vs
.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent .
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
RECEIVED
BEFORE THE POLLUTION CONTROL BOARD
CLERK'S OFFICE
OF THE STATE OF ILLINOIS
MIDWEST PETROLEUM COMPANY,
Petitioner,
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
.
NOTICE
A,'-'R
0 ~ 2006
Pollution
O
Control Board
PCB No . (y7'
(UST Appeal)
William D. Ingersoll
Manager Enforcement Programs
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, IL 62794-9276
r
Curtis W. Martin, At
s
ney for
Midwest Petroleu
ompany, Petitioner
RECEIVED
CLERK'S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
APR 0 4 2006
OF THE STATE OF ILLINOIS
STATE OF ILLINOIS
MIDWEST PETROLEUM COMPANY,
Pollution Control Board
)
Petitioner,
)
d
PCB No . 6'l
(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 35 111. 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 February 28, 2006, the Agency issued a final decision which was
received by Midwest on March 1, 2006, a copy of which is attached hereto as
Exhibit A.
2
.
On March 10, 2006, Midwest requested an extension of time within
which to file an appeal of the Agency's final decision
.
3 .
On March 27, 2006, the Agency denied Midwest's request for the
Agency to join in the requested extension of time to file the appeal
.
vs
.
4 .
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 ("Plan") and Budget
("Budget") which were approved by the Agency in a letter dated September 1, 2004
.
The Plan and 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
Plan and 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 Plan and 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 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,
2
environmental specialists, and senior project manager for the provision of the
oversight and management of the field activities
.
By letter dated July 18, 2005, the Agency rejected the Amended
Budget as including costs that are not reasonable. Midwest appealed the Agency's
July 18, 2005 denial of the Amended Budget to the Board under PCB No. 06-28 .
The Board on December 15, 2005 issued an Opinion and Order that the Agency
properly denied Midwest's request for approval of the Amended Budget because the
Amended Budget was inconsistent with the existing Plan
.
On January 30, 2006, Midwest appealed to the Fifth District Appellate
Court in Cause No. 5-06-0056 the Board's Opinion and Order of December 15, 2005
.
That appeal is still pending. Thereafter, on February 15, 2006, Midwest submitted
to the Agency an Amended Corrective Action Plan ("Amended Plan") which included
a detailed explanation of the basis for the requested amendment, all to be consistent
with the Amended Budget previously submitted
.
By letter dated February 28, 2006, the Agency rejected the Amended
Plan and associated Amended Budget on the basis that the Amended Plan did not
provide additional documentation/justification for the additional personnel hours
requested for excavation, transportation, disposal and backfill . In addition, the
Agency asserts that the Amended Plan reveals a reduction in the soils to be
excavated, transported, disposed and backfilled and "it would appear" as though the
cost of such corrective actions should also have a . reduction. The Agency was
evidently struggling with the concept that additional costs were sought when
3
overall corrective action activities were reduced. The Agency then concluded that
without an approvable Plan the associated Amended Budget could not be fully
reviewed
.
The basis for Midwest's request for approval of the Amended Plan and
Amended Budget are fully discussed within the appeal in PCB No . 06-28. Midwest
has presented to the Agency ample justification for the approval of its Amended
Plan and Amended Budget through its M- 1 Justification included within the
Amended Budget and its separate explanation included within the Amended Plan
.
To summarize for purposes of this appeal, the originally approved Plan and Budget
underestimated the amount of time required to complete the field activities referred
to in the Plan, in particular the personnel hours required to complete the clean
overburden excavation, clean overburden stockpiling, and clean overburden
backfilling. Midwest simply seeks to correct that oversight by the Amended Plan
and Amended Budget .
The Amended Plan and Amended Budget clearly demonstrate that the
additional personnel hours sought to be approved within the Amended Budget were
reasonable, consistent with the associated Amended Plan, were incurred in the
performance of corrective action activities and are not in excess of those corrective
action activities necessary to meet the minimum requirements of the
Environmental Protection Act and its regulations. The Agency's rejection of the
Amended Plan is therefore arbitrary and capricious and should be reversed
.
4
WHEREFORE, for the foregoing reasons, Petitioner, Midwest Petroleum
Company, prays for reversal of the Agency's decision of February 28, 2006, that its
Amended Plan and Amended 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
urtis W. Martin
torney for
Midwest Petrole m Company,
Petitioner
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
William D. Ingersoll
Manager Enforcement Programs
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, IL 62794-9276
Curtis W. Martin,
orney for
Petitioner, Midwe
Petroleum Company
