HANNEL
OIL
COMPANY, an
Illinois
Corporation,
NOTICE
OF
FILING
CLERK*S
OFFICE
SEP
222008
PoIIutl
STATE
OF
ILLINOIS
0
Controj
8
oarcj
To:
Clerk
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100
West
Randolph
Street
Suite
11-500
Chicago,
IL
60601
Melanie
A.
Jarvis,
Assistant
Counsel
Special
Assistant
Attorney
General
Division
of
Legal
Counsel
Environmental
Protection
Agency
1021
North
Grand
Avenue
East
P.O.
Box
19276
Springfield,
IL
62794-9276
Patrick
D.
Shaw
MOHAN,
ALEWELT, PRILLAMAN
&
ADAMI
1 N.
Old
Capitol
Plaza,
Ste.
325
Springfield,
IL
62701
Telephone: 217/528-2517
Facsimile: 217/528-2553
Counsel
for
Petitioner
Hannel
Oil
Company
HANNEL
OIL
COMPANY,
an Illinois
Corporation,
Petitioner
By:
Patrick
DShaw
One
of its
Attorneys
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
Petitioner,
V.
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
PCBNo.O
(LUST
Permit
Appeal)
PLEASE
TAKE
NOTICE
that
we
have
this
day
filed
with
the
office
of
the Clerk
of
the
Pollution
Control
Board
the
Petition
for
pview
a copy
of
which
is enclosed
herewith
and
hereby
served
upon
you
on
the
lb
day
of
J,
2008.
THIS
FILING
IS
SUBMITTED
ON
RECYCLED
PAPER
BEFORE
THE
ILLINOIS
POLLUTION CONTROL
BOARD
SEP
22
2008
TeoF
ILLINOIS
HANNEL
OIL COMPANY,
an Illinois
)
fl
CO
0j
8
Qa
corporation,
)
)
Petitioner,
)
v.
)
PCBNo.O
)
(LUST Permit Appeal)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Respondent.
)
PETITION
FOR REVIEW
OF AGENCY
LUST
DECISION
NOW
COMES
Petitioner, Hannel
Oil Company,
pursuant to
Section 40 of the Illinois
Environmental
Protection Act, 415
JLCS
5/40,
and Part
105
of the Illinois Pollution
Control
Board
Rules, 35 Ill. Admin.
Code Sections
105.400 through
105.412,
and
hereby appeals that
portion
of
the
LUST
decision
issued August
18,
2008,
by Respondent
Illinois Environmental
Protection
Agency
(“Agency”),
in which
the Agency
rejected Petitioner’s
budget, and
in support
thereof
states as follows:
A.
BACKGROUND
1.
Hannel Oil Company
is an Illinois
Corporation,
and is the owner
of the underground
storage tanks at the former
BP gas
station site, now
closed,
described
as
follows:
LPC
#137020003
1 - Morgan County, Hannel
Oil Company
- Main
Street Station, 1002
South Main
Street, Jacksonville.
2. On
June 20, 2007, three
(3) gasoline
USTs and one
(1) diesel
UST
were
removed
from
the
site.
Early
action activities,
begun
before the
UST
removals, were then
completed,
all of
which
activities were
described
in
Petitioner’s
45-Day
Report
provided
to the Agency,
and
in the
addendum
thereto.
3.
A
Stage
111111
Site Investigation
Plan and
Budget
was
submitted
to
the
Agency
on
September
25,
2007,
and approved
on November 14,
2007. Following
completion
of
site
investigation
activities,
a
Site
Investigation
Completion Report was
submitted
to the Agency on
January
4, 2008.
4. A Corrective
Action
Plan (CAP)
was
submitted
to the Agency
on
April 24, 2008,
and
was approved
by
the Agency
on August
18,
2008, the Agency finding
that
“the activities
proposed
in
the
plan are appropriate
to demonstrate
compliance
with
Title XVI of the Act.”
5. At the same
time that Petitioner
submitted
its
CAP
to the
Agency,
the Petitioner
also
submitted
its
CAP
Budget
and Certification
fonn,
such
Certification
form being an
Agency
form
that
provides for a signature
by the Petitioner,
under oath, and
certification
by
his professional
engineer, also under
oath, under penalty
of law, that,
to the
best
of his knowledge and
belief,
the
Budget
has
been prepared in accordance
with
both the
Act
and generally accepted
standards
and
practices
in the professional
engineering
profession,
and that the information
presented
in the
Budget
is accurate and
complete.
6. As part of
the
CAP
Budget,
Petitioner
included three
(3) bids in accordance
with
35
Ill.
Adm. Code
734.855, each bid
covering
all costs
for
the
excavation,
transportation
and proper
disposal
of petroleum
contaminated
soil at a landfill,
plus backfill
excavation
and
cap
with six
inches
of gravel,
all three
(3) bids having
been submitted
to the Agency
on Agency forms,
fully
completed
by
each
bidder,
and specifically
stating,
in
the Agency’s
own
words, the
following:
By completing
this bid, you are
agreeing that:
*
*
*
Bidder
is qualified
and able
to
complete the
tasks listed in the scope
of work.
7.
All
information
requested to
be submitted
by
Petitioner,
on
the
forms prescribed
and
provided
by
the Agency, were
so provided
in
the CAP
Budget,
and
all three (3)
were duly signed
and dated
by the qualified
bidders.
8. In addition, as part
of
the
CAP
budget,
Petitioner
included three
(3)
“Bid Summary
Forms”,
on Agency
forms,
which
summarized
the
bids
obtained and
presented to the
Agency,
in
which Petitioner
certified, to the best
of his knowledge
that, among
nine
(9) specific
representations, the
following:
2
The bids
were obtained
oniy
from
parties
qualified
and able to
perform the
work.
9.
In addition,
as
part of the
CAP budget, Petitioner’s
consultant
included
three
(3) “Bid
Summary
Forms”, on Agency
forms, which
summarized the bids
obtained
and
presented to the
Agency,
in which
Petitioner’s
consultant
certified,
to the
best of
his knowledge
that, among
nine
(9)
specific representations,
the following:
The bids were obtained
only from
parties qualified
and able
to
perform the
work.
10. Tn addition,
the information
furnished
to
the Agency
by the Petitioner regarding
bidding
in accordance with
35
Ill.
Adm. Code
734.855,
was
provided on the same
Agency
forms
that the Agency had consistently
approved
as complete
on prior occasions
involving
734.85
5
bids, in accordance with
its
long-standing
practice
of requiring
only such information
regarding
bidder qualifications
as is requested
in such
Agency
forms.
11. At no time
during
the
Agency’s consideration
of Petitioner’s
CAP Budget
did the
Agency request
any further or additional
information
from Petitioner
or from its
consultant
regarding
the qualifications
of the
bidders,
nor did the Agency
at any time
require
that any
bidders
be pre-qualified in
accordance
with
any established
rule.
12. Nevertheless,
on August
18, 2008, the Agency
rejected
Petitioner’s
CAP Budget, the
sole and entire reason
for the rejection
being
as follows:
The
Agency deemed
the potential
bidders
as unqualified.
This is based on
Agency conversations,
and
the failure
of the bidders to provide
information
-
to the
Agency.
B.
THE AGENCY’S
FINAL DECISION
The decision
for
which
review
is
sought
herein is contained in
Exhibit A hereto.
C.
DATE
ON
WHICH
THE
AGENCY’S
FINAL DECISION
WAS
SERVED
The Agency’s
final decision
was dated August
18, 2008, and
served on August
19, 2008,
3
making
the
date for
the filing
of
this
appeal
September
23, 2008.
This appeal
is timely
filed.
D.
GROUNDS
FOR
APPEAL
1. The
Petitioner,
by
providing
all
of the information
requested
by the Agency
concerning
the
qualifications
of the bidders,
and
by doing
so on
the Agency’s
own
forms, which
were
fully filled out and
signed,
certifying
that the bidders
were,
in
fact, all duly qualified,
made
out a prima
facie
case of
the
bidders’ qualifications,
which
the
Agency,
by
failing
to request any
further
information from
Petitioner
regarding
the bidders’
qualifications,
and
by otherwise
failing
to indicate to Petitioner
that the
information concerning
the
qualifications
of the bidders
was
insufficient
or unsatisfactory in
any way,
failed
to rebut Petitioner’s
prima
facie
case on this
point.
2. The only evidence
properly
in the Record concerning
the qualifications
of the
bidders
is that
which
was furnished
to the Agency
by
Petitioner, on
Agency forms, all
of which
demonstrates
that the bidders
were,
in
fact,
qualified, and
none of which
supports
the
Agency’s
determination
that all 3
bidders
are
unqualified.
3. The Agency’s
determination
that the subject
bidders were
“unqualified” is not
supported
by
the
Record
and, in fact, is
contrary to
the evidence
properly in the Record.
4. Petitioner
provided
to the Agency
proof that its
CAP
Budget
would
not cause a
violation
of the Act
or of
Board regulations
and, in fact,
demonstrated
compliance with
both
the
Act and the Board’s regulations.
415
ILCS 5-39
(a); Kathe’s Auto Service
Center
v. JEPA,
PCB
96-102,
Slip
0
p.
at 13 (August 1,
1996).
5. In
rejecting Petitioner’s
CAP Budget,
the
Agency
failed to explain whether
and, if so,
how, any Sections
of the Act
or any regulations
of the Board
may be violated
if the Budget were
approved.
35
Ill. Adm.
Code
734.505
(b)(2) and (3).
6. The Agency’s
decision is contrary
to its own
prior actions, and
contrary to
its
own
prior interpretations
of applicable laws
and policies,
and its own established
custom
and
practice
of
determining the
qualifications
of
bidders
on the basis
of information furnished
on
the
4
Agency’s bid forms,
and may not
deviate
from that
custom
and
practice
without announcing
in
advance
its
change in
policy. Gatica
v.
Department
of Public
Aid, 98 Ill. App.
3d 101, 106-107
(iSt
Dist.
1981)
(Administrative
agencies
are bound
by their long-standing
policies
and
customs
of which
affected
parties
had
prior knowledge).
7.
The Agency’s
decision
is contrary
to the law.
8.
The term “qualified
bidder” is not
defined
by
the
Act or by
any relevant
Board
regulation,
nor does it appear
on any Agency
bid form,
nor has the Agency
established
by
regulation a pre-qualification
program
for such
bidders.
9.
Absent
such
a
definition in the
Act, the Board regulations,
or Agency forms,
the
Agency
is
without authority
to
simply
“deem” a
bidder as being
unqualified.
10. No Board
regulation
requires that
an applicant
for a CAP Budget
approval
furnish
the
Agency
with more
specific
information
regarding
the
qualifications
of
bidders than that which
is
requested
in
the Agency’s
own bid
forms.
V
11. To the
extent that the
Agency ascertained,
during
the pendency
of the subject
CAP
application,
that
either
the
facts
or
conclusions
presented
by Petitioner
were
inaccurate
or
incomplete,
the Agency had
a duty to
disclose such
information
in writing during
the Agency’s
statutory
review
period,
but
it
failed
to do
so, and
failed
to request
additional
or clarifying
information
concerning
the
qualifications
of any,
or all, of the
bidders.
12.
The
Agency is without
authority
to reject
a budget or deny a
permit based merely
upon
its conversations with
non-parties,
or based
upon
the failure
of a non-party
to
answer
questions posed by
the
Agency.
13.
The Agency’s new,
unannounced
policy of
making telephone
calls to
non-parties
and rejecting
budgets
on the basis
of those
telephone conversations
alone, without
prior
notice
to
the permit applicant,
violates Petitioner’s
rights
of due process and
is
fundamentally
unfair.
E.
REQUESTED
RELIEF
WHEREFORE,
Petitioner
prays that: (a) the Agency
produce
the Record;
(b)
a hearing
5
be
held;
(c)
the
Board find that
the Agency’s
new
practice of deeming bidders to be unqualified
based upon the
undisclosed
results of its own ex
parte
telephone conferences placed directly
to
the
bidders is an
invalid rule
or,
alternatively,
that it is unauthorized under Board rules; (d) the
Board determine that the three (3) bidders in this case are,
in fact, qualified; (e) the Board direct
the Agency
to
approve the subject
CAP Budget; (f) the Board grant Petitioner its attorney’s fees;
and
(g)
the Board grant Petitioner such other and further relief as it just.
Respectfully
submitted,
HANNEL OIL COMPANY, an Illinois
corporation, Petitioner,
By its attorneys,
MOHA ALEWELT,
PRILLAMAN & ADAMI
Patrick D. Shaw
Fred
C. Prillaman
MOHAN, ALEWELT, PRILLAMAN
& ADAMI
1 N. Old Capitol Plaza, Ste. 325
Springfield, IL 62701
Telephone: 217/528-2517
Facsimile: 217/528-2553
THIS FILING IS SUBMITTED
ON RECYCLED PAPER
By:
S
CERTIFICATE
OF
SERVICE
I,
the
undersigned
attorney at law,
hereby,
certify
that I caused copies
of the
foregoing
document
to
served
by
placement
in
the
United State
Post
Office
Mail Box at Springfield,
Illinois,
before
6:00 p.m.
on
2-’
2’,
in sealed envelopes
with
proper first-class postage
affixed, aldressed
to:
Clerk
Illinois
Pollution Control Board
James
R. Thompson
Center
100 West Randolph
Street
Suite 11-500
Chicago,
IL
60601
Melanie A. Jarvis,
Assistant
Counsel
Special
Assistant Attorney General
Division
of Legal Counsel
Environmental
Protection
Agency
1021
North Grand Avenue
East
P.O. Box 19276
Springfield
IL
62794-9276
Patrick
D. Shaw
MOHAN, ALEWELT,
PRILLAMAN
& ADAMI
1 N. Old Capitol
Plaza, Ste. 325
Springfield,
IL 62701
Telephone:
217/528-2517
Facsimile:
217/528-2553
Counsel
for Petitioner Hannel
Oil Company
\,PatrickD-Shaw
8
ILLINOIS
LNV)RONMINAL
rkoILzL
lION
f\UINLY
1021
NoRTH
GRAND
AVENUE
EAST,
P.O.
Box
19276,
SPRINOFIEW,
ILLINOIS
62794-9276
—(217)
782-2829
JAMES
R.
THOMPSON
CENTER,
100
\VESr
RANDOLPH,
Suirt
11-300,
CHIcAGo,
IL
60601
—
(312)
514-6026
217/782-6762
ROD
R.
BLADOJEVICH,
GovERNOR
Douc
cf
—
A
S21
UG
1
8
2008
Flannel
Oil
Company
E.
Dean
Hannel
P.O.
Box
758
Jacksonville,
Illinois 62651
Re:
LPC#1370200031
--MorgariCounty
Jacksonville/Hannel
Oil
Company
1002
South Main
Street
Leaking
UST
Incident
No.
20070653
Leaking
UST
Technical
File
Dear
Mr.
Hannel:
The
Illinois
Environmental
Protection
Agency
(Illinois
EPA)
has
reviewed
the
Corrective
Action
Plan
(plan)
submitted
for
the
above-referenced
incident.
This
plan,
dated
April
22,
2008,
was
received
by
the
Illinois
EPA
on
April
24,
2008.
Citations
in
this
letter
are
from
the
Environmental
Protection
Act
(Act),
as
amended
by
Public
Act
92-0554
on
June
24,
2002,
and
35
Illinois
Administrative
Code
(35
Ill.
Adm. Code).
Pursuant
to
Sections
57.7(b)(2)
and
57.7(c)
of
the
Act
and
35
Ill.
Adnt
Code
734.505(b)
and
734.510(a),
the
plan
is
approved.
The
activities
proposed
in
the
plan
are
appropriate
to
demonstrate
compliance
with
Title
XVI
of
the
Act.
Please
note
that
all
activities
associated
with
the
remediation
of
this
release proposed
in
the
plan
must
be
executed
in
accordance
with
all
applicable
regulatory
and
statutory
requirements,
including
compliance
with
the
proper
permits.
Pursuant
to 57.7(c)(4)
of
the
Act
and
35
III
Adrn.
Code
734,505(b)
and
734.5
10(b)
the
budget
is
rejected
for
the
reason(s)
listed
below:
In
accordance
with
35
Ill
Adm. Code,
Section
734,855,
as
an alternative
to the
maximum
payment
amounts
set
forth
in
this
Subpart
H,
one
or
more
maximum
payment
amounts
may
be
determined
via
bidding
in
accordance
with
this
Section.
Each
bid
must
cover
all
costs
included
in the
maximum
payment
amount
that
the
bid
is
replacing.
a)
A
minimum
of
three
written
bids must
be
obtained.
The
bids
must
be
based
upon
the
same
scope of
work and
must
remain
valid
for
a period of
time
that
will
allow
the
owner or
operator
to
accept them
upon the
Agency’s
approval
of
the
associated
budget.
Bids
must
be
obtained
only
from
persons
qualified
and
able
to
perform
the
work being
bid.
Bids
must
not
be
obtained
from
persons
in
which
the
Roci<’Ow
—
4302
North
Main
Street,
Rockford,
IL
61103
—
(815)
987-7760
DES
PLAINES
— 9511
W.
Hrriton
St..
Des
Plaine,
IL
60016—
(847)
294-4000
ELGIN
—395
South
State,
91gm,
IL
60123
—(847)
608-3131
.
PtORjs
—5415
N.
Uniersitv
SI.,
Peoria,
IL
61614
—(309)693-5463
BuREAU
OF
LAND
-PEORIA
—
7620
N.
Universfty
St.,
Peoria,
IL
61614
—
1309)
693-3462
CI-IAMPAIUN
—
2125
South
First
Street,
Champaign,
IL
61 820—
(217)
278-5800
COLUrSVlLI.E
-
2009
MaIl
Street,
ColIinsviIIe,
IL
62234—
(618)346.5120
Mj<ior
—2309W.
Main
SE.,
Suite
116,
Marion,
IL
62959
—(618)
993-7200
PRINTED
ON
RcscaD
P,WER
4
EXHIBIT
IA
z
——
-.
i
owner
or
operator,
or
the owner’s
or
operator’s
primary
contractor,
has
a
financial
interest.
b)
The
bids
must
be
summarized
on
forms
prescribed
and provided
by
the
Agency.
The
bid
summary
form,
along
with
copies
of
the
bid
requests
and
the
bids
obtained,
must be
submitted
to
the Agency
in
the associated
budget.
If
more
than
the
minimum
three
bids
are
obtained,
summaries
and
copies
of all
bids
must
be
submitted
to the
Agency.
c)
The
maximum
payment
amount
for
the work
bid
must be
the amount
of
the
lowest
bid,
unless
the
lowest
bid
is less
than the
maximum
payment
amount
set
forth
in
this Subpart
H,
in which
case
the
maximum
payment
amount
set
forth-in
this
Subpart
H must
be
allowed.
The
owner
or operator
is
riot required
to
use the
lowest
bidder
to
perform
the
work,
but
instead
may use
another
person
qualified
and
able
to
perform
the
work,
including,
but
not
limited
to,
a
person
in
which
the
owner
or
operator,
or the
owner’s
or
operator’s
primary
consultant,
has
a
direct
or
indirect
financial
interest.
However,
regardless
of
who
performs
the
work,
the
maximum
payment
amount
will
remain
the
amount
of
the lowest
bid.
The
Agency
deemed
the
potential
bidders
as
unqualified,
This
is
based
on
Agency
conversations,
and
the failure
of
the
bidders
to
provide
information to the Agency.
NOTE:
Pursuant
to
Section
578(a)(5)
of the
Act,
if payment
from
the Fund
will
be
sought
for
any
additional
costs
that may
be
incurred
as a result
of the Illinois
EPA’s
modifications, an
amended
budget
must
be
submitted.
Amended
plans
andlor
budgets
must
be submitted
and
approved
prior
to the
issuance
of a No
Further
Remediation
(NFR)
Letter.
Costs
associated
with
a
plan
or
budget
that
have
not
been
approved
prior
to
the issuance
of an NFR
Letter
will not
be
paid
from
the Fund.
Pursuant
to
Sections
57.7(b)(5)
and
57.12(c)
and
(d) of
the Act
and 35
Iii. Adm.
Code
734.100
and
734.125,
the
illinois
EPA requires
that a
Corrective
Action
Completion Report
that
achieves
compliance
with
applicable
remediation
objectives
be submitted
within
30
days
after
completion
of
the
plan
to:
Illinois
Environmental
Protection
Agency
Bureau
of
Land -
#24
Leaking
Underground
Storage
Tank
Section
1021
North
Grand
Avenue
East
Post
Office
Box
19276
Springfield,
IL
62794-9276
Please
submit
all
correspondence in
duplicate
and
include
the
Re:
block
shown
at the
beginning
of
this
letter.
-
Please
note
that,
if
within
four
years
after
the
approval
of
this
plan,
compliance
with
the
applicable
remediation objectives
has
not
been
achieved
and
a
Corrective
Action
Completion
Report
has
not
been
submitted,
the
Illinois
EPA
requires the
submission
of a
status
report
pursuant
to Section
57.7(b)(6)
of the
Act.
If
you
have
any
questions
or
need
further
assistance,
please
contact
Steve
Kasa
at 217-557-7048.
Sincerely,
Thomas
A.
Unit
Manager
Leaking
Underground
Storage
Tank
Section
Division
of
Remediation Management
Bureau
of
Land
TAH:SK
Attachment:
Attachment
A
C:
CW3M
Company,
Inc.
Leaking
UST
Claims
Unit
BOL
File
