•
RECE~VED
CLERK’S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE
OF ILLINOIS
JAN
~92005
Dorothy M.
Gunn, Clerk
Illinois Pollution Control Board
State of Illinois
Center
100 West Randolph Street
Suite
11-500
Chicago, IL
60601
PCB No.
05-73
)
(UST Appeal)
John J.
Kim
NOTICE
Assistant
Counsel
STATE OF ILLINOIS
PoHut~on
Control Board
Special Assistant Attorney
General
Division ofLegal 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 ofthe Clerk of
the Pollution Control Board a Petition for Review of Final 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
t~
I
~Th
/Cu~tisW. Martin, A~rneyfor
7/’
City of Sullivai~,,~2~fitioner
/
CITY
OF SULLIVAN,
)
)
Petitioner,
)
)
vs.
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
•
•
REC~JVED
LERK S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
JAN
192005
STATE OF ILLINOIS
CITY OF SULLIVAN,
)
POHUtIOn Control Board
)
Petitioner,
)
vs.
•
)
PCB No. 05-73
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
PETITION FOR
REVIEW
OF FINAL AGENCY
LEAKING
UNDERGROUND STORAGE TANK DECISION
NOW COMES the Petitioner,
City of Sullivan
(“Sullivan”), 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
5157.7(c)(4)(D)
and 40) and 35 Iii. Adm.
Code 105.400-412,
hereby requests that
the
Illinois Pollution
Control Board
(“Board”) review the final decision of the Illinois
Environmental
Protection Agency (“Agency”) in the above cause, and in support
thereof, Sullivan respectfully states
as follows:
1.
On September
13,
2004, the Agency issued a final decision to Sullivan,
a copy of which is attached hereto as Exhibit
A.
2.
On September
21,
2004,
Sullivan made a written request to the Agency
for an extension oftime
by which to file a petition for review to ninety days, a copy
of which is attached hereto
as Exhibit
B.
3.
On October
19,
2004, the Agency joined in Sullivan’s request that
the
Board extend the thirty-five
day period for filing
a petition
to ninety days, a copy of
which is attached
hereto as Exhibit
C.
4.
On November
4,
2004 the Board entered an Order extending the time
by which Sullivan could file a Petition to and including January
17,
2005, a copy of
which is attached hereto as Exhibit D.
5.
The grounds for the Petition herein are
as follows:
On July 20,
2004, Sullivan
submitted
to the Agency, through its
consultant, United
Science Industries,
Inc., an Amended High Priority
Corrective
Action Plan
and Budget
(“Amended Budget”).
The Agency, by its letter dated
September
13,
2004, rejected the Amended Budget which
sought approval of
$13,885.64 in total costs consisting of $6,808.00 in Investigation
Costs,
$218.00 in
Analysis
Costs, $1,320.00
in Personnel
Costs, $165.00 in Equipment
Costs,
$3,150.00 in Field Purchases and Other
Costs and
$2,224.64 in Handling
Charges.
This appeal stems from a June 3,
2004 settlement between Sullivan
and the Agency with regard to Sullivan’s site.
By that settlement,
the Agency
approved an additional
$12,278.40 in total costs.
In accordance with the settlement
agreement,
Sullivan submitted the present Amended Budget seeking approval of
the
costs
now rejected by the Agency.
In its letter, the Agency asserts that the
costs
sought
now to be approved in the Amended Budget were not a part of the June
3,
2004 settlement
agreement and Sullivan
agrees.
However,
the costs now sought
to
be approved were simply not included due
to oversight.
In addition, the Agency was
made aware, during settlement
negotiations,
and
by letter
from United Science
Industries,
Inc.
dated June
11,
2004, that approval of additional
costs would be
sought for which the Agency agreed would be requested by way of an Amended
Budget.
The costs
for which
Sullivan seeks approval now were incurred by
Sullivan
2
completely separately from the
costs included within the settlement
agreement.
Therefore,
Sullivan should not be precluded,
by the settlement agreement,
or any
other matter,
from seeking approval of these additional costs.
The Agency’s
rejection of these costs is arbitrary
and capricious.
WHEREFORE, Petitioner,
City of Sullivan,
for the reasons stated above,
requests that the Board reverse the decision of the Agency and rule in favor of
Petitioner’s request for approval of its Amended 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 Ill.
Adm.
Code
732.606(1).
Respectfully submitted,
SHAW & MARTIN, P.C.
Robert E. Shaw
ILARDC No.
03123632
Curtis W. Martin
IL ARDC
No. 06201592
SHAW
& MARTIN,
P.C.
Attorneys
at Law
123 5.
10th Street, Suite
302
P.O. Box
1789
Mt.
Vernon, Illinois
62864
Telephone (618) 244-1788
Curtis W. Martin, A
orney for
City of Sulliv~itioner
3
•~.,
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,
SUITE
11-300,
CHICAGO,
IL
60601, 312-814-6026
Roo
R.
BLAGOJEVICH,
GOVERNOR
RENEE CI~RIANO,DIRECTOR
217/782-6762
•
•
CERTIFIED
MAIL
7002
3150
0000
1113
6~12
City ofSullivan
Mr. Rick Bennett
2
West Harrison
1
4:
REC’O
Sullivan,
IL
61951
_________I
Re:
LPC
#1390305024
--
Moultrie County
•
Sullivanl City ofSullivan-Wyman Park
North Park Street
LUST Incident No. 20020216
LUST
Technical File
Dear Mr. Bennett:
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 July 20, 2004, was received by the Illinois EPA on July 21, 2004.
Citations in
this
letter are from the Environmental
Protection Act (A~t)
and
35
Illinois Administrative Code (35
Ill.
Adm.
Code).
The budget
is approved for the amounts listed in Section
1 ofAttachment A.
Please note that the
costs must be incurred in accordance with the approved plan. Be aware that the amount of
reimbursement 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), and732.611.
All future correspondence must be subm~Ued
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.
ROCEFORD
—4302 North
Main Slreet,
Rockford,
IL 61103
—
(815) 987-7760
•
DEs
PLAINES
—
9511 W.
Harrison
St.,
Des Plaines,
IL
60016
-.
(847) 294-4000
ELGIN
—595 South
State,
Elgin,
IL 60123
—
(847)
608-3131
•
PtORIA
—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)
I,
Iii
s
I
I
4—1618)
46-5120
MARION
—
2309
W.
Main
St.,
Suite
116,
Marion,
IL 62959 —(618)
~ ~
~4
PRINTED
ON
RECYCLED
PAPER
Page 2
If
you have any questions
or need further assistance, please contact Dave Myers at 217/785-7491.
Thomas A. H~
Unit Manager
Leaking Underground Storage Tank Section
Division ofRemediation Management
Bureau ofLand
TAH:DM:drm\HPam4BUDapp.doc
•
Attachment:
Attachment A
C:
United Science Industries, Inc.
Division File
I
Sincerely,
Attachment A
Re:
LPC
#1390305024
--
Moultrie County
Sullivan! City ofSullivan-Wyman Park
North Park Street
LUST Incident No. 20020216
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:
$10,986.55
Investigation Costs
$14,640.00
Analysis
Costs
$79,623.00
Personnel Costs
$28,252.00
Equipment Costs
$66,263.75
Field Purchases and Other Costs
$720.87
Handling Charges
The following amounts are approved as a part ofa settlement agreement dated June 3, 2004 with
the Illinois Environmental Protection Agency:
$195.00
Investigation Costs
$0.00
Analysis Costs
$3547.00
Personnel Costs
$1530.00
Equipment Costs
$7006.40
Field Purchases and Other Costs
$0.00
Handling Charges
The following amounts in this
budget an~endment
are not
allowed.
In accordance with Section
57.7(c)(4)
ofthe Act,
any action by the Illinois EPAto
disapprove or modify a plan or budget
submitted pursuant
to Title XVI ofthe Act shall be provided to the owner or operator in writing
within
120 days ofreceipt.
The Illinois EPA previously notified the owner or operator of its final action.
These amended
amounts were
not a part of the June
3,
2004
settlement agreement.
Further,
in accordance with
Section 57.7(c)(4) of the Act,
any action by the Illinois EPA to disapprove or modify a plan or
budget, or the rejection ofany plan or budget by operation of law,
shall be subject to appeal to
the Illinois Pollution Control Board within 35 days after the Illinois EPA’s final action.
$6808.00
Investigation Costs
$218.00
Analysis Costs
$1320.00
Personnel
Costs
$165.00
Equipment Costs
$3150.00
Field Purchases and Other Costs
$2224.64
Handling Charges
Therefore, the total cumulative budget is
approved for:
$11,181.55
Investigation Costs
$14,640.00
Analysis Costs
$83,170.00
Personnel Costs
$29,782.00
Equipment Costs
$73,270.15
Field Purchases and Other Costs
$720.87
Handling Charges
DM:drm\HPam4BIJDappA.doc
P.O.
Box
360
6295
East Illinois Highway
15
Woodlawn, Illinois 52898-0360
~Th~:
UNITED
SCIENCE
INDUSTRJES
Phone:
(518)
735—241)
Fax.
(618) 735-2907
E-Mail:
unitedsciencei~unitedscience
.com
Setcnib~
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.
2004
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i
RECEIVED
DivI&cn
of Legal
Couns~I
SEP
2
3
2004
Environmeflt&
Protection
Agency
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
CITY OF SULLIVAN,
V.
ILLII4OIS ENVIRONMENTAL
PROTECTION AGENCY,
Dorothy M. Gunn, Clerk
fllinois Pollution Control Board
James
R.
Thompson
Center
100
West
Randolph Street
Suite 11-500
Chicago, IL
60601
John
I.
~C~I
)
)
)
PCBNo.05-
(LUST Appeal
—
Ninety Day Extension)
Daniel
A.
King, Project Manager
United Science Industries
P.O. Box
360
6295
East fllinois Highway 15
Woodlawn, IL
62898-0360
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: October
19,
2004
Petitioner,
)
)
Respondent.
)
NOTICE
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.
Respecth.illy submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
EXHIBIT
~
ILLINOIS POLLUTION CONTROL BOARD
November 4, 2004
CITY OF
SULLIVAN,
)
)
Petitioner,
)
)
v.
)
PCB
05-73
)
(UST Appeal)
ILLiNOIS
ENVIRONMENTAL
)
(90-Day Extension)
PROTECTION AGENCY,
)
)
Respondent.
)
ORDER OF
THE
BOARD
(by J.P. Novak):
On October 21, 2004, the parties timely filed a joint notice to extend the 35-day period
within which City
ofSullivan may appeal a
September
13, 2004 determination of the Illinois
Environmental Protection Agency (Agency).
See 415
ILCS 5/40(a)(1) (2002);
35
Ill. Adm. Code
105.402,
105.406.
Because the postmark date of the joint request is within the time for filing, the
joint requestwas timely filed.
35 Ill. Adm. Code
lOl.300(b)(2),
105.404.
The Agency modified
petitioner’s high priority corrective actionplan budget for City of Sullivan’s leaking
underground petroleum storage tank facility located at North Park Street, Sullivan, Moultrie
County.
The Board extends the appeal period until January
17, 2005.’
See
415 ILCS
5140(a)(1)
(2002); 35 Ill. Adm. Code
105.406.
If City of Sullivan fails to
file an appeal on
or before that
date, the Board will dismiss this case and close the docket.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on November 4, 2004, by a vote of 5-0.
Dorothy M. Gunn,
Clerk
Illinois Pollution Control Board
‘The request was for January
18, 2005, which is beyond the time
allowed under the
Environmental Protection Act.
EXH~B~T
T
CERTIFICATE
OF SERVICE
I, the undersigned attorney at law, hereby certify that
on January
i/,
2005,
I served true and correct copies of a 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
of Illinois Center
Special Assistant
Attorney General
100 West Randolph Street
Division ofLegal Counsel
Suite
11-500
1021 North Grand Avenue, East
Chicago, IL
60601
P.O.
Box
19276
Springfield,
IL
62794-9276
for
Petitioner,
Sullivan
