BEFORE THE POLLUTION
CONTROL BOARD
OF THE STATE OF
ILLINOIS
)
)
Petitioner,
)
)
)
PCB No. 04-90
)
(UST Appeal)
)
)
)
CLERK’S OFFICE
MAR
042004
STATE OF ILUNO!S
Pollution
Control Board
Respondent.
)
NOTICE
Dorothy M. Gunn,
Clerk
Illinois Pollution Control Board
State
of Illinois
Center
100 West Randolph Street
Suite
11-500
Chicago,
IL
60601
JohnJ.
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
A&R,INC.,
‘vs.
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
By
A
orney for
A
&
R,
Inc., Pet~7~
CLERK’S
OFFiCE
BEFORE THE
POLLUTION CONTROL BOARD
MAR
0420
OF THE STATE
OF ILLINOIS
STATE OF ILLINOIS
A
& R,
INC.,
)
Pollution
Control
Board
)
Petitioner,
)
)
vs.
)
PCB No. 04-90
)
(UST Appeal)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR REVIEW OF
FINAL AGENCY
LEAKING UNDERGROUND STORAGE TANK DECISION
NOW COMES the Petitioner, A &
R,
Inc.
(“A
& R”), 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 ofthe Illinois
Environmental
Protection
Agency (“Agency”) in the above cause,
and in support thereof, A &
R
respectfully states as follows:
1.
On October 29,
2003, the Agency issued a final decision to A &
R,
a
copy of which is attached hereto as Exhibit A.
2.
On November
11,
2003,
A
& R made a written request to the Agency
for an extension oftime
by which to file a petition for review to ninety
days, a copy
of which is attached hereto as Exhibit
B.
3.
On December
3,
2003,
the Agency joined in
A
& R’s request that the
Board extend the thirty-five
day period for filing a petition to ninety
days, a copy of
which
is attached hereto as Exhibit
C.
4.
On December
18,
2003 the Board entered
an Order extenthng the time
by
which A &
R could ifie a Petition to and including March
2,
2004,
a copy of which
is attached hereto as Exhibit
D.
5.
The grounds for the Petition herein are
as follows:
A
&
R submitted to the Agency, through
its consultant United
Science
Industries,
Inc.,
an Amended High Priority
Corrective Action Plan
(“CAP”) and
corresponding budget
(“Budget”).
The CAP requires the full extent ofthe 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.
This Budget was submitted in response to a previous
Agency decision
dated September
16,
2003 by which the Agency adjusted equipment costs and field
2
purchases and other costs
associated with its reduction of A &
R’s proposal for the
amount of contaminated
soil to be excavated and transported.
By its
October
29,
2003 letter, the Agency
approved only an additional $3,800.00 in personnel costs
and nothing further
for additional proposed equipment costs or field purchases
and
other costs.
Further, the costs associated with each material,
activity,
and
service
necessary to accomplish the goals of the
CAP are
similar in generally accepted
engineering practices
and technical protocol to 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:
With regard to the adjustments by the Agency in its September
16,
2003 letter which are reflected in the approved Budget shown in attachment
A to
the Agency’s October 29,
2003 letter:
(1).
The Agency’s adjustment
of $500.00 for investigation
costs
associated with the per foot boring cost as unreasonable
is
in error and without
technical justification.
(2).
The Agency’s adjustment
of $30,226.00 in personnel costs as
unreasonable
is arbitrary
and capricious
and without technical justification.
Further,
the Agency fails to notify A
& R of the basis
for the adjustment
or the
particular personnel costs it is adjusting.
3
(3).
The Agency’s adjustment of $1,360.00 in equipment costs
associate with the Geoprobe rental as required to be included
in per foot boring
costs is in error
and without
technical justification.
(4).
The Agency’s adjustment of $360.00 for equipment costs
associated with the PID rental
is arbitrary and capricious
and without technical
justification.
(5).
The Agency’s adjustment
of $180.00 in equipment costs
associated with the utility
vehicle
is arbitrary and capricious
and without technical
justification
and fails to notify A
& R of the basis for such adjustment.
(6).
The Agency’s adjustment
of $9,240.00
in field purchases
and
other costs
associated with asphalt pavement is arbitrary
and capricious as
associated with the reduction to 2,000 cubic yards of excavation ofcontaminated
soil
which is
in error.
(7).
The Agency’s adjustment of $30.00 in field purchases
and other
costs associated with disposable cameras
is arbitrary
and capricious and fails to
notify A
& R of the basis
for such adjustment.
(8).
The Agency’s adjustment
of $51,282.76 in field purchases and
other costs associated with
soil excavation, transportation
and disposal
is arbitrary
and capricious as associated with the reduction to 2,000 cubic yards of excavation of
contaminated soil which is
in error and the Agency further fails to advise A
& R of
the particular costs adjusted accumulating the $51,282.76 or the reason(s) for such
adjustments.
4
(9).
The Agency’s adjustment of $18,648.28
associated
with field
purchases
and other costs associated
with backfill is arbitrary
and
capricious
and
without technical justification.
(10).
The Agency’s adjustment of $1,311.20
associated with handling
charges is arbitrary
and capricious
and without technical justification.
WHEREFORE,
Petitioner, A
& R,
Inc., 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 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,
SHIAW & 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
By
torney
for
A
& R,
Inc.,
Petit~
ner
5
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
1021
N0RrH
GRAND
AVENUE
EAST,
P.O.
Box
19276,
SPRINCflELD,
ILL!NOI5
62794-9276, 217-7e2-3397
JAMES
R.
THOMPSON
CENTER,
100
WEST
RANDOLPH,
SUITE
11.300,
CI-flcAGO,
IL 60601,
312-814-6026
Roo
R.
BLACOJEVICH,
Gov~oI~
RENEE CIPR~NO,
DIRECTOR
217/782-6762
CERTIFIED
MAIL
?0O~ ~15D
D000
122?
DuO
OCT
2820113
A & R, Inc.
Mr. Avery Moore
6229 West Ogden Avenue
Berwyn.,
IlL
60402
Re:
LPC
#0310215104--
Cook County
BerwynlA &R,Inc,
6229 West Ogden Avenue
LUST Incident No.
981412
LUST Technical File
Dear Mr. Moore:
The illinois Environmental Protection
Agency
(Illinois EPA) has reviewed the amended High
Priority Corrective Action
Plan Budget (budget) submitted for the above-referenced incident.
This budget, dated October 27,
2003,
was received by facsimile by the Illinois EPA on October
27, 2003
and indicates a mathematical error was made in
a October 24,
2003 Agency letter.
This
letter is issued to
correct the mathematical
error in the October 24,
2003
budget totals.
Citations
in this
letter are
from the Environmental Protection Act
(Act) and
35
illinois Administrative
Code (35
III. Adm.
Code).
The budget
is approved for the amounts listed in Section
1
ofAttachment A.
Please note that the
costs must be
incurred in
accordance with the approved plan.
Be aware that the amount of
reimbursement m~y
be limited by Sections
57.8(e),
57-8(g)
and 57.8(d) ofthe Act, as well as
35
Ill. 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 IJr~derground
Storage Tank Section
1021
North Grand Avenue
East
Post Offic~i
Box
19276
Springfield,
IL
62794-9276
Please submit all
;orrespondence
in duplicate and include the Re: block shown at the beginning
of this
letter.
R0C,~FOA0
-
4332
Nor
Main
Sueet,
RockIord~~
~
j~1ainc~,
~
~F
~
PtQR,A
—
7620 N.
Un
‘ersity St.,
Pe
S4~lr.C~lELQ
—
4500
5.
Sixth
Street
Rd..
Sprin~ii
~
IL
60016—1647)
294-4000
~i4
—(309)693-5462
__—Chimpai~n.
It 61820 —1217) 276-5600
sviIle,
IL.
62234—1618) 346-5120
P5~~T~2
O~.
F1tc~cLw
P~c~
Jan—16—04
17:23
From—United
Science
Indu~trie~
6187352907
1—471
P.03/06
F—784
I,
Page 2
An
underground storage
tank
system owner or operatormay appeal this decision to
the Illinois
Pollution Control Board.
Appeal rights are attached.
Ifyou have any questions or need further
assistance, please contact Dave Myers at 217/785-7491.
~erel~4~
Thomas A. J-~enniflgei
Unit Manager
Leaking
Underground Storage Tank Section
Division ofRemediation Management
Bureau ofLand
TAH:DM~d~~m0d2.d0c
Attachment:
Attachment A
Appeal Rights
c:
United Science Industries, Inc.
Division File
Attachment A
Re:
LPc#0310215104--
Cook
County
Berwyn! A
& R, Inc.
6229 West Ogden Avenue
LUST Incident No. 981412
LUST Tecimical File
Citations in this
atiachment are
from the Environmental
Protection
Act (Act)
arid
35
Illinois
Administrative
Co’e
(35
XII.
Adm. Code).
SECTiON .I~
The budget was pr!viously approved in a November 17, 2000
letter for:
$3750.00
Investigation Costs
$2520.00
Analysis Costs
$847400
Personnel Costs
$128.00
Equipment
Costs
$53 i.00
Field Purchases and Other Costs
$930.20
Handling Charges
The budget was prtwiously approved in
a September 16, 2003 letter for:
$3373.66
Investigation Costs
$2730.00
Analysis
Costs
$14,400.00
Personnel Costs
$1660.00
Equipment Costs
$167,191.35
Field Purchases and Other Costs
$1730.37
Handling Charges
The following amounts are approved:
$0.00
Investigation Costs
$0.00
Analysis
Costs
$3800.00
Personnel Costs
$0. 00
Equipment
Costs
SO.00
Field Purchases and Other Costs
$0.00
Handling Charges
Appeal Rights
An underground storage tank owner or operator may appeal this fmal decision to the Illinois
Pollution
Control Eoard pursuant to Sections 40
and
57.7(c)(4)(D)
ofthe Act by filing
a petition
for a hearing withir~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 writtennotice from the
owner or operator and the I1linóis~E~PAwithin
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 of the
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 of an appeal, please contact:
Dorothy Gunn, Clerk
Illinois Pollution
Control Board
State of Illinois Center
100 West Randolph, Suite 11-500
Chicago, IL
60601
312/814-3620
For infomiazion 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
P.O.
Box 360
6295
East
Illinois
Highway
15
Woodlawn,
Illinois
628g8-0360
November
11,
2003
illinois Environmental Protection Agency
Division ofLegal
Counsel
1021NorthG~andAvenueEast
RECE~~E~
Springfield,
IL
62792-9276
DivisIon
c~
L~i~
Cn~
Re:
LPC#
0310215104—Cook Co.
Berwyn/A &
r~,
i~.
Environmental
~
6229
West
Ogden Avenue
Agency
LUST Incident No. 981412
ATTN: John Kim
Mr. Kim:
United Science Indusiries, Inc. (USI), on behalfof our client, A
& R, Inc., is requesting a
90-day
extension to
the
35-thy
appeal
period
in
regards
to
the
JEPA
correspondence
included.
I
appreciate
your time
and
consideration in
this
matter.
If you
have
any
questions
or
coumients regarding this matter please contact me at (6118) 735-2411
ext.
175.
Sincerely yours,
UNITED SCIENCE
INDUSTRIES, INC.
Mark Owens
Project Manager
Enclosures
MO:bg
_*
3
EXH~B!T2~
Phone~(618) 735-2411
Fax: (518) 73S—2907
E•Mail: unitedscIence~
uniteclscience.cain
UNITED
SCIENCE INDUSTRIES
-
BEFORE TRE
POLLUTION
CONTROL
BOAflD
OF
TIlE
STATE OF ILLINOIS
A&R,INC.,
Petitioner~,
)
v.
)
.
PCBNo.04-
ILLiNOIS ENVIRONMENTAL
)
(LUST. Appeal
NinetyDay Extension)
PROTECTION AGENCY,
)
Respondent.
)
REQUEST FOR NINETY DAY
EXTENSION
OF APPEAL PERIOD
NOW
COMIES
the Respondent,
the Illinois Environmental Protection Agency
(“Illinois
EPA”),
by
one
of its attorneys, John
3.
Kim,
Assistant
Counsel
and
Special Assistant
Attorney
General,
and,
pursuant
to
Section
40(a)(l) of the Illinois
Environmental
Protection
Act
(415
LLCS
5/40(a)(1))
and
35
III.
Adm.
Code
105.208,
hereby requests
that
the
illinois
Pollution
ControlBoard (“Board”) grant an extension ofthe thirty-five
(35)
day period far petitioning for a
hearing
to
March
2,
2004,
or any
other date not
more than a total of one hundred twenty-five
(125)
days
from
October
29,
2003,
the date
of the illinois
EPA’s
final
decision.
In
support
thereof, the Illinois EPA respectfully states as follows:
1.
On October
29,
2003,
the
Illinois
EPA issued
a final decision to
the Petitioner.
The Illinois
EPA
notes
that
the copy of the final decision provided to
the illinois EPA
by the
Petitioner
is
not
complete.
The undersigned
attorney
has not
had an
oppbrtuuity
to
secure
a
complete copy prior to this filing.
(Exhibit A)
2.
On November 11, 2003,
the Petitioner made a written request
to
the illinois EPA
for an
extension oftime 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 representwhen the final decision was received.
(Exhibit B)
I
EXHIBIT
~
-
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 ofany
hearing that maybe necessary to
resolve this matter,
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 subn~itted,
ILLINOIS ENVIEDNMENTAL PROTECTION AGENCY,
Respondent
Jo~~
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
(TI)D)
Dated: December 3, 2003
This filing
submitted
on recyc1~d
paper.
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on December 3,
2003,
I served true
and correct copie~: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 Spring~e1d,illinois, with sufficient
First Class Mail postage affixed
thereto, upon the following
namedpersons:
Dorothy M. Gunn, Clerk
Mark Owens, 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,
IlL
62898-0360
Chicago, IL 60601
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
~~oent~
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box
19276
Springfield, Il1ino~s62794-9276
217/782-5544
2171782-9143 (TI)D)
ILLINOIS POLLUTION
CONTROL BOARD
December
18,
2003
A&R,INC.,
)
Petitioner,
)
)
PCB 04-90
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 A &
R, Inc. (A & R) may appeal
an October 29,
2003 determination ofthe 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 ofthejoint request is within the time for filing, the
joint request was timely filed.
35 Iii. Adm.
Code
l01.300(b)(2),
105.404.
The Agency approved
the high priority corrective action plan budget, with corrections, for A & R’s leaking
underground petroleum storage tankfacility located at 6229 West Ogden Avenue, Berwyn, Cook
County.
The Board extends the appeal period until March 2,
2004, as the parties request.
See
415 ILCS
5/40(a)(1)
(2002);
35 Ill. Adm.
Code
105.406.
IfA & R 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 of the Illinois Pollution Control Board, certify that the Board
adopted the above
order on December
18, 2003, by
a vote of 5-0.
~AL
L~
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
EXHIB1T~~
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
Martin4ttorney
for
Petitioner, ~
Inc.
