POLLUTION
OF ILUNOIS
MAHR'S SERVICE
& SALES,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
PCB No. 07-119
)
(LUST Appeal)
)
)
)
NOTICE OF FlUNG
To:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James
R.
Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
William D. Ingersoll
Managing Attorney
Ill. 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 24, 2007
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 Mahr's Service
&
Sales
MAHR'S SERVICE
& SALES
By:
Y"==~ r±C--~
Mandy L. Combs
One of its Attorneys
Electronic Filing, Received, Clerk's Office, August 24, 2007
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
MAHR'S SERVICE
&
SALES,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
PCB No. 07-119
)
(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 Mahr's Service and Sales ("Mahr's") submits this Petition for Review of
the Illinois Environmental Protection Agency ("Agency") decision attached hereto
as Exhibit 2 ("Decision") denying Mahr's reimbursement for $1,967.40 in costs
incurred under the
LUST program.
Pursuant to
§
57.8(1)
of the Act, Mahr's further requests the Board to order the
Agency to pay Mahr's legal costs for seeking payment in this appeal.
I.
THE AGENCY'S FINAL DECISION
The Decision of which review is sought is contained in Exhibit 1 hereto.
II. SERVICE OF THE AGENCY'S FINAL DECISION
The Decision indicates it was mailed April 18, 2007. It was received by Mahr's
April 20, 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.
III. GROUNDS FOR ApPEAL
A.
The Agency's contention that Mahr's analysis costs and shipping costs
"lack supporting documentation" is erroneous, arbitrary and capricious. 35 Ill. 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." Mahr's submitted appropriate documentation, which was
ignored by the Agency.
B. The Agency's contention that it cannot determine if the $1,916.00 for
analysis costs and $51.40 for shipping costs 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 reasonable" 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 Mahr's Service respectfully petitions the
Board to reverse the denial of reimbursement in the amount of the $1,967.40 and
order the Agency to pay Mahr's attorneys' fees for this appeal.
August 24, 2007
MAHR'S SERVICE
&
SALES
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 Mehr's Service
&
Sales.
MandyCombs\USI\Mahr's\Pet for Review.wpd
-3-
ILLINOIS POLLUTION CONTROL BOARD
June 7,2007
MAHR'S SERVICE & SALES,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD (by G.T. Girard):
)
)
)
)
)
)
)
)
)
)
PCB 07-119
(UST Appeal)
(90-Day Extension)
d0-'~
u(\'S{"t:
lfd
On May 24,2007, the parties timely filed a joint notice to extend the 35-day period
within which
Mahr's Service
&
Sales (Mahr's Service) may appeal an April 18, 2007
determination
of the Illinois Environmental Protection Agency (Agency).
See
415 ILCS
5/40(a)(l) (2004); 35 Ill. Adm. Code 105.402, 105.406. Mahr's Service received the Agency
determination on April 21, 2007.
The Agency declined reimbursement for specified costs for
corrective action at Mahr's Service's leaking underground petroleum storage tank facility located
at 8810 East IL 9 Highway in Fulton County.
....
~_
.
. '
r~\.~x
The Board extends the appeal period until August 24;
~007,
as
t~
parties request, based
on the April 21, 2007 receipt date.
See
415 ILCS 5/40(a)(l) (2004); 35 Ill. Adm. Code 105.406.
IfMahr's Service 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 #
7004 2510 0001 8623 9783
APR
')
~,
~I'''''
I.
J
!.uul
fLlINOIS ENVIRONMENTAL PROTECTION AGENCY
APR
1 8
2007
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,
It
60601 - (31 2) 814-6026
217/782-6762
ROD R. BLAGOJEVICH, GOVERNOR
DOUGLAS P. SCOTT, DIRECTOR
.
.RECEIVED
BY:
dIlL! Idq
Mahr'sService
&
Sales
;
Attention: Bruce Mabr/Southwest Bank/Commercial
Lending
Jennifer Vesgocni - Acet. #0032713725
#2 Carlyle Plaza Drive
Belleville, Illinois 62221
Re:
LPC #0570405002
--
Fulton County
Ellisville/Mahr's Sales and Service
8810 East IL 9 Hwy.
Leaking
UST Incident No. 20001742
Leaking UST FISCAL FILE
Dear Mr. Mahr:
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.S(a) of the Illinois Environmental Protection Act (Act), and 35
Ill. Adm. Code 732, Subpart F
.• This information is dated December 19,2006 and was received
by the Agency on December 21,2006. The application for payment covers the period from June
1,2006 to November 4.2006. The amount requested is $4,779.08.
The deductible amount for this claim is $15,000.00,
which was previously deducted from the
billing submittal received by the Agency on January 4,2001 for $17,967.03. 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 December
21,2006, the Agency received your application for payment for this
cl~.
As a
result ofthe Agency'sreview ofthis application for payment, a voucher for $2,811.68
win
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'sfinal 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(i) and Section 40
ofthe Act by filing a
ROCKfORD -
4302 North Main Street,
Rockford,
IL 61103 - (815)
987-7760
~
DES PLAINES - 9511 W. Harrison St., Des Plaines, Il60016 - (847) 294-4000
ELGIN -
595 South State, Elgin, !l60123 - (847) 608.3131
-PEORlA -
5415 N. University St., Peoria, 1161614 - (309) 693-5463
BUREAU
OF LAND.
PEORIA
-7620
N.
University St.,
Peoria,
Il61614 - (309) 693-5462 e
CHAMPAIGN -
2125 South
First Street, Champaign,
Il 61820 - (217) 278-5800
SPRINGfiElD - 4500 S. Sixth Street Rd., Springfield, lL 62706 - (217) 786-6892
~
COltlNSVILLE - 2009 Mall Street, Collinsville, IL 62234 - (618) 346.5120
MARION - 2309 W. Main 51., Suite 116, Marion, ll, 62959 - (618) 993-7200
PRINTED
ON
RECYCLED PAPER
Page 2
petition for a hearing within 35 days after the date
of issuance ofthe final decision. However,
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
.. lfthe
applicant wishes to receive a 90-day extension, a written request that includes a statement ofthe
date the final decision was received, along with a copy
ofthis 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 :filingof an extension, please contact:
Illinois Environmental Protection Agency'
Division
of Legal. Counsel
1021 North Grand Avenue East
Springfield, Illinois
62794-9~76
217/782-5544
If
you have any questions or require further assistance, please contact Niki Weller of my
staff at 217/782-6762.
{;lY'
D~~
£eY, Manager
Leaking UST Claims Unit
Planning
&
Reporting Section
Bureau
ofLand
DEO:NW:bjh\072571.doc
Attachment .
cc:
United Science Industries
Attachment A .
Accounting Deductions
Re:
LPC #0570405002 -- Fulton County
Ellisville/Mahr's Sales and Service
8810
EastIL 9 Hwy,
Leaking UST Incident No. 20001742
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.
$1,967.40, deduction for costs
thatIack 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 of the 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
ofthose required to meet the minimum requirements of Title XVI ofthe Act.
Deduction for corrective action costs for analysis that are not reasonable as submitted.
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 732.606(hh).
A deduction is
being made in the amount of $1,916.00 from the Analysis costs. The
claim contained lab reports from Prairie Analytical for analysis work that suggests the
work was done by their company. If the work was done by Prairie Analytical please
provide
an invoice with dates the work was done and the amounts charged.
Ifthe analytical work was done by USI, to our knowledge USI is not an accredited lab.
35 Ill. Adm.
Code 732.106
35 Ill.
Adm. Code 732.606(i)
35
I1l. Adm,
Code 732.606(q)
A
deduction is being made in the amount of$51.40 from the Field Purchases and Other
Costs. The costs are for shipping costs. A receipt is necessary.
DEO:NW:bjh\072572.doc
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
th
& 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 24, 2007
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 Mahr's Service
&
Sales
sara\wpdocs\USI-Mahrs\Notice.wpd.
William D. Ingersoll
Managing Attorney
III. Environmental Protection Agency
1021 North Grand Ave. East
Springfield, IL 62702
