RECEIVEDCLERK'S
OFFICE
SEP 2 C 2006
FEDEX GROUND PACKAGE SYSTEM, INC .,
)
Petitioner,
STATE OF ILLINOIS
)
Pollution Control
Board
v.
)
PCB 07-12
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
NOTICE
Dorothy M . Gunn, Clerk
Bradley Halloran, Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
James R . Thompson Center
James R. Thompson Center
100 West Randolph Street, Suite 11-500
100 West Randolph Street, Suite 11-500
Chicago, IL 60601
Chicago, IL 60601
Thomas W
. Daggett
Daggett Law Firm
Chicago Title Tower, Suite 4950
161 North Clark Street
Chicago, IL 60601
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution Control
Board a MOTION FOR LEAVE TO FILE REPLY TO RESPONSE AND MEMORANDUM OPPOSING
IEPA'S MOTION FOR SUMMARY JUDGMENT and a REPLY TO PETITIONERS' RESPONSE AND
MEMORANDUM OPPOSING IEPA'S MOTION FOR SUMMARY JUDGMENT, copies of which are
herewith served upon you .
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Melanie A . Jarvis
Assistant Counsel
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 25, 2006
This filing submitted on recycled paper.
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
FEDEX GROUND PACKAGE SYSTEM, INC
., )
Petitioner,
)
v.
)
PCB 07-12
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent .
)
RECEIVED
SEP 2 8 2006
Pollution
STATE OF
Control
ILLINOIS
Board
MOTION FOR LEAVE TO FILE REPLY TO RESPONSE AND
MEMORANDUM OPPOSING IEPA'S MOTION FOR SUMMARY JUDGMENT
NOW COMES the Respondent, the Illinois Environmental Protection Agency ("Illinois
EPA"), by one of its attorneys, Melanie A . Jarvis, Assistant Counsel and Special Assistant
Attorney General, and, pursuant to Section 101 .500(e) of the Illinois Pollution Control Board's
("Board") procedural rules (35 Ill . Adm. Code 101
.500(e)), hereby files a motion for leave to file
a reply to the Petitioner's Response and Memorandum Opposing IEPA's Motion for Summary
Judgment . In support of this motion for leave, the Illinois EPA provides as follows
.
1 .
The Illinois EPA filed it Motion for Summary Judgment on September 1, 2006 .
2 .
The Petitioner filed its Response on September 18, 2006 .
3 .
The issue in this case is one of first impression and material prejudice may result
if the Illinois EPA is not allowed to reply
.
4.
The Petitioner's arguments, including one that mentions are prior Board case,
require a full reply from the Illinois EPA so that the Board can be fully briefed when making its
decision on the case .
5 .
For the reasons stated herein, the Illinois EPA hereby respectfully requests that
the Hearing Officer allow the Illinois EPA to file a reply to the Petitioner's response to prevent
material prejudice .
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
yVvl&0"
~
.
Melanie A . Jarvis
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)
Dated : September 25, 2006
This filing submitted on recycled paper .
2
RECEIVED
BEFORE THE POLLUTION CONTROL BOARD
CLERK'S
OFFICE
OF THE STATE OF ILLINOIS
SrP 2 2 2006
FEDEX GROUND PACKAGE SYSTEM, INC ., )
Pollution
STATE OF
Control
ILLINOISBoard
Petitioner,
)
v.
)
PCB 07-12
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent
.
)
REPLY TO PETITIONERS' RESPONSE AND MEMORANDUM OPPOSING IEPA'S
MOTION FOR SUMMARY JUDGMENT
NOW COMES the Respondent, the Illinois Environmental Protection Agency ("Illinois
EPA"), by one of its attorneys, Melanie A . Jarvis, Assistant Counsel and Special Assistant
Attorney General, and, pursuant to 35 Ill . Adm. Code 101 .500(e), hereby respectfully replies to
the Response and Memorandum Opposing IEPA's Motion for Summary Judgment ("Petitioners'
response") filed by the Petitioners, FedEx Ground Package System, Inc . In reply to the
Petitioners' response, the Illinois EPA states as follows :
I. INTRODUCTION
The Petitioner argues in its response that the Illinois EPA's interpretation of 35 Ill . Adm .
Code 734 .335(d) as prohibiting it from approving Petitioner's May 30, 2006 Budget Amendment
is contrary to the interpretation of that provision in the context of Part 734 read as a whole and
read in conjunction with Section 57.8 of the Illinois Environmental Protection Act ("Act"). The
Illinois EPA strongly disagrees with the Petitioner's assertion.
For the reasons that will be explained below, the Illinois EPA's decision comported with
the law and facts as presented, and the Illinois Pollution Control Board ("Board") should affirm
the Illinois EPA's decision .
1
II. APPLICABLE LAW
415 ILCS 5/57 .10
Professional Engineer or Professions Geologist certification ;
presumptions against liability
.
(a) Within 120 days of the Agency's receipt of a corrective action completion
report, the Agency shall issue to the owner or operator a "no further remediation
letter" unless the Agency has requested a modification, issued a rejection under
subsection (d) of this Section, or the report has been rejected by operation of law .
(b) By certifying such a statement, a Licensed Professional Engineer or Licensed
Professional Geologist shall in no way be liable thereon, unless the engineer or
geologist gave such certification despite his or her actual knowledge that the
performed measures were not in compliance with applicable statutory or regulatory
requirements or any plan submitted to the Agency .
(c) The Agency's issuance of a no further remediation letter shall signify, based
on the certification of the Licensed Professional Engineer, that
:
(1) all statutory and regulatory corrective action requirements applicable to
the occurrence have been complied with
;
(2) all corrective action concerning the remediation of the occurrence has been
completed ; and
(3) no further corrective action concerning the occurrence is necessary for the
protection of human health, safety and the environment .
This subsection (c) does not apply to off-site contamination related to the occurrence
that has not been remediated due to denial of access to the off-site property
.
(d) The no further remediation letter issued under this Section shall apply in favor
of the following parties :
(1) The owner or operator to whom the letter was issued .
(2) Any parent corporation or subsidiary of such owner or operator
.
(3) Any co-owner or co-operator, either by joint tenancy, right-of-
survivorship, or any other party sharing a legal relationship with the owner or
operator to whom the letter is issued .
(4) Any holder of a beneficial interest of a land trust or inter vivos trust
whether revocable or irrevocable .
(5) Any mortgagee or trustee of a deed of trust of such owner or operator.
(6) Any successor-in-interest of such owner or operator .
(7) Any transferee of such owner or operator whether the transfer was by sale,
bankruptcy proceeding, partition, dissolution of marriage, settlement or
adjudication of any civil action, charitable gift, or bequest .
(8) Any heir or devisee or such owner or operator .
(9) An owner of a parcel of real property to the extent that the no further
remediation letter under subsection (c) of this Section applies to the occurrence on
that parcel .
(e) If the Agency notifies the owner or operator that the "no further remediation"
letter has been rejected, the grounds for such rejection shall be described in the notice .
Such a decision shall be a final determination which may be appealed by the owner or
operator .
(f) The Board shall adopt rules setting forth the criteria under which the Agency
may require an owner or operator to conduct further investigation or remediation
related to a release for which a no further remediation letter has been issued
.
(g) Holders of security interests in sites subject to the requirements of this Title
XVI shall be entitled to the same protections and subject to the same responsibilities
provided under general regulations promulgated under Subtitle I of the Hazardous
and Solid Waste Amendments of 1984 (P.L.
98-616) of the Resource Conservation
and Recovery Act of 1976 (P.L. 94-580). (Emphasis added)
35 111. Adm. Code 734.710
Contents of a No Further Remediation Letter
A No Further Remediation Letter issued pursuant to this Part must include all of the following :
a)
An acknowledgment that the requirements of the applicable report were satisfied ;
b)
A description of the location of the affected property by adequate legal
description or by reference to a plat showing its boundaries, or, for the purposes
of Section 734
.715(d) of this Part, other means sufficient to identify the site
location with particularity ;
c)
A statement that the remediation objectives were determined in accordance with
35 111 . Adm. Code 742, and the identification of any land use limitation, as
applicable, required by 35 Ill . Adm . Code 742 as a condition of the remediation
objectives;
d)
A statement that the Agency's issuance of the No Further Remediation Letter
signifies that :
1)
All statutory and regulatory corrective action requirements applicable to
the occurrence have been complied with ;
2)
All corrective action concerning the remediation of the occurrence has
been completed; and
3)
No further corrective action concerning the occurrence is necessary for
the protection of human health, safety and the environment [415 ILCS
5/57 .10(c)(1)-(3)], or, if the No Further Remediation Letter is issued
pursuant to Section 734 .350(e) of this Part, that the owner or operator has
demonstrated to the Agency's satisfaction an inability to obtain access to
an off-site property despite best efforts and therefore is not required to
3
f)
g)
h)
J)
perform corrective action on the off-site property in order to satisfy the
corrective action requirements of this Part, but is not relieved of
responsibility to clean up portions of the release that have migrated off-
site;
e)
The prohibition under Section 734
.715(e) of this Part against the use of any site in
a manner inconsistent with any applicable land use limitation, without additional
appropriate remedial activities ;
A description of any approved preventive, engineering, and institutional controls
identified in the plan or report and notification that failure to manage the controls
in full compliance with the terms of the plan or report may result in voidance of
the No Further Remediation Letter ;
The recording obligations pursuant to Section 734 .715 of this Part
;
The opportunity to request a change in the recorded land use pursuant to Section
734 .715(e) of this Part ;
i)
Notification that further information regarding the site can be obtained from the
Agency through a request under the Freedom of Information Act [5 ILCS 140]
;
and
Any other provisions agreed to by the Agency and the owner or operator .
(Emphasis added)
III. THE ILLINOIS EPA CANNOT REVIEW A BUDGET AMENDMENT AFTER THE
ISSUANCE OF A NO FURTHER REMEDIATION LETTER
Pursuant to the Act and the regulations promulgated thereunder, the Illinois EPA is
prohibited from reviewing a budget amendment after the issuance of a No Further Remediation
("NFR") letter
. Even though Petitioner argues several times that the Illinois EPA position is in
opposition to the Act and Regulations when they are read as a whole, the Illinois EPA
respectfully disagrees . 35 Ill. Adm. Code 734.710(d) discusses what a NFR letter signifies
.
Section 734
.710(d) quotes the statutory language of Section 57.10(c)(1)-(3). These provisions
state that the NFR letter signifies that "[a]ll statutory and regulatory corrective action
requirements applicable to the occurrence have been complied with ." This means that the
provisions of 415 ILCS 5/57 .7 have to be finished and complied with prior to the issuance of a
NFR letter. If they are not finished a NFR letter cannot be issued
. Section 57 .7 includes all of
4
the provisions relating to the approval of budgets and states that the budget needs to be submitted
if the owner or operator is seeking reimbursement from the fund and should include an
accounting of all costs associated with the implementation and completion of the corrective
action plan . Therefore, when reading the Act and regulations as a whole, it is clear that the Act
requires that the budget be submitted prior to the issuance of a NFR letter . Section 734 .335(d)
merely reiterates what the Act already requires ; all plans and budgets need to be submitted to the
Illinois EPA prior to the issuance of a NFR letter. It should be noted that the reimbursement
provisions are a separate section under the Act and it is not required that all reimbursement be
issued prior to the issuance of the NFR letter
. Reimbursement can be made after the issuance of
the NFR letter pursuant to a plan approved prior to issuance of the NFR letter .
III.
TODD'S SERVICE STATION V. IEPA
The Petitioner has pointed to
Todd's Service Station v . IEPA, PCB 03-2 (January 22,
2004) for proof that the Illinois EPA has reviewed a budget amendment after the issuance of a
NFR letter . This case is not precedent in deciding the issues in this case. The case did not
decide the issue of whether the Illinois EPA could review a budget amendment after the issuance
of a NFR letter. The case was about whether a denial of personnel costs was reasonable
.
However, in the listed facts of the case, it does mention that the Illinois EPA agreed to review the
budget amendment which was submitted after the issuance of a NFR letter after an initial May
23, 2004 denial letter was sent out . The facts of Todd's Service Station differ from the case at
hand. In Todd's,
the consultant talked with the Illinois EPA after the issuance of the May 23,
2004 denial to explain that the Illinois EPA project manager told them they could submit a
budget amendment after the issuance of a NFR letter
. Due to the fact that the project manager
gave the Todd's consultant incorrect advice and in the interest of fairness, the Illinois EPA
agreed to review the budget amendment
. The Illinois EPA did not agree to review the budget
5
amendment because it believed its interpretation of the Act and regulations was incorrect on this
issue . (See attached June 3, 2002 memorandum mentioned in
Todd's)'
VI. CONCLUSION
For the reasons stated herein, as well as those previously made by the Illinois EPA, the
Illinois EPA respectfully requests that the Board affirm its final decision .
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Melanie A . Jarvis
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)
Dated
: September 25, 2006
This filing submitted on recycled paper .
The Petitioner requested this document during a Status Conference with the Hearing Officer . In the interest of
saving time in resolving the issues in this case, the Illinois EPA is attaching the document to this pleading .
6
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on September 25, 2006 I served true and
correct copies of a MOTION FOR
LEAVE TO FILE REPLY TO RESPONSE AND
MEMORANDUM OPPOSING IEPA'S MOTION FOR SUMMARY JUDGMENT and a REPLY
TO PETITIONERS' RESPONSE AND MEMORANDUM OPPOSING IEPA'S MOTION FOR
SUMMARY JUDGMENT, by placing true and correct copies thereof 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 postage affixed thereto, upon the following named
persons:
Dorothy M. Gunn, Clerk
Bradley Halloran, Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
James R. Thompson Center
James R. Thompson Center
100 West Randolph Street, Suite 11-500
100 West Randolph Street, Suite 11-500
Chicago, IL 60601
Chicago, IL 60601
Thomas W. Daggett
Daggett Law Firm
Chicago Title Tower, Suite 4950
161 North Clark Street
Chicago, IL 60601
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Melanie A . Jarvis
Assistant Counsel
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
This filing submitted on recycled paper .
