a letter with

respect to

the

above-referenced- LUST

Incident regarding

the new High

Priority

Corrective

Action

Plan

and

Budget

Amendment

dated

May

14,

2.004,

which

 was received by the

Agency

on May

17,

2004.

L. Keller Oil

Effmghani

located in Effingham,

Illinois.

copy of the letter is attached.

L. Keller Oil / Effingham submitted these documents pursuant

to 35 JAC

Section

 732.405(e)

which

states as follows:

If,

following

approval of any

groundwater monitoring

plan,

correptive

action

plan or associated budget pian, an

owner or operator determines that

revised

procedures

or

 cost estimates

are

necessary

order

comply

with

the

minimum

 required activities

for the site, the owner or operator shall

submit, as

applicable, an amended -groundwater monitoring plan,

corrective action plan or

associated-budget plan

for review by

the Agency.

The Agency

shall review-

and

approve,

reject

require

modifications

the

amended

plan

accordance withthe procedures contained in Subpart E of this Part

(_~

Mr. John Kim

July

15, 2004

Page

It appears that the Agency did not review

these- documents in accordance with the procedures

contained in

Subpart E.

L.

 Keller

Oil

 / Effingham

 believes

that,

based

upon

discussions

with-

Illinois

Environmental Protection Agency

and

for other reasons, that

we will be able

resolve the

issues raised in the

Agency’s letter.

However, we believe that we will not

be

able to resolve

these

 issues by the deadline for filing an appeal of these issues

 to the

 Illinois Pollution

Control

Board.

Thus,

this

request

for

90-day

extension

pursuant

the --Illinois

Environmental

Protection Act

Section

40(a)(l)

and

JAC

105.406

allow us

continue-

these discussions and to try to resolve this

issue.

If,

for any

reason,

the Agency

will not

seek

the

90-day

extension, please notif~’me

immediately

that

may

file

appeal

the

Board.

If you

have

any

questions

comments, please do

not hesitate~

to contact me.

Sincerely yours,

BARNES

THORNBURG LLP

Carolyn S. Hesse

CSHJjmr

-Enclosure

cc:

William Sinnott

CarolL.Rowe

227838v1

BARNES &THORNBURG up

CERTIFiCATE

OF SERVICE

I, the undersigned

attorney

law,

hereby

certify

that

August

2004,

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

Illinois

Pollution Control Board

James

R. Thompson Center

100

West Randolph Street

Suite 11-500

 Chicago, IL 60601

Carolyn S. Hesse

Barnes.

& Thornburg

Suite 4400

One North Wacker Drive

Chicago, IL

60606-2809

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

John J~-Kii11

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)

BEFORE

THE POLLUTION

CONTROL BOARD

OF THE STATE

OF ILLINOIS

L. KELLER OIL PROPERTIES

(DOWNTOWN SHELL),

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Dorothy M.

Gumi,

Clerk

illinois Pollution Control -Board

James

R. Thompson Center

100

West

Randolph Street

Suite 11-500

Chicago, IL 60601

Petitioner,

Respondent.

)

PCB No.

05-

)

(LUST

—

Ninety Day Extension)

)

NOTICE

Carolyn S. Hesse

Barnes & Thornburg

Suite

4400

One North Wacker Drive

Chicago,

60606-2809

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

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

2l7/782-9143(TDD)

Dated:

August

2004

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE

OF ILLINOIS

L. KELLER

OIL PROPERTIES

)

(DOWNTOWN

SHELL),

)

Petitioner,

)

PCB No.

05-

ILLINOIS ENVIRONMENTAL

)

(LUST

—

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

Kim, Assistant

Counsel

and

Special

Assistant

Attorney

General,

and,

pursuant

Section

40(a)(1) of the

Illinois

Environmental

Protection

Act

(415

ILCS

5/40(a)(1))

and

Iii.

Adm.

Code

105.208,

hereby

requests

that

the

Illinois

Pollution

Control Board (“Board”)

grant

an extension of the thirty-five (35) day penod for petitiomng for a

hearing

to November 3, 2004, or any other date not more than a total ofone hundred twenty-five

(125) days from the date of

service of the

Illinois

EPA’s final decision.

In

support thereof, the

IllinoisEPA respectfully states as follows:

1.

 On June 30, 2004, the Illinois EPA issued a final decision to the Petitioner.

(Exhibit A)

On July

15, 2004, the Petitioner made a written

request to the Illinois EPA for

extension of

time

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

has

not represented when the final decision was received,

though it

would not have been received

earlier

than -July

1,. 2004.

(Exhibit B)

The additional time requested by the parties may eliminate the need for a hearing

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;

the

interest

 of administrative

and judicial

economy,

grant this request for a ninety-day extension of

the thirty-five dayperiod for-petitioning fora 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: August

2004

This filing

submitted

on recycled

paper.

~~/L4/~ee~

i’:JJ

 ~175228a12

 CW3M COMPANY

 PAGE

g~.

II~’

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

1021

NoRTH

CRANO ~VENUE

E~.si~

 P.O. Box 19276,

SPRJNCVIELO,,ILLINO1S

62794-9276,

217-782-3397

JAMES

S. THOMPSON

CENTER,

100

WEST

RANOOLFH,-SUITE 11-300,

CHICAGO,

60601, 312-814-6026

ROD

3L~G0)EVICH,

GovEgp.loR

RE~EECIPRIANO,

DIRECTOR

7i7~2-h7b2

CERTIFIED MAIL

7002

3150

0000

125?

9985

JUN3C21Jfl4~

-Keller Oil

Properties, Inc.

Atiention:

Char~es

Keller

Avenue of MidAmerica

Erflngharn, Illinois

61920

Re:

LPC

#0490255121

Eflingliam County

Effingharn

 L. Keller Oil Properties

Downtown

Shell

 203 South 3rd Street & FayerteAvenue

LUST Incident No. #970848

LUST Tccb.niqal File

De.ir Mr

 Keller

The

Illinois

Environment~ Protection

Agency

 (Illinois EPA)

has

reviewed -the

6th

Athéndment to

the

High

Priority Corrective

Action

Plan

 Budget (budget) submitted for the above-referenced

incideni.

This budget, dated

May 14, 2004,

was

 recei~’edby the IllinoisEPAonMay 17, 2004.

Citations

in this letter are from the Environmental Protection Act (Act)

and 35 Illinois

Administrative

Code

(35

Hi.

Adm.

Code).

-The budgct is rejected for

the reason(s) listed

in Attachment

(Section

57.7(c)(4)

of the Act

and

111.

.Adrn.

 Code 732.405(c)

and 732303(b)).

All

 future correspondence mustbe submitted to:

Illinois-Environmental Protection Agency

Bureau ofLand

#24

Leaking-

Underground Storage

Tank

 Sectidn

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

ofthis letter.

Rocg;c,~o_4302

Nurth Main

Street.

Rockfd~d,IL 61103 —W~5)

~XHtBIT

Harrison

Si.,

Des

Flames.

60016.-(847)

294-4000

ELCIs

—

595

South State.

~Igin,IL

60123— (847)

icy

Sc.,

Peoria.

IL 61614— (309) 693-5463

Bu~.EAuc,~L~o

P~oit~

—

7620 N.

UniverSity

St..

Peoria.

IL G-~614

—(

South Fir,tStr~t,

Champaign,

61820 —(217)

278—5800

5reJNc.r~cLn

—

4500

Sixth

3ir~t

Rd.,

Springfield,

II. 62706

—(2

MalI

Street.

Co)Iinsvi)le.

IL 62234 —(613) 346-5120

M.~iO~

—

2309

M~i

18)

993-7200

~7~14

2084

2152:8812

CW3M

COMF4NY

F~GE

Page2

An underground

sto~agetank

system owner or operator may appeal this decision to

the

 Illinois

Pollution

Control

Board.

Appeal

rights

are at~ached.

Ifyou

have any questions or need further assistance, please contact the illinois EPA

project

manager,

Eric Kuhirnan. at 217/785-5715.

Harry A.

 Chappel, P.E.

Unit Manager

Leaking Underground Storage Tank Section

Divisionof Rernediation Mana~enient

Bureau ofLand

HAC:EK:EK\

Attachznent:

 Attachment

Appeal

Rights

CW3M Compan~

Division File

-~~~87/14/28S4 16:24

2175228889

PAGE

Attachment A

Re:

LPC

#0490255121

Effingham

County

Effingham

/ L.

Keller Oil

Properties

Downtown Shell

‘I

203

South 3rd-Street & Fayette Avenue

~~~___

LUST Incident No. #970848

LUST

Technical File

Citations in this

attachment are

from the Environmental Protection Act

(Act) and

Illinois

Administrative Code

(35

Iii.

Adm.

Code).

Costs

related to

activities,, materials, or services not necessary to stop,

minimize.

eliminate, or clean up

a release ofpetroleum or itS

effects in accordance with the

minimum requirements of the Act and regulations are ineligible forpayment from

the

Fund

(35

111.

Adm. Code

732.606(y)~).These costs arc not a corrective action costs.

Corrective

action” means an

activity

associated with compliance with the provisions

Sections

57.6 and

57.7

ofthe

 Act (Section 57.2 ofthe~Act

and

Ill.

Adm.

Code

732.103).

One ofthe eligibility

requirements for accessing the Fund is that

costs

are

assbciated with

“correctivc

action” (Section

57.9(a)(7)

ofthe Act and

III. Adm.

Code

732.505(c)).

-The budget includes such costs.

Costs of alternative

technology that exceed

the costs ofconventional

tech.nôlogy are

ineligible for reimbursement from

the Fund (35

III. Adm.

Code-732.606(bb))

These

costs are for activities in excess of those necessary to meet

the

minimum requirements of

Title XVI ofthe Act

(Section

57.5(a~

the

Act; 35

fli. Adm~

Code

732.505(c)

and

732

 606(0))

EK:EK\

07i14/2~O4

16:24

2175228e89

OWM

PAGE

Appeal Rights

An un~er~ound

 storage

tank owner or operator may appeal

 this

final decision to the

lUinois

Pollution

Control Board pursuant to

Sections 40-and

57.7(cX4)(D)

the Act

tUin~

for a

hearing within

days

after the date ofissuance of the

final decision.

Hov.cvc’r,

thc’

35-dEiy

period may be-extended for a period

of time not

exceed

days by

written notice from the

owner

or operator and

the Illinois

EPA within the

initial

35-day appeal period.

!1ih~

ciwner

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

copy ofthis decision, must

be sent

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 ofillinois

Center

100 West

Randolph,

~Suite11-500

Chicago, IL

60601

312181-4-3620

For information regarding

the

filing of an

extension, please contact:

Illinois

Environmental Protection Agency

Division ofLegal

Counsel

1021

North

Grand Avenue East

Post

Office Box

19276

Springfield,

62794-9276

217/782-5544

‘

BARNES &THORNBURQ

Suiie 4400

One

North Wiicker Drive

Chic~igo,

Illinois

60606-2809

US,~.

(312)

357-1313

Carolyn

i-jesse

Fax

(312-) 759-5646

(312)

214.8301

Email:

chesse~htlaw.com

July

15,

2004

VIA

FACSIMILE

& FEDERAL

EXPRESS

Legal Cou~~~j

JUL

‘c~~

Mr. JohnKim

‘

Illinois Environmental Protection Agency

Environn~enta l-’iotecuon

1021

North Grand Avenue East

A”enc

Springfield, Illinois

62702

Re:

LPC

#0490255

121

Effingham

County

Effingham

L..

Keller Oil

Properties

Downtown Shell

203 -South

3rd

Street & Fayette Avenue

LUST Incident No. 970848

LUST TechnicalFile

Dear

John:

On June 30,

2004,

the Illinois

Environmental

Protection Agency

issued

letter

with

respect to

the

above-referenced LUST

Incident

regarding the

new High Priority

Corrective

Action

Plan

and

Budget

Amendment

dated

May

14,

2004,

which

was

received

the

Agency

on May

17,

2004..

Keller- Oil.! Effingham

located

Effingham,

Illinois.

copy of the letter is

attached.

L. Keller Oil / Effingham

submitted these documents pursuant

IAC Section 732.405(e) which states as follows:

If,

following

approval of any groundwater monitoring plan, corrective action

plan or associated budget plan,

owner

operator determines that

revised

procedures

cost

-estimates

are

necessary

order

comply

with

the

minimum required activities

for the site, the owner or operator shall submit, as

applicable,

an amendedgroundwater monitoring pian~

corrective action plan or

associated

budget

plan for review

the Agency.

The

Agency shall review

and

approve,

reject

require

modifications

the

amended

plan

accordance with the procedures contained in Subpart E ofthis Part.

EXHIBIT

(

h~ ~o

F’

~~rr

Fcrt

\~ ~

____________________

vilis

South

Bv~d

Wu5h,n~rn, U~~(

Mr. John Kim

July

15,

2004

Page

It appears that the Agency did not review these documents in accordance with the procedures

contained in Subpart

Keller

Oil

Effingham

believes

that,

based

upon

discussions

with

Illinois

Environmental

Protection Agency

and

for

other reasons,

that

we will be

able

resolve the

issues raised in the Agency’s letter.

However, we believe that we will not be able to resolve

these

issues

the

deadline

for

filing

appeal

of these

issues

the

Illinois

Pollution

Control

Board.

Thus,

this

request

for

90-day

extension

pursuant

the

Illinois

Environmental

Protection Act

Section

40(a)(l)

and

IAC

105.406

allow us to

continue

these discussions and to try to resolve this issue.

If,

for

any

reason,

the Agency will not

seek

the

90-day extension,

please

notify me

immediately

that

may

file

appeal

the

Board.

If you

have

any

questions

comments, please do

not hesitate to contact me.

Sincerely yours,

BARNES

& THORNBURG

LLP

CarolynS.Hesse

CSH/jinr

Enclosure

cc:

William Sinnott

CarolL.Rowe

227838v1

BARNES &THOPJ’~BURG

U_p

CERTIFICATE OF

SERVICE

the

undersi~edattorney

at law, hereby

certify that

Au~st

2004,

se~edtme

and

correct

copies of a

REQUEST

FOR NINETY DAY EXTENSION

APPEAL PERIOD,

by placingtrue 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

Carolyn

S. Hesse

Illinois Pollution Control Board

Barnes&

Thornburg

James

Thompson Center

Suite 4400

100

West Randolph Street

One

North

Wacker

Drive

Suite

11-500

Chicago,

IlL

60606-2809

Chicago, IL 60601

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

John J’—Ki’

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)

ILLINOIS POLLUTION CONTROL BOARD

August

19, 2004

KELLER

OIL PROPERTIES

)

(DOWNTOWN SHELL),

)

Petitioner,

)

PCB

 05-22

(UST Appeal)

ILLINOIS ENVIRONMENTAL

(90-Day Extension)

PROTECTION AGENCY,

)

Respondent.

)

ORDER OF THE

BOARD (by J.P. Novak):

On August 9, 2004, the parties timely filed a joint notice to

extend the 35-day period

withinwhich L.

Keller Oil Properties may appeal a June 30, 2004~

determination ofthe Illinois

Environmental Protection Agency (Agency).

See

415 ILCS

5140(a)(1)

(2002); 35

111.

Adm.

Code

105.402,

105.406.

Because the postmark date of~the

joint request is within the time for filing, the

joint requestwas timely filed.

35 Ill.

Adrn. Code

101 .300(b)(2), 105.404.

The Agency rejected

petitioner’s sixth amendment to the high priority corrective action plan budget for L. Keller Oil

Properties’s leaking underground petroleum storage tank facility located at 203

South Third

Street, and Fayette Avenue, in Effingham, Effingham County.

The Board extends the appeal period until November 3, 2004, as the parties request.

See

415

ILCS 5/40(a)(1) (2002);

111. Adm. Code 105.406.

IfL. Keller Oil Properties fails to file

an appeal on or before that date, the Board will dismiss this case and close the docket.

IT IS SO ORDERED.

I, Dorothy M.

Gunn,

Clerk of the Illinois Pollution

Control Board,

certify

that the Board

adopted the above order

on August 19, 2004, by a vote of4-0.

Dorothy M.

Gunn, Clerk

Illinois

Pollution Control Board

EXHIBIT

-o