BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
CL,s
Qj
FE
17
2009
S&D
REALTY,
INC.,
)
Petitioner,
)
OIIUtj
)
°
Board
v.
)
PCB09-33
)
(LUST
Appeal)
ILLINOIS
ENVIRONMENTAL
PROTECTION
)
AGENCY,
)
Respondent.
)
PETITION
FOR
REVIEW
NOW
COMES
Petitioner,
S&D
Realty,
Inc.
(hereinafter
“Petitioner”),
by
and
through
its
attorneys,
the Law
Offices
of
Cohen
& Hussien,
P.C.,
and
pursuant
to
§sS
57.8(i)
and
40
of
the
Environmental
Protection
Act
(415
ILCS
5/57.8(i),
415
ILCS
5/40),
hereby
submits
this Petition
for
Review
of
the Illinois
Environmenta1
Protection
Agency
(hereinafter
“Agency”)
decision
that
denied
reimbursement
for
the costs
of the
tank
removal
and
for costs
which
lack
supporting
documentation.
Pursuant
to
§
57.8(1)
of the
Environmental
Protection
Act,
the Petitioner
further
requests
the
Illinois
Pollution
Control
Board
to order
the
Agency
to
pay Petitioner’s
legal
costs
for seeking
payment
in
this appeal.
In
support
of
this Petition,
the Petitioner
states as
follows:
1.
On June
13,
2008,
the
Petitioner
submitted
to
the Agency
an
application
for
payment
from the
Underground
Storage
Tank
Fund
for Leaking
UST
incident
V
number
20050020
pursuant
to
§
57.8(a)
of the
Illinois
Environmental
Protection
Act,
and
35 III.
Adm.
Code
732,
Subpart
F.
The
Agency
received
the application
on
June
27,
2008.
The
application
for payment
covers
the
period
from
January
8,
2005,
to April
18,
2005.
The amount
requested
is
$153,801.58.
2.
By
letter
dated
October
10, 2008,
the
Agency
made
a
final
decision
on
the
Petitioner’s
application.
The
Agency
denied
Petitioner
reimbursement
in the
amount
of$
13,340.08
“for
costs
for removal,
disposal,
or abandonment
of
UST
if
the
tank was
removed
or abandoned,
or
permitted
for removal
or
abandonment,
by
the Office
of the
State
Fire
Marshal
before
the
owner
or operator
provided
notice
to
Illinois
Emergency
Management
Agency
of
a
release
of
petroleum,
pursuant
to
§
57.8(k)
of
the Environmental
Protection
Act
and 35
Ill.
Adm.
Code
734.63
0(k).”
A
copy
of said
letter is
attached
hereto,
made
a part
hereof,
and
marked
as
Exhibit
1.
3.
The Agency
also
denied
reimbursement
in the
amount
of
$98,760.00
“for costs
which
lack
supporting
documentation.
Such
costs
are
ineligible
for payment
from
the
Fund
pursuant
to
35 Ill. Adm.
Code
734.630(cc).”
4.
The
Agency
identified
two costs
which
lacked
supporting
documentation.
First,
“Remediation
and
disposal
costs
do not
have backup
invoices
for backfill
costs,
overburden
costs,
permit
costs, in
the amount
of
$46,960.00.”
Secbnd,
“Paving
and
demolition
costs
do
not have
backup
invoices
for
concrete
removal
and
replacement,
and
the dismantling
and
reassembling
of gasoline
pumps
in
the
amount
of
$51,800.00.”
5.
On
October
14, 2008,
Petitioner
received
said letter
from
the Agency.
6.
On
November
18,
2008,
Petitioner
made
a written
request
to
the Agency
for
an
extension
of time
by which
to file
a
petition
for
review
and asked
the
Agency
to
join in
requesting
that the
Illinois
Pollution
Control
Board
extend
the thirty-five
day
period
for
filing
a
petition
by ninety
days.
7.
On
November
20, 2008,
the
Illinois
Pollution
Control
Board
received
the
Agency’s
request
to
extend
the appeals
period
for
ninety
days,
until February
16,
2009.
8.
On
December
4, 2008,
the Illinois
Pollution
Control
Board
granted
the
Agency’s
request
to
extend
the
appeals
period
for
ninety
days,
until
February
16,
2009.
9.
Petitioner
is now
seeking
review
of
the
Agency’s
October
10, 2008,
determination
that
denied
Plaintiff
reimbursement
of
$13,340.08 for
tank
removal
costs
and
$98,760.00
for
costs
which
lack
supporting
documentation.
10.
The
Agency’s
contention
that
the
Petitioner’s
costs
of$13,340.08
for
tank
removal
costs
are
not
eligible
for
reimbursement
is
erroneous,
arbitrary,
and
capricious,
because
the
costs
for
tank
removal
are
eligible
for
reimbursement.
11.
The
Agency’s
contention
that
the
Petitioner’s
costs
of
$98,760.00
which
lack
supporting
documentation
is
erroneous,
arbitrary,
and
capricious,
because
Petitioner
provided
adequate
documentation.
WHEREFORE,
for
the
foregoing
reasons,
Petitioner,
S&D
Realty
Inc.,
respectfully
petitions
the
Illinois
Pollution
Control
Board
to
reverse
the
Agency’s
decision
to deny
reimbursement
in
the
amOunts
of
$13,340.08 and
$98,760.00 and
to
order
the
Agency
to
pay
the
Petitioner’s legal
costs
for
this
appeal.
February 12,
2009
S&D
Realty
Inc.
By:
CL
One
of its
Attorneys
‘
Law
Offices
of Cohen
and
Hussien,
P.C.
Attorney Number:
39565
Attorneys
for
Petitioner
6901W.
1
th
Street
Worth,
Illinois
60482
(708)
361-3030
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
Roo
R.
BLAGOJEVICH,
GOVERNOR
DOUGLAS
P.
SCOTT,
DIRECTOR
217/782-6762
CERTIFIED
MAIL
#
OCT
1
0
2008
S&DRealty
Attention:
Sarner
Khatib
3935
South
Archer
Avenue
Chicago,
Illinois
60632
Re:
LPC
#036575053
--
Cook
County
Chicago/Mobil
Gas
&
Mini
Mart
3935
South
Archer
Avenue
V
Leaking
UST
Incident
No.
20050020
Claim
No.
54597
Leaking
UST
FISCAL
FILE
Dear
Mr.
Khatib:
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
June
13,
2008
and
was
received
by
the
Agency
on
June
27,
2008.
The
application
for
payment
covers
the
period
from
January
8,
2005
to
April
18,
2005.
The
amount
requested
is
$153,801.58.
The
deductibleamount
to
be
assessed
on
this
claim
is
$10,000.00,
which
is
being
deducted
from
this
payment.
In
addition
to
the
deductible,
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.
V
On
June
27,
2008,
the
Agency
received
your
application
for
payment
for
this
claim.
As
a
result
of
the
Agency’s
review
of
this
application
for
payment,
a
voucher
for
$38,240.00
will
be
prepared
for
submission
to
the
Comptroller’s
Office
for
payment
as
funds
become
available
based
upon
the
date
the
Agency
received
your
complete
request
for
payment
of
this
application
for
payment.
Subsequent
applications
for
payment
that
have
beenlare
submitted
will
be
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
Illinois
Pollution
Control
Board
(Board)
pursuant
to
Section
57.8(i)
and
Section
40
of
theAct
by
filing
a
petition
for
a
hearing
within
35
days
after
the
date
of
issuance
of
the
final
decision.
However,
Lic
)cKroIrt)
--
4302
NorIh
Main
Street,
Rocklord,
IL
61103
—
(815)
987-7760
•
Dt:s
PIAINFS
—
9511
W.
Harrison
St.,
Des
Plaines,
IL
60016
—
(847)
V
294-4000
FN
S’)S
South
State.
[1gm,
IL
(0123
—
10471
608-3131
•
PFORA
—
5415
N.
UniversitySt.,
Peoria,
IL
61614
—(3(19)
693-5463
BUREAU
jr
LAND
-
PrcwIA
—
7(20
N,
University
St.,
Peoria,
IL
61614
—
13(19)
693-5462
•
CHAMPAIGN
—
2125
South
First
Street,
Champaign,
IL
61820
—(217)
278-5800
SI’RIN;IeI
U
—
45(11)
S.
Sixth
Street
Rd.,
Spring6Id,
IL
62706
—(2171
786-6892
•
COLLINSvILLE
—
2009
MalI
Street,
Coflinsville,
IL
62234—1618)346-5120
MARIHN
—2309
W.
Main
SI.,
Suite
t
16,
Marion,
IL
62959—
(6]
8)
9’13-7200
I
PRINrin
I)N
Ri
(‘CLFI)
PAPFS
Page
2
the
35-day
period
may
be
extended
for
a
period
of
time not
to
exceed
90
days
by
written
notice
from
the
owner
or
operator
and
the Illinois
EPA
within
the
initial
35-day
appeal
period.
If
the
applicant
wishes
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
of
this
decision,
must
be
sent
to
the
Illinois
EPA
as
soon
as
possible.
For
information
regarding
the
request
for
an extension,
please
contact:
Illinois
Environmental
Protection
Agency
Division
of
Legal
Counsel
1021
North
Grand
Avenue
East
Springfield,
Illinois
62794-9276
217/782-5544
For
information
regarding
the
filing
of
an
appeal,
please
contact:
Illinois
Pollution
Control
Board,
Clerk
V
State
of
Illinois
Center
100
West
Randolph,
Suite
11-500
Chicago,
Illinois
60601
V
312/814-3620
If
you have
any
questions
or
require
further
assistance,
please
contact
Catherine
S.
Elston
of
my
staff
at
217/782-6762.
Sincerely,
E.
William
a’A’44cL,
Radlinski,
Manager
Planning
and Reporting
Section
Bureau
of
Land
EWR:
CSE:bjh\0885
1 .doc
Attachment
cc:
Laicori,
Inc.
LCU
File
Cathy
Elston
Attachment
A
Accounting
Deductions
Re:
LPC#0316575053--CookCounty
Chicago/Mobil
Gas
&
Mini
Mart
3935
South
Archer
Avenue
Leaking
UST
Incident
No. 20050020
Claim
No. 54597
Leaking
UST
Fiscal
File
Citations
in
this
attachment
are
from
the Environmental
Protection
Act
(Act),
as
amended
by
Public
Act 92-0554
on
June
24,
2002,
and
35
Illinois
Administrative
Code
(35
III.
Adm.
Code).
Item
#
Description
of
Deductions
1.
$13,340.08,
deduction
for
costs
for
removal,
disposal,
or
abandonment
of
UST if
the
tank
was
removed
or
abandoned,
or
permitted
for
removal
or
abandonment,
by
the
Office
of
the
State
Fire
Marshal
before
the
owner
or
operator
provided
notice
to
Illinois
Emergency
Management
Agency
of
a
release
of
petroleum.
Such
costs
are
ineligible
for
payment
from
the
Fund
pursuant
to
Section
57.8(k)
of
the
Act
and 35
Ill.
Adm.
Code
734.630(k).
Cost
for
tanlc
removal
costs
are
not
eligible
for
reimbursement.
2.
$98,760.00,
deduction
for
costs
which
lack
supporting
documentation.
Such
costs
are
ineligible
for
payment
from
the
Fund
pursuant
to
35
Ill.
Adm.
Code
734.630(cc).
Since
there
is
no
supporting
documentation
of
costs,
the
Illinois
EPA
éannot
determine
that
co’sts
will
not
be
used
for
activities
in
excess
of
those
necessary
to
meet
the
minimum
requirements
of
Title
XVI
of
the
Act.
Therefore,
such
costs
are
not
approved
pursuant
to
Section
57.7(c)(3)
of
the Act
because
they
may
be
used for
site
investigation
or
corrective
action
activities
in
excess
of
those
required
to meet
the
minimum
requirements
of
Title
XVI
ofthe
Act.
V
Remediation
and
disposal
costs
do
not
have
backup
invoices
for
backfill
costs,
overburden
costs,
permit
costs
in
the
amount
of
$46,960.00.
Paving
and
demolition
costs
do
not
have
backup
invoices
for
concrete
removal
and
replacement,
and
the
dismantling
and
reassembling
of
gasoline
pumps
in
the
amount
of$5l800..00.
EWR:CSE:bjh\08
852.doc
CERTIFICATE
OF
SERVICE
I, the
undersigned
attorney
at
law,
hereby
certifies
that
on
February
12,
2009,
I
served
true
and
correct
copies
of
Petitioner’s
Petition
for
Review
by first
class
mail
of
the
United
States
Postal
Service
upon
the
persons
as follows:
Pollution
Control
Board,
Attn:
Clerk
100
West
Randolph
Street
James
R.
Thompson
Center,
Suite
11-500
Chicago,
Illinois
60601
February
12,
2009
Law
Offices
of Cohen and
Hussien,
P.C.
Attorney Number:
39565
Attorneys
for
Petitioner
V
6901W.
111
th
Street
Worth,
Illinois
60482
(708)
361-3030
James
G.
Richardson
Illinois
Environmental
Protection
Agency
1021
North
Grand
Avenue
East
P.O.
Box
19276
Springfield,
Illinois
62794-9276
S&D
Realty
Inc.
By:
c(’cL9
One
of its
Attorneys