CLERK’S OFF’~
STATE OF ILLINOiSPoIluU0fl Control Board

NOTICE OF FILING
1. THIS FILING IS SUBMITTED ON RECYCLED PAPER
RECEIVED

FREEDOM OIL COMPANY,

vs.

Petitioner,

ILLiNOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

CLIV

CLERK’S OFF’~

JUL

2 2003

STATE OF ILLINOiS

PoIluU0fl Control Board

TO:

NOTICE OF FILING

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

State ofIllinois Center

100 West Randolph, Suite 11-500

Chicago, IL 60601-3218

Division ofLegal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East, P. 0. 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 an original and nine (9) copies ofPetition for Review of Underground

Storage Tank Fund Reimbursement, a copy of which is herewith served upon you.

Dated: June

~i,

2003

Respectfully submitted,

FREEDOM OIL COMPANY

By:

~u.~

~c,vJ~

Diana M. Jagiella, t ome~for Petitioner

Diana M. Jagiella

Howard & HowardAttorneys, P.C.

One Tecimology Plaza, Suite 600, 211 Fulton Street

Peoria, IL 61602-1350

(309) 672-1483

cc:

Hon. Carol Sudman, Hearing Officer, Illinois Pollution Control Board, 600 S. Second

Street, Suite 402, Springfield, IL 62704

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

)

PCBO~

)

sw;G:\F\Freedom Oil\pldgs\PCB\NOF6-27-03.doc

THIS FILING IS SUBMITTED ON RECYCLED PAPER

RECEIVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~LERKSOFFICE

JUL

22003

FREEDOM OIL COMPANY,

)

STATE OF

ILLINOIS

Petitioner,

)

0L4

—O”~

Pollution Control Board

PCB.Q~-___

vs.

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

PETITION FOR REVIEW OF

UNDERGROUND STORAGE TANK FUND REIMBURSEMENT

NOW COMES the Petitioner, Freedom Oil Company (“Freedom”), by and through its

attorneys, Howard & Howard Attorneys, P.C., pursuant to Sections 40 and 57.8 of the Illinois

Environmental Protection Act (the “Act”), and hereby requests review by the Illinois Pollution

Control Board (“Board”) of the final decision by the Respondent, the Illinois Environmental

Protection Agency (the “Agency” or “IEPA”), denying $22,559.71 of Petitioner’s requested

costs in its application for payment from the Underground Storage Tank Fund for a LUST

Incident at its facility located in Paris, Illinois. In support ofits Petition, the Petitioner states as

follows:

Petitioner, Freedom Oil Company, an Illinois corporation, operates a service

station facility located at the common address of 401 South Main Street, Paris, Edgar County,

Illinois (“Facility”).

On February 11, 2003, Petitioner filed with the IEPA its application for payment

from the Underground Storage Tank Fund for a LUST Incident at its Paris, Illinois facility

(“Reimbursement Application”) associated with a tank liner failure at the Facility.

By letter dated May 28, 2003, Douglas E. Oakley, Manager ofthe LUST Claims

Unit, Planning & Reporting Section, Bureau of Land for the IEPA, denied Petitioner’s

Reimbursement Application. A copy of Mr. Oakley’s denial determination is attached to this

Petition as Exhibit 1.

IEPA denied reimbursement of $33.25 for VHS tapes. This cost was incurred

based on activities ordered by IEPA-Office of Emergency Response as part of Early

ActionlEmergency Response activities and should be eligible for reimbursement. This is also a

cost that should be reimbursed under the Act.

IEPA also denied $22,189.00 of the requested costs based on the presence of

tanks ineligible for reimbursement (“Old Tanks”). Denial of these costs is contrary to law.

While Section

57.8(m)(l)

of the Act allows the Agency to apportion reimbursement costs to

eligible and ineligible tanks, this apportionment must be based on the corrective action actually

necessitated by the Old Tanks ~nçjthe owner’s failure to justify the costs as related to the eligible

tanks. In this case, there is no relationship between the costs incurred and the Old Tanks at the

site. The presence of the Old Tanks did not necessitate any of the work conducted. All work

conducted was related to eligible tanks. Finally, even if the Agency had some basis for

apportionment based on the presence ofOld Tanks, the methodology used to reach the deduction

is mathematically and factually flawed.

Petitioner requests this appeal be consolidated with Case PCB 03-54, PCB 03-

105, PCB 03-179 (UST Fund), PCB

03-56

(UST Appeal) (Consolidated), which is a

consolidation of the other Freedom appeals. The factual and legal issues are similar and

consolidation will conserve Board resources.

Underground Storage Tank Fund for the above-referenced LUST incident consistent with the

Petitioner’s request. Petitioner further requests that it be awarded all costs associated with this

appeal, including attorneys’ fees.

Respectfully submitted,

FREEDOM OIL COMPANY, Petitioner

By:~~U’~

A/~c~JJJ~

Diana M. Jagiella4 or~yfor Petitioner

Date:

June

~/,

2003

Diana M. Jagiella

Howard & Howard Attorneys, P.C.

One Technology Plaza, Suite 600

211 Fulton Street

Peoria, IL 6 1602-1350

(309) 672-1483

1(309)

672-1568 Fax

CERTIFICATE OF SERVICE

I, the undersigned, certify that I have served the ~ached

Petition for Review of

Underground Storage Tank Fund Reimbursement

on this

day ofJune, 2003, via first-class

mail, postage fully prepaid, upon the following persons:

Division ofLegal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East, P. 0. Box 19276

Springfield, IL 62794-9276

Diana M. Jagiella, Att rn f~Petitioner

sw;G:\F\Freedom Oil\pldgs\PCB\Pet for Revó-27-03.doc

(17273-1)

‘S.

• ILUNOIS ENVIRONMENTAL PROTECTION AGENCY

1021

NoRTH

GRAND AVENUE

EAST,

P.O. Box 19276,

SPRIr’.IcnELD, ILLINOIS

62794-9276

J~~sR.

THOMPSON

CENTER, 100

WEST RANDOLPh,

SurrE 11.300, CHICAGO, IL 60601

ROD R. BLAGOJEVICH, GOvERNoR

.RENEE

OFRIANO,

DIRECTOR

2171782-6762

NAY 2 8

2003

Freedom

Oil Co.

Attention: Gene Adams

Post Office

Box

3697

Paris, IL 61944

Rei

LPC#0450305043--EdgarCounty

Paris/Freedom Oil

401 South Main

LUST Incident No. 20020433

LUST FISCAL FILE

Dear Mr. Adams:

The Illinois Environthental Protection Agency has completed the review of your application forrn

payment from the Underground Storage Tank Fund for the above-referenced LUST incident

pursuant to Section

57.8(a)

ofthe Illinois Environmental Protection Act (Act), and

Iii.

Adin.

Code 732, Subpart F. This information is dated February 11, 2003 and was received by the

Agency on February 20, 2003. The application for payment covers the period from March 1,

2002 to January 24, 2003. The amount requested is $1 16,848.37.

The deductible amount for this claim is $20,000.00, which was previously deducted from the

Invoice Voucher dated January 17, 2003. Listed in Attachment A are the costs which are not

being paid and the reasons these costs are not being paid.

On March 3~2003, the Agency received your complete application for payment for this claim.

As a result of the Agency’s review ofthis application for payment, a voucher for $94,288.66 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 for payment ofthis application

for payment. Subsequent applications for payment that have been/are submitted will be

processed based upon the date complete subsequent application for payment requests are

received by the Agency. This constitutes the Agency’s final action with regard to the above

application(s) for payment.

An underground storage tank owner or operator may appeal this final decision to the Illinois

Pollution Control Board (Board) pursuant to Section

57.8(i)

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 period may be extended for a period oftime not to exceed 90 days by written notice

Rocgrow

—

4302

Nor)h

Main

Str~t,

Rockford. IL 61103

—

(615; 987-7760

•

DES

—

9311 W.

Harrison

St., Oes

Flames.

IL.

60016 —(847)

294-4000

EICIN —

595 South State. Elgin. IL 60123.. 16471 603.3131

•

PE0QA

—

5415 N, University Sr.. Peoria. IL 61674

— (309)

693-3463

3LRE.W or ~

Ptce~.--.7620 N.

LJrtiver~hy

Sr.. Peoria, IL 61614— (309) 693-5452

•

CMAMrAc~—2125 South Firsx

Street, Champaign.

IL.

61820 —(217) 278-5800

SP~I,.C,IELD

—

4500 5. Sixth Street Rd.. Springlietd, IL 62706— (217) 786.6892

•

COLLIN~VTLUE

—

2009 M~I1Street. CoIIinsvilIe, IL 62234— (6181 346.3120

M*RI0r~4

—

2309 W, Main St.. Suite 1 16. M,rion, IL 62959 —(618) 993-7200

PR-~c~

RICYCLED

P,..pte

Page 2

from. the owner or operator and the Illinois EPA within the initial 35-day appeal period.

If the

applicant wishes to receive a 90-day extension, a written request that 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 of an appeal, please contact:

Dorothy Ounn, 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 ofan extension, please contact:

Illinois Environmental Protection Agency

Division ofLegal Counsel

l02lNorthGrandAvenueEast

• Springfield, Illinois 62794-9276

217/782-5544

____.

If you have any questions or require further assistance,

please

contact Lieura Rackxnan of

my staff or Michael Heaton ofMichael Lowder’s staff at 217/782-6762.

Since ely,

D2~gYasE. Oakley,

Manager

LUST Claims Unit

Planning & Reporting Section

Bureau of Land

DEO:LH:jk\032238.doc

Attachment

cc:

Harding ESE

Attachment A

•

Technical Deductions

Re:

L?CI~0450305043

Edgar County

•

Paiis /

Freedom

Oil

Company

401

~out.hMain Street

LUSt Incident No. 20020433, 20021122, and 20021420

LUSt

File

Administrative

Citations

in. this

Code

attachment

(35

Iii.areAdm.from

Code).

the Environmental Protection

Act (Act) and

flhinois

Item #

Desèrj~j~o~

Deductjo~

•

$3.2s

for VHS

copies.

This cost has

been

determined to

not be

to Early

•

Action

acy~j~therefore is not reasonable

(35

IAC

732.606(ü)).

$22,189.00, for

deductions

for costs for corrective

~ction activities

for

underground storage tanks for which the owner or operator was deemed in~ligibIe

to access the fund (Section

57.8(n)(l)

ofthe

Act

and 35 TAC

732.608).

Specifically, there were ten tanks

at the subject

facility,

each of

which was

determined by the Office

State Fire Marshal

to have had a

signifl~antrelease.

Tank Nos. 1, 2, 3, 4, and 6 were deemed

el~.gibleto access the LUST

Fund

for

reimbursement pwposes, ~J~s 5, 7, 8, 9, and

10 ~iave not

been determ~inedto be

eligible to access the LUST

Fund for reimbursem~itpurposes. Since Tank S

was

addressed under LEM.A Incident No.

930540,

it i~’not

included in

the

gallonage

total for Tanks

for

which an eligibility deterr~nationhas

not

been made

Illinois Office ofState Fire Marshall

(OSFM).

Tank ~ Description

4.000-gallon diesel tank

4,000-gallon gasoline tank

•

4,000-gallon gasoline tank

1,000-gallon gasoline tank

1,000-gallon kerosene tank

500-gallon heating oil tank

1,000-gallon gasoline and/or diesel tan

1,000-gallon gasoline and/or diesel tank

l,000-gallon gasoline and/or diesel tank

00-gallon heating oil tank

Attabment A

Technical Deductions

Page 2

The

total gallonage

of tanks

eligible

access the

LUST Fund as

determined by

OSFM is

17,000

gallons, the total gallonage oftanks not eligible to

access

the

LUST Fund as

determined

OSFM is 4,000 gallons.

Therefore, 80.95

of.

costs are apportioned to

the tanks eligible to access

the

LUST

Funds

azid 19.05

ofcosts are apportioned to

the

tanks

not eligible to access

the

LUST Fund.

MTL.’inh\020433a5.doc

•