BEFORE THE POLLUTION
CONTROL BOARD
OF THE
STATE OF ILLINOIS
MAC’S CONVENIENCE STORES,
LLC,
Petitioner,
V.
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY.
Dorothy M.
Gunn, Clerk
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Respondent.
)
)
)
)
RECE~VE D
CLERK’S OFFICE
DEC
162004
)
STATEOFILLINDIS
Pollution
Control Board
PCBNo.05-
)
)
(LUST Appeal
—
Ninety Day Extension)
NOTICE
Kenneth M. Miller
American Environmental Corporation
3700 West Grand Avenue
Suite A
Springfield, IL
62711
PLEASE
TAKE NOTICE that
I have
today filed
with the
office of
the
Clerk
of the
Pollution
Control Board a REQUEST FOR NiNETY DAY EXTENSION OF APPEAL PERIOD,
copies of which
are herewith served upon you.
Respectfully submitted,
ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
John J.
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021
North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: December
14, 2004
RECEfl/ED
CLERK’S OFFICE
BEFORE THE
POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
DEi~
STATE OF ILLINOIS
MAC’S
CONVENIENCE STORES, LLC,
)
Pollution
Control Board
Petitioner,
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
REQUEST
FOR
NINETY
DAY EXTENSION
OF APPEAL PERIOD
NOW
COMES the Respondent, the
Illinois
Environmental Protection
Agency (“Illinois
EPA”), by
one of its
attorneys, John J.
Kim,
Assistant Counsel
and
Special
Assistant Attorney
General,
and,
pursuant
to
Section
40(a)( 1) of the
Illinois
Environmental
Protection
Act
(415
ILCS
5/40(a)(1))
and
35
Ill.
Adm.
Code
105.208,
hereby requests
that
the
Illinois
Pollution
Control Board (“Board”) grant an extension ofthe thirty-five
(35)
day period for petitioning for a
hearing
to
March
17,
2005,
or any other date not
more than a
total of one
hundred twenty-five
(125)
days from the date of service of the Illinois
EPA’s
final decision.
In support thereof, the
Illinois EPA respectfully states as follows:
1.
On November
10,
2004,
the Illinois EPA issued
a final decision to
the Petitioner.
(Exhibit A)
2.
On November
24, 2004,
the Petitioner made a written request to the Illinois EPA
for an
extension of time
by which
to
file a petition for review, asking the Illinois
EPA join in
requesting that
the Board
extend the thirty-five day period
for filing
a petition
to
ninety days.
The earliest the final decision could have been served upon the Petitioner was on November
12,
2004 (as November 11, 2004 was a State and Federal holiday).
(Exhibit B)
PCB No.
05-
(LUST Appeal
—
Ninety Day Extension)
1
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 ofany
hearing that may be necessary to resolve this
matter.
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-five day period for petitioning
for a hearing.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
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)
Dated: December
14, 2004
This
filing
submitted on recycled paper.
2
2177829807
NOU—24—2004
11:30
217782980?
~
09/13
11/23/2004
23:24
2175859518
AEC
PAGE
09/13
ILLINOIS
ENViRONMENTAL
PROTECTION
AGENCY
1021
NORTH GRANd
AVEI’JUE
EAST,
P.O.
Box
19276,
SPRINcFIELD,
ILLINOIS
62794-9276, 217-782-3397
JAMES
R.
THOMI~ON
CENTER,
100 WEST
RANDOLPH, SuITr
11
.~300,
CFIIcAcio,
IL
60601, 312-814-6026
ROD
R.
BLMOJEVICH,
GOVERNOR
RENEE
CIPRIANO,
DlR~cToR
217/782-6762
MW
~O
Mac’s Convenience Stores, LLC
Attention:
Matt MeCure
Post
Office Box 347
Columbus, IN
47202
Re:
LPC #1970155005--Will
County
Braidwood/Mac’s Convenience
Stores
105
South Front Street
LUST Incident No.
20031894
LUST FISCAL FILE
Dear Mr. McCure:
TheIllinois Environmental Protection Agency has completed the review ofyour application for.
payment from the Underground Storage Tank Fund for the above-referenced LUST incident
pursuant to Section 57.8(a) ofthe Illinois Environmental Protection Act (Act), and 35
111. Adm.
Code 732,
Subpart F.
This information is dated July
15,
2004 and was received by the Agency
on July
16, 2004.
The application for payment covers
the period from January
9.
2004 to
May 28, 2004.
The amount requested is $8,787.43.
The deductible amount for this claim is
S 15.000.00, which was previously deducted from the
billing submittal received by the Agency on
June4, 2004 for $43,750.1 I.
There are costs from
this claim that are not being paid.
Listed in Attachment A are the costs that are not being paid
and the reasons these costs are not being paid.
On July
16, 2004, the Agency received your complete application for payment for this claim.
As
a result ofthe Agency’s review ofthis
application thr payment,
a voucher cannot be prepared for
submission
to the Comptroller’s office forpayment.
Subsequent applications for payment that
have been/are submitted will be processed based upon the date complete subsequent application
for payment requests
are received by theAgency.
This constitutes the Agency’s final
action with
regard to the above application(s) for payment.
An underground
storage tank owner oroperator may appeal
this final decision to the Illinois
Pollution Control Board (Board) pursuant to Section
57.8(i)
and Section 40 ofthe Act by filing
a
petition for a hearing within35 days after~ihe
date of issuance of the final decision.
However,
the 35-day period maybe extended
for a period oftime not to exceed 90 days by
written notice
from the owner oroperator and the Illinois EPA within the initial 35-day appeal period.
Ifthe
—
4302
Nnrlh
Main Street.
RocLujrcj,
II. 61103
.
1815j 9
—-
-
Harrusc,n
SI.,
De~i
Plainer..
IL
6(1016
—
l847j
294~i1011
ELcIIN
—595
South Slate,
Elgin,
IL 60123
—
1847i
wIN-.
SI.,
Perri~i,
iL
61614—
131)91 693 ~463
8UREA&.
OF LAND
.
PEoRIA
—
7620 N.
University 51, Peoria.
1161614—
(31
South Fir~I
SIrvel,
Champaign.
IL
6182(1
—
12171 2711.511110
—4500
5. Sixth
Slr~-ei
Rd.
Springfield,
IL 6270c.
—
121,
MaIl
hlr~WI,
CnIIinwiIl~,
IL
622
1.1
-
161 RI
346-5120
—
23119 W. Main
I 993.72011
NOU—24--2004
11:30
217782980?
217782980?
P.10/13
11/23/2004
23:24
2175859518
AEC
PAGE
10/13
Page 2
applicant
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, Jllinois 60601
312/814-3620
For information regarding the filing ofan extension, please contact:
Illinois Environmental Protection Agency
Division of Legal Counsel
1021
North Grand Avenue East
Springfield, Illinois 62794-9276
217/782-5544
Ifyou have any questions or require
further assistance, please contact Doug Tolan of my
staff
andlor
tin Schwartzkopfat
217/782-6752.
Don
E.
Oakley, Manager
LUST Claims Unit
/
Planning
& Reporting Section
Bureau ofLand
DEO:DT:jk\040642 .doc
Attachment
.
cc:
American Environmental Corporation
NOU—24—2004
11:30
2177829807
2177829807
P.11713
11/23/2004
23:24
2175859518
AEC
PAGE
11/13
Attachment A
Technical Deductions
Re:
LPC
#1 970155005
--Will
County
\BraidwoodlMacs Convenience Store
105
South Front Street
LUST Incident No- 200318941
LUST Fiscal File
Citations in this attachment are
from and the Environmental Protection Act (Act) and 35 Illinois
Administrative
Code (35 Ill. Adm.
Code).
J.tem #
Description ofDeductions
-
1.
52.992.56, deduction for costs that lack supporting documentation
(35
Iii. Adrn.. Code
732.606(gg)).
Since there is no supporting
documentation of costs, the
Illinois EPA cannot
determine that costs were not used for activities in excess ofthose necessary to meet
the
minimum requirements of Title
XVI oftheAct (Section
57.5(a)
ofthe Actand 35 Dl. Adm.
Code 732.606(o)).
Documentation ofmeasurements/methods used to confirm the release have not been provided.
In addition,
the release has not been demonstrated to be from the USTs.
Please note these costs are also deducted for additional
reasons listed below.
Only one
deduction was made.
2.
$2,992.56, deduction for costs in which the owner oroperator failed to justify that
all costs
were attributable to each
Lmderground
storage tank at the site.
(Section 57.8(m)(2) ofthe Act
and 35
TIl
Mm
Cnde 717.
6flR)
A determination ofwhich USTs are related to this release has
notbeenmade.
Illinois EPA
cannot determine the eligibility ofthese costs without this information.
This reason would also
apply to other costs submitted in relation to this incident.
3.
$2,992.56,
deduction for costs, for corrective action activities for underground storage tanks for
-
which the owner or operator was deemed ineligible
to access the Fund (Section 57.8(m)(l)of
•
the Mt and 35
Dl.
Adm. Code 732.608).
Six ofthe nine USTs on-site have been determined ineligible to access the LUST Eund.
All
costs related
to
this incident maybe
ine1ig~b1eif the r*~e ~
~p1~~inn~
fn he frnm the
ineligible USTs, or costs may
be required to be prorated according to established procedures.
4.
$2,992.56, deduction for costs associated with sites that have not reported a release to the
Illinois Emergency Management Agency (IBMA) or are not required to report a release to
IEMA
(35
III. Adm. Code 732.606(x)).
An owner or operator is eligible
to access the Fund if
the
owner or operator notificd the
IEMA of a confirmed release and the costs were incurred
after the notification was made (Section
57.9(a)(5)
of the
Act).
NOLJ—24—2004
11:30
217782980?
217782980?
P.12/13
11/23/2004
23:24
2175859519
AEC
PAGE
12113
Page2
Ifthe spills and/or
overuills were less than the required quantity,
a reporting ofa release would
not have been required.
ifthe spills and/overfills were equal to or greater than the required quantity a release
may not
havebeen reported in the required time frame.
Either casemay affect the eligibility of
the release/incident to access the UST Fund.
(Please
see 41 IAC Part 170.)
5.
52,992.56,
deduction for costs related to activities, materials, or services not necessary to stop,
minimize, eliminate, or clean up a release ofpetroleum or its effects in accordance with the
minimum requirements ofthe Act and regulations
(35
Ill.
Adm. Code 732.606(y)).
These costs
are not corrective action costs.
“Corrective action” means an activity associated with
compliance with the provisions ofSections 57.6 and 57.7 of the Act (Section 57.2 ofthe Act
and
35
Ill. Adm. Code 732.103).
One ofthe eligibility requirements for accessing the Fund is
that
costs are associated with
“corrective action” (Section 57.9(a)(7) of the Act and 35 Ill. Adm.
Code 732.505(c)).
Without additional information, Illinois EPA cannot determine if these costs exceed minimum
requirements.
‘
,•
-
6.
52,992.56, deduction for costs ofalternative technology that exceed the costs ofconventional
technology
(35
Ill. Adm. Code 732.606(bh)).
These costs are for activities in excess of those
•
necessary to meet the minimum requirements ofTitle XVI ofthe Act (Section 57.5(a) ofthe
Act and 35
III. Adm.
Code 732.606(o)).
Without additional information, Illinois EPA cannot determine ifthese costs exceed minimum
requirements.
7.
52,992.56,
deduction
forcosts due to excessive early action
activities.
(Section
57.6(b)
of the
Actand
35111.
Adm.
Code 732.606(o))
8.’
512.75, deduction for Ace Hardware receipt #007)7849 21. These items
do not appear to be
related to the work at the site and also appear to exceed the minimum requirements.
9.
$860.75,
deduction
for costs associated with concrete and/or asphalt replacement.
The
lllinois
EPA
will only reimburse concrete and/or asphalt replacement once for this occurrence.
Until
the above-referenced site has received a No Further Remediation
Letter, the Illinois EPA
cannot determine if these costs are unreasonable or if they are for activities in excess of those
necessary to meet theminimum requirements ofTitle XVI ofthe Act, since at this time it is
unclear whether additional remediation
may be required.
(Sections
57.5(a)
and 57.7(c)(4)(C)
-
ofthe Act;
35111. Adm.
Code 732.505(c) and
732.606(o))
Once the above-referenced site has received a No Further Remediation Letter, a resubmission
with additional information of the costs associated with concrete and/or asphalt replacement (as
well as any supporting documentation, including
a copy ofthe No Further Remediation Letter)
may be submitted to the Illinois EPA.
NOL)—24—2004
11:30
21??82980?
21??82980?
P.13/13
11/23/2084
23:24
2175859518
AEC
PAGE
13113
Page 3
10.
The hilling(s) submitted includes áosts that lack supporting documentation.
Since there is no
supporting documentation of costs, the Illinois EPA cannot determine that the costs were not
used for activities
in excess of
those necessary to meetthe
minimum requirements of Title XV1
of the Act (Section
57.5(a)
ofthe Act and 35
III. Adm. Code 732.606(o)).
HAC:LS
TOTAL
P.13
NOU—24—2004
11:30
21??82980?
21??82980?
P.08,13
11/23/2804
23:24
2175859518
AEC
PAGE
@8/13
_____
American
~
En’~AmnmentaI
Pro
$pring~1ieid
Regional
Office
VIA FACSIMILE (217-782-9807)
illinois
Environmental Protection Agency
Attu: JohnKim
•
November 24, 2004
Division ofLegal Counsel
1021
North Grand Avenue East
P.O.Box 19276
-
Springfield,
IL
62794-9276
Re:
Requestfor Extension for Petitioningthe IPCB
LIt #1970155005 ~-Wil1
County
Mac’s Convenience Store #186-Braidwood/Mac’s
Convenience Stores LLC
105
South Front
Street
-
LUST Incident No. 20031894
American Environmental Project
Number 237021
Dear Mr. Kim
Mac’s
Convenience Stores
LLC
(“Mac’s”),
requests
that
the
Illinois
Environmental Protection
Agency
(“Agency”)
join them in
requesting a 90-day extension to the 35-day deadline for filinga
petition
for a
hearing befbre the illinois Pollution Control Board (“PCB”).
This requestis being
made to preserve Mae’s
right
to
appeal
the Agency decision
contained in a November
Ii,
2004
letter
regarding a July
15,
2004
application for payment
from the
Underground
Storage Tank
Fund forthe abovereferencedLUST incident. A copyofthe Agency
letter
is
attached.
The
additional
lime
is
needed
for
the Agency to review
additional information
submitted
November
11,
2004
by
American
Environmental
and
reconsider
their
deductions
to
the
application
amount.
It
appears
the
reasons for
the deductions are
similar
to the reasons stated in
the Agency’s October 21, 2004
letter
for
rcj
toting
the Site
Investigation
Plan.
Ifnecessary, we
will participate
in a teleconference and/or meetwith the
Agency in an effort
to resolve the
issues
without the need to submit a formal petition request.
Please
take
the necessary
action to
file
this
extension
request
before
the
35-day
appeal
time
expires
on December
J
5,2004.
If you
need additional
information, please advise.
Sincerely,
RICAN
ONMENTAL CORPORATION
1~M.ill,,.E.,
P.O.
RegionalManager
~:
Kovin Merritt, Mac’s Convcnience Stores LLC
Jacob Smith (cover lctter only)
Enclosure
Corporate
Office
Regional
Office
•
EXHIBIT
8500
Georgetown
Road
3700 ¼!.
Grand
Ave. 8th.
A
I
Indienapofls,
Indiana
46260-1 647
Springfield.
IL
62711
317.871-4090
217-585-9517
317-871.4054
Fax
217-585-9518
Fex
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby
certify
that
on
December
14,
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 U.S. maildrop box located within Springfield, Illinois, with
sufficient First Class Mail postage affixed thereto, upon the followingnamed persons:
Dorothy M. Gunn, Clerk
KennethM. Miller
Illinois Pollution Control Board
American Environmental Corporation
James R. Thompson Center
3700 WestGrand Avenue
100 WestRandolph Street
Suite A
Suite 11-500
Springfield, IL 62711
Chicago, IL 60601
~LINO
ENVIRONMENTAL PROTECTION AGENCY,
Assistant Counsel
Special AssistantAttorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
