RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'S
OFFICE
AUG 2
1 2006
FEDEX GROUND PACKAGE SYSTEM, INC, )
STATE OF
ILLINOIS
Pollution Control Board
Petitioner,
)
v.
)
PCB 61-1y
(UST Fund Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
NOTICE OF FILING AND PROOF OF SERVICE
TO: Division of Legal Counsel
Illinois Environmental
Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
PLEASE TAKE NOTICE that on August 21, 2006, I filed with the Clerk of the
Illinois Pollution Control Board the originals and nine (9) copies of the attached Petition
for Review of Underground Storage Tank Fund Reimbursement Determination (the
Petition.)
I hereby certify, under penalty of perjury, that true and accurate copies of this
Notice, the Petition For Review Of Underground Storage Tank Fund Reimbursement
Determination, and Appearance are being served upon the Respondent at the address
shown above, by depositing it in the U .S . Mail in Chicago, IL, with First Class Postage
prepaid, on this day, August 21, 2006 .
DAGGETT LAW FIRM
Chicago Title Tower, Suite 4950
161 North Clark Street
Chicago, Illinois 60601
(312) 960-1600
k1
Thomas W. Dagg
RECEIVED
CLERK'S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AUG 2
1 2006
STATE OF ILLINOIS
FEDEX GROUND PACKAGE SYSTEM, INC,
)
Pollution Control Board
Petitioner,
)
v .
)
PCB
(UST Fund Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent .
)
APPEARANCE
PLEASE TAKE NOTICE that 1, Thomas W
. Daggett, an attorney licensed to
practice law in the State of Illinois, and practicing with the Daggett Law Firm at the
address given below, hereby file my appearance in this UST Fund Appeal on behalf of
Petitioner, FEDEX Ground Package System, Inc .
Thomas W. Dal, gett
DAGGETT LAW FIRM
Chicago Title Tower, Suite 4950
161 North Clark Street
Chicago, Illinois 60601
(312) 960-1600
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FEDEX GROUND PACKAGE SYSTEM, INC.,
)
Petitioner,
)
v.
)
PCB
(UST Fund Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent .
)
PETITION FOR REVIEW OF UNDERGROUND STORAGE TANK
FUND
REIMBURSEMENT DETERMINATION
Petitioner, FEDEX Ground Package System, Inc
. ("Petitioner"), by its attorney,
Thomas W
. Daggett of the Daggett Law Firm, hereby petitions the Pollution Control
Board to review and reverse a final determination issued by the Illinois Environmental
Protection Agency ("IEPA") on July 17, 2006, which rejected Petitioner's Budget
Amendment submitted for reimbursement from the Illinois Underground Storage Tank
Fund ("UST Fund"), stating as follows
:
1 .
Petitioner is the owner of a facility located at 6767 West 75t
h
Street,
Bedford Park, Illinois, 60638, which the IEPA has assigned LPC# 0310120014 (the
"Facility") .
2 .
Petitioner notified the Illinois Emergency Management Agency
("IEMA") of releases from a diesel underground storage tank at the Facility, which
IEMA assigned Incident Nos
. 20030468 and 20040575 .
RECEIVED
AUG
2 12006
Pollution
STATE OF
Control
ILLINOISBoadr
3 .
Petitioner submitted a Corrective Action Plan and Budget to the IEPA
for LUST Incident Nos
. 20030468 and 20040575, which IEPA approved on July 14,
2005 .
4 .
Over the next year, Petitioner, through its consultant, MACTEC
Engineering and Consulting, Inc . ("MACTEC"), implemented the corrective action in
accordance with the plan approved by IEPA
. This included the removal of the subject
diesel underground storage tank, for which Petitioner obtained additional Incident No
.
20060145 .
5 .
On April 20, 2006, MACTEC submitted a Corrective Action Completion
Report on Petitioner's behalf, with a certification that the corrective action had been
completed in compliance with the plan and all legal requirements .
6.
Petitioner has fully complied with all Illinois laws and regulations
addressing petroleum underground storage tanks since purchasing the property in
November 2002, and discovering a release from an underground storage tank there in
2003.
7.
On May 10, 2006, IEPA accepted the Corrective Action Completion
Report as showing the satisfactory completion of the plan, and granted Petitioner a No
Further Remediation
("NFR") letter covering LUST Incidents Nos
. 20030468,
20040575, and 20060145
.
8 .
On May 30, 2006, Petitioner submitted a proposed Budget Amendment
to IEPA, including documentation of expenses already incurred in implementing the
corrective action plan previously approved by IEPA
. This proposed Budget
Amendment requested IEPA approval and reimbursement for $72,878
.75 of incurred
expenses that were not covered in the budget previously approved by IEPA
. However,
because certain corrective action tasks had been completed by Petitioner for less than
the previously approved budget amounts, the total reimbursement requested was only
$39,122.55 more than the total budget previously approved by IEPA
.
9.
In a letter dated June 21, 2006, IEPA initially rejected the May 30, 2006
proposed Budget Amendment covering these already expended costs, stating that they
could not be approved because they were submitted to IEPA after the NFR letter was
issued .
10.
On July 3, 2006, Petitioner's consultant MACTEC sent IEPA a letter
asserting that the NFR letter cutoff provision did not apply to Petitioner's May 30, 2006
Budget Amendment covering costs already incurred for work under an Corrective
Action Plan previously approved by IEPA and already implemented by Petitioner, and
requesting the [EPA to reconsider its earlier position .
11 .
On July 17, 2006, IEPA issued its final action on Petitioner's request,
rejecting it and stating as its reason that, "The budget was submitted after the issuance
of a No Further Remediation Letter." (with citation to 35 III
. Admin . Code
734.335(d))
. The letter erroneously identifies the July 3, 2006 letter addressing the
proposed Budget Amendment as a Corrective Action Plan
. A true and accurate copy of
that final agency determination is attached as Exhibit A to this Petition .
12 .
Exhibit A was served upon Petitioner by certified mail dated July 17,
2006, and was received by Petitioner's Environmental Department on July 20, 2006
.
13 . Petitioner prays that the Board reverse the (EPA's July 17, 2006, final
determination, and order the approval of the Petitioner's Budget Amendment and its
request for reimbursement of the referenced costs
.
14 .
Petitioner asserts, as the grounds for its appeal, that the Board
regulations cited in IEPA's July 17, 2006 final action as its basis for rejecting
Petitioner's submittal do not apply here, where Petitioner obtained approval of IEPA
for its Corrective Action Plan and Budget before proceeding with its underground
storage tank cleanup, and now only seeks to amend the budget to recover actual costs
incurred in implementing the IEPA approved plan
; IEPA's asserted interpretation of
certain subsections of the regulations is contrary to meaning of the Board's Petroleum
Underground Storage Tank Regulations read as a whole, and to their statutory basis in
the Environmental Protection Act at 415 ILCS 5/57,
et seq . . Petitioner reserves the
right to present additional grounds for reversal of the IEPA's July 17, 2006 final
determination as they may be identified by Petitioner during the course of this appeal
.
WHEREFORE, Petitioner respectfully requests that the Board
:
A) grant it a hearing in this matter
;
B) reverse the (EPA's July 17, 2006 final determination ;
C) remand the matter to the IEPA with instructions to approve the
Petitioner's proposed Budget Amendment to the extent that it covers actual costs of
implementing the Corrective Action plan previously approved by IEPA
;
D) instruct IEPA to approve a further budget amendment to cover
Petitioner's legal fees and costs for seeking payment in this appeal, and related costs, if
Petitioner prevails before the Board, consistent with 35 III
. Admin. Code 734
.630(g)
and 415 ILCS 5/57 .8(1)
; and
E) grant all other relief to the Petitioner as is just and appropriate
.
Respectfully submitted,
FEDEX Ground Package System, Inc
.
Thomas W
. Daggett
DAGGETT LAW FIRM
Chicago Title Tower, Suite 4950
161 N . Clark Street
Chicago, IL 60601
(312) 960-1600
By DA GETT LAW FIRM
Thomas W . Daggett
JI'1~
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
IL . ~, : ~~(1(,
C-1
;
.
1021 NORJH GRAND AVLNuL EAST, P
.O
. Box 19276, SPRINc!kLI), ILLINO ;S 62794-92 7 6-' 217, 782 3 ;'ri .1FN
JALTLS R
. THOMPSON CLNTLR, 100 "'15T RANDOLPH, SOIL 11-300,
CHICAGO . IL 60601 -
f31 21 814-6020
ROD R . BLAGOIEVICH, GOVERNOR
DOUGLAS P . SCOTT, DIRECTOR
217/782-6762
CERTIFIED MAIL
JUL 1 7 2006
Mr
. Jerry Swart
FedEx Ground
100 Federal Express Drive
Moon Township, PA
15708
Re:
LPC #0310120014 - Cook County
Bedford Park/FedEx Ground
6767 West 75th
Street
Leaking UST Incident No
. 20030468, 20040575
Leaking UST Technical File
Dear Mr. Swart :
The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the Corrective Action
Plan (plan) submitted for the above-referenced incident
. This plan, dated July 3, 2006, was
received by the Illinois EPA on July 7, 2006
. Citations in this letter are from the Environmental
Protection Act (Act), as amended by Public Act 92-0554 on June 24, 2002, and 35 Illinois
Administrative Code (35 III . Adm. Code)
.
The plan and the associated budget are rejected for the reason(s) listed below (Sections 57 .7(b)
and 57
.7(c) of the Act and 35111 . Adm. Code 734 .505(b), 734 .510(a) and 734 .5 10(b)) .
The budget was submitted after the issuance of a No Further Remediation Letter.
Pursuant to 35 Ill . Adm. Code 734 .335(d)), any corrective action plan or budget must be
submitted to the Illinois EPA for review and approval, rejection, or modification in
accordance with the procedures contained in Subpart E of 35 Ill . Adm
. Code 734 prior to
the issuance of a No Further Remediation Letter
.
Future correspondence should 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
7004 2510 0001 8589 6314
Pi.+Lo--I
~ . ;1CV-I1
; ;
cIy1'
7 6~
-
;AsP, .r,
q,I :il
H . :
L!
11
I
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 Jennifer Rossi at 217-782-
9285 .
Clifford
Sincerely,
cy~a
L . Wheeler
w~
Unit Manager
Leaking Underground Storage Tank Section
Division of Remediation Management
Bureau of Land
CLW:jjr\
Attachment : Appeal Rights
c :
Carmen Yung, MACTEC Engineering and Consulting, Inc .
BOL 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) 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 ofthe
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
