RECE~VE~
BEFORE THE
ILLINOIS POLLUTUION CONTROL I~LW1i~
~‘~-
/WG
2
7
2003
RANDALL iNDUSTRIES, iN
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II
i~
\I1
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II
STATE OF ILLINOIS
Petitioner,
0
~
IL
))
Pollution Control
Board
)
Case No. 03-219
v.
)
(UST Appeal)
)
)
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
)
)
Respondent.
)
Ref.:
LPC #0430355036
Lust Incident No. 922987, 942519
Gentlemen:
I wish to appeal the decision ofTrent Benanti concerning the number of
deductibles applied to the tank removal project at 741
S. Rte. 83
in Elmhurst, IL. I
initiated this LUST project in
1992. When I had purchased my 1.62-acre lot from the
larger 6-acre property purchased by Cantore Development, he gave me the right to use
the diesel tank even though itwas not on my land.
The gas tank was located on my
property and the fuel dispensing pumps were located on the lot line. After becoming
aware of the potential problems caused by leaking fuel tanks, I decided to test the tanks
for leaks. The tests, conducted by an outside engineering firm and in compliance with the
State Fire Marshal and the
Illinois EPA indicated that the tanks were sound and without
leaks.
I made a voluntary decision to
removethe tanks before the tanks became a
problem to the environment. I investigated the process and contacted the State Fire
Marshal and a licensed contractor to remove the tanks. The trucking company that
purchased the adjacentparcel where the diesel tank was located agreed that although he
needed a diesel tank that we had been sharing, it made good sense to remove the tanks
while they were good. Neither ofus had knowledge ofthe history ofthe tanks and
could
not verify the age ofeach tank. The State Fire Marshal indicated that the project should
be conducted under my business name since only one hole would be dug and any cleanup
would be conducted in one excavation and therefore would be classified as one incident if
a problem developed (See Jan 26,1994 Apec letter)
The smaller gas tank was removed first with the fire marshal in attendance. As it
was lifted out ofthe ground and opened up with a power chisel, rust particles fell offthe
bottom ofthe tank exposing small holes. The owner ofApec/Aares, the tank removal
contractor, the Fire Marshal and I were surprised since the tank had passed the required
pressure tests. The contractor filed the necessary 45-day report and then effectively
dragged this project out for the nextthree years, only occasionally showing up. My
neighbor and I continued to use the diesel tank while waiting for the contractor to remove
the diesel tank. I could not understand why or howthis project would drag on. At first the
contractor blamed the response time ofthe EPA to proceedwith the project.
Ultimately,
he
did remove the diesel tank and removed 252 cubic yards of soil leaving a hole the size
ofan in-ground pooi. Needless to saythis left a very dangerous situation for our
companies that needed access because the excavation was in the center ofthe driveway
both of the companies had been using for access. Myneighbor and I advanced moneys to
the original contractor, Apec/Aares, and he completed work worth in excess of $30,000
(calculated by Trent Benanti, EPA project mgr.). Even though the Illinois EPA did not
reimburse Apec or Aares forthe completed work, he wants to access two deductibles
againstthis project. His claim is that he is justified because the tanks were removed two
years apartand the second tank was assigned another incident number.
At this time, it is
difficult to know who was behind the delays during that period, was it the contractor or
the Illinois EPA who was having difficulty funding the LUST fund at the time or a
combination ofboth parties. This delay should not be used by the Illinois EPA to access
two deductibles.
Sometime in
1995-96,
having not heard from the contractor, I triedto track him
down to
see when our project would resume, only to find out that he had closed his
business. After contacting the Illinois EPA about this abandonment ofthe project by the
contractor, they sent a representative, Kyle Blumquist, to inspect the site. He asked that
three soil samples be taken from around the excavation so he could expedite a plan of
action. At this time no contractor was involved, I searched out a testing laboratory that
could analyze the samples and send a report to the EPA. As I was gathering bids to drill
the holes, Kyle contacted me to state that his boss wanted eleven holes samples.
Considering that the Illinois EPA appeared to care less whether this LUST incident was
closed, I dropped it. At no time was I aware ofthe potential oftwo deductibles being
assigned to this project or that the significance ofassigning two incident numbers had any
bearing on the number ofdeductibles charged. The Fire Marshall had always indicated
that this project should be dealt with as one incident because the tank removal and
cleanup were from one excavation and many contaminants in both gasoline and diesel
fuels are the same. It would be virtually impossible to determine from which tank
contaminants originated. There is only one hole to clean.
Inthe fall of 2001, again with no instruction or direction from the Illinois EPA, I
again started the process ofclosing out these incidents. We are now over a year and half
into this project this time (eleven years since the start).
My current environmental
contractor, Marlin Environmental, has submitted to me several properties with projects
similar to mine. That is, multiple tank removal on a property that were treated as a single
ormultiple incidents with one deductible.
Marlin Environmental also
contacted the Illinois EPA about Trent’s decision that
they felt was inappropriate. Doug Oakley, the mgr ofthe LUST department ofthe Illinois
EPA told my contractor that the decision is left up to Trent Benanti, the project manager.
Enclosed is a list ofprojects that indicate that the project managers are not consistent
with their decisions. I am looking for fairness in this decision and this project.
1. Campbell Auto Service-156 N.
Lathrop Ave.
Forest
Park,
IL.
Incident numbers 20021403& 20021795
One deductible was issued for two incident
numbers.
First incident number was about 2
months before
second
one.
2. Flossmoor Service Station-2733 Flossmoor
Road, Flossmoor,
IL.
Three separate incident numbers 20020800, 20021182 & 982832.
Two filed
in
2002 and one filed in 98.
Same excavation, three incident numbers and one
deductible was charged.
3. J&C Central,
Inc. 420
S. Main
St. Wheaton,
Il. 891372, 20000499 &
20000914 two filed in 2000 and one
in 89 and was assessed one deductible.
for tanks in the same excavation.
4. Bridgeview Lands 7124-7200
S.
Ferdinand
Bridgeview,
IL. Three incident
numbers 982194,
982195
& 982283.
were filed at in
1998 at
three different addresses owned by the same company.
One deductible was
assessed.
All ofthese examples would require a more liberal interpretation ofthe
regulations than Trent Benanti is willing to use. Apparently, these interpretations are
more common than Trent’s philosophy. IfI was assigned the project manager that
assigned deductibles forthese projects, I would not have the need to file this appeal. That
is not equitable justice. In reviewing our documents, you will see where the Illinois EPA
has sent two different letters on the same incident number using two different deductible
amounts (see letters dated June 11,2002 and July 30, 2003). Doug Oakley signed both
letters.
I am not sure if Doug or Trent created them. I think they realized that if Marlin
Environmental cleaned up one incident, it would be hard not to automatically clean the
second
one. Ifall the invoices were directed against one incident number, they wouldn’t
be able to charge the second deductible because there would be no invoices to
clear it
against. This is a rotten thing to do to a businessman who is trying to voluntarily cleanup
aLUST site.
Intrying to
find out more about the environmental laws in Illinois,
I came across
the enclosed website ofthe Illinois
EPA featuring
an environmental justice office. The
website clearly states that Environmental Justice is the protection ofthe health ofthe
people ofIllinois
and it’s environment,
equity in the administration ofthe
State’s
environmental
programs,
and the provision ofadequate opportunities formeaningful
involvement ofall people
I have enclosed a copy ofthat page from the
Illinois EPA website. Trent’s decision is not fair and equitable. Apparently, the agency is
aware ofthese injustices created by project manager decisions. I was directed to the
Illinois Pollution Control Board rather than an internal investigations officer in the
decision letter. Maybe, this is the right place but not sure why I should need an attorney
to solve an administrative issue that Doug Oakley should be overseeing.
I hope you will consider giving us credit forwork completed with money already
advanced, which Trent estimated at $30,000, and Marlin estimated at $17,138.
Currently,
we have only seen a check for $13,935. (Received 8/20/03) after 11
years ofdealing with
this mess. They already assessed two deductibles against invoicespresented by Marlin.
Trent has not explained why he won’t give us credit for the completed work or why he is
charging two deductibles, except that he can. I am enclosing copies ofmanifests for the
soil delivered to landfills. The validity ofthese manifests have not been questioned so
why shouldn’t they count. The EPA knows what they allow in a budget for this work.
The following documents are enclosed for yourreview:
-
January
26,1994
letter from APEC explaining that the
State Fire Marshall said
that both tanks could be handled as a single incident. Marlin agreed with this
statement.
-
The November 30, 2001
State Fire Marshall letter where someone decided to
charge us with two deductibles. This letter comes ten years afterthe site was
opened.
-
June 11, 2002 letter from Illinois EPA denying previous charges of$15,456 for
reimbursement on incident #
922987 and assessing $10,000 deductible.
-
April 21, 2003 letter from Illinois EPA assessing a $20,000 deductible on incident
# 942519.
Why would there be a $20,000 deductible referencing
one incident
number. This letter conflicts with the November 30, 2001
letter. This isn’t
consistent with Illinois EPA practice. It also illustrates that the Illinois EPA
doesn’t know how to differentiate these incidents. There is only one hole to clean.
When you take into account the June 11, 2002 letter, is the Illinois EPA assessing
$30,000 in deductibles?
-
Marlin Environmental’s 5/14/03 letter explaining the APEC/AARES
situation and
a request for those amounts to be applied against one deductible. This package
contains manifests from early excavation by Apec of252 cubic yards of
contaminated soil. Why would the Illinois EPA deny placing any value on
$15,
456
of previous work that was completed and not reimbursed?
I started this most recent request to close this project two years ago.
It is holding up
my ability to get financing on our building.
It is my only source ofcapital now and the
only way I can finance the ongoing operations ofour business. I will lose this opportunity
by the end ofthis year. I would appreciate it very much if you could expedite this
decision on a hearing. Every time paper passes betweenthe state and the contractor, they
reserve the right to take four months to answer. Is this incident going to take another
eleven years to close?
Please schedule a hearing so I can move this along. I am contactingthe small business
advocate and the Equal Justice Officer to see ifthey will intervene on this to avoid the
expense ofa hearing.
Thanks for your interest in this case.
Respectfully submitted,
62j~
Ra
dali R. Truckenbrodt
President
Due
to
the
volume
of
this
pleading,
please
contact
the
Clerk’s
Office
at
312/814—3629
to
view this
file.