BEFORE THE ILUNOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILUNOIS

GATEWAY FS, INC.,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB No.

)

(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.

September

7, 2007

GATEWAY FS, INC.

By:

--)

~.t'--~

Mandy L. Cdmbs

One

of its Attorneys

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 Gateway FS, Inc.

Electronic Filing, Received, Clerk's Office, September 7, 2007

* * * * * PCB 2007-126 * * * * *

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

GATEWAY

FS, INC.,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB No. 07-126

)

(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 21, 2007 a copy

of which is attached hereto as Exhibit 1,

petitioner Gateway FS, Inc. ("Gateway") submits this Petition for Review of the

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

Exhibit 2 ("Decision") denying Gateway reimbursement for $1,579.90

in costs

incurred under the LUST program.

Pursuant to

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

the Agency to pay Gateway's 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.

SERVICE OF THE AGENCY'S FINAL DECISION

The Decision indicates it was mailed May 2, 2007. It was received by

Gateway May 4, 2007 and this appeal is timely pursuant to the Board's Order

entered June 21, 2007 a copy

of which is attached as Exhibit 1.

Electronic Filing, Received, Clerk's Office, September 7, 2007

* * * * * PCB 2007-126 * * * * *

III. GROUNDS FOR ApPEAL

A. The Agency's contention that Gateway's 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." Gateway submitted appropriate documentation, which was

ignored by the Agency.

B. The Agency's contention that it cannot determine if the $1,477.07 for

analysis costs and $102.83 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 Gateway FS, Inc. respectfully petitions

the Board to reverse the denial

of reimbursement in the amount of $1,579.90 and

order the Agency to pay Gateway's attorneys' fees for this appeal.

September

6,2007

GATEWAY FS, INC.

//C)/"~7

By.

~~~~-

One of its Attorneys

-2-

r""'~,

lF~O_.~~

Electronic Filing, Received, Clerk's Office, September 7, 2007

* * * * * PCB 2007-126 * * * * *

John 1. 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 Gateway FS, Inc.

MandyCombs\USI\Gateway\Pet for Review.wpd

-3-

Electronic Filing, Received, Clerk's Office, September 7, 2007

* * * * * PCB 2007-126 * * * * *

ILLINOIS POLLUTION CONTROL BOARD

June 21,2007

GATEWAY FS, INC.,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

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

)

PCB 07-126

(UST Appeal)

(90-Day Extension)

On June

6, 2007, the Board received a joint notice to extend the 35-day period within

which Gateway FS, Inc. (Gateway) may appeal a May

2, 2007 determination of the Illinois

Environmental Protection Agency (Agency). According to the joint notice, Gatewayreceived

the Agency determination on May 5, 2007. The joint request was therefore timely filed.

See 415

ILCS 5/40(a)(1) (2006); 35 Ill. Adm. Code 101.300(b)(2), 105.406. The Agency's determination

concerns Gateway's leaking underground storage tank site located at "C" Avenue in Randolph

County. In the determination, the Agency accepted Gateway's Corrective Action Plan but

modified the budget.

\ \R\tv

L--\C/

The Board extends the appeal period until SeptemberY, 2007, as th

rties request,

based on the May

5,2007 decision receipt date.

See

415 ILCS 5/40(a)(1) (2006); 35 Ill. Adm.

Code 105.406. If Gateway 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 21,2007, by a vote of 4-0.

...........

I .

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board

Electronic Filing, Received, Clerk's Office, September 7, 2007

* * * * * PCB 2007-126 * * * * *

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

!Yc/9.-fC/ti

1021

NORTH

GRAND

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 - (31 2) 814-6026

ROD R. BLAGOJEVICH, GOVERNOR

DOUGlAS

P. Scan,

DIRECTOR

217/782-6762

~lAY

0 2

20U1

RECEiveD

MAY 0 41li07

BY:_---

CERTIFIED MAIL #

7004 2510 0001

8623 5709

Gateway FS Inc.

Attention: Greg Birchler/Southwest Bank/Commercial Lending

Jennifer Vescogni-Acct. #0032713725

#2 Carlyle Plaza Drive .

Belleville, Illinois 62221

Re:

LPC #1570405003 -- Randolph County

Prairie

Du Rocher/Gateway FS Inc.

"C"

Avenue

.Leaking UST Incident No. 20000027

Leaking UST FISCAL FILE

Dear

Mr. Birchler:

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 December 29, 200p and was received

by the Agency on January 3, 2007. The application for payment covers the period from July

2006 to November 25,2006. The amount requested is $80,073.20.

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

billing submittal received by the Agency on May

2, 2001 for $9,102.39 and September 5, 2003

for $30,725.15. There are costs from this claim that are not being paid. Listed

Attachment A

are the costs that are not being paid and the reasons these costs are not beingpaid.

On January 3, 2007, the Agency received your application for payment for this claim.

result

ofthe Agency's review ofthis application for payment, a voucher for $78,479.01

win

prepared for submission to the Comptroller'sOffice for payment as funds become available

based uponthe date the Agency received your complete request for payment

of this application

for payment. Subsequent applications for payment that have been/are submitted

win

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 I1lmois

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,

ROCKFORQ - 4302 North Main Street, Rockford,

61103 - (815) 987-7760 •

DES PLAINES - 9511 W. Harrison St" Des Plaines,

60016 - (847) 294-4000

ELGIN - 595 South S\ate, Elgin,

60123 - (847} 608-3131

•

PEORIA - 5415 N. University St., Peoria, 1161614 - (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,

62706 - (217) 786-6892

•

COLLINSVILLE - 2009 Mall Street, Collinsville,

62234 - (618) 346-5120

MARION - 2309 W. Main St., Suite 116, Marion, IL 62959 - (618) 993-7200

Pl;c>INTF'n f"lN 'R1=rYC"'1 F'O PAPl=R

Electronic Filing, Received, Clerk's Office, September 7, 2007

* * * * * PCB 2007-126 * * * * *

Page 2

the 35-day period may be extended for a period

oftime not to exceed 90 days by Written notice

from the owner or operator and the Illinois EPA within the initial 35-day appeal peri9d.

Ifthe

applicantwishes 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

ofthis decision, mustbe 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

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 AvellUe East

Springfield, Illinois.62794-9276

217/782-5544

you have any questions or require further assistance, please contact Niki Weller of my

staff at 217/782--:6762.

ZJ.Y

DO~E.

Oakley, Manager

Leakirig UST Claims Unit

Planning

Reporting Section

Bureau ofLaJJd

DEO:NW:bjh\072431.doc

Attachment

cc:

United Science Industries

Electronic Filing, Received, Clerk's Office, September 7, 2007

* * * * * PCB 2007-126 * * * * *

Attaclnnent A

Accounting Deductions

Re:

LPC #1570405003 -- Randolph County

Prairie

Du Rocher/Gateway FS Inc.

"c"

Avenue

'. Leaking UST IncidentNo. 20000027

Leaking

US! Fiscal File

Citations

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

June 24, 2002, and 35 Illinois Administrative

Co~e

(35 Ill. Adm. Code).

Item #

Description

ofDeductions

$1,579.90,

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 carinot 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)

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

fromthe 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

or$I,477.07 from the Analysis costs. The

claim contained lab reports from Prairie Analytical for analysis work that suggests the

work was done by their company

.. lfthe work was done by Prairie Analytical please "

provide

an invoice with dates the work was done and the amounts charged.

lfthe Analytical work was done by USI, to our knowledge USI is riot an accredited lab.

35 Ill. Adm. Code

732.106

35 Ill. Adm. Code 732.606(i)

Adm. Code 732.606(q)

A deduction is being made in the amount of$102.83 from the Field Purchases and Other

Costs. The costs are for shipping costs. A receipt is necessary.

$189.07, deduction for costs associated with free product removal, 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

Electronic Filing, Received, Clerk's Office, September 7, 2007

* * * * * PCB 2007-126 * * * * *

Page 2

pursuant to Section 57.8(a)(1)

ofthe Act and 35 Ill. Adm. Code 732.601(g) and

732.606(m).

Also, $189.07 (analysis) included in the above deduction. This 'amountis over the

approved budget amount.

$14.29, deduction for corrective action costs for handling charges

on pennits that are not

reasonable as submitted. $uch costs are ineligible for payment from the Fund pursuant to

Section 57.7(c)(4)(C)

of the Act and 35

Ill.

Adin. Code 732.606(hh).

The Agency does not

pay handling charges on pennits.,

DEO:NW:bjh072432.doc

Electronic Filing, Received, Clerk's Office, September 7, 2007

* * * * * PCB 2007-126 * * * * *

CERTiFiCATE OF SERVICE

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,

60601

September 7, 2007

John T. Hundley

Mandy L. Combs

THE

SHARP LAW FIRM, P.C.

P.O.

Box 906 - 1115 Harrison

Mt. Vernon,

62864

618-242-0246

Counsel for Gateway FS, Inc.

sara\wpdocs\USI-Gateway\Notice.wpd

William D. Ingersoll

Managing Attorney

III.

Environmental Protection Agency

1021 North Grand Ave. East

Springfield,

62702

Mandy

L. Combs

Electronic Filing, Received, Clerk's Office, September 7, 2007

* * * * * PCB 2007-126 * * * * *