NOTICE
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
OF THE STATE OF ILLINOIS STATE OF ILLINOIS
REQUEST FOR NINETY DAY EXTENSION
OF APPEAL PERIOD
EXHIBIT
CER’TIFIED MAIL

DivI8l~9EIvED

DIMTJCCI DEVELOPMENT

)

CORPORATION,

)

Petitioner,

)

ILLiNOIS ENVIRONMENTAL

)

PROTECTION AGEN.CY,

)

Respondent.

)

Dorothy M. Gunn, Clerk

flhinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

NOTICE

RECE~VED

CLERK’S OFFICE

MAY

200k

STATE OF ILLINOIS

PoIIut~onControl Board

PCBNo.04-

(LUST Appeal

—

Ninety Day Extension)

Lany Kowalczyk

DiMucci Companies

285 West Dundee Road

Palatine, IL 60074

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 ofwhich

are herewith served upon you.

Respectfully submitted,

ILLiNOIS ENVIRONMENTAL PROTECTION AGENCY,

Assistant Counsel

Special Assistant Attorney General

Division ofLegal Counsel

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, flhinois 62794-9276

217/782-5544

217/782-9143 (TDD)

Dated: May 20, 2004

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

RECE

CLERK’S OFFICE

WED

BEFORE THE POLLUTION CONTROL BOARD

MAY 24 200k

OF THE STATE OF ILLINOIS

STATE OF ILLINOIS

Pollution Control

Board

DI1MTJCCI DEVELOPMENT

)

CORPORATION,

)

Petitioner,

)

PCBNo.04-

ILLiNOIS ENVIRONMENTAL

)

(LUST Appeal

Ninety Day Extension)

PROTECTIONAGENCY,

)

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, John J. Kim, Assistant Counsel and Special Assistant Attorney

General, and, pursuant to Section 40(a)(1) of the Illinois Environmental Protection Act

(415

ILCS

5/40(a)(1))

and 35 Ill. Adm. Code 105.208, hereby requests that the Illinois Pollution

Control Board (“Board”) grant an extension ofthe thirty-five

(35)

day period forpetitioning for a

hearing to August 18, 2004, or any other date not more than a total of one hundred twenty-five

(125)

days from the date of the illinois EPA’s final decision. In support thereof, the Illinois EPA

respectflully states as follows:

On April

15,

2004, the Illinois EPA issued a final decision to the Petitioner.

(Exhibit A)

On May 10, 2004, the Petitioner made a written request to the Illinois EPA for an

extension oftime by which to file a petition for review, asking the Illinois EPA join in requesting

that the Board extendthe thirty-five day period for filing a petition to ninety days. The Petitioner

did not represent when the final decision was received. (Exhibit B)

The additional time requested by the parties may eliminate the need for a heariiig

in this matter or, in the alternative, allow the parties to identif~’issues and limit the scope ofany

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 forpetitioning for a hearing.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent

~2ITh

Assistant Counsel

Special Assistant Attorney General

Division ofLegal Counsel

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143 (TDD)

Dated: May 20, 2004

This filing submitted on recycled paper.

ILLI~OISENVIRONMENTAL 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

RENEE CIPRIANO, DIRECTOR

217/782-6762

CERTIFIED MAIL

?002 3150 0000 1~5? 0906

zWi~

DiMucci Development Corporation

Larry Kowalczyk

100 West Dundee Road

Palatine, illinois 60067

Re:

LPC #03105 15271

Cook County

Cicero / DeMucci

3035 South Cicero,

LUST Incident No. 20030198 and 20030279

LUST Technical File

Dear Mr. Kowalczyk:

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

Plan Budget Amendment, Site Investigation Plan, Site Investigation Completion Report, and

Corrective Action Plan submitted for the above-referenced incident. The Illinois EPA received

the plans and reports, dated December 23, 2003 on December 26, 2003 respectively. citations in

this letter are from the Environmental Protection Act (Act), as amended by Public Act 92-0554

on June 24, 2002, and 35 Illinois Administrative Code

(35

111. Adm. Code).

The Site Investigation Plan is rejected for the reason(s) listed below (Sections 57.7(a)(1) and

• 57.7(c)(4) of the Act and 35 III. Adm. Code 732.503(b)):

• 1.

The plan did not contain sufficient information as to how the full extent of contamination

would be defined both vertically and horizontally. The Site Investigation must be based

on the results of the soil samples collected from the limits of the early action excavation

pursuant to 35 IAC Section 732.202(h). The results of these soil samples have not been

submitted to the Agency. Please note that soil samples collected from the limits ofan

over excavation during early action over the limits allowed in 732.Appendix C are not

acceptable for defining the extent in the Site Investigation stage of the project.

The Site Investigation Completion Report is rejected for the reasOn(s) listed below (Sections

57.7(a)(5)

and

57.7(c)(4)

of the Act and 35 III. Adm. Code 732.503(b)):

1. The report did not provide sufficient documentation as to how the full extent of

contamination was defmed both vertically and horizontally.

ROCKEORD —4302 No~hMain Street, Rockford, IL 61103 — (815)

. Harrison St., Des Plaines, IL 60016 — (847) 294~D00

ELGIN —595 South State, Elgin, IL 60123 — (847) 608

rsity St., Peoria, IL 61614— (309) 693-5463

BUREAU

or LANO - PEORIA —7620 N. Univer5ity St.y Peoria, IL 61614—)

25 South First Street, Champaign, IL 61820— (217) 278-5800

SPRINGFIELD —4500 S. Sixth Street Rd., Springfield, IL 62706—12

09 MalI Street, ColIinsviIle, IL 62234 —(618) 346-5120

MARION

—2309 W. Mai

____________•

618) 993-7200

EXHIBIT

Page 2

2. The full extent of contamination has not been defined to the most stringent Tier 1

remediation objective. For purposes of define the extent Tier 1 residential remediation

objectives must be ~ised.

The Corrective Action Plan and the associated budget are rejected for the reason(s) listed below

(Sections

57.7(b)

and

57.7(c)(4)

of the Act and 35111. Adm. Code 732.503(b)).

The Corrective Action Plan is rejected for the following reason(s):

1. An explanation and supporting documentation must be provided that clearly describes

when and where the early action activities were conducted. A map must be provided that

shows the limits ofthe early action excavation and the results ofthe early action soil

sampling required pursuant to 35 IAC Part 732.202(h).

2. A demonstration through Site Investigation must be conducted that the soils removed

were contaminated above the applicable remediation objective. In addition, a

demonstration must be made that all contamination is attributable to the USTs at the site.

3. The plan includes the removal of soil that does not appear to be associated with the USTs.

4. The plan includes the removal of soil that are below the proposed industriallcommercial

remediation objectives.

The Corrective Action Plan Budget is rejected for the reason(s) listed in attachment A.

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

Pollution Control Board. Appeal rights are attached.

If you have any questions or need further assistance, please contact Brian Bauer at 217/782-3335.

cer~y,~~

Harry A. Chappel, P.E.

Unit Manager

Leaking Underground Storage Tank Section

Division ofRemediation Management

Bureau ofLand

HAC:BB\

Attachment: Attachment A

cc:

Environmental Protection Industries

Division File

Attachment A

Re:

LPC #0310515271

Cook County

Cicero / DeMucci

3035 South Cicero

LUST Incident No. 20030198 and 20030279

LUST Technical File

Citations in this attachment are from the Environmental Protection Act (Act), as amended by

Public Act 92-0554 on June 24, 2002, and 35 illinois Administrative Code (35 111. Adm. Code).

The budget includes costs that lack supporting documentation (35 Ill. Adm. Code

732.606(gg)). A corrective action plan budget must include, but not be limited to, an

accounting ofall costs associated with the implementation and completion of the

corrective action plan (Section 57.7(b)(3) of the Act). Since there is no supporting

documentation of costs, the illinois EPA cannot determine that costs will not be used for

activities in excess of those required to meet the minimum requirements of Title XVI of

the Act (Section 57.7(c)(3) of the Act and 35 Ill. Adm. Code 732.505(c) and 732.606(o)).

The budget includes costs that the owner or operator failed to justify are attributable to

each underground storage tank at the site (Section

57.8(m)(2)

of the Act.).

Costs incurred after completion of early action activities in accordance with 35 111. Adm.

Code 732.Subpart B by owners or operators choosing to conduct remediation sufficient to

satisfy the remediation objectives upon completion of early action activities are ineligible

• for payment from the Fund. These costs are for activities in excess of those required to

meet the minimum requirements of Title XVI ofthe Act (Sections,

57.7(c)(3)

of the Act

and 35 Ill. Mm. code 732.505(c) and 732.606(o)). The budget includes such costs.

One ofthe overall goals of the financial review is to assure that costs associated with

materials, activities, and services are reasonable (35 111. Adm. Code

732.505(c)).

The

budget includes costs that are not reasonable as submitted (Section

57.7(c)(3)

ofthe Act

and 35 Ill. Adm. Code 732.606(hh)). Please note that additional information and/or

supporting documentation may be provided to demonstrate the ~costsare reasonable.

The following items are not reasonable:

Professional Engineer rate;

Amount ofpersonnel time to prepare the corrective action plan;

Amount ofpersonnel time to oversee corrective action activities;

Amount of personnel time to prepare the corrective action completion

report;

•

The company vehicle rate;

• -

The rate for excavation, disposal and transportation;

The rate for backfilhing the excavation;

The budget includes costs for the excavation, transportation, and disposal of soil

contaminated below the propsed remediation objectives. These costs are not corrective

action costs. “Corrective action” means an activity associated with compliance with the

provisions ofSections 57.6 and 57.7 of the Act (Section 57.2 of the Act and 35 Iii. Adm.

Code 732.103). One of the eligibility requirements for accessing the Fund is that costs

are associated with “corrective action” (Section

57.9(a)(7)

ofthe Act and 35 111. Adm.

Code 732.505(c)).

The Illinois EPA has not approved the plan with which the budget is associated.

Therefore, the Illinois EPA cannot determine whether these costs are for activities in

excess ofthose required to meet the minimum requirements ofTitle XVI of the Act

(Section

57.7(c)(3)

of the Act and 35 Ill. Adm. Code

732.505(c)).

Costs for corrective

action activities and associated materials or services exceeding the minimum

•

requirements necessary to comply with the Act are not eligible for reimbursement from

the Fund

(35

III. Adm. Code 732.606(o)). It also cannot be determined whether the costs

are corrective action costs. “Corrective action” means an activity associated with

compliance with the provision of Section 57.6 and 57.7 of the Act (Section 57.2 of the

Act and 35 ill. Adm. Code 732.103). One ofthe eligibility requirements for accessing

the Fund is that costs are associated with “corrective action” (Section 57.9(a)(7) of the

Act and 35 III. Adm. Code 732.505(c)). In addition, it cannot be determined whether

these costs are reasonable as submitted (Section

57.7(c)(3)

of the Act and 35 ill. Adm.

•‘Code.~732;505(c)and 732.606(hh)).

‘‘

BB\

•

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 of issuance of the 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

own~ror 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 of this 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 of Illinois 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 ofLegal Counsel

1021 North Grand Avenue East

Post Office Box 19276

Springfield, IL 62794-9276

217/782-5544

CER’TIFIED MAIL

DivI8l~9EIvED

May 10, 2004

14 2004 °LlflseJ

Mr. John J. Kim, Esp.

EnVironmenta! Pro

Illinois Environmental Protection Agency

‘4geflc

tectio~

Division ofLegal Counsel

1021 North Grand Avenue East

Post Office Box 19276

Springfield, IL 62794-9276

Re:

LPC # 0310515271

—

Cook County

CicerolDiMucci

3055 South Cicero

LUST Incident # 20030198 & 20030279

Dear Mr. Kim:

As Vice President for DiMucci Development Corporation, I am submitting this letter to request a

90-day extension for appeal period regarding the Illinois Environmental Protection Agency

(IEPA) decision in the correspondence dated on April

15,

2004 (see attached copy of the

correspondence).

We strongly believe that the corrective actions completed on the above referenced property are

consistent with the requirements of Environmental Protection Act. In addition, we prefer to

schedule a meeting with you, Mr. Chappel, Mr. Bauer, and Mr. Clay to discuss the matters

instead ofaddressing the issues at the Pollution Control Board.

Thank you very much for your promptly attention. Should you have any questions, please do not

hesitate to contact us at your convenience.

Sincerely,

~Iucci D~~~t~oration

Larry Kowalczyk

Vice President ofConstruction

Enclosure:

Copy of the IEPA Correspondence dated April 15, 2004

EXHIBIT

OVER TWO BILLION DOLLARS WORTH OF DEVELOPMENT EXPERIENCE.

. .

AND GROWING.

285 W. Dundee Road • Palatine, IL 60074 • (847) 991-4400 • FAX (847) 991-9728 • www.dimucci.com • E-Mail dimucci@aol.com

CERTIFICATE OF SERVICE

I, the undersigned attorney at law, hereby certify that on May 20, 2004, I served true and

correct copies of a REQUEST FOR NINETY DAY EXTENSION OF APPEAL PERIOD, 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 Springfield, Illinois, with sufficient

First Class Mail postage affixed thereto, upon the following named persons:

Dorothy M. Gunn, Clerk

Larry Kowalczyk

illinois Pollution Control Board

DiMucci Companies

James R. Thompson Center

285 West Dundee Road

100 West Randolph Street

Palatine, IL 60074

Suite 11-500

Chicago, IL 60601

ILLINOIS ENVII~ONMENTALPROTECTION AGENCY,

R2~nden~.

Assistant Counsel

Special Assistant Attorney General

Division ofLegal Counsel

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143 (TDD)