BEFORE THE POLLUTION CONTROL BOARD
~
OF THE STATE OF ILLINOIS
CLt~ic~
CIRCLEC,INC.,
)
JAN 262004
Petitioner,
)
v.
)
PCBO4- ~
)
(UST Appeal)
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
PLEASE TAKE
NOTICE
that on January 26, 2004, filed with the Clerk of the Illinois
Pollution Control Board ofthe State ofIllinois an original, executed copy ofan Appearance and
Petition for Review ofIllinois Environmental Protection Agency Decision.
Dated: January 26, 2004
Respectthhly submitted,
Circle C, Inc.
By:
______________
One of Its Att~rneys
CarolynS.Hesse
Barnes & Thornburg
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
200080v1
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 Appearance and Petition for Review of
Illinois Environmental Protection Agency Decision 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
from One North Wacker Drive, Suite 4400, Chicago, Illinois, before the hour of 5:00 p.m., on
this 26th Day ofJanuary, 2004.
Carolyn S. He~e
This filing submitted on recycled paper as defined in 35
III.
Adm. Code 101.202
2
RECEIVED
CLERKS OFFICE
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
N 2
STATE OF
II..UNOJ$
CIRCLE C, INC.,
)
Poflution Control Board
)
Petitioner,
)
)
v.
)
PCBO4-
___
) (UST Appeal)
ILLINOIS ENVIRONMENTAL
)
-
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
NOW COMES the undersigned, Carolyn S. Hesse, and enters~an appearance for the
Petitioner, Circle C, Inc., in the above captioned matter.
Dated: January 26, 2004
Respectfully submitted,
Circle C, Inc.
By:
Oii~eof Its Ati~rneys
~-)~HuL~~
Carolyn S. Hesse, Esq.
Barnes & Thornburg
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312)357-1313
~2OOO78vl
This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202
F~CE~VED
CLERKS OFFICE
BEFORE
THE POLLUTION CONTROL BOARD
JAN
26200k
OF THE STATE OF ILLINOIS
STATE OF
ILLINOIS
CIRCLE C, INC.,
pollution Control Board
)
Petitioner,
)
V.
)
PCBO4-
___
) (UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
VERIFIED
PETITION FOR
REVIEW
OF ILLINOIS ENVIRONMENTAL
•
PROTECTION AGENCY DECISIONS
Circle C., Inc., by its attorney, Carolyn S. Hesse ofBarnes & 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.
Circle C, Inc. (“Circle C”), is the owner of property located at 910 South
• State Street, Jerseyville, Jersey County, Illinois. The site was a gasoline
service station that had underground storage tanks (UST’s) on the
property, which stored gasoline and diesel fuel.
2.
LUST Incident Number 20020754 was obtained following a site
investigation. The site has also been assigned LPC #0830255054-Jersey
County.
3.
On March 6, 2003, the Agency received Circle C’s request for
reimbursement of costs from the Illinois Underground Storage Tank Fund.
On April 23, 2003, the Agency issued a letter stating that the application
This filing submitted on recycled paper as defined in 35
III.
Adm. Code 101.202
for payment was incomplete.
Circle C subsequently provided the
additional information requested.
4.
On August 20, 2003, the Agency received Circle C’s complete application
for payment of the claim in the amount of $111,213.32 (the “Request”).
•
The application for payment covers the period from May 1, 2002 to
October 31, 2002.
5.
The Agency denied certain costs in the Request in a letter dated
December 24, 2003 (the “Letter”), a copy of which is attached hereto as
Exhibit A.
6.
On December 26, 2003, Petitioner received the Letter from which this
appeal is being taken. Thus, this appeal is timely filed.
7.
The site was determined to have a leaking underground storage tank site
and, therefore, is eligible for reimbursement under the UST Fund in 2002.
The
•
remediation of the leaking underground storage tank and
reimbursement payments are covered under 35 Ill. Admin. Code Part 732.
Count I
Approval By Operation ofLaw
8.
Petitioner repeats and realleges the allegations of paragraph 1 through 7 as
if fully set forth herein.
9.
Paragraph 35 111. Admin. Code 732.602(e) provides in part as follows:
Following a review of an application for payment,
the Agency shall have the authority to approve,
deny or require modification of applications for
payment or portions thereof. The Agency shall
notify the owner or operator in writing of its final
action on any such application for payment. Except
as provided in Subsection (f) of this Section, if the
This filing submitted on recycled paper as defined in 35 Ill. Mm. Code 101.202
2
Agency fails to notify the owner or operator of its
• final action on an application for payment within
120 days after the receipt of a complete application
for payment, the owner or operator may deem the
application for payment approved by operation of
law.
10.
Between August 20, 2003, when the Agency received the request and
December 24, 2003, the date of the Letter, there are 126 days.
See
Exhibit A.
11.
The exception provided in 35 Ill. Admin. Code 73 2.602 subsection (f)
does not apply. This exception allows a time extension for an Agency
decision if the owner or operator waives the right to a final decision within
120 days after the submittal of a complete application for payment. The
owner or operator did not waive its right to a final decision.
See
Affidavit
of William T. Sinnott.
12.
Circle C’s Request is deemed approved by operation of law, and Circle C
is owed the full amount ofthe Request, $111,213.32, minus any applicable
deductible that was not previously satisfied.
WHEREFORE, Circle C respectfully requests that the Board enter an order
requiring the Agency to reimburse Circle C for the full amount of its reimbursement
request, minus the appropriate deductible, and for Circle C’s attorneys’ fees and costs in
bringing this appeal.
Count II
13.
Petitioner, Circle C repeats and realleges the allegations of Paragraphs 1
through 7 as if fully set forth herein.
This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202
3
14.
Attachment A to the Agency’s Letter denying reimbursement, Exhibit A,
states:
Description of Deductions
$47,786.32, deduction for early action activities
costs which are unreasonable as submitted, (Section
57.7(c)(4)(C)
of the Act and 35 Ill. Admin. Code
732.606(u)).
15.
The Letter provides no further explanation of the Agency’s reasons or
bases for denial that could aid petitioner in setting forth its grounds of
appeal in this Count II.
16.
The Letter does not provide any information regarding why or even which
costs or early action activities the Agency concluded were unreasonable.
17.
The Agency’s denial is a final decision that Petitioner must appeal to the
Board in order to preserve and enforce the Petitioner’s right to
reimbursement under the UST Fund.
18.
Paragraph 35 Ill. Admin. Code 732.602(e) provides, in part, as follows:
If the Agency denies payment for an application for
payment or for a portion thereof or requires
modification, the written notification shall contain
the following information as applicable:
1.
An explanation of the specific type of
information, if any, that the Agency needs to
•
complete the full review;
2.
An explanation of the Sections of the Act or
•
regulations that may be violated if the
application for payment is approved; and
3.
A statement of specific reasons why the
cited Sections ofthe Act or regulations may
be violated if the application for payment is
approved.
This filing submitted on recycled paper as defined in 35 Iii. Adm. Code 101.202
4
19.
The Agency has violated Subparagraph 35 Ill. Admin. Code 732.602(e)(l)
because the Agency’s letter does not provide an explanation ofthe specific
type of information the Agency needs to complete is review.
20.
The Agency has violated Subparagraph 35 III. Admin. Code 732.602(e)(3)
because the Agency’s letter does not contain a statement of specific
reasons why the cited Sections ofthe Act or regulations may be violated if
the application for payment is approved nor does the letter even identify
which of the csts submitted for reimbursement were considered
unreasonable.
-
21.
Circle C’s Request is deemed approved by operation of law because the
Agency did not comply with 35 Ill. Admin. Code 732.602(e)(l) and (3)
within 120 days ofreceiving a complete application for reimbursement.
WHEREFORE, Circle C respectfully requests that the Board enter an order requiring the
Agency to reimburse Circle C for the full amount of its reimbursement request, minus the
appropriate deductible, and for Circle C’s attorneys’ fees and costs in bringing this appeal.
Respectfully submitted,
Circle C, Inc.
• By:
_______________
One of Its A rneys
Carolyn S. Hesse, Esq.
Barnes & Thornburg
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312)357-1313
200063v1
This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202
5
VERIFICATION
Under penalties as provided by law pursuant to Section 1-109 of the Illinois Code of Civil
Procedure, the undersigned certifies that the statements set forth in this instrument are true and
correct, except as to matters therein stated to be on information and belief and as to such matters
the undersigned certifies as aforesaid that he verily believes the same to be true.
DATED:
JA~ARY
22, 2004
LAVER1~E CRTJLL
(This filing submitted on recycled paper as defined in 35111. Adm. Code 101.202
6
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
CIRCLE C, INC.,
)
)
Petitioner,
•
)
)
v.
•
)
PCB04-
_____
•
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
•
)
PROTECTION AGENCY,
)
)
•
Respondent.
)
AFFIDAVIT OF WILLIAM T. SINNOTT
I, William T. Sinnott, being first duly sworn, do hereby depose and state on oath as
follows:
1.
I am the Assistant Secretary and Treasurer of CW3M.
2.
CW3M prepared the request for reimbursement on behalf of Circle C that is the
subject of the above-captioned appeal. CW3M also performed work covered by
• the request for reimbursement.
3.
I have personal knowledge of the events. surrounding Circle C’s request for
• reimbursement from the Illinois Environmental Protection Agency for the
property located at 910 South State Street, Jerseyville, Illinois.
4.
The request was originally filed on March 6, 2003. The completed request was
filed on or before August 20, 2003.
5.
At no time did CW3M waive the right to obtain a final decision by the Illinois
Environmental Protection Agency within 120 days.
Under penalties as provided by law pursuant to Section 1-109 of the Illinois Code of Civil
Procedure, the undersigned certifies that the statements set forth in this instrument are true. and
correct, except as to matters therein stated to be on information and belief and as to such matters
the undersigned certifies as aforesaid that he verily believes the same to be true.
DATED:
JA~ARY22, 2004
__________________
WILLIA1~y1i
SThNOTT
CHDSOI EHAIM 200743v1
.
4.
-
ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY
1021
NORTH GRAND AVENUE
EAST,
P.O.
Box 19276, SPRINGFIELD. ILLINOIS 62794-9276. 217-7823397
jAMES R. THOMPSON CENTER, 100 WEST RANDOLPH. Sutr~‘11-300, CHICAGO, IL 60601 312-514-6026
ROD R. BLACOJEVICH, GOVERNOR
RENEE CIPRIANO, DIRECTOR
217/782-6762
-
~EC24 2003
•
DEC 2 6 2003
Circle C, Inc.
.
Attention: Laverne Cmli
Post Office Box 571
Carlirxville, IL 62626
Re:
LPC #0830255054 -- Jersey County
JerseyvIlle/Circle “C” Corporation
910 South State Street
LUST Incident No. 20020754
LUST FISCAL FILE
Dear Mr. Crull:
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)
of the Illinois Environmental Protection Act (Act), and 35 Ill. Adm.
Code 732, Subpart F.
.
This information is dated March 4, 2003 and was received by the Agency
on March 6, 2003. The application for payment covers the period from May 1, 2002 to
October 31, 2002. The amount requested is $111,213.32.
The deductible amount to be assessed on this claim is $1 5,000,00, which is being deducted from
this payment. In addition to the deductible, there are costs from this claim that are not being
paid. Listed in Attachment A are the costs that are not being paid and the reasons these costs are
not being paid.
On August 20, 2003, the Agency received your complete application for payment for this claim.
As a result ofthe Agency’s review ofthis application for payment, a voucher for 548..427.00 will
be prepared for submission to the ComptrOller’s Office for payment as funds he~omeavailable
based upon the date the Agency received your complete request for payment ofthis application
for payment. Subsequent applications for payment that havebeeri/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 t~the above
application(s) for payment.
An underground storage tank owner or operator may appeal this final decision to the Ililnois
Pollution Control Board (Board) pursuant to Section 57.8(i) and Section 40 of the Act by filing a
petition for a hearing within 35 days after the date ofissuance ofthe final decision. However.
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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
applicant 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 information regardingthe filing ofan appeal, please contact:
Dorothy Gunn, 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 Of Legal Counsel
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
217/782-5544
f you have any questions or require
further assistance, please
contact Steve Jones of
Hernando Albarracin’s staff at
217/782-6762.
Since y
Doug~E. Oakley, Manager
LUST Claims Unit
Planning & Reporting Section
-
Bureau of Land
DEO:DT:jk\030 12 12.doc
Attachment
cc: CW3M
-
J’~A(~. ~4
DEC 2-
f~
20fl~
Attachment A
Technical Deductions
Re:
LPC #0830255054
--
Jersey County
-
J’erseyviUe/Circle C Inc.
910 South State Street
LUST Incident No. 20020754
LUST FISCAL FILE
Item #
Description of
Deductions
1.
$47,786.32, deduction for early action activities costs which are unreasonable as
submitted. (Section
57.7(c)(4)(C)
of the Act and 35 ill. Mm. Code 732.606(u))
SJ\Lircle C 20020754 EA cost rev Nov 03.doc