BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

DUNN'S UNIVERSITY

BP,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB No. 08-10

)

(LUST Appeal)

)

NOTICE OF FILING

To:

Dorothy

M. Gunn, Clerk

Illinois Pollution Control Board

James

Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

William

D. Ingersoll

Managing Attorney

III. Environmental Protection Agency

1021 North Grand Ave. East

Springfield,

IL 62702

PLEASE TAKE NOTICE that we have this day filed with the office

of the Clerk

of the Pollution Control Board the

Petition for Review

a copy of which

is enclosed

herewith and hereby served upon you.

October

30,2007

DUNN'S UNIVERSITY BP

One of its Attorneys

John

Hundley

Mandy

Combs

THE SHARP

LAW FIRM, P.C.

P.O. Box 906

- 1115 Harrison

Mt. Vernon, IL 62864

618-242-0246

Counsel for Petitioner Dunn's University

Electronic Filing - Received, Clerk's Office, October 30, 2007

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE

OF ILLINOIS

DUNN'S UNIVERSITY BP,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB No. 08-10

)

(LUST Appeal)

)

PETITION FOR REVIEW

Pursuant to

§§

40 and 57.7 of the Environmental Protection Act ("Act"), 415 ILCS 5/40,

5/57.7, and to the Board's regulations

on Leaking Underground Storage Tank ("LUST")

decisions,

35 ILL. ADM. CODE 105.400

et seq.]

petitioner Dunn's University BP ("Dunn's"),

submits this Petition for Review of the Illinois Environmental Protection Agency ("Agency")

decision attached hereto as Exhibit 1 ("Decision") modifying Dunn's Corrective Action Plan

Budget ("Budget") so

as to delete and deny approval of $10,401.66 of Consulting

Personnel and Consultant's Material costs incurred under the LUST program.

Pursuant to

57.8(1) of the Act, Dunn's further requests the Board to order the Agency

to pay Taylor's legal costs for seeking payment

in this appeal.

THE AGENCY'S FINAL DECISION

The Decision of which review is sought is contained in Exhibit 1 hereto.

H. SERVICE OF THE AGENCY'S FINAL DECISION

The Decision indicates it was mailed June 22,2007. It was received by Dunn's June

25,2007. An order was entered

on August 9,2007, giving Dunn's until October 30,2007

to file a petition for review. See Exhibit 2.

Electronic Filing - Received, Clerk's Office, October 30, 2007

III. GROUNDS FOR ApPEAL

1. The Agency's conclusion that the Consulting Personnel costs exceed the minimum

requirements necessary to comply with the Act under 415 ILCS 5/57.7(c)(3)

is erroneous,

arbitrary and capricious.

2. The Agency's conclusion that such Consulting Personnel costs are ineligible for

reimbursement under

35 III. Adm. Code 732.630(0) is erroneous, arbitrary and capricious.

3. The Agency's denial of the $9,883.06 in costs for Consulting Personnel associated

with activities associated with the Corrective Action remedial design and planning and

Amended Corrective Action plan and budget preparation, and activities associated with

Field Activities as being duplicative and excessive

to meet the requirements of the Act as

required under 415 IICS 57.7(c)(3) and 35 III. Adm. Code 734.630(0) is erroneous,

arbitrary, capricious, and contrary to law.

4. The Agency's conclusion that the Consultant's Material costs exceed the minimum

requirements necessary to comply with the Act under 415 ILCS 5/57.7(c)(3)

is erroneous,

arbitrary and capricious.

5. The Agency's conclusion that such Consultant's Material costs are ineligible for

reimbursement under

35 III. Adm. Code 732.630(0) is erroneous, arbitrary and capricious.

6. The Agency's denial of the $518.60 in costs for Consultant's Material associated

with utilizing a GSP system, vehicle use, and OTR permits

as not be reasonable under 415

IICS 57.7(c)(3)

is erroneous, arbitrary, capricious, and contrary to law.

7. The Agency's conclusion that the $518.60 costs for Consultant's Material

associated with utilizing a GSP system, vehicle use, and OTR permits are included in the

Electronic Filing - Received, Clerk's Office, October 30, 2007

soil excavation, transportation and disposal rate and the backfill rate and therefore exceed

the maximum payment amounts set forth

in Subpart H, Appendix D, and/or Appendix E of

35 III. Adm. Code 734 is erroneous, arbitrary, capricious, and contrary to law.

IV. CONCLUSION.

For the foregoing reasons, petitioner Dunn's University BP, respectfully petitions the

Board to reverse the denial

of reimbursement in the amount of $10,401.66 and order the

Agency to pay its attorneys' fees for this appeal.

October

30,2007

DUNN'S UNIVERSITY BP

By:

One of its Attorneys

John

T. Hundley

Mandy

L. Combs

THE SHARP LAW FIRM, P.C.

P.O. Box 906 - 1115 Harrison

Mt. Vernon, IL 62864

618-242-0246

Counsel for Petitioner Dunn

University

BP.

sara\wpdocs\USI-Dunn's\Pet for Review.doc.

Electronic Filing - Received, Clerk's Office, October 30, 2007

JUN 2:;

LU01

_CB.

file.: -

ILUNGIS ENVIRONMENTAL PROTECTION AGENCY

2007

1021 NORTH GRAND

AVENUE

EAST, P.O.

SOX

19276,

SPRiNGFIELD,

IlliNOIS 62794-9276 - ( 217) 782-3397

JAMES R. THOMPSON

CENTER,

100

WEST

RANDOLPH, SUITE 11-300, CHICAGO, IL 60601 - (312) 814-6026

Roo R. BLAGOJEVICH, GOVERNOR

DOUGLAS P. SCOTT, DIRECTOR.

CERTIFIED MAIL

7004 2510 0001 8620

159~.

JUN

217/782-6762

Dunn's University BP

Attention:

Jim Dunn

2218 Seneca Drive

Charleston,

IL 61920

Re:

LPC #0290105024

-- Coles County

Charleston

Dunn'sUniversity BP

419 West Lincoln Avenue

Leaking UST Incident No. 20000804 and 20060080

Leaking UST Technical File

Dear Mr. Dunn:

The Illinois Environmental Protection Agency (minois EPA) has reviewed the Corrective Action

Plan (plan) submitted for the above-referenced incident. This plan, dated March 5, 2007, was

received by the Illinois EPA on March 8, 2007. Citations in this letter are from the

Environmental

Protection Act (Act), as amended by Public Act 92-0554 on June 24, 2002, and

Illinois Administrative Code (35

Adm. Code).

The lllinois

EPA

req~res

modification of the plan; therefore, the plan is conditionally approved

with the illinois EPA'smodifications. The following modifications are necessary, in addition to

those provisions already

outlined in the plan, to demonstrate compliance with Title XVI ofthe

Act

(Sections 57.7(b)(2) and 57.7(c) ofthe Act and 35

Adm. Code 734.505(b) and

734.510(a»:

The Illinois EPA

wishes to

clarifY

the proposed Highway Authority Agreement for the

exclusion

ofthe soil contamination migrating into the roadways must extend to where

soil contamination does not

exce"'~

the most stringent remediation objectives. The

proposed Highway Authority Agreement map does not reflect this.

Please note that

all

activities associated with the remediation ofthis release proposed in the plan

must be executed in accordance with all applicable regulatory and statutory requirements,

including compliance with the proper permits.

In addition, the budgetis modified pursuant to Sections 57.7(b)(3) and 57.7(c) ofthe Act and 35

TIL Adm. Code 734.505(b) and 734.510(b). Based on the modifications listed in Section 2 of

Attachment A, the amounts listoo

Section 1 ofAttachment A have been approved. Please note

ROCKFORD - 4302

North Main Street,

Rockford, !L61103 -

{B15}

987-7760 •

DES

PlAINES -

9511 W.

Harriion

St., Des

Plaines,

Il60016 - (847) 294-40

ElGIN - 595 South State, E1gfn,

IL 60123 - (847) 608-3131

PEORIA -

5415 N. University St.,

Peoria. IL 61614 - (309) 693-5463

BUREAU

LAND - PEaRM -

7620

N. University St., Peoria,

It 61614 - (309) 693-5462

<> CHAMPAlGN -

2125

South First Street, Champaign,

61820

- (217) 278-5800

SPRINGFIELD -

4500

S. Sfxth Street Rd., Springfield,

IL 62706 - (217) 78&-6892

•

COlliNSVIllE -

2009

Mall Street, Collinsville,

lL 62234 - (&18) 346-5120

MARJON -

2309

W. Main St., SuitE

116,

Marion,

IL 62959 - (6lil) 993-7200

PRINTED ON RECYClED PAPER

Electronic Filing - Received, Clerk's Office, October 30, 2007

Page 2

that the costs must be incurred in accordance with the approved plan. Be aware that the amount

ofpayment from the Fund maybe limited by Sections 57.8(d), 57.S(e), and

57.B(g)

of the Act, as

well as 35 Ill. Adm. Code 734.630 and 734.655.

NOTE: The plan proposes activities that are technically acceptable. However, for the purpose

ofpayment from the Underground Storage Tank Fund, some ofthe activities are

excess of

those necessary to meet the minimum requirements ofthe Act and regulations. Owners and

operators

are advised that they may not be entitled to full payment for this reason. The Illinois

EPA will

review your complete request for partial or final payment from the Fund after

submitted to the minois EPA. In addition, please note that amended plans 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 paid.

The

activities in excess ofthose necessary to meet the minimum requirements ofthe Act and

regulations are

referenced in Attachment A. While it is technically

ac~table

that these

activities.he performed, payment fromthe Funduis..not approved.

Pursuant to Sections 57.7(b)(5) and 57.12(0) and (d) ofthe ACt and 35

Adm. Code 734.100

and

734.125, the Illinois EPA requires that a Corrective Action Completion Report that achieves

compliance with applicable remediation objectives be submitted

within

30 days after completion

of the plan to:

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

duplicate and include the Re: block shown at the beginning

of this letter.

Please note that, ifwithin four years after the approval ofthis plan, compliance with the

applicable remediation objectives has not been achieved and a Corrective Action Completion

Report has not been submitted, the Illinois EPA requires the submission

ofa status report

pursuant to Section 57.7(b)(6) of the Act.

underground storage tank system owner or operator may appeal this decision to the TIlinois

Pollution Control Board. Appeal rights are attached.

Electronic Filing - Received, Clerk's Office, October 30, 2007

Page 3

Ifyou have any questions or need further assistance, please contact Carol Hawbaker at

17/782-

5713..

HAC:CLH

Attachment: A

United Science Industries, Inc.

BOL File

Electronic Filing - Received, Clerk's Office, October 30, 2007

AttacrJillent A

Re:

LPC # 0290105024 -- Coles County

Charleston! Dunn's University BP

419

West Lincoln Avenue

Leaking UST Incident No. 20000804 and 20060080

Leaking UST Technical File

. The budget was previously approved for:

$1,367.00

$12,635.31

$554,375.90

$0.00

$67,457.14

$62,201.11

$345.40

Drilling and Monitoring Wen Costs

Analytical Costs

Remediation and Disposal Costs

UST Removal and Abandonment Costs

Paving, Demolition, and Well

Abandonment Costs

Con~lUlting

Personnel Costs

Consulting Materials Costs

result of

the

illinois EPA'srnodification(s) in Section 2 ofthis Attachment A, the following

amounts are.approved:

$O.OO~

$3,200.88/

$132,681.50/

$0.00

$9,748.40 v

$9,471.00 v

1,173.40

v.-

DriUingand Monitoring Well Costs

Analytical Cos.ts

Remediation and Disposal Costs

UST Removal and Abandonment Costs

Paving, Demolition, and Well Abandonment Costs

Consulting Personnel Costs

Consultant'sMaterials Costs

Handling

charges will be detennined at the time a billing package is reviewed by the minois

EPA. The amount of allowable handling charges wili be detennined in accordance with Section

57.S(t) ofthe Environmental Protection Act (Act) and 35 Illinois Administrative Code (35

Adm. Code) 734.635.

Therefore,

the total cumulative budget is approved for:

$1,367.00

$15,836.19

$687,057.40

$0.00

$77,205.54

$71,672.11

$1,518.80

Drilling and Monitoring Well Costs

Analytical Costs

Remediation and Disposal Costs

UST Removal and Abandonment Costs

Paving, Demolition,

and Well Abandonment Costs

Consulting Personnel Costs

Consultant'sMaterials Costs

Electronic Filing - Received, Clerk's Office, October 30, 2007

$10,000.00 for Building Demolition costs that exceed the maximum payment amounts set

forth in Subpart H, Appendix D, and/or Appendix E

of 35 Ill. Adm. Code 734. Such

costs are ineligible for payment from the Fund pursuant to 35

Adm. Code

734.630(zz). In addition, such costs are not approved pursuant to Section 57.7(c)(3) of

the Act because they are not reasonable.

Pursuant to 351AC, Section 734.840(c), the total costs for dismantling and reassembly of

above grade structures must not exceed the time and material amounts set forth in Section

734.850 ofthis Part. The total cost for the destruction and reassembly of above grade

structures must not exceed $10,000.00 per site. The Agency approved $10,000.00 in

costs for destruction ofbuildings associated with this site in a letter dated July 17, 2006.

$551.25 for costs for the replacement of concrete, asphalt, or paving, except as otherwise

provided

35 III. Adm. Code 734.625(a)(.16). 8uchcosts are ineligible for payment

from the Fund pursuant to 35111. Adm. Code 734.630(00). In addition, such costs

are

not

approved pursuant to Section 57.7(c)(3)

of the Act because they are not site investigation

or corrective action costs.

Asphalt replacement under the building exceeds the minimum requirements to comply

with Title XVI ofthe Act and is not a corrective action cost The Agency has deducted

225 square feet of asphalt replacement costs.

$9,883.06 for cOsts for Consulting Personnel costs, which exceed the minimum

requirements necessary to comply with the Act. Costs associated with site investigation

and

corrective action activities and assoCiated materials or services exceeding the

minimum requirements necessary to comply with the Act are not eUgible for payment

from the Fund pursuant to Section 57.7(c)(3) ofthe Act and 35

Adm. Code

734.630(0).

The illinois EPA approves the following costs for this section:

32 hours for Sr. Project Manager for all tasks involving the preparation of the Amended

Corrective Action plan and associated budget.

2 hours for Sr. Professional Engineer for reviewing the Amended Corrective Action plan

and associated budget.

66 hours for Sr. Technician for conducting Field Activities.

10 hours for Sr. Project Manager for reviewing the results ofthe Field Activities

6 hours for Sr. Administrative Assistant for data entry for all activities.

The additional tasks and titles listed for all activities associated with the Corrective

Action remedial

design and planning and Amended Corrective Action plan and budget

Electronic Filing - Received, Clerk's Office, October 30, 2007

preparation appear to be duplicative in nature a..'1d do not generally require the excessive

number ofpersonnel or excessive hours proposed in the budget. Therefore, the Illinois

EPA has determined that the

above-r~ferenced

approved hours and personnel title are

adequate to complete the task.

The minois approves 1 consulting personnel in the field for 6 days (66 hours). Any

additional personnel in the field during corrective action activities exceeds the minimum

requirements to comply with

the Act. The additional tasks and titles listed for

activities associated with the Field Activities appear to be duplicative in nature and do not

generally require the excessive number

ofPersonnel or excessive hours proposed

the

budget. Therefore, the lilinois EPA has determined that the above-referenced approved

hours

and personnel titles are adequate to complete the task.

All costs

associated with reimbursement activities have been deducted from the budget

because reimbursement costs associated with 3 billing packages were approved in the .

budget approval letter dated July 16, 2006. The tasks approved should not result in the

completion ofadditional reimbursement packages beyond what was already approved.

$518.60 for costs for Consultant'sMaterial costs, which exceed the minimum

requirements

necessary to comply with.the. Act. Costs associated with site investigation

and corrective action activities and

associated materials or services exceeding the

minimum requirements necessary

to comply with the Act are not eligible for payment

from the Fund pursuant to Section 57.7(c)(3) ofthe Act and 35 Ill. Adm. Code

734.630(0).

The following costs are not eligible for reimbursement:

Utilizing a

GSP system for soil investigation activities exceeds the minimum

requirements to comply with the regulations.

1 day

of vehicle use. The Agency has approved 6 days ofvehicle use in conjunction with

the 6 proposed days for field

activities.

Additionally, the costs associated with OTR permits are not approved as part ofthis

budget These charges are included in the soil excavation, transportation and disposal

rate and the backfill rate, for which a maximum rate of$58.59 per cubic yard and $20.56

per cubic yard respectively applies. The costs exceed the maximum payment amounts set

forth

in Subpart H, Appendix D. and/or Appendix E of35 Ill. Adm. Code 734. Such

costs are ineligible for payment from the Fund pursuant to 35 TIL Adm. Code

734.630(zz).

In addition, such costs are not approved pursuant to Section 57.7(c)(3) of

the Act because they are not reasonable.

Electronic Filing - Received, Clerk's Office, October 30, 2007

Appeal Rights

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) ofille Act by filing a petition

for a

hearing within 35 days after the date of issuance

Dfllie

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. Ifthe owner or

operator wishes to receive a 90-dayextension, 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 infonnationregarding the filing of an appeal, please contact

Dorofhy GUM, Clerk

Illinois

Pollution Control Board

State of Illinois Center

100 West Raridolph,Suite

11~500

Chicago,

60601

312J~ 14~

3(i20

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, IL 62794-9276

217

/782~5544

Electronic Filing - Received, Clerk's Office, October 30, 2007

ILLINOIS POLLUTION CONTROL BOARD

August

9, 2007

DUNN'S UNIVERSITY BP,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD (by G.T. Girard):

)

PCB 08-10

(UST Appeal)

(90-Day Extension)

On July 27, 2007, the parties timely filed a

joint notice to extend the 35-day period within

which

Dunn's University BP (petitioner) may appeal a June 22, 2007 determination of the

Illinois Environmental Protection

Agency (Agency).

See

415 ILCS 5/40(a)(l) (2006); 35 Ill.

Adm. Code 105.406. The Agency modified the corrective action plan for remediation

of a

leaking underground storage tank located at 419 West Lincoln, Charleston, Coles County.

The Board extends the appeal period until October

30,2007, as the parties request.

See

415 ILCS 5/40(a)(l) (2006); 35 Ill. Adm. Code 105.406. If petitioner 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, John T. Therriault, Assistant Clerk

of the Illinois Pollution Control Board, certify that

the

Board adopted the above order on August 9, 2007, by a vote of 4-0.

John T. Therriault, Assistant Clerk

Illinois Pollution Control

Board

Electronic Filing - Received, Clerk's Office, October 30, 2007

CERTIFICATE OF SERVICE

I, the undersigned attorney at law, hereby certify that I caused copies of the

foregoing document to be served by placement

in the United States Post Office

Mail Box at 14

& Main Streets in Mt. Vernon, Illinois, before 6:00 p.m. this

date,

in sealed envelopes with proper first-class postage affixed, addressed to:

Dorothy

M. Gunn, Clerk

Illinois Pollution Control Board

James

Thompson Center

100

West Randolph Street

Suite 11-500

Chicago,

60601

October 30, 2007

John

T. Hundley

Mandy

L. Combs

THE SHARP

LAW FIRM, P.C.

P.O. Box 906 - 1115 Harrison

Mt. Vernon,

62864

618-242-0246

Counsel for Dunn's University

sara\wpdocs\USI-Dunns\Notice.wpd

William D. Ingersoll

Managing Attorney

III. Environmental Protection Agency

1021 North Grand Ave. East

Springfield, IL 62702

Electronic Filing - Received, Clerk's Office, October 30, 2007