)
PCB No. 06~
)
(UST Appeal)
)
)
)
STATE OF ILLINOIS
Pollution Control Board
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 of Final Agency Leaking
Underground Storage Tank Decision, a copy of which is herewith served upon you.
Robert E. Shaw
ILARDC
No.
03123632
Curtis W. Martin
ILARDC
No. 06201592
SIHAW
& MARTIN,
P.C.
Attorneys at Law
123
S.
10th Street, Suite
302
P.O. Box
1789
Mt. Vernon, Illinois
62864
Telephone
(618) 244-1788
RECE~VED
BEFORE THE POLLUTION
CONTROL BOARD
CLERK~S
OFFICE
OF THE STATE OF ILLINOIS
APR 22
2005
)
)
MIDWEST PETROLEUM
COMPANY,
Petitioner,
vs.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Curtis W. Martin, At~Ørney
for
Midwest Petroleu7/Company,
Petitioner
RECE~VED
CLERK’S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
APR 222005
OF THE STATE OF ILLINOIS
STATE OF ILLINOIS
Pollution Control Board
MIDWEST PETROLEUM
COMPANY,
)
)
Petitioner,
)
vs.
)
PCB No.
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR
REVIEW OF FINAL AGENCY
LEAKING UNDERGROUND STORAGE TANK DECISION
NOW COMES the Petitioner, Midwest Petroleum Company,
(“Midwest”), 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 of the Illinois
Environmental Protection Agency (“Agency”) in the above cause, and in support
thereof, Midwest respectfully states as follows:
1.
On March
14,
2005, the Agency issued a final decision which was
received by Midwest
on March 15, 2005, a copy ofwhich is attached hereto as
Exhibit A.
2.
The basis for Midwest’s appeal is as follows:
On August
13,
2004, Midwest,
through its consultant,
United Science
Industries,
Inc.
(“USI”), presented to the Agency a Corrective Action Plan (“Plan”)
and Budget (“Budget”).
The Plan and Budget identified a soil plume area of 37,286
square feet to a depth of fifteen
(15) feet below ground surface for a total volume of
20,713
cubic yards.
The Plan further identified a clean overburden area of 16,697
square feet to a depth of nine
(9) feet below ground surface for a total undisturbed
volume of 5,565 cubic yards.
This clean overburden volume would not be
transported and disposed.
Therefore, the scope ofwork for excavation,
transportation,
disposal and backfill (“ETD&B”) was defined in the Plan as 15,158
undisturbed
cubic yards (20,713 less
5,565).
Based
upon this Agency approved scope ofwork, Midwest estimated
the costs for ETD&B to be $1,000,000.00.
Midwest then applied to the 15,158 cubic
yards of ETD&B an engineering/industry
standard twenty percent (20)
swell
factor to arrive at a budget quantity calculation of 18,178 cubic yards of ETD&B
(15,158 x 1.2).
Using the budget quantity
of 18,178 cubic yards ofETD&B, Midwest
determined that the
costs per unit ofproduction (“UOP”) for the $1,000,000.00
estimated job costs was $55.00 per cubic yard for ETD&B ($1,000,000/18,178),
which consists
of $45 per cubic yard for excavation, transportation
and
disposal and
$10.00 per cubic yard for backfill.
In its September
1,
2004 letter, the Agency conditionally approved the
Plan and Budget with the condition being the modification ofMidwest’s proposed
swell factor.
The Agency modified the swell factor from the twenty percent (20)
proposed by Midwest to five percent (5),
thereby reducing the estimated
ETD&B
volume to
15,910
cubic yards (15,158 x
1.05).
The Agency action also reduced the
overall budget associated with the ETD&B from $1,000,000.00 to $875,050.00,
a
reduction of $124,950.00.
2
In response to the Agency’s September
1,
2004 letter,
Midwest
accepted the Agency’s adjustment
in the swell factor and presented an Amended
Corrective Action Plan
(“Amended Plan”) and Budget
(“Amended Budget”) dated
February
17,
2005.
Within the Amended Budget’s M-1 Justification
for Budget and
Amendments,
Midwest explained that it sought to increase the UOP rate for
ETD&B by $7.84 per cubic yard,
consisting of $6.41 per cubic yard for excavation,
transportation,
and disposal,
and $1.43 per cubic yard for backfill.
This increase
would bring the total UOP to $62.84 per cubic yard, consisting of$51.41 for
excavation, transportation
and disposal and $11.43 for backfill.
Midwest based its
increased UOP request
upon the 15,910 cubic yards calculated by the Agency using
its five percent
(5)
swell factor over the $1,000,000.00 proposed budget to arrive at
the ETD&B cost of $62.84.
Midwest
is not challenging the Agency’s reduction
in the
swell factor, and only submitted the Amended Budget in order to accommodate the
reduced volume ofcontamination
soil as approved by the Agency.
The Agency issued a decision letter on March
14, 2005, the decision
currently under
appeal,
in response to Midwest’s Amended Plan
and Budget.
In
this letter, the Agency indicated it had notified Midwest
of its final action,
an action
which was then subject to appeal, presumably referring to its letter of September
1,
2004.
What Midwest sought by the Amended Plan
and Budget, and now by this
appeal,
is approval from the Agency of reasonable costs for UOP for the same
ETB&B
scope of work.
Since the swell factor is one of the factors utilized
in the
calculation of determining the UOP rates for ETD&B, Midwest simply seeks to
properly apply the Agency’s preferred swell factor to calculate the UOP rates.
The
3
Agency’s failure to consider Midwest’s Amended Budget is arbitrary and
capricious
in that the excavation, transportation
and disposal rate and the backfill rate sought
following the Agency’s reduction in the swell factor is still less than the unwritten
$57.00 and
$20.00 per cubic yard, respectively, which have been accepted by the
Agency in the past.
WHEREFORE, Petitioner,
Midwest Petroleum Company, prays for reversal
of the Agency’s decision ofMarch
14,
2005, that its Amended Plan
and Budget be
approved as reasonable,
justifiable,
necessary, consistent with generally accepted
engineering practices,
and eligible for reimbursement
from the UST Fund and that
Petitioner
recover its attorney’s fees and costs incurred herein pursuant
to 415
ILCS
5/57.8(1)
and
35
Ill. Adm.
Code 732.606(g).
Respectfully
submitted,
SHAW &
MARTIN,
P.C.
By
/Curtis
W. Martin, ~torney
for
7
Midwest Petrole?
Company,
Petitioner
/
Robert E. Shaw
IL
ARDC
No.
03123632
Curtis W. Martin
IL ARDC No. 06201592
SHAW & MARTIN,
P.C.
Attorneys at Law
123
S.
10th Street, Suite
302
P.O. Box
1789
Mt. Vernon, Illinois 62864
Telephone (618) 244-1788
4
a
I L.I~I$’M~Ji.3
I~I~
v •n’as
in,—.
,.
.—
.
.__-
-
—
—
-
—
1021
NoRm
GRAND
AVENUE
EAST,
P.O.
Box 19276,
SPRU4GIEW, Iu.~No5
62794-9276, 21 7-782~397
JAMES K.
THOIbWSQN CENm~,
100
W~sr
RANPOLPH,
Sunt
11-300, CHICAGO, IL 60601,312-814.4)
ROD
R.
BLAGOJEVICH, GOVERNOR
~
~
~~
____
7002
3150
UDDO
1105
8h6~5I
21
7/782-6
762
MAR
1
~*
2~
Midwest Petroleum
Attention:
Don Mcflutt
6760
Southwest
Avenue
St. Louis, Missouri
63143
Re:
LPC
#1631255004
—
St. Clair County
Shiloh/Wei Enterprises
529 Maple
Street
LUST Incident No. 982804
LUST
Technical File
wiARJ~REC’D
1~
The Illinois Environmental Protection
Agency (Illinois
EPA)
has reviewed the Amen
C
CO1TCCtiVe
Action
Plan
Budget (budget) submitted for the above-referenced incident.
‘1
budget, dated
February 17,2005, was received
bythe Illinois EPA on February 22,2
Citations in this attachment are from the Environmental Protection Act (Act), as arne9d
Public Act
92-0554
on Juno 24,
2002k and
35 Illinois Administrative Code
(35
III. Adw
The
budget
is rejected
for
the reason(s) listed
below
(Sections
57.7(b)
and 57.7(c)(4)
~:‘
and 35 Ill. Adrn. Code 732.503(b)).
1.
In accordance with Section
57.7(c)(4)
of the Act, any action by the Illi*
disapprove or modify a plan or budget submitted pursuant to Title XV~
I
shall be provided to the owner or operatorin writing within 120 days
91
•
The iinois
EPA
previously notified the owner operator ofits nnai.a4
Further, in accordance .withSection
57-7(°X4)
of the Act, any action b
•
Illinois EPA to disapprove or modify aplan or lüdget, or the
rejection a
or bttdgetby operation oflaw, shall
besubject
to appeal to the Illinois
ControlBoard within 35 days after the Illinois EPA’s final action.
is
dby
Code).
he Act
S
EPA to
Nbc Act
eceipt.
ie
any
plan
ilution
6-
(847) 294-4000
-5463
61820— (21fl 2fl.5800
—(616)346.5120
Dear Mr. McNutt:
All future correspondence must be submitted to:
Illinois Environmental Protettion 4gency
Bureau of Land
-
#24
Leaking Underground
Storage Tank Section
1021 North
Grand
Avenue East
Post Office Box 19276
Springfield, IL
62794-9276
—4302 North
Main Street,
Rodcford, IL 61103— (815)
987-7760
•
Ors PLAIr.ifl —9511 W. Harrison St.,
Des names,
IL 6i~)0
ftGIN—595
South State,
Elgin,
IL.
60123 —(847)608-3131
-
Peogss—5415 N.
Universityst,
Peoria, ~i.
BuiirAu
OF Lane
-
PEORIA —7620 Ft UnlvcssttySt.,
Peoda, II.
61614— (309) 693-5*2
-
Crw.ieacs
—2125
South
First
Street, Champaq,
I
Se,usccao
—
4500
S. Sixth Street Rd., S~ring6eId,
IL 62706 —(217) 786-6592
•
Cowt.isvtii—
2009 MalI Street,
CoIIInsviIIe.
11.6
—
2309
W.
Main St., Suite
116, Marion. IL62959 —(618) ~3-72Q0
EXHIBIT____
Pxu~won RSCYcLEP PAnE
Appeal
Rights
•
An underground storage tank owneror operator may appeal this final decision to the
111 4ois
Pollution Control Board pursuant to Sections 40 and
57.7(c)(4)(D) of
the Actby filing aljetition
for a hearing within
35
days after the date of issuance of the final decision.
However, 414 35-day
period may be extended for a period of time not to exceed 90 days by written notice
fr44
the.
owner or operator arid the Illinois EPA within the initial.35-day appeal period. If the ot4er or
operator wishes to receive a 90-day extension, a written request that includes a statemái ofthe
date the final decision was received, along with a copy ofthisdecision, must be sent
tcyt~ie
Illinois
EPA as
soon as
possible.~
-
•
1
For
information regarding
the filing ofan
appeal, please
contact:
Dorothy Gunn, Clerk
•
Illinois Pollujon Control Board
.
*
State ofIllinois Center
I
100 West Randolph, Suite 11-500
Chicago, K
50601
-
I
312/814-3620
For
information
regarding the filing ofan
extension, please
contact:
Illinois EnvirDnmental Protection
Agency
Division
of
Legal
Counsel
•
1021
North Cmnd Avenue East
PostOfficeBox
19276
Springfield,
IL
62794-9276
217/782-5541
CERTIFICATE
OF SERVICE
I, the undersigned attorney at law, hereby certify that on April
19,
2005, 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
At
rney for
Petitioner, Midwe~roleum
Company
