SIMPSON

AUTO SERVICE,

vs.

Petitioner,

•ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

Dorothy M.

Gunn, Clerk

Illinois Pollution

Control Board

State

of Illinois

Center

100 West Randolph Street

Suite

11-500

Chicago, IL

60601

R~C~~VED

CLERIcS OFFICE

DEC

2

22003

STATE OF

ILLINOIS

)

Pollution

Control Board

)

)

PCBNo.04-~1

)

(UST Appeal)

)

)

)

)

NOTICE

John J.

Kim

Assistant

Counsel

Special Assistant

Attorney General

Division of Legal 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 ofthe Clerk of

the Pollution Control Board a Petition for Review of Final Agency Leaking

Underground Storage Tank Decision,

a copy of which is herewith served upon you.

Robert E.

Shaw

IL ARDC

No. 03123632

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

BEFORE THE POLLUTION

CONTROL BOARD

OF THE STATE OF

ILLINOIS

By

Simpson Auto

for

Petitioner

---

BEFORE THE

POLLUTION CONTROL BOARD

CLERK’S OFFICE

OF

THE STATE OF

ILLINOIS

DEC

22

2003

SIMPSON AUTO

SERVICE,

)

STATE

OF IWNOIS

)

Pollution

Control Bc~ard

Petitioner,

)

)

vs.

)

PCB No. 04-

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

LEAKING UNDERGROUND STORAGE TANK DECISION

NOW COMES the Petitioner,

Simpson Auto

Service, (“Simpson”), by

one of

its 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

5/57.7(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 Illinois

Environmental

Protection Agency (“Agency”) in the above cause, and in support

thereof, Simpson respectfully states as follows:

1.

On November

13,

2003, the Agency issued

a Final Decision to Simpson,

a copy of which is attached hereto as Exhibit A.

2.

On November

14,

2003,

Simpson,

through its consultant,

United

Science Industries,

Inc.

(“USI”) received the Agency’s Final Decision.

3.

The grounds for the Petition herein are

as follows:

Simpson submitted

to the Agency, through its consultant, USI,

a

Revised High Priority Site Investigation Corrective Action Plan

(“Plan”) and Budget

(“Budget”) dated September

18,

2003.

By letter dated October 24,

2003, the Agency

rejected the Budget pursuant

to Section

57.7(c)(4) of the Act and

35 Ill. 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.

More specifically:

A.

The Agency modified the Plan to require offset wells

13,

14 and 15

to be sampled when groundwater is present.

These wells are located in a

flood plane ofthe Mississippi River.

The River has been low but monitoring of the

wells has been accomplished by PID tests of the water residue left behind.

The PID

logs show no contamination and USI has performed groundwater modeling to

identify the plume of contamination which has historically been an acceptable

method to the Agency.

In relation to the modification of the Budget, the Agency has

continued to require

Simpson to perform additional work without providing for costs

of such additional

work or the Agency has modified the costs

associated with the

additional work it has requested.

B.

Regarding the modifications to the Budget, at the time

that the

$102.00 in costs for the transducer and data logger and the

$45.00 for the

PID meter were incurred they were reasonable and subject to reimbursement.

The

Agency’s deduction

from the Budget for these items is without technical justification

and is merely on a cost basis and is therefore arbitrary

and capricious.

The

Agency’s deduction of $700.00

associated with personnel costs for cost per foot

drilling was erroneous,

arbitrary

and capricious.

C.

The Agency’s deduction for overall personnel costs of

$22,835.00 as unreasonable

fails to identify which particular personnel costs the

Agency deems unreasonable

and fails to provide a technical basis for such

2

---

deduction.

The deduction is therefore

arbitrary

and capricious.

Moreover,

additional hours were necessary

in order to obtain on several occasions offsite

access, including the use of new Agency required forms, in order to properly

document the., same pursuant

to Agency requirements.

The Agency recognized the

possibility ofadditional

costs associated with its additional

requirements

by its

January

29,

2001 letter

which advised that if additional costs

will be incurred as a

result ofAgency’s modifications,

an amended Budget must be submitted.

Simpson submitted

an amended Budget in February 2003.

Further,

additional hours of personnel were incurred with regard to the selection,

procurement,

installation,

testing and evaluation of the pilot study equipment as

well as additional project manager

and professional engineering time.

Additional

personnel time was also incurred as a result of the Agency’s requirement of the

additional monitoring wells, which are some 300 feet away from existing wells, over

and above the groundwater

modeling effort already

utilized by Simpson.

D.

The Agency’s deduction of $1,829.97 in costs associated

with the pilot

study as being performed prior to Agency approval were incurred as

part of the remediation process and at no

time did the Agency notify USI of its

denial ofthe pilot project.

The Agency, as a matter of historical

policy, has had

owners/operators proceed with pilot studies rather than first submitting

a Plan and

Budget for prior approval.

The pilot study and

Corrective Action Plan submitted

following

its

completion reflect that the system implemented during the pilot study

was

sufficient for site remediation.

The Agency, however,

would not accept that

Simpson could not obtain offsite access and required additional investigation

for

3

---

additional

offsite groundwater contamination,

thereby rendering the system

essentially infeasible.

In addition, the Agency indicated the use of other

remediation methods

such as the tiered approach

(“TACO”) to close out the

remediation

of the site, causing the system of the pilot study to no longer be

a viable

option for remediation.

E.

Finally, the adjustment of $5.18 for handling

charges was

arbitrary

and capricious based upon the reasoning with regard

to the deducted costs

referred to above.

WHEREFORE, Petitioner,

Simpson Auto, for the reasons stated above,

requests that the Board reverse the decision of the Agency and rule in favor of the

Petitioner’s request for approval ofthe High Priority

Corrective Action Plan

and

Budget and that Petitioner recover its attorney’s fees and costs incurred herein

pursuant

to

415 ILCS

5/57.8(1) and 35

Ill. Adm.

Code 732.606(1).

Respectfully submitted,

SHAW

& MARTIN,

P.C.

Bv/~

i~2~I~T~

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

Simpson

for

Petitioner

4

---

LLLINOf5

ENV~RONMEN-tALPROTECTION

AGENCY

1021

NoRm

~~r4D

AvEr~iuE

EAST,

P.O.

8ox

1 9276,

SPRINCFtELD,

ILLINOIS

~2794-9276,

21 7-782-3397

j~~s

R.

T~ICkwSoNC~N1~,

100

WEST

RANDOLPH,

SuiTE

17 -300,

CHIc~co,

IL 60601, 312-814-6026

Ron

R.

BLACOJEVICH,

GOVERNOR

RENEE CIPRIANO,

DIRECTOR

217/782-6762

CERTIFIED

MAIL

—

?92

31~0 OOU~ 1227

131~L

NOV

132003

Mr. Harvey Simpson

600 Berkshire

East Alton, Illinois ~2024

Re:

LPC #1190205031

--

Madison County

East Altori/ Simpson Auto Service

•

600 Berkshir~

LUST incident No. 941010

LUST Techn::cal File

Dear Mr.

Simpson:

The Illinois Environrriental Protection Agency (Illinois EPA) has reviewed the High Priority

Corrective Action Plan (plan) submitted for the above~referencedincident.

This plan, dated

September

18, 2003, was received by the illinois EPA on September 22, 2003.

The budget was

dated February 19, 2003 and

received by the Agency on March 3, 2003.

Citations in this letter

are from the Environineiltal Protection Act (Act) and

35

Illinois Administrative Code

(35

III.

Adm. Code).

Pursuant to

Section 57.7(c)(4) of the Act and 35

Iii. Adin.

Code 732.405(c), the plan is modified.

The following modifications are necessary, in addition to those provisions

already outlined in

the plan, to

demonstrate compliance with Title XVI of the Act and

35

III. Adm. Code 732;

1.

The Agency is requesting that

off—site wells

13,14 and

15 be sampled when groundwater

is

present.

Please note that

all

acivities associated with the remediation ofthis release proposed in the plan

must be executed in axordance with all

applicable regulatory and statutory requirements,

including compliance

with the proper permits.

In addition7 the budget for the High Priority Corrective Action Plan is modified pursuant to

Section 57.7(c)(4) ofthe Act

and 35

111.

Adin.

Code 732405(c).

Based on the modifications

listed

In Section

2 of Attachment A, the anlounts listed in

Section

1 ofAttachment A are

-a

approved.

Please noi~that the costs must be incurred

in accordance with the approved plan.

Be

aware that

the ainj~tof reimbursement may be limited by

Sections

57.8(e),

57.8(g)

~nd

57.8(d)

ofthe Act, as well as

35

Ill. Adrn.

Code 732.604, 732.606(s), and 732.611.

Rc~o~n

—

4302

North Main Street, Rd~tord,IL 61103

(815) 9e7-7760

.‘

~t5

PtAINtS

—

9511

W.

Harrison

Si.,

Des Piaine~,

IL 60016- (847) 294-4000

—595

South

Stale,

6

51n.

IL

60723—

(8471 608.3131

•

PEoRiit

—

5415

N.

University

St.,

Peoria. IL

67614- (309)

693.5463

BUREAU

OF

LAND

.

PEORIA

—

7620

N.

University 5t,

Peoria,

IL 61614

(309) 6935462

•

CHAMP’ICN —2125 South

~IISI

Street, Champai~r~,

IL 67820—

217) 378.5800

5psNCFtlQ

—45005.

5)cifl

5IrCe(

I~c.

5pnngficld,

IL ~270~—(2171 786-6892

COLLINSVILLt

—2009

Ma))

Street, CoIlin~viIle,

IL 62234

1618) 346-5120

—

2309

W. Main

St.,

Suite 116, Marion, IL 62959 —(618)

993-7200

PPrNI(13 or~REc’,cLsO

PAPtIt

•

••••.

.•.

EX~B1T_~

---

Page 2

Please note that, ifth~

owner or operator agrees with the Illinois EPA’s modi~cations,

submittal

of an amended plan i~

not required (Section

57.7(c)(4) of

the Act and

35

111.

Adm. Code

732.503(1)).

NOTE:

Amended plans and/or budgets must be submitted and approved prior to the issuance of

a No Further R~medi.ttion

(NFR) LetteL

Costs associated with a plan orbudget that have not

been approved prior to the issuance ofan NFR Letterwill not be reimbursable.

All

future correspondence mu.st be submitted to:

Illinois Envircinniental Protection Agency

Bureau ofLard

-

#24

Leaking Underground Storage Tank Section

1021

North Grand Avenue East

Post Office

Box

19276

Springfield,

IL

62794-9276

Please submit all correspondence in duplicate and

include the Re: block shown at the beginning

ofthis letter.

An undergro and storage tank system owner or operator may appeal this decision to the Illinois

Pollution Control

Bo~rd.Appeal rights are attached.

If

you have

any questions or need further assistance, please contact James R. Malcom, Ill at

217/524-9140.

(ncere~,~2

Harry A. Chappel, PE.

Unit Manager

Leaking

Underground Storage Tank Section

Division of Remediation Management

Bureau of Land

HAC:jrm

~

Attachment:

Budg~Modification

cc:

USI

Division rile

---

Attachment A

Re:

LPC #119020:5031

--

Madison County

East Aiton! Sinipson Auto Service

•

600 Berkshire

LUST Ificident No. 941010

LUST Technical File

Citations in this- attachment are from the Environmental Protection Act (Act) and 35

Illinois

Administrative Code (35 Ill. Adm.

Code).

SECTION

1

As

a result ofthe Illinois

EPAts modification(s) in Section 2 ofthis Attachment A, the following

amounts are approved:

$11,628.56

Investigation Costs

$6,430.00

Analysis Costs

$151 15.00

Personnel Costs

$1.,713.00

Equipment Costs

$151.25

FieldPurchases and Other Costs

$757.13

Handling Charges

SECTION 2

1.

525,510.97

for an adjustment in equipment and personnel costs.

The Illinois EPA has

determined that these costs are not reasonable as submitted (Section 57.7(c)(4)(C) ofthe

Act and

35

III. Adm.

Code 732.606(hh)).

One ofthe overall goals ofthe financial review

is toa.ssure th~tt

costs

associated with materials, activities, and services are reasonable (35

Ill. Adm. Code

732.505(c)).

Please note that additional information andior supporting

documentation may be provided to demonstrate the costs are reasonable.

The amount proposed for the transducer and data logger was deemed unreasonable with

$102.00

deducted from the budget.

The amount proposed for the PID meter was

deemed

unieasonable with $45.00 deducted from the budget.

AU

personnel costs

associated with

well installation should be incorporated

into the

cost per foot for drilling, based on this

$700.00 was deducted

from

thepersonnel portion ofthe budget.

The overall personnel

costs submitted

for review was deemed

unreasonable with $22,835.00 deducted from the

budget.

The Agency is deducting all

costs

associated with the pilot study based on the

fact that the pilot study was performed prior to Agency approval and the proposed system

was not used_~.uringsite remediation.

Based on

this $1,828.97 was deducted

from the

budget.

---

2.

$5.18

for an adjustment in handling charges.

Handling charges are eligible for payment

only if they are equal to or less than the amount detennined by the following table

(Section 57.8(g) ofthe Act and 35

Ill. Adm. Code 732.607):

Subcontract or Field

Pu.rcha~e

Cost:

$0

-

$5,000

$5,001- $15,000

$15,001

-$50,000

$50,001

-

$100,000

$100,001.

-

$1,000,000

Eligible Handling Charges as a

Percentage ofCost:

12

$600 pIus

10

of amount over $5,000

$1,600 plus

8

of amount over $15,000

$4,400 plus

5

of amount over $50,000

$6,900 plus 2

ofamount over $100,000

jim

Based on the above outlined deductions the proposed handling charge was reduced by

$5.18.

---

CERTIFICATE

OF SERVICE

I, the undersigned attorney at law, hereby certify that

on December

18,

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, Illinois,

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 of Legal Counsel

Suite

11-500

1021 North Grand Avenue,

East

Chicago, IL

60601

P.O.

Box

19276

Springfield,

IL

62794-9276

Curtis W. Martin, A

orney for

Petitioner, Sim~uto

Service