BEFORE THE
POLLUTION CONTROL BOARRECEIVED
OF
THE STATE OF ILLINOIS
CLERK’S
OFFICE
KNAPP
OIL COMPANY,
)
OCT
172005
DON’S
66,
)
STATE
OF
ILLINOIS
)
Pollution
Control Board
Petitioner,
)
v.
)
PCB 06-&t
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
)
NOTICE OF FILING
TO:
John Kim
Special
Assistant Attorney General
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O.
Box
19276
Springfield,
Illinois 62794~9276
PLEASE
TAKE NOTICE that
on
October
17,
2005
filed with
the
Clerk of the Illinois
Pollution
Control
Board
of the
State
of
Illinois
an
original,
executed
copy
of
a
Petition
for
Review of Illinois Environmental Protection Agency Decision.
Dated:
October
17,
2005
Respectfully submitted,
Knapp
Oil Company, Don’s 66
By:
~J\1~Q-~-’~
N~D’~C
One of Its Attci~eys
Carolyn
S.
Hesse
Barnes
& Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312)
357-1313
299865v I
JThis filing submitted on
recycled paper as defined in 35
III.
Adm.
Code
1OI.202J
CERTIFICATE
OF SERVICE
I,
on
oath
state
that
I
have
served
the
attached
Petition
for
Review
of
Illinois
Environmental
Protection Agency Decision
by placing a copy in
an envelope
addressed to:
John Kim
Special
Assistant Attorney General
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box
19276
Springfield, Illinois 62794-9276
from
One North
Wacker
Drive,
Suite
4400,
Chicago, Illinois,
before the hour of 5:00 p.m.,
on
this
17th
Day of October, 2005.
Carolyn
S. H&~se
This
filing submitted on
recycled paper as defined in 35111.
Adm.
Code
lO1.202j
2
RECEIVED
BEFORE
THE POLLUTION
CONTROL BOAISERKS OFFICE
OF THE STATE
OF ILLINOIS
OCT
172005
KNAPP OIL
COMPANY,
)
STATE OF
ILLINOIS
DON’S 66,
)
Pollution Control Board
)
Petitioner,
)
v.
)
PCB 065t&
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR REVIEW
OF ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY DECISION
Knapp Oil
Company,
by
its attorney,
Carolyn S.
1-lesse of Barnes
& Thornburg,
pursuant
to
the
Illinois
Environmental Protection
Act,
415
ILCS
5/1
et.
seq.
(the “Act”)
and
35
Illinois
Administrative
Code
Section
105.400
et
seq.,
hereby appeals
certain
decisions
by
the
Illinois
Environmental Protection
Agency (the “Agency”).
1.
Knapp Oil
Company (“Knapp”) is the owner of underground storage
tanks
(USTs)
at
a
former gasoline
service station
known as
“Don’s
66”
located
at
700
East
Main
Street, Olney,
Richland County,
Illinois (the “Station”).
The USTs stored
gasoline and diesel fuel.
2.
LUST
Incident
Number 901831
was
assigned
to
the release.
The
site has
also
been assigned LPC
#1590200007-Richland County.
3.
On
August
6,
2005,
the
Agency
received
a
High
Priority
Corrective
Action
Plan
(“Plan”)
and
the
associated
budget
(“Budget”)
to
perform
corrective
action
at
the
Station.
See
Exhibit
A.
The
cover
letter
forwarding the
Plan
and
Budget also
contained responses
to questions
that
This
tiling
submitted
on
recycled
paper
as
deflned
in
35
III. Mm.
Code
IOI.292j
the Agency raised in
a
letter dated January
19,
2005
regarding a corrective
action
plan for the Station that
had
been submitted October
4, 2004.
(See
Exhibit B.)
4.
By letter dated September
21, 2005
(the “Letter”),
the Agency rejected the
Plan
for the
reasons listed
in
Attachment A to
the
Letter
and
rejected the
Budget for the reasons listed
in Attachment B.
See
Exhibit C.
5.
The
Letter
also
advises
Knapp
of its
right
to
appeal
this
final
Agency
decision.
6.
The
Agency’s Letter
includes
as reasons for denying the
Plan
and
Budget
comments
that
are
contradictory
to
the
information
that
was
previously
provided and
that are internally inconsistent
and that exceed the Agency’s
authority.
7.
In Item
I
of Attachment
A
to
the
Letter,
the Agency
makes contradictory
comments
regarding
the
diesel
tank.
First,
the
Agency
states
that
delineation
and
remediation
of releases
from
the
diesel
tank
exceed
the
minimum requirements
of the
Act.
Later,
in
Item
1,
the Agency
alleges
that the Station
is in
violation for failing
to report a release
from the diesel
tank.
8.
In
Item
I
of Attachment B
to
the
Letter, the Agency claims
that activities
associated
with the diesel tank are
ineligible
for reimbursement and
are
in
excess
of
activities
to
meet
minimum
requirements
of
the
Act.
See
Exhibit
C.
IThis tiling
submitted
on recycled paper as defined in 35111. Adin. Code
101.2021
2
9.
The release
from
the
diesel tank was
reported
and
has
the
same
incident
number (901831) as the
releases from
the other tanks.
This
fact was
also
pointed
out
in
the
cover
letter forwarding the
Plan.
The
Illinois
Office of
the
State
Fire
Marshal
(“OSFM”)
determined
that
the
diesel
tank
is
eligible
for reimbursement.
See
Exhibit A, Appendix G.
10.
Pursuant
to
Section
57.9(c)
of the Illinois
Environmental Protection
Act,
415
ILCS
5/57.9(c),
the
OSFM determines whether
a tank
is
eligible
for
reimbursement, not the Agency.
II.
In
Item
2
of
Attachment
A
to
the
Letter,
the
Agency
requests
that
additional
samples
be
collected
from
areas where
Knapp’s consultant
has
already
advised
the
Agency
that
either
samples
could
not
be
collected
because
of utilities
located
in
the right-of-way
or
access
was
denied
or
because
the area
where
the
Agency
wanted samples
to
be
collected
was
beyond
the area that
modeling predicted
was impacted and,
thus,
beyond
the minimum requirements of the Act.
See
Exhibit B, pp.
1-2.
12.
In
the Letter dated
September
21,
2005,
in
Item
3
of Attachment
A, the
Agency
asks numerous
questions
based
on
the Agency’s
assumption
that
bioremediation would
be used.
13.
Information responsive to
questions in
Item 3
were
contained
in the Cover
Letter to
the Plan
dated August 2,2005.
14.
Knapp’s
Plan
and
Budget
are
reasonable,
consistent
with
the
Act
and
regulations
at 35
Ill.
Admin.
Code 732.
Tills filing
submitted
on
recycled paper
as defined in 35111. AdIn.
Code
101.2021
3
9.
The
release
from
the diesel tank
was
reported
and
has the
same
incident
number (901831)
as the releases from the other
tanks.
This
fact was also
pointed out in the
cover
letter forwarding
the Plan.
The
Illinois
State
Fire
Marshal
(“ISFM”)
determined
that
the
diesel
tank
is
eligible
for
reimbursement.
See
Exhibit A,
Appendix
G.
10.
Pursuant
to
Section
57.9(c) of the Illinois
Environmental Protection
Act,
415
ILCS
5/57.9(c),
the
ISFM
determines whether
a tank
is
eligible
for
reimbursement, not the Agency.
11.
In
Item
2
of
Attachment
A
to
the
Letter,
the
Agency
requests
that
additional
samples
be
collected
from
areas where
Knapp’s consultant
has
already
advised
the
Agency
that
either
samples
could
not
be
collected
because
of utilities
located
in
the
right-of-way
or
access
was
denied
or
because the
area
where
the Agency
wanted samples
to
be
collected
was
beyond
the
area that
modeling
predicted was impacted and,
thus,
beyond
the minimum requirements ofthe
Act.
See
Exhibit B, pp.
1-2.
12.
In the
Letter dated September
21,
2005,
in
Item
3
of Attachment A, the
Agency
asks numerous
questions
based
on the Agency’s
assumption
that
bioremediation would
be
used.
13.
Information responsive
to
questions
in Item
3
were contained
in the Cover
Letter to the Plan dated August 2, 2005.
14.
Knapp’s
Plan
and
Budget
are
reasonable,
consistent
with
the
Act
and
regulations at 35
III. Admin. Code 732.
This
filing
submitted
on
recycled paper
as delined
in
35111. Adni. Code
101.2021
3
15.
The
Agency’s
rejection
of
the
Plan
and
Budget
was
arbitrary,
and
capricious and for the sole purpose of harassing Knapp and
its consultant.
16.
Petitioner
is
appealing the Agency’s decision Letter dated September
21,
2005.
Wherefore,
Knapp Oil
Company,
Don’s
66,
respectfully
requests
that
the Board
enter
an
Order
to
require
that
the
Agency
approve
the
Plan
and
Budget
submitted
on
August 2, 2005
and for Petitioner’s
attorneys’ fees and costs in bringing this appeal.
Respectfully submitted,
Knapp
Oil Company,
Don’s
66
By:
____________
One of Its Att~neys
Carolyn
S.
Hesse,
Esq.
Barnes & Thornburg
LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
299779v
1
liusis
tiling
submitted o” recycled
paper as defined
in 35111. Adm. Code 101.2021
4
