BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
NOTICE OF FILING

RECEIVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

DALEE OIL COMPANY,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB No.

)

(LUST Appeal)

)

NOTICE OF FILING

To:

Dorothy

M. Gunn, Clerk

Illinois Pollution Control Board

James

R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

William

D. Ingersoll

Managing Attorney

III. Environmental Protection Agency

1021 North Grand Ave. East

Springfield, IL 62702

PLEASE TAKE NOTICE that we have this day filed with the office

of the

Clerk

of the Pollution Control Board the

Petition for Review

a copy of which is

enclosed herewith and hereby served upon you.

September 17, 2008

DALEE OIL COMPANY

By:~\,k~~

Mandy L. Combs

One

of its Attorneys

John

T. Hundley

Mandy

L. Combs

THE SHARP LAW FIRM, P.C.

P.O. Box 906

- 1115 Harrison

Mt. Vernon, IL 62864

618-242-0246

Counsel for Petitioner Dalee Oil Company

Electronic Filing - Received, Clerk's Office, September 17, 2008

* * * * * PCB 2009-017 * * * * *

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

DALEE OIL COMPANY,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

) PCB No. __

)

(LUST Appeal)

)

PETITION FOR REVIEW

Pursuant to

§§

40 and 57.7 of the Environmental Protection Act ("Act"), 415 ILCS

5/40, 5/57.7,

to the Board's regulations on Leaking Underground Storage Tank ("LUST")

decisions, 35

ILL. ADM. CODE 105.400

et seq.,

and to the decision denying continuance

of the filing hereof beyond today's date (see Exhibit 1), petitioner Dalee Oil Company

("Dalee") submits this

Petition for Review

of the Illinois Environmental Protection

Agency ("Agency") decision attached hereto as Exhibit 2 ("Decision") denying approval

of Dalee's Amended High Corrective Action Plan (the "Plan") and further denying

approval

of the budget associated therewith.

Pursuant to

57.8(1) of the Act, Dalee further requests the Board to order the

Agency to pay Dalee's legal costs for seeking payment in this appeal.

THE AGENCY'S FINAL DECISION

The Decision of which review is sought is contained in Exhibit 2 hereto.

II.

SERVICE OF THE AGENCY'S FINAL DECISION

The Decision indicates it was mailed August 11, 2008. It was received by Dalee

August 13, 2008 and this appeal is timely pursuant to William Ingersoll's letter dated

August 21, 2008 of which a true copy is attached as Exhibit 1.

Electronic Filing - Received, Clerk's Office, September 17, 2008

* * * * * PCB 2009-017 * * * * *

III.

GROUNDS FOR ApPEAL

A. The Agency's denial of the Plan because certain work had already been

performed without Agency approval is erroneous, arbitrary, capricious and contrary to

law.

The Agency's conclusion that the Plan failed to provide information

demonstrating that the technology had a substantial likelihood of successfully achieving

compliance with applicable regulations and corrective action remediation objectives and

of protecting human health and the environment

is erroneous, not supported by the

evidence, arbitrary and capricious.

The Agency's conclusion that the Plan failed to address issues regarding

offsite soil contamination on adjacent properties was erroneous, arbitrary, and

capricious.

The Agency's conclusion that the Plan now fails to address issues

regarding the highway authority agreements and offsite soil contamination, made

without consultation with Dalee and without previously specifying that these aspects

made the prior plan incomplete and deficient, was erroneous, arbitrary, and capricious.

The command by the Agency in the decision appealed from to address the

highway authority agreements and offsite soil contamination

in a future Corrective

Action Plan

is inconsistent with the Decision's language that it is final and subject to the

appeal provision of

§§

40 and 57.7(c)(4) of the Act.

The Agency's denial of Dalee's budget was erroneous, arbitrary,

capricious, and contrary to law,

in that the denial of the Plan with which the budget was

associated was erroneous, arbitrary, capricious and contrary to law.

Electronic Filing - Received, Clerk's Office, September 17, 2008

* * * * * PCB 2009-017 * * * * *

IV.

CONCLUSION.

For all the foregoing reasons, petitioner Dalee Oil Company respectfully submits

that the Decision should be reversed and the Agency ordered to approve the Amended

High Corrective Action Plan and the budget associated therewith, and order the Agency

to pay Dalee's attorneys' fees for this appeal.

September

17, 2008

DALEE OIL COMPANY

By:

~k~.

One of I s Attorneys

John

Hundley

Mandy L. Combs

THE SHARP LAW FIRM, P.C.

P.O. Box 906 - 1115 Harrison

Mt. Vernon, IL 62864

618-242-0246

Counsel for Petitioner Dalee Oil Company

MandyCombs\USI\Dalee\Petition for Review2.doc

Electronic Filing - Received, Clerk's Office, September 17, 2008

* * * * * PCB 2009-017 * * * * *

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. Scon,

DIRECTOR

(217)782~5544

(TDD: 217-782-9143)

RECEIVED

AUG 2

2008

BY:

-------

Author's DirectLine:

(217)782.fJ827

E-Mail:

williarn.ingersoll@illinois.gov

Telefax:

217-782-9807

August 21, 2008

Mark Owens, Project Manager

United Science Industries, Inc.

P.O. Box 360

6295 East IL Highway

Woodlawn, IL 62898

Re:

LPC # 1190555055 - Madison County

Dalee Oil CompanylHighland

Broadway and Olive Street

LUST Incident No. 950915

Dear

Mr. Owens:

The Illinois Environmental Protection Agency ("illinois EPA") is in receipt

ofyour August 19, 2008

letter requesting a 90-day extension

to the 35-day appeal period in regards to an August 11, 2008

decision regarding the above site and incident. The request is DENIED.

does not appear likely

that the additional time would result in a resolution, especially in light of the fact that the request

involved is virtually identical to the denied request that is the subject ofPCB 08-16. The deadline

for filing any appeal

of this matter remains at September 17,2008 based upon an August 13,2008

received date

of the decision.

Sincerely,

William

D. Ingersoll, Manager

Enforcement Programs

cc:

Clifford Wheeler, BOLILUST

Karl Kaiser, BOLILUST

EXHIBIT

PRINTED ON RECYCLED PAPER

ROCKFORD - 4302 North Main Street, Rockford, IL 611 03 - (815) 987-7760 •

DES PLAINES - 9511 W. Harrison St.. Des Plaines, IL 60016"

:-Ii.......

liaW~

- ..

ELGIN - 595 South Slale, Elgin, IL 60123 - (847) 608.3131

•

PEORIA - 5415 N. University St., Peoria, IL 61 614 - (309) 693-41

BUREAU OF LANO - PEORIA - 7620 N. University St., Peoria, IL 61614 - (309) 693-5462

•

CHAMPAIGN - 2125 South First Street, Champaign, IL

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

•

COlLINSVILLE - 2009 Mall Street, Collinsville, IL 62234

MARION - 2309 W. Main St., Suite 116, Marion, IL 62959 - (618) 993-7200

Electronic Filing - Received, Clerk's Office, September 17, 2008

* * * * * PCB 2009-017 * * * * *

CERTIFIED MAIL

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021

NORTH

GRAND

AVENUE EAsT,

P.O. Box 19276,

SPRINGAElD, IWNOIS

62794-9276 - ( 217) 782-2829

JAMES

THOMPSON CENTER,

100 WEST

RANDOLPH, SUITE

11-300,

CHICAGO,

IL 60601 - (31 2) 814-6026

REC~t7en

GOVERNOR

DOUGLAS

SCOTT, DIRECTOR

217/782-6762

AUG

32008

--- ----_.BY'::-.

~-_---.:.._---

AUG 1 1 2008

•

7007 0220 0000 0040 2228

Dalee Oil Company

Attn: Ronald Kruep

1405 Salem Road

Mount Vernon, Il1inois 62864

Re:

LPC #1190555055 - Madison County

HighlandlDalee Oil Company.

Broadway and Olive

Street

Leaking UST Incident No. 950915

Leaking

UST Technical File

Dear

Mr. Kruep:

The TIlinois Environmental Protection Agency (Illinois EPA) has reviewed the Amended High

Priority Corrective Action Plan (plan) submitted for the above-referenced incident. This

information, dated July 17, 2008, was received

by the TIlinois EPA on July 22, 2008. Citations in

this letter are from the Environmental Protection Act (Act) in effect prior to June 24, 2002, and

35 minois Administrative Code (35 Ill. Adm. Code).

Pursuant to Section 57.7(c)(4)

of the Act and 35 Ill. Adm. Code 732.405(c), the plan is rejected

for the reasons listed in Attachment

Pursuant to Sections 57.7(a)(I) and 57.7(c)(4) of the Act and 35 Ill. Adm. Code 732.405(e) and

732.503(b), the associated budget is rejected for the reasons listed in Attachment

Pursuant to 35 TIL Adm. Code 732.401, the Illinois EPA requires submittal ofa revised plan, and

budget

if applicable, within 90 days ofthe date of this letter 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

Roo:FORD - 4302 Nortn

Main

Street, Rockford, Il61103 - (815) 987-7760

•

DEs PlAINES -

9511 W.

Harrison

St, Des

Plaines,

Il6001

ELGIN - 595 South Stale, Elgin, IL 60123 - {S47) 60&-3131

•

PeORJA -

5415 N. University St., Peoria, IL 61614 - (309) 69

BUREAU Of lAND - F'roR1A - 7620 N. University St., Peoria, IL 61614 - (09) 693-5462

•

CHAMPAIGN - 2125 South

First

Street, Champaign, Il

CowNSVLU -

2009

Mall

Street,

Collinsville,

Il62234 - (618)346-5120

•

MARloN -

2309 W.

Main

Sl, Suite 116,

Marion,

Il 62959

EXHIBIT

Electronic Filing - Received, Clerk's Office, September 17, 2008

* * * * * PCB 2009-017 * * * * *

Page 2

Please submit all correspondence in duplicate and include the Re: block shown at the beginning

of this letter.

Anundergroumtstaragetank sysleinuwner-onJperatoTm-ay-appeal this decis101flOllHrllttnois

Pollution Control Board: Appeal rights are attached.

If you have any questions or need further information, please contact Karl Kaiser at (217) 524-

4650.

Sincerely,

Clifford

Wheeler

Unit Manager

Leaking Underground Storage Tank Section

Division ofRemediation Management

Bureau

of Land

CLW::KEK\

Attachment: Attachment A

Appeal Rights

Mark Owens, USJ

BOL File

Electronic Filing - Received, Clerk's Office, September 17, 2008

* * * * * PCB 2009-017 * * * * *

Re:

Attachment A

LPC #1190555055

-- Madison County

HighlandiDalee Oil Company

1405Saletfi-Road-:--'------"-:--------

Leaking UST Incident No. 950915

Leaking

UST TECHNICAL FILE

Citations in this attachment are from the Environmental Protection Act (Act) in effect prior to

June 24, 2002, and

35 IUinois Administrative Code (35 Ill. Adm. Code).

Plan Denial

Pursuant to 35 Ill. Adm. Code 732.405(a), prior to conducting any corrective action

activities pursuant to Subpart D

of Part 732, the owner or operator shall submit to the

lllinois

EPA a Low Priority groundwater monitoring plan or a High Priority corrective

action plan satisfying the minimum requirements for such activities

as set forth in 35 Ill.

Adm. Code 732.403 or 732.404, as applicable.

The plan fails to meet the above requirements for the following reason(s):

The majority of the work proposed in this plan has already been performed without

Agency approval.

The proposed injection

of sodium persulfate/hydrogen peroxide is being denied at this

time. Information has not been provided to demonstrate the technology

has a substantial

likelihood

of successfully achieving compliance with all applicable regulations and all

corrective action remediation objectives necessary to comply with the Act and regulations

and to protect human health

ofthe environment (35

Ill.

Adm. Code 732.407(a)(I) or

73l.166(b».

Pursuant to 35 III. Allin. Code 732.407(a), an owner or operator may choose to use an

alternative technology for corrective action in response to a release

of petroleum at a High

Priority site. Corrective action plans proposing the use

of altemativetechnologies shall

be submitted to the Illinois EPA in accordance with 35 III. Adm. Code 732.405. In

addition to the requirements for corrective action plans contained in 35

III. Adm. Code

732.404, the owner

or operator who seeks approval of an alternative technology shall

submit documentation along with the

correc~ve

action plan demonstrating that:

Electronic Filing - Received, Clerk's Office, September 17, 2008

* * * * * PCB 2009-017 * * * * *

The proposed alternative technology has a substantial likelihood of successfully

achieving compliance with

all applicable regulations and all corrective action

remediation objectives necessary

to comply with the Act and regulations to

.pmtecihurnan1lea1th.Ot:-~----

---._. ,.--.---..

--~-.

. __ o.

The proposed alternative technology will not adversely affect human health or the

environment;

The owner or operator will obtain all Illinois EPA permits necessary to legally

authorize use

of the alternative technology;

The owner or operator will implement a program to monitor whether the

requirements

of35 TIl. Adm. Code 732.407(a)(1) have been met; and

Within one year from the date of Illinois EPA approval, the owner or operator will

provide to the Illinois EPA monitoring program results establishing whether the

proposed alternative technology will successfully achieve compliance with

35 TIL

Adm. Code 732.407(a)(1) and any other applicable regulations. The Illinois EPA

may require interim reports as necessary to track the progress of the alternative

technology.

The TIlinois EPA will specify in the approval when those interim

reports shall

be submitted to the Illinois EPA.

The plan fails to meet the above requirements

for the following reason(s):

The majority

of the work proposed in this plan has already been performed without

Agency approval.

The proposed injection

ofsodium persulfatelhydrogen peroxide is being denied at this

time. Information has not been provided to demonstrate the technology has a substantial

likelihood

ofsuccessfully achieving compliance with all applicable regulations and all

corrective action remediation objectives necessary to comply with

the Act and.regulations

and

to protect human health of the environment (35 Ill. Adm. Code 732.407(a)(I) or

731.166(b

»~

The Issues regarding the need for highway authority agreements were not addressed in

this plan. These issues must be addressed in future Corrective Action Plans.

The Issues regarding offsite soil contamination on adjacent properties were not addressed

in this plan. These issues must be addressed in future Corrective Action Plans.

Electronic Filing - Received, Clerk's Office, September 17, 2008

* * * * * PCB 2009-017 * * * * *

Budget Denial

Pursuant to Sections 57.7(c) of the Act and 35 Ill. Adm. Code 732.305 or 732.405 and

732.50~Q:>~,lhe_~~_ociat~_~~<!g~~A~

rej_ected

i<?!!he

fQllowiIlKIeason:

The Illinois EPA has not approved the plan with which the budget is associated.

Until such time as the plan is approved, a detennination regarding, the

associated

budget- i.e., a detennination as to whether costs associated with materials,

activities, and services are reasonable; whether costs are consistent with the

associated technical plan; whether costs will be incurred in the performance of

corrective action activities; whether costs will not be used for corrective action

activities in excess

of those necessary to meet the minimum requirements ofthe Act

and regulations, and whether costs exceed the maximum payment amounts set forth

in Subpart H

of35 Ill. Adm. Code 732 cannot be made (Section 57.7(c)(4)(C) of the

Act and 35 Ill. Adm. Code 732.505(c».

:KEK\

Electronic Filing - Received, Clerk's Office, September 17, 2008

* * * * * PCB 2009-017 * * * * *

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)

ofthe 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-foI a peri<Jct'oftime not to exceed 90 daySbYWnfferi-notice-frorii-ilie

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

ofthis 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

Dlinois pollution Control Board

State

of nIinois Center

100 West Randolph, Suite 11-500

Chicago, IL 60601

312/814-3620

For information regarding the filing

of an extension, please contact:

Dlinois Environmental Protection Agency

Division

of Legal Counsel

1021 North Grand Avenue East

Post Office Box 19276

Springfield, IL 62794-9276

217/782-5544

Electronic Filing - Received, Clerk's Office, September 17, 2008

* * * * * PCB 2009-017 * * * * *

CERTIFICATE

SERVICE

I, the undersigned attorney at law, hereby certify that I caused copies of the

foregoing document to be served by placement

in the United States Post Office

Mail Box at 14

& Main Streets in Mt. Vernon, Illinois, before 6:00 p.m. this

date,

in sealed envelopes with proper first-class postage affixed, addressed to:

Dorothy

M. Gunn, Clerk

Illinois Pollution Control Board

James

Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

September 17, 2008

William

D. Ingersoll

Managing Attorney

III. Environmental Protection Agency

1021 North Grand Ave. East

Springfield, IL 62702

John

Hundley

Mandy

L. Combs

THE SHARP LAW FIRM, P.C.

P.O. Box 906 - 1115 Harrison

Mt. Vernon, IL 62864

618-242-0246

Counsel for Petitioner Oalee Oil Company

sara\wpdocs\USI-HighlandDalee\Notice2,wpd

Electronic Filing - Received, Clerk's Office, September 17, 2008

* * * * * PCB 2009-017 * * * * *