HARLEY FREY,
V .
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
BEFORE THE POLLUTION CONTROL BOARD
Petitioner,
Respondent .
OF THE STATE OF ILLINOIS
Pollution
STATE OF
Control
ILLINOIS
Board
NOTICE OF FILING
TO:
Melanie Jarvis
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P .O. Box 19276
Springfield, Illinois 62794-9276
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P .O. Box 19274
Springfield, Illinois 62794-9274
RECEIVEDCLERK'S
OFFICE
APR 1 9 2007
PLEASE TAKE NOTICE that on April 19, 2007, filed with the Clerk of the Illinois
Pollution Control Board of the State of Illinois an original, executed copy of a Petition for
Review of Illinois Environmental Protection Agency Decision .
Dated : April 19, 2007
Respectfully submitted,
Harley Frey
By:
One of Its Att eys
Carolyn S . Hesse
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
392568v1
(This filing submitted on recycled paper as defined in 35 III . Adm . Code 101 .2021
CERTIFICATE OF SERVICE
I, on oath state that I have served the attached Petition for Review of Illinois
Environmental Protection Agency Decision by placing a copy in an envelope addressed to
:
Melanie Jarvis
Carol Webb
Illinois Environmental Protection Agency
Hearing Officer
1021 North Grand Avenue East
Illinois Pollution Control Board
P .O. Box 19276
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
P.O. Box 19274
Springfield, Illinois 62794-9274
from One North Wacker Drive, Suite 4400, Chicago, Illinois, before the hour of 5
:00 p .m., on
this 19`h Day of April, 2007
.
Cam
Carolyn
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. H&sse
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(This filing submitted on recycled paper as defined in 35 111 . Adm. Code 101 .2021
2
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
HARLEY FREY,
)
Petitioner,
)
>
v.
4
) PCB No.
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent .
)
PETITION FOR REVIEW OF ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY DECISION
Harley Frey, by his attorney, Carolyn S
. Hesse of Barnes & Thornburg, pursuant to the
Illinois Environmental Protection Act, 415 ILCS 5/1
et. seq. (the "Act") and 35 Illinois
Administrative Code Section 105.400 et. seq.,
hereby appeals certain decisions by the Illinois
Environmental Protection Agency (the "Agency") .
1 .
Harley Frey ("Petitioner"), is the owner of property where a former
gasoline service station was located at R .R
. 4, Highway 45 South,
Barnhill, Wayne County, Illinois (the "Station")
. This gasoline service
station had two underground storage tanks (UST's) on the property, which
stored gasoline and diesel fuel .
2
.
LUST Incident Number 20060066 was obtained following a site
investigation during which it was determined that the USTs leaked . The
site has also been assigned LPC #1918015005 - Wayne County.
[This riling submitted on recycled paper as defined in 35111 . Adm. Code 101 .2021
RECEIVEDCLERK'S
OFFICE
APR 1 9 2007
Pollution
STATE OFControl
ILLINOIS
Board
3 . Pursuant to a request from Petitioner, Illinois EPA extended the 45-day
early action period for which early action costs shall be considered
reimbursable to June 30, 2006 . (See Exhibit 1 .)
4.
Early action removal activities were performed at the site and a 45-day
report and addendum to the 45-day report were submitted to the Agency .
The addendum to the 45-day report documents that 614
.57 tons (409
.71
cubic yards) of contaminated backfill material were removed from the
UST excavation site and disposed of at the Wayne County landfill .
(Exhibit 2, page 3, P-0041 .)
In addition, clean backfill material was
brought to the site . (See Exhibit 3, p . 11, P-0235)
5 .
On November 20, 2006, CW3M, consultant for Petitioner, submitted a
reimbursement request to the Agency seeking reimbursement for specified
early action costs, including the costs of excavation, transportation and
disposal of contaminated soil and purchasing, transportation, and
placement of clean backfill material . The remediation Costs and Disposal
Form specifically states that "The cubic yard rate includes all costs
associated with the excavation, transportation and disposal of
contaminated soil and/or backfill material
. .
. [including but] not limited
to all personnel, equipment, materials and other expenses. . . ." The cubic
yard rate for backfilling the excavation "includes all costs associated with
the purchase, transportation and placement of clean backfill material . .
[This filing submitted on recycled paper as defined in 35 111 . Adm . Code 101 .2021
2
[including but] not limited to all personnel, equipment, materials, and
other expenses . . . ." See Exhibit 3, p . 11, P-0235 .
6.
The amount requested for excavation, transportation and disposal of
contaminated soil was based on the rate of $57 .00 per cubic yard in
accordance with 35 III . Admin . Code 734 .825(a) . The amount requested
for purchase, transportation and placement of clean backfill was based on
the rate of $20
.00 per cubic yard in accordance with 35 Ill . Admin. Code
734 .825(b) .
See Exhibit 3, p . 11 . P-0235 .
7.
The Agency received this reimbursement request on November 27, 2006
.
See Exhibit 4, P-0215 .
8.
The Agency sent a letter dated March 23, 2007 to Petitioner approving
certain requests for reimbursement and denying others . The Agency
deducted $16,448 .99 for the costs for "backfill, trucking and excavation"
claiming that supporting documentation was lacking
. Of this amount, the
Agency deducted "$8,935 .48 from the purchase, transportation and
placement of the clean backfill material ."
In addition, the Agency
deducted "$7,513 .51 from the costs for excavation, transportation and
disposal
." The Agency requested invoices for the hauling of the clean
backfill and contaminated soil
.
(See
Exhibit 4, P-0217 .)
9.
The Agency's request for this additional documentation is contrary to the
language and the intent of the specific payment amounts set forth in
subpart H to 35 Ill . Admin. Code 734
.
(This filing submitted on recycled paper as defined in 35 111 . Aden. Code 101 .202
3
10
. The purpose of Subpart H is to establish lump sum payment amounts to
improve efficiency and to save time for both the Agency and tank owners
and operators by avoiding the submission and review of costs based on
time and materials
.
11 .
Section 734
.825 Soil Removal and Disposal provides :
Payment for costs associated with soil removal, transportation, and
disposal must not exceed the amounts set forth in this Section,
Such costs must include, but are not limited to, those associated
with the removal, transportation, and disposal of contaminated soil
. . . and the purchase, transportation, and placement of material
used to backfill the resulting excavation.
a.
Payment for costs associated with the removal,
transportation, and disposal of contaminated soil exceeding
the applicable remediation objectives, visibly contaminated
fill removed pursuant to Section 734 .210(f) of this Part, and
concrete, asphalt, or paving overlying such contaminated
soil or fill must not exceed a total of $57 per cubic yard .
b.
Payment
for costs associated with the purchase,
transportation, and placement of material used to backfill
the excavation resulting from the removal and disposal of
soil must not exceed a total of $20 per cubic yard .
12.
The rules at Subpart H of Part 734 do not require that invoices for the
hauling of clean backfill and contaminated soil be included in
reimbursement requests .
13. The specified lump sum amount per cubic yard of material covers the
various costs and work associated with the specified activities . It is not
necessary to list each line item activity covered by Section 734
.825
because reimbursement under Section 734 .825 is not based on time and
materials .
This filing submitted on recycled paper as defined in 35 III . Adm . Code 101 .202
4
14.
The Agency also deducted $28
.00 for handling charges on hotel costs .
(See Exhibit 4, P-0217
.)
15 .
Lodging at a hotel in order to perform corrective action at a site that is
remote from the tank removal contractor's and consultant's offices is an
expense that is related to corrective action
.
16.
Thus, Petitioner believes that handling charges on hotel costs are
reimbursable from the Fund similar to other handling charges that are
allowed for field purchase and subcontractor costs
. See
35 Ill . Admin .
Code 734
.635 .
17 .
Petitioner is appealing the Agency's final decision letter dated March 23,
2007.
(Exhibit 4 .)
The Agency's decision set forth in the letter from
which this appeal is being taken is without merit and is contrary to the
regulations set forth at 35 Ill
. Admin. Code 734.
/This filing submitted on recycled paper as
5
defined in 35 Ill
. Adm . Code 101
.2021
WHEREFORE, Harley Frey respectfully requests that the Board enter an order
reversing the Agency's letter dated March 23, 2007 and requiring the Agency to
reimburse Petitioner for all of its requested costs and for Petitioner's attorneys' fees and
costs in bringing this appeal
.
Respectfully submitted,
Harley Frey
Carolyn S
. Hesse, Esq .
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312)
390106vI357-1313
By: C c
, HCV)-/aOne of Its Atto eys
This filing submitted on recycled paper as defined in 35 Ill
. Adm
. Code 101 .2021
6
