Receive[)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AUG 1 p" 2006
LINCOLNSHIRE/STATE OIL
S&S
PETROLEUM,
Pol ution
OControl
Board
)
Petitioner,
V.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent .
NOTICE OF FILING
TO :
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P .O
. Box 19276
Springfield, IL 62794-9276
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution
Control Board the Petition for Hearing and Entry of Appearance of Lincolnshire/State Oil S&S
Petroleum, a copy of which is herewith served upon you
.
Respectfully submitted,
LINCOLNSHIRE/STATE OIL S&S
PETROLEUM, Petitioner,
August 14, 2006
B
ug
. u iv
R6tt&Randle, P.C
.
1227 South Seventh Street
P.O. Box 399
Springfield, IL 62705
217/544-9823
217/544-9826 (fax)
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Notice of Filing on each of the
addresses hereinafter set forth by placing same in a sealed envelope and depositing it in the U
.S.
Mail, postage fully prepaid, at Springfield, Illinois, this 14`
h day of August, 2006, and that the
original was filed with the Illinois Pollution Control Board .
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O
. Box 19276
Springfield, IL 62794-9276
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
REC
CLERIC'S
EIbED
OFFICE
LINCOLNSHIRE/STATE OIL
AUG 16 2006
)
S&S
PETROLEUM,
STATE OF
ILLINOIS
)
)
Pollution Control B
oard
Petitioner,
)
)
G
~~~-<<
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
ENTRY OF APPEARANCE
I hereby file my appearance in this proceeding on behalf of Lincolnshire/State Oil S&S
Petroleum .
Respectfully submitted,
LINCOLNSHIRE/STATE OIL S&S
PETROLEUM, Petitioner,
Do gla
utvey
Londrigan, P
r & Randle, P
.C .
1227 South Seventh Street
P.O. Box 399
Springfield, IL 62705
217/544-9823
217/544-9826 (fax)
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Entry of Appearance on each of the
addresses hereinafter set forth by placing same in a sealed envelope and depositing it in the U .S.
Mail, postage fully prepaid, at Springfield, Illinois, this 14t h day of August, 2006, and that the
original was filed with the Illinois Pollution Control Board .
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDRECEIVED
CLERKS OFFICE
LINCOLNSHIRE/STATE OIL
)
AUG
1 6 2006
S&S PETROLEUM,
)
Pollution
STATE
OF
Control
ILLINOISBoard
Petitioner,
)
V.
)
J
)
ILLINOIS ENVIRONMENTAL
)
~~ O
PROTECTION AGENCY,
)
Respondent .
)
PETITION FOR HEARING
Lincolnshire/State Oil S&S Petroleum, Petitioner, by its attorneys, Londrigan, Potter &
Randle, P.C.,
petition for hearing pursuant to 415 ILCS 5/57
.8(d)(I), 415 ILCS 5/40 and 35
I11 .Admin.Code
105 .400 and in support states
:
1 .
Enclosed as Exhibit A is a copy of the Illinois Environmental Protection Agency's
(hereinafter "Agency") final decision
.
2
.
The Agency's decision was received on or about July 12, 2006
.
3.
Statement Specifying Grounds of Appeal
:
A. Introduction
:
On or about February 28, 2006, Petitioner submitted an application for payment seeking
$1,089,400
.80 from the Leaking Underground Storage Tank (LUST) Fund
. The money sought was
within the previously approved budget
. On July 10, 2006, the Agency denied all except $35,967
.80.
The primary basis for the denial was alleged insufficient documentation
. (Exhibit A)
. After talking
to counsel for the Agency, on August 11, 2006, additional documentation was submitted to the
Agency that Petitioner asks to be included in the record (Exhibit B)
. Petitioner also refiled a new
application for payment covering the same period
.
B . Law
:
The applicable Statute relating to LUST Fund reimbursement states in relevant part that
when payment is sought pursuant to an approved budget
: "[t]he Agency's review shall be limited
to generally accepted auditing and accounting practices
. In no case shall the Agency conduct
additional review of any plan which was completed within the budget, beyond auditing for adherence
to the corrective action measures in the proposal
." 415 ILCS 5/57 .8(a)(1).
C
. Argument :
A review of the Agency's decision shows that the Agency went well beyond auditing `for
adherence to the corrective action measures in the proposal' and well beyond generally accepted
accounting procedures
. The best evidence of this are the requests in Attachment A of Exhibit A for
"a detailed breakdown that includes dates, times, employees' names, and the equipment used for the
costs requested on Environmental Control System, LLC's invoice" and a "detailed breakdown that
includes dates, times, employees' names, and a description of the work performed
." (Exhibit A) .
The Agency's request for such detail shows that the Agency is going well beyond auditing for
adherence to the corrective action measures in the proposal and also well beyond even what is
required by the instructions for submitting the payment vouchers .
As explained in Exhibit B, Petitioner agrees with a reduction of $19,155
.60 It, however, does
not agree that it has failed to adequately support reimbursement for the remaining amounts sought .
The agency apparently agrees that the corrective action plan with an approved budget of
$1,122,408 .02 was completed, but it only agrees that it cost $35,967
.80 to complete it.' As is made
clear in both the original application for payment and in Exhibit B, the work was performed and the
'This number does not include some small interim payments that are not at issue
.
2
contaminated soil was removed and replaced .
It also does not stand to reason that personnel costs of $41,260
.00 that were budged for
$64,780 .00 were cut to $0 . Again, the Agency review is supposed to be limited to "auditing for
adherence to the corrective action measures in the proposal
." 415 ILCS 5/57/8(a)(1) . The law does
not authorize a full and complete audit
. Accordingly, the Agency decision is not well supported by
the law and the application for payment as amended in Exhibit B should be approved
.
Lastly, a great injustice will result if the Agency decision is allowed to stand
. The Agency
approved a budget of $1,122,408
.02, agreed that the work was done, and then only approved
payment of $35,967 .80
. While the Agency has an obligation to manage the fund, it does not have
a charter to go beyond the dictates of the statute
. As supplemented, the voucher supports payment
for $1,070,245 .20.
Wherefore, Petitioner prays that a hearing be held and the Agency decision be reversed
.
Respectfully submitted,
LINCOLNSHIRE/STATE OIL S&S
PETROLEUM, Petitioner,
B
D
. - _ as
ivey
Londrigan, Potter & Randle, P .C.
1227 South Seventh Street
P.O. Box 399
Springfield, IL 62705
217/544-9823
217/544-9826 (fax)
3
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Petition for Hearing on each of the
addresses hereinafter set forth by placing same in a sealed envelope and depositing it in the U
.S .
Mail, postage fully prepaid, at Springfield, Illinois, this 14`h
day of August, 2006, and that the
original was filed with the Illinois Pollution Control Board .
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
4
A,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021
NORTH GRAND AVENUE EAST, P
.O . Box 19276, SPRINGFIELD, ILLINOIS
62794-9276 - ( 217) 782-3397
JAMES R .
THOMPSON CENTER,
100 WEST RANDOLPH, SUITE 11-300, CHICAGO, IL 60601 -
(312) 814-6026
ROD
R .
BLAGOJEVICH, GOVERNOR
DOUGLAS P . SCOTT, DIRECTOR
217/782-6762
JUL
1 0 2006
State Oil - S & S Petroleum
Attention : Jim Peters
8522 Thistlewood Court
Darien, Illinois 60561
Re:
LPC #0970955522 -- Lake County
Lincolnshire/State Oil S & S Petroleum
399 Milwaukee Avenue
Leaking UST Incident No . 20010139
Leaking UST FISCAL FILE
Dear Mr . Peters :
The Illinois Environmental Protection Agency has completed the review of your application for
payment from the Underground Storage Tank Fund for the above-referenced Leaking UST
incident pursuant to Section 57 .8(a) of the Illinois Environmental Protection Act (Act), and 35
Ill . Adm. Code 732, Subpart F . This information is dated February 28, 2006 and was received by
the Agency on March 1, 2006 . The application for payment covers the period from January 7,
2006 to February 16, 2006
. The amount requested is $1,089,400
.80.
CERTIFIED MAIL #
7004 2510 0001 8594 4886
The deductible amount for this claim is $10,000 .00, which was previously deducted from .
the
billing submittal received by the Agency on November 16, 2001 for $20,713 .69
. 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 March 1, 2006, the Agency received your complete application for payment for this claim
.
As a result of the Agency's review of this application for payment, a voucher for $35,967
.80 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 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 final action with regard to the above
application(s) for payment .
An underground storage tank owner or operator may appeal this final decision to the Illinois
Pollution Control Board (Board) pursuant to Section 57 .8(1) and Section 40 of the Act by filing
petition for a hearing within 35 days after the date of issuance of the final decision
. However,
R
OCKFORD-4302 North Main Street, Rockford, IL 61103-(815) 987-7760
0 DES PLANES -9511 W
. Harrison St ., Des PI aines, IL 6001 6-(847) 294-4000
ELGIN - 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 • CHAMPAIGN-2125 South First Street, Champaign, IL 61820-(217) 278-5800
SPRINGFIELD -4500 S . Sixth Street Rd ., Springfield, IL 62706-(217) 786-6892
• COLLINSVILLE- 2009 Mall Street, Collinsville, IL 62234 - (618) 346-5120
MARION-2309 W . Main St ., Suite 116, Marion, IL 62959- .(618) 993-7200
Page 2
the 35-day period may be extended for a period of time 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
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 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 of Illinois 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
if you have any questions or require further assistance, please contact Doug Tolan of my
staff and or Brian Bauer
at 217/782-6762 .
Dougl
E . Oakley, Manager
Lea ing UST Claims Unit
Planning & Reporting Section
Bureau of Land
DEO :DT:asr\061785 .doc
Attachment
cc :
Environmental Management, Inc .
Re:
LPC #0970955522
-- Lake County
Lincolnshire / State Oil S & S Petroleum
399 Milwaukee Avenue
LUST Incident No . 20010139
LUST Technical File
Citations in this attachment are from the Environmental Protection Act (Act) in effect pnor to
June 24, 2002, and 35 Illinois Administrative Code (35 111
. Adm. Code).
Item #
Description of Deductions
1 .
$16,350.00,
deduction for costs associated with site investigation or corrective action
.
The billings submitted exceed the approved budget amounts
. The Illinois EPA is unable
to approve billings that exceed the approved budget amounts pursuant to Section
57.8(a)(1)
of the Act and 35 Ill . Adm. Code 734.605(g)
and 734 .606(m).
The Visqueen, caution tape, and barricade charge exceed the budgeted amount by
$2,000.00,
the end loader charge exceeded the budgeted amount by $8,250
.00, and the
street sweeper for $6,100 .00 was not included in the budget
.
2. $327
.00, adjustment in the handling charges due to the deduction(s) of ineligible costs
.
Such costs are ineligible for payment from the Fund pursuant to Section 57`
.8(f) of the
Act and 35 Ill . Adm. Code 734
.635 .
3
$973,075.00,
deduction for costs from Environmental Control System, LLC, which lack
supporting documentation
. Such costs are ineligible for payment from the Fund pursuant
to 35 111
. Adm. Code 734 .630(cc)
. Since there is no supporting documentation of costs,
the Illinois EPA cannot determine that costs will not be used for activities in excess of
those necessary to meet the minimum requirements of Title XVI of the Act
. Therefore,
such costs are not approved pursuant to Section 57
.7(c)(3) of the Act because they may
be used for site investigation or corrective action activities in excess of those required to
meet the minimum requirements of Title XVI of the Act
.
The Illinois EPA is requiring copies of all invoices of subcontractors and a detailed
breakdown that includes dates, times, employees names, and the equipment used for the
costs requested on Environmental Control System, LLC's invoice
.
4.
$22,421
.00, deduction for handling charges for subcontractor costs when the contractor
has not submitted proof of payment for subcontractor costs
. Such costs are ineligible for
payment from the Fund pursuant to 35 Ill
. Adm. Code 734 .630
(ii). In addition, such
Attachment A
Technical Deductions
Page 2
BPB :
costs are not approved pursuant to Section 57 .7(c)(3) of the Act because they are not
reasonable
.
Without the supporting documentation required in number 3 above the Illinois EPA
cannot determine if the appropriate proof of payments have been submitted . In addition,
it appears that Onyx and Powell, Inc were used as subcontractors but no documentation
has been submitted indicating that they have been paid .
$41,260.00, deduction for costs for personnel charges which lack supporting
documentation . Such,costs are ineligible for payment from the Fund pursuant to 35 Ill .
Adm . Code 734.63't1(cc). Since there is no supporting documentation of costs, the Illinois
EPA cannot determine that costs will not be used for activities in excess of those
necessary to meet the minimum requirements of Title XVI of the Act . Therefore, such
costs are not approved pursuant to Section 57 .7(c)(3) of the Act because they may be
used for site investigation or corrective action activities in excess of those required to
meet the minimum requirements of Title XVI of the Act .
The Illinois EPA is requiring a detailed breakdown that includes dates, times, employees
names, and a description of the work performed
.
