RECEIVED
CLERK’S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
AUG
2
b
2005
STATE OF 1LLINOIS
MIDWEST PETROLEUM
COMPANY,
)
Pollution Control Board
)
Petitioner,
)
)
vs.
)
PCB
No. 06-
(UST Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
NOTICE
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,
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.
By
/L~
~
/urtis
W.
Martin,
i~,tf’orney
for
/
Midwest
Petroleup
Company, Petitioner
Robert E.
Shaw
IL ARDC 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
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
AUG
252005
MIDWEST
PETROLEUM
COMPANY,
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,
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 July
18,
2005, the Agency issued a final decision which was
received by Midwest on July
19,
2005,
a copy of which 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”), submitted
a Corrective Action Plan
and Budget
(“Budget”)
which was approved by the Agency in a letter dated September
1,
2004.
The Budget
approved by the Agency estimated that
soil removal and backfilling would require
twenty-five
(25) days to complete.
An estimate
of twenty-seven (27) days at
10
hours per
day for an environmental technician
was included within the approved
Budget for performance
of “excavation and overburden
screening,
manifesting,
sampling,
surveying,
and sample shipment.”
However, the Budget
also provided
for the removal of clean overburden but inadvertently
failed to include
an estimate
of the time required
to remove the clean overburden.
Based
upon the approved
Budget, the resulting
allowance
for the completion of excavation and replacement of
clean overburden was
only two
(2)
days, i.e. twenty-seven
(27) total days less
twenty-five
(25) days for excavation, transportation
and backfilling.
The time actually incurred by Midwest to perform the contaminated soil
excavation, transportation,
disposal, and backfilling and overburden excavation and
replacement
(“field
activities”) totaled forty-three
(43) days.
As
a result, Midwest
presented an Amended Corrective Action Plan and Budget (“Amended Budget”)
dated March
29,
2005.
The Amended Budget contained
an M-1 Justification which
demonstrated
that
the production rates for the
actual field activities time
were
reasonable
and Midwest
requested
in the Amended Budget additional
time for the
environmental technician,
environmental specialists,
and senior project manager
for the provision of the
oversight and management of the field activities.
By the Agency’s letter dated July
18,
2005,
it rejected the Amended Budget
as including costs that
are not reasonable.
In particular, the Agency suggests that
the amount
of time
to excavate, transport,
dispose
and backfill contaminated
soils
2
from Midwest’s site
continued
over
a span of approximately
five (5) months
and the
approved Plan
does not include
any soil remediation over such a span of time.
Contrary
to the Agency’s contention, the original approved Budget
did not
specify that
field activities
would be completed over any
specific period of time.
The
approved Budget simply underestimated
the amount of time required to complete
the field activities.
Thus,
Midwest requested the approval of an Amended Budget
that consisted of the actual
field time required to complete such remedial activities.
Midwest
contends that the reasonable costs
for the field activities
is best
demonstrated
by the field production rates and the
M-1 Justification
for the
Amended Budget demonstrates
the field production rates
achieved reasonable
goals, particularly
when compared to the Agency production proposals in R04-22
(UST proposed rule making).
WHEREFORE,
for the foregoing reasons, Petitioner,
Midwest
Petroleum
Company, prays for reversal of the Agency’s
decision of July
18,
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
III. Adm.
Code
732.606(g).
3
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
Respectfully submitted,
SHAW
& MARTIN,
P.C.
By ~
/Curtis
W. Martin,
~/torney
for
/
Midwest
Petrolei3th Company,
(
Petitioner
/7
CERTIFICATE
OF SERVICE
I, the undersigned
attorney at law, hereby certify that
on August
pZ,Z,
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 of Legal Counsel
Suite
11-500
1021 North Grand Avenue, East
Chicago,
IL
60601
P.O.
Box
19276
Springfield,
IL
62794-9276
7~
~
for
Petroleum
Company
Petitioner,
/4~r’/’/~
~rt’
ILLiNOIS
ENVIRONMENTAL
PROTECTZON
AGENCY
1021
NORTH
Cgsno
Avuaic
EAST,
P.O.
Box 19276,
SPwNcFIEw,
ILLINOIS
62794-9276,
217-782-3397
JAMEs
R.
THOMnoNCtr.ima, 100 Wzsy
RANDOLPH,
Sunt
11-3OaCi-iIcfr.co,
ILfoeoi,
312-814-6026
Ron
R.
BtAcoJEvlcr-l,
GOVERNOR
217/782-6762
CERTIFIED MAIL
JUL
1 B
20DB
7002
3150
flOOD
1108
8921
Midwest
Petroleum
.•:~
.Jn:.’
Attention:
Don MeNuEt
~:JL
r
9
RC~
6760 Southwest Avenue
St.
Louis,
Missouri
63143
Re:
LPC
1631255004—St Clair County
Shilob/Wel Enterprises
529 Maple Street
LUST Incident #982804.
LUST Technical File
Dear Mr.
McNuit:
The Illinois Environmental Protection Agency (Illinois EPA) hasreviewS the Amended
Cortective Action
Plan
Budget (budget) submitted for the above-referenced incident.
This
budget, dated March
29,
2005,
was
received by
the
Illinois
EPA on March 30,
2005.
Citations in
this letter art from the Environmental
Protection
Act (Act), as
amended
by Public Act 92-0554
on
June
24,
2002, and
35 Illinois Administrative Code
(35
IlL Adm.
Code).
In
addition, the budget
is rejected for
the
reason(s)
listed below (Sections
57~7(b)(3)
and
57.7(c)(4) of the Act and 35
Iii. Adm. Code
732,503(b)).
-
One of the overall goals of the tinancial review is to assure that costs associated with
malerials,
activities, and services are
reasonable
(35 III. Adm. Code 732.505(c)).
The
budget includes
costs that are not reasonable as submitted (Section 57.7(cX3) of the Act
arid
35 ill.
Mm.
Code 732.605(hh)).
Please note that
additional
information and/or
supporting
documentation may be provided
ía
cieinonstiar~t
the cobtb &e reasonable.
The budget
indicates
that the
amount oftime to
excavate,
transport,
dispose
and
backfill
contaminated soils
from this
site
continued over
a span of approximately
live
(5)
nonths.
The approved
plai
does
not include approval for soil remediation to include a span of
approximately 5
months.
Therefore, the request for additional personnel costs to
remediate the contaminated
soils from this LUST site is not reasonable.
NOTE:
Amended
plans and/or
budgets must
be submitted and approved prior to the issuance of
a No FurtherRemediation (NFR) Letter.
Costs
associated
with a
plan
or budget that have not
been approved prior to
the issuance of an NW Letter will not be reimbursable.
Rtcnoeo— 4302
North Main Street. Rockiord,
IL
Silo
—IBis)
587-7760
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H,wri,onSt., 0
names.
IL 6001
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4S00 5. Sixth
Struiel Rd..
Speingrleld, 1162706—
(217)
716-6S91
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S4refl Collirw,IlIe,
It. 62234—
(618) 346.5120
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1162959— (blt)993-7200
PRINTU~
ON
R(CVCLED
PAPER
_____
..CVULQIT
~e
~,
•‘
—
Page 2
Pursuant to
Sections 57.7(b)(5)
and
57.12(c) and (ci) ofthe Act
and
35 Ill. Adm.
Code
732.100
and 732.105, the
Ilhnois EPA requires that a Corrective Action Completion
Report
that achieves
compliance with applicable retnediation objectives be submitted within 30 days
after
completion
ofthe plan to:
-.
(Ilinois Environmajtal Protection Agency
Bureau ofLand
-
#24
Leaking Underground Storage
Tank
Section
1021
North Grand Avenue
1~ast
Post
Office Box
19276
Springfield,
IL
62794-9276
Please submit all
correspondence
in duplicate
and
include the Re: block shown at the beginning
ofthis lcttet
Please note that, ilwithin font
years
after the approval ofthis plan,compliance
with
the
applicable ramediatioij objectives has not been achieved
and
a Corrective Action Completion
Report
has not been submitted, the Illinois EPA requires the submission ofa status report
pursuant
to
Section 57.7(bX6) oftheAct.
An underground
storage lank system
owner
or
operator may
appeal
(his decision to the Ilhnois
Pollution Control Board.
Appeal
rights
are
attached.
Ifyou have
any
questions or need
thither
assistance, please contact Mindy Weller at
217/782-
6762.
.
A.
(Thappel, RE.
Unit Manager
Leaking
Underground Storage Tank Section
D5vision ofRernediation Management
Bureau of
Land
HAC:MW:niw\982804-I2.DOC
cc:
Bob Pulfrey.
USI,
Inc.
Division
File
Sincerely,
Appeal Rights
An tmderground storage tank owneror operatormay appeal this final decision to the Illinois
Pollution Control Board pursuant to
Sections
40
and
57.7(cX4)(D)
of
the
Act by filing a petition
for
a hearing within 35 days after the date ofissuanceofthe final
decisioii.
Howevei-;the 33-day
period
maybe extended for a period oftime not to exceed 90 days by written notice
froilithe
owner or operator and the Illinois EPA withinthe 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 ofthis decision, must be sent to the
Illinois EPA as soon as possible.
For
information regardingthe filing ofan appeal,.please contact:
Dorothy Gunn, Clerk
lllthojs Pollution Control Board
State of Illinois Center
100 West Randolph, Suite
11-500
Chicago, IL
60601
312/814-3620
Forinfonnation regardingthe filing of
an
extension, please
contact:
rilinois Environmental
Protection Agency
Division ofLegal Counsel
102! North
Grand
Avenue
East
Post
Office
Box
19276
Springfield,
IL
62794-9276
217/782-5544
