BEFORE THE

POLLUTION CONTROL BOARD

RECEIVED

OF THE

STATE OF ILLINOIS

CLERKS OFFICE

Q&E PROPERTIES,

NC.,

)

JUL

292005

STATE OF iLLINOIS

Petitioner,

)

poliutiOn

ContrdI Board

)

v.

)

PCBO6-/

)

(UST

Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

)

Respondent.

)

NOTICE OF FILING

TO:

John Kim

Special

Assistant Attorney General

Illinois Environmental Protection Agency

1021

North Grand Avenue East

P.O.

Box

19276

Springfield, Illinois

62794-9276

PLEASE

TAKE

NOTICE

that

on

July

29,

2005,

filed

with

the

Clerk

of the

Illinois

Pollution

Control

Board

of

the

State

of Illinois

an

original,

executed

copy

of

a

Petition

for

Review of Illinois Environmental Protection Agency

Decision.

Dated:

July

29,

2005

Respectfully

submitted,

Q&E Properties, Inc.

By:

_______

One of Its Attot~eys

Carolyn S.

Hesse

Barnes

& Thornburg

LLP

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606

(312) 357-1313

283087v1

IThis filing submitted

on

recycled paper

as defined in 35

Ill.

Adm.

Code

101.2021

---

CERTIFICATE OF SERVICE

I,

on

oath

state

that

I

have

served

the

attached

Petition

for

Review

of

Illinois

Environmental

Protection Agency

Decision by placing

a copy in

an envelope

addressed to:

John Kim

Special Assistant Attorney General

Illinois Environmental

Protection Agency

1021

North Grand Avenue East

P.O. Box

19276

Springfield, Illinois 62794-9276

from

One North

Wacker

Drive,

Suite 4400,

Chicago,

Illinois,

before the hour of 5:00

p.m.,

on

this

29th

Day of July, 2005.

Carolyn S.

Hess

tThis filing submitted

on

recycled paper

as

defined

in

35

1!?. Adm.

Code

101.202J

2

---

RECE n/ED

CLERK’S OFFICE

BEFORE THE

POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

JUL

292005

STATE OF ILLINOIS

Q&E PROPERTIES, INC.,

)

pollution

Control

Board

)

Petitioner,

v.

)

PCB

06-

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

Respondent.

PETITION FOR REVIEW OF ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY DECISION

Q&E

Properties, Inc., by

its

attorney,

Carolyn S.

Hesse of Barnes

&

Thornburg, pursuant

to

the

Illinois

Environmental

Protection

Act,

415

ILCS

5/1

et. seq.

(the “Act”)

and

35

Illinois

Administrative

Code

Section

105.400

et.

seq.,

hereby

appeals

certain

decisions

by

the

Illinois

Environmental Protection Agency (the

“Agency”).

I.

Q&E

Properties,

Inc.

(“Q&E”) is the owner of underground

storage tanks

(USTs)

at

a

former

gasoline

service

station

located

at

1100

Stevenson

Drive,

Springfield,

Sangamon County,

Illinois

(the

“Station”).

The USTs

stored

gasoline.

2.

LUST

Incident

Number

20041229

was

assigned

to

the

release

on

August 31, 2004.

The

site

has

also

been

assigned

LPC

~167l205701-

Sangamon County.

3.

On May

6,

2005, the Agency

received a complete application for payment

for

the period

of September

1,

2004

to

January

31,

2005.

The

amount

requested is

$276,873.39.

IThis

filing

submitted

on

recycled paper as defined

in 35111. Adm.

Code

101.2021

---

4.

By

letter

dated

July

1,

2005

(the

“Letter”),

the

Agency

applied

the

deductible amount of $10,000.00

and approved for payment the amount of

$228,772.68.

See

Exhibit A.

5.

The

Letter

states

that

“This

constitutes

the

Agency’s

final

action

with

regard

to

the

above application(s)

for

payment.”

The Letter

also

advises

Q&E of its right to

appeal this final Agency decision.

6.

Accounting and

technical

deductions are

listed

in

Attachments

A

to

the

letter.

See

Exhibit A.

7.

The

Letter

provides

no

additional

information

regarding

why

the

accounting

and

technical

deductions

were

made

or

the

bases

for

those

deductions.

8.

The

costs

for

which

Petitioner

seeks reimbursement are

reasonable

costs

and are consistent with previously approved amounts.

9.

Petitioner is appealing the Agency’s decision Letter dated July

1, 2005.

This filing

submitted

on recycled

paper as defined

in 35111. Adm.

Code

10l.202j

2

---

Wherefore,

Q&E

Properties,

Inc.,

respectfully

requests

that

the

Board

enter

an

Order to require that the Agency reimburse the full

amount requested by

Petitioner in the

February

2,

2005

reimbursement

request,

minus

the

$10,000

deductible,

and

for

Petitioner’s attorneys’ fees and costs in

bringing this appeal.

Respectfully submitted,

Q&E Properties, Inc.

By:

Cr~nit~rJ~

N&cvac

One of Its Att

neys

Carolyn S. Hesse, Esq.

Barnes & Thornburg

LLP

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606

(312) 357-1313

283053vl

This filing

submitted

on recycled

paper

as

defined

in

35111. 4dm. Code

101.202

3

---

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

•R.

BLAGOJEVICH,

GOVERNOR

217/782-6762

CERTIFIED MAIL #

JUL

012005

7004

2510

0001

~b’~15

?~BE

Q

&

E Properties, Inc.

Attn:

Grady Chronister

c/o

CW3M

Company, Inc

P.O. Box

571

Carlinville, IL

62626

--

Sangamon County

Re:

LPC#1671205701

SpringfieldlQ

& E Properties, Inc.

1100

Stevenson Drove

LUST

Incident No. 20041229

LUST FISCAL FILE

Dear Mr.

Chronister:

being

paid.

y©~u~q

iL~22OB5_~

~

The Illinois Environmental Protection

Agency has completed the review of your application

for

payment

from the Underground Storage Tank Fund for the above-referenced

LUST incident

pursuant

to

Section 57.8(a) of the Illinois

Environmental Protection

Act

(Act),

and

35

Ill.

Adm.

Code

732,

Subpart F.

This

information is dated March

8, 2005

and was received by the Agency

on March

10,

2005.

The application

for payment covers the period from September

1,

2004 to

January

31,

2005.

The amount requested is $276,873.39.

The deductible amount

to

be

assessed on this

claim

is $10,000.00, which

is being deducted

from

this

payment.

In addition to the deductible, there

are

costs from

this claim

that

are not being paid.

Listed

in Attachment A are the

costs that are

not being paid

and

the reasons these

costs

are not

On May 6,

2005,

the Agency received your complete application for payment

for this claim.

As

a

result of the Agency’s review of this

application

for payment,

a voucher for $228,772.68

will

be

prepared for submission

to the

Comptroller’s Office

for payment as funds become

available based

upon the date the Agency received your complete request for payment ofthis

application

for

payment.

Subsequent

applications for payment that have beenlare submitted will be processed

based upon

the date complete subsequent

application

for payment requests

are received

by the

Agency:

This

constitutesthe Agency’s fnalaction with regard to

the

above

application(s) for

payment.

-

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EXHIBIT

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I,’I,,,

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~h-I,ii’I2.(’Iiv.e.1ic

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(‘IdII kIiryI.

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---

RI

-2:2005_I~Uh

Page

2

U~L

An underground storage tank owner or operator may appeal this

final decision to the Illinois

Pollution Control Board (Board) pursuant to

Section 57.8(1) and Section 40 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 oftime

not to

exceed

90 days by written notice from

the owner or operator and the Illinois EPA within the initial

35-day appeal

period.

Ifthe

applicant 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

infonriation 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, Illinois 60601

312/814-3620

For irifornrntion regarding the

filing

of an

extension, please contact:

Illinois Environmental Protection Agency

Division of Legal

Counsel

1021

North Grand Avenue East

Springfield, Illinois 62794-9276

217/782-5544

If you

have any questions or require further assistance, please contact Nancy Moore

of my

staff or

Clayton

Bloome of

Hernando

Albarracin’s staff at

217/782-6762.

Sincerely,

Douglas E.

Oakley, Manager

LUST Claims Unit

Planning &

Reporting Section

Bureau ofLand

DEO:NlvI:me\05 I 925

doc

Attachment A

cc:

CW3M Company

---

Attachment A

-.-

‘I

Accounting Deductions

.

.

-

—

£

LUU~

U-

-—

Re:

LPC #1671205701

--

Sangamon County

Springfield/Q

&

E Properties,

Inc.

1100

Stevenson

Drive

LUST Incident

No. 20041229

LUST Fiscal File

Citations

in this

attachment

are from

and the Environmental Protection

Act (Act) and

35

Illinois

Administrative Code

(35

III. Adm.

Code).

Item #

Description of Deductions

$83.50,

deduction

for costs that

lack supporting

documentation (35

IJI.

Adrn.

Code

732.606(gg)).

Since there

is no supporting documentation of costs,

the Illinois

EPA

cannot determine that costs were not

used for activities in

excess ofthose

necessary to

meet the minimum requirements ofTitle

XVI of the Act

(Section 57.5(a) ofthe Act

and 35 Ill.

Adm.

Code 732.606(o)).

A.

During the time period from

December 1,2004

to

December 31,

2004, there

is

mileage billed

for BA.

Beavers

on December

12,

2004.

However,

this

person has

no

personnel hours

on that day ($1.52).

B.

There are some Per Diem

charges being denied on the following Martinsville

Warehouse and Logistics invoices, based

on the hourly information

on the hauling

ticketsl

1.

Four

quarters

on

Invoice #1001

for G. Duniphan,

P. Ruder and

C.

Ruder

on December 20. 2004

(one quarter each) and

one

quarter for

P-

Rideout

on

December21, 2004 ($28.00).

2.

Three quarters

on

Invoice #1002

for

C.

Ruder and D.

Gosnell

on

December 27, 2004

(one quarter each) and

one quarter for C.

Duniphan

on

December 28,

2004

($21.00).

3.

Two quarters on

Invoice #1003,

one quarter each for C.

Ruder on

January

3,

2005

and

for 0.

Duniphan

on January 4,

2005

($14.00).

C.

The Handling Charges associated

with the charges

from Casey

Stone Co.

on

Martinsville Warehouse and

Logistics

Invoices #1001

and #1002

are denied.

No

invoices could be provided

from Casey

Stone Co.,

per the response from

CW3M

received

on

May

5,

2005.

Handling Charges can

be considered only

on costs

with

accompanying invoices/receipts (318.98).

2.

55.70, deduction

for costs which

are unreasonable

as submitted.

(Section

57.7(c)(4)(C) of the Act

and 35

III. Adm.

Code

732.606(hh))

The handling Charges

applied

to the IEPA Demolition Notification

fee are

denied.

---

Page

2.

3.

$1.26,

adjustment

in the handling charges

due to the deduction(s) ofineligible costs

(Section

57.8(1) ofthe Act

and 35

III. Adm.

Code

732.607).

The Handling Charges

associated with the deductions for Per Diem on

Martinsville

Warehouse and Logistics Invoices #1001, #1002

and

#1 003

are denied.

NM:n)e\051 926.doc

---

- -~

iN

~

~

-2-2005

Attachnient A

________________

Technical

Deductions

Re:

LPC #1671205701

--

Sangamon County

SpringfieldlQ

& E Properties, Inc.

1100

Stevenson Dr.

LUST Incident No. 20041229

LUST Technical File

Citations

in this attachment

are from and

the Environmental

Protection Act (Act) and

35

Illinois

Administrative Code (35111. Adm.

Code).

Item #

Description of Deductions

$2610.00,

deduction for costs that lack supporting documentation (35 Ill. Adm. Code

732.606(gg)).

Since there is no

supporting documentation ofcosts,

the Illinois

EPA

cannot determine that costs were not used for activities in excess of those necessary

to

meet the minimum requirements of Title XVI of the Act (Section

57.5(a)

of the Act

and 35

Ill. Adm.

Code 732.606(o)).

The

billing package indicates charges for “Operator CAT Trackhoe

or Backhoe.”

The

billing package also includes costs for “Operator &

CAT Trackhoe

or Backhoe.”

It

was indicated by CW3M

Company,

Inc. that the costs for “Operator CAT Trackhoe

or

Backhoe” were

less than the costs for “Operator & CAT Trackhoe

or Backhoe”

because the operator was not

operating the equipment.

Therefore,

it is unclear to

the

Illinois EPA as to

the purpose of the costs

for “Operator CAT Trackhoe or Backhoe” if

the equipment is not being operated.

$31,200.25, deduction for costs

due to excessive Personnel and Equipment costs for

early action activities

(Section 57.6(b) of the Act and

35111. Adm.

Code 732.606(o)).

In addition, these costs are unreasonable

as submitted (Section 57.7(c)(4)(C) of the Act

and

35111.

Adm.

Code 732.606(hh)).

3.

$4,200.00,

deduction for costs associated with Equipment,

Stock Items, materials and

Expendables which

are unreasonable

as submitted.

(Section 57.7(c)(4)(C) of the Act

and 35 Ill.

Adm.

Code 732.606(hh))

HAA:CTB