BIGGS BROTHERS SERVICE CENTER,
)
Petitioner,
)
V.
)
PCB No. 06-88
(LUST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
NOTICE OF FILING
To :
Dorothy M . Gunn, Clerk
William D . Ingersoll
Illinois Pollution Control Board
Managing Attorney
James R. Thompson Center
Illinois Environmental Protection Agency
100 West Randolph Street
1021 North Grand Ave
. East
Suite 11-500
Springfield, IL 62702
Chicago, IL 60601
PLEASE TAKE NOTICE that we have this day filed with the office of the Clerk
of the Pollution Control Board the
Petition for Review a
copy of which is enclosed
herewith and hereby served upon you .
March 9, 2006
BIGGS BROTH RS SERVICE CENTER
RECEIVEDCLERK'S
OFFICE
MAR 1
3 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR%TATEPollution
OF
Control
ILLINOISBoard
By:_John John
T
.
THundley
. Hundley
One of its Attorneys
John T . Hundley
THE SHARP LAW FIRM, P.C
.
P.O . Box 906
- 1115 Harrison
Mt. Vernon, IL 62864
618-242-0246
Counsel for Petitioner Biggs
Brothers Service Center
sara\wpdocs\USI-Biggs\Filing Notice
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that I caused copies of the
foregoing document to served by placement in the United States Post Office
Mail Box at Mt . Vernon, Illinois, before 6 :00 p .m
. this date in sealed envelopes
with proper first-class postage affixed, addressed to
:
Dorothy M . Gunn, Clerk
Illinois Pollution Control Board
James R . Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
March 9, 2006
William D. Ingersoll
Managing Attorney
Illinois Environmental Protection Agency
1021 North Grand Ave . East
Springfield, IL 62702
/s/
T
. Hu4h_y
John T. Hundley
John T
. Hundley
THE SHARP LAW FIRM, P .C .
P.O . Box 906 - 1115 Harrison
Mt . Vernon, IL 62864
618-242-0246
Counsel for Petitioner Biggs Brothers Service Center
MAR 1 3
2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOAISTATEPollution OF
Control
ILLINOISBoard
BIGGS BROTHERS SERVICE CENTER, )
Petitioner,
)
v .
) PCB No. 06-88
(LUST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent .
)
PETITION FOR REVIEW
Pursuant to §§ 40 and 57 .7 of the Environmental Protection Act
("Act"), 415
ILCS 5/40, 5/57 .7, to the Board's regulations on Leaking Underground Storage
Tank ("LUST") decisions, 35
ILL. ADM . CODE 105 .400 et seq
., and to the Order
adopted herein December 15, 2005, petitioner Biggs Brothers Service Center
("Biggs"), by its attorneys in this regard, The Sharp Law Firm,
P .C ., submits this
Petition for Review
of the Illinois Environmental Protection Agency ("Agency")
decision attached hereto as Exhibit 1 ("Decision") denying Biggs approval of a
Revised Amended High Priority Corrective Action Plan (the "Plan") and further
denying approval of the budget associated therewith .
I . THE AGENCY'S FINAL DECISION
The Decision of which review is sought is contained in Exhibit 1 hereto
.
II .
SERVICE OF THE AGENCY'S FINAL DECISION
The Decision indicates it was mailed November 3, 2005
. It was received by
Biggs November 4, 2005
. The date for filing of this appeal was extended to
March 9, 2006 by Order of the Board adopted December 15, 2005
.
-1-
RECEIVED
CLERK'S OFFICE
Ill . GROUNDS FOR APPEAL
A. Introduction.
This appeal involves remediation of a site near Fairmont City which formerly
was home to five underground storage tanks . Tests have shown that gasoline
and diesel fuel were released from the tanks prior to their removal in 1999 . As
a result, the Agency conditionally approved "high priority" classification of the
site
. In accordance with a Corrective Action Plan ("CAP")
approved November
7, 2002, certain soil abatement and groundwater monitoring activities com-
menced . After completion of conventional soil abatement activities, monitoring
wells were sampled pursuant to the CAP to determine the effect on ground-
water
. The results were unsatisfactory, but the site's physical characteristics
made further conventional remediation problematic . For example :
•
The soil is very sandy, making excavation difficult because soil adjacent
to areas being excavated collapses into the excavated cavity .
• The site has a building upon it, which, due to the point discussed
above, was threatened with damage during earlier attempts to remove
contaminated soil by excavation
.
•
The site is in an environmentally sensitive area,
i.e., in the floodplain of
the Mississippi River, with a sand and gravel aquifer present beneath the site
.
•
There are water wells in the vicinity .
•
The area has a water level of 12 to 16 feet below the ground surface .
•
The site is adjacent to a highway, also making remediation problematic
.
-2-
Because of such problems, Biggs and its environmental consultant, United
Science Industries, Inc . ("USI"), proposed remediation utilizing alternative
technology . Specifically, because of the site's problematic physical character-
istics Biggs and USI proposed use of "In Situ Chemical Oxidation" ("ISCO") - a
name for processes under which contaminants are not removed but are
chemically oxidized in their original location . Biggs and USI proposed bench
scale treatability and pilot studies' using two chemicals - hydrogen peroxide
and sodium persulfate -
which have been shown to react with petrochemical
contaminants and break them down into non-dangerous substances .
Hydrogen peroxide (H202) is a water molecule with an extra atom of
oxygen
. In the presence of any number of substances which serve as cata-
lysts, two molecules of it readily break down into two molecules of water (H20)
and one of oxygen (02) . See, e.g., 6
ENCYCLOPAEDIA BRITANNICA 192 (15th ed .
2002) ; 15 id. 788-89, 1063 . While hydrogen peroxide's ability to oxidize rem-
nants of petroleum product releases is well established, so too are its risks
.
Indeed, because so many substances, sometimes in modest amounts, trigger
1 In the bench scale study, one or
more samples of soil from the actual site would have been
collected and treated with the chemicals in a laboratory to simulate anticipated field conditions
.
In this regard, a key issue would have been to develop a proper design of chemicals for the
sandy soil at the site . The Agency's hostility to sodium persulfate (more fully discussed later in
this Petition) was based on its limitations in silty clay soils found elsewhere in Illinois . Under the
chemical oxidation regimen more fully discussed below, if the laboratory study showed that the
chemicals could be effective in the sandy soil, Biggs would have proceeded to a pilot study in
the field, applying the results of the bench field test to actual conditions at the site
. As
discussed below, the objective in this regard would have been not solely to determine that the
chemicals worked, but the amounts and methods of administration appropriate to make the
treatment both effective and safe .
-3-
breakup of H202 ,
a difficulty in its use stems from the fact that explosions can
result depending on how much of such substances are present
. Id.
In the use of sodium persulfate, a chemical is delivered to the vicinity of the
contaminant in conjunction with a chemical catalyst,2 causing creation of a free
radical, SO 4_
. This radical attacks the organic molecule and breaks it down
.
Although not established for so long historically, use of sodium persulfate as an
oxidant in environmental remediation has received industry acceptance, as
have new applications of hydrogen peroxide which minimize explosive risk
.
The use of sodium persulfate and of the modern applications of hydrogen
peroxide have received the approval of the Interstate Technology & Regulatory
Council ("ITRC"),
a state-led coalition of regulators and industry members which
works to achieve regulatory acceptance of environmental technologies
. Origin-
ating from an initiative of the Western Governors' Association (WGA) in 1995
and affiliating in 1999 with the Environmental Research Institute of the States,
the nonprofit educational subsidiary of the Environmental Council of the States,
ITRC consists of Illinois, 42 other states, the District of Columbia, multiple
federal agencies, industry members and others
. It receives support from WGA,
the Southern States Energy Board, the U
.S . Department of Energy, the U
.S .
Department of Defense and the U .S
. Environmental Protection Agency
.
In 2001, ITRC published
Technical and Regulatory Guidance for In Situ
Chemical Oxidation of Contaminated Soil and Groundwater,
describing three
2
Heat or ultraviolet light also can serve as catalysts, but were not proposed here
.
-4-
common chemical oxidants and reporting on case studies concerning them
.
Thereafter, ITRC in 2005 published
Technical and Regulatory Guidance for In
Situ Chemical Oxidation of Contaminated Soil and Groundwater
(2d ed .), which
revised and expanded the original paper and went on to set forth technical and
regulatory requirements for in situ
chemical oxidation and to present key
concepts of remedial design in using such technology.
Its requirements and
design approach were the basis for Biggs' Plan .
Notwithstanding the Plan's pedigree, the Agency, by and through Harry
Chappel, a LUST unit manager with whom USI has had adverse relations on
other matters, 3
has rejected it . Because Chappel's Decision is arbitrary, capri-
cious and contrary to law, it must be reversed
.
B. The Decision Violated Applicable Law
In Summarily Rejecting Use of Sodium Persulfate
.
In the Decision, Chappel first objected that (emphasis added)
:
The plan indicates that two different chemical oxidants, hydrogen peroxide
and sodium persulfate, will be addressed for potential alternative remedial
technologies for this site .
However, the Illinois EPA does not currently
consider sodium persulfate as an acceptable remedial oxidant for LUST
sites .
Therefore, the Illinois EPA has the following concerns with the
plan/proposal for the use
of hydrogen peroxide
as a potential chemical
oxidant for remediation
of soil
and groundwater contamination :
3
As demonstrated in the Petition for Review filed on behalf of another USI client in Dalee Oil
Co. v
. 1EPA, PCB No
. 06-40, Chappel and members of his section were the architects of the
unlawful rate sheet found to have been unlawfully applied in LUST cases
(Illinois Avers Oil
Co . v.
IEPA, PCB
03-214), and, upon being thwarted in that effort, they attempted to
accomplish the same ends by rule-making
(In the
Matter of Proposed Amendments to
Regulation of Petroleum Leaking Underground Storaqe Tanks,
Nos
. R04-22, R04-23) . USI
vigorously opposed those efforts, and it seems clear that Chappel has responded with bias
against owner-operators who have utilized USI's services
.
-5-
By this process, Chappel summarily rejected the use of sodium persulfate
.
This arbitrary and capricious action cannot be justified
. 35 ILL. ADM
. CODE
732 .407
specifically provides for consideration of alternative technology
. No
portion of the Decision claimed that Biggs had not met the procedural
requirements for consideration of alternative technology, and no portion
applied the substantive provisions of § 732.407
to the use of sodium per-
sulfate as part of the Plan
. Instead, Chappel applied a per se disqualification
of sodium persulfate . This is directly contrary to §
732 .407.
Provisions for
"alternative technology" are meaningless if the "alternative technology" must be
on some pre-approved list of "acceptable remedial oxidant[s] for LUST sites
."
The per se
disqualification of sodium persulfate was a "statement of
general applicability that implements, applies, interprets, or prescribes law or
policy" and hence was a "rule" within the meaning of §
5
of the Illinois
Administrative Procedure Act ("APA"),
5 ILCS
100/1-70 .
Accordingly, the per
se disqualification of sodium persulfate can be affirmed only if the rule-
making requirements of the APA
(5 ILCS 100/5-5 et seq
.) were complied
with, and they were not
. The summary rejection of sodium persulfate was
unlawful under both the Agency's regulations and the APA
.
C.
Rejection of the Proposed Use of Hydrogen Peroxide Was
Disingenuous, Contrary to Law and Science, and Reckless
.
Having summarily rejected use of sodium persulfate, Chappel then went
on to reject the proposed use of hydrogen peroxide, claiming "the following
-s-
concerns for the plan/proposal for the use of hydrogen peroxide"
. First was
the claim that "[t]heoretical calculations need to be provided indicating"
:
1 . Desired contaminant concentrations in soil and groundwater post remed-
iation
;
2 . Modeling for potential migration of the concentration left in the soil and
groundwater post remediation- modeling [sic] should take into consider-
ation the soil and groundwater contamination under the building as well
;
3 . Proposed technology will achieve the contaminant concentration desired
in items #1 and #2 listed above
.
The substance of each of those concerns in fact had been addressed in the
Plan . To demand that they be addressed with "theoretical calculations" not
based on actual findings at the site was nonsensical and contrary to the
technology proposed to be applied
.
Chappel then went on to offer as a "concern"
:
Hydrogen peroxide is a proven alternative technology for remediation of
petroleum products
. Therefore, it is unclear to the Illinois EPA as to the
purpose of a pilot study
. A bench scale test with hydrogen peroxide can be
conducted by Orin, however please note that if the chosen technology for
remediation for this LUST site is other than hydrogen peroxide then the
costs for the bench scale testing will not be reimbursable
. In addition, if the
purpose for a pilot study is to determine the radius of influence in the
vadose zone and/or the groundwater then a field pilot study may be
necessary
. If a pilot study is deemed necessary then it shall consist of two
(2) to three (3) injection points (maximum) within the most contaminated
soils/groundwater to determine if the target contamination concentration
will be achieved[4]
;
In claiming not to understand the reason for studies, Chappel ignored both the
requirements of in situ chemical oxidation remediation as set forth in the ITRC
4 The suggested allowance of a pilot study consisting of 2-3 injection points was in fact illusory,
since Chappel did not approve a budget for it
.
-7-
publication and a specific explanation in the Plan, which stated (emph
. added) :
The Illinois Licensed Professional Engineer (PE) at USI understands that the
Agency prefers to avoid treatability studies and pilot studies for alternative
technologies
. However, due to the degree and the extent of the soil and
groundwater contamination plumes associated with the Biggs Brothers LUST
site, the PE has determined that the engineering design must utilize a
conservative engineered approach which takes into account all site specific
nuances which could influence oxidant application rates
. The PE cannot
certify a plan which proposes full scale ISCO remediation without a deliberate
approach to engineering and design . The engineering prescribes the theoretical
and practical issues related to field application and design processes of ISCO
including a laboratory treatability study and pilot-scale study prior to
proposing full scale implementation . Please note that
the purpose of the
treatability study and pilot study is not to prove the alternative technology
.
Rather, the studies are an important part of the ISCO engineering and
design process.
In ISCO, it is one thing to know that chemical oxidation is, as a general
matter, "a proven alternative technology for remediation of petroleum prod-
ucts", and quite another to know the amount and method which will be both
safe and effective in a particular location
. ISCO technology is, after all,
applied in situ,
not in a laboratory .
Chappel then went on to demand a "cross-section map illustrating the
excavation and the free product trench" when in fact there was no free product
trench at the site and none had been mentioned in the Plan
. He further
objected to the proposal for vent wells, claiming "the plan does not include a
discussion as to the purpose/necessity for the vent wells"
; whether he failed to
read the provision that "vent wells will be installed along the west side of the
building for off-gas venting as
a precaution" (emph
. added) or whether he blew
off safety considerations in his belief that prior proof of peroxide's efficacy made
-8-
pilot study considerations unnecessary is unclear
. What is clear is that the
Plan's alternative technology proposal was based on sound scientific, engin-
eering, and technical design principles which he utterly disregarded . Time and
again in the Decision, Chappel's reasoning and his claims of Plan shortcomings
reflected a failure to comprehend what the Plan in fact stated, a failure to
comprehend the ITRC standards and methodology, or a willful and disingen-
uous disregard for both . In rejecting the Plan and suggesting that Biggs just
shoot its land full of peroxide, he ignored sound scientific, engineering and
technical design practices to the detriment of human health and safety .
The last point deserves elaboration . Prior to submission of the Plan now at
issue, Biggs submitted its Amended Corrective Action Plan on November 19,
2004 . The contamination of the groundwater aquifer and other threats to
human health and safety were clearly shown in that submission
. However,
Chappel and his unit took 119 of the statutorily permitted 120 days to review
that submission, and then rejected it - the functional equivalent of an order to
do nothing - based on objections which paled in comparison to the health and
safety threat
. Biggs promptly proceeded to prepare the Plan now at issue,
incorporating the material available through publication of the 2005 ITRC study,
and submitted it with a cover letter expressly addressing the previous rejection
points. Chappel and his unit then took all of the statutorily permissible 120 days
to review the Plan, and rejected it on grounds that are meritless, disingenuous
and inconsequential compared to the health and safety considerations at issue
.
-9-
Such conduct can only be called dereliction of duty
.
D.
Rejection of the Free Product Removal
Plan Was Disingenuous and Improper
.
At pp
. 7-9, the Plan included a Free Product Removal Corrective Action
Plan, and costs for free product removal were included in the budget submitted
in conjunction with the Plan
. The background for this material is as follows .
Under 35
ILL . ADM . CODE 732
.203(b), "For purposes of reimbursement,
owners or operators are not required to obtain Agency approval pursuant to
Section 732
.202(g) for free product removal activities conducted more than 45
days after initial notification to IEMA of a release
." Nonetheless, the Agency
requested in 2002 that the free product removal activities at the Biggs site be
included in a free product removal plan and a budget, and Biggs agreed to do
so
. A Post Corrective Action Free Product Removal Plan and Budget were
submitted with the Free Product Removal Report received by the Agency
February 13, 2004
. By letter dated June 10, 2004, the Free Product Removal
Report was accepted but the Post Corrective Action Free Product Removal
Plan was not approved and the associated budget was not reviewed
. The
Agency asked that the Free Product Removal Plan be submitted as part of an
Amended Corrective Action Plan and Budget
.
As requested, Biggs then
included the Free Product Removal Plan in an Amended Corrective Action Plan
dated November 17, 2004
. The removal plan was again rejected by letter dated
March 18, 2005
. Thus, a Free Product Removal Plan was again submitted in
-10-
the Plan which is the subject of this appeal, and it was again rejected .
The Decision's handling of this point is disingenuous, stating :
The plan proposes to replace five (5) groundwater monitoring wells with
recovery wells and utilize Petro-Trap EZY Skimmers in the recovery wells
.
However, according to the information provided in the plan it does
not
appear that the wells need replaced or the use of skimmers
are [sic]
necessary since the amount of free product being recovered is controlled by
using the SoakEase Socks and monitoring (including hand bailing of [sic]
necessary)
. Therefore, the replacement of the groundwater monitoring
wells and use of Petro-EZY Skimmers is not approved at this time
. In
addition, if chemical oxidation of the contamination is utilized then it does
not appear necessary to treat free product separately .
These comments are not only incorrect, they are a disingenuous excuse for
denying Biggs reimbursement for free product recovery efforts not addressed in
the rejection
. The Agency's denial of three free product removal plans and
associated budgets also has been a dereliction of duty by public officials in
protection of human health and the environment in accordance with their
statutory authority and duties .
E.
The Iron and Sulfate Issues Were
Not Grounds for Reiectinq the Plan
.
Chappel went on to rule :
The plan does not include documentation that injection of the chemical, or the
impact of the treatment on existing soil and groundwater, will not cause an
exceedence of the primary drinking water regulations at 35 Ill . Adm
. Code 611
during or after remediation (Sections 12(a) and 12(d) of the Act and 35
111.
Adm. Code 732 .407(a))
. Said documentation must be submitted to the Illinois
EPA's Leaking Underground Storage Tank Section as part of the plan for
review and approval
. Further, you may be required to submit an application
for a permit to the Illinois EPA's Underground Injection
Control (UIC)
Program, prior to injection, if an exceedence of the primary drinking water
regulations will result during or after remediation . . . .
Please note that pursuant to 35 Il
. [sic] Adm
. Code Section 742 .Appendix B
includes a cleanup objective for iron for the Soil Component of the Ground-
water Ingestion Route and the Groundwater Route of 5 mg/L for both Class I
and Class II groundwater
. Calculations will be necessary to indicate that the
residual iron will not exceed the cleanup objective(s)
.
The bulk of this objection had been made in response to a previous version of
the Plan and was addressed
by Biggs in a
cover letter submitted with the Plan
:
As previously stated in the ACAP and repeated in the Revised ACAP, both
chemical oxidants (either hydrogen peroxide or sodium persulfate)
breakdown into carbon dioxide and water
. The catalyst that is being
considered with the use of both chemical oxidants is ferrous sulfate hepta-
hydrate (FeS04 .7H20) (Appendix J)
. The amount of iron in this compound is
500 ppm
. Please note that there are no primary drinking water standards for
either iron or sulfate
. Iron and sulfate are secondary standards which are 0
.3
mg/L and 250 mg/L, respectively (USEPA National Primary Drinking Water
Regulations and National Secondary Drinking Water Regulations)
. However,
considering gasoline free product is present in some wells and in other wells
the groundwater is at very high levels of benzene (up to a maximum 24 ppm)
which greatly exceed drinking water standards, the addition of iron or
sulfate in small amounts to reduce the BTEX contaminants will not be an
issue when it comes to drinking water standards
. Also given the neutral pH
conditions, the iron will not remain in solution but precipitate and will not
be a potential contaminant to the groundwater .
Acidic conditions are
necessary for iron to remain in the dissolved state
.
Considering the use of institutional controls, the ACAP does not propose
clean up the groundwater to drinking water standards
.
The Plan is to
reduce the contaminants to levels which do not exceed the TACO Tier 1,
Class 1 Objectives when modeled to the offsite property boundary across
Kingshighway using the R-26 equation
.
A R-26 equation has been
modeled at RW-3 which currently is the most contaminated onsite well (24
ppm) and represents the worst-case scenario
. Using R-26 equation and a
proposed remediation objective level of 115 for benzene, RW-3 shows a
migration of 60 feet which lies just short of the offsite property across
Kingshighway (Appendix I)
. Monitor Well MW-1 was also modeled
because of its proximity to the right-of-way (Appendix I)
. Nevertheless, a
Groundwater Deed Restriction is necessary for the Biggs Bros property
proper thus mitigating the use of groundwater for drinking purposes as well
as a Highway Authority Agreement for groundwater contamination under
Kingshighway
.
-12-
As USI has done in the past with the complicit approval of the Agency, an
Illinois EPA UIC Inventory Information form will be submitted following
Agency approval of the Revised ACAP
. The information submitted to the
UIC Program will include what chemical oxidants and catalyst are
expected to be used
. Four nearby monitor wells will be sampled following
remediation . USI as a precaution will add iron and sulfate to the list of
analytes for the pilot study to determine if the water is impacted
. However,
iron is expected to absorb to particulate matter during remediation rather
than remain in a dissolved state thereby not affecting groundwater quality
.
Here, as stated in the Plan and as demonstrated by elementary chemistry
(see pp
. 3-4 above), the breakup of hydrogen peroxide would create water and
oxygen and the resultant oxidation of the petrochemical remnants would create
carbon dioxide
. Hence the use of hydrogen peroxide would have created as a
"contaminant" of potential concern only the catalyst used in connection with the
peroxide breakdown -
in this case, iron and sulfate . Chappel's citation to
"Sections 12(a) and 12(d) of the Act and 35 III . Adm
. Code 732 .407(a)" was
disingenuous fear-mongering
. 415 ILCS 5/12(a) provides that no person shall
:
Cause or threaten or allow the discharge of any contaminants into the environ-
ment in any State so as to cause or tend to cause water pollution in Illinois,
either alone or in combination with matter from other sources, or so as to
violate regulations or standards adopted by the Pollution Control Board
. . . .
Similarly, under § 12(d), no person shall "[d]eposit any contaminants upon the
land in such place and manner so as to create a water pollution hazard
."
However, under 415 ILCS 5/3
.545 (emphasis added), "water pollution" is
such alteration of the physical, thermal, chemical, biological or radioactive
properties of any waters of the State, or such discharge of any contaminant into
any waters of the State, as will or is likely to
create a nuisance or render such
waters harmful or detrimental or injurious
to public health, safety or welfare,
or to domestic, commercial, industrial, agricultural, recreational, or other legi-
-13-
timate uses, or to livestock, wild animals, birds, fish, or other aquatic life
.
The trace amounts of iron or sulfate which would result from chemical oxidation
with hydrogen peroxide would not constitute "water pollution"
within the
meaning of that statutory provision . As to 35 ILL
. ADM . CODE 732 .407(a),
Chappel apparently referred to the requirement in § 732
.407(a)(2) that
alternative technology plans "demonstrate that the proposed technology will not
adversely affect human health or the environment", also a spurious issue
.
The observation that 35 ILL. ADM
. CODE
Part 742 Appendix B includes a
cleanup objective for iron was correct, but the objectives in Appendix B are less
restrictive
than the secondary drinking water standards addressed in the July 5,
2005 cover letter
. The prospect of the chemical oxidation process creating an
amount of either ferrous or sulfate residue in excess of those standards is
extremely remote
. However, in the cover letter submitted with the Plan, Biggs
agreed "as a precaution [to] add iron and sulfate to the list of analytes for
the pilot study to determine if the water is impacted
."
In short, these issues were adequately addressed by the Plan and are not a
reasonable rejection point for a LUST site which already is contaminated by a
petroleum release and in need of "high priority" remediation in order to protect
human health and the environment
.
F.
Resection of the Budqet Was Improper
.
In the Decision, Chappel also denied the budget associated with the Plan
.
His first rationale for doing so was that the budget could not be approved
-14-
without an approvable plan, a ground which would have been valid had
Chappel's rejection of the Plan had merit
. Upon reversal of the denial of the
Plan, this objection evaporates, however
.
In addition, Chappel objected
:
The budget includes costs that lack supporting documentation (35 Ill
. Adm.
Code 732 .606(gg))
. A corrective action plan budget for a site classified as
high priority must include, but not be limited to, an accounting of all costs
associated with the development, implementation, and completion of the
applicable activities (Section
57.7(c)(1)(B)[5]
of the Act and 35 Ill
. Adm .
Code 732.405(b)[6])
.
Since there is no supporting documentation of costs,
the Illinois EPA cannot determine that costs will not be used for activities
in excess of those necessary to meet the minimum requirements of Title
XVI of the Act (Section 57.5(a)
of the Act and 35 Ill
. Adm. Code
732 .606(o)) .
The claim that there was "no supporting documentation of costs" was
simply incorrect .' Moreover, as
required (35 ILL
. ADM . CODE 732 .405(b),
5 Chappel apparently cited § 57.7(c)(1)(B)
as amended by P .A. 92-574, 92-651 and 92-735
:
If the owner or operator intends to seek payment from the Fund, prior to performance of any
corrective action beyond that required by Section 57.6
and subsection (a) of Section
57.7, the
owner or operator shall submit to the Agency for the Agency's approval or modification a
corrective action plan budget which includes, but is not limited to, an accounting of all costs
associated with the implementation and completion of the corrective action plan
.
6
35 III. Adm . Code 732.405(b)
provides in pertinent part that
any owner or operator intending to seek payment from the Fund shall submit to the Agency a
groundwater monitoring or corrective action budget plan
. Such budget plans shall include, but
not be limited to
. a copy of the eligibility and deductibility determination of the OSFM and a
line item estimate of all costs associated with the development, implementation and com-
pletion of the applicable activities
. Formulation of budget plans should be consistent with
the eligible and ineligible costs listed at Sections
732 .605 and 732
.606 of this Part .
Groundwater monitoring and corrective action budget plans shall be submitted on
forms prescribed and provided by the Agency and, if specified by the Agency by
written notice, in an electronic format
.
For example, bids from proposed subcontractors who would apply the alternative technology
were attached .
-15-
732
.501), Biggs submitted its budget proposal on Agency forms
. Chappel's
penchant for claiming that use of the required forms is inadequate documenta-
tion in some cases but ignoring this aspect in others is a guise for arbitrary and
capricious decision-making
.
Chappel speculates that the proposed costs may be used for unpermitted
purposes
. However, both owner and engineer swore that "costs ineligible for
payment from the [LUST] Fund pursuant to 35 Illinois Administrative Code
Section 732 .606 are not included in the budget proposal"
. Chappel claims the
budget was denied because he could not determine that this was so
. However,
multiple provisions refute the claim that the Agency has no way of determining
whether the reimbursement costs are for improper purposes
. See, e.g., 415
ILCS 5/57
.7(c)(4)(C) as amended by P .A. 92-554 ; 415 ILCS 5/57 .7(c)(4)(D)(iii)
as amended by P.A. 92-574, P.A
. 92-651 and P .A. 92-735 ; 415 ILCS 5/30 ; 35
ILL. ADM . CODE 732
.502(b), 732 .502(d) .
Lastly, Chappel rejected the budget because
:
The budget fails to include the following :
a. Documentation/explanation of the amount hours [sic] estimated per
title per task for Personnel Costs
. It is unclear to the Illinois EPA why
the costs for Personnel have increased over $25,000.00
in this budget
from the last budget since the majority of the revised corrective action
plan is a copy of the last plan submitted;
b
. Soil PNA analysis does not appear necessary since the soil sample
results post soil excavation do not indicate PNAs above the Tier I
Cleanup Objectives
.
As pointed out in the cover letter submitted with the Plan, the soil PNA analyses
-16-
were included in the Plan in response to the Agency's criticism of the previous
proposal . Chappel's first requiring something and then decreeing it excessive is
the epitome of arbitrary and capricious action . Moreover, the personnel costs
were submitted on Agency forms as required with appropriate details filled out,
and were in fact addressed in the submission .
IV. CONCLUSION .
For all the foregoing reasons, petitioner Biggs Brothers Service Center
respectfully submits that the Decision should be reversed and the Agency
ordered to approve the Revised Amended High Priority Corrective Action Plan
and the budget associated therewith
. Because the matter has been pending
before an official and unit which have evidenced bias against Biggs' consultant
and prejudice against the alternative technology at issue, Biggs respectfully
requests that the Board order that on remand the matter be assigned to another
unit in the LUST section .
March 9, 2006
BIGGS BROTHERS SERVICE CENTER
By: /s
hn T . H ndley
One of its Attorneys
John T . Hundley
THE SHARP LAW FIRM, P.C .
P .O. Box 906 - 1115 Harrison
Mt. Vernon, IL 62864
618-242-0246
Counsel for Petitioner Biggs Brothers Service Center
-17-
Dorothy M . Gunn, Clerk
Illinois Pollution Control Board
James R
. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
March 9, 2006
sara\wpdocs\USI-Biggs\Petition for Review
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that I caused copies of the
foregoing document to served by placement in the United States Post Office Mail
Box at Mt
. Vernon, Illinois, before 6 :00 p .m
. this date in sealed envelopes with
proper first-class postage affixed, addressed to
:
/s
n T. Hu ley
John T . Hundley
John T
. Hundley
THE SHARP LAW FIRM, P.C
.
P.O . Box 906 - 1115 Harrison
Mt. Vernon, IL 62864
618-242-0246
Counsel for Petitioner Biggs Brothers Service Center
William D . Ingersoll
Managing Attorney
Illinois Environmental Protection Agency
1021 North Grand Ave . East
Springfield, IL 62702
1021 NORTH GRAND AVENUE EAST, P .O . Box 19276, SPRINGFIELD, ILLINOIS 62794-9276-( 217) 782-3397
JAMES R
. THOMP50N CENTER,
100 WEST RANDOLPH, SUITE 11-300, CHICAGO, IL 60601
- (312) 814-6026
ROD R . BLAGOJEVICH, GOVERNOR
DOUGLAS P . SCOTT,
DIRECTOR
217/782-6762
NOV 0 3 2006
Biggs Brothers Service Center
Attention
: Sonny Biggs
2540 Kingshighway
Fairmont City, Illinois 62201
Re:
LPC #1634255004 -St
. Clair County
Fairmont City/Biggs Brothers Service Center
2540 Kingshighway
LUST Incident No
. 990762 & 991840
LUST Technical File
Dear Mr . Biggs
:
The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the Revised
Amended High Priority Corrective Action Plan (plan) submitted for the above-referenced
incident. This information, dated July 5, 2005, wass received by the Illinois EPA on July 6, 2005
.
Citations in this letter are from the Environmental Protection Act (Act) and 35 Illinois
Administrative Code (35 111
. Adm
. Code).
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
rrE . h:r
B .p
CERTIFIED MAIL
7004 2510 0001 8648 3568
Pursuant to Section 57.7(c)(4)(D) of the Act and 35 III . Adm. Code 732.405(c),
the plan is
rejected for the following reason(s) :
1 .
The plan indicates that two different chemical oxidants, hydrogen peroxide and sodium
persulfate, will be addressed for potential alternative remedial technologies for this site
.
However, the Illinois EPA does not currently consider sodium persulfate as an acceptable
remedial oxidant for LUST sites
. Therefore, the Illinois EPA has the following concerns
with the plan/proposal for the use of hydrogen peroxide as a potential chemical oxidant
for remediation of soil and groundwater contamination
:
a.
Theoretical calculations need to be provided indicating the following
:
1 .
Desired contaminant concentrations in soil and groundwater post
remediation;
2.
Modeling for potential migration of the concentration left in the soil and
groundwater post remediation- modeling should take into consideration the soil
and groundwater contamination under the building as well
;
3.
Proposed technology will achieve the contaminant concentration desired
in items #1 and #2 listed above
.
ROCKFORD-4302 North Main Street, Rockford, IL 61103-(815) 987-7760
•
DES PLAINES-9511 W
. Harrison St ., Des Plains, IL 60016-(847) 294-4000
ELGIN-595 South State, Elgin, IL 60123-(847) 608-3131
• PEORIA-5415 N
. University St ., Peoria, IL 61614-(309) 693-5463
BUREAU OF
LAND- PEORIA-7620 N . University St., Peoria, IL 61614-(309) 693-5462
CHAMPAIGN-2125 South First Street, Champaign, IL 61820-(217) 278-5800
SPRINGFIELD-4500 5 . Sixth Street Rd ., Springfield, IL 62706-(217) 786-6892
•
CowNSVluE-2009 Ma II Street, Col IinsviIle, IL 62234-(618) 346-5120
MARION-2309 W . Main St
., Suite 116, Marion, IL 62959-(618) 993-7200
PRINTED ON RECYCLED PAPER
EXHIBIT.7
Page 2
b .
Hydrogen peroxide is a proven alternative technology for remediation of
petroleum products .. Therefore, it is unclear to the
. Illinois EPA as to the purpose
of a pilot study
. A bench scale test with hydrogen peroxide can be conducted by
Orin, however please note that if the chosen technology for remediation for this
LUST site is other than hydrogen peroxide then the costs for the bench scale
testing will not be reimbursable
. In addition, if the purpose for a pilot study is to
determine the radius of influence in the vadose zone and/or the groundwater then
a field pilot study may be necessary. If a pilot study is deemed necessary then it
shall consist of two (2) to three (3) injection points (maximum) within the most
contaminated soils/groundwater to determine if the target contamination
concentration will be achieved
;
c.
The plan fails to discuss the potential effects of obstacles that may inhibit or
influence the preferential pathway of the chemical oxidant once injected . This
would require an adequate cross-section map illustrating the excavation and the
free product trench ;
d .
The plan indicates if a pilot study is performed the injection points will begin at a
depth at 22' below ground surface but fails to indicate the depth of the
"contaminant zone."
The injection of the chemical oxidant above the native
material is not approved since the excavation area was filled with clean backfill
beginning at 15' below ground surface ; and
The plan indicates three (3) vent wells will be installed . However, the plan does
not include a discussion as to the purpose/necessity for the vent wells
. It appears
that the vent wells may not be necessary considering the depth of the proposed
injections .
2.
The plan proposes to replace five (5) groundwater monitoring wells with recovery wells
and utilize Petro-Trap EZY Skimmers in the recovery wells . However, according to the
information provided in the plan it does not appear that the wells need replaced or the use
of skimmers are necessary since the amount of free product •being recovered is controlled
by using the SoakEase Socks and monitoring (including hand bailing of necessary) .
Therefore, the replacement of the groundwater monitoring wells and use of Petro-EZY
Skimmers is not approved at this time . In addition, if chemical oxidation of the
contamination is utilized then it does not appear necessary to treat free product
separately.
3.
The plan does not include documentation that injection of the chemical, or the impact of
the treatment on existing soil and groundwater, will not cause an exceedence of the
primary drinking water regulations at 35 Ill . Adm
. Code 611 during or after remediation
(Sections 12(a) and 12(d) of the Act and 35 Ill . Adm. Code 732
.407(a)). Said
documentation mustbe submitted to the Illinois
. EPA's Leaking Underground Storage
Tank Section as part of the plan for review and approval
. Further, you may be required
to submit an application for a permit to the Illinois EPA's Underground Injection Control
Page 3
(UIC) Program, prior to injection, if an exceedence of the primary drinking water
regulations will result during or after remediation
. For additional information regarding
the UIC Program, please contact Bur Filson at 217/782-6070
.
Please note that pursuant to 35 11 . Adm
. Code Section 742 .Appendix B includes a cleanup
objective for iron for the Soil
Component of the Groundwater Ingestion Route and the
Groundwater Route of 5 mg/L for both Class I and Class II groundwater
. Calculations
will be necessary to indicate that the residual iron will not exceed the cleanup
objective(s).
Pursuant to Sections 57 .7(a)(1) and 57 .7(c)(4)(D) of the Act and 35 111
. Adm . Code 732 .405(e)
and 732.503(b), the associated budget is rejected for the following reason(s)
:
1 .
Pursuant to Sections 57.7(a) and 57.7(c)(4) of the Act and 35 Ill . Adm
. Code 732.405 and
732.503(b), the associated budget is rejected for the following reason
:
A full financial review shall consist of a detailed review of the costs associated with each
element necessary to accomplish the goals of the plan as required pursuant to the Act and
regulations . Items to be reviewed shall include, but not be limited to, costs associated
with any materials, activities, or services that are included in the budget plan
. The
overall goal of the financial review shall be to assure that costs associated with materials,
activities, and services shall be reasonable, shall be consistent with the associated
technical plan, shall be incurred in the performance of corrective action activities,' and
shall not be used for corrective action activities in excess of those necessary to meet the
minimum requirements of the Act and regulations (Section
57.7(c)(4)(C) of the Act and
35 111 . Adm. Code 732 .505(c)).
Without an approvable plan, the proposed budget cannot be fully reviewed
.
2.
The budget includes costs that lack supporting documentation (35 Ill
. Adm. Code
732.606(gg))
. A corrective action plan budget for a site classified as high priority must
include, but not be limited to, an accounting of all costs associated with the development,
implementation, and completion of the applicable activities (Section
57.7(c)(1)(B)
of the .
Act and 35 Ill.' Adm . Code 732 .405(b))
. Since there is no supporting documentation of
costs, the Illinois EPA cannot determine that costs will not be used for activities in excess
of those necessary to meet the minimum requirements of Title XVI of the Act (Section
57.5(a) of the Act and 35 Ill
. Adm. Code 732 .606(o)).
The budget fails to include the following :
a.
Documentation/explanation of the amount hours estimated per title per task for
Personnel Costs
. It is unclear to the Illinois EPA why the costs for Personnel
have increased over $25,000
.00 in this budget from the last- budget since the
majority of the revised corrective action plan is a copy of the last plan submitted
;
Page 4
b .
Soil PNA analysis does not appear necessary since the soil sample results post
soil excavation do not indicate PNAs above the Tier I Cleanup Objectives .
Pursuant to 35 111
. Adm . Code 732 .401, the Illinois EPA requires submittal of a revised plan, and
budget if applicable, within 90 days of the date of this letter 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
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 information, please contact Mindy Weller at 217/782-
6762 .
Sincerely,
Harry A . Chappel, P .E .
Unit Manager
Leaking Underground Storage Tank Section
Division of Remediation Management
Bureau of Land
HAC :MW :mw\990762&991840-5 .DOC
cc :
Robert Pulfrey, USI, Inc .
Division File
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
