R~~~IVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CL~RK~
OFI~T(~E
PEOPLE OF THE STATE OF ILLINOIS,
)
Mi~Y
0
5
2003
STATE OF IWNOIS
Complainant,
)
Pollution
Control
Board
)
V.
STATE OIL COMPANY, an Illinois
corporation
)
WILLIAM ANEST, an individual f/d/b/a
)
PCB 97-103
S&S Petroleum Products,
)
(Water and Land
PETER ANEST, an individual f/d/b/a
)
Enforcement)
S&S Petroleum Products,
)
CHARLES ABRAHAM, an individual
)
JOSEPHINE ABRAHAM, an individual and
)
MILLSTREAM SERVICE, INC., an Illinois
)
corporation,
)
Respondents.
RESPONDENTS / WILLIAM ANEST,
PETER ANEST, and STATE OIL COMPANY
RESPONSE IN OPPOSITION TO COMPLAINANT’S
MOTION TO MODIFY THE BOARD’S MARCH 20, 2003 ORDER
Pursuant
to
35
Illinois
Administrative
Code
§101.520,
Respondents,
William
Anest, Peter Anest, and State Oil Company (“Anest Respondents”) submit this response
in opposition to Complainant’s
Motion
to Modify the Board’s Order of March 20, 2003
(“Complainant’s
Motion”
or the “Motion”).
In that Motion, the Complainant
asks the
Board
to
“modify”
its
March
20,
2003
Order
(the
“Order”)
to
require
that
the
Respondents remediate the Site and
obtain a No Further Remediation Letter within 270
days
of
the date
of
the
Order.
Complainant’s
Motion
~iould
be
denied
for
several
independent reasons:
1.
The March 20,
2003
Order correctly notes
that, during the hearing of this
rna~ter, the
Complainant
failed
to
present
any
evidence
concerning
the
current
environmental
conditions
at the Site.
Order, p.
20.
In fact, as the Board further noted,
the Illinois
Environmental
Protection
Agency has not even been at the Site since
1996.
Id.
Given
that
there is absolutely
no
evidence concerning the current conditions at the
Site
—
or what work and time would be required
(if any)
to remediate the Site
—
it is not
possible for the Board to rationally determine what would be a “reasonable time frame”
within which the Respondents should
be able to obtain a No Further Action Letter for
the Site.
Board
decisions
must be based
upon
evidence,
not speculation or argument by
counsel.
There is
no
evidence
in
the record
of
this
case
which
could
even
arguably
support
an order requiring the Respondents to obtain a No Further Remediation Letter
within
a specific period
of time.
Consequently,
if the Board were to modify its Order to
require the Respondents
to obtain
a No Further Remediation Letter within 270
days, the
modified
Order
would
have
no
factual
basis
and
thus
be
arbitrary,
capricious,
and
improper.1
1
Complainant’s failure
to offer evidence concerning
the conditions
at the Site is perhaps
understandable, given that Complainant never asked the Board to order remediation of the Site.
See
Complainant’s
Post-Hearing
Brief,
filed
12/6/2002,
pp.
13-14;
Order,
p.
20.
The
Complainant asked
only for an
“investigation” of the
Site, and
that
request first appeared
in
Complainant’s reply brief.
Order, p.
20.
2
This concern is particularly applicable here, given the history of this Site.
As the
Board
is
aware
from
the
hearing in
this
case,
the IEPA
did
not
do
any
exploration,
evaluation
or engineering
before proceeding with their
activities at
the Site.
The only
investigatory
work
completed
on
the
Site
to
date
was
completed
by
the
Abraham
Respondents
some
years
ago.
A
current
investigation
of
Site
conditions
must
be
undertaken before any remedial planning is even possible.
The Complainant’s
Motion should
therefore be denied because it requests
relief
that the Board legally cannot, on the record, grant.
2.
The
270-day
limit
requested
by
Complainant
in
its
Motion
is
also
arbitrarily short.
The records of the IEPA demonstrate that many underground
storage
tank sites
remain
open
for far
more
than
270
days.
See,
e.g.,
Attachment
1
(selected
JEPA Underground Tank Program Sites).
Although (as noted above) there is no basis in
the record to compare
the sites listed on Attachment 1 with the Site at issue in this case,
it
is
clear
from
Attachment
1
that
many
underground
storage
tank
sites
in
Illinois
remain open for years.
Complainant’s
Motion
should
therefore be denied because it
asks the Board
to
impose
a
deadline
that
is,
based
upon
IEPA’s
own
records,
arbitrarily
short
and
unrealistic.
3
3.
Complainant’s Motion also seeks to impose a 270-day deadline to secure
a
N~Further Remediation Letter even though the Board was fully aware of the possibility
of imposing a deadline, but decided not
to impose any deadline in its Order.
In Board
Member Marovitz’s Dissenting
Opinion,
he expressed
his
view
that
the Board
should
have set
a
specific. deadline for completion
of work at the Site.
The Board as a whole
declined
to adopt
such
a position.
In the
absence of any
new evidence, it would
be
inconsistent for the Board
to now reverse itself.
Complainant’s Motion should therefore
be denied because
it asks
the Board
to reverse
a considered
decision without
offering
any reason for the Board
to do so.
4.
Complainant’s
Motion also
overlooks
the fact that
much of the timing of
the completion
of remedial
work at the Site is in the control of IEPA.
It
is JEPA who
must
approve
investigatory
plans,
review results,
and
approve remedial engineering
proposals.
It
is
also an
JEPA
decision
as to
when and
if
a
No Further
Remediation
Letter
will
be
issued
for
the
Site.
There
are no
deadlines
in
the
underground
tank
program requiring the IEPA to complete reviews
and make decisions within a specific
time
frame.
The
fact that
JEPA
is
in control
of timing here
is
particularly significant
given
the fact that
it took
the Agency over
five years
to
make a
LUST Fund
eligibility
determination
in
this
matter,
even though
the
Abrahams
were
ready
and
willing
to
undertake
the remediation.
See
Order, p.
18
(“The Board does not fault the Abrahams
for failing
to remediate the Site between
1992 and
1997 while their LUST application
4
stagnated
with
the
Agency.”)
Complainant’s
Motion
should
therefore
be
denied
because
it
would
impose
a
deadline
on
the
Respondents
alone,
even
though
Respondents’ ability to meet that deadline is largely in the hands of the IEPA.
5.
Complainant
also asserts that an amendment of the March 20,
2003 Order
is needed
to terminate
the litigation.
That is untrue; even Complainant
acknowledges
that if the 270-day deadline is
insufficient, the Respondents would
have to return to the
Board
and
seek
additional
time.
Such
an
approach
is,
practically,
no
different
than
what exists under the March 20, 2003 Order as it now reads.
If the Respondents are not
proceeding
diligently,
Complainant
may
return
to
the
Board
to
enforce
its
existing
Order.
WHEREFORE
the
Anest
Respondents
hereby
ask
the
Board
to
deny
Complainant’s Motion.
DATE:
2 May, 2003
~
A~t~neys
for Respondents W
l~m Anest, Peter
Anest, and State Oil Company
John Baumgartner
Churchill, Baumgartner
& Quinn
P.O. Box 284
Grayslake, IL 60030
(847) 223-1500
G:\Anest\EPA
(Abrahams)\objection.doc
5
IEMA Number
20000035
20000063
20000075
2000108
20000500
20000804
20001016
20011907
20020557
880071
City/Town
Hillside
Glen Ellyn
Lansing
West Frankfurt
Waukegan
Charleston
Belleville
O~Fallon
Calumet city
West
Frankfurt
IEPA UNDERGROUND STORAGE TANK PROGRAM
IEMA
Status
Time Open
Release
Report Date
1/7/2000
Still open as of 1/30/03
1118 days from
last entry in IEPA
database:
1202 days as of 4/24/03
1/12/2000
Still open as of 3/20/03
1163 days
as of last entry in
IEPA
database: 1197 days
as of 4/24/03
1/13/2000
NFR
3/12/02
789 days for an NFR to issue
1/19/2000
NFR 1/4/02
715 days for NFR to
issue
3/22/2000
Still open as of 3/20/03
1093 days from
last entry in
IEPA
database:
1127 days as of 4/24/03
5/2/2000
Still open as of 4/1/03
1066 days from
last entry in IEPA
database:
1088 days as of 4/24/03
5/31/2000
Still open as
of 4/10/03
1044
days as of last entry in
IEPA
database:
1058 days as of 4/24/03
11/16/2001
Still open as of 2/14/02
88
days as of last entry in IEPA
database:
522 days as of 4/24/03
4/23/2002
Still open as of 12/27/02
243 days
as of last entry in
IEPA
database: 387 days as of 4/24/03
Not noted
Still open- 45 Day Report
submitted 7/30/92
Comments
Matter remains
open
-
no
No
Further Remediation Letter has
been issued to date
Extension was
requested as of
3/20/03
45 Day Report Addendum
received on 2/14/02
No project manager assigned-
last action was 8/9/93 review
letter
ATTACHMENT
1
Data as of April, 2003
Source of Information: JEPA Web Site
7
Miscellaneous correspondence
noted on 4/3/03
Miscellaneous correspondence
noted on 10/1/02
Corrective Action Completion
Report submitted 1/3/00:
miscellaneous correspondence
12/10/02
Free Product Removal Report
3/31/03: approval of plan
4/15/03
ATTACHMENT
1
Data as of April, 2003
Source of Information: IEPA Web Site
Review letter sent
11/8/01
IEPA UNDERGROUND STORAGE TANK PROGRAM
913428
Roselle
1/25/1 991
Still open
3928 days as of last entry
in IEPA
database: 4499 days as of 4/24/03
20000104
Chicago
1/1 9/2000
Still open
1190 days of as 4/24/03
20000222
Pesotum
2/9/2000
Still open
140 days as of last entry in IEPA
database:
1108 days as of 4/24/03
20000409
Burbank
3/9/2000
Still open
1140 days as of 4/24/03
200001390
McLeansboro
7/24/2000
Still open
1000 days as of 4/24/03
20000272
Chicago
2/17/2000
Still open
57
days as of last entry in IEPA
database: 1162 days as of 4/24/03
20000482
Peoria
3/20/2000
Still open
192 days as of last entry in
IEPA
database:
1129 days as of 4/24/03
200001545
Belleville
~
8/14/2000
Still open
959 days as of last entry in IEPA
database:
980 days as of 4/24/03
20001592
Park Ridge
8/21/2000
Still
open
770 days as of
last entry in
IEPA
database: 973 days
as of 4/24/03
860311
Des Plaines
3/11/1986
Still open
6248 days thus far as of 4/24/03
Review letter sent 6/29/00
No project manager assigned
No project manager assigned
4/14/00 45 Day Report
Selection Letter sent
Review letter sent 10/2/00
86041 8B
Glenview
4/18/1986
Still
open
6211
days thus far as of 4/24/03
8
JEPA UNDERGROUND STORAGE TANK PROGRAM
10/1/1992
Still open
4033 days thus far as of 4/24/03
7/30/1 993
NFR 12/13/01
3053 days to issuance of NFR
10/23/2001
NFR 8/22/02
299 days to issuance of NFR
2/8/1990
Still open
4821 days thus far as of 4/24/03
8/13/1990
NFR 5/19/95
1736 days
to issuance of NFR
8/1 3/1 990
NFR 1/3/01
3288 days to issuance of NFR
ATTACHMENT 1
Data as of April, 2003
9
Source of Information: JEPA Web Site
922768
932045
20011779
900378
902304
902305
Des Plaines
Urbana
Chicago
Wheeling
Mt. Prospect
Chicago
Miscellaneous correspondence
12/10/02
~
Groundwater Monitoring Report
1/4/00