NOTICE OF FILING AND CERTIFICATE OF SERVICE
INTRODUCTION
The compaction of the backfill and the cost associated with that compaction were
PROCEDURAL BACKGROUND
THE LAW’
ARGUMENT
1. THE COMPACTION WAS A “CORRECTIVE ACTION.”
CONCLUSION

REC~yED

CLERK’S

OFFICE

OCT

802003

BEFORE THE ILLINOIS POLLUTION CONTROL BO~1~&1t

OF ILLINOIS

Pollution Control Board

McDONALD’S

CORPORATION,

)

Petitioner,

)

)PCB

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY,

)

Respondent.

)

NOTICE OF FILING AND CERTIFICATE OF SERVICE

The

undersigned

hereby

states

oath

that

this

30th

day

October,

2003,

copies

Petitioner’s Motion For

Summary

Judgment were filed with the Illinois

Pollution Control Board

and served by First Class

Mail, postage pre-paid, upon the parties named on the attached Service

List.

McDonald’s Corporation

BY:~7

its attorney

Barbara A. Magel

Mark D. Erzen

Karaganis, White & Magel Ltd.

414 North Orleans Street, Suite 810

Chicago, Illinois

60610

312/836-1177

Fax 312/836-9083

MDEMCO2O.DOC

SERVICE LIST

John J. Kim, Esq.

Assistant Counsel

Illinois Environmental Protection Agency

Division ofLegal Counsel

1021 North Grand Avenue East

Springfield, Illinois

62794-9276

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center, Suite 11-500

100 WestRandolph Street

Chicago, Illinois

60601

CLERK’S OFFICE

OCT

02003

BEFORE THE ILLINOIS POLLUTION CONTROL B~~F

ILLINOIS

Pollution

Control Board

McDONALD’S

CORPORATION,

)

Petitioner,

)

PCB

2004-14

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY,

)

Respondent.

)

PETITIONER’S MOTION FOR SUMMARY JUDGMENT

In 2002

and

2003,

Petitioner

McDonald’s

Corporation (“McDonald’s”)

paid a total

$31,515

compact1 backfill as

it was being placed

into excavations at a

leaking underground

storage tank site in Oak Brook, Illinois (the “Site”).

The reason that the backfill was placed into

the excavations was to raise the surface ofthose

excavations to

grade.

The sole reason that the

backfill was compacted as part of the placement of the backfill was to prevent future settlement

ofthe backfill.

The Illinois Environmental Protection Agency (“JEPA”) has refused to allow the $31,515

cost of compaction to

reimbursed from

the

Leaking

Underground

Storage Tank

(“LUST”)

Fund.

According

the

JEPA,

the

money

that

McDonald’s

spent

compaction

was

not

reimbursable because McDonald’s “failed to

demonstrate that

the

$31,515

spent on compaction

was

reasonable

...

.“

(Joint Stipulation, Exhibit 6, Attachment A to Exhibit 6.)

For purposes ofthis Motion,

the words

‘compact’

and

‘compaction’

have a limited

and specific

meaning.

In their Joint Stipulation

Of Facts (the

“Joint Stipulation”),

the parties agreed

inter a/ia

that:

(1) the

‘compaction’

involved

in this case consisted ofrolling

over the backfill with

sheepsfoot roller;

and (2) the sole purpose ofthe ‘compaction’

in this case was to prevent voids

and severe settlement ofthe

backfill.

(See generally

Joint Stipulation,

¶~f

19-26.)

Pursuant

Illinois

Administrative

Code

Title

35,

§101.516(b),

McDonald’s

now

respectfully moves for entry of summary judgment finding:

(1) that the IEPA erred in denying

reimbursement for the cost ofcompaction at the Site;

and (2) that the

$31,515

cost was (and was

demonstrated to

be)

a reasonable

cost of corrective action

at this

Site which,

under the

Illinois

Environmental Protection Act (the “Act”), should be reimbursed from the LUST Fund.

INTRODUCTION

The

basis

this

motion

straightforward.

The

pertinent

section

of the

Illinois

Environmental Protection Act provides that “the costs incurred to perform

corrective action”

are eligible

for reimbursement from

the LUST

Fund

if they are “reasonable

...

.“

415

ILCS

5/22.1 8b(d)(4)(C),

§22.1 8b(d)(4)(C) ofthe Act (now repealed).2

The undisputed facts show that

the $31,515

which McDonald’s spent to

compact the backfill was a “cost

incurred to perform

corrective action” which was reasonable and was demonstrated to be

reasonable.

The compaction ofthe backfill was a

“corrective action.”

The parties in this case have

stipulated that the compaction of the backfill at issue here was “properly part ofthe soil

placement process” used to raise the surface ofthe excavations at the Site to grade.

(Joint

Stipulation, ¶3 7.)

The Board has previously determined that the placement of backfill

into an excavation created by the removal of contaminated soil

a “corrective

action.”

See,

e.g.,

Platolene 500,

Inc.

IEPA,

PCB 92-9 (Opinion and Order dated May 7,

1992)

(“Backfilling

...

action

which

necessary

protect

human

health

and

the

environment” and is therefore

corrective action).

Consequently,

the placement of the

backfill into the excavations

—

and the compaction ofthat

backfill, which the IEPA has

As discussed below,

although

§22.1 8b

ofthe Act was repealed by Public Act

88-496 (effective

September

13,

1993), §22.18b ofthe Act is still the controlling law in this case.

stipulated

was

“properly

part

of the

soil

placement

process”

this

Site

—

was

“corrective action” under the Act.3

The

compaction

of the

backfill

and

the cost

associated

with

that

compaction

were

reasonable and were demonstrated to be reasonable.

The IEPA deducted

the

$31,515

cost of compaction because (according to the IEPA) McDonald’s “failed to

demonstrate”

that the cost was “reasonable.”

(Joint Stipulation, Exhibit 6, Attachment A to Exhibit 6.)

There are two possible reasons for the IEPA’s determination.4

Either:

(1)

the JEPA

decided

that McDonald’s

should

have backfilled the excavations with

material

that

did

not

require

compaction,

McDonald’s

choice

of soil

the

backfill material

(which

led

a need for compaction) was not reasonable

and the

cost associated

with the compaction ofthe, soil was therefore also

(according to the

IEPA) not reasonable; or

(2)

the IEPA decided that the soil should have been placed into the excavations without

any

compaction,

the

cost

associated

with

the

compaction

of the

soil

was

(according to the IEPA) not reasonable.

Neither ofthese alternative explanations for the IEPA’s determination is

supportable.

First,

before the IEPA issued the denial

which

the subject of this appeal,

Carmen

Yung

Senior

Environmental

Engineer

employed

MACTEC

(McDonald’s

remediation contractor)) had telephone conversations with both Ms. Lieura Hackman

discussed below,

even

though

clear that

the

compaction at the

Site

was a

“corrective

action,”

equally

clear

matter of law

that

the

IEPA

cannot

dispute

the

classification of the

compaction as a “corrective

action”

in this appeal.

See,

e.g.,

Pulitzer Community Newspapers,

Inc.

IEPA,

PCB 90-142 (Opinion and Order dated December 20,

1990).

There

apparently

dispute

regarding

either

the

method of compaction

(i.e.,

the

use

of a

sheepsfoot roller) or the unit cost

(i.e.,

the dollars per cubic yard) ofthe compaction at the Site, since the

only issues

that MACTEC

needed to address

its

letter to the

IEPA following discussions with IEPA

personnel

(see

Joint Stipulation,

Exhibit

(attached), p.

1) had nothing

do with

either the

use of a

sheepsfoot roller or the unit cost ofthe compaction.

and

Ms.

Valerie

Davis

of the IEPA concerning

LUST

Fund reimbursement.

(Joint

Stipulation, Exhibit

1.)

(Exhibit

from the Joint

Stipulation is

attached for the

convenience ofthe Board.)

Based

upon

those

conversations,

MACTEC

sent

letter to

the

IEPA

addressing

(among

other

things)

the

possibility

that

McDonald’s

could

have

used

backfill

material that did not require compaction.

In that letter (Joint

Stipulation, Exhibit.

(attached)), MACTEC explained that using

crushed

stone

the

backfill

material

would

not

have

required

compaction.

MACTEC

also

indicated that

it believed that

the use of crushed

stone

as a

backfill

material would have been entitled to “full reimbursement” from the LUST Fund.

But MACTEC

also

told the IEPA why backfihling with soil instead of crushed

stone

was the reasonable decision at this

Site:

the

soil

that was being used as backfill was “unwanted” material

donated by

the Village of Oak Brook,

so using this

soil as backfill was a beneficial

reuse

ofa potential waste material; and

importantly,

the use of compacted soil

backfill

saved more

than an

estimated

$50,000

compared to

the

cost

using

crushed

stone.

(Joint

Stipulation, Exhibit

(attached), p. 2.)

As MACTEC

‘

s letter demonstrated, it was eminently reasonable to use soil instead of

crushed

stone

backfill

the

Site,

even

though

the

soil

required

compaction,

because the use of the

soil allowed for the beneficial reuse of unwanted material

and

—

more importantly

—

itsaved more than an estimated $50,000.

•

Second,

MACTEC’s letter also

addressed the argument that the soil should

not have

been compacted as part of the soil placement process.

MACTEC

explained that the

compaction at the Site had only one purpose

—

toprevent voids and severe settlement.

According to MACTEC,

if the compaction had had any other purpose, the placement

of the

soil,

the compaction,

and

the testing

of the

level

of compaction would

have

been different.

The rationale for compacting the soil was clearly implied in MACTEC’s

letter:

in the

absence

of compaction, the

surface of the excavations at the

Site potentially

would

settle

below grade.

(See

Joint

Stipulation, Exhibit

(attached).)

Severe settlement

would present (as the Board noted in

Platolene 500,

Inc.

IEPA, supra)

a potential

danger to “human health and the environment.”

Moreover, if the backfill settled then

additional

fill

would

have to

be brought

the

Site to

once again restore the Site to

grade.

(Joint

Stipulation, ¶22.)

The MACTEC

letter therefore

demonstrated why it

was reasonable to compact the backfill that was used at this Site.5

sum,

the

material

facts

this

case

are

undisputed.

Those

facts

show

that

the

compaction of the

fill

was

part

of a

corrective

action,

that

the

compaction

and

the

cost

compaction were reasonable, and that McDonald’s (through its

contractor) directly addressed the

IEPA’s

concerns

and

demonstrated

that

the

compaction

and

the

cost

of compaction

were

reasonable.

In fact, it would at this

point be flatly illogical for the IEPA to claim that the compaction ofthe

soil was not reasonable.

The

IEPA has

stipulated that the

“.

IEPA did not and does not contest the fact

that

the

compaction

of the

backfill

soil

was

properly

part

of the

soil

placement

process.”

(Joint

Stipulation, ¶37.)

Since the compaction was “properly part ofthe soil placement process,” and there is

“reasonableness”

claim

concerning

that

soil

placement

process,

difficult

understand

how

the

compaction (which is properly part ofthe soil placement process) cannot be “reasonable.”

McDonald’s

therefore

respectfully

asks

the

Board

find

that

the

$31,515

cost

compaction was

demonstrated to

reasonable

cost

of corrective

action,

that

the

IEPA’s

decision denying reimbursement of the

$31,515

from the LUST Fund was in error,

and that the

$3 1,515 requested by McDonald’s should be allowed for reimbursement under the LUST Fund.

UNDISPUTED

FACTS

The Petitioner in this case is McDonald’s Corporation, and the Respondent

is the Illinois

Environmental Protection Agency (the “IEPA”).

(Joint Stipulation, ¶1J1, 2.)

This dispute involves a former gasoline station located at

1120

West 22nd

Street in Oak

Brook, Illinois

(the “Site”).

(Joint Stipulation, ¶3.)

The Site

is located at the north-east corner of

the

intersection of 22nd

Street

and

Spring

Road,

which

the

first

intersection that

drivers

encounter after exiting 1-88 and entering Oak Brook.

(Joint

Stipulation, ¶~J3,4 and

Exhibits

1-3

(photographs and a map showing the location ofthe Site).)

A number of years ago, the

soil

at the Site became contaminated with hydrocarbons

as a

result of spills or leaks that occurred in connection with

the operation of a gasoline filling

and

service

station

(since

demolished)

the

Site.6

(Joint

Stipulation,

¶7.)

McDonald’s,

which

purchased and is the current owner ofthe Site, has undertaken the remediation ofthe

Site.

(Joint

Stipulation, ¶8.)

Corrective Action Plan for the remediation

of the

Site was

filed with

the IEPA and

approved by

the Agency

May,

2002.

(Joint

Stipulation, ¶8.)

The

Corrective Action Plan,

generally speaking, called for the excavation and removal ofthe contaminated soil from the Site

to a landfill, and the replacement of that volume with clean fill.

(Joint Stipulation, ¶10.)

McDonald’s was not involved

in the operation ofthe service station.

(Joint Stipulation, ¶8.)

When officials

with the Village of Oak Brook

(the village in which the

Site is located)

found out

about the remediation ofthe

Site, they asked McDonald’s to use excess

soil

that

the

Village

owned as fill.

(Joint

Stipulation, ¶11.)

That soil

(the “backfill

soil”) was located in

pile

31st

Street in

Oak Brook,

fairly near to the

Site.

(Joint

Stipulation, ¶12.)

The backfill

soil was offered at no charge to McDonald’s.

(Joint Stipulation, ¶12.)

McDonald’s

contractor for the

remediation,

MACTEC

Engineering and

Consulting of

Georgia, Inc. (“MACTEC”), then contacted Ms. Valerie Davis ofthe IEPA.

Ms. Davis indicated

that the backfill soil would be acceptable as fill at the Site if assurances

could be provided which

confirmed

that the backfill soil did not

come from

contaminated source.

In compliance with

this request, the Village ofOak Brook

confirmed in writing that to the best ofits knowledge, the

backfill soil did not come from a contaminated source.

(Joint Stipulation, ¶~Jl3,14.)

In addition, the IEPA also requested that

one sample ofthe backfill

soil be

collected and

tested for priority pollutants.

(Joint Stipulation, ¶13.)

In compliance with this request, a sample

of the backfill

soil

was

taken and tested.

The results

of the test of the sample of backfill

soil

showed that the backfill soil was suitable foruse as fill at the Site.

(Joint Stipulation, ¶15.)

In addition to the assurances from the Village ofOak Brook and the favorable result from

the

test

for

priority

pollutants,

MACTEC

further

recommended

that

the

backfill

soil

continuously

screened prior to its use as fill at the Site.

(Joint Stipulation, ¶16.)

The backfill soil

was therefore initially continuously screened before it was taken to the

Site.

That screening did

not

detect

any

elevated

PID

readings

visual

olfactory

signs

of contamination.

(Joint

Stipulation, ¶16.)

MACTEC

then

again

contacted

Ms.

Davis

the

IEPA

concerning

the

screening

procedure.

Ms.

Davis recommended that additional

soil samples be

collected

and tested in

lieu

ofthe continuous screening.

(Joint Stipulation, ¶16.)

As a result, nine additional

samples ofthe

backfill

soil

were

taken

and

tested,

and

were

found

(with

one

exception

relating

arsenic

concentration)

within

the

most

stringent

TACO

Tier

soil

remediation

objectives.

MACTEC

therefore

concluded that

the backfill soil

was not

contaminated.

(Joint

Stipulation,

¶17.)

The backfill soil was loaded at the 31st Street location and transported to the Site for use

as fill.

After that soil arrived at the Site, it was placed into the excavations that had been formed

the

removal

of the

contaminated

soil

and then rolled

over

“a

few times”

sheepsfoot

roller.

(Joint Stipulation, ¶~l8,

19, Exhibit

(attached), p. 2.)

The use of the

sheepsfoot

roller

was solely to

compact the

soil

sufficiently

prevent

voids

and

severe

settlement.

(Joint

Stipulation,

¶20.)

McDonald’s

wanted

prevent

the

presence of voids

and the possibility of severe settlements

because voids

and severe settlement

would cause the surface ofthe Site to sink below grade at the

Site.

(Joint Stipulation,

21.)

the surface of the Site were to sink below

grade, it would be necessary to bring additional fill to

the Site to once again restore the Site to

grade.

(Joint Stipulation, ¶22.)

The placement ofthe backfill

soil

at the

Site, including the thickness ofthe lifts

(i.e.,

the

layers in

which the

fill

was

deposited) used during the

placement of the backfill soil,

was

not

designed,

conducted,

intended or engineered

for the

purpose of insuring

that

the backfill

soil

would provide a

sufficient base for later construction at the

Site.

(Joint Stipulation, ¶26.)

To the

contrary:

even though in-place density testing

is typically conducted after compaction whenever

the compaction is for the purpose ofreadying a site for construction, no

in-place density testing

ofthe backfill soil after it was placed

at the Site and rolled over with a sheepsfoot roller has ever

been conducted.

(Joint Stipulation, ¶~24,

25.)

In its

submission of its

LUST

Fund reimbursement

request

the

IEPA, McDonald’s

included bills from a subcontractor for the

loading,

transportation, placement and compaction of

the backfill

soil at the Site.

At the request of the IEPA, McDonald’s remediation and excavation

contractors calculated that the cost ofthe “compaction” included in those bills

—

i.e., the cost of

rolling

the sheepsfoot roller

on the

backfill

soil after it

was placed

the

Site

—

was

in total

$31,515.

(Joint Stipulation, ¶27.)

In a final decision dated May

12, 2003 from the IEPA to McDonald’s, the IEPA deducted

from the approved costs ofreimbursement the $31,515

cost of the “compaction” ofthe backfill

soil at the Site.

McDonald’s did not appeal the May

12, 2003

final decision.

(Joint Stipulation,

¶~J29,30.)

Instead,

response

the

IEPA’s

May

12,

2003

decision,

MACTEC

(McDonald’s

remediation

contractor) had conversations with

Ms.

Lieura Hackrnan and

Ms. Valerie

Davis of

the IEPA, and then sent a letter to the IEPA submitting information for the IEPA’s consideration.

(Joint

Stipulation,

Exhibit

(attached).)

That

letter,

dated May 20,

2003,

indicated that

the

purpose of the “compaction”

was to

“prevent voids

and

severe settlement” of the backfill

soil that had

been used as fill,

and that the “compaction”

was therefore properly part ofthe

soil

placement process.

(Joint Stipulation, ¶32.)

MACTEC’s May 20,

2003

letter also

stated that the use of crushed

stone

instead of the

backfill

soil

fill

would

have

raised the total

cost of the remediation

more than

$50,000

above

the

total

cost

which

was

the

basis

for

McDonald’s

reimbursement

request.

(Joint

Stipulation, ¶33.)

MACTEC’s May 20, 2003

letter further stated that the use of Oak Brook’s backfill soil as

fill instead of crushed

stone “helped the Village of Oak Brook to

dispose oftheir unwanted soil

and turned it into use.”

The letter

also

contended that McDonald’s “should not be penalized by

employing

cost

saving

and

environmental

conservation

methods

site

remediation

when

McDonald’s

could

have

obtained

full

reimbursement

crushed

stone

was

used

backfill

material.”

(Joint Stipulation, ¶34.)

MACTEC’s May

20,

2003

letter served

as a

request for reimbursement of the $31,515

cost

compaction

backfill.

The

cost

and

justification

for

the

request

for

reimbursement are

set forth

the

May 20,

2003

letter.

The letter indicates

that

the

cost of

compaction is sought for reimbursement.

(Joint Stipulation, ¶3 5.)

In a final decision dated

June 23,

2003,

the IEPA deducted

$31,515

“costs

that

the

owner/operator

failed

demonstrate

were

reasonable

(Section

22.1 8b(d)(4)(C)

the.

Environmental

Protection

Act).”

The

Illinois

EPA

identified three invoices that

formed the

bases for the deduction ofcosts.

The Illinois EPA characterized those costs as being “ineligible

costs

for

compaction.”

The

IEPA’s

decision

dated

June

23,

2003

attached

the

Joint

Stipulation as Exhibit 6.

(Joint Stipulation, ¶36.)

In arriving at its

final decision dated June 23,

2003

and for purposes ofthis

appeal,

the

IEPA did not

and does not contest the fact that the compaction of the backfill soil

was properly

part ofthe soil placement process.

(Joint

Stipulation, ¶37.)

PROCEDURAL BACKGROUND

This

proceeding

arises

out

of a

Petition

Appeal

which

was

filed

McDonald’s

seeking to

reverse the

IEPA’s

decision

dated

June

23,

2003,

insofar

as that

decision

denied

$3 1,515

costs

based

upon

the

IEPA’s

determination

that

“the

owner/operator

failed

demonstrate

that

those

costs

were

reasonable...

..“

(Illinois

Administrative

Code

Title

35,

105.408(a);

Joint

Stipulation,

¶5.)

The Petition To

Appeal was filed within thirty-five days of

service

of the

IEPA’s

June

23,

2003

decision,

thus

making

the

Petition

Appeal

timely.

(Illinois Administrative Code Title 35,

105.408(b); Joint Stipulation, ¶6.)

The parties have

filed a

“Joint Stipulation of Facts” with

the Board

provide a

set of

undisputed facts for the purpose offiling motions for summaryjudgment.

THE LAW’

Section 22.l8b ofthe Act applies to this case.

Although §22.18b was repealed by Public

Act 88-496, effective September

13,

1993,

§22.18b continues to

apply to releases reported prior

to the effective date ofPublic Act

88-496 unless an election has been made to proceed under the

newlaw.

The release involved in this case was reported prior to the effective date ofPublic Act 88-

496,

and

McDonald’s has not

elected

proceed under

the new law.

Consequently,

§22.1 8b

continues

apply.

See,

e.g.,

Home

Oil

Company

JEPA,

PCB

02-205

and

02-206

(Consolidated) (Order dated April

3, 2003), pp.

2-3 (“In this proceeding, Home

Oil reported the

release

1991.

Neither party

contends that Home

Oil

elected to proceed under the new Title

XVI.

Therefore,

Section

22.1 8b applies here”).

See also

Joint

Stipulation, Exhibit 6,

Appendix

A (the IEPA determination dated June 23, 2003

cites §22.1 8b as controlling statute).

The ground for this appeal

from the IEPA’s June 23, 2003

decision is that the decision of

the

IEPA

denying

reimbursement

$31,515

from

the

LUST

Fund

contrary

the

requirements of Section 22.1 8b(d)(4)(C) ofthe Illinois Environmental Protection Act, 415

ILCS

5/22.1 8b(d)(4)(C) (now repealed).

Section

22.1 8b(d)(4)(C) provides that

“the costs incurred to

perform a

corrective

action” are

eligible

for reimbursement from

the LUST

Fund if they are

“reasonable

...

.“

McDonald’s has the burden of proof.

Illinois

Administrative Code

Title

35,

105.112(a).

This motion for summary judgment

brought pursuant to

Illinois Administrative

Code

Title 35,

101.516(b), which provides

that “if

the record, including pleadings, depositions and

admissions on file, together with any affidavits, shows that there is no

genuine issue

of material

fact, and

that the moving party

entitled to judgment as a matter of law, the Board

will enter

summaryjudgment.”

ARGUMENT

THE COMPACTION WAS A “CORRECTIVE ACTION.”

eligible

for

reimbursement

from

the

LUST

Fund,

cost

must

arise

out

of a

“corrective

action.”

Section

22.1 8b(d)(4)(C) ofthe

Act.

The

compaction at issue

in this

case

was clearly a “corrective action” both as a matter of law and as a matter offact:

First,

in its final

order giving rise to this appeal, the IEPA

did not deny reimbursement for the cost ofcompaction

based upon a claim that the compaction was not a “corrective action.”

Consequently,

as a matter

oflaw, the compaction’s status

as a “corrective action”

is now settled and cannot be challenged.

Second,

the compaction at the Site was in fact a “corrective

action.”

The

Compaction’s

Status

“Corrective

Action” Is

Now

Settled

And

Cannot

Challenged.

The IEPA’s fmal decision dated June 23, 2003

concerning the cost of compaction (Joint

Stipulation, Exhibit

6) states that

certain

costs

from

McDonald’s claim are not being paid,

and

refers

Attachment

containing

the

“reasons

why

those

costs

are

not

being

paid.”

Attachment A provides

one

(and only

one)

reason

namely,

that “the owner/operator failed to

demonstrate

that

the

costs

of compaction

were

reasonable

(Section

22.1 8b(d)(4)(C) of the

Environmental Protection Act).”

Nothing in the IEPA’s June 23, 2003

final decision

states or

suggests that

McDonald’s

claim for the cost of compaction was not paid because the IEPA determined that the compaction

giving rise to the cost was something other than a “corrective action.”

The law is

clear that once the IEPA has given its

reason(s) for denying a claim for LUST

Fund

reimbursement,

may

not

appeal

raise

other

or additional

reasons

support

its

decision.

The

stated

reason(s)

for

denial

“frame

the

issues

review,”

and

the

IEPA

foreclosed ‘from

raising

any

other

reasons

during

the

appeal.

the

Board

held

Pulitzer

Community

Newspapers,

Inc.

IEPA,

PCB

90-142

(Opinion

and

Order dated December

20,

1990):

Here,

there

question that

the

Agency’s denial

statement

refusing

allow

costs to

be reimbursed from the LUST Fund

complied with

Section

39(a) ofthe

Act

and properly framed the issues on review.

Pursuant to

Section

3 9(a) of the

Act, where the Agency has determined that permit denial is warranted, the denial

statement

constitutes

the

Agency’s

“final

action”.

Principles

offundamental

fairness require that an

applicant

be given notice of the statutory and regulatory

bases for

denial

of an

application for

reimbursement and

that

the Agency

bound on

review by those

cited bases for denial given

its

denial statement.

Fundamental

fairness

would

violated

the

Agency

were free

cite

additional statutory and regulatory

reasons for

denialfor the first time

at the

Board hearing.

The

Board

concludes that

the Agency

cannot rely upon

those

regulations not previously cited in

the denial

letter

as supportfor

its

denial of

Pulitzer’s applicationfor reimbursement.

(Emphasis added.)

The

IEPA

did

not

deny

reimbursement

for

the

cost

compaction

because

the

compaction was not

“corrective

action.”

Consequently, the compaction must be

treated as a

“corrective action” and its status as a “corrective action” cannot be challenged.

For the purpose

ofthis appeal, the compaction is,

as a matter oflaw, a “corrective action.”

The Compaction Was In Fact A “Corrective Action.”

Although

the compaction’s status as a “corrective action” cannot properly be

challenged

in this

appeal, it is nonetheless clear that the compaction was in fact a “corrective action.”

As noted above, the parties in this case have stipulated that the compaction ofthe backfill

this

Site was

“properly part of the

soil

placement

process” used to

raise

the

surface of the

excavations at the Site to grade.

(Joint Stipulation, ¶3 7.)

The Board has held that backfilling an

excavation

created by

the

removal

of contaminated

soil

“corrective

action.”

See,

e.g.,

Platolene 500,

Inc.

IEPA,

PCB 92-9 (Opinion and Order dated May 7,

1992).

In fact, in one

case the Board (reversing the IEPA’s

determination) allowed LUST Fund reimbursement ofthe

cost

compaction

and

density

testing,

addition

the

cost

backfilling,

where

the

compaction and density testing had a remedial purpose.

State Bank of Wittington v.

JEPA,

PCB

92-152 (Opinion and Order dated June 3, 1993).~

one

instance the

Board refused

allow

recovery of the

cost of backfihling

excavation.

However,

that

case

the

purpose of the

backfihling was

provide

“a

solid

foundation for a nearby

building.”

Princeton/Beck Oil Company

IEPA,

PCB

93-8

(Opinion

and Order dated May

1993).

Princeton/Beck

is not applicable here,

since there are no buildings at the

Site.

Moreover,

the parties in

this

case

have

stipulated that the

compaction at

issue

was

solely

intended to

prevent

voids and

severe

settling.

(See

Joint Stipulation, ¶1120, 26.)

The placement of the backfill into the excavations at the Site here

—

and the compaction

ofthat backfill, which the IEPA has stipulated was “properly part of the soil placement process”

—

was in fact a “corrective action” under the Act.

THE

COST OF COMPACTION WAS DEMONSTRATED TO BE

REASONABLE.

The IEPA

deducted

the

$31,515

cost of compaction because

(according

the

IEPA)

McDonald’s “failed to demonstrate” that the cost was “reasonable.”

(Joint Stipulation, Exhibit

Attachment A to

Exhibit 6.)

The IEPA did

not elaborate on this

statement but,

as noted above,

there are only two possible explanations for the IEPA’s determination:8

•

First,

is it possible that the IEPA decided that McDonald’s should have backfilled with a

material

which

did

not

require

compaction, so

McDonald’s

use of soil

the

backfill

material (which required compaction) was not reasonable and the cost associated with the

compaction ofthe soil was also (according to the IEPA) not reasonable; or

•

Second,

the

IEPA

decided

that

the

soil

should

have

been placed

into the

excavations

without any

compaction,

the

cost

associated with

the

compaction of the

soil

was

(according to the IEPA) not reasonable.

As noted above, there is no

hint ofany concern on

the part ofthe IEPA regarding the method of

compaction

(i.e.,

the

use of a sheepsfoot roller)

or the unit

cost per yard of compaction.

The

use

ofa

sheepsfoot roller

standard practice, and

the cost of that work

was

broken out to

a dollars-per-yard

number and provided to the IEPA at the IEPA’s request.

Since the only

issues that MACTEC addressed

in its letter to the IEPA following discussions with the IEPA

(see

Joint Stipulation, Exhibit

(attached),

had nothing to

do with either the method or the unit cost ofthe

compaction,

is apparent that the

method and costofcompaction were not of concernto the IEPA atthis Site.

Neither ofthese alternative

explanations for the IEPA’s denial ofreimbursement can withstand

examination.

There is no doubt that McDonald’s use ofsoil, as opposed to some other backfill material

not

needing

compaction,

was

reasonable.9

MACTEC

(McDonald’s

remediation

contractor)

explained the reasoning in

a letter to the IEPA dated May 20,

2003

(Joint

Stipulation, Exhibit

(attached)).

That letter was prepared after Carmen Yung (a Senior Environmental Engineer employed

by MACTEC) had telephone conversations with Ms.

Lieura Hackman and

Ms.

Valerie Davis of

the IEPA

concerning

reimbursement, and

it was

intended to

address (among other things) the

question

of whether

McDonald’s

should

have

used

backfill

material

that

did

not

require

compaction.

MACTEC

explained that

crushed

stone

did

offer

the advantage of not

requiring

compaction,

and

opined

that

crushed

stone

had been

used,

those

costs

would

have

been

approved for reimbursement.

MACTEC further explained, however, that backfilling with crushed

stone instead of soil

was not the reasonable way to proceed at this Site for two reasons:

(1) The soil that McDonald’s

used as backfill was unwanted material provided

by the Village of Oak Brook,

so using this

soil

as backfill was a way to beneficially use a potential waste material; and (2) the use ofcompacted

soil

as backfill

saved

more than an

estimated $50,000

compared to

the cost of using

crushed

should

noted

that

the

IEPA was,

from

the

very

beginning,

well

aware

that

McDonald’s

remediation contractor had

been offered and

was intending to use (if it was

suitable)

soil

owned by the

Village of Oak Brook

as backfill

at the

Site.

(Joint

Stipulation,

¶1113,

18.)

It is

also

clear

that EPA

helped to

set the

criteria by which

that

soil was (in terms of contamination)

deemed suitable

for use

backfill atthe Site.

(Joint Stipulation, ¶1113-17.)

stone.

(Joint

Stipulation, Exhibit

(attached),

2.)

These two reasons

show,

beyond

serious

debate, that the use ofsoil

instead of crushed stone was reasonable

and that that reasonableness

was demonstrated.

Second, MACTEC’s letter

also addressed

the argument that,

even if it was reasonable to

use

soil

backfill

material,

the

soil

should

not

have

been

compacted

as part

of the

soil

placement process.

MACTEC explained that the compaction had only one purpose:

prevent

voids

and

severe

settlement.

Compacting

the

soil

prevent voids

and

severe

settlement was

reasonable because in the absence of compaction, the surface of the excavations at the Site would

in all

likelihood settle below grade.

(Joint Stipulation, Exhibit

(attached).)

Severe settlement

would present (as the Board noted in

Platolene 500,

Inc.

IEPA,

PCB 92-9 (Opinion and

Order

dated

May 7,

1992))

potential

danger

“human health

and

the

environment.”10

This

special

and important concern given the fact that the Site is located on a major intersection in a

heavily

developed

area.

(See,

e.g.,

Joint

Stipulation, ¶3; Exhibits

and

(photographs

and

map

showing

that

the

Site

located

major

intersection

highly

developed

area.))

Moreover,

if the backfill did settle,

then additional

fill

would have to be

brought to

the

Site at

additional cost to once again restore the Site to grade.

(Joint Stipulation, ¶22.)

The

need to

compact fill to

prevent

settlement

is a well known

and

accepted industry practice.

See,

e.g.,

U.S.

Army Field Manual FM 5-410, “Military Soils Engineering,” Chapter 8

(Soil Compaction),

Section

(Soil

Properties

Affected

Compaction),

(available

http://www.adtdl.army.mil/cgi-

binlatdl.dlIlflnl5-410/toc.htm):

“Certain

advantages

resulting

from

soil

compaction

have

made

standard

procedure in the

construction of earth

structures

...

A principal advantage

resulting

from the compaction of soils used in embankments

is that it reduces settlement that

might

be caused by

consolidation

of the

soil within

the

body of the

embankment.

This

is true

because

compaction

and

consolidation

both

bring

about

closer

arrangement

soil

particles.

Densification

compaction

prevents later consolidation and settlement of an embankment.”

Finally,

MACTEC’s letter also

pointed

out that

the

compaction was for a very

limited

purpose

(the prevention of voids

and

severe settlement),

and that

the

compaction did

not,

and

was never intended

to,

meet

the

“industry

standard

for

later

construction

on the

fill

(which

would

have

requiredl

slower

placement

thin

lifts,

in-place

density

testing

and

higher

costs).”

(Joint

Stipulation, Exhibit

(attached),

see

also

Joint

Stipulation, ¶1120,

24-25.)

The fact that the compaction did

only what was minimally required (and no

more) is

additional

evidence ofthe reasonableness of the compaction that was undertaken at the

Site.

MACTEC’s

letter, in

short,

clearly demonstrated that it was reasonable

compact the backfill to

prevent

settlement.”

CONCLUSION

The material facts in this case are not in dispute.

Those facts show that the compaction of

the

fill was

part of a

corrective

action,

that

the

compaction and

the

cost

of compaction were

reasonable,

and

that

McDonald’s

(through

its

contractor) directly addressed

all

of the IEPA’ s

concerns and demonstrated that the compaction and the cost ofcompaction were reasonable.

The

IEPA

has

also

stipulated

that

“.

.IEPA

did

not

and

does

not

contest

the

fact

that

the

compaction ofthe backfill soil was properly part ofthe

soil placement process.”

(Joint Stipulation, ¶3 7.)

Since the

IEPA has determined that the soil placement process was demonstrated to be “reasonable,” it is

logically

impossible

understand

how

the

IEPA

can

find

that

“proper

part

of the

soil

placement

process” was not demonstrated to be reasonable.

McDonald’s

therefore

respectfully

moves

for

entry

summary

judgment

finding:

(1) that the IEPA erred in denying reimbursement for the $31,515 cost of compaction at the

Site;

(2) that the $31,515 cost was (and was demonstrated to be) a reasonable cost of corrective action

at this Site;

and

(3) that under the Illinois

Environmental Protection Act, IEPA must now allow

the $31,515

cost ofcompactionfor reimbursement from the LUST Fund.

‘

McDonald’s Corporation

BY:_______

their attorne~”

Barbara A. Magel

Mark D. Erzen

Karaganis, White

& Magel Ltd.

414 North Orleans Street, Suite 810

Chicago, Illinois

60610

312/836-1177

Fax 312/836-9083

MACTEC

May

20. 2003

11lii~oisEnvironmentalProtection Agency

Biireau ofLand

LUST

Claims

Unit

1021 North

Grind

Avenue East

P.O. Box

19276

Springfield,

fllinois 62794-9276

Attention:

Mr.

Douglas

Oakley

Subject:

Claims for Reimbursement under LUST Fund

LPC #0434705070

DuPage

COunty

McDonald’s Corporation

1120

West22nd Street,

Oak Brook,

Illinois

JEPA Incident Nos. 902922 &

952344

MACTEC

Project No. 52000-2-2681-08

Dear Mr. Oakley::

Reference is madeto the twa Illinois

Environm~ntal

~rotecfion

Agency (IEPA)’s letters, both dated~.

May 12,

2003 addressed to McDonald’s Corporation (McDonald’s) regardingMcDonald’s

requests

for reimbursement ofcorrective action costs from the

Illinois

Underground Storage TankFund for

the above-referenced

facility.

the Agency’s letter,

$1,234.19

associated

with

furnishing

and

installinglimestone

fortheproperty

arid

$3 1,96~.00

associated

with

compaction of

fillthaterial and

transportation ofCA-i crushed stone,

were

deducted from the costs of

reimbursement.

Based

on the

telephone

conversations

between

Ms. Carmen

Yung of

Mactee Engineering

and

Consulting of

Georgia,

Inc.,

(MACTEC)

and

Ms.

Lieura

Hackman ofthe

IEPA

on May

15,

2003

and

between Ms. Carmen Yung

and

Ms. Valerie Davis of the IEPA on May 16, 2003,

MACTEC is

submitting the

following

information

foryour consideration:

$ 1.234.1 9 and $45~

—

Cost for

Furnishing and

Installingi Limestone forthe Property

(R.W. Collins

Invoices #1 13255~

Crushedstone

was used

to provide temporary pavingover theentrance

and

exit ways of

the

subject

property and

the Village of

Oak

Brook’s soil pile

located at

3 1’~

Street in

Oak

Brook to facilitate

MAClEO Engineering and Consulting, Inc.

1200

Jorie

Blvd.,

Suite

230

•

Oak

Brook,

IL 50523

________

•

~a’

EXHIBIT

McDonald’s

Corporation,

Oak

Brook, Illinois

May

20,

2003

f.AWProject No. 52000-2-2681-08

Claimsfor Reinthur.s’enzenr

movement of trucks

during

excavation and transportation of contaminated soil and

backfill

soil.

The crushed

stone

was

later used as backfill material for

part

the

excavated areas (to provide

support to the asphalt driveway).

Since it

was used

as backfill material, the

cost fortransportation

and

placing of the

limestone at

the

Village

Oak

Brook’s

soil

pile

should

eligil~lefor

reimbursement.

$31.5 15

—

Cost forCompaction

The Village of OakBrook’s soil pile

located at 3l’~

Street in

Oak Brook

was

loaded to

trucks and

transported

and

placed at the subject property as backfill material (which

was

described in

R.W.

Collin’s

invoices

“Load

clay

fill at

source

pile,

haul

22”

St.,

place

and

compact

with

sheepsfoot roller”).

The backfill soils,

after being placed in the excavations were rolled over by a sheepsfoot roller a

few times

in order to prevent voids

and

severe settl~ment.The “compaction” performed at the

site

was part

of the soil placement process

and

should not be treated as compaction accor.dirig to the

industry standard (which would require slower placement in

thin

lifts, in-place .density testing and

high~r

costs). Therefore, wefeel that the above cost should be eligible foriehnbursei~ient.

Moreover,

the cost of using the Village

Oak

Brook’s

soil pile as backfill

material

including

loading, transportation and placement at

$15.00

per cubic yard is

substantially

Lower

than

the cost

of using crushed stone at $18.00 per cubic yard. In total, McDonald’s

has

saved more

than

$50,000

by using the Village of

Oak

Brook’s soil instead of

crushed

stone.

Also, by using the VIllage of

OakBrook’s soil, McDonald’s

has

helped the Village of

Oak

Brook to dispose oftheir unwanted

soil

and. turned

into

use.•

McDonald’s should not be

penalized by

employing cost saving

and

environmental conservation

methods

site remediation. when McDonald’s could have

obtained

full reimbursement ifcrushed stone

was used. as

backfill material.

It is therefore requested that the above costs be included for-reimbursement.

•

•~

McDonald’s Corporation,

OakBroo!ç Illinois

May

20.

2003

L.4WProjectNo. 52000.2.26814)8

Claims

for

Reimbursement

Should you

have

any

questions

regarding this

submittal or

require any

additional

information,

please feelfree to contact Ms. Carmen Yung at 630-328-0420.

Sincerely,

M~LCTEC

Engineering

and

Consulting

Georgia, Inc.

Senior Enviro

ental P

essional

Cc:

Den ICoide, McDouald’s

~y~4~t

~1Ve~v~

(d~

Brian M. Devine, P.E.

Principal