)
PCB No. 05-~*
)
(UST Appeal)
)
)
)
)
)
Petitioner,
)
RECE~VEO
CLERK’S OFFICE
JAN 192005
STATE OF ILUNDIS
Pollution Control ~oard
Respondent.
)
NOTICE
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
John J. Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, IL 62794-9276
PLEASE TAKE NOTICE that I have today filed with the office 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
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
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
GATEWAY FS, INC.,
vs.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
By
Gateway
‘etitioner
RECEIVED
CLERK’S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
JAN 192005
OF THE STATE OF ILLINOIS
Pollution
STATE OF
Control
ILLINOIS
3oard
GATEWAYFS, INC.,
)
)
Petitioner,
)
)
vs.
)
PCBNo. 05-
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR REVIEW OF FINAL AGENCY
LEAKING UNDERGROUND STORAGE TANK DECISION
NOW COMES the Petitioner, Gateway FS, Inc. (“Gateway”), by one ofits
attorneys, Curtis W. Martin of Shaw & Martin, P. C., and, pursuant to Sections
57.7(c)(4)(D) and 40 of the Illinois Environmental Protection Act (415 ILCS
5157.7(c)(4)(D)
and 40) and 35 Iii. 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, Gateway respectfully states as follows:
1.
On October 1, 2004, the Agency issued a final decision to Gateway, a
copy ofwhich is attached hereto as Exhibit A.
2.
On October 6, 2004, Gateway made a written request to the Agency for
an extension of time by which to file a petition for review to ninety days, a copy of
which is attached hereto as Exhibit B.
3.
On November 5, 2004, the Agency joined in Gateway’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 November 18, 2004, the Board entered an Order extending the time
by which Gateway could file a petition to February 7, 2005, a copy of which is
attached hereto as Exhibit D.
5.
The grounds for the Petition herein are as follows:
On August 4, 2004, Gateway submitted an Amended High Priority
Corrective Action Plan (“Amended Plan”) and Amended Budget (“Amended Budget”)
which was rejected by the Agency by letter dated October 1, 2004 with reference to
40 ILCS 5/57.7(c)(4) and 35 Ill. Adm. Code 732.503(b). In its letter, the Agency
indicated that the investigation costs, analysis costs, personnel costs, equipment
costs, field purchases, and other costs and handling charges within the Amended
Budget were identical to those presented in the original Corrective Action Plan and
Budget, “with a few exceptions.” As a result, the Agency asserted that it had
previously notified Gateway of its action regarding these costs, presumably
referring to its letter dated January 6, 2004.
The costs included in the Amended Budget consisting of investigation
costs of $1,449.96, analysis costs of $1,080.00, personnel costs of $19,291.42,
equipment costs of $870.00, field pur~chasesand other costs of $48,201.58 and
handling charges of $19.20, totaling $70,912.16, are by their very nature those that
were included within the original budget addressed by the Agency’s letter of
2
January 6, 2004. However, the Agency, in that January 6, 2004 letter modified the
original budget by adjusting numerous proposed costs and requiring an additional
scope of work for those same adjusted costs.
The Agency’s initial modification of the original Plan under its
January 6, 2004 letter was to extend the soil excavation in order to remove the soil
that was contributing to the groundwater contamination and to provide for removal
and proper disposal of accumulated groundwater. However, within that extension
of the Plan, the Agency conversely adjusted costs for investigation ($371.02),
analysis ($578.00), personnel ($17,682.83), equipment ($300.00), field purchases
and other costs ($28,206.42), and handling charges ($19.20), for a total in
adjustments of $47,157.47.
Upon submitting an amendment to the Plan and Budget on
January 16, 2004, Gateway included costs of the expanded groundwater treatment
along with the costs of the original Budget which were necessarily included in the
costs of the Amended Budget. The Agency responded by letter dated May 20, 2004
by approving an additional $208.00 in analysis costs. The Amended Plan and
Budget then submitted by Gateway on August 4, 2004 contains new and different
information and justification for the Amended Plan not already addressed by the
Agency. Therefore, the Agency’s letter of October 1, 2004, in response to the
Amended Budget ofAugust 4, 2004, is a new basis from which Gateway now
appeals. Moreover, the Agency’s various adjustments described above are without
technical justification and are arbitrary and capricious and should be reversed.
3
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
WHEREFORE, Petitioner, Gateway FS, Inc., for the reasons stated above,
requests that the Board reverse the decision of the Agency and rule in favor of
Petitioner’s request for approval of its Amended High Priority Corrective Action
Plan and Budget as being reasonable, justifiable, necessary, consistent with
generally accepted engineering practices, and eligible for reimbursement from the
UST Fund and that Petitioner recover its attorney’s fees and costs incurred herein
pursuant to 415 ILCS 5/57.8(1) and 35 Ill. Adm. Code 732.606(g).
Respectfully submitted,
SHAW & MARTIN, P.C.
(
,/CurtisGatewayW.FS,In.,Martin,
Petitionerttorney
for
4
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021
NORTH GRAND AVENUE EAST,
P.O. Box 19276,
SPRINGFIELD, ILLINOIS
62794-9276,217-782-3397
JAMESR. THOMPSON CENTER,
100
WEST RANDOLPH, SUITE
11-300,
CHIcAGo,
IL 60601, 312-814-6026
ROD
R. BLAGOJEVICH, GOVERNOR
RENEE CIPRIANO, DIRECTOR
217/782-6762
CERTIFIED MAIL
OCT
7002 3150 0000 1113 8~?~
Gateway FS, Inc.
78
(
(ici 04REc’~
Re:
LPC
#1570405003
—
Randolph County
I.
Prairie Du Rocher/Gateway FS, Inc.
“C” Avenue
LUST Incident Nos. 20000027 and 20000698
LUST Technical File
Dear Mr. Birchier:
The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the amendment to the
High Priority Corrective Action Plan Budget submitted for the above-referenced incident. The
Illinois EPA received this amendment, dated August 4, 2004, on August
5,
2004. Citations in
this letter are from the Environmental Protection Act (Act) and 35 Illinois Administrative Code
(35 III. Adrn. Code).
The amendment to the High Priority Corrective Action Plan Budget is rejected for the reason
listed in Attachment A (Section
57.7(c)(4)
of the Act and 35 Ill. Adm. Code 732.405(c) and
732.503(b)).
All future correspondence must be submitted to:
Illinois Environmental Protection Agency
Bureau of Land
-
#24
Leaking Underground Storage Tank Section
1021 North Grand Avenue East
Post Office Box 19276
Springfield, IL 62794-9276
Please submit all correspondence in duplicate and include the Re: block shown at the beginning
ofthis letter.
An underground storage tank system owner or operator may appeal this decision to the Illinois
Pollution Control Board. Appeal rights are attached.
ROCKEORD —4302 No~hMain Street, RockIord, IL 61103 —(815) 987-7760
• Dts PLAINES — 9511 W. Harrison St., Des Plaines, IL 60016 —(847) 294-4000
ELCIN — 595 South State, E)gin, IL 60123 — (847) 608-3131
•
PEORIA — 5415 N. University St., Peoria, IL 61614 — (309) 693-5463
BUREAU OF LAND - PEORIA —7620 N. University St., Peoria, IL 61614— (309) 693-5462
•
CHAMPAIGN — 2125 South First Street, Champaign, IL 61820—1217) 278-5800
SPRINGFIELD —4500 5. Sixth Street Rd., Springfield, II 62706—1217) 786-6892
• COLUNSVILLE —2009 MaIl Street, Collinsvi)Ie, IL 62234—1618) 346-5120
MARION — 2300 W Main St Suite 116 Manon IL 62959—1618) 99D 7200
1 ~
—
Page 2
If you have any questions or need further assistance, please contact Trent Benanti at 217/524-
4649.
Sincerely,
Unit Manager
Leaking Underground Storage Tank Section
Division of Remedi ation Management
Bureau ofLand
MTL:TLB :H:\Projects\Gateway FS, Inc\Letter7a.doc
Attachments: Attachment A
Appeal Rights
c:
United Science Industries, Inc.
Division File
T.
Lowder
4,
Attachment A
Re:
LPC #1570405003
—
Randolph Càunty
Prairie Du Rocher/Gateway FS, Inc.
“C” Avenue
LUST Incident Nos. 20000027 and 20000698
LUST Technical File
Citations in this attachment are from the Environmental Protection Act (Act) and
35
Illinois
Administrative Code
(35
III. Adm. Code).
In
accordance with Section
57.7(c)(4)
ofthe Act and 35 III. Adm. Code
732.503(b),
any
action by the Illinois EPA to disapprove or modif~’a plan or budget submitted pursuant to
Title XVI ofthe Act shall be provided to the owner or operator in writing within 120
days ofreceipt..
The investigation costs, analysis costs, personnel costs, equipment costs, field purchases,
other costs and handling charges are identical to those presented in the original High
Priority Corrective Action Plan Budget (with a few exceptions). As such, the Illinois
EPA previously notified the owner or operator ofits final action regarding thesecosts..
In accordance with Section
57.7(c)(4)
ofthe Act and 35 III. Adm. Code 732.503(f), the
Illinois EPA’s action to reject or require modification ofthe High Priority Corrective
Action Plan or High Priority Corrective Actipn Plan Budget, or the rejection ofany High
Priority Corrective Action Plan or High Priority Corrective Action Plan Budget by
operation oflaw, was subject to appeal to the Illinois Pollution Control Board within 35
days after the Illinois EPA’s final action.
If the owner or operator will seek reimbursement for any additional costs that may be
incurred as a result of the Illinois EPA’s modifications to the High Priority Corrective
Action Plan, an amended High Priority Corrective Action Plan Budget must be submitted
and approved prior to the issuance ofa No Further Remediation (NFR) Lettei- (Section
57.8(a)(5)
ofthe Act and 35 Ill. Adm. Code
732.405(e)).
The amended budget must
include only the costs over the previous budget.
MTL :TLB :H:\Projects\Gateway FS, Inc\7aa.doc
• ,
d
Appeal Rights
An underground storage tank owner or op~eratormay appeal this final decision to the Illinois
Pollution Control Board pursuant to Sections 40 and
57.7(c)(4)(D)
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 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. Ifthe 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 ofan appeal, please contact:
Dorothy Gunn, Clerk.
Illinois Polluticn Control Board
State ofIllinois Center
100 West Randolph, Suite 11-500
Chicago, IL 60601
312/814-3620
For information regarding the filing ofan 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
P.O. 8ox 360
6295 East Illinois Highway 15
Woodlawn, Illinois 62898-0360
October
6, 2004
~Th i~D
Phone:
(618) 735-2411
Fax: (618) 735-2907
E-Mail: unitedscience@unitedscience.com
Illinois Environmental Protection Agency
Division of Legal Counsel
1021 North Grand Avenue East
Springfield, IL 62792-9276
Re:
LPC# 1570405003-Randolph County
Prairie Du
Rocher
—
Gateway FS, Inc.
“C”
Avenue
LUST Incident No. 20000027 &
20000698
ATTN: John
Kim
Dear Mr. Kim:
United Science Industries, Inc. (USI), on behalf of our client, Gateway FS, Inc. is
requesting a 90-day extension to the 35-day appeal period in regards to the
IEPA correspondence included.
I appreciate your time and consideration in this matter.
questions or comments regarding this matter please contact
2411 ext. 165.
Sincerely yours,
UNITED SCIENCE INDUSTRIES, INC.
Karen S. Bartling
Project
Manager
Enclosures
If you have any
me at (618) 735-
EXHIB1T_-~
~M~flEDSC~.Z?E
JNDtJSTRIES
11/88/2084 .14:41
5187352777
SLINGSHOT WIRELESS
PAGE ~2
H)o~4 ~~/j2.
BEFORE THE POLLUTION CONT1&OL BOARD
OF THE STATE OF ILLINOIS
GATEWAY FS, INC,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Dorothy M. Gunn, Clerk
illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, 1L 60601
Petitioner,
)
)
)
PCB No.
05-
)
.
(LUST Appeal
—
Ninety Day Extension)
)
)
NOTICE
Karen S. Bartling, Project Manager
United Science Industries
P.O. Box
360
6295 East Illinois Highway 15
Woodlawn, IL 62898-0360
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 OF APPEAL PERIOD, copies of which
are herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
J(Jin.
j,
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.0, Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated; November
5,
2004
EXHIBiT
z
Respondent.
11/08/2004
14:41
6197352777
SLINGSHOT
____
L’JIRELESS
PAGE 03
BEFORE THE POLLUTION CONTROL
BOARD
OF THE STATE OF ILLINOIS
GATEWAY FS, iNC.,
)
Petitioner,
)
)
PCB No.
05-
ILLINOIS ENVIRONMENTAL
)
(LUST Appeal
—
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, Jphn J.
Kim,
Assistant Counsel and
Special Assistant
Attorney
General, and, pursuant to Section 40(a)( I) of the Illinois Environmental Protection Act
(415
ILCS
5/40(a)(l))
and
35
ill. Adm. Code l05.20~,hereby requests that the Illinois Pollution
Control Board (“Board”) grant an extension of the thirty-fIve
(35)
day period for petitioning for a
hearing to February 7,
2005,
or any other date not more than a total of one hundred twenty-five
(125)
days from the date of service of the Illinois EPA’s final decision. The
125th
day is
February
6, 2005,
a
Sunday, and the next business day is February
7,
2005.
Tn
support thereof,
the illinois EPA respectfullystates as follows:
1.
On October 1, 2004, the illinois EPA issued a final decision to the Petitioner.
(Exhibit A)
2.
On October 6, 2004, the Petitioner made a written request to the Illinois EPA for
an extension of time by which to file a petition for review, asking the Illinois EPA join in
requesting that the Board extend the thirty-five day period thr filing a petition to ninety days.
The Petitioner’s request included information that represented that the final decision was
received on October
4, 2004.
(Exhibit B)
009 M~II
Sreel. ColJinsviIIe,
II. 62234 ~618)346-5120
~“~L~tLL)
—
MAgION
—2309
W, Ma~
—
1618) ~93.72Qo
11/08/2084
14:41
6187352777
SLINGSHOT WIRELESS
PAGE
04
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 identi~jissues and limit the scope of any
hearing that maybe necessary to resolve this matter.
WHEREFORE, for the reasons stated above, the parties request that the Board, in the
interest of administrative and judicial economy, grant this request for a ninety-day extension of
the thirty-five day period for petitioning for ahearing.
Respectflully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
John J
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O.Box 19276
Spdngfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDID)
Dated: November 5, 2004
This lThng submittcd
on recyded paper.
2
ILLINOIS POLLUTION CONTROL BOARD
November 18, 2004
GATEWAY FS, INC.,
)
)
Petitioner,
)
)
y.
)
PCB
05-84
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
(90-Day Extension)
PROTECTION AGENCY,
)
)
Respondent.
)
ORDER OF THE BOARD (by J.P. Novak):
On November 8, 2004, the parties timely filed a joint notice to extend the 35-day period
within which Gateway FS, Inc. (Gateway FS) may appeal an October 1, 2004 determination of
the Illinois Environmental Protection Agency (Agency).
See
415 ILCS
5/40(a)(
1) (2002); 35 Iii.
Adm. Code 105.402, 105.406. The Agency rejected petitioner’s amendment to the high priority
corrective action planbudget for Gateway FS ‘s leaking underground petroleum storage tank
facility located at C Avenue, Prairie Du Rocher, Randolph County.
The Board extends the appeal period until February 7, 2005, as the parties request.
See
415 ILCS
5/40(a)(1)
(2002); 35 Ill. Adm. Code 105.406. If Gateway FS 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 November 18, 2004, by a vote of
5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
EXHIBIT 1~
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on January /0
2005, I served true and correct copies of a Petition for Review of Final Agency
Leaking Underground Storage Tank Decision, by placing true and correct copies in
properly sealed and addressed envelopes and by depositing said sealed envelopes in
a U.S. mail drop box located within Mt. Vernon, Illinois, with sufficient Certified
Mail postage affixed thereto, upon the following named persons:
Dorothy M. Gunn, Clerk
John J. Kim
Illinois Pollution Control Board
Assistant Counsel
State of Illinois Center
Special Assistant Attorney General
100 West Randolph Street
Division of Legal Counsel
Suite 11-500
1021 North Grand Avenue, East
Chicago, IL 60601
P.O. Box 19276
Springfield, IL 62794-9276
urtis
(Petitioner~
for
,
Inc.
