BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DAVE McGHEE,
)
)
Petitioner,
)
)
PCB No. 07-
vs.
)
(UST Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF FILING
TO:
Mr. Greg Richardson
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 N. Grand Avenue East
P.O. Box 19276
Springfield, IL 62764-9276
PLEASE TAKE NOTICE that on December 4, 2007 I electronically filed
with the Office of the Clerk of the Illinois Pollution Control Board the Petitioner’s
Brief, a copy of which is herewith served upon you.
Respectfully Submitted
DAVE McGHEE,
Petitioner
BY: _________________________
Jeffrey W. Tock
Dated: December 5, 2007
Jeffrey W. Tock
Harrington & Tock
201 W. Springfield Ave., Suite 601
P.O. Box 1550
Champaign, Illinois 61824-1550
Telephone: (217) 352-4167
vlb/Pleadings.jef/HDC/McGhee-NoticeFiling
Electronic Filing: Received, Clerk's Office, December 5, 2007
* * * * * PCB 2008-036 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DAVE McGHEE,
)
)
Petitioner,
)
)
PCB No. 2008-36
vs.
)
(UST Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
ENTRY OF APPEARANCE OF JEFFREY W. TOCK
NOW COMES Jeffrey W. Tock, of the law firm of Harrington & Tock, and
hereby enters his appearance on behalf of Petitioner, DAVE McGHEE, in the
above-referenced matter.
Respectfully Submitted
DAVE McGHEE,
Petitioner,
By: /S/
Jeffrey W. Tock
Dated: December 5, 2007
Jeffrey W. Tock
Harrington & Tock
201 W. Springfield Ave., Suite 601
P.O. Box 1550
Champaign, Illinois 61824-1550
Telephone: (217) 352-4167
vlb/Pleadings.jef/HDC/McGhee-EntryApp
Electronic Filing: Received, Clerk's Office, December 5, 2007
* * * * * PCB 2008-036 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DAVE McGHEE,
)
)
Petitioner,
)
)
PCB No. 07-
vs.
)
(UST Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR REVIEW OF ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY’S DECISION TO DENY
PETITIONER’S HIGH PRIORITY CORRECTIVE ACTION PLAN BUDGET
NOW COMES the Petitioner, DAVE McGHEE (hereinafter “Petitioner”), by and
through its attorneys, Harrington & Tock, and, pursuant to Sections 40 and 57.7 of the
Illinois Environmental Protection Act (“Act”) (415 ILCS 5/40, 5/57.7), and 35 Ill.
Admin. Code Part 105, hereby requests review of the decision by the Respondent, Illinois
Environmental Protection Agency (“Agency”), to modify the Petitioner’s Corrective
Action Budget Proposal. In support of this Petition, the Petitioner states as follows:
1. Petitioner is the owner of certain real property located at 112 N. Sycamore Street,
Villa Grove, Illinois, hereinafter referred to as the “Site”.
2. Petitioner was the owner of underground storage tanks (“USTs”) formerly located
at the Site.
3. Petitioner submitted to the Agency its Corrective Action Plan and Budget for the
Site on July 10, 2007. A copy of the Corrective Action Budget Proposal as
submitted to Respondent is attached hereto as Exhibit “A”.
4. The Agency approved the Corrective Action Plan (“CAP”) on November 1, 2007.
No appeal is being taken as to the approval of the CAP.
Electronic Filing: Received, Clerk's Office, December 5, 2007
* * * * * PCB 2008-036 * * * * *
5. By the same letter dated November 1, 2007, the Agency modified the proposed
Budget for the reasons listed in Attachment A to that letter. A true and accurate
copy of that letter, with attachments, is attached hereto and made a part hereof as
Exhibit “B”.
6. Also attached to the Agency’s November 1, 2007 letter was a page captioned
“Appeal Rights” which stated that “An underground storage tank owner or
operator may appeal this final decision to the Illinois Pollution Control Board…
within 35 days after the date of issuance of the final decision”.
7. This Petition to review the Agency’s rejection of the proposed Budget is filed
within 35 days from November 1, 2007.
8. Section 1 of Attachment A to the Agency’s letter of September 12, 2006 states as
follows:
“As a result of the Illinois EPA’s modification(s) in Section 2 of
this Attachment A, the following amounts are approved:
$4,390.05
Drilling and Monitoring Well Costs
$3,149.60
Analytical Costs
$73,536.25
Remediation and Disposal Costs
$0.00
UST Removal and Abandonment Costs
$11,270.80
Paving, Demolition and Well
Abandonment Costs
$0.00
Consulting Personnel Costs
$2,312.63
Consultant’s Materials Costs
9. Petitioner appeals the Agency’s rejection of all Consulting Personnel Costs.
10. The Agency stated in 2 of Attachment A to the November 1, 2007 letter as
follows:
“2. The Agency is requesting a more detailed breakdown of costs
per individual in the personnel portion of the budget. Based upon
this request, all of the consulting personnel costs were deducted
from the budget.”
Electronic Filing: Received, Clerk's Office, December 5, 2007
* * * * * PCB 2008-036 * * * * *
11. 35 Ill.Adm.Code 732.606(hh) states as follows:
“Costs ineligible for payment from the Fund include but are not
limited to: … (hh) Costs proposed as part of a budget plan that are
unreasonable; …”
12. The proposed Budget submitted by Petitioner to the Agency on July 10, 2007
contained the proposed Consulting Personnel Costs on the new budget forms
required by IEPA, copies of the Consulting Personnel Costs Forms are attached
hereto as group Exhibit “C”. The forms show twenty-five (25) line entries that
describe the Remediation Category, the title of the person performing the work,
the number of hours allocated to perform the work, the hourly rate for each person
performing the work, the total cost for each line item and a description of each
task within the Remediation Category.
13. This level of detailed breakdown of the costs/hours/persons associated with the
CAP is a method that was approved by the Illinois Pollution Control Board
(IPCB) in February of this year in
Webb & Sons, Inc. vs. IEPA
, PCB 07-24
(February 15, 2007). The issues in
Webb
were nearly identical to the issues here.
In
Webb
, the IEPA, by Harry A. Chappel as Unit Manager, rejected all
Personnel
Costs and requested “an hourly breakdown of each task performed by each job
title in order to make a more thorough review of the proposed personnel costs.”
At hearing, Mr. John Malcom of the EPA testified that he knew the acceptable
range for personnel costs for each part of the project and each personnel title. Mr.
Malcom is now the project manager on this case and is knowledgeable of what is
a reasonable cost for each task.
Electronic Filing: Received, Clerk's Office, December 5, 2007
* * * * * PCB 2008-036 * * * * *
14. The PCB agreed with petitioner that IEPA could make a determination of
whether or not the Consulting Personnel Costs submitted by Petitioner were
reasonable without having the Petitioner submit an additional hourly breakdown
of each task performed by each job title.
15. It was bad faith, arbitrary and capricious of the Agency to reject Petitioner’s
Budget proposal based upon an alleged lack of a detailed breakdown of all hours
associated with each task, given the level of detail stated in the proposed Budget.
16. It was bad faith, arbitrary and capricious of the Agency to reject Petitioner’s
Budget proposal based upon the Agency’s objection to an alleged lack of detail
when the Agency has approved this same level of hourly breakdown of tasks for
other projects.
17. Petitioner seeks review of the Agency’s November 1, 2007 rejection of the
Consulting Personnel Costs set forth in Petitioner’s Budget proposal.
WHEREFORE, Petitioner, DAVE McGHEE, respectfully requests that the Illinois
Pollution Control Board grant the following relief:
1. Find that the Agency’s November 1, 2007 rejection of the Consulting Personnel
Costs section of the Petitioner’s Budget proposal was in bad faith, arbitrary,
capricious and without statutory authority;
2. Reverse the Agency’s decision to reject the Consulting Personnel Costs section of
the Petitioner’s Budget proposal;
3. Remand this matter to the Agency with instructions to approve the Petitioner’s
Budget proposal as submitted;
Electronic Filing: Received, Clerk's Office, December 5, 2007
* * * * * PCB 2008-036 * * * * *
5
4. Award the Petitioner his attorney’s fees and expenses incurred in bringing this
action; and,
5. Award such further relief as deemed just and equitable in these premises.
DAVE McGHEE,
Petitioner,
By: /S/
Jeffrey W. Tock
Dated: December 5, 2007
Jeffrey W. Tock
Harrington & Tock
201 W. Springfield Ave., Suite 601
P.O. Box 1550
Champaign, Illinois 61824-1550
Telephone: (217) 352-4167
Electronic Filing: Received, Clerk's Office, December 5, 2007
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Electronic Filing: Received, Clerk's Office, December 5, 2007
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Electronic Filing: Received, Clerk's Office, December 5, 2007
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Electronic Filing: Received, Clerk's Office, December 5, 2007
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Electronic Filing: Received, Clerk's Office, December 5, 2007
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Electronic Filing: Received, Clerk's Office, December 5, 2007
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Electronic Filing: Received, Clerk's Office, December 5, 2007
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Electronic Filing: Received, Clerk's Office, December 5, 2007
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Electronic Filing: Received, Clerk's Office, December 5, 2007
* * * * * PCB 2008-036 * * * * *
Electronic Filing: Received, Clerk's Office, December 5, 2007
* * * * * PCB 2008-036 * * * * *
Consulting Personnel Costs Form
Hours
Total Cost
28.00
$2,940.00
19.00
$1,995.00
24.00
$2,520.00
28.00
$2,940.00
28.00
$2,940.00
157.00
$15,700.00
80.00
$8,000.00
80.00
$7,360.00
52.00
$4,784.00
100.00
Review and certify CAP preparation and CA completion reimbursements
105.00
CACR
Review and certify CA completion report
Senior Project Manager
Professional Engineer
105.00
Professional Engineer
CA-Pay
105.00
Employee Name
Personnel Title
Rate* ($)
Professional Engineer
105.00
Remediation Category
Task
CCAP
Review CA plan
CCAP-Budget
Review and certify CA budget
CCAP
Project management, IEPA and client correspondence, scheduling, CA plan preparation
Professional Engineer
105.00
Professional Engineer
Geologist III
92.00
CCAP-Field
Monitor CA field activities
CCAP-Budget
Senior Project Manager
100.00
CA budget preparation, IEPA correspondence, subcontractor setup
TACO 2 or 3
Conduct Tier 2 soil assessments, compile SSL & RBCA Equation spreadsheets
Geologist III
92.00
CCAP-Budget
CA budget preparation
Electronic Filing: Received, Clerk's Office, December 5, 2007
* * * * * PCB 2008-036 * * * * *
Consulting Personnel Costs Form
Hours
Total Cost
8.00
$736.00
40.00
$3,680.00
36.00
$3,312.00
82.00
$7,298.00
36.00
$3,204.00
12.00
$1,068.00
32.00
$2,848.00
24.00
$2,136.00
40.00
$3,560.00
Senior Scientist
89.00
CCAP
Compile data to evaluate CA plan, revise CA plan, conduct groundwater modeling
Geologist III
92.00
CCAP-Field
Confirmation soil sampling, packaging, shipping
92.00
Senior Scientist
89.00
CACR
Gather field data for completion report
Senior Scientist
Senior Scientist
89.00
CA-Pay
Prepare CA planning and completion reimbursements
Senior Scientist
89.00
CCAP-Field
Health and safety plan, excavation and backfill supervision
Senior Scientist
89.00
TACO 2 or 3
Compile site specific parameters, incorporate into TACO analysis
CACR
Compile CA soil and groundwater analytical results, prepare completion report
Employee Name
Personnel Title
Rate* ($)
Remediation Category
Task
89.00
CCAP-Budget
Estimate costs for CA completion and fill out CA budget forms
Geologist III
Geologist III
92.00
CA-Pay
Prepare two CA reimbursement packages
Electronic Filing: Received, Clerk's Office, December 5, 2007
* * * * * PCB 2008-036 * * * * *
Consulting Personnel Costs Form
Hours
Total Cost
Scientist III
60.00
$4,440.00
Scientist III
57.00
$4,218.00
Scientist III
48.00
$3,552.00
8.00
$376.00
68.00
$3,196.00
24.00
$1,392.00
24.00
$1,392.00
*Refer to the applicable Maximum Payment Amounts document.
Total of Consulting Personnel Costs
$95,587.00
74.00
CCAP-Field
Drafter IV
CACR
Site maps and drawings for completion report
58.00
CCAP
Site maps and drawings for corrective action plan
Drafter IV
58.00
Excavation and backfilling supervision, landfill parameter and confirmation soil sampling, well
surveying
47.00
CCAP-Field
Demolition, excavation and backfilling supervision, manifest/weight ticket collection,
confirmation soil sampling, groundwater monitoring, well surveying
Technician 1
47.00
CCAP
Collect field data for CAP
Technician 1
74.00
CCAP-Budget
CA budget preparation, IEPA and landfill correspondence
Rate* ($)
Remediation Category
Task
74.00
CCAP
Subcontractor coordination, IEPA correspondence, drum disposal coordination, CAP
preparation
Employee Name
Personnel Title
Electronic Filing: Received, Clerk's Office, December 5, 2007
* * * * * PCB 2008-036 * * * * *
