BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
REPUBLIC BANK OF CHICAGO, as
Trustee of Trust
# 2234, ARISTOTLE
HALIKIAS, LENA HALIKIAS, MICHAEL
HALIKIAS, NIKOLAS HALIKIAS, NOULA
HALIKIAS, and PATRICIA HALIKIAS, as
beneficiaries of Trust # 2234,
Complainants,
)
Respondent.
NOTICE OF FILING
CLERK’S OFFICE
DEc
122003
S’~ITEOFILLINOIS
PoJ/utjoy~Control Board
To:
SUNOCO, INC. (R&M),
do
CT Corporation System, Registered Agent, 208
South LaSalle Street, Chicago, Illinois 60604
PLEASE TAKE NOTICE that on December 12, 2003, we filed with the Clerk of
the
Illinois Pollution Control Board (“Board”), 100 West Randolph Street, James R.
Thompson Center Suite 11-500, Chicago, Illinois, 60601-3218, an original and nine (9)
copies of a MOTION FOR RECONSIDERATION OR ALTERNATELY
CLARIFICATION; a copy of said motion is attached hereto and hereby served upon
you.
Andrew
H. Perellis
SEYFARTH SHAW LLC
55 East Monroe Street
Suite 4200
Chicago, Illinois 60603
(312) 346-8000
REPUBLIC BANK OF CHICAGO, as
Trustee of Trust # 2234, ARISTOTLE
HALIKIAS, LENA HALIKIAS, MICHAEL
HALIKIAS, NIKOLAS HALIKIAS, NOULA
HALIKIAS, and PATRICIA HALIKIAS, as
beneficiaries of Trust # 2234
By:
One of Th~irAttorneys
)
)
)
)
)
)
)
)
PCB-04-69
(Citizen’è Suit UST Enforcement)
SUNOCO, INC. (R&M),
)
)
THIS FILING IS MADE ON RECYCLED PAPER
~
ri~
I FI~
CLI~RM’S
OFFICE’
ILLINOIS POLLUTION CONTROL BOARD
DEC 1 2 2003
REPUBLIC BANK OF CHICAGO, as
)
Trustee of Trust # 2234, ARISTOTLE
)
STATE OF
ILLINOIS
HALIKIAS, LENA HALIKIAS, MICHAEL
)
•
PollUtiOfl Control Board
HALIKIAS, NIKOLAS HALIKIAS, NOULA
)
PCB-04-69
HALIKIAS, and PATRICIA HALIKIAS, as
)
(Citizen’s Suit UST Enforcement)
beneficiaries of Trust # 2234,
)
)
Complainants,
)
)
v.
)
)
SUNOCO, INC. (R&M),
Respondent.
AFFIDAVIT OF SERVICE
The undersigned, an attorney, states that he caused a copy of the attached (i)
MOTION FOR RECONSIDERATION OR ALTERNATELY CLARIFICATION,
and (ii)
NOTICE OF
FILING,
to
be served upon the following by first-class mail, from 55 East Monroe St.,
Chicago, Illinois 60603, this 12th day of December, 2003:
SUNOCO, INC. (R&M)
do CT Corporation System, Registered Agent
208 South LaSaIle Street
Chicago, Illinois 60604
Andrew H. Pei~ilis
SUBSCRIBED TO AND SWORN BEFORE ME
THIS ~~DAY
OF DECEMBER, 2003
NOTARY PUBLIC
~
•--•••~
MARIE
BROWN ~
~
OF IWNOIS
12 2004
Respondent.
CLERK’S OFFICE
DEC 1
2
2003
SIATE
OF ILLINOIS
Pollution Control Board
MOTION FOR RECONSIDERATION OR ALTERNATELY CLARIFICATION
Complainants, Republic Bank of Chicago, et al., by their counsel, move the
Pollution Control Board to reconsider that portion Of its Order dated December 4, 2003,
which struck as frivolous “the allegations in count IV of the Complaint relating to
violations of the regulations of the Office of State Fire Marshal.” In support of this
motion, Complainants state:
1.
The Board should reconsider its Order because it erred in striking certain
allegations of the Complaint. It erred for a number of reasons. First, the Board does
possess statutory authority to enforce the regulations of the State Fire Marshal. Second,
even if the Board lacked such authority, it must enforce violations of the Environmental
Protection Act. A violation of the State Fire Marshal’s regulations would give rise to a
violation of the Act, and accordingly, whether a regulatory violation occurred is relevant
to the Board’s inquiry. Third, even if the Board (despite its statutory mandate) is
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
REPUBLIC BANK OF CHICAGO, as
)
Trustee of Trust
# 2234, ARISTOTLE
)
HALIKIAS, LENA HALIKIAS, MICHAEL
)
HALIKIAS, NIKOLAS HALIKIAS, NOULA
)
HALIKIAS, and PATRICIA HALIKIAS, as
)
beneficiaries of Trust # 2234,
)
)
Complainants,
)
PCB-04-69
(Citizen’s Suit UST Enforcement)
v.
SUNOCO, INC. (R&M),
)
)
)
unwilling to adjudicate a violation of the Fire Marshal’s regulations, and even if such
violation did not give rise to •a
per se
violation of the Act, it would still be appropriate for
Complainants to allege that Respondent did not meet the Fire Marshal’s regulatory
requirements. This is because conduct underlying the violation (as opposed to the
regulatory violation itself) would be relevant and admissible proof for the Board to
consider in fulfilling its statutory obligation to adjudicate whether a violation of the Act
has occurred. Fourth, even if none ofthe foregoing arguments prevail, the “frivolous”
determination to be made by the Board pertains to whether a cause of action is
frivolous, not whether particular allegations are surplusage. Particular allegations are
subject to a motion to strike as being “immaterial,” but should not be addressed
sua
sponte
by the Board. These four contentions are discussed in reverse order to provide a
logical progression of thought.
2.
The Board has confused a frivolous complaint with what it considers to be
a frivolous
allegation
in a complaint. Where the
complaint
is not frivolous, neither
Section 31(d) of the Act and Section 103.212 of the Board’s regulations provide
authority for striking particular allegations in a complaint. Count IV of the Complaint
alleges,
inter al/a,
that “Sunoco has violated Sections 57.1(a), 57.5, 57.6, and 57.7 of
the Environmental Protection Act.” The relief sought includes a “determination that
Sunoco has violated Sections 57.1(a), 57.5, 57.6, and 57.7, of the Act, 415 ILCS
5/57.1(a), 5/57.5; 5/57.6 and 5/57.7” and an order directing “Sunoco to remediate the
petroleum-related contaminated soil and groundwater,” as well as an order requiring
reimbursement of cleanup costs incurred by Complainants. Count IV, then, is not
frivolous because it states a cause of action upon which the Board can grant relief, and
4
because it requests relief that the Board has authority to grant.
3.
The Board, absent motion from the Respondent, should take no action
sua sponte
to strike particular
allegations
of the complaint. However, when considering
whether to strike
particular
allegations within a complaint (either
sua sponte
or by
motion), the Board (in addition to its own Rule 101.506) should be guided by Illinois
Code of Civil Procedure 5/2-615, which allows the striking of “designated immaterial
matter”
from pleadings. An allegation that violations of
the
Fire Marshal’s regulations
has occurred is neither immaterial to Complainants’ cause of action nor frivolous,
regardless of whether the Board has authority to
enforce
the regulations of the Office of
the State Fire Marshal. To the contrary, such allegations are germane to and help
• support the allegation that Respondent has violated
the
Environmental Protection Act.
After
all, and at a minimum, these the regulations provide a sister agency’s view as to
how compliance with the Environmental Protection Act is to be achieved. Respondent’s
conduct, viewed against the backdrop of the regulations, is relevant to and may assist
the
Board
in
its determination of whether the Environmental Protection Act has been
violated. A similar legal concept might be where a
statute
does not give rise to a private
cause of action, but the allegation of such violation will form the basis for a negligence
claim. Where the conduct giving rise to a cause of action is addressed by a statue, no
court would suggest that it is frivolous or immaterial to allege the statute’s violation
merely because the court lacks power to enforce the statute.
4.
Additionally, the Board clearly has authority to enforce violations of the
Act. A violation of the Fire Marshal’s regulations gives rise to a
independent
violation of
the Act. In other words, the Board can decide whether a violation of regulation occurred
5
without enforcing the regulation itself; instead, it would be adjudicating whether a
violation of the Environmental Protection Act took place. Section 31(d) of the Act allows
a complaint against any person “allegedly violating this Act.” Section 5(d) of the Act
provides the Board with authority to “conduct hearings upon complaints charging
violations of this Act.” Under Section 57.1 of the Act, a person who fails to perform site
investigation or corrective action in accordance with the requirements of the Leaking
•
Underground Storage Tank Program has violated
the Act.
Under Section 57.5(b), a
person who has failed to remove or abandon a UST in accordance with the Fire
Marshal’s regulations has violated
the Act.
Similarly, under Section 57.6(a), a person
who fails to “comply with all applicable statutory and regulatory reporting and response
requirements” has
violated
the Act.
Indeed, with respect to the UST program in Illinois,
in
Miehle v. Chicago Bridge and Iron Company,
PCB 93-150,
1993
III. ENV LEXIS 1224
(Nov. 4, 1993), the Board confirmed its authority to adjudicate violations
of the
Act
without regard to whether the
Fire
Marshal has made any prior findings
of
a violation of
its regulations. Accordingly, it is proper to allege a violation ofthe State Fire Marshal’s
regulations
because violation of the regulation will give
rise
to
a
violation of the Act,
which is properly before the Board.1 Indeed,
the
failure
of
the Board
to
consider whether
the Act has been violated by the conduct of the Respondent would be an unlawful
abdication
of the authority conferred on the Board by the legislature.
5.
Although
the
Board states
in
its December 4 Order that it lacks
authority to
enforce directly the Fire Marshal’s regulations, the Board clearly has such authority
1
An analogous situation is presented by the alleged failure to comply with a federal regulation
promulgated under Section 111 or 112 of the Clean Air Act, which gives rise to a violation of the
Environmental Protection Act under Section 9.1(d).
6
conferred on it by statute. Section 5(d) ofthe Act provides the Board with authority not
only to enforce violations of the Act,
but
also “regulations thereunder.” Section 31(d) of
the Act authorizes the Board to adjudicate not only violation of the Act, but also
“any
rule or regulation thereunder.” (Emphasis added.) Section 33 ofthe Act authorizes the
Board to enter a final order “as it shall deem appropriate under the circumstances,”
consistent with its Authority under the Act (Section 5(b)) to “determine, define and
implement the environmental control standards applicable in the State of Illinois.” The
fact that regulations are adopted by one agency in the executive branch of government
(e.g., the Fire Marshal) in no was’ limits another agency of the executive branch from
construing or determining compliance with such regulation (e.g., the Board) where the
legislature has authorized such activity. Because both agencies are created by the
legislature and vested only with such authority as is conferred by the legislature, the
Board’s authority to enforce the Fire Marshal’s regulations, promulgated pursuant to the
Act, does not usurp the authority of the Fire Marshal or interfere with its jurisdiction. For
this reason, in addition to enforcing violations of the Act, the Board may properly directly
enforce violations of regulations promulgated “thereunder,” including those promulgated
by the Office of the State Fire Marshal pursuant to the Act.
6.
In the event that the Board does not favorably grant reconsideration by
allowing the complaint to stand as filed, Complainants respectfully ask the Board to
clarify its Order of December 4 by identifying with specificity what allegations of the
complaint have been stricken. Complainant’s concern is that the Hearing Officer not
later misconstrue the Board’s Order by depriving Complainant of the opportunity to
obtain discovery regarding Respondent’s conduct relating to its compliance with the
7
requirements imposed by
the
Fire Marshal’s regulations, or by prohibiting Complainant
from introducing evidence of such conduct at hearing.
WHEREFORE, Complainants respectfully move the Board to reconsider its
Order of December 4, 2003 and allow the complaint to stand, as initially filed with the
Board.
Respectfully Submitted,
Andrew H. Perellis
SEYFARTH SHAW LLC
55 East Monroe Street
Suite 4200
Chicago, Illinois 60603
(312) 346-8000
December 12, 2003
REPUBLIC BANK OF CHICAGO, as
Trustee of Trust # 2234, ARISTOTLE
HALIKIAS, LENA HALIKIAS, MICHAEL
HALIKIAS, NIKOLAS HALIKIAS, NOULA
HALIKIAS, and PATRICIA HALIKIAS, as
beneficiaries of Trust # 2234
By:
One
Q~
of Their A orneys
8
CHI 10616652.2