PCB No.
04-
)
(UST Appeal)
)
)
)
a~c~VED
CLERK’S
OFFT~Z~
DEe
12003
STATE
OF IWNOIS
Pol/ut~onContro/ Eo~rd
Respondent.
)
NOTICE
Dorothy M.
Gunn, Clerk
Illinois Pollution Control Board
State
of Illinois
Center
100 West Randolph Street
Suite
11-500
Chicago, IL
60601
John J.
Kim
Assistant
Counsel
Special Assistant
Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box
19276
Springfield,
IL
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
IL ARDC No. 06201592
SIIAW
&
MARTIN,
P.C.
Attorneys at Law
123
5.
10th Street, Suite
302
P.O.
Box
1789
Mt. Vernon, Illinois
62864
Telephone
(618)
244-1788
By~~
J~)
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
)
)
KNAPP
OIL COMPANY,
vs.
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
Petitioner,
)
)
1
Knapp Oil
for
Petitioner
BEFORE THE POLLUTION CONTROL BOARD
~s
OF THE STATE
OF ILLINOIS
L~E’C
12003
KNAPP
OIL COMPANY,
)
p0~7~’~
I!VOIS
)
&oar(j
Petitioner,
)
)
vs.
)
PCB No.
04-
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR
REVIEW OF FINAL AGENCY
LEAKING
UNDERGROUND STORAGE
TANK DECISION
NOW COMES the Petitioner,
Knapp Oil Company,
(“Knapp”), by one ofits
attorneys, Curtis W. Martin of Shaw
& Martin,
P.C., and, pursuant
to Sections
57.7(c)(4)(D) and 40 of the 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 Iffinois
Environmental
Protection Agency (“Agency”) in the above cause, and
in support
thereof, Knapp respectfully states as follows:
1.
On October 24,
2003, the Agency issued a Final Decision to Knapp, a
copy of which is attached hereto as Exhibit A.
2.
The grounds for the Petition herein are as follows:
Knapp submitted to the Agency, through its consultant,
United Science
Industries,
Inc.,
(“USI”) a Revised High Priority Site Investigation
Corrective Action
Plan (“Plan”) and corresponding
Budget (“Budget”).
By its letter dated October 24,
2003, the Agency rejected the Budget pursuant
to Section
57.7(c)(4) of the Act and
35 III. Adm.
Code 732.405(c) and 732.503(b) on the basis that the Budget included
an additional $17,025.75 in personnel costs that
the Agency deemed unreasonable
as exceeding costs already budgeted and Agency approved.
By letter dated March
3,
2003, the Agency had modified Knapp’s High
Priority Corrective Action Plan dated January
20,
2003 and modified the Budget
associated with this Plan by eliminating in excess of $13,000.00 in personnel costs,
well materials costs,
PID meter costs,
and handling
charges.
The March
3,
2003
Agency letter
also indicated that additional information and supporting
documentation
could be provided by Knapp to demonstrate
the costs cut by the
Agency were in fact reasonable
and subject to reimbursement.
In response to the March
3,
2003 Agency letter, Knapp submitted an
Amended Budget dated May
1,
2003, but the Agency rejected the Amended Budget
alleging Knapp’s failure to provide justification for the additional personnel hours
requested within the Amended Budget.
Accordingly,
on June
12,
2003,
Knapp
submitted a M-1 Justification for Budget Amendments
form for the Agency’s re-
evaluation ofthe costs requested in the Budget.
As the M-1 Justification shows, the Knapp site is being remediated
pursuant
to
35 III. Adm.
Code 742, tiered approach corrective action (“TACO”).
This
method of corrective action has required minimal field work, but has involved
intensive
Project Manager labor in that the Project Manager
has taken
on
additional tasks not typically associated with conventional technology remediation
such as excavation and removal.
2
The additional Project Manager tasks have included exposure
route
evaluations
for soil and
groundwater, current and future land use analysis, Tier
3
-
evaluations,
and negotiation and preparation of engineered barriers/highway
authority agreements
involving both the Iffinois Department
of Transportation
(“IDOT”) and the City of Metropolis.
In association with such tasks,
additional
correspondence by the Project Manager
to and from Knapp and various
other
parties such as IDOT and Metropolis has been required in order to adequately
address the issues, concerns and questions that naturally arise with the
TACO
remediation efforts.
The Agency then, in response to Knapp’s submission ofthe M-1
Justification, by letter dated June
30,
2003, rejected the Budget again alleging
Knapp had failed to provide adequate justification for the additional personnel
hours outlined in the Budget.
This Agency letter, however,
indicated that Knapp
could have the personnel costs re-evaluated during the reimbursement
process.
Accordingly, Knapp submitted the additional personnel costs in the reimbursement
packet
submitted with Amended High Priority Corrective Action Plan
Budget which
is the subject ofthis
appeal.
The M-1 Justification
for the Budget Amendments and the
reimbursement
package provide details
of the actual time breakdown for the Knapp
project, including
Project Manager hours of 139.5
beyond the Agency approved
amount.
These additional
hours were incurred and are reasonable
due in part to
the preparation
of three
(3) additional amended budgets, the submittal of
3
information to Metropolis regarding a groundwater ordinance, the submittal of
highway authority agreements
to IDOT and Metropolis
(twice submitted to
Metropolis due to a change
in the City’s administration),
substantial
client and
Agency correspondence,
and overall general project management.
An additional
25.5 hours ofAssistant
Project Manager, or Environmental
Specialist, labor was
also included in the Budget Knapp requested the Agency approve.
The Assistant
Project Manager prepares the Corrective Action Plan, including tables and
appendices thereto,
and prepares
soil boring logs, monitoring well reports
and
purge/development
forms.
Also included was additional professional engineering
time of 6.75 hours incurred as a result
of additional
amended budget certifications
along with preparation of reimbursement packages.
The Agency also eliminated as unnecessary the costs for the hours
incurred by the Project Coordinator.
The Project Coordinator, however,
is
responsible for additional tasks
associated with the TACO
such as budget
preparation
and breakdown bffling procedures
as well as general document
preparation
associated with the reimbursement process, including completion of
applications
for partial and final payments.
The Project Coordinator was
also
involved heavily in the preparation
of the amended
budgets submitted to the
Agency as a result ofthe
Agency’s multiple
rejections of the Budgets prepared.
All
of the costs eliminated by the Agency are justified and eligible
for reimbursement
pursuant
t& Section 732.605(a)(15).
The Agency’s failure
to provide for and
4
reimburse the additional
$17,025.75 sought by Knapp is without merit and is
arbitrary and capricious and should be reversed by the Board.
WHEREFORE,
Petitioner,
Knapp Enterprises,
for the reasons stated above,
requests that the Board reverse the decision ofthe Agency and rule in favor of the
Petitioner’s request for preparation of a voucher for submission
to the Comptroller’s
office for payment of its Application for Payment
from the Underground Storage
Tank Fund and that Petitioner recover its attorney’s fees
and costs incurred herein
pursuant to
415 ILCS
5/57.8(1)
and 35
III. Adm.
Code
732.606(1).
Curtis W. Martin
IL ARDC No. 06201592
SHAW &
MARTIN,
P.C.
Attorneys at Law
123
S.
10th Street, Suite
302
P.O.
Box
1789
Mt. Vernon,
Illinois
62864
Telephone
(618) 244-1788
Respectfully submitted,
SHAW & MARTIN,
P.C.
By/’i~~
~~s;~::~
7Ciirtis
W. Martin,
~torney
for
Knapp
Oil Com7’ny,
Petitioner
(
5
e
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
1021
NoRTH
GRAND
AVENLJ~
EAsT;
P.O.
Box 19276,
SPRINCFIELI2,
l1.LINOIS
62794-9276, 217-782-3397
JAMES
J~.
THOMPSON
C~N-rER,100
WesT
RANOOtVH,
SuITE
11-300, CHIcAGO,
L 60601, 312-814-6026
RooR.
BLAGOJEVICH,
GOVSRNOR
RENEE
CIPRIAN0, DIg~cToR
217/782-6762
CERTIFIED MAIL
?C02
BISU
OUIID
1224
T?5~
-
OCT 24
Knapp Oil Company
Attention:
Rick Forth
P.O.
Box
215
-
Xenia,
Illinois
6282
1
Re:
LPC
#1270)55039-- Massac County
Metropolis! Knapp Oil Company
1 117
east
5~’
Street
-
LUST Incident No. 992410&99 1949
LUST
Techriical File
Dear
Mr.
Forth:
The Illinois
Enviro~mentalProtection
Agency (Illinois EPA) has reviewed the Amended High
Priority Corrective Action Plan
Budget (budget) submitted for the above-referenced incident.
This budget, dated August 29,
2003
was received by the Illinois EPA on September
5,
2003.
Citations in this
letter are from the Environmental Protection Act
(Act) and
35
Illinois
Administrative Code
(35
III. Adm, Code).
The budget i5 rejected for the reason(s) listed
in Attachment A (Section 57.7(c)(4) ofthe Act and
35
III. Adrn. Code
732.405(c)
and 732.503(b)).
All
future correspondence must be submitted to:
illinois Environmental Protection Agency
Bureau ofLand
-
~24
•
Leaking Underground Storage Tank Section
1021
North Grand Avenue East
Post Offic~Box19276
Springfield, IL
62794-9276
Please submit all correspondence in duplicate and include the Re: block shown at the beginning
of this
letter.
-
An underground s:orage tank system owner or operator may appeal
this decision to
the Illinois
Pollution Control Board.
Appeal rights
are attached.
—
4302
North
M4ir’
S,rc
et.
~o,kiord.
IL
61103 —(8151 987-7760
•
D~s
P~AIN~S
—
951
i
W.
t—t4rrison
St.,
Des
PL,ines,
IL
60016— (8471
294-4000
ELCi~-.
—
595
South St;ite.
Elgin.
IL 60123—1847)606-3)31
•
P~O~IA
—5415
N. University
St.,
PeorIa,
It 616(4 —(309)
693-5463
BV~EAc~
LAND-
—
7620
N.
L)rtiversity St.,
Peoria,
IL
61614
—
(309) 693-5462
•
C,.l,~Mp~cN
—
2125
South
~(r~t
Street
Champaign, IL 61820 —(217)
278.5800
—
4500
S.
Sixth
Street
Rd.. Springfleld,
IL 62706 —(217) 786-6892
•
COLUN~V~LE
—
2009 MaIl
Street.
CoIlirtsviLIe,
L 62234
—
(618)
346-5120
—
2309 W.
Main
51.,
5ui~e
(16,
Marion,
1.62959—1618) 993-7200
-
Px~NT(D
DN
R~C~cLEO
Pxe?g
EXHIBIT~~
Page 2
If you have any questions or need further assistance, please contact James R. Malcom, III at
217/524-9140.
Sincerely,
Harry A. Chappel, F’.E.
Unit Manager
Leaking Underground Storage Tank Section
-
Division of Remediation Management
Bureau ofLand
HAC:.jrm
Attachment:
Attachment A
cc:
US!
Division Fi.e
Attachment A
Re:
LPC#1270155039--Massac County
Metropohis/ :K~app
Oil Company
1117 east
5th
Street
LUST Incident No.
99241 0&99 1949
LUST Technical File
Citations in
this
attachment are from the Environmental Protection
Act (Act) and
35
Illinois
Administrative Cod~
(35
Iii. Adrn.
Code).
1.
One of the overall goals ofthe financial review is to assure that costs associated with
materials, activities, and services are reasonable
(35
III. Adm.
Code
732.505(c)).
The
budget includes costs that are not reasonable as submitted
(Section
57.7(c)(4)(C)
ofthe
Act and 35
IlL
A.dm. Code 732.606(hh)).
The amende~l
budget submitted forreview was included in
the reimbursement packet
received September
5,
2003.
The amended budget included justification
for an additional
$17,025.75
in personnel costs that
exceededthe already budgeted approved amount.. The
Agency has reviewed the justification submitted for review and deems the additional
•
personnel hours unreasonable in association with the amount of work performed
to date.
jn.n
Appeal Rights
An underground storage tank owner or operator may appeal this final decision to the Illinois
Pollution Control Bo:~rd
pursuant to
Sections 40 and
57.7(c)(4)(D)
ofthe Act by filing a petition
for a hearing within
25
days after the date ofissuance ofthe final decision.
However, the
35-day
period may be extended
for a period of time not to exceed
90 days by written notice from
the
owner or operator and the Illinois EPA within the initial
35-day
appeal period.
Ifthe owner or
operator wishes
to
re’~eive
a 90-day extension, a written request that includes a statement ofthe
date the final decision was received, along with
a copy of this decision, must be sent to
the
Illinois EPA as soon
as possible.
For information regarding the
filing ofan
appeal, please contact:
Dorothy Gunn, Clerk
•
Illinois Pollution Control Board
State of Illinois Center
100
West Randolph, Suite 11-500
Chicago,
IL
(10601
312/814-3620
For information regarding the filing ofan
extension, please contact:
Illinois Envirnmental Protection Agency
Division of Legal Counsel
1021
North Grand Avenue East
Post Office Box
19276
Springfield,
IL
62794-9276
217/782-5544
CERTIFICATE OF SERVICE
I, the undersigned attorney
at law, hereby certify that
on November 26,
2003,
I 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, Iffinois, with sufficient
Certified Mail
postage affixed thereto, upon the following named persons:
Dorothy M. Gunn,
Clerk
John J. 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,
IL
62794-9276
ttorney for
Petitioner, Kn,~1
Company