BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
L.
KELLER OIL PROPERTIES, INC. / FARINA
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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NOTICE OF FILING
TO:
Melanie A. Jarvis
Assistant Counsel
Division
of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O.
Box 19274
Springfield, Illinois 62794-9274
PLEASE TAKE NOTICE that on January 29,2008, filed with the Clerk of the Illinois
Pollution Control Board
of the State of Illinois an original, executed copy of Petitioner's Motion
for Leave to File Reply in Support
of Motion for Reconsideration along with Petitioner's Reply
in Support
of its Motion for Reconsideration and Request for Oral Argument.
Dated: January 29, 2008
Respectfully submitted,
Carolyn
S. Hesse
Barnes
&
Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
344175v2
By:
LER OIL PROPERTIES
I
FARINA
Sl
[This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.202]
Electronic Filing - Received, Clerk's Office, January 29, 2008
CERTIFICATE OF SERVICE
I, on oath state that I have served the attached Petitioner's Motion for Leave to File Reply
in Support of Motion for Reconsideration along with Petitioner's Reply in Support of its Motion
for Reconsideration and Request for Oral Argument by placing a copy in an envelope addressed
to:
Melanie A. Jarvis
Assistant Counsel
Division
of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, Illinois 62794-9274
from One North Wacker Drive, Suite 4400, Chicago, Illinois, before the hour
of 5:00 p.m., on
this 29
th
Day of January, 2008.
CHDSOI CSH 445935vl
[This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202]
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Electronic Filing - Received, Clerk's Office, January 29, 2008
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
L.
KELLER OIL PROPERTIES/
FARINA,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PETITIONER'SMOTION FOR LEAVE TO FILE
REPLY IN SUPPORT OF MOTION FOR RECONSIDERATION
Pursuant to
35111. Adm. Code 101.500(e), Petitioner,
L.
Keller Oil Properties/Farina
("Keller"), by its counsel Barnes
&
Thornburg LLP moves the Illinois Pollution Control Board
(the "Board") for leave to file a Reply in Support
of its Motion for Reconsideration. In support
of this Motion, Keller states as follows.
1.
On June 27, 2007, Keller filed a Petition for Review challenging the Agency's
May 17,2007 letter that rejected a Site Investigation Plan and Budget for work by Keller related
to UST leaks.
2.
On August 22, 2007, the Board held a hearing on Keller'sappeal.
3.
On December 6, 2007, the Board issued an Opinion and Order of the Board (the
"Decision") in this case. In the Decision, the Board partially affirmed and partially reversed
determinations made by the Illinois Environmental Protection Agency (the "Agency") in its May
17,2007 letter rejecting Keller's Site Investigation Plan and Budget for the underground storage
tank
site located at 1003 West Washington Avenue, Farina, Fayette County.
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Electronic Filing - Received, Clerk's Office, January 29, 2008
4.
On January 11, 2008, Keller filed a Motion for Reconsideration of the Board's
December 6, 2007 Order.
5.
On January 17, 2008, the Agency filed a Response in Opposition to Keller's
Motion for Reconsideration. In its Response, the Agency at page 3 argues that "The Petitioner
has not detailed any newly discovered evidence." Then, the Agency completely ignores the new
evidence. The Agency also argues that "Illinois EPA requires the wells to be constructed in a
manner that complies with the Act and regulations" at page 5 of its Response, but fails to
adequately respond to Keller's arguments that wells installed per Illinois EPA policy would
violate regulations. Further, the Agency again claims that the Record does not support Keller's
position, which Keller strongly disputes. Finally, the Agency opposes Keller's request for Oral
Argument.
6.
Keller seeks leave to reply to the Agency brief because, if Keller is not allowed to
reply to the Agency'sarguinents, Keller will be materially prejudiced.
7.
Accordingly, Keller seeks leave pursuant to 35 Ill. Adm. Code 101.500(e) to file
Reply in Support of its Motion for Reconsideration, in order to address the above issues and to
prevent material prejudice that will result from the Agency's submissions.
8.
Attached to this Motion as Exhibit A is a proposed Reply in Support of the
Motion for Reconsideration that Keller seeks to file.
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Electronic Filing - Received, Clerk's Office, January 29, 2008
WHEREFORE, Petitioner
L.
Keller Oil Properties/Farina respectfully requests that the
Board grant this Motion for Leave to file the attached Reply in Support
of the Motion for
Reconsideration, and grant all other reliefthe Board deems fair and just.
Respectfully submitted,
By:
Carolyn
S. Hesse, Esq.
Jonathan P. Froemel, Esq.
BARNES ÞBURG
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
CHDSOI DTB 445203vl
[This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.202]
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Electronic Filing - Received, Clerk's Office, January 29, 2008
Exhibit A
Electronic Filing - Received, Clerk's Office, January 29, 2008
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Petitioner,
Respondent.
v.
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
L. KELLER OIL PROPERTIES / FARINA
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
KELLER OIL PROPERTIES' REPLY IN SUPPORT OF ITS MOTION FOR
RECONSIDERATION AND REQUEST FOR ORAL ARGUMENT
Now comes the Petitioner, L. Keller Oil Properties/Farina ("Keller" or "Keller/Farina"),
by its counsel Barnes
&
Thornburg LLP .and in support of its Motion for Reconsideration and
Request for Oral Argument pursuant to
35 Ill. Admin. Code 101.500, 101.700, and 101.904
states as follows:
Petitioner, Keller Oil Properties/Farina ("Keller"), filed its motion for the Board to
reconsider its decision in the above-captioned matter with respect to the construction and
screening
of monitoring wells and with respect to the Board's denial of Keller's attorneys' fees.
Simply put, the sole issue with respect to the construction
of the monitoring wells, which
includes where the well is screened, is whether the phrase "desired interval" in subsection
734.430(a)(l)
means that a monitoring well should be screened where groundwater is found in
the ground, which is Keller's position, or at the level to which groundwater will rise in a well
after the well is constructed, which is the Agency's position. Evidence in the Record that was
before the Illinois Environmental Protection Agency ("IEPA" or the "Agency") when the
Agency made its decision, testimony that was presented at the Board hearing in this matter from
two professional geologists and two professional engineers, citations to respected technical
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reference documents regarding geological terms and principles, newly discovered evidence, and
common sense all support Keller's position. The Agency has presented no credible or even
incredible evidence to support its position. The Agency's argument that the Record does not
contain information to support Keller's position merely demonstrates the Agency's lack
of
knowledge of the technical field the Agency is required to review.
Keller'smotion to reconsider is based on the following:
The Board's Decision that the Monitoring Wells Were Not Screened at the Desired
Interval Was Based on Misrepresentations by the Agency.
The Board's Decision regarding where monitoring wells should be screened was based
on misrepresentations made
by the Agency. Section 101.904(b)(2) allows the Board to "relieve a
party from a final order entered in a contested proceeding," on the basis of misrepresentation by
the adverse party. Keller does not know whether the Agency intentionally or unintentionally
misrepresented to the Board that the Record at
R. 13 documents that the silty clay layer is a
water bearing unit. As discussed by Keller at pages 17-18 and 46-48 of its brief accompanying
its Motion to Reconsider ("Initial Brief'), R. 13 actually shows that the silty clay layer is not a
water bearing unit.
If the Board had reviewed page R. 13 of the Record and other information in
the Record and understood that information, absent the Agency's misrepresentations, the Board
would have seen that the silty clay layer is not the water bearing unit. Rather, the wet sand layer
below that, at a depth
of 12 to 13.5 feet below ground surface ("bgs"), is the unit that produced
water (i.e. the sand is wet because water is in the pore spaces of the sand, which means that the
sand
is saturated). This is the information that Keller has consistently provided to the Agency.
The wet sand layer is the desired interval for locating the monitoring well screens in order to
obtain a representative groundwater sample because that is where the groundwater is located.
Keller's Initial
Brief at pages 4-20, 34-35, 38-39, and 41-48 supports its position that the silty
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clay layer is not the water bearing unit, and that the wet sand layer is the water producing unit
and, thus, the desired interval.
The Agency has presented no testimony concerning the contents
of
R.
13 to support its
position. Further, the Agency's briefs do not cite to any recognized scientific reference
documents for support. Instead, the Agency briefs rely on the Agency's erroneous arguments
and misinterpretations of what page
R.
13 actually shows.
Further, the Agency misrepresented to the Board that Keller did not explain that the
groundwater located at
10 to 13 Yz bgs was under hydrostatic pressure that pushed the
groundwater up the monitoring well to the static groundwater elevation that was observed days
later during Keller's next trip to the site after the wells were installed. This information is
located at
R.
173 and was explained in detail at hearing and in Keller's Initial Brief at pages 43-
46.
In short, the Agency's arguments that information in the Record do not support Keller's
position misrepresents the facts in the Record.
Newly Discovered Evidence Confirms Keller's Position that the Water Bearing Unit
is the Wet Sand Layer and that the Dry Silty Clay Layer above the Wet Sand is not
a
Water Bearing Unit.
The Agency's Response to Keller's Motion to Reconsider fails to address Keller's new
evidence. Instead the Agency argues
at pages 4 and 5 of its Briefthat the Record that was before
the Agency when it made its decision does not contain this new information. The Agency even
tries to brush
off this evidence as "irrelevant." Agency Brief at page 5. The Agency ignores the
fact that the new well was screened entirely in the silty clay layer that the Agency said and the
Board agreed was the water bearing unit. The new well was not screened to intersect the wet
sand layer that Keller repeatedly told the Agency in the Record and told the Board at hearing and
in post hearing briefs was the desired interval to obtain a representative groundwater sample.
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The new well was constructed, including screened, consistent with Agency policy, which
was adopted by the Board,
and the well did not produce water. Keller told the Agency in
the Record
at
R.
173 that a well constructed as the Agency required would not produce
water.
Of course the Agency is going to oppose the Board's consideration of this new evidence
because the evidence unequivocally demonstrates that the Agency is wrong and confirms
Keller'sposition taken in the Record.
The Board should allow and should consider this new evidence because it goes
to the
heart
of the issue in this appeal. Keller and the Agency disagree on where the desired interval
for sampling groundwater
is located. Keller told the Agency in the Record where the desired
interval
of groundwater is located (the borehole logs at
R.
90-94 show the location of the wet
sand layer). Keller told the Agency in the Record that the monitoring wells were screened to
intersect the desired interval and several feet above that interval. (The well construction reports
at
R. 102-106 show that the wet sand layer and several feet above the wet sand layer were
screened in the monitoring wells.) Thus,
if contaminants were floating on the groundwater, the
screened interval would have captured them as well. Keller also told the Agency in the Record
that
if a well were installed in accordance with the Agency's position that the well would be dry.
(R. 173). At hearing before the Board, Keller presented four witnesses who explained that the
wells were screened properly. They also explained that
if a well were constructed as the Agency
required, it would not produce water. The Agency presented no evidence to rebut any
of Keller's
evidence. In spite
of the overwhelming evidence in Keller's favor, the Board decided this issue
in favor
of the Agency and instructed Keller to submit a revised work plan to the Agency
consistent with the Agency'sposition on how monitoring wells should be constructed.
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The Agency states in its Response brief on pages 4-5: "further, the Illinois EPA does not
direct the installation
of wells as Petitioner states. Instead, the Illinois EPA requires the wells be
constructed in a manner that complies with the Act and regulations." First of all, throughout the
Record, and in its argument before the Board, the IEPA specifically told Keller where and at
what depth the wells needed to be located.
R. 157-161,258-260. This has the same effect as the
Agency directing the installation
of wells, regardless of what verb the Agency uses. Further, as
discussed in Keller's Initial Brief, the Agency's position would require Keller to construct
monitoring wells in a manner that would violate numerous regulatory requirements
as well as
professional engineering practices and professional geologist principles, and as the new evidence
confirms, would not produce groundwater. As a result,
to supplement the Stage 1 Site
Investigation
so that the Stage 2 Site Investigation Wark Plan could be prepared as ordered by
the Board, Keller prepared to install and did install and screen one monitoring well in accordance
with the terms
of the Board's decision.
l
More wells were not installed and screened in that
manner because when Keller installed the first well to a depth
of 10 feet bgs, Keller observed
that a water producing layer was not encountered and Keller did not want to waste money
installing more groundwater monitoring wells that would not produce groundwater. As shown in
Appendix
Ato Keller's Initial Brief, the well that was installed in accordance with the Board's
decision did not produce water. At the same time, a monitoring well located a few feet away that
was installed previously and screened at the depth that Keller maintains is the desired interval,
was full
of water. Thus, this new evidence is directly relevant, and directly in support of Keller's
position, on the issue
of the location of the desired interval where monitoring wells should be
screened.
1 Because the installation of monitoring wells was part of the Stage I investigation, Agency pre-approval of the
work plan to install the wells
is not required under Part 734.
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This new information was not available at the time of the Board hearing or when the
documents that make up the Record was reviewed by the Agency because Keller's consultants
know what the regulations require and how to install and screen monitoring wells in accordance
with generally accepted professional engineering practices and principles of professional
geology. Keller would not waste time or money installing wells that do not comply with the
Board's regulations. Further, the Agency's position on screening monitoring wells at the depth
where water is observed in the well is not a position that Keller could have anticipated. As a
Keller witness testified at hearing, the same Agency project manager has approved in the past
monitoring wells that were screened exactly as Keller screened the wells here.
T.
98-100.
The Board's procedural rules at Section 101.904 allow the Board to consider newly
discovered evidence and to correct errors in Board orders. Specifically, Section 101.904 states
that "the Board may relieve a party from a final order entered in a contested proceeding, for the
following: 1) Newly discovered evidence that existed at the time of hearing and that by due
diligence could not have been timely discovered; ..." 35 Ill. Adm. Code 101.904;
see also
People
v.
Community Landfill Co, Inc.,
PCB No. 03-191, 2006 Ill. Env. LEXIS 323, *2-3
(June 1, 2006) (emphasis added) (A party can file a motion to reconsider "to bring to the
[Board's] attention newly discovered evidence which was not available at the time of the
hearing, changes in the law or errors in the [Board's] previous application of existing law.").
In the case at bar, reconsideration of the Board's order is appropriate, among other
reasons, because Keller has now discovered new evidence that supports Keller's position that the
desired interval for screening a monitoring well is where groundwater is found in the ground
when a well is drilled. If a well is not screened at that interval it will not produce water. This
evidence was discovered while Keller was attempting to comply with Agency policy and the
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Board's opinion and order. Because this evidence is newly discovered pursuant to the Board's
final order, and because the evidence establishes that Keller's position was correct, the Board
should reconsider.
Interpretation of the Desired Interval For Screening a Monitoring Well Extends
Well Beyond the Keller Site
and Would Apply to All Monitoring Wells Installed in
the State;
Thus, How Monitoring Wells are Constructed and Where They are
Screened is a Mixed Question of Fact and Law and Must be Consistent With
Geological Principles.
The Agency states in its brief "further, the Petitioner misses the point that what was at
issue
is the placement of the screen at the desired interval and not how the well was drilled."
Agency Brief at
p. 4. Petitioner does not miss the point. That is the point. Keller has presented
significant, un-rebutted evidence that Keller's wells screens were placed properly. Monitoring
wells screens must be located where groundwater
is located in the ground, so water can enter the
well,
if they are going to produce groundwater; this is the desired interval.
Setting aside for the moment the particular facts in the Record at Keller's site at Farina,
the question before the Board as a matter
of law to be applied to all monitoring wells
2
is whether
monitoring wells should be screened where groundwater is observed in the ground or where
groundwater
is observed in the monitoring wells themselves after the water levels in the wells
have stabilized. At some locations the level
of the groundwater in a well is the same as the
surface
of the groundwater table. In scientific terms, the reason is that the hydrostatic pressure
on the groundwater is equal to atmospheric pressure so that the pressure on the groundwater
is
not so great that groundwater is pushed up the well. Such groundwater is referred to as
"unconfined.
,,3
2
The regulations do not contain different standards for detennining the location of the "desired interval" depending
on site lithology.
3 The Glossary of Hydrology explains an unconfmed aquifer in the definition of "water table" which is "the upper
surface
of the saturated zone. The surface in an unconfmed aquifer or confining bed at which the pore-water
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It
is undisputed from the facts in the Record that at the Keller site the interval of wet sand
is not located at the same depth below ground surface where water was observed in the wells.
R.
102-106. In fact, those levels are located several feet apart. Keller has explained numerous
times to the Agency and then explained at the Board hearing the science behind this
phenomenon. This phenomenon is not
uniqu~
to the Keller site. Pressure on the water located in
the wet sand layer pushed the water up the monitoring well. R. 173. Groundwater is not actually
located in the ground at the level to which the water rose in the well. (The well completion
reports at
R.
102-106 can be used to compare elevations of the surface of the moist layer with the
elevation where the water rose in the wells. See Keller's Initial Brief at pp. 7-9.) The level of
water in wells is referred to as the static water level, the static groundwater elevation and the
isostatic water level. These terms mean the same thing. When the static water level is higher
than the level where groundwater is in the ground and enters the well, the groundwater is
referred to as "confined" or "artesian water.,,4
pressure is atmospheric. Its position can be identified by measuring the water level in a shallow well extending a
few feet into the saturated zone."
4 The Glossary of Hydrology, Ex. 4, contains the following definitions:
Aquifer: A formation, group
of formations, or part of a formation that contains sufficient saturated permeable
material to yield significant quantities
of water to wells and springs.
Confined aquifer: An aquifer that
is bounded above and below by confming beds; an aquifer containing confmed
ground water.
Confined groundwater: Groundwater under pressure significantly greater than that
of the atmosphere. Its upper
surface
is the bottom of a confming bed.
Confining bed: A body
of distinctly less permeable material that is stratigraphically adjacent to one or more
aquifers. In nature, its hydraulic conductivity may range from nearly zero to any value that
is distinctly less than
that
of the aquifer.
Hydrostatic pressure: The pressure exerted at the base
of a column ofwater.
Saturated: Said
of the condition in which the interstices of a material are filled with a liquid, usually water. It
applies whether the liquid
is under greater than or less than atmospheric pressure, so long as all connected interstices
are full.
Saturated zone: A subsurface zone in which all the interstices are filled with water under pressure greater than
that
of the atmosphere. Although the zone may contain gas-filled interstices or interstices filled with fluids other
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As noted from the definition of artesian water, the groundwater may be under enough
pressure to rise above the surface
of the ground.
It
would be impossible to screen a well at the
level
of the water in the well if that level were above the ground surface. The Agency has
presented
no explanation to the contrary. Thus, it would be impossible as a matter of law and
fact to apply the Agency's interpretation
of "desired interval" universally and the Board should
reconsider its erroneous application
of existing law.
Further, the purpose for determining the level to which water rises in monitoring wells
is
to determine the potentiometric surface, which in tum is used to determine which direction
groundwater flows at a site. "Potentiometric surface is defined as
'" an
imaginary
surface
representing the total head
of groundwater and defined by the level to which water will rise in a
tightly cased well." (Ex. 4,
p. 156) (emphasis added) The Agency's position results in a
requirement that wells must be screened at an imaginary level. This approach cannot be applied
as matter
of law to all possible sets of facts.
In addition, as Keller explained at hearing and in the Initial Brief at pages 3-4 and 6-13,
when installing a monitoring well and setting the well screen, one can determine,
as Keller did,
where groundwater is located in the ground and set well screens to intercept the groundwater and
extend above the groundwater; and this is what Keller did. However, as Keller explained in the
than water,
it
is still considered saturated. This zone is separated from the unsaturated zone (above) by the water
table.
The McGraw-Hill Dictionary of Scientific and Technical terms, 5
th
Ed. 1994 ("McGraw-Hill Dictionary") defines
the terms as follows:
Confmed Aquifer -
See
artesian aquifer
Artesian Aquifer -
An
aquifer that is bounded above and below by impermeable beds and that contains artesian
water. Also known as confmed aquifer.
Artesian Water - Groundwater that is under sufficient pressure to rise above the level at which it encounters a
well, but does not necessarily rise to or above the surface of the ground.
Artesian Well- A well in which the water rises above the top ofthe water-bearing bed.
Hydrostatic Pressure - The pressure at a point
in
a fluid at rest due to the weight of the fluid above it.
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Initial Brief at p. 12, the static water level cannot be determined reliably when a well is drilled
and
is determined days later after the water level in the well has stabilized. Thus, unless one
become a time traveler, it is impossible at some sites to screen a well at the level where water
is
later observed in the well. In short, the Board erroneously held that the term "desired interval"
means the static water level in the well. Because this
is a mixed question of fact and law, the
Board may reconsider its decision.
People
v.
Community Landfill.
Dave please check cite for
accuracy.
The Agency's Position That Monitoring Wells Should be Screened at the Level
Where Water is Observed in the Well Would Result in Some Monitoring Wells
Violating Numerous
Board Regulations.
The Agency's statement that it requires wells to
be constructed in a manner that complies
with the Act and regulations (Agency Brief at page
5) is contrary to what the Agency is actually
doing here. Keller has provided testimony and legal arguments in its Initial Brief that,
if wells
were installed at Keller's Site in accordance with the Agency's position, numerous Board
regulations at Section 734.430 would be violated. In addition, the Agency's position, which the
Board adopted, is internally inconsistent with the language
of applicable rules. See Initial Brief
at pages 24-33. The Agency's argument is merely a smoke screen to hide the Agency's lack
of
understanding of generally accepted professional engineering practices and principles of
professional geologists, which is the standard of review that the Agency is required to apply to
technical reviews in the underground storage tank program. 35 Ill. Admin. Code 734.510(a).
Keller has presented a prima facie case and the Agency has presented
no rebuttal
evidence. In such circumstances, a petitioner is entitled to a favorable order from the Board.
See
John Sexton Contractors Co.
v.
PCB,
201 Ill. App. 3d 415, 425,558 N.E.2d 1222, 1229
(l
st Dist.
1990) ("Once Sexton had established a
prima facie
case that the [permit] conditions were
unnecessary, it became incumbent upon the Agency to refute the
prima facie
case.");
Marathon
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Petroleum Co.
v.
IEPA,
PCB No. 88-179, p. 16 (July 27, 1989) (Petitioner prevailed on
monitoring and reporting issue where it presented evidence to support issue, and IEPA " did not
refute this
prima facie
case.");
IEPA
v.
Bliss,
PCB No. 83-17, pp. 6-7 (Aug. 2, 1984). Indeed,
where a petitioner, such as Keller, submits evidence and proves a
prima facie
case, and IEPA
presents
no evidence to dispute the issue (as happened at the hearing of this case), there is no
issue of fact, and petitioner is entitled to prevail on the undisputed issue.
Id.
Keller proved its
case. IEPA presented no credible or other
evidence
to rebut Keller's case, only unsupported
arguments. The Board should reconsider its final order.
The Board failed to apply existing case law in its review
of the Record and in reaching its
decision. The evidence in the record, which Keller has cited to exhaustively, documents that the
wells at the Keller site were screened in accordance with the regulations and with generally
accepted professional engineering practices and principles
of professional geologists. There is
no evidence in the record to support the Agency's decision. Under either a clearly erroneous
5
or
manifest weight
of the evidence
6
standard (depending on whether the Board views the issue as a
mixed issue
of fact and law, or a purely factual issue), Keller should prevail because the Agency
did not present a shred
of evidence, only unsupported arguments that were insufficient to create
any issue
of fact to rebut Keller's
prima facie
evidence. The Board should reconsider its final
order.
5 An agency decision involving a mixed question of fact and law is reviewed under a clearly erroneous standard,
which
is "between a manifest weight of the evidence standard and a
de novo
standard ..."
Belvidere
v.
Illinois State
Labor Relations Bd.,
181 Ill. 2d 191,204,692 N.E.2d 295,302 (1998). Mixed questions of law and fact include
circumstances "that require an examination
of the legal effect of a given set of facts ..."
Salt Creek Rural Park
District
v.
Dept. ofRevenue,
334 Ill. App. 3d 67, 70, 777 N.E.2d 515, 518
(15t
Dist. 2002).
6 Section 41 (b) of the Environmental Protection Act, which applies the manifest weight of the evidence standard to
judicial review
of Board decisions, contemplates that "Any fmal order of the Board ... shall be based solely on the
evidence
in
the record ...." 415 ILCS 5/41(b) (emphasis added). As stated above, the Agency did not submit any
evidence to the Board to contest Keller'sundisputed evidence.
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In the end, Keller's motion satisfies two of three possible bases for granting a motion to
reconsider - Keller has provided the Board with new evidence that shows that Keller's Petition
should be granted and has set forth reasons why the Board erred in its application
of existing law.
35 Ill. Adm. Code 101.902 ("In ruling upon a motion for reconsideration, the Board will consider
factors including new evidence, or a change in the law,
to conclude that the Board's decision was
in error.");
People
v.
Community Landfill Co.,
PCB 97-193 (July 26, 2001) (In granting in part
and denying in part the respondent's motion to reconsider, the Board stated that "the Board will
consider errors in its application
of the law.");
IEPA
v.
Gates,
AC No. 06-50 (Dec. 21, 2006) (In
granting motion to reconsider, the Board stated that a "motion to reconsider may be brought 'to
bring
to the [Board's] attention newly-discovered evidence which was not available at the time
of the hearing, changes in the law or errors in the [Board's] previous application of existing
law."').
The Agency has only cited two cases that are facially distinguishable and
do not support
the denial
of Keller's Motion. For example, in
Citizens against Regional Landfill
v.
County
Board
of Whiteside County,
PCB 92-156 (March 11, 1993), the petitioner requested that the
Board reconsider entering sanctions against its counsel.
Id.
at 1. The Board initially found that,
unlike Keller in the instant case, "Petitioner has not presented any new evidence or changes in
the law."
Id.
at 2. Moreover, the Board stated that
it
viewed the petitioner's conduct "as an
attempt by [petitioner's counsel] to circumvent the hearing officer's ruling and deceive the
Board," - an issue wholly unlike the issues involved in the case at bar.
Id.
In contrast, here
Keller attempted to comply with the Board'sruling.
The case
of
Korogluyan
v.
Chicago Title and Trust Co.,
213 Ill. App. 3d 622, 572 N.E.2d
1154
(1
st
Dist. 1991) is similarly distinguishable. In the
Korogluyan
case, the Court examined
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Electronic Filing - Received, Clerk's Office, January 29, 2008
the entirely unrelated issue of whether there was an issue of fact in order to deny summary
judgment related to "an action to confirm a sale
of property held as security for a loan in
default."
Id
at 624, 572 N.E.2d at 1157. Because Keller has demonstrated two bases for
reconsideration, and the Agency has not provided any case law showing otherwise, the Board
should reconsider its final order and rule in Keller'sfavor.
SUMMARY
Regarding the issue of the new evidence that is being brought to the Board's attention,
Keller agrees that the information with respect
to the most recently constructed well was not
before the Agency when the Agency made its decision. However, it
is clear from the Record that
Keller advised the Agency before the Agency made its final decision from which this appeal
is
taken, that if a well were constructed in accordance with the Agency's position, the well would
be dry. The new evidence was obtained because the Agency and the Board failed to believe
Keller and Keller's professional geologists and professional engineers. Keller's attempt to
comply with the Board's decision demonstrates that the Agency is wrong in this matter and the
Board'sdecision must be reconsidered and changed because the Board'sdecision was in error.
In addition, as discussed in Keller's initial brief, the Board should reconsider its position
on attorney's fees and allow Keller to recover fees for those issued where Keller prevailed.
Keller respectfully renews its request for oral argument before the entire Board to allow
Keller to explain the legal and factual issues, including the newly discovered evidence, and to
answer questions from the Board. In addition, to the extent that there is a deadline by which the
Board must decide this motion
to reconsider, Keller waives that deadline to allow the Board time
to fully consider all the issues in this matter and to satisfy itself that the Record supports Keller's
position.
[This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.2021
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Electronic Filing - Received, Clerk's Office, January 29, 2008
Respectfully submitted,
L.
Keller Oil Properties (Farina)
By:
Carolyn
S. Hesse, Esq.
Jonathan P. Froemel, Esq.
David T. Ballard, Esq.
Barnes
&
Thornburg
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
CHDSOI DTB 445608vl
[This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.2021
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