BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
NOV 012004
WISEMAN/PJ’S SHORTSTOP,
)
)
Petitioner,
)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
PCBNo.05-il
(UST Appeal)
Respondent.
)
NOTICE
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
John J. Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, IL 62794-9276
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of
the Pollution Control Board a Petition for Review ofFinal Agency Leaking
Underground Storage Tank Decision, a copy of which is herewith served upon you.
Robert E. Shaw
IL ARDC No. 03123632
Curtis W. Martin
IL ARDC No. 06201592
SHAW & MARTIN, P.C.
Attorneys at Law
123 S. 10th Street, Suite 302
P.O. Box 1789
Mt. Vernon, Illinois 62864
Telephone (618) 244-1788
By~
urtis W. Marti Attorney for
~Wiseman/P~rtstop,
Petitioner
RECE~VED
CLERK’S OFFICE
vs.
STATE OF ILLINOIS
Pollution Control Board
)
)
)
)
RECE~VED
CLERK’S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
NOV
111
2004
OF THE STATE OF ILLINOIS
PollutionSTATE
OFControlILLINOISBoard
WISEMAN/PJ’S SHORTSTOP,
)
)
Petitioner,
)
)
vs.
)
PCBNo.05-
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR REVIEW OF FINAL AGENCY
LEAKING UNDERGROUND STORAGE TANK DECISION
NOW COMES the Petitioner, Wiseman/PJ’s Shortstop (“Wiseman”), by one of
its attorneys, Curtis W. Martin of Shaw & Martin, P.C., and, pursuant to Sections
57.7(c)(4)(D) and 40 of the Illinois Environmental Protection Act (415 ILCS
5/57.7(c)(4)(D) and 40) and 35 Ill. 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 cause, and in support
thereof, Wiseman respectfully states as follows:
1.
On September 29, 2004, the Agency issued a final decision to Wiseman,
a copy of which is attached hereto as Exhibit A.
2.
The grounds for the Petition herein are as follows:
Wiseman submitted to the Agency, through its consultant United
Science Industries, Inc., an Amended High Priority Corrective Action Plan (“CAP”)
and corresponding budget (“Budget”) dated August 18, 2004. The CAP requires the
full extent ofthe soil and groundwater contamination to be defined by means ofthe
collection of sufficient data to make such determination. The CAP and Budget
satisfy the requirements of the Illinois Environmental Protection Act, 415 ILCS 5/1
et seq.,
and the regulations promulgated thereunder, in that they were prepared and
fully implemented in accordance with generally accepted engineering practices and
their conclusions were consistent with the information obtained while implementing
the CAP.
The costs associated with each material, activity and service necessary to
accomplish the goals of the CAP were reasonable and consistent and were incurred
in the performance necessary to meet the minimum requirements of the Act and the
regulations promulgated thereunder. Further, the costs associated with each
material, activity, and service necessary to accomplish the goals of the CAP are
similar in generally accepted engineering practices and technical protocol to those
historically submitted to and approved by the Agency which the Agency now deems
to be unreasonable and inconsistent with generally accepted engineering practices.
More specifically:
By its September 29, 2004 letter, the Agency modified the Budget,
relying upon Section 57.7(c)(4) and 35 Ill. Adm. Code 732.405(c) for such
modification. By the modification, the Agency did not approve $321.00 in additional
investigation costs, $500.00 of additional analysis costs, $26,060.00 in personnel
costs, and $2,770.00 in additional equipment costs. The Agency did approve
$1,900.00 ofthe additional personnel costs requested, all of an additional
$13,136.00 in field purchases and other costs requested, and all of an additional
2
$1,233.60 in handling charges requested. In summary, of the $45,920.60 additional
monies requested by Wiseman, the Agency approved only $15,269.60 and
disapproved $30,751.00.
The reasons provided by the Agency for not approving the additional
$30,751.00 of investigation costs, analysis costs, personnel costs and equipment
costs were that such costs were inconsistent with the associated technical plan as
amended by the Agency under 35 Iii. Adm. Code 732.505(c). The Agency, however,
has failed to provide specific reasons why it deems such costs to be inconsistent with
the associated technical plan, or how they fail to meet the minimum requirements
of 35 Iii. Adm. Code 732.403 or 404, despite Wiseman’s justifications submitted to
the Agency by USI letter dated August 18, 2004. USI’s letter provides a cost
breakdown for each of the tasks associated with the corrective action.
Essentially, Wiseman underestimated the time and costs associated
with the corrective action phase and requested by the amended plan and budget
additional monies to reimburse the costs to be incurred by Wiseman, particularly
the time spent by USI in responding to Agency requests. The additional personnel
costs include the time associated with preparing additional supporting
documentation for the justification ofthe use of chemical oxidizing compound
(“COC”) on the floor ofthe excavation at the site, and for the applicability ofinjected
COC which was previously approved in the CAP. The additional personnel costs
also include preparation and revision ofthree (3) amended budgets with separate
justifications and special supporting documentation in response to Agency requests.
3
The additional personnel time further includes field work for the COC injection
along with obtaining Illinois Department of Transportation and Agency permits.
All of the personnel time was reasonable time spent by USI’s environmental
specialist and professional engineer. The Agency requirements to which Wiseman
responded were above and beyond what the Agency has normally requested and the
multiple responses were ultimately extremely time consuming. The cost breakdown
also appears on the form G-1 submitted to the Agency.
Wiseman also proposed asphalt. replacement as an engineered barrier.
This would require some asphalt removal, soil excavation and additional asphalt
placement in light of the soil data provided to the Agency which reflects
contaminants above inhalation and Tier 1 objectives. The additional personnel
monies requested by Wiseman also include project manager tasks of groundwater
modeling and corrective action completion report preparation.
Finally, the Agency, also without reason, did not approve of $321.00
associated with the investigation costs, $500.00 for analytical costs, or $2,770.00 in
equipment costs associated with a geoprobe, groutpump, cargo trailer and utility
vehicle. The equipment was to be used in connection with corrective action COC
injection. The Agency’s failure to approve these and the other costs proposed by
Wiseman in the Amended High Priority Corrective Action Plan and Budget is
arbitrary and capricious and does not serve the Act’s purpose of protection of the
environment. The Agency’s decision of September 29, 2004 should therefore be
reversed.
4
WHEREFORE, Petitioner, Wiseman/PJ’s Shortstop, for the reasons stated
above, requests that the Board reverse the decision ofthe Agency and rule in favor
of Petitioner’s request for approval ofits Amended High Priority Corrective Action
Plan and Budget as being reasonable, justifiable, necessary, consistent with
generally accepted engineering practices, and eligible for reimbursement from the
UST Fund and that Petitioner recover its attorney’s fees and costs incurred herein
pursuant to 415 ILCS 5/57.8(1) and 35 Iii. Adm. Code 732.606(g).
Respectfully submitted,
SHAW & MARTIN, P.C.
By/C~i~tis
/~L~ó~D
W.Martin,.~I~orneyfor
/
Wiseman/PJ’s Shfrtstop,
(
Petitioner
Robert E. Shaw
ILARDC No. 03123632
Curtis W. Martin
IL ARDC No. 06201592
SHAW & MARTIN, P.C.
Attorneys at Law
123 S. 10th Street, Suite 302
P.O. Box 1789
Mt. Vernon, Illinois 62864
Telephone (618) 244-1788
5
O
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
(021 NORTH GRAND AVENUE EAST, P.O. Box 1 9276, SPRINGFIELD, ILLINOIS 62794-9276, 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
CERTIFIED MAIL
SEP2S2CD~
?DOE 31S0 0000 1113 649?
Patrick Wiseman
RR 3, Box 23 1A
Chrisman,IL 61924
Re:
LPC #0450105003
--
Edgar County
Chrisman’PJ’s Shortstop
IL Route 1 & US Highway
36
LUST Incident No.
990254 &
922728
LUST Technical File
Dear Mr. Wiseman:
The Illinois Environmental Protection Agency (Illinois EPA)
has
reviewed the High Priority
Corrective Action Plan Budget (budget)submitted for the above-referenced incident. This
budget, dated August 18, 2004, was received by. the Illinois EPA on August 31,2004. Citations
in this letter are from the Environmental Protection Act (Act) and 35 Illinois Administrative
Code
(35
Iii. Adm. Code).
The budget is modified pursuant to Section
57.7(c)(4)
of the Act and 35 Ill. Adin. Code
732.405(c). Based on the modifications listed in Section 2 ofAttachment A, the amounts listed
in Section 1 ofAttachment 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)
of the Act, as well as 35 Ill. Adm. Code 732.604,
732.606(s), and 732.611.
All future correspondence must be submitted to:
Illinois Environmental Protection Agency
Bureau ofLand
-
#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
of this letter.
ROCKFORD
•
—4302 North
Main
Street, Rockiord, IL 61103 —
.
(815) 987-7760
~ DES PLAINES —9511
W. Harrison
EXHIBIT
St., Des Plaines, IL 60016—1847)
~
294-4000
ELGIN
—595
South State,
Elgin, IL 60123— (847) 608-3131
•
PEORIA
—5415 N.
University
St., Peoria, IL 61614— (309) 693-5463
BUREAU OF LAND
-
PEORIA
—7620 N. University St., Peoria, IL 61614— (309) 693-5462 •
CHAMPAIGN
—2125
South First
Street, Champaign, IL 61820— (217) 278-5800
SPRINGFIELD
—4500 S. Sixth Street Rd., Springfield, IL 62706— (217) 786-6892
•
COLLINSVILLE
— 2009 Ma)) Street, Co(linsville, IL 62234— (618) 346-5120
MARION
—2309 W. Main St., Suite 116, Marion, IL 62959 — (618) 993-7200
0....-.,
Page 2
•
An underground storage tank system owner or operator may appeal this decision to the Illinois
Pollution Control Board. Appeal rights are attached.
Ifyou have any questions or need further assistance, please contact Scott Rothering at 2 17-785-
1858.
Sincerely,
Clifford L. Wheeler
UnitManager
•
•
•
Leaking Underground Storage Tank Section
Division ofRemediation Management
-
Bureau ofLand
CLW:SRR\990254
•
.
Attachment: Attachment A
Appeal Rights
C:
United Science Industries
Division File
•
4,
•
.
.
Attachment A
Re:- LPC # 0450105003
--
Edgar County
ChrismanfPJ’s Shortstop
•
IL Route 1 & US Highway 3.6
LUST Incident No.,990254 & 922
LUST Technical File
Citations in this, attachment are from the Environmental Protection Act (Act) •and
35
Illinois
Administrative Code
(35
Iii. Adm. Code).
SECTION 1
•
•
The budget was previously approved for:
$10,373.00
Investigation Costs
$12,195.00
Analysis Costs
$89,409.00
‘
Personnel Costs
$33,339.50
Equipment Costs
$80,135.85
Field Purchases and Other Cost~
$2,183.89
Handling Charges
The following amounts are approved:
$0
•
Investigation Costs
$0
Analysis Costs
$1,900.00
.
Personnel Costs
‘$0
Equipment Costs
$13,136.00
Field Purchases and Other Costs
$1,233.60
Handling Charges
Therefore, the total cumulative budget is approved for:
$10,373.00
Investigation Costs
$12,195.00
Analysis Costs
$91,309.00
Personnel Costs
$33,339.50
Equipment Costs
$93,271.85
Field Purchases and Other Costs
$3,417.49
Handling Charges
SECTION 2
1.
$321.00 for an adjustment in Investigation Costs. These costs are
inconsistent with the
associated technical, plan. One of the overall goals ofthe financial review is to assure
that costs associated with materials, activities, and services shall be consistent with the
“associated technical plan (35 Ill. Adm. Code
732.505(c)).
2.
•
$500.00 for an adjustmentin Analysis Costs. These costs are inconsistent with the
associated technical plan. One ofthe overall goals ofthe financial review is to assure.
-
that costs associated with materials, activities, and services shall be consistent with the
associñted technical plan
(35
Iii. Adm. Code
732.505(c)).
3.
$26,060.00 for an adjustment in Personnel Costs. These costs
are
inconsistent
with
the
• associated technical plan. One ofthe overall goals ofthe financial review is to assure
that costs associated with materials, activities, and services shall be consistent with the
associated technical plan
(35
Iii. Adm. Code’
732.505(c)).
4.
$2,770.00 for an adjustment in Equipment Costs. These costs are inconsistent with the
associated technical plan. One ofthe overall goals ofthe financial review is to assure
that costs associated with materials, activities, and services shall be consistent with the
associated technical plan
(35
Ill. Adm. Code
732.505(c)).
F
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)çD)
ofthe Act by filing a petition
for a hearing within 35 days after the date ofissuance ofthe final decisiori. 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 Illinois EPA within the initial -35-day appeal period. Ifthe 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 of this 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 ofIllinois Center’
100 West Randolph, Suite 11-500
‘
•
Chicago, IL ~0601
312/814-3620
For information regarding the 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
‘
217/782-5544
F
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby
certify
that on
~2~4-~-
~
2004, I served true and correct copies ofa 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 drop box located within Mt. Vernon, Illinois, with sufficient Certified
Mail postage affixed thereto, upon the following named persons:
Dorothy M. Gunn, Clerk
John J. Kim
Illinois Pollution Control Board
Assistant Counsel
State ofIllinois Center
Special Assistant Attorney General
100 West Randolph Street
Division of Legal Counsel
Suite 11-500
1021 North Grand Avenue, East
Chicago, IL 60601
P.O. Box 19276
Springfield, IL 62794-9276
torney for
Petitioner, Wi~PJ’s
Shortstop
