BEFORE THE POLLUTION

OF THE STATE OF ILLINOIS

WET ENTERPRISES,

)

Petitioner,

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

Dorothy M. Gunn,

Clerk

Illinois Pollution Control Board

State of Illinois

Center

100 West Randolph Street

Suite

11-500

Chicago, IL

60601

RE

CE

J~

V ED

CLERK’S OFprCE

DEC

5

2003

STATE

OF 1LLINO1~S

Pollution

Control &~ard

John J.Kim

Assistant

Counsel

Special Assistant

Attorney General

Division of Legal Counsel

1021 North Grand Avenue,

East

P.O.

Box

19276

Springfield,

IL

62794-9276

PLEASE

TAKE NOTICE that I have today filed with the

office of the Clerk of

the Pollution Control Board an Amended Petition for Review ofFinal Agency

Leaking Underground

Storage Tank Decision,

a copy of which is herewith served

upon you.

Robert E.

Shaw

IL ARDC No. 03123632

Curtis W. Martin

IL ARDC No. 06201592

SHAW

& MARTIN, P.C.

Attorneys

at Law

123

S.

10th Street, Suite

302

P.O. Box

1789

Mt.

Vernon,

Illinois 62864

Telephone

(618) 244-1788

vs.

PCB

No. 04-83

)

(UST Appeal)

NOTICE

By

Wei Enterp:

for

---

BEFORE THE POLLUTION

CONTROL BOARD

RECE

fl/ED

OF THE STATE OF ILLINOIS

DEC

5

2003

WET ENTERPRISES,

)

SlATE OF

ILLINOIS

Pollution

Control Board

Petitioner,

)

vs.

)

PCBNo.~-

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

AMENDED

PETITION FOR REVIEW OF FINAL AGENCY

LEAMNG UNDERGROUND STORAGE TANK DECISION

NOW COMES the Petitioner, Wei Enterprises,

(“Wei”), by

one ofits

attorneys,

Curtis W. Martin of Shaw

& Martin,

P.C., and, pursuant

to the Illinois

Pollution Control Board’s (“Board”) Order of November 20, 2003,

and pursuant

to

Sections 57.7(c)(4)(D) and

40 of the Illinois Environmental

Protection Act (415 ILCS

5157.7(c)(4)(D)

and 40) and 35

Ill. Adm.

Code 105.400-412, hereby requests

that the

Illinois Pollution

Control Board

(“Board”) review the final decision ofthe Illinois

Environmental

Protection Agency (“Agency”) in the above cause, and in support

thereof, Wei respectfully states as follows:

1.

On October

8,

2003,

the Agency issued a Final Decision to Wei,

a copy

of which is attached hereto as Exhibit

A.

2.

35

Ill. Adm.

Code 105.404 provides in part that the petitioner must file

a petition for review of the Agency’s final decision with the

Clerk ofthe Board

within

35 days after the

date

of service

of the Agency’s final decision.

---

3.

35 Ill. Adm.

Code 101.300(c) provides in part that

in the case of service

by U.S. mail, service is presumed complete four days after mailing, but such

presumption

can be rebutted

by proper proof.

4.

35

Ill. Adm.

Code 101.300(a) provides

in part that the computation

of

time prescribed in the Rules ofthe Board will begin with the first calendar

day

following the day on which the act, event or development occurs and will run until

the

close ofbusiness

on the last day.

5.

35 Ill. Adm.

Code

101.300(b)(2) provides in part that documents will be

considered filed in conformance with the filing requirements

of the Rules of the

Board if the

document is filed by U.S. Mail and the postmark

date precedes the

filing deadline.

6.

On October 9,

2003, Wei, through its consultant,

United Science

Industries,

Inc.

(“USI”), received the Agency’s Final

Decision, as is more specifically

set forth in the Affidavit attached as Exhibit

B.

7.

Pursuant

to

35 Ill. Adm.

Code

101.300(a), the computation

of the

35

days within which Wei was to file its Petition began

on

October

10,

2003.

8.

Wei’s original Petition for Review of Final Agency Leaking

Underground Storage Tank Decision was file-marked

by the Clerk on November

17,

2003 but was postmarked

November

13,

2003.

Therefore, pursuant

to

35

Ill. Adm.

Code 101.300(b)(2), the Petition must be considered filed November

13,

2003, within

the time

allowed for filing.

9.

The

grounds for the Petition herein are

as follows:

---

Wei submitted to the Agency, through

its consultant,

USI,

its

Application for Payment

from the Underground

Storage Tank Fund pursuant to

Section

57.8(a) of the Act and 35

Ill. Adm.

Code

105.732, subpart F.

The

Application for Payment

covered the period from March

1,

2002

to February 28,

2003 and requested $28,780.46.

In response to the Application for Payment, the Agency authorized

a

voucher for $5,794.79 to be submitted

to the Comptroller’s office for payment from

the Underground Storage Tank Fund, making both technical and accounting

deductions.

As for the technical deductions, the Agency indicates that

$15,565.25 of

the costs requested in the Application for Payment

lack supporting documentation

such that the Agency cannot determine that

these costs were not used for activities

in excess ofthose

necessary to meet the minimum requirements

of Section 57.5(a) of

the Act and

35 Ill. Adm.

Code

732.606(o).

The Agency also indicates that the Application for Payment

includes

costs for installation of a free product removal system that

does not include

information regarding activities

necessary to install the system

nor an estimate

of

the length of time the system will be required to operate in order to recover free

product on the Wei site.

The Agency further

questions the personnel

charges with

respect to actual tasks

completed by each individual for which costs are reflected

and therefore

requested a more specific breakdown of actual work completed by

each individual each day per invoice.

The Agency

also requests

clarification as to

the purpose for the use a generator,

a tractor with

dump trailer,

and a metal

detector.

---

The Agency also determined that

$4,575.00 Wei seeks to be reimbursed

is in excess of that necessary to meet the minimum requirements

of Section 57.5(a)

of the Act and 35

Ill. Adm.

Code 732.505(c) and 732.606(o), and is not as~ociated

with “corrective action costs” in compliance with Sections

57.6 and 57.7

of the Act

and 35 Ill. Adm.

Code 732.103.

The Agency further questions the task/work

performed by the personnel as not being specific to the actual work performed,

and

the Agency requested a more specific breakout of each individuaJtitle

and

task/work performed each day per

invoice.

At the same time,

however, the Agency,

without the

specific requested information, determined the costs

to be unreasonable

as submitted.

Finally, the Agency also determined that

$433.46 was unreasonable

for a per bailer charge, for ten (10) groundwater monitoring well charges, for costs

for gloves and for the cost for oiJwater

interface probe use.

For its accounting deductions, the Agency determined that

$50.97

in

costs submitted were unreasonable

for various equipment

and materials reflected in

particular USI invoices.

The Agency also deducted

$2,360.99 of costs submitted

as

being duplicate billings previously reimbursed pursuant

to a reimbursement

claim

received by the Agency

on March

26,

2003.

The costs submitted

by USI for payment are within generally accepted

engineering practices

and comply with the Act and the regulations

promulgated

thereunder.

Specifically, the costs

for the free product removal system installation

are supported in the Agency created Payment Application and Free Product

Removal forms from both a technical and accounting standpoint

in that

all

---

information regarding the equipment needed to build the system

and the activities

iiecessary to install it have been provided.

Thus, the

activities have been properly

documented as required by Section 732.203

(a)(4).

Further,

basic common sense

dictates that the best estimate

of the duration

ofthe need for the system is

so long

as the free product exists at the Wei site.

The Agency essentially requests

an

estimate that cannot be provided and on that basis

denies reimbursement

for the

actual costs incurred to date.

Such an approach is both arbitrary

and capricious.

In addition,

the billing package, Free Product

Removal Reports,

and

consultant

and Agency correspondence,

taken together,

provide the necessary

documentation

to include

costs and explanations for personnel with specific detail of

the particular tasks performed to sufficiently and accurately advise the Agency

of

the necessity and reasonableness

ofthe charges therefore and the equipment used

in connection with the tasks performed.

Is it impossible for Wei to specifically

address the $15,565.25

technical deduction because the Agency has failed to provide

Wei with any indication as to what particular

activity or equipment it deems to be

unreasonable.

The descriptions

of the task/work performed by the personnel as

provided in the billing package

are consistent with

all previous billing site specific

packages approved for payment by the Agency.

To require a more specific breakout

of the actual work completed by each individual performed each day is tantamount

to requiring USI to provide every timesheet and invoice produced in the course of

the project.

Such a request is unreasonable,

onerous, arbitrary

and capricious.

Moreover,

the Agency’s position is inconsistent with the Act and the

---

Regulations.

Pursuant

to Section 732.203

(a)(2), owners or operators must

remove

free product to the maximum extent practicable and use abatement

offree product

migration as a minimum objective for design ofthe free product removal system.

Section 732.203(a)(1) requires Wei to conduct free product removal by using

recovery and disposal

techniques appropriate

to the hydrogeologic conditions at its

site in

a manner that

minimizes the

spread of contamination into previously

uncontaminated

zones.

Further,

section 732.605(a)(1) includes within eligible

costs

tho~e’

associated with corrective action activities, including early action activities

conducted pursuant to Subpart

B,

which pursuant

to 732.203(a)(1), include

free

product removal.

No prior approval from the Agency is necessary regarding free

product removal.

Wei’s consultant performed the early action activities,

i.e., free

product removal, necessary to protect human health and the environment

and the

costs associated with such efforts

is subject to reimbursement.

The

$4,575.00 technical

deduction by the Agency

for costs

not

associated with corrective action costs is therefore

clearly erroneous as such costs

were associated with corrective action activities.

The Application for Payment

includes costs associated

with personnel tasks described as associated with the

corrective action and clearly advised the Agency of the actual work performed by

the personnel.

The Agency, however, without warrant,

finds this information

lacking.

In addition,

the Agency’s deduction of $433.46 for costs it deems

unreasonable

associated with the bailer,

gloves and interface probe use

are

---

arbitrary

and capricious.

Further,

the deduction for the costs for ten

(10)

groundwater monitoring wells

is arbitrary

and capricious as Wei is not advised as to

which ten (10) groundwater monitoring wells the Agency deems unreasonable

and

the Agency arbitrarily determined that

nine (9) wells are

all that is necessary to

complete the investigation.

The deduction of $50.97 by the Agency as unreasonable

for the PID,

bentonite and target concrete saw are arbitrary

and capricious.

Wei does not

contest the $2,360.99

accounting

deduction as the Agency is

correct that

a request

for a voucher covering these

costs was included in an Agency letter dated May

12,

2003

in response to an earlier payment application

submitted

by Wei.

For the foregoing reasons, the Agency’s refusal to request a voucher for

the $28,780.46 requested in Wei’s Application for Payment,

less the

$2,360.99

deduction, was erroneous, arbitrary,

and capricious, and

should be reversed by this

Board.

Petitioner, Wei Enterprises,

therefore

requests that the Board reverse the

decision of the Agency and rule in favor of the Petitioners’ request for preparation

of

a voucher for submission

to the

Comptroller’s Office for payment of its Application

for Payment

from the Underground Storage Tank Fund, less the $2,360.99

deduction, and that Petitioner recover its

attorney’s fees and

costs incurred herein

pursuant

to 415 ILCS

5/57.8(1) and 35 III. Adm.

Code

732.606(1).

---

Respectfully submitted,

Robert

E.

Shaw

IL ARDC No. 03123632

Curtis

W. Martin

IL ARDC No. 06201592

SHAW & MARTIN,

P.C.

Attorneys

at Law

123

5.

10th Street, Suite

302

P.O.

Box

1789

Mt.

Vernon,

Illinois

62864

Telephone (618)

244-1788

SHAW & MARTIN,

P.C.

Attorney for

Petitioner

---

e’~

,

‘

JLrINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

iO~1NcR~W1CRAr4O

AVENUE

EAST,

P.O.

Box

19276,

SPRJNCflELD,

iu.tNols

62794-9276, 217-782-3397

JAMES

R. THQ~es~r~

CENTS,

100

WEST

RANDOLPH,

StJtT~

11-300,

CJ-ItCACO,

11

60601,

31

2-814-6026

Roo

R.

&AGOJEVICH,

GOVERNOR

R~NEE

CIPRt~NO,

DiRECTOR

217/782-6762

~Ci 08

2003

Wei

Enterprises

Attention:

Susan

W~i

Poet Office Box

834

O’Fallori, IL

62269

Re:

LPC #1631255004

—St. Clair County

Shiloh/Wei Enterprises

~529

Maple S~reet

•LUST Incident No.

982804

LUST FiSCAL FILE

Dear Ms. Wei:

The illinois Environmental

Protection Agency has completed the review ofyour 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 August 20,

2003

and was received by the

Agency on

August 22, 2003.

The application for p~ymenr

covers the period from March

1, 2002

to February

28, 2003.

The amount requested is 528,780.46.

The deductible amount for this claim is

5 10,000.00,

which was previously deducted from the

Invoice Voucher dated February

16, 2000.

Listed

in Attachment A are the costs which

are not

being paid

and the

t

easons these costs are not being paid.

On

August

22, 2001, the Agency received your complete application for payment

for this claim.

As a result ofthe Agency’s review ofthis application for payment, a voucher for

$5 ,7g4

,

79

wi

1

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 beenfare

submitted will

be

processed based upon the date complete subsequent application for payment requests

are

received by the Ag~ncy.This constitutes the Agency’s final action with regard to

the above

application(s) for payment.

An underground

storage tank owner or operator

may

appeal.

this

final decision to the illinois

Pollution Control l3oard (Board) pursuant

to Section

57,8(i)

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 33-day

period

may

be extended for a period of time not to

exceed

90 days by written notice

RO~c~gO

4302

No~n

M~n

Sr~

~t.

Rock~ord.IL

61103

—

(815t

987.7700

D~

Pt~~

-

951)

~V. ~3rrk~n

51.. O~PI~4,

II.

6001 (~

-

(847)

~q$.4QQ3

—

593

South S~te,EIg~n,

IL 63123

—

847)

008-3131

Pto~i,

—

~4)5

N.

Ur,is

r~t~

SL.

P&’or)3,

IL 61614— (3091 09.1.946)

~

L’~-O

-

Pto~

-

7620

N.

U~i’e’5I~St..

P~ori&IL 0)6)4

-

309

3.~4(~3

.

~

-

2

25

Sourn

First

Street,

Chnmpa~n,

IL

01820

-

(217) 778-~00

—

4500

S.

Sixfl

Str~t

sd.. S~.’0&I~1

62706

‘1

~

C

~

—

300(

~ti

S&~’~t

CutI~n~I)e

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63’359

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EXHIBIT..

~

---

Attachment A

Technical Deductions

Re:

LPC #1631255004—St.

Clair County

Shi lohlWeiEnterPrise

529

Maple Street

LUST Incident No. 982804

LUST Fiscal File

Citations

in this

attachment are from

and the Environmental Protection Act (Act) and 35

Illinois

Administrative

Cbde

(25

Iii. Mm.

Code).

Item

#

Description of Deductions.

5

15,565.25,

deduction

for costs that

lack supporting documentation

(35

III. Adm.

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 of those necessaty to

meet the minimum requirements ofTitle XVI of the Act (Section 57.5(a) ofthe

Act

and

35

111.

Adm.

Code

732.606(o)).

The billing package includes costs for free product removal

system installation.

While

the Illinois EPA has received

technical

specs on the equipment needed to build

the

system,

information regarding activities necessary to

install the system has not been

provided.

b

addition,

an estimation

ofhow long the system

will

be

required to

operate in order

to recover free product on

site has not been provided as previously

requested

in

the

Illinois EPA letter dated May

12, 2003.

Also, the billing package includes costs for Personnel

that do not specify what actual

task/work ~‘ascompleted by each individual/title on the days the work was charged for

in the weekly worksheets.

Please provide

a more specific breakout of actual work

completed ~y each individual/title performed each day per invoice as previously

requested

in

the Illinois EPA letter dated

May’ 12, 2003.

Further. tht±

Jilinois EPA is requesting clarification as to the purpose for the use of the

following equipment as previously requested in

the Illinois EPA letter dated May

12.

2003:

a.

115

volt generator;

t~.

Tractcr with

dump

trailer (Invoice ~l.8-12014); and

c.

Metal

detector.

---

Pa~e2

~4,575.00,

deduction for costs for an activity in excess of that necessary to meet

the

minimum requirements of Title XVI ofthe Act (Section 57.5(a) ofthe Act;

35

III.

Adm.

Code

732.505(c)

and 732.606(o)).

Costs for corrective action activities and

associated

materials or services exceeding the minimum requirements necessary to

corriply with

the Act are not eligible

for payment from

the Fund

(35

Ill.

Adm. C~de

732.60~(o)) In addition, these costs

are not corrective action

costs.

‘Corrective

action’ means an

activity associated with

compliance with the provisions of Sections

57.6 and 577 of the Act (Section 57.2 of the Act and 35

111.

Adm.

Code

732.103).

One of the ~:ligibiIityrequirements for accessing the Fund

is

that costs

are associated

with

“corrective action” (Section 57.9(a)(7) ofthe Act).

These costs

include personnel costs

since the task/work performed descriptions were

not specific as

to the actual work that was performed.

Please provide

a

more specific

breakout of each individual/title and

the task/work performed each day per invoice as

‘

‘~

previouSly requested in

the Illinois

EPA letter dated May 12,

2003.

In addition,

these costs lack supporting documentation

(35

Iii. Adm.

Code

732.606(gg)).

Since there is rio 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)

ofthe

Act

and

35

Iii.

Adm.

Code 732606(o)).

Further, these costs are unreasonable

as submitted.

(Section 57.’7(cX4)(C) ofthe Act

and 35

II.

Adm.

Code

732.606(hh)).

3

5433.46,

d!ductiori for costs

which are unreasonable

as submitted.

(Section

57.7(c)(4)(C) ofthe Act

and 35

III.

Admn. Code

732.606(hh)).

The following

unreasonable costs

include:

a.

Costs per bailer;

b.

Costs for ten (10) groundwater monitoring wells since nine (9) groundwater

monitoring wells

are necessary/reasonable for free product investigations.

c.

Costs per glove;

and

d.

Costs per oil/water interface probe use.

HAC:MW:nv~v\9S28O4Fi5calAttachment

A-2.DOC

---

Attachment A

Accounting Deductions

Re:

LPC ~l63 1255004

—‘St.

Clair County

ShilohlWei Errterprises

529 Maple Street

LUST IndIdeni No. 982804

LUST

Fiscal File

Citations in this artaclment are from and the Environmental Protection Act (Act)

and

35

Illinois

Administrative Code (35 III. Adm.

Code).

Item #

Description, of Deduction5

$50.97,

deduction for costs which are unreasonable

as submitted.

(Section

,

57.7(c)(4)(C) ofthe Act

and

35

Iii.

Adru. Code

732.606(hh))

The following deductions were made on the following United Science Industries, Inc.

invoices:

#18-9776A

$5.00 for aPID

$6.00 for Bentonize (50

lb.

bag)

#18110163

$5.OOforaPID

$4.00 for Bentonire (50 lb. bag)

#1 8-1

1 4744B

$22.00 for Target

Concrete

Saw

$8.97

for balance canied forward on electricity costs

2.

$2,360.99

deduction for costs associated with duplicate billings.

(Section

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

35

Ill.

Adm. Code 732.606(o))

Thefo11o~virigdeductions were made because the amounts were previously

reimbursed in the’ciaim received by the Agency on

March 26,

2003.

These deductions

were

made on the following United Science Industries,

Inc. invoices:

#1 8-9776A

$325.00 for Equipment

$3 17.12 for Stock

Items

$9.03 for Field Purchases

#18-10163

$325.00 for Equipment

•

$576.60 for Stock Items

#18-1 l4~14B

$110.50 for Equipment

$15.32

for Stock Items

•

$82.65

for Field Purchases

#18~I

l8~2

$375.00

for Equipment

$18.68

for Stock Items

566.65

for Field Purchases

#1 8-1201,4

590.00 for Equipment

$15.96

for Stock items

$33.48

for Field Purchases

DEO:LH:jk\03089’) .doc

---

BEFORE THE POLLUTION

CONTROL BOARD

OF THE STATE OF ILLINOIS

WEI ENTERPRISES,

)

)

Petitioner,

)

)

vs.

)

PCB No. 04-83

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

AFFIDAVIT

STATE OFILLINOIS

)

)

ss.

COUNTY OF JEFFERSON

)

I, Duane

Doty, being first duly sworn,

on oath depose and state:

1.

I have first hand knowledge of the facts as alleged herein, and if called

to testify I could competently testify to such facts.

2.

I am the General Manager for United Science Industries,

Inc.

(“USI”),

the environmental

consultant •for Wei Enterprises

(“Wei”) with regard to Wei’s

Leaking Underground Storage Tank project located at Shiloh,

St.

Clair

County,

Illinois,

and known as Incident

No.

982804.

3.

Among my duties as General Manager for USI, I maintain the records

created during the course of the work performed by USI

on behalf of Wei.

4.

It is

USI’s ordinary course ofbusiness

to maintain

records created or

received by Wei or USI,

including Agency correspondence,

during the course of the

work performed on behalf of Wei.

EXHIBIT

~

---

5.

My

review ofthe Wei file maintained by USI reveals that

Wei and USI

received the Agency letter

dated October 8,

2003, which is the subject ofthe appeal

in the above cause,

on

October 9,

2003.

Affiant states nothing

further.

Curtis W. Martin

IL ARDC No. 06201592

SHAW

& MARTIN,

P.C.

Mercantile Bank Building,

Suite

302

P. 0. Box

1789

Mt. Vernon, Illinois

62864

Telephone: (618) 244-1788

Subscribed and sworn to before

oFF~cLAL

CURTIS

W.

MARliN

Not2ry

P~bIIc,

State of IIJIno~s

My

Cornmis~orEx~jres

09/01/05

---

CERTIFICATE

OF

SERVICE

I, the undersigned

attorney at law, hereby certify that

on December

3

2003, I served true and correct copies of an Amended Petition

for Review of Final

Agency Leaking Underground Storage Tank Decision, by placing true and correct

copies in properly sealed and addressed envelopes and by depositing said sealed

envelopes in a U.S. mail drop box located within Mt. Vernon, Illinois,

with sufficient

Certified Mail postage

affixed thereto,

upon the following named persons:

Dorothy M. Gunn, Clerk

John J.

Kim

Illinois Pollution

Control Board

Assistant

Counsel

State

of Illinois Center

Special Assistant

Attorney General

100 West Randolph Street

Division of Legal Counsel

Suite

11-500

1021

North Grand Avenue,

East

Chicago, IL

60601

P.O. Box

19276

Springfield,

IL

62794-9276

~

for

Petitioner, Wei

)rises