BEFORE THE ILLINOIS POLLUTION

OF THE

YESLEY SERVICE CO., INC.,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB No.

)

(LUST Appeal)

)

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,

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

11, 2007

YESLEY SERVICE CO., INC.

By:

~-J

I-t~

Mandy L. C6mbs

One of its Attorneys

John

Hundley

Mandy L. Combs

THE SHARP LAW FIRM, P.C.

P.O. Box

906 - 1115

Harrison

Mt. Vernon,

62864

618-242-0246

Counsel for Petitioner Yesley Service

Co.,

Inc.

Electronic Filing, Received, Clerk's Office, September 11, 2007

* * * * * PCB 2007-129 * * * * *

YESLEY SERVICE CO., INC.,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB No. 07-129

)

(LUST Appeal)

)

Pursuant to

§§

40 and 57.8(i) of the Environmental Protection Act ("Act"), 4151LCS

5/40,

5/57.8(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 Yesley Service Co., Inc. ("Yesley")

submits this Petition for Review

of the Illinois Environmental Protection Agency ("Agency")

decision attached hereto as Exhibit 2 ("Decision") denying Yesley reimbursement for $680.00

in costs incurred under the LUST program.

Pursuant to

57.8(1) of the Act, Yesley further requests the Board to order the Agency to

pay Yesley's legal costs for seeking payment in this appeaL

The Decision of which review is sought is contained in Exhibit 2 hereto.

II.

The Decision indicates it was mailed May 7, 2007. It was received by Yesley May 8,

2007. 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 11, 2007

* * * * * PCB 2007-129 * * * * *

III.

A. The Agency's contention that Yesley's analysis costs "lack supporting

documentation"

is erroneous, arbitrary and capricious.

Yesley submitted

appropriate documentation, which was ignored

by the Agency.

B. The Agency's contention that it cannot determine if the $680.00 for

analysis 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

the Agency is both illogical and erroneous.

IV. CONCLUSION.

For the foregoing reasons, petitioner Yesley Service Co., Inc. respectfully

petitions the Board to reverse the denial of reimbursement

in the amount of

$680.00 and order the Agency to pay Yesley's attorneys' fees for this appeal.

September

11, 2007

YESLEY SERVICE CO., INC.

By:

~~{--_c

____

One of its Attorneys

John T. Hundley

Mandy

Combs

THE SHARP LAW FIRM, P.C.

P.O. Box 906 - 1115 Harrison

Mt. Vernon, IL 62864

618-242-0246

Counsel for Petitioner Yesley Service Co., Inc.

MandyCombs\USI\Yesley/Pet for Review.wpd

-2-

Electronic Filing, Received, Clerk's Office, September 11, 2007

* * * * * PCB 2007-129 * * * * *

ILLINOIS POLLUTION CONTROL BOARD

June

21,2007

YESLEY SERVICE COMPANY, INC.,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD (by G.T. Girard):

)

PCB 07-129

(UST Appeal)

(90-Day Extension)

On June 8, 2007, the Board received a joint notice to extend the 35-day period within

which Yesley Service

Company (Yesley) may appeal a May 7, 2007 determination of the Illinois

Environmental Protection

Agency (Agency). According to the joint notice, Yesley received the

Agency determination

on May 9,2007. 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 Yesley's leaking underground storage tank site located at 106 East

BroadwaY~.

Randolph County. In the determination, the Agency accepted Yesley's Corrective Action Plan

but modified the budget.

.--;;t7

if.d

(}X

V\ t

The Board extends the appeal period until September 11, 2007, as the parties request,

based

on the May 9,2007 decision receipt date.

See

415 ILCS 5/40(a)(l) (2006); 35 Ill. Adm.

Code 105.406.

If Yesley fails to file an appeal on or before that date, the Board will dismiss this

case and close the docket.

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.

...........

I•

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board

Electronic Filing, Received, Clerk's Office, September 11, 2007

* * * * * PCB 2007-129 * * * * *

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.

BlAGOJEV1CH, GOVERNOR

DOUGLAS

SCOlT,

DIRECTOR

217/782-6762

MAY 0

72001

RECEIVED

MAY 0

Zun7

BY:

67/49

CERTIFIED MAIL #

7004 2510 0001 8623 6355

Yesley Service Company'

Attn: Ron Yesley c/o Jennifer Vescogni

Southwest Bank:, Acct. #0032713725

#2 Carlyle Plaza Drive

Belleville, Illinois 62221

Re:

LPC #1570650001-- Randolph County

SteelvillelYesley Service Company

106

East Broadway

Leaking

US! Incident No. 922175

Leaking USTFISCAL FILE

Dear Mr. Yesley:

The Illinois Environmental Protection Agency

has

completed the review ofyour application for

payment from the Underground Storage Tank Fund for the above-referenced Leaking

UST

incident pursuant to Section 57.8(a) ofthe Illinois Environmental Protection Act (Act), and 35

Ill. Adm. Code 732, Subpart F. This infonnation is dated December 12, 2006 and

was received

by the Agency on December 14,2006. The application for payment covers the period from May

1,2006 to October 30,2006. The amount requested is $73,344.28.

The deductible amount for this claim is $10,000.00, which was previously deducted from the

billing submittal received by the Agency on September 1, 1995 for $23,141.85. 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 being paid.

On December 14, 2006, tI:e Agenc,Y

recei.ve~

your application for payment for this

cIaj~.

As a

result

ofthe Agency's reVIew ofthis applIcation for payment, a voucher for $72,485.1VVviIl be

prepared for submission to the Comptroller'sOffice for payment as funds become

av~lable

based upon the date the Agency received your complete request for payment of this 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'sfinal action with regard to the above

application(s) for payment.

ROCKfORD

-4302

North Main

Street,

Rockford, n. 61103 -

(815) 987-7760 •

DES PLAINES -

9511

W. Harrison

St.,

De.s Plaines,

It 60016 - (847) 294-4000

ELGIN -

595

South State, Elgin, IL 60123 -

(847).608-3131 •

PEORIA-

5415

N. University St., Peoria, IL

61614 -(309) 693-5463

BUllfAU Of

LAND

- PEORIA -

7620

N. University St., Peoria, IL

61614 - (309) 693-5462 •

CHA.IvIPAIGN -

2125 South

First Street, Champaign, It

61820 - (21 7) 278-5800

$PRINGFIELD-

4500

S. Sixth Street Rd., Springfield, Il62706 - (217) 786-6892 •

COlliNSVIllE -

2009

MaU Street, Collin'sville, IL

62234 -

(618)

346-5120

MARlON -

2309

W. Main St., Suite 116, Marion,

62959 - (618)

993-7200

PRfNTED ON RECYCLED PAPER

Electronic Filing, Received, Clerk's Office, September 11, 2007

* * * * * PCB 2007-129 * * * * *

Page 2

An underground storage tank owner or operator may appeal this final decision to the lllinois

Pollution Control Board (Board) pursuant to Section 57.8(i) and Section 40

oithe Act by filing a

petition for a hearing within 35 days after the date

ofissuance of the final decision. However,

the 35-day period

may be extended for a period oftime not to exceed 90 days by \Vritten 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 fimil decision was received, along with a copy

of this decision, must be sent to the

Illinois EPA as soon as possible.

For infonnation 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

ofan extension, please contact:

Illinois Environmental Protection Agency

Division

ofLegal Counsel

1021 North Grand Avenue East

Springfield, Illinois 62794-9276

217/782-5544

you have any questions or reqnire further assistance, please contact Doug Tolan of my

staff at 217/782-6762.

DEO:DMT:mls\072426.doc

Attachment

cc:

United Science Industries

Electronic Filing, Received, Clerk's Office, September 11, 2007

* * * * * PCB 2007-129 * * * * *

Attachment A

Accounting Deductions

Re:

LPC #1570650001 -- Randolph County

SteelvilleNesley Service Company

106

East Broadway

Leaking UST Incident No. 922175

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

ofDeductions

~'$6-~O.OO,

deduction for costs that lack supporting documentation. Such costs are

ineligible for payment from the Fund pursilant to 35 Ill. Adm. Code. 732.606(gg). Since

there

is no supporting documentation ofcosts, the Illinois EPA cannot determine that

costs will

not be used for activities in excess ofthose necessary to meet the minimum

requirements ofTitle XVI bfllie Act; therefore, suchcosts 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 of Title XVI ofllie Act.

Analysis Costs - No Invoices

$18.96, deduction for costs that lack supporting documentation. Such costs are ineligible

fQtPayment from the Fund pursuant to 35 Ill. Adm. Code 732.606(gg). Since there is no

supporting documentation of costs, the Illinois EPA cannot determine that costs will not

be used for activities

excess ofthose necessary to meet the ririnimum requirements of

Title XVI of the 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 ofthe Act.

Deduction for corrective action costs that are not reasonable as submitted. Such costs are

ineligible for payment from the Food pursuant to Section 57.7(c)(4)(C)

ofthe Act and 35

. Ill. Adm. Code 732.606(hh).

Deduction for costs associated with high priority 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)

ofllie

Act and 35 Ill. Adm. Code 732.601(g) and 732.606(m).

./ a.

Analysis Costs - 8 BTEX x $87.37 Each

$698.96; the cost approved in the High

Priority Budget

$85.00 Each; $2.37 Each x 8 BTEX =$18.96.

----------

--------~

Electronic Filing, Received, Clerk's Office, September 11, 2007

* * * * * PCB 2007-129 * * * * *

Page 2

$160.20, deduction for costs associated

with high priority corrective action. The billings

submitted exceed the approved budget amounts. The lllinois 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).

Personnel Costs - Beyond the

High Priority Budget

regard to the itemized

costs being adjusted above

those

the approved budget

$98.63:

/P,E. = $1301hr; approved @ $115/hr; $15/hr x 0.5

hr =

$7.50

v-Tech

$61.64/hr; approved

$60/hr; $1.64/hr x 38.5 hrs =$63.14

-- •.<,/

...-Engineer n=$87.36!hr; approved @$851hr; $2.36/hrx 2.5 hrs

=$5.90

/. AC. Tech

ill

= $46.241hr; approved @ $45/hr; $1.24/hr x 1.75 hrs =$2.17

....-scientist

n =

$66.801hr; approved@ $65/hr; $1.8O/hr x 8 hrs

$14.40

vDraftsman

=$56.521hr; approved

$551hr; $1.52/hr x 2 hrs = $3.04

;/Sr. Admin. Asst.

$46.241hr; approved @ $45/hr; $1.241hr x 2 hrs

$2.48

Equipment Costs - Beyond the

HP Budget in regard to the itemized costs being

adjusted above those

the approved budget

$26.66:/

VVehicle = $61.64/day; approved @ $60/day; $1.64/day x 3.5 days

$5.74

"'-Camera

$1O.28/day; approved @ $10/day; $O.28/day x 4 days

$1.12

",PID

$107.92/day; approved @ $lOO/day; $7.92/day x 2.5 days =$19.80

Field purchases and Other Costs - Beyond the

HP budget in regard to the

itemized costs being adjusted

above those

the approved bUdget:

./VOA samp.lpres. Kit = $10.57 each; approved

@$1O each; $0.57 x 8

$4.56

"'--Samp. Ship. =$51.40; approved @$50 each; $1.40 each x 2 each =$2.80

Clean Backfill = $20.06/CY;approved @

$20/CY;

$0.06 x

459.0SICY= $27.55

DMT/mIs/072427.doc

Electronic Filing, Received, Clerk's Office, September 11, 2007

* * * * * PCB 2007-129 * * * * *

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

& Main Streets in Mt. Vernon, Illinois, before 6:00 p.m. this

date,

in sealed envelopes with proper first-class postage affixed, addressed to:

Dorothy

M. Gunn, Clerk

Illinois Pollution Control Board

James

Thompson Center

100

West Randolph Street

Suite 11-500

Chicago, IL 60601

September 11, 2007

John

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 Yesley Service Co., Inc.

saraIwpdocslUSI-YesleylNotice.wpd

William D. Ingersoll

Managing Attorney

III.

Environmental Protection Agency

1021 North Grand Ave. East

Springfield, IL 62702

Mandy

L. Combs

Electronic Filing, Received, Clerk's Office, September 11, 2007

* * * * * PCB 2007-129 * * * * *