RECE~VE~
CLERK’S OFFICE
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
MAR 03
2004
STATE
OF ILLINOIS
JEAN A. MATHISON AND
)
Pollution Control
Board
ROCKFORD STOP-N-GO, INC.,
)
)
Petitioners,
)
vs.
)
PCB
_____
)
(UST Fund Appeal)
ILLiNOIS OFFICE OF STATE
)
FIRE MARSHAL AND
)
ILLiNOIS ENVIRONMENTAL
)
PROTECTION AGENCY
)
Respondents.
)
CERTIFICATE OF SERVICE
I, Raymond M. Roder, the undersigned, certify that I have served the attached
PETITION FOR REVIEW and ENTRY OF APPEARANCE OF RAYMOND M.
RODER upon:
Ms. Dorothy M. Gunn
Division ofLegal Counsel
Clerk ofthe Board
Illinois Environmental Protection Agency
Illinois Pollution Control Board
1021 North Grand Avenue East
100 West Randolph Street
P.O. Box 19276
Suite 11-500
Springfield, Illinois 62794-9276
Chicago, Illinois 60601
Office ofthe Illinois State Fire Marshal
Attn: Deanne Lock
Division of Petroleum and Chemical Safety
1035 Stevenson Drive
Springfield, IL 62703-4259
by depositing said documents in the United States Mail in Springfield, Illinois, postage
prepaid, on February 27, 2004.
,~ /~
Raymof~dM. Roder
Madison\123400RMR:JJS 02/27/04
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAR 03 20(J1~
STATE
OF ILLINJOIs
JEAN A. MATHISON AND
)
Pollution Control Board
ROCKFORD STOP-N-GO, INC.,
)
)
Petitioners,
)
vs.
)
PCB____
)
(UST Fund Appeal)
ILLINOIS OFFICE OF STATE
)
FIRE MARSHAL AND
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY
)
Respondents.
)
PETITION FOR HEARING AND REVIEW
NOW COME the Petitioners, Jean A. Mathison and Rockford Stop-N-Go, Inc., a
subsidiary ofStop-N-Go ofMadison, Inc. (2934 Fish Hatchery Road, Madison,
Wisconsin, “SNG”)
,
by their attorneys Reinhart Boerner Van Deuren s.c. and Raymond
M. Roder, and file the instant Petition for Review pursuant to
35
Illinois Administrative
Code 105.102(a)(2) and Section
57.9(c)(2)
of the Illinois Environmental Protection Act.
1.
Jean A. Mathison was the owner ofthe property at which a petroleum
product leaking underground storage tank (“LUST”) was located at the time the leak was
first discovered, February 22, 1990. The LUST was removed and the incident reported
on that date.
2.
Mrs. Mathison resides at 16902 Poplar Grove Road, Poplar Grove, Illinois
61065.
MADISON\96615RMR:EJW 06/28/02
3.
The property at which the LUST was located is the northeast corner ofthe
intersection ofRoutes 173 and 76 (Poplar Grove, Boone County, Illinois)
-
the
“Property.” The Property has the street address of4550 Route 173.
4.
SNG purchased the Property from Mrs. Mathison in 1999 and is its current
owner.
5.
SNG operates and owns an underground petroleum product storage tank
(“UST”) system at 4400 Route 173, Caledonia, Boone County, Illinois for the
commercial dispensing of gasoline and diesel fuel at Petitioner’s SNG’s Store # 517.
SNG’s UST system is across Route 173 from the Property.
6.
Petitioner Mathison (and her now deceased husband, Leroy), acquired the
Property in 1977, some eight years after the LUST was installed by the previous owner,
Frances Lyddon.
7.
The Mathisons installed five
(5)
USTs on the Property in 1981. The USTs
were intended to and did only contain and dispense only gasoline (including gasoline
blends with alcohol).
8.
In February, 1987 the Mathisons sold the Property by land contract to
Mehdi and Noor Sabzali who continued to operate the Property as a motor fuel
dispensing facility. The Sabzalis were, as Petitioner Mathison is informed and believes,
operators of another motor fuel dispensing facility that was located in Stone Park,
Illinois.
9.
When the Sabzalis were unable to make payments on their own contract
with the Mathisons, Jean Mathison reacquired the Property (her husband Leroy having
died in the meantime).
MADISON\96615RMR:EJW 06/28/02
2
10.
During the Sabzali’s ownership ofthe Property they discontinued the use
ofthe USTs in February 1988 but failed to register or remove them despite their apparent
knowledge ofthe requirements to do so and their assurance to Mrs. Mathison at the time
of the requisition that they had complied with the requirements ofthe law during their
ownership. Evidence oftheir purported compliance was offered by the Sabzalis in the
form ofExhibit B hereto, a letter from the OSFM’s Edmund R. Brezinski dated July 22,
1988 ordering the removal ofall unused (“abandoned”) USTs. Exhibit B also purports to
show that on August 22, 1998 Tank Inspector James Drager noted that the Brezinski
Order was “canceled.” Mrs. Mathison understood this to mean that all existing USTs
had been removed and nothing further was required.
11.
When Mrs. Mathison reacquired the Property she intended to resell it as
soon as possible. She then became aware that the USTs had in fact not been removed.
She therefore arranged to have the USTs about which she had knowledge registered,
which was done on January 29, 1989. Because she was aware of only the five (5)USTs
installed in 1981 only five USTs were registered.
12.
In December 1989 Mrs. Mathison sold the Property to Philip and Carol
Falcone and others. As Mrs. Mathison is informed and believes the Falcones and the
others, as prospective buyers, undertook a due diligence inquiry and determined that the
abandoned tanks had not been removed as Exhibit B indicated. As a condition of
purchase the Falcones and the other buyers required that Mrs. Mathison have the USTs
removed. She then arranged to have the USTs removed. When the removal occurred, on
February 22, 1990, two additional tanks, including the LUST, were discovered.
MADISON\96615RMR:EJW 06/28/02
3
13.
Mrs. Mathison thereupon caused the additional, previously unknown,
USTs to be registered. This registration was in 1990. For reasons unknown the
additional USTs were numbered 7 (heating oil) and 8 (diesel, the LUST), respectively,
instead of6 and 7, which would correspond to the numbers oftanks to be registered.
14.
SNG has commenced a remedial investigation at the Property concerning
the leak.
15.
In conjunction with this investigation Petitioner Mathison sought and
obtained a determination ofeligibility for reimbursement under the State ofIllinois’
LUST Fund Program. (See Exhibit A hereto
—
Letter from the Office of State Fire
Marshall (“OSFM”) dated January 26, 2004.)
16.
The OSFM established a deductible of$l00,000 based on the date of
registration for the LUST. The deductible is the only subject ofthis appeal.
17.
Under the circumstances enforcing the deductible of$100,000 for USTs
not registered prior to July 28, 1989 is inappropriate and inequitable. It is inappropriate
because the July 28, 1989 deadline should only be enforced if all ofthe USTs were
registered afterthat date. (See 415 Ill. Comp. Stat.
5157.9(b)(1)-2002.)
And, as averred
above, the five
(5)
USTs known to Mrs. Mathison were registered before the deadline. It
is inequitable because the provision was intended to penalize tardy registration. But
under the circumstances the post-July 28, 1989 registration was not the result of
tardiness.
WHEREFORE, Petitioners seek the following remedy and relief:
1.
The remedy ofgranting a hearing in accord with 35 Ill. Admin. Code 101,
Subpart F through which the Petitioners may present evidence and
subsequent legal argument for the reasonableness ofapplying the standard
MADISON\96615RMR:EJW 06/28/02
4
deductible of $10,000 to this otherwise eligible LUST.
2.
An order reversing the OFSM’s determination that the deductible is
$100,000 and granting Petitioners’ claim that the appropriate deductible is
$10,000 in these circumstances.
3.
Such other and further relief as the IPCB is authorized to provide
consistent with the evidence in the case.
Dated at Madison, Wisconsin, this 27th day ofFebruary, 2004.
Reinhart Boerner VanDeuren s.c.
22 East Mifflin Street, Suite 600
Madison, Wisconsin 53703
608-229-2200
Mailing Address:
P.O. Box 2018
Madison, WI 53701-2018
Raymond”M. Roder
/~
WI State Bar ID No. 1010463
Attorney for Petitioners,
Jean A. Mathison and
Rockford Stop-N-Go, Inc.
MADISON\96615RMR:EJW 06/28/02
5
217-7821062
Divisions
ARSON INVESTIGATION
217-7829116
BOILER and PRESSURE
VESSEL SAFETY
217-782-2696
FIRE PREVENTION
217-785-4714
MANAGEMENTSERVICES
217-782-9889
INFIRS
217-785-5826
HUMAN RESOURCES
217-785-1026
PERSONNEL STANDARDS
and EDUCATION
21 7-782—4542
PETROLEUM and
CHEMICAL SAFETY
217-785-5878
PUBLIC INFORMATION
217-785-1021
WEB SITE
www.state.1I.us/osfm
Office of the Illinois
Back to top
State Fire Marshal
CERTIFIED MAIL
-
RECEIPT REQUESTED #7002 2030 0005 4474 0211
January 26, 2004
Jean A. Mathison
16902 Poplar Grove Rd.
Poplar Grove, IL 61065
In Re:
FacilityNo. 1-025008
IEMA Incident No. 90-0491
Mathison Mobil & Coffee Shop
4550 Illinois Route 173
NE Corner IL Routes 76 and 173
Poplar Grove, Boone Co., IL
Dear Applicant:
The Reimbursement Eligibility and Deductible Application received on January 6, 2004 for the above
referenced occurrence has been reviewed. The following determinations have been made based upon
this review.
It has been detenniñed that you are eligible to seek payment of costs in excess of$ 100,000. The costs
must be in response to the occurrence referenced above and associated with the following tanks:
Eligible Tanks
Tank 8
550
gallon Diesel
You must contact the Illinois Environmental Protection Agency to receive a packet ofAgency billing
forms for submitting your request for payment.
An owneror operator is eligible to access the Underground Storage Tank Fund ifthe eligibility
requirements are satisfied:
1.
Neither the. owner nor the operator is the United States Government,
2.
The tank does not contain fuel which is exempt from the Motor Fuel Tax Law,
3.
The costs were incurred as a result ofa confirmed release of any ofthe following substances:
“Fuel”, as defmed in Section 1.19 of the Motor Fuel Tax Law
Aviation fuel
Heating oil
Kerosene
1035 Stevenson Drive
•
Springfield, Illinois 62703-4259
Printed on RecycledPaper
~lI..
General Office
217-785-0969
FAX
Used oil, which has been refined from crude oil used in a motor vehicle, as defined in Section
1.3 of the Motor Fuel Tax Law.
4.
The owneror operator registered the tank and paid all fees in accordance with the statutory and
regulatory requirements ofthe Gasoline Storage Act.
5.
The owner
or operator notified
the Illinois Emergency Management Agency of a confirmed release, the
costs were incurred after the notification and the costs were a result ofa release of a substance listed in
this Section. Costs ofcorrective action or indemnification incurred before providing that notification
shall not be eligible for payment.
6.
The costs have not already been paid to the owner or operator under-a private insurance policy, other
written agreement, or court order.
7.
The costs were associated with “corrective action”.
This constitutes the final decision as it relates to your eligibilityand deductibility. We reserve the right to
change the deductible determination should additional information that would change the determination become
available. An
underground storage tank owner
or operator may appeal the decision to the Illinois Pollution
Control Board (Board), pursuant to Section
57.9 (c) (2). An. owner or operator who seeks to appeal
the
decision
shall file a
petition for a
hearing
before the Board within
35 days of the date ofmailing of the final decision,
(35
Illinois Administrative Code 105.102(a) (2)).
For information 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
The following tanks are
also listed for this
site:
Tank 1
6,000 gallon Gasoline
Tank 2 6,000 gallon Gasoline
Tank 3 1,000 gallon Gasoline
Tank 4 1,000 gallon Gasoline
Tank
5
500 gallon Gasoline
Tank 7
550
gallon Heating Oil
Your application indicates that there has not been a release from these tanks under this incident number. You
maybe eligible to seek payment of corrective action costs associated with these tanks if it is determined that
therehas been a release from one or more ofthese tanks. Once it is determined that there has been a release
from one or more of these tanks you may submit a separate application for an eligibility determination to seek
corrective action costs associated with this/these tanks.
If you have
any questions, pleasecontact our
Office at (217) 785-1020 or (217) 785-5878.
Sincerely,
Deanne Lock
Administrative Assistant
Division of Petroleum and Chemical Safety
cc:
IEPA
Facility File
July 22, 1988
t4ehdi ~ No.ov Sahzali
-
Mobil Station
Stone1545
N.Park,43rd
IllinoisStreet 60165
Office of-the Illinois
State Fire Marshal
~~1)
CERTIFIED MAIL
-
RECEiPT
-
REQUESTED P-.241--587-420
- ~
o~
FIRE FVEM~~
-
In
re:
File ~88~1-009064U53BB290
Mobil Station
Routes
j73 ~ 76
Poplar Grove, Illinois
BOONE COUNTY
Dear
Ilebdi ~
Noov
Sahzaii:
-
-
Pursuant to law an inspection was made
of the above-captioned
premises on June 27th, 1988 by Fire Inspector James Drager. This
inspection disclosed the following dangerous i condition and/or
fire hazard as indicated in violation of law:
1.
Remove all existing abandoned underground
flammable liquid
srorage tanks found no longer in service at this location.
(Section 17O.7S—J3—i,2,3,4~S CC—i)
-
You ~re hereby ordered Co
remove, or remc~dy and correct
,
sa H
dangerous condi Ci on and/or fire hazard for
thwi th
,
and this office
wili make investigatior~ as to co~Ip~tinflwithin a reasonable.
r od
-
Failure to comply ~itii
this order will result in a request to the
State’s
Attorney
of Boone County to prosecute
such refusal
as a
misdemeanor.
Olvislons
ARSON INVESTIGATION
3121917.3427
FIRE PREVENTION
312/917-2693
State oI Uinois Center
100 West Randolph Street • Suite 11-800
•
Ch.icaoo. (I~nok
t~O~fl1
Mobil Station
Routes 173 ~ 76
Poplar Grove, Illinois
Please notify the Chicago Office when the work has been completed
and a reinspection will then be scheduled.
Sincerely,
Edmund R. Brezinski
-
Area Administrator
ERB: gs
XC: Insp. Drager
.Supvr. Mi chehi
~Fire Chief Morelock
page two
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
JEAN A. MATHISON
AND
ROCKFORD
STOP-N-GO, INC.,
ILLINOIS OFFICE OF STATE
FIRE MARSHAL AND
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
)
)
)
)
)
-
PCB
______
)
(UST Fund Appeal)
)
)
)
)
)
NOTICE OF FILING
To:
Ms. Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Division of Legal Counsel
Illinois Environmental Protection Agency
1021
North Grand Avenue
East
P.O. Box 19276
Springfield, Illinois 62794-9276
Office ofthe Illinois State Fire Marshal
Attn:
Deanne Lock
Division ofPetroleum and Chemical Safety
1035
Stevenson Drive
Springfield, IL 62703-4259
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk of
the Illinois Pollution Control Board an original and nine copies each ofPetition for
Review and Entry ofAppearance of Raymond M. Roder, copies ofwhich are herewith
served
upon you.
vs.
Petitioners,
Respondents.
Madison\123398RMR:JJS 02/27/04
Dated
at Madison, Wisconsin, this 27th
day of February, 2004.
Reinhart Boemer Van Deuren s.c.
22
East Mifflin Street, Suite 600
Madison,
Wisconsin
53703
608-229-2200
Mailing Address:
P.O. Box 2018
Madison, WI 53701-2018
/4,~?
frL
Rayi~o~M.Roder
WI State Bar ID No. 1010463
Attorney for Petitioners,
Rockford Stop-N-Go, Inc. and
Jean A. Mathison
Madison\1233 98RMR:JJS 02/27/04
2
CLERK’S OFFICE
BEFORETHEILLINOISPOLLUTIONCONTROLBOARD
STATE
~4AR
OF
032004
ILLINOIS
JEAN
A.
MATHISON AND
)
Pollution Control Soarc~
ROCKFORD STOP-N-GO, INC.,
)
)
Petitioners,
)
vs.
)
PCB
______
)
(UST Fund Appeal)
ILLiNOIS OFFICE OF STATE
)
FIRE
MARSHAL AND
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY
)
Respondents.
)
ENTRY OF APPEARANCE
NOW COMES Raymond M. Roder, ofthe law
firm
of
Reinhart
Boerner
Van Deuren s.c. and hereby enters his appearance on behalf ofPetitioners, Rockford
Stop-N-Go, Inc. and Jean A. Mathison.
Dated at Madison, Wisconsin, this 27th day of February, 2004.
Reinhart22
East MifflinBoernerStreet,Van
DeurenSuite
600s.c.
Raymond ~d. Roderñz.
/Z~
Madison, Wisconsin 53703
WI State Bar ID No. 1010463
608-229-2200
Attorney for Petitioners,
Jean A. Mathison and
Mailing Address:
Rockford Stop-N-Go, Inc.
P.O. Box 2018
Madison, WI 53701-2018
Madison\1 23401 RMR:JJS 02/27/04