BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
HORTENSE SINGER,
)
)
Petitioner,
)
PCB 04-149
(UST Appeal)
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James
R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
)
)
)
)
)
)
Respondent.
)
NOTICE
RECE~VED
CLERK’S OFFICE
JUN
0
2004
STATE OF ILLINOIS
POllUtion Control Board
John Kim, Assistant Counsel
Division of Legal Counsel
Illinois Environmental Protection Agency
1021
North Grand Avenue, East
P0 Box
19276
Springfield,
IL 62794-9276
PLEASE TAKE NOTICE that on May 28, 2004 I mailed for filing with the office ofthe
Clerk of
the
Pollution
Control
Board
a
PETITION
FOR
HEARING,
a
copy
of which
is
herewith served upon you.
PROOF OF SERVICE BY MAIL
I, Sabri
D.
Zeger, an
attorney,
certify
that I served
this
notice by
mailing a copy
to
the
above
named parties
and
depositing
the same
in the
U.S.
mail
at
Oak
Brook,
Illinois
60523,
before 5:00 P.M.
on May 28, 2004, with proper postage
Charles C.
Snyder P.C.
2803
Butterfield Rd.
Suite 380
Oak Brook, IL
60523
T 630-368-0050
F 630-368-0054
By:
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDCLERK’S OFFICE
HORTENSE SINGER,
)
JUN 012004
)
STATE OF
ILLINOIS
Petitioner,
)
Pollution
Control Board
)
PCBO4-149
v.
)
(UST Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR HEARING
NOW COMES
the Petitioner,
1-IORTENSE SINGER,
through her
attorneys, Charles
C.
Snyder P.C., and
pursuant to
415
ILCS
5/57.8
hereby requests
a hearing
to
review the
Illinois
Environmental
Protection
Agency
(“IEPA”)
denial of payment
from
the Underground
Storage
Tank Fund and, in support thereof, states as follows:
1.
On
January
27,
2004
the
IEPA
issued
a
final
decision
letter
(“Letter”)
to
the
Petitioner, denying reimbursement for remediation costs in the amount of
$65,816.84.
(Exhibit A)
2.
On March
5,
2004,
the parties timely filed a joint
for a
90-day
extension of appeal
period. The request was granted on
March
18,
2004,
extending
the appeal period to
June
1, 2004.
(Exhibit B)
3.
The grounds for this appeal are as follow:
a.
The Letter denied $65,816.84
in
costs
as
being
in
excess of those
necessary
to
meet the minimum requirements of Title XVI of the Environmental Protection Act (“Act”).
I of3
-
Petitioner contends that the
sum denied, which represents, among other things,
the
costs
for removal of six
USTs,
liquid
removal and
soil
remediation was reasonable, does not
exceed
applicable requirements, and is properly reimbursed as submitted.
b.
The Letter further denied $65,816.84 in costs on the grounds that such costs
were
incurred
for activities
conducted
after
the
20-day
and
45-day
reporting
requirements
and
not
approved in a budget.
Petitioner contends she submitted these costs as part of Petitioner’s Early Action Billing
Package,
as
such remediation
activities
are
consistent
with
the activities
prescribed in
35
IL
Adm.
Code
Sections
731.162,
731.163
and
732.202.
The
costs
submitted
in
the Petitioner’s
Early Action Plan, therefore, are properly reimbursed as submitted.
Petitioner
further
contends that
she
submitted
these
costs
as part
of Petitioner’s
Early
Action Billing Package after consulting with the IEPA and pursuant to IEPA advice.
Therefore,
in the alternative, Petitioner is properly granted leave to amend her budgets and billing packages
consistent with the Act as interpreted by the Pollution Control Board.
c.
Of the
$65,816.84
denied
above; the
Letter
further
denied $42,662.40
on
the
grounds that the costs
lacked supporting
documentation. The Letter specifically requires receipts
for various supplies
and subcontractor services.
The Petitioners
contends
that
she has provided
supporting
documentation
for the
costs
listed
in
detail
in
the
Letter
in
the form of invoices, manifests
and other
various
records.
The
Petitioner further contends that the costs
submitted are reasonable and
consistent with corrective
action
of a
site containing
six
USTs
and
extensive
soil
and
water contamination.
The
IEPA’s
position that only receipts can constitute “supporting
documentation”, as required by
35 IL Adrn.
Code Section
732.606(gg) is arbitrary, capricious and without statutory authority.
-2of3-
WHEREFORE, Petitioner, HORTENSE SINGER, respectfully requests that the Pollution
Control Board
find that the
$65,816.84
in
costs are properly reimbursed as submitted,
or in the
alternative, that the Petitioner
be
granted leave to
amend her submissions to
correct any
defects
found by this Board.
Petitioner respectfully requests that all related proceedings take place in Chicago, Illinois.
Respectfully Submitted,
HORTENSE SINGER,
:ui0T~i
One ofher Attorne
Charles C.
Snyder P.C.
2803 Butterfield Rd.
Suite 380
Oak Brook, IL
60523
T 630-368-0050
F 630-368-0054
Dated: May 28, 2004
-
3 of3
-
ILLINOIS
ENVIRON1MENTAL
PROTECTION
AGENCY
1021
NORTH GRAND
AVENUE
EAST,
P.O.
Box 19276,
SPRINGFIELD,
ILLINOIS
62794-9276
JAMES
R.
THOMPSON CENTER,
100
WEST
RANDOLPH, SUITE
11-300,
CHICAGO,
IL
60601
ROD R.
BLAGOJEVICH,
GOVERNOR
RENEE
CIPRIANO,
D1RECTOR
217/782-6762
CERTIFIED MAIL #
JAN
27
2004
Hortense Singer
Attn:
Charlie Snyder
2803
Butterfield Road, Suite 380
Oak Brook, Illinois 60523
Re:
LPC #0430833004
--
DuPage County
Warrenville/Hortense Singer
3
South
338
Rt.
59
LUST Incident No. 942631
LUST FISCAL FILE
Dear Mr. Snyder:
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 Ill. Adm.
Code 732,
Subpart F.
This infonnation is dated December
18, 2003
and was received by the
Agency on December 23, 2003.
The application for payment covers the period from November
23,
1994 to June 23,
1995.
The amount requested is $65,816.84.
The deductible amount
to be
assessed on this claim is $100,000.00 which will be assessed on
future claim.
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
beingpaid.
On December 23, 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 cannot be
prepared for submission to
the Comptroller’s office for payment.
Subsequent applications for
payment that have beenlare 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 decisionto 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 of the final decision.
However,
the 35-day period may be extended for a period oftime not to
exceed 90 days by written notice
ROCKFORD
—4302
North Main
StreeE,
Rockford, IL 61103 —(815) 987-7760
•
DES
PLAINES
—
9511
W.
“
r.
-
-
..
-“-..-
.-.
.—.
--
-
- - -
ELGIN
—595
South State, Elgin,
IL 60123
—
(847)
608-3131
•
PEORIA
—5415
N.
Univers
BUREAU
OF
LAND
-
PEORIA
—7620
N. University
St.,
Peoria,
IL 61614— (309)
693-5462
•
CHAMPAIGN
—212
SPRINGFIELD
—4500
S.
Sixth
Street
Rd.,
Springfield,
IL 62706— (217)
786-6892
•
COLLINSVZLLE
—
200’
MARION
—2309 W.
Main
St.,
Suite
116,
Marion,
IL 62959—
(6
EXHIBIT A
PRINTED
ON
RECYCLED
PAPER
Page 2
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 regarding the 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 ofLegal
Counsel
1021
North Grand Avenue East
Springfield, Illinois
62794-9276
217/782-5544
If you have any questions
or require further assistance, please contact Bill Richards of my
staffat
217I782-6762~
D
as B.
Oakley, Manager
LUST Claims Unit
Planning & Reporting Section
Bureau ofLand
DEO:WWR:bjh\043453.doc
Attachment
cc:
K-Plus Environmental Services
Attachment A
Accounting Deductions
Re:
LPC #043 0833004
--
DuPage County
Warrenville/Hortense Singer
3
South 338 Rt.
59
LUST Incident No. 942631
LUST Fiscal File
Citations in this attachment are from and the Environmental Protection Act
(Act) and 35 Illinois
Administrative
Code (35 Ill.
Adm. Code).
Item #
Description ofDeductions
$65,816.84,
none ofthe costs incurred from January 13,
1995
to June 23,
1995,
are
eligible forreimbursement.
These costs are for activities in excess ofthose necessary
to meet the minimum requirements ofTitle XVI ofthe Act; were conducted after the
20- and 45-day reportingrequirements of35
111. Adm.
Code 732.202(c), 732.202(e),
731.162(b) and
731.163(b); and were not approved in a budget.
(Sections
57.5(a)
and
57.8(a)(1)
ofthe Act; 35 III. Adm. Code
732.505(c),
732.601(f), and 732.606(o))
All costs submitted in this
claim incurred after
(1/12/95)
52
days ofnotifying IEMA,
therefore are deemed ineligible.
The
following costs are included in the above deduction, but are also being denied for other
reasons.
2.
$42,662.40,
deduction for costs that lack supporting documentation
(35
Ill. Adm.
Code 732.606(gg)).
Since there is no supporting documentation ofcosts, the illinois
EPA cannot detennine that costs were not used for activities in excess ofthose
necessaryto meet the minimum requirements ofTitle XVI ofthe Act (Section
57.5(a)
ofthe Act and 35
Iii. Adm.
Code 732.606(o)).
Need
Camera & Film receipts for $125.00,
asked for on the Equipment Form.
Need a more detailed breakdown ofcosts for the Canopy Demolition for $1,600.00 on
the Equipment form.
Need Photograph Development receipts for $68.70, asked for on the Field Purchases
form.
Need EVOC Analytical Laboratories Invoice for $291.20, asked for on the
Subcontractors form,
Need Drum Disposal Invoice for $2,120.00, asked for on the Subcontractors form.
Need R. Carison & Sons Invoice for $5,488.00, asked for on the Subcontractors form.
Need Northbranch Environmental Invoice for $2,529.50, asked for on the
Subcontractors form.
Page 2
Need VanHoesen Industries Invoice for $18,800.00, asked for on the Subcontractors
form.
Need RW Collins Invoice for $11,300.00, asked for on the Subcontractors form.
Need K~P1usInvoice for $340.0, asked for on the Personnel Summary Sheet.
3.
$1,860.60, deduction for costs which are unreasonable as submitted.
(Section
57.7(c)(4)(C) ofthe Act and 35 Ill.
Adm.
Code 732.606(hh))
Vehicle mileage exceeds reasonability by
$50.16.
Vehicle mileage exceeds reasonability by $6.44.
Sample jars exceeds reasonability by $4.00.
OSFM Registration
& Penalty fees for $1,800.00 for ineligible costs.
4.
$3,680.54, adjustment in the handling charges due to the deduction(s) ofineligible
costs (Section 57.8(f) of the Act and
35
Ill. Adrn. Code 732.607).
Reduction ofHandling Charges are due to the above
items lacking documentation and
the deduction ofcosts for being unreasonable.
DEO:WWR:bjh\043453.doc
ILLINOIS POLLUTION CONTROL BOARD
March
1 8, 2004
HORTENSE SINGER,
)
)
Petitioner,
)
PCBO4-149
V~
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
(90-Day Extension)
PROTECTION AGENCY,
)
)
Respondent.
)
ORDER OF
Ti-TB BOARD (by J.P. Novak):
On March
5,
2004, the parties timely filed ajoint notice to extend the 35-day period
within which Hortense Singer may appeal
a January 27, 2004 determination ofthe Illinois
Environmental
Protection Agency (Agency).
See
415 ILCS
5/40(a)(l) (2002); 35
111.
Adm. Code
105.402,
105.406.
Because the postmark date ofthe joint request is within the time for filing,
the
joint
request was timely filed.
35 Ill. Adni.
Code
lOl.300(b)(2),
105.404.
The Agency approved
portions ofpetitioner’s request for reimbursement from the UST Fund, but denied
reimbursement because the approved portions did not exceed the
app-lied deductible, for
Hortense Singer’s leaking underground petroleuni storage tank facility located at
3
South 338
Route
59,
Warrenville, DuPage County.
The Board extends the appeal period until June
1, 2004,
as the parties request.
See
415 ILCS
5/40(a)(l)(2002); 35 Ill.
Adm. Code
105.406.
IfHortense
Singer
fails to file an appeal
on orbefore that date, the Board will dismiss this case and close the
docket.
IT IS
SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois
Pollution Control Board, certify that the Board
adopted the above order on March 18, 2004, by a vote of5-0.
I
~
4..
DorothyM. Gumi,
Clerk
Illinois Pollution
Control Board
EXHIBIT B
