NOTICE OF FILING
CERTIFICATE OF SERVICE
ENTRY OF APPEARANCE OF EDWARD W. DWYER
PETITION FOR REVIEW OF LUST FUND REIMBURSEMENT DECISION

RECEIVED

CLERK’S

OFFICE

~4UG4

2003

BEFORE THE ILLINOIS POLLUTION CONTROLBC~f~

OF ILLINOIS

WARECO SERVICE, INC.

)

Pollution

Control Board

)

Petitioner,

)

PCBNo.03-212

)

(UST

—

Petition

ILLINOIS ENVIRONMENTAL

)

for Review)

PROTECTION AGENCY

)

Respondent.

)

NOTICE

OF FILING

TO:

Ms. Dorothy M.

Gunn

John J.

Kim, Esq.

Clerk ofthe Board

Special Assistant Attorney General

Illinois Pollution Control Board

Division ofLegal Counsel

100 West Randolph Street

Illinois Environmental Protection Agency

Suite 11-500

1021

North Grand Avenue East

Chicago, Illinois

60601

Post Office Box

19276

(VIA

FIRST CLASS

MAIL)

Springfield, Illinois

62794-9276

(VIA FIRST

CLASS MAIL)

(PERSONS ON ATTACHED SERVICE LIST)

PLEASE

TAKE NOTICE that I have today

filed with the Office ofthe Clerk of

the Illinois Pollution Control Board an

original and nine copies of an ENTRY

APPEARANCE OF EDWARD W. DWYER, ENTRY OF APPEARANCE OF

CASSANDRA

KARIMI and

PETITION FOR

REVIEW

OF LUST FUND

REIMBURSEMENT DECISION, copies of which are herewith served

upon you.

Respectfully submitted,

WARECO SERVICE,

INC.,

Petitioner,

Dated:

August

1, 2003

By:__________________________

Edward

W. Dwyer

Cassandra L.

Karimi

Cassandra L. Karimi

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield,

Illinois

62705-5776

(217) 523-4900

TifiS

FILING SUBMITTED

ON RECYCLED PAPER

CERTIFICATE OF SERVICE

I, Cassandra L. Karimi, the undersigned,

certify that I have served the attached

ENTRY OF APPEARANCE

EDWARD

DWYER, ENTRY OF

APPEARANCE

OF CASSANDRAL.

KARIMII and PETITION FOR REVIEW OF LUST

FUND

REiMBURSEMENT DECISION upon:

Ms. Dorothy M.

Gunn

Clerk ofthe Board

Illinois Pollution Control Board

100 West Randolph Street

Suite

11-500

Chicago, Illinois

60601

John J. Kim,

Esq.

Special Assistant Attorney General

Division ofLegal Counsel

Illinois Environmental Protection Agency

1021

North Grand Avenue East

Post Office Box

19276

Springfield,

Illinois

62794-9276

by depositing said documents in the United States Mail in Springfield,

Illinois,

August

 1, 2003.

Cassandra L. Karimi

WARE:OO1/Fi1INOF

—

Petition

for Review of 3-28

Decision

RECEIVED

CLERK’S

OFFICE

BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD~UC

2003

WARECO SERVICE, INC.,

)

STATE OF ILLINOIS

)

Pollution

Control Board

Petitioner,

)

PCBNo.03-212

)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

)

ENTRY

OF APPEARANCE OF EDWARD W. DWYER

NOW COMES Edward W.

Dwyer, ofthe law firm ofHODGE DWYER

ZEMAN, and hereby enters his appearance on behalf ofPetitioner, WARECO SERVICE,

iNC.

Respectfully submitted,

WARECO SERVICE, INC.,

Petitioner,

By:~?

~‘(

Edward W. D~r

Dated:

August 1, 2003

Edward W. D~yer

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

WARE:OO1/FiIJEOA3-EWD (Galesburg I~224)

BEFORE THE

 ILLINOISPOLLUT~~O~T~

BOARD

WARECO SERVICE, iNC.,

)

Board

Petitioner,

)

po1Ut1°

)

PCB

 No. 03-212

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

ENTRY OF APPEARANCE OF CASSANDRA L.

KARIMI

NOW COMES Cassandra L. Karimi, of the law firm ofHODGE DWYER

ZEMAN,

and hereby enters her appearance on behalfofPetitioner, WARECO

SERVICE, iNC.

Respectfully submitted,

WARECO SERVICE,

INC.,

Petitioner,

By:________________

Cassandra L.

Karimi

Dated:

August

1, 2003

Cassandra L.

Karimi

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

WARE:OO1/FiIIEOA3-CLK (Galesburg #224)

BEFOkE THE ILLINOIS POLLUTION CONTROL BOARD

RECEIVED

WARECO SERVICE, INC.,

)

CLERK’S

OFFICE

AUG

42003

Petitioner,

)

STATE OF ILLINOIS

)

PCB No.

03-2112~,l1ution

Control Board

)

(UST

—

Petition

ILLINOIS ENVIRONMENTAL

)

for Review)

PROTECTION AGENCY,

)

Respondent.

)

PETITION FOR REVIEW OF LUST FUND REIMBURSEMENT DECISION

Petitioner, WARECO SERVICE,

INC. (“Petitioner”), pursuant to Sections

40 and

57.8(i) ofthe Illinois Environmental Protection Act (“Act”) (415

IILCS

5/40 and

5/57.8(i)),

and

Subpart D of35 Ill.

Admin.

Code Part 105,

hereby requests review ofthe

final decision by the Respondent, Illinois Environmental Protection Agency (“Agency”),

denying Petitioner’s request for

reimbursement ofcertain corrective action costs

incurred

in response to a release ofpetroleum fromunderground storage

tanks

(“USTs”).

support ofthis Petition, the Petitioner states as follows:

Petitioner is the owner ofcertain property located at

1309 Grand Avenue

in Galesburg, Illinois, hereinafter referred to as “the site.”

Petitioner is the owner ofUSTs formerly located at the site.

3.

 OnNovember

25,

1998,

Petitioner notified the

 Illinois Emergency

Management Agency of a release from the above-described USTs, in accordance with

applicable requirements.

 Thereafter, Petitioner performed corrective action in response

to the release,

in accordance with applicable

 statutory and regulatory

requirements.

On January 23,

2003, Petitioner submitted an

application for payment to

theAgency

for corrective action costs incurred in response to a release from the above-

described USTs, in accordance with the applicable requirements.

On March 28,

 2003, the Agency issued its final decision regarding the

January 23, 2003,

application for payment.

The Agency’s March 28,

2003,

determination

stated that

certain costs included in the application

 for payment were not eligible for

payment from the Leaking Underground Storage Tank Fund (“LUST

Fund”), and further

stated that this decision constituted “the Agency’s final action with regard to the above

application(s) for payment.”

(~&~

Exhibit A attached.)

Petitioner is seeking review ofthe Agency’s denial ofreimbursement of

certain corrective action costs incurred by Petitioner in response to a release of petroleum

from USTs

at the site as described in Exhibit A.

The Agency’s stated basis for its denial

of reimbursement ofthese costs

is arbitrary, capricious, and

without statutory authority.

Furthermore, the Agency is bound on review

by the reasons given in its

March 28, 2003,

denial

letter regarding access to the LUST Fund.

WHEREFORE, for the above and foregoing reasons, Petitioner, WARECO

SERVICE,

INC., respectfully requests that the Illinois Pollution Control Board (“Board”)

grant the following relief:

Find that the Agency’s March 28,

2003, final decision is arbitrary and

capricious,

and without statutory authority;

Reverse the Agency’s decision denying certain corrective action costs as

set forth above;

Remand this matter to the Agency with instructions to issue payment of

Petitioner’s corrective action costs

as provided for by the Act, but not inconsistent with

the Board’s order,

within 30 days ofits

entry;

Award Petitioner reasonable attorney’s fees

and expenses incurred in

bringing this action; and

Award such further relief as deemed just and

equitable in these premises.

Respectfully submitted,

WARECO SERVICE, INC.

Petitioner,

By:________

Cassandra L.

Karimi

Dated:

August

1, 2003

Edward W. Dwyer

Cassandra L. Karimi

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield,

Illinois

62705-5776

(217) 523-4900

WARE:OOlfFil/Petition for Review of 3-28 decision

ILLINC

:)ENv!’RONMENTAL

PROTEC-nL

)AGENCY

1021

NoRi~~

EAS-r,

P.O.

~927~,

~o’~

627~4-927$

l~i~

T~P~

C~NrEP~,

100

WEST

RAN~0LPH,

S~jiTE11-300, Ciac~co,

60601

Roo

8~i~co~vtcri,

GOV~RNc~

~EN~CIPa~A~O,

D,~ECTo~

CERTIFIED MAL ~

7oc~O.3x~oo\

~c5-72~l5~

tIM

2~O.3

Wareco Service, Inc. No. 224

Attention:

Jim Ware

Post Office ~o~c762

Jaeksor~ville,

62650

Re:

LPC ~0950205083

—

Knox C6unty.

Galesburg/Wareco Service, Inc. #224

1039Grarid Avenue

LUST I

demNo. 982927

LUST PIS

CAL PILE

Dear Mr:

\Vare:

The Illinois Environmental Protecticr~.

Agency ha3 completed the review of your applica~cn

for

payment

from

the Under~oundSt~rage

TankFund

fbr

the above-referer.ced LUST incident

~ursuautto Sectioi~

57.&(e.) ~f the Illinois Enviroomentei Protection Act (Act), and

flI.

Adm.

Code

732,

Subpart

This info=tjon

is dated .3anua~y

23,

2003

and was reeeived by the

Agency on January24, 2003.

The ~ppIicationfor payment covers the period from April

29,

2000 to O~tobcr27,

20Q0.,

The amount requested is $10,828.99.

The deductible amoun.t ~o:r

this cithn

is $1 5,000.00,

which was previously deducted from the

billing submittal received by

the Agency

on January 25,2002 for S72,896.48.

There are costs

from this claim that are not being paid.

Listed in A

chrr.entA are the costs

that arc not being

paid and

the

reasons these costs are riot being ~

On February 27, 2003, t~ie

Agency rec.~ived

your

co~nplet~

aoplication for pa~rnent

forthis

claim.

As a result of the A~~cy.’s

review of this applica~!onfor.paymen~

a voucher for $551.26

will

be prepared ~orsubrniss!c~

to the Comp~olIer’~

‘Ot~ce

forpayment as f~nd.s

become

available hased ~ipanthe d~at~

th~

Agency recei’ved your ccrr.plete request for pa

merit ofthL~

ap;liczt!on for payment.

S~bseqi.ientapplications for payrnept th.~t

have

been

rcsubrni~ted

will

be processed based upon the date c~mpict~

subseque~t

ap~Lcationf~r

payment requests are

received by theAgency.

This

constitutes the Agency’s flnsl actio~iwith regard

the above

a?plicatlori(s) for payment.

An ~dcrgrow~idstcr~ge

tank owner or operatormay appeal this final decision to

the li1irioi~

Pcilutiori Control Bo~.rd

(Board)

pursuant to S~~tio~

51.8(i) and Section

40 ofthe Act by filing a

Petition

for’a

hearing v~ithin

days

alter the date ofjssuance ofthe finaidecision.

However,

the

35-day period n~ay

he c

ended for ~ period oftime not

exceed 90

days by written r~otice

from the ov~tier

or dp~ratorandthe IIli~oi~

E’.A

~thin

th~

i~Iitia1

35-day

appeal

p~kd,

Ifthe

—

4~C2

North

M~I~

SLr~,~Wrt,

!L ~

~S~t

c.7;~o

D~.sPt.~

‘fl

V~.

H~,rh.rrnSt., ~

PI~ie~~

(,(~C$1l,

—

~$.~7I

2’R.41;f’U

—553 5uu~fi~

6Cfl

—Th~~)

t’~~

—

s~i~

Pc~ri~.

(~r.l4

—

L~N$

Pr~

—

Th211 N.

L’nJvur’~Ity

si..

(.1 (~l

—

(3091

G’)~.34(~2

•

—2125

Fi’~

S~w~f,

Oc~i~p.~it~.

IL h

~2C1

—

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~iu~

4i(t’J

Si~t.~

$~re~1

rid..

—

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~:~

—

•

~n~i

~t~Il

5t~(1,Cr~I&~jIk.~.

I,~’.t4

—

it. I1~

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2,c9

~•~~3LF~

Sr.. S~4ft~

t-’~’iotr

~JS~

—

:~:11~

-S

)

.?age2

applicant wishes to receive

90-day extension, a written requ~sz

that includes a.s~atement

ofthe

da~the finai decision was received, alone with a copy ~f

 this decision, must be sent to th~

Ifliri~isEPA as s~on

as possible.

For inform~.tionragardirig the filing of

anapoeai,

please contact:

Doro~hy

Gunn, Clerk

•

fllnois~oiltrdonCor~trol

~oa.rd

State bf’Iili~ois

Center

100 West Ra.ndolph, Su.ite

11-500

Chicago, flhin’ois

60601

3121814-3620

~or informaijon regsrdin~g

the. ~i1ingofan exteiisio~

please cth~tact:

Illinois En

rime~th1

Protection Agezicy

Division ofLegal Counsel

•

1021 North Grand Avenue East

Spring~e1d,•Il1inois62794-9276

217/782-5544

•

liyou

beve a~yque~tio

or~eqtdrefurther assistance, pie2se contact Lieura Hackrn~n

rny5t2f1at2171782-6762,

since ~

Doug~

E. Oakley, Ma~ger.

LU~ClaimnsUn~t

Planning & Repor~ng

Section

Bureau ofL.wd

DEO:LI-i:jk\0323 17.doc

Attachment

cc:

Eodge-Dwyer-Zemnan

•

—,

Att.achmez~x

•

Accounting Deductions

Re:

.LPC ~09S020~a83

—c

Knox County

GaIesburgJWare~o

Service, Inc. 4~224

1039

Grand Avenue

LUST Incident No, 9S2927

LUST FiscaiFile

Citatioz~

in this attachment are froth

and the Environmental Protection Act

(Act) and

flhinois

Adrninis~ative

Code (35111.

Mm.

Code).

Item #

Descriptidn ofDeductions

$10,081.21,

deductkn for co~ts

associ~tea

with site classification activities,

The

billings submi~t.~d

~ceed.the

approved budget

a~unts,

The Ulinois ~PA

is unable to

approve bil1thg~thatexce2d

the approved b~.idg~t

amounts.

Seoto~

57.8(a)(1)

ofthe

Act and 35 IIL,Adrn. Code 732.601(f))

A deduction

in the

arnouni

of$7,9a2.00 was ‘made on the

amount

requested for

Personnel Costs.

•

deduction in the amount of 56.08 was

made

the arriou~t

requested for Equ

eat

Costs,

A deduction

in. the amount of$2,093.13 was madeon the amount requested for Field

Purchases and Other Costs.

$196.52, adj~strnant

the handling charges

due

the deduction(s) ofineligible costs

(Section 57.8(~

~fthe

Act ~d

35111.

Code 732,607).

This dediict~cr~

forhandlir.g charges was made in. association with the ineligible costs

for Field Purchases snd Other Co~t~.

‘

DEO:LH:j~\C’328

I 7.doc

TOThL

p.06

TDT~ILP.06