endy Mjle
or Richmond Breslin LLP
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK'S
OFFICE
Interstate Oil, Inc.,
with respect
to NPDES Permit IL0072702
Petitioner
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent
DEC 1 7 2007
STATE OF
ILLINOIS
Pollution
Control
Board
NOTICE OF FILING
TO: Alec Messina, Chief Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
CC: Connie Tonsor
Managing Attorney Water Programs, at Mail Code 21
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276, Mail Code 21
Springfield, Illinois 62794-9276
PLEASE TAKE NOTICE that I have today filed with the Office of the
Clerk of the Illinois Pollution Control Board, the attached PETITION FOR APPEAL OF
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY DETERMINATION
REGARDING NPDES PERMIT IL0072702.
Date: December 13, 2007
Kendy M. Hess
RICHMOND BRESLIN LLP
2273 Canyon Boulevard
Boulder, CO 80302
(303) 442-0311
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK
'
S OFFICE
DEC 1 7 2007
Interstate Oil, Inc., with respect
STATE OF
ILLINOIS
to NPDES Permit IL0072702
)
In,
Pollution Control
Board
Petitioner
)
v.
ILLINOIS ENVIRONMENTAL )
C6e.-Cb
PROTECTION AGENCY,
)
Respondent
PETITION FOR APPEAL OF ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY DETERMINATION REGARDING
NPDES PERMIT IL0072702
Petitioner, Interstate Oil, Inc. hereby submits this Petition For Appeal of
the Illinois Environmental Protection Agency Determination Regarding NPDES Permit
IL0072702 ("Permit") and Hearing to appeal the Illinois Environmental Protection
Agency's ("Agency") final determination that Petitioner owes certain fees in connection
with the Permit. This Petition is submitted pursuant to 415 ILCS 5/12.5(b) and 35 Ill.
Admin. Code §105.100
et seq.
Petitioner requests that the Board find that (a) the Agency
failed to give proper notice to Petitioner of the fees associated with the Permit, in direct
violation of 415 ILCS 5/12.5(b), (b) that Petitioner was harmed by this failure to give
notice, and (c) that Petitioner is therefore not liable for said fees, and hold a hearing with
respect to the issues discussed in this Petition.
I.
Procedural History
Petitioner initially obtained the Permit for use at 312 East Jefferson Street
in Shorewood, Illinois. Petitioner made no use of the Permit, and it expired on April 30,
Printed on recycled paper.
2003. Petitioner submitted an application for renewal of the Permit on April 29, 2003
(partial copy attached hereto as Attachment 1). In the application, Petitioner provided its
current address and identified Petitioner's consultant, Pioneer Engineering and
Environmental Services ("Pioneer"), as the primary contact for all correspondence with
respect to the Permit. Both Petitioner and Pioneer then received from the Agency a July
22, 2005 notice regarding the public fact sheet for the permit application, an August 22,
2005 copy of the draft permit, and a September 28, 2005 copy of the approved permit at
their respective addresses as identified in the Permit application.
Illinois law (415 ILCS 5/12.5(b)) expressly stipulates that the Agency
"shall send a fee notice by mail to each existing permittee subject to a fee under this
Section at his or her address of record" –
i.e.
at the address identified in the permit
application. None of the Agency's correspondence with Petitioner or with Pioneer
regarding the Permit made any mention of fees.
In February 2007 the Agency sent a fee notice to the current owner of the
Shorewood property, BP, and BP forwarded it to Petitioner in March 2007. This was the
first notice that Petitioner received of the fees associated with the Permit: a demand for
$50,507.20 (inclusive of penalties for non-payment of earlier invoices). It was at this
point that Petitioner discovered that the Agency had been sending fee notices associated
with the Permit to an old address for Petitioner, rather than using either the address
identified in the Permit application or the address for Pioneer, whom Petitioner had
designated as the primary point of contact for all matters related to the Permit. Petitioner
promptly contacted the Agency to inform the Agency of its correct address, only to
2
discover that the Agency already had the correct address on file (but for a minor error in
suite number) (see Attachment 2).
Petitioner filed an official protest with the Agency on August 23, 2007,
citing both (1) the lack of notice to itself and its designated point of contact, and (2)
inappropriate invoicing for 2004, 2005, and a portion of 2006, during which time
Petitioner was not in possession of a valid permit (copy attached hereto as Attachment 3).
The Agency issued an October 24, 2007 letter designated as its "final action" (copy
attached hereto as Attachment 4). In this letter, the Agency acknowledged that it had
inappropriately invoiced Petitioner for those time periods and reduced its demand to
$38,750.00. The Agency did not acknowledge its failure to notify, and made no
concession on those grounds. On November 20, 2007 the Agency granted Petitioner's
request to extend the time available to Petitioner for appeal, so that Petitioner and Agency
could attempt to settle without filing. The Agency issued its second "final action"
denying Petitioner's protest on December 12, 2007.
The Agency's failure to provide notice to Petitioner is in direct violation
of 415 ILCS 5/12.5(b) and harmed Petitioner by denying Petitioner the opportunity to
terminate the Permit and avoid incurring the fees. Consequently, Petitioner is submitting
this timely Petition for Hearing and Appeal of that portion of the Agency's determination.
II.?
Grounds for Appeal
The grounds for appeal in this matter are quite simple. The Agency has a
statutory obligation to notify permittees of the fees associated with their permits. The
Agency failed to provide this notice to Petitioner or Pioneer (Petitioner's designated point
of contact) despite repeated correspondence with Petitioner and Pioneer regarding other
3
matters associated with the Permit. The Agency's failure to notify Petitioner of the fees
harmed Petitioner: Petitioner has made no use of the Permit, and would have
immediately terminated the Permit if the Agency had fulfilled its obligation to notify
Petitioner of the fees that would be incurred. The Agency's failure to fulfill its obligation
denied the Petitioner this opportunity. The Agency then exacerbated the harm by failing
to use either the address Petitioner provided in its permit application or the address
Petitioner provided for Pioneer for invoicing, despite the Agency's continued use of both
those addresses for other correspondence. As a result, Petitioner incurred three years
worth of fees, plus interest and penalties, before ever having the opportunity to address
the issue.
The Agency does not deny that it failed to notify Petitioner regarding the
fees, in violation of 415 ILCS 5/12.5(b). Instead, the Agency has taken the position that
it is not responsible for the harm to Petitioner because Petitioner did not notify the
Agency of a change in Petitioner's address. However, Petitioner did in fact notify the
Agency of its new address in 2003, as evidenced by the Permit application itself and the
Agency's continued and successful use of that address. There has been no significant
change to Petitioner's address since that time — only a change of suites. The Agency
acknowledged in a November 30, 2007 email that this was not a significant change to
Petitioner's address, and it has had no effect on the Agency's ability to contact Petitioner.
Again, the Agency has made consistent and effective use of Petitioner's address in all
matters unrelated to the fees.
4
III. Conclusion and Prayer for Relief
The Agency's failure to fulfill its statutory obligation to notify Petitioner
of the fees associated with the Permit harmed Petitioner by denying Petitioner the
opportunity to avoid incurring the fees by simply terminating the Permit, which Petitioner
was not using. Similarly, the Agency's use of a defunct address for invoices associated
with the Permit, instead of the current address used for all other correspondence,
exacerbated the harm by causing Petitioner to accumulate three years worth of fees and
penalties with no opportunity to avoid them by terminating the Permit.
WHEREFORE, for the foregoing reasons and the reasons set forth in
correspondence with the Agency, the Petitioner respectfully petitions the Board for a
hearing to address the issues raised in this Appeal or to find that the Agency's
determination was in error and that Petitioner has no obligation to pay the $38,750.00
fees that it incurred without its knowledge or consent. Alternatively, as of summer 2007
the Agency's website regarding NPDES fees (httn://www.epa.state.il.us/fees/npdes.html)
provided that "[if] the termination request is received after July
1
[2003], but the permit
holder can demonstrate that the discharge had ceased prior to that date, they are not liable
for the fee." The website has since been altered, but this was the Agency's public
position at the time of Petitioner's protest. As there has been no discharge since July 1,
2003 (or indeed, ever), Petitioner respectfully requests that it be allowed to terminate the
Permit and be absolved of any obligation with respect to these charges.
5
Respectfully submitted,
Interstate Oil, Inc. with respect to
NPDES Permit IL0072702
By:
Kendy M. Hess
RICHMOND BRESLIN LLP
2273 Canyon Boulevard
Boulder, CO 80302
(303) 442-0311
6
ATTACHMENT 1
April 29, 2003 Application for Permit Renewal
(partial copy)
PI NEER
Engineering Sz
Environmental
Services, Inc.
Mt North Sacramento Boulevard, Suite 101 • Chicago, Illinois 60612
312.587.1021 • Fax: 312.587.8210
www.pioneerenvironrnental.com
April 29, 2003
Illinois Environmental Protection Agency
Division of Water Pollution Control
Permit Section
1021 North Grand Ave. East
P.O. Box 19276
Springfield, IL 62794-9276
Attn: Rick Pinneo
RE: NPDES Permit Renewal Application
NPDES Permit No. IL0072702
Former Gas Center (Interstate Oil)
312 East Jefferson Street
Shorewood, Illinois
Pioneer Project No. 97760B
Dear Mr. Pinneo:
Pioneer Engineering & Environmental Services, Inc. (Pioneer) is providing the attached NPDES
permit forms (US EPA Forms 1 and 2C) in order to renew NPDES Permit No. IL0072702. A
dual-phase extraction system was proposed to the Illinois EPA's Leaking Underground Storage
Tank (LUST) Section and approved to remediate petroleum-impacted soil, bedrock, and
groundwater associated with two LUST incidents (#930099 and #971400). However, due to
redevelopment plans, the full system has not been installed to date. The impacted groundwater
(outfall 001) that will be recovered will be treated by air stripping and will be discharged to the
Dupage River via an
IDOT storm sewer. Please note that a brief pilot study (one day — March 8,
1999)) was conducted, and Pioneer did not collect samples of the recovered water during the
pilot test. Therefore, information regarding pollutant concentrations was either not available (oils
and grease and lead) for inclusion in the attached applications or were estimations based on
modeling results of the air stripper performance (benzene, toluene, ethylbenzene, and total
Je e T. McClelland, P.E.
Senior Project Manager
isa A. Bongi
ti
ni,
?
P.E.
Project Manager
NPDES Permit Renewal Application
NPDES Permit No. 10072702
Former Gas Center (Interstate Oil)
312 East Jefferson Street
Shorewood, Illinois
Pioneer Project No. 97760B
April 29, 2003
Page 2 of 2
xylenes). The air stripper design information and modeling results are provided as an attachment
to the permit forms.
Please note that Pioneer performs all current NPDES DMR reporting on behalf of the
owner/operator and documentation regarding this permit renewal should also be directed to
Pioneer at the address listed above.
Pioneer appreciates your time with this matter and please contact me at (312) 587-1021 with any
questions or comments.
Sincerely,
PIONEER ENGINEERING & ENVIRONMENTAL SERVICES, INC.
Attachments
Please prirt o
r ty
pe in U t unshaded areas only
(fill—in areas
are ipaced for elite
?
e i.e. 12 characters/inch
Form Approved.
OMB No. 2040-0086
Approval expires
7-31-88
FORM
u.s.
ENVIRONMENTAL PROTECTION AGENCY
GENERAL INFORMATION
I. EPA?
NUMBER
?
IL
?
1.--...
•
IIIII
^
.
GENERAL
%,•EPA?
Consolidated Permits Program
(Read the "General Instructions" before starling.)
P
1
970955023
D
•
LAO
•
GENERAL INSTRUCTIONS
\
LCD..
L ICESK
EPA I.D. NUMBER
it in
a preprinted
the
designated
label
space.
has been
Review
provided,
the inform-affix
s ion carefully; if any of it is incorrect, cross
through it and enter the correct data in the
appropriate fill—in area below. Al,
so
if
?
of
the preprinted data is absent
(the area
to
y
the
V.
MAI
ACI
?
ING
ITT
ADDRES
?
•
•?
•?
.
left
drat
of
should
the label
appear),
space
please
lists
provide
the information
It
In the
complete
Praiser fill—in
and correct,
emits)
below.
you
need
If
not
the
complete
label is
\ \\Ns\
Items I, III. V. and VI
(except VI-B Mach
VI.
LOCATION
rani! st y
must
the
Items
?
instructions
be
if no
completed
label
?
has
for
reconnect).
?
been
detailedProvided. ?
Item
Complete
?
Refer
descrip-allto
L \
k
tions and for the legal authorizations under
which
this
data is collected.
II. PO L L UTANT CHARACTERISTICS
...?
.
-?4_,
INSTRUCTIONS:
?
Complete A through J to determine whether
you need to submit any permit application forms to the EPA If you answer "yes" to any
questions, you must submit this form and the supplemental form listed in the parenthesis following the question. Mark "X" in the box in the third column
if the supplemental form is attached. If yoo answer "no" to each question, you need not submit eny of these forms. You may anwar "no" if your activity
is excluded from permit requirements; see Section C of the instructions. See also, Section 0 of the instructions for definitions of bold—faced terms.
S p ECIFIc QUESTIONS
Yin
PIO
arr ,,,.
SPECIFIC QUESTIONS
v n• m°
rorrecmee
•?°Rs"
A. Is this facility a publicly armed treatment works
B. Does or will this facility
(either existing or proposed)
Which results in a discharge to waters of the U.S.?
X
aqua
indode
mime!
•
concentrated
production
animal
facility
feeding
which
operation
results in
or•
X
C.?Is this a?
acilny whic?
current y resu ts in •
IIITIIIIITBIEBT111111
•?
discharge
t 5 • p?
to weans
•
?
of the
?
o
..?
?er
.?
?
an?
on
•
descn
MIC•110:011fll
to waters of the U.S. other than those described in
X
2C
In A
or
8 above)
which will milt
In a &charge to
X
•
?or Et above>
IIITAIBTBIfla
1 , u a?
U? .
ElfIgTEIllfll
E. Does
hazaraous
or will
wades?
this facility treat, store, or dispose of
X
.
teining,
municipal
Do you or
within
effluent
will you
one
below
inject
quarter
the
et th4
lowermost
mile
facility
of the
stratum
industrial
well bore,con-or
X
■
o you or will you intact at this facility
any
produced
IP
ill
underground aourtes of drinking water?
water or other fluids which are brought to the surface
H. Do you
or will you inject at this facility fluids for
in
connection with conventional oil or natural gas pro-
del processes such as mining of sulfur by the Fresch
X
duct-on, inject fluids used for enhanced recovery of
X
process. solution mining of minerals, in situ combus-
oil or natural gas, or inject fluids for storage of liquid
tion
of fossil fuel, or recovery of geothermal energy?
I.?
h
s
drocarbons?
t?
is?
EiCi
sly
?
a
propose-
•
start onary source re
IC
?
Is
pimp
•
?
"
a?
•?
a?
I ity a prop•?
•?
• • •?
ry
IOU=?
..?
is
IlligiatCRal
structions
one of the
and
28 industrial
which will potentially
categories
emit
lined
100
in the
tonsIn-
NOT
instructions
one of
and
the 28
which
industrial
will potentially
categories
emit
listed
250
In
tonsthe
X
per year of any air pollutant regulated under
the
X
per
year
of any air pollutant regulated under the Clean
Clean
Air Act and
may affect or be located in en
Air Act
and
may affect
or
be located in an etteintnent
attainment area??
ornotron wee?.
?
MES111•11MGCM.
III. NAME
OF
FACILITY
?
.?
"?
• ?- ' -?
.?
'
u
Skip..
?
-2.
Fo rmer
Ga
s
?e r?
nterstate?
Oi1
, ) .....
6..IV.
FACILITY CONTACT
'?
'?
-..)" ?
- r-?
'
?
.,
A. NAME es TITLE
flat.
first, &
US)
?
•
PHONE
(era
code &
no.)
CO
2Torbati
Emanuel
?
President
?
619
?
2393
V FACILITY MAILING ADDRESS.
A. ?OR P.O. ■OE
man asi
,.
I.'
,
,,
c
3
c
?
1
6
,,?
i?
2
I?
5
I?
i?
B•
?
roadway
-
milli
""
•?
CITY
"
?
OR
"
?
TOWN
I?
S
-
I?
te
?
.
1
•
?
?
11112?
1
?
IiIiiC.
.
?
?
IID.
ZIP
m
CODE
San
?
Diego
?
92101
.
u
I r .FACILITY LOCATION
'
A
STREET.
ROUTE
NO. OR
OTHER
SPECIFIC
IDENTIFIES.
is
?
2
East-
?
•?
I
•
?
?
?
I?
I?
Jef
........
1?
I?
I?
ferson
I?
I?
I?
i
?
I
?
?
?
1
?
1
?
S
1
?
..
1/1111111
treett...
?
.
ss
a.
COUNTY NAME
II?
I?
I?
I?
I?
I?
I?
1?
1?
1?
1?
I
Will
,..
C. CITY
OR TOWN
ti.STATE
E. Zi p
CODEE
COUNTY
CODE
Shorewoo
1?
T?T1?
1111? TT
Ill 6 01 4
3
5
f
ir ratan?
Se
II
?Or 42
”
EPA Form 3510-1 (Rev.
10-80)
?
CONTINUE ON REVERSE
ATTACHMENT
2
July 30, 2007 Richmond Breslin letter to Agency re: change of address
RICHMOND
BRESLIN LLP
?
Kendy M. Hess
(303) 442-0311
khesserb-11p.com
July 30, 2007
Via Fax and First Class Mail
Illinois Environmental Protection Agency
Bureau of Water – Division of Water Pollution Control
Permit Section
1021 N. Grand Avenue East
PO Box 19276
Springfield, Illinois 62794-9276
Attn: Richard Pinneo
Re: Interstate OH
NPDES Permit No: IL0072702
Change of Address
Mr. Pinneo:
As we discussed on July 27, 2007, I am writing to notify the IEPA-DWPC of a
change of address for my client, Interstate Oil (which holds the referenced permit).
When we spoke on the phone you gave the following address for my client:
Interstate Oil
625 Broadway, Suite 700
San Diego, CA 92101
This is slightly incorrect: mailings should be addressed to Suite 915, not to Suite 700.
Upon my review of the file for this permit, however, I see that you have had and
have been using the San Diego address for my client since at least July 2005. It was at
that point that you notified my client (and his consultant, Pioneer) that you had reviewed
his application and planned to begin the public notification process prior to issuing the
permit. With this, I am a little confused by the IEPA's inability to locate my client and
notify him of the
fees associated
with that permit. I had understood that you had and
were using the old Chicago address: 4701 S. Central, Chicago, IL 60638. That would
explain why we never received notification, but it's clear from the file that that was not
the case.
y ours,
endy . ess
for Richmond Breslin LLP
11011111111101111111111111SINI
RICHMOND
BRESLIN LLP
Richard Pilule°
July 30, 2007
Page 2
of 2
In the future, please use the San Diego address for
all
mailings directed to my
client — this is the address identified on the April 29, 2003 application for permit renewal.
Additionally, we would appreciate it if you would continue with your standard process of
including our consultant, Pioneer, in all correspondence. The April 29, 2003 renewal
application explicitly states that "Pioneer performs all current NPDES DMR reporting on
behalf of the owner/operator and documentation regarding this permit
renewal should
also
be directed to Pioneer at the address listed above." All of the correspondence other
than the fee notices followed this practice, with good results.
Thank you.
cc: Emanuel
Torbati (Interstate Oil)
Jeffrey McClelland (Pioneer Environmental)
ATTACHMENT
3
August 23, 2007 Richmond Breslin letter to Agency re: protest of fees
RICHMOND
BRESLIN HY
Kendy M. Hess
2273 Canyon Blvd.
Boulder, CO 80302
(303) 442-0311
khess@rb-llp.com
August 23, 2007
Via Fax and First Class Mail
Illinois Environmental Protection Agency
Bureau of Water – Division of Water Pollution Control
Permit Section
1021 N. Grand Avenue East
PO Box 19276
Springfield, Illinois 62794-9276
Attn: Brian Cox
Re: Interstate
Oil
NPDES Permit No: IL0072702
Permit fees
Dear Mr. Cox:
I represent Interstate Oil, the permittee under the captioned permit. The permit
was issued September 28, 2005, but my client was not notified of the fees required by the
permit until BP (the current property owner) contacted us in March 2007. While the
regular correspondence regarding the permit application was addressed to my client at its
current address and included the consultant (consistent with the permit application), the
Agency used an old address for my client for separate correspondence regarding the fees.
I believe we've straightened out the confusion about the addresses at this point, but the
two (or three, or four) year delay in notification for the fees has led to a rather
complicated situation.
To review, we submitted our application for this permit on April 29, 2003,
providing the current address for my client and asking that Pioneer Environmental act as
the primary contact for all correspondence. We received a July 22, 2005 notice regarding
the public fact sheet for the permit application, an August 22, 2005 copy of the draft
permit, and a September 28, 2005 copy of the approved permit. None of this
correspondence mentioned the fees associated with the permit, despite the fact that 415
ILCS 5/12.5(b) expressly stipulates that the Agency must notify each existing permittee
of the fees associated with its permit. The permit authorizes the discharge of industrial
waters impacted by toxic or hazardous substances (in connection with a remediation) in
RICHMOND
BRESLIN LLP
Brian Cox
August 23, 2007
Page 2 of 3
an amount of less than 250,000 gpd, so the fee is $15,000/year. In March 2007, BP
forwarded to us an EPA demand for $50,507.20 (inclusive of penalties for non-payment
of earlier invoices, which were sent to the wrong address and never received by my
client). The Agency has since agreed to waive the penalties, which we very much
appreciate, but that still leaves my client with a bill for $45,000. We have already
requested an extension from the Agency in order to resolve the confusion over these fees.
There are three problems.
First, even assuming that my client is responsible for any payment at all, the
amount is incorrect. The permit was issued effective October 2005. With that, the most
that my client could possibly be asked to pay is $30,000 (for 2006 and 2007) together
with the appropriate proration for the three months of 2005. While the current permit is
technically a renewal of a previous permit, more than two years lapsed between our
request to renew that permit and the Agency's approval. During that time we were
forbidden to discharge, so we can't really be said to have been in possession of a valid
permit. Holding my client responsible for permit fees for the time prior to permit
approval would essentially put the Agency in the odd position of charging $15,000/year
for reviewing permit renewal applications.
I'm
sure that isn't the position that the
Agency wishes to take, or the position that the Agency wishes to force upon its
applicants. It would certainly establish some unfortunate incentives for the Agency.
Second, given the Agency's failure to notify my client of the
fees
associated with
this project (in direct violation of 415 ILCS 5/12.5(b)), it is inappropriate to hold my
client responsible for
any
of the fees associated with this permit. The provisions at 415
ILCS 5/12.5(b) expressly stipulate that the Agency "shall send a fee notice by mail to
each existing pennittee subject to a fee under this Section at his or her address of record"
–
i.e. at
the address identified in the permit application. Instead of using the address
identified on the permit application – the same address the Agency used for all other
correspondence regarding the permit – the Agency used an invalid address. By this
action the Agency harmed my client, denying my client the opportunity to reconsider its
decision to make use of a NPDES permit or to reconsider the timing on the application.
We have yet to make use of this permit. Had we had any idea of the costs associated with
an inactive permit, we would not have applied for it when we did or would have promptly
terminated it
as
soon
as it became
apparent that we would not be able to make use of it.
Without notification of the fees, neither of those opportunities was available to my client.
Frankly, it seems profoundly inappropriate that the Agency benefit to the tune of $50,000
for its use of an invalid address, especially when the application for the permit in question
identified an appropriate address (paired with the fail-safe mechanism of including the
consultant on all correspondence) and the Agency made use of that address and fail-safe
with good results for all other correspondence. As a policy, again, this would establish
some decidedly unfortunate incentives for the Agency.
Third,
if we cannot
find any other way to resolve this difficulty, my client will
have little choice but to simply submit a termination notice and reapply for the permit.
We have never made use of this permit, we are not in a position to make use of the permit
at this time, and cannot say with any surety when we will be in a position to make use of
Very ly yours,
Kend Hess
for Richmond Breslin LLP
RICHMOND
BRESLIN LLP
Brian Cox
August 23, 2007
Page 3 of 3
the permit
(as
that is dependent on other state actions that we cannot control). We simply
cannot afford to pay $15,000/year for the privilege of waiting for various state approvals,
especially when that $15,000/year comes on top of a bill for $50,000 (incurred without
our consent or even consideration, and without our receiving any benefit in exchange). I
understand from our discussions and from the website to which you directed me
(littv://www.epa.state.il.us/fees/npdes.html)
that "[if] the termination request is received
after July 1 [2003], but the permit holder can demonstrate that the discharge had ceased
prior to that date, they are not liable for the fee." As there has been no discharge since
July 1, 2003 (or indeed, ever), we can simply terminate the permit and be absolved of any
obligation with respect to these charges. We are understandably reluctant to begin the
application process all over again, given the two-year turnaround on approvals, and
reluctant to ask the Agency to repeat the entire process of reviewing and approving the
same permit for no real reason, but as I said we seem to have little choice.
My client respectfully requests that the Agency waive the existing fees in their
entirety. The fees were inappropriately allocated to my client in the first place, as the
Agency failed to follow its own established and mandated practices with respect to
notification, and the Agency's failure to do so deprived my client of the opportunity to
make the informed decision that would have allowed it to avoid incurring the fees in the
first place.
If
the Agency refuses to resolve the matter in this way, I see little option but
to terminate the permit (effective October 2005) and begin the application process anew.
If you see other alternatives, I would certainly be interested in hearing them.
Thank you in advance for your time reviewing and considering this request, and
for your assistance with my review of the rules and regulations governing NPDES fees. I
look forward to hearing from you.
cc: Emanuel Torbati (Interstate Oil)
Jeffrey McClelland (Pioneer Environmental)
ATTACHMENT
4
October 24, 2007 Agency letter re: denial of request
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
217 / 782-0610
ROD R.
BLAGO1EVICH, GOVERNOR
?
DOUGLAS P.
SCOTT, DIRECTOR
October 24, 2007
Kendy M. Hess
Richmond Breslin LLP
2273 Canyon Blvd.
Boulder, CO 80302
Re: Interstate Oil
NPDES Permit No. IL0072702
NPDES Fee Dispute
Dear Ms. Hess:
This letter is in response to your letters dated July 30, 2007, August 23, 2007, and August 30,
2007 requesting that the Agency waive the existing fees for NPDES Permit No. IL0072702.
After reviewing the permit it has been determined that the annual fee for this facility is $15,000,
which is based on an industrial minor containing limitations for toxic pollutants and discharging
less than 250,000 gpd. The Agency has reviewed your request and has the following comments.
The 2004 fee of $1,000 and 2005 fee of $15,000 were waived since the facility did not have a
valid permit during that time. The 2006 fee of $15,000 was prorated from the date of issuance,
so the new 2006 fee is $8,750. The fees for 2007 and 2008 are both $15,000. Therefore, the past
due amount for previous years is $23,750, and the total amount due to the Agency, which
includes the fee for 2008 is $38,750.
Therefore, please submit a payment in the amount of $38,750 to the Agency by
November 30,
2007. Payments should be made payable to: Illinois EPA and should be mailed to Illinois EPA,
Fiscal Services Section, Cash Receipts #2, P.O. Box 19276, Springfield, IL 62794-9276. Please
return a copy of this letter along with your payment to ensure proper credit to your account.
This determination of
fee
amount constitutes final action by the Agency regarding your dispute.
If you have any questions or comments regarding this determination, please call 217 / 782-0610.
Sincerely,
0
Alan Keller, P.E.
Manager, Permit Section
Division of Water Pollution Control
cc: Interstate
Oil
Gina Hamlin
SAK: LRL: 72702 fd.wpd
ROCKFORD -
4302 North Main Street, Rockford, IL 61103 - (815) 987-7760 •
DES PLAINES -
9511 W. Harrison St., Des Plaines, IL 60076 - (847) 294-4000
ELGIN -
595 South State, Elgin, IL 60123- (847) 608-3131
?• PEORIA -
5415 N. University St., Peoria, IL 61614 - 1309, 693-5463
BTREAU or LAN() - PEORIA -
7620 N. University St., Peoria, IL 61614 - (309) 693-5462•
CHAMPAIGN -
2125 South First Street, Champaign, IL 6 I 020 - (217) 278-5800
SPRINGFIELD -
4500 S. Sixth Street Rd., Springfield, IL 62706 - (217) 786-6892 •
COLLINSVILLE -
2009 Mall Street, Collinsville, IL 62234 - (618) 346-5120
MARION -
2309 W. Main St., Suite 116, Marion, IL 62959 - (618) 993-7200
PRINTf D ON RECYCLED PAPER
ndy M. ss
or Richmond Breslin LLP
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
?)0t)%/-
4E0EIVED
CLERK'S
OFFICE
DEC 1 7 2007
'nllut
STATE
,
OF
Control
ILLINOISBoard
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached PETITION FOR
APPEAL OF ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
DETERMINATION REGARDING NPDES PERMIT IL0072702 by U.S. Mail, upon the
following persons:
Alec Messina, Chief Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Connie Tonsor
Managing Attorney Water Programs, at Mail Code 21
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276, Mail Code 21
Springfield, Illinois 62794-9276
Date: December 13, 2007
Kendy M. Hess
RICHMOND BRESLIN LLP
2273 Canyon Boulevard
Boulder, CO 80302
(303) 442-0311
Interstate Oil, Inc., with respect
to NPDES Permit IL0072702
Petitioner
v.