BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
VILLAGE OF
WILMETTE
)
Petitioner,
v.
)
)
PCB 07-48
)
ILLINOIS ENVIRONMENTAL PROTECTION
i
(UST Appeal)
AGENCY,
1
Respondent
PETITIONER'S RESPONSE TO IEPA'S MOTION FOR SUMMARY JUDGMENT
AND CROSS-MOTION FOR SUMMARY JUDGMENT
NOW COMES Petitioner, the Village of Wilmette ("Village"), through its
undersigned attorney, and pursuant to Section 101.516 of this Board's procedural rules,
35
111. Adm. Code Section 101.516, and hereby responds to the Motion for Summary
Judgment filed by Respondent ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
("IEPA). In addition, the Village hereby files and submits this Response as its own
Cross-Motion for Summary Judgment. In support thereof, the Village states as follows:
BACKGROUND
This appeal involves the Village's challenge to the decision of the IEPA with
respect to cost reimbursement under the LUST program for corrective action completed
at the Village's site located at 710 Ridge Road, Wilmette, Illinois (PCB 07-27, AR.
34).
In particular, this action involves IEPA's denial, dated November 13, 2006, of the
Village's final request for reimbursement of remediation costs incurred with respect to
completion of the corrective action plan previously approved by the IEPA. IEPA argues
that its denial of the final reimbursement request was necessitated by
IEPA's
September 14, 2006 denial of the Village's High Priority Corrective Action Plan Budget
Electronic Filing, Received, Clerk's Office, April 23, 2007
amendment, which is the subject of the Village's appeal in PCB 07-27. As this Board is
aware, the Village's Motion to Consolidate the two appeals was denied as stated in the
Board's Order dated March 15, 2007. Nevertheless, a decision in appeal PCB-027,
regarding
IEPA's denial of the budget amendment, will be dispositive of the issue raised
in this appeal PCB-048.
At the outset it is significant to recognize that the Village's final reimbursement
request was less than the previously approved total budget. Nevertheless, because the
amounts within the subcategories varied from the total budget amount, the Village
needed to file a budget amendment.
In other words, the budget amendment
represented a proper accounting of the previously approved total amount as required.
Nevertheless, IEPA denied the request on the grounds that, under 35
111. Adm. Code
732.405(d), the Village's budget amendment had been submitted subsequent to
issuance of a No Further Remediation ("NFR) letter. Consequently, because the
budget amendment amounts within certain categories varied, IEPA denied those
amounts in the Village's final reimbursement request. Accordingly, PCB 07-27 and
07-
48 raise the issue of whether IEPA correctly denied the budget amendment and final
reimbursement request. This in turn raises the issue of whether, as a matter of law, all
budget amendments submitted after the issuance of an NFR must be denied.
The Village recognizes that this Board has recently issued two decisions
addressing the issue of budget amendments filed after the issuance of an NFR letter. In
Fed Ex Ground Packaging System, Inc.
v.
IEPA, PCB 07-012 ("Fed Ex") and Broadus
Oil
V.
IEPA, PCB 07-27 and 07-48 ("Broadus Oif') (interpreting 35 111. Adm. Code
Section
734.335(d) and Section 732.405(d) respectively), the Board ruled that IEPA
Electronic Filing, Received, Clerk's Office, April 23, 2007
properly denied budget amendments on the grounds that the amendments were
submitted after the issuance of an NFR letter. Notwithstanding the Board's Opinion and
Order in those two cases, because as of the time of this submittal by the Village the
there is a pending appeal in the Fed
Ex
case, the Village believes it is necessary to
preserve its legal right to raise those arguments herein. More importantly, the Village
files this Cross Motion for Summary Judgment because this instant case is
distinguishable from
Broadus Oil and Fed
Ex.
FACTS
The facts before this Board are undisputed, and therefore, the Village accepts as
true the statement of facts set forth in the IEPA's motion for summary judgment. The
Village hereby incorporates those facts as its own, in support of both its response to the
IEPA's motion for summary judgment, and of its own cross-motion for summary
judgment.
The Village would emphasize, however, certain facts that are missing from
IEPA's brief which demonstrate that the legal basis provided by
IEPA does not support
the denial of the final request for reimbursement. Specifically, what factually
distinguishes this case from Fed
Ex
and Broadus
Oil
is the fact that here, the Village's
final reimbursement request was less than the previously approved total budget. (PCB
07-27, AR. 6-8). Nevertheless, because the amounts within the subcategories varied
from the original budget amount, the Village needed to file a budget amendment. It is
undisputed that the budget amendment was the proper accounting of the previously
approved total budget amount, and therefore, the Village's request for final
reimbursement should have been approved.
Electronic Filing, Received, Clerk's Office, April 23, 2007
STANDARD
IEPA identifies the Village's burden of proof in this case as requiring that the
Village "demonstrate that the incurred costs are related to corrective action, properly
accounted for, and reasonable." (IEPA Motion p.2). IEPA, however, cites no facts in the
record, nor are there any to cite, to show that the Village's request was not "related to
corrective action, properly accounted for, and reasonable." Moreover, in denying the
final request for reimbursement, IEPA did not question that the work performed was not
necessary, having previously determined that the corrective action had been done
according to the approved corrective action plan (PCB 07-27, AR. 27). Thus, as a
matter of law, there is no question as to whether that the Village met its burden of proof
in its underlying submittal.
IEPA has recognized that "the facts in this case are undisputed" (IEPA motion, at
2). IEPA acknowledges that "the question in this case is not one of fact, but rather of
law." (IEPA motion, at
6). As this Board has noted, "the law is well settled that when
reviewing a question of law the reviewing court should use the de novo standard of
review." City of Kankakee
v. Countvof Kankakee, PCB 03-125, 03-133, 03-134, and 03-
135 (cons.), 2003 111. ENV LEXlS 462, at *34 (111. PCB, Aug. 7, 2003) (citing Panhandle
Eastern Pipeline v. IEPA, 314
111. App. 3d 296, 734 N.E. 2d 18
(4"
Dist. 2000)).
IEPA'S DENIAL OF THE VILLAGE'S BUDGET AMENDMENT AND FINAL REQUEST
FOR REIMBURSEMENT IS NOT SUPPORTED BY THE LANGUAGE OF 35 ILL.
ADM. CODE
732.405(D) OR THE BOARD'S INTERPRETATION THEREOF.
In the recently decided cases of Broadus Oil and Fed Ex, this Board addressed
the issue of whether the regulatory provision cited by the IEPA, 35
111. Adm. Code
732.405(d), constitutes a basis for rejecting budget amendments and as a result, the
Electronic Filing, Received, Clerk's Office, April 23, 2007
associated requests for reimbursement, filed after the issuance of an NFR letter. In
rejecting the argument that subsection (d) applies only where an owner has elected to
proceed with corrective action before submitting a CAP or budget, the Board ruled that
subsection (d) "applies not only to those who proceed with no approved plan or budget,
but also to those who go beyond an approved plan
or budget." (Slip. Op, at 10, Dec.
21, 2006). Accordingly, because the Petitioners in those matters had gone beyond their
respective approved budgets, they were required to have filed their budget amendments
prior to the issuance of an NFR letter.
In contrast to the Petitioners in
Broadus Oil and Fed Ex, the Village here did not
incur costs beyond the approved budget. The total approved budget for the Village's
site was
$607,703.08. The Village's final reimbursement request was $559,583.49,
which is
$48,119.59 less than the approved budget.
(PCB 07-27, AR. 6-8). IEPA
does not dispute this fact.
This Board's decisions in
Broadus Oil and Fed Ex held that subsection (d)
applies to those who go beyond an approved budget. The language of the opinions
does not apply to reallocations within subcategories of an approved budget. More
importantly, the opinion should not be construed to apply to such a situation as that of
the Village's.
IEPA denied the Village's final request for reimbursement based upon the
language of 35
111. Adm. Code 732.601 (g) and (m). However, Section 732.601 refers to
revised cost estimates and increased costs resulting from "revised procedures." In this
case, however, the actual amount of personnel and handling costs incurred did not arise
due to any revisions in the procedures set forth in the Village's corrective action plan.
Electronic Filing, Received, Clerk's Office, April 23, 2007
Instead, for example with respect to the personnel costs, the tasks associated with
these costs simply involved matters associated with the previously planned
O&M,
RACR, and remediation system abandonment.
(PCB 07-48, AR.
29; 36-37) More
importantly, the costs denied as part of the Village's final request for reimbursement
were not, as stated in subsection (m) "costs exceeding those contained in a budget plan
or amended budget plan approved by the Agency." As stated previously, the toal costs
for which reimbursement was sought were approximately $48,000.00 less than the total
approved budget amount. It is within this Board's purview to find that a final budget
request that is approximately $48,000.00 less than the previously approved
IEPA
budget, is reasonable as a matter of law, and therefore, summary judgment should be
entered in favor of the Village and against IEPA.
SECTION 732.405(d) IS NOT A SUFFICIENT BASIS FOR IEPA'S DENIAL
BECAUSE, AS A MATTER OF LAW, IT DOES NOT APPLY TO THE VILLAGE IN
THIS CASE.
As stated at the outset, the Village recognizes that this Board has recently issued
two decisions addressing the issue of budget amendments filed after the issuance of an
NFR letter. However, because as of the filing of this Response and Cross Motion, an
appeal is pending in the Fed
Ex
case, the Village believes it is necessary to reference
the legal arguments in this brief so as to preserve its legal rights.
Accordingly, for the
same reasons as raised by the Petitioners in Fed
Ex
and Broadus
Oil,
the Village
maintains that, at a matter law, Section
732.405(d) applies only to the right of
ownersloperators to proceed with remediation prior to submittal or approval of a
corrective action plan or budget, a situation which is not applicable in this case.
The facts before this Board are undisputed, and it is conceded by the
IEPA that
Electronic Filing, Received, Clerk's Office, April 23, 2007
the work for which the final request for reimbursement are sought was corrective action
activities eligible for reimbursement from the fund. Therefore, no genuine issue of
material fact exists, and
IEPA improperly rejected the Village's budget amendment and
subsequent final reimbursement request. Accordingly, summary judgment should be
entered in favor of the Village and against IEPA. The Village is entitled to this Board's
judgment as a matter of law.
WHEREFORE, Petitioner, the Village, requests that this Board deny the motion
for summary judgment submitted by Respondent ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, and enter summary judgment in favor of the Village ordering
the Illinois Environmental Protection Agency to approve the Village's final request for
reimbursement and award the Village all such other and further relief as is within this
Board's authority and jurisdiction,
Respectfully submitted,
THE VILLAGE
OF WILMETTE
Petitioner,
Mary Beth Cyze, Esq.
Village of Wilmette
1200 Wilmette Avenue
Wilmette,
IL 60091
847-853-7505
Electronic Filing, Received, Clerk's Office, April 23, 2007
CERTIFICATE OF SERVICE
PLEASE TAKE NOTICE that on April 23,2007, the Village of Wilmette has electronically filed
with the office of the Clerk of the Pollution Control Board
PETITIONER'S RESPONSE TO
IEPA'S MOTION FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR
SUMMARY JUDGMENT.
a copy of which is hereby served upon you.
Dorothy M. Gunn, Clerk
lllinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
SERVICE LIST
Greg
-
Richardson
Bradlev P. Halloran
Illinois Environmental Protection Agency Illinois Pollution Control Board
1021 North Grand Avenue, East
James R. Thompson Center
P.O. Box 19276
100 West Randolph Street
Springfield, Illinois 62794-9276
Suite 11-500
217-782-5544
Chicago, IL 60601
Electronic Filing, Received, Clerk's Office, April 23, 2007