WARREN’S SERVICE,
)
)
vs.
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
John I.
Kim
Assistant
Counsel
Special Assistant Attorney
General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O.
Box
19276
Springfield,
IL
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 ofwhich is herewith served
upon you.
Robert E.
Shaw
IL ARDC
No. 03123632
Curtis W. Martin
IL ARDC No. 06201592
SRAW
& MARTIN,
P.C.
Attorneys
at Law
123
S.
10th Street, Suite
302
P.O.
Box
1789
Mt.
Vernon, Illinois
62864
Telephone
(618)
244-1788
By
~
~
/Cu~tisW. Martin,~orney
for
(
Warren’s Ser~~~
Petitioner
RECEIVED
BEFORE THE POLLUTION CONTROL BOARD
CLERK’S
OFFICE
OF THE STATE OF ILLINOIS
Petitioner,
JUN
1
62003
STATE OF
ILUNOIS
Pollution
Control
Board
)
)
)
PCBNo.03-~0
)
(UST Appeal)
)
)
)
)
RECEiVED
CLERK’S
OFFICE
BEFORE THE
POLLUTION CONTROL BOARD
JUN
16200
OF THE STATE OF ILLINOIS
STATE OP ILLINOIS
WARREN’S
SERVICE,
)
POllUtiOfl COfltTOI
Board
)
Petitioner,
)
vs.
)
PCB
No.
03-
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
PETITION FOR REVIEW OF FINAL AGENCY
LEAKING UNDERGROUND STORAGE TANK DECISION
NOW
COMES the Petitioner, Warren’s Service (“Warren’s”), by one of its
attorneys, Curtis W. Martin of Shaw
& Martin, P.C., and, pursuant to Sections
57.7(c)(4)(D) and 40
of the Illinois Environmental Protection Act (415 ILCS
5157.7(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 ofthe Illinois
Environmental
Protection Agency (“Agency”) in the above cause,
and in support
thereof, Warren’s respectfully states as follows:
1.
On March
11,
2003, the Agency issued
a final decision to Warren’s,
a
copy of which is
attached hereto as Exhibit
A.
2.
On April 10,
2003, Warren’s made a written request to the Agency for
an extension of time
by which to file a petition
for review to ninety days,
a copy of
which is attached hereto as Exhibit
B.
3.
On April
16,
2003, the Agency joined in Warren’s request that the
Board extend the thirty-five day period for filing a petition to ninety
days, a copy of
which is attached hereto as Exhibit
C.
4.
The grounds for the Petition herein are as follows:
Warren’s submitted
to the Agency, through its consultant,
United
Science Industries,
Inc.
(“USI”), pursuant
to 35
Ill.Adm.Code
731,
a request
for
reimbursement
of costs incurred with regard to corrective action
activities
conducted at Warren’s site.
The request satisfies the requirements
ofthe Illinois
Environmental
Protection
Act,
415
ILCS
5/1
et seq.,
and the regulations
promulgated thereunder,
in that it reflects
activities
and cost associated therewith
in accordance with generally accepted engineering practices.
The costs
associated
with each material,
activity
and service necessary to accomplish the goal of the
environmental remediation
at Warren’s site were reasonable
and consistent
and
were incurred in the performance necessary to meet the minimum
requirements
of
the Act and the regulations promulgated thereunder.
Further,
the costs associated with each material,
activity,
and service
necessary to accomplish the goal of the environmental
remediation are similar in
generally
accepted engineering practices
and technical protocol to those
historically
submitted to and approved by the Agency which the Agency now deems
to be
unreasonable
and inconsistent
with
generally accepted engineering practices.
More
specifically:
2
(1).
The Agency’s adjustment of $6,411.05 in Geoprobe, drilling
foreman, rig hand,
and laborer charges as unreasonable was on merely a cost basis
and is therefore
arbitrary
and capricious.
(2).
The Agency’s adjustment of $16,800.00 for Chemical Oxidation
Compound
(“Compound”) due to lack of supporting documentation
was on merely a
cost basis with no technical justification.
USI provided the Agency with sufficient
information for this
“in stock” item which was not a “field purchase.”
The Agency
has requested information regarding USI’s cost for the Compound under
circumstances
in which USI provided the Compound rather than a third party.
Thus, the information requested by the Agency is not relevant to the reasonableness
of the charges for the Compound in the environmental remediation industry, just
as, for example, information regarding USI’s payroll for various employees
is not
relevant.
The industry
standard supports the
$12.00 per pound
charge for the
Compound requested by USI and the Agency’s adjustment
is therefore
arbitrary
and capricious.
WHEREFORE,
Petitioner,
Warren’s Service,
for the reasons stated above,
requests
that the Board reverse the
decision ofthe Agency and rule in favor of
Petitioner’s
request for approval of its reimbursement
request as being 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(l)and
35 Ill.
Adm.
Code 732.606(1).
3
Robert E. Shaw
IL ARDC
No. 03123632
Curtis W. Martin
ILARDC No. 06201592
SHAW
&
MARTIN,
P.C.
Attorneys at Law
123
S.
10th Street, Suite
302
P.O. Box 1789
Mt. Vernon, Illinois 62864
Telephone (618) 244-1788
4
Respectfully
submitted,
SHAW &
MARTIN,
P.C.
By~~
/J~
/
Curtis
W. Martin~ttorney for
(
Warren’s Servp6~Petitioner
ILUNOIS
ENVIRONMENTAL
PROTECTION
AGENCY
021
NORTH
GRAND
I~VENUEEAST,
P.O.
Box
1 9.276,
SPRINGFIELD,
ILLINOIS
62794-9276
jAMEb
R.
T~ot.i~so~
~
100
Wc~T
~
SUITE
1 -30n..
CHICAGO.
IL
60601
Roo
R.
BLAGOJEVICH,
GOVERNOR
RENEE
CIPRTANO,
DIRECTOR
21
7i’782-6762
MAR11
2O~3
Warren’s Service
Attention:
Ronald
Ayers
84
County Highway
7
Lynn Center, IL
61262
Re:
LPC#1310405001
--MercerCounty
Sherrard/Warren’s Service
3rd&5th
LUST Incident
Number 902097
LUST FISCAL
FILE
Dear
Mr. Ayers:
On November 25,
2002. the Agency sent you
a letter regarding the site referenced above.
Upon
further review, an
additional
voucher for ~ 1 7,750.86
will
be
prepared for submission
to
the
Comptrollers
Office for payment as funds become available.
An
underground storage tank owner or operator
may appeal
this decision to
the Illinois
Ppllution
Control
Board
(Board)
pursuant to
Section
57.8(i) and
Section
40 of the Illinois
Environm?ntal
Protection Act.
An owner or operator who seeks to
appeal
the Agencv’s decision may. within
35
days after the notification
ofthe
final Agency
deciSion,
petition for a
hearing before th~
l3oard:
however,
the 35-day
period may he extended
for a
period
of’ time not
to exceed
90
clays
by
written notice provided
to
the Board
from
the applicant and
the Agency within
the
35—day
initial
appeal
period.
For information regarding the filing of an
appeal. pIea~econtact:
Dorothy Ounn.
Clerk
Illinois
Pollution
Control
Board
State of Illinois
Center
TOO
West Randolph. Suite
I
1-500
Chicago.
Illinois
60601
312/814-3620
—-‘302
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Page
2
For information regarding the
filing of an extension, please contact:
Illinois Environmental
Protection
Agency
Division of Legal
Counsel
1021
North Grand Avenue
East
Springfield. Illinoi~62794-9276
21 7/782-5544
If
you
have any questions,
please contact Kevin
l\’lably
or myself at 217/782-6762.
DEO:KM:jk\03301 15.doc
E.
Oakley. Manager
LUST
Claims Unit
Planning &
Reporting
Section
Bureau ofLand
cc:
United Science Industries
Attachment A
Accounting Deductions
Re:
LPC#1310405001
--MercerCounty
SherrardlWarren’s Service
3rd&Sth
LUST
Incident Number 902097
LUST FISCAL FILE
Item #
Description of Deductions
I.
$70.39,
deduction for an
adjustment in
costs due
to a lack of supporting
documentation
(Section 22.1 8b(d)(4)(C) of the Environmental Protection Act).
United Science Industries-invoice
#18-10379
Need receipt-Hotel
$70.39 Total
Accounting Deductions
DEO:KM:jk\03301 15.doc
Att3:0h~i~~t
A
—
Technical Deductions
Re:
LPC#1310405001
--Mercer County
SherrardiWarren’s
Service
3rd
& 5th
LUST Incident Nü~nber
902097
LUST
FISCAL FILE
Item #
Description of Deductions
$6,411.05.
deduction in costs
that the owner/operator failed
to demonstrate
were
reasonable (Section 22.1 8b(d)(4)(C) of the Environmental
Protection Act).
Specifically, the combined rate for the Geoprobe. plus drilling foreman.
rig hand.
and
laborer,
are
excessive.
The Personnel cost
for Adams. K. Pavietich. and,Tensmever.
S.
total
57.850.
Hotel
rooms
for these individuals totaled $601.05
($248.40 plus $248.40 plus
$104.05).
Use of the Geoprobe was billed at $80/hour for 62
hours over seven days. for a total
of
54.960.
.
A tot
fthe above charges equals $13,411.05
A reasonable rate for these activities
is
7.00Q~thus
the ~6,41 1.05
deduction.
2.
$16,800.00. deduction for an
adjustment in costs due
to
a
lack of supporting
documentation
(Section22.IS’b(d)(4)(C) of the Environmental
Protection Act).
Speciticaily. we ~nemicai
Oxidation Compound
is
JisteO
at
~
I LUU/Lb.
All
invoice
from the manufac~~ottlisCilel~lical
Oxidation
Co mpou~id
sliou Id
he provi dccl
documenting the rate paid for this
compound.
DEO:KM:jk\033Q1 15.doc
UNITED
SCIENCE
INDUSTRIES
P.O.
Box 360
6295
East Illinois
Highway
15
Woodlawn, Illinois 62898-0360
AprH
10,
2003
Illinois
Environmental
Protection Agency
Division of Legal Counsel
1021
North Grand Avenue East
Springfield,
IL 62792-9276
Attn: John
Kim
Re:
LPC# 1310405001
—
Mercer Co.
Sherrard/Warren’s Service
3rd
&
5th
LUST Incident No. 902097
Mr. Kim:
Phone: (618) 735.2411
Fax: (618) 735-2907
E-Mail: unjtecjscjence@unitedscjence corn
7
.-,:.~
~ 4~
;‘&
,.=,~
,j
•.j
i~
Divi~ion
of Loc~iCo’ns’~l
A~1
k
Environmental
Protection
Agency
United
Science Industries, Inc. (US1), on behalf of our cfient, Mr.
Ronald Ayers, is
requesting
a
90-day
extension
to
the
35-day
appeal
period
in
regards
to
the
IEPA correspondence
dated
March
11,
2003
and
received
by Mr.
Ronald
Ayers
on March
12, 2003.
A copy of the correspondence
is attached.
I
appreciate
your
time
and
consideration
in
this
matter.
If
you
have
any
questions or comments
concerning
the
above,
please contact me
at
(61a) 735-
2411
Sincerely yours,
UNITED SCIENCE
INDUSTRIES,
INC.
Matt Cherry
Project Manager
Enclosures
BEFOI~
THE
POLLUTION CONTROL BOARD
OF
THE
STATE
OF ILLINOIS
WARREN’S
SERVICE,
)
-.
Petitioner,
)
V.
)
PCB No. 03-
ILLiNOIS ENVIRONMENTAL
)
(LUST Appeal
—
Ninety Day Extension)
PROTECTION
AGENCY,
)
Respondent.
)
REQUEST
FOR
NINETY
DAY EXTENSION
OF APPEAL PERIOD
NOW
COMES
the Respondent,
the Illinois
Environmental
Protection Agency
(“Illinois
EPA”),
by one of its
attorneys, John
5. Kim,
Assistant
Counsel
and
Special
Assistant Attorney
General, and,
pursuant
to
Section
40(a)( 1)
of the
Illinois
Environmental
Protection
Act
(415
•
ILCS
5/40(a)(1))
and
35
Iii.
Adm.
Code
105.208,
hereby requests
that
the
Illinois
Pollution
Control Board
(“Board”)
grant an
extensionofthe
thirty-five
(35)
day period for petitioning for a
hearing
to
July
15,
2003,
or any
other date not
more than a
total of one
hundred
twenty-five
(125)
days from
the date of service of the illinois EPA’s
final decision.
In support thereof, the
Illinois
EPA respectfully states as follows:
1.
On March
11,
2003,
the’ Illinois
EPA issued
a
final
decision to
the
Petitioner.
(Exhibit A)
2.
On April
10, 2003, the Petitioner made a written request to the Illinois EPA for an
extension of time by which to file a petition for review,
asking the Illinois
EPAjoin in requesting
that the Board extend the thirty-five day period for filing a petition to ninety days.
The
Petitioner
represented that the final decision was received on March
12,
2003.
(Exhibit B)
3.
The additional time requested by the parties may eliminate the need for a hearing
in this
matter or, in the alternative, allow
the parties to
identify issues and
limit the
scope ofany
hearing that may be necessary to resolve this matter.
1
EXHIBIT____
WHEREFORE,
for the reasons stated
above,
the parties
request that
the
Board,
in the
interest of administrative
and
judicial economy, grant
this request for a ninety-day extension of
the
thirty-five
day period for petitioning for a hearing.
Respectfully submitted,
ILLiNOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
JohnS. Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal
Counsel
1021
North Grand Avenue, East
P.O.Box
19276
Springfield,
Illinois 62794-9276
217/782-5544
217/782-9143
(TDD)
Dated: April
16, 2003
This filing
submitted on recycled paper.
2
CERTIFICATE OF SERVICE
I, the undersigned attorney at law,
hereby certify that on June
13,
2003,
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 I. Kim
Illinois
Pollution
Control Board
Assistant
Counsel
State
of Illinois
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, IL
62794-9276
Martin,
ttorney for
Petitioner, W~
Service