BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

WEEKE OIL COMPANY,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB No.

(LUST Pennit Appeal)

NOTICE OF FILING AND PROOF OF SERVICE

To:

John T. Therriault, Clerk

Illinois Pollution Control Board

James

R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, IL 60601

Division of Legal Counsel

Illinois Attorney General

Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

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

of the Illinois

Pollution Control Board, a Petition for Review

of Agency LUST Decision, a copy of which is

herewith served upon the attorney

of record in this cause.

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 counsel of

record of all parties to this cause by enclosing same in envelopes addressed to such attorneys at their

business addresses as disclosed

by the pleadings of record herein, with postage fully prepaid, and by

depositing same in the U.S. Mail in Springfield, Illinois on the 1

day of July, 2009.

WEEKE OIL COMPANY, Petitioner

By its attorneys,

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

THIS FILING IS SUBMITTED ON RECYCLED PAPER

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

WEEKE OIL COMPANY,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB ____ _

(LUST

Pennit Appeal)

PETITION FOR REVIEW OF AGENCY LUST DECISION

NOW COMES Petitioner, Weeke Oil Company ("Weeke"), 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

the

LUST decision issued June 4,2009, by Respondent Illinois Environmental Protection

Agency ("Agency"), in which the Agency refuses to pay, and in support thereof states as follows:

Weeke is the owner or operator

of underground storage tanks located in

Nashville, Washington County, Illinois, and assigned

LPC#1890305024.

In 1998, the tanks at the site were the subject of one or more releases, identified

as LUST Incident No. 982004.

Clean-up activities were subsequently undertaken at the property and a "No

Further Remediation" letter was issued on September 13,2006.

During recent on-site construction activities, substantial free product was

discovered on the site. The discovery was reported and assigned

LUST Incident No. 20081597.

Weeke submitted its 20-day report and 45-day report to the Agency. On December 8,2008, a

site investigation plan and budget were approved.

On February 4,2009, the Agency received an application for payment for work

Electronic Filing - Received, Clerk's Office, July 1, 2009

* * * * * PCB 2010-001 * * * * *

performed at the site.

On May 26,2009, the Agency sent a letter, stating that there are no reporting

requirements regarding this incident.

"Leaking UST Incident No. 20081597 is associated with

the same

4,000-gallon diesel UST, 4,000-gallon gasoline UST, and 6,000-gallon gasoline UST as

Leaking

UST Incident No. 982004, for which a No Further Remediation (NFR) Letter was

issued on September 13,

2006." A true and correct copy of the "Non-LUST" letter is attached

hereto as Exhibit A.

This letter does not appear to be appealable under the Act. (35 Ill. Admin. Code

Part 104, App. A) However, in an abundance of caution, this appeal is being filed within 35

days

of receipt of the Agency "Non-LUST" letter, in the event of contrary determination is made

at some point.

On June 4, 2009, the Agency denied the application for payment because all of

the costs "are associated with an incident for which neither the owner or operator nor his/her

representative have confirmed a

release." A true and correct copy of the Agency denial letter is

attached hereto as Exhibit B.

The Agency's denial

of payment is based on its own erroneous conclusion that

there has been no release at the site and its erroneous, belated, efforts to prevent reporting

of the

release. The Agency's decision is inconsistent with the record and its own past determinations at

the site.

WHEREFORE, Petitioner, Weeke, prays that: (a) the Agency produce the Record; (b) a

hearing be held; (c) the Board find the Agency erred in denying payment, (d) the Board direct

the Agency to approve payment in full, (e) the Board award payment

of attorney's fees; and (f)

the Board grant Prime such other and further relief as it deems meet and just.

Electronic Filing - Received, Clerk's Office, July 1, 2009

* * * * * PCB 2010-001 * * * * *

Patrick D. Shaw

WEEKE OIL COMPANY,

Petitioner

By its attorneys,

~YOF~&:AMI

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

THIS FILING IS SUBMITTED ON RECYCLED PAPER

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021 Norm1 GRANO AVENlJE

EAsr,

P.O. Box 19276,

SPRINGFlElD,ILUNOIS

62794-927& - (217) 782-2829

JAMES

R. THOMI'5ON

C£NllR,

100 WEST

RANDOLPH,

SlJlTl 11.300,

CHICAGO,

IL 60601 .. (312) 814-6026

DOUGlAS P. SCOTT, DIRECTOR

(217) 782-6762

CERTIFIED MAIL

MAY .1

zom

7006

11~0

DDO~ 73~S ~OlS

JamesWeeke

280 West

2rJ11! Street

Nashville,

62263

Re: LPC #1890305024 - Washington County

NaahvilleIWeeke, James

... -422

West

.St. LOuis Street

Leaking

UST Incid.ent No. 20081597

Leaking

UST Teclmical File

Dear Mr. Weeke:

The Dlinois Environmental Protection Agency

(Dlinoia

EPA) has reviewed

the

file for the above-

referenced incident. Citatioos in this letter are

ftom

the Environmental Protection

Act

(Act) and 35

Illinois Adminiltrative CocIe (35

Adm. Code).

Based on the infonnation currently

in the

Dlinois EPA's possession, this incident

not subjea

Dl.

Adm. Code 734, 732, or 731; therefore,

the

Dlinois EPA Leaking Underground Storage Tank Program has

reporting requirements

reprding this

incident.

Leaking UST Incid.ent No. 20081591 is usociated with

the

same 4,OOO-gallon diesel UST, 4.00O-gallon

gasoline UST,

and

6,()()()..gallon gasoline UST u

l~ldng

UST Ineid.ent No. 982004. for wbieh a No

Further Remediation (NFR) Letter

was

isllUCCi on September 13,

2006;

however, neither

the

owner or

operator nor

bisIher

representative have preaented. evidence of a new release. Specifieally.

nODe

of the

soil samples oollected

fi-om the

excavation following removal of the bec:kfil1 material contained.

concentrations ofBTEX. MTBE, or PNAa

~cess

of the most stringent Tier 1 re!l'lCdiation objectives.

In addition, no laboratory samples were oollected from the soU boring that was drilled adjacent to

the

pit.

H you have any questions or require assistance, please

contact

Trent Benanti at (217)

S24-4649.

Sincerely,

~~.·Lowdcr

Unit Manager

Leaking Underground Storap Tank Section

Division of Remediation Management

Bureau

of Land

MTI..;TLB:H:\Frojects2\Titn's Tsre Time\Letters\Non-LUST.docx

Applied Environmental Technoloaies, Inc.

BOLFile

EXHIBIT

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021 NOlrrH CIV.NO AVINUE &.sT, P.O. Box 19276. S,.R.III/CFlW), ILLINOIs 6279+9276 _ ( 217) 782.2829

JAMES

THOMPSON CINTER,

100

WEST RANOOIJIIoI, SUITE

11.300,

CHICAGO,

It 60601

(312) 81+6026

ROD

R. BLAGOIEVICH,

GOVERNOR

DOUGLAS P.

ScOTT,

DIIUCTOR.

2171782-6762

JUN

,,21m

Woeke Oil CoIllpany

Attention:

James Weeke

280 West Second Street

Nashville, Dlinois 62263

Re:

LPC #1890305024 - Washiugton County

Nashville/Weeke, James

422 West St. Louis Street

I:ncidcnt-Claim

No.: 20081597 - 56127

Queue Date: FcbI'lliUY

2009

Leaking

US! FISCAL FILE

Dear Mr. Weeke;

CERTIFIED MAIL

7007 0220 DODO 0150 7b32

The IDinois Environmental Protection Agency has completed the review of your application for

payment

.ti'oI1l

the Underground Stomge Tank Fund for the above-referenced Leaking UST

incident pursuant

Section 57.8(a) of the Illinois Environmental Protection Act (Act).

and

Ill. Adm. Code 732, Subpart F. This information is dated February 2, 2009 and was received

the Agency on February 4,2009. The application,for payment covers

the

period from September

17,2008

to February 11, 2009. The amount requested is S50,973.41.

The deductible BmOWlt to be assessed on this claim is 510,000.00, which is being deducted from

this payment.

addition to the deductible, there are costs from this claim that are not being

paid.

Listed in Attachment A are the costs that Sl'e not being paid and the reasons these costs are

not being paid.

February 4, 2009, the Agency received your application for payment for this claim.

result of the Agency's review oftrus application for payment, a voucher cannot be prepared for

submission to the Comptroller's office for payment. Subsequent applications for payment

that

have been/are submitted will be processed based upon the date complete $Ubsequent application

for payment requests are received

the Agency. This constitutes the Agency's final action with

regard to the above application(s) for payment.

An underground storage tack owner or operator may appeal this

final

decision to the Illinois

Pollution Control Board (Board)

PW'SU311t

to Section 57.8(i) and Section 40 of the

Al;t

by filing a

petition

for a hearing within 35 days after the date ofissuanoe of the final decision. However,

RO(:K'OIlO - 'U02 NOrm Nliin S(r"et Roekfo.d, It 61103 - (1115)

n'.776() •

DIS PIJ'I'Na

9511 W. M.rrlsol'l

$\., 0., Plain ... ,

IL 60016

-11147)

19404000

E~GIN

- 595 Soulll

Sum:, !IP'1,

Il60123 - (847)

608-3131

•

PIQAI", -

5-415

Univer5l~

St.,

P'Olli,11. "1114 - (l09) 6" • .5461

9l.m .. v

o~ I.~Na· P~Qa,

... -

7620

N. untvtrt!t,r St ..

Peerll,lL

61614 - (309) 693.$464 • C""'MI'",tCN -l1Z5 Souttl flrst Str,,\, Champaign,

6182a-...... llll

rvL11D1T

II1II ... --.

COL\)NSVI~~i

-2009

NIall

SI .... I,

CoKlnwUMI,

622304 - (618) 346-512Q

•

MARION -

2309

W. Main

St, Suit., 111j, Mlrlon, Il629S9

(61

I:N1IDII

I 6

Page 2

the 3S-day period may

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.

the

applicant wishes

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

217n82-S544

For information regarding the filing of an appeal, please contact:

Illinois Pollution Control Board, Clerk

State of nlinois Center

100 West Randolph. Suite 11-500

Chicago,

Illinois 60601

3121814--3620

you have aay questio .. or require further .sslrtuce, pleue contact Doug Tolan of blY

staff and/or Trent Be.aDti at 211 nS2-6761.

Sincerely,

~~tJ.,t:

John Sherrill, Manager

Financial Manaiement

Unit

Bureau of Land.

JS:DT:bjh\092117.doc

ec:

Applied Bnvirontnellta1

Tec:hnologi~

Inc. '

LCUFile

Doug Tolan

Trent

Bc;nanti

Attachment A

Technical Deductions

Re:

LPC #1890305024 - Washington County

NashvillcIWeekc,

James

422 West St. Louis Street

Incident-Claim No.: 20081597..56127

Queue Date: February 4, 2009

Leaking UST Fiscal File

Citations in this attachment are from the Environmental Protection Act (Act), as amended by

Publio Act 92-0554 on June 24, 2002. and 35 nHnois Administrative Code (35 nt, Adm. Code).

Item #

Description of Ded\lcrlons

$50,973.41 for costs that are associated

with

an incident for which neither the owner

operator nor hislher representative have confirmed a release. Pursuant to Section

57.9(&) of the Act. the Underground Storaae Tank Fund shall be accessible by owners

or operators Who have a confirmed release from an underground storage

tank

(UST)

or related

tank

system of a substance

listed

in said Section.

Leaking

UST Incident No. 20081597 is associated

with

the same 4,OOO-gallon

diesel UST, 4,ooo.gallon gasoline UST.

and

6.000-aallon aasotine UST as

Lcak.ina UST Incident No. 982004.

for

which a No Further Remediation (NFR)

Letter was issued on September 13. 2006;

however~

neither the owner or operator

nor hislher representative have confirmed a new release. Specifically, none of the

soil samples collected from the excavation following removal of the baekfill

material contained

cOncentrations ofBTEX. MTBE. or PNA!

excess of the

most

st:r.ingent Tier 1 ren\cdiation objectives. In addition, no laboratory samples

were collected from the soil boring that was drilled adjacent

the pit.

MTL:TLB:H:\Projccts2\Tim's Tire Time\LCU\Non-LUST.docx

Electronic Filing - Received, Clerk's Office, July 1, 2009

* * * * * PCB 2010-001 * * * * *