BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

RUTH OIL COMPANY, INC.,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB No. 07-120

)

(LUST Appeal)

)

NOTICE OF

FlUNG

To:

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James

Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

William D. Ingersoll

Managing Attorney

III. Environmental Protection Agency

1021 North Grand Ave. East

Springfield, IL 62702

PLEASE TAKE NOTICE that we have this day filed with the office of the

Clerk of the Pollution Control Board the

Petition for Review

a copy of which is

enclosed herewith and hereby served upon you.

August 23, 2007

John

Hundley

Mandy L. Combs

THE SHARP LAW FIRM, P.C.

P.O. Box 906 - 1115 Harrison

Mt. Vernon, IL 62864

618-242-0246

Counsel for Ruth Oil Company, Inc.

RUTH OIL COMPANY, INC.

Mandy L. Combs

One of its Attorneys

Electronic Filing, Received, Clerk's Office, August 23, 2007

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

RUTH OIL COMPANY, INC.,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB No. 07-120

)

(LUST Appeal)

)

PETITION FOR REVIEW

Pursuant to

§§

40 and 57.8(i) of the Environmental Protection Act ("Act"), 415

ILCS 5/40, 5/57.8(i), to the Board's regulations on Leaking Underground Storage

Tank ("LUST") decisions, 35

ILL. ADM. CODE 105.400

et seq.,

and to the Board's

Order entered June 15, 2007 a copy of which is attached hereto as Exhibit 1,

petitioner Ruth Oil Company, Inc. ("Ruth Oil") submits this Petition for Review of

the Illinois Environmental Protection Agency ("Agency") decision attached hereto

as Exhibit 2 ("Decision") denying Ruth Oii reimbursement for $2,061.46 in costs

incurred under the LUST program.

Pursuant to

57.8(1) of the Act, Ruth Oil further requests the Board to order

the Agency to pay Ruth Oil legal costs for seeking payment in this appeal.

THE AGENCY'S FINAL DECISiON

The Decision of which review is sought is contained in Exhibit 2 hereto.

II. SERViCE OF THE AGENCY'S FINAL DECISION

The Decision indicates it was mailed April 18, 2007. It was received by Ruth

Oil April 19, 2007 and this appeal is timely pursuant to the Board's Order entered

June 15, 2007 a copy of which is attached as Exhibit 2.

lll, GROUNDS FOR ApPEAL

The Agency's contention that Ruth Oil analysis costs and shipping costs

"lack supporting documentation" is erroneous, arbitrary and capricious. 35

III. Adm.

Code 732.601(b)(9) and 734.605(b)(9) state that a complete application for

payment consists of "an accounting of costs, including but not limited to, invoices,

receipts, and supporting documentation showing the dates and descriptions of the

work performed." Ruth Oil submitted appropriate documentation, which was

ignored by the Agency.

B. The Agency's contention that it cannot determine if the $1,705.27 for

analysis costs, $102.80 for shipping costs, and $253.39 for VOA kits and Per Diem

will be used for "corrective action activities in excess of those required to meet the

minimum requirements of Title XVI of the Act" and/or are not "consistent with the

associated technical plan" is erroneous, arbitrary and capricious. The application

at issue was not for a budget but for reimbursement. The activities already have

been performed and the conjecture by the Agency is both illogical and erroneous.

IV.

CONCLUSION.

For the foregoing reasons, petitioner Ruth Oil Service respectfully petitions the

Board to reverse the denial of reimbursement in the amount of $2,061.46 and

order the Agency to pay Ruth Oil attorneys' fees for this appeal.

August 23, 2007

RUTH OIL COMPANY, INC.

One of its Attorneys

-2-

John T. Hundley

Mandy L. Combs

THE SHARP

LAW FIRM, P.C.

P.O. Box 906 - 1115 Harrison

Mt. Vernon, IL 62864

618-242-0246

Counsel for Petitioner Ruth Oil Company, Inc.

MandyCombs\USI\Ruth Oil\Pet for Review.doc

-3-

PCB 07-120

(UST Appeal)

(90-Day Extension)

)

Petitioner,

Respondent.

RUTH OIL COMPANY,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

ILLINOIS POLLUTION CONTROL BOARD

June

7,2007

ORDER OF THE BOARD (by G.T. Girard):

On May 24,2007, the parties timely filed a joint notice to extend the 35-day period

within which Ruth Oil Company (Ruth Oil) may appeal an April 18, 2007 determination

of the

Illinois Environmental Protection Agency (Agency).

See

415 ILCS 5/40(a)(1) (2004); 35 Ill.

Adm. Code 105.402, 105.406. Ruth Oil received the Agency determination on April 20, 2007.

The Agency declined reimbursement for specified costs for corrective action at Ruth

Oil's

leaking underground petroleum storage tank facility located at 201 West Williams in Stark

County.

the parties request, based

on the

35 Ill. Adm. Code 105.406.

If Ruth Oil fails to file an appeal on or before that date, the Board will dismiss this case and close

the docket.

IT IS SO ORDERED.

I, John T. Therriault, Assistant Clerk

of the Illinois Pollution Control Board, certify that

the Board adopted the above order on June 7, 2007, by a vote

of 4-0.

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board

CERTIFIED MAIL #

APR 1

tuD7

7004 2510 0001 8623 9653

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021

NORTH GRANO 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

217/782-6762

ROD R. BLAGOJEVlCH, GOVERNOR

DOUGLAS

SCOTT, DIRECTOR

RECEIVED

APR

1 8

2007

BY:

IJk/4a

Ruth Oil Express Mart

Attention: Mr. Cork Pheiffer

c/o Southwest Bank/Commercial Lending

Jennifer Vescogni - Acct. #0032713725

#2 Carlyle Plaza Drive

Belleville, Illinois 62221

Re:

LPC #1750205012 -- Stark County

Wyoming/Ruth Oil Express Mart

201 West Williams

Leaking UST Incident No. 992831

Leaking UST FISCAL FILE

Dear Mr. Pheiffer:

The Illinois Environmental Protection Agency has completed the review ofyour application for

payment from the Underground Storage Tank:Fund for the above-referenced Leaking

UST

incident pursuant to Section 57.8(a) ofthe Illinois Environmental Protection Act (Act), and 35

Ill. Adm. Code 732, Subpart F. This information is dated September 7, 2006 and was received

by the Agency on September 26, 2006. The application for payment covers the period from June

1,2006 to August 25, 2006. The amount requested is $72,820.16.

The deductible amount for this claim is $10,000.00, which was previously deducted from the

billing submittal received by the Agency on April 25, 2000 for $61,793.63. There are costs from

this claim that are not being paid. Listed in AttachmentA

arethe costs that are not being paid

and the reasons these costs are not being paid.

September 26, 2006, the Agency received your application for payment for this claim. As a

result

ofthe Agency'sreview ofthis application for payment, a voucher for $60,410.86 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 ofthis 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

ai'PJicatiqn(s)

f~ayment.

ROCKFORD-4302 North Main Street, Rockford, Il61103 - (815) 987-7760 •

DES PlAINES - 9511 W. Harrison St., Des Plaines, IL60016- (847) 294-4000

ELGIN - 595 South Slate, Elgin,

60123 - (847) 608-3131 •

PWRIA - 5415

University st, Peoria,

Il,

61614 - (309)693-5463

BUREAU

OF LAND -

PEORIA - 7620 N. UniversitySt., Peoria, ll, 61614 -

(309)

693-5462

•

CHAMPAIGN

2125 South first Street, Champaign,

61820 -

(217)

278-5800

SPRrNGFIELD - 4500 S. Sixth Street Rd., Springfield, iL 62706 - (217) 786-6892

•

COLI INSVlllE -2009 Mall Street, Collinsville, IL62234 - (618) 346.5120

MARION - 2309 W. Main St., Suite 116, Marion,

62959:'"(618) 993-7200

PRINTED ON RECYCLED PAPER

Page 2

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

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 ofthe final decision. However,

the

35-dayperiod may be extended for a period of'timenot to exceed 90 days by written notice

from the owner or operator and the Illinois EPA within the initial 35-day appeal period, Ifthe

applicant wishes to receive a 90-day extension, a written

requestthat includes a statement ofthe

date the final decision was received, along with a copy ofthis decision, must be sent to the

Illinois EPA

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

ofLegal Counsel

1021

North Grand Avenue East

Springfield, Illinois 62794-9276

2171782-5544

you have any questions or require further assistance, please contact Susan Brock of my

staffor Jenni Rossi of the technical staff at

2171782-6762.

Zl~£~~

DO~.

Oakley, Manager

Leaking

UST Claims Unit

Planning

Reporting Section

Bureau

ofLand

DEO:SB:bjh\0727710.doc

Attachment

cc:

United Science Industries, Inc.'

-----------------------------------_ _

- .

Attachment A

Technical Deductions

Re:

LPC #1750205012 -- Stark County

Wyoming/Ruth Oil

20 1 West WitHams

Leaking

UST Incident No. 992831

Leaking

UST Fiscal File

Citations

this attachment are from the Environmental Protection Act (Act) in effect prior to

June 24, 2002, and 35 Illinois Administrative Code (35

TIL 'Adm. Code).

Item

Description ofDeductions

$2,146.29, deduction for costs for personnel. costs for building demolition that are

inconsistent with the associated technical plan. One

ofthe overall goals ofthe financial

review is to assure that costs associated with materials, activities, and services shall be .

consistent with the associated technical plan. Such costs are ineligible for payment from

the Fund pursuant to Section 57.7(c)(4)(C)

of the Act and 35 IlL Adm. Code 732.505(c).

$2,311.63, deduction for costs for equipment costs for building demolition that are

inconsistent with the associated technical plan. One

ofthe overall goals ofthe financial

review is to assure that costs associated with materials, activities, and services shall be

consistent with the associated technical plan. Such costs are ineligible for payment from

the Fund pursuant to Section 57.7(c)(4)(C)

ofthe Act and 35 Ill. Adm. Code 732.505(c).

Attachment A

Accounting Deductions

Re:

LPC #1750205012 -- Stark County

Wyoming/Ruth Oil Express Mart

201 West Williams

Leaking

UST Incident No. 992831

Leaking

UST Fiscal File

Citations in this attachment are from the Environmental Protection Act (Act) in effect

prior to

June 24, 2002, and 35 Illinois Administrative Code (35 Ill. Adm. Code).

Item #

Description ofDeductions

$1,705.27, deduction for costs that lack supporting documentation, Such costs are

ineligible for payment from the Fundpursuant to 35

Ill.

Adm. Code 732.606(gg). Since

there is no supporting documentation

of costs, the Illinois EPA cannotdetermine that

costs will not be used for activities in excess ofthose necessary to meet the minimum

requirements

ofTitle XVI ofthe Act; therefore, such costs are not approved pursuant to

Section 57.7(c)(4)(C)

ofthe Act because they may be used for corrective action activities

in excess

of those required to meet the minimum requirements ofTitle XVI of the Act.

Analysis Costs: No invoice was provided for Prairie Analytical.

$102.80, deduction for costs that lack supporting documentation. Such costs

are

ineligible for payment from the Fund pursuant to 35 Ill. Adm. Code 732.606(gg). Since

. there is no supporting documentation

of costs, the Illinois EPA cannot determine that

costs will

not be used for activities in excess ofthose necessary to meet the minimum

requirements

ofTitle XVI ofthe Act; therefore, such costs are not approved pursuant to

Section 57.7(c)(4)(C)

of the Act because they may be used for corrective action activities

in excess

ofthose required to meet the minimum requirements ofTitle

xvr

of the Act.

Deduction for costs for sample shipping that are inconsistent with the associated

technical plan. One

of the overall goals ofthe financial review is to assure that costs

associated with materials, activities, and services shall be consistent with the

associated

technical plan. Such costs are ineligible for payment from the Fund pursuant to Section

57.7(c)(4)(C)

ofthe Act and 35 TIL Adm. Code 732.505(c).

3'~lt5.q;

$253.39, deduction for costs for VOA kits and Per Diem that are inconsistent with the

13'~ ~

1,4 associated tecm:ucal

pl~.

One?fthe

o:e:~U

goals ?,ftt:e financial revie:v is to

a~sure

3~d-4

that costs associated WIth materials, activities, and services shall be consistent WIth the

, 1)

associated technical plan. Such costs are ineligible for payment from the Fund pursuant

toSection 57.7(c)(4)(C) ofthe Act and 35 Ill. Adm, Code 732.505(c).

Electronic Filing, Received, Clerk's Office, August 23, 2007

Page 2

$0.10, deduction for costs requested that are based on mathematical errors. Such costs

are ineligible for payment from the Fund pursuant to 35 Ill. Adm. Code 732.606(ff). In

addition,

suchcosts are not approved pursuant to Section 57.7(c)(4)(C) ofthe Act

because they are not reasonable.

Deductionfor total personnel costs.

$2,127.43, deduction for costs for personnel costs that areinconsistent with the

associated technical plan. One

ofthe overall goals ofthe financial review is to assure

that costs associated with materials, activities, and services shall be consistent

with the

associated technical plan. Such costs are ineligible for payment from the Fund pursuant

to Section 57.7(c)(4)(C) ofthe Act and 35 Ill. Adm. Code 732.505(c).

$1,04~.00,

deduction for costs for personnel costs for building demolition that are

inconsistent with the associated technical plan. One

of the overall goals ofthe financial

review is to assure that costs associated with materials, activities, and services shall be

consistent with the associated technical plan. Such costs are ineligible for payment from '

the Fund pursuant to Section 57.7(c)(4)(C)

ofthe Act and 35 Ill. Adm. Code 732.505(c).

$1,120.46, deduction for costs for equipment costs that are inconsistent with

the

associated technical plan. One ofthe overall goals ofthe financial review is to assure

that costs associated with materials, activities, and services shall be consistent with the '

associated technical plan. Such costs are ineligible for payment from the Fund pursuant

to Section 57.7(c)(4)(C)

ofthe Act and 35 Ill. Adm, Code 732.505(c).

$1,500.43, deduction for costs for construction debris disposal that are inconsistent with

the associated technical pian. One of the overall goals ofthe financial review is to assure

~I'vf

J~.J

that costs associated with materials, activities, and services shall be consistent with the

$ ol'?

associated technical plan. Such costs are ineligible for payment from the Fund pursuant

",'J\\

to Section 57.7(c)(4)(C) ofthe Act and 35 Ill. Adm. Code 732.505(c).

$96.50, deduction for costs for permits that are inconsistent with the associated technical

plan. One

ofthe overall goals ofthe financial review is to assure that costs associated

with.materials, activities, and services shall be consistent with the associated technical

plan. Such costs are ineligible for payment from the Fund pursuant to Section

57.7(c)(4)(C)

ofthe Act and 35 Ill. Adm. Code 732.505(c).

$7,951.38

. Total Accounting Deductions

DEO:SB:bjh\0727711.doc

Electronic Filing, Received, Clerk's Office, August 23, 2007

CERTIFICATE OF SERVICE

I, the undersigned attorney at law, hereby certify that I caused copies of the

foregoing document to be served by placement in the United States Post Office

Mail Box at 14

& Main Streets in Mt. Vernon, Illinois, before 6:00 p.m. this

date, in sealed envelopes with proper first-class postage affixed, addressed to:

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James

R. Thompson Center

100

West Randolph Street

Suite 11-500

Chicago, IL 60601

August 23, 2007

William D. Ingersoll

Managing Attorney

III. Environmental Protection Agency

1021 North Grand Ave. East

Springfield, IL 62702

Mandy L. Combs

John

Hundley

Mandy L. Combs

THE SHARP

LAW FIRM, P.C.

P.O. Box 906 - 1115 Harrison

Mt. Vernon, IL 62864

618-242-0246

Counsel for Petitioner Ruth Oil Company, Inc.

sara\wpdocs\USI-Ruth\Notice.wpd.