NOTICE
BEFORE THE POLLUTION CONTROL BOARDOF THE STATE OF ILLINOIS
PETITION FOR REVIEW OF FINAL AGENCYLEAKING UNDERGROUND STORAGE TANK DECISION
~lerof
CERTIFICATE OF SERVICE

MIDWEST PETROLEUM

COMPANY,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

State of Illinois Center

100

West Randolph Street

Suite

11-500

Chicago, IL

60601

)

NOTICE

RECE~VE~,

CLERK’S OFFICE

FEB

21305

STATE OF ILEJNOJS

PoHut~on

Control Board

)

PCBNo

)

(UST Appeal)

John J.

Kim

Assistant

Counsel

Special Assistant Attorney

General

Division of Legal Counsel

1021 North Grand Avenue, East

P.O. Box

19276

Springfield,

62794-9276

PLEASE

TAKE

NOTICE that

I have today filed with the office of the Clerk of

the Pollution Control Board a Petition for Review of Final Agency Leaking

Underground Storage Tank Decision,

a copy of which is herewith served

upon you.

Robert E. Shaw

ILARDC No. 03123632

Curtis

W. Martin

IL ARDC No. 06201592

SHAW

MARTIN, P.C.

Attorneys at Law

123

10th Street, Suite

302

P.O. Box

1789

Mt. Vernon, Illinois

62864

Telephone

(618) 244-1788

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

vs.

RECF~IVE~

CLERK’S OF~F

BEFORE THE POLLUTION CONTROL BOARD

FEB

16 2~5

OF THE STATE OF ILLINOIS

STATE OF

lLtw~ ~S

PoHut~on

Contro’

~ard

MIDWEST PETROLEUM

COMPANY,

)

Petitioner,

)

vs.

)

PCB No. 05-

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

PETITION FOR REVIEW OF FINAL AGENCY

LEAKING UNDERGROUND STORAGE TANK DECISION

NOW COMES the Petitioner, Midwest Petroleum

Company,

(“Midwest”), by

one of its attorneys,

Curtis

W. Martin of Shaw & Martin,

P.C., and, pursuant

Sections 57.7(c)(4)(D) and 40 of the Illinois Environmental

Protection Act (415 ILCS

5/57.7(c)(4)(D) and

40) and

35 Ill. Adm.

Code 105.400-412, hereby requests

that the

Illinois Pollution

Control Board

(“Board”) review the final decision of the Illinois

Environmental

Protection Agency

(“Agency”) in the above cause, and in support

thereof, Midwest respectfully

states as follows:

On January

11,

2005, the Agency issued a final decision which was

received by Midwest on January

17,

2005,

a copy ofwhich is attached

hereto as

Exhibit A.

The basis for Midwest’s appeal is as follows:

The Agency’s January

11,

2005 letter

addressed an Application for

Payment

from Midwest,

through

its consultant,

United Science Industries,

Inc.

(“USI”), dated September

14,

2004 covering the period from May

2000

to August

21,

2004 requesting payment of $68,709.09.

The Agency deducted a total of

$27,089.04 and indicated a voucher for $41,620.05

would be prepared for

submission

to the Comptroller’s

Office for payment.

Midwest does not contest the

Agency’s deduction of $2,187.04

for costs that

the Agency claims lacks supporting

documentation.

Midwest

does contest the remaining $24,902.00 in deductions.

The first deduction Midwest contests is for $1,596.25 for what the

Agency describes as “indirect corrective

action costs” for personnel,

materials,

service,

or equipment charged as direct corrective action costs.

It appears the

Agency’s position is that reimbursement

is not available for “communications

between consultant

and client or consultant and the Illinois

EPA.”

First,

this

deduction is not based upon any specifically applicable statute

or regulation.

Second, this deduction is not based upon

any past practice by the Agency.

Third,

the assertion by the Agency that these communication activities

are “indirect

corrective action costs” implies that they are not associated with compliance

with

the provisions ofSections

57.2,

57.6,

and 57.7 ofthe Illinois

Environmental

Protection Act

(“Act”),

415 ILCS

5/57.2,

57.6 and 57.7, or 35 Ill. Adm.

Code 732.103.

None ofthese statutes

or the regulation specifically address such communication

activities

as “indirect corrective action costs” not subject to reimbursement.

35 Ill. Adm.

Code 732.605(a) in particular

sets forth the corrective

action activities costs that

are eligible for payment from the UST Fund, which

include costs

associated with engineering oversight services, remedial investigation

and design, engineering costs

associated with seeking reimbursement

from the UST

Fund including, but not limited

to, completion of applications for payment,

obtaining eligibility and deductibility determinations

from the

Office of the State

Fire Marshall or the Agency, preparation of site classification plans and associated

budgets,

site classification reports,

groundwater monitoring plans

and associated

budgets,

groundwater

monitoring completion reports,

high priority corrective action

plans and associated budgets,

and high priority corrective action completion

reports

just to name a few.

These were the types of activities performed by

USI

Midwest’s behalf.

Further,

Section 57.7(f) requires

all investigations,

plans and

reports to be conducted

or prepared by licensed professional engineers, yet this

same section places the responsibility

for such work directly upon the owner or

operator.

Thus,

communications between the consultant and the client or the

consultant

and the Agency by telephone,

e-mails,

correspondence,

and any other

means

are absolutely essential

and directly relate to the necessary corrective action

activities.

As such, these

costs

are necessary in order to comply with

Sections 57.6

and

57.7 of the Act and 35 Ill. Adm.

Code

732. 103 and are therefore eligible for

payment from the UST Fund.

Furthermore, within this particular project, the

Agency has approved the reimbursement of the same type of costs

associated with

client correspondence

by its letter dated August 21,

2003.

For all the foregoing

reasons, the $1,596.25

deduction by the Agency is without

merit,

is arbitrary

and

capricious,

and subject to reversal.

The next Agency

deduction Midwest challenges is the $23,049.50

deduction for costs

associated with a non-approved budget.

~though

the Agency

refers to the

denial of two budgets dated September

23,

2002 and May 2,

2003, the

very costs the Agency deducts by this January

11,

2005 letter are the costs

associated with work performed and

documented in Section

D-1 of the Corrective

Action Plan

and associated Budget dated July,

2004 which were approved by

Agency letter

dated September

2004.

Therefore, the Agency’s reliance upon 35

Ill. Adm.

Code 732.601(f) is wholly without merit,

and is arbitrary

and capricious

and should be reversed.

The final Agency

deduction challenged by

Midwest is for $256.25 in

costs associated with “duplicate

billings” and lack of supporting

documentation.

According to Midwest’s records, these

costs are reflected in USI Invoice #18-8469 for

preparation ofUST paperwork,

corrective action plan preparation and project

administration between August

2001 and August

31,

2001.

No duplication of

payment has been requested and these

costs were not covered in the Agency letter

dated August 21,

2003 as contended by the Agency.

These costs

are therefore

subject to reimbursement

from the UST Fund and the Agency’s decision in this

regard should be reversed.

WHEREFORE,

Petitioner, Midwest Petroleum

Company, prays that the

Agency’s decision of January

11,

2005,

except for the deduction

of $2,187.04,

reversed, that its request for payment be approved as reasonable, justifiable,

necessary,

consistent

with generally accepted engineering

practices,

and eligible

for

reimbursement

from the UST Fund and that Petitioner recover its attorney’s fees

and costs incurred herein pursuant

to 415

ILCS

5/57.8(1) and 35

Ill. Adm.

Code

732.606(g).

Respectfully submitted,

SHAW & MARTIN,

P.C.

Robert

E. Shaw

IL ARDC

No. 03123632

Curtis

W. Martin

IL ARDC No.

06201592

SHAW &

MARTIN, P.C.

Attorneys

at Law

123

10th Street, Suite

302

P.O. Box 1789

Mt.

Vernon, Illinois

62864

Telephone

(618)

244-1788

orney for

Midwest ~

Petitioner

ILLINOIS

ENV1RONME~JTALPROTECTION

AGENCY

1021

N0RFH G~No

AVENUE

EAST,

P.O.

Box 19276,

C~I~LP,

ILLiNOIS

62794-9276, 2) 7-~’8-3397

JAMES

THOMPSOr’I

CENTER,

100

WEST

RANDOLPH,

SUfTE

1 1-300,

CHICAGO,

IL 60601, 312-814-

RoD

BLACOJEVLCJ-L,

GOVERNOR

RENES

CIPRI~~NO,

D1RECTOR

217/782-6762

JAN

2~Q5

Midwest Petroleum Company

Atm:

Mike

McNutt

?ost Omce Box

3765

Evansville, Indiana

47736

Re:

LPC #1~3

1255004

St. Clair

County

ShilohlWei

Enterprises

529

Maple Street

LUST Incident No. 982804

LUST

FISCAL FILE

DearMr.McNult:

The

Illinois

Environmental Protection Agency has completed the review of your ap

payment

from ~

Underground Storage Tank Fund for the above-referenced LUS1F

pursuant to Sectin 57.8(a) ofthe Illinois Environmental Protection Act (Act), and

Code 732, Subpart F.

This

information is dated September 14, 2004 and was receiv

Agency on September

15, 2004.

The application forpayment

covers the period

fr~

2000 to August 21, 2004.

The amount requested Ts $68,709.09.

The deductible amount

for this claim is $10,000.00, which was previously deducted

Invoice Voucher dated February 16, 2000.

Listed

in Attachment A are the

costs

whi

being paid and th~

reasons these costs are not being paid.

On September

15, 2004, the Agency received your complete application for

paym~r1’

claim.

As a result ofthe Agency’s review of this application for payment,

a voucher

$41,620.05 will be prepared for submission

to the Comptroller’s Office for paymer~t

become available based upon the date the Agency received your complete r~quest

this application fcr payment.

Subsequent applications forpayment that have been/ar

wifl

be processed based upon

the

date complete subsequent application

for

payment

received by the Agency.

This constitutes the Agency’s

final

action with regard

application(s) for payment.

An underground storage tank owner or operator may appeal

this

final decision to th~

Pollution Control Board (Board) pursuant to Section

57.8(i)

and Section 40 ofthe

petition for a hearing within 35 days after the date ofissuance ofthe final decision.

Ro~r~Ro

—

4302

No~’Th

Main Slreet.

Ro~kford.

IL 61103 —(819) 9~7-7760

•

PLMNg~

—

9511

Harrison SL Ce~

PLoines,

rLô(b0

—

595 South S~ie.

~Igin. IL 60123

—

(347) 608•31 31

‘

PLCRIc

—

5415

iv~rscy

Si.,

Peori3,

L~ ~16)4

—

(309) ~

B~i~~j

—

7620

University St., Peori~,

IL 61614— (309)

6’~3-5462

•

Cr1’v~ii’Aiur~

—

2125 South First Street, C)~mpaign~

SINc.rI~U~

—

4900 S. Ssth

Street Rc..

Spr~r~0e(o.

(L. 62706

—

2)7

7~6.6092

•

CcDwN~Vlu.r

—

2009

M~U

SIrt~’t.

ir~sviI(o.

—

2309

M~nSt., Suite

(16, Marion,

IL 62959— (61 S) 993-7200

EXh~T_~

JAN

i?REC13

‘~2

lication for

~ncident

Ill,

Mm.

dbythe

May

~‘rom

the

are

not”

for this

funds

payment

of’

submitted

equests are

above

ilinois

filing

owever, the

6—

()~47i2’)4~4000

61a2o—

(217J

27E-5800

—

(618) 346-5120

PRIr~Ttuci~

RtC~C~i~

FAPt~

Page

35-day

period may be extended for a period of

time

not to exceed 90 days by

written

the owner or operator

and

the Illinois EPA

within

the initial 35-day appeal

period.

applicant wishes

1.0

receive a 90-day extension, a

written

request that includes a stare

date the

final

decision was received, along with a copy ofthis decision, must be

sex~iz

Illinois

EPA as scart as possible.

For information rc~garding

the

filing ~f 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

For information regarding the

filing ofart extension, please contact:

Illinois Environmental Protection Agency

Division of

Legal

Counsel

1021

North

Grand Avenue East

Sp:ringfleld, Illinois 62794-9276

217/782-5544

If you have any

q tiestlons or require

further

assistance, please contact Mindy

Harry ChappePs

staffat 217/782-6762.

notice fran.

the

nent

of the

;o the

~lerof

Oakley, Manager

LUST Claims Unit

Planning

& Report.ng Section

Bureau ofLand

DEO:NM:ct\0503593.doc

cc;

United Scieice Industries

Attachment A

Technical Deductions

Re:

LPC’

#l63125~004

—

St. Clair County

Shiloh/Wei Ei~terprises

529

Maple Stri~et

LUST Inciden;: No, 982804

LUST

Fiscal File

Citations

in this attachment are

from

and

the Environiriental Protection Act (Act),

as an~éded by

Public Act 92-0554 or June 24, 2002, and

Illinois Administrative Code

(35

III. Adni

ode).

Item #

Description ofDeductions

52,187.04,

deduction for costs that lack supporting documentation (35 III. M

~.Code

732606(gg)).

Since there is no

supporting documentation ofcosts, the I11ino~s~

EPA

cannot determine that costs were not used for activities

in excess of those neclel

meet the minimum requirements of Title

XVI ofthe Act (Section

57.5(a)

ofth

Act

and 35

lU. Adm.

Code 732.606(o)).

1.596.25,

deduction for indirect corrective action costs

for personnel, materi~

service, or equipment charged as direct costs

(35

Ill. Adm. Code

732.606(v)))

addition. these costs are not correCt1ve action costs.

‘Correcnve action” meansi

activity asso’~iaied

with compliance with

the provisions ofSections

57.6 ai~d

..~

7 of

the Act (Section 57.2 ofthe Act and 35 Ill.

Adrn. Code

732.103).

One ofthe

eligibility requirements for accessing the Fund is

that

costs are associated with

“corrective

a:tion” (Section.57.9~a)(7)ofthe Act),

The Illinois EPA LUST

F~.t

d d~ès

not reiniburs~

for conhlnunicatio?Js between consultant and client or consultanf.

d the

Illinois EPA.

523,049.50,

deduction for costs associated

with a non-approved budget

(35

1ll~

dm.

Code 732.60

1(f)).

The illinois EPA denied two (2) budgets with which

these ~

ts are

associated with dated September 23,2002 and May 2, 2003.

5256.25,

deduction for costs associated with duplicate billings.

(Section

57.7(c)(4)(C) ofthe Act and 35

lii.

Adm. Code

732.606(o)).

In addition, thesq

sts

lack supporting documentation (35

111. Adrn. Code 732.606(gg)).

Since there ~

supporting dccumentation ofcosts. the Illinois EPA cannot determine that cos~s~

ere

not used for activities in

excess ofthose necessary to meet the minimum require

ients

ofTitle XVI oftie

Act

(Section

57.5(a)

ofthe Act and 35

Adrn. Code 732.~.6(o)).

The Illinois EPA cannot determine what the

costs are associated

with considerjn~the

dates the work was performed.

Th~secosts should

have been covered in

the liii

ois

EPA letter dated August 21,

200’3.

HAC;MW:mw\982804FiscalAttachment

A-4.DOC

CERTIFICATE

OF SERVICE

I, the undersigned attorney

at law, hereby certify that

on February

,/~‘,

2005, I served true and correct copies of a Petition for Review of Final Agency

Leaking Underground Storage

Tank Decision, by placing true and correct copies in

properly sealed and addressed envelopes and by

depositing said sealed envelopes in

a U.S. mail

drop box located within

Mt. Vernon,

Illinois, with sufficient

Certified

Mail postage affixed thereto,

upon the following named persons:

Dorothy M. Gunn, Clerk

John J. Kim

Illinois Pollution Control Board

Assistant

Counsel

State

ofIllinois

Center

Special Assistant

Attorney General

100 West Randolph Street

Division of Legal Counsel•

Suite

11-500

1021 North Grand Avenue,

East

Chicago, IL

60601

P.O.

Box

19276

Springfield,

62794-9276

for

Petitioner,

Petroleum

Company