BEFORE THE POLLUTION
CONTROL BOARD
~CE~VED
OF THE STATE OF ILLINOIS
CLERK’S OFFICE
FEB
16
2C05
STATE OF
ILLJNOIS
Pollution Control Board
WILLIAM
BREUER,
Petitioner,
vs.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
)
(USTAppeal)~
)
PCB
No.
05-
)
)
)
)
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 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
~Itorney
for
William Breuer~/~’etitioner
LERK
S OFFICE
BEFORE THE POLLUTION
CONTROL BOARD
OF THE STATE OF ILLINOIS
FEB
i 6
2005
STATE
OF
ILLII\JQg~
WILLIAM
BREUER,
)
PoIIut~onControl Board
)
Petitioner,
)
vs.
)
PCB No.
05-
/
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR
REVIEW
OF FINAL AGENCY
LEAKING
UNDERGROUND STORAGE TANK DECISION
NOW COMES the Petitioner,
William Breuer (“Breuer”),
by one of its
attorneys, Curtis W. Martin of Shaw
& Martin,
P.C., and, pursuant
to Sections
57.7(c)(4)(D) and 40 ofthe 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, Breuer respectfully states as follows:
1.
On October 26,
2004, the Agency issued a final decision to Breuer, a
copy of which
is attached hereto as Exhibit A.
2.
On November
19,
2004, Breuer made a written request to the Agency
for an extension oftime by which to file
a petition for review to ninety days, a copy
ofwhich
is attached hereto as Exhibit
B.
3.
On December
3,
2004, the Agency joined in Breuer’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.
On December
16,
2004 the Board entered an Order extending
the time
by which Breuer could file a Petition to and including March
2,
2005.
On August
3,
2004,
Breuer, through its consultant, United
Science
Industries,
Inc.
(“USI”), submitted to the Agency a High Priority
Corrective Action
Plan (“Plan”) and Budget
(“Budget”).
The Agency, in its
October 26,
2004 letter,
approved the Plan but
modified the Budget.
The result ofthe Agency’s modification
ofthe Budget was an adjustment in personnel
costs of $14,569.00.
The Agency
indicated such costs were not reasonable
as submitted under
Section 57.7(c)(4)(C) of
the Environmental
Protection Act (“Act”)
and 35
Ill. Adm.
Code 732.606(hh).
The
Agency further indicated that a deduction was made in personnel costs previously
allowed under Agency letter dated December
23,
2002.
The December 23,
2002 Agency letter was issued in response to
a High
Priority
Corrective Action Plan submitted
by Breuer on November
5,
2002.
In that
Plan,
Breuer proposed soil excavation and disposal and on site deed restrictions
to
address groundwater contamination.
The Agency approved this Plan but modified
the Budget by adjusting a combined total of $11,918.00 in personnel costs,
equipment
costs, field purchases and other costs, and handling
charges.
These costs
were adjusted,
according to the Agency, as exceeding the minimum
requirements
necessary to
comply with Title
XVI of the Act and
35
Ill. Adm.
Code 732.505(c),
as
2
not “Corrective Action Costs” under Sections 57.6 and 57.7
of the Act and
35 Ill.
Adm.
Code
732.103 and as not reasonable
as submitted under
57.7(c)(4)(C) ofthe
Act and 35
Ill. Adm.
Code
732.606(hh).
In response to the Agency’s December 23,
2002 letter,
Breuer submitted an
Amended Corrective Action Plan and Soil Abatement Report on
October
16,
2003.
This Plan and Report contained details
of soil excavation activities
and continued to
propose on site deed restrictions with regard to the
groundwater contamination.
While pursuing
the soil excavation, Breuer encountered
on May
19,
2003
a 560
gallon UST which had no
records of existence and which was therefore
treated by
the Agency as a pre-1974 UST.
Samples taken in and around this tank
revealed,
however, that it did not contribute to the contaminate
plume.
Breuer’s Amended
CAP proposed
a groundwater remediation program through monitoring wells.
By letter dated January
16, 2004, the Agency rejected the Amended
Corrective Action Plan,
Budget and Soil Abatement Report.
The Agency claimed it
had already approved a Corrective Action Plan which was close to completion and it
would not reimburse Breuer costs incurred associated
with reporting, planning,
etc.
of a new Corrective Action Plan.
The Agency also rejected the Amended Budget
consisting of a combined total of $24,710.00 of investigation costs,
analysis costs,
personnel costs, equipment costs,
field purchases
and other costs and handling
charges.
In response to the Agency’s January
16,
2004 letter,
Breuer submitted an
Amended Corrective Action Plan and Soil Abatement and Groundwater Monitoring
3
Report on August
3,
2004.
This Amended Plan proposed a quarterly
groundwater
monitoring program for one year and contained a budget for costs
associated with
the proposed groundwater remediation operations.
By Agency letter dated
October 26,
2004, the Soil Abatement and Groundwater Monitoring Report was
approved.
However, the budget
associated with the Amended Plan was modified by
means of a deduction to the personnel costs
for “time/hours either partially or in full
for activities
that were previously allowed in your original budget for Corrective
Action per IEPA letter dated December 23,
2002.”
The personnel adjustment
amounted to
$14,569.00.
It is
Breuer’s position that the modification to the Agency, through this
modification, continued to refer to the Corrective Action Plan that contained
excavation and removal
for the soil remediation when the Amended
Corrective
Action Plan, in association with the Soil Abatement
and Groundwater
Monitoring
Report, propose, at least in part,
groundwater monitoring as opposed to excavation
and removal.
Thus, the personnel costs adjusted by the Agency, through its
October
26,
2004 letter,
did not properly relate
to the personnel costs
associated
with
completely different means of remediation proposed by Breuer.
Such an adjustment
is unreasonable,
arbitrary
and capricious.
WHEREFORE, Petitioner,
William Breuer, 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 Amended High Priority
Corrective Action
Plan and Budget as being reasonable, justifiable,
necessary,
consistent with
4
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(1).
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
By
William
for
5
FILE W~
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY
1021
NORTH
GRAND AVENUE
EAST,
P.O. Box
19276,
SPRINGFIELD,
ILLINOIS
62794-9276, 217-782-3397
JAMES
R.
THOMPSON
CENTER,
100
WEST
RANDOLPH,
SUITE
11-300,
CHICAGO,
IL 60601,
312-814-6026
Roo
R.
BLAGOJEVICH,
GOVERNOR
RENEE
CIPRIANO,
DIRECTOR
217/782-6762
CERTIFIED
MAIL
2628~4
7002
3~,50
0000
12S~ 6624.
Attention: Mr. Gerald Huge, POA
Post Office Box 96
OCT
2 9
REC’U
Ifloyleton, Illinois 62803
Re:
LPC#1890205002
--
Washington County
•
Hoyleton!Breuer, William
Hwy.
177
and Hoyleton
—
Hoffman Road
LUST.Incident No. 992697 and No. 20030951
•
LUST Technical File
DearMr. Huge:
The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the High Priority
Corrective Action Plan (plan) submitted forthe above-referenced incident.
This plan, dated
August 3, 2004, was received by’the Illinois
EPA on August 4, 2004.
Citations in this letter are
from the Environmental Protection Act (Act) and 35 Illinois Administrative Code
(35 III. Adm.
Code).
Pursuant to
Section 57.7(c)(4) ofthe Act and
35 Ill. Adm. Code
732.405(c),
the plan is approved.
The activities proposed in the plan are appropriate to demonstrate compliance with Title XVI of
the
Act and 35 Ill. Adm.
Code 732.
Please note that all activities associated with the remediation
of this release proposed in the plan must be executed in accordance with all applicable regulatory
and statutory requirements, including compliance with the proper permits.
In addition, the budget for the High Priority Corrective Action Plan is modified pursuant to
Section
57.7(c)(4) ofthe Act and 35
Ill. Adm. Code 732.405(c).
Based on the modifications
•
listed in Section
2 ofAttachment A, the amounts listed
in Section
1 ofAttachment A are
•
approved.
Please note that the costs must be incurred in accordance with the approved plan.
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
Ill. Adm.
Code 732.604,
732.606(s), and 732.611.
Please note that,
if the owner or operator agrees with the Illinois EPA’s modifications, submittal
ofan
amended plan andlor budget, if applicable, is not required (Section 57.7(c)(4) of the Act
and
35
III. Adm.
Code 732.503(f)).
Additionally, pursuant to
Section
57.8(a)(5)
ofthe Act and
35
III. Adm.
Code
732.405(e), if reimbursement will be sought for any additional costs that may
be
incurred as a result ofthe Illinois EPA’s
modifications, an amended budget must be
submitted.
ROCIFORO
—4302
North Main
Street, Rockford,
II 61103
—
(815) 987-7760
•
Dts
PLAINES
—
9511 W. Harrison
St.,
Des Plaines,
IL 60016 —(847)
294-4000
ELGIN
—595 South State, Elgin,
IL
60123
—(847) 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— (217) 278-5800
SPRINGFIELD
—4500 S. Sixth
Street Rd.,
Springfield,
IL 62706 —(217) 786-6892
•
COLLINSVILLE
—2009
MalI
Street, Collinsville,
IL 62234
—(618) 346-5120
MARION
—2309 W. Main
St.,
Suite
116,
Marion, IL 62959
—(618)
993-7200
PRINTED
OH
RECYCLED
PAPER
EIi~
I
B FT’
/9
Page2
•
•NOTE:
Amended plans and/or budgets must be submitted and approved prior to the issuance of
a No Further Remediation (NFR) Letter.
Costs associated with a plan or budget that have not
been approved prior to the issuance ofan NFR Letter will not be reimbursable.
All future correspondence must be submitted to:
Illinois Environmental Protection Agency
Bureau of Land
-
#24
Leaking Underground Storage Tank Section
1021 North Grand Avenue East
Post Office Box
1927.6
Springfield,
IL
62794-9276
Please submit all
correspondence in duplicate and include the Re: block shown at the beginning
ofthis letter.
An underground storage tank system owner or operator may appeal this decision to the Illinois
Pollution Control Board.
Appeal rights are attached.
i~
you have any questions or need further assistance, please contaàt Donna Wa1lac’~at 21
7í’ 524-
1283.
Sincerely,
Thomas A.
Unit Manager
Leaking Underground Storage Tank Section
Division ofRemediation Management
Bureau ofLand
TAH:DW:dw\
Attached:
Attachment A
Appeal Rights
C:
United Science Industries! Karen
Battling
Division File
•
Attachment
A
Re:
LPC #
1890205002
—
Washington County
Hoyleton! Breuer, William
Hwy..177 & Hoyleton Hoffman Road
LUST Incident No. 992697
and
No.20030951
LUST Technical File
Citations
in this attachment
are
from the Environmental Protection Act (Act)
and
35
Illinois Administrative Code
(35
III. Adm. Code).
SECTION
1
The budget
was previously
approved for:
$1,498.50
Investigation Costs
$1,887.00
Analysis
Costs
$50,109.00
Personnel Costs
$28,280.00
Equipment Costs
$52,204.00
Field Purchases and Other Costs
SO
Handling Charges
As
a result of the Illinois EPA’s
modification(s) in Section
2 ofthis Attachment A, the followingamounts are
approved:
$33.00
Investigation Costs
$1,360.00
Analysis
Costs
$7,470.00
Personnel
Costs
$345.00
Equipment Costs
$2,308.00
Field Purchases and Other Costs
$0
Handling Charges
Therefore, the total cumulative budget.is approved for:
$1,531.50
Investigation Costs
$3,247.00
Analysis
Costs
$57,579.00
Personnel Costs
$28,625.00
Equipment Costs
$54,512.00
Field Purchases and Other Costs
$0
Handling Charges
SECTION
2
$14,569.00 for an adjustment in personnel costs.
The Illinois EPA has determined that these costs are not
reasonable as submitted
(Section
57.7(c)(4)(C)
of the
Act and
35
Ill. Adm. Code 732.606(hh)).
One
ofthe
overall goals of the financial review
is to assure that costs
associated
with materials,
activities, and services
are reasonable
(35
111. Adm.
Code
732.505(c)).
Please note
that additional
information and/or supporting
documentation may be provided to demonstrate the costs
are reasonable.
A deduction
was made in personnel cost for time/hours either partially or in full for activities
that were
previously allowed
in your original budget
for Corrective Action per IEPA letter datedDecember
23, 2002.
DW:dw\
Appeal Rights
An underground
storage tank owner or operator may appeal this final decision to the Illinois
Pollution
Control Board pursuant to Sections
40 and
57.7(c)(4)(D)
ofthe Act by filing
a petition
for a hearing within 35
days after the date of issuance ofthe final decision.
However, the 35-day
period may be
extended for a period 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.
Ifthe 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 ofthis decision, must be sent to the
Illinois EPA as soon as possible.
For information regarding the filing ofan 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
ofan extension, please contact:
Illinois
Environmental
Protection
Agency
Division
of Legal Counsel
1021
North
Grand
Avenue
East
Post
Office Box 19276
Springfield,
IL
62794-9276
217/782-5544
November 19, 2004
Illinois Environmental
Protection Agency
Division of Legal Counsel
1021
North Grand Avenue
East
Springfield,
IL
62792-9276
Re:
LPC# 1890205002
—
Washington County
Hoyleton
—
Breuer, William
Hwy. 177 and
Hoyleton-Hoffman Road
LUST Incident No. 992697
& 20030951
ATTN:
John
Kim
Dear Mr. Kim:
United
Science
Industries,
Inc.
(USI),
on ‘behalf of our client,
requesting
a
90-day
extension
to
the
35-day
appeal
period
IEPA correspondence included.
I
appreciate
your
time
and
consideration
in
this
matter.
questions
or
comments
regarding
this
matter
please
contact
2411
ext. 165.
Sincerely yours,
UNITED SCIENCE INDUSTRIES,
INC.
Karen S.
Bartling
Project Manager
Enclosures
FILE
Ct~Py
Phone:
(618) 735-2411
Fax: (618)
735—2907
E-Mail:
unitedscience@unitedscjence.com
William
Breuer
is
in
regards
to
the
If
you
have
any
me
at
(618)
735-
•
• •
•
P.O.
Box
360
6295
East illinois Highway 15
Woodlawn,
Illinois 62898-0360
I
•~
•
•
•
-
£~
BEFORE THE POLLUTION CONTROL BOARD
•
OF THE STATE
OF ILLINOIS
)
)
)
PCB No.
05-
)
(LUST Appeal
—
Ninety Day Extension)
)
)
NOTICE
Dorothy M.
Gunn, Clerk
Illinois Pollution Control Board
James
R. Thompson
Center
100 West Randolph Street
Suite
11-500
Chicago, IL 60601
Karen S. Battling, Project Manager
United Science Industries
P.O. Box 360
6295 East Illinois
Highway
15
Woodlawn,
IL
62898-0360
PLEASE
TAKE
NOTICE that
I have
today filed
with
the
office of the
Clerk
of the
Pollution
Control Board a REQUEST FOR NINETY DAY EXTENSION
OF APPEAL PERIOD, copies of which
are herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
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)
Dated: December
3,
2004
EXHJBJTd~~
WILLIAM BREUER,
Petitioner,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
BE~FORETHE
POLLUTION CONTROL BOARD
OF THE STATE
OF ILLINOIS
WILLIAM BREUER,
)
Petitioner,
)
v.
)
PCB
No.
05-
ILLINOIS ENVIRONMENTAL
)
(LUST Appeal
—
Ninety Day Extension)
PROTECTION
AGENCY,
)
Respondent.
)
REQUEST FOR NINETY DAY EXTENSION
OF APPEAL PERIOD
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)(I))
and
35
Iii.
Adm.
Code
105.208, hereby
requests
that
the
Illinois
Pollution
Control Board (“Board”)
grant an
extension ofthe
thirty-five
(35)
day period for petitioning for a
hearing
to
March
3,
2005,
or
any other
date
not more
than
a
total
of one
hundred
twenty-five
(125)
days
from
the date
of service
of the
Illinois EPA’s
final
decision.
In
support thereof;
the
Illinois EPA respectfully states as follows:
1.
On
October 26,
2004,
the
Illinois
EPA issued
a
final decision
to
the Petitioner.
(Exhibit A)
2.
On November 19,
2004,
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’s
request
included
infounation
that
represented
that
the
final
decision
was
received on October 29, 2004.
(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 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: December 3, 2004
This
ffling submitted on
recycled paper.
2
CERTIFICATE
OF SERVICE
I, the undersigned attorney at law,
hereby
certify that
on February
____
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
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
