BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ILLINOIS AYERS OIL COMPANY,
Petitioner,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, IL 62794-9274
V.
RECE WED
CLERK’S OFFICE
SEP 16 2004
)
STATE OF ILLINOIS
)
Pollution Control Board
)
PCBNo.03-214
)
(LUST Appeal)
)
NOTICE
Fred C. Prillaman
Mohan, Alewelt, Prillaman & Adami
Suite 325
1 North Old Capitol Plaza
Springfield, IL 6270 1-1323
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution
Control Board a MOTION FOR RECONSIDERATION, copies of which are herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
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: September 14, 2004
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ILLINOIS AYERS OIL COMPANY,
)
Petitioner,
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
MOTION FOR
RECONSIDERATION
NOW COMES the Respondent, the Illinois Environmental Protection Agency (“Illinois
EPA”), by one of its attorneys, John J. Kim, Assistant Counsel and Special Assistant Attorney
General, and, pursuant to 35 Ill. Adm. Code 101.520 and 101.902, and by motion filed no later
than 35 days following the receipt of an order entered by the Illinois Pollution Control Board
(“Board”) on August 5, 2004, hereby respectfully moves the Board to reconsider that order in
that the Board erred in its decision. The Illinois EPA received service ofthe Board’s order on
August 10, 2004. In support ofthis motion, the Illinois EPA states as follows:
I. STANDARD
FOR
REVIEW
The purpose ofa motion for reconsideration is to bring to the court’s or Board’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 or Board’s previous application of the existing law. Vogue Tyre &
Rubber Company v. Office of the State Fire Marshal, PCB
95-78
(January 23, 2003), citing to,
Citizens Against Regional Landfill v. County Board of Whiteside County, PCB
93-156
(March
11, 1993), and Korogluyan v. Chicago Title & Trust Co., 213 Ill. App. 3d 622,
572
N.E.2d 1154
(1st Dist. 1992).
Here, the Illinois EPA argues that the Board incorrectly applied certain provisions of
Title XVI of the Illinois Environmental Protection Act (“Act” (415 ILCS
5/57,
~
~q.) in
RECE WED
CLERK’S OFFICE
SEP 16 2004
STATE OF ILIJNOIS
Pollution Control Board
PCB No. 03-214
(LUST Appeal)
1
reaching its decision dated August 5, 2004 (“August 5th order” or “Order”). Specifically, the
Board has misconstrued the provisions ofSection
57.8(1)
ofthe Act (415 ILCS
5/57.8(1)),
and in
doing so has reached a conclusion contrary to the clear and plain wording of the legislation
passed by the General Assembly.
II. THE
BOARD
MISAPPLIED SECTION
57.8(1)
OF THE ACT
As the Board noted in its August 5th order, the first question that needed to be addressed
was whether the current proceeding fell within the parameters ofSection
57.8(1)
ofthe Act. The
next question was whether the discretion conferred in that provision should be exercised. Order,
p. 7. It is the position of the Illinois EPA that the Board’s answer to the first question was
incorrect, and thus there was no need to move to the second question.
The main concern of the Illinois EPA is that the Board failed to ex~lainor justify its
decision to deviate from the plain wording ofSection
57.8(1)
of the Act. That provision states:
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 oflegal fees. (Emphasis added.)
The Board noted the Illinois EPA’s argument that the emphasized language above should
act to prevent the consideration of the Petitioner’s request for payment of legal fees, since the
appeal centered on submissions from the Petitioner (i.e., a corrective action plan and associated
budget) that did not seek payment from the Underground Storage Tank Fund (“Fund”).
The Board disagreed with the Illinois EPA’s position, and instead decided that the
corrective action plan and budget were within the scope of Section 57.8(1). To reach that
conclusion, the Board observed that there were numerous steps in Title XVI that must be
followed in order for an owner or operator to seek and receive reimbursement for costs related to
a leaking underground storage tank (“LUST”). Order, p. 8. Further, the Board stated that the
2
only way an owner or operator (“0/0”) could seek reimbursement for the remediation of a
LUST was to follow the provisions ofTitle XVI. The Illinois EPA could approve or disapprove
the 0/0’s actions at several points in the remediation of the site; if an appeal with the Board
were not filed at any specific step, the 0/0 would have acquiesced to the Illinois EPA’s final
decision such that no further appeal could be taken.
~.
The Board thus found that, here, the Petitioner could not have sought reimbursement for
the 10 additional borings at issue unless the corrective action plan and budget were appealed.
Therefore, the only way for the Petitioner to seek and receive reimbursement for the corrective
action plan was to file an appeal.
The Illinois EPA respectfully argues that although the Board’s recitation of the overall
statutory scheme involving remediation of LUST sites is accurate, the conclusions drawn
therefrom are not reasonable. The issue here was not whether appeal rights should or should not
have been exercised, or whether the Petitioner was put into a better position to seek
reimbursement based upon its filing of an appeal. Rather, the issue was whether submitting a
proposed corrective action plan and budget are considered seeking payment from the Fund
pursuant to Section 57.8(1) ofthe Act. By the Board’s rationale, it would have been impossible
for the Petitioner to receive reimbursement for the 10 additional borings if the corrective action
plan and budget were not appealed.
Following that reasoning, it would have been impossible for the Petitiotier to receive
reimbursement for any borings, much less the 10 additional borings, unless the site were
classified as a high priority site. Therefore, the site classification work plan and budget should
also be considered to be part of “seeking payment” under the August 5th order’s guidelines.
Indeed, review of proper site classification of a site is not possible unless the 0/0 has first
3
submitted a 20-day and 45-day report as to the background information and conditions at the
LUST site. In short, each and every required step set forth in Title XVI or the Board’s
regulations regarding remediation are sufficiently linked to seeking payment such that, in the
end, the use ofthe term “seeking payment” is useless and adds nothing to Section
57.8(1)
ofthe
Act. That being the case, the Board is interpreting the words “seeking payment” to be directly
equivalent to “compliance” in the context ofSection
57.8(1).
The specific terminology employed
by the General Assembly, limiting the scope of Section
57.8(1)
to a certain activity (i.e., seeking
reimbursement from the Fund), has thus been expanded to mean any step taken in compliance
with Title XVI. As the Board itself declared, “The only way an owner or operator can seek
reimbursement for remediation of a leaking underground storage tank site is by following the
provisions of Title XVI.” Order, p. 8.
The Board is clearly then interpreting Section
57.8(1)
to mean that any step taken
pursuant to Title XVI that is a prerequisite to seeking reimbursement is considered to be a step
taken to seek payment from the Fund, even if no actual request to seek payment has been made.
Ifan owner or operator only filed an appeal ofa corrective action plan decision, with no mention
ofany related budget, then by the Board’s rationale any successful appeal ofthat decision would
qualify the owner or operator to seek payment of legal fees. However, at that point, just as in
this case, there was no actual proofor evidence that the owner or operator would actually submit
a request for payment from the Fund.
III. CONCLUSION
The Board’s decision set forth in the August
S~
order is incorrect in that it misconstrues
the plain and clear wording found in Section 57.8(1) of the Act. The Illinois EPA respectfully
4
asks that the Board reconsider its decision of August
5,
2004, and deny the Petitioner’s request
forpayment of legal fees.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Res
ent
Jo
.
Kim
‘
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: September 14, 2004
This
filing submitted on recycled paper.
5
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on September 14, 2004, I served
true and correct copies of a MOTION FOR RECONSIDERATION, by placing true and correct
copies 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 Mail postage
affixed thereto, upon the following named persons:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, IL 62794-9274
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Fred C. Prillaman
Mohan, Alewelt, Prillaman & Adami
Suite 325
1 North Old Capitol Plaza
Springfield, IL 62701-1323
JolmJ.~i
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
