BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DICKERSON PETROLEUM, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 09-87
PCB 10-05
(UST Appeal)
(Consolidated)
NOTICE OF FILING
TO:
Mr. John T. Therriault
Assistant Clerk
Illinois
Pollution Control Board
James
R. Thompson Center
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
(VIA ELECTRONIC MAIL)
Carol Webb, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield, Illinois 62794-9274
(VIA
U.S.
MAIL)
PLEASE TAKE NOTICE that I have today filed with the
the Clerk of
the Illinois Pollution Control Board a
REPLY TO THE ILLINOIS EPA'S
RESPONSE TO PETITIONER'S POST-HEARING BRIKF
directed to the Illinois
Pollution Control Board, copies
of which is herewith
upon you.
Dated: December
9,2009
Edward W. Dwyer
Monica
T. Rios
HODGE
DWYER & DRIVER
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
Respectfully submitted,
DICKERSON PETROLEUM, INC.,
Petitioner,
One
of Its Attorneys
THIS FILING SUBMITTED ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, December 9, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DICKERSON PETROLEUM, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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)
)
)
)
)
)
)
)
)
PCB 09-87
PCB 10-5
(UST Appeal)
(Consolidated)
REPLY TO THE ILLINOIS EPA'S
RESPONSE TO PETITIONER'S POST-HEARING BRIEF
NOW COMES Petitioner, DICKERSON PETROLEUM, INC. ("Petitioner") by
and through its attomeys, HODGE DWYER
&
DRIVER, and pursuant to the Hearing
Officer Order, dated December
2009, submits its Reply to the Illinois
EPA's Response
to Petitioner's Post-Hearing
Brief ("Reply"), and hereby states as follows:
I.
BACKGROUND
On October
2009, Petitioner filed a Post-Hearing
Brief ("Brief') describing in
detail the reasons why the Illinois Environmental Protection
March 9, 2009 and June
10,2009 final decision letters ("Letters") were erroneous, and
further describing why the
Agency's basis for the exclusion of the incident from leaking
underground storage tank ("LUST")
regulation-namely that the Petitioner did not
confirm the release
by providing laboratory analysis showing contamination above Tier I
remediation objectives
("ROs")-was arbitrary, capricious, and without statutory or
regulatory authority. On
November 23,2009, the Agency filed its Response to
Petitioner's Post-Hearing
Brief ("Response"). On December 2,2009, the Hearing Officer
Electronic Filing - Received, Clerk's Office, December 9, 2009
granted Petitioner's request to file a Reply to the Agency's Response and also provided
for the Agency to file a Surreply,
In reviewing the Response, it is clear that the Agency has resolved to maintain its
position that there are release confirmation requirements that do not exist
in the Office of
the State Fire Marshal ("OSFM") or Illinois Pollution Control Board ("Board")
regulations, The Agency makes no meaningful effort to controvert the arguments
advanced
at hearing by the Petitioner and articulated in Petitioner's Brief. To the extent
that the Agency advances any credible argument in its Response, it continues to be
premised upon an unpromulgated rule that requires actions and information that has no
regulatory basis,
II.
THE
AGENCY
IS INCONSISTENT REGARDING THE LETTERS' LACK
OF BASIS FOR EXCLUSION
OF THE INCIDENT FROM THE LUST
PROGRAM.
described in Petitioner's Brief, the Agency failed to comply with 35 III.
Admin. Code §
734.S05(b)(
1) - (3) when it issued the Letters, which lacked the required
explanation for why the Petitioner's submittals were being rejected and why the
was
being deemed a non-LUST incident.
Brief at 7-9. In fact, Mr. Gaydosh, who testified on
behalf of the Agency at hearing, could not provide any reason why the March 9, 2009
letter did not include an explanation for the rejection
of the 45-Day Report or the
determination that the site was deemed a non-LUST incident Hearing Transcript,
Dickerson Petroleum, Inc. v Illinois EPA,
PCB Nos. 09-87, 10-05 (consolidated) at 142-
143 (I1LPol.ControLBd. Sept. 25, 2(09) (hereafter cited as "Tr."); Brief at 8.
2
Electronic Filing - Received, Clerk's Office, December 9, 2009
The Agency in its Response attempts to explain its failure to include the required
information
in the Letters by stating:
If a factual situation or site is not covered within the parameters of a
statutory scheme such as the Illinois EPA [LUST] Program, it is difficult
to cite specific provisions from the statutory scheme since the matter in
question is an anomaly.
Response at 5-6. The notion that it is difficult for the Agency to provide a basis
for its
decision is curious since the Agency's own Response states that "Illinois EPA Project
Manager Jay Gaydosh was looking for evidence that the level
of contamination at the site
required cOlTective action to be performed."
!d.
at 5. The Response further references
that the information Petitioner provided
to the Agency "cannot provide specific levels of
specific contaminants.
Jd.
Not only do such statements demonstrate that the Agency
could have provided
an explanation for denial in its Letters since the Agency was clearly,
by
own statements, looking
infom1ation showing
contamination,
but such statements also appear to be tacit admissions that the Agency requires owners or
operators
to show that a certain threshold of contamination
at the site
in order to
confinn a release.-a requirement that has no statutory or regulatory basis. Thus, the
Agency's inconsistent statements regarding the difficulty of citing to a specific provision
because the
is an
"anomaly" and its review for specific levels
of contamination,
demonstrates the
Agency's inability to find a statutory or regulatory basis for its
requirement that laboratory analysis showing contaminants above Tier I ROs is necessary
to confirm a release, which is understandable since no such basis exists.
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Electronic Filing - Received, Clerk's Office, December 9, 2009
III.
THE AGENCY FAILS TO PROVIDE ANY CITATION TO SUPPORT ITS
POSITION THAT LABORATORY ANALYSIS SHOWING
EXCEEDANCES OF TIER I ROs IS NECESSARY TO CONFIRM A
RELEASE.
The Agency's entire Response only includes a single citation to the relevant rule,
35
IlL Admin. Code Part 734, and the Agency only specifically references Section
734.210(h), the requirements for early action
closure
sampling. Response at 5. Section
734.21
O(h)( 1) and (2) specify the closure sampling locations for USTs that are removed
or abandoned
in place. 35 Ill. Admin. Code § 734.210(h)(I)-(2). Section 734.210 also
provides the requirements for submitting a
closure
report if sampling results show that
the appropriate ROs have been met. 35
Ill. Admin. Code § 734.21O(h)(3). It is clear that
the portion
of the mle cited by the Agency, Section 734.21 O(h), deals with the
requirements for meeting
closure
requirements,
not
with release confimlation.
It
is noteworthy that the
only
to
to Section
lOCh) in its
Response. The Petitioner's
Brief repeatedly states that the Agency has no support for its
policy that laboratory analysis showing contaminant exceedances above Tier I ROs
is
needed to confirm a release. The Agency does not provide in its Response a single
statutory or regulatory citation to controvert the Petitioner's statements. The Agency's
glaring failure to provide any legal basis for its unpromulgated policy is evidence
in itself
of the lack of basis for deeming this incident a non-LUST incident for failing to confirm a
release
by submitting laboratory analysis showing exceedances above Tier I ROs.
IV.
THE AGENCY DOES NOT DENY THE USE OF A TWO-STEP
CONFIRMA TION POLICY.
The Agency in its Response also fails to deny that it utilizes a two-step
confirmation policy as testified to by Mr. Jay Gaydosh at hearing, and the Agency
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Electronic Filing - Received, Clerk's Office, December 9, 2009
provides no further explanation ofMr. Gaydosh's testimony on his use of the two-step
policy. As described
in Petitioner's Brief, Mr. Gaydosh, who has worked in the LUST
Program for
16 years, testified that if the OSFM Storage Tank Safety Specialist ("STSS")
determines that there
is no release, "we normally look for laboratory analysis to confirm
the presence of contaminants above tier I objectives." Tr. at 130; Briefat 13. In
addition, as noted in Petitioner's Brief, Mr. Harry Chappel, a regional subunit manager
for the LUST Program, stated to Mr. Herlacher that the Agency's policy requires
laboratory analysis showing contamination above Tier I ROs to confinn a release. Brief
at
13. Mr. Chappel also informed Mr. Herlacher that the requirement is not in Part 734.
ld.
The Agency failed to address in its Response the statements made by Mr. Gaydosh at
hearing or Mr. Herlacher's testimony regarding his conversation with Mr. Chappel. Such
testimony, which remains uncontroverted by the Agency, clearly demonstrates that the
Agency utilizes a release confirmation policy that
is not in Part 734.
v.
THE AGENCY'S POLICY VIOLATES THE APA'S RULEMAKING
REQUIREMENTS.
As noted above, the Agency's Response contains no explanation for its poiicy that
laboratory analysis showing contamination above Tier
J ROs is required in order to
confinn a release. Mr. Gaydosh, at hearing, was unable to provide a citation to the
regulations where such a requirement
is articulated, and Mr. Chappel stated to Mr.
Herlacher that the Agency's policy
is not in Part 734. Brief at 13. The Agency's policy
is not codified in either the Board or OSFM regulations; however, it was applied as a rule
in violation
of the Administrative Procedure Act's ("APA") rulemaking requirements.
Petitioner raised a related concern in its April 3, 2009 letter to Mr. Gaydosh,
where Petitioner stated that
if the Agency requires laboratory analysis to confirm a
5
Electronic Filing - Received, Clerk's Office, December 9, 2009
release, "it needs to communicate that to the regulated community. Moreover, a
rulemaking proceeding before the Board would be appropriate to amend Part 734 to
expressly require laboratory analysis to confinn a LUST release." R. at 97-103.
Petitioner's April 3, 2009 letter further requested a written response from the Agency
regarding whether the LUST Program requires laboratory analysis to confirm a release,
and it also stated that Petitioner was willing to consider an extension
of the appeal
deadline in order
to further discuss its concerns with the Agency and determine whether
an appeal was necessary. A written response to the April 3, 2009 letter, which was also
sent
to Mr. Hernando Albarracin, Manager of the LUST Section, and Mr. William
Ingersoll, Deputy Chief Legal Counsel, was requested from the Agency. Though a
written
was requested,
no response, written or otherwise, was
a
result, Petitioner was forced to incur significant costs to appeal the application of an
unpromulgated rule and to determine the basis for the rejection of Petitioner's submittals.
VI.
THE AGENCY MISCONSTRLJES PETITIONER'S TESTIMONY
REGARDING
PID
MEASLJREMENTS.
In regards to photoionization detector ("PID") measurements, the Agency states
that Mr. James Foley, who testified on behalf
of the Petitioner at hearing, "acknowledged
that PID readings were not acceptable
to the department for reaching conclusions."
Response at
5. The Agency has taken Mr. Foley's statements out of context and
excluded important details from the portion of the testimony from which the Agency's
characterization stems.
At hearing, Mr. Foley stated in response to a question regarding
why PID measurements were not in the 45-Day Report
or Addendum:
They're not required and they're not acceptable
by the department for
reaching any conclusions, at least for the purpose of closure. The-.--Y ou
know, I was mainly using it as a tool to detennine where we were in tenns
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Electronic Filing - Received, Clerk's Office, December 9, 2009
of getting to the point of conditions that appeared to be, quote, unquote,
clean.
Tr. at 110. (Emphasis added.) Mr. Foley was explaining that
PID measurements are not
acceptable for purposes
of
closure.
In terms of closure, he only used the PID
measurements to aid in detemlining when the level
of contaminants in the excavated area
was close to "clean." In order to close the site, Petitioner took closure samples in
accordance with Section 734.21
O(h), and submitted the results to the Agency as shown in
the Table 1
of the Addendum. R. at 51. Mr. Foley also testified that he was unaware of
any requirement that PID measurements be included in reports submitted to the Agency.
Tr. at 110.
VII.
THE
AGI~NCY'S
CONCERN REGARDING PRE-PLANNED UST
REMOVALS IS UNWARRANTED.
The
posits a scenario where
if the Board reverses the
s decision,
owners
or operators of USTs at sites with "pre-planned tank pulls" with "questionable
levels
of contamination" will
able to access
UST Fund by submitting "inadequate
information." Response at 6-7. The
concern
is unwarranted and unjustifled,
First, all UST removals are planned since a pernlit
is required from OSFM prior to
removal so, in fact, pre-planned UST removals are required by OSFM and Board
regulations. 415 ILCS 5/57.6(b);
41 Ill. Admin. Code § 170.541. In addition, the
concern with "inadequate levels"
of contamination has no basis in law, since as discussed
above and
in detail in Petitioner's Brief, there is no specific "level" of contamination
required to be present at sites
in order to con finn a release. Visual, olfactory, and PID
measurements are sufficient to provide evidence of a release in accordance with Board
and
OSFM regulations.
Ill. Admin. Code § 734.21
O(g) (stating that owners or
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Electronic Filing - Received, Clerk's Office, December 9, 2009
operators are to confirm a release in accordance with OSFM regulations); 41 Ill. Admin.
Code
§§ 170.560, 170.580;
see also
Brief at 17 (noting that the definition of "release"
does not include a requirement that it
be above Tier 1 ROs). In this case, Petitioner, at
minimum, provided the necessary information to confirm a release
in accordance with
OSFM and Board regulations, and accordingly, the incident should be subject to the
LUST Program regulations, and Petitioner should be allowed to access the UST Fund for
reimbursement
of early action costs in accordance with applicable regulations. Brief at
VIII. CONCLUSION
For the reasons discussed above and articulated in Petitioner's Brief, the Agency's
decisions
to reject Petitioner's submittals and deem the release a non-LUST incident were
arbitrary, capricious, and without statutory or regulatory authority. The Agency's
arbitrary decisions forced the Petitioner to unreasonably incur significant costs to appeal
the erroneous application
of an unpromulgated rule. Petitioner
the Board bear in
mind that Petitioner sought to avoid an appeal of the
decisions. R. at 97-103.
Petitioner's April 3, 2009 letter to the Agency sought clarification
of the Agency's basis
for the determination that the
was a non-LUST incident and requested a written
response from the Agency,
or in the alternative, an extension of the appeal deadline in
order to further discuss the issues raised in the letter.
Id.
However, the Agency provided
no response to the letter, effectively denying Petitioner's request for an extension of the
appeal deadline and forcing Petitioner to incur substantial costs to appeal the Agency's
arbitrary determinations. The Board should not condone the Agency's abuse
of its
authority and its unauthorized rulemaking.
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Electronic Filing - Received, Clerk's Office, December 9, 2009
WHEREFORE, for the above and foregoing reasons, Petitioner, DICKERSON
PETROLEUM, INC., respectfully requests that the Illinois Pollution Control Board grant
the following relief:
a.
Find that the Agency's March 9,2009 and June 10,2009 final decision
Letters are arbitrary, capricious, and without statutory
or regulatory authority;
b.
Reverse the Agency's determination that the above-referenced incident is
a non-LUST incident and find that the Petitioner's 45-Day Report and Addendum
satisfied the requirements for release confirmation
as set forth in 35 Ill. Admin. Code Part
734;
c.
Find that release confirmation in compliance with Pa11 734 requires
neither a detem1ination by the OSFM STSS nor laboratory analysis showing contaminant
exceedances above Tier I ROs;
d.
Find that the above-referenced incident is eligible to access the UST Fund
and that costs incurred during the early action period
this
are eligible
reimbursement from the UST Fund in accordance with applicable regulations;
e.
Find that the Agency's unpromulgated two-step release confinnation
policy
is application ofa rule in violation of the APA's rulemaking requirements;
f.
Award Petitioner reasonable attorney's fees and expenses incurred in
bringing this action pursuant to the APA and Section 57.8(1) of the Illinois Environmental
Protection Act; and
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Electronic Filing - Received, Clerk's Office, December 9, 2009
g.
Award such further relief as the Board deems just and equitable.
Dated: December 9, 2009
Edward W. Dwyer
Monica T. Rios
I-lODGE DWYER
&
DRIVER
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
CAHO:OO
I
IFil/Col1solidatcd/Reply Brief
Respectfully submitted,
DICKERSON PETROLEUM, INC.,
Petitioner,
By:
IslEdward W. Dwyer
One
of Its Attorneys
10
Electronic Filing - Received, Clerk's Office, December 9, 2009
CERTIFICATE OF SERVICE
I, Edward W. Dwyer, the undersigned, hereby certify that I have served the
attached REPLY TO
THE ILLINOIS EPA'S RESPONSE TO PETITIONER'S POST-
HEARING BRIEF upon:
John
T. Therriault
Assistant Clerk
of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
via electronic mail
on December 9, 2009; and upon:
James
G. Richardson
Division
of Legal Counsel
Illinois Environmental Protection Agency
102 I North Grand A venue East
Post Office
19276
Springfield, Illinois 62794-9276
by depositing said documents
in the United
Illinois on December
2009.
CAHO:OOIlFiIINOF
&
cos Reply Brief
Carol Webb, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield, Illinois 62794-9274
Mail, postage prepaid, in Springfield,
Edward W. Dwyer
Electronic Filing - Received, Clerk's Office, December 9, 2009