V
E & L TRUCKING COMPANY,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Dorothy M. Gunn, Clerk
Illinois Pollution
Control Board
James R. Thompson Center
100
West Randolph Street
Suite 11-500
Chicago, IL 60601
Petitioner,
Respondent.
)
)
)
PCB No. 06-50
)
(UST Appeal)
)
)
NOTICE
John Kim
RECEIVED
CLERK’S OFFICE
DEC
022005
STATE OF ILLINOIS
Pollution control Board
Illinois Environmental Protection Agency
1021
North Grand Avenue, East
P.O. Box
19276
Springfield,
IL
62794-9276
PLEASE
TAKE
NOTICE
that
pursuant
to
the
Illinois
Pollution
Control
Board’s
November 3, 2005, Order,
I have today filed with the
office
ofthe Clerk of the Pollution Control
Board an AMENDED PETITION FOR REVIEW on behalf of E &
L TRUCKING COMPANY,
a copy ofwhich
is herewith served upon you.
Respectfully submitted on behalf ofPetitioner,
E & L TRUCKING COMPANY,
South Plymouth Court
-
Suite 2NE
Chicago, IL
60605
Phone:
(312) 341-0037
Facsimile:
(312) 341-9394
BEFORE THE POLLUTION
CONTROL BOARD
OF THE STATE OF ILLINOIS
Is
at Law
Dated:
December 2,
2005
RECEIVED
CLERK’S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
DEC
022005
OF THE STATE OF ILLINOIS
STATE OF ILLINOIS
E & L TRUCKING
COMPANY,
)
Pollution Control
Board
Petitioner,
)
v.
)
PCB No. 06-50
ILLINOIS ENVIRONMENTAL
)
(UST Appeal)
PROTECTION AGENCY,
)
Respondent.
)
E & L TRUCKING COMPANY’S
AMENDED PETITION FOR REVIEW
NOW
COMES
the
Petitioner,
E
&
L
TRUCKING
COMPANY,
by
and
through
its
attorney, Jolm Burds pursuant
to
the November 3~,2005
Order of the ILLINOIS POLLUTION
CONTROL
BOARD
(“Board”)
and
herein
submits
E
&
L
Trucking
Company’s
Amended
Petition
for
Review
petitioning
the
Board
for
review
of
Repondent’s,
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY’S
(“Agency”),
final
determination
dated
September
14,
2005,
denying
E
&
L
Trucking
Company’s
application
for payment
from
the
Underground Storage Tank Fund (“UST Fund”).
In support thereof and pursuant to
the Board’s
Order of November 3”,
2005, requiring that
E
&
L Trucking Company file an
amended petition
on or before December
3, 2005,
Petitioner, E & L Trucking states as follows:
Material Facts
1.
On October
20,
2004,
E
&
L
Trucking submitted
High
Priority Corrective Action
Plan
and Budget totaling $45,
087.99, for corrective action
activities.
2.
On
December
2,
2004,
the
Agency
allegedly
received
E
&
L
Trucking
Company’s
application
for reimbursement dated May
17, 2005.
3.
By
correspondence
dated
December
23,
2004,
the
Agency
approved the
High
Priority
Corrective
Plan
and Budget which included
all costs
submitted within the application
for
reimbursement submitted by
E & L Trucking dated May
17, 2005.
4.
On May
19,
2005 the Agency allegedly received E
& L Trucking Company’s application
for reimbursement.
5.
By
correspondence dated September
14, 2005,
the Agency
issued
a final
determination
“for
purposes
of appeal
.
.
,“
indicating
that
the
application
for
reimbursement
is
incomplete.
Service
1.
As
provided within its initial Petition for Review, E
&.
L Trucking, acknowledged therein
that
by
correspondence
dated
September
14,
2005,
the
Agency
issued
a
final
determination
“for
purposes
of
appeal
..,“
indicating
that
the
application
for
reimbursement is incomplete.
2.
By filing its initial Petition for Review on October Il,
2005
(well within the 35 days after
the
date
of service
of
the
Agency’s
final
decision)
and
within
its
Response
to
the
Agency’s
Motion
to
Dismiss
Petition
E
&
L
Trucking
Company
has
previously
acknowledged receipt ofthe Agency’s final detennination dated September
14,
2005
and
delivered via certified mailing, Certified Mail #700425100001
8646
1184.
3.
Pursuant to
735
ILCS 5/3-103,
the method of service of the decision shall be as provided
in
the Act governing the procedure before the administrative agency,
but
if no method
is
provided,
a
decision
shall
be
deemed
to
have been
served
either
when
a
copy
of the
decision is personally delivered or when a copy ofthe decision is deposited in the United
States mail, in
a sealed envelope or package, with
postage prepaid, addressed to
the party
affected by the decision at his or her last known residence or place of business.
4.
Pursuant
to
Board rules
105.404 and
101.304(c) Time of Service.
In the case ofpersonal
service, service is deemed complete on the date personal delivery was effectuated.
In the
case offacsimile transmission, service is deemed complete on the date ofa complete and
proper
transmittal
(facsimile
filings
are
only
allowed
in
accordance
with
Section
101.302(d) of this
Part).
In
the case of service by
registered
or
certified
mail,
or by
messenger service,
service
is deemed complete on the date specified on the registered or
certified
mail
receipt or the messenger service receipt.
In the
case of service by
U.S.
Mail, service is presumed complete four days after mailing.
5.
Per
the Track
&
Confirm mechanism
of the United
States
Postal
Service the document
with Certified Mail #700425100001
8646 1184 was delivered at
1:28
pm on
September
16,
2005 in Orland Park, IL 60462.
6.
Herein and pursuant to the Board’s Order of November 3”’, 2005
and Sections
105.408(b)
and Illinois
Supreme Court Rule
12(c),
E & L Trucking acknowledges service and receipt
of the Agency’s final
determination dated September
14,
2005,
on
or
about September
16,
2005.
Grounds for Appeal
The
September
14,
2005,
Agency
final
determination
acknowledges
receipt of E
&
L
Trucking Company’s
application
for payment covering the period
from March
24,
2000
to January 21, 2005
and that the amount requested is $45,087.99.
2.
The application
for payment submitted by
E &
L Trucking and
allegedly received by the
Agency on May
19,
2005
is reasonable
and consistent with the Act and regulations
at 35
Ill. Admin Code 732.
3.
The requirements
for
a
complete application
for payment
itemized within
35111.
Admin
Code
732.601(b) were
fulfilled within the application for reimbursement submitted
by
E
& L Trucking and allegedly received by the Agency on May
19,
2005.
4.
The work for which
payment
is
sought was performed and/or competed pursuant to
an
approved
High
Priority
Corrective
Plan
and
Budget
approved
by
the
Agency
on
December 23, 2004.
5.
The Agency’s final determination indicates that the application for payment is incomplete
pursuant to
Attachment A.
Attachment A provides two
ground
as the basis ofthe denial
finding
it
incomplete
and
includes
comments
that
are
contradictory
to
information
previously
provided
by
the
Agency
and
internally
inconsistent~with
previous
correspondence
issued
by
the
Agency
to
E
&
L
Trucking
Company for the
identical
costs.
4.
The
first
basis
provides
that
the
Agency
cannot
determine
which
costs
within
the
application
are
being
submitted
for
reimbursement
and
identifies
$12,580.59
as
previously approved costs.
5.
The complete
application
allegedly received
by
the
Agency
on
May
19,
2005,
clearly
demonstrates
that
all
costs
submitted
therein
are
being
submitted
for
reimbursement
pursuant
to
the approved High
Priority
Corrective
Plan
and
Budget dated December
23,
2004
and
further
that
none
of
the
cost
previously
approved
and
applied
toward
the
applicable deductible or paid are being sought
for reimbursement.
6.
The
second
basis
for the
Agency
denial
and
incompleteness
finding
provides
that
the
certain
costs totaling $2,768.00 lacked
supporting documentation.
7.
The application
for reimbursement
allegedly received
by
the
Agency
on
May
19,
2005
was
complete
and
adequate
supporting
documentation
was
provided
therein,
and
the
Agency’s
refusal
to
approve
payment
by
claiming
lack
of
supporting
documentation
exceeded the Agency’s authority
and is
a violation of the Environmental
Protection
Act
(“Act”) and the regulations at 35
Ill. Adm. Code 732.
8.
The Agency
does not
identil5’ the
basis of non-payment,
of the
remainder of the
costs
submitted foi~reimbursement totaling no less than $29,739.40.
9.
Section
57.8
(a)(1)
of the
Act
provides
that,
“.
.
,
the Agency
shall
make
a
payment
determination within
120 days of receipt of the application.”
This
same provision
states
that,
‘if
the
Agency
fails
to
approve
the
payment
application
within
120
days,
such
application
shall be deemed
approved
by operation of law and
the Agency
shall proceed
to
reimburse the owner or operator the amount requested in the payment application.”
10.
The
Agency
did
not
make
a
payment
determination
within
120
days
related
to
the
outstanding
amounts
totaling
no
less
than
$29,739.40
and
by
operation
of
law
these
amounts should be deemed
approved and payable to
E & L Trucking Company.
11.
The
Agency’s
denial
of
certain
costs
as
lacking
supporting
documentation
also
demonstrates
that
the
Agency
has
and/or
intends
to
perform
a
full
review
of
the
application
for reimbursement submitted by
E
&
L
Trucking which
is
in
violation of35
Ill. Admin.
Code 732.602(b).
12.
35
Ill.
Admin.
Code
732.602(b)
provides the circumstances
in
which
the Agency may
conduct
a
full
review of any application
for payment.
None of the
listed circumstances
provided within 35 Ill. Admin.
Code 732.602(b) exist.
13.
Pursuant
to
35
III.
Admin.
Code
732.602(c)
the
Agency
may
require
the
owner
or
operator
to
submit to
a
full
accounting
(i.e.
invoices)
supporting
all
claims
only
when
conducting
a
full
review
of
any
application
for
payment.
Thus
the
Agency
final
determination
issued on September
14,
2005
is both arbitrary and capricious
and exceeds
its
statutory
and
regulatory
authority
to
conduct
a
full
review of
the
application
for
reimbursement submitted by
B &
L
Trucking Company and
that it allegedly received on
May
19, 2005.
Prayer for Relief
WHEREFORE,
the
Petitioner,
E
&
L
TRUCKING
COMPANY,
hereby
respectfully
requests that the Board enter an order:
That the Agency
violated the Act
and
regulations
and
require the Agency
to
comply
with the Act
and Regulations;
That
the
Agency
approve
the
application
for
reimbursement
submitted
by
B
&
L
Trucking and allegedly received by the Agency on May
19, 2005;
That
E
&
L
Trucking
is
owed by
operation of law
the
full
amount of the requested
payment,
but no
less
than those
cost
never
reviewed by
the Agency equaling no
less
than $29,739.40;
For E
& L Trucking Company’s attorneys’
fees and costs in bringing this appeal.
Respectfully submitted on behalf of the Petitioner,
E &
L TRUCKING COMPANY,
A
eyatLaw
1170 South Plymouth Court
-
Suite 2NE
Chicago, IL
60605
Phone:
(312) 341-0037
Facsimile:
(312) 341-9394
Dated:
December 2, 2005
This
filing
submitted
on
recycled paper.
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
1021
NORTH
GRAND
AVENUE
EAST,
P.O.
Box
19276,
SPRINGFIELD,
IllINOIS
62794-9276
—(217) 782-3397
JtJ~iE5
R.
THOMPSON
CENTER,
100 WEST
RANDOLPH,
SUITE
11-300,
CHICAGO,
IL
60601
—(312)
814-6026
koo
R.
BLAGOJEVICH,
GOVERNOR
DOUGLAS
P.
Scour,
DIRECTOR
217/782-6762
CERTIFIED MAIL #
SEP
142005
~
8646
1184
E & L Trucking
Attn:
Tim Fay
14332 MaycliffDrive
Orland Park, IL 60462
Re:
LPC#0310035175--CookCounty
AlsipJE & L Trucking Company
12625 Hamlin Court
LUST Incident No. 20000517
LUST FISCAL FILE
Dear Mr.
Fay:
The Illinois Environmental Protection Agency has reviewed the application for payment
that was
submitted for the
above-referenced LUST incident pursuant to Section 57.8(a) of the Illinois
Environmental
Protection Act (Act).
This information was dated May 5, 2005
and was received
by the Agency on May
19, 2005.
The application for payment covers the period from March 24,
2000 to January 21, 2005.
The amount requested is $45,087.99.
The Agency has determined that your application for payment is incomplete pursuant to
Attachment A.
Because your application for payment is incomplete, it is being returned with this
letter and Attachments.
In order to comply with the requirements of Title XVI, you must address
the issue(s)
set forth in the Items cited in
Attachment A.
In accordance with Section 57.8(a)O) of the Act, the Agency has
120 days from the
date of
receipt of a complete application for payment to make a payment determination.
Because your
application
for payment was not complete, the
120-day clock has stopped.
Upon receipt of a
complete application for payment, the Agency will begin the
120-day time
period again.
All future correspondence must be submitted to:
ROCKEORD
—4302 North Main Street,
Rockford,
IL 61103— (815) 987-7760
•
DES
PLAINES
—9511 W.
Harrison
St.,
Des Plaines,
IL
60016— (847) 294-4000
WIN
—595
South State, Elgin,
IL 60123 —(847)608-3131
•
PEORIA
—5415 N. University
St.,
Peoria, IL 61614— (309) 693-5463
BUREAU OF
LAND
-
PEORIA
—7620
N. University
St.,
Peoria, IL 61614— (309) 693-5462
•
CHM4PAIGN
—
2125
South First Street, Champaign,
IL 61820 —(217) 278-5800
SPRINGFIELD
—4500 S. Sixth Street
Rd.,
Springfield,
IL
62706 —(217) 786-6892
•
COLLINSvILLE
—2009 MalI
Street, Collinsville,
IL
62234 —(618) 346-5120
MARION
—2309W. Main
St.,
Suite 116, Marion,
162959— (618) 993-7200
PRINTED
ON
RECYCLED
PAPER
Page 2
Illinois Environmental Protection Agency
Bureau of Land
-
#24
LUST Section
1021
North Grand Avenue
East
Post Office Box
19276
Springfield,
Illinois 62794-9276
Please include the
Re:
block at the beginning of this letter on
all future payment request
submittals.
To ensure timely processing ofyour application for payment, please provide the-missing items
within 30 days ofthe date ofthis letter.
For purposes of appeal, this letter constitutes the Agency’s final decision regarding the above
matters.
Should you
have any questions
or require further assistance, do not hesitate to contact
Catherine S. Elston of my staffat 217/782-6762.
DEO:CSE:me\051 152.doc
Attachment
Doujk~s
E. Oaldey, Manager
LUST Claims Unit
Planning & Reporting
Section
Bureau ofLand
cc:
Dearborn Environmental Corp
t
ATTACHMENT A
Re:
LPC 0310035175
-
Cook
County
AIsIp/E & L Trucking Company
12625
Hamlin Company
LUST
Incident No.
200004517
LUST
TECH
FILE
We
are unable to
determine which costs
on the invoices are being submitted
for
reimbursement.
When the claim is resubmitted please highlight which
portion ofthe costs
you
are seeking reimbursement.
As the claim is now we cannot determine which invoices
are
being submitted for partial
payment
and which
invoices are being submitted for
payment
in
full.
According to our records the following costs have been
paid:
GeoResolution Services invoice #043003
-
$5,843.92
GeoResolution Services invoice #051601
-$4,631.50
R.W.
Collins invoice #10211
-$2,105.17
Total
-$12,580.59
Costs applied to deductible -$10,000.00
Payment received
-
$2,580.59
2.
The billing(s)
submitted includes costs that lack supporting documentation.
A corrective
action plan billing(s)
for a site classified as high priority must
include, but not be
limited
to,
an accounting of all costs associated with the implementation and completionofthe
corrective action plan.
(Section 57.7(c)(1)(B) of the Act)
Since there is no supporting
documentation of costs, the Agency cannot determine if the minimum requirements have
been exceeded.
Therefore, these costs
exceed the minimum requirements necessary to
comply with
Title XVI.
(Section 57.5(a) of the Act)
Dearborn
Environmental invoice #16 1-7-04 $400.00.
Please provide backup documentation for the reproduction and shipping of documents.
GeoResolution invoice #071701
$558.00.
-
Please provide backup documentation for drafting costs of $180.00.
Please provide backup
documentation for the laboratory analysis.
The invoice states the
amount of $1,900.00
for analysis but
the backup
invoice EMT #005592-IN has the total
amount of $1,582.00
for a difference of $318.00.
Please provide backup
documentation for the misc, expenses of$60.00.
GeoResolution invoice #081101
$1,810.00.
Please provide backup documentation
for the subcontractor costs of $800.00.
Please provide backup documentation for the laboratory analysis costs of$900.00
Please provide backup documentation for the misc. expenses of$llO.00.
CSE:me\05l
I
53.doc
CERTIFICATE OF SERVICE
I,
the undersigned
attorney at
law,
hereby
certify
that on
December
2,
2005,
I
served
true and
correct
copies
of
the
E
&
L
TRUCKING
COMPANY’S,
AMENDED
PETITION
FOR
REVIEW
upon the following named persons by personally delivering
them to the address
as set
for below on the 2”
day of December, 2005:
Dorothy
M. Gunn, Clerk
Illinois Pollution Control Board
James
R. Thompson Center
100 West Randolph Street
Suite
11-500
Chicago, IL 60601
and
upon
the
following named persons
by
placing
true
and
correct
copies
thereof in
properly
sealed and addressed
envelopes and by depositing said sealed envelopes in
a U.S.
mail drop box
located
within
Chicago,
Illinois,
with
sufficient
First
Class
postage affixed
thereto,
upon
the
following named persons:
John
Kim
Illinois Environmental Protection Agency
1021
North Grand Avenue, East
P.O. Box
19276
Springfield,
IL
62794-9276
Respectfully Submitted
on behalf of Petitioner,
E&L TRUCKING
COMPANY,
J
n
us
tto
e
at
Law
outh
Plymouth Court
-
Suite 2NE
Chicago, IL
60605
Phone:
(312) 341-0037
Facsimile:
(312) 341-9394
