—~.....
r
BEFORE THE POLLUTION CONTROL
BOARD
R E C E ~V ED
OF THE STATE OF ILLINOIS
CLERK’S OFFICE
PCB 03-129, PCB 03-130,
PCB 03-13 1, PCB 03-136,
PCB 03-137, PCB 04-j’)
(UST Fund Appeal)
(Consolidated)
NOTICE OF FILING
TO:
John Kim
Special Assistant Attorney General
Illinois
Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box
19276
Springfield, Illinois 62794-9276
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
1021
North Grand Avenue East
P.O. Box
19274
Springfield, Illinois
62794-9274
PLEASE
TAKE
NOTICE
that
on March
25,
2004,
filed with the
Clerk of the Illinois
Pollution Control Board ofthe
State of Illinois an
original, executed copy ofPetition for Review
ofIllinois
Environmental Protection Agency Decisions
and Motion to
Consolidate.
Dated:
March
25,
2004
Carolyn S. Hesse
Barnes
& Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
21 1463v1
By:
Respectfully submitted,
L. Keller Oil Properties, Inc.
One ofIts A
rneys
L. KELLER OIL PROPERTIES, INC. /
)
CHARLESTON / KELLER OIL
)
)
Petitioner,
)
)
v.
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MAR 252004
STATE OF ILLINOIS
Pollution
Control Board
This
filing submitted
on recycled paper as defined
in 35
III.
Adm. Code
101.202
CERTIFICATE OF SERVICE
I,
on
oath
state
that
I
have
served
the
attached
Petition
for
Review
of
Illinois
Environmental
Protection Agency Decisions
and Motion to Consolidate by placing
a copy in
an
envelope addressed to:
John Kim
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box
19276
Springfield, Illinois 62794-9276
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
1021
North Grand Avenue East
P.O. Box 19274
Springfield, Illinois 62794-9274
from
One North Wacker Drive,
Suite
4400,
Chicago,
Illinois,
before the hour of 5:00
p.m.,
on
this
25th
Day ofMarch,
2004.
Carolyn S. Hets~e
This
filing submitted on recycled paper as defined in
35 Ill. Adm. Code
101.202
2
RECEWED
CLER~c:sOFFIGE
BEFORE THE POLLUTION CONTROL BOARD
.
MAR 25
2O0~
OF THE STATE OFILLINOIS
STATE OF ILL~OIS
L. KELLER OIL
PROPERTIES, iNC., /
)
.
.
pollution’ Control Board
CHARLESTON / KELLER OIL
)
)
Petitioner,
)
PCB 03-129, PCB 03-130, PCB 03-131
)
PCB 03-136, PCB 03-137,
v.
)
PCB 04-
(~7
)
(UST Fund Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent
)
MOTION TO CONSOLIDATE
NOW COMES
L.
Keller
Oil
Properties,
Inc.
by
one of its
attorneys,
Carolyn Hesse of
Barnes
&
Thornburg,
pursuant to
35
Ill.
Adm.
Code
101 .406
and hereby moves
to
consolidate
the appeal of Illinois Environmental Protection Agency (“Agency”) decisions that
is filed on this
date with the five previously filed appeals.
In support ofthis motion,
Petitioner states as follows:
1.
Five
underground
storage tank appeals were filed on
May 23,
2003.
The case
numbers are:
PCB 03
-
129,
PCB 03- 130, PCB 03-131, PCB
03
-
136,
and
PCB
03
-
137.
On June
5,
2003, the Board consolidated these appeals for hearing.
2.
All of the previously filed appeals and
the
appeal filed at the
same time
as this
Motion
to
Consolidate
involve
a
denial
of reimbursement
of
costs
from
the
Leaking
Underground
Storage
Tank
Trust
Fund
to
perform
corrective
action
activities
at
property
located
at
419
West
Lincoln,
Charleston,
Coles
County,
Illinois.
This property was previously owned by L. Keller Oil Properties, Inc.
3.
All
appeals are related to
corrective action activities
to
respond to
an
emergency
and to
the installation and ongOing
costs ofthe groundwater pump
and treatment
system
installed to
remediate
contamination from
the same underground
storage
tanks that leaked.
4.
The various Agency
letters
denying reimbursement apply to
activities
at the
site,
but cover different
periods oftime and different costs and expenses
related to the
corrective action activities.
5.
Because
the
factual
basis of the petitions
are
closely
related,
consolidating
the
petitions
into
one
proceeding
will be
more convenient to the
Board,
the Agency
and
Petitioner;
consolidation will
also result in
a more expeditious
and
complete
determination of the claims
and
would not
cause material
prejudice to
any
party.
Further,
consolidation
of
the
claims
will
provide
for
a
more
efficient
administration ofjustice
and reduce duplication of efforts
that would be required
if the
appeals were
handled separately.
The
burden of proof for
the appeals
is
identical and will be based on nearly identical facts and background information.
WHEREFORE,
Petitioner,
L.
Keller Oil
Properties,
Inc.,
respectfully requests
that
the
Board
grant
its
motion
to
consolidate the petition filed
on
this
date
on behalf of L.
Keller
Oil
Properties,
Inc. with the previously filed and consolidated petitions.
Respectfully submitted,
L. Keller Oil Properties, Inc.
By:
_________________
One of Its As
Carolyn S. Hesse, Esq.
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
211436v1
2
IThis
filing submitted on recycled paper
as defined
in 35 III. Adm. Code 101.2021
RECEIVED
CLERK’S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
MAR
252004
OF THE STATE OF ILLINOIS
‘
STATE OF
ILLINOIS
Pollution Control Board
L.
KELLER OIL PROPERTIES, INC., /
)
CHARLESTON / KELLER OIL
)
)
Petitioner,
)
)
v.
)
PCBO4-/’1L
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL’
)
PROTECTION AGENCY,
)
)
Respondent
)
PETITION FOR REVIEW OF ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY DECISIONS
L.
Keller Oil
Properties, Inc.
by
its attomey~,
Carolyn
S. Hesse ofBarnes
&
Thornburg,
pursuant to
the Illinois
Environmental
Protection Act,
415
ILCS
5/1
et. seq.
(the “Act”) and 35
Illinois
Administrative
Code
Section
105.400
et.
seq.,
hereby appeals
certain decisions
by
the
Illinois Environmental Protection Agency (the “Agency”).
1.
L
Keller Oil
Properties,
Inc.
(“Keller”)
is
the owner of property
located at
419
West Lincoln,
Charleston, Coles
County,
Illinois.
The site
is
a
gasoline service
station known as University BP or University
Shell that has underground storage
tanks (USTs) on the property, which store gasoline, heating oil, and diesel fuel.
2.
LUST Incident
Number
881670 was obtained following a site investigation.
The
site was also
assigned LPC #0290105024-Coles County.
3.
On
September
18,
2003,
the
Agency
received
Keller’s
complete
request
for
reimbursement of
costs
from
the
Illinois
Underground Storage
Tank Fund (the
“Request”)
for the period from May
1, 2000
to
June 30,
2002,
in the
amount
of
$25,813.00.
This
filing submitted on recycled paper as defined
in 35
III. Adm. Code 101.202J
4.
In a letter dated March
1,
2004,
the Agency denied certain costs in
the Request
and asked for additional explanation regarding other costs.
See
Exhibit A.
5.
Keller is appealing this March
1, 2004 denial because:.
(a)
the Agency denied certain costs by claiming that the owner/operator failed
to
demonstrate the costs were reasonable;
(b)
the
Agency
denied
certain
costs
alleging
lack
of
supporting
technical
documentation and claiming that the owner/operator failed to
demonstrate
that
the
costs
are
for
corrective
action
performed
in
accordance
with
Agency approved plans; and
(c)
the Agency denied certain handing costs as ineligible.
6.
The Agency’s letter
also
asks for an explanation of the use of a certain tank, and
on
behalf of Keller,
Keller’s
consultant,
CW3M
responded
to
this
request for
additional information in a letter dated March 4, 2004.
See
Exhibit B.
7.
Keller disagrees with the Agency’s decision and believes that the costs submitted
for reimbursement are corrective action
costs, are reasonable and are the types of
costs
that
are
eligible
for
reimbursement
under
the
Act
and
implementing
regulations.
8.
The
Agency’s
letter
denying. reimbursement,
Exhibit
A,
provides
no
further
explanation of the Agency’s reasons or bases
for denial that
could aid Petitioner
in setting
forth its
grounds ofappeal.
Nevertheless, the Agency’s letter states that
the Agency’s denial
is a final decision that Petitioner must appeal to the Board in
order to
preserve and enforce Petitioner’s
right to
reimbursement under
the UST
Fund.
‘
-
This
filing submitted on recycled
paper
as defined in 35 III. Adm. Code 101.202
WHEREFORE, L.
Keller Oil
Properties, Inc.
respectfully requests that the Board enter an
order that will provide that it be reimbursed from the UST Fund for its submitted costs and for its
attorneys’ fees
and costs in bringing this appeal.
Respectfully submitted,
-
L. Keller Oil Properties, Inc.
By:
~
H
co~~e
One of Its Attorb~eys
Carolyn S. Hesse, Esq.
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
211426v1
This
filing submitted
on recycled
paper
as defined in 35
Ill. Adm. Code
101.202
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
1021
NORTH
GRAND AVENUE
EAST,
P.O.
Box
19276,
SPRINGFIELD,
ILLINOIS
62794-927~,217-782-3397
JAMES
R.
THOMPSON
CENTER,
100
WEST
RANDOLPH,
SUITE
11-300,
CHICAGO,
IL 60601,312-814-6026.
ROD
R.
BLAGOJEVICH,
GOVERNOR
‘
RENEE
CIPRIANO,
DIRECTOR
217/782-6762
i-~i
MAR01
2U04
‘
~
2004
L. Keller
Oil Properties, Inc.
Attn:
Joe Henry
Post Office Box 571
Carlinville, Illinois
62626
Re:
LPC #0290105024
--
Coles
County
CharlestonlKeller Oil
419 West Lincoln
-
LUST Incident #88 1670
LUST FISCAL FIlE
‘
.
DearMr. Henry:
The Agency has completed the review ofthe request for reimbursement ofcorrective action
costs
from the Illinois Underground Storage Tank Fund for the above-referenced facility.
The invoices
reviewed covered the period from May 1, 2000 to June 30, 2002.
The amount requested was•
$25,813.00.
The deductible amount for this
claim
is $50,000.00, which was previously deducted from the
Invoice Voucher dated February
3, 2003.
Listed
in ‘Attachment A are the costs which are not
being reimbursed from this
request and the reasons these costs are not being reimbursed.
On September
18, 2003,
the Agency received your complete request for payment for this claim.
As a result of the Agencys review ofthis
claim,
a voucher for $17,029.49 will be prepared for
submission to
the Comptroller’s
Office for payment
as funds become available based
upon the
date the Agency received your complete request
for payment ofthis
claim.
Subsequent
claims
that have been/are submitted
will be processed
based
upon the date complete subsequent billings
requests
are received by the Agency.
This
constitutes the Agency’s final action
with regard to the above invoices.
An underground
storage tank owner or operator may appeal
this final decision to
the Illinois Pollution Control
Board
(Board) pursuant
to Section
22.
1 8b(g) and Section 40 of the Act by filing
a petition for a
hearing within
35
days after the date of issuance of the final decision.
However, the 35-day
period may be extended
for a period oftime not to exceed 90
days by written notice from
the
ROCKFORO
—
4302 North
Main
Street,
Rockford,
IL
61103
—18151
987-771,0
•
Dts
PLAINES
—
9511
W. Harrison
St.,
Des
Plair,es, IL
60016
—
(847) 294-4000
EL,,N
—
595
South State,
Elgin,
IL
61)12.3
—
647i
61)8-31
31
•
Pto~i.’~
—
5415
N.
University
SI.,
Peoria,
IL
61614
—(3091
693-5463
BUREAu
OF
L..\ND
-
PEORIA
—
7620 N. Univer~it~
St.,
Peoria,
IL
61614
—
130’)I
(,‘)3-5462
•
CHA~~F’Alc~N
—
2125
South First Street, Champaign,
IL
6182(3
—
(2171
278-3800
SPRINGFIELD
—
4500
S. Sixth
Street
Rd., Springfield,
IL
62706—217~
7)t6-68q2
•
CnIINsVIILE
—2009
MaIl
Street,
Collinsville,
IL
62234
—(618)
_________________
MARION
—
2309
W. Main
St.,
Suile
16.
Marion,
IL 62959
—
61 (31
993-7200
,
EXHIBIT
Ph’INTtt)
II~.
Rrc-’~cLEDPAPER
.
-
‘
A
Page 2
owner or operator and the Illinois
EPA within the initial
35-day appeal period.
Ifthe owner or
operatorwishes to receive a 90-day extension, a written request that includes a statement ofthe
date the final decision was received,
along ~vitha copy ofthis
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, Illinois 60601
312/814-3620
For information regarding the filing of an extension, please contact:
Illinois Environmental Protection Agency
Division ofLegal Counsel
1021 North Grand Avenue East
Springfield, Illinois
62794-9276
217/782-5544
2004
If you
have any questions, please contact Catherine S. Elston of my staff at 217/782-6762.
DEO:CSE:ct\043055 .doc
Attachment
Dot(glas
E.
Oakley,
~LUSTClaims Unit’
Planning &Reporting Section
Bureau of Land
cc:
CW3M
Company
Attachment A
Technical Deductions
Re:
LPC #0290 105024
—
Coles
County’
.
-
,
-
Charleston/Keller Oil
~‘
.~
?Oil~
‘1
419 West Lincoln Avenue
~
LUST ‘Incident No.
881670
‘
‘
LUST FISCAL FILE
Item #
DescriptionofDeductions
‘
$
1,996.23, deduction in costs that the owner/operator failed to
demonstrate were reasonable (Section 22.18b(d)(4)( C )ofthe
Environmental Protection Act).
Costs for excavation, transportation, disposal, and backfill activities have
been previously reimbursed in the July 23, 2003
letter covering the billing
Package submitted for dates ofOctober
1,
199 thru March 31, 2002.
2.
$ 5,796.00,
deduction for costs that lack supporting technical
documentation as the owner or operator failed to
demonstrate that the costs
are for corrective action performed in
accordance with the plans approved
by the Agency (Section 22.1 8b(d)(4)(F) of the Environmental Protection
Act).
Please explain the use ofthe baker tank in conjunction with the
groundwater treatment system and emergency operations for the dates of
April 12, 2001
thru August 9, 2001.
3.
$
972.60, deduction
for handling on ineligible
costs.
Accounting Deductions
‘
~
2OO~
f
Re:
LPC#0290105024--Co1esCoun~
‘
Charleston/Keller Oil
‘
‘
‘
419
WestLincoln
~LUST Incident No. 881670
LUST FISCAL.FILE
Item #
Description ofDeductions
$1
8.68,
deduction in costs
that the owner/operator failed to demonstrate were
reasonable (Section 22.1 8b(d)(4)(C) of the Environmental Protection Act).
Rate for mileage on CW3M invoice for March
1-31,
2002
is unreasonable
-
$1.94
Rate for latex gloves on CW3M invoice forApril
1-30, 2002
is unreasonable
-
$4.00
Rate for mileage on CW3M invoice
for April 1-30, 2002
is unreasonable
-
$1.98
Rate for‘mileage on CW3M invoice
for May 1-31,
2002 is unreasonable
-
$6.62
Rate for mileage on CW3M invoice for June 1-30, 2002
is unreasonable
-
$4.14
CSE:ct\043056.doc
—
--
,i.i-i~J~+
~eJ;iJ
LO.~ZCEJU~
L,Wt’I
F’ML~t.
ELI.
~i~—C
W~M
C
omp
L~onmenta1
Consulting
Services
701
W
South
Grand
Ave~ue
(217)522-8009
March4,
2004
Ms
Carol JI:awbaker, Project Manager
LUST
Section, Bureau of Land
Illinois Environmental
Protection
Agency
1021
North Grand Aveflue East
Springfield,
illinois 62794-9276
RE:
LPC#0290105024—Coles County
Charleston / L.
Keller Oil Properties, Inc.,
419
West
Lincoln
Incident Number:
88-1670 & 89-0932
LUST
Fiscal
File—Requested Additional Information
Dear Ms. Hawbaker:
This is
in response to a letter
from
Doug Oakley
dated
March
1,
2004,
regarding a
reimbursement request for the above referenced site.
The reimbursement request
covered the
time
period of May 1,
2000 to
June 30,
2002 in the
amount of $25,813.00.
The Attachment A—Technical Deductions requests
additional information regarding the
use of a Baker Tank in conjunction with the Groundwater Treatment Unit (GWTU)
during the time period
of
April
12,
2001
through August 9,
2001.
When the GWTU went on
line,
there were
approximately 28,000 gallons of wastewater
stored in the Baker Tank.
Rather than incur disposal
costs of up to
$2.00 per gallon to
dispose of this
water, the
Baker Tank was connected to the GWTU and the water
was
treated
and
released into
the sanitary sewer.
Once the GWTU began treating the
groundwater,
the contents (water separated from product) were systematically routed
through the GWTU for discharge.
During start-up and initial
operation of ibe GWTU,
higher levels of free product were continually recovered.
Liquids separating
in the
GWTU
were
transferred to the Baker Tank for disposal,
as the heavily contaminated
groundwater/product could not be cycled through the GWTU.
Once product levels
declined and the balance ofthe groundwater
in the Baker Tank was treated,
arrangements were made to have the tank cleaned
and
removed.
When the Baker Tank
was cleaned and the removed contents were containerized, the material was disposed of
by
Bodine Environmental Services,
Inc.
in September 2001.
The term
“emergency operations”
was used to describe use of the Baker Tank because
the Tank
was
originally ordered and
delivered
to
the site td recover
wastewater from
the sump
in the basement of the Varsity Inn.
Until
the GWTU bcgan to recover and
treat
the groundwater,
wastewater continued
to
collect in
Varsity Inn’s sump,
and was
701
W.
Smith
Grand
Avenue
400 W.
Jackson,
Suite C
——
Springfield,
XL
62704
Marion,
IL
62959
EXHIBIT
(217) 522-8001
‘
(618) 997-2238
pumped into
and
stored in the Baker Tank.
This
activity was
an extension of the work
Initiated during emergency operations.
If the Baker Tank had not been available to
collect this
wastewater, management
at the Varsity Inn would probably have triggered
an additional emergency response situation.
As
stated above, the recovered liquids
from the Varsity Inn were cycled through the GWTU as an
alternative to disposal.
Therefore,
continued use of the Baker Tank served dual purposes at the site.
We hope this satisfies your request for additional information.
Therefore,
we
respectfully request payment of
$5,796.00
for use of the Baker Tank, and
$695.52
for
associated
handling
charges.
Should you
have any questions
or require additional information, please feel free to
contact our office.
We can
be reached
at
(217) 522-8001.
On behalf of L
Keller Oji
Properties,
Inc.., thank
you for your
assistance.
Senior
Environmental Geologist
xc:
Mr.
Charles F.
Keller.
L.
Keller
Oil Properties,
Inc.
Mr. William
T.
Si.nnott,
CW5M Company,
Inc.
Rowe, PG.
K59-0932/lBPAcorljepacor25.doc