)
PCBNo.03-214
)
(LUST Appeal)
)
NOTICE
~ECE~VED
CLERK’S OFFICE
JU~O42~
STATE OF I
LLIf~JO~~
POIl~tjø~
Contr~
Board
DorothyM. 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
Fred C. Prillaman
Mohan, Alewelt, Prillaman & Adami
Suite 325
1 North Old Capitol Plaza
Springfield, IL
62701-1323
PLEASE
TAKE
NOTICE
that I have today
filed with
the office
of the
Clerk of the Pollution
Control Board a MOTION FOR LEAVE TO
FILE
SURREPLY and SURREPLY,
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: June 2, 2004
a
BEFORE THE
POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ILLINOIS AYERS OIL
COMPANY,
)
Petitioner,
)
V.
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
RECEIVED
CLERK’S OFFICE
BEFORE THE POLLUTION CONTROL
BOARD
OF THE STATE OF ILLINOIS
JUN
04
2004
STATE OF ILUNOIS
ILLINOIS AYERS OIL COMPANY,
)
Pollution Control
Board
Petitioner,
)
v.
)
PCB No. 03-214
ILLINOIS ENVIRONMENTAL
)
(LUST Appeal)
PROTECTION AGENCY,
)
-
Respondent.
)
MOTION FOR LEAVE TO FILE SURREPLY
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
101.500(e), hereby submits this motion for leave to
file a surreply to
the reply filed by the Petitioner.
In support of this motion
for leave to file a
surreply, the Illinois EPA states as follows:
1.
On or
about June
1,
2004,
the Petitioner,
Illinois
Ayers
Oil
Company,
filed its
motion
for leave to
file reply (“motion for leave”) and the accompanying reply (“reply”)
to the
Illinois EPA’s
response to
the Petitioner’s
request for payment of attorneys’
fees.
The Illinois
EPA received notice ofthe motion for leave and the reply on June 1, 2004.
2.
The Petitioner’s reply contains three specific contentions or misstatements that are
material
errors
raised for the
first
time.
Those
errors addressed
in.this
surreply
are:
1)
The
allegation
that the Illinois EPA misinterpreted
or misapplied the language of Section
57.8(1)
of
the Environmental Protection Act (“Act”) (415 ILCS
5/57.8(1))
(Petitioner’s reply,
p.
3); 2) The
allegation
that the case ofTed Harrison Oil Company v.
Illinois
EPA, PCB 99-127, provides no
guidance in the present appeal (Petitioner’s reply, p. 8, footnote 2);
and 3) The allegation that the
only means for the Illinois EPA to reject excessive soil borings
is in conjunction with a request
for payment from the Underground Storage Tank Fund (“UST Fund”) (Petitioner’s reply,
p.. 9).
1
3.
The Illinois
EPA recognizes that the Board’s procedural rules do not allow for th
filing of a reply or surreply as a matter of
right.
Rather, pursuant to
Section
101.500(e)
of the
Board’s rules
(35
Ill.
Adm.
Code
101.500(e)),
a party seeking to
file such a pleading must
seek
and be granted leave from the Board to do so to prevent material prejudice.
4.
In the
case of CDT
Landfill Corporation v.
City of Joliet,
PCB 98-60 (March
5,
1998), the Board
articulated guidelines for acceptance of a surreply.
The Board
stated that
the
motion
for leave to file the surreply
asserted that the surreply was necessary to correct material
errors
and misstatements
in the reply.
The Board granted the surreply to
a limited
extent,
and
noted that the denied portions of the surreply were not
limited to
correcting misstatements
and
material
errors.
Instead,
the
denied portions
made
additional
arguments not
necessitated by
information or legal theories raised for the first time in the replybrief.
CDT, p.
3.
5.
Thus,
the
Board
held
that
a
surreply
should
correct
material
errors
and
misstatements raised for the first time in
a reply.
As
identified in paragraph
2
above, the three
errors identified in the Petitioner’s replymeet that criteria.
2
WHEREFORE,
for
the
reasons
stated
above,
the
Illinois
EPA
hereby
respectfully
requests that this motion for leave to file a surreply be allowed.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
John
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: June 2, 2004
This filing submitted on recycled paper.
a.
3
RECEIVED
BEFORE THE POLLUTION CONTROL BOARD
CLERK’S OFFICE
OF THE STATE OF ILLINOIS
JUN
0
4-2004
ILLINOIS AYERS
OIL COMPANY,
)
STATE OF ILUNOIS
Petitioner,
)
Pollution Control Board
v.
)
PCBNo.03-214
ILLiNOIS ENVIRONMENTAL
)
(LUST Appeal)
PROTECTION AGENCY,
)
Respondent.
)
SURREPLY
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
101.500(e), hereby submits this surreply to the reply
filed by the Petitioner.
In support ofthis surreply, the Illinois EPA states as follows:
I.
INTRODUCTION
-
On or about June
1, 2004, the Petitioner, Illinois Ayers Oil Company, filed its motion for
leave
to
file reply (“motion
for leave”)
and
the
accompanying reply (“reply”)
to
the
Illinois
EPA’s
response to
the
Petitioner’s
request for payment
of attorneys’
fees.
The Illinois
EPA
received notice ofthe motion for leave and the reply on June
1, 2004.
The
Petitioner’s
reply
contains
three
specific
contentions
or
misstatements
that
are
material
errors raised
for the
first time.
Those
errors
addressed
in. this
surreply
are:
1)
The
allegation that the Illinois EPA misinterpreted or misapplied the language of Section
57.8(1.)
of
the Environmental Protection Act (“Act”) (415 ILCS
5/57.8(1))
(Petitioner’s reply, p.
3); 2) The
allegation that the case of Ted Harrison Oil Company v.
Illinois EPA, PCB 99-127, provides no
guidance in the present appeal (Petitioner’s reply,
p. 8, footnote 2);
and 3) The allegation that the
only means for the Illinois
EPA to
reject excessive soil borings is
in conjunction with a request
forpayment from the Underground Storage Tank Fund (“liST Fund”) (Petitioner’s reply, p. 9).
1
II.
THE ILLINOIS EPA CORRECTLY APPLIED TERMS IN
SECTION 57.8(1)
The Petitioner argues in its replythat the Illinois EPA misapplied terms in Section 5~.8(l)
ofthe Act, by making reference to the Petitioner’s claim as one for “legal costs” instead of “legal
fees.”
Petitioner’s
reply, pp.
2-3.
The Illinois
EPA’s references
and
arguments in
its response
conform
exactly to
the
Petitioner’s
initial
request
for payment
of legal
fees,
as
well
as
the
language
employed in
Section
57.8(1)
of the Act.
While
the Petitioner is correct
that specific
words used in a statute should be noted and given full effect, here the Illinois EPA has employed
the terminology exactly as used in the statute.
Section
57.8(1)
of the Act provides in part that legal defense costs
include legal costs for
seeking payment under this title.
The Illinois EPA’s reference to “legal costs” is consistent with
the statutory
language that
states that the
expenses
in question relate to
legal
costs
for seeking
payment under Title XVI.
Approval by the Board of “legal fees” would thus allow for payment
of the “legal
costs” referenced earlier.
The illinois EPA’s use ofthe terminology, to the extent it
has any relevance at all, is not inconsistent with Section 57.8(1).
Ifthe Board were to accept the
Petitioner’s
unfounded
allegations,
it
would
create
undue
prejudice
by
stripping
away
key
substantive parts ofthe Illinois EPA’s arguments.
III.
THE TED
HARRISON
CASE
IS
APPLICABLE
Another misstatement made for the first
time by
the Petitioner is that the Ted Harrison
case does not provide any
guidance
as to
what constitutes
the legal
costs
of seeking payment.
Petitioner’s reply, p.
8, fn. 2.
This is interesting, since earlier the Petitioner cites favorably to the
Ted Harrison case.
Petitioner’s reply, pp. 2-3.
In the Board’s July
24,
2003
opinion in
Ted Harrison, it was noted that
the case was
governed by (now repealed) Section 22.18b ofthe Act (415 ILCS
5/22.18b).
Ted Harrison (July
2
24,
2003), pp.
4-6.
However, on October 16,
2003,
the Board issued
another order in that case
granting attorneys’ fees.
There, the Board cited only to
Section 57.8(1) ofthe Act (and noother
statutory provision)
as the authority to
grant payment of such
fees.
While
the Board does not
address why it applied
Section
57.8(1),
the fact remains that the Ted Harrison case
is
the only
case issued by the Board thus far relying on Section 57.8(1) to
award attorneys’ fees.
The case is
therefore relevant and to ignore the holding would be prejudicial to
the Illinois EPA.
Also,
it
should
be
noted
that
throughout
the
Board’s
October
16,
2003
order
in
~
Harrison,
the
Board made repeated references
to
“legal
defense
costs”
and
specifically
in
its
order
stated that
$19,421.75
in
attorney
fees
were
to
be paid
for legal
defense
costs.
This
reference by the Board reinforces the propriety ofthe Illinois EPA’s use of the term “legal costs”
in its response, or at the very least nullifies the Petitioner’s argument that only “legal fees” are at
issue.
The Illinois EPA’s citation to the Ted Harrison case is clearly proper.
IV.
TECHNICAL DECISIONS
TO
PLANS ARE NOT RELIANT ON
COST
ISSUES
Finally,
the Petitioner for the first time makes the unfounded
and patently false assertion
that had it submitted
a corrective action plan with
an
admittedly excessive number of proposed
borings,
but not sought
payment from the UST Fund,
the Illinois EPA would not have rejected
the number ofborings as excessive, nor could it have, since it is only the costs that those borings
represent
that
would
be
objectionable
under
Section
57.7(c)(4)(C)
of the
Act
(415
.IL.CS
5/57.7(c)(4)(C)).
The Petitioner admits that a proper number of borings
is a technical issue, but
claims that the issue can only arise when the owner or operator is seekingpayment from tl~e
UST
Fund for the borings.
Petitioner’s reply, p.
9.
.
This
is an unsupported
and extremely misleading statement, as it attempts to portray the
Illinois
EPA’s
decision
here
to
reduce
the
number of soil
borings
as
one
purely
driven
by
3
reimbursement concerns.
Rather,
as the
Illinois
EPA’s
final
decision
clearly stated,
Section
57.7(c)(1) ofthe Act (415 ILCS
5/57.7(c)(1))
and Section 732.404 of the Board’s regulations (35
Ill. Adm.
Code 732.404) provide the technical requirements needed for an acceptable corrective
action plan.
There
is no requirement upon any owner or operator to seek reimbursement ofcosts
from the UST Fund,
and therefore
there
is
no
requirement that
an owner or operator submit a
budget in
tandem
with
a
corrective
action
plan.
If the owner
or operator
does wish
to
seek
reimbursement, then a budget must
be
submitted and
approved.
But
even if only a
corrective
action plan
is
submitted,
the
Illinois
EPA has
the
ability pursuant
to
Section
57.7(c)(1)
and
Section 732.404 to issue a decision that modifies or rejects part or all of a proposed plan if they
do not meet all requirements or guidelines imposed by the Act and Board regulations.
WHEREFORE,
for the reasons stated
above, if the Board grants
the Petitioner leave
to
file a reply, the Illinois EPA hereby respectfully requests that this surreply
also
be
allowed and
accordingly
that
the
Board
deny
the
Petitioner’s
motion
seeking
approval
of
payment
of
attorneys’ fees andlor costs.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTIONAGENCY,
John(J. 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: June 2, 2004
This filing
submitted on recycled paper.
4
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on June 2,
2004, I served frue and
correct copies of a MOTION FOR
LEAVE TO FILE
SURREPLY and SURREPLY, 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 namedpersons:
DorothyM. Gunn, Clerk
Fred C. Prillaman
Illinois Pollution Control Board
Mohan, Alewelt, Prillaman & Adami
James R. Thompson Center
Suite 325
100 West Randolph Street
1 North Old Capitol Plaza
Suite 11-500
Springfield, IL
62701-1323
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,
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)
