GATEWAY FS, INC .,
Petitioner,
vs .
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent .
BEFORE THE POLLUTION CONTROL BOARD
RECEIVED
CLERK'S OFFICE
OF THE STATE OF ILLINOIS
Dorothy M
. Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of
the Pollution Control Board a Petition for Review of Final Agency Leaking
Underground Storage Tank Decision, a copy of which is herewith served upon you
.
Robert E
. Shaw
IL ARDC No . 03123632
Curtis W. Martin
IL ARDC No
. 06201592
SHAW & MARTIN, P.C .
Attorneys at Law
117 N. 10th Street, Suite 200
P.O . Box 1789
Mt
. Vernon, Illinois 62864
Telephone (618) 244-1788
PCB
(UST
NoAppeal)
. 07-
S
NOTICE
JAN 0 9 2007
Pollution
STATE OF
Control
ILLINOISBoard
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, IL 62794-9276
Curtis W
. Martin, torney for
Gateway FS, In
Petitioner
BEFORE
OF
THE
THE
POLLUTION
STATE OF ILLINOISCONTROL
BOARD
RECEIVED
CLERK'S OFFICE
JAN 0
9 2007
GATEWAY FS, INC .,
Pollution
STATE OF
Control
ILLINOIS
Board
Petitioner,
vs
.
PCB No
. 07-S I
(UST Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent .
)
PETITION FOR REVIEW OF FINAL AGENCY
LEAKING UNDERGROUND STORAGE TANK DECISION
NOW COMES the Petitioner, Gateway FS, Inc
., ("Gateway"), by one of its
attorneys, Curtis W
. Martin of Shaw & Martin,
P.C .,
and, pursuant to Sections
57.7(c)(4)(D)
and 40 of the Illinois Environmental Protection Act (415 ILCS
5/57
.7(c)(4)(D) and 40) and 35 Ill
. Adm. Code 105
.400-412, hereby requests
that the Illinois Pollution Control Board ("Board") review the final decision of
the Illinois Environmental Protection Agency ("Agency") in the above cause, and
in support thereof, Gateway respectfully states as follows
:
1 .
On November 30, 2006, the Agency issued a final decision to
Gateway, a copy of which is attached hereto as Exhibit A
.
2 .
The grounds for the Petition herein are as follows
:
The Agency in its November 30, 2006 letter rejected Gateway's
Amended Site Classification Work Plan Budget dated September 8, 2006 on the
basis that the Budget contains costs that were modified by the Agency in a
prior letter dated May 3, 2002 regarding an Amended Site Classification Work
Plan and Budget dated January 8, 2002
. Therefore, according to the Agency, it
previously notified Gateway of its final action which was subject to appeal
within 35 days thereafter
. Because Gateway did not appeal that prior
notification the Agency claims it could take no further action regarding what it
deems are the same costs requested in Gateway's September 8, 2006 Budget
.
Gateway, however, contends in its Justification for Budget
Amendments submitted to the Agency with its Amended Site Classification
Plan Budget that the prior budgets provided insufficient personnel costs
necessary for the site classification completion due to the Agency's request that
Gateway conduct further investigation via additional soil and groundwater
investigation and evaluation
. The additional scope of work required the
additional personnel costs
.
In particular, additional field and office oversight was required due
to the addition of a monitoring well, waste sampling and disposal coordination
efforts
. In addition, extra personnel efforts were incurred associated with an
extended groundwater monitoring and purging program, an in-site hydraulic
conductivity test
. Additional data and documentation acquisition, post 9/ 11,
2001, was required, and surface body water locations, pathway potential and
article sources were researched
. The development of a setback distance
summary table was also required
. Finally, additional personnel time has been
required for the preparation of Amended Site Classification Work Plans and
Budgets within this project
. All such personnel activities and costs were
conducted beyond that specified in the originally approved site classification
Work Plan Budget .
2
Therefore, the personnel costs Gateway now requests the Agency to
review are beyond the original Plan scope and should be considered and acted
upon by the Agency pursuant to 415 ILCS 57
.8(a)(5) and 35 Ill . Adm
. Code
732 .405(e)
. The Agency's failure and refusal to do so was arbitrary and
capricious .
WHEREFORE, Petitioner, Gateway FS, Inc
., for the reasons stated above,
requests that the Board reverse the decision of the Agency and rule in favor of
Petitioner's request for approval of its Amended Site Classification Work Plan
and Budget dated September 8, 2006 as being 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 .
Curtis W
. Martin
IL ARDC No . 06201592
SHAW & MARTIN, P.C.
Attorneys at Law
117 N
. 10th Street, Suite 200
P .O
. Box 1789
Mt
. Vernon, Illinois 62864
Telephone (618) 244-1788
3
urtis W
. Martin ttorney for
Gateway FS, I ,
Petitioner
NOV 3 0 2006
Gateway FS, Inc .
Attention : Greg Birchler
221 East Pine Street
Red Bud, IL 62278
Re : LPC #1570450009 -- Randolph County
Red Bud / Gateway FS, Inc .
201 East Pine Street
Leaking UST Incident No
. 980020 and 980391
Leaking UST Technical File
Dear Mr . Birchler :
The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the
to
Classif3cacatlgn Work Plan Budget (buds submitted for the above-referenced incident
. This
budget, dated September B, 2 OW
was
-by the Illinois EPA on
k3I '
Citations in this letter aretfrom the Environmental Protection Act (Act) in ettttfket
oat to
.Tune 241
2002, and
35 Illinois Administrative Code ( Al . Adm.
Code) .
The budget is .
Tor the following reason(s) (
a :r57.7(a)(1)
and 5.7 .7(c)(44 of the Act
and 35 Ill . Adm . Code 732 .305(c) or 732
.312(i) and 732.503(b9) :
In accordance with
Section 57
.7(c)(4) of the Act said 35 Ill
. Adm . Code 733.503M mod aetiorrby
the Illinois EPA to disapprove or modify a plan or budget submitted pursuant to Title XVI of the
Act shall be provided to the owner or operator in writing within 120 days of receipt .
The Illinois EPA previously notified the owner or operator of its final action
. Further, in
accordance with Section 75 .7(c)(4) of the Act and 35 111
. Adm. Code 732 .503(f), the Illinois
EPA's action to reject or to require modification of a plan or budget, or the rejection of any plan
or budget by operation of law, was subje'et to appeal to the Illinois Pollution Control Board
within 35 days of the Illinois EPA's final action .
The budget contains costs that were modified by the Illinuis EPA in a letter dated MAY 3, 2002,
regarding the Amended Site Classification work plan and budget dated January 8, 2002, received
January 25, 2002 .
Roaroeu- 4302 North Main Street, Rockford, IT 61103 - (815) 987-7760 • DES PUINES -9511 W . Harrison St ., Des Plaines, It 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 a LAND - PEORIA - 7620 N . University St., Peoria, IL 61614- 13091 6935462 • CHAMPAIGN - 2125 South First Street, Champaign, IT 61820 - 12171 2785800
SeaNCDtto - 4500 S . Sixth Street Rd ., Springfield, IL 62706 - (217) 786.6692
COIIINsVIItr - 2009 Mall Street, Collinsville, IL 62234 - (618) 346-5120
MARION - 2309 W . Main SL, Suite 116, Marion, IT 62959 - (618) 993-7200
EXHIBIT
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) 1-300, CHICAGO, It 60601 -(312) 814-6026
ROD R .
BLAGO/EVICH, GOVERNOR
DOUGLAS
P . SCOTT, DIRECTOR
217/782-6762
CERTIFIED MAIL
7004
2510 0001 8593 6942
Page 2
All future correspondence must be submitted to
:
Illinois Environmental Protection Agency
Bureau of Land - #24
Leaking Underground Storage Tank Section
1021 North Grand Avenue East
Post Office Box 19276
Springfield, IL 62794-9276
Please submit all correspondence in duplicate and include the Re : block shown at the beginning
of this letter.
If you have any questions or need further assistance, please contact Carol Hawbaker at 217/782-
5713.
Sincerely,
Harry A
. Chappel, P.E.
Unit Manager
Leaking Underground Storage Tank Section
Division of Remediation Management
Bureau of Land
HAC:CLH
c:
Philips Environmental
BOL File
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on January
-~L
2007,
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 postage affixed
thereto, upon the following named persons
:
Dorothy M
. Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O . Box 19276
Springfield, IL 62794-9276
10,
n
Petitioner, Gat
ay FS, Inc .
