BEFORE THE iLLINOIS POLLUTION CONTROL BOARD
ILLINOIS AYERS OIL CO.,
)
CLERK’S OFFICE
)
JUN142004
Petitioner,
)
STATE
OF
ILLINOIS
PCB
03-214
POII~tj~~
Control Board
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF FILING AND PROOF OF SERVICE
TO:
Dorothy
Gunn,
Clerk
Carol Sudman
Illinois Pollution Control Board
Hearing Officer
100 West Randolph Street
Illinois Pollution Control Board
State of Illinois Building,
Suite 11-500
1021
North Grand Avenue East
Chicago, IL 60601
P.O. Box 19274
Springfield, IL 62794-9274
John Kim
Division ofLegal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box
19276
Springfield, IL 62794-9276
PLEASE BE ADVISED THAT we are today filing with the Pollution Control Board by U.S.
mail
the original and nine copies ofResponse in Opposition to Motion for Leave to File Surreply,
a
copy of which is attached hereto.
The undersigned hereby certifies
that a true and correct copy ofthis Notice ofFiling, together
with a copy ofthe document described above, were today served upon the hearing officer and counsel
ofrecord of all parties to this
cause by enclosing same in envelopes addressed to
such attorneys at
their business addresses as disclosed by the pleadings ofrecord herein, with postage fullyprepaid,
and by depositing same in the U.S. Mail in Spring~M~linois
on the
QR~
day ofJune, 2004.
~ffi~D.
S1~w
MOHAN, ALEWELT, PRILLAMAN & ADAMI
1
North Old Capitol Plaza, Suite
325
Springfield,
IlL 62701
Tel:
(217) 528-2517
Fax:
(217)
528-2553
THIS FILING SUBMITTED ON RECYCLED PAPER
C:\Mapa\CSD Environmental\Notice ofFilingO6O8O4doc\crk\5/28/04
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
~CVED
.JLERK S OFFICE
ILLINOIS AYERS OIL CO.,
)
JUN
14
2004
Petitioner,
)
STATE OF ILLII~IOIS
Pol(ut,o~Control ~oard
v.
)
PCBO3-214
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
RESPONSE IN OPPOSITION TO
MOTION FOR LEAVE TO FILE
SURREPLY
NOW COMES Petitioner, ILLINOIS AYERS
OiL
COMPANY,
by its
undersigned
attorneys, pursuant to Section
101.500(d) ofthe Illinois Pollution Control Board’s Procedural
Rules
(35
Ill.Admin.Code
§
101.500(d)), opposes the motion for leave to
file surreply, stating as
follows:
1.
On or about June 2, 2004, the Illinois Environmental Protection Agency
(hereinafter “the Agency”) filed a motion for leave to file surreply.
2.
The Agency accuses Petitioner ofmaking three specific
“material errors and
misstatements” in its Reply, necessitating the Board’s acceptance of the surreply (Motion, ¶2).
The Agency relies upon the case ofCDT Landfill Corporation v.
City of Joliet, PCB 98-60 (Mar.
5,
1998) (granting motion to correct typographical errors in movant’s own brief).
3.
The allegation of “material errors and misstatements” is
a serious accusation
which is not substantiated in the Agency’s motion.
4.
First, the Agency claims that Petitioner erroneously alleged “that the Illinois EPA
misinterpreted or misapplied the language of Section
57.8(1)
ofthe Environmental Protection
Act...
.“
(Motion, ¶2(1)).
If a disagreement with an interpretation ofa statute constitutes a
“material error and misstatement,” then those terms are essentially meaningless.
5.
Second, the Agency alleges that the Petitioner erroneously alleged 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, Fn 2).” (Motion, ¶2(2))
Petitioner made no such accusation.
In
fact, Petitioner cited the Ted Harrison Oil Company case in its
initial motion.
In opposing the
motion, the Agencyargued for the creation of a distinction between reimbursement requests and
actions involving plans and associated budgets. (Response, ¶16)
In its Reply, Petitioner merely
pointed out that the Ted Harrison Oil Company case involved a non-Title XVI program “and
therefore does not provide any guidance as to what constitutes
‘the legal costs of seeking
payment under this Title.” (Reply, p.8 Fn 2)
6.
Third, the Agency alleges that the Reply claims that “the only means for the
Illinois EPA to reject excessive soil borings
is in conjunction with the request for payment from
the Underground Storage Tank Fund (“UST Fund”).”
(Motion, ¶2(3))
“This
is an unsupported
and extremely misleading statement, as it attempts
to portraythe Illinois EPA’ s decision here to
reduce the number ofsoil borings as one purely driven by reimbursement concerns.” (Surreply,
pp.
3-4) Petitioner’s statement was fully supported and the accusatory tone belies a desire to
reargue Petitioner’s conclusion, not to identify and correct any error offact or law.
7.
Tn summary, the Agency has mischaracterized and exaggerated allegations
attributed to
the Petitioner, engaged in reargument and otherwise failed to
establish the existence
ofmaterial errors and misstatements in the Reply Brief.
2
WHEREFORE, Petitioner, Illinois
Ayers Oil
Company, prays for an order denying the
motion for leave to file surreply,
and such other and further relief as the Board deems meet and
just.
Respectfully submitted,
ILLINOIS AYERS OIL COMPANY, Petitioner
MOHAN, ALEWELT, PRILLAMAN & ADAMI
1 North Old Capitol Plaza, Suite 325
Springfield,
IL 62701
Phone:
(217) 528-2517
Fax:
(217) 528-2553
C:\Mapa\CSD Environmental\ResponseOppostionSurreply.doc\crk\5/28/04
3
