BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

WEBB & SONS, INC.,

)

)

Petitioner,

)

)

PCB No. 07-24

vs.

)

(UST Appeal)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

PETITIONER’S SUPPLEMENTAL BRIEF IN SUPPORT OF

REIMBURSEMENT OF PETITIONER’S LEGAL FEES

COMES NOW the Petitioner, WEBB & SONS, INC., by its attorneys, Harrington

& Tock, and, for its Supplemental Brief In Support Of Reimbursement Of Petitioner’s

Legal Fees, states as follows:

On October 13, 2006, the Petitioner filed with the Illinois Pollution Control Board

the Petitioner’s Petition for Review of Illinois Environmental Protection Agency’s

Decision to Deny Petitioner’s High Priority Corrective Action Plan Budget and,

specifically, the denial by the Agency of 100% of the proposed personnel costs as set

forth in the Petitioner’s Corrective Action Plan Budget. The personnel section of the

Petitioner’s Corrective Action Plan Budget described the work proposed to be performed

by twenty different individuals and contained a description of the work to be performed,

the number of hours to perform the work of each individual, the rate at which each

individual would be paid and the total personnel costs allocated to each such individual.

Mr. Kevin Saylor with HDC Engineering LLC testified at the hearing on

December 11, 2006 that he had been the engineer for this project during a previous

appeal involving the Agency’s denial of proposed personnel costs. Mr. Saylor testified

1

Electronic Filing, Received, Clerk's Office, March 8, 2007

---

that, as to that previous appeal, the Agency had requested more detailed information as to

the number of hours that each person would require to perform each task. After HDC

had taken the time to prepare and submit to the Agency the additional detailed

information, the Agency still rejected roughly half of the requested personnel costs. As a

result, the Petitioner herein filed an appeal as to the rejection of personnel costs and, as a

result, obtained approval of substantially all of the personnel costs as originally proposed

by HDC. (Hrg. Trans. at Pages 21-22.) It was Mr. Saylor’s testimony that, based upon

the prior two appeals in this case, even if he provided the additional detailed work

requested by the Agency, the proposed personnel costs would still be rejected and this

matter would ultimately be appealed. (Hrg. Trans. at Pages 29-30.) Consequently,

appeal was taken following the initial rejection of the personnel costs portion of the

Corrective Action Plan Budget.

Mr. Malcom, the IEPA project manager for Petitioner’s site, testified on behalf of

the Agency that he found the personnel costs for sixteen of the twenty personnel positions

to be acceptable, i.e. reasonable, and which he would have approved. (Hrg. Trans. at

Page 53-54.) The only personnel costs that he found to be unreasonable were for those

tasks under High Priority Investigation that included reference to previous LUST appeals,

which he felt was excessive, and the Scientist III under subheading CACR in the amount

of $1,136.00 which he would have reduced to $142.00.

Following the hearing, counsel for the Petitioner prepared and filed the

Petitioner’s Brief in support of the appeal. The Conclusion of the Petitioner in that Brief

stated as follows:

“The Corrective Action Plan Budget submitted by Petitioner did not

violate the Illinois Environmental Protection Act. A determination could

2

Electronic Filing, Received, Clerk's Office, March 8, 2007

---

have been made and should have been made by the Agency based upon

the CAP and the budget that all personnel costs in Section G of the Budget

were reasonable as required by statute (415 ILCS 5/57.7(c)(4)(C)) except

for the Senior Project Manager, the Professional Engineer and the

Engineer III under sub-heading High Priority Investigation and the

Scientist III under sub-heading CACR. There is absolutely no justification

to “request” (demand) an hourly breakdown of each task by each job title,

except for those personnel seeking payment for previous appeals.”

Petitioner acknowledged in its Conclusion that there was insufficient information for the

Agency to make a determination as to the reasonableness of the personnel costs for the

Senior Project Manager, the Professional Engineer and the Engineer III under the High

Priority Investigation subheading because those job descriptions included prior LUST

appeals. The Petitioner’s Brief did not argue that the Agency should have determined

from the face of the budget proposal that the personnel costs for the individuals whose

job description included prior LUST appeals was reasonable. Similarly, the Petitioner

did not argue in its Brief that the personnel costs for the Scientist III under the

subheading CACR was reasonable after Mr. Malcom testified that he would have

approved only $142.00 for that work.

The Board in its Interim Opinion and Order dated February 15, 2007 concurred

with the Petitioner’s Conclusion as set forth in Petitioner’s Brief that the Agency had

sufficient knowledge and information to determine that the Petitioner’s personnel costs as

submitted were reasonable as required by the Act except for the Senior Project Manager,

the Professional Engineer and the Engineer III under the High Priority Investigation and

the Scientist III under the CACR. The personnel costs approved by the Board for the

sixteen positions that the Board found to be reasonable totals $46,563.00.

3

Electronic Filing, Received, Clerk's Office, March 8, 2007

---

Attorney’s Fees

Petitioner may recover attorney’s fees incurred in an appeal pertaining to

corrective action under either the Act or the Administrative Code. 415 ILCS 5/57.8(l)

states as follows: “Corrective action does not include legal defense costs. Legal defense

costs include legal costs for seeking payment under this Title unless the owner or

operator prevails before the Board in which case the Board may authorize payment of

legal fees.” 35 Ill.Admin.Code 732.606(g) states as follows: “Costs ineligible for

payment from the Fund include, but are not limited to, legal defense costs including legal

costs for seeking payment under these regulations unless the owner or operator prevails

before the Board and the Board authorizes payment of legal fees (415 ILCS 5/57.8(l)).”

The Board has previously addressed the ability of petitioners to be reimbursed for

legal expenses when appealing rejections of Corrective Action Plans and Budgets by the

Agency in

Illinois Ayers Oil Company vs. Illinois Environmental Protection Agency,

PCB 03-214 (August 5, 2004) and

Swift-T-Food Mart vs. Illinois Environmental

Protection Agency

, PCB 03-185 (August 19, 2004). Both decisions recognize a

petitioner can recover attorney’s fees as a result of prevailing on the appeal of a rejection

of a Corrective Action Plan and/or Budget by the Agency. In each of those cases, as in

the present case, the petitioner was seeking payment under Title XVI of the Illinois

Environmental Protection Act and the plain language of Section 57.8(l) of the Act allows

for the awarding of legal fees.

The Petitioner did prevail before the Board in significant part. The Board

reversed the Agency as to the denial in total of the personnel costs for sixteen personnel

identified in the Petitioner’s Corrective Action Plan Budget at a total cost of $46,563.00.

4

Electronic Filing, Received, Clerk's Office, March 8, 2007

---

Furthermore, as stated in the Petitioner’s Brief, the Petitioner acknowledged that there

was insufficient information contained within the budget proposal to determine if the

personnel costs for the Senior Project Manager, Professional Engineer and Engineer III

under the category of High Priority Investigation and Preliminary Costs were reasonable

and did not seek to have the Board rule otherwise.

The common core of facts and the legal theory that were the basis of Petitioner’s

appeal are that the Agency’s project managers who review proposed budgets, such as the

CAP Budget submitted by Petitioner herein, have reviewed over 12,000 budget requests

and have a very good understanding as to what is an appropriate range for each and every

personnel cost that comprises a Corrective Action Plan Budget or any other budget

related to USTs that are reviewed by the Agency. If a proposed budget contains

sufficient information to allow the IEPA project manager to determine that the proposed

amount for each line item is reasonable, the Agency has no authority to make demand

upon a petitioner to incur additional time and expense to provide a greater level of detail

than is actually necessary. In this case, Mr. Malcom proved the Petitioner’s point when

he testified that the proposed personnel costs for sixteen of the twenty personnel were

reasonable in his opinion without the additional detailed breakdown that had been

originally demanded by the Agency. “Where a plaintiff’s claims of relief involve a

common core of facts or are based on related legal theories, such that much of his

attorney’s time is devoted generally to the litigation as a whole, a fee award should not be

reduced simply because all requested relief was not obtained.”

Becovic vs. City of

Chicago

, 296 Ill.App.3d 236, 242, 694 N.E.2d 1044, 1048 (1

st

Dist., 1998). The

acknowledgement by Petitioner that the Agency could not determine whether or not the

5

Electronic Filing, Received, Clerk's Office, March 8, 2007

---

proposed budget amounts for those individuals who had been involved in prior Webb

appeals was reasonable without receiving additional information does not affect the

amount of attorney’s fees that should be awarded to Petitioner.

As noted in the Board’s decision in

Illinois Ayers Oil Company vs. Illinois

Environmental Protection Agency

, PCB 03-214, 415 ILCS 5/57.8(l) and 35

Ill.Admin.Code 732.606(g) involve fee shifting. The amount of fees to be awarded by

the Board lies within the broad discretionary powers of the Board.

Globalcom, Inc. vs.

Illinois Commerce Commission

, 347 Ill.App.3d 592; 806 N.E.2d 1194, 1214 (1

st

Dist.,

2004). The Board’s discretionary power includes a determination of the reasonableness

of the requested fees.

United States Fidelity and Guaranty Company vs. Old Orchard

Plaza Limited Partnership

, 333 Ill.App.3d 727, 740; 776 N.E.2d 812, 824 (1

st

Dist.,

2002).

This Supplemental Brief includes the Affidavit of counsel for Petitioner and an

exhibit to that Affidavit specifying the legal services provided by description, hour and

hourly rate, all of which counsel for Petitioner believes to be reasonable.

The prayer for relief in Petitioner’s Petition for Review also sought an award of

the Petitioner’s engineer’s fees incurred in bringing the appeal. 35 Ill.Admin.Code

732.605 sets forth eligible costs for reimbursement under the Agency’s Underground

Storage Tank program as follows: “(a) Types of cost that may be eligible for payment

from the Fund include those for corrective action activities and for materials or services

provided or performed in conjunction with corrective action activities. Such activities

and services may include, but are not limited to,

6

Electronic Filing, Received, Clerk's Office, March 8, 2007

---

(15) engineering costs associated with seeking payment or reimbursement from

the Fund including, but not limited to, completion of an application for partial or final

payment.”

Attached hereto is the Affidavit of Michael Jones, the Chief Operating Officer of

HDC Engineering LLC, in support of engineer’s fees incurred by Petitioner that are

sought to be reimbursed.

Conclusion

The Petitioner respectfully requests that this Board approve reimbursements to the

Petitioner in the amount of $7,932.50 for legal fees and $4,044.50 for engineer’s fees and

order the Illinois Environmental Protection Agency to pay those amounts to the Petitioner

from the LUST Fund.

WEBB & SONS, INC.,

Petitioner,

By: /S/

Jeffrey W. Tock

Dated: March 8, 2007

Jeffrey W. Tock

Harrington & Tock

201 W. Springfield Ave., Suite 601

P.O. Box 1550

Champaign, Illinois 61824-1550

Telephone: (217) 352-4167

7

Electronic Filing, Received, Clerk's Office, March 8, 2007

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

WEBB & SONS, INC.,

)

)

Petitioner,

)

)

PCB No. 07-24

vs.

)

(UST Appeal)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

AFFIDAVIT OF JEFFREY W. TOCK

Attorney for Petitioner

I, Jeffrey W. Tock, being first duly sworn under oath, allege and state as

follows:

1. I am an attorney licensed to practice law in the State of Illinois and

have continuously been so licensed since 1980.

2. I am the attorney of record for the Petitioner, Webb & Sons, Inc., in the

above captioned case.

3. I have also represented the Petitioner in two previous appeals.

4. I commenced work on the present appeal on October 10, 2006 and have

continued to work on this appeal since that date.

5. Attached hereto as Exhibit “A” is an accurate statement of the legal

services that I have performed on behalf of Webb & Sons, Inc. in pursuing this

appeal.

6. This summary accurately reflects the dates that I worked on this

appeal, a brief description of the work performed, the number of hours of work

that I performed on each date and the charge for my legal services derived by

multiplying the number of hours worked by my hourly rate of $190.00 per hour.

7. The hourly rate that I charge of $190.00 per hour for the work

performed on this appeal is consistent with the prevailing rates for legal services

Electronic Filing, Received, Clerk's Office, March 8, 2007

---

provided in Champaign County, Illinois and is the same hourly rate that I charge

all of my clients during the time period of this appeal.

The contents of this Affidavit are based upon my personal knowledge and

I am competent to testify to the matters set forth herein.

FURTHER AFFIANT SAYETH NOT.

By: /S/

Jeffrey W. Tock

Dated: March 8, 2007

Subscribed and sworn before me

this ___ day of March, 2007.

_______________________________

Notary Public

vlb/Pleadings.jef/HDC/Webb-JWT.Aff

Electronic Filing, Received, Clerk's Office, March 8, 2007

---

HDC Engineering LLC

Date: 3/8/07

P.O. Box 140

Atty: 08

Champaign, IL 61824-0140

Client No: 33553

2006

Description of Services Rendered

Hours

Amount

10/10

Prepared appeal in Webb

4

760.00

10/13

Revised and filed Webb Petition

1.5

285.00

11/08

Conf. call in HDC vs. EPA appeal in Webb;

Emails with EPA, PCB

.5

95.00

12/06

Webb – conf. with Kevin Saylor re: appeal

3

570.00

12/06

Webb – legal research

2

380.00

12/08

Conf. with Mike & Kevin re: Webb

.5

95.00

12/09

Webb – legal research

2

380.00

12/10

Webb – legal research and trial prep.

7

1,330.00

12/11

Participated in Webb hearing in Springfield with

Mike Jones and Kevin Saylor

6

1,140.00

12/28

Prepared brief re: Webb

10

1,900.00

12/29

Prepared brief re: Webb

5

950.00

2007

1/02

Webb – correspondence with AG

re: filing brief with PCB

.25

47.50

Amount Due at an hourly rate of $190.00

41.75

$ 7,932.50

Electronic Filing, Received, Clerk's Office, March 8, 2007

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

WEBB & SONS, INC.,

)

)

Petitioner,

)

)

PCB No. 07-24

vs.

)

(UST Appeal)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

AFFIDAVIT OF MICHAEL JONES

I, Michael Jones, being first duly sworn under oath, allege and state as

follows:

1. I am the Chief Operating Officer of HDC Engineering LLC, the

professional engineers for Webb & Sons, Inc. in the matter of remediating

contamination caused by leaking underground storage tanks (“LUST”) at the

Webb site in Mattoon, Illinois. HDC Engineering LLC is located in Champaign,

Illinois.

2. I am also the Senior Project Manager on the remediation of the site.

3. I have been involved with the present appeal of the Agency’s decision

to completely reject all proposed personnel costs under the Corrective Action

Plan Budget that was submitted to the Agency on August 18, 2006. The rejection

by the Agency of all personnel costs under the Corrective Action Plan Budget

was by letter dated September 12, 2006.

4. Mr. Kevin Saylor is a professional engineer under my supervision with

HDC Engineering LLC. Mr. Saylor worked with Mr. Tock, the attorney for the

Petitioner, Webb & Sons, Inc., in the preparation of the Petition for Review of the

Illinois Environmental Protection Agency’s decision to deny Petitioner’s High

Priority Corrective Action Plan Budget.

5. After the Petition for Appeal had been filed, Mr. Saylor and I worked

with Mr. Tock to provide information and documents requested by Mr. Tock in

preparation for the hearing on the Petition that had been filed appealing the

decision of the Agency.

Electronic Filing, Received, Clerk's Office, March 8, 2007

---

6. The hearing on the appeal by the Petitioner was held in Springfield,

Illinois on December 11, 2006. Both Mr. Saylor and I attended that hearing at the

request of the attorney since we were not certain what testimony may be

provided by the Agency that may need to be responded to by me in the event

that Mr. Saylor did not have the requisite knowledge for the needed response.

7. Attached to this Affidavit as Exhibits “A” and “B” are billing

summaries of HDC Engineering pertaining to this appeal. Exhibit “A” is for

work performed by Mr. Saylor from September 14, 2006 through October 13,

2006 pertaining to the preparation of the Petition for Review of the Agency’s

decision. The hours expended by Mr. Saylor are well within the range of the

time necessary to prepare the information for the attorney who prepared the

Petition for Review. The rate charged by Mr. Saylor is well within the acceptable

rate for a professional engineer in Champaign, Illinois and within the range of

rates for professional engineers approved by the IEPA.

8. Exhibit “B” contains a summary of the dates and hours of work

provided by various employees of HDC Engineering concerning the preparation

of background information requested by the attorney to be presented at the

hearing on December 11, 2007. The hours billed for the work provided is a true

and accurate statement of the time actually incurred by those employees to

perform the tasks identified and the hourly rate for each such employee as set

forth in Exhibit “B” is within the range set forth in the Approved Rate Schedule

prepared by the Illinois Environmental Protection Agency and within the range

of the charge for such work in Champaign, Illinois.

9. The statements made in this Affidavit are based upon my personal

knowledge and I am competent to testify to the matters stated.

FURTHER AFFIANT SAYETH NOT.

By: /S/

Michael Jones

Dated: March 8, 2007

Subscribed and sworn before me

this ___ day of March, 2007.

_______________________________

Notary Public

vlb/Pleadings.jef/HDC/Webb-MikeJones.Aff

Electronic Filing, Received, Clerk's Office, March 8, 2007

---

Electronic Filing, Received, Clerk's Office, March 8, 2007

---

Electronic Filing, Received, Clerk's Office, March 8, 2007