OF THE STATE OF ILLINOIS

ILLINOIS STATE TOLL HIGHWAY

AUTHORITY (Lincoln

Oasis North),

Petitioner,

V.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James

R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

Respondent.

RECEIVED

CLERK’S

OFFICE

OCT 10

2003

STATE OF ILLINOIS

Pollution

Control &ard

)

)

)

PCBNo.04-

)

(LUST Appeal

—

Ninety Day Extension)

)

)

NOTICE

Kenneth W. Funk

Deutsch, Levy& Engel

225 West Washington Street

Suite

1700

Chicago, IL

60606

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 ofwhich

are herewith served upon you.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent

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:

October 8,

2003

---

RECEIVED

CLERK’S

OFFICE

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

OCT

102003

STATE OF ILLINOIS

ILLiNOIS STATE TOLL HIGHWAY

)

Pollution

Control

Board

AUTHORITY (Lincoln Oasis North),

)

Petitioner,

)

(

v.

)

PCBNo.04-

ILLINOIS ENVIRONMENTAL

)

(LUSTAppeal

—

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)(1))

and

35

Ill.

Adm.

Code

105.208,

hereby requests

that

the

Illinois

Pollution

Control Board (“Board”) grant an extension of the thirty-five (35) day period for petitioning for a

hearing to

January

6, 2004,

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 September 3,

2003,

the Illinois

EPA issued a

final decision to

the Petitioner.

(Exhibit A)

2.

On October

1, 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

EPA join

in

requesting that the Board

extend the thirty-five

day period for filing

a

petition to

ninety

days.

The Petitioner did not represent when the final decision was received.

(Exhibit B)

1

---

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 ofany

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 of Legal Counsel

1021 North Grand Avenue, East

P.O.

Box 19276

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143

(TDD)

Dated: October 8, 2003

This filing submitted on recycled paper.

2

---

SEP

15

‘03 10:49

FR 1~JIGHT & COMPANY

630 969 7979 TO

13123461859

P.06

~.:.c’L~

~

11

~

SEP

52003

o

ILLiNOIS

ENVIRONMENTAL

PRQTECT1ON

AGENCY

1021

Nown-i GRAND

AVENUE

EAST,

P.O.

Box

19276,

SPRINGFiELD,

ZLLtNO~5

62794-9276

JAMES

R. THQMP~ON

CENTER,

100

WEST

RANDOLPI-i,

SurrE

11-300,

Ci-nc~co,

1160601

RoD

R.

BI.ACOJEVICH,

GOVERNOR

RENEE

CIF’RIANO,

C)IrcEcToR

CERTIFIED MAIL

7O0~ 315fl

QOO~ 1E24

5101

SEPQ32CU3

.

Illinois State Toll Highway

Authority

Attention:

Steve Gillen

1

Authority

Drive

Downers

Grove, IL

60515

Re:

LPC#0312975140--

CookCounty

South Holland

I

Lincoln Oasis North

Tn-State Tollway (1-294), Noith Bound, Mile Post 1.~

LUST Incident No, 941817

LUST

Technical

File

Dear Mr. GiJien:

The Illinois

Env

onmicntal Protection Agency (Illinois EPA). has reviewed the High

Priority.

Corrective

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

This

plan, dated May

22, 2003, was received by the Illinois EPA on May 27, 2003.

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

Xli.

Adm. Code

732,405(c),

the plan is modified7~

The modifications listed

in

Attachment A are

necessary, in

addition

to

those provisions already

olltlii3ed

in the plan, to demonstrate compliance

with

Title XVI ofthe Act

and

35111. Adm. Code

732.’ Please note that

all

activities associated

with

the remediation of

this

release proposed in the

plan

mast be executed in accordancewith all applicable regulatory

and statutory requirements,

including compliance

with

the proper

permits.

In addition, the budget for the High Priority Corrective Action

Plan

is rejected for the reason(s)

listed in Attachment B (Section

57.7(c)(4)

ofthe Act

and

35111. Adm. Code 732.405(c)

and

732.503(b)).

Pleasenote

that,

ifthe owner or operator

agrees with

the Illinois EPA’s

modifications,

submittal

ofan amended plan is not required (Section

57.7(c)(4)

ofthe Act and 35

11.

Adm.

Code

732.503(f)).

NOTE:

The plan proposes activities that

are

technically acce~,table

as modified

in

this letter.

However, this letterdoes not

coustit~de

illinois EPA approval of

any

costs

incurred

during the

completion ofsuch activities.

For the purpose of

reimbursement,

these

activities are

in excess

of

those necessary to meet the

minimum

requirements of the Act

arid

regulations.

Owners and

operators are advised that they may hot be entitled to full payment or reimbursement for

this

ROcKF0kO

—

4301 North Main

Street,

Rocklo

__________________________

ELcrN

—

593

5o~th

State,

El~n,

BURtAU

OF LAND

-

P~ORJA

—

7620 N.

University St.,_

5pRiN~rIe,p

—

4,500 5. $~xth

Street

ed., Spriit

MA

Plain~s,IL 600T6—(8471 294-4000

~1614—

(309) 693.5463

~et

champaign,

IL 61820— (2171 278-5800

in~viUe,

(162234—

1618) 346-5120

217/782-6762

---

SEP 16

‘03 10:49 FR UJIGHT & COMPANY

630 969 7979 TO 13123461859

P.07

Page2

reason. The IllinoisEPA will review your completerequest for partial or final paymentfrom the

Underground Storage

Tank

Fund after it is submitted to the illinois EPA.

All

future

correspondencemustbe

submitted

to:

IllinoisEnvironmental

Protection

Agency

BureauofLand

Leaking

UndergroundStorage

Tank

Section

1021

North

GrandAvenueEast

Post

Office

Box

19276

Springfield, IL

62794-9276

Please submit all correspondence in duplicate

and

includetheRe:block

shown

at

the

beginning

of

this

letter.

An

underground

storage tanksystemowner oroperatormayappeal

this

decision to theIllinois

Pollution Control

Board.

Appeal rights

are

attached.

Ifyou have,

any

questions or needfurther assistance, please contactCarolHawbaker at217/782-

5713.

Sincerely,

Harry A. Chappel, P.E.

Unit Manager

Leaking Underground Storage Tank Section

Division ofRemediation Management

Bureau ofLand

EIAC:CLH

Attachment:

A

and B

cc:

Wight

DivisionFile

---

SEP

15

‘03

10:4~FR ~JIGHT& COMPANY

530 959 7979 TO 13123461859

P.08

Appeal Rights

Anundergroundstoragetankowner oroperator

may appeal this final decision to the

illinois

Pollution ControlBoard

pursuant

to

Sections

40

and

57.7(c)(4)(D) oftheActby

filing

a

petition

for a hearingwithin

35

days

afterthe dateof

issuance

of

the final decision. However,

the

35’.-day

periodmaybe extended foraperiod of

time

notto

exceed

90 daysby

written

noticefrom the

owner oroperator

and the

illinois

EP.A within the initial

35-day

appealperiod, Ifthe owner or

operator

wishes

to receive a90-dayextension, a

written

request that includes a statement ofthe

date the final decision

was received, along with

acopyof

this

decision,

must

be sentto 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 ofillinois Center

100 West Randolph, Suite

11-500.

Chicago, IL

60601

312/814-3620

For information regarding the

filing

of an. extexisior~,

please contact:

illinois Envitonmental Protection Agency

Division ofLegal Counsel

1021

North

Grand

Avenue

East

Post Office

Box 19276

Springfield, IL

62794-9276

217/782-5544

---

SEP 15

‘03 10:49 FR L~JI6HT& COMPANY

630 969 7979 TO 13123461859

P.09

Attachment A

Re;

LPC ~0312975140

—

Cook

County

South

Holland /Lincoln Oasis North

Tn-State

Toliway (1-294), Mile Post 1.1

LUST IncidentNo.941817

LUST

TECHNICAL

PILE

-

Citations in this

attachment are fromthe Environmental Protection

Act

(Act)

and

35

illinois

Administrative

Code (35111.

Adm.

Code).

The

IllinoisEPAwishes to

clarify

issuesthat

were

presented intheHigh

Priority

Corrective Actionpian thatexceed the

mir~rnum

requirements tocomply

with

TitleXVI

regulations.

A.

Pursuantto 35 IAC

620.210, Class I potable

resource

groundwater is groundwater 10 feet

ormorebelow the land surface.

Based

on the correspondence

submitted

to theAgency

dated April 30,2003, receivedonMay

5,

2003, the site isa

manmade

moundon whicha

gas

station is located. According to the correspondence,

the

actual

native

land

surface

is

at603.5

feet

above

mean sea

level. As

the groundwater

wells

are

set above this native

land

surface

level, the groundwater encounteredmthese wells .3re~

within an aquifer

The groundwater encountered is perched water that

has

no

ability

to affect off-site

properties as a clay aquitard allows for a seal

between

the perched water

and

the actual

land

surface. Therefore,

modeling with R,26 equations does not apply in this instance, as

the contaminated

groundwater

is not locatedin an

aquifer.

In, addition Class II

groundwater remediation objectives apply at this site, The groundwaterpathway may be

~

excluded through the on-site groundwater userestriction proposed forthis site.

B.

Soil excavation activities proposed in the planexceed the

minimum

requirements to

comply

with

Title XVI, as areas proposed to be excavated

are

beyond the areaof

soil

contamination

exceeding Tier

1

and site-specific Tier 2 remediation objectives. Exclusion

ofpathways may be addressed through institutional controls and the use ofthe concrete

pavement resurfacing as an engineered barrier. Soil excavation maynot be

necessaryto

address the contamination at the site.

---

SEP

16

‘03

10:50

FR

~JIOHT&

COMPANY

630

969

7979

TO

13123461859

P.10

Attachment B

Ee~

LPC#0312975140--

CookCounty

South ~olland / Lincoln OasisNorth

Tn-State Toliway (1-294), North

bound, Miló Post

1.1

LUSTJiicjdentNo. 941817

LUST Technical File

-

Citations in

this

attachment

are from

the

Environmental

Protection Act (Act) and

35

Illinois

Administrative

Code

(35

III. Adm,

Code).

The

budget

includes costs in

which

the owneror Operator failed to

justify that all costs arc

attributable

to

each underground storage

tank at the

site.

(Section

57.8(m)(2) of

the Act)

The budget includes

costs

for

corrective

action

activities

for

underground

storage

tanks

for which the owner or operator was deemed ineligible to access the

Fund.

(Section

57.8(m)(1) of

the

Act)

According

to

Drawing

9

deiixting

the

area

of

soil

contamination and

extensive sample

analyses

conducted at the

site,

the extent of

contaminption

appears to be from

the tank

system that

was

removed in 1986;Per the

Eligibility and

Deductibility determination

made bythe Office ofthe StateFire

Marshall

(OSFM) the tank

system

removed in 1986

is not eligible for

reimbursement

under

the

LUST program. Therefore,

corrective

action

to

achieve

compliance under

Title

XVIis not eligible for

reimbursement.

---

LAW

OFFICES

EARL

A.

DEUTSCH

PAUL

M.

LEVY

TERRY

L. ENGEL

FRANK R.

COHEN

JERRY

I.

RUDMAN

MICHAEL

J.

DEVINE

STUART SERNS

KENNETH

W. FUNK

PHILLIP

J.

ZISOOK

DENNIS

E.

FRISBY

STEVEN

B.

ISAACSON

ALVIN

J.

HELFGOT

JOEL

A.

STEIN

BRIAN

D.

SAUCIER

JAMES

E.

O’HALLORAN

AARON

B.

ZARKOWSKY

KAREN KAVANAGH MACK

GREGG A. GAROFALO

JEFFREY B. HORWITZ

MOYENDA

MUTHARIKA

KNAPP

DAVID J.

BEN-DOV

CATHERINE

GLENN

JOELSON

DEUTSCH,

LEVY

&

ENGEL

CHARTERED

SUITE

700

225 WEST WASHINGTON

STREET

CHICAGO, ILLINOIS 60606

(3 IS) 346-1460

E-maij:

IawyerS@dIec.com

Website:

www.dlec.com

FACSIMILE: (312) 346-1859

COUNSEL

MARSHALL

D.

KROLICK

ARTHUR J.

SABIN

VIA FACSIMILE 217-782-9807

AND REGULAR MAIL

Illinois Environmental Protection Agency

Division ofLegal Counsel

1021

North Grand

Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

Attention: John Kim, Esq.

October 1,

2003

The undersigned, as a Special Assistant Attorney General, represents the Illinois State Toll

HighwayAuthority in cotmection with the referencedLUST Incident.

Ihave received a copyofthe

Agency’s

letter, dated S~ptember

3, 2003, rejectingthe Authority’s High

PriorityCorrective

Action

Plan and

related Budget previously submitted to the Agency.

A copy ofthat

letter.is

enclosed.

Please be advised that the

Authority

does not

agree

with the Agency’s position as set forth

in its letterofSeptember 3, 2003; however, inhopes ofresolving theopen issueswiththe Agency,

and avoiding the necessity of an appeal to the Illinois Pollution Control Board, our client hereby

requests an extension, pursuant to Sections 40 and

57.8

oftheIllinois Environmental Protection Act,

to extend the period withinwhich it may appeal the Agency’s decision for an additional ninety (90)

days.

RECEfl/ED

DM&on

OCT

0.32003

Agency

Re:

LPC #0312975140

-

LUST Incident No. 941811

Dear Mr. Kim:

166257.1

---

It

is

our understanding that

upon

receipt of this

letter you

will proceed to

prepare

the

necessarymotion forfiling with Illinois Pollution Control Board to effectuate the extension. Ifyour

understanding is other than as indicatedherein orifI canprovide

anyfurther

information, please let

us know immediately.

Your assistance and cooperation is appreciated.

Very truly yours,

~

Kenneth W.

Funl.lj

K’WF/alj

Enclosures

cc: Victor Azar, Esq.

Ms.

Mary Kruk

-

161791.2

---

CERTIFICATE OF SERVICE

I, the undersigned attorney at

law,

hereby certify that

on

October

8,

2003,

I served true

and

correct copies of a REQUEST FOR NiNETY DAY EXTENSION

OF APPEAL PERIOD,

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 Springfield, Illinois, with sufficient

First Class Mail postage affixed thereto, upon the following named persons:

Dorothy M. Gunn, Clerk

Kenneth W. Funk

Illinois Pollution Control Board

Deutsch, Levy &

Engel

James R. Thompson Center

225

West Washington Street

100 West Randolph Street

Suite

1700

Suite 11-500

Chicago, IL

60606

Chicago, IL 60601

~ENVIRONMENTAL

PROTECTION AGENCY,

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)