BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
MOTO, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
PCB No. 08-43
)
(LUST Appeal)
)
)
)
NOTICE OF FILING
To:
Dorothy
M. Gunn, Clerk
Illinois Pollution Control Board
James
R. 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.
April 23, 2008
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 Moto, Inc.
MOTO, INC.
By:
-+-.1L.-__------:>...",..-----__
Mandy L. Combs
One
of its Attorneys
Electronic Filing - Received, Clerk's Office, April 23, 2008
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
MOTO, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
PCB No. 08-43
)
(LUST Appeal)
)
)
)
PETITION FOR REVIEW
Pursuant to
§§
40 and 57.7 of the Environmental Protection Act ("Act"), 4151LCS
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 Moto, Inc. ("Moto"), submits this
Petition
for Review of the Illinois Environmental Protection Agency ("Agency") decision
attached hereto as Exhibit 1 ("Decision") modifying Moto's High Priority Corrective Action
Plan ("Plan") and High Priority Site Investigation Corrective Action Plan Budget ("Budget")
so as to delete and
deny approval of $39,554.83 of Consulting Personnel Time and
Consultant's Material costs incurred
under the LUST program.
Pursuant to
§
57.8(1) of the Act, Moto further requests the Board to order the Agency to
pay Moto's legal costs for seeking payment in this appeal.
I.
THE AGENCY'S FINAL DECISION
The Decision of which review is sought is contained in Exhibit 1 hereto.
II. SERVICE OF THE AGENCY'S FINAL DECISION
The Decision indicates it was mailed December 18, 2007. It was received by Moto
December 21,2007. An order was entered on January 10, 2008, giving Moto until April 23,
1
Electronic Filing - Received, Clerk's Office, April 23, 2008
2008 to file a petition for review. See Exhibit 2.
III. GROUNDS FOR ApPEAL
1. The Agency's conclusion that the Consulting Personnel Time costs of $38,804.99
are not reasonable as submitted and are ineligible for payment from the Fund pursuant to
the Act under 415 ILCS 5/57.7(c)(4)(C) and
35 III. Adm. Code 732.606(hh) is erroneous,
arbitrary and capricious.
2. The Agency's denial of the $38,804.99 in costs for Consulting Personnel Time
associated with the preparation of the plans and budgets that were received by the Agency
on September
2, 2004, December 20, 2004 and August 28, 2006 as being duplicative is
erroneous, arbitrary, capricious, and contrary to law.
3. The Agency's conclusion that the Consulting Personnel Time costs of $24,062.66
to $33,515.16 are not reasonable as submitted and are ineligible for payment from the
Fund pursuant to the Act under 415 ILCS 5/57.7(c)(4)(C) and
35 III. Adm. Code
732.606(hh)
is erroneous, arbitrary and capricious.
4. The Agency's denial of the $24,062.66 to $33,515.16 in costs for Consulting
Personnel Time associated with the preparation of the plans and budgets that were
received by the Agency
on September 2, 2004 and December 20, 2004 as not being
reasonable since the plans and budgets were unacceptable and unapprovable
is
erroneous, arbitrary, capricious, and contrary to law.
5. The Agency's denial of the $24,062.66 to $33,515.16 in costs for Consulting
Personnel Time associated with the preparation of the plans and budgets that were
received
by the Agency on September 2, 2004, December 20, 2004 and August 28, 2006
2
Electronic Filing - Received, Clerk's Office, April 23, 2008
that proposed to address the contamination with sodium persulfate and PermeOx
injections as not being reasonable to reimburse because the corrective action (remedial
technology) proposed therein was never implemented
is erroneous, arbitrary, capricious,
and contrary to law.
6. The Agency's denial of the $688.20 in costs for Consulting Personnel Time
associated with monitoring well abandonment because the costs are included
in the
maximum rate of $10.59 per foot
as ineligible because it exceeds the maximum payment
set forth
in Subpart H, Appendix D and/or Appendix E of 35 III. Adm. Code 732 and
ineligible for reimbursement under 415 IICS 57.7(c)(4)(C) and not reasonable pursuant to
35 III. Adm. Code 734.606(ccc) is erroneous, arbitrary, capricious, and contrary to law.
7. The Agency's denial of the $61.64 costs for Consultant's Material associated with
monitoring well abandonment because the costs are included
in the maximum rate of
$10.59 per foot as ineligible because it exceeds the maximum payment set forth
in Subpart
H, Appendix D and/or Appendix E of 35 III. Adm. Code 732, and ineligible for
reimbursement under 415 IICS 57.7(c)(4)(C) and not reasonable pursuant to
35 III. Adm.
Code 734.606(ccc)
is erroneous, arbitrary, capricious, and contrary to law.
IV. CONCLUSION.
For the foregoing reasons, petitioner Moto, Inc., respectfully petitions the Board to
reverse the denial of reimbursement
in the amount of $39,554.83 and order the Agency to
pay its attorneys' fees for this appeal.
3
Electronic Filing - Received, Clerk's Office, April 23, 2008
April 23, 2008
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 Mota, Inc.
sara\wpdocs\USI-Moto\Pet for Review.doc
MOTO, INC.
By:----!~::::....__+---,,L--
--=
_
O.ne of its Attorneys
4
Electronic Filing - Received, Clerk's Office, April 23, 2008
•
.
_
...
_-_. ---
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
DOUGLAS
P.
SCOTT, DIRECTOR
(217) 782-6762
DEC
1 82007
FKG Oil Company (Moto, Inc.)
-713 /m)..
Joseph Hooten
721 West Main
Street (p. O. Box 122)
Belleville, IL 62220
CERTIFIED MAIL
7007 0220 0000 0148 0010
Re:
LPC #0490255075 - Effingham County
EffinghamlFKG Oil Company (Effingham Motomart)
I-70'andHighway 45 (15451 North U.S. Highway 45)
Leaking UST Incident No. 983001
Leaking UST Technical File
Dear Mr. Hooten:
The illinois Environmental Protection Agency (illinois EPA) has reviewed the High Priority
Corrective Action Plan submitted for the above-referenced incident. The illinois EPA received
the plan, dated August 2007,
on August 21, 2007. Citations in this letter are from the
Environmental Protection Act (Act), in effect prior to June 24, 2002, and 35 lllinois
Administrative Code (35
m.
Adm. Code).
Pursuant to Section 57.7(c)
of the Act and 35 lll. Adm. Code 732.405(c), the plan is modified.
The following modifications are necessary,
in
addition to those provisions already outlined in the
plan, to demonstrate compliance with Title XVI
of the Act and 35 m. Adm. Code 732:
1.
The plan states that the total soil porosity is the same for the SSL and RBCA models.
Please note that Equation 824 shall be used to calculate the
total soil porosity for the 88L
model and Equations R21, R22 and R23 shall be used to calcUlate the total soil porosity
for the RBCA model.
2.
The plan does not include a sufficiently detailed discussion
ofhow input variable Sd was
determined. The owner
or operator shall provide a sufficiently detailed discussion or use
the default (200 centimeters)
in Equation R26.
3.
The owner or operator used an RfC of 0.1 in the Tier 2 calculation for total xylenes for
the construction worker inhalation exposure route. Please note that
the
RiC
for total
xylenes for the construction worker inhalation exposure route is 0.3; therefore,
the Tier 2
remediation objective for total xylenes for the construction worker inhalation exposure
route is approximately 105
mglkg.
ROCKFORD- 4302 North Main Street, Rockford, IL &1103 - (815) 987-7760 •
DES PwNES- 9511 W. Harrison St, Des Plaines, IL 6001 &- (847) 294-4000
ELGIN -
595
South Stale, Elgin, IUi0123 - (847) 608-3131
•
PEORIA - 5415 N. University St., Peoria, IL 61614 - (309) 693-5463
BUREAU OF LAND - PEORIA - 7620 N. University 51., Peoria, IL 61614 - (309) 693-5462
•
CHAMPAIGN _ 2125
Soutn
First Street, Champaign, IL 6
4
~~~ '~4~' ~~n ~nM
SPRINGFIELD
-4500 S. Sixth Street Rd., Springfield, Il 62706 - (217) 786-6692 •
COLLINSVILLE -
2009 Mall Street, Collinsville, IL 62234
EXHIBIT
MARlON -
2309 W. Main St., Suite 116, Marion, IL 62959 - (618) 993-7200
PRJNTED ON RECVQ.ED
P
"PER
11
D
D
3
\
Electronic Filing - Received, Clerk's Office, April 23, 2008
• •
Page 2
In
additiont the illinois EPA has the following comments regarding the plan:
1.
The plan does not include a sufficiently detailed discussion ofhow input variables d and
cia
were determined. A sufficiently detailed discussion is not necessary at this timet
because the default dilution factor (20) was used in the Tier 2 calculations for the soil
component
ofthe groundwater ingestion exposure route.
2.
The plan states that the pH ofthe sample taken from soil boring ST-IA was 7.74;
therefore, the soil does not
exhI'bita pH less than or equal to 2.0 or greater
than
or equal
to 12.5. Please note that soil boring ST
-lA was drilled in an unimpacted area ofthe site;
therefore, the
pH sample is not sufllcient to demonstrate compliance with 35 m. Adm.
Code 742.305(d). The owner or operator does not need to collect a new pH sample
.unless 35
m.
Adm. Code 742, Subpart C will be used to exclude the exposure routes.
3.
The Tier 2 remediation objectives for total xylenes for the industrial-commercial
inhalation and soil component
ofthe groundwater ingestion exposure routes. exceed the
soil saturation, limit. nie Tier 2 soil remediation objective for ethylbenzene for the
residential inhalation exposure route exceeds the soil saturation limit. Pursuant to 35
lllinois Administrative Code (35
m.
Adm. Code) 742.220(a) and (b), the Tier 2
remediation objective for
the inhalation and soil component oftlie grouildwater ingestion
exposure routes for any organic contaminant that
has a melting point below 30 degrees
Celsius shall
not exceed the soil saturation limit.
Pursuant to Section 57.7(c)
ofthe Act and 35
m.
Adm. Code 732.405(c), the High Priority
Corrective Action
Plan Budget is modjfied. Based on the modifications listed in Section 2 of
Attachment
A,
the amounts listed
in
Section 1 ofAttachment A are approved. Please note that
the costs must be incurred in accordance with the approved plan. Be aware that the amount of
payment from the Fund may be limited by Sections 57.8(e), 57.8(g) and 57.8(d) ofthe Act
t
as
well as 35
m.
Adm. Code 732.604, 732.606(s) and 732.611.
If the owner or operator agrees with the illinois EPA'smodifications, submittal of an amended
plan and/or budget is not required (Section 57.7(c) ofthe Act). Ifpayment from the Fund will be
sought for any additional costs that may be incurred as a result ofthe lllinois EPA's
modifications, an amended budget must
be submitted and approved prior to the issuance ofa No
Further Remediation (NFR) Letter (Section 57.8(a)(5) ofthe Act and 35 m. Adm. Code
732.405(e». Costs associated with a plan or budget that
has
not been approved prior to the
issuance ofan NFR Letter will not
be
paid.
An underground storage tank system owner or operator may appeal this decision to the illinois
Pollution Control Board. Appeal rights are attached.
Electronic Filing - Received, Clerk's Office, April 23, 2008
-'
"
Page 3
If you have any questions or need assistance, please contact Trent Benanti at (217) 524-4649.
Sincerely,
Michael
v/4JJ~
T. Lowder
Unit Manager
Leaking Underground Storage
Tank Section
Division
ofRemediation Management
Bureau
ofLand .
MTL:TLB:H:\Projects2\Effingham Motomart\983001\Letters\HPCAP.doc
Attachments: Attachment A
Appeal Rights
c:
United Science Industries, Inc.
Division File .
Electronic Filing - Received, Clerk's Office, April 23, 2008
I
,
Attachment A
Re:
LPC
#0490255075 - Effingham County
EffinghamlFKG Oil Company (Effingham Motomart)
1-70 and Highway 45 (15451 North U.S. Highway 45)
Leaking UST Incident No. 983001
Leaking UST Technical File
SECTION 1
The High Priority Site Investigation Corrective Action Plan Budget was previously approved for:
"
$ 5,965.39...-:
$
3,606.35/
$
0.00
$
0.00
$
0.00
$21,697.50 i
Drilling and Monitoring Well Costs
Analytical Costs
Remediation and Disposal Costs
UST Removal and Abandonment Costs
Paving, Demolition, and Well Abandonment Costs
Total Consulting Fees
Based on the lllinois EPA'smodifications listed
in
Section 2 ofthis Attachment A, the following
amounts are approved:
$
1,270.48'/
$
1~227.10'"
$
0.00'/
$
0.00""
$
1~217.85'/
$16~982.40
,/
Drilling and Monitoring Well Costs
Analytical Costs
Remediation and Disposal Costs
UST Removal and Abandonment Costs
Paving, Demolition, and Well Abandonment Costs
Total Consulting Fees
Handling charges will
be
determined at the time a billing package is reviewed by the IDinois
EPA. The amount
of allowable handling charges will be determined in accordance
with
Section
57.8(t) ofthe Environmental Protection Act (Act) and 35 TIlinois Administrative Code (35
m.
Adm. Code) 732.607.
Therefore~
the total cumulative budget is approved for:
$ 7,235.87/
$ 4,833.45"--
$
0.00/
$
0.00./
$ 1,217.85/
$38~679.90
./
SECTION 2
Drilling and MoI.J,itoring Well Costs
Analytical Costs
.
Remediation and Disposal Costs
UST Removal and Abandonment Costs
Pavin& Demolition, and Well Abandonment Costs
Consulting Personnel Costs
1.
$38~804.99
for consulting personnel time costs that are not reasonable as submitted.
Such costs are ineligible for payment from the Fund pursuant to Section
57.7(c)(4)(C) of
the Act and 35 ID. Adm. Code 732.606(hh).
Electronic Filing - Received, Clerk's Office, April 23, 2008
The TIlinois EPA received a High Priority Site Investigation Corrective Action Plan and
High Priority Site Investigation Corrective Action Plan Budget on August 28, 2006. Said
plan and budget outlined all corrective action activities completed to date, including the
preparation of said plan and budget.
The budget
at~and
includes $38,804.99
in
actual consulting personnel time costs. The
actual consulting personnel time costs are related to the preparation ofHigh Priority
Corrective Action Plans and High Priority Corrective Action Budgets that were received
by the TIlinois EPA on September 2, 2004, December 20, 2004 and August 28, 2006.
It
would not be reasonable for the Illinois EPA to reimburse the owner or operator for
consulting personnel time costs that are duplicative.
2.
$24,062.66 to $33,515.16 for consulting personnel time costs that
are
not reasonable as
submitted. Such costs are ineligible for payment from
the Fund pursuant to Section
57.7(c)(4)(C)
ofthe Act and 35 Ill. Adm. Code 732.606(hh).
The budget at-hand includes $24,062.66 to $33,515.16
in actual consulting personnel
time costs that are related to the
preparation ofHigh Priority Corrective Action Plans and
High Priority Corrective Action Budgets that were received by the TIlinois EPA on
September 2, 2004 and December 20, 2004. Both plans and budgets were denied.
It
would not be reasonable for the illinois EPA to reimburse the owner or operator for the
preparation
ofplans and budgets that are unacceptable and unapprovable.
3.
$24,062.66
to $33,515.16 for consulting personnel time costs that are riot reasonable as
submitted. Such costs are ineligible for payment from the Fund pursuant to Section
57.7(c)(4)(C)
ofthe Act and 35 Ill. Adm. Code 732.606(hh).
The budget at-hand includes $24,062.66 to $33,515.16
in
actual consulting personnel
time costs that are related to the preparation
ofHigh Priority Corrective Action Plans and
High Priority Corrective Action budgets that were received
by the TIlinois EPA on
September 2, 2004 and December 20, 2004. Both plans and budgets proposed to address
the contamination with sodium persulfate and PermeOx injections. Both plans
and
budgets were denied, in part, because the owner or operator did not provide a discussion
ofthe inputs for the sodium persulfate and PermeOx calculations.
The High Priority Corrective Action Plan received by the lllinois EPA on August 28,
2006 proposed to address the
contaInination with sodium persulfate and PermeOx if
favorable results could be obtained from the sodium persulfate pilot study. The plan and
budget were approved with modifications.
The plan and budget at-hand propose
to address the contamination by re-sampling the
soil and groundwater, because the time frame for obtaining favorable results from the
sodium persulfate pilot study
has
gone beyond the original expectations.
It
would not be reasonable for the lllinois EPA to reimburse the owner or operator for
consulting personnel time costs that are associated with a form
ofcorrective action
(remedial teclmology) that was never implemented.
Electronic Filing - Received, Clerk's Office, April 23, 2008
4.
The consulting personnel time costs associated with monitoring well abandonment
(senior technician - $688.20) are not approved as part
ofthis budget. These costs are
included
in
the monitoring well abandonment rate, for which a maximum rate of$10.59
per foot applies. These costs exceed the maximum payment amounts set forth
in
Subpart
. H, Appendix. D anellor Appendix E
of35 TIL Adm. Code 732. Such costs are ineligible
for payment from the Fund pursuant to 35
m.
Adm. Code 734.606(cec).
In
addition, such
costs are not approved pursuant to Section 57.7(c)(4)(C)
ofthe Act because they are not
reasonable.
5.
The consultant'smaterials costs associated
with
monitoring well abandonment
(environmental utility vehicle for tech for monitoring well abandonment documentation -
$61.64) are not approved as
part ofthis budget. These costs are included in the
monitoring
well abandonment rate, for which a maximum rate of $1 059 per foot applies.
These costs exceed the maximum payment amounts set forth
in
Subpart H, Appendix. D
anellor Appendix. E of,35
TIL Adm. Code 732. Such costs are ineligible for payment from
the Fund pursuant to 35
fil.
Adm. Code 734.606(ccc).
In
addition, such costs are not
approved pursuant to Section 57.7(c)(4)(C)
ofthe Act because they are not reasonable.
MTL:TLB:H:\Projects2\Effingham Motomart\983001\Letters\HPCAP_A.doc
Electronic Filing - Received, Clerk's Office, April 23, 2008
"J
. .,
Appeal Rights
An
underground storage tank owner or operator may appeal this final decision to the lllinois
Pollution Control
Board pursuant to Sections 40 and 57.7(c)(4) ofthe Act by filing a petition for
a hearing within 35 days
after the date ofissuance ofthe 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 TIlinois 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 appeal, please contact:
Dorothy
Gunn,
Clerk
lllinois Pollution Control
Board
State ofillinois 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
Electronic Filing - Received, Clerk's Office, April 23, 2008
ILLINOIS POLLUTION CONTROL BOARD
January 10,2008
MOTO,INC.
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD (by G.T. Girard):
)
)
)
)
)
)
)
)
)
)
PCB 08-43
(UST Appeal)
(90-Day Extension)
On January
7, 2008, the parties timely filed a joint notice to extend the 35-day period
within which Moto, Inc. (petitioner) may appeal a December 18, 2007 determination of the
Illinois Environmental Protection Agency (Agency).
See
415 ILCS 5/40(a)(1) (2006); 35 Ill.
Adm. Code 105.406. The Agency's determination concerns a leaking underground petroleum
storage tank site located at 1-70 and Highway 45 (15451 North U.S. Highway 45) in Effingham
County.
In
the determination, the Agency modified petitioner's corrective action plan and
budget.
The Board extends the appeal period until April 23, 2008, as the parties request.
See 415
ILCS 5/40(a)(1) (2006); 35 Ill. Adm. Code 105.406. Ifpetitioner 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 January 10,2008, by a vote of 4-0.
John
T. Therriault, Assistant Clerk
Illinois Pollution Control Board
EXHIBIT
~
/)
i
L--
Electronic Filing - Received, Clerk's Office, April 23, 2008
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
th
&
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 R. Thompson Center
100
West Randolph Street
Suite 11-500
Chicago, IL 60601
April 23, 2008
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 Moto, Inc.
sara\wpdocs\USI-Moto\Notice.doc
William D. Ingersoll
Managing Attorney
III. Environmental Protection Agency
1021 North Grand Ave. East
Springfield, IL 62702
Mandy
L.
eombs
Electronic Filing - Received, Clerk's Office, April 23, 2008
