ILLINOIS POLLUTION CONTROL BOARD

March 4, 2004

 

GREAT LAKES DREDGE & DOCK

COMPANY (Site Investigation Budget

Amendment Rejection),

 

Petitioner,

 

v.

 

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

 

Respondent.

______________________________________

)

)

)

)

)

)

)

)

)

)

)

)

 

  

PCB 04-143

(UST Appeal)

 

GREAT LAKES DREDGE & DOCK

COMPANY (Corrective Action Plan and

Budget Rejection),

 

Petitioner,

 

v.

 

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

 

Respondent.

 

)

)

)

)

)

)

)

)

)

)

)

)

 

  

 

 

 

  

  

PCB 04-145

(UST Appeal)

(Not consolidated)

 

 

  

  

ORDER OF THE BOARD (by J.P. Novak):

 

On February 23, 2004, Great Lakes Dredge & Dock Company filed a petition asking the

Board to review a determination of the Illinois Environmental Protection Agency (Agency).

See

 

415 ILCS 5/40(a)(1) (2002); 35 Ill. Adm. Code 105.402. On February 26, 2004, Great Lakes

Dredge & Dock Company filed exhibits missing from its February 23, 2004 petition. The site at

issue here is Great Lakes Dredge & Dock Company’s leaking underground storage tank facility

at 9320 South Ewing Avenue, Chicago, Cook County.

 

Review of the petition and exhi

s Environmental Protection Agency (Agency).

See

 

415 ILCS 5/40(a)(1) (2002); 35 Ill. Adm. Code 105.402. On February 26, 2004, Great Lakes

Dredge & Dock Company filed exhibits missing from its February 23, 2004 petition. The site at

issue here is Great Lakes Dredge & Dock Company’s leaking underground storage tank facility

at 9320 South Ewing Avenue, Chicago, Cook County.

 

Review of the petition and exhibits makes clear that the petitioner seeks to review two

separate Agency determinations:

 

1. the January 14, 2004 rejection of an October 2003 first amendment to the Site

Investigation Budget, in which the Agency determined that various costs were “in

excess of those required to meet the minimum requirements of Title XVI of the

Environmental Protection Act (Act)” and cited Board regulations, and

---

 

2

 

2. the February 9, 2004 rejection of the October 2003 corrective action plan and

associated budget. The corrective action plan was rejected due to failure to

address certain soil contamination, inclusion of “excessive” investigation

practices, and excavation of “unrelated” contaminated soil. The budget was

rejected because, since the plan was not approved, the Agency could not

determine whether costs were excessive.

 

Great Lakes Dredge & Dock Company appeals both determinations on the grounds that the

Agency’s determination was arbitrary, capricious, and without statutory authority.

 

The Board does not allow appeal of more than one Agency determination in any single

petition for review in a single docket; filing fees required by the Act must accompany the appeal

of each separate Agency decision. Separate petitions must be filed, each accompanied by the

filing fee required by Section 7.5 of the Act and 35 Ill. Adm. Code 101.302 (e)(3). When one

petition attempts to appeal two decisions, the Board typically accepts the petition for hearing as a

timely and sufficient appeal in one case, and then reserves a docket for the filing of a sufficient,

amended petition in the second docket. Where petitioner believes that two or more separate

determinations are best handled together, the Board customarily consolidates the actions upon

receipt of a motion by petitioner. The Board does so below.

 

Docket PCB 04-143 (Site Investigation Budget Amendment Rejection)

 

The Board has docketed the petition as it relates to the earliest Agency decision, the

January 14, 2004 rejection of an October 2003 first amendment to the Site Investigation Budget,

as PCB 04-143. As the petition was postmarked February 17, 2004, the Board finds that it was

timely filed. See 35 Ill. Adm. Code 101.300 (b)(2). The petition meets the content requirements

of 35 Ill. Adm. Code 105.408. The Board accepts the petition for hearing.

 

Great Lakes Dredge & Dock Company has the burden of proof. 35 Ill. Adm. Code

105.112(a). Hearings will be based exclusively on the record before the Agency at the time the

Agency issued its determination. 35 Ill. Adm. Code 105.412. Hearings will be scheduled and

completed in a timely manner, consistent with the decision deadline (

see

415 ILCS 5/40(a)(2)

(2002)), which only Great Lakes Dredge & Dock Company may extend by waiver (

see

35 Ill.

Adm. Code 101.308). If the Board fails to take final action by the decision deadline, Great

Lakes Dredge & Dock Company may deem its request granted.

See

415 ILCS 5/40(a)(2) (2002).

Currently, the decision deadline is June 22, 2004 (the 120th day after February 23, 2004).

See

35

Ill. Adm. Code 105.114. The Board meeting immediately before the decision deadline is

scheduled for June 17, 2004.

 

Unless the Board or the hearing officer orders otherwise, the Agency must file the entire

record of its determination by March 24, 2004, which is 30 days after Great Lakes Dredge &

Dock Company filed the petition. 35 Ill. Adm. Code 105.410(a). If the Agency wishes to seek

additional time to file the record, it must file a request for extension before the date on which the

record is due to be filed. 35 Ill. Adm. Code 105.116. The record must comply with the content

requirements of 35 Ill. Adm. Code 105.410(b).

---