BEFORE THE POLLUTION CONTROL BOARD
OF THE
STATE OF ILLINOIS
CASSEN
AND
SONS,
INC.,
)
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
Dorothy M. Gunn, Clerk
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
James R. Thompson Center
1021
North Grand Avenue, East
100 West Randolph
Street
P.O. Box 19274
Suite
11-500
Springfield,
IL
62794-9274
Chicago, IL 60601
Dean E. Sweet, Assistant State’s Attorney
Madison County Administration Building
157
North
Main Street
Suite 402
Edwardsville, IL 62025-1964
PLEASE
TAKE
NOTICE that
I have
today filed with the
office of the
Clerk
of the Pollution
Control Board a JOiNT STIPULATION and MOTION FOR SUMMARY JUDGMENT,
copies of which
are herewith served upon you.
Respectfully submitted,
ILLiNOIS ENVIRONMENTAL PROTECTION AGENCY,
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated March26, 2004
Petitioner,
CLERK’S OFFICE
MAR 29
2004
STATE OF JLUNOIS
PoIIutjo~Control Board
)
)
)
)
PCBNo. 01-102
(UST Fund)
NOTICE
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Dean B. Sweet, Assistant State’s Attorney
Madison County Administration Building
157 North Main Street
Suite 402
Edwardsville, IL 62025-1964
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
1021
North Grand Avenue, East
P.O. Box
19274
Springfield,
IL
62794-9274
ILLINOISENVIRONMENTAL PROTECTIONAGENCY,
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021
North Grand Avenue, East
P.O.
Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
RECEn/ED
CLERK’S OFFICE
MAR 2~2OO4
CERTIFICATE OF SERVICE
STATE OF ILLINOIS
I, the undersigned
attorney at
law,
hereby certify
that
on March 2~~Ik~
~~rd
and correct copies of a JOINT
STIPULATION and MOTION FOR SUMMARY
JUDGMENT,
by
placing
true and
correct
copies thereof in
properly
sealed and addressed
envelopes and by
depositing said sealed envelopes in a U.S. mail drop box located within Springfield, Illinois,
with
sufficient First Class postage affixed thereto, upon the following named persons:
RECE~VED
CLERK’S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
MAR 292004
OFTHE
STATE OF ILLINOIS
STATE
OF
ILLINOIS
Pollution Control Board
CASSENSAND SONS,
NC.,
)
Petitioner,
)
v.
)
PCBNo.Ol-l02
ILLINOIS ENVIRONMENTAL
)
(UST Fund Appeal)
PROTECTION AGENCY,
)
Respondent.
)
JOINT STIPULATION
NOW
COME the Petitioner, Cassens and
Sons,
Inc.
(“Cassens”),
by
its
attorney,
Dean
Sweet,
and
the Respondent, the Illinois
Environmental Protection
Agency (“Illinois
EPA”),
by
one ofits attorneys, John J. Kim, Assistant Counsel and Special Assistant Attorney General, and
hereby
submit
to
the
Illinois
Pollution
Control
Board
(“Board”)
this
Joint
Stipulation.
The
parties hereby stipulate as follows:
1.
That the Petitioner believes the affidavit ofWilliam
St. Peters (Exhibit
1) contains
information and
testimony
he
would
provide
if he
were
called to
testify
in
a
hearing
in
this
matter.
2.
That the Illinois EPA believes some or all ofthe information and testimony
in the
affidavit may be irrelevant, erroneous, legally conclusory in nature, and otherwise objectionable.
3.
That the Illinois
EPA would
accordingly contest or object
to
some
or all
of the
information and testimony found in the affidavit if it were presented as testimony in a hearing in
this
matter.
4.
That the Illinois EPA reserves the right to, and may, raise a relevancy or any other
objection to
the information and testimony within the affidavit in the context ofthe Petitioner’s
possible
reliance on
or reference
to
the affidavit
in
a
motion
for summary judgment
or related
pleading.
1
5.
That
the
parties
agree
that
the facts contained
in
the Illinois
EPA’s
Request
to
Admit
Facts
(Exhibit
2)
are
true and
accurate
and
may
be
relied
upon
by
the parties and
the
Board in reaching
a resolution
in this matter.
Respectfully submitted,
CA
NS AND SONS, INC.,
Dean E. Swe~f
Assistant State’s Attorney
Office the State’s Attorney for Madison County, Illinois
157 North Main
Street
Suite 402
Edwardsville, IL
62025
Voice:
618 692-6280
Facsimile:
618 296-7001
Dated:
/-/~~-
~2
~f
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021
North Grand Avenue, East
P.O.
Box
19276
Springfield, Illinois
62794-9276
217/782-5544
217/782-9143
(TDD)
Dated:___________________
2
BEFORE THE
POLLUTION CONTROL BOARD
OF THE
STATE OF ILLINOIS
CASSENS AND SONS, INC.,
)
Petitioner.
PCBNo.01-102
vs.
)
(LJST Fund Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
AFFIDAVIT
OF WILLIAM ST. PETERS
I, William St.
Peters, do hereby state and affirm as follows:
1.
The Madison County Transit (MCT) Edwardsville
Station
is located directly across
the street from the Madison County Government Center and Edwardsville City Hall.
The $5,000,000 project is one of 5
transit hubs serving the residents of Madison
County,
by providing transit
linkages to the greater St.
Louis
region and
its
light rail
system,
MetroLink.
The project was funded with
a combination of Federal Transit
Administration (FTA) funds via a Congressional earmark; Illinois Department of
Transportation (IDOT) funds, and
local transit funds.
2.
In
1989 (prior to
Safety Partners),
four underground storage tanks (UST’s) were
removed from Cassens and
Sons property located on the south side of Hilisboro
Avenue in Edwardsville,
Illinois.
The UST’s were removed under the supervision of
the OSFM and the Edwardsville
Fire Chief.
Based on a declaration form from the
OSFM representative present during the
1989 UST removals, the four UST’s were all
registered,
removed, and non-leaking.
No release was declared.
In
1996,
Safety Partners
began the Due Diligence Phase I and Phase II Environmental
Assessments for the Madison County Transit property (formerly owned by Cassens
and Sons) located
on both sides of Hillsboro Avenue in Edwardsville, Illinois.
During the Phase I, SPL found that underground storage tanks (UST’s) were listed
for
the property on both sides of Hilisboro
Avenue.
Based on
a no release reported for
the four UST’s on the south side of Hilisboro Avenue removed in
1989, Safety
Partners
performed no subsurface, investigative borings
in
the area.
In May 1999,
during removal ofexisting asphalt surfacing material and
lighting
structures on
the south
side of Hillsboro Avenue, a hydraulic cylinder was discovered
by the paving company
in the same area as the four UST’s removed in
1989
and
a
1
EXHIBIT
I
former (i.e., prior to
1989) service station.
Prior to
sampling the soil,
Safety Partners
was contacted by Mr. Jerry Kane, Madison County Transit and
informed of the
problem.
A soil
sample was then collected and analyzed to determine if
contamination levels were
above JEPA
remediation objectives.
We deferred notification of this
release to the Illinois
Emergency Management
Agency (IEMA) until such information was available
and that this
was still
considered by the OSFM a UST (LUST).
After notification by OSFM that the site still qualified as a LUST incident since the
vent/distribution
lines were not removed in
1989 and after receiving soil results
from
the sample taken around the distribution lines, we then reported this release and made
the attempt
to recover the costs ofthis proper effort to remove this contamination and
the potential
for further impact to the environment
under the LUST Act.
The main area of uncertainty was the eligibility for reimbursement under Title XVI
Lust.
This was based on
the documentation that the UST’s on this site had originally
been declared,
10 years prior to this work, clean
by an officer of the OSFM.
Our experience
in a similar
situationjust a year or so prior to this
incident found
inconsistent information and policy.
The main gasoline/product UST’s were removed
and the piping left onsite.
The vent and distribution piping was discovered by our
firm during the removal of a Heating Oil Tank some years after the main UST
removals.
This
discovery and subsequent cleanup under LUST was disallowed by the
IEPA.
The resulting SRP cost
our client considerable expense and time
for issuance
of No Further Action status.
However, the OSFM decision to Safety Partners that if any part of a UST system
(piping, etc.) remains
in the ground following the removal of the tanks, according to
the State of Illinois
Regulations,
it is still
considered to
be an UST system.
The
2
During the removal ofimpacted soil and prior to soil sample results, Safety Partners
discussed notifying IEPA with Mr. Kane.
Our delay in reporting was based
on
several factors:
a.
The uncertainty of the level ofcontamination found to
actuallydeclare
a release;
b.
The extent ofthe contamination in the soil;
c.
We felt that under the rules of the IEPA
LUST, this cleanup may be
considered within the purview of the JEPA
Site Remediation Program
(SRP),
a non-funded cleanup program designed for soil and water
contamination problems not associated with a Leaking
Underground
Storage Tank, to
provide for the proper documentation that
a release
was completed in accordance with
IEPA requirements; and
d.
The decision of the OSFM based
on documentation provided by our
firm during this incident, declaring that this
was still
an underground
storage tank release.
OSFM determined the eligibility after we corrected the registration
information.
This
eligibility determination was confirmed by
the OSFM on February
14, 2000
establishing $10,000.00
deductibility.
Safety Partners
did not anticipate
the extent of soil contamination eventually found.
While waiting for these issues to be addressed, contaminated soil
was removed from
the area of the hydraulic cylinder and vent and
distribution
lines remaining from the
1989
lines
that appeared to be gasoline residue.
Due to the need to expedite the
paving, pending lab analysis of the soil sample, and the uncertainty of reimbursement,
Safety Partners
continued with the soil removal.
During the project we experienced
several days ofrain and the accumulated rain water was removed (pumped) from the
excavation.
Safety Partners believes
that Madison County Transit should be compensated for the
full amount ofEarly Action work minus the $10,000 deductible established
by the
OS FM.
3.
1 further state that the information contained in this
affidavit was made known to
the
Illinois Environmental Protection Agency during the Eligibility and Deductibility
Application process as a result ofwritten documents, telephone conversations, and
meetings with the staff for the Agency.
This
information was provided to the Agency
prior to
its Reimbursement Decision dated November 29, 2000.
Further, the Affiant saith not.
AFFIANT
SUBSCRIBED and SWORN
to before me on this
~2
~‘
~‘~‘~‘
day of
NOTARY PUBLIC
NORMA
VOLENTINE
NOTARY PtJSLJC
-
STATE OF N.UNO3S
MY COMM1$$~ON
EXFIRES
EP 31
ZOOS
-
~WJW
-
-
-~
3
BEFORE THE
POLLUTION CONTROL BOARD
OF THE STATE
OF ILLINOIS
CASSENS AND SONS, INC.,
)
Petitioner,
)
v.
)
PCBNo.01-102
ILLiNOIS ENVIRONMENTAL
)
(UST Fund Appeal)
PROTECTION AGENCY,
)
Respondent.
)
REQUEST TO ADMIT FACTS
NOW COME the Respondent, the Illinois Environmental Protection Agency (“Illinois
EPA”), by one of its attorneys, John J. Kim, Assistant
Counsel
and Special
Assistant
Attorney
General, and,
pursuant
to
35
Ill.
Adm.
Code
101.618,
requests
that
the Petitioner, Cassens
and
Sons, Inc.,
stipulate to
the following facts.
1.
On May 27,
1999,
Cassens (or an
agent or representative of Cassens) notified the
Illinois
Emergency
Management
Agency
(“IEMA”)
of a
suspected release
from
underground
storage tanks
(“USTs”) at the Cassens (alkla Madison County Transit) site (“site”)
located at 126
Hilisboro
Avenue
in
Edwardsville,
Illinois.
The
incident
was
assigned
Incident
#
991273.
Administrative Record (“AR”), pp.
5,
39.
2.
On
December
2,
1999,
Cassens
(or
an
agent
or
representative
of
Cassens)
submitted an
Eligibility
and
Deductibility
Application (“E/D
application”)
to
OSFM.
The
E/D
application stated that
there were six
USTs at the site,
and
that all six
USTs had
a release.
AR,
pp.4-7.
3.
On
February
16,
2000,
OSFM
issued
a
determination
based
on
the
E/D
application that
two
tanks were eligible for reimbursement (Tanks
I and 2, each a 1,500 gallon
gasoline
tank)
and that two
tanks
were ineligible forreimbursement (Tanks 3
and
4, each a 1,500
I1~BIT
gallon
gasoline
tank).
Further,
OSFM
determined
that
Cassens
was
eligible
to
seek
reimbursement ofcorrective action costs in
excess of$lO,000.
AR, pp.
10-12.
4.
On May 22,
2000,
Cassens
sent
a Billing Package
to
the Illinois
EPA requesting
reimbursement
for
costs
associated
with
Early
Action
activities
performed
at
the
site.
The
request sought a total of $91,384.99
in reimbursement for costs incurred between May 27,
1999,
to July 6,
1999.
AR, pp. 38-1 13.
5.
Included
in
the
Billing
Package
was
a
form
entitled,
“Owner/Operator
and
Professional
Engineer
Billing Certification
Form
for Leaking Underground Storage Tank Sites.”
The
form
provided
in
part,
“I
further certify
that
costs
ineligible for payment
from
the
UST
Fund pursuant to
35 Illinois Administrative Code Section 732.606 are not included in
this billing
package.
Such ineligible costs include but
are not limited to:
*
*
*
Costs incurred prior to IEMA
notification.
*
* i.”
AR, p. 43.
6.
On May
17, 2000, Allen Cassens, President of Cassens, signed
the form described
in
Stipulation
#5
above.
On May 22,
2000, Talbert Eisenberg, Professional
Engineer,
signed
the
form.
AR, p. 43.
7.
Included in
the Billing Package was a Personnel
Sunirnary
Sheet that listed work
performed by
Safety Partners,
Ltd. (“Safety Partners”), a contractor.
The work performed was
described to
have taken place from May 27,
1999, to July 6,
1999.
AR, p. 47.
8.
The
Personnel
Summary
Sheet
included
costs
and
descriptions
set
forth
in
different line items,
including the following:
a.
W.
St.
Peters,
a
Sr.
Env.
Spec.,
performing
44
hours
of
work
at
a
rate
of
$70.00/hour for a total charge of $3,080.00.
AR, p. 47.
2
b.
M. Trgovich, a Supervisor, performing 75
hours of work at a rate of $50.00/hour
for a total
charge of$3,750.00.
AR, p.
47.
c.
R.
Manton, a Laborer, performing 47 hours ofwork at a rate of$45.00/hour for a
total
charge of $2,1 15.00.
AR, p. 47.
d.
G. Heafner, a Laborer, performing
8
hours of work at a rate of $45.00/hour for a
total charge of$360.00.
AR, p. 47.
9.
Included
in
the Billing Package were
copies of invoices from
prime consultants
andlor contractors and subcontractors.
AR,
pp.
50-110.
10.
The copies were provided in
support of the request for payment of reimbursement
from the UST Fund.
The costs described and
referenced on the invoices were part of the request
for payment ofreimbursement from the UST Fund.
AR, pp. 50-110.
11.
Included
in
the Billing
Package was a
copy of an
invoice
from
Safety Partners,
dated March
14, 2000, and identified as Invoice
#99185.
AR, p.
58.
12.
Included
in
Safety Partners
Invoice #99 185
were
costs and descriptions
set
forth
in different line items, including the following:
a.
A Senior Environmental Specialist performing 40
hours of Project Management
at a rate of$70.00/hour for a total charge of $2,800.00.
AR,
p.
58.
b.
A Project Supervisor performing 75
hours of work at a rate of $50.00/hour
for a
total charge of$3,750.00.
AR,
p. 58.
c.
A Union Laborer performing
87 hours of work at a rate of $45.00/hour for a total
charge of$3,915.00. AR, p. 58.
13.
On August
24,
2000,
the
Illinois
EPA sent
a
letter to
Cassens
regarding
the
site
and the Billing Package. The letter stated that the application
for payment was incomplete due to
3
a lackof supporting documentation. In
Attachment
A to the letter, the Illinois EPA asked in part
for dates of service and
duties for the dates for the Personnel
Summary Sheet for Safety Partners.
AR, pp.
26-28.
14.
On September
21,
2000,
Talbert Eisenberg of Safety Partners
sent a
letter to
the
Illinois
EPA
in
response
tO
the
Illinois
EPA’s
letter
dated August
24,
2000.
Mr.
Eisenberg’s
letter included time
sheets
with dates, work descriptions,
and hours in support of the previously
submitted Personnel Summary Sheet.
AR, pp. 29-31.
15.
The Timesheet sent by
Mr. Eisenberg of Safety Partners to Illinois
EPA included
descriptions of work performed by different employees, including the
following:
a.
William
St.
Peters,
a
Sr.
Env.
Spec.,
performed
20.5
hours
of work
(project
management) between May
18,
1999, and May 25,
1999.
This work was a subset
of the total of 44
hours of work performed by Mr.
St.
Peters
as documented
on
the
Timesheet.
AR, p. 30.
b.
Michael
Trgovich,
a
Supervisor,
performed
39.5,
hours
of
work
(remove
contaminated
soil
and
demucked
hole)
between
May
18,
1999,
and
May
25,
1999.
This work was a subset of the total of 75 hours ofwork performed by Mr.
Trgovich as documented
on the Timesheet.
AR, p.
30.
c.
Robert Manton,
a
Laborer, performed
21
hours of work (on site
labor) between
May
19,
1999,
and May
25,
1999.
This
work
was a
subset
of the
total
of 45
hours of work performed by
Mr. Manton as documented on the Timesheet.
AR,
p.31.
d.
Gene
Heafner, a Laborer, performed
8 hours of work (on site labor)
on
May 21,
1999.
AR,p.3O..
4
16.
The
work
performed by
Mr.
St.
Peters,
as
described
in
the Timesheet
sent
by
Safety Partners to
Illinois EPA (See paragraph
15.a.
above),
is the same as the work described in
the
Personnel
Summary
Sheet
in
the
Billing
Package
(See
paragraph
8.a.
above)
and
Safety
Partners
Invoice #99 185 (See paragraph 12.a. above).
AR, pp. 30, 47,
58.
17.
The
work
performed
by
Mr.
Trgovich,
as described
in
the
Timesheet
sent
by
Safety Partners to
Illinois EPA (See paragraph
15.b. above),
is the same as the work described in
the
Personnel
Summary
Sheet
in
the
Billing
Package
(See
paragraph
8.b.
above)
and
Safety
Partners Invoice #99185 (See paragraph 12.b. above).
AR,
pp. 30, 47,
58.
18.
The
work
performed
by
Mr.Manton
and
Mr.
Heafner,
as
described
in
the
Timesheet
sent
by
Safety
Partners
to
Illinois
EPA
(See
paragraphs
15.c.
and
15.d.
above,
respectively),
is
the same as the work described
in the Personnel
Summary Sheet in
the Billing
Package (See
paragraphs
8.c.
and
8.d.
above, respectively)
and
Safety Partners
Invoice #99185
(See paragraph
12.c.
above, collectively).
AR, pp.
30,
47,
58.
19.
The
Billing
Package
included
a
Subcontractors
form
that
totaled
the
billing
charges
for
subcontractors
retained
by
the
Prime
Consultants
andlor
Contractors.
The
Subcontractor
form
listed,
among others,
Riverbend Contractors as
a subcontractor.
The form
identified Riverbend Contractors as having billed $38,304.81
for excavation and
hauling work.
AR, p. 62.
20.
In
support
of
the
claim
for
reimbursement
of
the
charges
from
Riverbend
Contractors, several invoices from Riverbend Contractors were included in the Billing Package.
Included among those
invoices are Riverbend Contractors Invoices #974332
and 974368. AR,
pp. 64-68, 70-79.
5
21.
Riverbend Contractors Invoice #974332 sought payment for work
performed on
April
30,
1999,
May
12,
1999,
May
17,
1999,
May
17,
1999,
and May 18, 1999.
The total
amount due for this work was $1,712.95.
AR, pp. 78-79.
22.
Riverbend Contractors Invoice
#974368
sought
payment for work performed
on
May
19,
1999,
May 20,
1999,
May 21,
1999,
May
24,
1999,
and
May
25,
1999.
The
total
amount due
for this
work was $17,905.04.
AR, pp.
74-77.
23.
The Subcontractor form
in
the Billing Package also
included a line
item for ESI,
or Ecological
Systems, Inc.
The form identified ESI as having billed
$4,455.
12
for waste water
disposal work.
AR, p. 62.
24.
In
support
of
the
claim
for
reimbursement of the
charges
from
ESI,
several
invoices from ESI
were
included
in the Billing
Package.
Those
invoices are ESI
Invoices #99-
433, 20646 and20647.
AR, pp.
8 1-83.
25.
ESI
Invoice
#99-433 sought payment for work performed on May 20, 1999, the
“Ship Date.” The total amountdue for this work was $702.62. AR, p. 82.
26.
ESI Invoice #20646 sought payment for work performed on May
25,
1999, the
“Received” date. The total amount due for this work was
$1,662.50.
AR, p.
83.
27.
ESI Invoice #20647
sought
payment
for work performed on
May
24,
1999,
the
-
“Received” date.
The total amount due for this
work was $2,090.00.
AR, p.
81.
28.
The
Subcontractor
form
in
the Billing
Package also
included
two
line
items
for
Bluff City Minerals. The form identified
Bluff City Minerals as having billed
$1,454.93
for 2”
rock backfill, and $304.81 for aglime backfill. AR, p. 62.
29.
In support of the claim
for
reimbursement
of
the
charges
from
Bluff
City
Minerals,
several
invoices
from
Bluff
City
Minerals
were
included
in
the
Billing
Package.
6
Included among those invoices
are
Bluff City Minerals Invoices #13104 and 13105. AR, pp. 92-
94.
30.
Bluff City Minerals
Invoice #13104 soughtpayment
for product with a ticket date
of May 24,
1999.
The total amount due for this
product was
$1 12.35.
AR, p. 92.
31.
Bluff
City Minerals
Invoice #13105
sought payment for product
with ticket dates
all ofMay
25,
1999. The total amount due for this product was$1,501.87. AR, p. 93.
32.
The Subcontractor
form in the Billing
Package also
included a line item
for Waste
Management.
The
form
identified
Waste
Management as
having
billed
$24,279.18
for
soil
disposal
work.
AR,
p.
62.
33.
In
support
of
the
claim
for
reimbursement
of
the
charges
from
Waste
Management,
an
invoice
from
Waste Management
was included
in
the
Billing
Package.
The
invoice
is Waste Management Invoice #2450-0000049.
AR, pp.
97-105.
34.
Waste Management Invoice #2450-0000049 sought payment for soil
disposal
on
May
18,
1999,
May
19,
1999,
May 20, 1999,
May 21,
1999,
May 24,
1999,
and May
25,
1999.
The total amount due for this soil disposal was $24,279.18.
AR, p.
105.
35.
The
Subcontractor
form
in
the
Billing
Package
also
included
a
line
item
for
Teklab.
The
form identified Teklab
as having billed $130.00
for landfill analysis
work.
AR,
p.
62.
36.
In support of the claim for reimbursement ofthe charges from
Tekiab,
an invoice
from Teldab was included in the Billing Package. The invoice is Tekiab Invoice #37609. AR, p.
108.
37.
Tekiab Invoice#37609 sought payment for soil testing onMay 4, 1999. The total
amount due for this soil testing was$130.00. AR, p. 108.
7
38.
The
Billing
Package
included an
Equipment
form
that
totaled the billing
charges
for equipmentused by the Contractor, Safety Partners. TheEquipment form included a line item
for aCompactor at a total cost of $1,290.40. AR, p. 48.
39.
In support ofthe claim for reimbursement of
equipment
charges,
an
invoice from
Safety Partners
is
included
in
the
Billing
Package.
The
invoice
is
Safety Partners
Invoice
#99185. AR,p.58.
40.
Safety Partners Invoice #99185 includes a line item for Equipment Rental of a
Compactor for a total
amount of$ 1,290.40.
AR, p.
58.
41.
Included
with
the
September
21,
2000
letter sent
by
Mr.
Eisenberg
of Safety
Partners to
the Illinois EPA was a copy ofan invoice from Equipment Company at Mitchell.
Mr.
Eisenberg’s letter stated that the invoice was
a receipt for the use of the compactor.
The invoice
is Equipment Company
at Mitchell Invoice #20834 and sought payment
in the
amount
of
$1,290.40.
AR, pp.
29, 32.
42.
The Compactor
line
item
found on
the Equipment
form
in
the
Billing
Package
(See
paragraph
38
above)
references
the
same
compactor
listed
in
Safety
Partners
Invoice
#99185
(See
paragraph
40
above)
and
the
item
that
is
the
subject of Equipment Company
at
Mitchell Invoice #20834 (See paragraph 41
above).
AR,
pp. 32, 48,
58.
43.
The
compactor
was
used
for
the
compaction and/or density
testing
of
backfill
material at the site.
44.
The Subcontractor
form
in
the Billing Package also
included a line item
for SCI
Engine&ring.
The
form
identified SCI Engineering as having billed $2,222.00
for compaction
testing work.
AR, p. 62.
8
45.
In
support
of the claim for reimbursement of the charges from SCI Engineering,
invoices from SCI Engineering were included in
the Billing
Package.
Those
invoices
are SCI
Invoices #3243 and 3319. AR, pp. 88-89.
46.
SCI
Engineering
Invoice
#3243
sought
payment
for field
office
and
laboratory
services for density testing..
The total amount due for this work was $1,243.40.
AR, p.
88.
47.
SCI
Engineering Invoice
#3319
sought
payment
for
field
office and
laboratory
services for density testing.
The
total amount due for this work was $978.60.
AR, p.
89.
48.
The field office and
laboratory services for density testing work supplied
by
Sd
Engineering was for compaction and/or density testing of backfill at the
site.
49.
The
Subcontractor
form
in
the
Billing
Package
includes
a
table
of
Eligible
Handling Charges
as a
Percentage of Cost
based upon
the Subcontract or Field Purchase
Cost.
AR,p.62.
Respectfully submitted,
-
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
John
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021
North Grand Avenue, East
P.O. Box
19276
Springfield,
Illinois 62794-9276
217/782-5544
217/782-9143
(TDD)
Dated: November
18, 2003
.
9
RECE~VE~,
CLERK’S OFFICE
BEFORE
THE POLLUTION
CONTROL BOARD
MAR 29
2004
OF THE STATE OF ILLINOIS
STATE
OF ILUNOIS
CASSENS
AND SONS, iNC.,
)
.
Poflution Controt Boarc~
Petitioner,
)
V.
)
PCB No. 01-102
ILLINOIS ENVIRONMENTAL
)
(UST Fund Appeal)
PROTECTION AGENCY,
Respondent.
)
MOTION FOR SUMMARY JUDGMENT
NOW COMES
the Respondent, the Illinois
Environmental Protection
Agency
(“Illinois
EPA”), by one of its
attorneys, John J. Kim, Assistant
Counsel
and
Special
Assistant
Attorney
General, and, pursuant to
35
Ill.
Adm.
Code
101.500,
101.508 and
101.516,
hereby respectfully
moves the Illinois Pollution
Control Board (“Board”) to enter summary judgment in favor ofthe
Illinois EPA and againstthePetitioner, Cassens and Sons, Inc. (“Cassens”), in that there exist herein
no genuine issues ofmaterial fact, and that the Illinois EPA is entitled to judgment as a matteroflaw
with respect to the following grounds. In support ofsaid motion, the Illinois EPA states as follows:
I.
STANDARD FOR ISSUANCE
AND REVIEW
A
motion
for summary judgment
should
be
granted where
the
pleadings,
depositions,
admissions on file, and affidavits disclose no genuine issue as to any material fact and the moving
party
is entitled tojudgment as amatteroflaw Dowd&Dowd Ltd v Gleason, 181111 2d460,483,
693 N E 2d 358, 370 (1998), McDonald’s Corporation v
Illinois Environmental Protection Agency,
PCB 04-14 (January 22, 2004), p
2
Section
57 8(i) ofthe Illinois Environmental Protection Act (“Act”) (415
ILCS
5/57 8(i))
grants an individual the right to appeal a determination ofthe Illinois EPA to theBoard pursuant to
Section 40 ofthe Act (415 ILCS
5/40)
Section 40 ofthe Act, the general appeal section forpermits,
-
1
has been used by the legislature as the
basis
for this
type of appeal to
the Board.
Thus,
when
reviewing an IllinoisEPA determinationof
ineligibility for reimbursement from the Underground
StorageTankFund, theBoardmustdecidewhether or
not the application as submitted demonstrates
compliance with the Act and Board regulations.
Rantoul Township High School District District No.
193 v. Illinois
EPA, PCB
03-42 (April 17, 2003), p. 3.
Indeciding whetherthe Illinois EPA’s decision under appeal here was
appropriate, theBoard
must look to the documents within the Administrative Record (“Record” or “AR”)
and
the facts
containedwithin the Joint
Stipulation (“stipulation”).
The Illinois EPA asserts that the stipulation
and the arguments presentedin this motion are sufficient for the Board to entera dispositive order in
favor of the Illinois EPA on all relevantissues.
Accordingly, the Illinois EPA respectfullyrequests
that the Board enter an order
affirming the Illinois EPA’s decision.
II.
BURDEN OF PROOF
Pursuant
to
Section
105.112(a)
of the
Board’s
procedural
rules
(35
Ill. Adm. Code
105.112(a)), theburdenofproofshall beon the petitioner.
In reimbursement appeals, the burden is
on the applicant
for reimbursement to demonstratethat incurredcosts arerelated to correctiveaction,
properly accounted for, and reasonable.
Rezmar Corporation v. IllinoisEPA,PCB02-91 (April 17,
2003), p
9
III
ISSUE
The issue before the Board is whether the deductions imposed in the Illinois
EPA’s final
decision dated November
29,
2000
(AR,
pp
13-15),
are
correct
when
taking
into account
the
underlying facts and law
As will be argued below, the facts in this case areundisputed ~and
clearly
demonstrate that the deductions were appropnate and should not be approved for payment
2
IV.
THE ILLINOIS EPA IS ENTITLED
TO SUMMARY JUDGMENT
BASED ON THE
FACTS AND LAW
A.
Relevant Facts
Inpar~graph
5
ofthe
stipulation, the parties agree that the facts containedwithin theIllinois
EPA’s request to admit are true
and accurate and may be relied upon bythe parties and the Board in
reaching a resolution in this matter.’ Those facts are as follows.
OnMay 27, 1999, Cassens (or an agent or representativeof Cassens) notified the Illinois
EmergencyManagement Agency(“IEMA”) ofa suspected
release from underground storage tanks
(“USTs”) at
the Cassens
(alicia Madison
County
Transit)
site (“site”)
located at
126
Hillsboro
Avenue in Edwardsville,
Illinois.
The incident was assigned Incident
#
991273. AR, pp.
5,
39.
On December 2,
1999,
Cassens
(or an
agent or representative of Cassens) submitted
an
Eligibility and DeductibilityApplication (“E/D application”) to OSFM.
TheE/D application stated
that there were six USTs
at the site, and that all six USTs had
a release.
AR, pp. 4-7.
On February
16, 2000, OSFM issued a determination based on the E/D application that two
tankswere eligible forreimbursement
(Tanks
1
and 2, each a 1,500 gallon gasoline tank) and that
two
tanlcs were ineligible forreimbursement (Tanks 3 and 4, each a 1,500 gallon gasoline tank).
Further,OSFM determined that Cassens was eligible to seek reimbursement ofcorrective action
costs in excess of $10,000. AR, pp. 10-12.
I
The stipulation
also
includes
an affidavit of William St
Peters, which contains information and testimony that
the
Petitioner believes would be
provided ifMr
St Peters were calledtotestif~’
ina hearing inthis
matter
The Illinois EPA
has expresslyreserved the rightto contest or object to the information and testimony found in the affidavit
Specifically,
any statements made by Mr
St
Peters that are notfound in the Record should notbe considered by the Board, since they
were preparedafter the final decision issued in this matter
It is well
established that information preparedfollowing the
issuanceofa final decision that was notbefore the Illinois EPA at the timeofits decision shouldnot be considered by the
Board
Typically, information or evidence that was not before the Illinois EPA at the timeof its decision is not admitted
at hearing or considered by the Board
CommunityLandfill Companyand City ofMorris v
Illinois EPA, PCB 01170
p
4 (December 6
2001)
3
On May 22,
2000, Cassens sent a Billing Package
to
the
Illinois
EPA
requesting
reimbursement forcosts associated with Early Action activities performed at tlie site.
Therequest
sought a total of$91,384.99
in reimbursement for costs incurred between May27,
1999, to
July 6,
1999. AR,pp. 38-113.
Included
in the Billing Package was
a
form entitled,
“Owner/Operator and Professional
Engineer
Billing
Certification
Form
for Leaking Underground
Storage Tank
Sites.”
The form
provided in part, “I
further certifythat costs ineligible forpayment
from the UST
Fundpursuant to
35
Illinois
Administrative
Code
Section
732.606 are not included in this billing package. Such
ineligible costs include but are not limited to:
*
*
*
Costs incurred prior
toIEMAnotification.
*
*
~.“
AR, p. 43.
On May
17,
2000,
Allen Cassens,
President
of Cassens, signed
the
form
described in
Stipulation
#5
above. OnMay22,2000, Talbert Eisenberg, ProfessionalEngineer, signed theform.
AR, p. 43.
Included in the Billing Package was a Personnel
Summary
Shçet that listed work
performed by Safety Partners,
Ltd. (“Safety Partners”), a contractor.
The work performed was
described to have taken place from May 27,
1999, to July 6,
1999.
AR, p. 47.
The Personnel
Summary Sheet included costs
and descriptions set
forth in different line
items, including the following
a
W
St Peters, a Sr Env Spec
,
performing44 hoursofwork at a rate of$70 00/hour
fora total charge of $3,080.00. AR, p. 47.
b
M
Trgovich, a Supervisor, performing 75 hours ofwork at a rate of
$50
00/hour for
a total charge of
$3,750
00
AR, p
47
L
4
c.
R. Manton,
a Laborer, performing 47 hours of work at a rate of $45.00/hour for a
totalchargeof$2,115.00.
AR,p.47.
d.
G. Heafner,aLaborer,performing 8 hours ofwork atarateof$45.00/hourforatotal
charge of$360.00. AR, p. 47.
Included
in the Billing
Package
were
copies of invoices from prime consultants
and/or
contractors and subcontractors.
AR, pp. 50-110.
The copies were provided in support oftherequest
for payment of reimbursement from the UST Fund.
The costs
described and
referenced on the
invoices were part ofthe request for payment ofreimbursement from the UST Fund.
AR, pp.
50-
110.
Included in the Billing Package was a copyofan invoice from SafetyPartners, dated March
14, 2000, and identified as Invoice
#99185.
AR, p.
58.
Included in SafetyPartners Invoice
#99185
were costs and descriptions set
forth in different line
items, including the following:
a.
A Senior Environmental Specialist performing40 hours ofProj-ectManagement at a
rate of$70.00/hour for a total charge of$2,800.00.
AR, p.
58.
b
AProject Supervisorperforming 75 hours ofwork atarateof$50 00/hour for atotal
chargeof$3,75000
AR,p
58
c
A Union Laborer performing 87 hours ofwork at a rate of
$45
00/hour for a total
chargeof$3,91500 AR,p 58
On August
24,
2000,
the Illinois
EPA sent a
letter to
Cassens regarding the site and
the
Billing Package
The letter stated that the application forpayment was incomplete due to
a lack of
supporting documentation
In Attachment Ato the letter, the Illinois EPA asked in part fordates of
service
andduties forthe
dates for the Personnel Summary Sheetfor SafetyPartners
AR, pp
26-28
5
On
September 21, 2000, TalbertEisenberg ofSafetyPartners sent a letterto the Illinois EPA
in response to the Illinois EPA’s letter dated August 24, 2000.
Mr. Eisenberg’s letterincluded time
sheets with
dates, work descriptions, and hours in support ofthe previously submitted Personnel
Summary Sheet.
AR, pp.
29-31.
TheTimesheet sent by Mr. Eisenberg ofSafetyPartners to Illinois EPA included descriptions
ofwork performed by different employees,
including the following:
a.
William
St.
Peters,
a
Sr.
Env.
Spec.,
performed
20.5
hours
of work
(project
management)betweenMay 18,
1999, andMay25, 1999.
Thisworkwas asubsetof
the total of 44 hours ofwork performed by Mr.
St. Peters
as documented on
the
Timesheet.
AR, p.
30.
b.
Michael
Trgovich,
a
Supervisor,
performed
39.5
hours
of
work
(remove
contaminated soil and demucked hole) betweenMay 18,
1999, and May 25,
1999.
This work was a subset ofthe total of 75 hours ofwork performed by Mr. Trgovich
as documented on the Timesheet.
AR, p. 30.
-
c.
Robert Manton, a Laborer,performed 21 hours ofwork (on site labor)between May
19,
1999,
and May
25,
1999
This work was a subset of the total of 45 hours of
work performed by Mr
Manton as documented on the Timesheet
AR, p
31
d
Gene Heather, a Laborer, performed 8 hours ofwork (on site labor) on May21, 1999
AR,p
30
The work performedby Mr
St
Peters, as described in the Timesheet sent by SafetyPartners
to
Illinois EPA (See paragraph
15 a
above),
is the same as the work described in the Personnel
6
Summary Sheet
in the
Billing Package
(See
paragraph
8.a.
above)
and Safety Partners
Invoice
#99185
(See paragraph 12.a. above).
AR, pp. 30, 47,
58.
The workperformedby Mr. Trgovich, as described in theTimesheet sent by SafetyPartners
to
Illinois EPA (See paragraph
15.b.
above),
is the same as the work described in
the Personnel
Summary
Sheet in the Billing Package
(See paragraph
8.b.
above)
and
Safety Partners
Invoice
#99185
(See paragraph 12.b. above).
AR, pp. 30, 47, 58.
The work performedby Mr.Manton and Mr. Heather, as described in the Timesheet sent by
Safety Partners to Illinois EPA (See paragraphs 15.c. and
15.d.
above, respectively), is the same as
the work describedin the Personnel Summary Sheet in the Billing Package (See paragraphs 8.c. and
8.d.
above,
respectively)
and
Safety
Partners
Invoice
#99185
(See
paragraph
12.c.
above,
collectively).
AR, pp. 30, 47,
58.
-
The Billing
Package included
a
Subcontractors form
that totaled
the billing
charges for
subcontractorsretained by the PrimeConsultants and/or Contractors. The Subcontractor form listed,
among others, Riverbend Contractors as a subcontractor
Theform identifiedRiverbend Contractors
as having billed $38,304.81 forexcavation and hauling work. AR, p. 62.
In support ofthe claim forreimbursementofthe charges from RiverbendContractors, several
invoices from Riverbend Contractors were included in the Billing Package
Included among those
invoices
are
Riverbend
Contractors
Invoices
#974332
and
974368
AR,
pp
64-68,
70-79
Riverbend Contractors Invoice #974332 sought payment forworkperformedon April 30, 1999, May
12,
1999, May 17, 1999, May 17, 1999, and May 18,
1999
The total amount due forthis work was
$1,712 95
AR, pp
78-79
Riverbend Contractors Invoice #974368
sought
payment for work
7
performed on May 19,
1999, May 20,
1999, May 21, 1999, May 24,
1999, and May
25,
1999.
The
total amount due for this work was
$17,905.04.
AR, pp.
74-77.
The
Subcontractor
form
in
the Billing
Package
also
included
a
line
item
for ESI,
or
Ecological
Systems,
Inc.
The form
identified
ESI
as having billed
$4,455.12
for waste water
disposal work.
AR,
p.
62.
In support of the claim for reimbursement of the charges
from
ESI,
several invoices from ESI were included in the Billing Package.
Those invoices are ESI Invoices
#99-433, 20646 and 20647.
AR, pp.
81-83.
ESI
Invoice #99-433 sought payment for workperformedon May20,
1999, the “Ship Date.”
The total amount due for this work was $702.62.
AR, p. 82.
ESI Invoice#20646 sought payment
for workperformed on May
25,
1999, the “Received” date.
Thetotal amount due forthis work was
$1,662.50.
AR, p.
83.
ESI Invoice #20647 sought payment for work performed on May 24,
1999,
the “Received” date.
The total amount
due for this work was $2,090.00.
AR, p.
81.
The Subcontractor form in
the Billing Package also
included two line
items for Bluff City
Minerals.
The form identified Bluff CityMinerals as having billed
$1,454.93
for2” rock backfill,
and
$304
81
for aglime backfill
AR, p
62
In support of the claim for reimbursement of the
charges from Bluff City Minerals, several invoices from Bluff City Minerals were
included in the
Billing
Package
Included among those
invoices are Bluff City Minerals Invoices
#13 104
and
13105 AR,pp 92-94
Bluff CityMinerals Invoice #13104 sought payment forproduct with a ticketdate ofMay24,
1999
The total amount due for this product was $112 35
AR, p
92
BluffCity Minerals Invoice
#13105
sought payment forproduct with ticket datesall ofMay
25,
1999
The total amount due for
this productwas $1,501 87 AR, p 93
8
The
Subcontractor
form
in
the
Billing
Package
also
included
a
line
item
for
Waste
Management.
The form identifiedWaste Management as havingbilled $24,279.18 for soil disposal
work.
AR,
p.
62.
In
support
of the
claim
for
reimbursement of the
charges
from
Waste
Management, an invoice from Waste Managementwas included in theBilling Package. Theinvoice
is Waste Management Invoice #2450-0000049.
AR, pp.
97-105.
Waste Management Invoice #2450-0000049 sought payment for soil disposal on May 18,
1999, May 19,
1999, May 20,
1999,
May 21,
1999, May 24,
1999,
and May
25,
1999.
The total
amount
due
for this
soil disposal
was
$24,279.18.
AR, p.
105.
The Subcontractor form
in the
Billing Package also included a line item for Tekiab.
The form identifiedTekiab as having billed
$130.00 for landfill analysis work. AR, p. 62.
In support of the claim for reimbursement of the charges
from
Teklab,
an
invoice
from
Teklab was included in the Billing Package
The invoice is
Tekiab Invoice #37609
AR,
p
108
Teklab Invoice #3 7609 sought payment for soil testing on May 4,
1999.
The total amount due for
this soil testing was $130.00.
AR, p.
108.
The
Billing
Package included
an
Equipment
form
that
totaled the
billing
charges
for
equipmentused by the Contractor, Safety Partners
The Equipment form included a line item for a
Compactor at a total cost of$1,290 40
AR, p
48
In
support ofthe claim for reimbursement of equipment charges,
an invoice
from
Safety
Partners is included in the Billing Package
The invoice is Safety Partners Invoice
#99185
AR, p
58
SafetyPartners Invoice#99185 includes a lineitem forEquipmentRental ofaCompactor for a
totalamountof$l,29040
AR,p
58
9
Included with the September 21, 2000 letter sent by Mr. Eisenberg ofSafetyPartners to the
Illinois EPA was a copyofan invoice from Equipment CompanyatMitchell.
Mr. Eisenberg’s letter
stated that
the invoice
was
a receipt
for the use of the
compactor.
The
invoice
is
Equipment
Companyat Mitchell Invoice #20834 and sought payment in the amount of$ 1,290.40.
AR, pp. 29,
32.
The Compactor line item found on the Equipment form in the Billing Package(See paragraph
38 above)references the samecompactor listed in SafetyPartners Invoice
#99185
(See paragraph40
above)
and
the item that
is
the subject of Equipment Company at Mitchell Invoice #20834
(See
paragraph 41
above).
AR,
pp.
32,
48,
58.
The
compactor was used for the compaction and/or
density testing ofbackfill material at the site
The Subcontractor form in the Billing Package also
included a line item for SCI Engineering.
The form
identified SCI Engineering as having billed
$2,222.00 for compaction testing work.
AR, p. 62.
In support ofthe claim for reimbursement ofthe charges
from
SCI Engineering,
invoices
from SCIEngineering were included in the Billing Package
Those invoices are SCIInvoices#3243
and 3319
AR, pp
88-89
SCI Engineering Invoice #3243
sought
payment for field office and
laboratory services for density testing
The total
amount due forthis work was $1,243 40
AR, p
88
SCI Engineering Invoice #3319
sought payment for field office and laboratory services for
density testing
The total amount due for this work was $978 60
AR, p
89
The fieldoffice and laboratory services for densitytesting work suppliedby SCIEngineering
was for compaction and/or density testing ofbackfill at the site
The Subcontractor form
in the
Billing Package includes a table ofEligible Handling Charges as a Percentage ofCost based upon
the Subcontract or Field Purchase
Cost
AR, p
62
10
B.
No Genuine Issues Of Material Fact Exist
As
evidenced by
the submission of the stipulation,
the parties
are in
agreement with
all
relevant facts needed for the Board to
consider while determining whether summaryjudgment is
appropriate. The question in this case is not oneoffact, but rather oflaw.
Specifically, the question
is whetherthe facts warrantthe deduction ofcosts based on the dates that thecosts were incurred and
the nature ofthe
costs.
C.
The “Pre-IEMA” Costs Are Not Reimbursable
ThePetitioner sought a total of$91,384.99 in reimbursement. Following the application ofa
$10,000.00 deduction, there remained a total of$81,384.99 in reimbursable costs.
Ofthat amount,
the Illinois EPA deducted $61,843.36 in costs as being ineligible forreimbursement.
Therearethree
groups ofcosts that make up that deduction.
The first group involves costs that were incurred prior
L
to the notification provided to TEMAby Cassen.
These “pre-IEMA” costs, which total $54,811.51,
are detailed in Attachment A ofthe Illinois EPA’s final decision under appeal.
AR, p.
15.
Section
57
8(k) ofthe Act provides that the Illinois EPA shall not pay costs ofcorrective
action or indemnification incurred before providing notification of the release of petroleum in
L
accordance with theprovisions ofTitleXVI ofthe Act
Similarly, Section 732
606(n) ofthe Board’s
regulations
(35
Ill. Adm. Code 732.606(n))provides that costs ineligible forreimbursement include
costs ofcorrective action orindemnification incurredbefore providing notification ofthe release of
petroleum to IEMA in accordance with Section 732 202
(35
Ill
Adm
Code 732 202)
As noted in the statement of facts above, the Petitioner acknowledges and admits that the
costs
noted inItem#1 ofAttachmentAof
the final decision(AR, p
15)
were all incurred prior to the
11
date that the Petitioner informed JEMA ofthe release from the USTs in question.
Those costs are:
Safety Partners Invoice #99185
$4,715.00
Riverbend Contractors Invoices #974332, 974368
$19,617.99
Ecological Systems
Invoices #20647, 99-433, 206-46
$4,455.12
Bluff City Minerals Invoices #13 104,
13105
$1,614.22
Waste Management Invoice #2450-0000049
$24,279.18
Tekiab Invoice #37609
Li 30.00
Total
$54,811.51
The Petitioner has admitted that all ofthose costs were incurred prior to IEMAnotification.
There
are no
facts that are relevant
and
were presented
to
the Illinois
EPA at the time of their
decision that would otherwisejustifyviolation ofSection
57.8(k)
oftheAct and Section 732.606(n)
ofthe Board’s regulations.
Thus, the Board should find that the Illinois EPA properly denied the
costs.
D.
The Compaction And
Backfill Density Testing Costs Are Not Reimbursable
The second group ofcosts deducted by the Illinois EPA relate to $3,512.40 in costs for the
compaction and densitytesting ofbackfill material
Pursuant to Section 732 606(w) ofthe Board’s
regulations, such costs are not eligible for reimbursement
TheIllinois EPA also concluded that the
costs
were
not
related to
corrective
action
AR,
p
15
Those
costs
are
listed
in
Item #2
of
Attachment A ofthe final decision, and are comprised ofthe following costs
Equipment Company at Mitchell Invoice #20834
$1,290 40
SCI Engineering Invoices #3243, 3319
$2 222 00
Total
$3,512 40
12
ThePetitioner has admitted and acknowledged in thefacts above that those costs were indeed
incurred aspart ofcompaction and densitytesting ofbackfill.
Since thereis no disputethat the costs
relate to workwithin the scope ofSection 732.606(w) oftheBoard’s regulations, the Illinois EPA’s
deduction of those costs on that basis was appropriate and should be upheld by the Board.
E.
The Handling Charges Related To Ineligible Costs Are
Not
Reimbursable
The third group ofcosts deducted from the reimbursement request is
$3,519.45
in handling
charges, an adjustment stemming from the deduction of the otherineligible costs noted above.
As
set
forth in the reimbursement application submitted by Cassens, a total of
$5,510.04
in handling
charges was sought forreimbursement.
AR, p. 62.
That figure was calculated based upon the total
ofthe subcontractor charges and an application ofthe “sliding scale” found in Section
57.8(f)
ofthe
Act
(415 ILCS
5/57.8(f))
and
Section
732.607 of the Board’s
regulations
(35 Ill.
Adm.
Code
732.607).
The total amount ofthe subcontractor charges set forth in the reimbursement application is
$72,200.85.
After deducting the ineligible costs for subcontractors noted in the first two groups of
deductions (i.e., all ofthe listed costs except for the SafetyPartners costs (theprime consultant, for
whom
handling
charges
are
not
available)
and
the
Equipment
Company
costs
(for rental
of
compactor equipment, again not subject to a handling charge)), a revised total of$19,882 34 should
be used as the baseline
for applying the sliding scale
2
That figure yields an allowable handling
charge of
$1,990.59.
Subtracting that
amount
from
the requested handling charge results
in
a
difference of$3,519 45,
the amount deducted in the final decision
AR, p
15
As demonstrated above, the ineligible costs for subcontractors should not be approved for
2
The original
subcontractor total of $72,200
85
minus
the
ineligible costs
for Riverbend Contractors ($19 617
99),
Ecological Systems
($4,455
12), Bluff
City
Minerals ($1
614 22),WasteManagement ($24 279
18), Teklab ($130
00)
13
reimbursement.
That beingthe case, the handling charge amount must also be modified, and
thus the
Illinois EPA’s adjustment in the handling charge amount was proper.
V.
CONCLUSION
Forthe reasons stated herein, the Illinois EPArespectfullyrequests that the Board affirmthe
Illinois EPA’s decision to deny approval ofreimbursement ofthecosts identified in AttachmentA of
the final decision.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
John ~.Kim
Assistant
Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021
North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143
(TDD)
Dated: March 26, 2004
This filing
submitted
on recycledpaper.
and SCI Engineering ($2,222.00),
equals $19,882.34.
14
