~ECE~VE~
CLERK’S OFACE
BEFORE THE POLLUTION
CONTROL BOARD
~
o
‘~
2004
OF THE STATE OF ILLINOIS
THOMECZEK OIL COMPANY,
)
)
STATE OF ILLINOIS
Pollution Control
Boarc~
Petitioner,
)
)
vs.
)
PCB
No. 04-91
)
(UST Appeal)
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
NOTI CE
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 of the 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
Thomeczek
for
Petitioner
RECEIVED
BEFORE THE POLLUTION
CONTROL BOARIf
LEAKS OFFICE
OF THE STATE OF ILLINOIS
042004
THOMECZEK OIL COMPANY,
)
Pt~~3~$d
Petitioner,
)
)
vs.
)
PCB No. 04-91
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR REVIEW OF
FINAL AGENCY
LEAKING UNDERGROUND STORAGE TANK DECISION
NOW COMES the
Petitioner, Thomeczek Oil Company (“Thomeczek”), 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
5157.7(c)(4)(D)
and 40) and 35
Iii. Adm.
Code 105.400-412,
hereby requests that the
Illinois Pollution
Control Board
(“Board”) review the final decision ofthe Illinois
Environmental Protection Agency
(“Agency”) in the above
cause, and in support
thereof, Thomeczek respectfully states as follows:
1.
On October 31,
2003, the Agency issued a final decision to Thomeczek,
a copy of which is
attached hereto as Exhibit A.
2.
On November
13,
2003, Thomeczek made a written request to the
Agency for an extension
of time by which to file a petition
for review to ninety days,
a copy of which is attached
hereto as Exhibit
B.
3.
On December
5,
2003, the Agency joined in Thomeczek’s request that
the Board extend the thirty-five
day period for filing a petition to ninety
days, a
copy ofwhich is attached hereto as Exhibit
C.
4.
On December
18,
2003 the Board entered
an Order extending the time
by which Thomeczek could file a Petition to and including March
4,
2004, a copy of
which is attached hereto as Exhibit
D.
5.
The grounds for the Petition herein are as follows:
On September
23,
2003,
Thomeczek submitted
to the Agency, through
its consultant United Science Industries,
Inc., a High Priority Corrective Action
Plan
(“CAP”) and corresponding budget.
The CAP requires the full extent of the soil
and groundwater contamination
to be defined by means
of the collection of sufficient
data to make such determination.
The CAP and budget satisfy the requirements
of
the Illinois Environmental
Protection Act,
415
ILCS
5/1
et seq.,
and the regulations
promulgated thereunder,
in that they were prepared and
fully implemented in
accordance with
generally accepted engineering practices
and their conclusions
were consistent
with the information obtained while implementing the
CAP.
The costs associated with each material,
activity and
service necessary
to accomplish the
goals of the
CAP were reasonable
and consistent
and were
incurred in the performance
necessary to meet the minimum
requirements
of the
Act and the regulations promulgated thereunder.
Further, the costs
associated with
each material,
activity,
and service necessary to accomplish the
goals ofthe
CAP
are similar in generally accepted engineering practices and technical protocol to
2
those historically
submitted to and approved
by the Agency which the Agency now
deems to be unreasonable
and inconsistent
with
generally accepted engineering
practices.
More specifically,
the Agency’s adjustment of $6,355.00 in personnel
costs as unreasonable
due to inadequate justification for costs beyond the personnel
time involved in the Tier II calculations performed is arbitrary
and capricious.
The
present
CAP before the Agency is the fifth submitted by
Thomeczek, each successive
CAP submitted in response to varying Agency requirements
submitted at various
times
ranging from August,
2000 through September,
2003.
In addition,
Thomeczek has been required to submit
two
(2) Corrective Action Completion
Reports
(“CACR”) to the Agency due to its requirements.
Despite the extensive
consultant personnel hours involved in the
preparations
and submittals
ofthe multiple
CAPs and budgets
and CACR’s at the
Agency’s request,
the Agency has denied as unreasonable such personnel charges.
Such denial is arbitrary
and capricious as the personnel charges
are subject to
reimbursement under the Act and its regulations.
WHEREFORE,
Petitioner,
Thomeczek Oil Company,
for the reasons stated
above, requests that the Board reverse the decision of the Agency and rule in favor
of Petitioner’s request for approval of its
CAP and budget as being reasonable,
justifiable,
necessary,
consistent with
generally accepted engineering
practices, and
eligible for reimbursement
from the UST Fund,
and that Petitioner recover its
3
attorney’s
fees and costs incurred herein pursuant
to 415
ILCS
5/57.8(1) and
35 Iii.
Adm.
Code
732.606(1).
Respectfully submitted,
SHAW & MARTIN,
P.C.
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
Thomeczek Oil
any,
Petitioner
4
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
1021
NORTH
GRAND AVENUE
EAST,
P.O.
Box 19276,
SPRINGFIELD,
ILLINOIS
62794-9276,
217-782-3397
JAMES
R.
THOMPSON
CENTER,
100 WEST RANDOLPH,
SUITE
1 1-300,
CHICAGO,
IL
60601,
312-81
4-6026
ROD
R.
BLAGOJEVICH,
GOVERNOR
RENEE
CIPRIANO,
DIRECTOR
217/782-6762
CERTIFIED MAIL
?OOE
~150
0000
12E?
0349
OC1312~fl~
—~
___
Thomeczek Oil Company
Attention:
Mr. Dan Thomeczek
P.O.
Box
66
Alton,
Illinois 62002
Re:
LPC
1190405159--
Madison
County
Granite City/ Thomeczek Oil Company
3252 West
Chain ofRocks Road
LUST Incident No.
991248
&
983101
LUST Technical File
Dear Mr. Thomeczek
The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the High Priority
Corrective Action Plan Budget (budget) submitted
for the above-referenced incident.
This
budget, dated September 22, 2003, was received by the Illinois EPA on
September 23,
2003.
Citations
in this
letter
are from
the Environmental Protection Act (Act) and 35
Illinois
Administrative Code
(35
III. Adm.
Code).
The budget
is modified pursuant to
Section
57.7(c)(4)
ofthe Act and 35
III. Adm.
Code
732.405(c).
Based
on the modifications
listed
in Section
2 ofAttachment A, the amounts listed
in Section
1 of Attachment A are approved.
Please note that the costs must be incurred
in
accordance with
the approved plan.
Be aware
that the amount ofreimbursement may be limited
by Sections 57.8(e), 57.8(g) and
57.8(d)
ofthe Act,
as well
as
35
III. Adm. Code
732.604,
732.606(s),
and 732.611.
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 Office Box
19276
Springfield,
IL
62794-9276
Please submit all
correspondence
in duplicate and include the Re: block shown at the beginning
of this
letter..
ROc~OED
—
4302
North Main
Street,
Rocktord,
IL
61103
—
(815) 987-7760
•
DE5
PLAINES
—
Plaines,
IL 60016
—
(847) 294.4000
ELGIN
—595
South
State.
Elgin, IL
~.
614
—
(309) 693-5463
—
BUREAU
op
LAND
-
PEORIA
—7620 N.
Unlversily
St.,
Champatgn,
IL 61820— (21i)
278-5800
SPRINGFIELD—
4500
S. Sixth
Street
Rd.,
Spring~._
A
~
PRINTED
ON
REGYCLEO
PAPER
Page 2
An underground
storage tank system owner or operator may appeal this decision to
the Illinois
Pollution
Control Board.
Appeal rights are attached.
fyou have any questions or need further assistance, please contact James R.
Malcom,
111
at
217/524-9140.
Sincerely,
-
tarry
A.
Chappel, P.E.
Unit Manager
Leaking Underground Storage Tank Section
Division of Remediation Management
Bureau ofLand
HAC: jim
Attachment:
cc:
USI
Attachment A
Division File
Appeal Rights
An underground storage tank owner or operator may
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
days after the date of issuance ofthe final decision.
However, the 35-day
period may be extended
for a
period oftime not to
exceed 90
days by written notice from
the
owner or operator and the Illinois EPA within the initial 35-day
appeal period.
If the owner or
operator wishes to receive a 90-day extension, a written request that includes a statement ofthe
date the final decision was received, along with
a-copy ofthis
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 ofIllinois Center
100
West Randolph, Suite 11-500
-
Chicago, IL
60601
312/814-3620
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
Attachment A
Re:
LPC
1190405159 --Madison County
Granite City/ Thomeczek Oil Company
3252 West Chain ofRocks Road
LUST Incident No. 991248
& 983101
LUST Technical
File
Citations
in this attachment are from
the Environmental Protection Act
(Act) and
35
Illinois
Administrative Code
(35
III. Adm.
Code).
SECTION
1
As
a result of the Illinois
EPA’s modification(s) in Section 2 of this Attachment
A, the following
amounts are approved:
$0.00
Investigation Costs
$0.00
Analysis
Costs
$800.00
Personnel
Costs
-
$0.00
Equipment
Costs
$0.00
Field
Purchases and Other Costs
$0.00
Handling Charges
SECTION
2
1.
$6,355.00
for an adjustment
in unreasonable personnel costs.
The Illinois EPA has
determined that these costs
are not reasonable
as submitted
(Section
57.7(c)(4)(C)
of the
Act
and 35
Ill. Adm.
Code 732.606(hh)).
One ofthe overall
goals ofthe financial review
-
is to
assure
that costs
associated
with materials, activities,
and services are
reasonable
(35
Ill. Adm.
Code
732.505(c)).
Please note that addition~1information andlor supporting
documentation may
be provided to
demonstrate the costs are reasonable..
All costs previously denied by the Agency continue to
be denied as adequatejustification
has not been submitted for the additional personnel
costs being requested.
The Agency
is
reimbursing for the personnel time involved during
the Tier II.calculations performed.
TOTAL AMOUNT APPROVED FOR HIOGH PRIORITY
CORRECTIVE ACTION:
$2 1,286.80
Investigation Costs
$26,540.00
Analysis
Costs
$137,819.00
-
Personnel Costs
$72,323.60
Equipment Costs
$303,523.70
Field Purchases and Other Costs
$11,704.00
Handling Charges
jim
LUNITED
SCIENCE INDUSTRIES
P.O.
Box
360
6295
East Illinois
Highway 15
Woodlawn, Illinois
62898-0360
November
13, 2003
Illinois
Environmental Protection Agency
Division
of Legal
Counsel
1021
North
Grand Avenue East
Springfield,
IL
62792-9276
Re:
LPC# 1190405159— Madison
County
Granite
City/Thomeczek
Oil
Company
3252 West Chain
of Rocks
Road
LUST Incident No. 983101
& 991248
Dear
Mr.
John
Kim:
Phone: (618)
735-2411
Fax:
(618) 735-2907
E-Mail: unitedscience@unitedscience.com
-
R ~
Divis~Ofl
f)~
~
I
~
~LI(
‘/
i
1
•
I
Env~roflm~flta1
~
AgencY
United
Science
Industries,
Inc.
(USI),
on
behalf
of
our
client,
Mr.
Dan
Thomeczek,
is
requesting
a
90-day
extension
to
the
35-day
appeal
period
in
regards
to
the
IEPA
correspondence
dated
October
31,
2003.
A
copy
of the
correspondence
is attached.
I
appreciate
your
time
and
consideration
in
questions or
comments
concerning
the
above,
2411
ext
166.
.
-
Sincerely yours,
UNITED
SCIENCE INDUSTRIES,
INC.
/-
‘Sallie
Minks
Project Manager
7~L~tu)
Enclosures
cc:
Mr.
Dan Thomeczek
this
matter.
If
you
please
contact me at
have
(618)
any
735-
L
BEFORE THE POLLUTION
CONTROL BOARD
OF THE.STATE
OF ILLINOIS
THOMECZEK OIL COMPANY,
)
Petitioner,
)
v.
)
.
PCBNo.04-
ILLINOIS ENVIRONMENTAL
)
(LUST Appeal
—
Ninety Day Extension)
PROTECTION AGENCY,
)
Respondent.
)
REQUEST FOR NINETY DAY EXTENSION
-
.
OF APPEAL
PERIOD
NOW
COMES
the Respondent,
the Illinois
Environmental
Protection
Agency
(“Illinois
EPA”), by
one of its
attorneys,
John J. Kim, Assistant
Counsel
and
Special
Assistant
Attorney
General,
and,
pursuant
to
Section
40(a)(1)
of the
Illinois
Environmental
Protection
Act
(415
ILCS
5/40(a)(1))
and
35
Ill.
Adm.
Code
105.208,
hereby
requests
that
the
Illinois
Pollution
Control Board (“Board”) grant
an
extension ofthe thirty-five
(35)
day period for petitioning for a
hearing
to
March
4,
2004,
or any
other
date not
more than a
total of one
hundred
twenty-five
(125)
days
from
October
31,
2003,
the
date of the
Illinois
EPA’s
final
decision.
In support
thereof, the Illinois EPA respectftully states as follows:
1.
On October
31,
2003,
the Illinois
EPA issued
a
final
decision
to
the Petitioner.
(Exhibit A)
2.
On November
13, 2003,
the Petitioner made a written request to
the Illinois EPA
for an
extension of time
by which
to
file
a petition for review,
asking
the Illinois
EPA join in
requesting
that
the Board
extend the
thirty-five
day
period
for filing
a
petition
to
ninety
days.
The Petitioner did not
represent when the final decision was received.
(Exhibit B)
3~
The additional
time requested by the parties may eliminate the need for a hearing
in this matter or, in
the alternative,
allow the parties to
identify issues and limit the scope of any
hearing that
may be necessary to resolve this matter.
EX.H~B~T
(~,
WHEREFORE,
for the
reasons
stated above,
the
parties request
that
the Board,
in
the
interest of administrative
and judicial
economy,
grant this
request for a ninety-day
extension of
the thirty-five day period for petitioning for a hearing.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Assistant Counsel
Special Assistant Attorney General
Division ofLegal
Counsel
1021
North Grand Avenue, East
P.O. Box
19276
Springfield,
Illinois
62794-9276
217/782-5544
217/782-9143
(TDD)
Dated: December
5,
2003
This filing submitted on recycled
paper.
2
ILLINOIS
POLLUTION
CONTROL BOARD
December
18,
2003
THOMECZEK OIL COMPANY,
)
)
Petitioner,
)
)
PCB 04-9 1
V.
)
(UST Appeal)
)
(90-Day Extension)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
ORDER OF THE BOARD (by J.P. Novak):
On December
8, 2003, the parties timely filed a joint notice to extend the 35-day period
within which Thomeczek Oil Company may appeal an October 31, 2003
determination of the
Illinois Environmental Protection Agency (Agency).
See
415
ILCS
5/40(a)(
1)
(2002);
35 Ill.
Adm.
Code
105.402,
105.406.
Because the postmark date ofthe joint request is within the time
for filing, the joint request was timely filed.
35
Ill. Adm. Code
101 .300(b)(2),
105.404.
The
Agency approved the high
priority corrective action
plan budget, with modifications, for
Thomeczek Oil Company’s leaking underground petroleum storage
tank
facility located at 3252
West Chain ofRocks Road,
Granite City, Madison County.
The Board extends the appeal period
until March 4, 2004, as the parties request.
See
415
ILCS
5/40(a)(1)
(2002);
35 Ill. Adm.
Code
105.406.
IfThomeczek Oil Company
fails to file an appeal
on or before that date, the Board will
dismiss this case
and close the docket.
-
IT IS SO ORDERED.
I, Dorothy M.
Gunn,
Clerk ofthe Illinois Pollution Control Board, certify that the Board
adopted the above order on December
18, 2003, by a vote of
5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
EXH1BIT~~~
CERTIFICATE
OF SERVICE
I, the undersi~edattorney
at law,
hereby certify that on December
5,
2003,
I served true
and correct
copies of a REQUEST
FOR NINETY DAY
EXTENSION
OF
APPEAL
PERIOD,
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 Springfield,
Illinois, with sufficient
First Class Mail postage affixed thereto, upon the following named persons:
Dorothy M.
Gunn, Clerk
Sallie Minks, Project Manager
Illinois Pollution Control Board
United Science Industries
James R. Thompson Center
P.O. Box 360
100 West Randolph Street
6295
East Illinois Highway
15
Suite 11-500
Woodlawn,
IL
62898-0360
-
Chicago, IL
60601
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
John.,
Assistant Counsel
Special Assistant Attorney General
Divisiori ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
CERTIFICATE
OF
SERVICE
I, the undersigned attorney at law, hereby certify that
on March
‘~-
,
2004, 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, At)~’rneyfor
(
Petitioner, Thor~7IekOil Company
