BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
WEI ENTERPRISES,
vs.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Petitioner,
)
)
PCB No.
)
(UST Appeal)
)
)
)
flECEIVED~
CLERK’S
OFFICE
NOV 2 1 2003
STATE OF ILLINOIS
Pollution Control Board
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
Curtis W. Martin ttorney for
Wei Enterpr(~~etitioner
BEFORE THE POLLUTION CONTROL BOARDCLERK’S
OFF1ci~
OF THE STATE OF ILLINOIS
NOV
2
12003
WET ENTERPRISES,
)
STATE OF ILLINOIS
)
Pollution Control Board
Petitioner,
)
vs.
)
PCBNo.
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR REVIEW OF FINAL AGENCY
LEAKING UNDERGROUND STORAGE TANK DECISION
NOW COMES the Petitioner, Wei Enterprises, (“Wei”), 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 ofthe Illinois
Environmental Protection Agency (“Agency”) in the above cause, and in support
thereof, Wei respectfully states as follows:
1.
On July 15, 2003, the Agency issued a Final Decision to Wei, a copy of
which is attached hereto as Exhibit A.
2.
On July 16, 2003, Wei made a written request to the Agency for an
extension oftime by which to file a Petition for review to ninety days, a copy of
which is attached hereto as Exhibit B.
3.
On August 15, 2003, the Agency joined in Wei’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.
The grounds for the Petition herein are as follows:
Wei submitted to the Agency, through its consultant, United Science
Industries, Inc., (“USI”) its Application for Payment from the Underground Storage
Tank Fund pursuant to Section 57.8(a) of the Act and 35 Ill. Adm. Code 105.732,
subpart F. The Application for Payment covered the period from February 1, 2003
to March 31, 2003 and requested $9,161.06.
In response to the Application for Payment, the Agency declined to
prepare a voucher for submission to the Comptroller’s office for payment, indicating
that the costs requested in the Application for Payment were unreasonable under
Section 57.7(c)(4)(C) of the Act and 35 Ill. Adm. Code 732.606(hh). The Agency
further indicated in its letter that the costs sought to be reimbursed were not
approved pursuant to an Agency letter dated May 2, 2003 and that the proposed
Corrective Action Plan indicated that free product would be remediated by
excavation and disposal.
The May 2, 2003 Agency letter approved Wei’s first quarter Free
Product Removal Report (“FPRR”) submitted on March 6, 2003, but it did not
approve modifications to the free product recover system. According to the Agency,
it was not clear why modifications to the system were sought as it appeared to the
Agency that the free product was being collected as necessary or required under the
current system. The first quarter FPRR provided the Agency with information,
including diagrams, regarding the proposed modifications to the free product
recovery system, the reasons for its necessity, and when the modifications were to
be implemented. This report also provided an estimate for the costs ofthe
modifications. Wei provided even further information for the Agency by its second
quarter FPRR regarding the modifications implemented, again providing diagrams,
as well as the projected costs, all well beyond the minimum requirements of the
regulations.
Further, although 35 Ill. Adm. Code 732.203 (b) provides that for the
purposes of reimbursement, owners or operators are not required to obtain Agency
approval pursuant to section 732.202 (g) for free product removal activities
conducted more than 45 days after initial notification to the Agency ofthe release,
by letters dated June 2, 4 and 26, 2003, USI provided additional information and
explanation, including photographs, pertaining to the modifications to the free
product recovery system. This additional information and explanation outlined the
purposes ofincreasing the effective recovery area and more aggressively recovering
free product as free product was migrating between two inch monitoring wells and
beyond the current skimmer system.
The modifications, to implement a trench and collection system, are an
acceptable engineering practice as USI as a consultant has included such a system
at another site with the approval of the Agency. Since the costs associated with
modifying the current skimmer system to create the trench and collection sump
were to enhance the effective recovery ofthe free product, such costs are subject to
reimbursement.
35 Ill. Adm. Code 732.605(a)(1) provides that eligible corrective action
costs include early action activities conducted pursuant to subpart B. Subpart B
includes free product removal as part of the early action activities. Section
732.202(b)(6) requires the owner or operator to begin free product removal as soon
as practicable and in accordance with Section 732.203. Section 732.203(a) requires
the owner or operator to remove the free product “to the maximum extent
practicable,” and under Section 732.203(a)(1) that removal is to be conducted in a
manner that minimizes the spread ofcontamination by using recovery and disposal
techniques appropriate to the hydrogeologic conditions at the site. Moreover,
“abatement” of free product migration is the “minimum objective” for the design of
the free product removal system required under Section 732.203(a)(2).
USI, within the time prescribed by Section 732.203(a)(4), provided the
Agency with several FPRRs which included the minimum information required
therein. In fact, at the time of the modifications to the free product recovery
system, the Agency had been provided with the FPRR’s but had denied the
Corrective Action Plan. Therefore, any reference to excavation and disposal in the
denied Corrective Action Plan was irrelevant to the free product removal process
itself. The modification of the system as described above was therefore in
compliance with 732.203(a)(2) and as such the costs for the modification are
reimbursable. The Agency’s refusal to prepare a voucher for the $9,161.06 within
the Application for Payment covering February 1, 2003 to March 31, 2003 was
arbitrary and capricious and should be reversed by the Board.
WHEREFORE, Petitioner, Wei Enterprises, for the reasons stated above,
requests that the Board reverse the decision of the Agency and rule in favor of the
Petitioner’s request for preparation of a voucher for submission to the Comptroller’s
office for payment of its Application for Payment from the Underground Storage
Tank 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(1).
Curtis W. Martin
IL ARDC No. 06201592
SHAW & MARTIN, P.C.
Attorneys at Law
123 5. 10th Street, Suite 302
P.O.
Box 1789
Mt. Vernon, Illinois 62864
Telephone (618) 244-1788
Respectfully submitted,
SHAW & MARTIN, P.C.
By/~~
~
/
Curtis W.Martin,4ttorney for
Wei Enterprise ,Petitioner
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021
NORTH GRAND AVENUE EAST, P.O. Box 19276, SPRINGFIELD, ILLINOIS 62794-9276
JAMES
R.
THOMPSON CENTER, 100 WEST RANDOLPH, SUITE
11-300, CHICAGO,
IL 60601
Roo R.
BLAGOJEVICH, GOVERNOR
RENEE
CIPRIANO, DIRECTOR
217/782-6762
JUL 15 2003
Wei Enterprises
Attention: Susan Wei
Post Office Box
834
O’Fallon.IL 62269
Re:
LRC #1631255004--St. Clair County
ShilohlWei Enterprise
529 Maple Street
LUST Incident No. 982804
LUST FISCAL FILE
Dear Ms. Wei:
The illinois Environmental Protection Agency has completed the review ofyour application for
payment from the Underground Storage Tank Fund for the above-referenced LUST incident
pursuant to Section 57.8(a) ofthe Illinois Environmental Protection Act (Act), and 35 Iii. Adm.
Code 732. Subpart F. This information is dated April 30, 2003 and was received by the Agency
on May 2. 20.03. The application for payment covers the period from February 1, 2003 to
March 31. 2003. The amount requested is 59.161.06.
The deductible amount for this claim is 510.000.00. which was previously deducted from the
Invoice Voucher dated February 1 6. 2000. Listed in Attachment A are the costs which are not
being paid and the reasons these costs are not being paid.
On May 2. 2003, the .Agency received your complete application for payment for this claim. As
a result ofthe Agency’s review ofthis application for payment, a voucher Oannot be prepared for
submission to the Comptroller’s office for payment. Subsequent applications for payment that
have been/are submitted will be processed based upon the date complete subsequent application
for payment requests are received by the Agency. This constitutes the Agency’s final action with
regard to the above application(s) for paYment.
An underground storage tank owner or operator may appeal this final decision to the Illinois
Pollution Control Board (Board) pursuant to Section 57.8(i) and Section 40 ofthe Act by filing a
petition for a hearing within 35 days atler the date of issuance of the final decision. However,
the 35-day period may he extended for a p.eriod 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. If the
applicant wishes to receive a 90-day extension. a written request that includes a statement ofthe
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EXHIBIT,~~
Page 2
date the final decision wa~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
1 00 West Randolph. Suite 11-500
Chicago, Illinois 60601
-
312/814-3620
For infl~rmatiOflregarding the fling of an extension, please contact:
Illinois Environmental Protection Agency
Division of Legal Counsel
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
217/782-5544
If you have any questions or require further assistance, please contact Lieura Hackman of
my staff at 217/782-6762.
Sincere’y,
..
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/
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//
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/
L Doug~s E. Oakley, Manager
/
LUST Claims Umt
Planning & Reporting Section
Bureau of Lan~i
DEO:LH:jk\03 I 739.doc
Attachment
cc:
United Science Industries, Inc.
1:
Attachment A
Technical Deductions
Re:
LPC
#163255004
—
St. Clair County
ShilohfWei Enterprises
529
Maple Street
LUST Incident No. 982804
LUST Fiscal File
Citations in this attachment are from and the Environmental Protection Act (Act) and 35 Illinois
Administrative Code (35 II. Adm. Code).
Item #
D~scriptiOflof Deductions
1.
$9,161.06, deduction for costs which are unreasonable as submitted. (Section
57.7(c)(4)(C) of the Act and 35 III. Adm. Code 732.606(hh)
The biliing package reates to costs that were not approved in the Agency letter dated
May 2, 2003. In addition, the current proposed Corrective Action Plan indicates the
free product will be rernediated by excavation and disposal.
HAC:MW:mw\9828O4FiScalAttaChmeflt A.DOC
P.O.
Box 360
Phone; (618)735-2411
6295 East IllinoIs HIghway 15
Fi~x:(618) 735.2907
Woodlawn, IllInois 82898-0360
E-MaIl: unitedsclence@unitedscience.com
July 16,
2003
illinois Environmental Protection Agency
Division ofLeg2l Counsel
1021 North Grai~dAvenue East
Springfield, IL 62794-9276
DLvlslon ol Legal Counsel
Attu: JohnKim
JUL
212003
Re:
LPC# 1~31255004
—
St. Cla~r
County
Shiloh/Wei Enterprises
g
Y
529 Maple
St.
LUST Incident No. 982804
LUST TEChNICAL
FILE
Dear Mr. Kim:
United Science Industries,
Inc.
(LIS1),
on
behalf
of
our client, Wei Enterprises,
is
requesting a 90-day extension of the
35-day
appeal period in regards to the
IEPA
correspondence
included.
I appreciate your
time and
consideration in
this matter.
If you have
any
questions or
comments
regarding
this matter
please
contact
me at
618-735-2411
ext.
145.
Sincerely yours,
UNITED
SCIEI~~CEINDUSTRIES, INC.
Robert
J.
Puifre)
Project Manager
Enclosures
RJPjlr
I
EXHIBIT____
UNITED SCIENCE INDUSTRIES
BEFORE
TilE
POLLUTION CONTROL
BOARD
OF
THE
STATE OF ILLINOIS
WET ENTERPRISES,
)
Petitioner~
)
v.
)
PCB No. 04-
ILLINOIS ENVIRONMENTAL
)
(LUST Appeal
-
Ninety DayExtension)
PROTECTION AGENCY,
)
Respondent.
)
REOUEST FOR
NINIEI’Y
DAY EXTENSION
OF APPEAL PER1Q1~
NOW COMES
the Respondent, the Illinois Environmental Protection Agency (“Illinois
EPA”), by one of it;~attorneys, John J. Kim, Assistant Counsel and Special Assistant Attorney
General, and, pursuant to Section 40(a)(l) of the Illinois Environmental Protection Act (415
ILCS
5140(a)(1))
arLd
35
III. Adni. Code 105.208, hereby requests that the Illinois Pollution
Control Board (“Bo2trd”) grant an extension ofthe thirty-five
(35)
day period for petitioning for a
hearing to November 17, 2003, or any other date not more than a total ofone hundred twenty-
five
(125)
days from July
15,
2003, the date of the Illinois EPA’s final decision. In support
thereof, the illinois EPA respectfully states as follows:
1.
On Ji.zly
15,
2003, the Illinois EPA issued a final decision to the Petitioner,
(Exhibit A)
2.
On July 16, 2003, the Peritiotier 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 extend
the
thirty-five day period for filing a petition to ninety days. The Petitioner
did not represent wh!n the final decisionwas received. (Exhibit B)
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 may be :aecessary to
resolve this
matter.
1
EXHIBIT ~
WHEREFOI~.E,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 pc~riodfor petitioning for a hearing.
Respectfully submi~ed,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Assistant Counsel
Special Assistant Attorney Generai
Division of Legal Counsel
1021 North Grand
Avenue,
East
P.O. Box 19276
Sprin~fleld,Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated:~August
15,
2D03
This filing
submittcd
on recycled
paper.
2
CERTIFICATE OF SERVICE
I,
the undersined attorney at law, hereby certify that on August 15,
2003,
.1 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 enve1ope~in a U.S. mail drop box located within Springfield, Illinois, with sufficient
First Class Mail postage affixedthereto, upon the following named persons:
Dorothy M. Gunu, Clerk
Robert
5.
Puifrey, Project Manager
Illinois Pollution Control Board
United Science Industries
James R. Thompson Center
P.O. Box 360
100 West Randolph Street
6295 East Illinois Highway 15
Suite 11-500.
Woodlawn, IL 62898-0360
Chicago, IL 60601
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
.1.
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand
A
enue, East
P.O. Box 19276
Springfield, Illinois 62794-9276.
217/782-5544.
217/782-9143
(TDD)
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on November
____
2003, I served true and correct copies of a Petition for Review ofFinal 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
4~t~orneyfor
Petitioner, Wei ~Ja/1~erPrises