BEFORE
ILLINOIS POLLUTION CONTROL BOARD
OF THE
iLLINOIS
PIONEER OIL COMPANY,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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) PCBNo. __
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(LUST Appeal)
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NOTiCE OF FILING
To:
Dorothy
M. Gunn, Clerk
Illinois Pollution Control Board
James
R. Thompson Center
100
West Randolph Street
Suite 11-500
Chicago,
IL 60601
William
D. Ingersoll
Managing Attorney
III.
Environmental Protection Agency
1021 North Grand Ave. East
Springfield, IL 62702
PLEASE TAKE NOTICE that we have this day filed with the office
of the
Clerk
of the Pollution Control Board the
Petition for Review
a copy of which is
enclosed herewith and hereby served upon you.
September
7, 2007
PIONEER OIL COMPANY
One
of its Attorneys
John
1.
Hundley
Mandy
L.
Combs
THE SHARP LAW FIRM, P.C.
P.O. Box 906 - 1115 Harrison
Mt. Vernon, IL 62864
618-242-0246
Counsel for Petitioner Pioneer Oil Company
Electronic Filing, Received, Clerk's Office, September 7, 2007
* * * * * PCB 2007-127 * * * * *
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
PIONEER OIL COMPANY,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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)
)
)
PCB No. 07-127
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(LUST Appeal)
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PETITION FOR REVIEW
Pursuant to
§§
40 and 57.S(i) of the Environmental Protection Act ("Act"), 415
ILCS 5/40, 5/57.S(i), to the Board's regulations on Leaking Underground Storage
Tank ("LUST") decisions, 35
ILL. ADM. CODE 105.400
et seq.,
and to the Board's
Order entered June 21, 2007 a copy
of which is attached hereto as Exhibit 1,
petitioner Pioneer Oil Company ("Pioneer") submits this Petition for Review of the
Illinois Environmental Protection Agency ("Agency") decision attached hereto as
Exhibit 2 ("Decision") denying Pioneer reimbursement for $1,656.9S
in costs
incurred under the LUST program.
Pursuant to
§
57.S(I) of the Act, Pioneer further requests the Board to order the
Agency to pay Pioneer's legal costs for seeking payment
in this appeal.
I.
THE AGENCY'S FINAL DECISION
The Decision of which review is sought is contained in Exhibit 2 hereto.
II. SERVICE OF THE AGENCY'S FINAL DECISION
The Decision indicates it was mailed May 3,2007. It was received by Pioneer
May
7,2007 and this appeal is timely pursuant to the Board's Order entered June
21, 2007 a copy
of which is attached as Exhibit 1.
Electronic Filing, Received, Clerk's Office, September 7, 2007
* * * * * PCB 2007-127 * * * * *
m. GROUNDS FOR ApPEAL
A.
The Agency's contention that Pioneer's analysis costs and shipping costs
"lack supporting documentation"
is erroneous, arbitrary and capricious. 35111. Adm.
Code 732.601(b)(9) and 734.605(b)(9) state that a complete application for
payment consists of "an accounting of costs, including but not limited
to, invoices,
receipts, and supporting documentation showing the dates and descriptions of the
work performed." Pioneer submitted appropriate documentation, which was
ignored by the Agency.
B. The Agency's contention that it cannot determine if the $1,554.18 for
analysis costs and $102.80 for shipping costs will be used for "corrective action
activities
in excess of those required to meet the minimum requirements of Title
XVI of the Act"
is erroneous, arbitrary and capricious. The application at issue was
not for a budget but for reimbursement. The activities already have been
performed and the conjecture by the Agency
is both illogical and erroneous.
IV.
CONCLUSION.
For the foregoing reasons, petitioner Pioneer Oil Company respectfully
petitions the Board to reverse the denial of reimbursement
in the amount of
$1,656.98 and order the Agency to pay Pioneer's attorneys' fees for this appeal.
September
6,2007
PIONEER OIL COMPANY
By:
(',
~._A\
One of its Attorneys
-2-
Electronic Filing, Received, Clerk's Office, September 7, 2007
* * * * * PCB 2007-127 * * * * *
John
1.
Hundley
Mandy
L. Combs
THE SHARP
LAW FIRM, P.C.
P.O. Box 906 - 1115 Harrison
Mt. Vernon, IL 62864
618-242-0246
Counsel for Petitioner Pioneer Oil Company
MandyCombs\USI\Pioneer\Pet for Review.wpd
-3-
Electronic Filing, Received, Clerk's Office, September 7, 2007
* * * * * PCB 2007-127 * * * * *
ILLINOIS POLLUTION CONTROL BOARD
June 21,2007
PIONEER OIL COMPANY,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD (by G.T. Girard):
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PCB 07-127
(UST Appeal)
(90-Day Extension)
On June
6, 2007, the Board received a joint notice to extend the 35-day period within
which Pioneer Oil Company (Pioneer) may appeal a May
3, 2007 determination of the Illinois
Environmental Protection Agency (Agency). According to the joint notice, Pioneer received the
Agency determination on May 5, 2007. The joint request was therefore timely filed.
See 415
ILCS 5/40(a)(1) (2006); 35 Ill. Adm. Code 101.300(b)(2), 105.406. The Agency's determination
concerns Pioneer's leaking underground storage tank site located at 9093 Illinois Route 127 in
Montgomery County. In the determination, the Agency accepted Pioneer's Corrective Action
Plan but modified the budget.
.
(1
A
~
Al
~
C'< LJ'-
v~
The Board extends the appeal period until\eptekber 7,2007, as the
es request,
based on the May 5,2007 decision receipt date.
See
415 ILCS 5/40(a)(1) (2006); 35 Ill. Adm.
Code 105.406.
If Pioneer fails to file an appeal on or before that date, the Board will dismiss this
case and close the docket.
IT IS SO ORDERED.
I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the Board adopted the above order on June 21,2007, by a vote
of 4-0.
John
T. Therriault, Assistant Clerk
Illinois Pollution Control Board
Electronic Filing, Received, Clerk's Office, September 7, 2007
* * * * * PCB 2007-127 * * * * *
ILUNOIS ENVIRONMENTAL PROTECTION AGENCY
1021
NORTH GRAND AVENUE EAST,
P.O. Box 19276,
SPRINGFIELD, ILLINOIS
62794-9276 - ( 21-7) 782-3397
J""""ES
R.
THOMPSON CENTER,
100
WEST RANDOLPH, SUITE
11-300,
CHICAGO,
IL 60601 - (31 2) 814-6026
ROD R. BLAGOJEVICH, GOVERNOR
DOUGLAS
P. SCOTT,
DIRECTOR
217/782-6762
MAY 0 3 2007
RECEIVED
MAY 0 72007
BY:--.-
_
CERTIFIED MAIL #
7004 2510 0001 8623 9202
Pioneer Oil Company
Attn: Southwest Bank-Acct. #0032713725
#2 Carlyle Plaza Drive
Belleville, Illinois 62221
Re:
LPC #1350655005
--
Montgomery County
Taylor Springs/O'Guinn'sService
9093 Il1inois Route 127
Leaking UST Incident No. 991616
Leaking UST FISCAL
FILE
Dear Mr. Tompkins:
The Illinois Environme.ntalProtection Agency has completed the review
of your application for
payment from the Underground Storage Tank Fund for
the above-referenced Leaking UST
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 December
8, 2006 .and was received by
the Agency on January 3, 2007. The application for payment covers the period from January 1,
2006 to November 11,2006. The amount requested is $9,520.36.
.
The deductible amount for this claim is $10,000.00, which was previously deducted from the
Invoice Voucher dated April 14, 2000. Listed in Attachment A are the costs which are not being
paid and the reasons these costs are not being paid.
On January 3,2007, the Agency received your application foipayment for this claim. As a
result
of the Agency's review of this application for payment, a voucher for $4,689.47 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 been/are submitted
will be
processed based upon the date complete subsequent application for payment requests are
received by the Agency. 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 Board (Board) pursuant to Section 57.8(i) and Section
40 ofthe Act by filing a
petition for a hearing within 35 days after the date
of issuance of the final decision. However,
ROCKFORD ,- 4302 North Main Street, Rockford, IL 61103 - (815) 987-7760
•
DES PLAINES - 9511 W. Harrison St, Des Plaines, IL 60016 - (847) 294-4000
ELGIN - S95 South State, Elgin, IL 60123 - (847)608-3131
•
PEORIA - 5415 N. University St., Peoria, IL 61614 - (309) 693-5463 .
BUREAU OF LAND - PEORIA - 7620 N. University St, Peoria, IL 61614 - (309) 693-5462
•
CHAMPAIGN - 2125 South First Street, Champaign, IL 61820 - (217) 278-5800
SPRINGFIELD - 4500 S. .Sixth Street Rd., Springfield, IL 62706 - (217) 786-6892
e
COlLINSVILLE - 2009 Mall Street, Collinsville, IL 62234 - (618) 34&-5120
MARION - 2309 W. Main St., Suite 116, Marion, IL 62959 - (618) 993-7200
PRINTED ON RECYCLED PAPER
Electronic Filing, Received, Clerk's Office, September 7, 2007
* * * * * PCB 2007-127 * * * * *
Page 2
the 35-day period may be extended for a
periodoftimenot 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 ofthe
date the final decision was received, along with a copy
of this decision, must be sent to the
Illinois
EPA as soon as possjble.
~.
For information regarding the filing of an appeal, please contact:,
Dorothy Gunn, Clerk
Illinois Pollution Control Board
State
ofIllinois Center
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
312/814-3620
For information regarding the filing
of an extension, please contact:
Illinois Environmental Protection Agency
,Division
ofLegal Counsel
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
217/782-5544
If
you have any questions or require further assistance, please contact Catherine S. Elston
of my staff at 217/782-6762.
'
~%£
D:
1
E.
Oakley, Manager
Le=UST Claims Unit
Planning
&
Reporting Section
Bureau
of Land '
DEO:CSE:m1s\07242l.doc
Attachment
cc:
United Science Industries
Electronic Filing, Received, Clerk's Office, September 7, 2007
* * * * * PCB 2007-127 * * * * *
Attachment A
Accounting Deductions
Re:
LPC #1350655005 -- Montgomery County
Taylor Springs/O'Guinn'sS.ervice
9093 Illinois Route 127
Leaking
UST Incident No. 991616
Leaking UST FISCAL FILE
Citations in this attachment are from the Environmental Protection Act (Act) in effect prior to
June 24,2002, and
35 Illinois Administrative Code (35 Ill. Adm. Code).
Item #
Description ofDeouctlons
1.
$2,850.29, deduction for costs associated with free product removal, site investigation or
corrective action. The billings submitted exceed the approved budget amounts. The
Illinois EPA is unable to approve billings that exceed the approved budget amounts
pursuant to Section 57.8(a)(1)
ofthe Act and 35 Ill. Adm. Code 732.601(g) and
732.606(m).
Investigation costs exceeded the approved budget - $2,696.87.
v
Handling charges exceeded the approved budget - $118.66. v'
Personnel costs for Senior Technician, Scientist II and Administrative Assistant billed at
higher rate than approved in thebudget - $34.76.
I
2.
$1,656.98, deduction for costs that lack supporting documentation. Such costs are
ineligible fOf payment from the Fund pursuant to 35 Ill. Adm. Code 732.606(gg). Since
there is no supporting documentation
ofcosts, the Illinois EPA cannot detefmine that
costs will not be used for activities in excess
ofthose necessary to meet the minimum
requirements
ofTitle XVI ofthe Act; therefore, such costs are not approved pursuant to
Section 57.7(c)(4)(C) ofthe Act because they may be used for corrective action activities
in excess
ofthose required to meet the minimum requirements ofTitle XVI of the Act.
Analysis costs do not have invoices from Teklab and Holcomb Foundation Engineering
Company stating the amounts paid for analysis costs - $1,554.18.
-/
.
Field Purchases do not have invoices for sample shipping - $102.80. /
3.
$323.62, adjustment in the handling charges due to the deduction(s) of ineligible costs.
Such costs are ineligible for payment from the Fund pursuantto Section 57.S(f) of the
Act and 35
m.
Adm. Code 732.607.
Handling charges on ineligible investigation costs.
CSE:mls/072422.doc
Electronic Filing, Received, Clerk's Office, September 7, 2007
* * * * * PCB 2007-127 * * * * *
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that I caused copies of the
foregoing
document to be served by placement in the United States Post Office
Mail Box at 14
th
& Main Streets in Mt. Vernon, Illinois, before 6:00 p.m. this
date, in sealed envelopes with proper first-class postag.e affixed, addressed to:
Dorothy
M. Gunn, Clerk
Illinois Pollution Control Board
James
R.
Thompson Center
100
West Randolph Street
Suite 11-500
Chicago, IL 60601
September
7, 2007
John
T.
Hundley
Mandy
L. Combs
THE SHARP
LAW FIRM, P.C.
P.O. Box 906 - 1115 Harrison
Mt. Vernon, IL 62864
618-242-0246
Counsel for Pioneer Oil Company
sara\wpdocs\USI-Pioneer\Notice.wpd
William D. Ingersoll
Managing Attorney
III. Environmental Protection Agency
1021 North Grand Ave. East
Springfield, IL 62702
Electronic Filing, Received, Clerk's Office, September 7, 2007
* * * * * PCB 2007-127 * * * * *
