RECE~VED
NOTICE OF FILING

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS STATE TOLL HIGHWAY

)

AUTHORITY (Des Plaines Oasis South),

Petitioner,

)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY,

Respondent.

)

RECE~VED

CLERK’S OFFICE

MAR

2OO~

STATE OF ILLINOIS

Pollution CoritrO~Board

NOTICE OF FILING

To:

Renee Cipriano, Director

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box

19276

Springfield,

62794

John Kim, Esq.

Special Assistant Attorney General

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield,

62794

PLEASE TAKE NOTICE that on March

£3,

2004 we filed with the Clerk ofthe Illinois

Pollution

Control

Board

the

originals

and

nine

(9)

copies

each,

via

personal

delivery,

Appearance of Special Assistant Attorneys General

and

Petition for Review of Agent~y

Modification of Budget for High

Priority Corrective Action Plan for Des Plaines South for

filing the above-entitled cause, copies ofwhich are attached hereto.

Kenneth W. Funk

Special Assistant Attorney General

)

PCB

04-103

(UST Appeal)

)

175746.1

CERTIFICATE OF SERVICE

The undersignedhereby certifiesthat true and correct copiesoftheNotice 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 receiptrequested,

and by depositing said envelopes in a U.S.

Post Office Mail Box at Chicago, Illinois, with postage

fully prepaid on the

~&3

day ofMarch, 2004

Kenneth W. Funk~

Special Assistant Attorney General

Kenneth W. Funk, Esq.

Philip J. Zisook,

Esq.

Karen Kavanagh Mack,

Esq.

Special Assistant Attorneys General

225

Washington Street, Suite 1700

Chicago, IL

60606

(312) 346-1460

THIS FILING IS SUBMITTED ON RECYCLED

PAPER

175746.1

RECE~VED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CLERK’S

OFFICE

ILLINOIS STATE TOLL HIGHWAY

)

MAR 232004

AUTHORITY (Des Plaines Oasis

South),

)

STATE

OF ILLINOIS

)

Poflution

Control Board

Petitioner,

)

PCB

04-103

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY,

)

Respondent.

)

APPEARANCE

I, Kenneth

Funk, hereby file the appearance ofDeutsch, Levy & Engel, Chartered in

this proceeding on behalfof the Illinois State Toll Highway Authority.

Kenneth W. Funk/

Special Assistant Attorney General

Kenneth W. Funk, Esq.

Phillip J. Zisook, Esq.

Karen Kavanagh Mack, Esq.

Special Assistant Attorneys General

225

Washington Street

Suite

1700

Chicago, IL

60606

(312) 346-1460

Firm No. 90235

175746.1

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CLERK’S OFFICE

ILLINOIS STATE TOLL HIGHWAY

)

MAR 232004

AUTHORITY (Des Plaines Oasis South),

)

STATE OF

ILLINOIS

)

Pollution Control Board

Petitioner,

)

PCB

04-103

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY,

)

Respondent.

)

PETITION FOR

REVIEW

OF AGENCY MODIFICATION OF BUDGET FOR HIGH

PRIORITY CORRECTIVE ACTION PLAN

Petitioner, the Illinois State Toll HighwayAuthority (“ISTHA”)by its attorneys,Kenneth W.

Funk, Phillip J. Zisook, and 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 ofthe final determination of Respondent,

the Illinois Environmental

Protection Agency (the “Agency”), dated November 18,2003,

with respect to Petitioner’s Budget

for the High Priority Corrective Action Plan, relating to its

Des Plaines Oasis South facility, and in

support thereof, states:

ISTHA is the owner ofthe facility, including underground storage tanks and related

piping, commonly known as the Des PlainesOasis South locatedon the1-90 Toliway (EastBound),

in Des Plaines, Illinois.

In 1994, Wight and Company, on ISTHA’s behalf’, notified the IEMAthat gasoline,

diesel and waste oil target analytes were detected abovethe Tier I Remediation Objectives, to which

the IEMA assigned Incident No. 94-1812.

175746.1

On or about August

2002,

Wight

and Company, on ISTHA’s behalf, notified the

IEMA that soil and

excavation water contained concentrations of target analytes

above the Tier I

Remediation

Objectives,

which

the

IEMA

assigned

Incident

No.

2002-1210,

which

was

considered a re-reporting ofIncidentNo. 94-1812, since therelease wasreportedduring the removal

ofthe existing tank system associated with Incident No. 94-1812.

Onor aboutAugust 4, 2003, ISTHA submitted a High PriorityCorrectiveActionPlan

(“Plan”), including

a Budget, to

the Agency; and,

or about November

18,

2003,

the Agency

responded by approvingthe Plan, but materially modifying the Budget (the “Final Determination”).

A true and complete copy of that Final Determination is attached hereto as Exhibit “A”.

Onorabout December

15,

2003, ISTHA contacted the Agency by letter, and advised

the Agency that it contested the Agency’smodification and requested a 90 day

extension ofthe 35

day appeal period pursuant to

§40 ofthe Environmental Protection Act.

(415 ILCS

5/40(a)(1).)

or about

December

23,

2003

the Agency

filed a

request

before the

Board

requesting a 90 day

extension ofthe

35 day appeal period.

On or about January

8, 2004, the Board granted the Agency’s request and extended

the period within which Petitioner may file its appeal through and

including March 24, 2004.

ISTHA requests thatthe Board reverse theAgency’sFinalDetermination with respect

to its modification ofthe Des Plaines Oasis South Corrective Action Plan Budget,because

interalia,

the Budget included

investigation costs,

analytical costs,

personnel

costs,

equipment

costs

and

handling charges that were necessary and reasonable to

execute the approved ‘Plan.

Additionally, ISTHA appeals the Agency’s modifications to the‘Budgetthat seek to

apportion ISTHA’s corrective action costs.

The Agency’s

bases for apportionment were that (a)

175746.1

ISTHA was deemed eligible

access the LUST Fund for payment of corrective action costs for

sonic,

but

not

all

of the

USTs

at the

site;

and

(b) ISTHA

failed

to justify

that

all

costs

were

attributableto each eligible

UST atthe site. However, on information and belief, the contaminants

remediated by ISTHA under the approved Plan emanated from the USTs registered in 1986, which

were found eligible forreimbursement by the Office ofthe Illinois State Fire Marshal and identified

as a source of the 1994 release.

Additionally, ISTHA demonstratedthat the corrective action costs

it incurred by

ISTHA were attributable to the eligible USTs at the

site.

Accordingly, ISTHA’s

budget informationprovided to the Agency sufficiently demonstrated the costs that were~neceSsary

and

reasonable to execute the approved Plan,

and the Agency

erroneously apportioned

ISTHA’s

corrective action costs.

Therefore, the Agency’s decision to apportionthe costs should be reversed.

10.

ISTHA reserves the right to present additional grounds forreversal of the Agency’s

determination, as they appear during the course ofthis

Appeal.

175746.1

WHEREFORE,

the

Petitioner,

the

Illinois

State

Toll

Highway

Authority,

respectfully

requests that this Board

grant a hearing in this

matter, reverse the

Agency’s November

18,

2003

determination (modification) ofISTHA’sBudgetforthe HighPriority CorrectiveAction Completion

Plan for the Des Plaines Oasis South,

and remand this matter to

the Agency with instructions to

approve the Budget as aforesaid, and for any

other relief as the Board deemsjust and appropriate.

Respectfully submitted,

THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY

By:

~Oneoftheir attor4eys

Kenneth W. Funk, Esq.

Phillip

J. Zisook, Esq.

•

Karen Kavanagh Mack,

Esq.

Special Assistant Attorneys General

225

Washington Street, Suite

1700

Chicago, IL

60606

(312)346-1460

•

-175746.1

NtY)

‘03

l6~36FR

WIGHT

COMPANY

630

969

7979

13123461859

P.02

-‘

L.,7

‘..,

i~,

NOV

iLLiNOIS

ENVIRONMENTAL

PROTECTION

ACENCY

1021

NORTH

GRAND

AVENUE

EAS7,

P.O. Bo~19276,

SPRINOFIELD,

iLLINOIS

62794-9276,

21 7-762-3397

)AM~S

Tl-tQMPSON

CrNTE’~,

100

WEST

RANDOLPH,

SUITE

11-300,

CHlc~co,

it.

60601. 31 2-814-6026

RoD

5LAGOJEVICH,

GOVERNOR

RENEE CIPRI~’~No,

DIRECTOR

217/782-6762

•

CERTIFIED MAIL

7002

~I50

0000

12a?

1q83

NOV182Dfl3

illinois State Toll highway Authority

Attn:

John Wagner

2700 Ogden Avenue

Downers Grove,

1L 60515

•

Re:

LPC

#0310635373

Cook County

Des Plaines/Des Plaines Oasis (Des Plairics Soudi)

Northwest Tollway (1-90), East Bound, Mile Post

4.5

LUST Incident No. 941812 & 20021210

LUST Technical File

Dear Mr

Wagner

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

Corrective Action Plan (plan) submitted for the above-referenced incident.

This plan, dated

August 4, 2003,

was received by the Illinois EPA on August 7, 2003.

Citations in this letter are

frøm the Environmental

Protection Act (Act) and 35 illinois Administrative Code

(35

III. Adm.

Code).

Pursuant to Section

577(c)(4)

of the Act and

ill. Adm.

Code 732.405(c), the plan is approved.

The activities proposed in the plan are appropriate to demonstrate compliance with Title XVI of

the Act and 35

111.

Adm. Code 732.

Please note that all activities associated with the remediation

of this

release proposed in the plan

must be executed in accordance with

all applicable regulatory

and statutory requirements, including compliance with the proper pemilts.

In addition,

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

Section

57.7(c)(4)

ofthe Act and 35

111. Adm. Code

732405(c).

Based on the modifications

listed

in Section

2 of Attachment 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.

aware

that the amount of reimbursement may be limited by Sections 57.8(e), 57.8(g) and 57.8(d)

of the Act, as well as 35111.

Adn-i. Code 732.604, 732.606(s),

and 732.611.

NOTE:

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

a No Further Remediation

(NFR) Letter.

Costs associated with a plan or budget that have not

been approved prior to the issuance of an NFR Letter will

not be reimbursable.

EXHIBIT

Rx:~o~w

—

430i North

Main

Street,

RockIod,

IL 61103

—

595

SOuth

State. ?I8in.

6Q1 23

—

(647)

BUREA,’

(JI

LANO

I’~cøa,.,

—

7620 N. Univer~iIy

SI..

6161

S~RINcFIJ.~o

—

45005. S~~h

Street

Rd..

5pr~nguieId,IL 62706

—

~nq

Harrison St., Des PI~tin~s.

60016—

(847) 294-400(1

Iversly

St., Fenri~,

IL 61614

—(309) 693-5463

2125 South F,iSI

Street, Cheirnp,tign, IL 61820

(21

~‘)

278-5800

2009 M~iI

Street. Cullirisville. IL

622.14 —(618) 34651 20

—

fA1r~QflL~’,nr.

20~

‘03 16:36 FR ~Aii6HT

 ~ COMPANY

 630 969 7979 TO 13123461859

 P.83

Page 2

All future correspondence must be submitted to:.

Illinois Envkonmental

Protection

Agency

Bureau ofLand-#24

Leaking Underground Storage Tank Section

1021

North Grand Avenue East

Post Office Box

19276

Sprii~gfie1d,IL

62794-9276

Please ~ubrnitall correspondence in duplicate and include the Re: blockshown at the beginning

of this letter.

An underground

storage tank system owner or operatorniay appeal this decision to the illinois

Pollution Control Board.

Appeal rights are attached.

you

have arty questions or need further assistance, please contact the Illinois EPA project

manager, Steve Thites, at 217/524-1253.

Sincerely,

Heruando A. Albarracin

Unit Manager

Leaking Underground Storage Tank Section

Division of Remediation Management

Bureau ofLand

HAA:S~STHADes Plaines South Oasis 941812

& 20021210 CAP & Budget.doc

Attachments:

Attachment A

Appeal Rights

Wight & Co.

Division Hie

t~1OL)

 20 ‘03 16:36 FR 1~IGHTS~COMFRNY

 630 969 7979 TO 13123461859

 P.04

Attachment A

Re;

LPC #0310635373

Cook County

Des Plaines/Des Plaines Oasis (Des Plaines South)

Northwest Toliway (I~90),

EastBound, Mile Post

4.5

LUST Incident No. 941812 & 20021210

LUST Technical File

Citations

itt

this attachment are from the Environmental Protection Act (Act) and

Uhinois

Administrative Code

(35

III. Adm. Code).

SE~TTONI

As a result of the Illinois

EPA’S

modification(s) in Section 2 of this Attachment A, the following

amounts are approved:

$1,002.19

Investigation Costs

$3,217.26

Analysis Costs

$7,501.84

Personnel Costs

$1,279.80

Equipment Costs

‘/7

$99,176.60

Field Purchases and Other Costs

$4,172.47

Handling Charges

SECTION

$2,745,00

for an adjustment

in costs for monitoring well abandonment.

The Illinøis EPA

has determined that these costs arenot reasonable as submitted

(Section 57.7(c)(4)(C) of

the Act

and 35

111. Adm. Code 732.606(hh)).

One of the overall goals of the financial

review is to assure that costs associated with materials, activities, and services are

reasonable

(35

111. Adm. Code

732.505(c)).

Please note that additional information

and/or supporting documentation may be provided to demonstrate the costs are

reasonable.

538.00 for an adjustment in

costs for groundwater BTEX/MTBE —24 hour turnaround

samples.

The illinois EPA has determined that these costs are not reasonable as

submitted (Section 57.7(c)(4)(C)

of the Act and 35

111. Adm.

Code 732.606(hh)).

One of

the overall

goals of the financial review is to assure that costs associated with materials,

activities, and services are reasonable

(35

UI. Adm.

Code

732.505(c)).

Please note that

additional information and/or supporting documentation may be provided to demonstrate

the costs are reasonable.

S20,535.OO for an adjustment in 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

UI.

Adin. Code

732.606(hh)).

One ofthe overall

goals of the financial review is to

assure

that costs associated with

materials, activities, and services are reasonable

(35

III. Adrn.

Code

732,505(c)).

Please note that additional information and/or supporting

t’~OL) 20

 ‘93 16:36 FR 1~J1GHT&

COMPANY

630 969 7979 TO 13123461859

P.05

Page 2

documentation may be provided to demonstrate the costs are reasonable.

$450.00

for an

adjustment in costs for support vehicle.

The illinois EPA has determined

that these costs are rtotreasonable as submitted

(Section

57.7(c)(4)(C)

ofthe Act and 35

UI. Adm. Code 732.606(hh)).

One ofthe overall goals of the fmanciai review is

to assure

that costS associated with materials, activities, and services are reasonable

(35

III. Adm.

Code 732.505(c)).

Please ttotc that additional information and/or supporting

documentation may be provided to demonstrate the costs are reasonable.

$77,194.80 for on adjustment in costs for soil removal and disposal.

The illinois EPA has

determined that these costs are not reasonable as submitted (Section

57.7(c)(4)(C)

of the

Act and

35111.

Adirt,- Code 732.606(hh)).

Oneofthe

overall goals of the financial review

is to assure that costs associated with materials, activities, and services are reasonable (35

III. Adm. Code 732.505(c)).

Please note that additional information and/or supporting

documentation may be provided to demonstrate the costs are reasonable.

$8,020.33 for an adjustment in costs for backfill.

The illinois EPA has determined that

these costs are not reasonable as submitted (Section

57.7(c)(4)(C)

of the Act and

111.

Adm.Code 732.606(hh))~One oftheoveraU goals ofthe financial review is

toassure

that costs associated with materials, activities, and

services arc reasonable (35 III. Adm.

Code

732.505(c)).

Please note that additional information and/or supporting

documentation may be provided to demonstrate the cOsts are reasonable.

$2., 169.31 for an apportionment of Investigation Costs.

The Illinois EPA has determined

that the apportionment shall be based on the number of eligible USTs as listed in

the

Office ofthe Illinois State Fire Marshal’s letter dated January 9,

1997 (35

111. Adm. Code

732.608(b)).

The Illinois EPA may apportion payment of costs for plans submitted under

Section

.7(c)(4)(E)(iii)

of the Act if:

(I) the owner or operator was

deemed eligible to

access the Fund forpayment of corrective action costs for some, but not all, of the

underground storage tanks

the site; and (2) the owner or operator failed to justify all

costs attributable to each underground storage tank

the site (Section 57.8(m) ofth~

Act

and 35 Iii.

Adrn. Code 732.608).

Number ofEligible USTs

Number ofIneligible USTs

Percentage of Eligible USTs

31.6

Total number of USTs

Total Volume of USTs (g~ns)

261,500

Volume of Eligible UST~g~llons)

60,592

Volume

Ineljg~leUSTs(gallons)

-—

201,000

Percentage Volume of EIig~USTs

NO) 20

‘93

 16:37 FR WIGHT

COMPAN~’

 630 969 7979 TO 13123461859

 P.06

Page3

8.

 $6,963.94 for an apportionment of Analysis Costs. The illinoisEPA

has

 determined that

the apportionment

shail be based on the

 numberof eligibleUSTs as listed in the Office of

the Illinois State

Fire Marshal’s letter dated

 Jatwary 9, 1997 (35 Ill. Adrn. Code

732.608(b)).

 The illinoisEPAmay

apportion payment of

 costs forplans submitted under

Section 57.7(c)(4)(E)(iii) ofthe Act if:

(I) the owner or operator was deemed eligible to

access the Fund for payment of corrective action costs for some, but not all, ofthe

underground storage tanks at the site; and

 (2) theowner or operator failed to

justify all

costs attributable to each underground storage tank at the site (Section

57.8(m)

of the Act

and 35

111.

Adni. Code 732.608).

$16,238.16 for an

apportionment of

 Personnel Costs. The illinoisEPA

has determined

that the apportionmentshall be based

on the numberofeligible

USTs as

listed in the

Office ofthe Illinois State

Fire Marshal’s letter dated Jamiazy 9,

1997

(35 IU.

Adm..

Code

732.608(b)). The illinoisEPAmayapportion paymentofcosts for plans submittedunder

Section

57.7(c)(4)(E)(iii)

 ofthe Act if:

(1)

the

 owner or operator

was

 deemedeligible to

access the Fund

for payment ofcorrective action

 cOSts for some, but not

all, of

the

underground storage tanks

at the site; and (2) the owner or operator failed

 to justify

all

costs attributable to each underground storage tank

 at the site (Section57 8(m)of

the Act

and 35

111.

Adm. Code 732.608).

10.

$2,770,20 for an apportionment of Equipment Costs.

The illinois EPA has determined

that the apportionment shall be based

on

the

number of eligible USTs as listed

in the

Office of the illinois State Fire Marshal’s

 letter

dated January

1997

(35

 ill. Adm. Code

732.608(b)).

The illinois EPA may apportion payment; ofcosts for plans submitted under

Section 57.7(c)(4)(E)(lii)

of

the Act if:

(1) the owner oroperator was

 deemed eligible to

access the f~und

for payment ofcorrective action

costs for

 some, but not all, ofthe

underground storage tanks at the

 site;

and (2) the owner or operator failed to justify all

costs attributable to each underground storage

tank at the siie (Section 57.8(m)

of

the

Act

and

 111. Adm. Code 732.608),.

11.

$214,673.40 for an apportionment of Field Purchases and

 Other Costs. The IllinOisEPA

has determined that the apportionment shall be based on the number of eligible USTs as

listed in the Office of the Illinois State Fire Marshal’s letter dated January 9,

1997

(35

UI.

Adm.

Code 732.608(b)).

The Illinois EPA may apportion payment of costs for plans

submitted under Section 57.7(c)(4)(E)(iii) ofthe Act if:

(1) the owner or operator was

deemed eligible to access the Fund for payment ofcorrective action cOsts for some, but

not all, of the underground storage tanks at the site; and (2) the owner or operator failed

to justify all costs attributable to each underground storage tank at the site (Section

57.8(m) of the

Act and

Ill. Mm.

Code 732.608).

12.

89,031.55

for an apportionment of Handling

Charges.

The Illinois EPA has determined

that the apportionment shall be based

on the number ofeligible USTs as listed

in the

Office of the Illinois State Fire

Marshal’s letter dated January

1997

(35

III. Adm. Code

HO~)2@ ‘03 16:37 FR WIGHT & COtIPRNY

 630 969 7979 TO 13123461859

p.87

Page 4

732.608(b)).

The Illinois EPA may apportion paymentofcosts

forplans submitted under

Section 57.7(c)(4)(E)(iii) of the Act if:

(1) the owner or operator was deemed eligible

access the Fund for payment ofcorrective action costs for some, but not all, ofthe

underground storage tanks at the site; and (2) the owner or operator failed

to

justify all

costs attfibutable

 to eachunderground storage

tank

 at the site

(Section

57.8(m)

of

the Act

and 35

III. Adm.

Cøde 732.608).

~.udger

 AdjustmentSumrn~

Budget

Modifications

Approved

Eudget

CAP

Costs

due to

Approved

Costs after

Modifications

Budget Costs

listed

~n

CAP

unreasonable

Costs before

Apportionment

~ue