BEFORE THE
POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ILLINOIS AYERS
OIL COMPANY,
Petitioner,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
)
)
NOTICE
PCB No.
03-2 14
(LUST Appeal)
V.
RECE~VED
CLERKS OFHCE
MAR
102004
STATE OF ILL~NO~S
Poflution Contro’ 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 RESPONSE TO PETITIONER’S BRIEF, copies of which are herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
John
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:
March 8, 2004
I.
BURDEN OF PROOF
Pursuant
to
Section
105.112(a)
of the
Board’s
procedural
rules
(35
Iii.
Adm.
Code
105.112(a)), the burden ofproofshall be on the petitioner.
Inreimbursement appeals, the burden
is
on the applicant for reimbursement to
demonstrate that incurred costs
are related to
corrective
action, properly accounted for, and reasonable.
Rezmar Corporation v.
Illinois EPA, PCB 02-9 1
(April
17,
2003),
p.
9.
Similarly,
in
the
present
case
the
owner
or
operator
of a
leaking
underground storage tank must prepare and submit a corrective action plan designed to mitigate
any
threat
to
human health,
human safety or the environment
resulting
from
the underground
storage tank
release.
415
ILCS
5/57.7(b)(2).
Further,
the
owner
or operator must
submit a
corrective
action plan budget
which
includes,
but
is
not
limited
to,
an
accounting
of all
costs
associated with
the
implementation
and
completion
of the
corrective
action
plan.
415
IILCS
5/57.7(b)(3).
The primary focus must remain
on the adequacy ofthe permit
application and the
information submitted by the applicant to the Illinois EPA.
John Sexton Contractors Company v.
RECiE~VE~
CLERK’S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
WP
10200
OF THE
STATE OF ILLINOIS
STATE OF ILLINQ~S~
ILLINOIS AYERS OIL COMPANY,
)
PoHution
Control
Board
Petitioner,
)
v.
)
PCBNo.03-214
ILLINOIS ENVIRONMENTAL
)
(LUST Appeal)
PROTECTION AGENCY,
)
Respondent.
)
RESPONSE
TO PETITIONER’S
BRIEF
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
hereby
submits
its
Response
to
the
Petitioner’s
Brief
to
the
Illinois
Pollution
Control Board (“Board”).
1
Illinois
EPA,
PCB
88-139
(February
23,
1989),
p.
5.
Further,
the
ultimate
burden
of proof
remains
on
the
party
initiating
an
appeal
of
an
Illinois
EPA
final
decision.
John
Sexton
Contractors Company v.
Illinois
Pollution
Control Board,
201
Ill.
App.
3d
415,
425-426,
558
N.E.2d 1222,
1229
(1st Dist
1990).
Thus
Illinois
Ayers
Oil
Company
(“Ayers”)
must
demonstrate to
the Board
that
it has
satisfied its burden before the Board can enter an order reversing or modifying the illinois EPA’s
decisionunder review.
II.
STANDARD
OF REVIEW
Section 57.8(i) of the Environmental
Protection Act (“Act”) grants an individual the right
to
appeal a determination of the Illinois EPA to
the Board pursuant to Section 40 of the Act (415
ILCS
5/57.8(i)).
Section 40 ofthe Act
(415 ILCS
5/40)
is
the general appeal section for permits
and has been used by the legislature as the
basis for this type of appeal to the Board. Therefore,
when reviewing an
Illinois EPA decision on a
submitted corrective action plan and budget, the
Board
must decide
whether or not the proposals,
as submitted to
the illinois EPA, demonstrate
compliance with the Act and Board regulations.
Broderick Teaming Company
v.
Illinois
EPA,
PCB 00-187 (December 7, 2000).
The
Board
will not
consider new information not
before the
Illinois
EPA
prior
to
its
determination on appeal.
The Illinois EPA’s final decision frames the issues on appeal.
Todd’s
Service Station v. Illinois
EPA, PCB 03-2 (January 22, 2004), p. 4.
In deciding
whether the Illinois EPA’s
decision under
appeal here was appropriate, the
Board must therefore look to the documents within the Administrative Record (“Record”), along
with relevant and appropriate testimony provided at the hearing held on January 7, 2004,
in this
2
matter.’
Based
on the information within the Record
and the testimony,
along with the relevant
law,
the Illinois
EPA respectfully requests
that
the
Board
enter an
order
affirming
the
Illinois
EPA’s decision.
III.
INTRODUCTION
Contrary to th& assertions ofthe Petitioner, the Illinois EPA’s
fmal decision under appeal
is
supported in both fact and law,
and the Record
and testimony elicited
at hearing demonstrate
that the decision was
correct.
The
Petitioner
argues
that the
Illinois
EPA made
three errors;
namely, that the Illinois EPA’s review resulted in
deduction ofcertain personnel and equipment
rates based
on what an internal guidance
document, that the Illinois
EPA’ s review resulted in
a
modification of the number of soil
borings
that would be
allowed,
and
that the Illinois
EPA’s
review
resulted
in
the
position
that
each
of
the
direct-push
borings
in
question
could
be
accomplished in a time less than that proposed by the Petitioner.
However, as will be
demonstrated by
citations to
the Record and
testimony,
the Illinois
EPA’s review was appropriate.
The deduction in unreasonable rates wasjustified, the number of
soil
borings
requested by
the Petitioner
was properly
modified,
and
the time
allowed for
the
direct-push borings was reasonable.
IV.
STATEMENT OF FACTS
Rather than provide
a
complete recitation
of the
facts,
the
Illinois
EPA will
refer to
relevant portions ofthe Record and hearing testimony in its arguments.
V.
REGULATORY BACKGROUND
Citations
to the
Administrative
Record will hereinafter be made as, “AR, p.
.“
References to the transcript of
the hearing will be made as,
“TR, p.
.“
Also, the
Illinois EPA notes
that
it has filed a separate Objection
and
Motion
to
Strike.
The
arguments
and
objections
made
therein
are
incorporated
here,
and
the
Illinois
EPA
specifically
objects to
(and maintains an
objection
to)
any
portions of the
Petitioner’s
Brief or Reply Brief that
contain references
to, or
arguments based upon,
the
deposition transcripts admitted
as
evidence
over the
Illinois
EPA’s
objection.
3
The
Petitioner provides
a
sufficient
overview of the regulatory background
applicable
here,
with
some
exceptions.
First,
the
Petitioner
glosses
over
the
purpose
and
scope
of
a
“completeness review” as
contemplated
by
Section 732.502
of the Board’s regulations
(35
Ill.
Adm.Code
732.502).
Seciion
732.502(a)
provides
that
the
Illinois
EPA
will
review
plans
submitted
pursuant
to
Part
732
for
completeness,
with
completeness
being
defined
as
the
submission
of
all
documentation
and
information
required
by
Illinois
EPA
forms
for
the
particular
plan.
That
subsection
further
states
that
a
completeness
review
is
not
used
to
determine the technical
sufficiency of a particular plan or ofthe information or documentation
submitted along with the plan.
The Petitioner is arguing that either the Illinois
EPA could have or should have asked for
more information to answer any questions raised by the submitted information, or that the failure
to
do
so somehow means the Illinois
EPA is
forbidden from questioning
the sufficiency of the
information or
documentation.
Clearly,
Section
732.502(a)
requires only
that
the
appropriate
Illinois
EPA
form
be
completely
filled
out;
whether the
information contained
in
the form
is
sufficient to justify the proposal or request embodied in the form is
a separate matter, as that
is
based upon
the result ofthe technical
(not
completeness) review.
As
the Board stated in West
Suburban Recycling and Energy Center, L.P. v.
Illinois EPA, PCB
95-119
and
95-125
(October
17,
1996), p.
11,
to
affirmative require that the Illinois
EPA seek from the applicant any and
all
information necessary to make an initial
application successful
would be tantamount
to shifting
the applicant’s burden to the Illinois EPA, which the Board would not do.
Also,
the
Petitioner
mischaracterizes
the
“roles”
of
the
Illinois
EPA
and
an
owner/operator of a
leaking underground storage tank when it attempts
to
compare
procedures
between a permit
appeal
and
an appeal
brought
pursuant
to
the Leaking
Underground Storage
4
Tank (“LUST”) program.
The Petitioner claims that in a permit appeal the Illinois EPA’s role is
to
advocate those controls or restrictions which best protect
the environment from pollution and
its threats.
The Petitioner argues that
it
is the role of the permit
applicant to
complain about the
cost of those
controls
or restrictions.
Then, the
Petitioner
argues
that
in
LUST
appeals,
the
Illinois
EPA “seeks
td
protect
the
LUST
Fund, while the petitioner seeks more environmental
protection.”
Petitioner’s brief, p.
8.
This is
a completely unsupported statement, and obviously
is intended to portray the Illinois EPA’s decisions issued pursuant to the LUST program as being
totally based
on
financial concerns.
Conversely, a petitioner
is
apparently obligated
to
ensure
that the environment is protected.
Though it goes without saying
that the Petitioner’s statement
is
incorrect, the Illinois
EPA instead directs the Board’s attention to
Section
57
of the Act
(415
ILCS
5/57),
which provides
that the purpose of Title XVI of the Act
is
to,
in accordance with
certain federal requirements and the
State’s interest
in the protection of Illinois’
land and water
resources, adopt procedures for the remediation of underground
storage tank
(“UST”)
sites
that
have suffered releases, establish and provide procedures for a LUST program which will oversee
any remediation
required for
LUSTs,
administer
the UST
Fund (established
to
allow persons
who qualify for
access
to
the UST Fund to
satisfy
financial responsibility requirements
under
state and
federal law),
establish requirements for eligible owner/operators to seek payment from
the
UST
Fund
for
corrective
action
costs,
and
audit
and
approve
corrective
action
efforts
performed by licensed professional engineers.
III.
THE ILLINOIS EPA’S USE OF ITS
INTERNAL
GUIDANCE WAS
PROPER
In its Brief, the Petitioner argues that the Illinois EPA’s internal guidance2 (referred to
by
the Petitioner as a rate sheet) was either an invalid de facto rule or inadmissible, and therefore the
2
As
testified
to
by
Carol
Hawbaker
and
Brian
Bauer,
the
internal
guidance
is
a
document
containing
certain
commonly-encountered personneltitles or equipment
with a corresponding rate or cost that represents the
amount up
5
internal
guidance
and
all
testimony
based
on
the
internal
guidance
should
be
stricken.
The
Illinois EPA instead argues that the use ofthe internal
guidance was
and
is appropriate, and the
Illinois EPA’s utilization ofthe guidance comported with any applicable legal guidelines.
A.
The Internal Guidance Is Not A De Facto Rule
The primary c6ntention by the Petitioner in support of its
claim that the internal guidance
is a de
facto rule is
that
it
is
a statement of general
applicability.
Petitioner’s Brief,
p.
10.
In
making this
claim, the Petitioner relies
in
large part on a holding found in
Senn
Park Nursing
Center v.
Miller,
104 Ill.2d
169, 470
N.E.2d
1029 (1984).
However, the
Senn Park case, aside
from some general language, is distinguishable and not applicable to the case at hand.
In
Senn Park,
a state agency amended
its
procedure for calculating an
inflation
factor
used when determining rates of reimbursement for nursing
home
facilities.
~.,
at 176-177,
at
1033.
There, the Illinois
Supreme Court determined that based
on the definition of a
“rule”
as
found
in
Illinois
Administrative
Procedure
Act
(“JAPA”)
(5
ILCS
100/1-70),
the
amended
procedure
was
violative of the
IAPA’s requirement regarding rulemaking.
Further,
the
court
noted that what was at issue was not the State plan, but rather a rule that changed the State plan.
Id., at 179, at
1034.
Here,
the internal guidance
in
question is
not
an
amendment of any
existing
plan, but
rather
the
Illinois
EPA’s
means
of implementing
the
existing
requirement
within
Section
732.505(c)
of the
Board’s
regulations
(35
Ill.
Adm.
Code
732.505(c)),
namely,
to
determine
whether costs are reasonable.
to
which would
be
deemed
reasonable
without
further
documentation
(i.e.,
the
documentation
provided
in
the
accompanying
form would
suffice).
If the
amount
requested in a budget
or reimbursement request exceeded
the
amount,
further
documentation
may
be
needed
to
approve
the
amount.
The purpose
of the
use
of
the
internal
guidance
is
to
help
facilitate
timely
and
consistent
reviews
of
budgets
and
reimbursement
requests.
Hearing
Transcript, pp. 185, 215, 217,221; Petitioner’s Exhibit 2
(Attachment 2).
6
There are other
cases that
are more
on
point with the present situation.
In
Donnelly v.
Edgar,
117
Ill.2d
59,
509
N.E.2d 1015
(1987), the Illinois
Supreme Court again
considered the
question ofwhether an internal policy procedure was an
improper rulemaking (i.e.,
a “rule”
as
defined by the IAPA that
had
not undergone the otherwise required steps of public
notice
and
comment).
In Donnelly, the court considered whether a policy that established a formal hearing
review panel
to
review hearing
officer proposed decisions was
a
rule.
The court decided
the
policy
was
not
a
rule,
as
it
met
one
of
the
stated
exceptions
to
the
general
definition.
Specifically, statements concerning
only the internal management of an agency and not affecting
private rights or procedures available to persons or entities outside the agency are not a “rule.”
5
ILCS
100/1-70.
Id., at
65,
at 1018.
Further,
the
court noted
that
the purpose of the
internal
procedure was
to
prescribe
a
method
for maintaining consistency among the different decisions on restricted driving permits.
As
the
court
observed,
the
IAPA
was
not
intended
to
apply
to
every
agency
explanation of
existing policy to its. employees.
j4.
Another
case
that
is
persuasive
is
that
of
Kaufman
Grain
Company
v.
Director,
Department
of Agriculture,
179
Ill.
App.
3d
1040,
534
N.E.2d
1259
(4th
Dist.
1988).
In
Kaufman, the
appellate
court repeated the
sentiment of the Donnelly court, stating
that
not
all
statements
of
agency
policy
must
be
announced
by
means
of published
rules.
When
an
administrative
agency
interprets
statutory
language
as
it
applies
to
a
particular
set~~~of
facts,
adjudicated cases
are a proper alternative method of announcing agency policies.
Id., at
1047,
at
1264.
Contrast this statement with the Petitioner’s claim that adjudication of matters such as the
present appeal is a prOblem.
Petitioner’s Brief, p.
13.
7
Even
more
on
point
and
worthy
of
consideration
is
the
case
of
Highland
Park
Convalescent
Center
v.
Illinois
Health
Facilities
Planning
Board,
217
Ill.
App.
3d
1088,
578
N.E.2d 92
(1st Dist.
1991).
There, the
appellate court reviewed a
methodology employed by
a
state
agency
to
determine
whether
a
proposed
facility
would
result
in
a
maldistribution
of
facilities or services,
the
agency followed a prescribed calculation to arrive at a
decision based
on the “quadrant theory.”
Id., at 1092-93, at
94-95.
A witness
for the agency testified that the
agency’s rules do not contain standards for defining maldistribution,
and that it is
the applicant’s
duty to show why a proposed location is appropriate.
Id., at 1093, 95.
The
court
found
that
the
methodology
employed
by
the
agency
to
assist
it
in
its
maldistribution findings was not a rule as contemplated by the JAPA, based on the fact that the
methodology was not a rule.
Rather, the court found that it was simply the reasoning by which
an agency determined that maldistribution existed.
Id., at
1096,
at 97.
The court
also cited with
favor the decision reached in Kaufman.
Here,
the internal guidance expressly is used to
assist in the promotion of consistency in
decisions.
Obviously, the
Illinois
EPA has
a
large workload for
each of its
reviewers
(Carol
Hawbaker
testified,
for
example,
that
she
currently
has
201
sites
assigned
to
her,
Hearing
Transcript,
p.
171).
Any
internal
guidance
that
helps
to
ensure
consistency (as noted
in
the
Donnelly case) while not running afoul ofthe definition of a rule is appropriate.
The
internal
guidance
document
utilized
by
the
Illinois
EPA
either
is
not
a
rule
by
exception or by outright inapplicability.
The document is internal to
the Illinois
EPA, and
does
not
affect
any
private
rights.
While
the
document
may
assist
the
Illinois
EPA
staff
in
determining whether a
cost
is
reasonable,
it does not
affect
any private
rights
since there is
a
clearly defined right ofappeal to any Illinois EPA LUST program decision.
Thus, the means by
8
which the Illinois
EPA renders its decisions is
subject to
appeal, and numerous cases
have stated
that adjudication is an appropriate means to establish: an agency’s policy.
Just as compelling
is the argument that the internal guidance is not a rule of any kind, just
as
the court
in
Highland
Park found.
There
as here,
the
methodology
in
question
was
the
embodiment ofthe reasoning by which an agency reached a determination (in Highland Park the
determination was whether a maldistribution existed, here it is
whether a cost is
unreasonable).
Also,
similar to
the Highland Park case, the particular methodology
has not been presented
as
being the “end all—be
all” means
ofreasoning, but clearly
is
one
which
allows
the agency in
question to
help reach its final decisions.
In
the
case
of the
internal
guidance,
the
cover
memorandum
clearly
states
that
the
attached rate sheet
is meant
as a
guidance
document,
and
that
any requests for reimbursement
above
the
rates
in
the
sheet
should
be
discussed
with
the
project
manager’s
unit
manager.
Petitioner’s Exhibit
2, Attachment 2.
The Illinois EPA has clearly expressed its intent
and goal
that
the
internal
guidance
be
used
as
just
that—~guidance—and that
there
are
clearly
contemplated
exceptions
and
fact-specific
deviations
from
the content
of the
rate sheet.
The
internal guidance
is not
a statement of general
applicability, but rather is
a tool to
assist project
managers’ in their review ofnumerous budget submittals from different consultants.
B.
The Illinois EPA Treated The Internal Guidance Per The Board’s Orders
The Petitioner goes
on to
argue
that
the
Illinois
EPA’s
refusal
to
disclose information
related to the internal guidance somehow prohibits the internal guidance’s use as evidence.
The
Illinois EPA simply handled the information referenced by the Petitioner in the manner provided
for by the Hearing Officer and Board in this instance, as evidenced by the respective pre-hearing
orders issued.
To then state that the Illinois EPA’s
following ofthose orders is somehow an act
9
that can now be used against the Illinois EPA’s interests goes against the requirement that a party
comply with orders ofthe Board.
That the Petitioner is
disappointed it did not receive orders in
its favors is
apparent; that the Illinois EPA should accordingly be penalized for following orders
issued by the Hearing Officer and the Board is nonsensical.
IV.
THE ILLINOIS
EPA’S
TECHNICAL
REVIEW WAS CORRECT
The Petitioner
argues
that
the Illinois
EPA’s
technical
review of the
corrective
action
plan was in
error,
since the requirements of the Act
and regulations will be met if the remedial
investigation includes 13 direct pushborings and not merely three.
Petitioner’s Brief, p.
18.
The
problem
with
the
Petitioner’s
argument
is
that,
based
on
the
information
and
documentation with the corrective action plan
and budget, there
is
no
support
that would allow
the Board to
conclude
that the Petitioner has met its
burden.
The claim of the Petitioner is
that
the
10
direct
push
borings
not
approved by
the Illinois
EPA
were
necessary to
assist
in
the
investigation
of natural
migration
pathways.
Hearing
Transcript,
p.
103.
Supposedly,
the
documentation that links the need for the 10 direct push borings to the need to further investigate
natural migration pathways
is found in the corrective action plan on pages
six
and eight. j~.,
pp.
103-104.
Looking to pages six and eight ofthe corrective action plan, it is plain that there is
simply
no
statement
of
any
kind
that
the
10
direct
push
borings
in
question
would
be
tied
to
investigation ofnatural
migration pathways.
There is
a broad
statement that the borings
would
be
used
to
better
define
and
evaluate
the
extent
and
relative
distribution
of
petroleum
contaminants in the
subsurface,
but that
statement does not make any
reference specifically to
the investigation ofnatural migrationpathways.
Record, p.
6.
10
It was the testimony ofthe Petitioner that the infonnation on page six, combined with that
~n
page
eight
(Record,
p.
8),
effectively
made
reference
to
natural
migration
pathways.
However, a review of the cited information on those pages ofthe corrective action plan reveals
no
such statement
is
made.
It would
have been very
easy for the Petitioner to
state what they
now would have the Board believe, but in fact that kind of explanation for the need for the
10
borings in question is not found.
However, there is a direct
reference to
the purpose for the
10
borings
found later in the
corrective
action plan
budget.
On
page
68
of the
Record,
the
Petitioner
noted
that
the
13
locations (including the
10 borings not approved
and the three borings that were
approved) will
be probed
and
sampled
“in accordance with
35
IAC
732.308(a).”
The Petitioner puts
its best
foot forward, trying to argue that the phrase “in accordance with” is not at all similar in meaning
to
“pursuant to,”
such
that
the
reference
to
Section
732.308(a)
in
the budget
as the
specific
reason
for
using
the
borings
does
not
mean what
it clearly
does
mean.
Section
732.308(a)
references
soil
borings
and
soil
boring
logs
that
are
to
be
included
in
a
site
classification
completion
report.
Thus,
the
Illinois
EPA’s
conclusion
that
these
borings
related
to
site
classification
activities
(therefore not
approvable
in
a
corrective action
plan
and
budget) was
entirely reasonable and appropriate.
V.
THE
ILLINOIS EPA’S FINANCIAL
REVIEW WAS CORRECT
Finally,
the
Petitioner
takes
issue
with
the Illinois
EPA’s
review
and
decision
on
the
budget portion of the
corrective
action plan.
There were
essentially
four components
to
the
Illinois EPA’s sum
decision on the budget:
1) the reduction of
13
borings
to
10 borings;
2) the
reduction
of five days’
time
for
investigation
to
two
days’
time;
3)
the reduction of allowed
hours;
and 4)
the reduction of allowed rates/costs.
On each point, the Petitioner has failed
to
1•1
meet its burden
and the corresponding decision reached by the Illinois
EPA was reasonable and
appropriate.
A.
The Number Of Soil Borings Was Properly Reduced
As has been argued above, the Illinois EPA properly reduced the number ofsoil borings
proposed in the correclive action plan and budget from
13
to three, thus reducing by
10 the total
number of approved borings.
That decision was
accordingly carried
out
in the
assessment of
related costs found in the budget.
B.
The Time For Certain Investigation Activities Was Properly Reduced
Given the
correct
reduction
in
the number of soil borings
to
be
approved,
there
was a
corresponding reduction in the amount oftime needed to perform those borings.
As found in the
budget
submitted
by
the
Petitioner,
there
is
no
information that
describes how
the Petitioner
reached its conclusions as to the time needed to
perform investigation activities in question.
The
Petitioner’s
consultant testified that he provided some information prior to the submission ofthe
corrective action plan and budget,
and that he
had experience in calculating the time needed to
perform soil borings of this nature.
Hearing Transcript
pp.
37,
40.
None ofthat information is
found in the corrective action plan or budget.
Given that there was
no
supporting documentation for the days and
hours
found in
the
budget at page
68 of the Record, the Illinois
EPA’s
project manager spoke with
her supervisor
and
obtained an
estimate of a reasonable period of time
to
allow for.
Hearing Transcript,
pp.
178-179.~Her reliance on
that
experienced estimate was reasonable
and
appropriate
given the
lack ofany supporting documentation from the Petitioner on this
issue.
~ The
Illinois
EPA
has
previously
expressed
its
firm
position
that
the
admission
into
evidence
of discovery
deposition transcripts
in their entirety was
inappropriate
and should be stricken,
along
with any testimony based
upon
those
transcripts.
However, if the Board should decide
to
affirm the
Hearing Officer’s
decision,
the
Illinois
EPA notes
that
on page
28 of his
deposition transcript, Harry Chappel expressed
his opinion
as to
the reasonable
12
C.
The Hours Associated With
Certain Activities Was Properly Reduced
Similar to the reduction in the number of hours/days allowed for the direct push borings,
there
were
other reductions
in
the number of hours
compared
to
what
was
proposed
in
the
corrective action plan budget.
Record, pp.
72-73.
In
reviewing
the
information
contained
in
the
budget,
there
is
no
documentation
or
information that
provides
any
background as
to why the
hours
sought
for the tasks
identified
(sometimes
multiple
tasks
per
line
item)
are
reasonable.
Given
this
lack of any
supporting
documentation,
the
Illinois
EPA’s
decision
to
modify
the
budget
with hours
believed
to
be
reasonable based on past experience ofthe Illinois EPA staff was correct.
D.
The Costs/Rates Associated With Certain Activities/Personnel Were Properly Reduced
Finally, there were a number ofpersonnel rates or per unit costs that were reduced by the
Illinois EPA, either due
to the excessive nature ofthe cost, the undocumented nature ofthe cost,
or the inconsistency of the cost with the corrective
action plan (i.e., samples proposed with no
locations identified, a concept not described or approved in the corrective action plan).
In each
instance, the Petitioner failed to provide any
explanation or information in
support of the
costs
that were listed in the budget.
The testimony by the Petitioner’s consultant at hearing was indeed
interesting,
but
none of that information
is
found
anywhere in the
budget or corrective action
plan.
Therefore,
the Illinois EPA did not
have the benefit of the information when reaching its
decision.
As
noted
above,
the
use of the
internal
guidance
as
a
tool to
assist
in
consistent
decision-making is appropriate here, and therefore use ofthat document to assist
in the reduction
ofcertain rates or costs was also acceptable.
amount of timeto perform direct push borings.
That opinion was based on his background in
consulting
engineering
and his years spent
at
the
Illinois
EPA,
all
of which
are extensive.
Chappel Deposition Transcript, pp. 68-75.
It
shouldbe noted that Mr. Chappel is also
a licensed Professional Engineer.
Record, p.
88.
13
In Todd’s Service Station
v.
Illinois EPA, PCB 03-2 (January 22,
2004), the Board noted
that
the Petitioner
failed
to
include
any explanation
in
either
the budget submitted or hearing
testimony as to how personnel rates were calculated or why they were reasonable.
That lack of
explanation led the Board to
conclude the Illinois EPA’s
reduction ofcertain
costs and
hours in
question in
the budget~wascorrect.
Todd’s, p.
7.
Here,
there was hearing testimony provided,
but
the
Petitioner
did
not
include
any of that
information
within
the budget.
Therefore,
the
information was never before the Illinois EPA during their decision-making process.
The Board
should follow the precedent established in Todd’s and affirm the reductions made here.
Also, the Petitioner’s claim that some ofthe costs or rates in question have been approved
in the past is
not persuasive, since the past actions ofthe Illinois
EPA are not in
question here.
As was discussed, the intent behind using
the internal guidance is
to help promote consistency in
decisions;
obviously,
there are
going
to
be
exceptions
to
that guidance,
and
those
exceptions
should not be held against the Illinois EPA here.
VI.
CONCLUSION
For all the reasons and arguments included herein, the Illinois EPA respectfully requests
that the Board affirm the Illinois
EPA’s
March
28,
2003
decision.
The Petitioner has not met
even its
primafade
burden of proof, and certainly has not met its ultimate burden of proof.
The
information contained within the corrective action plan
and budget is consistent with the Illinois
EPA’s
final
decision,
and
the
lack of information
now being
offered by
the
Petitioner in
an
untimely manner should not be considered since it was never presented to the Illinois EPA.
For
these reasons, the Illinois EPA respectfully requests that the Board affirm the Illinois EPA’s final
decision.
14
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
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: March 8, 2004
This filing submitted on recycled paper.
15
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on March 8, 2004, I served true and
correct copies of a RESPONSE TO PETITIONER’S BRIEF,
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 followingnamed persons:
Dorothy M. Gunn, Clerk
Illinois Pollution ControlBoard
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, Priulaman & Adami
Suite 325
1
North Old Capitol Plaza
Springfield, IL
62701-1323
John J.
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)
AGENCY,
