S
OFFI
BEFORE THE POLLUTION
CONTROL BOARD
OF THE STATE OF ILLINOIS
Mi~y
2
&
2003
STATE
OF
DICKEY OIL
COMPANY,
)
POl/U~j0fl
COfltro7~d
Petitioner,
)
)
vs.
)
PCBNo.U~~~
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR REVIEW OF FINAL AGENCY
LEAKING UNDERGROUND STORAGE TANK DECISION
NOW COMES the Petitioner,
Dickey Oil Company (“Dickey”), 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 ofthe Illinois
Environmental
Protection Agency (“Agency”) in the above cause, and in support
thereof, Dickey respectfully
states as follows:
1.
On January
21,
2003, the Agency issued a final decision to Dickey,
a
copy of which is attached
hereto as Exhibit A.
2.
On February
20,
2003,
Dickey made a written request
to the Agency
for an extension of time by which to file a petition for review from the thirty-five day
period to ninety
days, a copy of which is attached hereto as Exhibit B.
3.
On February
25,
2003, the Agency joined
in Dickey’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:
Dickey submitted to the Agency, through its consultant United
Science
Industries, Inc., pursuant
to
35 III. Adm.
Code 732.312,
a “Method
3” Site
Classification Work Plan (“SCWP”) and corresponding budget.
Under 35 Ill. Adm.
Code 732.312(c)(1) and (2), a site classification under Method
3 requires the full
extent of the soil and groundwater contamination to be defined during the site
classification process by means
of the collection of sufficient data to make such
determination.
The SCWP and budget satisfy the requirements
ofthe Illinois
Environmental
Protection
Act, 415
ILCS
5/1
et seq.,
and the regulations
promulgated thereunder, in that
they were prepared and fully implemented in
accordance with generally accepted engineering practices
and their conclusions
were consistent
with the information obtained while implementing the Plan.
The costs
associated with each material,
activity
and service necessary to
accomplish the goals ofthe Plan and budget are similar in generally accepted
engineering practices
and technical protocol to those historically submitted
to and
approved by the Agency which the Agency now deems to be unreasonable
and
inconsistent with
generally accepted engineering practices.
Dickey’s site is rather unique in that it is larger than the typical corner
gas
station.
Two tank
beds were located at the site with product lines spanning greater
2
than average
distances and connecting multiple fuel pump islands to the
underground
storage tanks.
The site investigation
identified two distinct plumes of
soil contamination and
two distant plumes of groundwater contamination which
plumes eventually overlapped near the front of the site.
Thus, it was as if Dickey
was investigating two
adjoining leaking underground storage tank sites.
More
specifically:
(1).
The Agency’s determination that four (4) soil borings and eight
(8) monitoring wells were in excess of the minimum requirements
necessary to
comply with the Act and its regulations
is arbitrary
and capricious
and without
technical justification.
Further,
the Agency has failed to notify Dickey of which
borings
and which wells it deems to be unreasonable.
(2).
The Agency’s adjustment
of $490.00 for handling charges was on
merely a cost basis with no technical justification
and is therefore
arbitrary
and
capricious.
Further,
the Agency has failed to notify Dickey with specific reasons
why the sections of the Act or regulations
cited in its decision may be violated if the
Plan and budget are approved.
(3).
The Agency’s adjustment of $13,532.40 for investigation,
analysis, personnel and equipment
costs associated with the borings and wells as
excessive was on merely a cost basis
with no technical justification
and is therefore
arbitrary
and capricious.
Further,
the Agency has failed to notify Dickey with
specific reasons why the sections of the Act or regulations cited in its
decision may
be violated if the Plan and budget are approved.
3
WHEREFORE,
Petitioner,
Dickey Oil Company, 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 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.
~
(J~
/
Curtis W. Martin, At~Irneyfor
(\
Dickey Oil Compai~,
Petitioner
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
4
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
0
1
d21
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
RENEE
CIPRIANO,
DIRECTOR
217/782-6762
.
CERTIFIED
MAIL
7002
2030
0001
1.875
4941
JAN212Oll~
Dickey Oil Company
Attention: Bruce Dickey
333 West North Avenue
Flora, Illinois
62839
Re:
LPC #0250105030—Clay County
Flora/
Dickey Oil
Company
333
West North Avenue
LUST Incident No. 20010275
LUST Technical File
Dear Mr. Dickey:
The Illinois Environmental
Protection Agency (Illinois EPA) has
reviewed the Site
Classification
Work Plan (plan) submitted fortheabove-referenced incident. This plan,
dated September 19,2002,
was received
by the Illinois
EPA on
September 24,
2002.
Citations
in this letter are from the
Environmental Protection Act (Act) and 35 Illinois Administrative Code
(35
Ill. Adm. Code).
The Illinois EPA requiresmodification ofthe plan; therefore, theplanis conditionallyapprovedwith
the Illinois EPA’s modifications.
The Illinois EPA has determined that the modifications
listed
in
Attachment A are necessary to demonstrate compliance with Title XVI ofthe Act and 35111. Adm.
Code 732 (Section
57.7(a)(1)
ofthe Act and 35111. Adm.
Code 732.305(c) or 732.312(j)).
In addition, the budget is modified pursuant to Section 57.7(a)(1) ofthe Act and 35 Ill. Adm. Code
732.305(c)
or 732.312(j).
Based
on the modifications
listed
in
Section
2
of Attachment B,
the
amounts listed
in
Section
1
of Attachment B
are approved.
Please note that the costs
must
be
incurred in accordancewith the approvedplan. Be aware that the amount ofreimbursement may be
limited by Sections
57.8(e), 57.8(g),
and
57.8(d) ofthe Act, as well as 35
111. Adm.
Code 732.604,.
732.606(s), and 732.611.
ROCEFORD
-
4302 Norh Main Street, Rockford,
IL 61103 -181 5)987-7404
•
DES
P~tNEs
—
9511
W.
Harrison
St.,
Des
Plaines,
IL 60016- (847) 294~073
X
ELG1N
—595
South
State, Elgin
60123— (847) 608-3131
•
PEORIA
—5414 N. University
St.,
Peoria,
IL
61614— 1309) 693-5462
Ujj
CHAMPAIGN
—2125 South First Street, Champaign,
IL
61820—1217)
333-6907
SPRINGFIELD
—4500
S. Sixth Street Rd., Springfield,
IL 62706— (217) 786-6892
COLLINSVILLE—
2009 MaIl
Street,
Collinsville,
IL 62234—
(6181
346-5120
•
MARION
—2309W.
Main
St.,
Suite
116,
Marion,
IL 62959—1618)993-7200
Please note that, if the owner or operator agrees with the Illinois EPA’s modifications, submittal of
an
amended plan andlor budget, if applicable, is not required (Section
57.7(c)(4)
of the Act and
35
Ill. Adm. Code 732.503(f)).
Additionally, pursuant to Section
57.8(a)(5)
ofthe Act and 35111. Adm.
Code 732.3
05(e)
or 732.312(1), ifreimbursement will be sought forany additional
costs that maybe
incurred as a result ofthe Illinois EPA’s modifications,
an amended budget must be submitted.
PRINTED ON
RECYCLED
PAPER
Page 2
Please submit all correspondence in duplicate and include the Re: block shown
at the beginning of~
this letter.
Ifyou
have any
questions or need further assistance, please contact Donna Wallace
at 217/
524-
1283.
Sincerely,
Thomas A. Henninger
Unit Manager
Leaking Underground Storage Tank Section
Division ofRemediation Management
Bureau of Land
TAH:DW:dw\
C:
United Science Industries
Division File
Appeal Rights
An underground storage tank owner
or
operator
may
appeal this final dccision to the Illi~oj3
Pollution
Control Board pursuant
to
Sections
40
and
57.7(c)(4)(D)
of
the
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 of
time
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 of
this
decision,
must
be sent to the
Illinois EPA as soon as
possible.
For
information regarding
the
filing
ofan
appeal, please contact:
Dorothy
Chum, 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
of
an extension, please contact:
Illinois Environmental Protection
Agency
Division ofLegal Counsel
1021
North Grand
Avenue East
Post
Office Box
19276
Springfield, EL
62794-9276
217/782-5544
1
Attachment A
Re:
LPC #0250105030
--
Clay County
Floral Dickey Oil Company
333
west North Avenue
LUST Incident No. 20010275
LUST Technical File
Citations
in this
Attachment are
from
the Environmental
Protection Act
(Act)
and
35
Illinois
Administrative
Code
(35
Ill. Adm.
Code).
The installation of(4) soil borings and
(8) monitoring wells
is in excess ofthe minimum
•
requirements-necessary-to comply-with Title XVI and/or
35111. Adm. Code.
Forthe
purpose
of reimbursement,
since
these
activities
are in
excess
of those
necessary to
meet
the
minimum
requirements
of
the
Title XVI
of the
Act,
costs
for
such
activities
are
not
reimbursable (Sections
57.5(a)
and
57.7(c)(4)(C)
ofthe Act;
35
Iii.
Adrn.
Code
732.505(c)
and 732.606(o)).
DW:dw\
Attachment B
Re:
LPC
#
0250105030
--
Clay County
Floral Dickey Oil Company
333
West North Avenue
LUST Incident No. 20010275
LUST Technical File
Citations in this attachment are
from the Environmental Protection Act (Act)
and 35
Illinois
Administrative Code
(35
Ill. Adm. Code).
SECTION 1
As
a result ofthe Illinois
EPA’s modification(s) in Section
2 ofthis
Attachment B, the following
•
amounts have been approved:
SECTION 2
A.
$344.00 for an adjustment in handling
charges.
Handling charges are eligible for
payment only if they are equal to or less than the amount
determined by
the following
table (Section
57.8(g)
of the Act and 35
III. Adm.
Code 732.607):
Subcontract orField
Purchase Cost:
$0-$5,000
$5,001
-$15,000
$15,001
-
$50,000
$50,001
-
$100,000
$100,001
-
$1,000,000
Eligible Handling Charges as a
Percentage of Cost:
12
$600 Plus 10
of amount over $5,000
$1,600 Plus 8
ofamount
over $15,000
$4,400 Plus
5
ofamount over $50,000
$6,900 Plus 2
ofamount over $100,000
Handling charges were adjusted to meet deductions in classification planfbudget
B.
$13,532.40 for an adjustment in investigation, analysis, personnel and equipment costs
associated with the excessive borings and/or monitoring wells..
The Illinois EPA has
determined that these costs are not reasonable as submitted (Section 57.7(c)(4)(C) ofthe
Act and
35
III.
Adm.
Code 732.606(hh)).
One of the overall
goals of the financial review
is to
assure that costs
associated with materials, activities and services are reasonable
(35
Ill. Adm.
Code
732.505(c)),
Please note that additional information and/or supporting
documentation may be
provided to
demonstrate the costs submitted
are reasonable.
$13,668.40
$7,310.00
$20,000.00
$1,595.00
$45.53
$835.55
Investigation Costs
Analysis
Costs
Personnel
Costs
Equipment Costs
Field Purchases
and Other Costs
Handling Charges
DW:dw\
P.O.
Box
360
Phone:
(618) 735-2411
6295 East
Illinois Highway 15
Fax:
(618) 735.2907
Woodlawn, IllinoIs
62898-0360
E.M~il:
united~cience@unftodsc~ønc~.com
February 20, 2003
Illinois Environmental
Protection Agency
Division ofLegal
Counsel
1021
North Grand Avenue East
Springfield,
IL 62792-927~
Re:
LPC#
02~0105O30—C1ayCounty
Dickey Oil
Co.
-
Flora
333
West North Ave.
LUST Jncident No. 20010275
ATTN: Susan
Schroeder
Mrs. Schroeder:
With regard
to an
Agency letter dated January 21, 2003
and enclosed herein
for the above
referenced
project,
United Science Industries,
Inc. on
behalfof
our client, Dickey Oil
Co.,
is
requesting an
extension of
the
current petition
for
hearing
filing deadline of February
25,
2003
to
May 26,
2002,
an
extension of
90
days beyond
the current
35
day
petition
filing deadline.
I
appreciate
your
time
and
consideration
in
this
matter.
If you
have
any
questions
or
comments regarding this matter please
contact
me at (618) 735-241
1
Sincerely yours,
UNITED SCIENCE
INDUSTRIES, INC.
Zachary Bishop
Project Manager
RECEWED
Enclosures
DIV18~O~
of
Leg*J
Coun:ei
FEB
21
Environmon~j
Pro
cti•
AQency
IIN(.t
~
BEFORE
THE
POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
DICKEY
OIL
COMPANY,
)
Petitioner,
)
v.
)
PCB No.
03-
ILLINOIS
ENVIRONMENTAL
)
(LUST Appeal
—
Ninety Day Extension)
PROTECTION AGENCY,
)
Respondent.
)
REQUEST FOR NINETY DAY EXTENSION
OF APPEAL PE~UOD
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)(l))
and
35
Iii.
Adm.
Code
105.208,
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
May
27,
2003,
or
any
other
date
not
more
than a
total
of
one
hundred
twenty-five
(125)
days
from
January
21,
2003, the date
of the Illinois
EPA’s
final
decision.
The
125th
day
actually falls
on May 26,
a State holiday,
and
the next business
day
is May
27,
2003.
In support
thereof, the Illinois EPA
respectfully states as follows:
1.
On
January
21,
2003,
the
Illinois
EPA
issued
a
final
decision
to
the
Petitioner.
(Exhibit A)
2.
On
February
20,
2003,
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
for filing
a
petition
to
ninety
days.
The Petitioner did not represent when the final decision was received.
(Exhibit
B)
•EXH IBITL~
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 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
a
hearing.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent
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:
February
25,
2003
S
This
filing
submitted on
recyckd papcr.
2
CERTIFICATE OF SERVICE
I, the undersigned attorney at
law,
hereby certify that on
February 25, 2003,
I served true
and
correct copies of
a
REQUEST FORNINETY DAY EXTENSION OF APPEAL PERIOD,
by placing
true and
correct copies
in properly scaled and addressed envelopes and
by depositing
said sealed envelopes in a U.S.
mail drop box
located within Springfield,
Illinois, with sufficient
Certified Mail postage affixed thereto, upon the following named persons:
Dorothy M. Gunn, Clerk
Zachary Bishop, 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
ILLINOISENVIRONMENTALPROTECTION AGENCY
Respo
t
John
.
Kim
Assistant Counsel
Special Assistant Attorney General
Division of
Legal Counsel
1021 North
Grand
Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
CERTIFICATE OF SERVICE
I, the undersignedattorney at law, hereby
certify that
on May 23,
2003, I
served true andcorrect copies of a Petition for Review ofFinal Agency Leaking
Underground Storage
Tank Decision,
by
placing true and correct
copies
inproperly
sealed and addressed envelopes andby depositingsaid sealed envelopes
in a U.S.
mail drop boxlocated within Mt.
Vernon,
Illinois,with sufficient Certified
Mail
postage affixed thereto,
upon the following named persons:
Dorothy
M; Gunn, Clerk
John I. Kim
Illinois Pollution Control Board
Assistant Counsel
State ofIllinois Center
Special AssistantAttorney General
100West 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
~
/~j~
/
Curtis W. Martin, A~rneyfor
(
Petitioner, Dickey
ii Company