L. KELLER OIL PROPERTIES,
(Charleston),
Petitioner,
ILLiNOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
) PCBNo.05~
)
)
)
)
)
CLER~’S OFFICE
NOTICE OF FILING
TO:
John Kim
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Spr~ngfield,Illinois 62794-9276
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, Illinois 62794-9274
PLEASE TAKE NOTICE that on September 9, 2004, we filed with the Clerk of the
IllinoisPolhnion Control Board of the State of Illinois an original, executed copy of a Petition
for Review of Illin~isEnvironmental Protection Agency Decision and Motion for Expedited
Review of Illinois Environmental Protection Agency Decision.
Dated: September 9, 2004
Carolyn S. Hesse
Barnes & Thornburg L.LP
One North Wacker Drive
Suite 4400
Chicago, Iiinois 60606
(312) 357-1313
235546v1
Respectfully submitted,
L. Keller Oil Properties (Charleston)
I’ ~
~
r\~~
~i
By
~
~
—
One of Its Att.~rneys
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
V.
SEP ~J~
2004
STATE OF QLINOJS
Pollution Control Board
This filing submitted on recycled paper as defined
in
35 111. A.dm. Code 101.202
CERTIFICATE OF SERVICE
I, on. oath state that I have served the attached Petition for Review of Illinois
Environmental Protection Agency Decision and Motion for Expedited 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
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, Illinois 62794-9274
from One North Wacker Drive, Suite 4400, Chicago, Illinois, before the hour of 5:00 p.m., on
this 9th Day of September, 2004.
Carolyn S. H~se
This
filing submitted on recycled paper as defined in 35 Iii. Adm. Code 101.202
2
RAVEDCLERK’S
OFFICE
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
SEP 002004
L. KELLER OIL PROPERTIES,
)
.
Poll ~on Cofltro~Board
(Charleston),
)
)
Petitioner,
)
)
v.
) PCB No.
05-517
)
ILLINOIS ENVIRONMENTAL
.
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR EXPEDITED REVIEW OF
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY
DECISION
L. Keller Oil Properties (Charleston) (“Keller/Charleston”), by its attorney,
Carolyn S. Hesse of Barnes & Thornburg, pursuant to the Illinois Environmental Protection Act
and the procedural rules of the Illinois Pollution Control Board at 35 Illinois Administrative
Code Section 101.512 hereby moves for expedited review of a decision by the Environmental
Protection Agency (the “Agency”). In support ofthis motion, Petitioner states as follows:
1.
L. Keller Oil Properties (Charleston) (“Petitioner”), on the same date that
this motion was filed, filed a Petition to the Illinois Pollution Control
Board to appeal an Agency decision dated August 6, 2004, denying a
Corrective Action Plan Budget (the “Budget”) that was submitted to the
Agency. The Agency had approved the work to be performed in the
amended Corrective Action Plan.
2.
The Agency’s August 6, 2004 letter denying the Budget provided as the
reason for denying the Budget that an additional 22 items of detailed
information andlor documentation were required before the Budget could
IThis filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202J
be approved
(See
Exhibit 1) even though the Agency had previously
reviewed those elements of the Budget and had not raised any issues
regarding the 22 items.
(See
Exhibit 2).
3.
The Agency is using its requirement for detailed documentation as a rule
and, because the requirement for detailed documentation has not been
properly promulgated as a rule pursuant to the Illinois Administrative
Procedures Act
(5
ILCS 100/1
et. seq,
(2002)), the requirement for
documentation is an invalid rule.
4.
The Agency exceeded its statutory authority by reviewing the information
in a Budget that it had reviewed before.
5.
The Agency’s requirement for the additional detailed documentation is
untimely because the Agency has only 45 days to determine whether a
submission is complete pursuant to 35 Ill. Admin. Code 732.502 and the
Agency’s letter requiring the documentation was sent more than 45 days
after the Budget was originally submitted.
6.
The Agency’s requirement for the additional documentation is
unprecedented. Nowhere in the Illinois Environmental Protection Act or
its implementing regulations is there a rule that requires the level of
detailed information the Agency’s letter of August 6, 2004 requires, and
the Agency has historically not required the level of detailed
documentation required in the August 6, 2004 letter.
7.
Upon information and belief, the Agency has not sent letters similar to the
August 6, 2004 letter to other owners/operators of underground storage
This filing submitted on recycled paper as defined in 35
111.
Adm. Code 101.2021
2
tanks. Petitioner believes that it was sent the August 6, 2004 letter for the
purpose of harassing Petitioner’s consultant CW3M and to increase the
consultant’s costs.
CW3M has actively participated in the UST
rulemaking proceeding R04-22 and R04-23 and sued the Agency in state
court over the Agency use of Rate Sheets.
CW3M Company, Inc. v.
illinois Environmental Protection Agency,
No. 03-MR-0032, Sangamon
County, Illinois, Chancery Division.
8.
Petitioner is requesting an expedited hearing in this matter because the
Agency is continuing to use invalid rules to make decisions and requiring
that additional procedures be followed without providing any advanced
notice ofsuch requirements and in violation of its statutory and regulatory
authority, all ofwhich result in material prejudice to petitioner.
9.
The Agency’s illegal actions are damaging Petitioner because the Agency
has refused to approve the Petitioner’s Budget as submitted and continues
to request additional information, even though the Agency has approved
similar budgets with similar documentation, historically.
This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.2021
3
WHEREFORE, L. Keller Oil Properties (Charleston) respectfully requests that
the Board provide for an expedited review of L. Keller Oil Properties’ (Charleston)
Petition appealing the Agency’s decision and to order the Agency to cease using invalid
rules and to cease exceeding its statutory and regulatory authority and to reimburse L.
Keller Oil Properties (Charleston) for its attorneys’ fees in this matter.
Respectfully submitted,
L. Keller Oil Properties (Charleston)
By:
q~
~
1~~QQ~
Oi~eof Its AU~neys
Carolyn S. Hesse, Esq.
Barnes & Thornburg
LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
235579v1
This filing submitted on recycled
paper as defined in
35 Ill. Adm. Code 101.202J
4
~8J8728a4
18:37
217~22B0@9
OWN
ENVIRONMENTAL
PROTECTION AcENC~
1021
NoRTH
GRAND AvENUE
E~5T, P.O.
Sex
19276,
SpgiNe~lELD~ILLINOIS
62794-9
1~~sR.THOMPSO~
C8N~R,100WtST
RANDOL?~,5UIT~
11-300,
C~CAG0.
IL 60601, 312-814-6026
ReiD P..
BLAGOJEVICH,
GOVERNOR
RSNEE CIPRL~NO,DRECTOR
2171’782-6762
CERTiFiED MAIL
OE ~15D 000D 1E51 343~
AUG 06 20M
L. Keller Oil Properties
.
~-- -
:‘;
~
AttentIon: Joe Henry
2004
P.O. Box 70
Ef~highan1,1L62401
cVU
Re:
LFC #0290105024
-
Coles County
Charleston / Keller Oil
419 West Lincoln Avenue
LUST Incident No. 881670,
890932
and 20000804
LUST Technical File
Dear Mt. Heniy:
The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the amended
Corrective Action Plan Budget (budget) submitted for the above-referenced incident, this
•budget, dated June 2, 2004, was received by the flhinois EPA on June 2, 2004. Citations in this
letter are from the. Environmental Protection Act (Act), as amended by Public Act 92-0554 on
June 24, 2002, and 35 Illinois Administrative Cod&(35 Dl. Adm. Code).
The associated budget is rejected for the reason(s) listed below (Sections
57.7(b)
and
57.7(c)(4)
of the Act and 35 III. Adm. Code
731503(b)).
The plan budget is rejected forthe following reason(s):
The budget includes costs that lack supporting documentation (35 III. Adm. Code~
732606(gg)). A correctIve action plan budget must include, but not be limited to, an
accounting of all costs associated with the implementation and completion of the
corrective action plan (Section
57.7(b)(3)
ofthe Act). Since there
is
no supporting
documentation of costs, the Illinois EPA cannot determjne that costs will not be used for
activities in excess ofthose required to meet the minimum requirements ofTitle XVI of
the Act (Section 57.7(c)(3) ofthe Act arid 35
Ill.
A.dm. Code 732.505(c) arid P732.606(o))..
In order
to conduct a full
financial review ofproposed costs for corrective action, the
Agency requests the following information be submitted:
ROCX~CtD—4303
North
Main 5t~e~t.Rocklord,
IL 61103 —(815)987-776c3
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7620 N. University St.. Peoria, IL 61614
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IL
61820—
(217) 278-5800
SPONC~5LD—45005.
Sixth
Street
Rd., Springfield, IL 62706
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(217) 785-6897
COLUNSVU.LE —.
2009
MalI
Sireet, Collireville. (1. 62234 —(618)
346.5
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2309 W. Main Se., Suite 116.
Marion, IL 62959
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(618)
993-7200
EX?ril~T
88/872884
18:37
2175228809 •
CWM
F~E
03
Page 2
Provide
documentation in the form of a price list from the laboratory contracted
for analytical services relating to this project. Ifdiscounts are offered, please state
the disco~mt.
2.
Provide the rental agreexnenl regarding costs for the rental rates ofthe PID meter
and water level indicator.
3.
Provide a specific explanation with supporting documentation for how personnel
rates are derived. Provide the Agency with formulas used for calculating the
personnel hourly rates for each personnel title proposed in corrective action.
4.
Provide specific documentation for each personnel duty. For example, please
provide the Agency with information regarding each task involved for “excavation
actjvjtjes” (hours sampling the excavation, hours associated with traffic safety,
hours associated with coordination of equipment at the site, etc.). This must be
submitted for each task (excavation activities, backfill activities, GWTU
operating/sampling/quarterly GW monitoring, GWTU closure and demobilization,
corrective action plan arid budget prep., IEPA quarterly rep./data
management/closure re~,annual environmental reporting/GWTLT~.and
reimbursement claim preparation), Explain how estimated hours were calculated
and provide the Agency with any formulas that may have been used to determine
hours associated with each specific task. In additiori, document why specific job
titles are
proposed for each
activity. Please submit this information in a chart
form formore clarity.
5.
Provide a copy ofthe subcontractor ~ost estimates for excavation, transportation,
disposal arid backfhling activities. Explain what factors were used in determining
the subcontractor’s cost estimate. This explanation must be provided in a time
and materials format. In addition, the lluiriois EPA requests the following
justifjr.atjn~5:
a. Explain
the necessity of each piece of
equipment
proposed for these activities.
b. Explain how the
number
ofoperators needed to complete corrective action
was derived.
c. Explain why 10 cubic yard trucks are
proposed instead oilS cubic
yard
trucks.
d.
Exp’ain why tra~jccontrol is budgeted under firm personnel and
subconlractors costs.
e. Explain how excavation arid
backfill costs
were determined.
6.
Provide the address ofthe landfill
to
be contracted for soil disposal along with a
cost estimate from the landfill for disposal of5,800 cubic yards ofsoil.
08/07/2004 10:37
2175228009
CWM
F~GE @4
2004
Page3
~
•
7.
Provide the addresses forthe proposed backfill material purchases along with a
cost estimate from these locations for sand and gravel.
8.
Provide a copy of subcontractor cost estimates associated with concrete
replacement in a time and materials format.
9.
Provide supporting documentation foruse ofa conversion factor of 1.67 tons per
cubic
yards.
10.
Provide a copy of subcontractor cost estimates associated with UST removal in a
time and materials format.
11.
Provide a copy of subcontractor cost estimates associated with canopy demolition
and disposal in a time and materials format. In addItion, explain why an asbestos
inspection is necessary for cotrective action.
12.
Provide documentation supporting the proposed mileage costs in conjunction with
per diem and motel stays. Provide documentation and any formulas used in
determining the cost..arid number ofmotel stays proposed.
13.
Provide documentation supporting the number ofmanifests proposed for soil
disposal.
14.
Provide documentatiori supporting the use and quantity of truck liners for
excavation
and
backfllling
activities
15.
Provide documentation
and discuss what factors are considered when estimating
mobilization and demobilization of equipment.
proposed telephone and electncity costs.
17.
Provide documentatiori for decennining
the frequency ofcarbon filter replacement
and disposal.
18.
Provide documentation for calculating 120,000 gallons of sewer disposaL
19.
Provide documentation in a time arid materials format for activities ~socjated
with
groundwa~e~treatment unit maintenance costs.
20.
Provide documentation in a time and materials format for ~undwater.
treatrnent
unit demobilization and for site restoration Include a discussion of the
08/07/2004
10:37
2175228009
CWM
F~GE OS
Appeal Rights
An underground storage tank owner or operator may appeal this final decision to the Illinois
Pollution Control Board pursuant to Sections 40 and
57.7(c)(4)QJ)
of the Act by filing a petition
for a hearing within
35
days after the date of issuance of the 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 flhinois EPA within the initial
35..day
appeal period. If the owner or
operator wishes to receive a 90-day extension, a written request that includes a statement ofthe
date the final decision
was
received, along with a copy of this decision, must be seat 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, IL 60601
~
7
2004
312/814-3620
•
• •
~
For information regarding the filing of an extension, please contact:
illinois Environmental Protection Agency
~ ~
~ ,—_
~oUrise1
1021 North Grand Avenue East
Post Office Box 19276
Springfield, IL 62794-9276
217/782-5544
OFF~~
BEFORE THE POLLUTION CONTROL BOARD
SEP 092004
OF THE STATE OF ILLINOIS
PolIut~onSTATE
OFContro’
IL~JNO~
Board
8
L.
KELLER OIL PROPERTIES,
)
(Charleston),
)
)
Petitioner,
)
v.
) PCBNo.05~.7~
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR REVIEW OF ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY DECISION
L. Keller Oil Properties (“Keller-Charleston”), by its attorney, Carolyn S. Hesse of
Barnes & 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.
L. Keller Oil Properties (“Petitioner”), was the owner ofa gasoline service
station located at 419 West Lincoln Avenue, Charleston, Coles County,
Illinois (the “Station”). This gasoline service station had underground
storage tanks (UST’s) on the property, which stored gasoline and diesel
fuel.
2.
LUST Incident Numbers 881670 and 890932 were obtained during
Keller’s ownership of the Station and tanks following site investigations.
Incident No. 20000804 was obtained during James Dunn’s subsequent
IThis filing submitted on recycled paper as defined in 35
III.
Adm. Code 101.202
ownership of the Station
The site has also been assigned
LPC #0290105024-Coles County.
3.
On March 12, 2004, the Petitioner sent to the Agency an election to
proceed under Public Act 92-0554 and an amended Corrective Action Plan
(“CAP”) and Budget to perform corrective action at the Station.
(See
Exhibit 1.)
4.
On May 21, 2004, the Agency sent Petitioner a letter advising Petitioner
that the CAP was approved but the Budget was rejected. The only reason
listed for rejecting the Budget was the following:
One ofthe overall goals of the financial review is to assure
that costs associated with materials, activities, and services
are reasonable
(35
Ill. Adm. Code
732.505(c)).
The budget
includes costs that are not reasonable as submitted (Section
57.7(c)(3)
of the Act and 35 Ill. Adm. Code 732.606(hh)).
Please note that additional information and/or supporting
documentation may be provided to demonstrate the costs
are reasonable.
The Illinois EPA requests justification of the number of
personnel and the number of personnel hours required to
complete corrective action.
(See
Exhibit 2, Attachment A.)
IEPA did not request any other
documentation or justification or modifications; thus, IEPA approved all
other elements of the Budget.
5.
On June 2,
2004, within 35 days of receipt ofIEPA’s May 21, 2003 letter,
Petitioner sent to the Agency a modified Budget to perform corrective
action at the Station.
(See
Exhibit 3.) The modified Budget contained
information responsive to the questions IEPA raised in its letter dated
(This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.2021
2
r
May 21, 2004 and the Budget was modified to include the information
requested by IEPA. The Agency received this document on June 2, 2004.
Both the March 12, 2004 and the June 2, 2004 submissions included
signed certifications by a licensed Professional Engineer that the
submitted Budget complied with the Illinois Environmental Protection
Act.
(See
Exhibit 1, Appendix C
and Exhibit 3, 4th
page.)
6.
On
August
6,
2004, the Agency sent a letter (the “Letter”) to Petitioner
approving the amended Corrective Action Plan and rejecting the
Corrective Action Plan Budget (the “Budget”).
(See
Exhibit 4.) The
Letter states that:
The Budget includes costs that lack supporting
documentation. (35 Ill. Adm. Code 732.606(gg)).
A
corrective action plan budget must include, but not be
limited to, an accounting of all costs associated with the
implementation and
completion
of the corrective action
plan (Section
57.7(b)(3)
of the Act). Since there is no
supporting documentation of costs, the Illinois EPA cannot
determine that costs will not be used for activities in excess
of those required to meet the minimum requirements of
Title XVI of the Act (Section
57.7(c)(3)
ofthe Act and
35
Ill. Adm. Code 732.505(c) and 732.606(o)).
In order to conduct a full financial review of proposed costs
for corrective action, the Agency requests the following
information be submitted:
1.
Provide documentation in the form of a price list
from the laboratory contracted for analytical
services relating to this project. If discounts are
offered, please state the discount.
2.
Provide the rental agreement regarding costs for the
rental rates of the PID meter and water level
indicator.
This filing submitted on recycled paper as defined in
35
Ill. Adm. Code 101.2021
3
3.
Provide a specific explanation with supporting
documentation for how personnel rates are derived.
Provide the Agency with formulas used for
calculating the personnel hourly rates for each
personnel title proposed in corrective action.
4.
Provide specific documentation for each personnel
duty. For example, please provide the Agency with
information regarding each task involved for
“excavation activities” (hours
sampling
the
excavation, hours associated with traffic safety,
hours associated with coordination of equipment at
the site, etc.). This mi~istbe submitted for each task
(excavation activities, backfill activities GWTU
operating/sampling/quarterly
GW
monitoring,
GWTU closure and demobilization, corrective
action plan and budget prep., IEPA quarterly rep. /
data / management /closure rep.,
annual
environmental
reporting/GWTU,
and
reimbursement claim preparation). Explain how
estimated hours were calculated and provide the
Agency with any formulas that may have been used
to determine hours associated with each specific
task. In addition, document why specific job titles
are proposed for each activity. Please submit this
information in a chart form for more clarity.
5.
Provide a copy of the subcontractor cost estimates
for excavation, transportation,
disposal and
backfilling activities. Explain what factors were
used in determining the subcontractor’s cost
estimate. This explanation must be provided in a
time and materials format. In addition, the Illinois
EPA requests the following justifications:
a.
Explain the necessity of each piece of
equipment proposed forthese activities.
b.
Explain how the numberof operators needed
to complete corrective action was derived.
c.
Explain why 10 cubic yard trucks are
proposed instead of 15 cubic yard trucks.
This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.2021
4
4...
d.
Explain why traffic control is budgeted
under firm personnel and subcontractors
costs.
e.
Explain how excavation and backfill costs
were determined.
6.
Provide the address of the landfill to be contracted
for soil disposal along with a cost estimate from the
landfill for disposal of 5,800 cubic yards ofsoil.
7.
Provide the addresses for the proposed backfill
material purchases along with a cost estimate from
these locations for sand and gravel.
8.
Provide a copy of subcontractor cost estimates
associated with concrete replacement in a time and
materials format.
9.
Provide supporting documentation for use of a
conversion factor of 1.67 tons per cubic yards.
10.
Provide a copy of subcontractor cost estimates
associated with UST removal in a time and
materials format.
11.
Provide a copy of subcontractor cost estimates
associated with canopy demolition and disposal in a
time and materials format. In addition, explain why
an asbestos inspection is necessary for corrective
action.
12.
Provide documentation supporting the proposed
mileage costs in conjunction with per diem and
motel stays.
Provide documentation and any
formulas used in determining the cost and number
ofmotel stays proposed.
13.
Provide documentation supporting the number of
manifests proposed for soil disposal.
14.
Provide documentation supporting the use and
quantity of truck liners for excavation and
backfilling activities.
This filing submitted on recycled paper as defined in
35
III. Adm. Code 101.2021
5
15.
Provide documentation and discuss what factors are
considered when estimating mobilization and
demobilization ofequipment.
16.
Provide documentation for proposed telephone and
electricity costs.
17.
Provide documentation for determining the
frequency ofcarbon filter replacement and disposal.
18.
Provide documentation for calculating 120,000
gallons ofsewer disposal.
19.
Provide documentation in a time and materials
format for activities associated with groundwater
treatment unit maintenance costs.
20.
Provide documentation in a time and materials
format
for
groundwater
treatment
unit
demobilization and for site restoration. Include a
discussion of the groundwater treatment unit
salvage activities.
21.
Justify the postage charges and copy charges.
22.
Provide documentation stating why each proposed
cost to be applied to handling charges is eligible for
handling charges.
7.
Petitioner appeals the Agency’s denial of the Budget as set forth in the
Agency’s August 6, 2004 Letter.
8.
The Budget contains information regarding various costs and gives the
same level of detail for these costs that the Agency has approved
historically. Further, personal rates and other rates listed in the Budget are
the same rates that Petitioner’s consultant has used for years.
9.
Historically, the Agency has approved budgets with similar information
regarding costs and has not required the level of detailed documentation
(This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202
6
and information IEPA requires in the Letter, and IEPA’s forms do not
require the detailed information listed in the Letter.
10.
The Letter asks for documentation for cost estimates that IEPA did not
request in IEPA’s letter ofMay 21, 2004.
11.
IEPA’s August 6, 2004, request for documentation is unreasonable. For
example, among other things, the Agency is requesting supporting
documentation for the use of the conversion factor of 1.67 tons per cubic
yard, even though that is the conversion factor specified in Appendix C of
35 Ill. Admin. Code 732. IEPA is also requesting justification for a
proposed asbestos inspection prior to demolishing a structure even though
failure to do so could be a violation of the asbestos NESHAPs standard
found at 40 CFR part 61, subpart M. and, in particular, section 61.145.
COUNT I
ADMINISTRATIVE PROCEDURES ACT
12.
Petitioner realleges Counts 1 through 11 as if fully stated herein.
13.
The Agency is using this request for additional information as a rule to
make a final decision to reject the Budget.
14.
Neither the Act nor current regulations require Petitioner to provide the
cost comparisons and level of documentation that IEPA required in its
letter dated August 6, 2004.
15.
The Agency’s request for additional information is unreasonable and is an
invalid rule because it has not met any of the requirements of the
Administrative Procedures Act,
5
ILCS 100/1
et seq.
(2002) (the “APA”).
This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.202
7
WHEREFORE, L. Keller Oil Properties (Charleston) respectfully requests that the Board
enter an order requiring the Agency to approve the High Priority Corrective Action Plan Budget
to allow L. Keller Oil Properties (Charleston) to cover the costs ofthe cleanup at this facility and
for L. Keller Oil Properties’ (Charleston) attorneys’ fees and costs in bringing this appeal.
COUNT II
IEPA’S STATUTORY AUTHORITY
16.
Petitioner realleges Counts 1 through 15 as if fully stated herein.
17.
IEPA’s letter of May 21, 2004 asked only for additional information
regarding “the number of personnel and number of personnel hours
required to complete corrective action.”
18.
Petitioner’s June 2, 2004 Budget modified Petitioner’s March 12, 2004
Budget to include the information required in IEPA’s May 21, 2004 letter
and, thus, the modified Budget of June 2, 2004 was a timely modification
pursuant to 35 Ill. Admin, Code 732.5 03(f).
19.
IEPA’s letter of May 21, 2004 does not raise any ofthe 22 items listed in
IEPA’ s letter of August 6, 2004 (the “Letter”), even though all of the
budget information is identical in Petitioner’s submissions of March 12,
2004 and June 2, 2004, except that the June 2, 2004 submission also
includes responses to the questions IEPA raised in its May 21., 2004 letter.
20.
Because IEPA’s letter of May 21, 2004 only required certain additional
information regarding personal time and the number of personal, IEPA
approved all other items in the Budget.
This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202
8
21.
IEPA violated its statutory authority by re-reviewing information it had
previously approved, and JEPA may not re-review and deny Budget items
that IEPA previously approved.
The Supreme Court has held that an administrative agency
has no inherent authority to amend or change a decision
and may undertake a reconsideration of a decision only
where authorized by a statute.
***
No such authority to modify or reconsider its decisions
has been granted by statute to the Agency, and no such
procedures have been provided by rule.
(See Reichold Chem. v. PCB,
204 Ill. App. 3d 674, 561 N.E.2d 1333,
1345, 149 Ill. Dec. 647 (3d Dist. 1990).
WHEREFORE, L. Keller Oil Properties (Charleston) respectfully requests that the Board
enter an order requiring the Agency to approve the High Priority Corrective Action Plan Budget
to allow L. Keller Oil Properties (Charleston) to cover the costs ofthe cleanup at this facility and
for L. Keller Oil Properties’ (Charleston) attorneys’ fees and costs in bringing this appeal.
COUNT
III
COMPLETENESS REVIEW
22.
Petitioner realleges Counts 1 through 21 as if fully stated herein.
23.
The Agency’s request for the detailed documentation is untimely because
pursuant to 35 Iii. Admin. Code 732.502, the Agency has 45 days to do a
completeness review and IEPA’s August 6, 2004 request for the detailed
additional information was more than 45 days after the Budget was
originally submitted on March 12, 2004.
This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.202
9
24.
Pursuant to 35 Ill. Admin. Code 732.502(d), because the Agency failed to
notify Petitioner within 45 days that additional documentation was needed,
the Budget is deemed complete and the Agency may not request additional
information.
WHEREFORE, L. Keller Oil Properties (Charleston) respectfully requests that the Board
enter an order requiring the Agency to approve the High Priority Corrective Action Plan Budget
to allow L. Keller Oil Properties (Charleston) to cover the costs ofthe cleanup at this facility and
forL. Keller Oil Properties’ (Charleston) attorneys’ fees and costs in bringing this appeal.
COUNT IV
ABUSE OF DISCRETION
25.
Petitioner realleges Counts 1 through 23 as if fully stated herein.
26.
Upon information and belief, IEPA has not required this level of
documentation from other owners/operators ofunderground storage tanks.
27.
The documentation required by the Letter does not appear on any IEPA
forms.
28.
Petitioner’s consultant CW3M sued IEPA in Sangamon County alleging
that IEPA’ s use ofrate sheets violated the Administrative Procedures Act
and to obtain copies of the Rate Sheets pursuant to the Freedom of
Information Act and the Illinois Environmental Protection Act. CW3M
•has also actively participated in the Und.erground Storage Tank
Rulemaking Proceeding, R04-22 and R04-23.
29.
If IEPA wished to obtain information regarding various activities, such as
those listed in its August 6, 2004 letter for purposes of using the
(This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.2021
10
Carolyn S. Hesse, Esq.
Barnes & Thornburg
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312)357-1313
234975v1
This filing submitted on recycled paper as defined in 35 Ill, Adin. Code 101.2021
11
information to develop proposed rules, IEPA could request numerous
consultants to provide this type of information in a cooperative effort as
part of the Rulemaking proceeding, but, IEPA has failed to do so.
30.
IEPA’s demand for the detailed information listed in the August 6, 2004
Letter was for the sole purpose of harassing Petitioner’s consultant,
CW3M, and to increase Petitioner’s administrative costs of preparing the
Budgets and is an abuse ofIEPA’s discretion.
WHE~FORE L. Keller Oil Properties (Charleston) respectfully requests that the Board.
enter an order requiring the Agency to approve the High Priority Corrective Action Plan Budget
to a1lo~L. Keller Oil. Properties (Charleston) to cover the costs ofthe cleanup at this facility and
for L. Keller Oil Properties’ (Charleston) attorneys’ fees and costs in bringing this appeal.
Respectfully submitted,
..
.
. .. ~. .
L. Keller Oil Properties (Charleston)
r~.
By
j~~Jj~j~
~
One of Its A~orneys
