RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AUG 262004
OF THE STATE OF ILLINOIS
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
STATE OF ILLINOIS
Pollution Control Board
Respondent.
)
NOTICE OF FILING
To:
John Kim
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE that Ihave today, August 24, 2004, filed with the Clerk
ofthe Illinois Pollution Control Board an APPEARANCE OF F. RONALDS WALKER,
a copy ofwhich is herewith served upon you through United States Mail return receipt
requested.
Respectfully Submitted,
PLEWS S ADLEY RACHER
&
BRAUN
F. Rona ds Walker, Atty No. 2922223
PLEWS SHADLEY RACHER
&
BRATJN
1346 N. Delaware Street
Indianapolis, Indiana 46202
Ph: (317) 637-0700
Fax: (317) 637-0712
JOHNSON OIL COMPANY, LLC,
Petitioner,
vs.
)
)
)
)
PCB No. 04-190
)
(LUST Appeal)
)
)
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’S OFFICE
OF THE STATE OF ILLINOIS
AUG 262004
JOHNSON OIL COMPANY, LLC
))
Pollution
STATE OF
Control
ILLINOIS
Board
Petitioner,
)
)
PCBNo.04-190
vs.
)
(LUST Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
ATTORNEY APEARANCE
F. Ronalds Walker an attorney with the law firm Plews Shadley Racher & Braun hereby
enters his appearance on behalf ofPetitioner, Johnson Oil Company, LLC.
Respectfully Submitted,
PLEWS SFIADLEY RACHER
&
BRAUN
F Ronal s Walker, Atty No 2922223
PLEWS SHADLEY RACHER
&
BRAuN
1346 N. Delaware Street
Indianapolis, Indiana 46202
Ph: (317)637-0700
Fax: (317) 637-0712
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on August 24, 2004, I served true
and correct copies ofthe Attorney Appearance, by placing true and correct copies in properly
sealed and addressed envelopes and by depositing said sealed envelopes in a U.S. mail box with
sufficient postage affixed thereto, upon the following named persons:
John Kim
Dorothy M. Gunn, Clerk
Assistant Counsel
Illinois Pollution Control Board
Special Assistant Attorney General
James R. Thompson Center
Division of legal Counsel
100 West Randolph Street
1021 North Grand Avenue East
Suite 11-500
P.O. Box 19276
Chicago, Illinois 60601
Springfield, Illinois 62794-9276
2
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~LERK’SOFFICE
OF THE STATE OF ILLINOIS
JOHNSON OIL COMPANY, LLC,
)
)
Petitioner,
)
)
)
ILLINOIS ENVIRONMENTAL
)
)
PROTECTION AGENCY,
Respondent.
PCB No. 04-190
(LUST Appeal)
AUG 26 2004
STATE OF ILLINOIS
Pollution Control Board
)
)
)
NOTICE OF FILING
To:
John Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE that I have today, August 24, 2004, filed with the Clerk
ofthe Illinois Pollution Control Board an MOTION FOR ADMISSION OF JOHN D.
MORIARTY COUNSEL PRO HAC VICE, a copy of which is herewith served upon you
through United States Mail return receipt requested.
Respectfully Submitted,
PLEWS SHADLEY RACHER
&
BRAuN
vs.
F. Ronalds Walker, Atty No.
PLEWS SHADLEY RACHER
&
BRAUN
1346 N. Delaware Street
Indianapolis, Indiana 46202
Ph: (317) 637-0700
Fax: (317) 637-0712
ECE VE~
BEFORE THE ILLINOIS POLLUTION CONTROL BOAl~ERKSOFFICE
OF THE STATE OF ILLINOIS
AUG 262004
JOHNSON OIL COMPANY, LLC,
)
STATE OF ILUNOIS
Petitioner,
)
)
Pollution Control Board
)
PCB No. 04-190
vs.
)
(LUST Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR
ADMISSION
OF JOHN D. MORIARTY AS COUNSEL
PRO HAC VICE
Counsel for Petitioner Johnson Oil Company, LLC (“Johnson Oil”), R. Ronalds Walker,
an attorney licensed to practice in the State ofIllinois, moves the Court for an Order of
Admission
Pro Hac Vice
ofJohn D. Moriarty, who is a duly licensed attorney in the State of
Indiana, to serve as counsel for Johnson Oil. An affidavit ofJohn D. Moriarty is attached to this
Motion as Exhibit A and is incorporated by reference.
Respectfully Submitted,
PLEWS SI-IADLEY RACHER
&
BRAuN
F. Ronalds Walker, Atty No. 2922223
PLEWS SHADLEYRACHER
&
BRAUN
1346 N. Delaware Street
Indianapolis, Indiana 46202
Ph: (317) 637-0700
Fax: (317) 637-0712
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on August 24, 2004, I served true
and correct copies ofthe Motion For Admission of Counsel
Pro Hac Vice,
by placing true and
correct copies in properly sealed and addressed envelopes and by depositing said sealed
envelopes in a U.S. mail box with sufficient postage affixed thereto, upon the following named
persons:
John Kim
Assistant Counsel
Special Assistant Attorney General
Division oflegal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
r
L
2
BEFORE THE ILLINOIS POLLUTION CONTROL
‘~SOFFICE
OF THE STATE OF ILLINOIS
AUG 262004
JOHNSON OIL COMPANY, LLC,
)
STATE OF ILLINOIS
Pollution Control Board
Petitioner,
)
)
PCB No. 04-190
vs.
)
(LUST Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
AFFIDAVIT
IN
SUPPORT OF MOTION FOR ADMISSION
OF JOHN D. MORIARTY AS COUNSEL
PRO HAC VICE
John D. Moriarty, being first duly sworn, upon oath, states as follows:
1.
I am a duly licensed attorney and counselor at law admitted to practice, and
currently in good standing, in the State of Indiana. My Indiana attorney identification number is
19202-49.
2.
I plan to appear as counsel or associate counsel in one other case pending in the
State of Illinois: Johnson Oil Company, LLC vs. Illinois Environmental Protection Agency,
PCB 04-183. I have not appeared in any other cases in the Courts or administrative agencies in
the State ofIllinois.
3.
I am familiar with the provisions ofthe Illinois Code ofCivil Procedure and the
Illinois Supreme Court Rules, and I understand and agree that I will be bound by them all in all
proceedings before the Illinois Pollution Control Board.
4.
In particular, I am familiar with Illinois Supreme Court Rule 137 relating to the
signing ofpleadings, motions and other papers and duties imposed upon litigants and counsel,
and I understand and agree that I will follow and be bound by the provisions ofsaid Supreme
Exhibit
A
Court Rule 137, and hereby submit myself to the jurisdiction of the court for any and all
proceedings.
John D. Moriarty
PLEWS SHADLEY RACHER
&
BRAUN
1346 N. Delaware Street
Indianapolis, IN 46202
Ph: (317) 637-0700
Fax: (317) 637-0713
STATE OF INDIANA
)
)SS:
COUNTY OF MARION
)
Subscribed and sworn before me this
___
day of 4J~jL4S
f,
2004.
I\~p~ary
Public
PrintedName
L ~1\occ~~
Commission Expires:(~S
122
/
d—1-
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
JOHNSON OIL COMPANY, LLC,
)
)
Petitioner,
)
)
)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
)
PCB No. 04-190
(LUST Appeal)
CLERK’S OFFICE
AUG 26 2004
STATE OF ILLI~’JOlS
Pollution Control Board
NOTICE OF FILING
To:
John Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE that I have today, August 24, 2004, filed with the Clerk
ofthe Illinois Pollution Control Board an AMENDED PETITION FOR REVIEW OF
FINAL AGENCY LEAKING UNDERGROUND STORAGE TANK DECISION a copy
ofwhich is herewith served upon you through United States Mail return receipt
requested.
Respectfully Submitted,
F. Ronalds Walker, Atty No. 2922223
PLEWS SHADLEY RACHER
&
BRAUN
1346 N. Delaware Street
Indianapolis, Indiana 46202
Ph: (317) 637-0700
Fax: (317) 637-0712
r
L
vs.
RACHER
&
BRAUN
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
AUG 26 2004
JOHNSON OIL COMPANY, LLC,
)
STATE OF ILLINOIS
Pollution Control Board
Petitioner,
)
)
PCBNo.04-190
vs.
)
(LUST Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
AMENDED PETITION FOR REVIEW OF FINAL AGENCY
LEAKING UNDERGROUND STORAGE TANK DECISION
Petitioner, Johnson Oil Company, LLC (“Johnson Oil”), pursuant to Sections 40(a)(1)
and
57.7(c)(4)(D)
ofthe Illinois Environmental Protection Act (415 ILCS
5/40(a)(1)
and
57.7(c)(4)(D)) and 35 Iii. Adm. Code 105.400-412, hereby requests that the Illinois Pollution
Control Board (“Board”) review the final decision ofthe Illinois Environmental Protection
Agency (“Agency”) in the above-referenced case. In support thereof, Johnson Oil respectfully
states as follows:
I.
Facts and Procedural History
1.
Johnson Oil formerly owned and operated a gasoline service station on property
located at 629 West Champaign Road, Rantoul, Champaign County, Illinois (the “Site”). On
August 2, 2000, Johnson Oil reported a release ofpetroleum ~tthe Site and the Site was assigned
Incident No. 20001456. Johnson Oil retained American Environmental Corporation (“American
Environmental”) to complete Site Investigation and Corrective Action, including preparation of
Site Investigation and Corrective Action Plans.
2.
On November 17, 2003, American Environmental submitted on behalf ofJohnson
Oil a High Priority Corrective Action Plan (“HPCAP”) and Budget for investigation to define the
extent ofcontamination and for a pilot study to evaluate the Method ofMulti-phase Extraction to
remediate contamination.
3.
On March 19, 2004, the Agency issued a Final Decision to Johnson Oil in which
the HP CAP was approved with modifications to the Budget, a copy ofwhich is attached hereto
as Exhibit A.
4.
On April 29, 2004, Johnson Oil made a writtenrequest to the Agency for an
extension of time by which to file a petition for review. The Agency joined in Johnson Oil’s
request that the Board extend the period for filing a Petition for Review by an additional ninety
days, a copy ofwhich is attached hereto as Exhibit B.
5.
On May 6, 2004 the Board entered an Order granting Johnson Oil an additional
ninety days, up to and including July 28, 2004 to file the Petition for Review. A copy ofwhich is
attached as Exhibit C.
6.
Johnson Oil filed its Petition for Review on or before July 28, 2004. On August
25,
2004 the Board entered an Order requiring Johnson Oil to file an Amended Petition for
Review accompanied by the appearance ofan attorney, or before September 4, 2004. A copy of
the Board’s Orderis attached as Exhibit D.
II.
The HPCAP and BudEet
Johnson Oil’s consultant, Simon P. Broomhead, P.G. of American Environmental,
prepared the November 17, 2003 HPCAP and Budget in accordance with the Environmental
Protection Act (“Act”) and regulations, in addition to generally accepted engineering practices.
Mr. Broomhead is a Licensed Professional Geologist with ten (10) years experience in the
environmental consulting industry. The HPCAP detailed the procedures necessary to define the
extent of residual contamination and evaluate the proposed method ofCorrective Action.
2
In accordance with 35 Ill. Adm. Code 732.404(f), the Budget included an estimate of all
costs associated with the implementation and completion ofthe Corrective Action Plan. The
budget also included personnel costs for activities which had been completed and for which
copies ofinvoices were provided to document such costs. These costs were reasonable and were
necessary to achieve the applicable remediation objectives, including the minimum requirements
for corrective action required under 35 Ill. Adm. Code 732.404 and 732.505. The personnel
activities included in the Budget consisted of:
•
Completion ofa geoprobe investigation to establish that contamination extends
off-site;
•
Obtaining and updating access agreements for neighboring properties;
•
Evaluation ofdata and Site conditions to determine the most effective and
economical method ofCorrective Action;
•
Preparation ofCorrective Action Plan and Budget;
•
Preparation ofreimbursement claims;
•
Completion ofadditional investigation, including soil and groundwater sampling;
and
•
Completion ofa pilot study to evaluate the method ofMulti-Phase Extraction for
the remediation of residual contamination.
III.
Budget Expenses That Were Improperly Disallowed
The Agency approved the HPCAP by letter dated March 19, 2004 to Johnson Oil.
However, the personnel costs in the associated budget were modified down to an unreasonable
level with no justification for the reductions. The Agency unjustifiably reduced the budget for
personnel costs from $34,239.25 to $9,100.00. Furthermore, the reduced personnel costs of
3
$9,100.00 did not even cover the $16,421.75 ofcompletedpersonnel costs for which
documentation was provided. The Agency’s reduction for personnel cost was without any
technical justification and was arbitrary and capricious.
The Agency deducted $1,453.00 for monitoring well, manway installation, and well
materials, alleging that the well and manway installation costs should be included with the
monitoring well installation materials. However, these same monitoring well and manway
installation costs were previously approved when presented in the Budget approved on October
31, 2001 for this Site. No details were provided for the deductions from the well installation
materials, except that they were unreasonable. The Agency’s reduction for monitoring well,
manway installation, and well materials was without any technical justification and was arbitrary
and capricious.
The Agency also deducted $36.00 for report shipping costs, alleging that these costs are
indirect corrective action costs charged as direct costs. The referenced costs were clearly
identified in the budget for the shipment ofrequired plans and claims to the Agency and are
therefore direct costs. The November 17, 2003 HPCAP and budget does not include indirect
costs, which would be such things as shipping costs for stock items, computer time, telephone
toll charges, etc. The Agency’s reduction for report shipping costs was without any technical
justification and was arbitrary and capricious.
Mr. Broomhead, other environmental consultants from American Environmental, and
other qualified experts will testify that the approved budget for the HPCAP is vastly below
industry norms, is not reasonable, and violates 35 Ill. Adm. Code Sections 732.505 and 732.605.
Moreover, the HPCAIP cannot be implemented with the unreasonably low budgetary amounts
approved by the Agency. The budget approved by the Agency is unreasonable, is arbitrary and
4
capricious, and does not account for the multiple investigations and corrective action activities
which were proposed in the approved HPCAP.
Furthermore, upon information and belief, Johnson Oil alleges that the Agency
improperly utilized certain rate sheets to reduce the budget. These rate sheets were not
promulgated pursuant to the Illinois Administrative Procedure Act (APA) and Illinois Ayers Oil
Company vs. IEPA, PCB 03-214. Thus, the budget approved by the Agency is invalid and is
arbitrary and capricious.
WHEREFORE, Petitioner, Johnson Oil Company, LLC, for the reasons stated above and
others that maybe discerned through the course of discovery, requests that the Board reverse the
Final Decision ofthe Agency and restore the above-referenced personnel, drilling, and field
purchase amounts as submitted in Johnson Oil’s Budget associated with the November 17, 2003
HPCAP and award consultant and attorney’s fees incurred pursuant to 415 ILCS
5/57.8(1)
and 35
Ill. Adm. Code 732.606(g).
Respectfully Submitted,
PLEWS SHADLEY RACHER
&
BRAuN
F. itonalds Walker, Atty ~o. 2922223
PLEWS SHADLEY RACKER
&
BRAuN
1346 N. Delaware Street
Indianapolis, Indiana 46202
Ph: (317) 637-0700
Fax:
(317) 637-0712
5
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on August 24, 2004, I served true
and correct copies ofthe Amended Petition For Review Of Final Agency Leaking Underground
Storage Tank Decision, by placing true and correct copies in properly sealed and addressed
envelopes and by depositing said sealed envelopes in a U.S. mail box with sufficient postage
affixed thereto, upon the following named persons:
John Kim
Dorothy M. Gunn, Clerk
Assistant Counsel
Illinois Pollution Control Board
Special Assistant Attorney General
James R. Thompson Center
Division oflegal Counsel
100 West Randolph Street
1021 North Grand Avenue East
Suite 11-500
P.O. Box 19276
Chicago, Illinois 60601
Springfield, Illinois 62794-9276
6
Exhibit A
e~,.
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 NORTH GRAND AVENUE EAST, P.O. Box 19276, SPRINGFIELD, ILLINOIS 62794-9276, 217-782-3397
JAMES R. THOMPSON CENTER, 100 WEST RANDOLPH, Surrt 11-300, CHICAGO, IL 60601, 312-814-6026
ROD R. BLAGOJEVICH, GOVERNOR
RENÉE CIPRIANO, DIRECTOR
217/782-6762
CERTIFIED MAIL
~4AR
19
2Ofl~
70D2 ~isu 0000 125S
~J4n
Johnson Oil Company ofIndiana
-
Jeffrey N. Bush
P.O. Box 347
Columbus, Indiana 47202
Re: LPC#0190655076--ChampaignCoi.inty
Rantoul/Johnson Oil Co.
629 West Champaign Road
LUST Incident No. 20001456
LUST Technical File
Dear Mr. ~ush:
‘The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the High Priority Site
Investigation Corrective Action Plan (plan) submitted forthe above-referenced incident. This information,
dated November 17, 2003, was receivedby the Illinois EPA on November 21, 2003. This document was
originally submitted as a High Priority Site Investigation Corrective Action Budget, however, due to
revisions madeto the plan, which was previously approved, it is considered aRevised High PrioritySite
Investigation Corrective Action Plan (plan). Citations in thisletter are from the Environmental Protection
Act (Act) and35 illinois Administrative Code (35 Ill.Adm. Code).
Pursuant to Seption
57.7(c)(4)
ofthe Act and
35
ill. Adm. Code 732.405(c), the plan is modified. The
modifications listed below are necessary, in addition to those provisions already outlined in the plan, to
demonstrate compliance with Title XVI ofthe Act and 35 Iii. Adm. Code 732. Please note that the
activities proposed in the plan are for investigative purposes only. Final approval forcorrective action
activities is cortingentuponthe submittal ofa High Priority Corrective Action Plan that documents the,
results ofthe proposedinvestigation, and satisfies the requirements set forth in Section 57.7(c)(l) ofthe Act
and 35 ill. Adm. Code 732.404. The required modification(s)is/are as follows:
Monitoring wells MW1O thru MW17 are only approved ifnecessary to define the plume. Specifically, if
the analytical results ofMW12 define the extentof contamination, then MW16 andMW17 would be
unnecessary and therefore ineligible forpayment. The same principal of plume definition would also
apply to all otherwells proposed in thisrevised plan (MW1O thru MW17).
In addition,the budgetforthe High Priority Site Investigation Corrective Action Plan is modified pursuant
to Section 57.7(c)(4) ofthe Act and 35 ill. Adm. Code 732.405(c). Based on the modifications listed in
Section 2 of Attachment A, the amounts listed in Section 1 ofAttaphment A are approved. Please note
that the costs must be incurred in accordance with the approvedplan. Be aware that the amount of
EXHIBIT
ROCKFORD —4302
North Main Street, Rockford, I
.~
‘
irrlson St., Des Plaines, IL 60016— (847) 294-4000
ELCIN — 595 South State, Elgin, IL 6(
t., Peoria, IL 61614— (309) 693-5463
BUREAU
OP
LAND - PEoRIA —7620 N. University St., Pe~
~uthFirst Street, Champaign, IL 61820 —(217) 278-S800
SPRINGFIELD
—4500 S. Sixth Street Rd., Springliel
‘all Street, Coliinsviile, IL 62234 —(618)346-5120
MARION
— 2iU~ VV. Main
St.,
Suite 116, Marion, IL 62959—
(618) 993-7200
PRINTED ON RECYCLED F’APER
Page 2
reimbursement maybe limited by Sections 57.8(e), 57.8(g) and
57.8(d)
ofthe Act, as well as 35 111. 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 ofan
amended plan and/or budget, if applicable, is not required (Section 57.7(c)(4) of the Act and 35 III. Adm.
Code 732.503(f)). Additionally, pursuant to Section
57.
8(a)(5)
of the Act and 35 Ill. Adm. Code
732.405(e), ifreimbursement will be sought for any additional costs that may be incurred as aresult
of
the~
Illinois EPA’s modifications, an amended budget must 1,e submitted.
NOTE: Amended plans andlor budgets must be submitted and approvedprior to the issuance ofa No
Further Remediation (NFIt) Letter. Costs associated with a plan or budgetthat have not been approved
prior to the issuance of an NFE. Letter will not be reimbursable.
Pursuant to 35 ill. Adm. Code 732.401, the site investigation results and a High PriorityCorrective Action
Plan demonstrating~compliance with the requirements set forth in Section 57.7(c)(1) ofthe Act and
35 Ill.
Adm. Code 732.404 must be submitted within
90 days of thedate
of this letter to:
illinois Environmental Protection Agency
Bureau ofLand
-
~24
Leaking Underground Storage Tank Section
1021 North Grand’Avenna East
Post Office
Box 19276
0
Springfield, IL 62794-9276
0
Please submitall correspondence in duplicate and include the Re: block shown at the beginning ofthis
letter.
0
An underground storage tank systeni owneroroperator may appeal this decisionto the Illinois Pollution
Control Board. Appeal rights are attached:
Ifyou have any questions orneed further assistance, please contact Lizz Schwartzkopf at
217/557-8763.
Chappel,P.E.
Unit Manager
Leaking Underground Storage Tank Secti~a
Division ofRemediation Management
Bureau ofLand
-
HAC:LS
.
.
.
~0
Attaöhment:
.
AttachmentA
0
,
~
. .
.
~-
C: .. .
American Environmental
:
: :
0
IDivision File.
.
..,
‘.
.
,..
0
•~.•
0
,
0
0
Attachment A
Re:
LPC#0190655076 —Champaign County
Ranto~il/JohnsonOil Co.
.
0
0
0
629 West Champaign Road
LUST Incident No. 20001456
0
-.
.
LUST Technical File.
. , ;.
• .
0
0
Citations in this attachment are from the Environmental ProtectiOn Act (Act) and 35 lll~nojs
Administrative Code
(35
Iii. Adm. Code).
0
SECTION 1
-
0
The budget was previously approvedfor:
$6,436.20
Investigation Costs.
0~
0
0
-
$1,015.00
Analysis Costs
0
0
$9,256.00’
Personnel Costs
$375.00
Equipment Costs
$682.05
Field Purchases and Other Costs
0
$858.62
Handling Charges
As aresult ofthe Illinois EPA’s modification(s) in Section 2 ofthis Attachment A, the followi~ig
amounts are approved:
0
0
‘• •
$7,836.98
.
Investigation Costs
0
$2,505.00
Analysis Costs
0
0
$9,100.00
0
Personnel Costs
0
0
0
$725.00
Equipment Costs
$7,974.36
Field Purchases and Other Costs
$1,832.06
Handling Charges
Therefore, the total cumulative budget is approved for:
$14,273.18
Investigation Costs
0
$3,520.00.
Analysis Costs
0
$18,356.00
Personnel Costs
$1,100.00
Equipment Costs
$8,656.41
Field Purchases and Other Costs
$2,690.68
Handling Charges
‘
SECTION 2
,
1. $1,453.00 foran adjustment in Monitoring Well and Manhole installation, $2,498.00 for an
adjustment in Personnel costs previously deducted as unreasonable, $1,832.00 for an
adjustment in Pilot Study Personnel costs, $20,809.25 for an adjustment in Personnel costs,
for site investigation costs, $15.00 for an adjustment in Digital Camera costs, $10.00’ for an
adjustment in Developmetit pump costs, $135.68 foran adjustment’in Nitrile glove costs,
$109.50 for an adjustment in mobilization costs forpersonnel from Indianapolis forPilot
Study, and $6.49 for an adjustment in mileage costs due to incorrect rate. The Illinois EPA
has determinedthat 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 assocIatedwith mát~rial~,’a~tiviti~s;and serviO’~are reas~mable
(35
Iii.
Adni; Cod~732
505(c)).
~teasenete that additional’info±iiiafion’and/or-supporting
dOcumentationmay be provided to deinonsfrate the costs are r~i~á.bl~’
Well/manhole installation cost shotild‘be included with the monitoring well installation
materials. In addition the monitoring well installation materials listed on page E-2 Ofthe
budget are unreasonable.
The Personnel cost deducted from the previous budget remain unreasonable.
Personnel costs for the Pilot Study were considered separately from the previous personnel
costs (listed above) and the personnel costs for site investigation activities (listed below).
Personnel costs forthe final HPCAP and budget should be included with the plan and budget
and will be addressed at that time. These costs should not be included with the additional site
investigation. The personnel costs forthe site investigation activities ‘include costs for the
installation and development ofthe wells and interim report ofthe ‘findings ofthe
•
investigation. The pilot study costs were not incinided in this amount
2.
$36.00 forreport shipping costs(FedEx). Indirect corrective’ action costs forpersonnel,
materials, service, or equipment charged as direct costs are
ineligible for payment from
the
Fund
(35
111. Adm. Code 732.606(v)).
3.
$61.62 for an adjustment in handling charges. Handling charges are eligible forpayment
only if they are equalto orless than the amount determined by the following table (Section
57.8(g~oftheAct and 35 111.
Adm.
Code 732.607):
Subcontract or Field
Eligible Handling Charges as a
Purchase Cost:
Percentage ofCost:
$0-$5,000
12
$5,001
-
$15,000
‘
$600 plus 10 ofamount over $5,000
$15,001 -$50,000
$1,600 plus 8 ofamount over $15,000
$50,001
-
$100,000
$4,400 plus 5 ofamount’over $50,000
$100,001
-
$1,000,000
$6,900 plus 2 ofarnountover $100,000
This amount
reflects and adjustment due to a calculation error
and a reduction due to the
removal ofineligible shipping costs. The calculation error appears to be the application of
10 to the amount over $15,000 as apposed to 8.
0
,
‘HAC:LS
•
Appeal Rights
An
underground storage
tank owner or operator may appeal this final decisionto
the
Illinois Pollution
Control Board pi~rsuant.toSections 40 and 57.7(c)(4)(D).ofthe Act by.‘filing a petition for a hearing within
3~days afterth~dateofi~suanceof.the final de~ision1-.However, the.35-day.period n~a~ibeextended for a
period oftn-ne not to exceed 90 daysby written notice fr9~nthe owner or operator and the illm9ls EPA
within the initial 35-day appeal period Ifthe owner oroperator wishes to receive a 90-day extension, a
writtenrequest that includes a statement ofthe date the final decisionwas reoei~ed,along with a copy of
this decision, must be sent to the Illinois EPA as soon as possible.
For informationregarding the filing ofan appeal, please contact:
0
DorothyGunn, Clerk
Illinois Pollution Control Board
O
State ofillinojs Center
100 West Randolph, Suite 11-500
Chicago, IL 60601
312/814-3620
For information regarding’the filing ofan extension, pleasecontact:
illinois Environmental Protection Agency
‘
‘
‘
Division ofLegal Counsel
“
0
, ,
•
,
-
‘,
1021 North GrandAvenue East
,
-
“Pó~tOffice BO* 19276’
‘0’’’’
- -
“ S
...:-,,‘
~‘ ‘~‘
‘: •
‘ ‘
‘‘ •
‘~‘ •“
‘~
‘Springfield, IL 62794-9276’
•~‘‘
‘‘,‘“‘,,‘~“,‘~
•
‘ • ‘
•
.•~‘
‘
217/782-5544
‘
‘‘:“
‘ - -- -.
‘O,
,
‘
Exhibit B
0~-)
BEFORE
THE
POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
JOHNSON
OIL
COMPANY,
)
Petitioner,
)
-
y.
)
PCBNo.04-
ILLINOIS ENVIRONMENTAL
)
(LUST
Appeal
-
Ninety
Day
Extension)
PROTECTIONAGENCY,
)
•
.
Respondent.
)
0
REQUEST FOR‘NINETY DAYEXTENSION
OF
APPEAL
PERIOD
NOW COMES
the Respondent,
th~
Illinois Environmental Protection Agency (“Illinois
EPA”), by one ofits attorneys, John I. Kim, Assistant Counsel and Special Assistant Attorney
General, and, pursuant to Section 40(a)(1) of the Illinois Environmental Protec ion Act
(415
ILCS
5/40(a)(1))
and
35
Ill., Adni Code 105.208, hereby requests that the Illinois Pollution
Control Board (“Board”) grant an extension of the thirty-five
(35)
day period for petitioning for a
hearing
to July 28,, 2004,
or any other date not more than a total of one hundred twenty-five
(125)
days from the date ofthe Illinois EPA’s final decision. Insupport thereof the Illinois EPA
respectfully states as follows:
‘
0
1.
On
Mardh 19, 2004, the Illinois EPA issued a final decision to the Petitioner.
-
(Exhibit A)
2.
On
April 27, 2004, the Petitioner made a writtenreque~tto the Illinois EPA for an
extension ofthne by which to file a petition for review, asking the illinois
EPA
join in requesting
that the Board extendthe thirty-five day period for filing a petition to ninety days. The Petitioner
represented that the final decisionwas received on March
25,
2004. (Exhibit B)
3.
•
The additional time requested by the parties may eliminate the need for a hearing
in this matter or, in the alternative, allow the parties to identify issues and limit
the scope of
any
hearingthat may
be
necessary to’resolve this matter.
I
WHEREFORE, for the reasons stated above, the parties request that the Board, in the
interest of administrative and judicial economy, grant this request for a ninety-day, extension of
the thirty-fiveday period forpetitioning fora hearing.
Respectfully submitted,
.
,
0
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Assistant Counsel
Special Assistant Attorney General
Division
of
Legal Counsel
1021 North GrandAvenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: April 29, 2004
This filing submitted
on
recycled paper.
1
2
CERTLFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on April 29, 2004, I served true and
correct copies of a
REQUEST FOR NINETY DAY EXTENSION OF APPEAL PERIOD, by
placing true and correct copies in properly sealed and addressed envelopes and by depositing
said sealed envelopes in a TJ.S. mail drop box located within Springfield, Illinois, with sufficient
First Class Mail postage affixedthereto, upon the followingnamedpersons:
DorothyM. Gnnn, Clerk
Simon P. Broomhead., P.G.
Illinois Pollution Conirol Board
American Environmental Corp.
James B.. Thompson Center
3700 West GrandAvenue
100 West Randolph Street
,
SuiteA
Suite 11-500
Springfield, IL 62707
Chicago, IL 60601
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
~oent’
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
,
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Exhibit C
ILLINOIS POLLUTION CONTROL BOARD
May 6, 2004
JOHNSON OIL COMPANY,
Petitioner,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD (by12. Novak):
)
)
)
)
)
)
)
)
)
)
PCBO4-190
(UST Appeal)
(90-Day Extension)
•
On May 3, 2004, the parties timely filedajoint notice
to
extend the 35-day period within
which Johnson Oil Company may appeal.a March 19, 2004 detemthiation ofthe Illinois
Envirorimental’Protection Agency
(Agency).
See 415
ILCS
5/40(a)(1)
(2002);
35
Lii. Adm.
Code
105.402,
105.406.
Becausethe postmarkdate ofthe joint request is within the time for filing, the
joint request was timely filed. 35111. Mm. Code l01.300(b)(2),
105.404.
The Agency approved
petitioner’s high priority site investigation corrective action plan, with modifications,, for
Jobnson
Oil
Company’s leaking underground petroleum storage tank facilitylocated at 629 West
Champaign Road, Rantoul, Champaign County. The Board, extends the appeal period until
July
28, 2004, as
the parties request.
See
415 ILCS
5/40(a)(1)
(2002);
35
Iii. Adm. Code
105.406. IfJohnson Oil Company fails to filean appeal on orbefore that date, the Board will
dismiss this case and close the docket.
0
ITISSOORDERED.
I,’DorothyM. Gunn, Clerk ofthe Illinois Pollution Control Board, certify that the Board
adoptedthe above order on May 6, 2004, by a vote of
5-0.
Dorothy M. Gunu, Clerk
Illinois Pollution Control Board
m
0~
—1-
C
ILLINOIS POLLUTION CONTROL BOARD
August
5,
2004
JOHNSON OIL COMPANY,
)
)
Petitioner,
0
)
)
v.
)
‘PCB04-190
)
(UST Appeal)
ILLINOIS
ENVIRONMENTAL
00
)
PROTECTION AGENCY,
•
0
)
-
)
0
Respondent.
0
)
ORDER OF THE BOARD (by LP. Novak):
0
0
On May 6, 2004, the Board,
atthe
parties’ request, extended until July 28, 2004, the time
period withinwhich Johnson Oil Companymight appeal a March 19,2004 detemaination. ofthe
Illinois Environmental Protection Agency (Agency).
See
415 ILCS
5/40(a)(1)
(2002);
35
111.
Adm. Code 105.406. The Agency modified petitioner’s revised high priority site investigation
corrective action planfor Johnson Oil Company’s leaking ‘underground petroleum storage tank
facilitylocated at 629 S. Champaign Road, Rantoul, Champaign County.
• ‘On July 30, 2004, Johnson Oil Companyfiled a petition asking the Board
to review the
0
•,
Agency’s determination. Johnson Oil Company appeals on the
grounds, among others, that the
plan.rnodifications ~approvedby the Agency arc unreasonable,
arbitrary, and ôapdcious~
Because the
postmark
date ~fthe
petition is withinthe time for filing, the Boaid’accêpts
this matter as timely filed. 35 Ill. Adni. Code l0l.300(b)(2), 105.404. But, the petition signed
by DickJohnson on behalf of Johnson Oil Company does not identify him as an attorney, but
only as “Managing
Member” of “Johnson Oil Company, LLC.” The
~
procedural rules
•
incorporate the requirementunder Section 1 ofthe Illinois Attomey.Act
(705
ILCS 205/1
(2002)) and
Section 1 ofthe
Corporation Practice ofLaw Prohibition Act
(705
ILCS 220/1
(2002)), that anyone other than. an individual “must appear through-an attorney-at-law licensed
-
and registered to practice law.”
35
IlL Adm. Code 101,400(a)(2). Ifhe is not an attorney, Dick
• Johnson cannot represent JohnsonOil Companyin this proceeding.
See 35
111.
Adm. Code
101.400(a)(2).
On or before September 4,2004, Johnson Oil Company must file an amended petition for
review accompanied by the appearance ofan attorney. Ifan amended petition accompanied by
an. attorney’s appearance is not timely filed, this petition will
be
dismissed. :The filing .ofan
amended petition will iestart the Board’s decision deadTh e.
See 35
Ill. Mm. Code 105.114(b).
2
ITISSOORDERED.
0
0
I, DorothyM. Gtmn, Clerk ofthe Illinois Pollution Control Board, certify that the Board
adopted the above order on
August
5,
2004,
by a vote of4-0.
Dorothy M. Gnnn, Clerk
Illinois Pollution Control Board
