MICK’S GARAGE,
ItECE~VED
BEFORE THE POLLUTION CONTROL BOARD
CLJ~R~,S
OFFT~p
OF THE STATE OF ILLINOIS
V.
Petitioner,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Respondent.
)
)
)
PCBNo.03-126
)
(UST Appeal)
)
)
NOTICE
Curtis W. Martin
Shaw & Martin
123
South Tenth Street
Suite 302
P.O.
Box 1789
Mt. Vernon, IL 62864
SEP
1
8
2003
S’Iy-cc~OF ILLINOIS
Po//~tj017Controj Board
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue, East
P.O. Box 19274
Springfield, IL 62794-9274
PLEASE
TAKE NOTICE that I
have today
filed with the
office of
the
Clerk of the
Pollution
Control Board a RESPONSE TO PETITIONER’ S BRIEF, copies of which are herewith served upon
you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Assis’iant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North
Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: September
16, 2003
flECE~VED
BEFORE
THE POLLUTION CONTROL BOARD
CLERIcS
~
OF THE STATE
OF ILLINOIS
SEP
182003
MICK’S GARAGE,
)
STATE
OF ILLINO
Petitioner
/
rollutlon Cont
v.
)
PCB No.
03-126
ro, Doard
ILLINOIS ENVIRONMENTAL
)
(UST Appeal)
PROTECTION AGENCY,
)
Respondent.
)
RESPONSE
TO
PETITIONER’S BRIEF
NOW COMES the Respondent, the Illinois
Environmental Protection Agency
(“Illinois
EPA”), by
one
of its
attorneys, John J.
Kim,
Assistant
Counsel and
Special
Assistant Attorney
General, and,
pursuant
to an
order
entered
by the
Hearing Officer dated July
28,
2003,
hereby
submits
its Response to the Petitioner’s Briefto the Illinois Pollution Control Board (“Board”).
I.
BURDEN OF PROOF
Pursuant
to
Section
105.112(a)
of the
Board’s
procedural
rules
(35
Ill.
Adm.
Code
105.112(a)),
the
burden
of proof
shall
be
on
the
petitioner.
The
burden
of
proving
that
challenged costs
in
a
claim for reimbursement are reasonable
and
related to
corrective action
rests solely on the applicant for reimbursement.
Richard and Wilma Salyer v. Illinois EPA, PCB
98-156
(January 21,
1999), p.
3;
See
also,
Ted Harrison Oil
Company v.
Illinois
EPA, PCB 99-
127
(July 24, 2003), pp.
3-4 (the burden ofproof is
on the owner or operator ofan underground
-
storage tank to
provide an accounting of all
costs).
Similarly, in the present case, the burden of
proving
that
the
decision
under
appeal
(dated
January
10,
2003)
was
erroneous
is
upon
the
Petitioner;
more
specifically,
the
Petitioner has
the
burden of proving
that
the portion
of that
decision related to the deductible applicable for the site is incorrect.
1
II.
STANDARD OF
REVIEW
Section 22.18b(g) ofthe Environmental
Protection Act (“Act”) provides that an applicant.
may appeal an Illinois EPA decision denying reimbursement to the Board under the provisions of
Section 40 ofthe Act
(415
ILCS
5/40).
Pursuant to
Section 40 ofthe Act, the Board’s standard
ofreview is whether the application submitted to the Illinois EPA would
not violate the Act and
Board regulations.
Ted Harrison, p.
3.
In this
situation, the Board’s standard of review should
be whether the information submitted to the Illinois EPA would lead to a violation ofthe Act and
Board regulations if the deductible requested had been granted.
Based on the information within the Administrative Record (“Record”) and the testimony
elicited
at
hearing
held
on
July
16,
2003,1
and
applying
the
relevant
law,
the
Illinois
EPA
respectfully requests that the Board enter an order affirming the Illinois EPA’s decision.
III.
THE PETITIONER’S ARGUMENTS
ARE
BASED ON
THE WRONG
LAW
In its
Brief, the Petitioner argues that pursuant to
Section
57.9(b) ofthe Act
(415 ILCS
5/57.9(b)),
it is entitled
to a decision that the deductible in this case should be assessed at either
.$
10,000.00 or $15,000.00.
While this
argument will be addressed
in more detail below,
it must
be noted that the Petitioner’s reliance on language found in Title XVI ofthe Act (415 ILCS
5/57,
et ~çq.) is misplaced.
Here, the decision issued by the Illinois EPA was done pursuant to Section
-
22.18b ofthe Act.
As
the
Board
described
in
Ted
Harrison,
the
law
in
Illinois
regulating
releases from
underground storage tanks (“USTs”) transitioned from that found in Section 22.1 8b ofthe Act to
Section 57 ofthe Act.
Ted Harrison, pp.
4-5.
Without an express election to proceed pursuant to
the
“new”
law,
a
site that
reported
a
release
prior
to
the
effective
date
of Section
57
would
1
Citations
to
the
Administrative
Record will hereinafter
be made as, “AR, p.
.“
References to the
transcript of
the hearing will be made as, “TR, p.
.“
2
proceed pursuant to
the law found in
Section
22.1 8b.
Here,
there is
no
proof in the Record or
any
documentation
provided
by
the
Petitioner
that
Mick’s
Garage
ever
elected
to
proceed.
pursuant to Section
57 ofthe Act.
Further,
although there is an incident number associated with
the site that was issued in
1999, the Petitioner itself admits that the report that led to the issuance
of that incident number was made only at the behest ofan inspector from the Office ofthe State
Fire Marshal (“OSFM”)
following removal ofthe tanks in question.
The Petitioner characterizes
that report as a
second reporting of the
initial
suspected release of June 11,
1991.
Petitioner’s
Brief, p. 2; AR, pp.
7,
14.
Therefore,
since the Petitioner has acknowledged that the incident reported in
1999
was
simply
a
re-reporting
of the
initial
release
first
reported in
1991,
Section
22.18b
of the Act
controls the
decision under review.
The Board
in making
its
decision should
not
consider the
Petitioner’s
arguments
based,
on
Section
57.9
of
the
Act.
To
do
otherwise
would
be
an
application of a law that
is clearly inapplicable.
-
The law that
was applied by the Illinois EPA in
reaching
its decision dated February 7,
1992
(AR,
pp.
1-2),
was
Section
22.18b(d)(3)(C)(ii)
of the
Act’.
That
section
provided
in
pertinent part,
“If the costs
incurred were
in
response
to
a
release
of petroleum which
first
occurred prior to July 28,
1989,
and the owner or operator had actual or constructive knowledge
that such a release
occurred prior to
July 28,
1989, the deductible amount
***
shall be
$50,000
rather
than
$10,000
“~‘.
It
shall
be
the
burden
of the
owner
or
operator
to
prove
to
the
satisfaction of the
Agency that the owner or operator had no
actual or constructive knowledge
that the release ofpetroleum for which a claim is
submitted first occurred prior to July 28, 1989.”.
This
appeal
is
allowed
for
by
Section
22.18b(g)
of
the
Act,
and
Section
22.1 8b(d)(3)(C)(ii)
of the Act
should
be
considered controlling to
whatever
limited
extent the
3
Illinois
EPA’s
decision of February
7,
1992
is
scrutinized.
Indeed,
since
no
appeal
of that
decision was ever taken by the
Petitioner (TR, p.
24), that
decision should be
considered to
be
valid and
in
effect.
IV.
THE RELEVANT
AND
UNDISPUTED FACTS SUPPORT
THE DECISION ISSUED BY THE ILLINOIS EPA
The Petitioner argues that certain undisputed facts, when applied to Section
57.9(b)
ofthe
Act,
require that the
Board
find that
either the
$10,000.00 or $15,000.00
deductible should be
applicable.
Petitioner’s Brief, p.
4.
This argument fails for a variety ofreasons.
The undisputed facts presented by the Petitioner are that the two 2,000 gallon diesel fuel
USTs had not leaked,
that any leak that
occurred
in’T1991 related to gasoline USTs registered
in
1986, that Mick’s Garage could not have had
constructive knowledge prior to
1989 of a diesel
fuel tank that never occurred,
and that there is
no
evidence in the Record that
suggests Mick’s
Garage had or could have had any knowledge ofa leak from a gasoline UST prior to
1989.
~.
Unfortunately,
these
are
not
the
facts
that
the
Board
should
find
to
be
relevant
or
undisputed.
While
a recitation of all the
facts surrounding this
case is
not needed, there are a
number of unusual circumstances that deserve mention.
The
following
statements
are
truly
undisputed.
On
June~11,
1991,
Mick’s
Garage
reported a
suspected release
from
its
site, leading
to
the issuance
of incident number
911582.
AR, pp.
7, 9,
10,
14.
At the time of the application for reimbursement that led to
the issuance of
the Illinois
EPA’s February
7,
1992
decision, Mick’s Garage assumed
and represented
that the
diesel fuel USTs
at the site were taken out of service in
1980
due to
a lead from the line
going
from the connecting tank to pump.
AR, p.
1; TR p. 23.
On February 7,
1992,
the Illinois EPA
issued
a final decision setting
the deductible for the site at $50,000.00, based
on the information
presented in the underlying application and
Section
22.1 8b(d)(3)(C)(ii).
AR,
pp.
1-2.
Despite
4
any later suspicions or changes in position, Mick’s Garage
did not appeal
the February
7,
1992
decision (nor the related March 9,
1992 final decision).
TR, p. 24.
On
April
8,
1999,
six
tanks
were
removed
from
the
Mick’s
Garage
site
under
the
observation of an OSFM inspector.
AR, p.
22.
At the request ofthe OSFM inspector, a second
reporting of the
occurrence
first
reported
in
1991
was
made,
and
a
second
incident
number
(990820) was issued.
Petitioner’s Brief, p.
2; AR, p.
14.
On April
26,
2000,
OSFM received
an
application for eligibility
and
deductibility from
Mick’s
Garage,
and
on
May
9,
2000,
OSFM
issued
a
decision
stating
that
the
applicable
deductible for the site was $15,000.00.
Petitioner’s Exhibit
1, p.
1.
In the
application that led to
the May 9, 2000 OSFM decision, Mick’s Garage represented that there were
15
USTs at the site
and that the occurrence for which reimbursement would be sought was incident number 990820.
Petitioner’s Exhibit
1, p.
5.
Of the
15 tanks
identified in that application,
the tanks
were
either
associated with incident number 990820 or with an
unidentified or inapplicable incident number.
Petitioner’s Exhibit
1, pp. 7-8.
Also, ofthe
15
tanks,
10 were identified as having had a release;
for each ofthose
10 tanks, the date ofnotification ofthe release was listed as April
5,
1999.
Id.
On May
17,
2000,
the consultant
retained
by Mick’s
Garage prepared and
presumably
sent
to
OSFM
another
application
for
eligibility
and
deductibility.
AR,
pp.
5-10.
In
that
application,
Mick’s
Garage stated that the occurrence for which reimbursement would be
sought
was incident 911582, and that incident number 990820 was reported for the site but was a second
reporting of the same occurrence.
AR, p.
7.
Mick’s Garage represented that there were
11 tanks
at the
site.
AR,
p.
7.
The application
also represented that
all
11
of the identified tanks were.
associated
with incident number 911582,
all
had
experienced a release,
and the releases for all
those tanks was reported on June 11,
1991.
AR,
pp. 9-10.
.
.
5
Later,
on
September
11,
2000,
OSFM
received another
application
for
eligibility and
deductibility for the Mick’s Garage
site.
Petitioner’s
Exhibit
1, pp.
9,
12-16.
That application.
stated that the occurrence for which reimbursement would
be
sought was incident 911582,
and
incident number 990820 was reported for the site as a second reporting of the same occurrence.
Petitioner’s Exhibit
1, p.
13.
That application identified
11
tanks
at the site,
and
stated that
all
tanks had experienced a release that was reported on June 11,
1991.
Petitioner’s Exhibit
1, p.
15.
On
September
22,
2000,
OSFM
issued
a
decision
in
response to
the
application,
setting
the
deductible for the site at $10,000.00.
Petitioner’s Exhibit
1, pp. 9-10.
On
August
8,
2002,
Mick’s
Garage
sent
a
request that
the
deductible
for the
site
be
considered.
AR,
pp.
14-22.
On
September 4,
2002,
the Illinois
EPA issued
a final decision
stating
that
the
proper
deductible
would
be
set
at
$50,000.00,
per the
original
Illinois
EPA
decision.
AR,
pp.
23-25.
The
decision also
referenced
that
the
information
sent
by
Mick’s
Garage was discussed with
a representative of OSFM.
AR, p.
23.
No appeal of that
decision
was ever taken.
On November
12,
2002,
Mick’s
Garage
sent
a
Site Characterization
Report/Corrective
Action Plan
to
the Illinois
EPA for review.
AR,
pp.
27-3
5.
In that
submittal,
Mick’s Garage
again raised the
issue
of the
correct
deductible for the
site,
and
references the
$10,000.00
and
$15,000.00
deductibles assessed by
OSFM
(though
without a
clear
statement
as to
which of
those
two
deductibles should
be
applied).
AR,
pp.
27-28.
The
Illinois
EPA’s
decision dated
January 10, 2003, was issued in response to that submittal.
AR, pp.
35-38.
As
seen
by
these
facts, this
site has
had
several
different
deductibles
determined
as.
applicable.
The Illinois
EPA first set the deductible at $50,000.00
(at a time when the
Illinois
EPA
was
empowered to
issue
such
decisions).
Later,
Mick’s Garage
submitted
at
least
two
6
different
applications to
OSFM
seeking
new deductible
decisions,
leading
to
assessments of
$15,000.00
and later $10,000.00
for the
site.
The information contained within the applications.
to the Illinois EPA and the OSFM varied, in terms ofnumber oftanks
at the site to whether and
when the tanks experienced releases.
The first application leading to a deductible was submitted
to the Illinois EPA in November
1991, and
applications were
later submitted to OSFM in April
and September of2000.
Given
the inconsistent
information presented,
and the
question of whether OSFM even
has the authority to
issue any decision on the deductible following that issued
originally by the
Illinois EPA, the facts warrant a decision by the Board that the Illinois EPA’s final decision was
proper.
V.
THE ILLINOIS EPA IS NOT AUTHORIZED TO CHANGE ITS FINAL DECISIONS
It
is
well-established that the
Illinois
EPA
is
not
authorized to
change or reconsider its
final decisions.
Reichhold Chemicals,
Inc.
v.
Illinois
Pollution
Control Board,
204
Ill.
App. -3d
674,
561
N.E.2d 1343 (3d Dist.
1990).
Here,
that means the Illinois EPA is bound to its decision
on
a deductible as~was.
issued
on February
7,
1992.
Given that
the Petitioner
did
not
file an
appeal of that decision, the Petitioner likewise should be
considered subject to and bound by the
decision.
The Illinois EPA’s
1992 deductibility decision, never having been appealed, should be
considered valid on
its
face.
The best
argument that the Petitioner can raise
is
not
whether the
decision is
correct, but rather whether the Illinois EPA and
the Board should look the other way
and instead follow one ofthe subsequent OSFM decisions.
In
its
letters
dated August
8,
2002,
and
November
12,
2002,
Mick’s Garage raised the.
issue ofwhether the $50,000.00 deductible should be applied to its site.
Specifically, the request
was made that the Illinois EPA ignore its
decision ofFebruary
7,
1992, and instead abide by one
7
ofthe two different decisions issued by OSFM.
At that time in 2002, even if the Illinois EPA did
choose
to
change its
February 7,
1992
decision, it was unable to do
so
(the edict of Reichhold.
Chemicals notwithstanding) since the
authority to
issue such decisions had passed (by virtue of
the terms ofTitle XVI ofthe Act) to OSFM.
VI.
OSFM’s DECISIONS SHOULD NOT BE CONSIDERED AS
VALID
The Petitioner seems to be arguing that, in this case, it was simply asking the Illinois EPA
to take note ofthe passing of authority to issue
determinations on
deductibility, and to abide by
the decision(s) ofOSFM regarding deductibility.
However, the Illinois EPA could not do so for
several reasons.
First,
there
is
a
very
real
question
of whether
OSFM
had
any
authority
to
issue
a
deductible
decision
in
this
case.
As
the
Petitioner
noted
several
times,
including
in
its
applications to
OSFM,
the
incident reported in
1999
was
simply a
re-reporting of the original
incident
which was reported in
1991.
The most recent application
submitted by Mick’s Garage
to OSFM indicated that any reimbursement for the tanks in question would be
sought pursuant to
the
1991
incident number, and that the
1999
incident number related to the same occurrence.
If that
is true, and the Illinois EPA believes it is, then OSFM would have had no authority
to
issue
any
decision
on
deductibility for the Mick’s Garage
site.
There
is
no
evidence that
demonstrates
that
Mick’s
Garage
ever
elected
to
proceed pursuant
to
Section
57 of the Act;
therefore, remediation and pursuit ofreimbursement for the site must be done in accordance with
Section
22.1 8b of the Act.
Pursuant to that legal
framework,
OSFM did not have any authority
to
issue
decisions on the question ofwhat is the correct deductible.
Since
OSFM did not have.
any
deductibility
authority
pursuant
to
Section
22.18b,
and
since
the
site
remains
subject to
regulation pursuant
to
Section
22.1 8b
in
the
absence of an
election
to
proceed otherwise,
the
8
OSFM decisions should be
considered to have no
validity.
The Illinois EPA cannot deviate from
its original decision, one that was never appealed, and
instead process claims for reimbursement
based
on
decisions
made
by
an
agency that
has no
authority
to
issue
those
decisions.
In
a
broader
sense,
this
issue
is
the
same
as
was raised
earlier;
namely, whether any
provision of
Section
57 of the
Act
should
be found
to
be
applicable
for the
Mick’s
Garage
site,
since
no
election to proceed pursuant
to
that
Section
was ever made by
Mick’s
Garage.
Since
no
such
election was made, no provisions ofSection 57 (including
that which confers the authority upon
OSFM to issue deductibility decisions) should be found to
be applicable.
Second,
even if the Illinois
EPA (or the Board,
for that
matter) were
to
decide
that the
OSFM decisiOns
should be given some weight, the question becomes which ofthe two decisions
should be followed?
Even the Petitioner is hedging on that issue,
as it notes
in its brief that the
$10,000.00
deductible
applies,
or
“at
the
very
least,
the
$15,000.00
deductible
applies.”
Petitioner’s
Brief,
p.
4.
If the
Board
finds
that the
Illinois
EPA’s
decision dated January
10,
2003
was in error,
then it must also find
that the Illinois
EPA should have instead followed one
of the two
decisions issued by OSFM.
The Illinois EPA would then be required to have to pick
and
choose
between differing
decisions
based
on
differing
information
within
the respective
applications.
Ifthe
simple
answer of following the most recent
application in time
were to
be
given,
then the Board
would be
opening the door for an
owner or operator to
simply apply over
and
over
again to
OSFM for deductibility
determinations
with
the hopes that
the lowest
possible
deductible
would
eventually
be
granted.
Though
the
information
differed
between
the
two.
applications submitted
to
OSFM, the applications were
submitted~
only months
apart,
and
each
almost
10 years following the incident that
is supposedly at issue and identified by the Petitioner
9
as being related
to
the
only occurrence
(i.e.,
911582) and
three
years
after the removal
of the
tanks themselves.
There is a very real question as to
why after such a long period oftime there
was such an
abrupt change
in
information
from
one
application
to
the
other, and
a
very real
possibility
that
a
potential
for
abuse
of the
system
would
be
allowed
if
the
second
OSFM
decision were
to be
deemed
the
“correct” decision.
If the Board
allows that
either
the first or
second OSFM decision should
be followed, it
is creating a
situation in which
OSFM can issue
decisions when it is otherwise not empowered to do so, with the added invitation for an applicant
to submit multiple applications for the same site in hopes ofcontinually lowering the deductible.
VII.
CONCLUSION
For all
the reasons and
arguments included herein, the Illinois EPA respectfully requests
that
the
Board
affirm
its
January
10,
2003
decision.
The Illinois
EPA
had
no
choice
but
to
adhere to
its
decision dated February
7,
1992,
and
the Petitioner
was likewise bound
by that
decision.
Since no election to proceed with remediation ofthe site pursuant to
Section 57 ofthe
Act was ever made, no
provision ofthat Title of the Act is
applicable.
Accordingly, OSFM did
not
have
any
authOrity to
issue
either of
its
two
deductible
decisions.
Even
if OSFM
does
somehow have the authority to issue deductible determinations for a site that
has experienced a
pre-1993
release, it
is
unclear which of its two
decisions should
be followed.
The Illinois EPA
does not have the authority to weigh competing decisions issued by OSFM and decide which of
the different decisions was correct,
and therefore reliance upon the only decision that was clearly
issued pursuant to
a recognized statutory authority was the correct
decision.
For these reasons,
the Illinois EPA respectfully requests that the Board affirm the Illinois EPA’s
January
10,
2003
decision.
10
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Assistant Counsel
Special Assistant Attorney General
DivisionofLegal Counsel
1021 North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544, 217/782-9143 (TDD)
Dated: September 16, 2003
This filing submitted on recycled paper.
11
CERTIFICATE OF SERVICE
I, the undersigned attorney at
law,
hereby certify
that on
September
16,
2003,
I served.
true and correct copies ofa RESPONE
TO PETITIONER’S BRIEF, by placing true and correct
copies in properly sealed and addressed
envelopes and by depositing
said sealed envelopes in
a
U.S.
mail
drop box
located within Springfield,
Illinois, with
sufficient
First
Class
Mail postage
affixed thereto, upon the following named persons:
Dorothy M. Gunn, Clerk
Curtis W. Martin
Illinois Pollution Control Board
Shaw & Martin
James R. Thompson Center
123
South Tenth Street
100 West Randolph Street
Suite 302
Suite 11-500
P.O. Box 1789
Chicago, IL 60601
Mt. Vernon, IL 62864
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
