Pollution Control Boczrd

BEFORE THE POLLUTION CONTROL BOARDOF THE STATE OF ILLINOIS
PETITION FOR REVIEW OF FINAL AGENCYLEAKING UNDERGROUND STORAGE TANK DECISION
1. P.O. Box 3606295 East illinois Highway 15Woodlawn, Illinois 62898-0360
2. E-Mail: unitedscience@unitedscjence.com
UNITED SCIENCE INDUSTRIES, INC.

UNITED SCIENCE INDUSTRIES

TASIM FEJZA,

vs.

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCBNo.

)

(UST Appeal)

)

RECE1VE~)

CLERIcS

~r~r

JUN

2003

STATE

OF ILLINOIS

Pollution

Control Boczrd

NOTICE

Dorothy M. Gunn, Clerk

Illinois Pollution

Control Board

State

ofIllinois

Center

100 West Randolph Street

Suite

11-500

Chicago, IL

60601

John I.

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 of the Clerk of

the Pollution

Control Board a Petition for Review of Final Agency Leaking

Underground

Storage Tank Decision,

a copy ofwhich is herewith served upon you.

Robert E.

Shaw

IL ARDC

No. 03123632

Curtis

W. Martin

ILARDC

No. 06201592

SKAW & MARTIN, P.C.

Attorneys

at Law

123

10th Street,

Suite

302

P.O.

Box

1789

Mt.

Vernon, Illinois

62864

Telephone (618)

244-1788

Attorney for

Robert

Tasim Fejza, Petitioner

BEFORE THE POLLUTION

CONTROL BOARD

OF THE STATE OF

ILLINOIS

BEFORE THE POLLUTION CONTROL BOAR1~LERK’S

OFFV~E

THE STATE OF ILLINOIS

JUN

2 ~

2003

TASIM FEJZA,

)

STATE OF

ILLINOIS

)

Pollution

Control Board

Petitioner,

)

vs.

)

PCB No.7~’~

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

PETITION FOR REVIEW OF

FINAL AGENCY

LEAKING UNDERGROUND STORAGE TANK DECISION

NOW COMES the Petitioner,

Tasim

Fejza (“Fejza”), by its attorneys, 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 of the Illinois

Environmental Protection Agency

(“Agency”) in the above cause, and in support thereof, Fejza respectfully states

follows:

On February

18,

2003, the Agency issued a final decision to Fejza,

copy of which is attached hereto as Exhibit A.

On March

2003,

Fejza made

a written request to the Agency for an

extension of time

by which

to file a petition for review to ninety

days, a copy of

which is attached hereto as Exhibit

On March 25,

2003, the Agency joined in Fejza’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

On April 3,

2003, the Board entered an Order extending the time

which Fejza could file its petition to June

23,

2003,

a copy of which is attached

hereto as Exhibit D.

The grounds for the Petition herein are

as follows:

Fejza submitted

to the Agency, through its consultant United Science

Industries,

Inc., a High Priority Corrective Action Plan (“CAP”) and corresponding

budget.

The

CAP

requires the full extent of the soil and groundwater

contamination to be defined by means

ofthe collection of sufficient data to make

such determination.

The CAP and budget satisfy the requirements

of the 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 CAP.

The

costs associated with each material,

activity and service necessary

to accomplish

the goals of the

CAP were reasonable and consistent

and were incurred

in the

performance necessary to meet the minimum requirements

of the Act and the

regulations

promulgated

thereunder.

Further,

the costs associated with each material,

activity,

and service

necessary to accomplish the goals ofthe

CAP 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.

specifically:

(1).

The Agency’s adjustment of $3,168.75

in investigation

costs

associated with the five (5) groundwater monitoring wells deducted from Fejza’s

budget as in excess of those costs necessary to meet the minimum requirement

Section 57.5(a) ofthe Act and 35

Ill. Adm.

Code 732.606(o) was

on merely a cost

basis with no technical justification

and is therefore arbitrary

and capricious.

Further,

the Agency has failed to notify Fejza ofwhich groundwater

monitoring

wells it deems unnecessary,

unreasonable

or unjustifiable.

(2).

The Agency’s adjustment of $570.00 in analysis costs

associated

with five (5) soil BTEX samples and five

(5) groundwater BTEX samples as in

excess of those necessary to meet the minimum requirements

of Section 57.5(a) of

the Act and

35 Ill. Adm.

Code

732.606(o) was merely on a cost basis with no

technical justification and is therefore

arbitrary and capricious.

(3).

The Agency’s adjustment of $10,000.00 in personnel costs was

on merely a cost basis with no technical justification

and is therefore

arbitrary

and

capricious.

(4).

The Agency’s adjustment of $1,470.00

for field purchases and

other

costs as not reasonable

was on

merely a cost basis with no technical

justification and is therefore arbitrary

and capricious.

In particular,

the Agency’s

adjustment

for the five

(5) PNA samples collected during early action unduly

penalizes Fejza for taking such early action.

(5).

The Agency’s adjustment

of $91.91 for handling

charges

excess of those necessary to meet the minimum requirements

of Section 57.5(a) of

the Act and

Iii. Adm.

Code 732.606(o) was on merely a cost basis with

technical justification and is therefore

arbitrary

and capricious,

since the Agency’s

adjustments for the soil and groundwater

samples and the field purchases

and

other costs were likewise arbitrary

and capricious.

(6).

The Agency’s adjustment

of $3,040.00

in project manager

fees,

personnel,

and equipment for dig and haul and preparing the High Priority

Corrective Action Plan

and budget was on

merely a cost basis

with no technical

justification and is therefore

arbitrary and capricious.

WHEREFORE, Petitioner,

Tasim

Fejza, 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

CAP

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(1).

Respectfully submitted,

SHAW

& MARTIN, P.C.

BY__________

haw, Attorney for

Tasim

Fejza, Petitioner

Robert E.

Shaw

IL 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

(-I

ILLINOIS

ENVIRONMENTAL

PROtECTION

AGENCY

1.021

NORTH

GRAND

AVENUE

EAST,

P.O. Box

19276,

SPRINGFIELD,

ILLINOIS

62794-9276

JAMES

THOMPSON

CENTER,

~OOWEST

RANDOLPH, SUITE 11-300,

CHICAGO,

IL 60601

ROD

BLAGOJEVICH,

GOVERNOR

RENEE

CIPRIANO,

DIRECTOR

217/782-6762

CERTIFIED MAIL

70fl2

2030

0001

1~7~O5~1

FEB

i82OO~

Mr. Tasim Fejza

514

South Governors ~ighway

Peotone, flhinois

60468

Re:

LPC # 1970755020

Will County

Peotone / Fejza, Tasim

1-57 & Peotone Rd.

LUST Incident No. 941 095

& 9.91199

LUST Technical File

Dear Mr. Fejza:

The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the High Priority

CoITectiVe Action Plan (plan) submitted for the above-referenced incident.

This plan, dated

October

18, 2002, was, received by the Illinois EPA on October 21,

2002.

Citations in this.letter

are from the Environ-mental Protection Act (Act) and 35

Illinois Administrative Code

(35

III.

Adm. Code).

Pursuant to Section 57.7(c)(4) of the Act and

111.

Adm.

Code 732.405(c), the plan is modified.

The following modifications are necessary, in addition to those provisions already outlined in the

plan, to demonstrate cornpliance with Title XVI ofthe Act and 35 III. Adrn.

Code 732:

The number of groundwater monitoring wells

installed at the.subject facilitywas

excessive and

costs

associated with five groundwater monitoring wells have been deducted from the budget.

In addition, the budget for the High Priority Corrective Action Plan is modified pursuant to

Section

57.7(c)(4)

of the Act and

Ill. Adm. Code 732.405(c).

Based

on the. modifications

listed

in Section 2 of Attachment A, the amounts listed in Section

ofAttachment A are

approved.

Please note that the costs must be incurred in accordance with the approved plan.

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

III. Adm.

Code 732.604,

732.606(s),

and 732.611.

ROcx~oaD—4302

North Main

Street,

Rock-lord, IL

61103

—

1815) 987-7760

D~S

PLANES

ELaN

—

595

South

State

BUREAU

OF LAN0

PEORIA

—

7620 N. University

PIain0s, IL

6001 6— ~647) 294-4000

61614

—

(3091 693-5463

SFRINGFeLO

~S00 S. Sixth

Street Rd., Sprini_

eet

Champaign, IL 61820

—

(2171 278-5800

MAI

iIl)nsville,

62234 —(618)

346-5120

(‘RII.ITED

(IN

RSCYci~rtPAPER

Page 2

A Corrective Action Plan which meets the requirements of35

IAC Part 732,

Subpart D:

Corrective Action, must be submitted within

120 days to:

Illinois

Environmental Protection Agency

Bureau ofLand

#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 linclude 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.

Ifyou have any questions or need further assistance, please contact Michael A. Heaton at

217/524-3312.

Michael T. Lowder

Unit Manager

Leaking Underground Storage Tank Section

Division ofRemediation Management

Bureau of Land

MTL:n-ih\94I 095fi.do’c

Attachments:

Attachment A

“

Appeal Rights

cc:

Mr. Corey Eversgerd --United Science Industries

(Woodlawia, Illinois)

Division File

Attachment A

Re:

LPC #

1970755020

Will

County

Peotone

Fejza, Tasirn

‘

1-57 &

Peotone Rd.

LUST Incident No.

941095

991199

LUST Technical File

Citations in this attachment are from the Environmental Protection Act (Act)

and 35

Illinois

Administrative Code

(35

Ill.. Adm. Code).

SECTIO~Ni

‘

As a result of the Illinois EPA’s modification(s) in

Section 2 ofthis Attachment A, the following

amounts are approved:

$7,263.49

Investigation Costs

$2,015.00

Analysis Costs

$14,663.25

Personnel Costs

$930.00

Equipment Costs

$6,408.73’

Field Purchases and

Other Costs

$631.70

Handling

Charges

SECTION~

‘

$3,168.75

for Investigation Costs~These costs

are for activities in excess ‘ofthose

necessary to meet the minimum requirements of Title XVI ofthe Act (Section

57.5(a)

the Act and 35

111. Adm.

Code 732.606(o)).

The number of groundwater monitoring wells was excessive and five have been deducted

from the budget.

‘

75feet@$24/foot$1,800

$273.50

$1,368.75

($273.50 beingthe

average cost per well for the Gro’undwatei~

monitoring Well

Installation Materials)

$570.00 for Analysis

Costs.

These costs are for activities

excess ofthose necessary to

•

-meet the minimum requirements of Title XVI of the Act (S~ction

57.5(a)

ofthe Act and

III. Adm.

Code

732.606(o)).

Five soil BTEX

samples

$55 /

sample

5275

555

Three groundwater BTEX samples ~

~55 / sample plus

2 BTEX samples

$65

sample$295

pJP-

Attachment A

Page

$10,000 for Personnel.

These costs are for activities in

excess ofthose necessary to meet

the minimum requirements ofTitle XVI ofthe Act

(Section

57.5(a)

of the Act and 35 Iii.

Adm.

Code 732.606(o)).

$1,470.00 for an adjustment in Field Purchases and Other 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 of the overall goals ofthe 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 andlor supporting

documentation may be provided to demonstrate the costs

are reasonable.

The rate for PerDiem, including the cost forhotels and motels,

excessive and has been

reduced by $350.

The Office’of State Fire Marshal eligibility determination has three gasoline tanks

listed.

Since PNAs are not

an indicator contaminant for gasoline, the seven PNA samples

collected during early action ~

$160/sample have been deducted from

Other Costs.

$91.99 for Handling Charges.

These costs

are for activities

in excess of those ‘necessary

‘to meet the minimum requirements ofTitle XVI of the Act (Section

57.5(a)

ofthe Act

and 35

flI. Adm.

Code 732.606(o)).

This modification reflects the change in items

eligible for reimbursement based upon

the

modifications listed in Items fl.b and II.d above.

MTL:nili\941 095a1 .doc

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) 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 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.

If the 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

b,e sent tc~

the

Illinois

EPA

as soon as possible.

For information regarding the filing of an 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 ofLegal Counsel

•

1021

North Grand Avenue East

Post Office Box

19276

Springfield,

62794-9276

217/782-5544

P.O. Box 360

6295

East

illinois Highway

Woodlawn, Illinois

62898-0360

March

7, 2003

Illinois

Environmental

Protection Agency

Division

of Legal

Counsel

1021

North Grand Avenue East

Springfield,

62792-9276

Re:

LPC# 1970755020

—

Will County

Peotone

Fejza, Tasim

1-57

Peotone

Road

LUST Incident No~

941095

991199

ATTN: Susan Schroeder

Mrs.

Schroeder

Phone:

(618)

735-2411

Fax: (618) 735—2907

E-Mail:

unitedscience@unitedscjence.com

R~CE~VED

L@~i

Coun~~I

MAR

‘12003

Environmentäi Protection

•‘

Agency

United

Science

Industries,

Inc.

(USI),

behalf of our

client,

Tasim

Fejza,

requesting

90-day

extension

the

35-day

appeal

period

regards

the

IEPA correspondence

included.

appreciate

your

time

and

consideration

this

matter.

questions

cOmments

regarding

this

matter please

contact

2411.

‘

Sincerely yours,

UNITED SCIENCE INDUSTRIES,

INC.

Corey

Eversgerd

Project Manager

you

have

any

(618)

735-

UNITED

SCIENCE INDUSTRIES

Enclosures

BEFORE TEE POLLUTION CONTROL BOARD

THE

STATE OF ILLINOIS

TASIM FEJZA,

)

Petitioner,

)

PCBNo.03-

ILLiNOIS ENVIRONMENTAL

)

(LUST Appeal

—

Ninety Day Extension)

PROTECTION AGENCY,

)

•

Respondent.

)

REQuEST

FOR NINETY DAY EXTENSION

APPEAL PERIOD

NOW

COMES

the Respondent, the illinois

Environmental Protection Agency

(“Illinois

EPA”),

one of its

attorneys, John J.

Kim,

Assistant Counsel

and

Special

Assistant

Attorney

General,

and,

pursuant

Section

40(a)(l)

of the

Illinois

Environmental

Protection

Act

(415

ILCS

5/40(a)(1))

and

Ill.

Adm.

Code

105.208,

hereby requests

that

the

Illinois

Pollution

Control Board

(“Board”) grant an

extension ofthe thirty-five

(35)

day period forpetitioning for a

hearing

June 23,

2003,

or any

other date not

than a total of one

hundred

twenty-five

(125)

days

from

February

18,

2003,

the

date of the Illinois

EPA’s

final

decision.

SUpport

thereof; the Illinois EPA respectfully states as follows:

On February

18,

2003.,

the

Illinois

EPA issued

a final decision to

the Petitioner.

(Exhibit A)

On March 7, 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 EPAjoin in requesting

that the Board extend the thirty-five

day period for filing

a petition to ninety days~The Petitioner

did not represent when thefinaldecision was received.

(Exhibit B)

3..

•

The additional time requested by the parties may eliminate the need for a hearing

in this

matter or,

the alternative, allow the parties

identify issñes

and limit the scope of any

hear~ng

that may be necessary to resolve this matter.

EXH~BJT~

WHEREFC~RE,for the

reasons stated above,

the parties

request

that

the

Board,

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

Jo~~

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: March

25,

2003

This

fihiiig submitted on recycled

paper.

ILLINOIS POLLUTION CONTROL BOARD

April

3, 2003

TASIM FEJZA,

)

Petitioner,

)

PCB 03-162

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL

)

(90-Day Extension)

PROTECTION AGENCY,

)

Respondent.

)

ORDER OF THE BOARD

(by T. E. Johnson):

On March

27, 2003, the

parties

timely.flled a joint notice to extend the 35-day period

within which

Tasim Fejza may appeal a February 18, 2003

detennination ofthe Illinois

Environmental Protection Agency (Agency).

See

415

ILCS 5/40(a)(1) (2002); 35

111.

Adm. Code

105.206(c),

105.208(a),

(c).

Because the postmark date ofthejoint petition is within the time

for

filing, the petition was timely filed.

111. Adm.

Code

101 .300(b)(2), 105.404.

At issue

is an

Agency modification ofthe corrective action plan regarding Tasim Fejza’s leaking underground

petroleum storage tank facility located at 1-57 & Peotone Road,

in Peotone, Will County.

The

Board extends the appeal period until Jime 23, 2003,

as the parties request.

See

415 ILCS

5/40(a)(l) (2002); 35

Ill. Adm.

Code

105.208(a).

IfTasim

Fejza fails to file an appeal on or

before that date, the Board will dismiss this case

and close the docket.

IT IS

ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on April 3, 2003, by a vote of7-0.

Dorothy M.

Gunn, Clerk

Illinois

Pollution Control Board

EXHIBIT

CERTIFICATE OF SERVICE

I, the undersigned attorney at law, hereby certify that on June 23, 2003,

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 I. Kim

Illinois Pollution

Control Board

Assistant

Counsel

State

of Illinois Center

Special Assistant

Attorney

General

100 West Randolph Street

Division ofLegal Counsel

Suite

11-500

1021 North Grand Avenue, East

Chicago, IL

60601

P.O. Box 19276

Springfield,

62794-9276

E. Shaw, Attorney for

Petitioner,

Tasim Fejza