BEFORE THE ILLINOIS POLLUTION CONTROL
~
RICHARD KARLOCK,
)
JUN
032005
STATE OF ILLINOIS
Petitioner,
)
Pollution Control Board
)
PCB No. 05-127
vs.
)
(UST Appeal)
)
ILLINOISENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITIONER’S RESPONSE TOILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY’S MOTION FOR SUMMARY JUDGMENT
COMES NOW the Petitioner, Richard Karlock (hereinafter “Petitioner”),
by
his
attorneys, Harrington & Tock, and, for
his
response to the Illinois
Environmental
Protection Agency’s Motion for Summary Judgment,
states as
follows:
The Illinois Environmental
Protection Agency’s (“IEPA”) Motion for
Summary Judgment sets forth
two
issues regarding its rejection of the
Petitioner’s Application for Reimbursement of Site Investigation Activities.
Each
of those
two
issues
will
be addressed separate by the Petitioner:
(1) Is the IEPA correct in withholding approval ofreimbursement
of costs related to site investigation activities if a SICR has not yet been
approved?
There is no factual dispute that the Petitioner had not completed a Site
Investigation Completion Report (“SICR”) at the
time
it made application for
partial payment of site investigation work performed by the Petitioner.
1
Although partial payment is specifically authorized by statute (415 ILCS 5/57.8),
the JEPA chose to not address that specific authorization in its Motion for
Summary Judgment.
Instead, the IEPA chose to rely upon a provision of the
Illinois Administrative Code (35 Ill.Admin.Code 732.601(h)) that applies to only
site classification, not site investigation.
The IEPA acknowledged in its Motion
that there is no specific provision in the Illinois Administrative Code that
requires a SICR as a prerequisite to the JEPA reimbursing an owner for costs
incurred in preparation of that SICR.
(“...there is no doubt that Section
732.601(h) does notstrictly apply, since the Petitioner perfo~edsite
investigation activities, not site classification activities.”
IEPA Brief at page 5.)
The IEPA then made the remarkable conclusion that “In the absence of
any corresponding or analogous regulation concerning approval of site
investigation costs prior to the approval of a SICR, it is acceptable for the JEPA to
handle such requests for payment in a manner consistent with the previously
used method under site classification.” (IEPA Brief at 5-6.)
The IEPA failed to
state any authorization to support its conclusion that it is “acceptable”
for the
IEPA to unilaterally expand the specific provisions of the Illinois Administrative
Code applicable to site classifications to apply that same rule and restriction to
site investigations.
This is a particularly egregious justification for denying the
Petitioner’s Application for Reimbursement in light of the specific statutory
authority found in Section 57.8 of the Act authorizing partial payment by the
IEPA for such work.
The IEPA has no authority to create its own rules and
2
thereby reject an application for partial payment of site investigation work.
Only
the Illinois Pollution Control Board, not the IEPA, is authorized to adopt such
rules and regulations.
The IEPA’s reliance upon Section 57.7(a)(5) of the Act (415 ILCS
5/57.7(a)(5)) provides no support for the IEPA’s denial of the Petitioner’s
reimbursement request.
Section 57.7(a)(5) simply states the requirement that a
SICR must be submitted to the IEPA within 30 days of completing that report.
There is absolutely nothing contained in the statute that requires the submission
of a SICR prior to any reimbursement of site investigation expenses.
Without a
specific rule adopted by the Illinois Pollution Control Board authorizing or
directing the IEPA to make no reimbursement of any site investigation expenses
unless and until a SICR is submitted, the IEPA has no authority to deny a request
for partial payment of those expenses incurred in the course of a site
investigation.
(2) The Petitioner failed to timely provide the proper certification
form.
In seeking summary judgment, the IEPA also relies upon the factthat the
Petitioner failed to submit the proper owner/operator billing certification form
when the Petition was filed on September 16, 2004.
The Petitioner does not deny
that it failed to originally file the proper certification form, but denies that such
failure now provides the IEPA with grounds for summary judgment.
It is clear
from reading Attachment A to the IEPA’s letter of December 10, 2004
3
(Petitioner’s Exhibit 2) that the rejection of the Petitioner’s reimbursement
request was based solely upon the failure of the Petitioner to submit a SICR.
S
Although Attachment A contains a reference to the fact that the claim was
missing the Owner/Operator Billing Certification Form, it is stated in such a way
as to indicate that the IEPA was simply bringing this fact to the attention of the
Petitioner and even included a proper formfor the Petitioner to complete.
There is no indication whatsoever that the Petitioner’s Application for
Reimbursement would have been rejected by the IEPA solely for the reason of
not having the proper certification form.
This interpretation is supported by
Petitioner’s Exhibit 3 which consists of a cover letter from HDC Engineering LLC
(Petitioner’s engineers) to Nikki Weller of the IEPA dated January 4, 2005.
That
letter states as follows:
“Per our conversation, enclosed is the billing certification
for
the reimbursement package for the referenced site.”
It is apparent from that
cover letter that the IEPA had agreed to accept the completed Owner/Operator
Billing Certification Form that had been sentby the IEPA to HDC with the
IEPA’s letter of December 10, 2004.
(The December 10, 2004 letter shows that a
copy was sent to HDC.)
There is neither a statute nor a regulation that
prohibited the IEPA from accepting from HDC the completed Owner/Operator
Billing Certification Form after the IEPA sent its letter of December 10,
2004.
If
absence of the proper form were the only reason for the IEPA to reject the
original application, the IEPA would have reversed that decision upon its
approval of the Billing Certification Form.
That Billing Certification Form and
4
the HDC cover letter dated January 4, 2005 are part of the Administrative Record
and should be considered by the Illinois Pollution Control Board when ruling on
the cross motions for summary judgment in this matter.
CONCLUSION:
For the foregoing reasons, the IEPA’s Motion for Summary Judgment
must be denied.
RICHARD KARLOCK,
Petitioner,
By:Q~LJ/~
Tock
Dated:
June 1, 2005
Jeffrey W. Tock
Harrington & Tock
201 W. Springfield Ave., Suite 601
P.O. Box 1550
Champaign, Illinois 61824-1550
Telephone: (217) 352-4167
5
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RICHARD KARLOCK,
)
)
Petitioner,
)
)
PCB No.
05-127
vs.
)
(UST Appeal)
S
)~
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
S
NOTICE OF FILING
TO:
John Kim, Esq.
Division of Legal Counsel
Illinois Environmental Protection Agency
1021
N. Grand Avenue East
•
P.O. Box 19276
Springfield, IL
62764-9276
PLEASE TAKE NOTICE that I have today filed with the Office of the
Clerk of the Illinois Pollution Control Board an original and ten copies of
Petitioner’s Response to Illinois Environmental Protection Agency’s Motion for
Summary Judgment, copies of which are herewith served upon you.
RICHARD KARLOCK,
Petitioner,
By:~~
Dated:
June 1, 2005
Jeffrey W. Tock
Harrington & Tock
201
W. Springfield Ave., Suite 601
P.O.
Box 1550
Champaign, Illinois 61824-1550
Telephone: (217) 352-4167
6
CERTIFICATE OF SERVICE
I,
Jeffrey W. Tock, the undersigned, certify that I did on June 1, 2005, send
via First Class Mail, with postage thereon fully prepaid, by depositing in a
United States Post Office Box a true and correct copy of the attached Petitioner’s
Response to Illinois Environmental Protection Agency’s Motion for Summary
Judgment upon:
John Kim, Esq.
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 N. Grand Avenue East
P.O. Box 19276
Springfield, IL 62764-9276
and the original and ten copies by First Class Mail with postage thereonfully
prepaid of the same foregoing instrument:
Ms. Dorothy Gunn
Clerk of the Board
Illinois Pollution Control Board
100 W. Randolph Street
Suite 11-500
Chicago, IL 60601
A copy was also sent by First Class Mail with postage thereon fully prepaid
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 N. Grand Avenue
P.O. Box 19274
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vlb/Complain.jef/HDC/Karlock-ResponseMSJ
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