• BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
APR 13 2004
KELLER OIL COMPANY /
)
EDGEWOOD
STATE OF
ILLINOIS
Pollution Control Board
Petitioner,
)
V.
)
PCBO4-___
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF FILING
TO:
Joim Kim
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
PLEASE TAKE
NOTICE
that on April 13, 2004, filed with the Clerk of the Illinois
Pollution Control Board of the State of Illinois an original, executed copy of a Petition for
Review of Illinois Environmental Protection Agency Decision.
Dated: April 13, 2004
Respectfully submitted,
Keller Oil Company / Edgewood
By:
~
1Ic~OX~
One ofIts
torneys
Carolyn S. Hesse
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
214306v1
This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.2021
CERTIFICATE OF SERVICE
I, on oath state that I have served the attached Petition for Review of Illinois
Environmental Protection Agency Decision 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
from One North Wacker Drive, Suite 4400, Chicago, Illinois, before the hour of 5:00 p.m., on
this
13th
Day ofApril, 2004.
•
Carolyn S. H~se
This filing submitted on recycled paper as defined
in
35
Ill. Adm. Code 101.2021
2
BEFORE THE POLLUTION CONTROL BOARD
RECEUVE~
OF THE STATE OF ILLINOIS
•
CLERK’S OFFICE
KELLER OIL COMPANY /
)
APR
13 2&J4
EDGEWOOD,
)
)
•
Pollution
STA~EOF
Control
ILLINOiS
Board
Petitioner,
)
v.
)
PCBO4
___
)
(UST Appeal)
ILLiNOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR REVIEW OF ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY DECISION
Keller Oil Company (“Keller Oil / Edgewood”), by its attorney, Carolyn S. Hesse of
Barnes & 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.
Keller Oil Company / Edgewood (“Petitioner”), is the owner ofa gasoline
service station located at Route 57, Edgewood, Effingham County, Illinois
(the “Station”). This gasoline service station had underground storage
tanks (UST’s) on the property, which stored gasoline.
2.
LUST Incident Number 991768 was obtained following a site
investigation.
The site has also been assigned LPC #0490205003-
Effingham County.
3.
On February 23, 2004, CW3M, the contractor hired by Petitioner to assist
Petitioner with corrective action at the Station, sent to the Agency a High
Priority Corrective Action Plan (“HPCAP”) and Budget to perform
This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202
corrective~actionat the Station. The Agency received the HPCAP on
February 26, 2004.
4.
On March 11, 2004, the Agency sent a letter to Petitioner modifying the
February 23, 2004 High Priority Corrective Action Plan and Budget.
(See
Exhibit A.) The letter included a list Of modifications made by the
Agency. The Agency’s letter stated that modifications were made because
the “costs were not reasonable as submitted.”
5.
The Agency’s letter of March 11, 2004, provides no additional
information regarding why JEPA modified the HPCAP or believes that
costs are not reasonable.
6.
Some of the Agency’s modifications also contained the following
sentence: “Please note that additional information and/or supporting
documentation may be provided to demonstrate the costs are reasonable.”
7.
However, the Agency’s March 11, 2004 letter also states that the
Agency’s decision is a final decision, appealable to the Illinois Pollution
Control Board. Thus, in order to preserve Petitioner’s rights and to appeal
the Agency’s decisions, Petitioner is appealing the Agency decisions set
forth in the Agency’s letter dated March 11, 2004.
IThis
filing submitted on recycled paper as defined in
35
III. Adm.
Code 101.2021
2
WHEREFORE, Keller Oil Company / Edgewood respectfully requests that the
Board enter an order requiring the Agency to approve the High Priority Corrective Action
Plan and Budget to allow the cleanup to proceed at this facility and for Keller Oil
Company / Edgewood’s attorneys’ fees and costs in bringing this appeal.
Respectfully submitted,
Keller Oil Company / Edgewood
By:
~
/~°-‘~&
One ofIts Atto eys
Carolyn S. Hesse, Esq.
Barnes & Thornburg LLP
OneNorth Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
2141901
This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202
3
I’ I
tJ4
S
ILLINOIS ENVIRONMENTAL PROTECTiON AGENCY
1021
NORTH
CRAr”jDAV~NUEEAST. P.O. Bo~19275,
SPRINGFiELD, ILLINOIs
62794-9276, 217-782-3397
JAMES
R.
THOMPSON C~NT~R.
100
WEST RANDOLPH. SUITE
11-300,
CHICAGO, IL
60601, 31 2-814-6026
ROD
R.
BLACOIEVICH, GOVERNOR
RENEE CIPRIANO.
DIRECTOR
217/782-6762
MAR 112OO~
CERTIFIED MAIL
?flO~
315D DODD IE.55 45~1
Keller Oil Compauy
Attention: Joe Henry
P.O.
Box
70
Effinghain, IL 62401
Re:
LPC #0490205003
—
Effingham County
Edgewood / Keller Oil
Route
57
LUST Incident No. 991768
LUST Technical File
Dear Mr. Henry:
1.~7~~1i4
PRMTEO C)N RECYCLEO P~.F~R
The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the ugh PrIority
• Corrective Action ?Iaxi (plan) submitted for the above-referenced incident. This plan, dated
February 23, 2004, was received by the Illinois EPA on February 26, 2004. Citations in this
letter are from the Environmental Protection Act (Act) and 35 Illinois Administrative Code
(35
Ill.
Mm.
Code).
Pursuant to Section
57.7(c)(4)
ofthe Act and 35111. Adrn Code
732.405(c),
the plan is modified.
The following modifications are necessary, in addition to those provisions already outlined in
the plan, to demonstrate compliance with Title XVI ofthe Act and 35 Ill. Adm. Code 732:
1.
The Jilinois EPA requires 2 groundwater monitoring events after excavation activities
to assist in determining the institutional controls that may be required at the site. The
first sampling event should be conducted
3
months after excavation is complete. The
second sampling event should be conducted 6 months after excavation is complete.
2.
The Illinois EPA is modifying the proposed monitoring well network as follows:
MWI, MW5, MW6, MW8, MW9, MWIO, MW11, MWI 3, OMW1, OMW3 and
OMW4 are approved for 2 rounds ofgroundwater sampling. Sampling all monitoring
wells exceeds the minimum requirements to comply with Title XVI ofthe Act.
Please
note that for budgetary purposes, costs for 2 rounds of groundwater sampling at 11
• samples each have been included in the modificd
budget
listed in Attachincnt
A.
ROCIFORO 4302 North Main Slreet.
Rockiord,
IL 61103 — (615) 987-7760 • DES PLAIr~e5—9511 W. Harrison St.. Des Plaine~,II 60016 — (647~294-4000
ELOr.J — 595 South State. EI~in,IL 60123— (847) 608-31 31
•
PSORIA
—541S N. University St.. Peoria. IL ~161-i
—(309)
6935463
BLJtEAU Ot LANO,
PtO~IA
— 7620 N. University St., Peoria. IL 61614— (309) 693-5462 •
CMPAiC~—2125 SOUIh First Streel, Champaign, IL 61820 — (217) 27~i-5800
5”tiNcntlo — 4500 5, Sixth Street Rd., Springfield, IL 62706 (217) 786.6892 • CCLLI’ESVILLt — 2009 MaIl Strcct. Co)Iin,viIle, IL ~~34 — 1618) (4l~5120
M~ioN—2309W. Main St., Suite 116, Marion, IL 62959 —(6181 993-7200
•
EXHIBIT
A
Page 2
3.
Installing replacement monitoring wells in the areas ofMW2 and MW7 is denied, as
it exceeds the minimum requirements to comply Title XVI of the Act.
Please note that all activities associated with the remediation ofthi.s release proposed in the plan
must be executed in accordance with all applicable regulatory and statutory requirements,
including compliance with the proper permits.
In addition, the budget for the High Priority Correcti’~’eAction Plan is modified pursuant to
Section
57.7(c)(4) of
the Act and 35 fli. 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
Ill. Adm. Code 732.604, 732.606(s), and 732.611.
Please note that, if the owner or operator agrees with the Illinois EPA’s modifications, submittal
of an amended plan and/or budget, if applicable,
is not
required (Section
57.7(c)(4)
ofthe Act
axj,d
35
Iii. Adm. Code
732.503(f)).
Additionally, pursuant to Section
57.8(a)(5)
ofthe Act and
35 Iii. Adm. Code 732.405(e), if reimbursement will be sought for any additional costs that may
be incurred as a result of the Illinois EPA’s modifications, an amended budget must be submitted.
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.
All future correspondence must be submitted
to:
Illinois Environmental Protection Agency
Bureau
of
Land
-
~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
ofthis letter.
An underground storage tank system owner or operatormay appeal this decision to the Illinois
Pollution Control Board. Appeal rights are attached.
~HUL
~J’4
Page 3
If you have any questions orneed further assistance, please contact Carol Hawbaker at 217/782-
5713.
Sthcer~y,
~T~TVD
/1
jf,~.C~~~’/( ~
~.“
;0u4
~“H~happel,P.E.
‘~
~
Unit Manager
•_.~._
-~~=tJ
Leaking Underground Storage Tank Section
Division ofRemediation Management
Bureau ofLand
HAC:CLH
Attachment: A
C:
CW3M Company
Clay Faurot
—
Property Owner
•
Division File
Attachment A
Re:
LPC
~
0490205003
—
Effingham County
Edgewood / Keller Oil
Route 57
LUST Incident No. 991768
LUST Technical File
Citations in this attachment are from the Environmental Protection Act (Act) and 35 Illinois
Administrative Code
(35
Ill. Adm. Code).
SECTION 1
The budget was previously approved for:
• $9,475.00
Investigation Costs
$5,275.00
Analysis Costs
$ 19,085.50
Personnel Costs
$565.00
Equipment Costs
$1,703.48
Field Purchases and Other Costs
$1,671.58
Handling Charges
As a result ofthe Illinois EPA’s modification(s) in Section 2 ofthis Attachment A, the following
amounts are approved:
$5,095.00
Investigation Costs
S 12,727.00
Analysis Costs
$33,440.00.
Personnel Costs
$1,505.00
Equipment Costs
$418,690.40
Field Purchases and Other Costs
$13,531.66
Handling Charges
Therefore, the total cumulative budget is approved for:
$14,570.00
Investigation Costs
$17,547.00
Analysis Costs
$52,525.00
Personnel Costs
$2,070.00
Equipment Costs
$420,393.88
•
Field Purchases and Other Costs
$15,203 .24
Handling Charges
SECTION 2
1.
$898.00 for an adjustment in monitoring well replacement costs. These costs are for
activities in excess ofthose necessary to meet the minimum requirements ofTitle XVI of
the Act (Section
57.5(a)
ofthe Act) a~d
35
Ii!. Adm. Code 732 (Section
732.505(c)).
..S.
I
J~.~UJI.J!_~.J
(..Jy~’J
—
IHUS.
C_JO
•
~
4)
2004
Costs for corrective action activities and associated materials or services exceeding the
minimum requirements necessary to comply with the Act are not eligible for
reimbursement from the Fund
(35
Iii. Adm. Code 732.606(o)).
2.
$1,570.00 for an adjustment in Investigation costs. The Illinois EPA has determined that
these costs are not reasonable as submitted (Section
57.7(c)(4)(C)
ofthe Act and
35
Iii.
Adm. Code 732.606(lth)). One ofthe overall goals ofthe fmancial 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 arid/or supporting
documentation may be provided to demonstrate the costs are reasonable.
The following costs have been modified: monitoring well abandonment and groundwater
disposal.
3.
$575.00 for an adjustment in Soil PNA analysis costs. The Illinois EPA has determined
that these costs are not reasonable as submitted (Section 57.7(c)(4)(C) ofthe Act and 35
Ill. Adm. 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
11. Adm.
Code
732.505(c)).
Please note that additional information and/or supporting
documentation may be provided to demonstrate the costs are reasonable.
4.
$580.00 for costs that lack supporting documentation
(35
Iii. Adin. Code 732.606(gg)).
A corrective action plan budget for a site classified as high priority must include, but not
be limited to, an accounting ofall costs associated with the development,
implementation, and completion ofthe applicable activities (Section 57.7(c)(1)(B) ofthe
Act and 35 Iii. Adm. Code
732.405(b)).
Since there is no supporting documentation of
costs, the Illinois EPA cannot determine that costs will not be used for activities in excess
ofthose necessary to meet the minimum requirements ofTitle XVI ofthe Act. (Section
57.5(a)
ofthe Act arid 35 Iii. Mm. Code 732.606(o))
The following analysis costs have been deducted: element analysis and bc analysis for
soil and groundwater.
5.
$66,489.00 for an adjustment in consulting fees. The Illinois EPA has determined that
these costs are not reasonable as submitted (Section 57.7(c)(4)(C) ofthe Act and 35 Iii.
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 additional information and/or supporting
documentation may be provided to demonstrate the costs are reasonable.
6.
$352.00 for an adjustment in Equipment costs. The Illinois EPA has determined that
these costs are not reasonable as submitted (Section
57.7(c)(4)(C)
ofthe Act and
35
Ill.
Adm. 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. Adm.
Code
732.505(c)).
Please note that additional information and/or supporting
documentation may be provided to demonstrate the costs are reasonable.
r1~L..
I~(
The following items have been modified: PID rental and survey equipmentlmeasuring
wheel.
7.
$4.00 for an adjustment in disposable gloves. The Illinois EPA has determined that these
costs are not’ reasonable as submitted (Section
57.7(c)(4)(C)
ofthe 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 additional information and/or supporting documentation
may be provided to demonstrate the costs a.re reasonable.
8.
$49,l
8466 for
an adjustment in
excavation, transportation, disposal and
back.fil field
purchases. The Illinois EPA has determined that these costs are not reasonable as
•
submitted (Section
57.7(c)(4)(C)
ofthe
Act and
35 Iii. Adm. Code
732.606(hh)). One of
the 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
additional information and/or supporting documentation may be provided to demonstrate
the costs are reasonable.
9.
$227.80 for an
adjustment
in mileage. 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 of the 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 additional information and/or supporting documentation
may be provided to demonstrate the costs are reasonable.
10.
$15,940.00
for an adjustment in per diem and hotels. These’costs are for activities in
excess ofthose necessary to meet the minimum requirements of Title XVI of the Act
(Sectiàn
57.5(a)
of the Act) and 35 Ill. Adm. Code 732 (Section
732.505(c)).
Costs for
corrective action activities and associated materials or services exceeding the minimum
requirements necessary to comply with the Act are not eligible for reimbursement from
the Fund
(35
Ill. AUnt. Code 732.606(o)).
Based on proposed budgeted
trip mileage, it appears as though workers will be
commuting to the site daily. Therefore, per diem
and
hotel costs do not apply.
11.
$1,046.27 for an adjustment in handling charges. Handling charges are eligible for
payment only if they are equal to or less than the amount determined by the following
table (Section 57.8(g) of the Act and 35 Ill. Adm. Code 732.607):
Subcontract or Field
Eligible Handling Charges as a
Purchase Cost:
Percentage of Cost:
-
$0 -$5,000
12
$5,001 -$15,000
$600 plus 10 of amount over $5,000
$15,001
-
$50,000
$1,600 plus 8 ofamount over $15,000
$50,001
-
$100,000
$4,400 plus
5
of amount over $50,000
$100,001
-
$1,000,000
‘
$6,900 plus 2 ofamount over $100,000
Handling charges have been modified based on modifications made elsewhere in the
budget. In addition, the following items are stock items and not eligible for handling
charges: bailers, disposable gloves and bailing twine.
JR
FC
VT\TE5
I
•~, ?I1iF/~
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)
ofthe Act by filing a petition
for a hearing within
35
days after the date ofissuance 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 flhinois 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
3121814-3620
For information regardingthe 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
2171782-5544