BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

E

NOV

INTERMART

Petitioner,.

INC.

))

Poflutfrj,

TATE

OF

Control

IL.LINO,

So

r

)

vs

)

PCB

09-

)

(UST

Appeal)

ILLINOIS

ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

)

Respondent.

)

NOTICE

OF

FILING

To:

Illinois

Environmental

Protection

Agency

Division

of

Legal

Counsel

1021 North

Grand

Avenue

East

Post

Office

Box 19276

Springfield,

Illinois

62794-9276

PLEASE

TAKE

NOTICE

that

on

this

24

th

day

of

November

2008,

the

following

was

filed

with

the Illinois

Pollution

Control

Board:

Petitioner

Intermart,

Inc.’s

Petition

for

Review

of

IEPA

L.U.S.T.

Decision,

which

is

attached

and

herewith

served

upon

you.

INTERMART,

INC.

(

Elizabeth

S.

liarL’ey

‘/

One of

its

attfrneys

Elizabeth

S.

Harvey

SWANSON,

MARTIN

&

BELL,

LLP

330

North

Wabash

Avenue

Suite

3300

Chicago,

Illinois

60611

Telephone:

(312) 321-9100

Firm

I.D.

No.

29558

---

CERTIFICATE OF

SERVICE

I, the undersigned

non-attorney,

state

that

I served

a copy

of the

above-described

document to counsel

of

record

in the

above-captioned matter

via U.S. Mail on or before

5:00 p.m.

on November 24, 2008.

• •.

(itte M.

Podlin

x]

Under penalties

as provided by law

pursuant to 735 ILCS 5/1-109,

I certify

that the statements

set forth herein

are

true

and correct.

---

BEFORE THE

ILLINOIS

POLLUTION CONTROL BOARD

1Qy

2’,

2008

INTERMART, INC.

)

p0

jTE

0

ILLi

Con,.

01

0IS

Petitioner,

)

ar

)

vs

)

PCBO9-

(UST Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

PETITION FOR REVIEW

OF IEPA LUST DECISION

Petitioner INTERMART,

INC. (“Intermart”),

by

its attorneys Swanson, Martin

&

Bell, LLP,

hereby

appeals from respondent

the ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY’s

(“Agency”) decision denying

Intermart’s Corrective

Action

Plan and budget. This appeal is filed pursuant

to

Sections

40 and 57.7(c) of

the

Environmental Protection Act (“Act”)

(415

ILCS

5/40 and 5/57.7(c)), and Subpart D

of

Part 105 of the

Board’s

procedural rules

(35

Ill.Adm.Code 105.Subpart D).

1.

Intermart owns

a

service

station and mini-mart located at 24

South

Lincolnway,

North

Aurora,

Illinois. There is petroleum

contamination

on the site.

2.

Intermart filed

a

High Priority Corrective Action

Plan (CAP) and Budget

with the Agency on September 29, 2008. On

October 20, 2008, the Agency issued

its

decision,

rejecting

both the CAP

and the budget. (The

Agency’s October 20,

2008

decision

is

attached

as Exhibit

A.) This appeal is timely,

being filed within

35 days

of

the service of the Agency’s decision.

3.

The Agency

denied the

CAP based

upon alleged deficiencies

in the

information

submitted

in

support of the CAP.

(See Exhibit

A, Attachment

A.) However,

---

4

---

Intermart

has

supplied

all of the

requested

information

to

the Agency.

The

proposed

CAP

meets the

requirements

of the

Act and

the

regulations.

4.

Additionally,

the Agency

denied

the associated

budget,

based upon

the

denial

of the

CAP upon

which the

budget

is based,

and upon:

1)

costs

which

allegedly

exceed

maximum

payment

amounts;

2) concerns

regarding

costs

for

alternative

technology

versus

conventional

technology;

3) concerns

regarding

the

bidding

for

remediation

costs;

and

4)

allegations

that

the

budget

contains

improper

forms.

However,

the budget

as

submitted

meets

the requirements

of the Act

and

the

regulations.

5.

Because

the

CAP and

associated

budget as

submitted

demonstrate

compliance

with

the

requirements

of the

Act

and the

regulations,

the

Agency erred

in

denying the

CAP and

budget.

(415

ILCS

5/39(a).)

6.

Thus,

Intermart

seeks

an

order directing

the Agency

to approve

the

CAP

and associated

budget.

WHEREFORE,

petitioner

INTERMART

INC. asks

the

Board

toenter

an

order

finding

that the

CAP

and

budget demonstrate

compliance

with

the requirements

of the

Act

and

the regulations,

and

ordering

the

Agency

to approve

the

CAP

and budget,

and

for

such other

relief as

the Board

deems

appropriate.

Respectfully

submitted,

INTERMART,

INC.

LJDne

of

i&

attcnys

Dated:

November

24,

2008

2

---

4

---

Michael

J. Maher

Elizabeth

S.

Harvey

Swanson, Martin

&

Bell,

LLP

330

North Wabash Avenue

Suite 3300

Chicago,

Illinois 60611

312/321-9100

3

---

‘at

---

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

1021

NORTH

GRAND

AVENUE

E,’si-

P0

Box

19276

SPRINGFIELD

ILLINOIS

62794-927617)

782

2829

JAMES

R.

THOMPSON

CENTER,

100

WEST

RANDOLPH,

SUITE

11-300,

CHICAGO,

IL

60601

-3

12)

814-6026

ROD

R.

BLAGOJEVICH,

GOVERNOR

,DOUGLAS

P.

Scorr,

DIREaOR

217/782-6762

CERTIFIED

MAIL

7007

2560

0003

2087

7583

OCT

2

02008

Intermart,

Inc.

Attn:

Shahnaz

Anjum

24

South

Lincoinway

North

Aurora,

IL

60547

Re:

LPC

#0890605030

--

Kane

County

North

Aurora/North

Aurora

76

24

South

.Lincolnway

Leaking

UST

Incident

No.

970184

Leaking

UST

Technical

File

Dear

Ms.

Anjum:

The

Illinois

Environmental

Protection

Agency

(Illinois

EPA)

has

reviewed

the

High

Priority

Corrective

Action

Plan

(plan)

submitted

for

the

above-referenced

incident.

This

information,

dated

September

29,

2008,

was

received

by

the

Illinois

EPA

on

October

6,

2008.

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)(4)

of

theAct

and

35

Ill.

Adm.

Code

732.405(c),

the

plan

is

rejected

for

the

reasons

listed

in

Attachment

A.

Pursuant

to

Sections

57.7(a)(1)

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

B.

Pursuant

to

35

Iii.

Adm.

Code

732.401,

the

Illinois

EPA

requires

submittal

of

a

revised

plan,

and

budget

if

applicable,

within

ninety

(90)

days

of

the

date

of

this

letter

to:

Illinois

Environmental

Protection

Agency

Bureau

of

Land

-

#24

Leaking

Underground

Storage

Tank

Section

East

EXHIBIT

1

Springfield,

IL

62794-9276

?OCKFORD

—

4302

North

Main

Street,

Rockford,

IL

61103

—

(815)

987-7760

.

DES

PLAINES

—

9511

W.

Harrison

St.,

Des

Plaines,

IL

60016

-

(847)

294-4000

ELGIN

—

595

South

State,

Elgin,

IL

60123

-

(847)

608-3131

.

PEORIA

-

5415

N.

University

St.,

Peoria,

IL

61614

—(309>

693-5463

B

OF

LAND

-

PEORIA

—

7620

N.

University

St.,

Peoria,

IL

61614

—

(309)

693-5462

.

CHAMPAIGN

—

2125

South

First

Street,

Chamoajen

II

1R20

_11

7)

278-5800

09

MalI

Street

CoIIInsvIIIe

IL

62234

—

(618>

346

5120

&i

—

.

—

c

—

—(618)

9)i

PRINTED

ON

RECYCLED

PAPER

---

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

information,

please

contact

Chris

Covert

at

2

17/785-

3943.

Sincerely,

Thomas

A.

Henning

Unit

Manager

Leaking

Underground

Storage

Tank

Section

Division

of

Remediation

Management

Bureau

of

Land

TAH:CC\

Attachment:

Attachment

A

(Technical

Denial

Reasons)

Attachment

B

(Budget

Denial

Reasons)

C:

USET

Corporation

Steve

Sylvester,

Assistant

Attorney

General

BOL

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

afier

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

request

for

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

For

information

regarding

the

filing

of

an

appeal,

please

contact:

Illinois

Pollution

Contrcil

Board,

Clerk

State

of

Illinois

Center

100

West

Randolph,

Suite

11-500

Chicago,

IL

60601

312/814-3620

---

Attachment

A

(Technical

Denial)

Re:

LPC

#0890605030

--

Kane

County

North

Aurora/North

Aurora

76

24

South

Lincoinway

Leaking

UST

Incident

No.

970184.

Leaking

UST

TECHNICAL

FILE

Citations

in

this

attachment

are

from

the

Environmental

Protection

Act

(Act) in

effect

prior

to

June

24,

2002,

and

35

Illinois

Administrative

Code

(35

111.

Adm.

Code).

Pursuant

to

35

III.

Adm.

Code

732.404(e),

in

developing

the

corrective

action

plan,

additional

investigation

activities

beyond

those

required

for

the

site

evaluation

and

classification

may

be

necessary

to

determine

the

full

extent

of

soil

or

groundwater

contamination

and

of

threats

to

human health

or

the

environment.

Such

activities

may

include,

but

are

not

limited

to,

additional

soil

borings

with

sampling

and

analysis

or

additional

groundwater

monitoring

wells

with

sampling

and

analysis.

Such

activities

as

are

technically

necessary

and

consistent

with

generally

accepted

practices

may

be

performed

without

submitting

a

work

plan

or

receiving

prior

approval

from

the

Illinois

EPA,

and

associated

costs

may

be

included

in

a

High

Priority

corrective

action

budget

plan.

A

description

of

these

activities

and

the

results

shall

be

included

as

a

part

of

the

corrective

action

plan.

The

plan

fails

to

meet

the

above

requirements

for

the

following

reason(s):

The

full

physical

extent

of

contamination

remains

to

be

defined.

The

plan proposed

is

based

off

of

an

estimated

extent,

which

is

not

sufficient when

considering

a

remediation

method.

In

addition,

the

maps

presented

show

the

estimated

contamination

plumes

beyond

the

physical

edges

of

the

paper

on

which

they

are

submitted,

as

well

as

do

not

accurately

depict

the

locations

and

designations

of

soil

borings,

monitoring

wells,

and

their

respective

contaminant

levels.

2.

Pursuant

to

35

Ill.

Adm.

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

alternative

technologies

shall

be

submitted

to

the

Illinois

EPA

in

accordance

with

35

Ill.

Adm.

Code

732.405.

In

addition

to

the

requirements

for

corrective

action

plans

contained

in

35

III.

Adm. Code

73

2.404,

the

owner

or

operator

who

seeks

approval

of

an

alternative

technology

shall

submit

documentation

along

with

the

corrective

action

plan

demonstrating

that:

a.

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

protect

human

health

or

the

environment;

---

b.

The

proposed

alternative

technology

will

not

adversely

affect

human

health

or

the

environment;

c.

The

owner

or

operator

will

obtain

all

Illinois

EPA

permits necessary

to

legally

authorize

use

of

the

alternative

technology;

d.

The

owner

or

operator

will

implement

a

program

to

monitor

whether

the

requirements

of

35

III.

Adm.

Code

732.407(a)(l)

have

been

met;

and

e.

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

111.

Adm.

Code

732.407(a)(l)

and

any

other

applicable

regulations.

The Illinois

EPA

may

require

interim

reports

as

necessary

to

track

the

progress

of

the

alternative

technology.

The

Illinois

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

alternative

technology

proposed

is

compared

to

conventional

technology,

however

the

consultant’s

definition

of

conventional

technology

includes

groundwater

“pump

and

treat.”

Any

alternative

technology

must

be

compared

to

the

Illinois

EPA

standard

for

conventional

technology

consisting

of

excavation,

transportation,

and

disposal

of

contaminated

soil

with

groundwater

monitoring

to determine

the

effectiveness

of

source

removal.

The

plan

proposes

and

alternative

technology

pilot

study, with

immediate

implementation

of

a full-scale

system

following

the

pilot

study.

Per

Illinois

EPA

procedures,

as

well

as

generally accepted

engineering

procedures,

a

pilot

study

will

be

performed

with

an

amended

CAP

entailing

the

results

of

such

pilot

study

submitted

to

the

Agency

before

implementing

a

full-scale

system.

In

conjunction

with

the

above,

the

full

physical

extent

of

contamination

must

be

delineated

prior

to

the

submittal

of

an

alternative

technology

pilot

study. With

regards

to

the

proposed

technology,

the

mass

of

contaminants

must

be

determined

in

order

to

design

a

pilot

study

which

will

not

only

determine

the

radius

of

influence,

but

also

the

amount

of

contaminant

which

will

be

removed

at

each

point,

as

well

as

the

time for

removal

so

that

a

full-scale

system

may

be

proposed.

With

regards

to

the

proposed Air

Sparging

Curtain,

the

design does

not

demonstrate

how

this

is

a

necessary

element

to

the

design

given

that

contamination

has

already

migrated

offsite.

The

plan

cites previous

incidents

within

the

Leaking

UST

Program

where

this

technology

---

was

“effective

and

proven.”

Upon

review

of these

sites,

the

Illinois

EPA

has

determined

that

this

technology

did

not

remediate

the

sites

noted.

Rather,

institutional

controls

and

restrictions

were

utilized

for

the

example

sites

to

achieve

closure.

Furthermore,

these

example

sites

submitted

numerous

amendments

calling

for

additional

remediation

events

which

went

far

beyond

the

initial

time

projections.

3.

Pursuant

to

35

Ill.

Adm.

Code

732.408,

for

sites

requiring

High

Priority

corrective

action

or

for

which

the

owner

or

operator

has

elected

to

conduct

corrective

action

pursuant

to

35

Ill.

Adm.

Code

732.300(b),

732.400(b),

or 732.400(c),

the

owner

or

operator

shall

propose

remediation

objectives

for

applicable

indicator

contaminants

in

accordance

with

35

111.

Adm.

Code

742.

Owners

and

operators

seeking

payment

from

the

Fund

that

perform

on-site

corrective

action

in

accordance

with

Tier

2

remediation

objectives

of

35

Ill.

Adm.

Code

742

must

determine

the

following

parameters

on a

site-specific basis:

Hydraulic

conductivity

(K)

Soil

bulk

density

Soil

particle

density

(p)

Moisture

content

(w)

Organic

carbon

content

(f

Board Note:

Failure

to

use

site-specific

remediation

objectives

on-site

and

to

utilize

available

groundwater

ordinances

as

institutional

controls

may

result

in

certain

corrective

action

costs

being

ineligible

for

payment

from

the

Fund.

See

Section

732.606(ddd)

and

(eee)

of Part

732.

The

plan

fails

to

meet

the

above

requirements

for

the

following

reason(s):

Tier

II objectives

have

not

been

calculated,

and

a

plan

must

propose

to

remediate

soil

to

Tier

II

objectives.

This

plan

fails

to

do

such.

TAH

:CC\

---

Attachment

B

(Budget

Denial)

Re:

LPC

#

0890605030

--

Kane

County

North

Aurora/North

Aurora

76

24

South

Lincolnway

Leaking

UST

Incident

No.

970184

Leaking

liST

Technical

File

Citations

in

this

attachment

are

from

the

Environmental

Protection

Act

(Act)

in

effect

prior

to

June

24,

2002,

and

35

Illinois

Administrative

Code

(35

Iii.

Adm.

Code).

Pursuant

to

Sections

57.7(c)

of the

Act

and

35

111.

Adm.

Code

732.305

or

732.405

and

732.503(b),

the

associated

budget

is

rejected

for

the

following

reason:

The

Illinois

EPA

has

not

approved

the

plan

with

which

the

budget

is

associated.

Until

such

time

as

the

plan

is approved,

a

determination

regarding

the

associated

budget—

i.e.,

a determination

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

perfonnance

of

corrective

action

activities;

whether

costs

will

not

be

used

for

corrective

action

activities

in excess

of

those

necessary

to

meet

the

minimum

requirements

of

the

Act

and

regulations,

and

whether

costs

exceed

the

maximum

payment

amounts

set

forth

in

Subpart

H

of

35

III.

Adm.

Code

732

cannot

be

made

(Section 57.7(c)(4)(C)

of

the

Act

and

35

Ill. Adm.

Code

732.505(c)).

2.

The

budget

includes

costs

that

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

Iii.

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.

Subpart

H

rates

are

available

on

the

Internet

at:

http://www.epa.state.il.us/land/lust/forms/budget-forms/forms-

1

/max-payments-julo8.pdf

3.

The

budget

includes

costs

for

an

alternative

technology

that

exceed

the

costs

of

conventional

technology.

Such

costs

are

ineligible

for

payment

from

the

Fund

pursuant

to

35

III. Adm.

Code

732.606(bb).

In

addition,

such

costs

are

not

approved

pursuant

to

Section

57.7(c)(4)(C)

of

the

Act

because

they

are

not

reasonable.

Since

the

full

mass

of

contamination

has

not

been

sufficiently

defined, the

costs

for

alternative

technology

versus

conventional

technology

cannot

be

adequately

evaluated

at

this

time.

Additionally,

the

Illinois

EPA

standard

of

conventional

technology

consists

of

the

excavation,

transportation,

and

disposal of

contaminated

soil

with

groundwater

monitoring

following

source

removal.

The

comparison

must

not

include

costs

for

groundwater

“pump

and

treat.”

---

4.

The

budget

includes

costs for

remediation

that

were obtained

via

bidding.

Pursuant

to 35

Ill.

Adm.

Code

732.8

55(a),

a

minimum

of

three

written

bids

must

be

obtained.

(Sections,,

57.1(a)

and

57.7(c)(4)(C)

of

the

Act)

.

if

./

The

budget

contains

only

one

bid.

5.

The

budget

includes

costs

for

remediation that were

obtained

via bidding.

Pursuant

to

35

Ill.

Adm.

Code

732.855(b),

the bids

must

be

summarized

on

forms

prescribed

and

provided

by the

Illinois

EPA.

The

bid

summary

form,

along

with

copies

of

the bid

requests

and

the bids

obtained,

must be

submitted

to

the

Illinois

EPA in

the

associated

budget.

If more

than

the

minimum

three

bids

are obtained,

summaries

and

copies

of

all

bids

must

be

submitted

to

the Illinois

EPA. (Sections

57.1(a)

and

57.7(c)(4)(C)

of

the

Act)

The

bid

contained

in

the

budget

was not

included

on

the

appropriate

Illinois

EPA forms.

6.

All

plans,

budgets,

and

reports

must

be

submitted

to

the

Illinois

EPA

on

forms

prescribed

and

provided

by

the Illinois

EPA

and, if

specified

by

the

Illinois

EPA

in writing,

in

an

electronic

format

pursuant

to

Section

57.6(a)

of

the Act

and

35

Ill.

Adm.

Code

732.110(a).

The

budget

was

not prepared

and submitted

on

Illinois

EPA forms.

The

budget

contains

a

mix of

forms,

and does

not

fit into

the appro

ate line

items

as

prescribed

by

the

Illinois

EPA.

One example

is the

budget

summary.

Furthermore,

costs

are

not

properly

contained

in

the

applicable

sections,

an

example

of which

is remediation

system

costs

that

were

included

under

the

the form

titled

“Consultant’s

Materials

Costs

Form.”

These

costs

should

be

placed

in the

form

titled “Remediation

and Disposal

Costs

Form.”

All required

Illinois

EPA

budget

forms

as well

as

instructions

may be

found

and

completed

on

the

Internet

at:

http://www.epa.state.il.us/land/lust/forms/budget-forms/forms-

I

/table-of-contents.html

—

Additionally,

all

tasks must

be

presented

with

regards

to

specific

tasks

and

hours

for each

task

performed.

With

regards

to

future

submittals,

the Agency

is

requesting

that

past

budget

proposals

not

be included,

as

this creates

confusion

with

determining

the full

proposed

budget.

Additionally,

for ease

of

future

reviews,

please

type

and

submit

all

required

information

to further

avoid

confusion

or

illegibility.

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