WATERTOWER MARINA, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
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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
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.
September
fif, 2007
WATERTOWER MARINA, INC.
Mandy
L. Combs
One
of its Attorneys
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 Watertower Marina, Inc.
Electronic Filing, Received, Clerk's Office, September 14, 2007
* * * * * PCB 2007-138 * * * * *
BEFORE THE POLLUTION CONTROL BOARD
OF
STATE OF ILLINOIS
WATERTOWER MARINA, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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)
)
)
PCB No. 07-138
)
(LUST Appeal)
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)
)
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 Watertower Marina, Inc.
("Watertower") submits this Petition for Review
of the Illinois Environmental Protection
Agency ("Agency") decision attached hereto as Exhibit 2 ("Decision") denying Watertower
reimbursement for $1,049.19
in costs incurred under the LUST program.
Pursuant to
§
57.8(1) of the Act, Water Tower further requests the Board to order the
Agency to pay Watertower'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 2 hereto.
II.
SERVICE OF THE AGENCY'S FINAL DECISION
The Decision indicates it was mailed May 11, 2007. It was received by Watertower
May 14, 2007. 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 14, 2007
* * * * * PCB 2007-138 * * * * *
III. GROUNDS FOR ApPEAL
A. The Agency's contention that Watertower's analysis costs "lack supporting
documentation"
is erroneous, arbitrary and capri.cious. Watertower submitted
appropriate documentation, which was ignored by the Agency.
B. The Agency's contention that it cannot determine if the $1,049.19 for
analysis 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 Watertower Marina, Inc. respectfully
petitions the Board to reverse the denial of reimbursement
in the amount of
$1,049.19 and order the Agency to pay Watertower's attorneys' fees for this
appeal.
September
14, 2007
WATERTOWER MARINA, INC.
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 Watertower Marina, Inc.
MandyCombslUSllWatertower/Pet for Review.doc
-2-
Electronic Filing, Received, Clerk's Office, September 14, 2007
* * * * * PCB 2007-138 * * * * *
ILLINOIS POLLUTION CONTROL BOARD
June 21,2007
WATERTOWER MARINA, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD (by G.T. Girard):
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PCB 07-138
(UST Appeal)
(90-Day Extension)
On June 11, 2007, the Board received a joint notice to extend the 35-day period within
which Watertower Marina, Inc. (Watertower) may appeal a May 11, 2007 determination
of the
Illinois Environmental Protection Agency (Agency). According to the joint notice, Watertower
received the Agency determination
on May 14, 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 Watertower's leaking underground storage tank site located at 3112
West Lincoln Road in McHenry County. In the determination, the Agency accepted
Watertower's Corrective Action Plan but modified the budget.
The Board extends the appeal period until September 16,2007,
as the
p~equest,
based on the May 14, 2007 decision receipt date.
See
415 ILCS 5/40(a)(1) (2006); 35 Ill. Adm.
Code 105.406. IfWatertower 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 lllinois Pollution Control Board, certify that
the Board adopted the above order on June 21,2007, by a vote of 4-0.
John T. Therriault, Assistant Clerk
lllinois Pollution Control Board
Electronic Filing, Received, Clerk's Office, September 14, 2007
* * * * * PCB 2007-138 * * * * *
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 NORTH GRAND AVENUE EAST, P.O. Box 19276, SPR1NGFIELD, ILLINOIS 62794-9276 - ( 21 7) 782-3397
JAMES R. THOMPSON CENTER, 100 WEST RANDOLPH, SUITE 11-300, CHICAGO, IL 60601 - (312) 814-6026
MAY 11 2001
217/782-6762
Ro~t:et~lv'EfroR
MAY
11, 2M7
BY;
171po
Water Tower Marina, Inc.
Attn: John Galway c/o Jennifer Vesco
gni
Southwest Bank Acct. #0032713725
#2 Carlyle Plaza Drive
Belleville, Illinois 62221
.J
DOUGLAS
P.
SCOTT, DIRECTOR
CERTIFIED MAIL #
7004 2510 0001 8623 6720
Re:
LPC #1110605146 -- McHenry County
McHenry/Watertower Marina, Inc.
3112 West Lincoln Road
Leaking UST Incident No. 990656
Leaking UST FISCAL FILE
Dear
Mr.
Galway:
The Illinois Environmental Protection Agency has completed the review ofyolli" 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 December 11,2006 and was received
by the Agency
on December 14, 2006. The application for payment covers the period from
August
1,2006 to October 7,2006. The amount requested is $40,058.37.
The deductible amount for this claim is $10,000.00, which was previously deducted from the
billing submittal received
by the Agency on September 23.1999 for $25,080.59. 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 14, 2006, the Agency received your application for payment for this claim. As a
result
ofthe Agency'sreview of this application for payment, a voucher for
$37,972.52~1l
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'sfinal action with regard to the above
application(s) for payment.
ROCKFORD -4302 North Main Street, Rockford, It 61103 - (81 5) 987-7760 •
DES PLAINES - 9511 W. Harrison St., Des Pfaines, IL 60016 - (847) 294-4000
ELGIN - 595 South State, Elgin,
IL
60123 - (847) 608-3131
.. PEORIA - 5415 N. University St., Peoria, It 61614 - (309) 693-5463
BUREAU OF
LAND -
PEORJA - 7620 N. University St., Peoria, 1161614 - (309) 693-5462
~
CHAMPAIGN - 2125 South First Street, Champaign, It 61820- (217) 278-5800
SPRINGFIELD -
4500
S.
Sixth Street Rd., Springfield,
Il
62706 - (217) 786-6892 •
COLLINSVILLE - 2009 Mall Street, Collinsville, It 62234 -(61 8) 346-5;
io
MARION -
2309
W. Main
St., Suite
116, Marion,
IL 62959 -
(618)
993-7200
PRINTED ON
RECYCLED
PAPER
Electronic Filing, Received, Clerk's Office, September 14, 2007
* * * * * PCB 2007-138 * * * * *
Page 2
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 of the Act by filing a
petition for a hearing within 35 days after the date ofissuance ofthe final decision. However,
the
35.dayperiod 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 ofthe
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 infonnation 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, lllinois 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
217/782-5544
If
you have any questions or require further assistance, please contact Doug Tolan of my
staff at
2171782-6762.
Douglas
iJ+£tlio/~
E. Oakley, Manager
Leaking UST Claims Unit
Planning & Reporting Section
Bureau of Land
DEO:DMT:m1s\072377.doc
Attachment
cc:
United Science Industries, Inc.
Electronic Filing, Received, Clerk's Office, September 14, 2007
* * * * * PCB 2007-138 * * * * *
I
Attachment A
Accounting Deductions
Re:
LPC #1110605146 --
McHenry County
McHemylWatertower Marina, Inc.
3112 West Lincoln
Road
Leaking UST Incident No. 990656
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 of Deductions
$1,049.19, 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 detennine that
costs will
not be used for activities in excess ofthose necessary to meet the minimum .
requirements
of Title XVI ofthe Act; therefore, such costs are not approved pursuant to
Section 57.7(c)(4)(C)
ofthe Act because they maybe used for corrective action activities
in excess
ofthose required to meet the minimum requirements ofTitle XVI ofthe Act.
a.
Analytical Costs-lack
ofdocumentation-no invoices
2.
$1,036.66, deduction for corrective action costs 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).
Deduction for costs associated with 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)(I)
ofthe Act and 35
m.
Adm.
Code 732.601 (g) and 732.606(m).
b.
Analytical-unreasonable and beyond the high priority budget
in
regard to the
itemized costs larger than the amounts
in
the approved budget
=
$25.53:
BTEX::::; $87.37/each; $85/each approved; $2.37/each x 9
=
$21.33
Sample shipment
=
$51.40/each;
$50/each
approved; $1.40/each x 3
=
$4.20
Remediation
&
Disposal- unreasonable
&
beyond the high priority budget
in
regard to the itemized costs larger then the amounts in the approved budget ::::;
$654.82
Contaminated backfill
=
$58.59/CY; $57/CY
approved; $1.59/CY x
---?
$189.19ICY
=
$300.82
-
Electronic Filing, Received, Clerk's Office, September 14, 2007
* * * * * PCB 2007-138 * * * * *
Page 2
jf£ll---
Clean backfill = $20.56/CY; $20/CY approved; $0.56/CY x $196.43/CY =
* J/f{-
1
---3' $110.00
MJ/;
pJ</;.?
Contaminated water
=
$0.70/Gal.; $0.68/Gal. approved; $0.02/Gal.
X
12,200
)l4/
oQ
Gal. = $244.00
fl.
0'
c.
Consultants Fees- unreasonable & beyond the high priority budget in regard to the
A
itemized costs larger then the amounts
in
the approved budget =$356.31:
"
I-//D1
Personnel- Sr. P.M. = $102.761hr.; $100fhr. approved; $2.761hr.
x
7.25
=
.
Nr~?
j}o
I.
$20.01
(7-f. .
Personnel- Acct. Tech III = $46.24/hr.; $45/hr. approved; $1.24/hr.
x
2.75 =
$3.41
Personnel- Sr. P.E = $J33.60/hr.; $130/hr. approved; $3.60/hr.
X
0.5
=
$1.80
Personnel- Sf. AceL Tech
=
$56.52/hr.; $55/hr. approved; $1.52/hr. x 0.5
=
$0.76
Personnel- Sr. Tech
=
$66.80/hr.; $65/hr. approved; $1.80/hr. x 38 =$68.40
Personnel- Sr. Adm. Asst. = $46.24/hr.; $45/hr. approved; $1.24/hr. x 4.75
=
$5.89
Personnel- Sr. P.E.
=
$133.60/hr.; $130/hr. approved; $3.60/hr. x 0.75
=
$2.70
Personnel- Sr. P.M.
=
$102.76/hr.; $100/hr. approved; $2.76/hr. x 86.5
=
$238.74
Materials-Vehicle
=
$61.64/DA; $60/DA approved; $1.64/DA x 5::= $8.20
Materials - PID
=
$ 107.92/DA; $105/DA approved; $2.93/DA x 2
=
$5.84
Materials - Camera
=
$1O.28/DA; $lO/DA approved; $O.28/DA x 2
=
$0.56
DMT:mls/072378.doc
\
Electronic Filing, Received, Clerk's Office, September 14, 2007
* * * * * PCB 2007-138 * * * * *
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RAMADA WORLDWIDE INC.,
a Delaware corporation,
Plaintiff,
v.
LEECO II,
L.L.c.,
an Illinois Limited
Liability Company,
CHOL CHE
"RICHARD" LEE, and BOK CHE
"BOB" LEE, individuals,
Defendants.
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06-793-JPG-DGW
STIPULATION
OF DISMISSAL WITH PREJUDICE
Plaintiff Ramada Worldwide Inc. and defendants, Leeco II, LLC, Chol Che "Richard"
Lee, and Bok Che "Bob" Lee (collectively the "Parties"), hereby advise the Court that they have
reached a Settlement Agreement of the claims in this matter.
Subject to the approval of this Court, the Parties agree to the entry of the attached Order
of Dismissal. The Order contains a dismissal of Plaintiffs Complaint with prejudice and without
costs against any party, subject to the terms and conditions of the Settlement Agreement between
the parties.
Respectfully submitted,
PLAINTIFF RAMADA WORLDWIDE INC.,
FORMERLY KNOWN AS RAMADA
FRANCHISE SYSTEMS, INC.
By: sf John
T. Hundley
John
T. Hundley
THE SHARP LAW FIRM, P.C.
1115 Harrison - P.O. Box 906
Mt. Vernon, IL 62864
Phone: (618) 242-0246
Fax: (618) 242-1170
Email: jhundley@lotsharp.com
DEFENDANTS LEECO II, LLC; CHOL CHE
"RICHARD" LEE; AND BOK CHE "BOB"
LEE
By: sf David
K. Simkins (with consent)
David
K. Simkins
WUESTLING
&
JAMES, LC
720 Olive St., Suite 2020
St. Louis, MO 63101
Phone: (314) 421-6500
Fax: (314) 421-5556
Email: simkins@wuestlingandjames.com
Electronic Filing, Received, Clerk's Office, September 14, 2007
* * * * * PCB 2007-138 * * * * *
CERTIFICATE OF SIGNATURE
I hereby certify that I have David
K. Simkins, counsel for defendants in the above-
entitled action, has expressly agreed to both the form and substance
of the foregoing
Stipulation
Of Dismissal With Prejudice
and to both the form and substance of the
Agreed Order Of
Dismissal With Prejudice
which is referenced in said Stipulation, was attached to said Stipulation
when approved by
Mr. Simkins, and has been e-mailed to the Court pursuant to local rules.
September
14, 2007
THE SHARP LAW FIRM, P.C.
By:
sl John Hundley
John
T. Hundley Bar Number: 3123403
Attorney for Plaintiff
THE SHARP LAW FIRM, P.C.
1115 Harrison - P.O. Box
906
Mt. Vernon, IL 62864
Telephone: (618) 242-0246
Fax: (618) 242-1170
CERTIFICATE OF SERVICE
I hereby certify that on September 14, 2007, I electronically filed the foregoing
Stipulation of Dismissal with
Prejudice with the Clerk of the Court using the
CMIECF
system
which will send notification
of such filing to:
David Simkins
simkins@wuestlingandjames.com
September 14,2007
THE SHARP LAW FIRM, P.C.
By:
sl John Hundley
John
T. Hundley Bar Number: 3123403
Attorney for Plaintiff
THE SHARP LAW FIRM, P.C.
1115 Harrison - P.O. Box 906
Mt. Vernon, IL 62864
Telephone: (618) 242-0246
Fax: (618) 242-1170
Brenda\Ramada\Leeco\StipMotionDismiss3.pdf
Electronic Filing, Received, Clerk's Office, September 14, 2007
* * * * * PCB 2007-138 * * * * *
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
September
14
, 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 Watertower Marina,
Inc.
sara\wpdocs\USI-Watertower\Notice.wpd
William D. Ingersoll
Managing Attorney
III. Environmental Protection Agency
1021 North Grand Ave. East
Springfield, IL 62702
Mandy
L. Combs
Electronic Filing, Received, Clerk's Office, September 14, 2007
* * * * * PCB 2007-138 * * * * *
