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Control
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2008
LINOIS
Board
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Interstate Oil, Inc., with respect
to NPDES Permit IL0072702
Petitioner
v.
?
PCB 08-38
(NPDES Fee Appeal))
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached AMENDED
PETITION FOR APPEAL OF ILLINOIS ENVIRONMENTALPROTECTION
AGENCY DETERMINATION REGARDING NPDES PERMIT IL0072702 in the
cpationed matter by U.S. Mail, upon the following persons:
Alec Messina, Chief Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Connie Tonsor
Managing Attorney Water Programs
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276, Mail Code 21
Springfield, Illinois 62794-9276
endy
es e
for Richmond Breslin LLP
Date: February 6, 2008
Kendy M. Hess
RICHMOND BRESLIN LLP
2273 Canyon Boulevard
Boulder, CO 80302
(303) 442-0311
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Interstate Oil, Inc., with respect
to NPDES Permit IL0072702
PoSI;
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Petitioner
v.
?
PCB 08-38
(NPDES Fee Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent
AMENDED PETITION FOR APPEAL OF ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY DETERMINATION REGARDING
NPDES PERMIT IL0072702
Petitioner, Interstate Oil, Inc. hereby submits this Amended Petition for
appeal of the Illinois Environmental Protection Agency ("Agency") determination
regarding NPDES Permit IL0072702 ("Permit"), petitioning the Pollution Control Board
("Board") to reverse its dismissal of the previously filed Petition and again requesting a
hearing to appeal the Agency's determination that Petitioner owes certain fees in
connection with the Permit. This Amended Petition is submitted pursuant to a Board
Order dated January 10, 2008 ("Order", copy attached hereto as Attachment 1) in which
the Board refused Petitioner's appeal, requesting further information about the ability of
Petitioner's counsel to practice in Illinois and the timeliness of the filing. Petitioner
requests that the Board find (a) that the Agency issued a "final determination" on
December 12, 2007 when it terminated negotiations with Petitioner, (b) that Petitioner's
December 17, 2007 petition ("Petition", copy attached hereto as Attachment 2) was thus
timely filed, and (c) that the Board is thus properly authorized to review the Petition on
Printed on recycled paper.
its merits, and Petitioner respectfully requests that the Board then proceed with its review
of the Petition.
I.
Procedural History
Petitioner first received notice of the fees associated with the Permit in
March 2007, when the current owner of Petitioner's former property forwarded a notice it
received from the Agency. It was at this point that Petitioner discovered that the Agency
had been sending fee notices associated with the Permit to an old address for Petitioner,
rather than using either the address identified in the Permit application or the address for
Petitioner's consultant, whom Petitioner had designated as the primary point of contact
for all matters related to the Permit. Petitioner promptly contacted the Agency to inform
the Agency of its correct address, only to discover that the Agency had had the correct
address since the second term of the Permit (to which the fees related). Petitioner filed an
official protest with the Agency on August 23, 2007 and the Agency issued an October
24, 2007 response (copy attached hereto as Attachment 3), which Petitioner received on
October 29, 2007. In this response, the Agency reduced its demand but did not
acknowledge its failure(s) to notify and made no concession on those grounds.
On November 20, 2007 the Agency granted Petitioner's request to extend
the time available to Petitioner for appeal, so that the parties could discuss the possibility
of settlement (as documented in a November 20, 2007 email, copy attached hereto as
Attachment 4). Petitioner explicitly requested the extension in an effort to resolve the
dispute without filing an appeal with the Board, while making it clear that Petitioner
intended to file an appeal with the Board if it was not possible to resolve the dispute via
2
negotiation. In granting the extension to allow further discussion, the Agency necessarily
agreed to reconsider its position. The Agency never suggested that it did not have the
authority to grant the requested extension.
Over the next three weeks Petitioner contacted the Agency repeatedly,
requesting a brief phone call to discuss the matter. The Agency responded sporadically
to emailed requests, engaging in substantive discussion of the matter, but never made
itself available for a call. On December 12, 2007 the Agency issued its final decision
(copy attached hereto as Attachment 5): unmoved by the considerations raised by
Petitioner in the email dialogue, the Agency opted to litigate. Petitioner submitted its
appeal with the Board on December 14, 2007, with a final filing date of December 17,
2007.
On January 10, 2008 the Board issued the Order refusing Petitioner's
appeal, citing concerns about the ability of Petitioner's counsel to practice in Illinois and
the timeliness of the filing. The Board requested that Petitioner file an Amended Petition
by February 13, 2008, curing these informational deficiencies. Consequently, Petitioner
is submitting this timely Amended Petition for Hearing and Appeal.
II.?
Grounds for Appeal
The grounds for Appeal of the Agency's determination remain the same as
those addressed in the Petition, attached hereto as Attachment 1; the purpose of this
Amended Appeal is to address the informational deficiencies noted in the Board's Order.
With respect to counsel's ability to practice in Illinois, counsel has been
licensed to practice in Illinois continuously since November 1993. Counsel filed an
3
Appearance with the Board on February 1, 2008 (attached hereto as Attachment 6) which
included documentation in support of this assertion.
With respect to the timeliness of the Appeal, as noted above, Petitioner
filed an official protest with the Agency in August 2007. The Agency issued its first
response in October 2007. This response was identified as a "final action", but the
Agency nonetheless agreed to reconsider its position at the request of Petitioner's counsel
and then engaged in discussion with regard to the same. Petitioner's counsel corrected
certain factual errors in the Agency's understanding of the case and pointed out statutory
provisions that the Agency had not taken into consideration in its issuance of the October
2007 response. The Agency nonetheless opted for an administrative appeal process
rather than a negotiated settlement, and communicated this final decision to Petitioner's
counsel on December 12, 2007. Despite the informality of this final decision, it is clear
that the October 2007 was not in fact a "final action" by the Agency because the Agency
itself agreed to reconsider it and in fact did so. The December 2007 decision was in fact
a "final action" in that it was the Agency's final conclusion on the matter after discussion
and reconsideration of the institial action. Petitioner respectfully requests that the Board
recognize it as such. As Petitioner filed its appeal within five days of being informed of
this "final action", the appeal was timely filed.
To the extent that the Agency did not have the authority to reconsider its
own position, the Agency misled Petitioner in agreeing to an "extension" that it did not
have authority to grant. If the Agency had refused Petitioner's request for an extension,
either on the grounds that it was not willing to reconsider its position or that it lacked the
authority to do so, Petitioner would have filed its appeal immediately. As demonstrated,
4
Petitioner was able to file its appeal within five days of receiving notice of the Agency's
final action. In that case, Petitioner would have filed by November 25, 2007 – well in
advance of the December 3, 2007 deadline (counting from Petitioner's receipt of the
initial determination on October 29, 2007).
Petitioner sought only to save both the parties and the Board a time-
consuming and expensive appeal for a matter that seemed easily resolved by discussion.
If the Board finds that the Agency's December 12, 2007 decision is not a "final action", it
necessarily finds that the Agency (willfully or otherwise) misrepresented its own
authority and abused that apparent authority in a way that denied Petitioner the possibility
of appealing an Agency decision. Such an interpretation of the facts slights the
competence and good intent of the Agency, and penalizes Petitioner for the entirely
reasonable and arguably generous effort to avoid unnecessary expenditure of Agency and
Board resources (as well as Petitioner's own). Further, when the facts of a case are not
determinative, there is an established practice of interpreting the facts so as to maximize
the access of petitioners to the judicial process, and to minimize the likelihood that
substantive decisions will be made on procedural grounds. While the facts speak for
themselves, considerations of justice and public policy also militate in favor of the Board
recognizing the December 12, 2007 decision as a final action.
III.
Conclusion and Prayer for Relief
For the foregoing reasons, Petitioner respectfully requests that the Board
find that (a) the Agency's decision to litigate this matter, reached after substantive
discussion with Petitioner and documented in its December 12, 2007 email to Petitioner's
5
counsel, constitutes a "final action" such that the 35-day period to appeal began on that
day, (b) that Petitioner's December 17, 2007 Petition was thus timely filed, and (c) that
the Board is thus properly authorized to review the Petition on its merits, and Petitioner
respectfully requests that the Board then proceed with its review of the Petition.
Respectfully submitted,
Interstate Oil, Inc. with respect to
NPDES Permit IL0072702
Kendy M. Hess
RICHMOND BRESLIN LLP
2273 Canyon Boulevard
Boulder, CO 80302
(303) 442-0311
6
ATTACHMENT
1
January 10, 2008 Order of the Board
denying Petitioner's appeal and requesting an Amended Petition
ILLINOIS POLLUTION CONTROL BOARD
January 10, 2008
INTERSTATE OIL, INC.,
Petitioner,
v.
?
PCB 08-38
(NPDES Fee Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD (by G.T. Girard):
On December 17, 2007, Interstate Oil, Inc. (Interstate Oil) filed a petition (Pet.) asking
the Board to review a final determination of the Illinois Environmental Protection Agency
(Agency). The determination concerns the Agency's assessment of fees associated with the
National Pollutant Discharge Elimination System (NPDES) permit issued for Interstate Oil's
facility in Shorewood, Will County.
See
415 ILCS 5/5(d), 12.5, 13, 13.3, 40(a)(1) (2006); 35 I11.
Adm. Code 105.204(0. Interstate Oil filed the requisite $75 filing fee on December 20, 2007.
See
415 ILCS 5/7.5 (2006); 35 Ill. Adm. Code 101.302(e)(3). For the reasons below, the Board
declines to accept Interstate Oil's petition for hearing but grants Interstate Oil leave to file an
amended petition.
In its petition, Interstate Oil requests a hearing on the Agency's final determination that
the company "owes certain fees" totaling $38,750 in connection with NPDES permit No.
IL0072702. Pet. at 1, 3. The petition asserts that its is "submitted pursuant to 415 ILCS
5/12.5(b) and 35 Ill. Admin. Code §105.100
et seq."
Pet. at 1. Interstate Oil claims that the
Agency violated Section 12.5(b) of the Environmental Protection Act (415 ILCS 5/12.5(b)
(2006)) by failing to give the company proper notice of the NPDES permit fees. Pet. at 1.
Section 12.5(b) states that the Agency "shall send a fee notice by mail to each existing permittee
subject to a fee under this Section at his or her address of record." Pet. at 2, quoting 415 ILCS
5/12.5(b) (2006). This failure of the Agency to comply with its statutory obligation, according to
Interstate Oil, harmed the company, which would have otherwise sought to terminate the permit
and thereby avoid the demanded $38,750 in fees. Pet. at 1, 3-5. Interstate Oil seeks a Board
ruling that the company is not liable for these charges. Pet. at 1, 5.
Interstate Oil attaches to its petition an Agency letter of October 24, 2007, stating that
"[Oils determination of fee amount constitutes final action by the Agency regarding your
dispute." Pet., Attachment 4. According to the petition, the Agency on November 20, 2007,
"granted Petitioner's request to extend the time available to Petitioner for appeal," so that
settlement could be
pursued. Pet. at 3. However, continues Interstate Oil, the Agency "issued its
second 'final action' denying Petitioner's protest on December 12, 2007."
Id.
2
The Board cannot accept Interstate Oil's petition as filed. Any appeal of a final Agency
determination must be filed within 35 days after service. The appeal period may be extended
only by Board order if a joint request for extension is filed with the Board within the original 35-
day period.
See
415 ILCS 5/40(a)(1) (2006); 35 III. Adm. Code 105.206(a), (c), 105.208(a). If a
petition is not timely filed, the Board lacks jurisdiction to hear the appeal.
See, e.g.
Illinois
Ayers Oil Co. v. IEPA
PCB 05-48 (Mar. 17, 2005) ("The Board has consistently held that the
Board cannot and does not accept petitions for review filed outside the statutory time deadline.").
In addition, a petition for review must attach the final Agency determination being appealed and
state when the determination was served on petitioner.
See
35 III. Adm. Code 105.210(a), (b).
Here, the Board did not receive a request from the Agency and Interstate Oil to extend
the 35-day period for appealing the Agency's October 24, 2007 final determination.
Accordingly, any appeal of that determination was due 35 days after Interstate Oil was served
with the determination. Interstate Oil's petition, however, does not state when the October 24,
2007 determination was served on the company. Further, Interstate Oil asserts that the Agency
issued a "second 'final action' on December 12, 2007, but the petition fails to attach that
determination. The Board directs Interstate Oil to file an amended petition by February 13,
2008, curing these informational deficiencies. Failure to do so will subject this appeal to
dismissal.
See
35 III. Adm. Code 105.108.
In addition, Interstate Oil's petition was filed by a Boulder, Colorado attorney without an
appearance and without any indication that she is licensed and registered to practice law in
Illinois. By February 13, 2008, counsel for Interstate Oil must file either an appearance
documenting that she is licensed and registered to practice law in Illinois or an appearance
accompanied by a motion to appear pro
hac vice. See
35 III. Adm. Code 101.400(a).
The 120-day statutory period for the Board to render a final decision will commence
upon the filing of the amended petition.
See
35 Ill. Adm. Code 105.114(6). The Agency record
must be filed within 30 days after Interstate Oil files the amended petition.
See
35 Ill. Adm.
Code 105.116, 105.212.
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 January 10, 2008, by a vote of 4-0.
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
ATTACHMENT
2
Petitioner's December 17, 2007 petition ("Petition")
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Interstate Oil, Inc., with respect
to NPDES Permit IL0072702
Petitioner
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent
PETITION FOR APPEAL OF ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY DETERMINATION REGARDING
NPDES PERMIT IL007270Z
Petitioner, Interstate Oil, Inc. hereby submits this Petition For Appeal of
the Illinois Environmental Protection Agency Determination Regarding NPDES Permit
1L0072702 ("Permit') and Hearing to appeal the Illinois Environmental Protection
Agency's ("Agency") final determination that Petitioner owes certain fees in connection
with the Permit. This Petition is submitted pursuant to 415 ILCS 5/12.5(b) and 35 M.
Admin. Code §105.100
et seq.
Petitioner requests that the Board find that (a) the Agency
failed to give proper notice to Petitioner of the fees associated with the Permit, in direct
violation of 415 ILCS 5/12.5(b), (b) that Petitioner was harmed by this failure to give
notice, and (c) that Petitioner is therefore not liable for said fees, and hold a hearing with
respect to the issues discussed in this Petition.
I.
?
Procedural History
Petitioner initially obtained the Permit for use at 312 East Jefferson Street
in Shorewood, Illinois. Petitioner made no use of the Permit, and it expired on April 30,
Printed on recycled paper.
2003. Petitioner submitted an application for renewal of the Permit on April 29, 2003
(partial copy attached hereto as Attachment 1). In the application, Petitioner provided its
current address and identified Petitioner's consultant, Pioneer Engineering and
Environmental Services ("Pioneer"), as the primary contact for all correspondence with
respect to the Permit. Both Petitioner and Pioneer then received from the Agency a July
22, 2005 notice regarding the public fact sheet for the permit application, an August 22,
2005 copy of the draft permit, and a September 28, 2005 copy of the approved permit at
their respective addresses as identified in the Permit application.
Illinois law (415 ILCS 5/12.5(b)) expressly stipulates that the Agency
"shall send a fee notice by mail to each existing permittee subject to a fee under this
Section at his or her address of record" –
i.e. at
the address identified in the permit
application. None of the Agency's correspondence with Petitioner or with Pioneer
regarding the Permit made any mention of fees.
In February 2007 the Agency sent a fee notice to the current owner of the
Shorewood property, BP, and BP forwarded it to Petitioner in March 2007. This was the
first notice that Petitioner received of the
fees
associated with the Permit: a demand for
$50,507.20 (inclusive of penalties for non-payment of earlier invoices). It was at this
point that Petitioner discovered that the Agency had been sending fee notices associated
with the Permit to an old address for Petitioner, rather than using either the address
identified in the Permit application or the address for Pioneer, whom Petitioner had
designated
as the
primary point of contact for all matters related to the Permit. Petitioner
promptly contacted the Agency to inform the Agency of its correct address, only to
2
discover that the Agency already had the correct address on file (but for a minor error in
suite number) (see Attachment 2).
Petitioner filed an official protest with the Agency on August 23, 2007,
citing both (1) the lack of notice to itself and its designated point of contact, and (2)
inappropriate invoicing for 2004, 2005, and a portion of 2006, during which time
Petitioner was not in possession of a valid permit (copy attached hereto as Attachment 3).
The Agency issued an October 24, 2007 letter designated as its "final action" (copy
attached hereto as Attachment 4). In this letter, the Agency acknowledged that it had
inappropriately invoiced Petitioner for those time periods and reduced its demand to
$38,750.00. The Agency did not acknowledge its failure to notify, and made no
concession on those grounds. On November 20, 2007 the Agency granted Petitioner's
request to extend the time available to Petitioner for appeal, so that Petitioner and Agency
could attempt to settle without filing. The Agency issued its second "final action"
denying Petitioner's protest on December 12, 2007.
The Agency's failure to provide notice to Petitioner is in direct violation
of 415 ILLS 5/12.5(b) and harmed Petitioner by denying Petitioner the opportunity to
terminate the Permit and avoid incurring the fees. Consequently, Petitioner is submitting
this timely Petition for Hearing and Appeal of that portion of the Agency's determination.
II.
Grounds for Appeal
The grounds for appeal in this matter are quite simple. The Agency has a
statutory obligation to notify permittees of the fees associated with their permits. The
Agency failed to provide this notice to Petitioner or Pioneer (Petitioner's designated
point
of contact) despite repeated correspondence with Petitioner and Pioneer regarding other
3
matters associated with the Permit. The Agency's failure to notify Petitioner of the
fees
harmed Petitioner: Petitioner has made no use of the Permit, and would have
immediately terminated the Permit if the Agency had fulfilled its obligation to notify
Petitioner of the fees that would be incurred. The Agency's failure to fulfill its obligation
denied the Petitioner this opportunity. The Agency then exacerbated the harm by failing
to use either the address Petitioner provided in its permit application or the address
Petitioner provided for Pioneer for invoicing, despite the Agency's continued use of both
those addresses for other correspondence. As a result, Petitioner incurred three years
worth of fees, plus interest and penalties, before ever having the opportunity to address
the issue.
The Agency does not deny that it failed to notify Petitioner regarding the
fees, in violation of 415 ILCS 5/12.5(b). Instead, the Agency has taken the position that
it is not responsible for the harm to Petitioner because Petitioner did not notify the
Agency of a change in Petitioner's address. However, Petitioner did in fact notify the
Agency of its new address in 2003, as evidenced by the Permit application itself and the
Agency's continued and successful use of that address. There has been no significant
change to Petitioner's address since that time — only a change of suites. The Agency
acknowledged in a November 30, 2007 email that this was not a significant change to
Petitioner's address, and it has had no effect on the Agency's ability to contact Petitioner.
Again, the Agency has made consistent and effective use of Petitioner's address in all
matters unrelated to the fees.
4
III. Conclusion and Prayer for Relief
The Agency's failure to fulfill its statutory obligation to notify Petitioner
of the fees associated with the Permit harmed Petitioner by denying Petitioner the
opportunity to avoid incurring the fees by simply terminating the Permit, which Petitioner
was not using. Similarly, the Agency's use of a defunct address for invoices associated
with the Permit, instead of the current address used for all other correspondence,
exacerbated the harm by causing Petitioner to accumulate three years worth of fees and
penalties with no opportunity to avoid them by terminating the Permit.
WHEREFORE, for the foregoing reasons and the reasons set forth in
correspondence with the Agency, the Petitioner respectfully petitions the Board for a
hearing to address the issues raised in this Appeal or to find that the Agency's
determination was in error and that Petitioner has no obligation to pay the $38,750.00
fees that it incurred without its lmowledge or consent. Alternatively, as of summer 2007
the Agency's website regarding NPDES fees (http://www.epa.state.il.us/fees/npdes.html)
provided that "[if] the termination request is received after July 1 [2003], but the permit
holder can demonstrate that the discharge had ceased prior to that date, they are not liable
for the fee." The website has since been altered, but this was the Agency's public
position at the time of Petitioner's protest. As there has been no discharge since July 1,
2003 (or indeed, ever), Petitioner respectfully requests that it be allowed to terminate the
Permit and be absolved of any obligation with respect to these charges.
5
Respectfully submitted,
Interstate Oil, Inc. with respect to
NPDES Permit 1L0072702
By:
Kendy M. Hess
RICHMOND BRESLIN LLP
2273 Canyon Boulevard
Boulder, CO 80302
(303) 442-0311
6
ATTACHMENT 1
April 29, 2003 Application for Permit Renewal
(partial copy)
PI
NEER
Engineering &
Environmental
Services, Inc.
700 North Sacramento Boulevard, Suite 101 • Chicago, Illinois 60612
312.587.1021 • Fax: 312.587.8210
www.pioneerenvironmental.corn
April 29, 2003
Illinois Environmental Protection Agency
Division of Water Pollution Control
Permit Section
1021 North Grand Ave. East
P.O. Box 19276
Springfield, IL 62794-9276
Attn: Rick Pinneo
RE: NPDES Permit Renewal Application
NPDES Permit No. 1L0072702
Former
Gas
Center (Interstate Oil)
312 East Jefferson Street
Shorewood, Illinois
Pioneer Project No. 97760B
Dear Mr. Pinneo:
Pioneer Engineering & Environmental Services, Inc. (Pioneer) is providing the attached NPDES
permit forms (US EPA Forms 1 and 2C) in order to renew NPDES Permit No. IL0072702. A
dual-phase extraction system was proposed to the Illinois EPA's Leaking Underground Storage
Tank (LUST) Section and approved to remediate petroleum-impacted soil, bedrock, and
groundwater associated with two LUST incidents (#930099 and #971400). However, due to
redevelopment plans, the full system has not been installed to date. The impacted groundwater
(outfall 001) that will be recovered
will be treated
by air stripping and will
be
discharged to the
Dupage River via an IDOT storm sewer. Please note that a brief pilot study (one day – March 8,
1999)) was conducted, and Pioneer did not collect samples of the recovered water during the
pilot test. Therefore, information regarding pollutant concentrations was either not available (oils
and grease and lead) for inclusion in the attached applications or were estimations based on
modeling results of the air stripper performance (benzene, toluene, ethylbenzene, and total
NPDES Permit Renewal Application
NPDES Permit No. t0072702
Former Gas Center (Interstate Oil)
312 East Jefferson Street
Shorewood, MIS
Pioneer Project No. 977608
April 29, 2003
Page 2 of 2
xylenes). The air stripper design information and modeling results are provided as an attachment
to the permit forms.
Please note that Pioneer performs all current NPDES DMR reporting on behalf of the
owner/operator and documentation regarding this permit renewal should also be directed to
Pioneer at the address listed above.
Pioneer appreciates your time with this matter and please contact me at (312) 587-1021 with any
questions or comments.
Sincerely,
PIONEER ENGINEERING & ENVIRONMENTAL SERVICES, INC.
n..-
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isa A. Bongi
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Je r4T. McClelland, P.E.
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ATTACHMENT 2
July 30, 2007 Richmond Breslin letter to Agency re: change of address
RICHMOND
BRESLIN LLP
?
Kertdy M. Hess
(303) 442-0311
Ichesserb-11p.com
July 30, 2007
Via
Fax
and First Class IVIMI
Illinois Environmental Protection Agency
Bureau of Water – Division of Water Pollution Control
Permit Section
1021 N. Grand Avenue East
PO Box 19276
Springfield, Illinois 62794-9276
Attn: Richard Pinneo
Re: Interstate Oil
NPDES Permit No: IL0072702
Change of Address
Mr. Pinneo:
As we discussed on July 27, 2007, I am writing to notify the IEPA-DWPC of a
change of address for my client, Interstate Oil (which holds the referenced permit).
When we spoke on the phone you gave the following address for my client:
Interstate Oil
625 Broadway, Suite 700
San Diego, CA 92101
This is slightly incorrect: mailings should be addressed to Suite 915, not to Suite 700.
Upon my review of the file for this permit, however, I see that you have had and
have been using the San Diego address for my client since at least July 2005. It was at
that point that you notified my client (and his consultant, Pioneer) that you had reviewed
his application and planned to begin the public notification process prior to issuing the
permit. With this, I am a little confused by
the
IEPA's inability to locate my client and
notify him of the fees associated with that permit. I had understood that you had and
were using the old Chicago address: 4701 S. Central, Chicago, IL 60638. That would
explain why we never received notification, but it's clear from the file that that was not
the case.
endy .
ess
for Richmond Breslin LLP
RICHMOND
BRESLIN LLP
Richard Pinneo
July 30, 2007
Page 2 of 2
In the future, please use the San Diego address for
all
mailings directed to my
client — this is the address identified on the April 29, 2003 application for permit renewal.
Additionally, we would appreciate it if you would continue with your standard process of
including our consultant, Pioneer, in all correspondence. The April 29, 2003 renewal
application explicitly states that "Pioneer performs all current NPDES DMR reporting on
behalf of the owner/operator and documentation regarding this permit renewal should
also be directed to Pioneer at the address listed above." All of the correspondence other
than the fee notices followed this practice, with good results.
Thank you.
cc:?
Emanuel Torbati (Interstate Oil)
Jeffrey McClelland (Pioneer Environmental)
ATTACHMENT 3
August 23, 2007 Richmond Breslin letter to Agency re: protest of fees
RICHMOND
BRESLIN LP
Kendy M. Hess
2273 Canyon Blvd.
&Adder, CO 80302
(303) 442-0311
khess@rb-Up.corn
August 23, 2007
Via Fax and
First Class Mail
Illinois Environmental Protection Agency
Bureau of Water – Division of Water Pollution Control
Permit Section
1021 N. Grand Avenue East
PO Box 19276
Springfield, Illinois 62794-9276
Attn: Brian Cox
Re:
Interstate Oil
NPDES Permit No: IL0072702
Permit fees
Dear Mr. Cox:
I represent Interstate Oil, the permittee under the captioned permit. The permit
was issued September 28, 2005, but my client was not notified of the fees required by the
permit until BP (the current property owner) contacted us in March 2007. While the
regular correspondence regarding the permit application was addressed to my client at its
current address and included the consultant (consistent with the permit application), the
Agency used an old address for my client for separate correspondence regarding the fees.
I believe we've straightened out the confusion about the addresses at this point, but the
two (or three, or four) year delay in notification for the fees has led to a rather
complicated situation.
To review, we submitted our application for this permit on April 29, 2003,
providing the current address for my client and asking that Pioneer Environmental act
as
the primary contact for all correspondence. We received a July 22, 2005 notice regarding
the public fact sheet for the permit application, an August 22, 2005 copy of the draft
permit, and a September 28, 2005 copy of the approved permit. None of this
correspondence mentioned the fees associated with the permit, despite the fact that 415
ILCS 5/12.5(b) expressly stipulates that the Agency must notify each existing permittee
of the fees associated with its permit. The permit authorizes the discharge of industrial
waters impacted by toxic or hazardous substances (in connection with a remediation) in
BRESLIN
RICHMOND
:as
LLP
Brian Cox
August 23, 2007
Page 2 of 3
an amount of less than 250,000 gpd, so the fee is $15,000/year. In March 2007, BP
forwarded to us an IEPA demand for $50,507.20 (inclusive of penalties for non-payment
of earlier invoices, which were sent to the wrong address and never received by my
client). The Agency has since agreed to waive the penalties, which we very much
appreciate, but that still leaves my client with a bill for $45,000. We have already
requested an extension from the Agency in order to resolve the confusion over these fees.
There are three problems.
First, even assuming that my client is responsible for any payment at all, the
amount is incorrect. The permit was issued effective October 2005. With that, the most
that my client could possibly be asked to pay is $30,000 (for 2006 and 2007) together
with the appropriate proration for the three months of 2005. While the current permit is
technically a renewal of a previous permit, more than two years lapsed between our
request to renew that permit and the Agency's approval. During that time we were
forbidden to discharge, so we can't really be said to have been in possession of a valid
permit. Holding my client responsible for permit fees for the time prior to permit
approval would essentially put the Agency in the odd position of charging $15,000/year
for reviewing permit renewal applications. I'm sure that isn't the position that the
Agency wishes to take, or the position that the Agency wishes to force upon its
applicants. It would certainly establish some unfortunate incentives for the Agency.
Second, given the Agency's failure to notify my client of the fees associated with
this project (in direct violation of 415 ILCS 5/12.5(b)), it is inappropriate to hold my
client responsible for
any
of the fees associated with this permit. The provisions at 415
ILCS 5/12.5(b) expressly stipulate that the Agency "shall send a fee notice by mail to
each existing pennittee subject to a fee under this Section at his or her address of record"
–
i.e. at
the address identified in the permit application. Instead of using the address
identified on the permit application – the same address the Agency used for all other
correspondence regarding the permit – the Agency used an invalid address. By this
action the Agency harmed my client, denying my client the opportunity to reconsider its
decision to make use of a NPDES permit or to reconsider the timing on the application.
We have yet to make use of this permit. Had we had any idea of the costs associated with
an inactive permit, we would not have applied for it when we did or would have promptly
terminated it as soon
as
it became apparent that we would not be able to make use of it.
Without notification of the fees, neither of those opportunities was available to my client.
Frankly, it seems profoundly inappropriate that the Agency benefit to the tune of $50,000
for its use of an invalid address, especially when the application for the permit in question
identified an appropriate address (paired with the fail-safe mechanism of including the
consultant on all correspondence) and the Agency made use of that address and fail-safe
with good results for all other correspondence. As a policy, again, this would establish
some decidedly unfortunate incentives for the Agency.
Third, if we cannot find any other way to resolve this difficulty, my client will
have little choice but to simply submit a termination notice and reapply for the permit.
We have never made use of this permit, we are not in a position to make use of the permit
at this time, and cannot say with any surety when we will
be in a
position to make use of
Very ly yours,
Kend
Hess
for Richmond Breslin LLP
RICHMOND
BRESLIN LP
Brian Cox
August 23, 2007
Page 3 of 3
the permit
(as
that is dependent on other state actions that we cannot control). We simply
cannot afford to pay $15,000/year for the privilege of waiting for various state approvals,
especially when that $15,000/year comes on top of a bill for $50,000 (incurred without
our consent or even consideration, and without our receiving any benefit in exchange). I
understand from our discussions and from the website to which you directed me
(fttn://wvvw.epa.state.il.us/fees/nndes.htrn1)
that "[it] the termination request is received
after July 1 [2003], but the permit holder can demonstrate that the discharge had ceased
prior to that date, they are not liable for the fee." As there has been no discharge since
July 1, 2003 (or indeed, ever), we can simply terminate the permit and be absolved of any
obligation with respect to these charges. We are understandably reluctant to begin the
application process all over again, given the two-year turnaround on approvals, and
reluctant to ask the Agency to repeat the entire process of reviewing and approving the
same permit for no real reason, but
as
I said we seem to have little choice.
My client respectfully requests that the Agency waive the existing fees in their
entirety. The fees were inappropriately allocated to my client in the first place, as the
Agency failed to follow its own established and mandated practices with respect to
notification, and the Agency's failure to do so deprived my client of the opportunity to
make the informed decision that would have allowed it to avoid incurring the fees in the
first place. If the Agency refuses to resolve the matter in this way, I see little option but
to terminate the permit (effective October 2005) and begin the application process anew.
If you see other alternatives, I would certainly be interested in hearing them.
Thank you in advance for your time reviewing and considering this request, and
for your assistance with my review of the rules and regulations governing NPDES fees. I
look forward to hearing from you.
cc:
Emanuel Torbati (Interstate Oil)
Jeffrey McClelland (Pioneer Environmental)
ATTACHMENT 4
October 24, 2007 Agency letter re: denial of request
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
217 / 782-0610
ROD R.
BLAGOIEVICH, GOVERNOR
?
DOUGLAS P. SCOTT, DIRECTOR
October 24, 2007
Kendy M. Hess
Richmond Breslin LLP
2273 Canyon Blvd.
Boulder, CO 80302
Re:
Interstate Oil
NPDES Permit No. 1L0072702
NPDES Fee Dispute
Dear Ms. Hess:
This letter is in response to your letters dated July 30, 2007, August 23, 2007, and August 30,
2007 requesting that the Agency waive the existing fees for NPDES Permit No. IL0072702.
After reviewing the permit it has been determined that the annual
fee
for this facility is $15,000,
which is based on an industrial minor containing limitations for toxic pollutants and discharging
less than 250,000 gpd. The Agency has reviewed your request and has the following comments.
The 2004 fee of $1,000 and 2005 fee of $15,000 were waived since the facility did not have a
valid permit during that time. The 2006 fee of $15,000 was prorated from the date of issuance,
so the new 2006 fee is $8,750. The fees for 2007 and 2008 are both $15,000. Therefore, the past
due amount for previous years is $23,750, and the total amount due to the Agency, which
includes the fee for 2008 is $38,750.
Therefore, please submit a payment in the amount of $38,750 to the Agency by
November 30,
2007. Payments should be made payable to: Illinois EPA and should be mailed to Illinois EPA,
Fiscal Services Section, Cash Receipts #2, P.O. Box 19276, Springfield, IL 62794-9276. Please
return a copy of this letter along with your payment to ensure proper credit to your account.
This determination of fee amount constitutes final action by the Agency regarding your dispute.
If you have any questions or comments regarding this determination, please call 217 / 782-0610.
Sincerely,
Alan Keller, P.E.
Manager, Permit Section
Division of Water Pollution Control
cc:
Interstate
Oil
Gina Hamlin
SAK: LRL : 72702 fd.wpd
ROCIOORD -
4302 North Main Street, Rockford, IL 61103 - (815) 987-7760 • Dts
PLAINES -
9511 W. Harrison St., Des Plaines, IL 60016 -1847) 294-4000
ELGIN -
595 South State, Elgin, IL 60123 - (847) 608-3131
?• PEORIA -
5415 N. University St., Peoria, IL 61614 -1309; 691-346.3
Etc RE AL or LAND - PEORIA -
7620 N. University St., Peoria, IL 61614 - (309) 693-5462•
CHAMPAIGN -
2125 South First Street, Champaign, IL i 820 - (217) 278-5800
SPRINCHELD -
4500 5. Sixth Street Rd., Springfield, IL 62706 - (217) 786-6892 •
COLUNSVILLE -
2009 Ma II Street, Collinsville, IL 62214 - (618) 346-5120
MARION -
2309 W. Main St., Suite 116, Marion, IL 62959 - (618) 993-7200
PRINT! D ON RECYCLED PAPER
ATTACHMENT
3
October 24, 2007 Agency letter re: denial of request
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021
NORTH GRAND AVENUE EAST,
P.O. Box
19276, SPRINGFIELD,
lamas
62794-9276 - ( 217) 782-3397
JAMES R.
THOMPSON CENTER,
100
WEST RANDOLPH, SUITE
11-300,
CHICAGO, IL 60601 - (312) 814-6026
217 / 782-0610
ROD R. BLAGOJEVICH, GOVERNOR
?
DOUGLAS
P.
SCOTT, DIRECTOR
October 24, 2007
Kendy M. Hess
Richmond Breslin LLP
2273 Canyon Blvd.
Boulder, CO 80302
Re:
Interstate Oil
NPDES Permit No. IL0072702
NPDES Fee Dispute
Dear Ms. Hess:
This letter is in response to your letters dated July 30, 2007, August 23, 2007, and August 30,
2007 requesting that the Agency waive the existing fees for NPDES Permit No. IL0072702.
After reviewing the permit it has been determined that the annual fee for this facility is $15,000,
which is based on an industrial minor containing limitations for toxic pollutants and discharging
less than 250,000 gpd. The Agency has reviewed your request and has the following comments.
The 2004 fee of $1,000 and 2005 fee of $15,000 were waived since the facility did not have a
valid permit during that time. The 2006 fee of $15,000 was prorated from the date of issuance,
so the new 2006 fee is $8,750. The fees for 2007 and 2008 are both $15,000. Therefore, the past
due amount for previous years is $23,750, and the total amount due to the Agency, which
includes the fee for 2008 is $38,750.
Therefore, please submit a payment in the amount of $38,750 to the Agency by
November 30,
2007.
Payments should be made payable to: Illinois EPA and should be mailed to Illinois EPA,
Fiscal Services Section, Cash Receipts #2, P.O. Box 19276, Springfield, IL 62794-9276. Please
return a copy of this letter along with your payment to ensure proper credit to your account.
This determination of fee amount constitutes final action by the Agency regarding your dispute.
If you have any questions or comments regarding this determination, please call 217 / 782-0610.
Sincerely,
Alan Keller, P.E.
Manager, Permit Section
Division of Water Pollution Control
cc:
Interstate Oil
Gina Hamlin
SAK:LRL:72702fd.wpd
Rrx 10
?
-
4302
North Main Street, Rockford,
IL
61103 - (8 f 5) 987-7760 • Drs PI AINFS
95)1
W.
Harrison St., Des Plaines, IL 60016 - (847) 294-4000
BON-
595
South State, Elgin,
IL 60123 - (847) 608-3131?
•
?
PEORIA - 5415 N
University St., Peoria, IL 61614 - (309) 693-5461
Eh_ RIM'
Or LANE/ - PEORIA - 7620 N. University St., Peoria, IL 61614 - (309)693-5462?• ClIAMPAICN 2125
South First Street, Champaign,
IL 61820 - (217) 278-5800
SPRENCHEL - 4500 S. Sixth Street
Rd., Springfield,
IL 62706 - (217) 786-6892
?•
Col?
- 2(109
Mall Street, Collinsville,
IL 62214 -- (618) 346-51 20
MARION- 2 309 W. Main
St., Suite 116, Marion, IL 62959 - (618) 993-7200
PRINT-
II) ON Rfetl I II) PAPFR
ATTACHMENT 4
November 20, 2007 email documenting extension
Page 1 of 1
Kendy M.
Hess
From:?
Kendy M. Hess
Sent:?
Tuesday, November 20, 2007 12:33 PM
To:?
'connie.tonsor@illinois.gov.
Cc:
?
'Leslie Lowry'; 'Martha Romanenko'; Jeffrey McClelland; 'alan.keller(tillinois.gov.
Subject:
?
Interstate/Shorewood -- fee dispute for NPDES Permit IL0072702
Attachments: 2007-08 letter to IEPA re second fee notice and extension.doc; 2007-07 letter to IEPA re
change of address.doc; 2007-07 letter to IEPA re extension.doc; 2007-08 letter to IEPA re
protesting fee.doc; IL EPA Permit Fees.PDF
Hi, Connie --
Alan Keller and Leslie Lowry over at the IEPA-DWPC suggested that I contact you about the captioned
matter, as I thought it might be helpful to speak to a lawyer at this point before taking the final step of
filing a formal appeal with the PCB. My client and I would really prefer to avoid taking that step, but
feel we have little choice at this step -- maybe you can help.
I've soft copies of the recent correspondence (let me know if you need hard copies, for some reason) --
the August 23, 2007 letter contains an uncontested account of the events leading up to the current
situation. The Agency had originally given us until November 30 to either pay the amount due or file
for appeal, but in response to my request they've generously granted an extension until December 14
in hopes that we can resolve this. I'd appreciate it if you could give these a quick skim and then
contact me at your earliest convenience to discuss this situation, Again, the August 23 letter contains
a complete statement of the facts (I believe) and our position.
Thanks in advance for your time.
Kendy
PS Alan and Leslie, please take this as the promised email documenting the extension we discussed
on Tuesday, November 20, 2007.
Kendy M. Hess
Richmond Breslin LLP
2273 Canyon Boulevard
Boulder, Colorado 80302
(o) 303/442-0311
(f) 303/546-0110
khess@rb-lip.com
1/I onus
ATTACHMENT
5
December 12, 2007 email from the Agency
issuing its final decision, in which it opted to litigate
Kendy
M. Hess
From:?
khess@rb-11p.com
Sent:?
Wednesday, December 12, 2007 2:36 PM
To:?
Connie Tonsor; Kendy M. Hess
Cc:?
Al Keller; Martha Romanenko; Jeff McClelland
Subject:
?
Re: FW: Call tomorrow?
Well, I wasn't really asking for advice -- just a response. You still haven't addressed
the issue I raised, so I guess we'll go ahead and appeal. I was just hoping to avoid that
for the sake of all involved.
As you'll note from all of my emails and letters as well as from the Agency's own
correspondence and files, we haven't changed our address since obtaining the permit the
fees are related to. The Agency has been making regular and effective use of the proper
address since we applied for that permit. Only the bills have gone to the wrong address.
Thanks for your time.
?
Original Message ?
From: "Connie Tonsor" <Connie.Tonsor@illinois.gov>
Date: Wed, 12 Dec 2007 15:12:39
To:"Kendy M. Hess" <khess@rb-11p.com>
Cc:"Al Keller" <A1.Keller@illinois.gov>
Subject: Re: FW: Call tomorrow?
Kendy: I cannot advise you on your course of conduct with regard to the
fee dispute. You will need to make this decision based on many factors
including the costs of the appeal vis-a-vis the cost of paying the fee.
However, as a standard condition of your client's NPDES permit,
condition 12(g), your client has an affirmative obligation to notify the
Agency whenever any of the information presented in a permit application
becomes incorrect. This obligation kicks in as soon as the permitee
knows that the information is inaccurate or incorrect. The Agency then
modifies the permit if needed to make it reflect the correct
information. Here it may be presumed that your client knew that its
mailing address had changed, when it moved. The permitee's correct
address is relevant to any correspondence, submission or DMR's and all
reporting necessary to ensure business practice and accurate reports.
The correct address became an issue with your client when the fee issue
arose. Since the permitee had an affirmative obligation to notify the
Agency of a change of information and your client did not apparently do
so until the fee issue arose it is unlikely that an Illinois court will
be inclined to bar the Agency from collecting the fee.
The Agency should litigate this issue.
Connie
This e-mail, and any documents attached or included hereto, is a
confidential attorney-client, attorney work product and/or
pre-decisional FOIA-exempt document intended solely for the use of the
individual to whom it is addressed, and should be handled accordingly.
If you are not the intended recipient, be advised that you have
received this e-mail in error and that any use, dissemination,
forwarding, printing or copying of this e-mail is strictly prohibited.
If you have received this e-mail in error, please notify:
1
Connie Tonsor
Associate Counsel
Illinois EPA
1021 N. Grand Ave. East
P.O. Box 19276
Springfield, IL 62794-9276
(217) 782-5544
(217) 782-9807 (Fax)
E-mail address: Connie.Tonsor@epa.state.il.us
>>> "Kendy M. Hess" <khess@rb-11p.com> 12/9/2007 7:30 PM >>>
Hi, Connie -- just following up on this again. To recap, here's the
deal: If you know some reason why I'm going to lose this appeal, I'd
like to hear it so I can save myself and my client the time, hassle,
and
expense of an appeal. If you agree with me that I'm going to win this
on appeal, I'd be just as happy to settle the matter with you. That
saves me said time, hassle, and expense of an appeal, and it save you
and the agency the unfavorable precedent AND the time, hassle, etc.
If
you just don't know, then I'll just file the appeal and we'll find out
that way. Either way, again, I'd appreciate your thoughts.
Please let me know when you'd have a half-hour (max) to discuss. I
have
to file by Friday.
Thanks,
K
?
Original Message ?
From: khess@rb-11p.com [mailto:khess©rb-llp.com]
Sent: Wednesday, December 05, 2007 1:38 PM
To: Connie Tonsor
Subject: Call tomorrow?
Hi, Connie -- I'm just following up on our email exchange from earlier
this week. Are we still planning on a call tomorrow, since we didn't
manage to get anything set up for today? As I said, I'm available
before 11 and after 2 Mountain, but will be out of the office and away
from my files for most of that time.
Please let me know, and thanks.
Kendy
ATTACHMENT 6
Petitioner's Counsel's February 1, 2008 Appearance
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Interstate Oil, Inc., with respect
to NPDES Permit IL0072702
Petitioner
v.
?
PCB 08-38
(NPDES Fee Appeal))
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent
APPEARANCE
I hereby file my appearance in this
Oil, Inc. with respect to NPDES Permit I
registered to practice law in the state of
6216237, and I have attached a copy of my
proceeding, on behalf of Petitioner, Interstate
L0072702, and assert that I am licensed and
Illinois. My ARDC registration number is
current mem ship card.
ss
for Ric
nd Breslin, LLP
Kendy M. Hess
RICHMOND BRESLIN LLP
2273 Canyon Boulevard
Boulder, CO 80302
(303) 442-0311
ATTORNEY REGISTRATION
AND
DISCIPLINARY COMISSION
this
20 SUPREME COURT OF ILLINOIS
08
REGISTRATION NO.
?
STATUS
6216237?
Active?
111411993
Kendy Michelle Hess
INACTIVE MEMBERS ARE NOT ENTITLED TO PRACTICE LAW
6446
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