BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JOHN
D. HUFFMAN, dba Huffman's Service,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB No. 09-28
(LUST Permit Appeal)
PETITION FOR REVIEW OF AGENCY LUST DECISION
NOW COMES Petitioner, John
D. Huffman, dba Huffman's Service ("Huffman"), pursuant to
Section 40
of the Illinois Environmental Protection Act, 415 ILCS 5/40, and Part 105 of the Illinois Pollution
Control Board Rules,
35 Ill. Admin. Code Sections 105.400 through 105.412, and hereby appeals that
portion
of the LUST decision issued September 12,2008, by Respondent Illinois Environmental Protection
Agency ("Agency"), in which the Agency failed and refused to approve the payment
of $73,198.89 for costs,
and
in support thereof states as follows:
A.
BACKGROUND
1. Huffman is the owner of the underground petroleum storage tanks at the service station located at
Front and Russell Streets in Tamms, Alexander County, Illinois, LPC #0030105005, Incident #2007-1118.
2. On December 31,2007, the Agency received from Huffman his request for reimbursement for
$84,259.69, for the billing period
of August 1,2007 through November 30, 2007, together with all required
engineered certifications, owner/operator billing certifications, and related Agency forms duly completed,
and all required supporting documentation and justification, as required by applicable law.
3. All line-item sums requested for reimbursement were within the Agency's previously-approved
format for early action costs.
4. The amounts requested for reimbursement were certified by Huffman, on the Agency's own
forms, as being correct and reasonable and submitted in accordance with applicable laws, as follows:
The attached application for payment and all documents submitted with it were prepared
Electronic Filing - Received, Clerk's Office, December 16, 2008
under the supervision of the licensed professional engineer or licensed professional
geologist and the owner and/or operator who signatures are set forth below and in
accordance with a system designed
to assure that qualified personnel properly gathered and
evaluated the information provided. The information in the attached application for
payment is,
to the best of my knowledge and belief, true, and complete.
The costs
for remediating the above-listed incident are correct, are reasonable, and if
applicable, were determined in accordance with Subpart H: Maximum Payment Amounts,
Appendix
D. sample Handling and Analysis amounts, and Appendix E Personnel Titles and
Rates
of 35 111. Adm. Code 732 or 734.
5. Nevertheless, on September 12,2008, which was beyond the l20-day time limit for the Agency
to notify Huffman
of its final action on the Subject Application for Payment, the Agency prepared its letter
notifying Huffman that it was refusing to approve for payment $73,198.89
of said costs, the sole and entire
reason
for the rejection appearing in the Agency's final decision attached hereto as Exhibit
A.
B. DATE ON WHICH THE AGENCY'S FINAL DECISION WAS SERVED
The Agency's final decision was dated September 12,2008 and served on September 19,2008,
making October 24, 2008, the deadline
for the filing of this appeal, or alternatively, the date for filing the
request
for 90-day extension of appeal, pursuant to Section 40(a)(l) of the Illinois Environmental Protection
Act, 415 ILCS 5/40(a)(l), October 24, 2008. On October 23,2008, the Agency did,
in fact, file such a
request for 90-day extension
of the appeal period, which request has since been granted, extending to
December 18,2008, the deadline
for filing an appeal. This appeal is timely filed.
C.
GROUNDS FOR APPEAL
1.
The majority of the $73,198.89 costs rejected by the Agency were $49,700.00 of costs for
remediation and disposal, which the Agency wrongfully rejected for reasons nowhere found in applicable
statutes, regulations, or even on the Agency's own forms. Specifically, the Board's Regulations require that
bids submitted in accordance with 35 Ill. Adm. Code 734.855 be submitted on a form prescribed by the
Agency, and Huffman did that, but in its rejection letter the Agency,
for the first time, demanded that the
information requested on its own form was not enough, and that more was needed, including, "a breakdown
of what is in included in the bid and what specific costs exceed the Subpart H rates," together with
2
Electronic Filing - Received, Clerk's Office, December 16, 2008
"justification ... to document why the bids were necessary and why the Subpart H rates could not be met for
this proj ect."
2. None of these after-the fact requests for further information appear anywhere in the Regulations
or in the form prepared by the Agency itself, which form was fully completed by each
of the bidders and by
Huffman, as well as by Huffman's consulting engineer, and none
of which were deemed incomplete or
otherwise objected
to by the Agency at any time until after the work was completed and after the request for
reimbursement was submitted.
3. Indeed, at no time during the Agency's consideration of Huffman's request for reimbursement
did the Agency request any further or additional information concerning any particular item
of remediation
and disposal.
4. As to the remaining $23,498.89 in wrongfully rejected costs, the Agency mistakenly believes
that they were unaccompanied by "invoices, receipts and supporting documentation showing the dates and
descriptions
of the work performed." In fact, all such supporting documentation is attached to the
application for reimbursement.
5. To the extent that the Agency ascertained, during the pendency of the subject request for
reimbursement, that either the facts or conclusions presented by Huffman were inaccurate or incomplete, the
Agency had a duty to disclose such information in writing during the Agency's statutory review period, but it
failed
to do so, and failed to request additional or clarifying information concerning its purported reasons for
denial.
6. In rejecting $73,198.89 for costs of reimbursement for this remediation work, the Agency acted
arbitrarily and contrary
to the certified facts presented, contrary to its own prior interpretations of applicable
laws and policies, contrary to its own established customs and practices, and contrary
to the law.
7. In addition, because the Agency failed to notify Huffman of its final action on the subject
application for payment, within 120 days after the receipt
of a complete application for payment, Huffman
may deem the application for payment of$84,259.69 approved by operation
oflaw (35 III Adm. Code
3
Electronic Filing - Received, Clerk's Office, December 16, 2008
732.602(d».
D.
REQUESTED RELIEF
WHEREFORE. Petitioner, John D. Huffman, dba Huffman's Service, prays that: (a) the Agency
prJduce the Record; (b) a hearing be held; (c) the Board rule that Huffman may deem the Application for
payment
approved by operation of law or, alternatively: (d) the Board find that Huffman's application for
LUST reimbursement contained
all infonnation and documentation necessary to support the $73,198.89 for
costs rejected by the Agency, and, accordingly; (e) the Board direct the Agency to restore the $73,198.89 in
costs rejected and
to prepare a voucher for $74,259.69, and to submit that voucher to the Comptroller's
Office for payment
as funds become available, based upon the date the Agency received the subject
application for payment;
(f)
the Board grant Huffman his attorney's fees; and (g) the Board grant Huffman
such other and further relief
as it just.
Respectfully submitted,
JOHN D. HUFFMAN, dba Huffman's Service,
Petitioner
(~~~
!{QWU-
Carolyn . Hesse
By:
. By his attorneys,
MQ
ALEWELT, PRlLLAMAN
&
ADAMI
By:
By:
Patrick D. Shaw
Fred
C.
Prillaman
MOHAN, ALEWELT, PRlLLAMAN
&
ADAMI
.1 K Old Capitol Plaza, Ste. 325
Springfield,IL 62701
Telephone:
217/528.2517
Facsimile:
217/528.2553
Carolyn S. Hesse
BA&"iES & THOR.:"IBURG, LLP
One North Wacker Drive, Suite 4400
Chicago, IL 60606-2833
THIS FILING
IS SUBMITTED ON RECYCLED PAPER
4
:
.
.
Electronic Filing - Received, Clerk's Office, December 16, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
John
D. Huffman dba Huffman's Service
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB No.
(LUST Pennit Appeal)
To:
Clerk
Illinois Pollution
Control Board
James
R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago,
IL 60601
NOTICE OF FILING
Melanie
A.
Jarvis, Assistant Counsel
Special Assistant Attorney General
Division
of Legal Counsel
Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
PLEASE TAKE NOTICE that
we have this day filed with the office of the Clerk
of the Pollution Control Board the
p.
etition for Review
~
which is enclosed herewith
and hereby served upon you on the
~
day of
0
QJ:..
,2008.
JOHN D. HUFFMAN dba Huffman's Service,
Petitioner
By:
One of his Attorneys
Patrick
D. Shaw
MOHAN, ALEWELT, PRILLAMAN
&
ADAMI
1 N. Old Capitol Plaza, Ste. 325
Springfield, IL 62701
Telephone:
217/528-2517
Facsimile:
217/528-2553
Counsel for Petitioner John D. Huffman, dba
Huffman's,Servi~e ~
C
Q.
J
I
By:
l
~iv;rv..~J.
N
~'l.Z.
Carolyn S. Hesse
-
Carol s:Hesse
BAR..'\fES
&
THORNBURG, LLP
One North Wacker Drive, Suite 4400
Chicago,
IL 60606-2833
~~~~~~-----'-
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Electronic Filing - Received, Clerk's Office, December 16, 2008
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby, certify that I caused copies of the foregoing
document
to served by placement in the United State Post Office Mail Box at Springfield, Illinois,
before 6:00 p.m. on
J:k.
c
tAbu- Lt.,
~_l>9'
, in sealed envelopes with proper first-
class postage affixed, addressed
to:
Clerk
Illinois Pollution Control Board
James
R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago,
IL 60601
Melanie
A. Jarvis, Assistant Counsel
Special Assistant Attorney General
Division
of Legal Counsel
Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
~--
Carolyn S. Hesse
BARNES
&
THORNBURG, LLP
One North Wacker Drive, Suite 4400
Chicago,
IL 60606-2833
Patrick
D. Shaw
MOHAN, ALEWELT, PRILLAMAN
&
ADAMI
1
N. Old Capitol Plaza, Ste. 325
Springfield,
IL 62701
Telephone: 217/528-2517
Facsimile: 217/528-2553
Counsel for Petitioner John D. Huffman dba Huffman's Service
C.N~
J,H~VL
&r'Olyn S. Hesse
•
"
Electronic Filing - Received, Clerk's Office, December 16, 2008
