BEFORE THE POLLUTION CONTROL BOARD
    OF THE STATE OF ILLINOIS
    L. KELLER OIL PROPERTIES/FARINA, )
    )
    Petitioner,
    )
    v.
    )
    PCB No. 07-147
    )
    (UST Appeal)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Respondent.
    )
    NOTICE
    John Therriault, Acting Clerk
    Carol Webb, Hearing Officer
    Illinois Pollution Control Board
    Illinois Pollution Control Board
    James R. Thompson Center
    1021 North Grand Avenue East
    100 West Randolph Street, Suite 11-500
    P.O. Box 19274
    Chicago, IL 60601
    Springfield, IL 62794-9274
    Carolyn S. Hesse
    Barnes & Thornburg
    1 North Wacker Drive
    Suite 4400
    Chicago, IL 60606
    PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution Control
    Board a RESPONSE TO PETITIONERS’ MOTION FOR RECONSIDERATION AND REQUEST FOR ORAL
    ARGUMENT
    , 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: January 17, 2008
    Electronic Filing - Received, Clerk's Office, January 17, 2008
    BEFORE THE POLLUTION CONTROL BOARD
    OF THE STATE OF ILLINOIS
    L. KELLER OIL PROPERTIES/FARINA, )
    )
    Petitioner,
    )
    v.
    )
    PCB No. 07-147
    )
    (UST Appeal)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Respondent.
    )
    RESPONSE TO PETITIONERS’ MOTION FOR RECONSIDERATION AND REQUEST FOR
    ORAL ARGUMENT
    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 and 101.520, hereby responds to the Motion for
    Reconsideration and Request for Oral Argument (“Petitioner’s motion” or “motion”) filed by the
    Petitioner, L. Keller Oil Properties/Farina (“Farina”). In response to the Petitioner’s motion, the Illinois
    EPA states as follows:
    I. STANDARD OF REVIEW
    In ruling on a motion for reconsideration, the Illinois Pollution Control Board (“Board”) will
    consider factors including new evidence or a change in the law, to conclude the Board’s decision was in
    error. 35 Ill. Adm. Code 101.902. In the case of Citizens Against Regional Landfill v. County Board of
    Whiteside, PCB 93-156 (March 11, 1993), the Board noted that “the intended purpose of a motion for
    reconsideration is to bring to the court’s attention newly discovered evidence which was not available at
    the time of the hearing, changes in the law or errors in the court’s previous application of the existing
    law.” Korogluyan v. Chicago Title & Trust Co.
    , 213 Ill. App. 3d 622, 627, 572 N.E.2d 1154, 1158 (1
    st
    Dist. 1992).
    Electronic Filing - Received, Clerk's Office, January 17, 2008
    Thus, in order to prevail on a motion to reconsider, the movant must demonstrate that one of the
    three criteria has been met to justify reconsideration of an order. Here, the movant fails to raise any
    meritorious argument that would warrant the Board’s reconsideration of its December 6, 2007 final order
    (“Board’s final order” or “final order”).
    II. THE PETITIONER RAISES NO NEW FACTS OR EVIDENCE
    Several of the arguments posited by the Petitioner relate to its belief that the Board failed to
    properly consider information that was before the Board as of the date of the final order. The Board was
    completely briefed on the relevant issues of the case and the Petitioner does not present sufficient
    grounds for reconsidering the final order. The Petitioner is simply not happy with the conclusion that
    the Board reached following consideration of those issues.
    The Petitioner is merely attempting to re-argue issues that were already raised and briefed prior
    to the Board reaching its decision on December 6, 2007. The Petitioner has not detailed any newly
    discovered evidence.
    III. THE PETITIONER RAISES NO CHANGES IN LAW
    The Petitioner’s motion is not premised on any changes in applicable law since the date of the
    Board’s decision.
    IV. THE PETITIONER DOES NOT RAISE ANY SUCCESSFUL ARGUMENT THAT THE
    BOARD MISAPPLIED THE RELEVANT LAW
    The Petitioner attempts to makes arguments that the Board misapplied the relevant law. An
    examination of each such argument, however, makes clear that there is no justification for granting the
    Petitioner’s motion.
    The Petitioner argues the Board should reconsider their determination because “(1) the Board’s
    holding is not supported by the law for a number of reasons, including its approval of the Agency’s
    interpretation of the term “desired interval”; (2) the Board’s holding would result in monitoring wells at
    Electronic Filing - Received, Clerk's Office, January 17, 2008
    the Site being constructed in violation of the requirements of 35 Ill. Adm. Code 734.430(a) based on the
    undisputed evidence contained in the Record; (3) the Board’s holding that requiring monitoring wells to
    be screened at the static groundwater level is reasonable for detecting petroleum indicator contaminants
    because those contaminants are lighter than the groundwater is not supported by the undisputed evidence
    contained in the Record; (4) the Board’s holding is contrary to accepted principles of professional
    geology and professional engineering practices and, therefore, is not in accordance with 35 Ill. Adm.
    Code 734.510(a); (5) the Board ignored the evidence in the Record establishing that groundwater at the
    Site is under confined conditions; (6) the Board erroneously concluded that the results of the hydraulic
    conductivity tests are consistent with the silty clay unit being the groundwater-producing layer; and (7)
    the Agency and the Board erroneously concluded that monitoring wells installed as the Agency directed
    would produce water even though undisputed evidence in the Record and newly discovered evidence
    demonstrates that they would not produce water. Keller also requests that the Board reconsider the
    denial of Keller’s attorney’s fees.
    The above arguments do not raise any sufficient grounds for reconsideration of the
    Board’s decision. The Board’s decision took into account the very arguments raised in the Petitioner’s
    motion to reconsider, since they were also raised at hearing and in the Petitioners’ pleadings prior to the
    issuance of the final order. Those pleadings included a Reply to Respondent’s Motion for Summary
    Judgment, its Post-Hearing Brief and in its Reply to Respondent’s Post-Hearing Brief. The only “new
    evidence” offered is the drilling of a new well, long after the final decision of the Illinois EPA and
    therefore was not before the Illinois EPA when making its decision. Further, the Petitioner misses the
    point that what was at issue was the placement of the screen at the desired interval and not how the well
    was drilled. Further, the Illinois EPA does not direct the installation of wells as the Petitioner states.
    Electronic Filing - Received, Clerk's Office, January 17, 2008
    Instead, the Illinois EPA requires the wells be constructed in a manner that complies with the Act and
    regulations.
    When reviewing an Illinois EPA decision on a submitted corrective action plan and/or budget,
    the Board must decide whether or not the proposals, as submitted to the Illinois EPA, demonstrate
    compliance with the Act and Board regulations. Broderick Teaming Company v. Illinois EPA
    , PCB 00-
    187 (December 7, 2000). The Board will not consider new information not before the Illinois EPA prior
    to its determination on appeal. The Illinois EPA’s final decision frames the issues on appeal. Todd’s
    Service Station v. Illinois EPA, PCB 03-2 (January 22, 2004), p. 4. In deciding whether the Illinois
    EPA’s decision under appeal here was appropriate, the Board must therefore look to the documents
    within the Administrative Record (“Record”), along with relevant and appropriate testimony provided at
    the hearing held on August 22, 2007, in this matter. This “new evidence” is not relevant and was not
    before the Illinois EPA when it made its decision and therefore it should be struck. The Petitioner has
    presented no reason as to why the Board’s decision should be reconsidered in the Petitioner’s favor,
    other than the Board’s interpretation did not agree with that of the Petitioner. The Petitioner had a full
    hearing and plenty of opportunities to argue their position before the Board. The Board’s order was
    correctly decided based upon the evidence in the record and the testimony at trial.
    V. ORAL ARGUMENT
    Section 101.700(a), 35 Ill. Adm. Code 101.700(a), of the Board’s rules sets forth the purpose of oral
    arguments before the Board. The purpose of oral argument is to address legal questions. Oral argument
    is not intended to address new facts. The Petitioner has had a full hearing and has addressed its
    arguments in several pleadings and briefs. Now it claims to have “new evidence” and wants to have an
    oral argument to discuss it. However, as stated above, the purported “new evidence” should be struck
    because it is not relevant nor was it before the Illinois EPA when it made its decision. Further, oral
    Electronic Filing - Received, Clerk's Office, January 17, 2008
    argument is not appropriate in this situation and is not needed when the Petitioner has had such a full
    hearing of its issues.
    VI. CONCLUSION
    The Petitioner’s arguments in its motion to reconsider are without merit and thus the motion
    should be denied. There are no arguments presented in the motion that meet the criteria that would
    warrant the Board’s reconsideration of its final order.
    WHEREFORE, for the reasons stated above, the Illinois EPA hereby respectfully requests that
    the Board deny the Petitioner’s motion.
    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: January 17, 2008
    This filing submitted on recycled paper.
    Electronic Filing - Received, Clerk's Office, January 17, 2008
    7
    CERTIFICATE OF SERVICE
    I, the undersigned attorney at law, hereby certify that on January 17, 2008 I served true and
    correct copies of a RESPONSE TO PETITIONERS’ MOTION FOR RECONSIDERATION AND
    REQUEST FOR ORAL ARGUMENT to the Board by electronic filing through the Board’s COOL
    system and to the Petitioner and Hearing Officer by email and 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:
    John Therriault, Acting Clerk
    Carol Webb, Hearing Officer
    Illinois Pollution Control Board
    Illinois Pollution Control Board
    James R. Thompson Center
    1021 North Grand Avenue East
    100 West Randolph Street, Suite 11-500
    P.O. Box 19274
    Chicago, IL 60601
    Springfield, IL 62794-9274
    Carolyn S. Hesse
    Barnes & Thornburg
    1 North Wacker Drive
    Suite 4400
    Chicago, IL 60606
    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)
    Electronic Filing - Received, Clerk's Office, January 17, 2008

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