GALLAHER'S SHELL,
Petitioner,
v.
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,
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
12, 2007
GALLAHER'S SHELL
By:
/tt~,
,(/l
,,~>
/'4f!'
.__
~
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 Petitioner Gallaher's Shell
Electronic Filing, Received, Clerk's Office, September 12, 2007
* * * * * PCB 2007-130 * * * * *
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
GALLAHER'S SHELL,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
PCB No. 07-130
)
(LUST Appeal)
)
)
)
PETITION FOR REVIEW
Pursuant to
§§
40 and 57.8(i) of the Environmental Protection Act ("Act"), 415 ILCS
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 Gallaher's Shell
("Gallaher's") submits this Petition for Review of the Illinois Environmental Protection
Agency ("Agency") decision attached hereto
as Exhibit 2 ("Decision") denying Gallaher's
reimbursement for $1,431.88
in costs incurred under the LUST program.
Pursuant to
§
57.8(1) of the Act, Gallaher's further requests the Board to order the
Agency to pay Gallaher'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 8,2007. It was received by Gallaher's May
10,2007. 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 12, 2007
* * * * * PCB 2007-130 * * * * *
III. GROUNDS FOR ApPEAL
A. The Agency's contention that Gallaher's analysis costs "lack supporting
documentation"
is erroneous, arbitrary and capricious. Gallaher's submitted
appropriate documentation, which was ignored by the Agency.
B. The Agency's contention that it cannot determine if the $1,431.88 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 by
the Agency is both illogical and erroneous.
IV. CONCLUSION.
For the foregoing reasons, petitioner Gallaher's Shell respectfully petitions the
Board to reverse the denial
of reimbursement in the amount of $1,431.88 and
order the
Agency to pay Gallaher's attorneys' fees for this appeal.
September 12, 2007
GALLAHER'S SHELL
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 Petitioner Gallaher's Shell
Brenda\USI\Gallaher's/Pet for Review.doc
-2-
Electronic Filing, Received, Clerk's Office, September 12, 2007
* * * * * PCB 2007-130 * * * * *
ILLINOIS POLLUTION CONTROL
BOARD
June 21,2007
GALLAHER'S SHELL,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTIONAGENCY,
.Respondent.
.
.
'QRDEROFTHEBOARP (by
G.T,
Girard):
)
)
)
)
)
)
)
)
)
)
PCB 07-130
(UST Appeal)
(90-Day Extension)
... On June 8,2007, the Board received a joint notice to extend the 35-day period within
whiSh Gallaher's Shell (Gallaher) may appeal a
May 8, 2007 determinationofthe Illinois
EJ."lyir(?RIr1eIlta1 Protection Agency.(Agency) .. According to the
j
oint
notis~,(J-al1ah~r
received the
Agen9YA~te.rrninati()n
on May 10, 2007. The joint request was thereforetiTely filed.See415
ILpS ?140(a)(1) (2006); 35 TIL Adm. CodelO1.3,00(b)(2), 105.406. TheAgeIlcisdeten1linati6n
ccmcelTI.s Gallaher'sleaking underground storage tank site located at 1580M
Ll
lh()11(ind Street in
Hancock COlJllty. In the determination, the Agency accepted Gallaher's
Com~ctive
Action Plan
brit modified the budget.'
. .
.
The Board extends the appeal period until September 12; 2007,
as the parties request,
based on
the May 10, 2007 decision receipt date.
See
415 ILCS 5/40(a)(1) (2006); 35 Ill. Adm.
Code 105.406.
If
Gallaher fails to file an appeal on ot before that date; the Board willdismiss
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
hme 21, 2007, by a vote of 4-0.
r
T
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
Electronic Filing, Received, Clerk's Office, September 12, 2007
* * * * * PCB 2007-130 * * * * *
ILUNOIS ENVIRONMENTAL PROTECTION AGENCY
1021
NORTH
GRANO AVENUE EAST, P.O. Box 19276, SPRINGFIELD, ILLINOIS 62794-9276 - ( 217) 782-3397
JAMES R. THOMPSON CENTER, 100 WEST
RANDOLPH,
SUITE 11-300, CHICAGO, Il60601 - (312) 814-6026
ROD
R.
BLAGOJEVICH, GOVERNOR
DOUGLAS
P. SCOTT,
DIRECTOR
217/782-6762
Gallaher's Shell
Attention: Southwest Bank/Commercial Lending
Attn: JenniferVescogni, Acct. #0032713725
#2 Carlyle Plaza Drive
Belleville, Illinois 62221
MAY 082001
RECEiVED
M~Y
1U7.007
BY:fl/;/C)
~.
CERTIFIED MAIL #
7004 2510 0001 8623 6331
Re:
LPC #0670505005 -- Hancock County
Nauvoo/Gallaher's Shell
1580 Mulholland Street
.Leaking UST Incident No. 20002137
Leaking
ust FISCAL FILE
Dear Mr. Gallaher:
The Illinois EnvironmentalProtection 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.S(a) of the Illinois Environmental Protection Act (Act). and 35
Ill. Adm. Code 732. Subpart F. This information
is
dated December 28,2006 and was received
by the Agency on.January 3,2007. The application for payment covers the period from May I,
2006 to November 11,2006. The amount requested is $9,021.19.
The deductible amount for this claim is $10,000.00, which was previously deducted from the
Invoice Voucher dated September 21,2001. 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 for payment for this claim.
As
a
result ofthe Agency'sreview ofthis application for payment, a voucher for $7,547.46\vin he
prepared for submission to the Comptroller'sOffice 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
win
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.S(i) and Section 40 ofthe 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 written notice
ROCKfORD -,. 4302
North
Main
Street,
Rockford,
IL
61103 - (815) 987-7760 •
DES PlAINES - 9511 W. Harrison St., Des Plaines,
IL
60016 - (84
4000
ELGIN -
595 South State, Elgin, IL 601 23 - (847)608-3131
•
PEORIA - 5415 N. University St., Peoda, IL 61614 - (309) 693-
BUREAU Of LAND - PEORIA -
7620 N. University
St.,
Peoria, Il61614 - (309) 693-5462
•
CHAMPAIGN -
2125 South First Street; Champaign, lL 6
SPRINGfiELD -
4500 S. Sixth Street Rd., Springfield, IL 62706 - (217) 786-6892
•
COLUNSVllLE -
2009 Mall Street, Collinsville,
IL
62234 -
MARION -
2309 W. Main St., Suite 116, Marion, iL 62959 - (618) 993-7200
PRINTED ON
RECYClED
PAPER
Electronic Filing, Received, Clerk's Office, September 12, 2007
* * * * * PCB 2007-130 * * * * *
Page 2
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 oftms decision, must be sent to the
Illinois EPA as soon
as possible.
For information regarding the filing
of an appeal, please contact:
Dorothy
Gunn, Clerk
Illinois Pollution Control Board
State ofIUinois 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 Bambi Redpath of
my staff at
2171782-6762..
.
DEO:BR:bjh\072425.doc
Attachment
cc:
United Science Industries, Inc.
Electronic Filing, Received, Clerk's Office, September 12, 2007
* * * * * PCB 2007-130 * * * * *
Attachment A
Accounting Deductions
Re:
LPC #0670505005
--
Hancock County
Nauvoo/Gallaher's Shell
1580Mulholland Street
Leaking
UST Incident No. 20002137
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
1.
$1,431.88, deduction for costs that lack supporting documentation. Such costs are
;;. ineligible for payment from the Fund pursuant to 35 Ill. Adm. Code 732.606(gg). Since
there
is no supporting documentation ofcosts, the Illmois EPA cannot determine that
costs will
not be used for activities in excess ofthose necessary to meet the minimum
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.
Need lab invoices for analytical costs.
2.
$41.85, 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
m.
AdiTI. Code 732.601(g) and
732.606(m).
Drilling
&
Monitoring Well costs are over the approved budget.
DEO:BR:bjh\072426.doc
Electronic Filing, Received, Clerk's Office, September 12, 2007
* * * * * PCB 2007-130 * * * * *
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 postage 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
12, 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 Gallaher's Shell
sara\wpdocs\USI-Gallahers\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 12, 2007
* * * * * PCB 2007-130 * * * * *
