RECE!VED
4432-001
CLERK’S OFFICE
BEFORETHE
NOV
082005
ILLINOIS
POLLUTION CONTROL BOARD
STATE OF ILLINOIS
Pollution Control Board
MORGAN
SOUTHERN COMPANY,
Petitioner,
)
vs.
)
PCB 06-17
(UST
Fund Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
NOTICE
OF FILING
To:
John
J.
Kim
Division of Legal Counsel
Illinois
Environmental
Protection Agency
1021
North
Grand Avenue
East
P.O.
Box
19276
Springfield,
Illinois
62794-9276
PLEASE
TAKE
NOTICE
that
on
this
8th
day
of
November
2005,
the
following
were
filed
with
the
Illinois
Pollution
Control
Board:
Petitioner’s
Appearance
and
Appeal of IEPA Reimbursement Denial, which are attached and herewith
served
upon
you.
MORGAN SOUTHERN
CORPORATION
Q~yieof
its atornfr
Dated:
November 8, 2005
Elizabeth
S.
Harvey
John
P. Arranz
Swanson,
Martin
& Bell,
LLP
One IBM
Plaza,
Suite 3300
330 North Wabash Avenue
Chicago,
Illinois
60611
312/321-9100
CERTIFICATE
OF SERVICE
I,
the
undersigned
non-attorney,
state
that
I
served
a
copy
of
Petitioner’s
Appearance
and Appeal
of
IEPA Reimbursement Denial to
the
IEPA Division
of
Legal Counsel
via
U.S.
Mail
at One
IBM
Plaza,
Chicago,
IL
60611
on
or before 5:00
p.m.
on
November 8,
2005.
/~jsQ~Z~(
a~L1~
(~retteM.
Podlin
x
Under
penalties
as
provided
by
law
pursuant to 735
ILCS 5/1-1
09,
I
certify
that the statements set forth
herein
are true
and correct.
4432-00 1
BEFORE THE
ILLINOIS
POLLUTION CONTROL
BOARD
RE CE
~V ED
CLERK’S OFFICE
NOV
082005
STATE OF ILLINOIS
Pollution Control Board
MORGAN
SOUTHERN COMPANY,
Petitioner,
vs
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
)
)
)
)
)
PCB 06-17
(UST
Fund Appeal)
)
)
APPEARANCE
We hereby enter our appearances
on
behalf of petitioner MORGAN SOUTHERN
COMPANY.
Elizabeth S.
Harvey
John
P. Arranz
Swanson,
Martin
& Bell,
LLP
One IBM
Plaza,
Suite 3300
330 North Wabash Avenue
Chicago,
Illinois
60611
(~lizabethS.
H~rv~y
~j
/
A?rinz
312/321-9100
RECEIVED
CLERK’S OFFICE
4432-001
NOV
082005
BEFORE THE
STATE OF ILLiNOIS
ILLINOIS
POLLUTION CONTROL BOARD
Pollution Control Board
MORGAN
SOUTHERN COMPANY,
)
Petitioner,
)
vs.
)
PCBO6-17
(UST Fund Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY,
)
Respondent.
)
APPEAL
OF
IEPA REIMBURSEMENT DENIAL
Petitioner,
MORGAN
SOUTHERN
COMPANY
(“Morgan”),
by
its
attorneys
Swanson,
Martin
&
Bell,
LLP,
hereby
appeals
from
respondent
the
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY’s
decision
denying
reimbursement
of
some
of
Morgan’s
requested
reimbursement
from
the
Leaking
Underground
Storage
Tank
(LUST)
Fund.
This
appeal
is
filed
pursuant
to
Sections
40
and
57.8(i)
of
the
Environmental
Protection
Act (415
ILCS 5/40 and 5/57.8(i)),
and
Subpart
D of
Part
105
of the
Board’s procedural rules
(35 lIl.Adm.Code 105.Subpart
D).
1.
On
June
30,
2005, the Agency
issued
its
final
reimbursement
decision
to
Morgan.
(See
Exhibit
A.)
That
decision
was
received
by Morgan
on
or about
July
6,
2005.
2.
On August
11,
2005, the Agency filed
a
request for
a
ninety-day extension
of
the
time
to
appeal.
On
August
18,
2005,
the
Board
granted
that
extension.
The
extension expires
on November
8,
2005.
This appeal is therefore timely filed.
3.
This
appeal
involves
Morgan’s
application
for
reimbursement
from
the
LUST
Fund.
Morgan
requested
reimbursement of $109,059.10
from
the
Fund.
(That
request
is
subject to
satisfying
a
$10,000 deductible.)
On
June
30,
2005,
the Agency
denied reimbursement of $100,742.61
of the
requested amount.
4.
The
Agency
denied
reimbursement
of
$78,873.99
in
costs,
as
being
beyond
the
time
period
for
early
action
activities.
(See
Exhibit
A,
Attachment
A
“Accounting
Deductions,” paragraphs
3
and
9.)
5.
The
amounts
denied
as
being
outside
the
time
period
for
early
action
activities
is
indeed
reimbursable.
Morgan
notified the
Illinois Emergency
Management
Agency (IEMA) of the
release on
February
14,
2003,
triggering
the
52-day early
action
period.
The
early
action
period
thus
ended
on
April
7,
2003.
However,
the
weather
during
that
period
was unfavorable
for remediation work.
The average temperature
for
the
52-day
period
was approximately
39.5 degrees
Fahrenheit.
For substantial
portions
of
the
52-day
period,
there
were
large
amounts
of
snow
on
the
ground,
making
remediation
impossible.
Even
after
the
snow
melted,
rain
made
remediation
work
extremely
difficult.
In
short,
weather
prevented
completion
of
early
action
activities
within the
52-day period.
6.
Because weather
prevented the
completion
of early
action
activities
within
the 52-day period,
those costs should
be reimbursed.
WHEREFORE,
petitioner
MORGAN
SOUTHERN
COMPANY
asks the
Board
to
enter
an order
finding that the
costs denied
in
paragraphs
3
and
9 of
Attachment A of
the Agency’s June
30,
2005,
decision
must
be reimbursed,
and for
such
other relief
as
the
Board deems
appropriate.
2
Respectfully submitted,
MORGAN
SOUTHERN CORPORATION
By:7~~~
,4~
~Jieof its
~tttn
ys
Dated:
November 8, 2005
Elizabeth
S. Harvey
John
P. Arranz
Swanson,
Martin
& Bell,
LLP
One IBM
Plaza,
Suite 3300
330
North Wabash Avenue
Chicago,
Illinois
60611
312/321-9100
3
Exhibft
A
JUL—29--28e5
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29
2005
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P. 03
O
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
1021
NIogni
GRAND AVINUE
EAST,
P.O.
Box
19275,
SP~JNGrIELfl.
ILUNOtS
62794-9275, 217-782-3397
-
JAMES
It
THOMPSON
CENTER,
100 Wtst
R~,NDoLpH,
SurrE
11-300,
C.IICACO,
IL 60601,
312-814-5026
Roo R.
BtscojEvlcH, GOvaNOR.
RENEE
CIPRIANO,
DtgtcToR
217/782-6762
CERTIFIED
MAIL #
JUN
~
200$
.
7004
!SJD
ODDI
B6$Y
0002
Double
Coxporation of Illinois
Attn:
DavidMorgan
1500
Cedar GroveRoad
Conley,
GA 3O2S~
Re:
LPC
#0310395025
—
Cook
County
.
Calumet City/Morgan Southern Company
1579
Valenciacourt
LUST incidentNo. 20030203
LUST FISCAL FILE
Dear
Mr. Morgan:
The Illinois
Environmenta’ Protec~oh
Agency has completed thereview ofyour application for
payment from the Underground Storage Tank Fund for the above-referenced LUST incident
ptircuant to Section
57.8(a)
ofthe Illinois Environmental Protection Act (Act), and
35
Dl.
Adm.
Code 732, Subpart.?.
This information is dated May 24,
2005
end w~s
received by the
Agency
on May 26,
2005.
The application for payment covers the period from February
14,
2003 to
April
22. 2005.
The amount requested is $109,059.10.
The deductible amount to be assessed on this claim
is $10,000.00.
The amount being applied to
the deductible from this claim
is $S,316.49, leaving abalance of$1,~83.5lstill
to bcmct,. In
addition
to
;hQ
deth~ctib!c,there are
0*5th
from this
claim that are
not being paid.
Listed in
Attachment A
arc the co3ta that are not being paid and the reasons thes&tosts are not be3ng paid.
0i
June 7, 2005, th Agency received your complete:application
forpayment for this claim.
As
a resutt ofthe Agency’sreview ofthis application forpayment,
a voucher bannot be prepared for
submission to the Comptrollcr’8 office for payment.
Subsequent applications for payment that
have been/are submitted will be proQsesed baked upon the date completesubsequent application
for payment requests are received by the Agency.
This donstitutes
the Agency’s
final
action with
regard to the
above application(s) forpayment.
-
An underground storage tank owner or operato~
may
appeal this final decision to the illinois
Pollution Control 3oard (Board) pursuant to Section 57.8(1) and Section
40 ofthe Act by filing a
petition for a hearing within 35 days after thedate ofissuance ofthe fina4 decision,
However,
the 35-day pePod may be extended for a period
of
time not
to
excoed
?~
days by written notice
RrC~iC~Eb—
43Q1 Nbrth
Main $tra~t.Kocklord.
IL 61103
—815,
W. Harrkon St.. Dc~
PI~ne,,
IL ~001C,
—
ia-4?~2Q4-4000
E~&N—
£95
South $ine.
51gm.
tL 60)23
—
(8S71
fly St..
P~c,rfa.It,
611,14—
(.309) á’t.3-5461
&‘Q)MJ fl~
L~n.
P113,o*—
7610
N.
Univorilty
St..
Ptorit,
IL
b1614
-
EXHIBIT
25 S.,orh Fir;: Sirpel. ChamNIgn, Ii. hIBZE)
—12
fl
27h.SRItU
5nip~c,,tw—450Q
5.
SJ*lh
StreE
Rd.,
sprmngfleld,
1L
62706—I
M~It
S?ree, Cc,llirnviiIe, IL 62234—
(6)8? ,34h.S?2U
M.,~icw_23D9Wk4~
.
18)993-720(1
.
-
.
,
-
JUL—29—2005
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2005
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Page2
.
.
-
from the owner or operat~r
and the Illinois
EPA within the initial
35-day appeal period,
if
the
applicant wishS to receive a 90-day extension, a written request that includes
a statement of the
date th~
final decision was received, along with
a copy ofthis decision, must be sent to the
..Illiitois EPA as soon as possible.
.
-
For information regarding the filing ofar~appeal, pleasecontact:
-
Dorothy Ounn, Clerk
Illinois PoUution
Control Board
State of illinois Center
.
-
100 West Randolph, Suite 11-500
-
Chicago, Illinois
60601
-
312/814-3620
For information Tegarding the filing ofan
extension, please contact:
Illinois Environmcntai Protection Agency
-
Division ofLegal Counsel
1021 North Grand Avenue East
.
-
Springfield, Illinois 62794-9276
-.
217/782-5544
,
-
If you bave
any questions or require further assistance, please contact Nancy Moore of my
staff or Mike Thorsen ofTorn HeLnnfnger’s staff at 217/782-6762.
Sincerely,
~.
-
1;
~~4a
Douglas
.
Oakley, Manager
LUST Claims
Unit
Planning & Reportin~Sectioj-t
Bur:~u
ofLand
•DEO:NM:me\Q5 1871
Lttachlnent
cc:
Professional Service industries, Inc.
JuL—29—2005
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P.05
-
.
Attachment A
-
AccountingDeductions’
-
Re:
LPC#0310395025..CookCounty
-
Calumet City/Morgan Southern Company
-
-
•
1579
Yalencia Court
•.
-
-
.
-
LUST Incident No, 20030203
LUST Fiscal Pile
.
-
Citations in this attachment are
franz
and the Environmental Protection Act (Act)
and
35 illinois
Administrative
Coda (35 IlL Mm.
Code).
-
-
ft’cm ft
•
DescriptionofDeductions
.
-
-
.
.
-
1.
$825.00,
deduction for cosl~
associated with the compaction ~nddensity testing of
backfill material (35 Ill. Mm.
Code 732.606(w)).
Additionally, this cost is not a
corrective action cost.
“Corrective action” means an activity associated with
•
compliance with the provisions
ofSection 57.6 and
57.7
ofthe Act (Section 57.2 of
the
Act
and
35
111.
Adm.
Code 732.103),
One of
the
eligibility requirements for
accessing the Fund is that
costs
are associated with “corrective action” (Section
-
57.9(a)(7) ofthe Act and
35
Ill. Adm,
Code
7~2.505(c)).
.
.
-
-
None o~the
costs incurred from April 2~,
2003
to May 2,
2003 are eligible for
reimbursement.
To be considered for reiniburoemont, early action activities
must
be
-
performed within 45-days after initial notification to the Illinois
Emergency
-
-
Management Agency ofa release.
The costs In question were not incurred within the
•
time allowedfor suchreimbursemeut.
(35
ill.
Adrn. Code
732.202(g))
A.
4 hours,@555.00 ($220.00) for Timothy Gardner and
11
hours
~
$55.00
-
($605.00)
for Brian Byrne are being deducted from the psi personnel costs,
These
costs
are past-the 52
day time period
for Early Action, and costs for compactiori
are
•
Ineligible.
•
.
-
2.
-
$742.35,
deduction for costs
that
lack supporting documentation (35 Ill. Adm. Code
732.6O6(gg)).
Since there is no supporting docun,entgtion ofcosts, the Illinois
EPA
cannot detormino that
costs were
not
used for activities in
excess ofthose necessary to
meat the minimuth requirements ofTitle XVI ofthe Act (Section
57.5(a)
of
the
Act
and
35
III. Mm,
Code 732.606(o)).
-
A.
The psi pQrsonnel hours for Debra Sandrik arebeing reduced.
There are 18.5
hours, requested on the Personnel Summary, but there
are only 11.10 hours
documented on the back-up as being claimed.
7.4 hours
®
$45.00
are being
deducted (5333.00).
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B.
There was no receipt provided for Site Registration requested under Field
Purchases.
Handling charges can be considered only on postswith aocompanying
receipts/invoices.
The relatedHandling Charges are being deductad($9.35).
-C.
There was no
invoice submitted from
ua.
Bio~yatcma
for the amount of this
-
-
deduction ($400.00).
3.
None ofthe costs incurred from April
g, 2003 to January 7,2005 are eli~b1e
for
reimbursoment~To be considered forreimbursement, early action activities must be
performed within 45 days after initial nodflcatio~
to the Illinois Emergency
Management Agency oft release,
The costs
in question were not incurred within the
time allowed for subh reimbursement,
(35 Ill. Aiim,
Code 732.202(g))
-
A.. there are psi Personnel-Costs past
52 days from
LEMA ($6,876.00).
-
B.. There arc RW Collins Personnel Costs incurred past 52 days ($5,692.50).
-
C.
Equipment usage alter
52 days is denied ($12,477.50).
:
-
-
D,
Proctor Analysis, requested under$tock Items ispast 52 days ($150.00).’
E.
The bOT permit, requested under Field Purchases, is past 52 days ($31.00),.
F.
mere arc suboon~actor
costs past
.52
days ($49,070.90).
-
4.
-
$15,548.17,
deduction for costs for corrective action or indemnification that were
--
incurred prior to the owner or operatorproviding notification ofthe release to -the
Illinois Emergen~y
Management Agency (IRMA. formerly BSDA)
(Section
57.sØc)
of
•
the Act and 35111. Adm. Code 732.606(n)).
•
A.
There arc psi Personnel hours prior to IBMA ($1,662.50).
3.
There areRW Collins Personnel hours incurred prior to IMA
($1,782.50).
CL
There is Equipment usage that is prior to IEMA.
In addition, the costs incurred on
• February 13, 2003 would be associated with the tank pull ($8,285.00).
D.
There are Subcontractor costs prior
to
TEMA.
In addition, the Lincoln Paving
Company invoke, the Material Services Corporation invoice with a~
ship date of
February 13,
2003,
and the RS Used Oil Services
invoice with ajob date of
February
13, 2003
include costs associated with
a planned tank pull, the
-
Adminiatrativo Orderand/or the two
ineligible oil tanks
($3,818.17).
-
5.
$3,426.30,
deduction forcosts for the removal, disposal, or abandonment of an
underground storage tank that was removed or abandoned, or permitted forremoval or
abandonment, by the Office ofthe State
Fire Marshal before the owner or operator
provided notice to the
Illinois Emergency-Managethent
Agency ofa release of
petroleum (Section
57.8~)
ofthe Act
and
35111
Adin,
Cciii 732.606(k)).
-
Deduction for costs incurred for the removal, disposal, or abandonment of the
underground storage tank(s) which were not
rezncived in accordance with Office ofthe
State Fire Marshal regulations.
(Section ~7.5(l~)
ofthe Act
and
35
111. Adru.
Code
732.606(c))
-
~l
~
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.
Deduction f~r
costs for the removal ofunderground
storage tanks for which the owner
ox operator ~‘asdeemed ineligible to access the Fund.
(Section
57.9(a)
ofthe Act and
35
Xli. Adm. Code 732.608(a)(1))
.
-
-
•
-
-
Deduction for costs for coirecive action orindemnification that were incurred prior to
the owner or operatorproviding notification ofthe release.tq the Illinois Emergency
Management Agency (IEMA~fomierly ~SDA) (Section 57.8(k) ofthe Act and-35 Ill.
Mm.
Code 732.606(n)).
-
A.
RW Collins Personnel Costs incurred on February
13, 2003
(the day of the tank
pull) are denied.
This site had a planned tank pull, an Administrative Order issued
from OSFM, and there were two oil tanks pulled that are not eligible.
In addition,
these costs are prior to IRMA ($3,200.00).
B.
The permits from the City ofCalumet City and from DOT that
are associated with
the tank pull are denied (5226.00),
-
-
$68.9 S
•
deduction for costs for corrctivc action activitics for underground atorage
-
-
tanks for which the owner or’operator was deemed ineligible to access the Fund
(Section
57.8(m)(l)
oftheAct and 35
III.
Adrn. Code 732.608).
.
-
-
The following deductions are denying 5.21
ofthe costs indlcaud for being
-
associated with the two
ineligible oil
tanks.
The total ta~ik
volume was 21,
100
gallons.
The total tènk volume of the Ineligible tanks is
1,100 gallons. 1,100 / 21,100
~
5.2 1
of the total tank volume associated with the ineligible tanks,
-
A.
This
deduction is from the RW collins personnel hours Incurred on February 14,
•
2003 ($31.25).
B.
This deduction
is
from theEquipment Costs incurred on February 14,
2003.
-
($23.45).
.
-
C;
This deduction
is
from the Material Scrvice Corporation invoice datedFebruary
17,
2003
with a ship
date ofFebruary
14,
2003 (514,27).
.
-
7.
51,-I
40.00, dedue~ion
forcosts
incurred for additional reinediation afterrcceipt Of a-No
Further R.emediation Letter for the occurrence for which the No Further Remedjation
Letter
was
received,
(35 III. Adrn. Code
732.606(kk))
.
.
-
-
None ofthe costs incurred from January 25,
2005 to April
15, 2005
are eligibl& for
reimbursement.
To be considered for reimbursement, earlyaction
activities must be
perfomied wIthin 45
days after initial notification td the Illinois Emcrgency
-
Management Agency ofa release,
The costs in question were not incurred withip the
timö al1ow~d
for such reimbursement.
-
(35
111.
AWn, Code 732.202(g))
-
A.
There arc psi Personnel Costs past NFR and past
52 days from TEMA.
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.
-
8.
$40.00, deduction for costs incurred for additional remediation after receipt ofa No
Further Remediatlon Letter for the occurrence forwhich the No Further Remediation
Letter was received.
(35 Ill.
Adm. Code 732.606()ck))
-
A.
The truck usage, billed under Stock Items~
is past NFR.
9.
34,576-09,
adjustment-in the handling
charges due to thededuction(s) ofincligible
costs (Section 578(f) ofthe Act- and
35111. Adni. Code 732.607).
A.
The Handling Charges associated with the deductions from Field
Purchases are
denied ($30.80).
-
-
-
B.
The Handling Charges associated with the deductions from Subcontractors are
•
denied ($4,546.29).
-
10.
.
$-~Z
deduction for costs
due
to
a mathematical error.
(Section
57,7(c)(4)(C)
ofthe
Act and 35
III. Adm.
Code 732606(ff))
-
-
.
-
This deduetic; is from the total ofthe line items on the Suinniary Sheet for All
-
-
Charges.
The line items total $109,059.12, but only $109,059.10 is requc~tcd,
11.
-
$.
10,
deduction forcosts which arc unreasonable as submitted.
(Section 5t7(c)(4)(C)
ofthe Act and 35
Ill. Adm.
Code 732.606(hh))
•
-
-
This deduction is from the total amount requested on the Summary Sheet for All
Charges.
The amount certified on the
Payment Certification form is $109,059.00.
-
NM:rne\05j$72
-
-
JW—29—2005
14:33
DLC
LEGAL
-
P. 09/09
PSI
HILLSIDE
DL’
-
Fax:?082360?’21
Jul
29
2005
14:32
-
P.09
.
Attachment A
-
-
-
-
Technical Deductions
-
-
Re:
LPC #0310395025
.-
Cook
County
-
Calumet dy/Morgan Southern,
Inc.
.
.
1579
Valencia
Court
-
-
LUST
Incident No. 20030203
.
-
LUST Fiscal
Pile
-
-
Citations in this attachment are from and the Environmental Protection Act (Act) and
35
Iffinoil
Administrative Code
(35
liii. Adin. Code).
-
Item #
Desciiption ofDeductions
-
-
-
.
-
$78.00, deduction for costs
submitted a~tcr
the issuance ofa No Further Remediation
•
~“JFR)
Letter.
Pursuant to 35 III. Mm,
Code 732,305(d) or 732.405(d),
any plan or
budget shallbe submitted
to the Illinois EPA for review and approval, rejection, or
-modification In accordance with the procedures contained in Subpart
£ of
35
III. Adm.
code 732 pflor to the
issuance ofan NFR. Letter.
•
-
MRTmrt\
-
-
.
-
TOTAL
P.09
