GATEWAY FS, INC .,
vs .
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
Petitioner,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent .
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
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. 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
NOTICE
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, IL 62794-9276
RECEIVED
CLERK'S OFFICE
Curtis W. Martin
ttorney for
Gateway FS, I
Petitioner
MAR 0 7 2006
STATE OF ILLINOIS
Pollution Control Board
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
GATEWAY FS, INC .,
)
MAR 0 7 2006
STATE OF ILLINOIS
Petitioner,
)
Pollution Control Board
vs .
)
PCB No. 06-76
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent .
)
PETITION FOR REVIEW OFFINAL AGENCY
LEAKING UNDERGROUND STORAGE TANK DECISION
NOW COMES the Petitioner, Gateway FS, Inc., ("Gateway"), 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, Gateway respectfully states as follows
:
1
.
On October 27, 2005, the Agency issued a final decision to Gateway, a
copy of which is attached hereto as Exhibit A
.
2 .
On November 4, 2005, Gateway, through its environmental consultant,
PSC Environmental Services, made a written request to the Agency for an
extension of time by which to file a petition for review to ninety days, a copy of
which is attached hereto as Exhibit B .
RECEIVED
CLERK'S OFFICE
3
.
On November 10, 2005, the Agency joined in Gateway's request that
the Board extend the thirty-five day period for filing a petition to ninety days, a
copy of which is attached hereto as Exhibit C
.
4 .
On November 17, 2005, the Board entered an Order extending the time
by which Pioneer could file a Petition to and including March 3, 2005, a copy of
which is attached hereto as Exhibit D
.
5 .
The grounds for the Petition herein are as follows
:
On June 29, 2005, Gateway, through its environmental consultant,
submitted to the Agency a High Priority Corrective Action Plan ("Plan") and Budget
("Budget") with regard to remediation of its site located at Columbia, Illinois under
Incident Number 20000566. By letter dated August 15, 2005, the Agency approved
the Plan but rejected the Budget for including costs that were not reasonable as
submitted due to what the Agency deemed as excessively high personnel costs
compared to similar projects performed by other consulting firms . No further
explanation for the rejection of the Budget was provided by the Agency
.
By letter dated September 13, 2005, Gateway provided additional
information regarding the basis for the personnel costs sought to be approved
within the Budget. Among the additional information was that a portion of the
personnel costs were associated with additional work in response to the Agency's
letter dated July 12, 2002 regarding Gateway's Site Classification Completion
Report. In that July 12, 2002 letter, the Agency indicated that additional
investigation activities may be necessary to determine the full extent of soil and/or
2
groundwater contamination, that additional groundwater monitoring wells may be
necessary to delineate the extent of groundwater contamination, and that
groundwater monitoring wells should be monitored for BTEX constituents
.
Further, the Agency suggested in its July 12, 2002 letter that any eventual
remedial method chosen should include soil excavation and off-site disposal
combined with groundwater remediation either through "pump and treat" or
bioremediation. The Agency also noted that any additional investigation activities
subsequent to site classification could be completed without submitting a work plan
or receiving prior approval from the Agency if such activities were technically
necessary and consistent with generally accepted engineering practices
.
In its September 13, 2005 letter, Gateway further explained that it had
added MTBE as an indicator constituent on June 30, 2004 after substantial
evaluation for the BTEX-based Plan had been performed which then required
modification. Further, after substantial development of the BTEX and MTBE based
Plan, Gateway was approached with an opportunity to sell its facility to a church
which raised additional issues of substantial risks that had not heretofore been an
issue for Gateway's use of the facility. Gateway also explained that near the time of
the completion of its Plan the Agency had posted new plan forms which required
further modification through new information or different combinations of data,
thereby causing Gateway to incur additional personnel costs
.
Gateway had also prepared the Plan to propose three (3) major
corrective action approaches, including tier 2 remedial objectives, conventional
3
technology, and/or in-site chemical oxidation, two of which options were originally
requested by the Agency . The presentation of the three (3) corrective action
approaches was to allow flexibility depending upon the Agency's response regarding
restrictions and/or reimbursement eligibility, issues relating to the pending sale of
the facility, and the liability associated with any future use of the property by
Gateway and/or its prospective purchaser. The further intent of the corrective
action options contained within the Plan was to serve as an overall project cost
reduction by avoiding the multiple performance of personnel functions and to avoid
duplicate site classification efforts that would increase later closure costs .
Rather than an outright rejection of the Budget a second time, the
Agency, by its October 27, 2005 letter, modified the Budget proposed by Gateway
.
The modification was in the form of a reduction in personnel costs of $36,497 .25,
indicating that these costs were for activities in excess of those necessary to meet
the minimum requirements of the Act and the regulations as they are not
"corrective action costs" as defined therein. The Agency further deemed the
personnel costs, specifically the $18,075.75 in "Pre-MTBE BTEX-based HPCAP
Activities" and the $18,075.75 in "Post-MTBE/Pending Property Sale HPCAP
Development" each were not reasonable . Based upon the foregoing reasons, the
Agency's modification of the Budget was without technical justification and was
therefore arbitrary and capricious. Gateway therefore requests that this Board
order the Agency to approve Gateway's Budget as proposed
.
4
WHEREFORE, Petitioner, Gateway FS, Inc., prays for reversal of the
Agency's decision of October 27, 2005, that its 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 .
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
5
i
By
zLA"V4
4-"
Curtis W. Martin Attorney for
Gateway FS, I
Petitioner
11/04/05
16:45 FAX 618 281 7020
PHILIP SERVICES
1021 '`+OR'H GRAND AVENUE
EAST, P.O .
Box
19276, SPRINGnELD, ILLINOIS 62794-9276 - ( 217) 782-3397
Jamts R. THOMPSON CENTER,
100
WEST RANOOLPH, SUITE 11-300, CHICAGO, IL 60601 -(312) 814-6026
ROD R .
BtAGOIEVICH, GOVERNOR
DOUGLAS
P. Scorn,
DIRECTOR
217/782-6762
CERTIFIED MAIL
7004 2510 0001 8648 2516
OCT 2 7
Gateway FS, Inc
.
Attention: Mr. Greg Birchler
3631' Old State Route 3
Red Bud, Illinois 62778
Re ;
LPC #1330055033 - Monroe County
Columbia / Gateway FS, Inc .
219 N. Rapp St .
LUST Incident No. 20000566, 20001052, and 20001169
LUST Technical File
Dear Mr. Birchler :
The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the High Priority
Corrective Action Plan Budget (budget) submitted for the above-referenced incident . This
budget, dated June 29, 2005, was received by the Illinois EPA on June 30, 2005 . This budget
had previously been denied per an Illinois EPA letter dated August 15, 2005, it is being re-
reviewed based upon additional information provided in a letter dated September 13, 2005 and
received by the Illinois EPA on September 16, 2005 . Citations in this letter are from the
Environmental Protection Act (Act) and 35 Illinois Administrative Code (35 Ill . Adm. Code) .
The budget is modified pursuant to Section 57 .7(c)(4) of the Act and 35 III. Adm. Code
.
732.405(c). Based on the modifications listed in-Section 2 of Attachment A, the amounts listed
in
Section
I of Attachment A are approved. Please note that the costs must be incurred in
accordance with the approved plan . Be aware that the amount of reimbursement may be limited
by Sections 57 .8(e), 57.8(g) and 57.8(d) of the Act, as well as 35111. Adm. Code 732.604,
732.606(s), and 732.611
.
All future correspondence must be submitted to :
Illinois Environmental Protection Agency
Bureau of Land - #24
Leaking Underground Storage Tank Section
1021 North Grand Avenue East
Post Office Box 19276
,
Springfield, IL 62794-9276
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
ROCXEORD-4302 North Main Street, Rockford. IL 61103-(815)
l!tGI,- S95 South State, Elgin, It 60123 -(847) 608
BUREAU
Of
LAND . PEORiA -7620N UniversitySt.,Peoria,IL61614-(3
SPRlvcnao-450D S . Sixth Street Rd.. Soringfield, IL 62706- (21
MARION-2309 W. Main
EXHIBIT
I
7
r . ~
JJiL'1'!
U 00 3
arrison St., Des Plaines, it 60016 - (847) 294.4000
St
.. Peoria, It 61614 -1309) 693-5463
South First
Street,
Champaign, IL 61820- ;2171 278-5800
Mall street, Collinsville, IL 62234-16101 346 .5120
)993.7200
11:04/05 16:45
Page 2
Please submit all correspondence in duplicate and include the Re : block shown at the beginning
of this letter .
An underground storage tank system owner or operator may appeal this decision to the Illinois
Pollution Control Board. Appeal rights are attached
.
If you have any questions or need further assistance, please contact Michael A . Heaton at
217/524-3312 .
-
X 618
281 7020
n
~
Michael T. Lowder
Unit Manager
Leaking Underground Storage Tank Section
Division of Remediation Management
Bureau of Land
MTL:mh\000566f6.doc
Attachment
:
Attachment A
Appeal Rights
Cc
:
Mr. Kenneth D. Olson - PSC Environmental Services (Columbia, Illinois)
Division File
PHILIP SERVICES
P.©4/©7
lj004
_ _LL/o4i0?_t6 :45,P.AX 618 281 7020
PHILIP SERVICES
Re :
LPC li 1330055033
-- Monroe County
Columbia /Gateway FS ; Inc .
219 N. Rapp St .
LUST Incident No. 20000566
LUST Technical File
Citations in this attachment are from the Environmental Protection Act (Act) and 35 Illinois
Administrative Code (35 Ill . Adm . Code) .
SECTION1
As a result of the Illinois EPA's modification(s) in Section 2 of this Attachment A, the following
amounts are approved for High Priority Corrective Action
:
S7,497.05
Investigation Costs
$1,935.00
Analysis Costs
$18,493.00
Personnel Costs
$5,870.00
Equipment Costs
$29,162.60
Field Purchases and Other Costs
$2,985.58
Handling Charges
SECTION 2
$36,497 .25 for Personnel Costs . These costs are
:
a .
for activities in excess of those necessary to meet the minimum requirements of
Title XVI of the Act (Section 5t5(a) of the Act) and 35111. Adm. Code 732
(Section 732.505(c)) .. Costs for corrective action activities and associated
materials or services exceeding the minimum requirements necessary to comply
with the Act are not eligible for payment from the Fund (35 Ill . Adm. Code
732.606(o)) . In additions these costs are not corrective action costs; "Corrective
action" means an activity associated with compliance with the provisions of
Sections 57.6. and 57.7 of the Act (Section57.2 of the Act and 35 111 . Adm. Code
732.1,03). One of the eligibility requirements for accessing the Fund is that costs
are associated with "corrective action." (Section 57.9(a)(7) of the Act)
b .
not reasonable as submitted (Section 57.7(c)(4)(C) of the Act and 35 III. Adm .
Code 732.606(hh)). One of the overall goals of the financial review is to assure
that costs associated with materials, activities, and services are reasonable (35 111
.
Adm. Code 732.505(c)). Please note that additional information and/or
supporting documentation may be provided to demonstrate the costs are
reasonable .
Attachment A
r .VDi !
Q005
11/04/05
16 :45 FAY 618 281 7020
Attachment A
Page 2
Specifically, two portions of the proposed Personnel budget are denied at this time
:
I
"Pre-MTBE BTEX-based HPCAP Activities" for $18,075.75; and
ii .
"Post-MTBE/Pending Property Sale HPCAP Development", for $18,075 .75 .
MTL:mh\000566a6.doc
PHILIP SERVICES
IJ006
11/04/05
16 :45
FAX 6182817020
PHILIP SERVICES
Appeal Rights
An underground storage tank owner or operator may appeal this final decision to the Illinois
Pollution Control Board pursuant to Sections 40 and 57.7(c)(4)(D) of the Act by filing a petition
for a hearing within 35 days after the date of issuance of the final decision . However, the 35-day
period may be extended for a period of time 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
operator wishes to receive a 90-day extension, a written request that includes a statement of the
date the final decision was received, along with a copy of this decision, must be sent to the
Illinois EPA as soon as possible
.
For information regarding the filing of an appeal, please contact
:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph, Suite 11-500
Chicago, IL 60601
312/814-3620
For information regarding the filing of an extension, please contact
:
Illinois Environmental Protection Agency
Division of Legal Counsel
1021 North Grand Avenue East
Post Office Box 19276
Springfield, IL 62794-9276
217/782-5544
a007
TOTAL P.07
r. 2up
11/04/05 16:45 VAX 618 281 7020 L4
PHILIP SERVICES
002
FEC
Illinois Environmental Protection Agency
Division of Legal Counsel, Attention : John Kim
1021 North Grand Avenue East
Post Office Box 19276
Springfield, IL 62794-9276
Dear Sir :
Subject :
LPC#1330055033 - Monroe County
Columbia / Gateway FS, Inc.
219 N. Rapp St.
LUST Incident No. 20000566/20001052/20001169
On behalf of Gateway FS, Inc ., PSC Environmental Services (PSC) is providing this request
for obtaining an extension to appeal the decision for the subject site provided in the IEPA's
letter dated October 27, 2005, and received on or around October 29, 2005
.
PSC understands the IEPA will take the proper actions with the Illinois Pollution Control
Board (IPCB) to obtain an extension of 125-days from October 29, 2005, in which, Gateway
FS, Inc. will have the right to file an appeal .
A copy of the IEPA's decision in question is attached.
If you have questions regarding this request, please call me at (618) 281-1548 .
Sincerely yours,
PSC NVIRONMF~NTAL SERVICES
Kenneth D. Olson,E.1.T., IL RPG 196-000944
Project Manager
KDOfEPA-Appeil
cc: Mr. Greg Bit hter (Gateway FS; Inc.-3631 Old>StateRoute 3, Red-Bud, IL 62278)
p6t8>282a3454 / f6l1-28>•.34t28,,,
EXHIBIT
I
November 4, 2005
Project 62401550
CERTIFICATE OF SERVICE
1, the undersigned attorney at law, hereby certify that on November 10 . 2005, 1 served
true and correct copies of a REQUEST FOR NINETY DAY EXTENSION OF APPEAL
PERIOD, 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 Springfield, Illinois, with
sufficient First Class Mail postage affixed thereto, upon the following named persons
:
Dorothy M. Gunn, Clerk
Kenneth D. Olson
Illinois Pollution Control Board
PSC Environmental Services
James R. Thompson Center
210 West Sand Bank Road
100 West Randolph Street
Columbia, IL 62236
Suite 11-500
Chicago, IL 60601
ILLINOIS
VIRONMENTAL PROTECTION AGENCY,
Respo
John J .
im
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
GATEWAY FS, INC .,
)
Petitioner,
)
v .
)
PCB No. 06-
ILLINOIS ENVIRONMENTAL
)
(LUST Appeal - Ninety Day Extension)
PROTECTION AGENCY,
)
Respondent
.
)
REQUEST FOR NINETY DAY EXTENSION
OF APPEAL PERIOD
NOW COMES the Respondent, the Illinois Environmental Protection Agency ("Illinois
EPA"), by one of its attorneys, John J. Kim, Assistant Counsel and Special Assistant Attorney
General, and, pursuant to Section 40(a)(1) of the Illinois Environmental Protection Act (415
ILCS 5/40(a)(1)) and 35 III. Adm. Code 105.208, hereby requests that the Illinois Pollution
Control Board ("Board") grant an extension of the thirty-five (35) day period for petitioning for a
hearing to March 3, 2006, or any other date not more than a total of one hundred twenty-five
(125) days from the date of service of the Illinois EPA's final decision . In support thereof, the
Illinois EPA respectfully states as follows :
On October 27, 2005, the Illinois EPA issued a final decision to the Petitioner
.
(Exhibit A)
2.
On November 4, 2005, the Petitioner made a written request to the Illinois EPA
for an extension of time by which to file a petition for review, asking the Illinois EPA join in
requesting that the Board extend the thirty-five day period for filing a petition to ninety days
.
The Petitioner represented that the final decision was received on October 29, 2005. (Exhibit B)'
3 .
The additional time requested by the parties may eliminate the need for a hearing
in this matter or, in the alternative, allow the parties to identify issues and limit the scope of any
hearing that may be necessary to resolve this matter
.
I
EXHIBIT
C
WHEREFORE, for the reasons stated above, the parties request that the Board, in the
interest of administrative and judicial economy, grant this request for a ninety-day extension of
the thirty-five day period for petitioning for a hearing.
Respectfully submitted.
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
John
. Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: November 10, 2005
This filing submitted on recycled paper .
2
ILLINOIS POLLUTION CONTROL BOARD
November 17, 2005
GATEWAY FS, INC .,
)
Petitioner,
)
V.
)
PCB 06-76
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
(90-Day Extension)
PROTECTION AGENCY,
)
Respondent
.
)
ORDER OF THE BOARD (by J.P. Novak) :
On November 14, 2005, the parties timely filed a joint notice to extend the 35-day period
within which Gateway FS, Inc. (Gateway FS) may appeal an?October 27, 2005 determination of
trite-Illinois Environmental Protoctiotr Agency
(Agency)
.
See 415 ILCS 5/40(a)(1) (2004) ; 35 III
.
Adm. Code 105.402, 105.406. The Agency modified the high priority corrective action plan
budget for Gateway FS's leaking underground petroleut
storage
tank facility located at 219
North Rapp-Street, Columbia; Monroe
•C
ounty.
The Board extends the appeal period until Match 3 ; 2006, as the parties request . See415
ILCS 5/40(a)(1) (2004); 35 fit. Adm. Code 105 .406. If Gateway FS fails to file an appeal on or
before that date, the Board will dismiss this case and close the docket
.
IT IS SO ORDERED .
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on November 17, 2005, by a vote of 4-0
.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
EXHIBIT
T-)
GATEWAY FS, (NC.,
)
Petitioner,
V .
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent .
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respon
John J .
im
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield. Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: November 10. 2005
BEFORE THE POLLUTION CONTROL BOARD JCLRK'S
S
OFFIIC
C
OF THE STATE OF ILLINOIS
NOTICE
Dorothy M. Gunn, Clerk
Kenneth D. Olson
Illinois Pollution Control Board
PSC Environmental Services
James R. Thompson Center
210 West Sand Bank Road
100 West Randolph Street
Columbia, IL 62236
Suite 11-500
Chicago, IL 60601
PLEASE TAKE NOTICE that f have today filed with the office of the Clerk of the Pollution
Control Board a REQUEST FOR NINETY DAY EXTENSION OF APPEAL PERIOD. copies of which
are herewith served upon you .
MAR 0 7 2006
STATE OF ILLINOIS
Pollution Control Board
PCB No. 06-
:,r.
(LUST Appeal - Ninety Day Extension)
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on March 3, 2006, 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
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, IL 62794-9276
40
urtis W. Martin, torney for
