BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
RECEtv~
KELLER OIL PROPERTIES, iNC.,
)
MAy
2
3
2003
Petitioner
)
ST/~T~
OFILLINOIS
)
PCB 03
-
136
° Ut/on Controi~
v.
)
(USTAppeal)
)
ILLiNOIS ENVIRONMENTAL,
)
PROTECTION AGENCY
)
)
Respondent
)
NOTICE OF FILING
To:
JohnKim
Dorothy Gunn
Special Assistant Attorney General
Clerk ofthe Board
Illinois Environmental Protection Agency
Illinois Pollution Control Board
1021 North Grand Avenue East
James R. Thompson Center
P.O. Box 19276
Suite 11-500
Springfield, Illinois 62794-9276
100 West Randolph Street
Chicago, Illinois 60601
PLEASE TAKE NOTICE that on Friday, May 23, 2003, I filed with the Clerk ofthe
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
Respectfully submitted,
By:___________
Carolyn S. Hb~se
Carolyn S. Hesse, Esq.
Beth A. Harvey
Barnes & Thornburg
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
BEFORE THE POLLUTION CONTROL BOARD
RK S OFFICE
OF THE STATE OF ILLINOIS
Mi~y2 3
2003
KELLER OIL PROPERTIES, INC.,
)
STATE
OFControl‘WNoIsBoard
Petitioner
)
)
v.
)
PCBO3-136
)
(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
(USTs) on the property, which store gasoline, heating oil, and diesel fuel.
2.
LUST Incident Number 881670 was obtained following a site investigation.
3.
On March 26, 2001, the Agency received Keller’s request for reimbursement of
costs from the Illinois Underground Storage Tank Fund (the “Request”) for the
period from October 1, 1999 to July 1, 2000, in the amount of$140,210.68.
This filing submitted on recycled paper as defined
in
35 III. Adm. Code 101.202
4.
The Agency denied certain costs in the Request in a letter dated January 21, 2003,
a copy ofwhich is attached hereto as Exhibit A.
5.
Keller is appealing this January 21, 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;
(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;
and
(d) the Agency denied certain costs for concrete replacement and copying.
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.
7.
The Agency’s letter denying reimbursement, Exhibit A, provides no further
explanation of the 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 26, 2003, the parties timely filed a joint notice to extend the appeal
deadline. On March 6, 2003, the Board filed an order extending the appeal
deadline until May 27, 2003, a copy of which is attached hereto as Exhibit B.
This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202
Pursuant to the Board’s March 6, 2003 order, this appeal is timely filed.
\VHEREFORE, 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 ofIts AttUrneys
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 Ill. Adm. Code 101.202
I
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 NORTH GRAND AVENUEEAST, P.O. Box 19276, SPRINGFIELD, ILLINOIS 62794-9276
JAMES R. THOMPSON
CENTER,
100 WEST RANDOLPH, SUITE 1 1-300, CHICAGO, IL 60601
RENEE
CIPRIANO,
DIREcTOR
217/782-6762
~~‘~2’2OU3
JAN21 2003
L. Keller Oil Properties, Inc.
Attn: Joe Henry
Post Office Box 70
Effngham, illinois 62401
Re:
LPC #0290105024
--
Coles County
Charleston/Keller Oil
419 West Lincoln
LUST Incident #881670
LUST FISCAL FiLE
Dear.Mr. Henry:
The Agency has completed the review ofthe request for reimbursement ofcorrective action costs
from the illinois Underground Storage Tank Fund for the above-referenced facility. The invoices
reviewed covered the period froni October 1, 1999 to July 1, 2000. The amount requested was
$140,210.68.
The deductible aa~iountto be assessed on this claim is
$3,563.13,
which is being deducted from
this payment. In addition to the deductible, there are costs from this request that are not being
reimbursed. 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 March 26, 2001, the Agency received your complete re~questfor payment for this claim. As a,
result of the Agency’s review ofthis claim, a voucher for $103,682.48 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 request fo~payment ofthis claim. Subsequent claims
that have beenJa~-esubmitted’will be processed based upon the date complete subsequent billings
requests are received by the Agency.
This constitutes the Agency’s final action with regard to the above invoices. An underground
storage tank owner or operator may appeal this final decision to the Illinois Pollution Control
Board (Board) pursuant to Section 22.1 8b(g) and Section 40 ofthe Act by filing a petition for a’
hearing within 35 days after the date ofissuance of the final decision. However, the 35-day
ROCKFORO
—4302
North
Main Street, Rockford, IL 61103 — 18151 987-7760
DES
P~ANES
—9511 W. Harrison St., Des Plaines, IL 60016 — 847) 294-4000
ELc~N—595
South State.
Elgin, IL ~0i 23 —18471 608-3131
•
PEORIA —5415
N. University
St., Peoria, IL 61614 —(3091 693-5463
BUREAU OF
LANd -
PEORiA
— 7620
N.
University 5L~i’
~
-‘
~
Champaign,
IL 61820—1217) 278-5800
SPRINGFiELD
—4500
S. Sixth
Street Rd.,
5pri~
nsvilleiL
62234
— 16181 346-~1_0
• Page 2
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. If the owner oi~
operator wishes to receive a’90-day extension, a written request that includes a statement of the
date the final decision was received, along with a copy ofthis decision, must be sent to the
illinois EPA as soon as possible.
For inf~imationregarding the filing of an appeal, please contact:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
-
State of fllmois Center
100 West Randolph, Suite 11-500
Chicago,’ illinois 60601
312/814-3620
,
‘
For information regarding the filing of an extetision, please contact:
Illinois Environmental Protection Agency
Division ofLegal Counsel
1021 North Grand Avenue East
Springfield, illinois 62794-9276
217/782-5544
If you have any questions, please contact Diana Gobèlnian ofmy staff, or Carol Hawbaker
of the LUST Section technical staff, at 217/782-6762
44*’
F
Oakley, Manager
L1J~TClaims Unit
Planning & Reporting Section
Bureau ofLand
N” ~
DEO DLG ct\033492 doc
Attachment
cc
CW3M
Attachment A
Accounting Deductions
Re:
LPC #029010502.4
--
Coles County
Charleston/Keller Oil
‘
J~ f~’~
2~G’3
H
‘419 WestLincoin
•
‘~
LUST Incident No. 881670
LUST FISCAL FILE
-
Item #
Description ofDeductions
1.
$2,473.88, deduction’ for an adjus~ientin Handling Charges of greater than the
allowed Sliding’Scale (Section 22.lSb(i)(2) ofthe Environmental Protection Act).
Handling charges billed for ineligible subcontractor charges’- $2,34.8~61.
•
Handling charges billed forineligible-field charges
-
$125.27
-
• 2.
$2,442.25, deduction in costs that the owner/operator failed to demonstrate were
•
reasonable (Section 22.1 8b(d)(4)(C) ofthe Environmental Protection Act).
CW3M October 1999
—
Project manager, administrative assistant, and environmental
engineer rates
-
‘$80.00
CW3M February 2000
—
Environmental engineer rate
-
$115.00
CW3M March 2000
—
Envirom-~ientalengineer rate
-
$15.00
CW3M April.200.0
—
Field supervisor, project’manager, administrative assistant,
environmental engii~eer,per diem and mobilization rates;’hotei on April 7-8
-
$559.00
CW3M May 2000
—
Field supervisor, administrative assistant, environmental engineer,
per diem rates, demobilization, and trackhoe rates; duplicate, billing ofLEL for week
• April 30-May 6, 2000
-
$1,644.25
‘
CW3M June 2000.
-
Administrative assistant and environmental engineer rates
-
$29.00
DLG:ct\033493.doc
‘
‘
•
-•
Attachment A
Technical Deductions
Re:
.
LPC#0290l05024--Coles County
Charleston / Keller Oil Company
419 WestLincoln
LUST Incideiit No. 881670
LUSTFISCAL.FILE
Item #
Description ofDeductions
1.
$26,251.04,
deduction in costs that the owner/operator failed to demonstrate were
reasonable (Section 22.18b(d)(4)(C) ofthe Environmental Protection Act).
These costs are associated with the excavation, transportation, disposal and backfill of
the recovery trench ($23,651.04) and LEL and Air Operated Recovery Pump rates
($2,600.00).
2.
$441.80, deduction for costs that lack supporting technical documentation as, the owner
or operator failed to demonstrate that the costs are for corrective action performed iii
accordance with the plans approved by the Agency (Section 22.18b(d)(4)(F) ofthe
Environmental Protection Act).,
These costs are associated with Copies for SAJCA.P/ERU ($49.80), Poly-Tank Product
Storage 04/05/00 ($191.24), Emergency Corrective Action Work Plan ($185.00),
Disposable camera ($7.19), and Photos ($8.57).
3.
$1,353.70, deductio±rfor costs associated with re~1acementof concrete andlOr asphalt
(Section 22.18(e)(1)(C) of the Environmental ProtectionAct).
• ‘
This cost is associated with concrete replacement for the recovery trench.
4.
$2.40, deduction for costs associated with seeking reimbursement from the
Underground Storage Tank Fund (Section 22.1 8(e)(l)(C) and 22.l8b(a)(3) ofthe
Environmental Protection Act).
.
This cost is associated with copies for reimbursement.
ILLiNOIS POLLUTION’CONTROL BOARD.
March 6, 2003
KELLER OIL (October 1, 1999
—
July 1,
)
2000),
)
)
Petitioner,
)
)
v.
)
PCBO3-136
)
(UST Fund)
ILLINOIS ENVIRONMENTAL
‘
)
(90-Day Extension)
‘PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD (by T.E. Johnson):
On February 26, 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 21, 2003 deteimination ofthe Illinois
Environmental Protection Agency (Agency).
See
415 IILCS 5/40(a)(1) (2002); 35 Ill. Adm. Code
105.206(c),
105.208(a), (c). Keller Oil was served the Agency determination on January 22,
2003. The Board received the joint request on March 3, 2003. Because the postmark date of the
joint request is within the 35-day filiiig period after service of the Agency determination, the
request was,timely filed. 35 Ill. Adm. Code 101.300(b)(2), 105.404. The Agency determined
that Keller Oil was entitled to a reimbursement of $103,682.48 from the Underground Storage
Tank Fund. Keller Oil requested a $140,210.68 refund. This matter regards Keller Oil’s leaking
underground storage tank site at 419 West Lincoln in.Charleston, Coles County. The Board
extends the appeal period until May 27, 2003.
See
415 ILCS 5/40(á)(l) (2002); 35 Ill. Adm.
Code 105.208(a). If Keller Oil fails to’file an appeal on or before that date, the Board will
dismiss this case and close the docket.
IT IS SO ORDERED.
I, Dorothy M. Guim, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on March 6, 2003, by a vote of6-0.
~
A,
DorothyM. Gunn, Clerk
Illinois POllution Control Board
BEFORE THE POLLUTION CONTROL BOARD
CLERK’S OFFICE
OF THE STATE OF ILLINOIS
‘
ML~Y2 3 ~
KELLER OIL PROPERTIES, INC.,
)
PollutionSTATE
OFControlIWNOIS
Board
Petitioner
v.
)
PCBO3-136
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent
)
APPEARANCE
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.
ByJ~
7Q~
One of Its ttorneys
Carolyn S. Hesse
Barnes & Thornburg
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 101.2021
REC,~~VE~
CLERK’S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
•
MI4Y
23 2003
OF THE STATE OF ILLINOIS
PollutionSTATE
OFControlILLINOISB
KELLER OIL PROPERTIES, iNC.,
)
oar
)
Petitioner
)
)
v.
)
PCBO3-136
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent
)
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: May 23, 2003
Keller Oil Properties, Inc.
(:~
One of Its Attorne~~—
Beth A. Harvey
Barnes & Thornburg
10 S. LaSalle Street
Suite 2600
Chicago, Illinois 60603
(312) 357-1313
CHDSOI
BZH 169050v1
This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202
CERTIFICATE OF SERVICE
I, on oath state that I have served the attached PETITION FOR REVIEW OF ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY DECISIONS and APPEARANCES for Beth A.
Harvey and Carolyn S. Hesse by placing a copy in an envelope addressed to:
John Kim
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
via U.S. mail this
~
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.
Carolyn S. I~sse
This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.202