BEFORE THE POLLUTION CONTROL BOARDflE??~FED
OF THE STATE OF ILLINOIS
CLERK’S OFFICF
MICK’S GARAGE,
)
Petitioner,
)
vs.
)
PCB No. 03-126
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
NOTICE
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
MI\Y 20 2003
STATE OF IWNOIS
Pollution Control Board
John I. 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 ofthe Clerk of
the Pollution Control Board a Petition for Review of Final Agency Leaking
Underground Storage Tank Decision, a copy ofwhich is herewith served upon you.
Robert E. Shaw
IL ARDC No. 03123632
Curtis W. Martin
IL ARDC No. 06201592
STIAW & 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
Ltt~9~eyfor
Mick’s Garage, Pe1~oner
BEFORE THE POLLUTION CONTROL BOARd~CEfl1ED
OF THE STATE OF ILLINOIS
CLERJ~
OFFICE
M~4y2 0
20
MICK’S GARAGE,
)
STATE OF
ILLINOIS
Pollution
c
Petitioner,
)
Ontro/ Board
)
vs.
)
PCB No. 03-126
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR REVIEW OF FINAL AGENCY
LEAKING UNDERGROUND STORAGE TANK DECISION
NOW COMES the Petitioner, Mick’s Garage, (“Mick’s”), 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
5/57.7(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, Mick’s respectfully states as follows:
1.
On January 10, 2003, the Agency issued a final decision to Mick’s, a
copy of which is attached hereto as Exhibit A.
2.
On February 11, 2003, Mick’s made a written request to the Agency for
an extension of time by which to file a petition for review from the thirty-five day
period to ninety days, a copy ofwhich is attached hereto as Exhibit B.
3.
On February 18, 2003, the Agency joined in Mick’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.
On March 6, 2003, the Board entered an Order extending the time by
which Mick’s could file a petition to May 16, 2003, a copy ofwhich is attached hereto
as Exhibit D.
5.
The grounds for the Petition herein are as follows:
Mick’s, a truck maintenance facility, reported a “suspected” release on
June 11, 1991 to the Illinois Emergency Services Disaster Agency (“IESDA”) and
incident no. 911582 was assigned. In 1991, it was a standard practice to report a
suspected release and to later confirm a release either by a site investigation and/or
an underground storage tank (“UST”) removal. An Application for Removal of
eleven UST’s, two of which were 2000 gallon diesel tanks, was received by the Office
of the State Fire Marshall (“OSFM”) on November 2, 1998 and the OSFM approved
the Application on February 2, 1999. Bruce Trucking and Excavating, Inc. of
Granite City, Illinois, in the presence of Arthur Jacobs, the OSFM Representative,
removed the eleven UST’s on April 5, 7, and 8, 1999.
Because there appeared to be a release from some ofthe UST’s
removed, Mr. Jacobs requested a second reporting of the same occurrence (the
suspected release ofJune 11, 1991) on April 5, 1999 and the Illinois Emergency
Management Agency (“IEMA”) assigned a second incident no. 990820 to the site.
Mr. Jacob’s Log of Underground Storage Tank Removal did not, however, indicate a
release from the two 2000 gallon diesel fuel tank system. The OSFM then
determined that a $10,000.00 deductible applies to the occurrence given incident no.
990820.
2
Mick’s, through its consultant, United Science Industries, Inc. (“USI”),
submitted to the Agency a Site Characterization Report/Corrective Action Plan
(“Plan”) in November 2002. The Agency approved the Plan as complying with 35
Ill.Adm.Code 731. However, the Agency determined that a $50,000.00 deductible
applies to this project because Mick’s had actual or constructive knowledge that a
release ofpetroleum occurred prior to July 28, 1989. It is from this Agency
determination that Mick’s appeals.
The Agency based its $50,000.00 deductible determination upon the
Gasoline Storage Act’s tank registration prepared by Steve Fincher, the station
attendant when the tank registration was submitted to the Agency. In the
registration, Mr. Fincher indicated that two 2000 gallon diesel fuel tanks had been
taken out of service due to an accident in which a tractor-trailer backed over the
diesel fuel pump causing the pump to no longer dispense fuel. Mr. Fincher, without
any further investigation at that time into the exact cause of the diesel fuel pumps’
malfunction, assumed that a line connecting the tanks to the pump had been broken
resulting in a fuel leak. Mr. Fincher saw neither a crack or a leak in the pump, line
or any other portion of the diesel fuel dispensing system.
Some time after Mr. Fincher had completed and submitted the tank
registration to the Agency, he discovered that the diesel fuel dispensing system
involved a “suction pump” and that a crack in the pump prevented the suction
pump from operating—it could not draw fuel through the line to be dispensed as a
result of air leaking into the system through the crack.
3
That no diesel fuel had leaked from the two 2000 gallon diesel tanks or
their dispensing system is demonstrated by the Log of Underground Storage Tank
Removal prepared by Mr. Jacobs at the time the tanks were removed in April, 1999.
The Log, previously provided to the Agency, clearly indicates no leaks from the two
2000 gallon diesel fuel system. The Agency, however, continues to hold to the
position that Mick’s had actual or constructive knowledge of a non-existent release
from the diesel fuel system, while at the same time acknowledging in its January
10, 2003 decision letter that the information provided “does seem to indicate that
the two diesel tanks did not have a release.” There is no other conclusion for the
Agency to reach but that there was no knowledge of a prior release.
Section 57.9(b)(2) of the Environment Protection Act (“Act”), 415 ILCS
5/57.9(b)(2), provides that an owner/operator may access the UST Fund for costs
associated with an Agency approved plan and the Agency shall approve the
payment of costs associated with corrective action after the application of a
$10,000.00 deductible, except a deductible of $50,000.00 shall apply if any ofthe
UST’s were registered prior to July 28, 1989, and the State received notice of the
confirmed release prior to July 28, 1989. In the Mick’s project, although the diesel
fuel tanks were registered prior to July 28, 1989, the State did not receive notice of
~
release regarding the diesel fuel tanks at ~y time.
In its January 10, 2003 decision letter the Agency states that “ajil
tanks were indicated as having had releases from both the tank and piping systems
connected to them.” This simply is not true. No indication of any release from the
diesel fuel tanks exists except for Mr. Fincher’s erroneous assumption previously
4
addressed. It must be noted that the Agency made an earlier determination on
March 9, 1992 that a $50,000.00 deductible applies to this project because the
documentation provided to it indicated “both of the 20,000sic gallon diesel fuel
tanks were taken out of service in 1980 due to a leak in line going from connecting
tank to pump”. With Mick’s having dispelled that erroneous information, the
Agency now asserts prior gasoline tank releases cause the application of the
$50,000.00. Neither assertion chosen by the Agency is supported by the facts in this
project. The proper deductible to be applied under Section 57.9(b) of the Act is
$10,000.00.
WHEREFORE, Petitioner, Mick’s Garage, for the reasons stated above,
requests that the Board reverse the deductible decision ofthe Agency and rule in
favor of Petitioner’s request for the application of a $10,000.00 deductible and
award Petitioner its attorney’s fees and costs incurred herein pursuant to 415 ILCS
5/57.8(1) and 35 Ill. Adm. Code 732.606(g).
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
Respectfully submitted,
SHAW
Mick’s
for
5
-
~,
ILL1NO~SENVIRONMENTAL PROTECTION AGENCY
.1
021 NORTH G~i~o
AVEr~IuE
EAST,
P.O. Box 19276, SPRINcEt~.D,1LLINO~S 62794-9276
JAMES
R.
THOMPSdN
CENTER.
100 WEST
RANDOLPH, SUITE 11-300,
CHICAGo, IL
60601
OEORCE
H.
RYAN,
Co’~~R~oR R~r~EE
CtPRIANO, DIRECTOR
217/782-6762
~02003
Mary Fincher Estate/Mick’s Garage
Steye Fincher
1251 E.
Chain ofRocks Road
Pontoon Beach, Illinois 62040
Re:
LPC # 119385502— Madison County
Pontoon Beach / Mick’s Garage
1251 East Chain ofRocks Road
LUST Incident #911582 & 990820
LUST Technical File
Dear Mr. Fincher
S
The illinois Envircomental Protection Agency (Illinois EPA) has reviewed the Site
Characterization B eport/Corrective Action Plan (plan) submitted for the above-referenced
incident. This information was dated November 2002 and was received by the Illinois EPA on
November 13, 2002. Citations in this letter are from the Environmental Protection Act (Act) and
35
illinois Administrative Code (Ill. Adm. Code).
The activities proposed in.the plan areappropriate to demonstrate compliance with 35 IlL Adm.
• Code 73.1; th~re±~i~,the plan is at~proved.Please note that all activities assoeiated with the
remediation ofthis; release proposed in the plan must be executed in accordance with al
applicable regulatory re4uirements, in~ludingcompliance with the propei- permits. In addition,
• this approval does not constitute payment approval for costs associated with the performance of
the activities in the plan. The Illinois EPA will review your complete request for partial or final
payment
frc~m
the LJnder~roundStorage Tank Fund
after
it is submitted.
The Agency appre3iates the information provided with the cover letter for the Site Classiticzl.tion
ReportlCqrrective Action Plan received November 13, 2002. The information provided does
•
seem to indicate that the two diesel tanks did not have a release. However, the information
provided at the tim e of the release indicates that the release reported on June 1. 1, ‘199 1 was for a
gasoline tank. The Corrective Action/Proposed Plan of Remediadon.prepared by A.RDL and
— 302
North
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— 2125 South First Street, Ch.tmp~~~,5. C~I820—4217)
333-6907
— 4500 S. Sixth 5~reetRd., Sprir~8rie(d,II. 62706 -
75.~i-6892
• COLUNSVI*.LZ — 2009 ~aIi S~ree1,CclIinsv(((e. IL c~2fl4.- 1618)346-S 20
— 21P0 W. \l2in SI., Suite 15, Marion, IL 62959—1618) 993-7200
ON R,c.’rc~,i~~
EXH1B~TJ9
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Page
2
received by the -Agency on August 8, 1991 and., the Application for Reimbursement from the
Under~oundStorage Tank Fund dated September 17, 1991 further supports this. The
Application for B eiirtbursement indicates that of the eleven tanks identified for removal one (I)
was a Waste’
Oil
lank, two (2) were Heating Oil/Kerosene tanks, one (1) was a Gasohol tank,
three
(3)
were Dit~seiFue.~tanks, three (3) were Regular Gasoline tanks and one (1) was an
Unleaded Gasolirte tank. All tanks were indicated as having had releases from both the tank and
the piping syste~flSconnected to them. Based on the information stated above, the Agency
Continues to believe that the $50,000.00 deductible originally assessed applies at this site.
If you have any questions or need further assistance, please contact John Barrett at (217) 782-
4869.
.
Sincerely,
• •
Thomas A. Henni nger
Unit Man~er
•
•
Leaking Under~cUndStorage Tank Section
Division ofRemediation Management
Bureau ofLand
‘ ,
•TrAE/JB.
cc:
United Science Industries
Division File
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Governor George Ryan signed House Bill 4471 into law ~s Public AcV92-0554 on June
24 2002 2u~lic Act
92-0554
amends the Environmental Protection Act Sections
57
1
572 57
5, 57 6, 57 7,57
8,
57 10, and
57 13
and adds Section 57 14A The Act includes
some
significant changes to the handling ofunderground storage tank releases Owners
or operators who reporta release on or after June 24, 2002 will no lonjer be able to
perform Site Classification, pursuant to
35
III Admn Code 732 307 and
35
111 Adm Code
732 312, and i~ustnow perform Site Investigation
However,
if a release was reported
prior to June 24, 2002, ~wners or operators may elect to perform Ste Investigation
—
.
—•
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.
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PublicAct”92-)554 also raised the thaximum amount that rnay be rthnbursed from the
S
Underground Storage Tank Fund. The Illinois EPA wifl ~equest that the Illinois Pollution
Control Board change the Illinois Adnunistrat~veCode to reflect Public Act 92-0554
This change is expected to occur in 2003
Public Act
92-0554
may be viewed
~
S
•
•
- • :.
• •
h~p://www•j~gis.state.~l.us/publicacrs/pubact92lacts/92-0554,hrml
•
The effective date ofPublic Act
92~-0554
was
June 24 2002
For additional information, please call the Illinois EPA, Leaking Underground Storage
Tank Section al: (217) 782-6762.
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February 11,2003
Illinois Environmental Protection Agency
Division of Leçjal Counsel
1021
North
Grand Avenue East
Springfield, IL 62792-9276
Re:
LPC# 119085502
—
Madison
County
Pontoon Beach
I
Mick’s Garage
1251 E~istChain of Rocks Road
LUST Incident No. 911582 & 990820
LUST Technical File
To Whom It
May
Concern:
~71 ~/63
Phone:
j
8) 735—2411
Fax: (618) 735—2907
E-Mail: unitedzcience~unltedscienc~.cot~,
United Science Industries, Inc. (USI), on behalf of our client, Mary Fincher Estate
is requesting a 90-day extension to the 35-day appeal period in regards to
the
IEPA correspondence dated January 10, 2003. A copy of the correspondence is
attached.
I appreciate your time and consideration in
questions or c;omments concerning the above,
2411.
this matter, If you
please contact me at
have any
(618) 735-
Sincerely yours,
UNITED SCIENCE INDUSTRIES, INC.
Bob Pulfrey
Project Manager
Enclosures
BP:b~
FXH~B~T
—3--
/~\
Ii I i
~
P.O.
Box
360
6295
East
Illinois Highway
15
-
Woodlawn, IllInois 62898-0360
L
UNITL)
SCIENCL INDUSTRIES
-
I
~//
MAILED
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
MICK’S GARAGE,
)
Petitioner,
)
v.
-
)
PCBNo. 03-
-
ILLINOIS ENVII~,ONMENTAL
S
(LUST Appeal Ninety Day Extension)
PROTECTION AGENCY,
)
Respondent.
)
S
REQUEST FOR NINETY DAY EXTENSiON
S
OF APPEAL PERIOD
NOW CO
MES
the Respondent, the Illinois ~nvironmenta1Protection Agency (“Illinois
EPA”), by one of’ its attorneys, John 1. Kim, Assistant Counsel and Special Assistant Attorney
General, and, pursuant to Section 40(a)(T1) of the Illinois Environmental Protection Act (415
ILCS
5/40(a)(l))
and 35111. 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
May
16, 2003, or any other date not more than a total of one hundred twenty-five
(125) days from January 11, ‘2003, the date of service of the Illinois EPA’s final decision. In
support thereof, the Illinois EPA respectftully states as follows:
S
I,
On January 10, 2003, the Illinois EPA issued a final decision to the Petitioner.
(Exhibit A)
2.
On February 11, 2003, the Petitioner made a written request to the Illinois EPA
for an extension ‘f 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 represent that the final decision was received no earlier than January 11, 2003.
(Exhibit B)
EXHIBIT ~
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 maybe necessary to resolve this matter.
WHEREF’JRE, for the reasons stated above, the parties request that the Board, in the
interest ofadministrative and judicial economy, grant this request for a ninety-day extension of
the thirty-five day period for petitioning for a hearing.
Respectfully submitted,
S
ILLiNOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Assistant Counsel.
Special Assistant Attorney General
Division ofLegal Counsel
S
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
5
5-
217/782-5544
217/782-9143 (TDD)
Dated: February 18, 2003
This filing submitted on recyclcd paper.
-
2
ILLINOIS POLLUTION CONTROL BOARD
March 6, 2003
MICK’S GARAGE,
)
)
Petitioner,
)
)
v.
)
PCB03-126
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
(90-Day Extension)
PROTECTION AGENCY,
)
)
Respondent.
)
ORDER OF THE BOARD (by T.E. Johnson):
On February 18, 2003, the parties placed into the U.S. mail ajoint request to extend the
35-day period within which Mick’s Garage may appeal a January 10, 2003 dct:xmination of the
Illinois Environmental Protection Agency (Agency),
See
415 ILCS
5/40(a)(l)
(2002); 35 Iii.
Adm. Code 105.206(c), 105.208(a), (c). Mick’s Garage was served with the Agency’s
determination on January 11, 2003. The Board received the joint request on February 21, 2003.
The 35-day filing deadline in this case extended to February 18, 2003.
See 35
Ill. Adru. Code
10 1.300(a). Because the joint request was postmarked February 18, 2003, the joint request was
timely filed.
See
35 Ill. Adrn. Code 10L300(b)(2). In this case, the Agency accepted a site
characterization report/corrective action plan, but applied a $50,000 deductible toward
reimbursement from the leaking underground storage tank fund regarding Mick’s Garage’s
underground storage tank site at 1251 East Chain of Rocks Road in Pontoon Beach, Madison
County. The Board extends the appeal period until May 16, 2003, as the partics request.
See
415 ILCS
5/40(a)(1)
(2002); 35 Ill. Adm. Code 105.208(a). IfMick’s Garage falls to file an
appeal on or before that date, the Board will dismiss this case and close the docket.
IT IS SO
ORDERED.
S
5
I~D~rothyM. Gunn, Clerk of the Illinois Pollution Control Board, c~rtifythat the Board
adopted the above order on March 6, 2003, by a vote of6-0.
Dorothy M. Gunn, Clerk
-
Illinois Pollution Control Board
EXHIB~~j~
CERTIFICATE OF SERVICE
I, the undersigned attorney at law,
hereby certify that on May 16, 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 I. 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
for
Petitioner,
