NOTICE OF
FILING
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601-3218
John J. Kim
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
RO.
Box
19276
Springfield, Illinois
62794-9276
PLEASE
TAKE NOTICE
that
I
have today
filed with
the
Office
of the
Clerk of the
Pollution
Control Board the Motion for Leave
and Verified Petition to
Appear
Pro Hac Vice
on
behalfof Mac’s in the above referenced matter, a copy ofwhich is herewith served upon you.
Respectfully submitted,
HATCHETT & HAUCK
LLP
Dated:
February 3, 2005
(7~J4~
David L.
Hatchett, #19383-49
10 West Market Street, Suite
1025
Indianapolis, iN
46204
Telephone:
(317) 464-2620
Facsimile:
(317) 464-2629
david.hatchett~h2lawyers.corn
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAC’S CONVENIENCE STORES LLC,
Petitioner,
vs.
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
RECEIVED
CLERK’S OFFICE
FEB
07
2005
STATE OF ILLINOIS
PoHution Control Board
PCB 05-101
(UST APPEAL)
Back to top
)
)
)
)
)
)
)
)
)
•
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
MAC’S CONVENIENCE STORES LLC,
)
FEB
072005
Petitioner,
)
PCB 05-101
STATE OF ILLINOIS
)
(UST APPEAL)
Pollution Control Board
vs.
)
)
)
ILLINOIS
ENVIRONMENTAL
PROTECTION
)
AGENCY,
)
Respondent.
)
MOTION FOR LEAVE
TO APPEAR
PRO HAC VICE
Pursuant
to
35
Illinois
Administrative
Code
101.400,
David
L.
Hatchett
respectfully
moves for admission
pro hac vice:
1.
David
L.
Hatchett
is
a
partner of the law
firm Hatchett
&
Hauck
LLP,
10
West
Market Street, Suite
1025,
Indianapolis, Indiana 46204.
2.
David
L.
Hatchett
received
his
J.D.
degree
from
Indiana University
School
of
Law in Indianapolis,
Indiana and was admitted to the Bar in the State
ofIndiana in
1996.
3.
David L. Hatchett is a member in good standing ofthe Bar in the State ofIndiana,
and no disciplinary proceedings have ever been filed and none are pending against him.
4.
The Verified Petition in Support of
Pro Hac Vice
Admission of David L. Hatchett
is attached to this motion as Exhibit A.
WHEREFORE,
the undersigned respectfully requests
that the
Court
grant him
leave
to
appear as counselpro
hac vice
in this
action on behalf ofMac’s Convenience Stores LLC.
Respectfully
submitted,
HATCHETT & HAUCK
LLP
Dated:
February 3,2005
______________________________
Davi4JHat~hett3-#-W3~-49---——
10 West Market Street, Suite
1025
Indianapolis, IN
46204
Telephone:
(317) 464-2620
Facsimile:
(317) 464-2629
david.hatchett@h21awyers.com
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on February 3, 2005, I served
a true
and
accurate copy of the foregoing, by
placing a true and correct
copy in a properly
sealed and
addressed
envelope
and
by
depositing
said
sealed envelopes
in
a
U.S.
mail
drop box
located
within Indianapolis,
Indiana,
with
sufficient
First Class
Mail postage affixed thereto,
upon
the
following namedpersons:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center, Suite
11-500
100 WestRandolph Street
Chicago, Illinois 60601-3218
John J. Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O.
Box 19276
Springfield, Illinois 62794-9276
David
L. Hatchett
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FEB
072005
MAC’S CONVENIENCE STORES LLC,
)
STATE OF ILLINOIS
Petitioner,
)
PCB 05-101
Pollution Control Board
)
(UST APPEAL)
vs.
)
)
)
ILLINOIS
ENVIRONMENTAL
PROTECTION
)
AGENCY,
)
Respondent.
)
VERIFIED PETITION OF DAVID L. HATCHETT IN SUPPORT OF
PRO
HAC
VICE
ADMISSION
1.
Pursuant
to
35
Ill.
Adm.
Code
101.400,
David
L.
Hatchett,
as
attorney
for
the
Petitioner, Mac’s Convenience
Stores
LLC, now petitions the Court for leave
to
appear
in
this
action as counsel pro
hac vice.
2.
Mr.
Hatchett
is
currently
not
a
resident of the
state of Illinois,
is
not
regularly
employed
in
the
State
of Illinois,
and
is
not
regularly
engaged
in
business
or
professional
activities in the
State ofIllinois.
3.
Mr. Hatchett is employed at the law firm ofHatchett &
Hauck
LLP,
10 W.
Market
Street, Suite
1025, Indianapolis,
Indiana 46204,
(317) 464-2620, facsimile (317) 464-2629.
4.
•
Mr.
Hatchett
is
a member
in
good
standing
and
licensed
to
practice
law
in
the
State of Indiana since
1996; his Indiana attorney registration number is
19383-49.
5.
Mr. Hatchett has never been suspended or disbarred and has never resigned from
the practice of law
as
a result of a
disciplinary
discharge, investigation,
or proceeding
in
any
jurisdiction.
6.
No
disciplinary proceedings
are presently pending
against Mr.
Hatchett
in
any
jurisdiction.
7.
Mr. Hatchett currently has no matters before any court in Illinois.
8.
There
is
good cause why Mr. Hatchett should
be
admitted to
appear in
that there
has been
an
attorney-client relationship
with the
client, Mac’s
Convenience
Store
LLC, for an
~
of time.
____
_____________
________
9.
By
letter dated December
16,
2004, the Illinois Pollution
Control Board indicated
that
an
attorney
licensed
to
practice
in
another
state
could
represent
Mac’s
Convenience
Stores LLC in
the above-captioned
matter, so
long
as the Board
grants a
motion to
appear
pro
hac vice
pursuant to 35111.
Adm. Code
10l.400(a)(3).
WHEREFORE, Mr. Hatchett respectfully requests
this Court to grant him
leave to appear
in this cause.
I affirm, under the penalties ofperjury, that the foregoing representations are true.
Dated:
February
3, 2005
Respectfully submitted,
HATCHETT & HAUCK
LLP
~____
David L.
Hatchett, #19383-49
10 West Market Street, Suite
1025
Indianapolis, IN
46204
Telephone:
(317) 464-2620
Facsimile:
(317) 464-2629
david.hatchett@h2lawyers.com
STATE OF INDIANA
)
)
SS:
COUNTY OF MARION
)
Before me, the undersigned, a Notary Public in
and for said County and State, personally
appeared
b&vtd
L t-1~fd~f1-,
who acknowledged the execution of the foregoing instrument for and
on behalfof said entity.
Witness my hand and Notarial Seal this
day of
b
,
2005.
My Commission Expires: June 23. 2009
k.
-_______
Miya
.
Evans, Notary
ublic
•
•
Residing in Henry County,
Indiana
ILLINOIS
ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
RECEIVED
CLERK’S OFFICE
FEB
07
2005
•
STATE OF
ILLINOIS
Pollution Control Board
ORDER FOR ADMISSION OF DAVID L. HATCHETT
PRO
HAC
VICE
On consideration of the Verified
Petition of David
L.
Hatchett
in
Support
of
Pro
Hac
Vice
Admission,
it
is
hereby
ordered
that
the Motion
for Leave
to
Appear
Pro
Hac
Vice
is
granted.
David L.
Hatchett’s appearance for Mac’s Convenience
Stores LLC shall be entered as
a matter ofrecord.
• IT IS
SO ORDERED.
I, Dorothy M.
Gunn, Clerk ofthe Illinois Pollution Control
Board,
certify
that the Board
adopted the above order on
_________,
2005,
by a vote of____
DISTRIBUTION:
Dorothy M.
Gunn, Clerk
Illinois Pollution Control Board
David L. Hatchett
Hatchett & Hauck
LLP
10 W.
Market Street, Suite
1025
Indianapolis, Indiana 46204
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
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
vs.
MAC’S CONVENIENCE STORES LLC,
)
Petitioner,
)
)
(UST APPEAL)
)
)
)
)
)
)
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FEB
072005
MAC’S CONVENIENCE
STORES LLC,
Petitioner,
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
NOTICE OF FILING
Dorothy M.
Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601-3218
John J. Kim
Assistant Counsel
Special Assistant Attorney General
Division ofLegal
Counsel
1021
North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk of the
Pollution Control Board the Appearance of David L.
Hatchett on behalfofMac’s in the above
referenced matter, a copy ofwhich
is herewith served upon you.
Respectfully submitted,
HATCHETT & HAUCK
LU’
Dated:
February
3,
2005
7~-S’4~
David L.
Hatchett, #19383-49
10 West Market Street, Suite
1025
Indianapolis, IN
46204
Telephone:
(317) 464-2620
Facsimile:
(317) 464-2629
david.hatchett@h2lawyers.com
vs.
PCB 05-101
(UST APPEAL)
STATE OF ILLINOIS
Pollution Control Board
)
Back to top
)
)
)
)
)
)
)
)
MAC’S CONVENIENCE STORES LLC,
Petitioner,
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
APPEARANCE
LLC.
I hereby file my Appearance in this
proceeding, on
behalf of Mac’s Convenience
Stores
Respectfully submitted,
HATCHETT &
HAUCK
LLP
Dated:
February 3, 2005
David L.
Hatchett, #19383-49
10 West Market Street, Suite
1025
Indianapolis, IN
46204
Telephone:
(317) 464-2620
Facsimile:
(317) 464-2629
david.hatchett@h2lawyers.com
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on February 3, 2005,
I served a true
and accurate copy of the foregoing, by placing
a true and correct copy
in a properly sealed and
addressed
envelope
and
by
depositing
said
sealed envelopes
in
a
U.S.
mail
drop box
located
within
Indianapolis,
Indiana, with
sufficient
First Class
Mail postage affixed thereto,
upon the
following named persons:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center, Suite
11-500
100 West Randolph Street
Chicago
Illinois 60601 -~21
R
John J. Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
~~~i02J
North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
vs.
RECEIVED
CLERK’S OFFICE
FEB
072005
STATE OF ILLINOIS
Pollution
Control Board
PCB 05-101
(UST APPEAL)
Back to top
)
)
)
)
)
)
)
)
)
David L.
Hatchett
RECEIVED
•
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FEB
072005
NOTICE OF FILING
STATE
OF ILLINOIS
PCB 05-101
Pollution
Control Board
(UST APPEAL)
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601-3218
John J. Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O.
Box 19276
Springfield, Illinois 62794-9276
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk of the
Pollution Control Board Mac’s Amended Petition for Review ofthe Final Agency Underground
Storage Tank Decision in the above referenced matter, a copy ofwhich is herewith served upon
you.
Respectfully submitted,
HATCHETT & HAUCK
LLP
Dated:
February 3, 2005
~D~I4~1
David
L. Hatchett, #19383-49
10 West Market Street, Suite 1025
Indianapolis, IN
46204
Telephone:
(317) 464-2620
Facsimile:
(317) 464-2629
El ~
El
1,
~f,’h ,~tti~i~1,
~)
I
‘,ixr,i~rc
i’e~ry,
MAC’S CONVENIENCE
STORES LLC,
)
Petitioner,
)
)
vs.
)
)
)
ILLINOIS
ENVIRONMENTAL
PROTECTION
)
AGENCY,
)
Respondent.
)
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
FEB
072005
MAC’S CONVENIENCE STORES LLC,
)
Petitioner,
)
PCB 05-101
STAJE OF ILLINOIS
)
(UST APPEAL~0
tiOn
Control
Board
vs.
)
)
)
ILLINOIS
ENVIRONMENTAL
PROTECTION
)
AGENCY,
)
Respondent.
)
AMENDED PETITION FOR REVIEW OF FINAL AGENCY
UNDERGROUND STORAGE TANK DECISION
The
petitioner,
Mac’s
Convenience
Stores
LLC
(“Mac’s”)
hereby
files
its
Amended
Petition and requests that the Illinois Pollution Control Board (“Board”) review the final decision
of the Illinois
Environmental
Protection
Agency
(“Agency”)
in
the
above-referenced
case.
In
support thereof, Mac’s respectfully states as follows:
Facts and Procedural History
1.
Mae’s
owns
and
operates
a
gasoline
service
station
on
property
located
at
105
South
Front
Street,
Braidwood,
Will
County,
Illinois
(“Site”).
On
December
31,
2003,
Mac’s reported a release ofpetroleum at the Site.
The Site was assigned
Incident No.
20031894
based
on
the
presence of hydrocarbon odors
in
the
convenience
store
building
and
elevated
concentrations ofgasoline constituents in groundwater.
Mac’s retained American Environmental
Corporation
(“American”)
to
complete
Early
Action
and
Site
Investigation
and
Corrective
Action,
including
release
investigation
and
confirmation, preparation
of a
45-Day Report,
and
preparation ofa Site Investigation Plan (“SIP”) and Budget.
2.
On February
12,
2004,
American timely
submitted
on behalf of Mac’s
a
45-Day
Report to document Early Action activities conducted at the site.
•
1
3.
On June 21,
2004,
American
submitted on behalf of Mac’s a SIP
and Budget for
investigation to
determine the
nature, concentration,
direction of movement, rate of movement
and extent of contamination as well as the physical features ofthe site and surrounding area that
may affect contaminant transport and risk to human health and safety and the environment.
4.
On October 21,
2004, the Agency
issued
a Final Decision to
Mac’s in
which the
SIP and associated Budget and the 45-Day Report were rejected.’
5.
On
November 11,
2004,
American
submitted
a
Request
for Re-Review to
the
Agency.
6.
On November
24,
2004,
counsel
for the
Agency
timely filed
a joint
notice
to
extend the
35-day
response period,
and
the Board
extended
the
appeal
period
to
February
24,
2005, as was requested.
7.
Because
American
had
not
yet
received
notice
of
the
extension
filing,
on
November24,
2004, Mac’s filed its Petition for Review with the Board.
8.
On December
16,
2004,
the Board
asked Mac’s to
file an amended
petition filed
by
an
attorney
and
clarifying
Mac’s position
on
the Agency’s rejection of the
45-Day Report.
The Board
set
February
3,
2005
as the
filing
deadline
for
this
Amended
Petition.
Thus,
this
Amended Petition is timely filed.
Statement of Issues for Review
and
Legal Basis for Challenge to Determination
9.
Mac’s
seeks
administrative review of the Agency’s
Final Decision rejecting the
SIP,
Budget,
and
45-Day Report submitted by
Mac’s.
Mac’s challenges the
form
and
basis
of
the Agency’s
Final Decision and
believes that
the Agency’s Final
Decision
is
without factual
‘As instructed by
the Clerk Office personnel and to avoid
duplication, the
attachments from the original
Petition
are
not attached to this Amended Petition.
However,
we do
incorporate by
reference all of those
attachments into
this
Amended Petition.
2
basis
or
legal
support,
is
arbitrary
and
capricious
and
is
otherwise
not
in
accordance
with
applicable law for multiple reasons, including but not limited to the following reasons enunciated
below.
10.
Mac’s
consultant,
American,
prepared
the
June
21,
2004
SIP
and
Budget
in
accordance with
the
Environmental Protection
Act (“Act”)
and
generally accepted engineering
practices.
American’s Kenneth M.
Miller,
P.E., P.G.,
who participated in preparing the
SIP and
Budget,
is
a
Licensed
Professional
Engineer
and
Geologist
with
fourteen
(14)
years
of
experience in the environmental
consulting industry.
The
SIP
detailed the procedures necessary
to
determine the nature,
concentration, direction of movement, rate of movement and
extent of
contamination as well as the physical features
of the site
and
surrounding
area that
may
affect
contaminant transport and risk to
human health and safety and the environment.
11.
In accordance with 415
ILCS
5/57.7(a),
the Budget included an accounting of all
costs associated with the implementation and completion ofthe
SIP.
These
costs are reasonable
and are necessary to perform the site investigation activities included in the SIP.
12.
In its Final Decision, the Agency cited as one reason for rejecting the
SIP
and the
45-Day Report the
purported failure
to
investigate
and
confirm
the
nature
and
amount
of a
release.
However,
Mac’s
consultant
performed
release
investigation
and
confirmation
steps
including UST systems tightness testing in accordance with
35
Ill.
Adm.
Code
170.580.
Mac’s
conducted a site assessment to measure for the presence ofa release where contamination is most
likely to
be
present
based
on
the
known environmental
contamination
and
hydrocarbon
odor
inside the store
building.
The site assessment
consisted
of air,
soil
and
groundwater
sampling
and analysis.
Laboratory
analyses confirmed the presence~fgasolineindicator contaminants in
____
soil
and
groundwater
in
concentrations
in excess
of the Tier I remediation
objectives at
35
Ill.
3
Adm.
Code Part 742.
Elevated concentrations ofhydrocarbons were also detected by
laboratory
analysis of air samples from inside the
store
building and from a recovery well installed for soil
vapor extraction.
13.
Also as grounds for rejecting the
SIP and the 45-Day Report, the Agency asserted
that an UST system release has not been confirmed
and
alleges that the length of time between
the tank testing
and the release reporting is excessive and there
is no
report of a spill.
However,
the regulations
acknowledge
that
situations
exist where
test
results for an
UST
system
do
not
indicate that a leak exists but environmental
contamination is
the basis for suspecting a release
(41
Ill.
Adm.
Code
l70.580(b)(3)).
Further,
the
State
Fire
Marshal
routinely
requires
the
reporting ofreleases liased solely on environmental contamination in the absence ofevidence of
an UST system leak.
Based on
the available
information indicating
an absence of UST system
leaks and
the
presence
of environmental
contamination in
soil,
groundwater and
air near
the
current UST systems, American concluded the release was likely
caused by overfilling ofone or
more of the
three existing
USTs.
Although
Mac’s
is
not
currently
aware
of a
specific
event
involving
a
spill
or
overfill,
either
or
both
may
have
occurred
at
this
Site
without
Mac’s
knowledge.
No potential
sources of contamination were
identified on adjacent properties
to
the
southeast
or southwest, and roadways border the property in the other two directions.
By way of
additional
information,
American
submitted
additional
information,
including
tightness testing
results, to the Agency on
or around November
11, 2004.
14.
In
addition,
the
Agency
rejected
the
SIP
and
45-Day Report
because the
plan
allegedly does not include the investigation ofthe area most
likely to
be
contaminated
(i.e., the
_____
~UST
field and
system)~H
~y~ii,
this
area
has
alreaciyJieen
investigated,
and evidenc~fA~~~
release
has been identified and
reported as discussed herein.
Further investigation
is proposed in
4
