BEFORE THE POLLUTION
CONTROL BOARD
OF THE STATE OF ILLINOIS
RECEIVED
THE ESTATE OF
GERALD HESS,
)
CLERICS OFFICE
Petitioner,
JUL
192005
)
STATE OF ILLINOIS
v.
)
PCB 06
-
______
Pollution Control Board
)
(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
July
19,
2005
filed
with
the
Clerk
of the
Illinois
Pollution
Control
Board
of the
State
of Illinois
an
original,
executed
copy
of
a
Petition
for
Review of Illinois Environmental Protection Agency Decision.
Dated:
July
19, 2005
Respectfully
submitted,
The Estate of Gerald Hess
By:
__________
Oi~
of Its Atto3~eys
Carolyn
S. Hesse
Barnes & Thornburg LLP
One North Wacker
Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
281 139v1
(This
filing submitted
on
recycled paper as defined in 35111. Adm.
Code
101.2021
CERTIFICATE OF SERVICE
I,
on
oath
state
that
I
have
served
the
attached
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
19th
Day of July, 2005.
CarolynS.H
se
IThis
filing submitted
on
recycled
paper
as
defined in 35
III.
Adm.
Code
101.2021
2
BEFORE
THE POLLUTION CONTROL BOARD
OF THE
STATE OF ILLINOIS
P
THE ESTATE OF GERALD HESS,
)
JUL
192005
Petitioner,
SE~’~ja~a
v.
)
PCB06-~
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR REVIEW OF ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY DECISION
The
Estate
of Gerald
Hess,
by
its
attorney,
Carolyn S. Hesse
of Barnes
&
Thornburg,
pursuant to
the Illinois
Environmental Protection
Act,
415
ILCS
5/1
ci.
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.
The
Estate
of Gerald
Hess
(the
“Estate”)
is
the
owner
of
underground
storage tanks
(USTs)
at a
former gasoline service
station
located
at
2977
State
Route
4,
Marine,
Madison
County,
Illinois
(the
“Station”).
The
USTs stored gasoline.
2.
LUST
Incident
Number
20040820
was
obtained
following
a
site
investigation.
The
site
has
also
been
assigned
LPC
#1190705011-
Madison County.
3.
On
February
2,
2005,
the
Agency
received
a
complete
application
for
payment
for
the
period
of
June
1,
2004
to
November
30,
2004.
The
amount requested is
$184,702.16.
This filing submitted on recycled
paper as defined
in
35 III. Adm.
Code
101.202)
4.
By
letter
dated
June
15,
2005
(the
“Letter”),
the
Agency
applied
the
deductible amount of $10,000.00
and
approved for payment the amount of
$140,545.89.
See
Exhibit A.
5.
The
Letter
states
that
“This
constitutes
the
Agency’s
final
action
with
regard
to
the
above
application(s) for payment.”
The
Letter
also
advises
the Estate of its
right to
appeal this final Agency decision.
COUNT I
6.
The
Estate
hereby
incorporates
and
realleges the
allegations contained
in
paragraphs
1
through
5.
7.
Accounting and
teclmical
deductions
are
listed
in
Attachments
A to
the
letter.
See
Exhibit A.
8.
The
Letter
provides
no
additional
information
regarding
why
the
remaining deductions were made or the bases for those deductions.
9.
The
costs
for
which
Petitioner seeks
reimbursement
are reasonable
costs
and are consistent with previously approved amounts.
10.
Petitioner is appealing the Agency’s decision Letter dated June
15, 2005.
Wherefore,
The Estate
of Gerald
Hess
respectfully requests that
the Board
enter
an
Order
to
require that
the Agency
reimburse the
full amount requested
by Petitioner in
the
February
2,
2005
reimbursement
request,
minus
the
$10,000
deductible,
and
for
Petitioner’s attorneys’ fees and costs in bringing this appeal.
COUNT II
11.
CW3M
hereby
incorporates
and
realleges
the
allegations
contained
in
paragraphs
I
through
10.
jThis filing
snbmitled on
recycled
paper as defined
in
35111.
4dm. Code
101.202
2
12.
Section
732.602
of the Petroleum
Underground
Storage
Tank regulations
provides
that
“The Agency
shall conduct a
review of any
application
for
payment
submitted
pursuant
to
this
Part.”
See
35
Ill.
Admin.
Code
732.602(a).
13.
Section
732.602
includes
review
of
applications
for
payment
of
early
action activities.
See
35
111. Admin.
Code 732.602(b)(3).
14.
The
reimbursement
request
submitted
by
the
Estate
is
for
early
action
activities.
15.
Section 732.602(e) provides that:
Except
as provided
in
subsection
(f) of this
Section,
if the 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.
See
35111. Admin.
Code 732.602(e).
16.
Subpart
(0
provides
that
the owner
or
operator
may waive the
120
day
time limit.
The estate has not waived the time limit.
17.
More than
120
days have passed between
when the Agency
received the
complete application
for payment on
February
2,
2005
and
the date of the
Agency’s final decision on June
15,
2005.
18.
Thus,
the
Estate
may
deem
the
application
for
payment
approved
by
operation of law.
This filing
suhmitted
on recycled
paper as
defined in
35111. Adm.
Code
101.2021
3
Wherefore, the Estate of Gerald Hess respectfully requests that the Board enter an
Order
requiring
the
Agency
to
approve
the
full
amount
of
the
February
2,
2005
application
for payment minus
the
$10,000.00
deductible and
for Petitioner’s
attorneys’
fees and costs in
bringing this appeal.
Respectfully submitted,
The Estate of
Gerald Hess
By:
_____________
One of Its Att
neys
Carolyn S.
Hesse, Esq.
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
28100!vi
IThis filing
submitted
on
recycled paper as defined
in
35111. Adm.
Code
JOJ.2021
4
I.
@4/12/1994
15:42
2175228009
CWM
PAGE
@2
S
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
1021
NORTh
GRANO Ave~ue
e~s’,
P.C.
Box
19276,
SPRIt~cFIELD,
ILtINOIS
62794-0276, 217-782339?
JAMES
R.
THOMPSON CENTER.
100 WtsT
RA,-~aOu’H,
SUITE
11-300,
C~1IcA00,
IL
60601,31 2-Bi 4-6026
RoO
R.
BL.COIEVICII,
GOVERNOR
REr4EE
C(PRLA,NO,
DIRECTOR
217/782-6762
CERTTFTED MAIL#
JUN
15
2005
7004
2510
0001
5652
9280
The
Gerald Hess Estate
Attn
Holly Turner,
Attorney for Estate
do
CW3M
Company, inc.
P.O~Eox
571
Carlinville,
IL 62626
Re:
-
LPC
#1
l90~050l
I
--Madison
County
Marine/Estate of Gerald Hess
2977
State
Route
4
LUST
lriciderttNo.
20040820
LUST FISCAL
FILE
Dear
Ms
Turner:
The
Illinois
Environmental
Protection Agency has
completed the review of your 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
UI. Mm.
Code
732.
Subpan
F,
This
information
is
dated January
22, 2005
and
was received by
the
Agenc~,on
February
2,
2005.
The
application
for
payment covers the
period
froni
June
I
-
2004
to
November
30.
2004.
The
amount
requested
ks 5184,702.16.
The deductible ap~iountto
he
assessed
on this claim
is 310.000.00, which
is being deducted
from
Ibis
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
arc
not being paid.
On
February
2.2005,
the Agency
received your
complete application
for payment for
tins
claim.
As
a result of the
Agencys
review
of this application
for payment~
a voucher
for
$140,545.89
will be
prepared
for submission to the Comptrollers Office
for payment
as funds
become
available
based
upon
the date the Agency received
your complete request for payment of this
application for payment.
Subsequent applications for
payment that
have been/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 flnal
action with regard to the above
application(s)
for
paymeut.
—
.4302
‘turiN M,,in
Sireet
RGckCord
II.
51103
—
tel ~i 987.r760
•
Ots
PLAINLI
9~1I
W,
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—
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—
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—
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N.
Unvor.,ily
$L.
~cer~j,
II.
hi
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rx La’.,’
-
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—
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~
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t~,,
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17115000
Sl’KL&r,tLr,
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It
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—
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•
Cr,ILINSV,t,
I
..
21x0
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,IItvI.
c:lIinwiIIv,
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(‘2214
1,1 II)
141,11211
Magi~j,,—2
3~9
W.
Main
.5’..
Sui’c
~
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IL
(ilY.5’i
._
IA)
RI
97:1-2200
l’w”.1ri,r,~ R~,
\‘ILL~
I’M-rI
~~IBIT
04/12/1994
iS:42
2175228069
CWM
Au
underground
storage tank
owner or operator
may
appeal this
final decision
to the
rllinois
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 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 wriflcn
notice
from
the
owner
or operator and
the
Illinois EPA within the initial
35-day appeal
penod ,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 of this
decision, must he
sent
to the
Illinois EPA
as
soon as possible.
For information regarding
the filing of
an appeal, please contact:
Dorothy
Ounn.
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 of
an extension, pleasc contact:
Illinois Environmental Protection Agency
Division
of Legal Counsel
1021
North Grand Avenue East
Springfield, Illinois 62794-9276
17/78
2-5
544
If
you
have
any
questions
or require
further
assistance,
please
contact
?~ancvMoore
of my
staff or Mmdv
Weller
of Harry
Chappel’s
staff
at
217/782-6762.
DEO:NN:nie\052045
Attachment A
PAGE
63
Page
2
E.
Oakley, Manager
Claims
Unit
Plaruting & Reporting
Section
Bureau
ofLand
cc:
CW3M
Company
04/12/1994
15:42
2175228809
CWM
Attachment A.
Accounting Deductions
Re:
LPC #1190705011
--Madison County
Marine/Estate ofGerald Hess
2977
State Route
4
LUST
Incident No. 20040820
LUST Fiscal File
Citations
in
this attachment
are from and the
Environmental Protection
Act (Act) and
35
Illinois
Administrative
Code (35 III.
Adrn.
Code).
Item #
Description ofDeductions
$397.88, deduction
for costs which are unreasonable as submitted.
(Section
57.7(c)(4)(C) ofthe
Act
and
35
Ill. Adm.
Code
732.606(hh))
The following deductions are from
the period
July
1, 2004
to July
31, 2004:
a.
There
are 30 quarters eligible for Per Diem (56300).
b.
The handling
charges
associated with the hotel
bills are ineligible
($10.80).
PAGE
04
The
following deductions are from the period
August
1,
2004 to August 31, 2004:
a.
There
are
101
quarters
eligible
for Per Diem ($252.00).
b.
The Handling Charges associated with the hotel bills are
ineligible ($34.23).
c.
One
quarter olPer
Diem
is being deducted
from
Martinsville Warehouse
and
Logistics Invoice #935
for?.
Rideout.
Only
13
quarters are
eligible, based
or~
the
times worked, according
to
the Driver’s Daily
Reports
($7.00).
d.
One quarter of Per Diem
is being deducted from Martinsville Warehouse
and
Logistics
Invoice #942
for?, Rideout,
Only
6 quarters
are eligible, based
on
the times worked, according to the Driver’s Daily
Reports ($7.00).
e.
Three quarters of Per Diem
are being
deducted
from
Martinsville
Warehouse
and
Logistics Invoice
#953
(one quarter each
for
C.
Ruder,
P. Ruder
and
ED.
Gosnell).
Only
15
quarters
are eligible, based
on the times worked,
according
to the Driver’s Daily Reporis
(521.00).
The following deduction
is from the period September
1,
2004 to
September 30,
2004;
a.
The Handling Charges associated
with the hotel
bills
are
ineligible
($2.85).
$38.53,
deduction
for
costs
associated
with Site Investigation.
These costs
are
for
activities in excess of those
necessary to mccl
the minimum
requirements
ofTitle XVI
oftbe
Act
(Section
57.5(a)
ofthe Act
and
35
UI.
Adrn.
Code
732.600(o)).
1.
2.
The following deduction
is
from the period
September
1, 2004
to September
30,
2004;
Page
2
21 7522
CWM
42
a,
The Postage for “IEPA
SI
Forms”
is associated
with Site Investigation,
not
EarlyAction ($1.79).
The
following deductions are
from the period October
1, 2004 to October31,
2004:
a.
The Copies for
“IEP,&
SJP/Attachments” is not
associated
with Early
Action
($33.90).
b.
The Postage for ‘IEPA
SI Plan”
is not
associated with Early Action (52.84).
3.
52.80,
adjustment
in the handling charges due to the deduction(s) of ineligible costs
(Section 57.8(fl of
the
Act and 35
Ill.
Adin. Code
732.607).
The following deduction
is
from the period August 1,
2004 to August
31,
2004:
a.
The Handling Charges associated with
the deductions
from Maninsville
Warehouse and Logistics
Invoices
#935,
#942
and
#953
for
Per Diem
are
disallowed ($2.57).
The following deduction
is from the period September
1,2004 to September 30, 2004:
a.
The Handling
Charge
associated
with the deduction for Postage
is denied
(5.09).
The following deduction
is
from
the period October
1,
2004 to October 31,
2004:
a.
The Handling Charge
associated with
the deduction
for Postage
is denied
(5.14).
PAGE
@5
NTvj:me\052045
a4/12/1994
15:42
2175228009
CWM
I.
Attachment A
Technical Deductions
Re:
LPC#ll90705011
-~
Madison
County
Marine/Hess,
Gerald Estate of
2977
State
Route
4
LUST Incident
No. 20040820
LUST Fiscal
File
Citations
in this attachment
are
from and
the Environmental
Protection
Act (Act)
and
35
Illinois
Administrative
Code
(35
lii.
Adm.
Code).
Item #
Description of Deductions
$1,120.00, deduction
for costs
associated with
the analysis of laboratory samples
for
constituents
other
than applicable indicator contaminants
or
groundwater
objectives
(35
Ill.
Adm.
Code
732.606(r)).
These costs are
foT activities
in
excess
ofthose
necessary
to meet the
minimum requirements of Title XVI
of the
Act (Section
57.5(a)
of the
Act and
35
III. Mm.
Code 732.506(o)).
$3,034.00,
deduction for costs that appear to he associated with site
in\’CstigatiOfl
activities,
not early action activities,
These
costs
are for activities
in
excess of those
necessary to meet the
minimum requirements
of Title XVI of the
Act
(Section
57.5(a)
of the
Act
and
35111.
Adm,
Code 732.605(o)).
55.130.00, deduciion
for costs
that
lack supporting
documentation
(35
111.
Adm.
Code
732.606(gg)).
Since there is no supporting documentation
of costs, the Illinois
EPA
cannot
determine that
costs
were not used
for activities in
excess of those necessary
to
meet the minimum requirements
of Title XVI of the
Act (Section
57.5(a)
of the Act
and
35
Ill.
Adni.
Codc 732.606(o)).
The billitg package
indicates charges
for “Operator CAT Trackhoe
or Backhoc.”
The
billing package
also
includes
costs
for ‘Operator &
CAT Trackhoc
or Baclhoe.”
It
was indicated
by
CW3M
Company,
Inc.
that
the costs
for “Operotor
CAT Trackhoe
or
Backhoe”
were less
than the
costs
for “Operator
& CAT Trackhoe
or l3ackhoe”
because the
operator
was not operating the
equipment.
Therefore,
it
is
unclear to the
Illinois
EPA as to the purpose
ofthe
costs
for
‘Operator CAT Trackhoe or l3ackhoc”
if the
equipment
is not being operated.
4.
522.300.25,
deduction
for costs due to excessive Personnel
and
Equipment
costs
for
early action activities
(Section 57.6(b)
of the
Act and
35
III.
Adrn.
Code 732.606(o)).
In addition,
these costs
are
unreasonable
as submitted
(Section 57.7(c)(4)(C)
of the
Act
and
35
III. Adm. Code
732.606(hh)).
PAGE
PiG
Pi4/12/1994
15:42
2175228009
CWM
PAGE
@7
Page
2
52.112.81,
deduction
for costs
associated
with Equipment, Stock Items. matcHals and
Expendables which are
unreasonable as submitted.
(Section 57
.7(c )(4)(C) of the
Act
and35
lU. Mm.
Code 732.606QTh))
HAC~MW:mw\20O4US2OFisca)ArtachmentA.DOC
,
