BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

SIMONS AUTO

SERVICE CENTER,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB 09-37

(LUST Permit

Appeal)

NOTICE OF FILING AND PROOF OF SERVICE

To:

Clerk

Illinois Pollution Control Board

State

of Illinois Center

100

W. Randolph, Ste. 11-500

Chicago, IL 60601

Melanie

Jarvis, Assistant Counsel

Division

of Legal Counsel

Environmental Protection Agency

1021 North Grand Avenue East

PO Box 19276

Springfield, IL 62794-9276

PLEASE TAKE NOTICE that I have today electronically filed with the Office of the Clerk of the

Illinois Pollution Control Board, pursuant to Board Procedural Rule

101.302 (d), a Petition for Review of

Agency LUST Decision, a copy of which is herewith served upon the Illinois Environmental Protection

Agency.

The undersigned hereby certifies that a true and correct copy

of this Notice of Filing, together with

a copy

of the document described above, were today served upon the Illinois Environmental Protection

Agency

by enclosing same in an envelope addressed to Melanie A. Jarvis, Assistant Counsel, with postage

fully prepaid, and

by epositing said envelope in a U.S. Post Office Mailbox in Springfield, Illinois on the

2..-4

day of

IF/'

20~9.

BY:

Fred C. Prillaman

MOHAN, ALEWELT, PRILLAMAN & ADAMI

1 North

Old Capitol Plaza, Suite 325

Springfield, IL 62701-1323

Telephone: 217/528-2517

Facsimile:

217/528-2553

Respectfully submitted,

SIMONS

r....PR::lIldJIMAN & ADAMI

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

SIMONS AUTO SERVICE

CENTER,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB 096-37

(LUST

Permit Appeal)

PETITION FOR REVIEW OF AGENCY LUST DECISION

NOW COMES Petitioner, Simons Auto Service Center ("Simons"), pursuant to Section 40 of the

Illinois Environmental Protection Act, 415

ILCS

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 October 21, 2008, by Respondent Illinois Environmental Protection Agency ("Agency"), in

which the Agency failed and refused to approve the payment

of $12,485.58 for costs, and in support thereof

states as follows:

BACKGROUND

1. Simons is the owner of. the underground petroleum storage tanks at the service station located at

10085 Lincoln Trail in Fairview Heights, St. Clair County, Illinois, LPC #1630525018, Incident #20071485

-- 54576.

On June 27,2008, the Agency received from Simons its request for reimbursement for

$36,734.36, for the billing period

of November 1, 2007 through May 31,2008, together with all required

engineeres' certifications, owner/operator billing certifications, and related Agency forms duly completed,

and all required supporting documentation and justification, as required

by applicable law.

3. Ail Hne-item sums requested for reimbursement were within the Agency's previously-approved

format for early action costs.

4. The amounts requested for reimbursement were certified

by Simons, on the Agency's own forms,

as being correct and reasonable and submitted

in accordance with applicable laws, as follows:

The attached application for payment and all documents submitted with it were prepared

under the supervision

of the licensed professional engineer or licensed professional

geologist and the owner and/or operator who signatures are set forth below and in

accordance with a system designed to assure that qualified personnel properly gathered and

evaluated the information provided. The information in the attached application for

paymentis, to the best

of my knowledge and belief, true, and complete.

The costs for remediating the above-listed incident are correct, are reasonable, and

applicable, were determined in accordance with Subpart H: Maximum Payment Amounts,

Appendix

D. sample Handling and Analysis amounts, and Appendix E Personnel Titles and

Rates

of35 Ill. Adm. Code 732 or 734.

5. Nevertheless, on October 21, 2008, the Agency prepared its letter notifying Simons that it was

refusing to approve for payment $12,485.58

of said costs, the sole and entire reason for the rejection

appearing in the Agency's final decision attached hereto as Exhibit

B. DATE ON WHICH THE AGENCY'S FINAL DECISION WAS SERVED

The Agency's final decision was dated October 21, 2008. On December 1,2008, the parties timely

filed a request for 90-day extension of the appeal period, pursuant to Section 40(a)(I) of the Illinois

Environmental Protection Act, 415 ILCS 5/40(a)(I), which request has since been granted, extending to

March

1,2009, the deadline for filing an appeal. This appeal is timely filed.

C. CONFIRMATION OF APPROVAL OF $9,248.78 FOR PAYMENT

Simons is not appealing the $9,248.78 approved payment, and hereby confirms that the Agency will,

in fact, prepare a voucher in that amount for submission to the Comptroller's Office for payment, as funds

become available based upon the date the Illinois EPA received the application for payment.

D. ACCEPTANCE OF $105.00 DEDUCTION FOR COSTS FOR FP DISPOSAL

Simons, though not conceding that its application for payment of $180.00 for FP Disposal lacks

supporting documentation, does not appeal from that deduction.

GROUNDS FOR APPEALING THE $12,380.58 IN REJECTED COSTS

The majority of the $12,380.58 costs rejected by the Agency were costs submitted per bidding,

which the Agency wrongfully rejected for reasons nowhere found in applicable statutes, regulations, or even

Electronic Filing - Received, Clerk's Office, February 26, 2009

on the Agency's own forms. Specifically, the Agency rejected $10,708.45 of the costs for five (5) reasons,

none

of which are reasons for rejection provided in applicable statutes, regulations, or even on the Agency's

own forms, tthe first 4

of which are as follows:

a. Per the Agency, "in order for the bids to be reviewed, ... a breakdown of what is included in the

bid

... must be provided." This is legally incorrect. No statutes or regulations, nor even the Agency's own

forms, require such

"breakdowns" to be provided, either for purposes of "reviewing" the bids or, pertinent to

this appeal, for reimbursement

of costs.

b. Per the Agency, "in order for the bids to be reviewed, ... a breakdown of what ... specific costs

exceed the

Subpart H rates must be provided." This is equally incorrect, as a matter oflaw. No statutes or

regulations, nor even the Agency's own forms, require such

"breakdowns" to be provided, either for

purposes

of "reviewing" the bids or, pertinent to this appeal, for reimbursement of costs.

Per the Agency, "in order for the bids to be reviewed, . .. justification must be provided to

document why the bids were

necessary." The Agency is legally incorrect on this argument, as well, since no

statues or regulations, nor even the Agency's own forms, require such

"justification" to be provided, either

for purposes

of "reviewing" the bids or, pertinent to this appeal, for reimbursement of cost.

d. Per the Agency, "in order for the bids to be reviewed, . .. justification must be provided to

document

... why the Subpart H rates could not be met for this project." This reason for rejection is equally

flawed; no statutes

or regulations, nor even the Agency's own forms, require such "justification" to be

provided, either for purposes

of "reviewing" the bids or, pertinent to this appeal, for reimbursement of cost.

If such "breakdowns" and/or "justifications" were required (which they were not; indeed, neither

of these terms appear anywhere in the regulations), they would have been furnished by Simons on the

Agency's own forms,

in response to the Agency's request to furnish same. However, the Board's

Regulations are very clear on this point: bids submitted in accordance with

35 Ill. Adm. Code 734.855 shall

include only the degree

of specificity required on the form itself, as prescribed by the Agency. The

Agency's forms did not ask for this so-called

"breakdown" or "justification" information. Simons did

exactly what the Agency, in its forms, required, yet in its rejection letter the Agency, for the first time,

demanded that the information requested on its own forms was not enough, and that more was needed. This

is a fundamentally unfair reason to deny reimbursement, akin to rejecting bids on a public project that fail to

conform to the specifications first published after the bidding is closed.

3. None

of these after-the fact requests for further information appear anywhere in the regulations

in the form prepared by the Agency itself, which form was fully completed by each of the bidders and by

Simons, as well as by Simons' consulting engineer. The Agency does not complain that the form itself is

incomplete.

4. Indeed, at no time during the Agency's consideration

of Simons request for reimbursement did

the Agency request any further or additional information concerning any particular item

of remediation and

disposal.

5. As and for its fifth reason for rejecting costs arising from bidding, the Agency mistakenly argues

that

Simons' request for reimbursement exceeds the lowest bids. This is simply not true. Simons'

application for payment included $7,991.77 for Excavation, Transportation and Disposal (E, T

D), which

was substantially less than the $11,399.36 which the lowest bidder, Kevin Williams Excavating, LLC, bid on

this item, for the reason that

Simons excavated only 78.52 cubic yards of contaminated soil, not the 112

cubic yards estimated by Williams in making his bid. Similarly,

Simons' application for payment included a

$2,716.68 item for Backfill, which was also substantially below the $3,599.48 bid

of Williams, the lowest of

the three bidders, also for the reason that less clean fill (87.55 cubic yards) was used than estimated by

Williams (116 cubic yards) in bidding on Backfill. However, despite the fact that Simons' application for

reimbursement for these two items used the lowest rates appearing in the three bids (Williams' bid rates

were

$1 Ol.78/cubic yard for E, T

D and $31.03/cubic yard for Backfill, and both were the lowest of the 3),

the Agency inexplicably states that

Simons requested reimbursement at rates much higher than Williams'

bids, rates that nowhere appear anywhere in the Record, and certainly not in the request for reimbursement.

The Agency is simply refusing

to acknowledge a typographical error appearing in Simons' request for

Electronic Filing - Received, Clerk's Office, February 26, 2009

reimbursement, on the "Equipment" form, where the quantities and rates for E, T

D and Backfill are

expressed in tons rather than in cubic yards, an obvious typo that should not have affected the outcome, yet,

the Agency failed to contact Simons or his consultant upon discovering this typo, and failed to give Simons

or his consultant the opportunity to explain and/or

clarifY, choosing instead to use this against Simons.

6. As to the remaining $1,672.13 in wrongfully rejected costs, the Agency mistakenly believes that

they lacked supporting documentation. Specifically,

$1,270.48 was deducted for the cost for direct push

drilling, yet all required information and supporting documentation necessary to reimburse for this cost, was,

in fact, submitted with the application, and

is part of this record. Moreover, the Agency erroneously

deducted

$401.65 for concrete replacement, even though that particular request for reimbursement was

supported by adequate documentation which was required at the time. Agency policy did not require the

application

to include names of the laborers who performed the framing, pouring, screeding and finishing,

or their hours

of works or rates of pay, so, in accordance with long-standing Agency policy, Simons

furnished only the paid invoice itself (totaling $614.75)1.

7. To the extent that the Agency ascertained, during the pendency of the subject request for

reimbursement, that either the facts

or conclusions presented by Simons 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 its purported reasons for

denial.

8. In rejecting $12,380.58 for costs of reimbursement for this remediation work, the Agency acted

arbitrarily and contrary to the certified facts presented, contrary to its own prior interpretations

of applicable

laws and policies, contrary to its own established customs and practices, and contrary to the law.

REQUESTED RELIEF

lIt

was only after the Agency first advised Simons that it was changing its policy and was

now requiring such labor records that Simons, in fact, provided them to the Agency, showing that

$401.65 was spent on labor for concrete replacement, so the Agency knows that this particular

item is fully supported by required documentation.

WHEREFORE, Petitioner, Simons Auto Service Center, prays that: (a) the Agency produce the

Record; (b) a hearing be held; (c) the Board find that Simons application for LUST reimbursement contained

all information and documentation necessary to support the $12,380.58 for costs rejected by the Agency,

and, accordingly; (d) the Board direct the Agency to restore the $12,380.58 in costs rejected and to prepare

a voucher for $12,380.58 and to submit that voucher to the Comptroller's Office for payment as funds

become available, based upon the date the Agency received the subject application for payment; (e) the

Board grant Simons his attorney's fees; and (f) the Board grant Simons such other and further relief as it

just.

Patrick D. Shaw

Fred C. Prillaman

By:

MOHAN, ALEWELT, PRILLAMAN & ADAMI

1 N. Old Capitol Plaza, Ste. 325

Springfield,IL 62701

Telephone:

217/528-2517

Facsimile:

217/528-2553

Respectfully submitted,

SIMONS AUTO SERVICE CENTER,

Petitioner

By his attorneys,

MOHAN, ALEWELT, PRILLAMAN & ADAMI

THIS FILING IS SUBMITTED ON RECYCLED PAPER

Electronic Filing - Received, Clerk's Office, December 1, 2008

* * * * * PCB 2009-037 * * * * *

ILLINOiS EN\'IRONMENTAl PROTEC7!ON .AGENCY

1021 NOI1Tf.!

G;:!,',~

''',",'i'''.,;

E...ST. p.o. SO); 19276,

Sf"!INOli:~c-.

1i.."I*;)"

6279..;...9176 - (

217;

181-339;-

IA.~E~

R. -;-

...jr)M"S':::l"

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w~ I\.ANDQL1'~'.

5: 'rTf

.300,

C'il: .... ..:;O.

Il &060: - fJ 11;

B14-602:-

Ro!:':

R. BLAGOJ£VICH. G::h!ERr-lap-

D::);";G;,, ...

P. Scor., DIRECTOR

117:782-6

Simons Service Auto Service Center

Attention:

Roben Simons

CW3

Company

Inc.

POBox 571

Carlinville, Illinois 62626

CERTIFIED M.AJL #

7007 0220 0000 0150 7076

Re:

LPC#163.0525018

81.

Clair County

Fairview Height5lSUoons .t\.Uto Sen4ee Center

1 008S!,jncoln Trail

Leaking'UST Incident NQ, 200114&5

Oairn

No. 54516

Leaking LIST FISCAL Fll..E

Dear Mr. Simons:

The Illinois EnviroDlI'lental Protection Agency

has

completed th.e review

your

application for

payment from the Underground Storage Tank Fund for the above-;referenced Leaking UST

incident pursuant to Section 57.S(a) oftIle Illinois Emtiromnental Protection Act (Act), and 35

ill.

Am Code 732. Subpart F. This information is

da1ed

June 27, 2008 and was received by the

Agency on June 27,2008. Th(1l applicationfarpaymenlco

ers thepenoa from November I,

2007

to M.ay 31, 2008. The atn.(}llntrequested

$36,134.36.

The deductible amount to be assessed on this claim

$15,000.00, which is being deducted from

this payment.

addition

the deductible, there are costs from this clainl that are

not

being

naid. Listed

in Attachment A are the costs that are not being paid and the reasons these costs are

nl)t being paid.

00 June 27, 2008, the Agency received your application for payment for this claml. .As. a result

of the Agency's review of this application for payment. a voucher for $9).48.78

will

be prepared

for submission to the Comptroller'E Office for payment as

filDds

become available based upon

the date the Agency received your complete request for payment of this application for payment.

Subsequent: applications for paymem that have been/are submitted. ,,{ill be processed based upon

the

date complete subsequent application for payment requests are received by the Agency. This

ccnstiru.res the Agency's fina.l action with regard to the aOove application(s) for payment.

An underground storage tank o"'ner or operator may appeal this final decision to the Illinois

P(lllution ContTol Board !'Board) pursuant to Section 57.8(i) and Section 40 of the Act bv filinu a

petition for a hea..-jng within 35

d~ys

after the date

ofissua~ce

of the final deeision.

Ho\~'e·.~er:"

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Electronic Filing - Received, Clerk's Office, February 26, 2009

Page 2

Electronic Filing - Received, Clerk's Office, December 1, 2008

* * * * * PCB 2009-037 * * * * *

the

3.5~day

period may be extended far a period of time not to exceed 90 days' by wtitlen notice

from

the

O\1ilJler or operator and the Illinois EPA '''''1m

the initial 35-day appeal period.

the

applicant wishes to receive a 90-day extension, a written request

that

includes a statement of the

date the fmal decision was

receiv~d,

along \\rith a copy of this decision" must

!lent

the

illinois EPA as soon as pl)ssibk

For infomlstiDn regarding the request for an extension, please contact:

DlinGis EnvirOlUlletltal ProteCtion Agency

D.i.\'ision of Legal Counsel

1021 North Grand Avenue Bast

SpringtieJd. Ulinois 62794-9276

2171782-5544

For information regarding the filing of an

appe~l,

please contact:

lllinois Pollution Control Board. Cler,k

State

ofIDinois Center

100 West

Raudo~

Suite, 11-500

Chicago, nIillois6060J

312/814-361.0

If YOl1,have an}'

~n,

or reqUire

fUtberam.taa~

pleue

eout1letn~es:.SittOn

Q-r

Brio Bauer of my staff

217/182--6162.

Sincerely,

.E.

WiUiam:Rad1inski,

e,J1vn7/L,

Manager

Planning and Reporting seCtion

Bureau orLand

EVlR:TS:bjh\08753.doc

cc:

CW'M

C.ompany Inc.

LCUFile

Theresa Sitton

Electronic Filing - Received, Clerk's Office, December

2008

* * * * *

PCB 2009-037

* * * * *

Attachment

Technical Deductions

Re:

LPC

J 6305:2501

- S:. Clair County

Fairview Heights Simon Auto Service

10085 Lincoin Trail

Leaking UST hwidem 2'0. 20071485

Claim No. 54576

Leaklng UST Fiscal File

Citations

this attachmen! are from

the

Environmental Protection Act

(Act),

as amended by

Public Act

92~0554

on June 24, 2002. and 35 Illinois Adlllinisttative Code (35 TIL Adm. Code).

{tem #

Description or Deductions

$105.00, deduction for costs for FP dispQsal, which lack supporting documentation.

Such costs are ineligible for payment from. the Fund pursuant

ttl

35 111. Adm. Code

734.630(ce).

Smcethere

is no supporting docmnentalitln of cOsts, the Illinois EPA

cannot detem1ine that costs will not be used mractjvities in excess of those necessary

to meerthe..minilnmn. requiremoot$ of Title

XVI

of the Act Thererore, such costs are

not

approved:pun,.~an1

to SeCtionS7.7{c){.3) oftheAct becaosethey may be used for

site investigation OT corrective action acbyiti-es in excess of those required to meet the

minimum requirements of Title A'VI of the Act.

The invoice from Safety Kleen Systems was for $75.00, the amoun1 requested was

$18.0 . .00.

$11,978.93 for CQsts that lack Sl,lpporting documentation.and justification. Pursuant to

35 IlL Adm.. Code 7l4.tj05(b)(9} and 7:34.630(cc), llPplicationforpaymen.ts must .include

an accounting of all costs. mcl:uditl$ but not limited to, invoices, receipts,.anq supporting

documentation

9howingthe~tes$4descripti.®s

the worK: peITori11ed.

Ina4dition,

reaseIl$leneg.o;ofoostS cannatbe

detetmined

withom doc:wnent-ation. Pursuant to

734. 630(

ee), coats

lnWlITe4duringearly action that

BrelJ.Qr'e8S.onab)e

are ineligible.

*$ 1,270.48 Direct Push Drilling.

*$ 7,991.77 Excavation, Transportation, and Disposal.

*$ 2,716.68 Backfill.

$10.708.45 of the costs in

#.1

above were submitted

per

bidding. In order for the bids to

be revjewedpursuant to 35 TIL Adm. Code 734.855, a breakdown of what

included

the bid and what specific costs exceed the Subpart H rateE, must be provided.

Justification must be provided 10 document why the bids were necessary and whv the

SubpartH rates could nOt

met for this project

Electronic Filing - Received, Clerk's Office, December 1, 2008

* * * * * PCB 2009-037 * * * * *

addition, the amount ($ 1 0,708.4:5 ) submitted for reimbursement

ex;ceed~

tb.e IO'''e5t

rates that were submitted in the lowest bid by 53 .• 541.42. The lowest bid for ET &D was

$101.78 per cubic yard and backfill was $3 L03 per cubic yard however the request for

reimburseme(lt requested SlSO.70 per cubic

yard

£'r&D Q:nd$47.63 per cubic yard for

backfiU. Pursuant to 3S

ill.

Adm. Code 734.630(cc) these cost lack supporting

docwnentation.

$401.65, deduction for costs for concrete replacement, which lack supponing

doc.umentarion. Such costs are ineligible fur payntel1t from the Fundpum1ant to 35

m .

:bb\

. Adm. Code 734.630( cc). Since there is no supporting documentation

costs,

Illinois

EPA cannot determ.ine that costs will Dot be used for activities

~nex~

oftbose

nec~

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

b~1ltlSe

they may be

used for site investigation or corrective action activities in excess of those required to

meet

the minimum requirements of Title XV1 of the Act.

The invoices from Metro Concrete total $614.75, the amount requested

was

$1,016.40.