RECEfl/ED

RECEfl/ED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

 CLERKS OFFICE

ILLINOIS AYERS OIL CO.,

)

 DEC 022004

STATE OF ILLINOIS

Petitioner,

Pollution Control Board

)

PCB

05-48

(UST

Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

NOTICE OF FILING

AND

PROOF OF SERVICE

TO:

 Renee Cipriano, Director

Illinois Environmental

Protection. Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield,

 IL 62794-9276

PLEASE TAKE NOTICE that on December

1,

 2004,

 we sent to the

Clerk of the Illinois Pollution Control Board the originals and

nine

(9)

 copies

 each, via FedEx,

 of Petition for Review of

Underground Storage Tank Fund Reimbursement Determination, for

filing in the above-entitled cause,

 copies of which are attached

hereto.

The undersigned hereby certifies that true and correct

copies of the Notice of Filing,

 together with copies of the

documents described above, were served upon the Respondent by

enclosing same

 in envelopes addressed to said Respondent,

certified mail,

 return receipt requested,

 and by depositing said

envelopes in a United States Post Office Mail Box at

 Springfield,

 Illinois, with postage fully prepaid, on the

1sT

of

December,

 2004, and that courtesy copies of same were sent on

same date, by U.S. Mail, postage fully prepaid,

 to the attorney

of record for Respondent,

 to-wit:

John J. Kim

Special Assistant Attorney General

Illinois Environmental Protection Agency

Division of Legal Counsel

1021 North Grand Avenue East

P.O. Box 19276

Springfield,

 IL 62794-9276

MOHAN, ALEWELT,

 PRILLAMAN

&

ADANI

1 North Old Capitol Plaza,

 Suite 325

Springfield,

 IL 62701

Phone:

 (217)

 528-2517

THIS FILING SUBMITTED ON RECYCLED PAPER

CLERK’S OFFICE

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

DEC 02 2004

ILLINOIS AYERS

OIL

CO.,

STATE OF ILLINOIS

Petitioner,

)

Pollution Control Board

)

PCB

05-48

(UST Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

PETITION

FOR REVIEW OF

UNDERGROUND

STORAGE

TANX FUND

 REIMBURSEMENT DETERMINATION

NOW COMES Petitioner,

 ILLINOIS AYERS OIL CO., by its

undersigned attorneys,

 and pursuant to 415 ILCS 5/40 and 57.7,

and 35

 Iii. Adm. Code 105.204, hereby petitions the Pollution

Control Board for review of the final determination of

Respondent,

 Illinois Environmental Protection Agency

 (“Agency”),

with respect to the Agency’s July 28,

 2004,

 deductions

 from the

Petitioner’s reimbursement request for Early Action/Free Product

Recovery activities under the Illinois Underground Storage Tank

Fund

 (“UST Fund”)

 In support,

 Petitioner states:

1.

 Petitioner is the owner of a gasoline service station

located at 310

 State Street,

 Beardstown,

 Cass County,

 Illinois.

This facility has been designated LPC #01701547 by the Agency.

2,.

 Petitioner notified the Illinois Emergency Management

Agency

 (“IEMA”)

of

 a release of petroleum from an underground

storage tank

 (“UST”)

 at the facility,

 to which IEMA assigned

Incident

No.

20002020.

3.

 On or about May 24,

 2004,

 Petitioner filed an

application for reimbursement for corrective action costs

incurred to remediate the petroleum release.

4. ‘On or about July 28,

 2004,

 the Agency rendered its final

determination on Petitioner’s request for reimbursement.

 A true

and

correct

copy

of,

 the subject Agency decision is attached

hereto

and

made

part

hereof

Exhibit

5.

 On September 3,

 2004,

 Petitioner and the

Agency

jointly

filed for a 90-day extension of the time for appeal,

 which was

granted by the Board on September 16,

 2004.

6.

 Petitioner prays that the Board reverse the Agency’s

final determination with respect to the disallowed costs,

and

restore the cuts.

7.

 The Agency’s rejection of such costs is contrary to the

Board’s decision in Illinois Ayers Oil Co.

v.

 IEPA,

 PCB 03-214

(April

1,

 2004), which involved this very budget.

8.

 Petitioner reserves the right to present additional

grounds for reversal of the Agency’s final reimbursement

determination

with

respect

 the disallowed costs,

 as they may

appear

during

the

course

this

appeal.

WHEREFORE,

 Petitioner respectfully requests that this Board

grant a hearing in this matter and reverse the Agency’s July 28,

2004,

 deductions from the Petitioner’s reimbursement request and

remand this matter to the Agency with instructions to approve the

request as submitted,

 and grant such other relief as the Board

deems appropriate,

 including legal costs for seeking payment

under Title XVI of the Illinois Environmental Protection Act,

pursuant to 415 ILCS 5/57/8 (d)

 plus the costs of this action.

2

Respectfully submitted,

ILLINOIS AYERS OIL CO., Petitioner

MOHAN

~RILLAMAN

 ADANI

MOHAN,

ALEWELT,

 PRILLAMAN & ADAMI

North

Old

Capitol

Plaza

Suite 325

Springfield,

 IL 62701

Phone:

 (217)

 528-2517

C:\MAPA\CDAVIS\Illinois Ayers Oil\Ayers III\Petition for Review III.wpd sew 12/1/04

aman

AU~—30—2OO4

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NOKAN

LAW

OFFICES

FAX

NO.

21752825~3

04,

•

ILLINO:S

ENVIRONMENTAL

PROTECTION AGENCY

1021

NORTH

GRAND A~t~u~

EAST.

P.O.

BOx

9276,

SPRINOFIELO.

ILurlO!S

62794-9276

JAMES

THOMPSON’

 CSNRR,

100 Wr~r

RANDOLPH,

SuITE

11-300,

CIIICACO,

IL â~)601

Ro~

BLACO;EVICH,

GOVERNOR

RENEE

CIPRIANO,

DIgEcros

217/782-6762

Illinois Ayers

Oil

Company

Attention:

Carl

Adams, Jr.

P.O. Box

772

Quincy, Illinois

62301

Re:

L.PC #0170155047

Cass County

Beardstownllllinois

Ayers Oil

Company (Ayerco #7)

310 State Street

LUST 1n~ident

No. 20002020

LUST FISCAL FILE

Dear Mr. Adams:

The Illinois Environmental Protection Agency has completed

the

review ofyour application tbr

payment

from the

Underground

 Storage

Tank

Fund

for the above-referenced LUST

incideni

pursuant

to Section

57.8(a) of the Illinois Environmental Protection Act (Act),

and

111.

Adrn.

Code 732, Subpart

This

information is dated May 24. 2004 and was received

by the Agency

on June

2004.

The application forpayment covers the period from October 4, 2001

to May

20,2004. The

amount

requested

$31,474.98,

Thedeductible amount forthis claim is $10,000.00.

The total amount ofthe claim received on

June 20, 2001

for$2)328,40 was applied to the deductible.

The balance of $7,671.60 was tal~en

from the claim received on February 11, 2002

for $2L602.74,

 thus

fulfilling the deductible

amount.

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 July

16, 2004,

the

Agency received yourcomplete application forpayment for this claim.

a result of

the

Agency’s review of this application for payment, a voucher for $18,446.64

will be

prepared for submission to the Comptroller’s Office forpayment

funds become available’

based

upon

the

date the Agency received your complete request for payment ofthis application

 for payment. Subsequent applications

fbr

payment

that have beenlare submitted will he

processed based upon

the

date complete subsequent application forpayment requests

are

received by the Agency.

This constitutes the Agency’s final action with regard tothe above

application(s) for p4yment.

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MON

03:04

NOHAN

LAW

OFFICES

FAX

NO.

2175282553

Page2

An underground storage

tank owner

or Operator may appeal this

final

decision to the Illinois

 Pollution Control Board (Board) pursuant to Section

57.8(i)

and

Section40 oftheAct by filing a

‘petitionfor a

hearing wIthin

days afterthe

date ofissuance ofthe

final decision

However,

the

35-day

period

may be extended fora period oftime

 not to exceed 90 days by

written

notice

fl’orn the owner or operator and theIllinois EPA within the

initial

35-day appeal peiioä.

If’

the

applicant 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 ofthis decision, must be sent to the

Illinois ~PA as soon as posslble.

For information regarding the

filing

ofan appeal, please

contact:

)Dcu’othy

~unn, Clerk

Illinois Pollution Control Board

State

Illinois Center

100 WestRandolph, Suite 11-500

Chicago, Illinois 60601

312/814-3620

For in.formation regarding the filing ofan extension, please contact:

Illinois Environmental ProtectionAgency

Division ofLegal

Counsel

1021 North Grand

Avenue

East

Springfield, illinois 62794-9276

217/7E2-5544

If you have a~y

questions or require

further

 assistance,

please

contact

Nancy Mooreof my

staff at 217/782-6762.

DEO:NM:blh\041

585.doc

Attachment

.E. Oakley,Manager

LUST Claims

 Unit

Planning & Reporting Section

Bureau of Land

cc:

CSD Environmental Services, Inc.

fRUC—~0—2004

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AUG—30—2004 MON 03:05 PM MOHAN LAW OFFICES

 FAX NO.

2175282553

P.

06

Attaclune~tA

Accounting Deductions

Re~

 LPC#0170155047 --Cass County

Beardstownllliinois Ayers

 011 Company (Ayeroo #7)

310 State Street

LUST Incident No. 20002020

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

1.

 $12,127.34, deduction for costs associated with.High Priority site activities. The

billings submitted exceed

the

 approved budget

amounts.

 The Illinois

EPA is unable to

approve billings that exceed the approved budget

amounts.

(Section

57.S(a)(

1) ofthe

Act and

 Ill. .Adm. Code 732.601(f))

a.

The

amount

requested forInvestigation Costs (58,103.72) exceeds,the

amount

approved for this

line item in the

 High Priority budget

with

 an approval date of

March 28,2003 ($3,647.88). The difference of$4,455.84 is being deducted.

b

b.

The

amount requested

 forPersonnel

Costs

($21,735.50)

 exceeds the amount

approved for this line item in the High

Priority

 budget ($14,064.00). The

difference of$7,671.50

is being

deducted.

$901.00,

deduction forcosts w1)i~h

are unreasonable as submitted.

(Section

57.7(c)(4)(C) ofthe Act and 35

III. Adrn. Code 732.606(1±))

a.

 CSD Environniental Services hasa director indirect

financial

interest in

Heartland Drilling& Remediation. Since both companies

are

 owned

 by the

same

entity, it is theAgency’s position that handling charges

are

not

warranted.

DEO:NM:bjh\041585.doc

TOTAL

P.05