JIM’S
SHELL & MARINE,
Petitioner,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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 of the Board
Illinois Pollution Control Board
James R. Thompson Center
Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601
PLEASE TAKE
NOTICE
that on the
Friday, July 11, 2003,
filed with the Clerk of the
Illinois Pollution Control Board of the
State of Illinois an original, executed copy of one Petition
for Review of Illinois
Environmental
Protection Agency Decisions
and Appearance
for Carolyn
S.
Hesse.
Dated:
July
11, 2003.
Carolyn S. Hesse
Barnes & Thornburg
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
174657v1
Respectfully submitted,
Jim’s Shell & Marine
By:
One ofIts Aaorneys
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
CLERK’S
OFPICE
)
JUL
1i2003
V.
)
)
)
)
)
)
)
)
)
PCB 03
-
193
(UST Appeal)
STATE OF ILLINOIS
PoIIutIOfl
Control Board
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 and
Appearance
by
placing a copy in an envelope
addressed to:
U.S. MAIL
HAND DELIVERY
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 of the Board
Illinois Pollution Control Board
James R.
Thompson Center
Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601
from
One North Wacker Drive,
Suite
4400,
Chicago,
Illinois, before the
hour of 5:00 p.m.,
on
this
11th
Day of July, 2003.
Carolyn S. Hè~se
This
filing submitted on recycled paper
as
defined in 35
III.
Adm. Code
101.202
2
BEFORE THE POLLUTION CONTROL BOARD
OF THE
STATE OF ILLINOIS
RECEIVED
CLERK’S OFP~C~
siM’s
SHELL & MARINE,
JUL
1.
1
2003
Petitioner,
)
STATE
OF ILLINOIS
)
Pollution
Control Board
v.
)
PCBO3-193
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
).
Respondent.
)
APPEARANCE
NOW
COMES
the
undersigned,
Carolyn
S.
Hesse,
and
enters
an
appearance
for the
Petitioner, Jim’s
Shell &
Marine, in the
above captioned matter.
Dated:
July
11, 2003
Respectfully submitted,
Jim’s Shell & Marine
By:
cii~v~
J~
W~c~
One ofIts AtI.~rneys
Carolyn S. Hesse, Esq.
Barnes &
Thornburg
One North Wacker Drive
Suite 4400
Chicago, Illinois
60606
(312) 357-1313
174677v1
This
filing submitted
on recycled paper
as defined in 35
III.
Adm.
Code 101.202
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
JIM’S
SHELL &
MARINE,
)
RECEIVED
)
CLERK’S
OFFICE
Petitioner,
JUL
112003
v.
)
PCB 03
-
193
STATE OF ILLINOIS
)
(UST Appeal)
Pollution
Control Board
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR
REVIEW
OF ILLINOIS ENVIRONMENTAL’
PROTECTION AGENCY DECISIONS
Jim’s
Shell & Marine, by its
attorney, Carolyn S. Hesse ofBarnes & Thornburg, pursuant
to
the Illinois
Environmental
Protection
Act,
415
ILCS’S/l
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.
Jim’s
Shell
&
Marine (“Jim’s
Shell”)
is the owner of property located at
1122
North
Springfield
Street,
Virden,
Macoupin
County,
Illinois.
The
site
was
a
gasoline
service
station
that
had
underground
storage
tanks
(UST5)
on
the property, which
stored
gasoline, diesel fuel,
kerosene
and
used oil.
2.
LUST
Incident
Number
911259
was
obtained
following
a
site
investigation.
3.
On March
7,
2002,
the
Agency
received
Owens’
complete
request
for
reimbursement of costs
from the
Illinois Underground Storage Tank Fund
(the
“Request”)
for the
period
from
January
1,
1998
to
September
30,
1998 in the amount of $44,170.34.
This
filing submitted
on
recycled paper
as defined in 35
III. Adm. Code 101.2021
4.
The Agency
denied certain costs in the Request in a letter dated March
7,
2003, a copy ofwhich is attached hereto as Exhibit A.
5.
Jim’s
Shell
is
appealing this
March
7,
2003
denial
because the
Agency
denied
certain
costs
by
claiming
that
the
owner/operator
failed
to
demonstrate that the
costs
were reasonable
and
a deduction for a bill that
was not in the billing period for this claim.
6.
Jim’s
Shell
disagrees
with
the
Agency’s
decision
and
believes
that
the
costs
submitted for reimbursement are reasonable
corrective action
costs
and are the types ofcosts 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
of appeal.
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 April
16,
2003,
the
parties timely
filed a joint
notice
to
extend the
appeal
deadline.
On May
1, 2003, the Board filed an
order extending
the
appeal
deadline until July
11,
2003,
a copy ofwhich is
attached hereto as
Exhibit
B.
Pursuant
to
the
Board’s
May
1,
2003
order,
this
appeal
is
timely filed.
This
filing submitted
on
recycled
paper
as
defined
in 35
III. Adm. Code
101.202
2
WHEREFORE, Jim’s Shell &
Marine 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,
Jim’s Shell & Marine
By:
______________
One ofIts A
orneys
Carolyn S. Hesse, Esq.
Barnes & Thornburg
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
174585v1
This
filing submitted
on
recycled paper
as defined in 35
III.
Adm. Code 101.202
3
1LLlNOIS:~.NVIRoNMENTALPROTECTIO.GENCY
1021
NORTH
GRAND
AVENUE
EAST,
P.O.
Box
1 9276,
SPRINGFIELD, ILLINOIS
62794-9276
JAMES
R.
THOMPSON
CENTER,
1 00
WEST RANDOLPH,
SUITE
1
1-300,
CHICAGO,
IL
60601
RoD
R.
BLAGOJEVICH,
GOVERNOR
RENEE
CIPRIANO,
DIRECTOR
MAR07
2U03
Jim’s
Shell &
Marine
Attention:
James
Lynch
1122 North Springfield Street
Virden, IL
62690
Re:
LPC#1171105011
--Macoupin
County
VirdenlJim’s
Shell & Marine
1122 North Springfield Street
LUST Incident #911259
LUST FISCAL’FILE
Dear
Mr. Lynch:
The Agency has completed the review of the request for reimbursement of corrective action
costs
from the Illinois Underground Storage Tank Fund for the above-referenced facility.
The invoices
reviewed covered the period from January
1,
1998 to
September 30,
1998.
The amount
requested was $44,170.34.
The deductible amount for this
claim is
$15~000.00.which was previously deducted
from the
Invoice Voucher dated April
22,
1992.
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
7, 2002, the Agency received your complete request for payment for this claim.
As
a
result ofthe Agency’s review ofthis claim, a
voucher for $38,001 ~96will
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
claim.
Subsequent
claims
that have been/are submitted
will be
processed based upon
the date complete subsequei~tbillings
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.
8h(g) and
Section
40
of the Act
by filing
a
petition for
o
hearing within 35
days after the date of issuance ofthe final
decision.
However, the 35—day
period may be
extended for a
period of time 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
ROCKFOP.D
—4302
NoOh
Main
Street,
Rockford,
IL 61103
—
(815) 987-7760
•
DES
PLAINES
—
9511
W.
Harrison
St.,
Des
Plaines,
IL
60016
—
1847) 294-4000
ELGIN
—
595 South
State,
Elgin,
IL
601 23 —.1847)
608-3131
•
PEORIA
—
5415
N.
University SI.
Peoria,
IL 61
614
—
(3091 693-5463
BUREAU
OF
LAND
-
PEORIA
7620
N. University
St.,
Peoria,
IL
61614—13091 693-5462
CF1~o.,sAIoN
—2125 South
First Street,
Champaign,
IL
61)120
—
(21’7j 278-5800
SPRINGFIELD—
4500’S. Sixth
Street
Rd.,
Springfield,
IL 62706—12171
786-6892
•
COLLINSVILLE
—2009 MalI
5)reet, Culhnsville,
IL
62234
—(618) 346-5120
MARION
—
2309 W.
Maip
St.,
Suite
116, Marion,
IL
62959 —(618)
993-7200
EXHIBIT
PRINTED
ON
RECYCLED
PAI’ER
217/782-6762
A
‘I
.1)
MARO8?~H
Page2
‘
~Y.~
operator wishes to
receive a
90-day extension, a wñtten 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 Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
312/814-3620
For information regarding the filing of an extension, please contact:
Illinois Environmental Protection Agency
Division ofLegal
Counsel
1021 North Grand Avenue East
Springfield, Illinois
62794-9276
217/782-5544
Ifyou
have any questions, please contact Diana Gobelman of
my
staff or Jay Gaydosh of
the L’E.JST
Section at 217/782-6762.
DEO:DLO:jk\03301 II .doc
Attachment
S inc
Dou.gl~E.
Oakley, Manager
LUST Claims Unit
Planning &.Reporting Section
Bureau of Land
cc:
CW3M Company
r~_=~~-_,,
1~,1
~
;‘—~
~
Attachment A
MAR
0
8
7flfl’~
Accounting Deductions
Re:
LPC#ll7lIO5Oll
~-Macoupin County
‘
VirdenlJim’s Shell & Matine
1122 North Springfield
Street
‘
LUST Incident #911259
LUST FISCAL FILE
Item #
Description ofDeductions
1.
$277.37,
deduction for a CIPS bill for service February 22,
1999
—March 22.
1999.
which is
not
within the billing period of this claim..
DEO:DLG:jk\03301
1 l.doc
Attachment A
Technical Deductions
Re:
LPC #1171105011—Macoupin
County
VirdenlJim’s Shell& Marine
.
1122 North Springfield St.
LUSTIncidentNo. 911259
LUSTFISCAL FILE
Item#
Description of Deductions
1.
$5,891.01, deduction in costs that
the owner/operator failed to demonstrate were
reasonable (Section 22.18b(d)(4)(C) of theEnvironmental Protection Act).
2.
The IllinoisEPAhas reviewed the lease agreement forequipmentbeing used at the
above-referenced site
and
has determined that a
maximum
of27 months ofadditional
• leasepayments would be eligible for reimbursement.
Any
requests forreimbursement
oflease fees beyond 27 months will not be eligible forreimbursement. The Illinois
EPA considers these costs unreasonable (Section 22.18b(d)(4)(C) ofthe Environmental
Protection Act).
,
JFG\91
1259LCUAttachmentA
ILLINOIS POLLUTION CONTROL BOARD
May 1,, 2003
Jilvi’S
SHELL & MARINE,
•
)
)
Petitioner,
,
)
).
v.
)
PCB 03-193
•
)
(JST
Appeal)
ILLINOIS
IENVIRONMENTAL
)
(90-Day Extension)
PROTECTIONAGENCY,
)
)
•
Respondent.
,
)
ORDER
OF
THE BOARD
(by T.E. Johnson):
On April 16, 2003, the
parties
timely fled ajoint notice to extend the 35-:dayperiod
withinwhich
Jim’s
Shell&
Marine
mayappeal aMarch 7, 2003 determination oftheIllinois
Environmental ProtectionAgency (Agency).
See 415
ILCS
5/40(a)(1) (2002); 35
Ill. Adm.
Code
105.402,105.406. Because the postmark date ofthe
joint
request is within the time for filing, the
joint requestwas timely filed. 35 Ill. Adm. Code 101.300(b)(2), 105.404. TheAgency approved
corrective action costs forreimbursement, withmodifications, for Jim’s Shell& Marine’s
leaking underground petroleum storage
tank
facility located at 1122 North Springfield Street,
Virden, Macoupin County. The Board extends the appeal period until July 11, 2003, as the
parties
request.
See
415
ILCS
5/40(a)(l)
(2002); 35 Ill. Adm. Code 105.406. IfJim’s Shell&
Marine fails
to file
an appeal
on orbefore that date, the Board will dismiss this
case
and
close the
docket.
•
IT ISSO
ORDERED.
I~DorothyM.
Gunn,
Clerk of
the Illinois Pollution Control Board, certify that the Board
adopted the above order onMay 1, 2003, by a vote of 7-0.
DorothyM. Gunn, Clerk
IllinoisPollution Control Board
EXHIBIT
_B7