BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOTICE OF FILING
Renee Cipriano, Director
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O.
Box 19276
Springfield,
IL
62794
PCB-04-10
(UST Appeal)
~
John Kim, Esq.
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O.
Box 19276
Springfield,
IL
62794
PLEASE TAKENOTICE that on October
~,
2003 we filedwith the Clerk ofthe Illinois
Pollution Control Board the originals and nine (9) copies each, via personal delivery, of 1)
Appearance ofDeutsch,
Levy & Engel,
Chartered and2)Petition for Review ofAgency
Rejection ofHigh Priority Corrective Action Completion Report
for Belviclere Oasis
North
for
filing the above-entitled cause, copies of
which are attached hereto.
Kenneth W. Funk
Special Assistant Attorney General
ILLiNOIS STATE TOLL HIGHWAY
AUTHORITY (Belvidere North CACR),
)
)
Petitioner,
)
)
v.
)
)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
)
)
Respondent.
)
To:
200j
L
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166743.1
CERTIFICATE OF
SERVICE
Theundersigned herebycertifiesthat true and correct copies oftheNoticeofFiling, together
with
copies
of the
documents
described
above,
were
served
upon
the
above-named
Respondent by enclosing same in envelope
addressed to
said Respondent, certified mail,
return receiptrequested, and by depositing said envelopes in a U.S. Post Office Mail Box at
Chicago, Illinois, with postage fullyprepaid on the ~
day ofOctober, 2003.
Kenneth W. Funk
/
Special Assistant A*omey General
Kenneth W. Funk, Esq.
Phillip
J. Zisook,
Esq.
Karen Kavanagh Mack, Esq.
Deutsch, Levy & Engel, Chartered
225
W. Washington Street, Suite
1700
Chicago, IL
60606
(312) 346-1460 /Firm No. 90235
THIS FILiNG IS SUBMITTED ON RECYCLED PAPER
#1~6743v1Chicago
-Petition for Review
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166743.1
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
ILLINOIS STATE TOLL HIGHWAY
)
AUTHORITY (Belvidere North CACR),
)
)
Petitioner,
)
v.
)
PCB-04-10
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
)
)
Respondent.
)
APPEARANCE
I, Kenneth W. Funk, hereby file the appearance ofDeutsch, Levy & Engel, Chartered in this
proceeding on behalfofthe Illinois State Toll Highway Authority.
Kenneth W. Funk, Esq.
Phillip J. Zisook
Karen Kavanagh Mack,
Esq.
Deutsch, Levy & Engel, Chartered
225
W. Washington Street
Suite
1700
Chicago, IL
60606
(312) 346-1460
Firm No. 90235
Special Assistant.
General
#166743v1Chieago
-Petition for Review
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166743.1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
•
.
.
ILLINOIS
STATE TOLL HIGHWAY
)
AUTHORITY (Belvidere North CACR),
.
)
.
)
.
O(201J
Petitioner,
)
O//~,
~
)
v.
)
PCB-04-10
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
)
)
Respondent.
)
PETITION FORREVIEW OF AGENCY REJECTION OF HIGH PRIORITY
CORRECTIVE ACTION COMPLETION REPORT
Petitioner,the Illinois State Toll HighwayAuthority(“ISTHA”)by its attorneys,Kenneth W.
Funk, Phillip J. Zisook,
Karen Kavanagh Mack, as Special
Assistant Attorneys
General, petitions
the Illinois Pollution Control Board, pursuant to 415 ILCS
5/57.7(c)(4)(D)
and 415 JCLS 5/40, for
reviewofthe final determination ofRespondent, the Illinois Environmental Protection Agency (the
“Agency”), with respectto Petitioner’s High PriorityCorrective ActionCompletionReport dated on
or about April
8, 2003 relating to its
Belvidere Oasis North facility, and in support thereof, states:
1.
ISTHA is the ownerofthe facility, including underground storagetanks and related
piping, commonly known as the Belvidere Oasis North located on the 1-90 Tollway in Belvidere,
Illinois.
2.
On or about January 19,
1989, ISTFIA notified the Illinois Emergency Services and
Disaster
Agency
(IESDA)
of high
levels of volatile
organic
compounds
(VOCs) near existing
underground storage tanks systems (“UST”) at its facilityto which the IESDA assigned Incident No.
89-0112.
~166743v1Chicago
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3.
On
or about November 2,
1989,
ISTHA
notified
the IESDA
of water and
soil
contamination discovered during the UST removal at its
facility to
which the IESDA
assigned
Incident No.
89-2215.
4;
In 1994, Wight and Company, on ISTHA’s behalf, notified the Illinois Emergency
ManagementAgency (IEMA) that gasoline, diesel and waste oiltarget analytes were detectedabove
the Tier I Remediation Objectives, to which the IEMA assigned Incident No. 94-1815.
•
•
5.
On September 4,
2002, at the Office of State Fire Mareshall’s request, Wight and
Company, on ISTHA’s behalf, notified the IEMA of a release from the USTs, to which the IEMA
assigned Incident No. 2002-1277, and is considereda re-reporting ofIncident No.
94-1815
since the
release was reported during the removal ofthe tank system associated with Incident No.
94-1815.
6.
On or about April 14, 2003, ISTHA submitteda Combined High Priority Corrective
Action Plan, Budget and Completion Report (“Report”) to the Agency; and,
on or about June 13,
2003, the Agency responded by rejectingthe Report.
A true and complete copy ofthat rejection is
attached hereto as Exhibit “A”.
•
•
7.
•
On or about July
10, 2003, ISTHA contacted the Agency by letter, and advised the
Agency that itcon~ested
the Agency’srejectionand requested a 90 day extensionofthe
35 day appeal
period pursuant to
§40 ofthe Environmental Protection Act.
(415 ILCS 5/40(a)(1).)
8.
On or about July 21, 2003 the Agency filed a request before the Board requesting a
90 extension ofthe 35
day appeal period.
9.
On or about July 24, 2003, the Board granted the Agency’s request and extended the
period within which Petitioner may file its
appeal through and including October
16, 2003.
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10.
ISTHA has requested that the Board reverse the Agency’s determination effectively
rejectingthe Corrective ActionPlan and Budgetregardingthe modifications to the analytical costs,
the modifications to theproposedremedial investigations, the modifications to the proposed budget
for preparation of the corrective action plan and budget, the modification to the remedial action
activities for the time required
to conduct the remedial action activities, the modifications to
the
proposedbudgetforpreparationofthe reimbursementrequest,and themodifications to the proposed
budget for handling charges.
(~
ISTHA v. IEPA, PCB 04-11.)
11.
Similarly, ISTHA requests that theBoard to reversethe Agency’s final determination
with respectto its rejection ofthe Belvidere Oasis North- High Priority Corrective Action Report,
because
inter alia,
the Report, which was predicated up the Corrective ActionPlan, was completed
in accordance with therequirements ofTitle XVI ofthe Act and complied with
35
Ill.
Adm.
Code
732.409(c).
12.
ISTHA
restates
the
allegations
set
forth
in
its
Petition
for
Review ofAgency
Modification of High Priority Corrective Action Plan and Budget in PCB
04-il.
Namely, with
regard to the Plan, the Agency did not approvethe costs forpumping and disposing ofgroundwater.
The Agency’sfailure to approve the removalofthe groundwater is unreasonable, because removal
ofimpacted groundwater from the UST and piping excavation site is necessary and appropriate to
achieve applicable construction workerexposureobjectives~an±to-properlycom~iletethcexcavation
and backfillactivities. ISTHA also appealsthe Agency modifying theplanto include Inhalationand
Ingestionvalues for soils under Industrial/Commercial properties. This modificationis unnecessary
to the extent that the inhalation levels for construction workers
are
at least as restrictive or more
restrictive than inhalation and ingestion levels for Industrial/Commercial properties.
With regard
#166743v1Chicago
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166743.1
tothe
budget, ISTHA appeals
inter alia,
the modifications to the budgetedanalytical costs, because
a rate of
$136.50
per rush sample is necessary and reasonable for achieving the-proposed corrective
action objectives pursuant to 35
Ill. Adm. Code 732.505(c).
Further, no deduction should be made
for the investigation conducted to obtain the site-specific parameters necessary to evaluate the site
and determine the appropriate remediation methods.
The costs for the investigation are necessary
and consistent with the applicable
regulations.
ISTHA further objects to the modifications to
the
proposed budget
for preparation of the
corrective action plan
and
budget,
because
they were
necessaryand consistent with generally acceptedpractices and are reasonable c~stsfornecessary~and
required activities.
Additionally,
the Agency’s modification to the time required
to conduct the
remedial action
activities
is
improper because the time
budgeted
for the engineer
and projects
manager
was
reasonable.
The
modifications
to
the
proposed
budget
for preparation of the
reimbursementrequest was improper, because the costs for preparing the request is reasonable for
the
amount of documentation
accumulated during the LUST
project.
The modifications
to the
proposed budget for handling charges should be
adjusted pursuant to 35 Ill. Adm.
Code 732.607,
because the analytical costs increased.
•
13.
The Belvidere Oasis North has been remediated
to
a level which
is
protective of
humanhealth and the environment and complies with, but does not exceed, the minimumnecessary
requirements of the Act and the regulations
promulgatedthereunder.
14.
ISTHA reserves the right to presentadditional grounds for reversal of the Agency’s
final determination, as they appear during the course of this Appeal.
WHEREFORE,
the
Petitioner,
The Illinois
State
Toll
Highway Authority,
respectfully
requests
that
this
Board
grant a hearing in
this
matter and
reverse the
Agency’s June
13,
2003
#166743v1Chicago
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Belividere Oasis
North.wpd
•
•
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166743.1
rejection of ISTHA’s High Priority Corrective Action Completion Report for the Belvidere Oasis
North
and remand this
matter to
the
Agency
with
instructions
to
approve the Amendment
as
aforesaid, and for any other relief as the Board deems just and appropriate.
•
•
Respectfully submitted,
ILLINOIS STATE TOLLHIGHWAYAUTHORITY
By:__________
•
One of their attorne
s
Kenneth W. Funk,
Esq.
Phillip J. Zisook, Esq.
Karen Kavanagh Mack
Deutsch,
Levy & Engel, Chartered
225
W. Washington Street, Suite 1700
Chicago, IL
60606
•
•
•
(312) 346-146
•
•
•
•
FirmNo. 90235
#166743v1Chicago
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166743.1
SUM
2S’
‘03
09~33FR
LJIGHT
&
COMPA1NY
626 969 7979 TO 13123461659
P.0?
217/7g~-6762
ILLINOIS ENVIRONMENTAL
PROTECTION
ACENCY
1021
NORTH
CKANO
AVENUE
E~s.sT,
P.O.
Box
19276,
SPRINCFJW).
iWnQ’S
62794-9276
JAMES
R.
THOMP
ON
CENTER,
~Q
WEST
RANDOLPH.
Sun
ti .300,
CHICAr,o.
IL 60601
Roo
R.
0
LAcojEvIçn,
GOVERNOR’
RENEE CIPRIAMO,
DRECOR
JUN
132003
CEREXEIED
MAIL
7Dt12
31S0
LIDOD
1!2~2248
Illinois State Toll Highway Authority
Attention: Jof~n
IL Wavier, ?.E.
2700
Ogden Avenue
Downers Grove, Illinois 60515
Re:
ISPC
0070057092--
Scotia County
~cIvidàre/Illinois State
TollHighwayAuthority
Eelvidat Oasis (I’Thrth Side)
LUST IncidcntNo. 8901 12~
892215, 941815 and
20021271
LUSt technical File
DcatMr. Ws~saer:
The Illinois Ern’ironmcnzal
Protection Agency
(Illinois
EPA) has reviewed the
High
PriorityCorrective
Action
Completion Report (report) for the above-referenced incident.
The
reportwas
dated April 8,2003 and was ztcthed
by the Illinois EPA
on
April
14,
2003.
Citations ~
this letter are from the Envisoatnental Protection Act (Ac4and.
3$ Illinois AdministrativeCode (~5
111. Adm. Code).
Pursuant
to .57.7(c)(4)(D)
of the
Act and
35
iii.
Mm,
Code 732.409(o) and 732.503(b);thereport is
rejected
(or
the
reasons listed in AttachmentA.
Ac underground storagetak system owneror operator may appeal this
decision tothe Illinois Pollurioh
Control
Board.
Appeal rights
sit
attached.
Ifyou have any questions or need further assistanoc, plaasacontact Donna Wausce a; 217/524-1283.
Th~tnas
A.
Unit Manager
Leaking
Unde~ground
Storage
tank Section
Division of RetnediarionManagetnent
Bureau
of
Land
TAH:DW:dw~
Attachment:
Attachment
A
•
Wight and Company
DMsiän File
Rnr.gcnn,
—
1.101
Noilh
Maui SIr~eL
Roe
—
55
South
Suuit,
El;
cr
L’c’~o
a
PEORIA
7?20
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University!
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Rd., S(~
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is
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D*c~,nes,II.
600i6:t841 294’~QO0
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tL6182Q—(2fl)Z~84sJ~Q
—;se,
11.
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LO86~BQJ1?
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JLit4
26
‘03 Ø~:33FR
(JIGHT
g
COMPANY
633
969
7979
TO
13i2346t359
P.G3
•
•
Attachment
A
Ra;
LPC
ii 0070057092
—
Boone County
&lvidere/Illinois State Toll HighwayAuthority
Belvidere Oasis (North Side)
LUST Incident
No. 890112,892215,941815
and
20021277
LuST
TECHNICAL
-
Citations in
this
a.ttachtnent
are from the.
Environmental Protection Act (Act) and 35 Illinois
Administrative
Code
(35111.
Adin.
Code)s
•
•
A.
The
owner/operator
surmnaxy
form
was
not
completed.
A
tax pàatel U) number must be”
~
provided as welt
as a legal de~cripdon
ofthe
property.
B.
IndostriaVComntercial Soil Ingestiol levels were exceeded
at
NW-I,
TFW-2,
TFM~2
and
TFE-
for
Benzo(a)anthraccne
and
Eenzo(a)pyrvne and must be addressed either by
further
remediation oraprdposed
bardea’.
C.
Najththalene was exceeded
at lYE-i
for
Inhabwt
ion levelsfor Construction
Workers
and
“
must be addressed by furtherremediation
or a Worker
Caution
control.
The locationofsampleTFE-1 was not provided
on
your
maps, pleaseshowthelocation
of’this sample
on futuremaps.
0.
If
a barrier is to be proposed, the Agency requires a
map
to scale
giving the
dimensions of
•
the
barrier
to be
maintained.
Also photos must be provided sbowinE the bather
is in
•
~
/
place.
•
•
•
•
I!.
A
Professional Engineer Certification was not
included with your Corrective Action
•
CothplerEon Report.
.
.
•
•
DW4w\
‘
9OOJG0O’~0689#
G~2Z~VH3
I2~N2I’AAS’I HS~Lfl~G
n~~—nczi~8CS1
600?,O1”IflL’
•
LOB6?8U13
•
LOS5?BUT~
91n21
2Oø?—@1—lflf
90’d laLci
•
•
a
JUN
~
‘33
09~33
FR
(‘lIGHT t
~OPAWY
630
969
7979
TO
t31?~461859
P.04
-
b
•
•
•
Appeal Rights
•
An
underground storage tankowiiir
or
operator
may
appeal
thi~
final decisionto the Illinois
Pollution ControlBoard
lirsuaritto Sections40
and
S1.7(c)(4)(D)ofthe
Actbyfiling
a petition
for a hearing within
35 days
after
the datae~issuance
of’the final decision.
However,the
35-day
period
may be extendedfor a
period
of
time
not to exceed 90 days by written notice from the
•
•
owner
oroperatorandthe
Illinois EPA within the initial 35-day ~pS
period.
lithe owner
or
operator
wishes
to receive
a
90-day extension, a writtenrequest that includes a statementofthe
datethe
final
decisionwa$
tceived, along
with
a copy of
this decision,must
be sent to the
Illinois EPAassoon aspossible.
•
• ‘Porinfonnatianregardingthefiling
ofan appeal,
pleasécontact:
Dorothy (1mm, Clerk
•
•
•
Illinois PollutionCount
Board
State
of
illinois Center’
•
100
WestRandoipli. Suite 1F500
‘
•
•
•
Cbicago, XL
60601
•
3 12/814-3620•
For information regardingthe flUngdan extension,
please contact:
Illinois Environmental Protection Agency
Division of
Legal Counsd
•
•
•
1021 North
Grand Avenue East
•
•
•
•
PostOfficeBoxl92l6
•
•
Springfield,
IL
62794-9276
2171782-5544
•
)14*
TCTRL,PAGa.04
‘i~~
• 9OO/9OO’~
06895
C~LT8VHOlaUNs flAnHsInw
‘Qfl8—flE3TuT 8CE1 6oo3~oT~1nr
90/93’d
LGB6E8LLT~
•
•
LOB6EB2JLT?
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