A&R, INC.,
BEFORE THE POLLUTION CONTROL BOARD
JAN 192005
OF THE STATE OF ILLINOIS
STATE OF ILUNOIS
P~Jl~tj~~Control Board
)
Petitioner,
)
vs.
)
PCBNo. 05-
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
NOTICE
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 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
A & R, Inc.,
for
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on January
he’,
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
Li
~rney for
Petitioner, A &
BEFORE THE POLLUTION CONTROL BOARD
JAN 192005
OF THE STATE OF ILLINOIS
STATE OF ILLINOIS
POllution Control Board
A&R,INC.,
)
)
Petitioner,
)
)
vs.
)
PCBNo.05-
1
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR REVIEW OF FINAL AGENCY
LEAKING UNDERGROUND STORAGE TANK DECISION
NOW COMES the Petitioner, A & R, Inc. (“A & R”), by one ofits 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 Ill. 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, A & R
respectfully states as follows:
1.
On December 27, 2004, the Agency issued a final decision to A & R, a
copy of which is attached hereto as Exhibit A.
2.
The grounds for the Petition herein are as follows:
On September 15, 2004, A&R, through its consultant, United Science
Industries, Inc., submitted a High Priority Corrective Action Plan and Budget and
supplemental information at various times thereafter (hereinafter referred to as
“Amended Plan” and “Amended Budget”). By its letter of December 27, 2004, the
Agency modified the Amended Plan to reduce the total cubic yards of soil for
excavation, removal, and disposal by 343.78 cubic yards, a reduction of 37.76
percent of the total cubic yards proposed by A & R to be effected. The Agency
correspondingly adjusted the Amended Budget’s field purchases and other costs by
37.76 percent, or $26,471.06. A & R does not contest this adjustment due to the
direct correlation between the reduced scope of the excavation, transportation and
disposal and the field purchases associated therewith. A & R does contest, however,
the Agency’s further adjustment in personnel costs of $6,012.52 representing the
same 37.76 reduction in scope.
Page G-1 ofA & R’s Amended Budget reflects 40 hours of
Environmental Technician time associated with on-site activities during the
excavation, transportation and thsposal of the contaminated soil. Environmental
Technician time is the only time that would actually be directly affected by the
Agency’s reduction of the scope of work because it is the Environmental Technician
who is on-site during such activities. Moreover, the Agency’s reduction of soil
excavation, transportation, and disposal would equate to one day’s time, or eight (8)
hours, ofthe Environmental Technician’s time. At $53.00 per hour for the
Environmental Technician’s time, a reasonable adjustment in personnel costs would
be approximately $425.00 directly associated with the Agency’s reduction in the
scope of the work.
The Agency’s adjustment, however, correlates a 37.76 percent
reduction in overall personnel costs without regard to the task proposed to be
performed. The fact that less soil will be affected does not automatically mean the
same corresponding reduction in personnel time associated with professional
2
oversight, Agency and client correspondence, and report preparation, to name a few
activities. The Agency’s adjustment in the personnel time simply has no correlation
to the actual reduction that should be associated with the reduced soil excavation,
transportation and disposal. The Agency’s adjustment in personnel costs is
therefore arbitrary and capricious.
WHEREFORE, Petitioner, A & R, Inc., 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 personnel costs within the Amended High Priority
Corrective Action Plan and Budget as being reasonable, justifiable, necessary,
consistent with generally accepted engineering practices, and eligible for
reimbursemçnt 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 35111. Adm. Code
732.606(1).
Respectfully submitted,
SHAW & MARTIN, P.C.
By
~
~
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
A & R, Inc.,
for
~ner
3
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 NORTH GRAND AVENUE
EAST,
P.O.
Box 19276,
SPRINGFIELD, ILLINOIS 62794-9276, 21 7-782-3397
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
QEC
27
2flN~
7002 ~150 0000 1105 5541
A & R, Inc.
Mr. Avery Moore
________
6229 West Ogden Avenue
Berwyn, IL 60402
r
E
C 2 8 REC’U
Re:
LPC #0310215104-- Cook County
~
Berwyn! A & R, Inc.
.~ ‘=~—===~
6229 West Ogden Avenue
LUST Incident No. 981412
LUST Technical File
Dear Mr. Moore:
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 September
15,
2004, was received by the Illinois EPA on September 20, 2004.
Supplemental information was received October 8, 2004, October 27, 2004 and December 10,
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) 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 of Attachment 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
Sectior~s57.8(e),
.57.8(g)
and 57~8(d)of the Act; as well as 35 III. 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.
‘X(FORO —4302 North Main Slreet. Rockford, IL 61103— (315) 987-7760
•
DEs PLAINE5 —9511 W. Harrison St., Des Plaines, IL 60016 —(847) 294-4000
ELaN — 595 Soulh Slate, Elgin, IL 601 23— (847) 608.3131
•
PEORIA — 5415 N. University Si, Peoria, IL 61614 —(309) 693-5463
LANO - PEORIA — 7620 N. Universily St., Peoria, IL. 61614 — )3C’9) 693.5462
•
CI-i’1~4PA,CN— 2125 Soulh First Street, Champaign, IL 61820— (217) 278-5800
‘~FIELD—4500 S. Sixth Street Rd., Springfield, IL 62706 —(217) 786.6892
•
COLLINSVIILE —2009 MalI Street, CollinsviUe, IL 62234 —(618) 346.5120
MARION —2309 W. Main St., Suite 116, Marion, )L 62959 —(618) 993-7200
~
IB~~r
A
¶.
.
Pst”.rw 0”, RECYCLED PAPER
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 Dave Myers at 217/785-7491.
Sincerely,
Thomas A. H~
Unit Manager
Leaking Underground Storage Tank Section
Division of Remediation Management
Bureau of Land
TAH:DM:dmi\HPamBIJDmod3 .doc
Attachment: Attachment A, Appeal Rights
c:
United Science Industries
Division File
,...~‘
,•.~
Attachment A
Re:
LPC #0310215104--Cook County
Berwyn! A &
R, Inc.
6229 West Ogden Avenue
LUST Incident No. 981412
LUST Technical File
Citations in this attachment are from the Environmental Protection Act (Act) and 35
Illinois
Administrative Code
(35
Ill. Adm. Code).
SECTION 1
The budget was previously approved for:
$7123.66
Investigation Costs
$5250.00
Analysis Costs
$26,674.00
Personnel Costs
$1788.00
Equipment Costs
$167,722.35
Field Purchases and Other Costs
$2660.57
Handling Charges
As a result ofthe Illinois EPA’s modification(s) in Section 2 ofthis Attachment A, the following
amounts are approved:
$0.00
Investigation Costs
$520.00
Analysis Costs
$9910.48
Personnel Costs
$0.00
Equipment Costs
‘$44,801.51
Field Purchases and Other Costs
$116.49
Handling Charges
As a result. of an appeal settlement with the Illinois EPA dated November 16;
.2004,
the following
amounts are approved:
$0.00
Investigation Costs
$0.00
Analysis Costs
$12,235.00
Personnel Costs
$0.00
Equipment Costs
$0.00
Field Purchases and Other Costs
$0.00
Handling Charges
,
Therefore, the total cumulative budget is approved for:
$7 123.66
Investigation Costs
$5770.00
Analysis Costs
-
$48,819.48
Personnel Costs
‘
$1788.00
Equipment Costs
$212,523.86
Field Purchases and Other Costs
$2777.06
Handling Charges
SECTION 2
.
.
$26,471.06
for an adjustment in Field Purchases and Other Costs associated with
excavation, transportation, disposal and backfill. 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)).
The approved plan allows for a total of2566.65 cubic yards total excavation
(1656.22
yards already removed
and 910.43 yards additional to be removed). 2000 cubic yards
were budgeted in the budget approved October 29, 2003.
This amendment allows for
the
additional 566.65 cubic yards.
2.
$6012.52 for an adjustment in Personnel costs associated with excavation, transportation,
disposal and backfill. 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
(35 111. Adm. Code
732.5
05(c)).
Personnel
costs are reduced by 37.76 (343.78/910.43) commensurate with the yardage
deduction.
DM:drm~J-iPamBUDmod3A.doc
I
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)(D)
ofthe Act by filing a petition
for a hearing within 35 days after the date ofissuance ofthe final decision. 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 of Illinois Center
100 W~stRandolph, Suite 11-500
Chicago, IL 60601
312/814-3620
For information
regarding the filing of an extension, please contact:
Illinois Environmental Protection Agency
Division of Legal Counsel
1021 North Grand Avenue East
Post Office Box 19276
Springfield, IL 62794-9276
217/782-5544
