GATEWAY FS, INC .,
Petitioner,
vs.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
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
RER
,E11VED
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
JAN 1
1 2007
Respondent
.
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
.
PCB
(UST
NoAppeal)
. 07- V
I
NOTICE
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
By
Curtis
~a4
A~W
. Martin,
J
ttorney for
Gateway FS, In Petitioner
BEFORE THE POLLUTION CONTROL BOARD SCERK'S
OFIE
a
OF THE STATE OF ILLINOIS
JAN
1
1 2007
GATEWAY FS, INC .,
)
Pollution
STATE OF
Control
ILLINOISBoard
Petitioner,
)
vs.
)
PCB No . 07-
V
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 December 6, 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 December 6, 2006 letter rejected the Amended
High Priority Corrective Action Budget submitted by Gateway on September 8,
2006, asserting that there was a lack of supporting documentation regarding
the Budget and that the costs reflected in the Budget may be in excess of those
required to meet the minimum requirements of the Act relating to corrective
action activities
. More particularly, the Agency indicated that the scope of the
Amended High Priority Corrective Action Plan had not changed and it is
unclear why the Budget has changed from the Plan and Budget approved, with
modifications, by the Agency on May 3, 2002
. Since no Amended Plan has
been submitted, according to the Agency, the Budget includes costs that
exceed the Plan to which it relates .
In addition, the Agency's December 6, 2006 letter posits that the
Amended Budget includes costs that exceed the maximum payment amounts
set forth in Subpart H, Appendix D and/or Appendix E of 35 I11.Adm.Code
732
and, as such, are ineligible for payment from the Leaking Underground Storage
Tank Fund under 35 Ill . Adm
. Code 732 .606(ccc)
. Lastly, the Agency indicates
that the costs are not reasonable and therefore cannot be approved pursuant
to Section 57 .7(c)(4)(C) of the Act .
Gateway contends that Amended High Priority Corrective Action
Budget includes additional legitimate, reasonable, reimbursable investigation
and personnel costs associated with development and implementation of the
Amended High Priority Corrective Action Plan and the High Priority Corrective
Action Completion Report
. Gateway encountered additional costs associated
with abnormally difficult drilling conditions as well as drilling set up and
deconstruction regarding geotechnical bore hole-101 and three (3) extra off-set
boreholes
. In fact, geotechnical borehole 101 was changed to 103 after the
drilling difficulties encountered at 101
. In addition, extra personnel site visits
were required to monitor the groundwater sampling, stabilization and purging
2
at 103
. These charges necessitated further personnel efforts to development
budget modifications .
Additional personnel time was required for quantitative
documentation for the Class 2 groundwater designation previously made using
prior data . In light of historical testing data, the Tier 1 averaging approach was
reevaluated for appropriateness
. During this reevaluation, data gaps including
but not limited to the presence of previously unaddressed benzene detection
limits above cleanup objectives were discovered in the approved work plan, and
the Agency required replacement results from replacement samples, thus
further increasing personnel time and costs .
During implementation of the corrective action activities,
significant acquisition and modification of pre-existing or additional data was
necessary in order for an accurate comparison of historical LUST facility data
to current investigation findings and proposed corrective actions to be
completed
. The prior approved plans were created and approved by different
consulting and Agency personnel than had implemented them, and corrections
of oversights or data gaps of past plan approvals were necessary
. These
corrections/updates were required in order to meet the minimum requirements
of the Act and regulations so that a registered geologist or professional engineer
could certify that the conditions and findings in the report were accurate
.
During Gateway's development of the original High Priority
Corrective Action Completion Report, it became aware of the option to add
MTBE as an indictor constituent
. It was not until after Gateway's submittal to
3
the Agency of the High Priority Corrective Action Completion Report that the
Agency indicated that the election to add MTBE was required on Gateway
letterhead
. Additional personnel efforts were required for administration of the
project and development of budget modification
.
Gateway notified the Agency that the discovery of past oversights,
data gaps, and inclusion of historic MTBE data required additional personnel
efforts, and that the costs and time delays initially incurred were considered
more economical than submitting individual work scope and budget
modifications
. Based on the historical data and the projected activities, the
Agency only required one borehole and the re-submittal of the Corrective
Action Completion Report (with limited modifications) for an approved amended
Corrective Action Plan
. These previously unbudgeted activities would have
been considered necessary as part of the amended Corrective Action Plan had
they not been performed as extras to the prior Corrective Action Plan
.
All of the above additional personnel efforts were required in excess
of the original budget and contributed to the personnel costs incurred in
addition to the original budget . These additional activities were necessary and
performed in accordance with standard consulting practices allowed under the
Act and its regulations and should have been allowed by the Agency
. In
addition, the performance of these activities and level of detail are consistent
with that provided for other Gateway LUST incidents under which full LUST
Fund reimbursement has been provided
. Therefore, the failure of the Agency to
do the same for this LUST incident is arbitrary and capricious .
4
WHEREFORE, Petitioner, Gateway FS, Inc
., prays for reversal of the
Agency's decision of December 6, 2006, that its 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,
Robert E . Shaw
IL ARDC No . 03123632
Curtis W . Martin
IL ARDC No . 06201592
SHAW & MARTIN, P.C .
Attorneys at Law
117 N . 10t1, Street, Suite 200
P.O . Box 1789
Mt. Vernon, Illinois 62864
Telephone (618) 244-1788
5
SHAW & MARTIN, P.C.
410
Curtis W . Martin, A orney for
Gateway FS, Inc.,
etitioner
1021 NORTH GRAND AVENUE EAST, P,0 . Box 19276,
SPRiNCtitlD, ILLINOIS
62794 9276 - ( 217) 782-3397
JAMES R . THOMPSON CENTER, 100 WEST RANDOLPH, SUITE 11-300, CHICAGO, IL 60601 -(312) 814-6026
Roo R . BLAGO)EVICH, GOVERNOR
DOUGLAS P . SCOTT, DIRECTOR
217/782-6762
CERTIFIED MAIL
DEC 0 6 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 amended High
Priority Corrective Action Budget (budget) submitted for the above-referenced incident . This
budget, dated September 8, 2006, was received by the Illinois EPA on September 11, 2006 .
Citations in this letter are from the Environmental Protection Act (Act) in effect prior to June 24,
2002, and 35 Illinois Administrative Code (35 111
. Adm
. Code).
The budget is rejected for the following reason(s) (Section 57 .7(a)(1) and 57 .7(c)(4) of the Act
and 35 Ill . Adm- Code 732 .305(c) or 732.312(i) and 732 .503(b)):
1 .
The budget includes costs that lack supporting documentation . Such costs are ineligible
for payment from the Fund pursuant to 35 Ill . Adm. Code 732 .606(gg) . 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 ; therefore, such costs are not approved pursuant to Section
57 .7(c)(4)(C) of the Act because they may be used for corrective action activities in
excess of those required to meet the minimum requirements of Title XVI of the Act .
As the scope of the plan has not changed, it is unclear why the budget has changed . The
High Priority Corrective Action plan and budget were approved with modifications in a
letter dated May 3, 2002
. No amended plan has been submitted to address the
justifications for the additional costs requested .
2.
The budget includes costs that exceed the maximum payment amounts set forth in
RDCRroRD-4302
EIOINNorth
- 595
Main
South
Street,
State,
Rockford,
Elgin, IL 60123
IL 61103-(815)
- 1847) 608-3131987-7760•
PEORIA-
•
DES PLAINrs-9511
5415 N . University
W. Harrison
5L, Peoria,
St .,
IL
Des
61614
Plaines,
- (309)
IL
693-546360016-(847)
294-4000
BUREAU Or LAN,- PEORIA - 7620 N . University SL, Peoria, IL 61614 - (309) 693-5462 •
CHAMPAIGN- 2125 South First Street, Champaign, IL 61820 - (217) 278-5800
SMINGERLD-4500 5 . Sixth Street Rd ., Springfield, IL 62706-(217) 786-6892
• COLLINsvRLE- 2009 Mall Street, Collinsville, It 62234- (618) 3465120
MARION -2309 W. Main St
, Suite 116, Marion, IL 62959 - (618) 993-7200
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
7004
2510
0001 8593 7284
EXHIBIT
S
Page 2
Subpart H, Appendix D, and/or Appendix E of 35 Ill
. Adm. Code 732 . Such costs are
ineligible for payment from the Fund pursuant to 35 I11
. Adm. Code 732.606(cec) . In
addition, such costs are not approved pursuant to Section 57
.7(c)(4)(C) of the Act
because they are not reasonable
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.
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
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
AA-
At
Curtis W
. Martin, A orney for
Petitioner, Gatewa FS, Inc
.
