BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

KELLER OIL PROPERTIES, INC., TILTON)

SUPERK

)

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB No._-,,-;_---:-::-_

(LUST Permit Appeal)

NOTICE OF FILING AND PROOF OF SERVICE

To:

John

Therriault, Clerk

Illinois Pollution Control

Board

100 West Randolph Street

State

of Illinois Building, Suite 11-500

Chicago, IL 60601

Division of Legal Counsel

Illinois Environmental Protection

Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

PLEASE TAKE NOTICE that

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 hearing officer and counsel of record to all parties to this

cause by enclosing same in an envelope addressed to such attorneys at their business addresses as disclosed by the

pleadings

of record herein, with postage fully prepaid, and by depositing said envelope in a U.S. Post Office Mailbox in

Springfield, Illinois on the

20th day of May, 2009.

Patrick

D. Shaw

Fred C. Prillaman

BY:

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,

KELLER OIL PROPERTIES, INC., TILTON

SUPERK,

Electronic Filing - Received, Clerk's Office, May 20, 2009

* * * * * PCB 2009-111 * * * * *

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

L. KELLER OIL PROPERTIES, INC., TILTON

SUPERK,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB ______________ _

(LUST Permit Appeal)

PETITION FOR REVIEW OF AGENCY LUST DECISION

NOW COMES Petitioner, L. Keller Oil Properties, Inc., Tilton Super K, pursuant to Sections 40 and

57.8 (i) of the Illinois Environmental Protection Act, 415 ILCS

5140

and 5/57.8 (i), 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 April 15, 2009, by Respondent Illinois Environmental

Protection Agency (" Agency"), in which the Agency failed and refused to approve the payment of

$116,041.71 for costs, and in support thereof states as follows:

BACKGROUND

1. L. Keller Oil Properties, Inc., Tilton Super K (''Tilton'') is the owner of the underground

petroleum storage tanks at the service station located at 100 East 2

Street in Tilton, Vermilion County,

Illinois, LPC #1830905040, Incident #20081231 .- 55903.

December 17, 2008, the Agency received from Tilton its request for reimbursement for

$116,041.71, for the billing period of August 1, 2008 through October 31, 2008, together with all required

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

and all required supporting documentation and justification, as required by applicable law.

3. Allline.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 Tilton, on the Agency's own forms,

Electronic Filing - Received, Clerk's Office, May 20, 2009

* * * * * PCB 2009-111 * * * * *

as being correct and reasonable and submitted in accordance with applicable laws. Specifically, Tilton

certified to the Agency that:

•

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 whose 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

payment is, to the best

of my knowledge and belief, true, and complete.

•

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

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

of 35 TIL Adm. Code 732 or 734.

5. Nevertheless, on April 15,

2009, the Agency prepared its letter notifying Tilton that it was

refusing to approve for payment $83,560.12

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 April 15, 2009 and, on information and belief, was served on

or after April 15,

2009, making May 20,2009, the deadline for the filing ofthis appeal, pursuant to Section

40(a)(1)

of the lllinois Environmental Protection Act, 415 ILCS 5/40(a)(I). This appeal is timely filed.

C. CONFIRMATION OF APPROVAL OF $17,481.79

FOR PAYMENT

Tilton is not appealing the $17,481.79 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.

GROUNDS FOR APPEALING THE $83,560.12 IN REJECTED COSTS

The majority of the $83,560.12 costs rejected by the Agency were costs for excavation,

transportation, disposal and backfill, all

of which were Subpart H minimums, yet the Agency wrongfully

rejected them for reasons nowhere found in applicable statutes, regulations, or even on the Agency's own

forms. Specifically, the Agency rejected $72,153.06

of these costs for the reason that they "lack supporting

documentation and justification", what the Agency claims are missing

"invoices, receipts, and supportive

Electronic Filing - Received, Clerk's Office, May 20, 2009

* * * * * PCB 2009-111 * * * * *

documentation showing the dates and descriptions of the work performed".

2. However, all required supporting documentation was, in fact, provided. Moreover, no statutes or

regulations, nor even the Agency's own forms, require more documentation to be provided than that which

Tilton provided here, for purposes

of reimbursement particularly where (as here) the costs are the Subpart H

minimums.

3. The Agency does not state what it means by the lack of "justification" for rejecting $72,153.06

for these costs. Indeed, no statues or regulations, nor even the Agency's own forms, require such

"justification" to be provided for purposes of reimbursement.

If such "justifications" were required (which they were not; indeed, the term nowhere appears in

the regulations), they would have been furnished by Tilton on the Agency's own forms, in response to the

Agency's request to furnish same. However, the Agency's forms did not ask for this so-called

"justification"

information. Tilton 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, even though the costs were the

Subpart H minimums. This is a fundamentally unfair reason to

deny reimbursement.

addition, the Agency wrongfully denied or rejected $1,308.60 for costs for direct push

minimum charge, and

$8,850.00 for canopy demolition and removal charge, both for what the Agency

claims is a

"lack of supporting documentation." However, all required information and supporting

documentation necessary to reimburse for these cost items were, in fact, submitted with the request itself.

6. At no time during the Agency's consideration of Tilton's request for reimbursement did the

Agency request any further

or additional information or documentation concerning any particular item of the

request.

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 Tilton were inaccurate

or incomplete, the

Agency had a duty to disclose such information in writing during the Agency's statutory review period, but it

Electronic Filing - Received, Clerk's Office, May 20, 2009

* * * * * PCB 2009-111 * * * * *

failed to do so, and failed to request additional or clarifying infonnation concerning its purported reasons for

denial.

addition, the Agency wrongfully denied $112.01 in costs for bidding, $1,000.00 for asbestos

inspection,

$120.00 for handling charges, and $16.45 for hotel charges, all of which were rejected for

reasons that are not factually or legally correct.

fact, in rejecting all $83,560.12 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.

10.

addition, a free-standing sentence appears at the bottom ofthe second page of Attachment A

to the Agency's denial letter (Exhibit A hereto), which appears to be an additional reason for the Agency's

denial

of the $8,850.00 in costs for canopy demolition and removal charges, but could have been intended by

the Agency to apply to all

of the rejected items. That sentence provides as follows:

"A time and materials breakdown and copies of invoices from all subcontractors is required

to be

submitted."

11. Nowhere in the Act or in the Board rules are downstream "time and materials breakdowns" --

that is, itemization from downstream subcontractors, sub-subcontractors, and material suppliers to

subcontractors -- required, and to deny requests for reimbursement for failure to supply such

"breakdowns"

is contrary to the law, as well as contrary to the Agency's own past practices.

REQUESTED RELIEF

WHEREFORE, Petitioner, Tilton Super K, prays that: (a) the Agency produce the Record; (b) a

hearing be held; (c) the Board find that Tilton's application for

LUST reimbursement contained all

infonnation and documentation necessary to support the $83,560.12 for costs rejected

by the Agency, and,

accordingly; (d) the Board direct the Agency to restore the $83,560.12 in costs rejected and to prepare a

voucher for $83,560.12, and to submit that voucher to the Comptroller's Office for payment as funds

Electronic Filing - Received, Clerk's Office, May 20, 2009

* * * * * PCB 2009-111 * * * * *

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

Board grant Tilton its attorney's fees; and (f) the Board grant Tilton 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,

KELLER OIL PROPERTIES, INC.ITILTON

SUPERK,

Petitioner

THIS FILING IS SUBMITTED

ON RECYCLED PAPER

Electronic Filing - Received, Clerk's Office, May 20, 2009

* * * * * PCB 2009-111 * * * * *

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* * * * * PCB 2009-111 * * * * *

Electronic Filing - Received, Clerk's Office, May 20, 2009

* * * * * PCB 2009-111 * * * * *

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* * * * * PCB 2009-111 * * * * *