BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
PETITION FOR REVIEW OF FINAL AGENCYLEAKING UNDERGROUND STORAGE TANK DECISION
1. ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

EXHIBJT_,?~
1. CERTIFICATE OF SERVICE

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

BOWMAN OIL COMPANY,

vs.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Petitioner,

)

PCB

No. 05-i)

)

(UST Appeal)

)

RECE

WED

CLERK’S

OFFICE

NOV

82004

STATE OF ILLINOIS

PoIIut~on

Control Board

Respondent.

)

NOTICE

Dorothy

Gunn, Clerk

Illinois Pollution Control Board

State ofIllinois

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,

62794-9276

PLEASE

TAKE

NOTICE that I have today filed with the office ofthe

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

Bowman Oil

Petitioner

for

CLERK’S OFFICE

BEFORE THE POLLUTION

CONTROL BOARD

NOV

118

2004

THE STATE OF

ILLINOIS

STATE

OF ILLINOIS

PCll~ti~n

Control Board

BOWMAN OIL COMPANY,

)

Petitioner,

)

vs.

)

PCB No. PCB-05

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

PETITION FOR REVIEW OF FINAL AGENCY

LEAKING UNDERGROUND STORAGE TANK DECISION

NOW COMES the Petitioner,

Bowman Oil Company (“Bowman”), 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, Bowman respectfully states as follows:

On October

2004, the Agency issued a final decision to Bowman,

copy of which is attached hereto as Exhibit

The grounds for the Petition herein are as follows:

Bowman submitted

to the Agency, through its consultant,

United

Science Industries,

Inc.,

an Amended Site Classification Work Plan Budget

(“Budget”) dated May 27,

2004.

This Budget contained personnel costs that had

originally been approved by the Agency within the Site Classification

Completion

Report

(“SCCR”), plus

additional personnel costs that had been underestimated

USI.

The Agency, in its October

2004 letter referenced a previous

decision letter

dated December

20,

2002 by which it claims the original Site

Classification Work

Plan Budget was approved as modified.

The Agency further claims in its October

2004 letter that its

action

by its December

20,

2002 letter was never appealed by

Bowman and no subsequent justification for additional work was provided.

The

Agency’s December 20,

2002 letter states

in part,

however:

Additionally, pursuant

to Section 57.8(a)(5) of the Act and

35 IL Adm.

Code 732.305(e) or

732.312(l), if reimbursement

will

be sought for any

additional

costs that may

be incurred as a result of the Illinois EPA’S

modifications,

an amended

budget must

be submitted.

NOTE:

Amended plans and/or

budgets must be submitted and approved

prior to the issuance of a No Further Remediation (NFR) Letter.

Bowman simply submitted its additional underestimated personnel

costs through the Amended Site

Classification Work Plan Budget, just

as required

by the Agency.

No scope of work changed for purposes of the Amended Site

Classification Work Plan

and the newly estimated personnel

costs and the

justification

for the costs are included within the Amended Site Classification Work

Plan.

Therefore, the December 20,

2002 Agency letter

does not defeat Bowman’s

claim and the Agency’s failure to approve the Amended Site Classification

Work

Plan was arbitrary

and capricious.

WHEREFORE, Petitioner,

Bowman 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 Amended Site

Classification Work Plan

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

415

ILCS 5/57.8(1) and 35 Ill. Adm.

Code 732.606(g).

Respectfully submitted,

SHAW

& MARTIN,

P.C.

Robert E. Shaw

ARDC No. 03123632

Curtis W. Martin

IL ARDC No. 06201592

SHAW

& MARTIN, P.C.

Attorneys

at Law

123

10th Street, Suite

302

P.O. Box

1789

Mt.

Vernon,

illinois 62864

Telephone (618) 244-1788

Curtis W. Martin,

ttorney for

Bowman Oil ~ny,

Petitioner

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

1021

NORTH

CLANO

AVEr.luE

EAST,

P.O. Bo~

19276,

SPRINGFIELD,

ILUNOIS

62794-9276,

217-782-3397

JAMES

R..

THOMPSON

CENTgR, 100

WgST

RANDOLPH,

SuITE

1 1-300,

CI-nC.Aco,

IL 60601, 312-814-6026

Roo

BLACOJEVICH,

COVERNOR

RENEE

CIPRIANO,

DIRECTOR

2171782-6762

CERTIFIED

MAlL

‘P002

3J~S0 0000

1~13 ~

~CTt212~

Bowman Oil Company

Attn:

Jack

Bowman,

President

P.O. Box 280

Marion,

Illinois

62959

Re:

LPC #0558075003

Franklin County

West Fran.kfort/Bowman Oil

Company

2 15

Oak Street

LUST Incident No.

20002033

LUST Technical File

Dear Mr. Bowman:

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

Classification

Work Plan Budget (budget) submitted for the above-referenced incident as

Appendix

I of the Site Classification Completion Report dated June

1, 2004.

This budget, dated

May 27, 2004, was received by

the Illinois EPA on June 4, 2004.

Citations in this letter

are

from

the Environmental Protection Act (Act) and

llljnois Administrative Code

(35

III. Adm. Code).

The budget is rejected for the reason(s) listed below (Section 57.7(a)(I) and 57~2(c)(4)(D)ofthe

Act and 35 Ill.

Adm. Code

732.305(c)

or 732.312(j) and 732.503(b)):

A Site Classification Work Plan Budget was previousiy approved with.modiflcations on

December 20,2002..

No Justification ofadditional work beyond the scop~

ofth~

work

previously approved was provided.

The Illinois EPA previously notified the Gwfler”Or

operator of

its

final action.

Further, in

accordance with Section

57.7(c)(4) oIthe Act and

131.

Adm. Code 732503(f), the Ullinois EPA’s action to rej~ctor requfrem~tdi±ication

ofthe plan or budget, or the rejection of.any

plan

or bud~get

by operation oflaw, was

subject to

appeal to the Illinois Pollution Control Board within 35

days after the Illinois

EPA’s final action.

In addition, it appears that only seven ofthe eight proposed borings

were advanced.

Therefore, the budget previously approved would be adequate for the

work performed.

All future correspondence must be submitted

to;

—

4302

North

Main Street.

Rockiord,

IL 61103—1815) 987-7760

•

D?s P1A~~?s

—

9511

Harrison

St.,

Des Plaines,

IL 600)6

1847)

294-4000

—

598 South State,

81gm,

IL 60123—847)

~Q~.3)

•

PtORIA

—5415

University

St.,

Peoria.

IL 61614—13091

693-5463

8uRt.Au

LAND

PtOFIA

—

7620

N. University

Sc.

Peori~,

II. 616

4.-

309) 693-5462

•

CNAM~AJCN

—

2125 South

First

Str~l,Champaign,

IL 61820—

(217)

27115800

—45008. Si~ch

Street

Rd.. Springfield.

II.

62706—

(217) 786-6892

•

COLuN5VILLt

—

2009

MalI

St,eet,

ColLinsville,

62234

—(618)

346-5120

M.~ION

—2309W

MaUl St.,

Su~t~

116, Macion,

IL 62959

—1618) 993-7200

PeINrED

ON R5Cv~i?QP,~P~a

EXHIBJT_,?~

Page 2

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

Please submit all correspondence in duplicate and include the Re: block shown at the beginning

ofthis letter.

Ifyou have any questions or need

further

assistance, please contact Lizz Schwartzkopf

217/557-8763.

Sincerely,

Harry A. Chappel, P.E.

Unit Manager

Leaking Underground Storage Tank Section

Division of Remediation Management

Bureau ofLand

HAC:LS

United Science Industries

Division File

CERTIFICATE OF SERVICE

I, the undersigned attorney at law, hereby certify that on November

2004,

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,

60601

P.O.

Box

19276

Springfield,

62794-9276

orney for

Petitioner, Bow~l

Company