BEFORE THE POLLUTION
CONTROL BOARD
OF THE STATE OF ILLINOIS
Petitioner,
)
)
PCBNo.05-
/~
)
(TJST
Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
NOTICE
Dorothy M.
Gunn, Clerk
Illinois Pollution
Control Board
State
of Illinois
Center
100 West Randolph Street
Suite
11-500
Chicago,
IL
60601
MCLEAN COUNTY
ASPHALT,
)
)
vs.
RECE~VED
CLERK’S OFFtCE
FEB
14
2005
STATE OF ILLINOIS
Pollution Control Board
John
J.Kim
Assistant
Counsel
Special Assistant Attorney General
Division ofLegal 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 of which 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
By
:urtis W. Martin, 4t(torney for
McLean County
phalt,
Petitioner
RECE~VED
CLERK’S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF
ILLINOIS
005
STATE OF ILLINOIS
MCLEAN COUNTY
ASPHALT,
)
Pollution Control Board
)
Petitioner,
)
)
vs.
)
PCB
No. 05-
J
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR REVIEW OF FINAL AGENCY
LEAKING UNDERGROUND STORAGE TANK DECISION
NOW
COMES
the Petitioner,
McLean County Asphalt (“McLean”),
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 of the Illinois
Environmental
Protection
Agency
(“Agency”) in the above cause, and in support
thereof, McLean respectfully states
as follows:
1.
On January
6,
2005, the Agency issued a final decision which was
received by McLean on January
7,
2005,
a copy of which is attached hereto as
Exhibit A.
2.
The basis
for McLean’s.appeal is as follows:
This
appeal’s genesis is with McLean’s submittal to the Agency,
through its consultant,
United Science Industries,
Inc.
(“USI”), of a
Site
Classification Completion Work Plan
(“Plan”) and Budget (“Budget”)
dated
July 31,
2002.
By letter dated November 27,
2002, the Agency modified the Plan
and Budget by reducing the number of soil borings,
including a hydraulic
conductivity test,
and adjusting investigation
costs, analysis costs, personnel and
equipment costs
by $9,270.42.
Among such adjustment was the number ofhours
associated with the tasks for the Project Coordinator, Assistant
Project Manger,
and
Project Manager, but
no further
detail about such adjustments.
In response to the Agency’s November
27,
2002 letter, McLean
submitted an Amended Site
Classification Work Plan
(“Amended Plan”)
and Budget
(“Amended Budget”) dated February
11,
2003,
along with further explanation and
detail of the necessity and reasonableness
ofthe costs it proposed in the Amended
Budget.
On June
17,
2003, the Agency modified the Amended Plan by requiring
sample analysis and groundwater investigation,
while indicating
a total of three
(3)
borings/monitoring
wells would be sufficient to complete the investigation.
Based
upon these modifications,
the Agency adjusted the investigation
costs, analysis
costs, personnel costs, equipment costs,
field purchases
and other costs by a
cumulative
$20,579.50.
No particular breakdown
of the costs adjusted was provided
other than
a list of items affected by the adjustment.
The Agency
also again
modified the Amended Budget with an adjustment of $7,116.05 in investigation
costs, personnel costs and equipment costs.
The Agency
deemed these
costs to be
unreasonable
as submitted while providing no detail as to what specific costs and
tasks
were
adjusted,
except reference to “Number of hours to complete tasks listed
2
for” environmental technician,
project coordinator,
assistant
project manager,
project manager,
and professional
engineer.
In response to the Agency’s June
17,
2003 modifications
to the
Amended Plan and Amended Budget, McLean submitted
a second Amended Plan
and Budget dated September
9,
2004.
On January
6,
2005, the Agency completely
rejected the second Amended Budget which effectively adjusted another
$8,549.40
in personnel
costs, field purchases
and other costs, and handling charges associated
with project manager, professional
engineer, project coordinator,
draftsman,
and
environmental specialists time.
The Agency’s position under the January
6,
2005
letter was that it had previously notified McLean of its
“final action” which McLean
had not timely appealed thereby preventing the Agency from reconsidering or
revisiting its final action.
It is unclear on which “final action” the Agency relies for its January
6,
2005
decision and therefore
it is McLean’s position that
the Agency’s January
6,
2005 letter
is the true final action from which
McLean’s appeal is timely.
Moreover,
the Agency’s adjustments
and failure
to specify which tasks and
costs it deems to be
unreasonable
are
arbitrary
and capricious.
WHEREFORE, Petitioner,
McLean County Asphalt,
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 second Amended Site Classification Work
Plan and Budget dated September
9,
2004 as being reasonable, justifiable,
necessary, consistent with
generally accepted engineering practices,
and eligible for
3
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.
Robert E. Shaw
IL ARDC
No.
03123632
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
4
By
Petitioner
for
21 7/782-6
JAN
a~
McLean C
Attention:
1100 West
Bloomingt
Re:
LP
Bl~
i-I
LU
LL
Dear Mr.
The Illinoi
Classificat
budget, dà
Citations
i
Adrninistr~
The
budge
57.7(c)(4)
)
a
)
Roc~o~o
—
4302
Nort
E~CIN
—
o~
LAND.
—7
—
4~O0
S.
JLUNO1S
ENVIRONMENTAL
PROTECTION
AGEN~cY
0
1
No~rH
ORAND
AvENuE
~A~1-,
P.O.
~ox
19276,
SPR~NCIIELD,
iwNo’s
62794-9276. 217-782-3397
3
M~5
R.
THOMFSON CENTER.
100
WEST
RAN~OL?H.
5u’m
‘I 1-300,
Ci.ilcAGo,
IL
60601.
312-814-6026
R~EE
CIPRIANO,
D~RECiOR
CERTIFIED MAIL
7002
33A50
0000
:L~105 6~E6
ROD
R.
BLAGO;E~CH,GOVERNOR
nty
Asphalt Company
~rrestKaufman Jr.
arket Street
Illinois
61702
JAN
0
7
REC1~
-~
~.1
130205069
—
McLean County
aington/McLean County Asphalt
West
Market Street
Incident I’~o.
20011634
& 20011865
Technical File
.frnan:
~nvironmentalProtection Agency (Illinois EPA) has reviewedth~
~mend~d.Site
Work Plan Budget (budget) ~ubj:nitted.for
the above-referenced incident.
This
Septerriber
9, 2004, was received by the Illinois EPA on September 10, 2004
~isletter are from the Environmental Protection Act (Act) and
35
IllInois
‘c Code
(35
III. Adni. Code).
i
rejected for the reason(s) listed
in
Attachment A (Section 57.7(a)(1)
and
~f the
Act and
35
111. Adm. Code 732.305(c) or 732.312(j) and 732.503(b)).
All
future
o respondence must be submitted
to:
liii
is
Environmental Protection
Agency
Bu
uofLand—#24
Le
~ng
Underground
Storage Tank Section
10
1
North Grand Avenue East
Po
office Box 19276
Sp
r4gfield, IL
62794-9276
Please sub
i~t
all correspondence in
duplicate and include
the
Re:
block shown
at the b~ginniiig
of this lett
•
EXHIBIT~A
•~;in
Street.
Roddord.
IL 61103
...)9~5)
967-77~(J
•
D~s
PLMNE.5-.
9511
W.
~ison
St.,
Des Nair~e~,
ii.
60016—(847
294-4000
uth
State,
El~~n.
IL 60123
—
(g47~
~~o~-3i
31
•
—
5415 N.
University
St.,
Feotia, II.
61614— C309) 693-5463
N.
University
St.,
Peorl~.
fl~
~,(6~1
4—
(309)
693-5462
•
C
.irA1C~~
—2125
South
First Street, Champaign,
IL 61820— (217) 276-5900
x
hStt-~etRd., 5prin~fie)d,162706—
)217) 786-6892
•
C0WNSV~L~E—
2009
Ma1~
Street ColIinsviU~,
It. 62234—
(618) 346-3120
M~e,ON
—
2309 W.
Ms~r~
5t..
Suite
116.
Marion.
IL
62959—1615)
993-7200
und storage tank system owner or operator may appeal this decision to the Illinois
i~LtrolBoard.
Appeal rights are attached.
any q’uestiona or need further assistance, please contact Mi~dy
Weller at217/7~2-
ppel, P.E.
•
e
rground Storage Tank Section
emediation Management
\2001
I634&2001
1865-7.DOC
Attachment.A
olin, USI, Inc.
•
ion File
Page 2
An
undergr
Pollution
C
Ifyou have
6762.
Sincerely,
/CI~
(/~~A.C
Unit Mana,
Leaking
Ut
Division ol
~ureau oil
.HAC:MW~
Attachmen
un
Di-~
cc:
•
Appeal Rights
An undergr u~dstorage tank owner or operatormay appeal this final decision
to the
Illinois
Pollution C
n~ro1
Board pursuant to Sections 40 and 5.7.,7(c)(4)(D) ofthe Act by fling a petition
for a hearin
ithin 35
days after the date ofissuance ofthe final decision.
n:owever, the 35-day
period may
.
extended for.a period,oftime not.to-exceed 9Q ‘clays by written notice from ‘the.
owner or op r tor and the Illinois EPA within theinitial
35-day
appeal period.
Ifthe owner
or’
operator
wi
¶S
to receive a 90-thy extension~
a written request that includes a :~tatementofthe
date the fin
c~iecision
was received, along with a copy ofthis decision; must be sent to
the
Illinois EP
th soon as possible.
For informa
regarding the fling ofan appeal,
please contact:
t~o
b~y
Gunn, Clerk
‘Illin
~ PoIh~tionControl Board
State
~Illinois Center
100
St
Randolph, Suite
11-500
Chic
g
,IL
60601
312/
1
-3620
For informat
o
regarding the filing ofan extension5 please contact:
lilino s Environmental Protection Agency
Divis
o
ofLegal Counsel
1021
rth Grand Avenue East
Post
ice
Box
19276
Sprin
eld,
XL
62794-9276
217/7
-5544
Attachment A
Re:
L
# 1130205069
--
McLean County
•
B!1
mington/McLean County Asphalt
11
West Market Street
L
~S Incident No. 20011634&’200:11865
L
S
TechnicalFile.
•
‘
.•
Citations
is ‘attachnient are from the Environmental Protection Act (Act) and
35
Illinois
Adrninistr
t ye Code
(35
II.
Mm. Code).
L.
l~ ccordance with Section 57.7(c)(4) ofthe Act and 35 III. Adm.
Code 732503(b), any
t
on
.by the Illinois
EPA
to disapprove or modify a plan orbudget submitted pursuant
~
itle XVI’ofthe Act shall be provided to the owner or operator in writing within
120
•
s ofreceipt.
.
•
•
illinois EPA previously notified the owner or operator ofits final action.
Further,
i
ccordance with Section 57.7(c)(4) ofthe Act and 35
Ill. Adm~Code
732.503(f),
the
I
ii
ois EPA’s ~ictionto reject orrequire modification ofthe plan or budget, or the,
r
j
ction ofany plan or budget by operation oflaw, was subject to appeal to the Illinois
ltition Control Board within 35
days after the Illinois EPA’s
fixia
action.
The
i ure to
file an
appeal ofa final action
in a timely manner prevents the Illinois EPA
o
reconsidering or revisiting the final action.
HAC :M\
~.*A200
11 634&200 11 865-7Attachxnent A.DOC’
CERTIFICATE OF
SERVICE
I, the undersigned attorney
at law, hereby certify that
on February
g
2005,
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, A,~Iorneyfor
Petitioner,
McLea
County Asphalt
