RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AUG 12 2004
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE OF ILLINOIS
Pollution Control Board
Complainant,
v.
)
PCB No. 97-119
(Enforcement)
G & M TOTAL, INC., an Illinois
Corporation, GEORGE PAPAS,
individually and as President of
G & M TOTAL, INC.,
Respondents.
NOTICE OF FILING
TO: Bradley P. Halloran, Hearing Officer Mr. Thomas Davis
Illinois Pollution Control Board
2610 Sheridan Road
James R. Thompson Center
Suite 214
100 W. Randolph St., Suite 11-500
Zion, IL 60099
Chicago, Illinois. 60601
PLEASE TAKE. NOTICE that the Complainant, PEOPLE OF THE
STATE OF ILLINOIS, filed with the Illinois Pollution Control
Board, its Brief in Support of a Remedy,. Notice of Filing, and a
Certificate of Service, true and correct copies of which are
attached ~hereto and are hereby served upon you.
PEOPLE OF THE STATE OF ILLINOIS
Ex reT.
LISA MADIGAN, Attorney
General of the State of Illinois
BY:
THERINE A. KELLY
4~-
/~//
Assistant Attorney Gene al
Environmental Bureau
188 West Randolph, ~ Floor
Chicago, IL 60601
(312) 814-3153
Dated: August 12, 2004
THIS FILING IS SUBMITTED ON RECYCLED PAPER
REc~
C’ERK’5 OF~C~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AUG 12 2004
PEOPLE
OF THE STATE OF ILLINOIS,
STATE
OF ILLINOIS
PoIlut~onControl Board
Complainant,
v.
)
PCB No. 97-119
(Enforcement)
G & M TOTAL, INC., an Illinois
Corporation, GEORGE PAPAS,
individually and as President of
G & M TOTAL, INC.,
Respondents.
COMPLAINANT’S BRIEF IN SUPPORT OF A REMEDY
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN,
Attorney General of the State of Illinois, moves the
Illinois Pollution Control Board (“Board”) for the entry of an
order granting Complainant’s request for a remedy in the above-
referenced enforcement matter.
INTRODUCTION
On January 8, 1997, Complainant filed a two-count complaint
against Respondents alleging violations of Section 12(a) of the
Illinois Environmental Protection Act (“Act”), 415 ILCS
5/12(a) (1996), and Sections 731.160, 731.162 and 731.163 of the
Illinois Pollution Control Board Regulations (“Board
Regulations”), 35 Ill. Adm. Code 731.160, 731.162 and 173.163
(1996)
.
Specifically, the Complainant’s Complaint alleges water
pollution and failure to timely perform initial abatement
measures and site characterization following confirmation of a
petroleum release at their gasoline service station located at
2301 Sheridan Road, Zion, Lake County, Illinois
(“site”)
On December 1, 2003, Complainant filed its Motion for
Summary Judgment asking the Board to find that Respondents
violated Section 12 (a) of the Act, 415 ILCS 5/12 (a) (1996)
,
and
Sections 731.160, 731.162 and 731.163 of the Board’s Leaking
Underground Storage Tank (“LUST”) Regulations, 35 Ill. Adm. Code
731.160, 731.162 and 731.163, since Respondents have not
participated in litigation efforts nor settlement efforts to
resolve this case.
.
On March 4, 2004, the Board entered an Order finding
“...
that G&M and Papas violated Sections 731.162 and 731.163,
and in turn Section 731.160, of the Board’s UST regulations by,
respectively, not timely submitting a “20 day report” and “45
day report” to the Agency documenting initial response
measures.” (See p. 6 of the Board’s March 4, 2004, Order). The
Board found that genuine issues of material fact existed for the
alleged 12(a) violation and ordered the parties to proceed to
hearing regarding the 12(a) violation and any further relief.
(See P. 7-8 of the Board’s March 4, 2004, Order)
As the Board found that Respondents violated Sections
2
731.162, 731.163 and 731.160 of the Board’s UST regulations,
Complainant does not believe it is necessary to proceed to
hearing to determine liability for the alleged 12(a) violation
and instead prefers to seek a final remedy for the regulatory
violations
found and to present its remedy analysis in the form
of this brief.
CONSIDERATION OF SECTION 33(c) FACTORS
Section 33(c)of the Act, 415 ILCS 5/33(c) (2002), provides
as follows:
In making its orders and determinations, the
Board shall take into consideration all the
facts and circumstances bearing upon the
reasonableness of the emissions, discharges,
or deposits involved including but not
limited to:
1. the character and degree of injury to, or
interference with the protection of the health,
general welfare and physical property of the
people;
2. the social and economic value
of the
pollution source;
3. thesuitability or unsuitability of the
pollution source to the areas in which it is
located, including the question of priority
of location in the area involved;
4. the technical practicability and economic
reasonableness
of reducing or eliminating
the emissions, discharges or deposits
resulting from such pollution source; and
5. any subsequent compliance.
3
In response to these factors, Complainant states as
follows:
1. In regards to public impact, Complainant maintains
that Respondent’s failure to comply with the Act and Board
regulations denies the Agency and the public information that is
important to the control and regulation of UST5 in the State of
Illinois. The respondents did not promptly initiate remediation
of the known petroleum release which occurred at the Site
originally in 1991, thus threatening further migration of
contaminants. To date, Respondents have failed to completely
and adequately remediate the site fostering the continual
exposure of benzene, ethyl benzene, toluene and xylene to the
environment.
2. The pollution source is an abandoned underground
storage tank system (“UST system”) within an inoperable gasoline
service station and therefore is currently of minimal social and
economic benefit.
3. The source is located in a commercial area. and is
therefore suitable to the area in which it is located.
4. It was both technically practicable and economically
reasonable for the source to comply with the Board’s UST
regulations by immediately conducting initial abatement measures
4
and performing a site characterization in response to a known
petroleum release into the environment. There existed and
continues to exist a threat of soil and groundwater
contaminatidn resulting from the petroleum release which created
and continues to create a danger to human health and the
environment.
5.
.
On July 11, 1991, G & M Total, Inc. reported to the
Illinois
Emergency Management Agency (“IEMA”), formally known as
the Illinois
Emergency Services and Disaster Agency, a release
of petroleum from its UST system at the Site. On November .7,
1994, G & M Total, Inc. performed a subsurface soil boring for
the Site which produced further evidence of arelease of
petroleum. On November 7, 1994, G & M Total, Inc. reported to
the IEMA this further evidence of a release of petroleum at the
Site.
On May 17, 1996, Respondents performed their initial
release abatement measure by submitting their “20 day report” to
the Illinois EPA on that date. On March 27, 1996, Respondents
performed their site characterization
by providing their “45 day
report” to the Illinois EPA which the Agency received May 1,
1996. However, as of the date of filing this brief, benzene,
ethyl benzene, toluene and xylene continue to contaminate the
Site as a result of the July 11, 1991 release incident and the
5
November 7, 1994 release evidence incident. Since respondents
have failed to complete the corrective action necessary to
adequately address the remaining contamination at the Site, the
contamination remains a continuing threat to human health and
the environment.
CONSIDERATION OF SECTION 42 (h) FACTORS
Section 42(h) of the Act, 415 ILCS 5/42(h) (2002) provides:
In determining the appropriate civil penalty
to be imposed under subdivisions (a),
(b) (1), (b) (2), (b) (3) or (b) (5) of this
Section, the Board is authorized to consider
any matters of record in mitigation or
aggravation of penalty, including but not
limited to the following factors:
1. the duration and gravity of the
violation;
2. the presence or absence of due diligence on
the part of the violator in attempting to
comply with requirements of this Act and
regulations thereunder or to secure relief
therefrom as provided by this Act;
3. any economic benefits accrued by the
violator because of delay in compliance with
requirements;
4. the amount of monetary penalty which
will serve to deter further violations
by the violator and to otherwise aid in
enhancing voluntary compliance with
this ~ct by the violator and other
persons similarly subject to the Act;
and
5. the number, proximity in time, and gravity
6
of previously adjudicated violations of this
Act by the violator.
In response to these factors Complainant states as follows:
1. From July 11, 1991 to May 1, 1996, Respondents failed
to perform initial abatement measures in response to a known
petroleum release at the Site. From July 11, 1991 to May 1,
1996, Respondents failed to perform an initial site
characterization in response to a known petroleum release at the
Site. Respondents began to perform remedial measures in
response to the petroleum release six years subsequent to the
discovery of the release but to date have not addressed the
remaining contamination at the Site. To date, Respondents have
failed to demonstrate that they have provided adequate
protection for the human health of Illinois citizens and the
environment as a result of the July 11, 1991 petroleum release
incident and the November 7, 1994 petroleum evidence incident.
2. Respondents did not promptly initiate remediation of
the release, thus threatening further migration of benzene,
ethyl benzene, toluene and xylene to the environment.
Respondents began to perform remedial measures in response to
the petroleum release six years subsequent to the discovery of
the release. To date, Respondents have not addressed the
remaining contamination at the Site.
7
~3. Respondents realized a cost savings by not complying
with any of the applicable Board UST remediation regulations for
six years. However, any cost savings may be offset by the cost
of investigation and remediation to a larger area of petroleum
migration over time.
4. A civil penalty of Fifteen Thousand Dollars
($15,000.00) will serve to deter further violations and aid in
future voluntary compliance with the Act and Board regulations.
5. Respondents have no known previously adjudicated
violations of the Act or Board Regulations.
RELIEF
Respondents submitted to the Illinois EPA documentation
summarizing their initial release abatement actions, and data
regarding an initial site characterization six years subsequent
to the discovery of the petroleum release. However, the Site
continues to remain contaminated with petroleum which the Board
found released and again evidenced in 1991 and 1994,
respectively. (See p. 6 of the Board’s March 4, 2004, Order).
The Complainant’s January 8, 1997 Complaint requests not only
that the Board find Respondents liable for violations of the Act
and the Board’s LUST Regulations as a result of the petroleum
release, but further that the Board grant to the Complainant
8
civil penalties, a cease and desist order and any other relief
that the Board should deem appropriate and just.
The complainant respectfully requests that the Board grant
to it a civil penalty of Fifteen Thousand Dollars ($15,000.00)
against Respondents for violations of the Board’s LUST
Regulations, but declines to further seek an order requesting
that Respondents cease and desist from further violations of
those LUST Regulations that were the subject matter of the
January 8, 1997 Complaint.
However, Complainant does request that the Board grant to
it any such relief that the Board should deem appropriate and
just and respectfully requests that the Board deem it
appropriate and just to order the respondents to address the
remaining petroleum contamination at the Site by ordering the
following:
1. That within sixty (60) days of the entry of this
Order, Respondents shall submit to the State of Illinois, for
review and approval, a Site Investigation Plan for the
investigation of contamination on and off of the Site, including
a proposed schedule for implementation of the plan.
2. That the Illinois EPA shall review said Site
Investigation Plan for approval. If said Site Investigation
9
Plan is denied, the Respondents shall resubmit the plan within
thirty (30) days of receipt of the notice of denial from the
Illinois EPA and shall address all comments and denial points of
the Illinois EPA. If the Illinois EPA approves the Site
Investigation Plan, Defendant shall implement the approved plan
according to its terms, including any modifications as directed
by Illinois EPA, in accordance with the approved schedule for
implementation.
3. That within thirty (30) days of completion of the Site
Investigation Plan, Respondents shall submit a Site
Investigation Report to the Illinois EPA for review. Upon its
review of the Site investigation Report, if the Illinois EPA
determines that further investigation is necessary to fully
delineate the nature and extent of any on-site and off-site
contamination, the Illinois EPA shall advise the Respondents
that they must submit a Second Phase Site Investigation Plan for
additional investigation. The Respondents shall submit the
Second Phase Site Investigation Plan within thirty (30) days of
receipt of the Illinois EPA’s written determination that further
investigation is required. This investigation plan shall
include a schedule for its implementation.
10
4. That upon written approval by.the Illinois EPA of the
Second Phase Investigation Plan, the Respondents shall implement
the approved plan according to its terms, including any
modifications as direbted by Illinois EPA, in accordance with
the approved schedule for implementation. The Respondents shall
submit to the Illinois EPA a Second Phase Site Investigation.
Report within thirty (30) days of completion of the work under
the plan.
5. That if the Illinois EPA determines upon its review of
the. Second Phase Site Investigation Report that further
investigation is necessary to fully determine the nature and
extent of both on-site and off-site contamination, the Illinois
EPA shall advise the Respondents that they must submit a further
site investigation plan for a further phase of the
investigation. The procedures set forth in paragraphs 3 and 4
above shall govern any further phases of the investigation until
such time as the Illinois EPA advises. Respondents that the
results of the investigation have fully determined the nature
and extent of both on-site and off-site contamination.
6. .That within forty-five (45) days of receipt of the
Illinois EPA’s written determination that the results of the
investigation fully determine the nature and extent of
11
contamination, the Respondents shall submit a combined
Remediation Objectives Report (“ROR”) consistent with 35 Ill.
Adm. Code 740.445 and a Corrective Action Plan (“CAP”) in
accordance with 35 Ill. Adm. Code Part 731.166 for the
remediation of soil and groundwater contamination, both on and
off of Respondents’ site. The CAP shall include a schedule for
its implementation. Any off-site remediation objectives shall
meet Tier I residential remediation objectives unless the off-
site property owner(s) agree to place institutional controls or
use engineered barriers pursuant .to 35 Ill. Adm. Code 742 to
establish different remediation objectives. Any remediation
objectives exceeding Tier I residential remediation objectives
or that requires an institutional control or engineered barrier
requires the approval of the Illinois EPA. Nothing in this
Order shall be interpreted to require that persons that are not
a party to this Order must accept restrictions on the use of
their property.
7. That if the Illinois EPA disapproves the ROR and/or
CAP submitted in accordance with the immediately preceding
paragraph 6, the Respondents shall submit to the Illinois EPA a
modified document to address all of the Illinois EPA’s comments
within forty-five (45) calendar days of the receipt of the
12
disapproval letter, unless the Illinois EPA in its disapproval
letter grants a longer time period.
8. That upon written approval by the Illinois EPA of the
CAP, the Respondents shall implement the CAP in accordance with
its Illinois EPA-approved terms and schedules, including any
modifications as approved or directed by Illinois EPA, in
accordance with 35 Ill. Adm. Code 731.166(c).
9. That if the Illinois EPA approves with conditions any
of the documents described in paragraphs 1 to 8 above, the
Respondents shall implement the approved document subject to the
conditions or modifications contained in the documents in
accordance with the approved schedule for implementation.
Except as specified in paragraph 8 above, if the Illinois EPA
disapproves a document, the Respondents shall submit a modified
document addressing the comments and concerns of the Illinois
EPA within thirty (30) days of the receipt of the disapproval
letter.
10. That if at any time the Illinois EPA determines upon
its review of the progress of remediation that further
modifications to the CAP are necessary for achieving the
Illinois EPA-approved cleanup objectives, both on and off the
Site, the Illinois EPA shall advise Respondents in writing that
13
Respondents must submit a modified CAP within a specified time
period. Respondents shall submit the modified CAP within the
foregoing time period. The modified CAP shall include a
schedule for its implementation. Upon its approval, the
Respondents shall implement the modified CAP in accordance with
its Illinois EPA-approved terms and schedules.
11. That the Respondents shall give at least fourteen (14)
calendar days verbal and written notice to the Illinois EPA
prior to the initiation of any construction or implementation of
the CAP. Notice shall be directed to:
Lizz Schwartzkopf
Illinois Environmental Protection Agency
Leaking Underground Storage Tank Section
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
TEL: 217-524-8763
FAX: 217-524-4193
12. That within sixty (60) calendar days after achieving
the Illinois EPA-approved cleanup objectives approved in the
CAP, or such later time as specified by the Illinois EPA in
writing, the Respondents shall submit a Corrective Action
Completion Report, certified by a registered professional
engineer in Illinois, to the Illinois EPA. This report shall be
consistent with the requirements for a High Priority Corrective
Action Completion Report set forth under 35 Ill. Adm. Code
14
732.409. Upon receipt of the Corrective Action Completion
Report, the Illinois EPA shall, pursuant to Parts 731 and 742,
review and either approve or disapprove it in writing. The
Illinois EPA reserves the right to disapprove the Corrective
Action Completion Report if the Respondents have failed to
implement the plan of corrective action approved by the Illinois
EPA or if the Illinois EPA approved cleanup objectives set forth
in the approved Remediation Objectives Report have not been met.
13. That if the Illinois EPA disapproves the Corrective
Action Completion Report, the Respondents shall perform to
completion additional corrective action as necessary to satisfy
the Illinois EPA approved clean-up objectives within the time
frame set forth in the Illinois EPA’s notice of disapproval.
14. That the parties may, by mutual written consent,
extend any compliance date without leave of the Board. A
request for any modification shall be made in writing and
submitted to the contact persons identified in Section IX.H.
Any such request shall be made by separate document, and shall
not be submitted within any other report or submittal required
by this Order. Any such agreed modification shall be in writing
and signed by authorized representatives of each party.
15
15. Such other and further relief as this Board deems
equitable and just.
.
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA
MADIGAN,
Attorney General of the
State of Illinois
MATTHEW J.
DUNN,
Chief
Environmental Enforcement/
Asbestos Litigation Division
ROSEMARIE CAZEAU, Chief
Environmental Bureau
Assistant Attorney General
BY:
THERINE A.
9,4J2~&4
KELLY /
7
Assistant Attorney Gdneral
Environmental Bureau
188 W. Randolph St.
-
20th Fl.
Chicago, IL 60601
(312) 814-3153
16
CERTIFICATE OF
SERVICE
I,
KATHERINE A. KELLY,
an Assistant Attorney General, do
certify that I caused to be mailed this ~ day of August, 2004,
the foregoing BRIEF and NOTICE by first-class mail in a postage
prepaid envelope and depositing same with the United States
Postal Service located at 100 West Randolph Street, Chicago,
Illinois, 60601.
