BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ILLINOIS STATE TOLL HIGHWAY
AUTHORITY (Lincoln Oasis North),
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
)
)
Respondent.
)
)
PCB-04-51
(UST Appeal)
6 2004
~
~L.U
VLW11ON
co~p~
BOARO
NOTICE OF FILING
To:
Renee Cipriano, Director
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794
John Kim, Esq.
Special Assistant Attorney General
Illinois Environmental ProtectiOn Agency
102.1 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794
PLEASE TAKE NOTICE that on January
~,
2004 we filed with the Clerk ofthe Illinois
Pollution Control Board the originals and nine (9) copies each, via personal delivery, of 1)
Appearance of Deutsch, Levy & Engel, Chartered and 2) Petition for Review of Agency
Modification of High Priority Corrective Action Plan and Budget for Lincoln Oasis North
for filing the above-entitled cause, copies ofwhich are attached hereto.
Special Assistant A orney General
)
)
)
V.
Petitioner,
)
)
)
)
~17O616v1Chicago
-Lincoln Oasis North
CAP
Petition.wpd
170616.1
CERTIFICATE OF SERVICE
The undersignedhereby certifiesthat true and correct copies ofthe Notice ofFiling, together
with copies ofthe documents described above, were served upon the above-named Respondent by
enclosing same in envelope addressed to said Respondent, certified mail, return receipt requested,
and by depositing said envelopes in a U.S. Post Office Mail Box at Chicago, Illinois, with postage
fully prepaid on the 4~dayofJanuary, 2004.
K~II Kavartagh M~ck~
Special Assistant Attorney 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
.
~170616v1Chicago
-Lincoln Oasis North
CAP
Petition.wpd
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170616.1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AECE~VED
ILLINOIS STATE TOLL HIGHWAY
)
AUTHORITY (Lincoln Oasis North),
. )
JAN
~ 2004
)
.
~
Petitioner,
)
.
~OLitrrio~
cONTRoL OAR()
v.
)
PCB-04-51
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
)
)
Respondent.
)
APPEARANCE
I, Karen Kavanagh Mack, hereby file the appearance ofDeutsch, Levy & Engel, Chartered
in this proceeding on behalfofthe Illinois State Toll Highway Authority.
Ka)?~nI~a~an,~hak
Special Assistant Attorney 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
FirmNo.
90235
#i70616v1Chicago
-Lincoln Oasis North CAP Petition.wpd
-170616.1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD RECE~VED
ILLINOIS STATE TOLL HIGHWAY
)
6
2004
AUTHORITY (Lincoln Oasis North),
.
)
POLLUTION CON1PIOL 8OARI)
Petitioner,
)
)
v.
.
.
)
PCB-04-51
)
(EJST Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
)
)
Respondent.
)
PETITION FOR REVIEW OF AGENCY MODIFICATION OF HIGH PRIORITY
CORRECTIVE ACTION PLAN AND BUDGET
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), 415 ILCS
57.8(I)
and
415 ILCS 5/40, for review of the final determination of Respondent, the Illinois Environmental
Protection Agency (the “Agency”),with respect to Petitioner’s High Priority Corrective Action Plan
and Budget, dated September 3, 2003, relating to its Lincoln Oasis North facility, and in support
thereof, states:
1.
ISTHA is the owner ofthe facility, including underground storage tanks and related
piping, commonly known as the Lincoln Oasis North, located at milepost 1.1 on Interstate 294 in
South Holland, Illinois.
2.
Following the completion of a Contaminated Soils Determination in 1994 and due
to finding water and soil contamination at the site, ISTHA reported a release to the Illinois
Emergency Management Agency (“IEMA”) and was assigned Incident No. 94-1817 for the site.
#170616v1Chicago
-Lincoln Oasis North CAP Petition.wpd
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170616.1
3.
Incompliance with applicable regulations, ISTHA subsequently submitted a 20-day
Report, a 45-day Report, Site Classification Work Plan and Budget, Site Classification Completion
Report and Corrective Action Work Plan for the facility.
4.
On orabout May27, 2003, ISTHA submitted a High Priority Corrective Action Plan
(“Plan”), including a Budget, to the Agency; and, on or about September 3, 2003, the Agency
responded by materially modifying the plan and rejecting the budget (the “Final Determination”).
A true and complete copy ofthat Final Determination is attached hereto as Exhibit “A”.
5.
On orabout October 1, 2003, ISTHA contactedthe Agency by letter, and advised the
Agency that it contested the Agency’sdetermination and requested a 90 day extension ofthe 35 day
appeal period pursuant to §40 ofthe Environmental Protection Act. (415 ILCS 5/40(a)(1).)
6.
On or about October 8, 2003, the Agency filed a requestbefore the Board requesting
a 90 day extension ofthe 35 day appeal period.
7.
On or about October 16, 2003, the Board grantedthe Agency’srequest and extended
the period within which Petitioner may file its appeal through and including January 6, 2003.
8.
ISTHA requests the Board reverse the Plan, because,
inter alia,
the Plan and the
remedialactivities describedtherein are necessary andapproprefur-hepr~tecifhuman~hea1th
and the environment. Additionally, such remedial activities do not exceed the minimum necessary
requirements of the Act or the regulations promulgated thereunder.
9.
With regard to the Plan, the Agency found that ISTHA’suse ofmodeling with R26
equations is not applicable in this instance, because they contendthat the contaminatecLgroundwater
is not located in the aquifer. However, the Agency’s determination concerning the use of R26
#170616vlChicago
-Lincoln Oasis North CAP Petition.wpd
2
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170616.1
niodeling is unreasonable, becausethe groundwater is within an aquifer, andmodeling with the R26
equation is the correct method ofensuring compliance with the property boundaries.
10.
ISTHA also appeals the Agency’s finding that Class II groundwater remediation
objectives apply at this site. Although the groundwater beneath the site is encountered within ten
feetbelow grade and may be classified as Class IIgroundwater, the site contains sand with
5
feet or
more in thickness, the groundwater extends beyond a depth of 10 feet, and the hydraulic conductivity
is 1 .77x1 0.2 cmlsec. Therefore, Class I groundwater is more appropriate for the site in accordance
with 35 Ill.Adm.Code 620, as well as based on the factthat the tank fieldis located near a residential
property boundary.
11.
ISTHA also appeals the Agency’s finding that the soil excavationactivities proposed
in the Plan exceed the minimum requirements to comply with Title XVI, (the areas proposedto be
excavated are beyond the area of soil contamination exceeding Tier 1 and site-specific Tier 2
remediation objectives), because the Plan only proposed excavating the soil contamination
containing target analytes above the Tier 1 remediation objectives for the Inhalation and Ingestion
Exposure Routes; and by removing soil contamination in the areas of the existing and former tank
field and dispensing areas, the Tier 1 remediation objectives will be achieved and the risk to human
health can be eliminated. Despite the Agency’sfindings to the contrary,the Plan is tailored to satisfy
the ISTHA policies and to achieve the Tier 1 remediation objectives and meet. the minimum
requirements ofTitle XVI and the Environmental Protection Act.
12.
With regard to the rejectionofthe budget, ISTHA appealsthe Agency’s determination
that “Drawing 9 defining the area of soil contamination and extensive sample analyses conducted
at the site” show that the contamination is from the tank system that was removed in
1985, (i.e.,
the
~170616v1Chicago
-Lincoln Oasis North CAP Petition.wpd
3
-170616.1
USTs installed in 1968) and, as such, is not eligible for reimbursement under the LUST program.
IS
TEA argues that the conclusion reached by the Agency is i~iotsupported by the datacollection and
that, in fact, no remediation activities were pe’rformed in the 1968 tank area since the soil samples
collected from that farm area contained no concentrations of target analytes above the site
remethation objectives. Rather, excavation was conducted in the area of the USTs installed and
registered in 1985 (and removed in 2003), which are eligible for reimbursement.
13.
ISTHA reserves the right to present additional grounds for reversal ofthe Agency’s
determination, as they appear during the course ofthis Appeal.
WHEREFORE, the Petitioner, The Illinois State Toll Highway Authority, respectfully
requests that this Board grant a hearing in this matter, reverse the Agency’s September 3, 2003
modification (rejection) ofISTHA’s High Priority Corrective Action Completion Plan and Budget
for the Lincoln Oasis North, and remand this matter to the Agency with instructions to approve the
Plan, and for any other relief as the Board deems just and appropriate.
Respectfully submitted,
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) 346-1460
Firm No. 90235
-
170616.1
#170616vlChicago
-Lincoln Oasis North CAP Petition.wpd
4
SEP 16 ‘03 10:49 FR IiJIGHT a COMPANY
630 969 7979 ia 13123461859
P.06
IWNOIS ENViRONMENTAL PROTECTiON AGENCY
1021 Nogm
GRAND AVENUE EAST,
P.O. Box 19276,
SPRINGFIELD,
ILLINOIs 62794-9276
JAMES
R. THOMPSON CENTER, 100
WEST
RANDOLPH, Suru 11-300, CHrci~cO,ii. 60601
Roo R. BLACOJEVICH, GOVERNOR
RENEE CIr’RIANQ, DIRECTOR
CERTIFIED MAIL
7002 3150 0000 1224 5101
SEPQ 320113
Illinois State
Toil
Highway Authority
~‘—.---.-.~
Attention:
SteveGilen
~
i0 tEll Wi I~
1
Authority Drive
Downers
Grove, XL
60515
.‘ .
SEP
5 2003
Re:
LPC#0312975140— Cook County
~...•
South Holland/LincolnOasisNorth
‘~‘
p~flr~
Tri-State Toliway (1-294), North Bound, Mile Post 1.1
LUSTjnciclentNo, 941817
LUST
Technical File
Dear Mr. Gilien:
The illinois
Erivirozunental Protection
Agency
(Illinois
EPA) has reviewed the High
Priority
Corrective Action Plan (plan) submitted
for the above-referenced
incident. This plan, dated May
22,2903, was
received by
the
Illinois
EPA on May
27, 2003.
Citations in this letterare fi~omthe
Environmental Protection
Act (Act)
and
35
IllinoisAdministrative Code
(35
ilL Aiim.
Code).
Pursuant
to
Section
57..7(c)(4)
ofthe Act
and
35
ill. Adxn.
Code
732.405(c),
the
plan
is modified.
The modifications listed in AttachmentA are necessary, in addition to
those
provisions already
outlined in the plan,
to
demonstrate compliance with Title XVI
ofthe Act
and
35111. Adm. Code
7~2.Please note
that
all activities
associated
with theremediation
of
this release proposed in
the
plan must be executed in accordance with 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)
of
the
Act
and 35111.
Adm. code 732.405(e)
and
732.503(b)).
Please note that, ifthe owner or operator agrees with theillinois EPA’s modifications, submittal
ofan amended plan isnot required (Section 57.7(c)(4) ofthe Actand 35111. Adm. Code
732.503(1)).
NOTE: The plan proposes activities that are technically acceptable as modified in this letter.
However, this letter does not constitute illinois EPA approval ofany costs incurred during the
completion ofsuch activities. For the purpose ofreimbursement, these activities are in excess of
those necessary to meet the minimum requirements ofthe Actand regulations. Owners and
operators are advisedthat they may not be entitled to full ayment or reimbursementfor this
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University
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cri —2125 South First Street, Champaign IL 61820—(217) 278 3800
SPrnNcFItI.p —4500 S S’xth Street Rd Springfield U. 627
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SEP 16 ‘03 10:49 FR WIGHT & COMPANY
630 969 7979 10 13123461859
P.07
Page 2
.
reason. The Illinois EPA will review
your
completerequest for
partial
or final
payment
from the
Underground Storage
Tank
Fund after it is submitted to the illinois EPA.
All future correspondence must be submitted to:.
Illinois Environmental Protection Agency
Bureau
of
Land ~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
beginnihg
of
this letter.
An underground storage tank system owner
or operator may appeal
this decision
tothe illinois
Poilution Control
Board. Appeal rights are attached.
Ifyou have
anyquestions
or need
further
assistance, please contact
Carol
Hawbaker at 217/782-
5713.
Sincerely,
Hairy
A.
Chappel, P.E.
Unit Manager
Leaking Underground Storage Tank Section
Division of
Remediation
Management
Bureau
ofLand
HACtCLH
Attachment: A and B
cc:
Wight
Division File
SEP 16 ‘03 10:49 FR WIGHT & COMPANY
630 969 7979 TO 13123461859
P.08.
Appeal
Rights
An
underground storage tank owner or operatormay
appeal this final decision to the
illinois.
Pollution Control Board
pursuant to Sections
40
and
57.7(c)(4)(D) of
the
Act by
filing a petition
for a
hearing within 35 clays after the date ofissuance ofthe final decision. However, the
35-day
period may be extended
for
a period oftime notto exceed 90 days by written notice from the
owner or operator
and theillinois
EPA within the
initial
35-day
appeal period. Ifthe owner or
operator wishes to receive a 90-day extensioh, 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
Jllino~sPollution Control Board
State ofillinois Center
100 West Randolph, Suite 11-500.
Chicago, JL 60601
3121814-3620
For information regarding the filing ofan extension, please contact:
Illinois Environmental Protection Agency
Division ofLegal Counsel
1021 North Grand Avenue East
Post Office Box 19276
Springfield, IL 62794-9276
217/782-5544.
SEP 16 ‘03 10:49 FR WIGHT & COMPANY
630 969 7979 TO 13123461859
P.09
Attachment A
Re:
LPC ~03 12975140
--
Cook
County
South Holland / Lincoln Oasis North
Tri-State Tollway (1-294), Mile Post 1.1
LUST Incident No. 941817
LUST
TECHNICAL FILE
-
Citations in this
attachment
are
from the Environmental Protection Act
(Act) and
35
Illinois
Administrative
Code
(35111.
Adm. Code).
The
Illinois EPA wishes to
clarify
issues
thatwere
presented in the High
Priority
regulations..
Corrective Action
‘plan
that exceed the minimum requirements to comply
with
Title XVI
A.
Pursuant
to
35
IC 620.2 10, Class I potable resource groundwater is groundwater 10 feet
or more below the land surface. Based on the correspondence
submitted
to the Agency
dated
April 30, 2003, received on May 5, 2003, the site is a
manmade
mound on which a
gas
station is located. According to the correspondence, the actual
native
land
surface
is
at 603.5 feet above
mean se~level. As the groundwater wells are
set above this native
land surface
level, the groundwater encountered in these wells
are no 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
betweenthe perched water
and
the actual
land surface. Therefore, modeling with R26
equations
does not apply i~
this
instance, as
the contaminatedgroundwater is not located in an aquifer. in, addition Class II
groundwater remediation objectives apply at
this
site, The groundwater pathway may be
excluded through the on-site groundwater use restriction proposed for
this
site.
B. Soil excavation activities proposed in the plan exceed theminimum requirements to
comply
with
Title XVI, as
areas
proposed
to
be excavated
are
beyond the area ‘of 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
pavementresurfacing as an engineered barrier. Soil excavation maynot be
necessary to
address
the
contamination
at the site.
sEP 16 ‘03 10:50 FR WIGHT & COMPANY
630 969 7979 TO 13123461859
P.10
Attachment B
Re:
LPC#03l2975140--CookCounty
South Holland
/ Lincoln Oasis’North
Ti-i-State Tollway (1-294), North
bound, Mile Post
1.1
LUST Incident No. 941817
LUST Technical File
-
Citations in this attachment are
from the
Environmental Protection
Act (Act)
and
35
illinois
Adniinistrative
Code
(35
111. Ada
Code).
‘The
budget includes costs in which the owner or operator failed
to
justify that
alt
costs are
attributable to each underground storagetank
atthe
site. (Section 57.8,(m)(2) ofthe 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
57.3(~n)(I)of
the
Act)
According
to
Drawing
9
defining the area
of
soil contamination and
extensive sample
analyses
conducted at the
site,
the
extent
of
contamination appears
to be
from the tank
system that
was removed in 1986. Per theEligibility andDeductibilitydetermination
made by
the
Office ofthe
State Fire 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 XVI
is not eligible for
reimbursement.
a TflT~~ PPflPIØ **