BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
CL~t~
C)
CL
NOTICE OF FILING
To:
John Kim
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Dorothy Gunn
Clerk ofthe Board
Illinois Pollution Control Board
James R. Thompson Center
Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601
PLEASE TAKE NOTICE
that on Friday, May 23, 2003, I filed with the Clerk of the
Illinois Pollution Control Board of the State of Illinois an original, executed copy of a Petition
for Review ofIllinois Environmental Protection Agency Decisions and Appearances for Carolyn
S. Hesse and Beth A. Harvey.
Dated: May 23, 2003
Carolyn S. Hesse, Esq.
Beth A. Harvey
Barnes & Thornburg
2600 Chase Plaza, 10 South LaSalle Street
Chicago, Illinois 60.603
312-214-8301
Respectfully submitted,
By:
Cj~
Carolyn S. H~
~
KELLER OIL PROPERTIES, iNC.,
)
)
Petitioner
)
)
PCBO3-130
V.
)
(USTAppeal)
)
ILLINOIS ENVIRONMENTAL,
.
)
PROTECTION AGENCY
)
)
Respondent
)
MAy
2
3 20Q3
pROF
ILLI1VOi~
Control &oqrcf
This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.2021
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
KELLER OIL PROPERTIES, INC.,
)
MAY 2
3
2003
STATE OF ILLINOIS
Petitioner
) .
Po!lut,0~Control Board
)
v.
)
PCBO3-130
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent
)
PETITION FOR REVIEW OF ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY DECISIONS
Keller Oil Properties, Inc. by its attorneys, Carolyn S. Hesse and Beth A. Harvey of
Barnes & Thornburg, pursuant to the Illinois Environmental Protection Act, 415 ILCS 5/1
et.
seq.
(the “Act”) and 35 Illinois Administrative Code Section 105.400
et. seq.,
hereby appeals.
certain decisions by the Illinois Environmental Protection Agency (the “Agency”).
1.
Keller Oil Properties, Inc. (“Keller”) is the owner ofproperty located at 419 West
Lincoln, Charleston, Coles County, Illinois. The site is a gasoline service station
known as University BP or University Shell that has underground storage tanks
(UST5) on the property, which store gasoline, heating oil, and diesel fuel.
2.
LUST Incident Number 881670 was obtained following a site investigation.
3.
On May 2, 2001, the Agency received Keller’s request for reimbursement of
costs from the Illinois Underground Storage Tank Fund (the “Request”) forthe
period from July 1, 2000 to March 31, 2001, in the amount of$71,173.17.
IThis filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.202
4.
The Agency denied certain costs in the Request in a letter dated January 17, 2003,
a copy ofwhich is. attached hereto as Exhibit A.
5.
Keller is appealing this January 17, 2003 denial because:
(a) the Agency denied certain costs due to the deduction for an adjustment to
Handling Charges greater than allowed by the sliding scale based on eligible
subcontractor charges;
(b) the Agency denied certain costs by claiming that the costs that the
owner/operator failed to demonstrate were reasonable; and
(c) the Agency denied certain~costs due to lack of supporting technical
documentation as the owner/operator failed to demonstrate that the costs are
for corrective action performed in accordance with agency approved plans.
6.
Keller disagrees with the Agency’s decision and believes that the costs submitted
for reimbursement are corrective action costs, are reasonable and are the types of
costs that are eligible for reimbursement under the Act and implementing
regulations.
The Agency’s letter denying reimbursement, Exhibit A, provides no further
explanation ofthe Agency’s reasons or bases for denial that could aid Petitioner
in setting forth its grounds ofappeal. Nevertheless, the Agency’s denial is a final
decision that Petitioner must appeal to the Board in order to preserve and enforce
Petitioner’s right to reimbursement under the UST Fund.
8.
On February 24, 2003, the parties timely filed ajoint notice to extend the appeal
deadline. On March 6, 2003, the Board filed an order extending the appeal
deadline until May23, 2003, a copy of which is attached hereto as Exhibit B.
Pursuant to the Board’s March 6, 2003 order, this appeal is timely filed.
This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.202
WHEREFORE, Keller Oil Properties, Inc. respectfully requests that the Board enter an
order that will provide that it be reimbursed from the UST Fund for its submitted costs and for its
attorneys fees and costs in bringing this appeal.
Respectfully submitted,
KELLER OIL PROPERTIES, iNC.
By:
~
One of Its Att~neys
Carolyn S. Hesse, Esq.
Beth A. Harvey
Barnes & Thomburg
2600 Chase Plaza
10 South LaSalle Street
Chicago, Illinois 60603
312-214-8301
This filing submitted on recycled paper as defined in 35 III. Adm. Code 101 .202
•
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
-
1021 NORTH GRAND AVENUE EA~, P.O. Box 19276, SPRINGFIELD, ILLINOIS 62794-9276
JAMES R. THoMpsoN CENTER, 100 WEST RANDOLPH, SUITE Fl -300, CHICAGO, IL 60601
RENEE CIPRIANO, DIRECTOR
217/782-6762-
.
~.
.
1
JAN 182003
JAN17 2003
.
.
L. Keller Oil Properties, Inc.
P,O.Bo~c70-
Attn: Joe Henry
Effingham, Illinois 62401
Re:
LPC#0290105024-Coles County
CharlestonLKeller Oil.
419 West Lincoln.~
LUST.Incident#88l670
.
.
LUST FISCAL FILE
:
.
Dear Mr. Henry:
The Agency has completed the review ofthe request forreimbursement ofcorrective actibn costs
from the Illinois Underground Storage Tank Fund for the above-referenced facility. The invoices
reviewed covered the period from July ul, 2000 to March 31, 2001. The amount requested .was
$71,173.17.
S.
• Thedeductihie amount forthisclaim i~$50,000.00~which was previously-deducted from
reimbursement requests received June 29, 1999, May 18, 2000, and March 26, 2001. Listed in
Attachment A-are the costs which are not being reimbursed from this request and the reasons
these costs are not being reimbursed.
On May2, .2001, the Agency received you~complete request forpayment for this claim: As a
result of the Agency’s review, ofthis clai±n,a \‘oucher for $60,830.57 will be prepared for
submission to the Comptroller’s Office for payment as funds become available based upon the
date the Agency received your complete reques~for payment ofthis claim. Subsequent.claims
that have beenlare submitted will be processed based upon the date complete subsequent billings
requests
are received by the Agency.
.
-
-
-
This constitutes the Agency’.s final actioii with regard to the above invoices. An underground
storage tank o~neror operator may appeal this fu~aldecisioi~to the Illinois Pollution Control
Board (Board) pursuant th Seption 22.1 8b(g) and Section 40 ofthe Act by filing a petition for a
hearing within 35 days after the date- ofissuance ofthe final decision. However, the 35-day
ROCgFQRr)
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‘
.
~
Des Plaines, IL 60011, —1847) 294-4073
ELGN
— 595 South Stam
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IL 61614 -~(3091
693.3460
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Collinsvi(Ie,IL 62234—1618)346-5120
JAN
182003 ---fl -
period may be extended for a period oftime not to exceed 90 days by written notice from the
owner or operator and the Illinois EPA within the initial 35-day appeal period. Ifthe owner or
operator wishes to receive a 90-day extension, a written requestthat includes a statement ofthe
date the final decision was received, along with a copy.ofthis decision, must be sent to the
Illinois EPA as soon as possible.
For information regarding the filing ofan appeal, please contact:~
-
Dorothy Gunn, Clerk
-.
-
Illinois Pollution Control Board
State ofIllinois Center
S
100 Wést.Randolph, Suite 11-500
Chicago, Illinois 60601
ii2/oILf~.ioZU
.
-
For information regarding the filiflg of an extension,.please contact:
Illinois Environmental Protection Agency
DiviSion ofLegal Counsel
102 l’North Grand Avenue East
Springfield, Illinois 62794-9276
217/782-5544
•
-
Ifyou have any questions, please contact Diana Gobelman or Carol Hawbakér of the LUST
Section technical staff at 217/782-6762.
.
S
S
DEC :DLG:bjh\03 35 64.doc
Attachment
Page 2
E. Oakley, Manager
-
LUST Claims Unit
Planning & Reporting Section
Bureau ofLand
cc:
CW3M
-
Attachment A
-
A~countingDeductions
- •
•JAN 182003
Re;
LPC ~0290105024
--
Coles County
-
-
- -
•
Charl~stonJKellerOil
S
.
-
-
419 W~stLincoln
-
• S
LUST Ipnident Nb. 881670
•
S
-
LUST FISCAL FILE
-
.
. - -
Item #
.
Description of Deductions
I.
$1,117.60, deduction for an adjustment in Handling Charges of greater than the
allowed Sliding Scale (Section 22.lSb(i)(2) ofthe Environmental Protection Act).
Amount reduced due to rate allowable per sliding scalebased oft total of eligible
-
subcontractor charges in hilling package. Reduced for amount billed for ineligible
subcontractor invoices.
S
•
-
S
$
1.75.00, deduction in costs that the owner/operator failed, to demonstrate were
reasonable (Section 22.1 Sb(d)(4)(C) ofthe Eiivironmental Protection Act).
CW3M 1/01
—
Administrativ-e assistant and engineer rates
-
$54.00
CW3M 2/01 —Project manager ~d engineer rates
-
$121.00
DEO:DLG:bjh\033564.doc
S
•
-.
S
-
S
S
-
S
-
AttachmentA
-
Technical Deductions
-
S
-
•
JAN1 82003
Re:
LPC#0290105024--Coles County
-
-
Charleston / Keliei~Oil
‘
S
419 West Lincoln
S
S
S
LUST Incident No. 881670
•
5
LUST FISCAL FILE
Item #
Description ofDeductions
-
-
S
-
-
$9,050.00,
deduction for costs that lack supporting technical documentation as the
owner or operator failed to demonstrate that ~hecosts are for corrective action
performed in accordance with the plans approved by the Agency (Section
22.1 8b(d)(4)(F) ofthe Environmental Protection Act). In addition, this amount
is
being
deducted for costs that the owner/operator failed to demonstrate were-reasonable.
(Section 22.1 Sb(d)(4)(C) of the Illinois Environmental Protection Act).
-
These ‘costs are associated with LEL and-Air Operated.Re~overyPump rates. There are
no corresponding Personnel hours for the LEL that would demonstrate LEL use and no
corresponding Personnel hours that would be required for a manual pumping as
described in the letter dated June
15,
2001 to Diana Gobelmanjustifying the need for a
-
technician to manually pump the Varsity Inn sump.
-
S
5—’
ILLINOIS POLLUTION
March 6,
KELLER OIL (July 1, 2000— March 31,
2001),
Petitioner,
v
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
CONTROL BOARD
2003
)
)
)
)
S
)
PCBO3-130
)
(UST Fund)
)
(90-Day Extension)
)
)
)
)
ORDER OF THE BOARD (by T.E. Johnson):
On February 24, 2003, the parties placed in the U.S. mail ajoint request to extend the
35-
• day period within which Keller Oil may appeal a January 17, 2003 determination of the Illinois
Environmental Protection Agency (Agency).
See
415 ILCS 5/40(a)(1) (2002); 35 Ill. Adm. Code
• 105.206(c), 105.208(a), (c). Keller Oil was served the Agency’s determination on January 18,
.2003. Because the joint, request’s postmark date is within the filing period following’Keller Oil’s
receipt of the Agency.decision, the petition is timely filed.
See 35
Ill. Adm. Code 101.300(a),
101 .300(b)(2), 105.404. The Agency issued a reimbursement from the Underground Storage
Tank Fund in the amount of
$60,830.57.
Keller Oil requested $71,173.17. This matter regards
Keller Oil’~leaking underground storage tank site at 419 West Linc•oln in Charleston, Coles
County. The Board extends the appeal period until May 23, 2003, as the parties request.
See
415 ILCS
5/40(a)(1)
(2002); 35 Ill. Adm. Code 105.208(a). IfKeller Oil fails to file an appeal
on or before that date, the Board will dismiss this case and close the docket.
.
S
ITISSOORDERED.
S
S
5
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on March 6, 2003,, by a vote of6-0.
,
EXHIBIT
I
Dorothy M. Gunn, Clerk
‘Illinois Pollution Control Board
BEFORE THE POLLUTION CONTROL
BOARD~~CE!V
OF THE STATE OF ILLINOIS
S
CLrr~r,
~‘
S OFFICE
D
KELLER OIL PROPERTIES, INC.,
)
•
ST,~-j-~
M/-iy
Con
232003
froLBoard
Petitioner
)
)
)
)
5)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent
)
APPEARANCE
S
NOW COMES
the undersigned, Carolyn S. Hesse, and enters an appearance for the
Petitioner, KELLER OIL PROPERTIES, iNC., in the above captioned matter.
Dated: May 23, 2003
Keller Oil Properties, Inc.
By:__________
-
One of Its At~rneys
Carolyn S. Hesse
Barnes & Thornburg
S
10 S. LaSalle Street
Suite 2600
Chicago, Illinois 60603
(312)214-8301
This filing
submitted on recycled paper as defined in 35 III. Adm. Code iOl.202J
BEFORE THE POLLUTION CONTROL
BOARDRECE~VED
OF THE STATE OF ILLINOIS
CLERK’S
OFFICE
KELLER OIL
S
PROPERTIES, INC.,
))
STATE
M/~Y23
OF ILLINOIS
2003
Petitioner
Pollution Control Board
)
v.
S
~
PCBO3-130
)
)
ILLINOIS ENVIRONMENTAL
)
-
S
PROTECTION AGENCY,
)
)
Respondent
)
S
APPEARANCE
NOW COMES
the undersigned, Beth A. Harvey, and enters an appearance for the
Petitioner, KELLER OIL PROPERTIES, iNC., in the above captioned matter.
Dated: May23, 2003
Keller Oil Properties, Inc.
By:~j~~
0
~
S
One of Its Attorneys
ç~J
Beth A. Harvey
Barnes & Thomburg
10 S. LaSaIle Street
Suite 2600
5
Chicago, Illinois 60603
(312) 357-1313
CHDSOI
BzH
169026vj
This filing submitted on recycled paper as defined in
35
III. Adm. Code iOi.202J
CERTIFICATE OF SERVICE
I,
on oath state that I have served the attached PETITION FOR REViEW OF ILLiNOIS
ENVIRONMENTAL PROTECTION AGENCY DECISIONS and APPEARANCES forBeth A.
Harvey and Carolyn S. Hesse by placing a copy in an envelope addressed to:
John Kim
S
Special Assistant Attorney General
Illinois Environmental Protection Agency
.5
5
1021 North Grand Avenue East
S
P.O. Box 19276
Springfield, Illinois 62794-9276
via U.s. mail this ~
3
day ofMay, 2003.
Dorothy Gunn
Clerk ofthe Board
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601
via Hand Delivery this
~3
day ofMay, 2003.
S.
,
________
Carolyn S. Hes~
This filing submitted on recycled paper as defined in
35
LII. Adm. Code 101.2021