BEFORE THE POLLUTION CONTROL BOARDOF THE STATE OF ILLINOIS

WILLIAM BREUER,

RECEIVED

CLERK’S OFFICE

AUG

122005

STATE OF ILLINOIS

Pollution

Control Board

NOTICE

Dorothy M.

Gunn, Clerk

Illinois Pollution

Control Board

State of Illinois

Center

100

West Randolph Street

Suite

11-500

Chicago,

60601

John J.

Kim

Assistant Counsel

Special Assistant Attorney General

Division of Legal Counsel

1021 North Grand Avenue, East

P.O.

Box

19276

Springfield,

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.

06201

SHAW & MARTIN,

Attorneys at Law

123

10th

Street,

P.O.

Box

1789

Mt. Vernon, Illinois

62864

Telephone

(618) 244-1788

592

P.C.

Suite

302

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

)

Petitioner,

vs.

)

PCB No. 06-

)

(lIST Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

urtis W. Martin,

rney

for

William Breuer,~i~ioner

RECE”.

BEFORE THE POLLUTION

CONTROL BOARD

CLERk’S

OFIE

OF THE STATE OF ILLINOIS

AUG

122005

WILLIAM BREUER,

)

STATE OF

ILLINOIS

Pollution Control Board

Petitioner,

)

vs.

)

PCB

No. 06-

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

PETITION FOR REVIEW OF

FINAL

AGENCY

LEAKING UNDERGROUND STORAGE

TANK DECISION

NOW COMES

the

Petitioner,

William Breuer

(“Breuer”),

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, Breuer respectfully states as follows:

On July 6,

2005, the Agency issued

a final decision to Breuer which

was received

by Breuer on July

2005,

a copy of which is

attached hereto as

Exhibit A.

The basis

for Breuer’s Petition is as follows:

November

2002, Breuer submitted

a High Priority

Corrective Action

Plan

(“CAP”) and Budget which proposed soil excavation and

disposal and on-site

deed restrictions to address groundwater

contamination.

On December

23,

2002,

the Agency

approved the

CAP but

modified the

Budget by

adjusting a combined

total

of $11,918.00

in personnel costs, equipment costs,

field purchases and other

costs,

and handling charges.

These

costs were adjusted,

according to the Agency, as

exceeding the minimum requirements necessary

to comply with Title

XVI of the

Environmental

Protection Act

(“Act”) and

Ill. Adm.

Code

732.505(c), as not

“Corrective Action Costs” under Sections 57.6 and 57.7

of the Act and

35 Ill. Adm.

Code 732.103

and as not reasonable

as submitted

under 57.7(c)(4)(C) ofthe Act and

Ill. Adm.

Code 732.606(hh).

In response to the Agency’s December

23,

2002 letter,

Breuer submitted

Amended

CAP and Soil Abatement Report

on October

16,

2003.

This

Plan and

Report contained details of soil excavation activities and continued to propose on-

site deed restrictions with regard to the groundwater contamination.

While

pursuing

the soil excavation, Breuer encountered on May

19,

2003

a 560 gallon UST

which had no

records of existence

and which was therefore

treated by the Agency as

a pre-1974

UST.

Samples taken in and around this tank revealed,

however, that

did not contribute

to the contaminate plume.

Breuer’s Amended

CAP

also proposed

a groundwater remediation program through

monitoring wells.

By letter dated January

16,

2004,

the Agency rejected the Amended

CAP,

Budget and

Soil Abatement Report.

The Agency claimed it had already approved

CAP which was close to completion

and stated it would

not reimburse

Breuer costs

incurred

associated with

reporting, planning, etc. of a new CAP.

The Agency also

rejected the Amended Budget consisting of a combined total of $24,710.00 of

investigation costs, analysis

costs, personnel costs, equipment costs,Jield_purchases

and other costs

and handling charges.

In response

to the Agency’s January

16,

2004 letter, Breuer submitted

second Amended

CAP and

Soil Abatement and Groundwater Monitoring Report on

August

2004.

This second Amended CAP proposed a quarterly

groundwater

monitoring program

for one year and contained

a budget for costs

associated with

the proposed groundwater remediation

operations.

By Agency letter dated

October 26,

2004, the Soil Abatement

and Groundwater

Monitoring Report was

approved.

However,

the Budget associated with the second Amended

CAP was

modified by means of a deduction to the personnel costs

for “time/hours either

partially or in full for activities that

were previously allowed in youroriginal

budget

for Corrective Action per IEPA letter

dated December 23,

2002.”

The personnel

adjustment

amounted to $14,569.00.

Breuer appealed the Agency’s decision of October

26,

2004 by

filing a Petition

with the Board on February

16,

2005

in PCB No.

05-108.

Subsequently,

however,

Breuer submitted

additional justification to the Agency in

a third Amended High

Priority

CAP and Budget on June

20,

2005.

The third Amended

CAP was approved

but the Budget was modified by adjustment to personnel charges

iii

the Bniountof

$12,635.00

by Agency letter dated July

2005.

Breuer has since moved to dismiss

the appeal

in PCB

No. 05-108 regarding the Agency’s October 26,

2004

decision

letter to be replaced by the present appeal

of the Agency’s July

2005

decision

letter.

The basis

for the Agency’s July

2005

modification of Breuer’s third

Amended Budget appears to be capsulated within its statements

as follows:

“Since

you

were changing your original approved plan in the

manner you would handle

any remaining groundwater

contamination,

the Agency denied these

cost.

.“

and

“the

Agency will not pay any costs associated with personnel time in report

writing or re-writing, preparation etc. for a new corrective action plan, these

costs

are excessive activities.”

It is

Breuer’s position that

the original groundwater

remediation plan has not changed.

The original groundwater

plan as presented

November 5,

2002

included a highway

authority agreement for the off-site

contamination

and for replacement monitoring wells on-site which were to be

sampled to determine the effect ofthe

soil remediation activities

upon the

groundwater.

The CAP further

explained that future

activities “may include

proposal for extended

groundwater

sampling to assess if contamination

may

decrease

over time.”

Breuer concedes that Section

C.2

of the original

CAP Agency

form which listed

on-site deed restriction was in error and did not coincide with

the

text

of the

CAP.

This discrepancy,

however,

was not addressed

by the Agency in its

December

23,

2002 letter,

and the

CAP never stated that the on-site deed restriction

would be utilized

as an institutional

control.

In other words, the intent of the

November

2002

CAP was captured within its text that the groundwater

remediation

activities were approved by the Agency’s December

23,

2002

letter.

Moreover,

the Amended

CAP dated October

16,

2003 was consistent

with the

Agency approved

CAP and should have been approved

by the Agency.

The Agency’s

denial of the October

16,

2003 Amended CAP required Breuer to prepare and

submit yet another Amended CAP

on August

2004.

The Amended CAP of

August

2004 was then approved by the Agency by letter dated October

26,

2004,

but

the Amended Budget associated with this Amended

CAP was again modified.

The further

modification of the August

2004 Amended CAP Budget again

required Breuer to prepare

and submit a third Amended

CAP Budget with

justification.

This third Amended CAP was again modified

by the Agency’s July

2005 letter which is the subject of this

appeal.

Breuer contends that

all of the Amended

CAP reports

and associated

budgets

were consistent with the

intent of the original CAP report as approved by the

Agency on December 23,

2002.

Breuer further contends that

since the on

site

groundwater remediation plan has remained unchanged, the costs associated with

personnel time and report writing or rewriting, preparation,

etc. for the-Amended

CAPs are not in any way “excessive

activities” and should

be approved by the

Agency.

These personnel costs

adjustments

by the Agency do not properly relate to

the personnel costs

associated with

different

means of remediation as contended

the Agency,

and its adjustment

to personnel costs

in its July

2005 letter is

unreasonable,

arbitrary

and capricious.

WHEREFORE, Petitioner,

William Breuer,

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 third Amended High Priority

Corrective

Action Plan

and 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

415

ILCS

5/57.8(1) and

35 Ill. Adm.

Code

732.606(1).

Robert E.

Shaw

ILARDC

No. 03123632

Curtis W. Martin

ILARDC

No. 06201592

SHAW

MARTIN, P.C.

Attorneys

at Law

123

10th Street, Suite 302

P.O.

Box

1789

Mt. Vernon, Illinois

62864

Telephone

(618)

244-1788

Respectfully submitted,

SHAW &

MARTIN,

P.C.

urtis

W. Martin,

orney

for

William Breu7~~itioner

)I/99d13-16

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

1021

NoRm

GRAND

AVENUE

EAST,

P.O.

Box

19276,

SPRINGFIELD,

ILLINOIS

62794-9276, 217-782-3397

J~.is

THOMPSON

CENTER,

100

WESI

RANDOLPH,

SUITE

11-300, CHICAGO,

1160601, 312-814-6026

Roo

BLAGOJEVICH,

GOVERNOR

217/782-6762

CERTIFIED MAIL

JUL 062005

REC’0~

7002

~~IJ

0~0fl11O8

83.74

William Breuer

Attention: Mr. GeMMUuj~

Post Office Box

Hoyleton, Illinois

62803

Re:

~LPC#1890205002— WashingtonCounty

Hoyleton/ Breuer, William

Highway 177 & Hoyleton-Hoffinan Road

LUST Incident No.

992697 and No. 20030951

LUST Technical File

Dear Mr. Huge:

The Illinois Environmental Protection Agency (illinois EPA) has reviewedthe

Amended High

Priority Corrective ActionPlan (plan) submitted for the above-referenced incident.

This plan,

dated June7, 2005,

was

received by the Illinois EPA on June 20, 2005.

Citations in this letter are

from the Environmental Protection Act (Act) and 35 illinois Administrative Code

(35

ElI. Adm.

Code).

TheAgency has reviewedyourplan modification to include theremoval ofan abandoned UST.

This UST

was

discovered during excavation activities.

Pursuant

to Section 57.7(c)(4) ofthe Act

and

35 Ill. Adm. Code 732.405(c), the plan is approved.

The activities proposed in the plan

are

appropriate to demonstrate compliance with Title XVI of

theAct and 35

III. Adm. Code 732.

Please note that all activities associated with the remediation

ofthis release proposed in the plan must be executed in accordance with all applicable regulatory

and statutory requiremer.ts, including compliance with the proper permits.

In addition, the budget

for the High Priority CorrectiveAction Plan is modified

pursuant

Section

57.7(c)(4) ofthe Act

and

Ill. Adm. Code

732.405(c).

Based on the modifications

listed

in Section 2 of

Attachment

A, the amounts listed

in Section

Attachment

A are

approved.

Please note that the costs must be

incurred

in accordance with the approvedplan.

aware that the

amount

ofreimbursement 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), and 732.611.

Please note that, ifthe owner or operator agrees with the Illinois EPA’s modifications,

submittal

of an amended

plan and/or

budget, if applicable, is not required (Section 57.7(cX4) of the Act

and

35 Ill. Adm. Code 732.503(f)).

Additionally, pursuant to Section 57.8(a)(5) ofthe Act

and

Rc,CICFORD —4302

North Main Street,

Rock&ud.

61103— (815) 987.7760

•

Dts

PLAINES

—9511 W. Harrison SI,

Des Plaines, II. 60016

—(847) 294-4000

Etcis

—

595

South State. EIgin, IL

60123

—(847) 608-3131

•

Pcon,

—

5415

N. University St., Peoria, 1161614—

(309)

693-5463

BURIAL’

LA,.o-

Prom,

—7620 N.

University

SI.,

Peoria, 1161614— (309) 693.5462

•

Ci~x,p,,cw

—2125 South First

Street, Champaign. 1161820— (217) 278.5800

5PRIN(itIaI,

—45005. Sixth

Sireet

Rd.,

Springfield.

IL 62706

—(217) 766.6892

•

Couiwsvtu.t —2009 MalI

Street,

Collinsyille,

IL 62234 —(618) 346-5120

MARioN

—

2309W. Main

St.. Suite 116, Marion,

IL 62959— (618).

993-7200

PRINTED

Rrcyctco

PAPtR

EXHIBIT

Page 2

111.

Adm.

Code

732.4(15(e),

reimbursement will be sought for any additional costs that may

be incurred as a result ofthe Illinois

EPA’s modifications, an amended budget must be submitted.

NOTE:

Amended plans and/orbudgets must be submitted and approved prior to the issuance of

a No Further Remediation (NFR) Letter.

Costs associated with a plan

or budget

that have

not

beenapproved prior to theissuance ofan NFR Letter will.not be reimbursable.

All future correspondence must be submitted to:

Illinois Environmental Protection Agency

Bureau ofLand

#24

Leaking Underground Storage Tank Section

1021 North GrandAvenueEast

Post Office Box

19276

Springfield,

62794-9276

Please submit all correspondence in duplicate and include the Re: block shown at thebeginning

ofthis letter.

An underground storage tank system owner or operator may appeal this decision to the Illinois

Pollution

Control Boaid.

Appeal rights are attached.

Ifyou have any questions or need further assistance, please contact Donna Wallace at 217/ 524-

1283.

Sincerely,

c1~

Thomas A. Henni~

Unit Manager

Leaking Underground Storage Tank Section

Division ofRemediation Management

Bureau of Land

TAH:DW:dw\

Attached:

Attachment A

United Science Industries/ Karen Bartling

Division File

Appeal Rights

An underground storage tank owneror operatormay appeal this final decision to the fllinois

Pollution Control Board~ursuant

to Sections

and 57.7(c)(4)(D) ofthe Act by filing a petition

for a hearing within 35 days after the date of issuance ofthe final decision.

However, the35-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.

If the

owner or

operatorwishes to receive a 90-day extension, a written request that includes a statementofthe

date

the

fmal decision was received, along with a copy ofthis decision, must be sent to the

Illinois EPA as soon aspossible.

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, IL

60601

312/814-3620

For information regarding

the

filing ofan extension, please contact:

Illinois Environmental Protection Agency

Division ofLegal

Counsel

1021

NorthGrand Avenue East

Post Office Box

19276

Springfield, IL

62794-9276

217/782-5544

Attachment A

Re:

LPC #

1890205002

—

Washington County

Hoyleton/ Breuer,

William

Highway 177 & Hoyleton-Hoffinan Road

LUSTIncident No. 992697

and

No. 20030951

LUST

Technical

File

Citations in this attachment are

from the

Encironniental

Protection

Act (Act) and

Illinois

Administrative

Code (35 Ill.

Adm.

Code).

SECTION 1

The budget

was previouslyapproved

for:

$1,531.50

Investigation Costs

$3,247.00

Analysis Costs

$57,579~00

Personnel Costs

$28,625.00

Equipment Costs

$54,512.00

Field

Purchases

and

Other Costs

Handling Charges

As a

result

ofthe Illinois EPAJs modification(s) in

Section 2 of

this Attachment A,

the following

amounts are approved:

Investigation Costs

Analysis Costs

$6,673

.75

Personnel Costs

Equipment Costs

Field Purchases and

Other Costs

Handling Charges

Therefore, the total cumulative budgetis approved for:

$1,531.50

Investigation Costs

$3,247.00

Analysis Costs

$64,252.75

Personnel Costs

$28,625.00

Equipment Costs

$54,512.00

Field Purchases and Other Costs

Handling Charges

Page 2

Attachment A

SECTION 2

An amount of$12,635.00 is deducted

personnel charges.

Costs for investigative

activities and related services ormaterials for developing

High Priority corrective

action

plan that

are

unnecessary or

inconsistent with

generally

accepted practices or

unreasonable

costs

forjustifiable

activities, materials,or services are ineligible for

reimbursement from the Fund

(35

Ill. Adm. Code 732.606(cc)).

The budget includes

such

costs.

These costs are for

activities

in excess ofthose necessary to meet the

minimum

requirements ofTitle XVI ofthe Act (Section

57.5(a) of

theAct

and

III.

Adm.

Code 732.606(o)) and/or are not

reisonable as submitted

(Section 57.7(c)(4)(C) of

the Act

and

Ill.

Adm.

Code 732.606(hh)).

Your original Corrective

ActionPlan and Budget were

approved for excavation of

contaminated

soils, (2)

rounds

groundwater sampling, reinstalling

of(2)

monitoring

wells and taking (23) confonnation samples.

Yourplan stated

ifany

groundwater

issue

remained after

excavation it would

addressed by an on site groundwater use restriction

and a HighwayAuthority Agreement.

Your finn submitted an amended plan dated

October

16, 2003 proposing that

should thelevels in

groundwater

not decrease, you

would propose an alternative technology for an oxygen releasing compound

chemical

oxidation (see page 7,

9 and

this report).

Since you were changing your original

approved plan in the manner you would handle any remaining groundwater

contamination, the Agency denied these cost.

Yourexcavation had been completed and

it had been shown the groundwaterwould not go

beyond the proposed Highway

Agreements.

Your original

plan was

near

completion when you decided to change you

plan.

You then submitted another amended plan

going back to

your original plan

monitor the wells

after

excavation

with

the exception

that

you wanted to add (2)

additional groundwater sampliqg episodes, and address any groundwatercontamination

at that time (no method given).~The

Agency will

not pay any cost

associated with

personnel time in report writing orre-writing, preparation etc for a newcorrective action

plan, these costs are excessive activities.)

DW:dw\

CERTIFICATE OF SERVICE

I, the undersigned attorney at law, hereby certify that

on August

2005,

served true and correct copies of a Petition for Review of Final Agency Leaking

Underground

Storage Tank Decision,

placing true and correct copies in properly

sealed and addressed envelopes

and by

depositing said sealed envelopes in

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 of Legal

Counsel

Suite

11-500

1021

North Grand Avenue,

East

Chicago, IL

60601

P.O.

Box

19276

Springfield,

62794-9276

Curtis W. Martin,

ttorney

for

(“Petitioner~ W4~reuer