PETITION FOR REVIEW OF LUST FUND REIMBURSEMENT DECISION
EXHIBIT
BEFORE THE POLLUTION CONTROL BOARD
NOTICE OF FILING AND PROOF OF SERVICE
P.O. Box 19276
PCB No. 05-126

BEFORE THE POLLUTION CONTROL BOARD

CLERK’S OFFIcfE

OF THE STATE OF ILLINOIS

~y ~~2005

RED ROOSTER CORPORATION

)

STATE OF

ILLINOIS

(f/k/a CLARK RETAIL ENTERPRISES,

)

~OlIUtiOn

Control Board

INC.) (CLARK OIL #2086),

)

Petitioner,

)

PCB No. 05-126

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

PETITION FOR REVIEW OF LUST FUND REIMBURSEMENT DECISION

Petitioner, RED ROOSTER CORPORATION f/k/a CLARK RETAIL

ENTERPRISES, INC. (“Petitioner”), pursuant to Sections 40 and 57.8(i) ofthe Illinois

Environmental Protection Act (“Act”)

(415

ILCS

5/40

and

5/57.8(i)),

and Subpart D of

35 Iii. Admin. Code Part 105, hereby requests review ofthe purported “final decision” by

the Respondent, Illinois Environmental Protection Agency (“Agency”), dated December

30, 2004, purporting to deny in part Petitioner’s request for reimbursement of certain

corrective action costs incurred in response to two releases ofpetroleum from

underground storage tanks (“USTs”). In support ofthis Petition, the Petitioner states as

follows:

1. Petitioner is a former operator of certain property located at 4805 North War

Memorial Drive in Peoria, Illinois, hereinafter referred to as the “site”.

2. Petitioner formerly operated the USTs located at the site.

3. The Illinois Emergency Management Agency was notified oftwo releases

from the above-described USTs, in accordance with applicable requirements. Thereafter,

Petitioner performed corrective action in response to these releases, in accordance with

applicable statutory and regulatory requirements.

On June

25,

2002, Petitioner submitted an application for payment to the

Agency for corrective action costs incurred in response to releases from the above-

described USTs, in accordance with the applicable requirements.

On December 6, 2004, the Agency issued a final decision regarding the June

25, 2004, application for payment, a true and correct copy ofwhich is attached hereto as

Exhibit A. The Agency’s December 6, 2004, determination stated that certain costs

included in the application for payment were not eligible for payment from the Leaking

Underground Storage Tank Fund (“LUST Fund”), because they lacked supporting

technical documentation, and further stated that this decision constituted “the Agency’s

final action with regard to the above invoices.” The December 6, 2004 letter stated that,

ofthe total $216,430.10 sought by Petitioner, the Agency would authorize reimbursement

of$158,209.70.

On January 13, 2005, the Agency and Petitioner provided the Illinois

Pollution Control Board (“Board”) with a joint Request for Ninety Day Extension of

Appeal Period, pursuant to Section 40(a)(1) ofthe Act (415 ILCS

5/40(a)(1))

and 35 Ill.

Admin. Code Section 105.208, of the Agency’s December 6, 2004 letter. On January 20,

2005,

the Board issued an Order granting the extension request and extended the time for

filing an appeal ofthe Agency’s December 6, 2004, final determination until April 14,

2005. On April 14, 2005, Petitioner filed a timely petition for review ofthe December 6,

2004 letter; that petition is currently pending before this Board as case number PCB 05-

125.

On December 30, 2004, the Agency issued the purported “final decision”

which is the subject of this petition for review, a true and correct copy ofwhich is

attached hereto as Exhibit B. The December 30, 2004 letter concerns the same

information and request forreimbursement that was the subject ofthe Agency’s final

action of December 6, 2004.

Among other things, the December 30, 2004 “final action” letter stated:

“This letter rescinds the Agency letter of 12/6/04.” The December 30, 2004 letter also

stated that, ofthe total $216,430.10 sought by Petitioner, the Agency would authorize

reimbursement of $120,693 .26, which is $37,516.44 less than was authorized for

reimbursement by the December 6, 2004 letter.

On January 13, 2005, the Agency and Petitioner provided the Illinois

Pollution Control Board (“Board”) with a joint Request for Ninety Day Extension of

Appeal Period, pursuant to Section 40(a)(1) ofthe Act (415 ILCS 5/40(a)(1)) and 35 Ill.

Admin. Code Section 105.208, ofthe Agency’s December 30, 2004 letter. On January

20, 2005, the Board issued an Order granting the extension request and extended the time

for filing an appeal ofthe Agency’s December 6, 2004, final determination until May 9,

2005.

10. Petitioner is seeking review ofthe Agency’s December 30, 2004 letter

purporting to rescind and modif~’,or reconsider, its earlier final decision. The Agency’s

stated basis for its denial of reimbursement and reconsideration is arbitrary, capricious,

and without statutory authority. Furthermore, the Agency is bound on review by the

reasons given in its December 6, 2004, denial letter regarding access to the LUST Fund.

WHEREFORE, for the above and foregoing reasons, Petitioner, RED ROOSTER

CORPORATION f/k/a CLARK RETAIL ENTERPRISES, INC., respectfully requests

that the Illinois Pollution Control Board grant the following relief:

1. Find that the Agency’s December 30, 2004, final decision is arbitrary and

capricious, and without statutory authority, and is void and of no effect;

2. Reverse the Agency’s decision denying certain corrective action costs as set

forth above;

3. Remand the matter to the Agency with instructions to issue payment of

Petitioner’s corrective action costs as provided for by the Act, but not inconsistent with

the Board’s Order, within 30 days of its entry;

4. Award Petitioner reasonable attorney’s fees and expenses incurred in

bringing this action; and

Award such further relief as deemed just and equitable in these premises.

Respectfully submitted,

RED ROOSTER CORPORATION f/k/a

CLARK RETAIL ENTERPRISES, INC.

Petitioner,

By its unders~

attorney,

Hedinger Law Office

2601 South Fifth Street

Springfield, IL 62703

tel: (217)523-2753

fax: (217)523-4366

hedingerlaw~cityscape.net

EXHIBIT

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021

NORTH GRAND AVENUE EAST,

P.O. Box 19276,

SPRINGFIELD, ILLINOIS

62794-9276, 217-782-3397

JAMES

THOMPSON CENTER,

100

WEST RANDOLPH, SUITE

11-300,

CHICAGO,

IL 60601, 312-814-6026

ROD

BLAG0JEVICH, GOVERNOR

RENEE CIPRIANO, DIRECTOR

217/782-6762

DEC 06 2004

Clark Retail Enterprises, Inc.

Attn: Jeanne Sobeck

3003 Butterfield Road, Suite 300

Oak Brook, Illinois 60523

‘

~•‘

Re:

LPC#1430655103--PeoriaCounty

Peoria/Clark Oil #2086

4805..North War Memorial Drive

LUST Incident #9 10437

LUST FISCAL FILE

Dear Ms. Sobeck:

The Agency has completed the review of the request for reimbursement ofcorrective action costs

from the Illinois Underground Storage Tank Fund for the above-referenced facility. The invoices

reviewed coi~eredthe period from November 1, 2000 to July 31, 2003. The amount requested

was $216,430.10.

The deductible amount to be assessed on this claim is $10,000.00, which is being deducted from

this payment. In addition to the deductible, there are costs from this request that are not being

reimbursed. Listed in Attachment A are the costs which are not being reimbursed from this

reque8t and the reasons these costs are not being reimbursed.

On June 29, 2004, the Agency received your complete request for payment for this claim. As a

result ofthe Agency’s review of this claim, a voucher for $158,209.70 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 of this claim. Subsequent claims

that have been/are submitted will be processed based upon the date complete subsequent billings

requests are received by the Agency.

This constitutes the Agency’s final action with regard to the above invoices. An underground

storage tank owner or operator may appeal this final decision to the Illinois Pollution Control

Board (Board) pursuant to Section 22.1 8b(g) 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

c ~o~r’ — 4302

North

Main Street, Rod2orcl IL 61103 — 815)

987-7760

•

D~s

PLAINIS

— 9511 W. Harrison St.. Des I’Ijines, IL 6001) — (847 2’(4--I000

EIc’\ —

595

South State, Elgin, IL 601 “3 — (847) 608-31 (I

•

P~o~i.s

— 5415 N. (jniversi,,’ St., Peoria, IL 611(4 — (30’n 603-5463

L.~,n- PFOR)\ — 7620 N. Uriivor~i(vSt., Peoria, IL 616(4 — 1309, 693-5462

•

CHAM’AN;N

—2125 South First Street, Charnpcugn, IL 1,1820 —(217) 278-5)10))

‘o

—40(1 ~ ~th ito c kd Spnn.,iieId IL 6 ‘Ob —

7, 86 689”

CoLii\s\IlL — 21)09 Mill Sto ct Co(lrn.~iIk IL 6 ‘21 — (618~1-t(

(2))

— 2509 W. Main St., Suite 116, Marion, IL (,2959 — (11 It) 993-720))

Po\ rI.,

,..

Rrc’ci in (‘.ii’ R

Page 2

period may be extended for a period oftime not to exceed 90 days by written notice from the

owner or operator and the Illinois 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 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 of Illinois 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

you have any questions, please contact

Diana Gobelman of

my staff or Jason Donnelly of

the LUST Section technical staff at 217/782-6762.

DEO:DLG:bjh\043 I6.doc

Attachment

E. Oakley, Manager

LUST Clairris Unit’

Plarming & Reporting Section

Bureau ofLand

cc:

Environmental Management & Technologies

Artachnient A

Technical Deductions.

Re:

LPC #1430655103-- Peoria County

Peoria/Clark Retail Enterprises, Inc.

4805

North War Memorial Dr.

LUST Incident No. 91

0437&

20020052

LUST FISCAL FiLE

Jtein#

Description ofDeductions

$28,485.00,.

deduction for sewer lining costs (Invoice #11989) that lack supporting

technical documentation as the owner or operator failed to demonstrate that the costs

are for corrective action performed in accordance with the plans approved by the

Agency (Section 22.1 8b(d)(4)(F) ofthe Environmental Protection Act).

The Illinois EPA is requesting additional information to demonstrate lining of the

sewers was necessary as part ofcorrective action.

$700.00, deduction

‘far

floor repair costs (Invoice #638-434) that lack supporting

technical documentation as the owner or operator failed to demonstrate that the costs

are for corrective action performed ~naccordance with the plans approved by the

Agency (Section 22. 8b(d)(4)(F) ofthe Environmental Protection Act).

S18,97450,

deduction for costs that lack supporting technical documentation as the.

owneror operator failed to d~monstratethat the cdsts are for corrective action

perfomied in accordance with the plans approved by the Agency (Section

22.1 ~b(d)(4XF)ofthe Environmental Protection Act).

The Illinois EPA is requesting a breakdown ofcosts for removing the old sewer versus

installing a new sewer.

HAC:JD\020052&91 0437

Teehrrt~lAttachmentDeductions

Re:

LPC #1430655 103

Peoria County

PeorialClark Oil #2086

4805 North War Memorial Drive

LUST Incident No. 910437

LUST FISCAL FILE

Item #

Description of Deductions

$55.65, deduction for an adjustment in costs due to a lack ofsupporting

documentation (Section 22.18b(d)(4)(C) ofthe Environmental Protection Act).

EMT Invoice #1839

—

Mathis-Kelley

$5.25, deduction for costs which are not for Corrective Action activities (Section

22.18(e)(1)(C) and 22.l8b(a)(3) ofthe Environmental Protection Act).

EMT Invoice #22

—

FOJA request

DEO:DLG:bjh\0431 6.doc

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021 NORTH

GRAND AVENUE EAST,

P.O. Box 19276;

SPRINGFIELD, ILLINOIS

62794-9276, 217-782-3397

JAMES

THOMPSON

CENTER,

100

WEST RANDOLPH, SUITE

11-300,

CHIcAGo,

IL 60601, 312-814-6026

ROD

BLAGOJEVICH, GOVERNOR

RENEE CIPRIANO, DIRECTOR

217/782-6762

IJ14~

(‘~

DEC 3

O2i~34

Clark Retail Enterprises, Inc.

Attn: Jeanne Sobeck

3003 Butterfield Road, Suite 300

Oak Brook, Illinois 60523

C’

ii.

Re:

LPC#1430655103--PeoriaCounty

PeorialClark Oil #2086

4805 North War Memorial Drive

LUST Incident #9 10437

LUST FISCAL FILE

Dear Ms. Sobeck:

The Agency has completed the review ofthe request forreimbursement of corrective action costs

from the Illinois Underground Storage Tank Fund for the above-referenced facility. The invoices

reviewed covered the period from November 1, 2000 to July31, 2003. The amount requested

was $216,430.10.

The deductible amount to be assessed on this claim is $10,000.00, which is being deducted from

this payment. In addition to the deductible, there are costs from this request that are not being

reimbursed. Listed in Attachment A are the costs which are not being reimbursed from this

request and the reasons these costs are not being reimbursed.

On June 29, 2004, the Agency received your complete request for payment for this claim. As a

result ofthe Agency’s review of this claim, a voucher for $ 120,693.26 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 of this claim. Subsequent claims

that have beenlare submitted will be processed based upon the date complete subsequent billings

requests are received by the Agency.

This constitutes the Agency’s final action with regard to the above invoices. An underground

storage tank owner or operator may appeal this final decision to the Illinois Pollution Control

Board (Board) pursuant to Section 22.1 Sb(g) and Section 40 ofthe Act by filing a petition for a

hearing within 35 days after the date of issuance of the final decision. However, the 35-day

R CKFrRD

—

4302 North Main Str~eI,Rockiorc(, IL 61103 —(615) 967-7760

•

P:.A:NLS

— 9311 W. Harrison St., Des Plaines, IL 60016

—

(647, 294-4000

Etc:-. —595 South State, Eight, IL 60123— (847: 608-3131

•

PrOsIA —

5415 N. University St., Peoria, IL 616(4

—

(309) 693-5463

ra Ls.’~r,

PEOS’ts — 7620 N. University St., Peoria, IL 61614 — (309) 693-5462

•

CH,~swAJc,N

— 2125 South First Streot, Champaign, IL 61820— (217) 278-5800

Si’o’~c,ruio

—

-1500 S. Sisth Street Rd.. Springfield. IL 62706

—

(21 7: 786-6892

•

COIL:NSVILLt — 2009 MaIl Street. CoIlinsviIIe, IL 62214

—

1618) 346-5 120

— 2309 W. Main St., Suite it 6, Marion, IL 62959 — ((18) 993-7200

PRI’~sc()

)~ Ri (‘YCltt)

‘Ar’: i~

Page 2

•period maybe extended for a period oftime not to exceed 90 days by written notice from the

owner or operator arid the Illinois EPA within the initial 35-day appeal period. Ifthe 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 ofthis decision, must be sent 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 ofIllinois Center

100 West Randolph, Suite 11-500

Chicago, Illinois 60601

312/814-3620

For information regarding the filing of an extension, please contact:

Illinois Environmental Protection Agency

Division of Legal Counsel

1021 North Grand Avenue East

Springfield, Illinois 62794-9276

217/782-5544

This letter rescinds the Agency letter of 12/6/04.

you have any questions,

please contact Bill Rich ards of my staff or Jason Donn elly of the

LUST Section technical staff at 217/782-6762.

DEO:WWR:bjh\043 1 6.doc

Attachment

Do,~j~E. Oakley, Manager

LUST Claims Unit

Planning & Reporting Section

Bureau of Land

cc:

Environmental Management & Technologies

Attachment A

Accounting Deductions

Re:

LPC #1430655 103

Peoria County

Peoria/Clark Oil #2086

4805 North War Memorial Drive

LUST Incident No. 910437

LUST FISCAL FILE

Item #

Description ofDeductions

$55.65,

deduction for an adjustment in costs due to a lack ofsupporting

documentation (Section 22.1 8b(d)(4)(C) ofthe Environmental Protection Act).

EMT Invoice #1839

—

Mathis-Kelley

$5.25,

deduction for costs which are not for Corrective Action activities (Section

22.18(e)(1)(C) and 22.18b(a)(3) ofthe Environmental Protection Act).

EMT Invoice #22

—

FOJA request

S37,5 16.44, deduction f6r corrective action costs which exceed the annual aggregate of

allowable costs incurred limit for this site (Section 22.1 8b(b) of the Environmental

Protection Act).

Costs for the year 2001 exceed the annual aggregate allowable limit.

DEO:WWR:bjh\043 1 6.doc

Attachment A

Technical Deductions

Re:

LPC#1430655103--PeoriaCounty

Peon a/Clark Retail Enterprises, Inc.

4805 North War Memorial Dr.

LUST Incident No. 910437 & 20020052

LUST FISCAL FILE

Item #

Description ofDeductions

S28,485.00,

deduction for sewer lining costs (Invoice #11989) that lack supporting

technical documentation as the owner or operator failed to demonstrate that the costs

are for corrective action performed in accordance with the plans approved by the

Agency (Section 22.1 8b(d)(4)(F) of the Environmental Protection Act).

The Illinois EPA is requesting additional information to demonstrate lining ofthe

sewers was necessary as part of corrective action.

S700.00. deduction for floor repair costs (Invoice #638-434) that lack supporting

technical documentation as the owner or operator failed to demonstrate that the costs

are for corrective action perfon-ned in accordance with the plans approved by the

Agency (Section 22.1 8b(d)(4)(F) ofthe Environmental Protection Act).

• SI 8~974.50.deduction for costs that lack supporting technical documentation as the

owner or operator failed to den~onstratethat the costs are for corrective action

performed in accordance with the plans approved by the Agency (Section

22.lSb(d)(4)(F) of the Environmental Protection Act).

The Illinois EPA is requesting a breakdown ofcosts for removing the old sewer versus

installing a new sewer.

RAC:JD.020052&911)437

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

MAY 092005

RED ROOSTER CORPORATION

(f/k/a CLARK RETAIL ENTERPRISES,

iNC.) (CLARK

OIL #2086),

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

NOTICE OF FILING AND PROOF OF SERVICE

The undersigned certifies that an original and nine copies of the foregoing Petition

for Review of LUST Fund Reimbursement Decision, and of this Notice of Filing and

Proof of Service, were served upon the Clerk of the Illinois Pollution Control Board, and

one copy to each of the following parties of record in this cause by enclosing same in an

envelope addressed to:

Dorothy Gunn, Clerk

John J. Kim

Illinois Pollution Control Board

Assistant Counsel

James R. Thompson Center

Special Assistant Attorney General

100 W. Randolph St., Suite 11-500

Division ofLegal Counsel

Chicago, IL 60601

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, IL 62794-9276

with postage fully prepaid, and by depositing said envelope in a U.S. Post Office Mail

Box in Springfield, Illinois before 5:30 p.m. on (~7 May, 2005.

Hedinger Law Office

ephenF.’II inger

2601 South Fifth Street

Springfield, IL 62703

(217) 523-2753 phone

(217) 523-4366 fax

This document prepared on recycled paper

CLERK’S OFFICE

)

Petitioner,

STATE OF ILLINOIS

Pollution Control Board

PCB No. 05-126

Respondent.

)