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BEFORE THE ILLINOIS POLLUTION CONTROL BOARULERICS

RECEIVcDOFFICE

DEC 2

2007

Board

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

NOTICE OF FILING

ILLINOIS STATE TOLL HIGHWAY

AUTHORITY (Belvidere Oasis- South Side)

Petitioner,

To: Douglas P. Scott, Director

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794

PLEASE TAKE NOTICE that on December 26, 2007 we filed with the Clerk of the

Illinois Pollution Control Board the originals and nine (9) copies each, via personal

delivery, of

1) Appearance of Deutsch, Levy

Engel, Chartered and

Petition for

Review of Agency Modification of High Priority Corrective Action Plan and Budget

for Belvidere Oasis South

for filing the above-entitled cause, copies of which are

attached hereto.

Special Assistant Attortrey General

Kenneth W. Funk

Karen Kavanagh Mack

Special Assistant Attorneys General

Deutsch, Levy & Engel, Chartered

225 W. Washington Street, Suite 1700

Chicago, IL 60606

(312) 346-1460 /Firm No. 90235

THIS FILING IS SUBMITTED ON RECYCLED PAPER.

2621031

CERTIFICATE OF SERVICE

The undersigned hereby certifies that true and correct copies of the Notice of Filing, together

with copies of the documents described above, were served upon the above-named Respondent

by enclosing same in envelope addressed to said Respondent, certified mail, return receipt

requested, and by depositing said en4elopes in a U.S. Post Office Mail Box at Chicago, Illinois,

with postage fully prepaid on the

day of December, 2007.

Special Assistant At orney General

Kenneth W. Funk

Karen Kavanagh Mack

Special Assistant Attorneys General

Deutsch, Levy & Engel, Chartered

225 W. Washington Street, Suite 1700

Chicago, IL 60606

(312) 346-1460 /Firm No. 90235

THIS FILING IS SUBMITTED ON RECYCLED PAPER.

-262103.1

RECEIVED

CLERK'S

OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Board

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

APPEARANCE

We, Kenneth W. Funk and Karen Kavanagh Mack, hereby file the appearance of

Deutsch, Levy & Engel, Chartered in this proceeding on behalf of the Illinois State Toll

Highway Authority.

Special Assistant Attorne

General

Kenneth W. Funk

Karen Kavanagh Mack

Special Assistant Attorneys General

Deutsch, Levy & Engel, Chartered

225 W. Washington Street

THIS FILING IS SUBMITTED ON RECYCLED PAPER.

ILLINOIS STATE TOLL HIGHWAY

AUTHORITY (Belvidere Oasis- South Side)

262103.1

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD_nitte

,,CERIPED

RK'S

OFFICE

DEC 2 6 2007

STATE OF ILLINOIS

Pollution Control Board

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

PETITION FOR REVIEW OF AGENCY MODIFICATION OF HIGH PRIORITY

CORRECTIVE ACTION PLAN AND BUDGET

Petitioner, the Illinois State Toll Highway Authority ("ISTHA") by its attorneys, Kenneth

W. Funk and Karen Kavanagh Mack, as Special Assistant Attorneys General, petitions the

Illinois Pollution Control Board, pursuant to 415 ILCS 5/57.7(c)(4)(D), 415 ILCS 57.80), and

415 ILCS 5/40, for review of the final determination of Respondent, the Illinois Environmental

Protection Agency (the "Agency"), with respect to Petitioner's High Priority Corrective Action

Plan and Budget, dated on or about September 26, 2007, relating to its Belvidere Oasis South

facility, and in support thereof, states:

ISTHA is the owner of the facility, including underground storage tanks ("UST")

and related piping, commonly known as the Belvidere Oasis South located on the 1-90 Tollway

in Belvidere, Illinois.

In or about 1994, Wight & Company performed a Contaminated Soils

Determination to confirm results of investigations near the existing and former UST dispensing

systems and the former vehicle repair/service station at the Belvidere Oasis South facility. In or

about 1994, Wight & Company, on ISTHA's behalf, notified the Illinois Emergency

Management Agency (IEMA) that various gasoline, diesel, and waste oil target analytes were

THIS FILING IS SUBMITTED ON RECYCLED PAPER.

ILLINOIS STATE TOLL HIGHWAY

AUTHORITY (Belvidere Oasis- South Side)

Petitioner,

- 261964.1

detected above the Tier I Remediation Objectives, to which the IEMA assigned LUST incident

number 94-1816.

In or about August of 2002, at the Office of the State Fire Marshall's (OSFM)

request, Wight and Company, on ISTHA's behalf, notified IEMA of a release from the USTs, to

which the IEMA assigned Incident No. 2002-1277, and is considered a re-reporting of Incident

No. 94-1816 since the release was reported during the removal of the tank system associated

with Incident No. 94-1816.

On or about September 26, 2007, ISTHA submitted a Combined High Priority

Corrective Action Plan, Budget and Completion Report ("Report") to the Agency in accordance

with the requirements of Title XVI of the Act and 35 Ill. Adm. Code 732.409(c); and, on or

about November 20, 2007, the Agency approved with modification the Corrective Action Plan

("CAP") portion of the Report. A true and correct copy of said decision letter is attached hereto

as Exhibit "1".

On or about November 20, 2007, the Agency also approved with modification the

Budget portion of the Report. The Agency's modification decision is also contained in the letter

attached hereto as Exhibit "1".

ISTHA requests that the Board reverse the Agency's determination modifying the

CAP portion of the Report. Specifically, the Agency's decision letter states that "... the

proposed alternative technologies (SVE and ORC) do not show a likelihood of success. No

additional information submitted in this report supports these activities."

(See

Ex. 1). The

Agency's failure to approve Oxygen Release Compound (ORC) injection technology is

unreasonable because ORC injection technology is a valid remedial technology recognized by

THIS FILING IS SUBMITTED ON RECYCLED PAPER.

261964.1

the Agency. Furthermore, the CAP portion of the Report sufficiently establishes the likelihood

of success to support these activities.

ISTHA also requests that the Board reverse the Agency's determination

modifying the Budget portion of the Report. With respect to the Budget, ISTHA appeals the

Agency's modifications to the investigation, analytical, personnel, equipment, field purchases,

and other costs; the modifications to the Project Manager and boring rates; the modifications to

excavation charges; the modifications to the costs associated with mobilization, well

development, well materials; the modifications to the costs for alternative technologies in the

amount of $306,350.86; and the modifications to the Budget for costs for expedited sample

returns. ISTHA asserts that the costs for those categories were reasonable and required to

develop the CAP.

With regard to the Budget, ISTHA appeals

inter alia,

the modifications to the

budgeted investigation, analytical, personnel, equipment, field purchases and other costs because

the Agency failed to provide a detailed breakdown regarding these modifications. Rather, the

Agency provided a "lump sum" modification to the proposed Budget in Section 1 of IEPA

modification letter. (Ex. 1, Attachment A). ISTHA's proposed budgeted amounts are necessary

and reasonable for achieving the proposed corrective action objectives pursuant to 35 III. Adm.

Code 732.505(c).

In addition, no deduction should be made for the investigation conducted to

obtain the site-specific parameters necessary to evaluate the site and determine the appropriate

remediation methods. The costs for the borings, excavation charges, mobilization, well

development, well materials, are necessary and consistent with the applicable regulations.

Additionally, the Agency's modification to the Project Manager rate is improper because the

THIS FILING IS SUBMITTED ON RECYCLED PAPER.

261964.1

proposed budgeted rate was reasonable and consistent with the scope of the remedial action

activities.

10.

Furthermore, ISTHA objects to the Agency's modification to the Budget for costs

pertaining to alternative technologies in the amount of

$306,350.86.

The Agency's failure to

approve the alternative technologies is unreasonable because ORC injection technology is a valid

remedial technology recognized by the IEPA and the CAP portions of the Report sufficiently

establishes the likelihood of success to support these activities.

11.

Similarly, ISTHA further objects to the modifications to the proposed Budget for

expedited sample returns because the rate per rush sample is necessary and reasonable for

developing the proposed corrective action objectives pursuant to

ISTHA reserves the right to present additional grounds for reversal of the

Agency's final determination, as they appear during the course of this Appeal.

THIS FILING IS SUBMITTED ON RECYCLED PAPER.

- 201964.1

Special Assist

WHEREFORE, the Petitioner, The Illinois State Toll Highway Authority, respectfully

requests that this Board grant a hearing in this matter and reverse the Agency's November 20,

2007 modification of ISTHA's High Priority Corrective Action Plan and Budget for the

Belvidere Oasis South and remand this matter to the Agency with instructions to approve the

Amendment as aforesaid, and for any other relief as the Board deems just and appropriate.

Respectfully submitted,

ILLINOIS STATE TOLL HIGHWAY AUTHORITY

t Attorney General

Kenneth W. Funk

Karen Kavanagh Mack

Special Assistant Attorneys General

Deutsch, Levy & Engel, Chartered

225 W. Washington Street, Suite 1700

Chicago, IL 60606

(312) 346-1460

Firm No. 90235

THIS FILING IS SUBMITTED ON RECYCLED PAPER.

2619641

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

BLAGOJEVICH, GOVERNOR

DOUGLAS P. SCOTT, DIRECTOR

CERTIFIED MAIL

7007 0220 0000 0153 2917

217/782-6762

NOV 2 0 2007

Illinois State Toll Highway Authority

Attention: Mr. Jeffrey S. Dailey, P.E.

2700 Ogden Avenue

Downers Grove, Illinois 60515

Re: LPC

#0070057092 -- Boone County

Belvidere/ Belvidere Oasis (South Side)

1-90 East Bound

Leaking UST Incident No. 941816 and No. 20021277

Leaking UST Technical File

Dear Mr. Dailey:

The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the High Priority Corrective

Action Plan (plan) submitted for the above-referenced incident. This plan, dated September 26, 2007, was

received by the Illinois EPA on September 27, 2007. Citations in this letter are from the Environmental

Protection Act (Act) in effect prior to June 24, 2002, and 35 Illinois Administrative Code (35 Ill. Adm.

Code).

Pursuant to Section 57.7(c) of the Act and 35 Ill. Adm. Code 732.405(c), the plan is modified. The

following modifications are necessary, in addition to those provisions already outlined in the plan, to

demonstrate compliance with Title XVI of the Act and 35 III. Adm. Code 732:

As stated previously in an Agency letter dated January 10, 2002, the proposed alternative technologies

(SVE and ORC)

do not

show a likelihood of success. No additional information submitted in this report

supports these activities. Therefore the Agency is approving the excavation portion of the corrective action

plan and the proposed barriers and institutional controls.

Please note that all activities associated with the remediation of this release proposed in the plan must be

executed in accordance with all applicable regulatory and statutory requirements, including compliance

with the proper permits.

In addition, the budget for the High Priority Corrective Action Plan is modified pursuant to Section 57.7(c)

of the Act and 35 Ill. Adm. Code 732.405(c). Based on the modifications listed in Section 2 of

Attachment A, the amounts listed in Section 1 of Attachment A are approved. Please note that the costs

must be incurred in accordance with the approved plan. Be aware that the amount of payment from the

Fund may be limited by Sections 57.8(e), 57.8(g) and 57.8(d) of the Act, as well as 35 Ill. Adm. Code

732.604, 732.606(s), and 732.611.

Please note that, if the owner or operator agrees with the Illinois EPA's modifications, submittal of an

amended plan and/or budget, if applicable, is not required (Section 57.7(c) of the Act. Additionally,

pursuant to Section 57.8(a)(5) of the Act and 35 Ill. Adm. Code 732.405(e), if payment from the Fund will

Ropodao - 4302 North Main Street, Rockford, IL 61103 - 1815) 987-7760 • DES PLANES -

9511 W. Harrison St., Des Plaines, IL 60016

-(847) 294-4000

ELG

IN - 595 South State, Elgin, IL 60123 - (847) 608-3131

?•

PEORIA -

5415 N. University St., Peoria, IL 61614 - (309) 693-5463

BUREAU OP

LAND - PEORIA - 7620 N. University St., Peoria, IL 61614 - (309) 693-5462 •

CHAMPAIGN -

2125 South First Street, Champaign, IL 61820 - (217) 278-5800

SPRINGFIELD -

4500 S. Sixth Street Rd., Springfield, IL 62706 - (217) 786-6892 •

COLLINSVILLE -

2009 Mall Street, Collinsville, IL 62234 -16181 346-5120

MARION - 2309

Main St., Suite 116, Marion, IL 62959 - (618) 993-7200

PRINTED ON RECYCLED PAPER

Page 2

be sought for any additional costs that may be incurred as a result of the Illinois EPA's modifications, an

amended budget must be submitted.

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 paid.

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.

An underground storage tank system owner or operator may appeal this decision to the Illinois Pollution

Control Board. Appeal rights are attached.

If you have any questions or need further assistance, please contact Donna Wallace at 217/ 524-1283.

Thomas A. Henninger

Unit Manager

Leaking Underground Storage Tank Section

Division of Remediation Management

Bureau of Land

TAH:DW:dw \

Attachment: Attachment

c: Deutsch,

Levy & Engel/ Karen Kavanagh Mack

Division File

Appeal Rights

An underground storage tank owner or operator may appeal this final decision to the Illinois

Pollution Control Board pursuant to Sections 40 and 57.7(c)(4) 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 owner or

operator 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, IL 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

Post Office Box 19276

Springfield, IL 62794-9276

217/782-5544

Attachment A

Re: LPC #0070057092 -- Boone County

Belvidere/ Belvidere Oasis (South Side)

1-90 East Bound

Leaking UST Incident No. 941816 and No. 20021277

Leaking UST Technical File

SECTION 1

As a result of the Illinois EPA's modification(s) in Section 2 of this attachment, the following

amounts are approved:

Field Purchases and Other Costs

Handling charges will be determined at the time a billing package is reviewed by the Illinois

EPA. The amount of allowable handling charges will be determined in accordance with Section

57.8(f) of the Environmental Protection Act (Act) and 35 Illinois Administrative Code (35 Ill.

Adm. Code) 732.607.

SECTION

The Project Manager rate has been reduced to $95.29/hour. Boring rates have been

reduced to $23.64 for angered borings and $18.50 for push borings. An additional $16.96

was included for those borings converted to monitoring wells. Excavation charges were

reduced to $58.59/cubic yard and backfill material to $20.56/ cubic yard. The costs

exceed the maximum payment amounts set forth in 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 Ill. Adm. Code 732.606(ccc). In addition, such costs are not

approved pursuant to Section 57.7(c)(4)(C) of the Act because they are not reasonable.

Total deduction =$10,397.01

The costs associated with mobilization, well development, well materials are not

approved as part of this budget. These charges are included in the per foot rate, for which

a maximum rate of $23.64 or $18.50 per foot for borings and $16.96 per foot for

monitoring wells applies. The costs exceed the maximum payment amounts set forth in

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 Ill. Adm. Code 734.606(ccc). In

addition, such costs are not approved pursuant to Section 57.7(c)(4)(C) of the Act

because they are not reasonable.

Total deduction --$7,484.63

Page 2 of 2 for Attachment A

$306,350.86 for costs for alternative technologies that are not approved. They are

therefore inconsistent with the associated technical plan. One of the overall goals of the

financial review is to assure that costs associated with materials, activities, and services

shall be consistent with the associated technical plan. Such costs are ineligible for

payment from the Fund pursuant to Section 57.7(c)(4)(C) of the Act and 35 Ill. Adm.

Code 732.505(c).

$6,045.75 for costs for expedited sample returns, which exceed the minimum

requirements necessary to comply with the Act. Costs associated with corrective action

activities and associated materials or services exceeding the minimum requirements

necessary to comply with the Act are not eligible for payment from the Fund pursuant to

Section 57.7(c)(4)(C) of the Act and 35 Ill. Adm. Code 732.606(o).

$4,000 for costs requested that are based on mathematical errors. Such costs are

ineligible for payment from the Fund pursuant to 35 III. Adm. Code 732.606(ff). In

addition, such costs are not approved pursuant to Section 57.7(c)(4)(C) of the Act

because they are not reasonable.

Total in Field Purchases and Other Costs was incorrectly added to be $123,432.55 and

should have been $119.432.55

W :dw\