HENSON OIL CO.,
RECERfED
BEFORE THE POLLUTION CONTROL BOARD
CLERK’S OFFICE
OF THE STATE OF ILLINOIS
NOV 18 2004
STATE OF ILLINOIS
/
Pollution Control Board
)
Petitioner,
)
)
vs.
)
PCBNo. 05-
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
State ofIllinois 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 of the 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
ILARDC 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
Henson Oil
for
LEAK
S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
NOV 182004
OF THE STATE OF ILLINOIS
P~II~ti~~
STATE OF
Control
ILLINOIS
Board
HENSON OIL CO.,
)
)
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, Henson Oil Co. (“Henson”), 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 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, Henson respectfully states as follows:
1.
On October 8, 2004, the Agency issued a final decision to Henson
which was received by Henson on October 12, 2004 and a copy ofwhich is attached
hereto as Exhibit A.
2.
The grounds for the Petition herein are as follows:
Henson submitted to the Agency, through its consultant United
Science Industries, Inc. (“USI”), a High Priority Corrective Action Plan (“CAP”) and
corresponding budget (“Budget”) dated July 31, 2003. The Agency, by letter dated
December 19, 2003, did not approve the proposed groundwater remediation
activities and modified the Plan and Budget accordingly. The Agency further
modified the soil remediation activities by reducing the volume of cubic yards of
contaminated soil to be excavated and disposed. The Budget modifications
associated with the groundwater remediation activities that were not approved
resulted in substantial adjustments in analysis costs, personnel costs, equipment
costs, field purchases and other costs, and handling charges.
Henson did not dispute the Agency’s modifications to its CAP or Budget and
proceeded with the approved soil excavation and disposal during a three week
period in April, 2004. Upon completion of these soil remediation activities, Henson
determined that its actual personnel costs associated with such activities exceeded
those approved by the Agency in its December 19, 2003 decision. Specifically,
Henson discovered that the Budget modified and approved by the Agency did not by
oversight include a line item allowance for an environmental technician on site
during the soil excavation and disposal activities approved by the Agency.
Therefore, Henson, through USI, submitted an Amended Corrective Action
Plan Budget (“Amended Budget”) dated July 9, 2004. This Amended Budget
detailed the costs associated with the environmental technician on site during the
soil remediation activities which had not been included in the original approved
CAP and Budget. The Amended Budget also includes costs associated with the
preparation of the Amended CAP and Amended Budget as well as other unforeseen
costs associated with the soil remediation activities under the Agency approved
CAP.
2
The Amended Budget includes the M-1 Justification for Budget Amendments
and the B-i Proposed Budget Summary and Budget Total, and the G-i and G-3
Personnel Costs with regard to the soil excavation and disposal originally approved
by the Agency. These costs, which have now actually been incurred by Henson,
include environmental technician, project manager, environmental specialists,
professional engineer, professional geologists, project coordinator, draftsmen and
clerical time amounting to $11,119.50.
In response to Henson’s submittal of the Amended CAP and Amended
Budget, the Agency, by letter dated October 8, 2004, referencing only the “High
Priority Corrective Action Plan Budget” and indicated that it had previously
notified Henson of its “final action”, evidently referring to its December 19, 2003
letter. The Agency apparently takes the position that any appeal with regard to
this project should have been timely filed in response to its December 19, 2003
letter. Henson does not dispute the Agency modifications to the original CAP and
Budget with regard to the non-approval ofthe groundwater remediation activities
and costs associated therewith. Henson does, however, dispute the Agency’s
position that it is precluded from submitting to the Agency proposed amendments to
the CAP and Budget in order to properly address the reasonable and necessary
costs associated with the soil remediation activities already approved by the
Agency.
The original CAP and Budget, simply by oversight, did not include a line item
for technician time associated with the soil remediation activities, which costs have
now actually been incurred by Henson and which are reasonable, necessary, within
3
generally accepted engineering practices, and consistent with the CAP originally
approved by the Agency. The Agency’s failure to now approve of these costs is
arbitrary and capricious.
WHEREFORE, Petitioner, Henson Oil Co., 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 CAP and Amended 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.
By
Robert E. Shaw
ILARDC 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
Henson Oil Co.,
for
4
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
L
1021
NJORTh
GRAND AVENUE EAST, P.O. Box 19276, SPRINGFIELD, ILLINOIS
62794-9276, 217-782-3397
JAMES
R.
THOMPSON CENTER, 100
WEST
RANDOLPH, SUITE 11-300, CHlc~co,IL 60601, 312-814-6026
217/782-6762
Roo
R.
BLAGOJEVICH, GOVERNOR
RENEE CIPRIANO, DIRECTOR
CERTIFIED MAIL
~CTC~82flt~
Henson Oil Company
Attn: Jerry Henson
P.O. Box 712
Bloomington, IL 61702
Re:
LPC#1131055007--McLeanCounty
TowandalHenson Oil Co.
Old Highway 66
LUST Incident No. 20001913
LUST Technical File
Dear Mr. Henson:
7002 ~150 0000 1113 1122
RE CEIVED
1
ocr 12 REC’D
-L
The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the High Priority
Corrective Action Plan Budget (budget) submitted for the above-referenced incident. This
budget. dated July 9, 2004, was received by the Illinois EPA on July 12, 2004. Citations in this
letter are from the Environmental Protection Act (Act) and 35 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
35111. Adm. Code 732.405(c) and 732.503(b)).
All future correspondence must be submitted 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 in duplicate and include the Re: block shown at the beginning
of this letter.
An underground storage tank system owner or operator may appeal this decision to the Illinois
Pollution Control Board. Appeal rights are attached.
R0CKFORD .- 4302 North Main Street, Rockford, IL 61103 —1815) 987-7760
• Ots
PLAINES
— 9511 W. Harrison St., Des Plaines, IL 60016— (847) 294-4000
Eicir~
— 595 South State, Elgin, IL 60123 — 1847) 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—(217) 278-5800
SPRINGFIELD
— 4500 S. Sixth Street Rd., Springiie)d, tL 62706— (217) 786-6892
• COLuNsvILLE — 2009 MalI Street, Collinsville, IL 62234 — 1618) 346-5120
MARION
—2309 W. Main St., Suite 116, Marion, IL 62959—1618)993-7200
PRINTSD ON RECYCLED PAPER
EXHIBIT ~
Page2
If you have any questions or need further assistance, please contact Chris Covert at 2 17/785-
3943.
ThomasA. Henninger
Unit Manager
Leaking Underground Storage Tank Section
Division ofRemediation Management
Bureau ofLand
TAH:CC\
Attachment: Attachment A
Appeal Rights
cc:
United Science Industries, Inc.
Division File
AttachmentA
Re:
LPC#1131055007--McLeanCounty
Towanda!Henson Oil Co.
Old Highway 66
LUST Incident No. 20001913
LUST Technical File
Citations in this attachment are from the Environmental Protection Act (Act) and 35 Illinois
Administrative Code
(35
Ill. Adm. Code).
1. In accordance with Section
57.7(c)(4)
ofthe Act and 35 Ill. Adm. Code
732.503(b),
any action
by the Illinois EPA to disapprove or modify a plan orbudget submitted pursuant to Title XVI of
~theAct shall be provided to the owner or operator in writing within 120 days of receipt.
The Illinois EPA previously notified the owner or operator of its final action. Further, in
accordance with Section
57.7(c)(4)
ofthe Act and 35 Ill. Adm. Code 732.503(f), the Illinois
EPA’s action to reject or require modification ofthe plan or budget, orthe rejection of any plan
or budget by operation of law, was subject to appeal to the Illinois Pollution Control Board
within 35 days after the Illinois EPA’s final action.
TAH:CC\
Appeal Rights
An 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)
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 writtennotice from the
owner or operator and the Illinois 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
Illinois Pollution 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 ofLegal Counsel
1021 North Grand Avenue East
Post Office Box 19276
Springfield, IL 62794-9276
217/782-5544
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on November /c~’
2004, 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 ofIllinois 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
Curtis W. Martin,
orney for
Petitioner, He7~~l Co.
