RECE WED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARL9LERKS OFFICE
MAC’S CONVENIENCE STORES LLC,
Petitioner,
)
vs.
)
)
)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
Respondent.
APR 132005
NOTICE OF FILING
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601-3218
John J. Kim
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
Pollution Control Board Mac’s Petition for Review of the Final Agency Underground Storage
Tank Decision in the above referenced matter, a copy of which is herewith served upon you.
Respectfully submitted,
HATCHETT & HAUCK LLP
Dated: April 11, 2005
David L. Hatchett, IN Atty. #19383-49
10 West Market Street, Suite 1025
Indianapolis, IN 46204
Telephone:
(317) 464-2620
Facsimile:
(317) 464-2629
david.hatchett@b2lawyers.com
ATTORNEYS FOR MAC’S
CONVENIENCE STORES LLC
)
)
PCB 05-124
STATE OF ILLINOIS
(UST APPEA!~IIUtIOn
Control Board
)
)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAC’S CONVENIENCE STORES LLC,
)
APR 132005
Petitioner,
)
PCB 05-124
fTTC~1’ AITh~AT\
STATE OF ILLINOIS
~J~)J
)Pollutian Control Board
vs.
)
)
)
ILLiNOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
)
Respondent.
)
MAC’S PETITION FOR
REVIEW
OF FINAL AGENCY
UNDERGROUND STORAGE TANK DECISION
Mac’s Convenience Stores LLC (“Mac’s”) hereby files its Petition and requests that the
Illinois Pollution Control Board (“Board”) review the December 6, 2004 final decision of the
Illinois Environmental Protection Agency (“Agency”) in the above-referenced case. In support,
Mac’s respectfully states as follows:
Facts and Procedural History
1.
Mac’s owns and operates a convenience store and gasoline service station on
property located at 2901 Stevenson Drive, Springfield, Sangamon County, Illinois (“Site”).
2.
On or around September 19, 2002, Mac’s commenced excavation of certain
former gasoline and diesel USTs at the Site. At that time, Mac’s encountered free product and
contaminated soil in the excavation pit for the old gasoline USTs, as well as contaminated
backfill in the old diesel UST excavation. As a result, on September 19, 2002, Mac’s reported a
release of gasoline at the Site, as well as a release ofdiesel. Because the two excavations were
greater than 100 feet apart, the Site was assigned Incident No. 20021336 for the gasoline release,
and Incident No. 20021337 for the diesel release. Because the Agency has not disputed the fund
eligibility of the diesel release, Incident No. 20021337 is not at issue in this appeal; all further
references to the “release” will refer solely to the gasoline release.
1
3.
Mac’s retained American Environmental Corporation (“American”) to complete
Early Action and Site Investigation and Corrective Action, including release investigation and
confirmation, preparation of a 45-Day Report, and preparation of a Site Investigation Plan
(“SIP”) and Budget.
4.
The 45-Day Report, attached as Exhibit A, was submitted to the Agency on
November 4, 2002, and approved on February 24, 2003.
5.
On March 31, 2004, American submitted to the Agency on behalfof Mac’s a SIP
and Budget for investigation to determine the nature, concentration, direction ofmovement, rate
of movement and extent of contamination as well as the physical features of the site and
surrounding area that may affect contaminant transport and risk to human health and safety and
the environment (“First SIP”). This First SIP is attached as Exhibit B. The First SIP and Budget
were rejected by the Agency in a letter dated June 23, 2004 (“First Denial”), attached as
Exhibit C. As the reasons for denial, that letter stated:
The plan fails to indicate the extent ofsoil and groundwater contamination will be
defined as associated with the gas and diesel fuel LUST incidents listed above
(sic).
It will be necessary to include soil borings/groundwater monitoring wells
W-SW and North of soil sample GWNW and E-NE of soil sample GWE ofthe
previous gas excavation area. This may include off-site investigations.
In addition, it will be necessary to provide documentation that the current USTs in
use have not had a release due to the close proximity of those USTs to the
previous gas excavation area.
6.
On August 4, 2004, American submitted to the Agency on behalf of Mac’s a
Revised SIP and Budget (“Revised SIP”), attached as Exhibit D. This Revised SIP contained the
additional soil borings and monitoring wells as requested in the First Denial. On December 6,
2004, the Agency issued a Final Decision to Mac’s in which the Revised SIP and associated
2
Budget were rejected (“Second Denial”). This Second Denial, attached as Exhibit E, stated as
the reason for denial:
The plan indicates the LUST incident 20021336 was from gasoline USTs. All
information currently in the Illinois EPA’s possession indicates the gas
contamination on site (and potentially offsite) was due to the release in 1992 that
has been “remediated” and has received a No Further Remediation letter dated
May 7, 2002.
Please provide information to indicate that LUST incident
20021336 is not a re-reporting of the closed LUST incident 920410.
The soil borings/monitoring wells may not be necessary if it cannot be proven that
the LUST incident 20021336 is not a re-reporting of the closed LUST incident
920410 as requested above.
7.
On January 13, 2005, counsel for the Agency timely filed a joint notice to extend
the 35-day response period, and the Board extended the appeal period to and including April 11,
2005, as was requested. Thus, this Petition is timely filed.
8.
By way of additional information, on February 2, 2005, American submitted
another Revised SIP and Budget to the Agency (“Second Revision”). However, this second
revision was not reviewed by the Agency prior to the appeal deadline.
Statement of Issues for Review and
Legal Basis for Challenge to Determination
9.
Mac’s seeks administrative review of the Agency’s Second Denial rejecting the
Revised SIP and Budget submitted by Mac’s. Mac’s challenges the form and basis of the
Agency’s Second Denial and believes that the Agency’s Second Denial is without factual basis
or legal support, is arbitrary and capricious, is inconsistent, and is otherwise not in accordance
with applicable law for multiple reasons, including but not limited to the following reasons
enunciated below.
10.
Mac’s consultant, American, prepared the August 4, 2004 Revised SIP and
~Budgetin accordance with the Environmental Protection Act (“Act”) and generally accepted
3
engineering practices. American’s Kenneth M. Miller, P.E., P.G., who participated in preparing
the SIP and Budget, is a Licensed Professional Engineer and Geologist with fourteen (14) years
of experience in the environmental consulting industry. Both SIPs detailed the procedures
necessary to determine the nature, concentration, direction of movement, rate of movement and
extent of contamination as well as the physical features ofthe site and surrounding area that may
affect contaminant transport and risk to human health and safety and the environment.
11.
In accordance with 415 ILCS 5/57.7(a), the Budget included an accounting of all
costs associated with the implementation and completion of the Revised SIP. These costs are
reasonable and are necessary to perform the site investigation activities included in the Revised
SIP.
12.
In its December 6, 2004 final decision, the Agency cited as the reason for
rejecting the Revised SIP and Budget the purported failure to provide information indicating that
the gasoline contamination found at the Site was from a new release, and not attributable to a
1992 release at the Site, such former release having received a No Further Remediation letter
dated May 7, 2002. However, the 45-Day Report submitted by American to the Agency stated
that free product was encountered in the bottom of the gasoline UST excavation during the
September 2002 tank removal
—
a fact which strongly indicates that a new release occurred
subsequent to the 1992 release. Additionally, laboratory analyses of both the soil samples
collected from the sidewalls of the excavation pit and the groundwater sample taken from the
bottom of the gasoline excavation pit
—
all of which were included in the First SIP
—
revealed
high levels of benzene. These results also indicate a new release has occurred at the Site.
Finally, groundwater analytical results included in Table 2 in the first SIP show that
4
concentrations are at or above earlier concentrations reported by the former Site owner during
and shortly after the 1992 release.
13.
In addition, Mac’s objects to the Agency’s assertion ofentirely new reasons for its
Second Denial ofthe SIP. Mac’s submitted information regarding the 1992 release in its 45-Day
Report and First SIP. In its First Denial, the Agency did not set forth as a reason for denial its
concern that the contamination at the Site may be attributable to the earlier 1992 release which
had received a No Further Remediation letter. The Agency also told Mac’s in the First Denial
that “it will be necessary to include soil borings/groundwater monitoring wells” in the area
surrounding the excavation area. Mac’s then included in its Revised SIP the requested additional
soil borings and monitoring wells. However, the Agency denied the Revised SIP and informed
Mac’s that it was now concerned about the 2002 release being a re-reporting ofthe 1992 release,
even going so far as to state that the additional soil borings and monitoring wells which had
specifically been requested in the First Denial “may not be necessary if it cannot be proven that
the LUST incident 20021336 is not a re-reporting ofthe closed LUST incident 920410....”
14.
In rejecting a SIP, the written denial must contain “a statement of specific
reasons why the cited Sections ofthe Act or regulations may be violated if the plan or report is
approved.” 35 Ill. Adm. Code 732.503. Due process and fundamental fairness require that the
Agency cannot re-review the same information and change its reasons for denial.
5
WHEREFORE, Mac’s Convenience Stores LLC respectfully requests that the Board
direct the Agency to approve the Revised SIP and Budget submitted by Mac’s, and grant such
other and further relief as the Board may deemjust and proper.
Respectfully submitted,
HATCHETT & HAUCK LLP
DATED: APRIL 11, 2005
David L. Hatchett, IN Atty. #19383-49
10 West Market Street, Suite 1025
Indianapolis, iN 46204
Telephone:
(317) 464-2620
Facsimile:
(317) 464-2629
david.hatchett@h2lawyers.com
ATTORNEYS FOR MAC’S
CONVENIENCE STORES LLC
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on April 11, 2005, I served a true
and accurate copy of the foregoing, by placing a true and correct copy in properly sealed and
addressed envelopes and by depositing said sealed envelopes in a U.S. mail drop box located
within Indianapolis, Indiana, with sufficient First Class Mail postage affixed thereto, upon the
following named persons:
JohnJ. Kim
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
David L. Hatchett
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601-3218
TE7~-~I4~
6
Hatchett & Hauck
10 W. Mark
t Street, Suite 1025
Indianapo is, Indiana 46240
ITED ~
~LSERVI~
9267
6060t
LLP
TO:
Dorothy M. E~w~,Clerk
Illinois Polluti
c
i Control Board
James R. Thor pson Center, Suite 11-500
100 West Rar toiph Street
Chicago, Illin is 60601-32 18
Uniteu states
Postal Service’~
DELWER~ ~
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POSTAGE
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APR ii. 05
AMOUNT
$9.95
00059991 —0~
RECE
WED
CLERK’S OFFICE
APR 132005
STATE OF IWNOIS
Podution 3ontrOI Board
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