1. NOTICE
      2. OF THE STATE OF ILLINOIS PollutionSTATE OFControlILLINOISBoard
      3. PETITION FOR REVIEW OF FINAL AGENCYLEAKING UNDERGROUND STORAGE TANK DECISION
      4. 217/782-6762
      5. CERTIFICATE OF SERVICE
CLERK’S OFFT~
BEFORE THE POLLUTION CONTROL BOARD
NOV 1 7 2003
OF THE STATE OF ILLINOIS
Pollution
STATE OF
Con
ILLINOIS
trol Board
)
Petitioner,
)
~
3
)
)
PCBNo.~
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
John J. Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. 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 a Petition for Review of Final Agency Leaking
Underground Storage Tank Decision, a copy of which is herewith served upon you.
Robert E. Shaw
IL ARDC No. 03123632
Curtis W. Martin
IL ARDC No. 06201592
SHAW & MARTIN, P.C.
Attorneys at Law
123 S. 10th Street, Suite 302
P.O. Box 1789
Mt. Vernon, Illinois 62864
Telephone (618) 244-1788
(
By~
/
CurtisWei
Enterprises~,,~etitionerW.
Martin,
~
A~A~rneyfor
WEI ENTERPRISES,
vs.
•
..
CLERK’SorncE
BEFORE THE POLLUTION CONTROL BOARD
NOV 1 7 2003
OF THE STATE OF ILLINOIS
Pollution
STATE OF
Control
ILLINOIS
Board
WEI ENTERPRISES,
)
Petitioner,
)
vs.
)
PCBNo.
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
PETITION FOR REVIEW OF FINAL AGENCY
LEAKING UNDERGROUND STORAGE TANK DECISION
NOW COMES the Petitioner, Wei Enterprises, (“Wei”), by one ofits
attorneys, Curtis W. Martin of Shaw & Martin, P.C., and, pursuant to Sections
57.7(c)(4)(D) and 40 of the Illinois Environmental Protection Act (415 ILCS
5/57.7(c)(4)(D) and 40) and 35 Ill. Adm. Code 105.400-412, hereby requests that the
Illinois Pollution Control Board (“Board”) review the final decision of the Illinois
Environmental Protection Agency (“Agency”) in the above cause, and in support
thereof, Wei respectfully states as follows:
1.
On October 8, 2003, the Agency issued a Final Decision to Wei, a copy
of which is attached hereto as Exhibit A.
2.
The grounds for the Petition herein are as follows:
Wei submitted to the Agency, through its consultant, United Science
Industries, Inc., its Application for Payment from the Underground Storage Tank
Fund pursuant to Section 57.8(a) of the Act and 35 III. Adm. Code 105.732, subpart
F. The Application for Payment covered the period from March 1, 2002 to
February 28, 2003 and requested $28,780.46.
In response to the Application for Payment, the Agency authorized a
voucher for $5,794.79 to be submitted to the Comptroller’s office for payment from
the Underground Storage Tank Fund, making both technical and accounting
deductions. As for the technical deductions, the Agency indicates that $15,565.25 of
the costs requested in the Application for Payment lack supporting documentation
such that the Agency cannot determine that these costs were not used for activities
in excess of those necessary to meet the minimum requirements of Section 5 7.5(a) of
the Act and 35 Ill. Adm. Code 732.606(o).
The Agency also indicates that the Application for Payment includes
costs for installation of a free product removal system that does not include
information regarding activities necessary to install the system nor an estimate of
the length of time the system will be required to operate in order to recover free
product on the Wei site. The Agency further questions the personnel charges with
respect to actual tasks completed by each individual for which costs are reflected
and therefore requested a more specific breakdown of actual work completed by
each individual each day per invoice. The Agency also requests clarification as to
the purpose for the use a generator, a tractor with dump trailer, and a metal
detector.
The Agency also determined that $4,575.00 Wei seeks to be reimbursed
is in excess of that necessary to meet the minimum requirements of Section 57.5(a)
of the Act and 35 Ill. Adm. Code 732.505(c) and 732.606(o), and is not associated
with “corrective action costs” in compliance with Sections 57.6 and 57.7 ofthe Act
and 35 Ill. Adm. Code 732.103. The Agency further questions the task/work
performed by the personnel as not being specific to the actual work performed, and
the Agency requested a more specific breakout of each individualititle and
task/work performed each day per invoice. At the same time, however, the Agency,
without the specific requested information, determined the costs to be unreasonable
as submitted. Finally, the Agency also determined that $433.46 was unreasonable
for a per bailer charge, for ten (10) groundwater monitoring well charges, for costs
for gloves and for the cost for oiliwater interface probe use.
For its accounting deductions, the Agency determined that $50.97 in
costs submitted were unreasonable for various equipment and materials reflected in
particular USI invoices. The Agency also deducted $2,360.99 of costs submitted as
being duplicate billings previously reimbursed pursuant to a reimbursement claim
received by the Agency on March 26, 2003.
The costs submitted by USI for payment are within generally accepted
engineering practices and comply with the Act and the regulations promulgated
thereunder. Specifically, the costs for the free product removal system installation
are supported in the Agency created Payment Application and Free Product
Removal forms from both a technical and accounting standpoint in that all
information regarding the equipment needed to build the system and the activities
necessary to install it have been provided. Thus, the activites have been properly
documented as required by Section 732.203 (a)(4). Further, basic common sense
dictates that the best estimate of the duration of the need for the system is so long
as the free product exists at the Wei site. The Agency essentially requests an
estimate that cannot be provided and on that basis denies reimbursement for the
actual costs incurred to date. Such an approach is both arbitrary and capricious.
In addition, the billing package, Free Product Removal Reports, and
consultant and Agency correspondence, taken together, provide the necessary
documentation to include costs and explanations for personnel with specific detail of
the particular tasks performed to sufficiently and accurately advise the Agency of
the necessity and reasonableness of the charges therefore and the equipment used
in connection with the tasks performed. Is it impossible for Wei to specifically
address the $15,565.25 technical deduction because the Agency has failed to provide
Wei with any indication as to what particular activity or equipment it deems to be
unreasonable. The descriptions of the task/work performed by the personnel as
provided in the billing package are consistent with all previous billing site specific
packages approved for payment by the Agency. To require a more specific breakout
of the actual work completed by each individual performed each day is tantamount
to requiring USI to provide every timesheet and invoice produced in the course of
the project. Such a request is unreasonable, onerous, arbitrary and capricious.
Moreover, the Agency’s position is inconsistent with the Act and the
Regulations. Pursuant to Section 732.203 (a)(2), owners or operators must remove
free product to the maximum extent practicable and use abatement of free product
migration as a minimum objective for design of the free product removal system.
Section 732.203(a)(1) requires Wei to conduct free product removal by using
recovery and disposal techniques appropriate to the hydrogeologic conditions at its
site in a manner that minimizes the spread of contamination into previously
uncontaminated zones. Further, section 732.605(a)(1) includes within eligible costs
those associated with corrective action activities, including early action activities
conducted pursuant to Subpart B, which pursuant to 732.203(a)(1), include free
product removal. No prior approval from the Agency is necessary regarding free
product removal. Wei’s consultant performed the early action activities, i.e., free
product removal, necessary to protect human health and the environment and the
costs associated with such efforts is subject to reimbursement.
The $4,575.00 technical deduction by the Agency for costs not
associated with corrective action costs is therefore clearly erroneous as such costs
were associated with corrective action activities. The Application for Payment
includes costs associated with personnel tasks described as associated with the
corrective action and clearly advised the Agency of the actual work performed by
the personnel. The Agency, however, without warrant, finds this information
lacking.
In addition, the Agency’s deduction of $433.46 for costs it deems
unreasonable associated with the bailer, gloves and interface probe use are
arbitrary and capricious. Further, the deduction for the costs for ten (10)
groundwater monitoring wells is arbitrary and capricious as Wei is not advised as to
which ten (10) groundwater monitoring wells the Agency deems unreasonable and
the Agency arbitrarily determined that nine (9) wells are all that is necessary to
complete the investigation.
The deduction of $50.97 by the Agency as unreasonable for the PID,
bentonite and target concrete saw are arbitrary and capricious. Wei does not
contest the $2,360.99 accounting deduction as the Agency is correct that a request
for a voucher covering these costs was included in an Agency letter dated May 12,
2003 in response to an earlier payment application submitted by Wei.
For the foregoing reasons, the Agency’s refusal to request a voucher for
the $28,780.46 requested in Wei’s Application for Payment, less the $2,360.99
deduction, was erroneous, arbitrary, and capricious, and should be reversed by this
Board. Petitioner, Wei Enterprises, therefore requests that the Board reverse the
decision ofthe Agency and rule in favor of the Petitioners’ request for preparation of
a voucher for submission to the Comptroller’s Office for payment of its Application
for Payment from the Underground Storage Tank Fund, less the $2,360.99
deduction, and that Petitioner recover its attorney’s fees and costs incurred herein
pursuant to 415 ILCS 5/57.8(1) and 35 III. Adm. Code 732.606(1).
Respectfully submitted,
SHAW & MARTIN, P.C.
By_______
áurtis W. Martin,
torney for
(Wei Enterpris~itioner
Robert E. Shaw
IL ARDC
No. 03123632
Curtis W. Martin
IL ARDC No. 06201592
SHAW & MARTIN, P.C.
Attorneys at
Law
123 S.
10th Street, Suite 302
P.O. Box 1789
Mt. Vernon, Illinois 62864
Telephone (618) 244-1788
e
‘
lLi’?NOIS ENVIRONMENTAL PROTECTION AGENCY
1021 NORTH CRANO AVE’4UE EAST, P.O. Box 19276,
5PRINC~(ELO,ILUNOF5
62794-9276, 217-782-3397
JAMES
R. THO~IPSOr.~
CENTER, 100 W~siRANDOLPH, Sune 11-300, CHICAGO, ft 60601, 31 2-814-6026
Roo R. BL~GoJEvlCH,GoV~NOR
RENEE C~PRIANO,DRECrOR
217/782-6762
OCT 08. 20G3
Wei Enterprises
Attention: Susan Wei
Post Office Box 834
O’Fallon, IL
62269
Re:
LPC #163 i2~55004
--
St. Clair County
ShiloblWei Enterprises
• 529
Maple Sireet
•LUST Incident No. 982804
LUST FISCAL FILE
Dear Ms. Wei:
The
Illinois
Environmental Protection Agency has completed the review ofyour application for
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
35 Iii.
Adm.
Code 732., Subpart F. This information is dated August 20, 2003 and was received by the
Agency on August 22, 2003. The application for payment covers the period from March 1, 2002
to February 28, 2003. The amount requested is $28,780.46.
The deductible amount for this claim is $10,000.00, which was previously deducted from the
Invoice Voucher dated February 16, 2000. Listed in Attachment A
are
the costs which ars
not
being paid and the ieasons these costs are not being paid.
On August 22, 200~,the Agency received your complete application for payment for this claim.
As a result ofthe Agency’s review of this application for payment, a voucher for $5 ,794 ,79 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. Subsuquent applications for payment that have beenlare submitted will be
processed based upon the date complete subsequent application for payment requests are
received by the Ag~ncy.This constitutes the Agency’s final action with regard to the above
application(s) for payment.
An underground stt-age tank owner
or
operator may appeal. this final decision to the Illinois
Pollution Control Board (Board) pursuant to Section
578(i)
and Section 40 ofthe Act by filing a
petition for a hearing within 35 days after the date of issuance ofthe final decision. However,
the 33-day period may be extended for a period oftime not to exceed 90 days by written notice
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EXHIBIT..
~,
Attachment A
Technical Deductions
Re:
LPC ~i63I255004
St• Clair County
Shiloh/Wei Erxt~:rprise
529 Maple Stre-t
LUST Incident No. 982804
LUST Fiscal File
Citations in this attachrrient are fl-am and the Environmental Protection Act (Act) and
35
Illinois
Administrative Code
(25
111. Adm. Code).
Item ~
Description ofDeductions
$15,565.25,
deduction for costs that lack supporting documentation (35 III. Adm. Code
732.606(gg)). Since there is no supporting documentation of costs, the Illinois EPA
cannot determine that costs were not used for activities in excess of those necessary to
meet the minimum requirements ofTitle XVI ofthe Act (Section
5
7.5(a)
ofthe Act
arid 35 Iii. Mm. Code 732.606(o)).
The billing package includes costs for free product removal system installation. While
the Illinois EPA has received technical specs on the equipment needed to build the
system, information regarding activities necessary to install the system has not been
provided.
Li
addition, an estimation ofhow long the system will be required to
operate in order to recover free product on site has not been provided as previously
requested itt the Illinois EPA letter dated May 12, 2003.
Also, the billing package includes costs for Personnel that do not specify what actual
zasklwork ~vascompleted by each individual/title on the days the work was charged for
in the weekly worksheets. Please provide a more specific breakout ofactual work
completed ~y each individual/title performed each day per invoice as previously
requested i~ithe Illinois EPA letter dated May 12, 2003.
Further. tht~Illinois EPA is requesting clarification as to the purpose for the use ofthe
following e:quipment as previously requested in the Illinois EPA letter dated May 1 2.
2003:
a.
115 volt gerierator~
b.
Tractor with dump trailer (Invoice ~l8-20l4);
and
c.
Metal
detector.
• Page2
$4,575.00,
deduction for costs for an activity in excess ofthat necessary to meet the
minimum requirements ofTitle XVI ofthe Act (Section
57.5(a)
ofthe Act;
35
III.
Adm. Code
732.505(c)
and 732.606(o)). Costs for corrective action activities and
associated materials or services exceeding the minimum requirements necessary to
comply
with
the Act are not eligible forpayment from the Fund (35 Iii. Adm. Code
732.606(o)) In addition, these costs are not corrective action costs. “Corrective
action” means an activity associated with compliance with the provisions of Sections
57.6 and 57 7 of the Act (Section
57.2
of the Act
and
35
111. Adm. Code
732.103).
One of the eligibility requirements for accessing the Fund is that costs are
associated
with
“corrective action” (Section
57.9(a)(7) of
the Act).
These costs include personnel costs since the
task/work
performed descriptions were
not specific as to the actual work
that was performed.
Please
provide
a more specific
breakout of each individual/title and the
task/work performed each day per invoice as
previously requested in the Illinois EPA letter dated May 12, 2003.
In addition, these costs lack supporting documentation (35 Iii. Adm. Code
732.606(gg)).
Since there is no supporting documentation ofcosts, the Illinois EPA
cannot determine that costs were not used
for activities in excess ofthose necessary to
meet the minimum requirements of Title XVI ofthe Act (Section 57.5(a) ofthe Act
and 35 III. Adm. Code 732.606(o)).
Further, thcse costs are unreasonable as submitted. (Section 57.7(c)(4)(C) ofthe Act
and 35 III. Adrn. Code 732.606(hh)).
3
~433.46, d~ductionfor costs which are unreasonable as submitted. (Section
57.7(c)(4)(C)
of the Act and 35 111. Adm. Code 732.606(hh)). The following
unreasonable costs include:
a.
Costs per bailer;
b. Costs forten (1 0) groundwater monitoring wells since nine (9) groundwater
monitoring wells are necessary/reasonable for free product investigations.
c.
Costs per glove; and
d. Costs per oil/water interface probe use.
HAC:MW:mw\982804Fisca~AttachmnentA-2.DOC
Attachment A
Accounting Deductions
Re: LPC
#1631255004
—St. Clair County
Shiloh/Wei En~erprises
529
Maple Street
LUST Incideni No. 982804
LUST Fiscal File
Citations in this artaclment are from and
the Environmental Protection Act
(Act)
and 35 Illinois
Administrative Code (35 III. Adm. Code).
item #
Description, ofDeductions
$50.97, deduction for costs which
are
unreasonable as submitted. (Section
57.7(c)(4)(C)
ofthe Act and 35 III. Adm. Code 732.606(hh))
The following deductions were made on the following United Science Industries~Inc.
invoices:
#1 8-9776A
$5.00 for a ND
$6.00 for
Bentonite (50
lb.
bag)
#18/10163
$5.00 for a PD
$4.00 for Bentonite (50 lb. bag)
#18-Il 4744B
$22.00 for Target Concrete Saw
$8.97 for balance carried forward on electricity costs
2.
$2,360.99 deduction for costs associated with duplicate billings. (Section
57.7(c)(4)(C) ofthe Act and 35 III. Adm. Code 732.606(o))
The following deductions were made because the amounts were previously
reimbursed in the claim received by the Agency on March 26, 2003. These deductions
were made on the following United Science Industries, Inc. invoices:
~/fl8-9776A
$325.00 for Equipment
$317.12 for Stock Items
$9.03
for Field Purchases
~l8-10163
$325.00
for Equipment
$576.60 for Stock Items
#18-114448
$110.50 for Equipment
•
$15.32 for Stock Items
$82.65 for Field Purchases
#18-11 8~2
$375.00 for Equipment
$18.68 for Stock Items
•
$66.65 for Field Purchases
#18..120.4
$90.OOforEquipment
$15.96
for Stock
Items
$33.48 for Field Purchases
DEO:LH:jk\03089).doc
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby
certify that
on November
/3
2003, I served true and correct copies of a Petition for Review of Final Agency
Leaking Underground Storage Tank Decision, by placing true and correct copies in
properly sealed and addressed envelopes and by depositing said sealed envelopes in
a U.S. mail drop box located within Mt. Vernon, Illinois, with sufficient
Certified
Mail postage affixed thereto, upon the following named persons:
‘Dorothy M. Gunn, Clerk
John J. Kim
Illinois Pollution Control Board
Assistant Counsel
State of Illinois Center
Special Assistant Attorney General
100 West Randolph Street
Division of Legal Counsel
Suite 11-500
1021 North Grand Avenue, East
Chicago, IL 60601
P.O. Box 19276
Springfield, IL 62794-9276
for
Petitioner,

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