BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

BUGAIESKI

OIL COMPANY,

)

)

Petitioner,

)

)

v.

)

PCB

(LUST Permit

Appeal)

ILLINOIS

ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

)

Respondent.

)

NOTICE

OF

FILING

AND PROOF

OF

SERVICE

To:

Clerk

Illinois

Pollution

Control

Board

Melanie

A. Jarvis,

Assistant

Counsel

100 W.

Randolph,

Ste. 11-500

Division

of Legal Counsel

Chicago,

IL 60601

Environmental

Protection

Agency

1021 North

Grand

Avenue

East

P0 Box 19276

Springfield,

IL 62794-9276

PLEASE

TAKE

NOTICE

that I

have

today

electronically

filed with

the Office

of the Clerk

of

the

Illinois Pollution

Control Board,

pursuant

to

Board

Procedural

Rule

101.302 (d),

a Petition

for

Review

of

Agency LUST

Decision,

a

copy of

which

is

herewith

served

upon the Illinois

Environmental

Protection

Agency.

The

undersigned

hereby

certifies

that

a true

and correct

copy

of this

Notice

of Filing,

together

with

a copy

of the document

described above,

were

today

served

upon

the

Illinois

Environmental

Protection

Agency

by enclosing

same

in

an envelope

addressed

to Melanie

A. Jarvis,

Assistant

Counsel,

with

postage

fully

prepaid,

and

by

depositing

said envelope

in a

U.S. Post

Office

Mailbox in

Springfield,

Illinois

on the

day of

January,

2009.

Respectfully

submitted,

BUGAJESKI

OiL

COMPANY,

Petitioner

BY:

MOHAN,

ALEWELT,

PRILLAMAN

& ADAMI

BY:

Fred

C. Prillaman

Fred

C. Prillaman

MOHAN,

ALEWELT,

PRILLAMAN

& ADAMI

1 North

Old Capitol

Plaza,

Suite 325

Springfield,

IL

62701-1323

Telephone:

217/528-2517

Facsimile:

217/528-2553

---

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

BUGAIESKI

OIL

COMPANY,

Petitioner,

v.

)

PCB

(LUST Permit

Appeal)

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

Respondent.

PETITION FOR

REVIEW OF

AGENCY LUST

DECISION

NOW COMES

Petitioner,

Bugaieski

Oil Company (“Bugaieski”),

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

III. Admin.

Code Sections 105.400

through

105.412,

and hereby

appeals

that

portion

of the LUST decision

issued December

22, 2008,

by Respondent Illinois

Environmental

Protection

Agency

(‘Agency), in which the

Agency

failed

and refused

to approve

the

payment

of

$38,716.25

in

requested

costs,

and in support thereof

states as follows:

A.

BACKGROUND

1. Bugaieski

is the

owner

of the underground

petroleum storage

tanks

at

the

service

station

located

at Route 184 and Route

14 in Mulkeytown,

Franklin

County, Illinois,

LPC

#055899501

8,

Incident-Claim

#20071408 -- 54158.

2. On April 11,

2008, the

Agency

received from

Bugaieski its request

for

reimbursement for

$62,415.90,

for the billing period

of October 1,

2007 through

March 31, 2008,

together with

all

required engineeres’

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 Bugaieski,

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

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

III. Adm. Code 732 or 734.

5.

Nevertheless, on December 22, 2008, the Agency prepared

its letter notifying Bugaieski

that it was refusing to approve for payment

$38,716.25

of

said

costs, the sole and entire reasons

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 (Exhibit A hereto) was

dated

December

22, 2008 and, on

information and belief, was served on December 23, 2008, making

January 27, 2009, the deadline

for

the filing of this appeal, pursuant to Section 40(a)(1) of the Illinois Environmental

Protection Act, 415

ILCS 5/40(a)(1). This appeal is timely filed.

C.

CONFIRMATION OF APPROVAL OF

$8,699.65

FOR PAYMENT

Bugaieski

is not appealing the

$8,699.65

approved payment,

and hereby confirms that

the

Agency

will, in

fact,

prepare a voucher in that amount for submission to the

Comptroller’s Office for

payment, as funds become available based upon the date the Illinois EPA received

the

application for payment.

D.

GROUNDS FOR APPEALING THE

$38,716.25

IN REJECTED COSTS

1. The

majority of the

$38,716.25

costs rejected

by the Agency were costs submitted

per

bidding,

which

the Agency wrongfully rejected for

reasons

nowhere

found in applicable statutes,

2

Electronic Filing - Received, Clerk's Office, January 26, 2009

* * * * * PCB 2009-049 * * * * *

---

regulations,

or even on the Agency’s

own forms.

Specifically,

the Agency

rejected

$35,285.77

of

the costs for four

(4) reasons,

none of which

are reasons for rejection

provided

in applicable

statutes, regulations,

or

even on the

Agency’s

own

forms, to-wit:

a. Per

the

Agency, “in order for

the bids to

be reviewed,. .

.

a breakdown

of what is

included

in the bid.

. . must be provided.”

This is legally

incorrect.

No

statutes

or regulations,

nor

even the Agency’s own

forms,

require

such “breakdowns”

to be provided,

either for

purposes

of “reviewing”

the

bids or,

pertinent to this

appeal,

for reimbursement

of costs.

b. Per

the Agency, “in

order for the bids

to

be reviewed,..,

a breakdown

of what...

specific costs exceed

the Subpart

H rates must be provided.”

This

is equally

incorrect, as

a

matter of law. No statutes

or regulations,

nor even the

Agency’s

own

forms,

require

such

“breakdowns”

to be provided,

either for

purposes

of “reviewing”

the

bids

or, pertinent

to this

appeal, for reimbursement

of

costs.

c.

Per the Agency, “in

order for the

bids to be reviewed,..,

justification

must

be provided

to

document why the

bids were necessary.”

The

Agency

is legally incorrect

on this argument,

as well,

since no

statues

or regulations,

nor even the Agency’s

own forms,

require

such

“justification”

to be

provided,

either for purposes

of

“reviewing”

the bids or, pertinent

to this

appeal, for reimbursement

of

cost.

d. Per the

Agency, “in order for

the bids to be

reviewed,..,

justification

must be provided

to

document.

. . why the Subpart

H rates

could not be met for this

project.”

This reason

for

rejection

is equally flawed;

no

statutes or regulations,

nor even

the Agency’s own

forms, require

such

“justification” to be provided,

either for

purposes of “reviewing”

the bids or,

pertinent

to

this appeal, for

reimbursement

of cost.

2. If such

“breakdowns” and/or

“justifications”

were required

(which they were

not; indeed,

neither

of these terms appear

anywhere in

the regulations), they

would

have

been furnished

by

3

Electronic Filing - Received, Clerk's Office, January 26, 2009

* * * * * PCB 2009-049 * * * * *

---

Bugaieski

on

the Agency’s

own forms,

in response

to the

Agency’s request

to furnish

same.

However, the

Board’s

Regulations

are

very clear on

this point:

bids submitted

in accordance

with

35

Ill. Adm.

Code 734.855

shall include

only

the

degree of

specificity

required

on

the

form

itself, as

prescribed

by

the Agency.

The

Agency’s forms

did not

ask for this

so-called

“breakdown”

or

“justification”

information.

Bugaieski

did exactly

what the Agency,

in its

forms, required,

yet

in

its

rejection

letter

the Agency,

for

the first time,

demanded

that

the

information

requested

on its own

forms was

not enough,

and that

more was

needed.

This is a fundamentally

unfair reason

to deny

reimbursement,

akin

to

rejecting bids

on

a

public

project

that fail to conform

to the

specifications

first

published after

the

bidding

is closed.

3.

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

Bugaieski,

as

well

as by

Bugaieski’s

consulting

engineer.

The Agency

does

not

complain

that the form

itself is incomplete.

4.

Indeed,

at no time

during the

Agency’s

consideration

of Bugaieski’s

request

for

reimbursement

did

the

Agency request

any

further or additional

information

concerning

any

particular

item of remediation

and disposal.

5.

As

to the

remaining

$3,

430.48

in

wrongfully

rejected

costs, the

Agency mistakenly

believes

that they lacked

supporting

documentation.

Specifically,

$2,160.00

were

deducted

for costs for

liquid

disposal, yet

all

required

information

and

supporting

documentation

necessary

to

reimburse

for

this cost,

was,

in

fact,

submitted

with

the

application,

and is

part

of

this

record.

Moreover,

the

$1,270.48

expense

cost

for

direct

push

drilling

was likewise

supported

with

all

required

documentation,

showing

the

dates

and

descriptions

of the work

performed,

necessary

for

reimbursement.

6.

To the

extent

that the

Agency

ascertained,

during the pendency

of the

subject

request for

reimbursement,

that

either

the facts

or conclusions

presented

by Bugaieski

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

4

Electronic Filing - Received, Clerk's Office, January 26, 2009

* * * * * PCB 2009-049 * * * * *

---

concerning

its purported reasons

for

denial.

7. In

rejecting

$38,716.25

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.

E.

REQUESTED RELIEF

WHEREFORE,

Petitioner,

Bugaieski,

prays

that: (a) the Agency

produce

the

Record; (b)

a

hearing

be

held;

(c) the

Board

find that Bugaieski’s

application

for LUST reimbursement

contained

all

information and

documentation

necessary to

support the

$38,716.25

for

costs rejected

by the Agency,

and,

accordingly;

(d) the Board direct the

Agency

to

restore the

$38,716.25

in costs rejected

and

to

prepare

an additional

voucher

in this amount and

submit it to the

Comptroller’s

Office for payment

as

funds become available,

based upon

the date the Agency

received the subject

application

for

payment;

(e)

the Board

grant Bugaieski its attorney’s

fees;

and (f) the Board grant

Bugaieski

such

other and further

relief

as

is

just.

Respectfully submitted,

BUGAIESKI

OIL

COMPANY,

Petitioner,

By its

attorneys,

MOHAN,

ALEWELT, PRILLAMAN

&

ADAM

I

By:

Patrick

D. Shaw

By:

Fred

C. Prillaman

Patrick D. Shaw

Fred

C.

Prillaman

MOHAN,

ALEWELT, PRILLAMAN

&

ADAMI

1 N.

Old Capitol Plaza, Ste.

325

Springfield,

IL

62701

Telephone:

217/528-2517

Facsimile: 217/528-2553

THIS

FILING

IS SUBMITTED

ON RECYCLED

PAPER

5

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Electronic Filing - Received, Clerk's Office, January 26, 2009

* * * * * PCB 2009-049 * * * * *

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Electronic Filing - Received, Clerk's Office, January 26, 2009

* * * * * PCB 2009-049 * * * * *

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Electronic Filing - Received, Clerk's Office, January 26, 2009

* * * * * PCB 2009-049 * * * * *

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Electronic Filing - Received, Clerk's Office, January 26, 2009

* * * * * PCB 2009-049 * * * * *