ILLINOIS POLLUTION CONTROL BOARD
June 18, 2009
IN THE MATTER OF:
PETITION OF MAXIMUM INVESTMENTS,
LLC FOR AN ADJUSTED STANDARD
FROM 35 ILL. ADM. CODE 740.210(a)(3)
FOR STONEY CREEK LANDFILL IN
PALOS HILLS, ILLINOIS
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AS 09-2
(Adjusted Standard – Land)
ORDER OF THE BOARD (by G.T. Girard):
Maximum Investments, LLC (petitioner) filed a request for an adjusted standard from the
Board’s rules requiring that a remediation applicant receive written permission from the
landowner before acting to clean up a site under the site remediation program. The Board
requested that the petitioner and the Illinois Environmental Protection Agency (IEPA) file briefs
that addressed the Board’s authority to grant the requested adjusted standard. Both the petitioner
and the IEPA have filed briefs and after reviewing those briefs, the Board dismisses the adjusted
standard petition. As discussed below, the Board finds that the Board lacks the authority to grant
an adjusted standard from the rules as requested by petitioner because the rule merely
implements statutory requirements.
The Board will first give a procedural history of this proceeding. Next the Board will set
forth the rule that petitioner is seeking an adjusted standard from as well as pertinent statutory
language. The Board will next summarize the petition and petitioner’s briefs. The Board will
follow with a summary of the IEPA’s brief and then explain the Board’s reasoning for
dismissing the adjusted standard petition.
PROCEDURAL HISTORY
On November 7, 2008, Maximum Investments, LLC (petitioner) filed a request for an
adjusted standard from 35 Ill. Adm. Code 740.210(a)(3). On December 18, 2008, the Board
found that the petition contained two deficiencies that required the Board to decline to accept the
petition and the petition was dismissed. First, the Board found that there was a jurisdictional
issue because the Board did not find the proof of newspaper publication in the Board’s files.
Second, an attorney did not file the petition and had not entered an appearance.
On January 12, 2009, petitioner filed a motion asking the Board to reconsider the
December 18, 2008 order and an amended petition (Am.Pet.). On February 5, 2009, the Board
granted the motion to reconsider and reinstated the petition. The Board found that the certificate
of publication, which had been misfiled and not docketed, had been filed. The Board further
found that the notice of the adjusted standard was published on November 18, 2008, within 14
days after the filing of the petition. Therefore, the Board’s dismissal on December 18, 2008, for
lack of jurisdiction was in error. Additionally in the February 5, 2009 order, the Board found
that the filing of an amended petition by petitioner’s attorneys cured the second deficiency. The
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Board reinstated the petition and accepted the amended petition filed by the petitioner’s
attorneys.
Also in the February 5, 2009 order the Board stated:
The Board has an additional concern regarding the requested relief. The Board
has clear authority to grant adjusted standards to rules of general applicability
under Section 28.1 of the Act (415 ILCS 5/28.1 (2006)); however, the Board
cannot adjust statutory requirements.
See
415 ILCS 5/28.1(a) (2006). In this
case, petitioner requests adjustment of a standard adopted in the Board’s rules that
also appears to be a statutory requirement.
See e.g.
415 ILCS 5/58.2 and 58.7
(2006). The Board directs the petitioner and the Illinois Environmental Protection
Agency to address this issue in briefs to be filed with the Board. The hearing
officer is directed to establish a briefing schedule with the parties.
On March 3, 2009, the hearing officer entered an order directing the petitioner and the
IEPA to file briefs. On March 30, 2009, petitioner filed a brief (Br.). On April 27, 2009, IEPA
filed a brief(IEPA Br.). On May 15, 2009, petitioner filed a reply (Reply).
STATUTORY AND REGULATORY BACKGROUND
Petitioner seeks an adjusted standard from Section 740.210(a)(3) of the Board rules
concerning the site remediation program (35 Ill. Adm. Code 740.210(a)(3)). Am.Pet. at 2.
Section 740.210(a)(3) provides:
a)
The Application shall, at a minimum, contain the following information:
3)
For applicants other than the remediation site owner, written
permission from the owner, or the authorized agent of the owner,
for conducting investigative and remedial activities:
A)
Where the remediation site extends across property
boundaries, written permission must be obtained from the
owner of each affected property;
B)
The written permission shall clearly identify the
remediation site for which services are sought;
C)
The written permission shall contain the original signature
of the owner; and
D)
Where the RA is authorized by law to act on behalf of the
owner of the remediation site, the RA shall provide written
documentation of that authority. 35 Ill. Adm. Code
740.210(a)(3).
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Section 58.2 of the Act defines an remediation applicant as:
any person seeking to perform or performing investigative or remedial activities
under this Title, including the owner or operator of the site or persons authorized
by law or consent to act on behalf of or in lieu of the owner or operator of the site.
415 ILCS 5/58.2 (2006).
Section 58.7(b)(1)(F) of the Act (415 ILCS 5/58.7(b)(1)(F) (2006)) provides that when reviewing
plans and reports the IEPA may require the remediation applicant to demonstrate that the
remediation applicant is acting under the authority of the owner. 415 ILCS 5/58.7(b)(1)(F)
(2006).
Section 22.2(b) of the Act (415 ILCS 5/22.2(b) (2006)) is a provision which limits the
liability of prospective purchasers of property. Specifically, Section 22.2b(a) provides in part
that if certain conditions are met:
The State of Illinois may grant a release of liability that provides that a person is
not potentially liable under subsection (f) of Section 22.2 of this Act as a result of
a release or a threatened release of a hazardous substance or pesticide . . .. 415
ILCS 5/22.2b(a) (2006)
PETITION AND AGUMENTS OF PETITONER
Petitioner seeks an adjusted standard from Section 740.210(a)(3) of the Board’s site
remediation program rules to allow petitioner to act as a remediation applicant without receiving
written permission from the owner of the property. Am.Pet at 2. Petitioner holds a tax lien on
the property and the property has been abandoned for several years.
Id
. Petitioner wants “to
enroll the property in the Site Remediation Program before acquiring title so as to qualify for
exemption as a prospective purchaser under 415 ILCS 5.22.2b.”
Id
. Petitioner claims that as
there is no property owner, petitioner cannot comply with the standard of general applicability
and therefore cannot enroll the property in the site remediation program.
Id
. Petitioner asserts
that failure to enroll the property in the site remediation program would result in the property not
being returned to productive use or the tax rolls.
Id
.
Petitioner states that on December 21, 2007, petitioner acquired a tax lien on the subject
property for the years 1987 through 2005 and property taxes have not been paid since at least
1987. Br. at 1. Petitioner maintains that based on IEPA records, Richard and Bessie Lenz
operated the property as a construction debris landfill that closed in approximately 1971.
Id
.
The property adjacent is owned by Palos Hills and includes 12 acres that were a part of the
landfill.
Id
. Petitioner claims that Mr. Lenz filed for bankruptcy and was deceased prior to 1990
and Ms. Lenz also appears to be deceased but remains listed as the owner of record.
Id
.
On January 14, 2008, petitioner submitted to IEPA a request for release from liability as a
prospective purchaser under Section 22.2b of the Act (415 ILCS 5/22.2b (2006)). Br. at 1.
Petitioner maintains that the IEPA directed petitioner to apply for the site remediation program.
Id
. Petitioner states that under Section 58.7(b)(1)(F) of the Act (415 ILCS 5/58.7(b)(1)(F)
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(2006)) the remediation applicant must demonstrate that the authority to act on behalf of or in
lieu of the owner or operator.
Id
. Petitioner also states that Section 22.2b of the Act (415 ILCS
5.2.2b (2006)) provides that a prospective purchaser may request a release from liability if
“among other things, ‘the person requests, in writing, that the Agency provide review and
evaluation services.’”
Id
. Petitioner maintains that there are no regulations defining the level of
review and evaluation to be performed or the application requirements.
Id
.
Petitioner asserts that the lien holder status permits petitioner to act in lieu of the owner in
the circumstances here. Br. at 2. Petitioner notes that the property has been abandoned for 20
years and as the holder of the tax lien on the property, petitioner’s lien supersedes all other
possible lien holders.
Id
. Petitioner claims that if the Board could alternately specify “review
and evaluation” services under the language of Section 22.2b of the Act (415 ILCS 5/22.2b
(2006)) that would enable petitioner to obtain the release of liability “that is the ultimate goal of
this petition” for an adjusted standard.
Id
.
Petitioner maintains that the failure to adopt one of these alternatives would mean that the
property would “forever remain abandoned and off the tax rolls” and such a result is contrary to
the statute. Br. at 2. Petitioner is unwilling to move forward with perfecting title to the property
without obtaining the release.
Id
.
Petitioner maintains that petitioner is not asking the Board to modify the statutory
provisions in the Act, but rather to allow petitioner to act “in lieu of the owner” under
appropriate circumstances. Reply at 1. Petitioner argues that the statute differentiates acting in
lieu of the owner from acting on behalf of the owner.
Id
. Petitioner asserts that acting on behalf
of the owner would mean that the party is a corporate office, attorney or has some form of
written delegation agreement.
Id
. Petitioner argues action in lieu of the owner must mean
something else and the current circumstances are a proper example of acting in lieu of the owner.
Id
. Petitioner claims that in the circumstances here, where the property is abandoned and
petitioner is the lien holder, petitioner can properly act in lieu of the owner.
Id
.
Petitioner also argues that petitioner has provided for an alternative remedy, which the
IEPA does not argue is inappropriate or outside the Board’s authority. Reply at 1. Petitioner
asserts that the Board can define the review and evaluation services to be performed under
Section 22.2b of the Act (415 ILCS 5/22.2b (2006)) to be identical “in all substantive respects”
as those in site remediation program but allow lien holders to apply where the property is
abandoned or the owner is unable to act.
Id
.
ARGUMENTS OF IEPA
IEPA agrees that petitioner contacted the IEPA regarding the possibility of obtaining a
limit of liability for prospective purchasers pursuant to Section 22.2b of the Act (415 ILCS
5/22.2b (2006)). IEPA Br. at 1. The IEPA states that among the requirements to be satisfied
before a limit of liability is granted is that a response action plan must be approved by IEPA.
Id
.
IEPA states that “[p]etitioner was informed that the IEPA would only be willing to perform such
a plan review if the site was enrolled in the Site Remediation Program.” IEPA Br. at 1-2. IEPA
maintains that this position was taken to ensure that funding would be provided to IEPA for the
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review. IEPA Br. at 2. IEPA notes that petitioner holds a tax lien, and opines that petitioner
“obviously realizes” that petitioner cannot take a deed without disqualifying petitioner from the
requirement in Section 22.2b of the Act (415 ILCS 5/22.2b (2006)), that the person is not
otherwise liable under Section 22.2 of the Act (415 ILCS 5.22.2 (2006)).
Id
. IEPA asserts that
ownership status would create liability under Section 22.2 of the Act (415 ILCS 5.22.2 (2006)).
Id
.
IEPA concedes that petitioner’s claims that “the property will forever remain abandoned
and off the tax rolls” may be accurate predictions. IEPA Br. at 2. However, IEPA notes that
predictions are not responsive to the Board’s order as the Board’s concern is the definition of
“Remediation Applicant” in Section 58.2 of the Act (415 ILCS 5/58.2 (2006)) and the
requirement of owner authorization in Section 58.7(b)(1)(F).
Id
. The IEPA goes on to state:
So, while the Petitioner sought relief from the regulatory requirement at Section
740.21 0(a)(3), the regulatory requirement is merely a corresponding requirement
contained in the Environmental Protection Act. The Board correctly pointed out
that Section 28.1 authorizes it to grant relief from regulations it has promulgated.
The legislature did not extend the authority to effectively amend legislation
through an adjusted standard process.
Id
.
IEPA asserts that there is a practical limitation to petitioner’s request because the IEPA is
not required to proceed with a release from liability under Section 22.2b of the Act (415 ILCS
5/22.2b (2006)). IEPA Br. at 2. IEPA notes that the language of Section 22.2b of the Act (415
ILCS 5/22.2b (2006)) uses the permissive “may” and not the mandatory “shall” when providing
for issuance of a release from liability. IEPA Br. at 2-3. IEPA goes on to explain that in practice
the Attorney General develops the final release and executes the release for the State of Illinois
after IEPA has worked out language acceptable to IEPA. IEPA Br. at 3.
The IEPA concludes that “consistent with the Board’s initial concerns” and based on the
issues discussed above, the IEPA contends that “the Board is not granted the authority to modify
statutory requirements” through the adjusted standard proceedings. IEPA Br. at 3.
DISCUSSION
Petitioner is seeking an adjusted standard from language in the Board’s rules on the site
remediation program, but petitioner seeks this change so that ultimately petitioner can receive a
release from liability as a prospective purchaser under Section 22.2b of the Act (415 ILCS
5/22.2b (2006)).
See
Br. at 2. Clearly, the Board has authority to adjust a standard adopted in
the Board’s rules. Section 28.1 of the Act (415 ILCS 5/28.1 (2006)) provides:
After adopting a regulation of general applicability, the Board may grant, in a
subsequent adjudicatory determination, an adjusted standard for persons who can
justify such an adjustment consistent with subsection (a) of Section 27 of this Act.
415 ILCS 5/28.1(a) (2006).
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However, in this case, petitioner requests adjustment of a standard adopted in the Board’s rules
that are also a statutory requirement and the Board cannot adjust statutory requirements.
Specifically, in this petition, the petitioner is seeking to act as a remediation applicant and
undertake remediation without written permission from the landowner. Under Section
740.210(a)(3), remediation applicants who are not the owner, must have written permission from
the owner. Section 740.210(a)(3) implements the language found in the statutory provisions
adopting the site remediation program and more specifically Section 58.2 of the Act (415 ILCS
5/58.2 (2006)) which defines a remediation applicant.
Section 58.2 of the Act defines an remediation applicant as:
any person seeking to perform or performing investigative or remedial activities
under this Title, including the owner or operator of the site or persons authorized
by law or consent to act on behalf of or in lieu of the owner or operator of the site.
415 ILCS 5/58.2 (2006).
Thus, by definition a remediation applicant either is an owner or operator or is authorized to act
by the owner or operator. In addition, Section 58.7(b)(1)(F) of the Act (415 ILCS
5/58.7(b)(1)(F) (2006)) further specifies that when reviewing plans and reports the IEPA may
require the remediation applicant to demonstrate, if necessary, that the remediation applicant is
acting under the authority of the owner. 415 ILCS 5/58.7(b)(1)(F) (2006). The statute again
makes clear that the remediation applicant must demonstrate that the remediation applicant is
acting under the owner’s authority.
Furthermore, when adopting Section 740.210(a)(3), the Board’s opinion specifically
addressed concerns that the provision created new substantive rights in an adjacent property
owner and that the section could impose remedial action or restrictions on adjacent owners. The
Board found that these concerns were not warranted because the requirement in the Board’s rules
for written permission from the owner ensures that the remediation applicant respects the
owner’s existing property rights.
See
Site Remediation Program and Groundwater Quality (35
Ill. Adm. Code 740 and 35 Ill. Adm. Code 620) (Feb. 6, 1997), R97-11, slip op. at 16.).
Here, petitioner argues that petitioner would be acting “in lieu of the owner” and thus, the
requested adjusted standard would only be to the rule and not the statutory language. This
argument however parses out only the words “in lieu of the owner” and ignores the introductory
clause “authorized by law or consent to act” under Section 58.2 of the Act (415 ILCS 5/58.2
(2006)) and “authority to act” under Section 58.7(b)(1)(F) of the Act (415 ILCS 5/58.7(b)(1)(F)
(2006)). The petitioner makes several broad statements that as a tax lien holder, superseding all
other lien holders, petitioner can act as the owner; however, there is no accompanying citation to
law for these broad statements. Furthermore, while on the one hand petitioner wishes to be
allowed to act as an owner, on the other hand petitioner is seeking a release from liability
available only to a prospective buyer. The Board cannot reconcile these two positions.
Based on a plain reading of the statute the Board finds that the Site Remediation Program
requires that an owner must grant approval to a remediation applicant before a site can be
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enrolled in the Site Remediation program. The Board specifically stated this requirement in
Section 740.210(a)(3) based on the statutory language in Section 58.2 of the Act (415 ILCS
5/58.2 (2006)). Because the requirement is statutory, the Board finds that the Board does not
have authority to grant an adjusted standard to Section 740.210(a)(3).
Petitioner offers an alternative position in the briefs.
See e.g.
Br. at 2 and Reply at 1.
This alternative would have the Board define “review and evaluation” services under the
language of Section 22.2b of the Act (415 ILCS 5/22.2b (2006)). This language is found at
Section 22.2b(a)(3) of the Act (415 ILCS 5/22.2b(a)(3) (2006)) and is one of four requirements
in Section 22.2b(a) which must be met before the State of Illinois “may” grant a release of
liability. 415 ILCS 5/22.2b(a) (2006). Petitioner’s request for alternative release is not
supported by the arguments. Petitioner’s seeks an adjusted standard from Section 740.210(a)(3)
and “defining review and evaluation” is more properly done as a rulemaking because there is no
standard to adjust. Therefore, the Board finds granting the alternative relief sought by petitioner
is not supported and the Board declines to do so.
CONCLUSION
The Board finds that petitioner seeks an adjusted standard from a provision in the Board’s
rules (35 Ill. Adm. Code 740.210(a)(3)) that adopts language quoting statutory requirements (
see
415 ILCS 5.58.2 and 58.7 (2006)). The Board does not have authority to change statutory
language. Therefore, the Board finds that granting an adjusted standard is not appropriate and
the petition for adjusted standard is dismissed.
IT IS SO ORDERED.
Board Member Thomas E. Johnson dissented.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2006);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board's procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the Board adopted the above order on June 18, 2009, by a vote of 4-1, Member Johnson
dissented.
____________________________
John T. Therriault, Assistant Clerk
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Illinois Pollution Control Board
