BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
DIC ON PETROLEUM, INC.,
Petitioner,
S ENVIRONMENTAL
)
)
)
)
PROTECTION
AGENCY,
)
Respondent.
NOTICE OF F
Mr. John T. Therriault
t Clerk
Illinois Pollution Control Board
60601
Dies R. Thompson Center
100 West Randolph, Suite I
No. 09-87
I have today filed wit
the Illinois Pollution Control Board an AMENDED PET
'ollution Control Board, a copy of which is herewith served upon
you.
Respectfully submitted,
Dated: May 26, 2009
By: /s/Edward
One
of Its Attorneys
Edward
Monica T. Rios
DRIVER
Roland Avenue
Post
Office
Box
5776
ois 62705-5776
(217) 523-4900
UBMITTED
ON RECYCLED PAPE
Electronic Filing - Received, Clerk's Office, May 26, 2009
BEFORE
DICKERSON
M, INC.,
Petitioner,
)
ILLINOIS ENVIRONMENTAL
TECTION AGE
Respondent.
0.09-
ION FOR REV
RSON PETROLEUM, INC. ("Petitioner"), by
and through. its attorneys, IIODGE DWYER & DRIVER, and pursuant
to Sec
57.7(c), and 57.8(1) of the Illinois Ei
57.7(c),
ON CONTROL BOARD
mental Protection Act
CS 5/40,
(i) and 35 111. Admin. Code Part 105, hereby requests review
of
the
decision
by the Respondent,
45-Day
support of this
lew (" Petition" ), Petitioner
s tates as
ironmental Protection Agency ("Agenc
"Report")
and 45-Day Report
2009, Petitioner timely filed a
Agency's
March 9,
2009
determination with the
Illinois
Pollution Control Board
("Board"). On May 7, 2009, the Board issued an order stating that Petitioner has until
June 8, 2009 to amend its filing to include the
"date of service of the Agency's final
decision and a statement specifying the grounds of appeal." Board Order, Dickerson
Petroleum, Inc.
v. IEPA,
PCB
No. 09-87 (I11.Pol.Control.Bd. May 7, 2009). Pursuant to
the Board's order, this Petition is filed to address the alleged deficiencies.
Electronic Filing - Received, Clerk's Office, May 26, 2009
tioner was the owner of underground storage tanks ("USTs")
formerly
located at 823 Upper Cahokia Road, Cahokia, Illinois
May 14, 2008.
, prior to their removal on
3.
On January 18, 2008, during a preliminary investigation
of the Site,
Petitioner, in
accordance with applicable Board and Office of the State Fire Marshal
("OSFM") requirements, notified the Illinois Emergency Management Agency
of a release from the USTs. IEMA assigned the release Incident
No. 20080084.
Petitioner received an Eligibility and Deduc
2008.
d etermination from
A")
Apri
submitted its Report to the Agency
for the above-referenced leaking UST ("
") incident. By lette
roved the Report anal a Stage I Site Investigation Plan. In May of 2008,
d a request for extension of the early action dea
ary 1
tension of the early a
5.
By letter dated June 13, 2008, the Agency approved the
second extensio
ion period. On or about September 5, 2008, after the removal of the
e
Site,
Petitioner submitted its Addendum to the Report to the Agency.
2009, t gency determined that based on the
"the incident is not subject to 35 111. Adm. Code 734, 732, or 731."
See
Letter
from Illinois EP o Dickerson Petroleum, Inc. (Mar. 9, 2009), attached hereto as Exhibit
n, the Agency stated in regards to the Addendum, "[b]ased on the above
Electronic Filing - Received, Clerk's Office, May 26, 2009
findings regarding the April 25`° 45-Day Report,'
the Illinois EPA finds that the
September
5,
2008
45-Day Report Addendum falls outside the jurisdiction and scope of
the Leaking Underground Storage Tank Prograrn." Id
7.
(late of
service on the Petitioner of the Agency's March 9, 2009 final
decision was March 11, 2009. The Petition for Review was filed within 35 days after the
date of service of the Agency's final
decision in accordance with Board's rules governing
cc and LUST appeals. 35 Ill. Admin. Code §§ 101.300((), 105.404.
March 9, 2009 letter provides neither a
statutory
nor
regulatory basis
for its determination
that the above-referenced release is a non-LUST incident. Further,
after the receipt of the
2009 letter, Petitioner's consultant had several
esentatives, who indicated that t
excluding the release from LUST regulation because there was no
laboratory analysis o
firming the release. The Agency's
explanation for
excluding the release
lation i
ous as there are no statutory or
regulatory requirements that mandate laboratory analysis of soil or groundwater simples
rte. Accordingly, because Petitioner confirmed the relcýiý-c in
accordance with the OSFM regulations, incorporated by refere
regulations
at 35 111 Admin. Code
LUST Program requirements.
34, the
release
hove is subject to
9.
The Agency's March 9, 2009 letter did not
the owner/operator's appeal
rude language explaining
ypically seen in the Agency's final decisions in
Although the Petitioner's appeal rights were not delineated in the
' The March 9, 2009 letter from the Agency inaccurately identifies the Report as being crated April 25,
2008.
The correct date of the Report is April 15,
2008.
3
Electronic Filing - Received, Clerk's Office, May 26, 2009
March 9, 2009 letter, the Agency has orally acknowled
ae March 9, 2009 letter
10. Early action activities are considered corrective action as defined
by
the
Act in
Section 57.2. 415 ILCS 5/57.2. An owner or operator of UST may
ctive action costs, including costs incurred for early action
from the LUST Fund pursuant
to the
Act
and
Board
regulations. 415
5/57.8; 35 Ill. Admin. Code Part 734. Subpart B of Part 734, as well as other sections of
734,
provide
the requirements for seeking reimbursement from the LUST Fund for
early action activities. 35 Ill. Admin. Co
734.
ubmitted the documents required by the applicable statute and
re
h
9,
2009
final decision determined that
the release reported "is not subject to 35111. Adm. Code 734, 732 or 731." See Exhibit A.
The March 9, 2009 letter was a final decision and may be reviewed by the Board
nt to
12.
40 of the Act. 415 ILCS 5140.
The March 9, 2009 determination does not vide a factual, statutory, or
regulatory basis and further fails to provide an explanation or justification for concluding
"is not subject to 35
. Petitioner is e
nal decision ar
regulatory author
11. Adm, Code 734, 732 or 731," Sec Exhibit A.
pricious, and without statutory or
ew of the Agency's final
nd reversal of such decision. 415 ILCS 5/40.
13. The Agency's March 9, 2009 decision is a disapproval or rejection o
report, but does not comply with the requirements of Section 57,7(c), including but not
quirements of Section 57.7(c)(4)(A) - (D). 415 ILCS 5/57.7. Further,
Electronic Filing - Received, Clerk's Office, May 26, 2009
the Agency's final disapproval or rejection of the report
failed to comply with the
Board's requirements at Section
734.505(b)(1)-(3). 35 111. Admin. Code § 734.505(b)(1)-
(3). Petit
eels review of the Agency's disapproval or rejection
of the
report. Id.; 415 ILCS 5/40.
14.
y's decision also constitutes a refusal to reimburse corrective
action costs, which is similarly subject to review pursuant
to Section 57.8(i) of the
415 ILCS 5/57.8(i);
415 ILCS 5/40.
15.
oner's counsel has reviewed similar Petitions
for Review of final
LUST decisions filed with
the
Board
and believes that the above satisfies the Board's
Section 105.408 requi
ide
specific guidance as to any deficier
16. Petitioner is entit
cy's March 9, 2009 final
determination that the above-referenced incident is not
subject to the State's LUST
Cory or regulatory autho
WHEREFORE,
for the above and foregoing reasons, Petiti
the
followin
cient, Petitioner
KERSON
respectfully requests that the Illinois Pollution Control Board grant
f.
a.
Find that the Agency's March 9, 2009 final decision is arbitrary,
capricious, and
b.
ory or reg
Reverse the Agency
ity;
ion that the above-referenced incident is
a non-LUST incident
and
find
that the
incident
must be regulated in accordance with 35
111. Admin. Code Part 734;
Electronic Filing - Received, Clerk's Office, May 26, 2009
Find that the above-referenced incident is eligible to access the LUST
Fund and that costs
arly action period for this release are eligible for
bursement from the LUST Fund in accordance with applicable regulations;
attorney's fees and expenses incurred in
bringing this action; and
e.
Award such further relief as the Board dee
nd equitable.
tted,
DICK_ERSON PETROLEU
Petitioner,
One of Its Attorneys
ay 26, 2009
By: /s/Edwar
& DRIVER
Roland Avenue
5776
d, Illinois 62705-5776
7)523-4900
C AROM I/Fil/Amended Peti
Electronic Filing - Received, Clerk's Office, May 26, 2009
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vaiua+.
on sciviceg for fictions at sites where
hazardera,.
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Electronic Filing - Received, Clerk's Office, May 26, 2009
F SERVICE
1, Edward W. Dwyer, the undersigned, hereby certify that I have served the
attached AMENDED PETITION FOR REVIEW upon.
It
erk of the Board
Illinois Pollution Control Board
100 West Randolph
Street
1-500
go, Illinois 60601
runic mail on May 26, 2009; and. upon:
Division of Legal Counsel
aental Protection Agency
North Grand Avenue East
Office Box 19276
794-9276
by depositing said documents in the United States
Illinois on May
26, 2009.
ostage
prepaid, in
Springfield,
)'OOl/Fil/NO'F
& COS
-- Amended
Petition for Review
THIS FILING SUBMITTED ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, May 26, 2009
