BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOTICE OF FILING AND PROOF OF SERVICE
TO: Dorothy M . Gunn, Clerk
Bradley P . Halloran, Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
100 W. Randolph St ., Ste 11-500 100 W. Randolph St ., Ste 11-500
Chicago, Illinois 60601
Chicago, Illinois 60601
Melanie A. Jarvis, Esq.
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 December 18, 2006, I hand delivered to the
Clerk of the Illinois Pollution Control Board the original and nine (9) copies of the
attached CROSS MOTION FOR SUMMARY JUDGMENT, and MOTION TO
SUPPLEMENT ADMINISTRATIVE RECORD for filing in this action, with one (1)
copy for delivery to Hearing Officer Halloran . I hereby certify that true and accurate
copies of these documents and this Notice are being served upon attorney for the
Respondent at the address shown above, by depositing it in the U
.S. Mail in Chicago,
Illinois, with First Class Postage prepaid, on this date .
Thomas W . Daggett
Attorney for Petitioner FedEx Ground
DAGGETT LAW FIRM
Chicago Title Tower, Suite 4950
161 North Clark Street
Chicago, Illinois 60601
(312) 960-1600
FEDEX GROUND PACKAGE SYSTEM, INC, )
R'SCEIVED
CLERK'S
OFFICE
Petitioner,
[JL
f
2006
)
STATE OF
ILLINOIS
v.
)
PCB 07-12
Pollution
Control Board
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent .
)
(UST Fund Appeal)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FEDEX GROUND PACKAGE SYSTEM, INC
., )
Petitioner,
)
v .
)
Respondent .
)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
MOTION TO SUPPLEMENT ADMINISTRATIVE RECORD
Petitioner, FEDEX Ground Package System, Inc
. ("Petitioner"), by its attorney,
Thomas W
. Daggett of the Daggett Law Firm, respectfully submits this Motion To
Supplement Administrative Record to the Board, in accordance with Board rules at 35
Ill . Adm. Code 101
.508 and 35 Ill
. Adm
. Code 105
.212, for the reasons set out below
.
I .
Petitioner filed its Petition for Review of Underground Storage Tank
Fund Reimbursement Determination in this matter on August 21, 2006, and the Board
accepted it for hearing on September 7, 2006
.
2 .
Respondent IEPA filed a motion for summary judgment in this matter on
September 1, 2006
; Petitioner filed its Response in Opposition on September 18, 2006
.
Petitioner stated its intent to the Hearing Officer at that time to file its own cross-motion
for summary judgment after seeking additional documents from Respondent, and the
supplementation of the Administrative Record
.
FC
r
D VET
DLL
sTA7
1 ~ 28%
PCB 07-012
P°IlUt n
C
rrolQoa
(UST Fund Appeal)
d
3 .
Petitioner sent a letter to Respondent on October 24, 2006, requesting
that certain items from the IEPA file on this matter be added to the Administrative
Record. (see Attachment 1 .)
4.
On November 2, 2006, Petitioner filed a Motion for Leave to
Supplement the Administrative Record, citing previous Board precedents for doing so
.
Petitioner incorporates by reference herein those arguments and precedents from the
Respondent's Motion.
5 .
Three letters to Petitioner from Respondent were not included in
Respondent's motion
. (see Attachments 3, 4, and 5
.) These three letters are relevant and
material to legal arguments made by Petitioner in its Cross Motion for Summary
Judgment .
FOR THESE REASONS, Petitioner requests that the Board Order that they be
included in the Administrative Record for this appeal .
Respectfully submitted,
FEDEX Ground Package System, Inc
.
By DAGGETT LAW FIRM
Thomas W
. Daggett
Thomas W . Daggett
DAGGETT LAW FIRM
Chicago Title Tower, Suite 4950
161 N. Clark Street
Chicago, IL 60601
(312) 960-1600
2
Via email and US Mail
Melanie A
. Jarvis, Assistant Counsel
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
Dear Ms. Jarvis
:
In our 9/21/06 status call with Hearing Officer Halloren, you agreed to
supplement the administrative record that IEPA filed with the Board in this matter if I
informally wrote you and identified the additional document(s) I wanted . First, I request
that you add the "Corrective Action Completion Report" for this project, which was
submitted to IEPA by FedEx Ground approximately April 20, 2006
. 1 also request that
you add all documents in IEPA files concerning the request for partial payment for the
initial studies related to this matter, and EPA's response
. It is my understanding that both
this request from FedEx and IEPA's response occurred in early 2005, or possibly late
2004
.
Thanks in advance for your cooperation .
Sincerely,
'Koreas W Oaggett
cDaggett Law firm
Suite 4950 - Chicago 7afe Tower
161 North CfarkStreet
Chicago, Illinois 60601
312-960-1600
October 24, 2006
Re: FedEx Ground Package System v . IEPA
Lust Fund Appeal, PCB 07-012
Supplementing the Administrative Record
email TWDaggett@Comcast.net
facsimile: 312 332-0515
www. DaagettLawFirm. com
Tho
Afw
W'Daggett
217/782-6762
MAY 0 2 2005
FedEx Ground Package System, Inc
.
Attention: Jerry Swart
1000 FedEx Drive
Moon Township, PA 15108
Re:
LPC #0310125219 -- Cook County
Bedford Park/Federal Express Ground
6767 West 75th Street
LUST Incident No. 20030468
LUST FISCAL FILE
Dear Mr
. Swart:
C Kt, C ors D RECEIVED
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY MAY 05 2005
1021 NORTH GRAND AVLNUL EAST, P .O . Box 19276, SPRINGFIELD, ILLINOIS 62794-9276,
21~tt9W
.
ENTALSERVICES
JAMES R
. TI1uMPSON CENTER, 100 WESE RANDOLPH, SUITE 11-300, CHICAGO, IL 60601, 312-814-6026
ROD R . BLAGOIEVICH, GOVERNOR
RENEE CIPRIANO, DIRECTOR
CERTIFIED MAIL #
7004 2510 0001 8653 2563
The Illinois Environmental Protection Agency has completed the review of your application for
payment from the Underground Storage Tank Fund for the above-referenced LUST incident
pursuant to Section 57
.8(a) of the Illinois Environmental Protection Act (Act), and 35 Ill . Adm.
Code 732, Subpart F . This information is dated January 24, 2005 and was received by the
Agency on February 25, 2005 . The application for payment covers the period from April 3,
2003 to May 15, 2003. The amount requested is $11,327.77.
The deductible amount to be assessed on this claim is $15,000.00. The costs from this claim ;
$11,327.77 will be applied to the deductible . The balance of the deductible
; $3,672 .23 will be
deducted from future claims
.
On February 25, 2005, the Agency received your complete application for payment for this
claim. As a result of the Agency's review of this application for payment, a voucher cannot be
prepared for submission to the Comptroller's office for payment
. Subsequent applications for
payment that have been/are submitted will be processed based upon the date complete
subsequent application for payment requests are received by the Agency . This constitutes the
Agency's final action with regard to the above application(s) for payment
.
An underground storage tank owner or operator may appeal this final decision to the Illinois
Pollution Control Board (Board) pursuant to Section 57 .8(i) and Section 40 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
R. I,
nn)RU --1 )112 Nnnh Main SIrOPE, Rrn k(urd, IL 61103 -( 915)'107-7760
DU PL9NI,,
-
.95I I W . H .Irri,on St ., De, Plainer, IL (,11016 - (1147) 294-4000
EI ( ' IN - 595 South Slop, Elpin, IL 60123
(047) 61
131
PI,R .,~- 541' . N
. University St
.,
Peorw, IL 61614 - ( :119) 693-5463
Bui i I I . I, Lwu -PruEIA -7620 N
. University St ., Peoria, IL 61614 -(309) 69'1-5462
• (:Fr,, l AI,,N-2125 South Fir,I Street, Chanlpaipn, If 61920- (217) 2, 18-J1301)
Sruw, .lul
I) , Tlort 5, Sixth Sir.''!
Rd,, Sprinp(iekl, IL 627111, ('-17) 78661192
•
Cl,u ulsvu I .E-
111(1') MaiI Str' et, Cullin,v
.II, IL
1,
1234--(610) 146-5120
MARLIN
- 2 11)9 W. Main SI., Suite 1 16, .Marion, II 6295'1 - (6111) 9'1 3 -7'00
Page 2
applicant 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, Illinois 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
Springfield, Illinois 62794-9276
217/782-5544
If you have any questions or require
further assistance, please contact Catherine S . Elston
of my staff at 217/782-6762 .
Sincerely,
Douglas E. Oakley,
2
Manager
D4
LUST Claims Unit
Planning & Reporting Section
Bureau of Land
DEO:CSE:bjh\052507.doc
cc:
MACTEC Engineering & Consulting
217/782-6762
OCT 2 1 2005
Fed Ex Ground Package Systems, Inc .
Attention: Jerry Swart
1000 FedEx Drive
Moon Township, PA 15108
Re: LPC #0310120014 -- Cook County
Bedford Park/Fed Ex Ground
6767 West 75th Street
LUST Incident No. 20040575
LUST FISCAL FILE
Dear Mr. Swart:
The Illinois Environmental Protection Agency has completed the review of your application for
payment from the Underground Storage Tank Fund for the above-referenced LUST incident
pursuant to Section 57 .8(a) of the Illinois Environmental Protection Act (Act), and 35 Ill . Adm.
Code 732, Subpart F
. This information is dated December 10, 2004 and was received by the
Agency on February 25, 2005 . The application for payment covers the period from May 8, 2004
to June 10, 2004 . The amount requested is $3,865 .19.
The deductible amount to be assessed on this claim is $15,000 .00
. The eligible costs from this Z
claim ; $3,864.77
will be applied to the deductible . The balance of the deductibl
11,235
.23
.
will be applied to future claims
. Listed in Attachment A are the costs that are not being paid and
the reasons these costs are not being paid .
On June 26, 2005, the Agency received your complete application for payment for this claim .
As a result of the Agency's review of this application for payment, a voucher cannot be prepared
for submission to the Comptroller's office for payment
. Subsequent applications for payment
that have been/are submitted will be processed based upon the date complete subsequent
application for payment requests are received by the Agency
. This constitutes the Agency's final
action with regard to the above application(s) for payment .
An underground storage tank owner or operator may appeal this final decision to the Illinois
Pollution Control Board (Board) pursuant to Section 57
.8(i) and Section 40 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
R,, r.rt l,-1 fog North Main Sired, Ruckforrl, IL
61103-(115) 907-7740 • DES PIAIN*s-9511 W . Harrison St ., Des Plains, IL 61)016-(847) 294-4000
En ;IH- 595 South State, Elgin, IL
60123 (847) 608-3131
• PEORIA- `,415 N . University St ., Peoria, IL 61614-(-109) 693-5463
BuurAU nr L .wo - PEORIA-7620
N . University St ., Peoria, IL 61614-13(19) 693-5462
C,-6mvvr.n -2125 South First Street, Champaign, IL 61820-(217) 278-51100
SPRINI .nH U -4500 S . Sixth Street Rd ., Springfield, IL 62706- ( 217) 706-6892
• Cowwvutt-2009
Ma II Street, Co IIinwiIIt, IL
62234- 1618) 1465120
MARION -2309 W. Main St ., Suite 1 16, Marion, 11- 62959 (b 11i) 993-72011
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021
NORTH GRAND AVENUE EAST, P
.O . Box 19276, SPRINGFIELD, ILLINOIS 62794-9276, 217-782-3397
JAMES R . THOMPSON CENTER, 100 WEST RANDOLPH, SUITE 11-300, CHICAGO, IL 60601, 312-814-6026
ROE) R
. BLAGOIEVICH, GOVERNOR
RECEIVED
~T
_'- .
1 2005
CERTIFIED MAIL #
ENVIRONMENTAL SERVICES
7004 2510 0001 8646 3423
111 '1`5,
Page 2
from the owner or operator and the Illinois EPA within the initial 35-day appeal period . If the
applicant 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, Illinois 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
Springfield, Illinois 62794-9276
217/782-5544
If you have any questions or require further assistance, please contact Catherine
S. Elston
of my staff at 217/782-6762.
Dou
E. Oakley, Manager
LUST Claims Unit
Planning & Reporting Section
Bureau of Land
DEO:CSE :bjh\057314 .doc
Attachment
cc: MACTEC Engineering & Ground
Re : LPC #0310120014 -- Cook County
Bedford Park/Fed Ex Ground
6767 West 75th Street
LUST Incident No
. 20040575
LUST Fiscal File
Citations in this attachment are from and the Environmental Protection Act (Act) and 35 Illinois
Administrative Code (35 Ill. Adm. Code) .
Item #
Description of Deductions
1 .
$.42,
deduction for handling charges in the billing(s) exceed the handling charges set
forth in Section 57.8(f) of the Act. Handling charges are eligible for payment only if
they are equal to or less than the amount determined by the following table (Section
57 .8(f) of the Act and 35 Ill. Adm . Code 732 .607) :
Attachment A
Accounting Deductions
Handling charges on courier charges exceeded the sliding scale .
DEO:CSE:bjh\057315 .doc
Subcontract or
Eligible Handling Charges
Field Purchase Cost
as a Percentage of Cost
$0-$5,000
12%
$5,001-$15,000
$600 + 10% of amount over $5,000
$15,001-$50,000
$1600 + 8% of amount over $15,000
$50,001-$100,000
$4400 + 5% of amount over $50,000
$100,001-$1,000,000
$6900 + 2% of amount over $100,000
1AN 1
2QOt;
1021 NORTH GRAND AVENUE EAST, P .O . Box 19276, SPRINGFIELD, ILLINOIS 62794-9276-( 217) 782-3397
)AMEN R . THOMPSON CENTER, 100 WEST RANDOLPH, SUITE 11-300, CHICAGO, IL 60601 -(312)
8 $*WJMMENr41 S
fNVICFs
ROD R . BLAGOIEVICH, GOVERNOR
DOUGLAS P . SCOTT, DIRECTOR
217/782-6762
CERTIFIED MAIL
7004
2510 0001
8653
8824
JAN 1 1 2006
-
-
Mr
. Jerry Swart
FedEx Ground Package Systems, Inc .
1000 FedEx Drive
Moon Township . PA 15108
Re:
LPC #0310120014 -- Cook County
Bedford Park/Federal Express Ground
6767 West 75'" Street
LUST Incident No. 20030468, 20040575
LUST Technical File
Dear Mr . Swart :
The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the Amended Corrective
Action Plan Budget(budget) submitted for the above-referenced incident . This plan, dated October 4,
2005, was received by the Illinois EPA on October 24, 2005
. 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 Ill
. Adm . Code) .
The total budget is approved for the amounts listed in Section 1 of Attachment A .
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(d), 57 .8(e), and 57
.8(g) of the Act, as well as 35111
. Adm
.
Code
732 .606(s) and 732 .611 .
NOTE : Amended plans and/or budgets must be submitted and approved prior to the issuance of a No
Further Remediation (NFR) Letter . Costs associated with a plan or budget that have not been approved
prior to the issuance of an NFR Letter will not be reimbursable .
Pursuant to Sections 57 .7(b)(5) and 57 .12(c) and (d) of the Act and 35 III . Adm
. Code 732 .100 and
732 .105, the Illinois EPA requires that a Corrective Action Completion Report that achieves compliance
with applicable remediation objectives be submitted within 30 days after completion of the plan
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 .
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
Ri uxl„so -410! North Main Street, Rot kforrl, IL 61103 (111 5) 987-7760 • Des PL,w,cs 0511 W . Hdrri,un SI ., Des Plainer, IL 601)16 111471 294-4000
Eu .1 .v-595 South Shoe, Elgin, IL 60123 - 1847) 608-2! 31
• PSORIA - 5115 N . University SL, Peoria, IL 61614 - 11(191 6')3-5461
13iRrnu' e Lw0 - Prcn lA - 7620 N . University St, Peoria, IL 61614 -11091 601-5462
CNnmIrninrv -1125 Axeh F1rst $mcl, Charrlpeign, IL 6182(1 - 217) .17M',800
N'RIN,WIFLO- 4501 S . Sixth Stmet Rd ., Springfield, II 62706
(117) 786 6fl92
•
G,u
.Ir.svutr-20119 M nII Stwe1, 1 ;,Ilinss Ile,
1[')))
34 -16181 346 '71'0
MAxIUN - /.100 W . Main SL, Swle 116, Mdlio,,, 11 11')5') 161111'I93-%21ll)
Page 2
Please note that, if within four years after the approval of this plan, compliance with the applicable
rernediation objectives has not been achieved and a Corrective Action Completion Report has not been
submitted, the Illinois EPA requires the submission of a status report pursuant to Section 57
.7(b)(6) of the
Act.
If you have any questions or need further assistance, please contact Jennifer Rossi at 217-782-9285 .
Sincerely,
Clifford L . Wheeler
Unit Manager
Leaking Underground Storage Tank Section
Division of Remediation Management
Bureau of Land
CLW:jjr\
Attachment :
Attachment A
Carmen Yung, MACTEC Engineering & Consulting
Division File
Re :
LPC # 0310120014 -- Cook County
Bedford Park/Federal Express Ground
6767 West 75 th Street
LUST Incident No
. 20030468, 20040575
LUST Technical File
The budget was previously approved for:
$2,409.00
Investigation Costs
$6,950.00
Analysis Costs
$52,703 .00
Personnel Costs
$2,405
.00
Equipment Costs
$246,548
.56
Field Purchases and Other Costs
$14,135 .81
Handling Charges
The following amounts have been approved :
$2,033 .00
Investigation Costs
$1,350.00
Analysis Costs
$4,890.00
Personnel Costs
$55 .00
Equipment Costs
$79.30
Field Purchases and Other Costs
$422.00
Handling Charges
Therefore, the total cumulative budget is approved for
:
$4,442.00
Investigation Costs
$8,300.00
Analysis Costs
$57,593.00
Personnel Costs
$2,460.00
Equipment Costs
$246,627.86
Field Purchases and Other Costs
$14,557.81
Handling Charges
Attachment A
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FEDEX GROUND PACKAGE SYSTEM, INC.,
)
Petitioner,
)
v .
)
PCB 07-012
(UST Fund Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent .
)
PETITIONER'S CROSS-MOTION FOR SUMMARY JUDGMENT
Petitioner, FEDEX Ground Package System, Inc
. ("Petitioner"), by its attorney,
Thomas W
. Daggett of the Daggett Law Firm, respectfully submits its Cross-Motion
for Summary Judgment (Motion), as authorized by Board rules at
35 III
. Adm . Code
101 .504 & 101
.516 .
The legal issue presented appears to be a matter of first
impression for the Board, based upon searches of cases on the Board's website
.
Respondent Illinois Environmental Protection Agency's (Respondent's)
misinterpretation of a single phrase from the Board's Rules and its position that it
prohibits IEPA's approval of certain budget amendments are prejudicing the statutory
rights of the Petitioner and other businesses and local governments to reimbursement
from the Underground Storage Tank (UST) Fund
. Other independent appeals are
currently pending before the Board challenging essentially the same IEPA
misinterpretation of regulatory language that is at issue here, see,
e .g .,
Broadus Oil v
.
[EPA,
PCB 04-31 and 05-43
(consolidated), and
Village of Wilmette v . IEPA,
PCB 7-
27
. Due to the importance of this legal issue to the broader regulated community,
~tpR
k
s
oF~
l
1/'
tj~
-:
o
S7;Gr .
u !~
0~
ollatio~r_),
C
Ott.
QO/
c ard
Petitioner here, and the one in
Broadus Oil,
have filed motions to consolidate these two
matters for purposes of decision only
.
ISSUES BEFORE THE BOARD
The issues before the Board are whether Respondent's sole reason for denying
Petitioner's Budget Amendment was a misinterpretation of 35 III
. Adm . Code 734 .335(d)
and related law, for some or all of the following reasons
:
1 . Rule 734
.335(d) does not apply here, where an original corrective
action plan and budget were approved before the work was performed,
2
. Even if Rule 734
.335(d) did apply here, the phrase relied upon by
Respondent is a limitation on its authority for the "payment for any related costs
or the issuance of a No Further Remediation Letter" until an initial corrective
action plan and budget are submitted, not
an immediate limitation upon
Petitioner's reimbursement rights if it successfully obtains a NFR Letter or an
early partial payment ;
3 . Rule 734
.335(e) is the Board rule that Respondent should have
followed in reviewing and approving Petitioner's Budget Amendment, which
incorporates by reference the review requirements of Subpart E (35 III
. Adm .
Code 734
.500, 734
.505, & 734 .5 10)
; none of these or other applicable Rules
justifies any limitation upon Petitioner's statutory reimbursement rights triggered
by successfully obtaining a NFR Letter, or even mentions NFR Letters
.
Finally, if the Board overrules the legal misinterpretation relied upon by
Respondent, it must decide the scope of relief to grant to Petitioner
.
2
STANDARD OF REVIEW
Summary judgment is proper only when the record, including pleadings,
depositions and admissions on file, together with any affidavits, shows that there is no
genuine issue of material fact, and that the moving party is entitled to judgment as a
matter of law
. 35 Ill . Adm. Code 101 .516; see also, Waste Management of Illinois v .
IEPA, PCB 94-153 (July 21, 1994) at p . 2
; Solomon v. American Nat'l Bank & Trust
Co ., 243 IlLApp .3d 132, 612 N .E.2d 3 (1st Dist . 1993).
The IEPA's denial letter frames the issues on this appeal
; therefore, in deciding
this motion for summary judgment, the Board must determine as a matter of law whether
the Agency's denial reasons contained in its letter of July 17, 2006, require the
disapproval of Petitioner's May 30, 2006 Budget Amendment
. See
Kathe
'sAuto Service
Center v. IEPA, PCB 96-102 (Aug . 1, 1996) at p
. 27.
UNDISPUTED MATERIAL FACTS
The facts are not in dispute in this matter, in which both parties are moving for
summary judgment
. Petitioner listed several undisputed facts in its September 18, 2006
Response and Memorandum Opposing IEPA's Motion for Summary Judgment, and
incorporates them herein by reference
. While the parties generally agree on the facts,
they disagree on which of those undisputed facts are material, as explained below .
Under Respondent's proposed legal theory, the only fact that would be material
is the relationship of two dates : (1) the May 10, 2006 date of its NFR Letter approving
Petitioner's satisfactory completion of its previously approved Corrective Action Plan,
and (2) the May 30, 2006 date of Petitioner's proposed Budget Amendment and
reimbursement request . Respondent argues that once Petitioner successfully obtained
3
the May 10, 2006 NFR Letter, its right to submit any amendment to its corrective
action budget or obtain reimbursement based on such an amendment immediately
ended . Under Respondent's theory, the fact that Petitioner's May 30, 2006 budget
amendment and reimbursement request was submitted twenty (20) days after the May
10' NFR Letter would be the only fact that is material .
Petitioner disagrees . Under its legal arguments in Issue #1, above, Rule
734
.335(d) does not apply where an original corrective action plan and budget were
approved before the work was performed
. The undisputed facts that are material
therefore also include: (1) On June 22, 2005, Petitioner submitted to IEPA a proposed
corrective action plan (AR . 2
-
20) and a proposed Budget with a budget certification
by a licensed professional engineer (AR . 21-56) ; (2) On July 17, 2005, IEPA approved
Petitioner's proposed corrective action plan without modification, and approved
Petitioner's Budget for six categories of costs totaling $325 .151 .37. (AR . 57-61
.)
; and
(3) Petitioner performed the work implementing the Corrective Action Plan after
IEPA's July 17, 2005 approval, as detailed in Petitioner's April 20, 2006 Corrective
Action Completion Report (Supplemental AR . 1-166), with a certification from a
L.P.E . that the corrective action had been completed in compliance with the corrective
action plan and all legal requirements
. (Supplemental AR . 167 .) It is therefore
undisputed that the corrective action work was not
performed before the submittal and
approval of Petitioner's original corrective action plan and budget .
Under Petitioner's Issue #2, above, the phrase in Rule 734 .335(d) relied upon by
Respondent, that is, "prior to payment for any related costs or the issuance of a No
Further Remediation Letter," is a limitation on Respondent's authority to make any
4
payment for related costs or issue NFR Letters, not a prohibition on the submission or
approval of budget amendments after a NFR Letter has been issued or partial payments
have been made
. The additional undisputed facts that are material therefore include : (1)
on May 2, 2005, IEPA approved and made a payment to Petitioner of $11,327
.77 for
certain costs related to this UST cleanup, and applied that payment to cover part of the
deductible amount on Petitioner's claim (see Attachment 2)
; (2) on June 22, 2005,
Petitioner submitted a proposed corrective action budget for Respondent's review and
approval, which Respondent received on June 27, 2005
(A.R. 21-23, et seq .) ; (3)
Respondent reviewed the proposed budget and approved it on July 14, 2005, (A.R. 57-
61), notwithstanding the fact that it was submitted after the May 2, 2005 partial payment
;
(4) on October 21, 2005, IEPA approved and made a payment to Petitioner of $3,865
.19
for certain costs related to this UST cleanup, and applied that payment to cover part of
the deductible amount on Petitioner's claim (see Attachment 3) ; and (5) on January 11,
2006, Respondent approved a proposed corrective action budget that was received by
Respondent for review and approval on October 24, 2005, and was dated October 4, 2005
(see Attachment 4) . Petitioner therefore believes it is undisputed that Respondent
reviewed and approved certain budgets and budget amendments in this very case after it
made "payment for any related costs" for Petitioner's cleanup of this leaking UST .
Under Petitioner's Issue #3, above, 734 .335(e) is the applicable rule for this
Budget Amendment. The undisputed facts that are material include the same facts as
those under Petitioner's Issue #1, above . It is also material that the Petitioner's May
30, 2006 reimbursement request, submitted with its proposed Budget Amendment, was
5
submitted only 20 days after the May 10, 2006 NFR Letter, which is less than the one
year period allowed by 35 III
. Adm. Code 734 .600 (j).
Finally, it is material to the Board's determination of the scope of the relief to
provide to Petitioner in this appeal, that it is undisputed that all costs covered in
Petitioner's May 30, 2006 proposed Budget Amendment and reimbursement request
were for work that was necessary, were not for corrective actions in excess of the
minimum requirements of 415 ILCS 5/57, did not include costs for work not described
in the IEPA approved Corrective Action Plan, and did not include any costs that are
ineligible under applicable laws and regulations . These facts are certified in the record
under the sworn and notarized signature of Petitioner's licensed professional engineer
on the last page of Petitioner's May 30, 2006 Budget Amendment (A
. R. 71-99), and on
the last page of Petitioner's April 20 Corrective Action Completion Report
(Supplemental A .R . I - 167)
. Respondent's rejection of Petitioner's May 30, 2006
Budget Amendment and reimbursement request did not take issue with or dispute any
part of these certifications
. Respondent did not cite any reason for rejecting any part of
this submittal other that the fact that it was submitted after the May 10, 2006 NFR
Letter, which it asserted was in violation of 734 .335(d) . (A .R . 107-110) .
RELEVANT LAW
35 111.Adm. Code 734.335
734.335(d)
Notwithstanding any requirement under this Part for the
submission of a corrective action plan or corrective action budget, except as provided at
Section 734 .340 of this Part,
an owner or operator may proceed to conduct corrective
action activities in accordance with this Subpart
C prior to the submittal or approval of
an otherwise required corrective action Plan or budget . However, any such plan and
budget
must be submitted to the Agency for review and approval, rejection, or
6
modification in accordance with the procedures contained in Subpart E of this Part prior
to payment for any related costs or the issuance of a No Further Remediation Letter
.
BOARD NOTE
: Owners or operators proceeding under subsection (d) of this
Section are advised that they may not be entitled to full payment from the Fund
.
Furthermore,
applications for payment must be submitted no later than one year after
the date the Agency issues a No Further Remediation Letter
. See Subpart F of this Part
.
734 .335(e)
If,
following approval of any corrective action plan or associated
budget,
an owner or operator determines that
a revised plan or budget is necessary
in
order to mitigate any threat to human health, human safety, or the environment
resulting from the underground storage tank release,
the owner or operator must
submit as aP slicable an amended corrective action Ian or associated bud e o the
Agency
for review
.
The Agency must review and approve, reject, or require
modification of the amended plan or budget in accordance with SubpartE
of this Part .
BOARD NOTE
: Owners and operators are advised that the total payment from
the Fund for all corrective action plans and associated budgets submitted by an owner
or operator must not exceed the amounts set forth in Subpart H of this Part
. (emphasis
added)
----------------------
415 ILCS 5/57.7
. (As amended by P.A
. 92-574, P.A .
92-651 and P .A . 92-735)
Leaking underground storage tanks
; physical soil classification, groundwater
investigation, site classification, and corrective action
.
(e)
(1)
Notwithstanding the provisions of this Section, an owner or operator
may proceed to conduct physical soil classification, groundwater investigation, site
classification or other corrective action prior to the submittal or approval of an
otherwise required plan
. If the owner or operator elects to so proceed, an applicable
plan shall be filed with the Agency at any time
. Such plan shall detail the steps taken to
determine the type of corrective action which was necessary at the site along with the
corrective action taken or to be taken, in addition to costs associated with activities to
date and anticipated costs .
(2) Upon receipt of a plan submitted after activities have commenced at a
site, the Agency shall proceed to review in the same manner as required under this
Title
. In the event the Agency disapproves all or part of the costs, the owner or
operator may appeal such decision to the Board
. The owner or operator shall not be
eligible to be reimbursed for such disapproved costs unless and until the Board
determines that such costs were eligible for payment
.
---------------------
415 ILCS 5/57
.8 .
Underground Storage Tank Fund
; payment ; options for State
payment
; deferred correction election to commence corrective action upon availability
of funds
If an owner or operator is eligible to access the Underground Storage Tank Fund
pursuant to an Office of State Fire Marshal eligibility/deductible final determination
letter issued in accordance with Section
57 .9,
the owner or operator may submit a
complete application for final or partial payment
to the Agency for activities taken in
7
response to a confirmed release .
An owner or operator may submit a request for partial
or final payment regarding a site no more frequently than once every 90 days .
(a) Payment after completion of corrective action measures . The owner or
operator may submit an application for payment for activities performed at a site after
completion of the requirements of Sections 57
.6 and 5 or after completionofany
other required activities at the underground storage tank site
.
(5)
In the event that costs are or will be incurred in addition to those
approved by the Agency, or after payment, the owner or operator may submit successive
lans containin amended bud ets The re utremen s o Sec ion 57.7 shall iP to an
amended plans . (emphasis added)
ARGUMENT
The Illinois Environmental Protection Act establishes programs to cleanup
leaking UST sites, and gives the regulated community significant rights to
reimbursement for cleanup costs to promote the statute's cleanup goals . 415 ILCS
5/57
. The Board has promulgated regulations that the IEPA must follow in
administering the regulated community's rights to reimbursement under this statute,
primarily found at 35 111 . Adm . Code Part 734 . The Respondent has adopted a
misinterpretation of one sentence in these Board rules that does not make sense based
on the plain language of the particular rule or in the context of the UST rules read as a
whole
. It has cited this misinterpretation as its sole justification for denying Petitioner's
request to amend its budget and be reimbursed based upon that amendment .
Respondent is currently applying its misinterpretation of this Board rule in a way that
undermines the intent of the statute, by selective prejudicing the reimbursement rights
only of those who have successfully cleaned up a leaking UST sufficiently to obtain a
NFR Letter
. The Board should issue an Opinion correcting Respondent's
misinterpretation of Rule 734
.335(d), and reversing its rejection of Petitioner's May 30,
2006 Budget Amendment and reimbursement request .
8
ARGUMENT I .
RESPONDENT'S SOLE REASON FOR REJECTING PETITIONER'S BUDGET
AMENDMENT IS BASED UPON ITS MISINTERPRETATION OF 734 .335(d),
WHICH DOES NOT APPLY HERE
The sole reason Respondent cited for its July 17, 2006 rejection of Petitioner's
May 30, 2006 Budget Amendment and reimbursement request was its interpretation of
rule 734.335(d)
to require that rejection, because Petitioner's May 30, 2006 Budget
Amendment was submitted 20 days after Respondent's May 10, 2006 NFR Letter
.
(A
.R.
107-110) . By its express terms, however, 734 .335(d) only applies when "an
owner or operator ]elects to] proceed to conduct corrective action activities . . . prior to
the submittal or approval of an otherwise required corrective action plan or budget ."
Those are not the facts in this case, where Petitioner submitted its corrective action plan
and budget on June 22, 2005 (see AR . 2 -
20 and AR
. 21-56, respectively), before
conducting the approved corrective action over the following 9 months . (see Petitioner's
April 20, 2006 Corrective Action Completion Report, Supplemental AR . 1-167) . The
factual conditions in its first sentence did not happen, so subsection 734 .335(d) does not
apply. Notably, 734 .335(d) never mentions amended budgets at all . By contrast,
amendments to corrective action budgets are explicitly addressed in the immediately
following subsection 734.335(e),
which is discussed in Argument Ill ., below.
ARGUMENT II . EVEN IN CASES WHERE 734.335(D)
DOES APPLY, IT'S
SECOND SENTENCE LIMITS AUTHORITY TO ISSUE NFR LETTERS, NOT
THE RIGHT TO SUBMIT OR APPROVE BUDGET AMENDMENTS
Even where 734 .335(d) is triggered because an owner has elected to conduct its
corrective action before it submits any corrective action plan or budget (which are not
9
the facts here), the second sentence of 734
.335(d) does not prohibit IEPA from
reviewing a budget amendment
. Instead, it prohibits IEPA from paying any costs
related to the UST Incident or issuing a NFR Letter until the owner submits its initial
corrective action plan and budget after-the-fact
.
Subsection 734 .335(d) reads
:
"Notwithstanding any requirement under this Part for the submission of a
corrective action plan or corrective action budget, except as provided at Section
734.340
of this Part,
an owner or operator may proceed to conduct corrective
action activities
in accordance with this Subpart
C
prior to the submittal or
approval of an otherwise required corrective action plan or budget
.
However,
any such plan and budget
must be submitted to the Agency for review and
approval, rejection, or modification in accordance with the procedures contained
in Subpart E of this Part
prior to payment for any related costs or the issuance
of a No Further Remediation Letter
."
(emphasis added) .
The reference to
"such"
plan and budget in the second sentence refers back to the
previous sentence
; that is, to any plan or budget submitted by an owner that elected to
conduct its corrective action without submitting a corrective action plan or budget in
advance
. The most straightforward interpretation of these two sentences is that an
owner can proceed with the corrective action work without its paperwork, but it will
not receive any related payment or a NFR Letter until it submits a written plan and
budget for the IEPA to review, approve, reject or modify
. Respondent argues that it
should be interpreted the other way around, that is, as a limitation on submitting and
approving plans or budgets once an owner has received any related payments or a NFR
Letter
. But if Respondent's interpretation is applied to the owners that are explicitly
addressed in the preceding sentence, that is, owners that have conducted the cleanup
before submitting their plan and budget, it makes no sense
. Under Respondent's
10
interpretation, Rule 734.335(d) first authorizes an owner to conduct corrective action
before submitting any plan or budget, then warns the owner that if IEPA sends it a
NFR Letter or partial payment before seeing the owner's plan or budget, the owner will
be prohibited from submitting them
. This logical extension of Respondent's
interpretation of the second sentence simply does not make sense in the context of this
subsection .
Further, if the second sentence of 734 .335(d) prohibits the submission and
review of any budget amendment after issuance of a NFR Letter, then it follows
logically that it must also prohibit the submission and review of any budget amendment
after "payment for any related costs," which is referenced in the same clause
. Such an
interpretation would put 734 .335(d) in direct conflict with the Act
. Section 57
.8
explicitly authorizes an owner to submit amended budgets after receiving payment for
parts of the corrective action work, as follows :
"(a)(5)
In the event that costs are or will be incurred in addition to those
approved by the Agency, or after payment, the owner or operator may submit
successive plans containing amended budgets . . ." (emphasis added)
415 ILCS 5157 .8(a)(5)
. Related provisions of the Act clearly provide owners the right
to submit successive requests for partial payments as the work proceeds, stating, for
example, that "An owner or operator may submit a request for partial or final payment
regarding a site no more frequently than once every 90 days
." 415 ILCS 5/57 .8
(excerpt .)
The Respondent routinely reviews and approves partial payments for costs
related to UST corrective actions starting early in the projects, then subsequently
11
reviews and approves budget amendments for those projects notwithstanding its
currently argued interpretation of 734 .335(d) . Respondent has even done so in
Petitioner's UST cleanup action that is before the Board
: (1) on May 2, 2005,
Respondent approved a payment to Petitioner of $1 1,327 .77 for a part of the costs related
to its UST cleanup and applied it to pay part of the deductible amount on Petitioner's
claim (see Attachment 2) 1 ; (2)
on June 22, 2005, Respondent submitted a proposed
corrective action budget for Respondent's review and approval, which Respondent
received on June 27, 2006 (A.R. 21-23, et seq .) ; (3) Respondent reviewed the proposed
budget and approved it on July 14, 2005, (A.R. 57-61), notwithstanding the fact that it
was submitted after the May 2, 2005 partial payment ; (4) on October 21, 2005, IEPA
approved and made a payment to Petitioner of $3,865
.19 for certain costs related to this
UST cleanup, and applied it to pay part of the deductible amount on Petitioner's claim
(see Attachment 3) ; and (5) on January 11, 2006, Respondent approved a proposed
corrective action budget amendment that was received by Respondent for review and
approval on October 24, 2005, and was dated October 4, 2005 (see Attachment 4) .
Respondent has provided no logical explanation for how "issuance of a NFR Letter"
could prohibit further budget amendments while "payment for any related costs" does
not, despite their identical treatment in the language of 734 .335(d) .
'
Petitioner is also filing today a motion to supplement the Administrative Record by adding the four
attachments to this motion
. Petitioner requested that IEPA supplement die Administrative Record,
including " . ..all d ocuments in IEPA files concerning the request for partial payment for the initial
studies related to this matter, and EPA's response . .." se e Attaclunent l
. Respondent moved to
supplement the Administrative Record on November 2, 2006, but did not include the Attachments to this
motion, all of
which are correspondence between Respondent and Petitioner .
12
ARGUMENT III . SUBSECTION 734
.335(E) EXPLICITLY CONTROLS
RESPONDENT'S REVIEW OF PETITIONER'S BUDGET AMENDMENT, AND
IT PROVIDES NO BASIS TO CUT OFF PETITIONER'S RIGHT TO AMEND
ITS BUDGET UPON ISSUANCE OF A NFR LETTER
The subsection relied upon by IEPA, 734
.335(d), does not mention budget
amendments
. The immediately following subsection explicitly addresses them :
734 .335(e)
If, following approval of any corrective action plan or associated
budget. an
owner or operator determines that a revised plan or budget is
necessary in order to mitigate any threat to human health, human safety, or the
environment resulting from the underground storage tank release,
the owner or
operator must submit, as applicable, an amended corrective action plan or
associated budget to the Agency for review. The
Agency must review and
approve, reject, or require modification of the amended plan or budget in
accordance with SubpartE of this Part .
BOARD NOTE : Owners and operators are advised that the total payment from
the Fund for all corrective action plans and associated budgets submitted by an
owner or operator must not exceed the amounts set forth in Subpart H of this
Part. (emphasis added .)
There is nothing in 734 .335(e), nor in Subpart E (comprised of Board
regulations at 734 .500, 734
.505, and 734 .510), that would require IEPA to reject
Petitioner's Budget Amendment based upon issuance of the May 10, 2006 NFR Letter,
or even allow
it to consider the issuance of a NFR Letter in reviewing Petitioner's
Budget Amendment
. Neither (EPA's July 17, 2006 letter, its motion for summary
judgment, nor its September 25, 2006 Reply brief in this matter provides any legitimate
justification under 743.335(e),
and Subpart E referenced therein, for its rejection of
Petitioner's May 30, 2006 Budget Amendment and reimbursement request
.
13
ARGUMENT IV : THE BOARD SHOULD ORDER RESPONDENT TO
APPROVE PETITIONER'S MAY 30, 2006 BUDGET AMENDMENT AND
REIMBURSEMENT REQUEST AS SUBMITTED
Since at least 1990, the Board has held that "It is well established that the
information in the denial statement frames the issues on review ." Pulitzer Community
Newspapers v . IEPA, PCB 90-142 (1990) at p . 6
; Centralia Environmental Services .
Inc. V. IEPA,
PCB 89-170 at 6 (May 10, 1990) ;
City of Metropolis v . IEPA,
PCB 90-$February 22, 1990) .
In its July 17, 2006 rejection letter (A .R
. 107-110), Respondent inaccurately
states that Petitioner has submitted a corrective action plan and budget, then states that
Respondent is rejecting them both . In fact, Petitioner submitted only
a reimbursement
request
and a Budget Amendment, not an amended plan . Respondent's rejection letter
does not mention the reimbursement request
. Its rejection of the Budget Amendment,
however, has the effect of denying the reimbursement request, so the Petitioner asked
the Board to Order IEPA to approve both its Budget Amendment and its request for
reimbursement . See the Aug
. 21, 2006 Petition for Review, par . 13 .
Respondent's rejection letter cites a sole reason for its rejection of Petitioner's
entire May 30, 2006 submittal, (EPA's interpretation of 734 .335(d)
. If the Board
reverses IEPA on this sole reason for its rejection, it should Order the approval of both
the Budget Amendment and the reimbursement request in Petitioner's May 30, 2006
submittal
. The Administrative Record includes notarized certifications by a licensed
professional engineer that all corrective action work was necessary, and that the May
30, 2006 reimbursement request was not for corrective actions in excess of the
14
minimum requirements of 415 ILCS 5/57, did not include costs for work not described
in the IEPA approved Corrective Action Plan, and did not include any costs that are
ineligible under applicable laws and regulations
. (A
.R . 99, & Supplemental A
.R. 167) .
These sworn certifications would fully support a Board Order that IEPA approve the
reimbursement request if the Board overrules IEPA's sole reason for rejecting them
.
Petitioner incorporates by reference, without repeating them, further arguments
that 734
.335(d) does not apply under these circumstances, as set out in Petitioner's
September 18, 2006 Response and Memorandum Opposing IEPA's Motion for
Summary Judgment in this matter
. It also incorporates by reference any additional
applicable arguments advanced by the petitioner in the similar pending case
Broadus Oil
v. EPA,
PCB 04-31 and 05-43 (consolidated), which Petitioner has moved to
consolidate with this case for purposes of decision
.
CONCLUSION
The Respondent's review and approval of Petitioner's May 30, 2006 Budget
Amendment is controlled by 734
.335(e)
. Respondent's July 17
. 2006 rejection of
Petitioner's May 30, 2006 Budget Amendment solely based upon its interpretation of
734.335(d)
is an error of law, as that subsection does not apply under these facts
. For
these reasons, the Petitioner's motion for summary judgment should be granted
.
Respectfully submitted,
DAGGETT LAW FIRM
161 N
. Clark Street, Suite 4950
Chicago, IL 60601
(312) 960-1600
FEDEX Ground Package System Inc
.
15
Via email and IISMail
Melanie A . Jarvis, Assistant Counsel
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue, East
P .O. Box 19276
Springfield, Illinois 62794-9276
Dear Ms. Jarvis:
In our 9/21/06 status
call with Hearing Officer Halloren, you agreed to
supplement the administrative record that IEPA filed with the Board in this matter if I
informally wrote you and identified the additional document(s) I wanted
. First, I request
that you add the "Corrective Action Completion Report" for this project, which was
submitted to IEPA by FedEx Ground approximately April 20, 2006
. 1 also request that
you add all documents in IEPA files concerning the request for partial payment for the
initial studies related to this matter, and EPA's response . It is my understanding that both
this request from FedEx and IEPA's response occurred in early 2005, or possibly late
2004.
Thanks in advance for your cooperation .
Sincerely,
4Tiomra'W. (Daggett
cDaggett Law c'inn
Suite 4950 - Chicago Ttle Tower
161 North ClarkStreet
Chicago, Illinois 60601
312-960-1600
October 24, 2006
Re : FedEx Ground Package System v . IEPA
Lust Fund Appeal, PCB 07-012
Supplementing the Administrative Record
emaik
TWDaggett@Comcast.net
facsimile: 312 332-0515
www. Dag gettLawFirm . com
Tho
aggett
217/782-6762
MAY
0 2 2005
FedEx Ground Package System, Inc .
Attention: Jerry Swart
1000 FedEx Drive
Moon Township, PA 15108
Re:
LPC #0310125219 -- Cook County
Bedford Park/Federal Express Ground
6767 West 75th Street
LUST Incident No. 20030468
LUST FISCAL FILE
Dear Mr. Swart :
The Illinois Environmental Protection Agency has completed the review of your application for
payment from the Underground Storage Tank Fund for the above-referenced LUST incident
pursuant to Section 57.8(a) of the Illinois Environmental Protection Act (Act), and 35 Ill . Adm.
Code 732, Subpart F . This information is dated January 24, 2005 and was received by the
Agency on February 25, 2005 . The application for payment covers the period from
April 3
?
2003 to
May 15, 2003
.
The amount requested is $11,327.77.
The deductible amount to be assessed on this claim is $15,000 .00. The costs from this claim ;
$11,327.77 will be applied to the deductible . The balance of the deductible ; $3,672 .23 will be
deducted from future claims .
On February 25, 2005, the Agency received your complete application for payment for this
claim. As a
result of the Agency's review of this application for payment, a voucher cannot be
prepared for submission to the Comptroller's office for payment . Subsequent applications for
payment that have been/are submitted will be processed based upon the date complete
subsequent application for payment requests are received by the Agency . This constitutes the
Agency's final action with regard to the above application(s) for payment .
An underground storage tank owner or operator may appeal this final decision to the Illinois
Pollution Control Board (Board) pursuant to Section 57 .8(i) and Section 40 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
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RECEIVED
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
MAY 05 2005
1021 NORTH GRAM) AvLNUI EAS3, P
.O . Box 19276, SPRINOFaL D, ILLINOIS 62794-9276, 21??gQMMENTALSERVICES
IAMIs R
. TI IOMPSON CI.Nt .R, 100 W I.S L RANDOLPh, Son 11-300, CHICAGO, IL 60601, 312-814-6026
Roo R . BLnc(IEVICII, GOVERNOR
RENEE CIPRIANO, DIRECTOR
CERTIFIED MAIL #
7004 2510 0001 8653 2563
Page 2
applicant 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, Illinois 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
Springfield, Illinois 62794-9276
217/782-5544
If you have any questions or require further assistance, please contact Catherine S. Elston
of my staff at 217/782-6762 .
Sincerely,
Douglas E . Oakley,
L
Manager
D d
LUST Claims Unit
Planning & Reporting Section
Bureau of Land
DEO :CSE:bjh\052507
.doc
cc :
MACTEC Engineering & Consulting
217/782-6762
OCT 2 1 2005
Fed Ex Ground Package Systems, Inc .
Attention: Jerry Swart
1000 FedEx Drive
Moon Township, PA 15108
Re: LPC #0310120014 --
Cook County
Bedford Park/Fed Ex Ground
6767 West 75th Street
LUST Incident No
. 20040575
LUST FISCAL FILE
Dear Mr. Swart:
The Illinois Environmental Protection Agency has completed the review of your application for
payment from the Underground Storage Tank Fund for the above-referenced LUST incident
Code
pursuant
732,
to
Subpart
Section
F57
.
.8(a)
This information
of the Illinois
is dated
Environmental
December
Protection
10, 2004
Act
and
(Act),
was received
and 35 Illby
.
theAdm
.
Agency on February 25, 2005
. The application for payment covers the period from May 8, 2004
to June 10, 2004
. The amount requested is $3,865 .19
.
The deductible amount to be assessed on this claim is $15,000
.00
. The eligible costs from this
claim; $3,864
.77 will be applied to the deductible
. The balance of the deductibl
LI
will be applied to future claims
. Listed in Attachment A are the costs that are not being
11 .235paid
.23
and
the reasons these costs are not being paid
.
On June 26, 2005, the Agency received your complete application for payment for this claim
.
As a result of the Agency's review of this application for payment, a voucher cannot be prepared
for submission to the Comptroller's office for payment
. Subsequent applications for payment
that have been/are submitted will be processed based upon the date complete subsequent
application
action with regard
for payment
to the
requests
above application(s)
are received
for
by the
paymentAgency
.
. This constitutes the Agency's final
An underground storage tank owner or operator may appeal this final decision to the Illinois
Pollution Control Board (Board) pursuant to Section 57
.8(i) and Section 40 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
Rol %I
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1217) 2711 .5000
SI'uiNCnnu -45017 S-Sixth Slreol Rd
., 5plingfield, It, 62706- (217) 786-6892
•
C0IIwsvmr
2009 Mall Slreel, Collinsville, IL 62244 (618) 546-' ;120
M .skIU .N-2409 W
. Main SL, Suite I 10, Marion, IL 62)5') (618) 993-72011
I'alN u u uN Ru v(11 o I'AI I I,
azGea •
V
I
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021
NORTH GRAND AVENUE EAST, P .O . Box 19276,
SPRINGFIELD, ILLINOIS 62794-9276, 217-782-3397
JAMES
R . THOMPSON CENTER, 100 WEST RANDOLPH,
SUITE 11-300, CHICAGO,
IL 60601, 312-814-6026
ROD R . BLAGOIEVICH, GOVERNOR
RECEIVED
~
.f T 3 1 2005
CERTIFIED MAIL
# ENVIRONMENTAL SERVICES
7004
2510
0001 8646
3423
Page 2
from the owner or operator and the Illinois EPA within the initial 35-day appeal period . If the
applicant 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, Illinois 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
Springfield, Illinois 62794-9276
217/782-5544
If you have any questions or require further assistance, please contact Catherine S . Elston
of my staff at 217/782-6762 .
Dou
E. Oakley, Manager
LUST Claims Unit
Planning & Reporting Section
Bureau of Land
DEO :CSE :bjh\057314 .doc
Attachment
cc:
MACTEC Engineering & Ground
Re
:
LPC #0310120014 -- Cook County
Bedford Park/Fed Ex Ground
6767 West 75th Street
LUST Incident No. 20040575
LUST Fiscal File
Citations in this attachment are from and the Environmental Protection Act (Act) and 35 Illinois
Administrative Code (35 Ill . Adm . Code).
Item #
Description of Deductions
1 .
$.42, deduction for handling charges in the billing(s) exceed the handling charges set
forth in Section 57 .8(f) of the Act . Handling charges are eligible for payment only if
they are equal to or less than the amount determined by the following table (Section
57.8(f)
of the Act and 35 Ill . Adm. Code 732 .607):
Attachment A
Accounting Deductions
Handling charges on courier charges exceeded the sliding scale .
DEO:CSE :bjh\057315 .doc
Subcontract or
Eligible Handling Charges
Field Purchase Cost
as a Percentage of Cost
$0-$5,000
12%
$5,001-$15,000
$600 + 10% of amount over $5,000
$15,001-$50,000
$1600 + 8% of amount over $15,000
$50,001-$100,000
$4400 + 5% of amount over $50,000
$100,001-$1,000,000
$6900
+ 2% of amount over $100,000
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
RECEIVED
1021
NORTH GRAND AVENUE EAST, P .O . Box 19276,
SPRINGFIELD, huNOls
62744-9276-( 217) 782-3397.)AN
; 7
?On
JAMES
R . THHOMPSON CENTER, 100 WEST RANDOLPH,
SUITE] 1-300, CHICAGO, IL 60601 - (312) 8f$1
MEN1,41 ,yF RV1 ~ E_
NOD R . BLAGOIEViCH, GOVERNOR
DOUGLAS P . SCOTT, DIRECTOR
217/782-6762
CERTIFIED MAIL
JAN 1
1 2006
7004 2510
0001
8653
8824
Mr . Jerry Swart
FedEx Ground Package Systems, Inc .
1000 FedEx Drive
Moon Township . PA 15108
Re :
LPC #0310120014 -- Cook County
Bedford Park/Federal Express Ground
6767 West 75 1'
Street
LUST Incident No
. 20030468, 20040575
LUST Technical File
Dear Mr. Swart :
The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the Amended Corrective
Action Plan Budget(budget) submitted for the above-referenced incident
. This plan, dated October 4,
2005, was received by the Illinois EPA on October 24, 2005
. 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 Ill
. Adm . Code).
may
The
costs
total
be
must
limited
budget
be incurred
by
is
Sections
approved
in accordance
57for
.8(d),
the amounts
57with
.8(e),
the
listed
and
approved
57.8(g)
in Section
planof
the
. Be
1
Act,
of
aware
as
Attachment
well
that
as
the
35
AIII
.
amount
Please
. Admof
note
. Codereimbursementthat
the
732 .606(s) and 732 .611 .
NOTE
: Amended plans and/or budgets must be submitted and approved prior to the issuance of a No
Further Remediation (NFR) Letter
. Costs associated with a plan or budget that have not been approved
prior to the issuance of an NFR Letter will not be reimbursable .
732Pursuant
.105,
to
the
Sections
Illinois
57EPA
.7(b)(5)
requires
and
that
57.12(c)
a Corrective
and (d) of
Action
the Act
Completion
and 35 IllReport
. Admthat
. Code
achieves
732.100
complianceand
with applicable remediation objectives be submitted within 30 days after completion of the plan 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
letter.
submit all correspondence in duplicate and include the Re
: block shown at the beginning of this
Rot
KIURI
4 :50_' North Main Sheet, Rotk(nrd, II
. 611!)] Ri 1'i)')87 77(,0
•
01, PI .vnrs '(SI I W . Hani>w1 SL, D,' Plaices, II (,01110 17{471 2'1
.1-40011
L1( N - 595 South Slate, Flgin, IL 60123 -1847) 6118-31 31
`F ,o1 541 S N- University St., Peoria, II W01 4 15091 691 .5461
131aaAU ur ANF
P1n1u,r 7620
N- UI71Vei+ity SE, Peoria, 11 . 61614
-
I N191 693-3462
SrRrvr.rulu- 4300 S
.5olh SIn-rl Rd ., Sptingtield, 11 (,270h
12171 - 86 6B92
• CIANn'nu,s
-2113 South Firs! Short (-han,paign, II 618?() 1117 ) 278-3800
•
Cnrirovu u - 1009 Mall SIreet, ( ollin ville•, II . (22 S4 - (616! 346 151 '0
MSIICIa 3409 W, Main SL, Stole 110, Malinn, II 6)050 161(1)'191 i'00
PRi un RI, n 1 ru PArn¢
4
Page 2
Please note that, if within four years after the approval of this plan, compliance with the applicable
rernediation objectives has not been achieved and a Corrective Action Completion Report has not been
submitted,
Act.
the Illinois EPA requires the submission of a status report pursuant to Section 57
.7(b)(6) of the
If you have any questions or need further assistance, please contact Jennifer Rossi at 217-782-9285
.
Sincerely,
Clifford L . Wheeler
Unit Manager
Leaking Underground Storage Tank Section
Division of Remediation Management
Bureau of Land
CLW :jjr\
Attachment:
Attachment A
c :
Carmen Yung, MACTEC Engineering & Consulting
Division File
Re:
LPC # 0310120014 -- Cook County
Bedford Park/Federal Express Ground
6767 West 75"i
Street
LUST Incident No
. 20030468, 20040575
LUST Technical File
The budget was previously approved for
:
$2,409 .00
Investigation Costs
$6,950.00
Analysis Costs
$52,703 .00
Personnel Costs
$2,405 .00
Equipment Costs
$246,548 .56
Field Purchases and Other Costs
$14,135 .81
Handling Charges
The following amounts have been approved
:
$2,033 .00
Investigation Costs
$1,350 .00
Analysis Costs
$4,890 .00
Personnel Costs
$55 .00
Equipment Costs
$79.30
Field Purchases and Other Costs
$422.00
Handling Charges
Therefore, the total cumulative budget is approved for
:
$4,442 .00
Investigation Costs
$8,300 .00
Analysis Costs
$57,593 .00
Personnel Costs
$2,460.00
Equipment Costs
$246,627 .86
Field Purchases and Other Costs
$14,557
.81
Handling Charges
Attachment A
