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B E F ORE T HE P OL L UT I ON CO NT ROL B OARD

OF THE STATE OF ILLINOIS

PRIME LOCATION PROPERTIES , LLC,

)

(LU S T Pe rm it A p p eal)

ILLINOIS ENVIRONMENTAL

)

P R OT E C T I ON AGE NC Y,

)

R esp o n d en t.

)

NOT I CE OF F I L I NG AND P ROOF OF S E RV I CE

To:

John T. Therriault , Acting Clerk Carol Webb

I l l i no i s Po l l uti on Co ntrol Board

H eari ng O ffi cer

100 W est Randolph Street

Illinois Pollution Control Board

State of Illinois Building, Suite 11-500

10 21 N orth G rand A venu e East

Chicago, IL 60601

P.O. Box 19274

Spr i ng f i e l d, I l l i noi s 62 794- 9274

T h o ma s D avis

A ssi st ant Att orn ey G eneral

50 0 S . Secon d S t reet

Spr i ng f i e l d, I L 62 706

PLEASE TAKE NOTICE that I have today electronically filed with the Office of the Clerk of

t he Il l i no i s Po l l uti on Co ntrol Board , pursu ant t o B oard Pro cedu ral Ru l e 10 1.3 02 (d), a

PETITION ER’S REPLY BRIEF , a copy of which is herewith served upon the hearing officer and

up on t he att orn ey s of record i n this cause.

Th e un dersigned h ereby cert i fi es t hat a t rue an d co rrect cop y of t his No t i ce of Fi l i ng, t ogether

w i t h a cop y of t he d ocu men t descri bed abo ve, w ere t od ay serve d u po n the hearing offic er and cou nsel

o f re co rd o f all pa rties to this cau se b y en clo sin g sam e in en velo p es ad d re sse d to su ch atto rn eys an d to

said hearing officer with postage fully prepaid, and by depositing said envelopes in a U.S. Post Office

M ai l bo x in Sp ri ngfiel d, I l l i no i s on t

he 1 3 day of July , 200 9 an d to cou nsel of record vi a emai l .

Respectfully submitted,

PRIME LOCATION PROPERTIES , LLC, Petitioner

B Y:

MOHAN, AL E WE L T , P R I L L AMAN & ADAM I

MOHAN, AL E WE L T , P R I L L AMAN & ADAM I

1 North Old Capitol Plaza , Suite 325

Spr i ng f i e l d, I L 62 701- 1323

Te l e phon e : 21 7/ 528- 2517

F a c s i mi l e : 21 7/ 528- 2553

Electronic Filing - Received, Clerk's Office, July 13, 2009

BEF ORE TH E P OLLUTI ON CO NTROL BO ARD

OF THE STATE OF ILLINOIS

P RI M E L OCAT I ON P ROP E RT I E S , L L C,

I L L I NOI S E NVI RONM E NT AL)

P ROT E CT I ON AGE NCY,

)

R esp o n d en t.

)

PETITIONER’S REPLY BRIEF

NOW COMES Petitioner, Prime Location Properties, LLC, by its undersigned counsel,

and for its reply brief, states as follows:

OBJECTIONS TO THE BURDEN OF PROOF

The Agency’s statement of the burden of proof tellingly omits the all important detail,

which is what exactly the petitioner must prove. “That burden is to show that the plan, as

proposed by the applicant, will not result in the violation of the Act . . ..” Browning-Ferris

Industries of Illinois v. Pollution Control Bd., 179 Ill. App. 3d 598, 607 (2nd. Dist. 1989); see

also John Sexton Contractors Co. V. PCB, 201 Ill. App. 3d 415, 425

(1 Dist. 1990)( “To prevail

before the Board, [petitioner] had the burden of establishing that its proposed . . . plan would not

result in any future violations of the Act or regulations . . ..”); Prairie Rivers Network v. Ill.

Pollution Control Bd., 335 Ill. App. 3d 391, 400-401 (4th Dist. 2002) (“the petitioner has the

burden of proving that the requested permit would not violate the Act or the Board's

regulations”).

Since the burden is to prove the plan would not violate the Act or regulations, the starting

Electronic Filing - Received, Clerk's Office, July 13, 2009

point should be the law that Agency believes has been violated. Unfortunately, the Agency’s

Response Brief is twelve pages that fail to identify the provisions of the Act or regulations that

would be violated, plus twenty-one single-spaced pages of the “Relevant Law.” One can only

assume that the Agency either wants the Board to find a legal violation, or hopes that the Board

misconstrues the nature of the burden of proof in these proceedings.

II.

OBJECTIONS TO STATEMENTS OF FACT

The factual background provided by the Agency is sparse and incomplete and Petitioner

recommends it’s longer, more detailed statement. Herein, Petitioner will simply raise objections

to those statements that are not supported by the record:

Oddly, the first statement of fact is based upon a document that is not in the

administrative record. It is an exhibit to the petition for review that the Board

rejected (Order, March 19, 2009), and the Agency contends is a void document.

(Mot. Dism., May 26, 2009) Furthermore, the Agency’s characterization of the

instrument is incorrect. The deed does not show that the property was sold “for

the consideration of $10.00 on March 26, 2006.” (Agency Resp. Brief, at p. 3)

The deed actually states “consideration of the sum of $10.00 (TEN AND 00/100

DOLLARS) and other good and valuable consideration.” (Pet. Ex. 4) A deed can

state the actual consideration, but more frequently a deed will merely state a

“[n]ominal dollar amount, and other good and valuable consideration.”

Callaghan’s Illinois Legal Forms, § 1A.500 (1999).

The area map does not show “that there were clean borings surrounding the area”

Electronic Filing - Received, Clerk's Office, July 13, 2009

of excavation. (Agency Resp. Brief, at p. 7) The consultant was never able to

sample inside of the area of the tanks and repeatedly sought permission to remove

the site obstacles that would permit such borings. (R. 19) The area map is

accompanied by this explanation from the engineer:

Previously, the IEPA has requested that it be determined

which tanks had releases, and at this point it is impossible to

tell which tanks have caused the contamination. The OSFM

representative on-site during the tank pull will make the

determination as to which tanks have leaked and at that time

the eligibility will be amended in order to reflect his

determination and only those tanks and excavation deemed

eligible will be requested for reimbursement.

(R. 23, at p. 12 (emphasis added)).

III.

THE “ISSUE” IDENTIFIED BY THE AGENCY NEED NOT BE DECIDED.

As discussed in the Burden of Proof section, the actual issue is whether the plan and

budget would violate the Act or regulations. Even if we were to assume for the sake of argument

that a new incident occurred in 2006 during the ongoing cleanup of the 2001 incident, there is

nothing in the Act or the regulations that would make such a finding material. The LUST

program is premised on cleaning up an underground storage tank “site.” (415 ILCS 5/57.8(a)(4))

The number of occurrences on a site doesn’t matter, and it certainly doesn’t require a new

deductible. Mac Investments v. OSFM, PCB No. 01-129 (Dec. 19, 2002

); Swif-T-Food Mart, PCB No.

03-185 (May 20, 2004).

Electronic Filing - Received, Clerk's Office, July 13, 2009

Petitioner asserts this statement has particular significance because of its independent

importance. Abandoned tanks containing petroleum products are a threat to human health and

the environment. Had the LUST reviewer believed the tanks still contained product, he would

almost certainly ordered them drained.

IV.

WHERE DID THE ALLEGED 2006 PRODUCT COME FROM WHEN THE

TANKS WERE EMPTIED AND OUT OF SERVICE LONG BEFORE 2006?

This simple question is unanswered and unaddressed by the Agency. The tanks were out

of service before the 2001 incident was reported. (R.4) The consultant drained the tanks, a fact

confirmed by the Agency in an October 3, 2003 letter, in which the Agency stated “as

that much

of the regulated substance as possible had been removed.” (R. 22)

The Agency appears to believe that Petitioner disagrees with the prior Agency decisions

in this matter. It is clear that the course of remediation was ill-conceived in hindsight, but the

reason to review the investigation and correction activities at the site is merely to show that those

activities were insufficient to rule out releases from the seven tanks for which the Office of the

State Fire Marshall (“OSFM”) issued an eligibility determination for the 2001 release. (R. 15)

The Agency sought to delay the investigation into all seven tanks by refusing to authorize

removal of site obstructions that would permit soil borings next to the tanks, as well as removal

of the tanks themselves, which the licensed professional engineer indicated made it “impossible”

to rule out releases from all of the tanks.

It may or may not have been reasonable for the Agency to direct the investigation toward

the tanks closest to the property line and farthest from the building, but its willful blindness to

conclude that once the tanks were examined, the releases from them had to have originated from

recent events.

Electronic Filing - Received, Clerk's Office, July 13, 2009

THE OSFM MAKES THE ELIGIBILITY AND DEDUCTIBILITY

DETERMINATION, AS WELL AS REVIEWS THE TANKS.

Another oddity in this case is that the Agency does not appear to know that it no longer

has responsibility for deductibility determinations. The Agency states:

The Petitioner also seems to contend that the Office of State Fire Marshal

(OFSM) should determine the applicable deductible. The law is well settled

that the OSFM’s decisions do not determine the applicable deductible.

Section 22.18(d)(3)(G) of the Act provides that the deductible application

must be submitted to the Illinois EPA and that the Illinois EPA makes the

deductible determination. Mick’s Garage v. IEPA, PCB 03-126 (Dec. 18,

2003).

(Resp. Brief, at p. 9)

Of course, Section 22.18(d)(3)(G) was amended, as noted by the very case the Agency

cites:

[U]nder the original section of the Environmental Protection Act (Act)

regarding UST Fund reimbursement the Agency was responsible for

making eligibility and deductibility determinations. 415 ILCS 5/22.18b(d)(3)

(1992). This section was repealed and a new Title XVI enacted, effective

September 13, 1993, changing the agency responsible for making eligibility

and deductibility determinations to the OSFM. 415 ILCS 5/57.9(c) (2002).

Mick’s Garage v. IEPA

PCB 03-126, at p. 4 n.2 (Dec. 18, 2003)(finding that the 1991 incident

was governed by pre-1993 law).

The 1993 change has broader implications as well. Under the 1993 changes, “the OSFM

now has a much greater role in the present UST program than in the previous ones. In particular,

the OSFM must provide on-site assistance to the owner/operator for leak confirmation,

evaluation and eligibility information. The OSFM is also the state entity responsible for making

eligibility and deductibility determinations (access to the fund issues).” Kathe’s Auto Service

Center v. IEPA, PCB 96-102 (Aug. 1, 1996).

Electronic Filing - Received, Clerk's Office, July 13, 2009

On February 4, 2002, OSFM issued an eligibility and deductibility determination,

finding that all seven tanks were eligible for reimbursement from the Fund, subject to a $15,000

deductible. (R. 15) A representative of OSFM was also on-site during the 2006 incident: “The

OSFM official on-site during tank removal activities confirmed that all seven (7) tanks on-site

had releases. As a result, Incident No. 20061558 was issued on December 13, 206 and was

noted as being a re-reporting of the 20011314 incident.” (R. 36) The Agency is overstepping its

role by disputing deductibility determinations and on-site activities entrusted by law to the

OSFM.

VI.

THE TANK OWNER/OPERATOR HAD NO DUTY TO APPEAL PRIOR

AGENCY DENIAL LETTERS

The Agency appears to argue that this is an impermissible effort to seek reconsideration

of a prior Agency decision. This argument, if accepted, would essentially gut the LUST

program. The complication with remediating underground storage tanks are that all of the

activities take place under the ground. Consequently, investigation and remediation may

uncover new data that give rise to more investigation and remediation. The Agency’s letters in

the record reflect this. For example, the October 22, 2002, denial letter refused to allow removal

of the USTs, contaminated backfill, the building, canopy, and underground retaining walls, but stated

that “[a]fter further investigation has been performed and the full extent defined, some or all of the

above activities may be approved.” (R.18) To say that new information obtained from on-site

activities cannot be presented to the Agency to seek approval of a new plan would be to force

the premature closing of any underground storage tank site with conditions worse than may have

been expected.

Electronic Filing - Received, Clerk's Office, July 13, 2009

Furthermore, the Agency seems to place particular importance on the November 23,

2005 decision letter. (R. 24) As an initial matter, that decision letter, required modifications,

and consequently, a new plan and budget were submitted on February 23, 2006. (R. 25) That

documents stated: “While we disagree with the Agency’s contention that only USTs #2 & #3 have

shown evidence of a possible release, in order to move the site forward, the budget has been modified so

that nothing beyond the proposed excavation and removal of USTS #2 & #3 is included in this budget.

Furthermore, if other USTs are found to have released while on-site, they will be appropriately

addressed.” (R . 25) On February 24, 2006, the Agency issued a decision letter, stating that “the plan is

approved.” (R.27) Subsequent on-site activities confirmed releases from the remaining USTs,

and thus further corrective action is appropriate.

VII.

CONCLUSION

Petitioner has met its

prima facie

burden of demonstrating that there is no violation of

any statute or regulation that would occur by approving the plan and budget. In fact, the

Agency’s notion that underground storage tank releases at a property are remediated via discrete

cleanups of separate “incidents,” subject to separate deductibles, clearly violates the Act. 415

ILCS 5/ 57.8(a)(4) (“Only one deductible shall apply per underground storage tank site.”).

Wherefore, Petitioner renews its request for reversal of the Agency’s decision denying the plan

and budget, along with the other relief requested in the brief.

Electronic Filing - Received, Clerk's Office, July 13, 2009

Respectfully submitted,

PRIME LOCATION PROPERTIES, LLC,

Petitioner,

BY: MOHAN, ALEWELT, PRILLAMAN & ADAMI,

MOHAN, ALEWELT, PRILLAMAN & ADAMI

1 N. Old Capitol Plaza, Suite 325

Springfield, IL 62701

Tel: (217) 528-2517

Fax: (217) 528-2553

C:\Mapa\Prime Location Prop\Reply Brief.wpd/crk 7/13/09 1:54 pm

Electronic Filing - Received, Clerk's Office, July 13, 2009