JJN 16 200S
CERTIFIED MAIL

BEFORE THE POLLUTION CONTROL BOARD

THE STATE OF ILLINOIS

ONKEN'S, INCORPORATED,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB

~~--:--:

(LUST Permit Appeal)

NOTICE OF FILING AND PROOF OF SERVICE

To:

John T. Therriault, Acting Clerk

Illinois Pollution Control Board

100 West Randolph Street

State

of Illinois Building, Suite 11-500

Chicago, IL 60601

William Ingersoll

Division

of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

PLEASE TIf\KE NOTICE that

have today electronically filed with the Office of the Clerk of the

Illinois Pollution Control Board, pursuant to Board Procedural Rule 101.302 (d), a

PETITION FOR

REVIEW OF AGENCY LUST DECISION, a copy of which is herewith served upon the hearing officer

and upon the attorneys

of record in this cause.

The undersigned hereby certifies that a true and correct copy

of this Notice of Filing, together

with a copy

of the document described above, were today served upon the hearing officer and counsel of

record of all parties to this cause by enclosing same in envelopes addressed to such attorneys and to said

hearing officer with postage fully prepaid, and

by depositing said envelopes in a U.S. Post Office

Mailbox in Springfield, Illinois on the 20

day of July, 2009.

Respectfully submitted,

Onken's, Incorporated, Petitioner

BY:

MOH~Mfl

BY:

Patrick D. Shaw

MOHAN,

ALEWELT, PRILLAMAN & ADAMI

1 North

Old Capitol Plaza, Suite 325

Springfield, IL 62701-1323

Telephone:

217/528-2517

Facsimile:

217/528-2553

THIS FILING SUBMITTED ON RECYCLED PAPER

Electronic Filing - Received, Clerk's Office, July 20, 2009

* * * * * PCB 2010-007 * * * *

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ONKEN'S, INCORPORATED,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB ___ _

(LUST Permit Appeal)

PETITION FOR REVIEW OF AGENCY LUST DECISION

NOW COMES Petitioner, ONKEN'S, INCORPORATED (hereinafter "Onken's"),

pursuant to Section 40 of the Illinois Environmental Protection Act, 415 ILCS

5/40,

and Part 105

of the Illinois Pollution Control Board Rules, and hereby appeals the LUST decision issued on

June

16,2009, by Respondent Illinois Environmental Protection Agency ("Agency"), in which

the Agency rejected the plan and associated budget, and in support thereof states as follows:

Onken's is the owner or operator of underground storage tanks located at a facility

Easton, Mason County, Illinois. In 2008, a release was reported from a heating underground

storage tank at the facility and the release was assigned lEMA Incident

#20080544.

On June 3, 2008, the Agency received a Stage 1 Site Investigation Plan and

Budget, which was approved by the Agency on June 11,

2008.

Subsequently, Onken's consultants performed the work set forth in the approved

plan and budget.

On February 24,2009, the Agency received the Site Investigation Completion

Report and the

Stage 1 Actual Costs. The report stated that the "investigation work was

completed in accordance with the approved June 3,

2008 Stage 1 Site Investigation

Certification." Furthermore, the results ofthe completed investigation indicated that the Agency

should approve closure of the site and issue a No Further Remediation Letter.

On June 16,2009, the Agency rejected the Site Investigation Completion Report

and

Stage 1 Actual Costs, stating as follows:

The Amended 45-Day Report received September 28, 2008, contained the

required information needed for closure of this site. No further

documentation was requested by the Agency.

In addition, the budget for Stage 1 is rejected because the plan is rejected.

(Exhibit A)

Also on June 16,2009, the Agency issued a No Further Remediation Letter for the

site, based upon the Amended

45 Day Report received September 23, 2008. (Exhibit B)

While Petitioner agrees that a No Further Remediation Letter should be issued for

the site, it should be issued based upon the completion

of the approved site investigation work.

Without prior notice, the Agency has retroactively attempted to close the site to avoid payment

for the work needed to ensure compliance with all applicable environmental laws and regulations.

In particular, the monitoring wells developed for the site in October

of 2008 were necessary to

conduct the groundwater investigation required by the Board's regulations. (35 Ill. Admin. Code

§ 734.315(a)(2))

Because the Agency's decision is not necessary to ensure compliance with

applicable environmental laws and regulations, Petitioner asks the Board to reverse the Agency's

June

16,2009 decision and direct payment ofthe related site investigation activities, and the

associated attorney's fees incurred in the event that the Agency's decision is reversed

full or in

part.

WHEREFORE, Petitioner prays that: (a) the Agency produce the Record; (b) a hearing

Electronic Filing - Received, Clerk's Office, July 20, 2009

* * * * * PCB 2010-007 * * * *

be held; (c) the Board find the Agency erred in denying the report, (d) the Board direct the

Agency to approve the report, and

if necessary, reissue an NFR letter, (e) the Board award

payment

of attorney's fees; and

(f)

the Board grant Onken's such other and further relief as it just.

ONKEN'S INCORPORATED,

Petitioner,

By his attorneys,

MOHAN, ALEWEL ,PRILLAMAN & ADAMI

By:

MOHAN, ALEWELT, PRILLAMAN & ADAMI

1 N.

Old Capitol Plaza, Suite 325

Springfield, IL

62701

Tel: (217) 528-2517

Fax: (217) 528-2553

Electronic Filing - Received, Clerk's Office, July 20, 2009

* * * * * PCB 2010-007 * * * *

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021 NORTH GRAND AVtNUE EAST, P.O. Box 19276( SPRINGFIELD, ILLINOIS 62794-9276 - ( 217) 782-2829

JAMES R. THOMPSON CENTER, 100 WEST RANDOLPH, SUITE 11-300( CHICAGO( IL 60601 - (312) 814.6026

DOUGLAS

SCOTT, DIRECTOR

2171782-6762

CERTIFIED MAIL

JJN 16 200S

7008 1830 0001 4717 4344

Onken's, Incorporated.

Attn: Donald

Onken

P.O.

Box 72

Easton, I1linois 62633

Re:

LPC #

1250105005 -- Mason County

Easton! Onken's Incorporated

. 12544 South Route 10

Leaking UST Incident No. 20080544

Leaking UST Technical File

Dear Mr. Onken:

The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the

Site Investigation

Completion Report and Budget(report) submitted for the above-referenced incident. This report,

dated February

23,2009, was received by the Illinois EPA on February 24,2009. 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 Ill. Adm. Code).

The report is rejected for the reason(s) listed below (Sections S7.7(a)(5) and 57.7(c)(4) of the Act

and

35 Ill. Adm. Code 734.505(b) and 734.5l0(a)):

The Amended45-Day Report received September 28,

2008, contained the required

information needed for closure

of this site. No further documentation was requested

by the Agency.

In addition, the budget for

Stage 1 is rejected because the plan is rejected.

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

•

ROCKFORD -

4302

North Main Street, Rockford. IL

61103 - (815) 987.7760 •

DES PLAINES -

9511 W.

Harrison St., Des Plaines, IL

60016

- (647) 294-4000

ELGIN -

595

South State, Elgin, IL

60123 - (IJ47) 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 - (2,71 278.5

;00

COLLINSVILLE -

2009

Mall Street, Coliinsville. IL

62234 - (618) 346.5120 '

MARION -

2309

W. Main

St"

Suite

116,

Marion,

lL 62959 - (618) 99:'.7200

PRINTED ON ReCYCLm PAPER

Electronic Filing - Received, Clerk's Office, July 20, 2009

* * * * * PCB 2010-007 * * * *

Page 2

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.

If you have any questions or need further assistance, please contact Shirlene South at 217/558-

0347.

Sincerely,

~#(}~

~~l'P.E

Unit Manager

Leaking Underground

Storage Tank Section

Division of Remediation Management

Bureau

of Land

HAC:

SLS\

Environmental Management, Inc.

BOL File

Electronic Filing - Received, Clerk's Office, July 20, 2009

* * * * * PCB 2010-007 * * * *

Appeal Rights

underground storage tank owner or operator may appeal this final decision to the Illinois

Pollution Control Board pursuant to Sections 40 and S7.7(c)(4) of the Act by filing a petition for

a hearing within

35 days after the date of issuance of the final decision. However, the 3S-day

period may be extended for a period

of time not to exceed 90 days by written notice from the

owner or operator and the Illinois

EPA within the initial 3S-day appeal period. If the owner or

operator wishes to receive a

90-day extension, a written request that includes a statement of the

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 cOhtact:

Illinois Environmental Protection Agency

Division

of Legal Counsel

1021 North Grand Avenue East

Post Office Box 19276

Springfield,IL 62794-9276

2171782-5544

Electronic Filing - Received, Clerk's Office, July 20, 2009

* * * * * PCB 2010-007 * * * *

iLLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021 NORTH GRAND AVENUE EAST, P.O. Box 19276, SPRINGFIELD, ILLINOIS 62794-9276 - ( 217) 782.2829

JAMES R. THOMPSON CENTER, 100 WEST RANDOlPH, SUITE 11.300, CHICAGO, IL 60601 - (312) 814.6026

2171782-6762

Onken's, Incorporated.

Attn: Donald

Onken

P.O.

Box 72

Easton, Illinois 62633

Re:

LPC

1250105005 -- Mason County

Easton! Onken's Incorporated

12544

South Route 10

DOUGLAS

SCaD, DIRECTOR

CERTIFIED MAIL

7008 1830 0001 4717 4337

Leaking UST Incident No. 20080544 -- NFR Letter

Leaking

UST Technical File

Dear Mr. Onken:

The Illinois Environmental Protection Agency (Illinois EP A) has reviewed the Ameneded45 Day

submitted for the above-referenced incident. This information was dated

September 22, 2008

and was received by the Illinois EPA on September 23, 2008. 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 Ill. Adm. Code).

The Corrective Action Completion Report and the Licensed Professional Engineer Certification

submitted pursuant to

Section 57.7(b)(1) of the Act and 35 Ill. Adm. Code 734.1 35(d) indicate

the remediation objectives have

been met.

Based upon the certification

by Michael Keebler, a Licensed Professional Engineer, and pursuant

to Section 57.1

0 of the Act (415 ILCS

5/57.10),

your request for a no further remediation

determination is granted

under the conditions and terms specified in this letter.

Issuance

of this No Further Remediation Letter (Letter), based on the certification of the

Licensed Professional Engineer, signifies'that: (1) all statutory and regulatory corrective action

requirements applicable to the occurrence

have been complied with; (2) all corrective action

concerning the remediation

of the occurrence has been completed; and (3) no further corrective

action concerning the occurrence

is necessary for the protection of human health, safety, and the

environment.

Pursuant to Section 57.1 O( d) of the Act, this Letter shall apply in favor of the

following parties:

•

ROCKFORD

4302

ELGIN

North

595

Main

South

Street

State,

Rockford,

Elgin, lL

60123

61103

- (847)

- (815)987.7760

608.3131

•

PEORIA

•

Des

PLAINES

3415 N.

9511

UnrversitW.

tHarrison

St..

Peoria,

St.

Des

61614

Plaines.

- (309)

~Iiiw_"'''''''--''

.;t

BUREAU OF LAND. PEORIA -

7620 K

University St" Peoria. IL

61614 - (309) 693.5462

•

CHAMPAIGN -

2125

South First Street, Champaign, IL

61820 - (217) 278.5800

fOLLINSVILLE -

2009

Mall Street. Collinsville. IL

62234 - (618) 346.5120 •

MARION -

2309 W.

Main

St..

Suit'::

116,

Marion, IL

62959 -

(618)

993-7200

PRINTED

0'" RECYCLED

PAPER

Page 2

Onken Incorporated, the owner or operator of the underground storage tank system(s).

Any parent corporation or subsidiary of such owner or operator.

Any

c~-~\¥.ner.

~2-0l?~.ratQr,~ither.-_by

j9iI!:L~enancy "-!igl:lt-oJ-:_~ill.Yiyo~s~p',

0t:.

l3IlY Qther

party sharing a legal relationship with the owner or operator to whom the Letter is issued.

Any holder of a beneficial ihterest of a land trust or inter vivos trust whether revocable or

irrevocable.

Any mortgagee or trustee of a deed of trust of such owner or operator.

Any successor-in-interest of such owner or operator.

Any transferee of such owner or operator whether the transfer was by sale, bankruptcy

proceeding, partition, dissolution

of marriage, settlement or adjudication of any civil

action, charitable

gift,

or bequest.

Any heir or devisee of such owner or operator.

CONDITIONS AND TERMS OF ApPROVAL

LEVEL OF REMEDIATlON AND LAND USE LlMIT ATIONS

The remediation objectives for the above-referenced site, more particularly described in

the Leaking Underground

Storage Tank. Environmental Notice of this Letter, were

established in accordance with the requirements

of the Tiered Approach to Corrective

Action

Objectives (35 Ill. Adm. Code 742) rules.

As a result of the release from the underground storage tank. system(s) associated with the

above-referenced incident, the above-referenced site, more particularly described in the

attached Leaking Underground

Storage Tank. Environmental Notice of this Letter, shall

not be used in a manner inconsistent with the following land use limitation: There are

land use limitations.

The land use limitation specified in this Letter may be revised if:

Further investigation or remedial action has been conducted that doctunents the

attainment

of objectives appropriate for the new land use; and

A new No Further Remediation Letter is obtained and recorded in accordance

with Title XVII

of the Act and regulations adopted thereunder.

Page 3

PREVENTIVE, ENGINEERING, AND INSTITUTIONAL CONTROLS

Preventive:

None .

•• ¥., ••• --

Engineering: None.

Institutional: This Letter shall be recorded

as a permanent part of the chain of title for

the above-referenced site, more particularly described in the attached

Leaking Underground Storage Tank Environmental Notice

of this Letter.

Failure to establish, operate, and maintain controls in full compliance with the Act,

applicable regulations, and the approved corrective action plan,

if applicable, may result

in voidance

of this Letter.

OTHER TERMS

Any contaminated soil or groundwater removed or excavated from, or disturbed at, the

above-referenced site, more particularly described in the Leaking Underground Storage

Tank Environmental Notice

of this Letter, must be handled in accordance with all

applicable laws and regulations under

35 Ill. Adm. Code Subtitle G.

Further information regarding the above-referenced site can be obtained through a written

request under the Freedom ofInformation Act

(5 ILCS 140) to:

Illinois Environmental Protection Agency

Attention: Freedom

of Information Act Officer

Bureau of Land - #24

1021 North Grand Avenue East

Post Office Box 19276

Springfield,IL 62794-9276

Pursuant to 35 IlL Adm. Code 734.720, should the Illinois EPA seek to void this Letter,

the Illinois

EPA shall provide Notice of Voidance to the owner or operator of the leaking

underground storage tank system{s) associated with the above-referenced incident and the

current title holder

of the real estate on which the tanks were located, at their last known

addresses. The notice shall specify the cause for the voidance, explain the provisions for

appeal, and describe the facts in support

of the voidance. Specific acts or omissions that

may result in the voidance

of this Letter include, but shall not be limited to:

Any violation of institutional controls or industrial/commercialland use

restrictions;

Page 4

The failure to operate and maintain preventive or engineering controls

or to

comply with any applicable groundwater monitoring plan;

The

disturlJ~c~.

or remo\1al <;>f 9.9Ptarn.in1l!ion

th~.t]last>(!~AJ.ef1:jn-'plac~jn

accordance with the Corrective Action Plan or Completion Report;

The failure to comply with the recording requirements for the Letter;

Obtaining the Letter by fraud or misrepresentation; or

Subsequent discovery of contaminants, not identified as part of the investigative

or remedial activities upon which the issuance

of the Letter was based, that pose a

threat to human health or the environment.

Submit an accurate and official copy of this Letter, as recorded, 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

If you have any questions or need further assistance, please contact the Illinois EPA project

manager,

Shirlene South, at 217/558-0347.

appel,

P.E.

Unit

Manager

Leaking Underground

Storage Tank Section

Division of Remediation Management

Bureau

of Land

HAC:

SLS\

Attachments: Leaking Underground Storage Tank Environmental Notice

Legal Description

Environmental Management Incorporated

BOL File

PREP ARED BY:

Name:

Donald Onken

Onken Incorporated

Address: 12544

South Route 10

Easton, Illinois 62633

RETURN

TO:

Name:

Donald Onken

Onken

Incorporated

Address:

P.O. Box 72

Easton, Illinois 62633

(THE ABOVE SPACE FOR RECORDER'S OFFICE)

LEAKING UNDERGROUND STORAGE TANK ENVIRONMENTAL NOTICE

THE OWNER AND/OR OPERA TOR OF THE LEAKING UNDERGROUND STORAGE TANK SYSTEM(S)

ASSOCIATED

WITH THE RELEASE REFERENCED BELOW, WITHIN

DA YS OF RECEIVING THE No

FURTHER REMEDIATION LETTER CONTAINING THIS NOTICE; MUST SUBMIT THIS NOTICE AND

THE REMAINDER OF THE No FURTHER REMEDIATION LETTER TO THE OFFICE OF THE

RECORDER OR REGISTRAR OF TITLES OF MASON COUNTY IN WHICH THE SITE DESCRIBED

BELOW

IS LOCATED.

Illinois EPA Number: 1250105005

Leaking UST Incident No.: 20080544

Donald Onken, the owner and/or operator of the leaking underground storage tank system(s)

associated with the above-referenced incident, whose address is

P.O. Box 72, Easton Illinois, has

perfonned investigative and/or remedial activities for the site identified as follows:

Legal Description or Reference to a Plat Showing the Boundaries: See Attached

Common Address: 12544

South Route 10, Illinois 62633

Real Estate Tax IndexlParcel Index Number:

11-25-300-010-0060

Site Owner: Donald Onken

Land Use Limitation: There are no land use limitations.

See the attached No Further Remediation Letter for other tenns.

sIs

Leaking Underground Storage Tank Environmental Notice

Electronic Filing - Received, Clerk's Office, July 20, 2009

* * * * * PCB 2010-007 * * * *

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021 NORTH GRAND AVENUE EA57, P.O. Box 19276, SPRINGFIELD, ILLINOIS 62794-9276 - (217) 782-3397

JAMES R. THOMPSON C€NTER,

100

WEST RANDOLPH,

SUiTE 11-300,

CHICACO,

IL 60601 -

{31

21814-6026

Introduction

DOUGLAS P. SCOTT,

DIRECTOR

RECORDING REQUIREMENTS FOR

FURTHER REMEDIATION LETTERS

The Illinois Environmental Protection Agency's (Illinois EPA) Bureau of LandlLeaking

Underground

Storage Tank Section

issues

a No Further Remediation (NFR) Letter after a

demonstration

of compliance with Title XVI of the Environmental Protection Act and applicable

regulations

is made. Tne NFR Letter signifies that: (1) all statutory and regulatory corrective

action requirements applicable

to the occurrence have been complied with, (2) all corrective

action concerning the remediation

ofthe occurrence has been completed, and (3) no further

corrective action concerning the occurrence is necessary so long as the site is used in accordance

with the tenns and conditions of the NFR Letter.

Significance

\¥hen properly recorded, the NFR Letter holds legal significance for all applicable parties

outlined at

Section 57_l0(d) of the Environmental Protection Act. (See 415 ILCS

5/57.10(d).)

not properly recorded, the Illinois EPA

will

take steps to void the NFR Letter in accordance with

the regulations.

Duty to Record

The duty to record the

NFR Letter is

mandatory.

You

must

submit the NFR Letter, with a

copy

of any applicable institutional controls proposed as part of a corrective action

completion report, to the Office of the Recorder or the Registrar of Titles of the county in

which the site

located

within

days after receipt of the NFR Letter.

You must record the

NFR Letter and any attachments. The NFR Letter shall be filed in accordance with Illinois

law so

that it forms a permanent part of the chain of title to ensure current and future

users of

the property will be informed of the conditions and terms of approval including

Jevel of remediation; land use limitations; and preventive, engineering, and institu tional

controls. A certified

or otherwise accurate and official copy of the NFR Letter and any

attachments,

as recorded, must be submitted

the Illinois EPA. Failure to record the

NFR Letter in accordance with the regulations will make the NFR Letter voidable.

For More Information

Please refer to Tiered Approach to Corrective Action Objectives (TACO) Fact Sheet 3 available

from the Illinois

EPA by calling 1-888-299-9533 or by accessing it on the Illinois EPA Web site

http://vvwvv.epa_state.il.us/landltaco/3-no-further-remediation-Ietters.html.

ROCKfORD -

4302

North

Marn

Street, ROCkford.

61103

- (815) 987-7760

•

D,s

PI.AINts- 9511 W. Harrison St.,

Des

Plaines,

IL &0016 - (847) 294-4000

ELCIN 595 Soutn Stale. Elgin,

60123 -

(847) 608.3;

3 i

•

PEORIA - 5415 N. UrltverSIty 5t , Peoria,

Il 61014 -

(309) 693-5463

BUREA'"

LAND .

PEDRI~.

- 7620 N. university St., Peoria.

Il 61614

(309)

693.5462

•

(HAMPAlCN - 2125 Soulh First Street, Champaign, !L

01820 (217)

278.5800

SPRlNCflHD

SOO 5

Sixth Street Rd., SPllngfield

Il 627C6 - (21

786.6892

•

COlLiNS'vILlE 2009

Mall Street, Col!.nsville, IL

62234 -

!618i

346-51

MARIO" -

~j09

W. Main St.. Slll!! 116,

M~r'OI1,

Il 62959-(':>lBi 993-7200

Electronic Filing - Received, Clerk's Office, July 20, 2009

* * * * * PCB 2010-007 * * * *