BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ILLINOIS
AYERS OIL
COMPANY,
)
Petitioner,
)
V.
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
NOTICE
PCB No.
03-2 14
(LUST Appeal)
RECEIVED
CLERK’S OFFICE
JUL08
2004
STATE OF ILLINOIS
Pollution Control Board
Dorothy M. 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 AMENDMENT TO
RESPONSE and AMENDMENT
TO RESPONSE, copies of which are herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
John Jjis~m
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: July 6, 2004
RECEIVED
CLERK’S OFFICE
BEFORE
THE POLLUTION CONTROL
BOARD
JUL
08
2004
OF THE STATE
OF ILLINOIS
STATE OF ILLINOIS
Pollution Control Board
ILLINOIS AYERS OIL COMPANY,
)
Petitioner,
)
V.
)
PCB No. 03-214
ILLINOIS ENVIRONMENTAL
)
(LUST Appeal)
PROTECTION AGENCY,
)
Respondent.
)
MOTION FOR LEAVE TO
AMENDMENT
TO
RESPONSE
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, hereby submits this motion for leave to
file
an
amendment to
the
response to
the
Petitioner’s
motion
for payment of attorneys’
fees.
In
support of this motion for leave to amend, the Illinois EPA states as follows:
1.
On
or about May
3,
2004,
the
Petitioner,
Illinois
Ayers
Oil
Company,
filed
a
motion
for payment
of attorneys’
fees
(“Petitioner’s
motion”).
On May 21,
2004,
the Illinois
EPA filed a response to the Petitioner’s request (“Illinois EPA’s response”).
Since that time, the
Petitioner has filed a motion for leave to
file reply
and
a reply,
and
the Illinois EPA has filed a
motion for leave
to file surreply and a surreply (to which the Petitioner has objected).
2.
The Illinois
EPA acknowledges that
the response to
the Petitioner’s
motion
has
already been filed.
However, on June 21
and 22, 2004, testimony was provided in a rulemaking
proceeding before the Illinois
Pollution Control Board (“Board”) that is relevant to
the Board’s
decision on the Petitioner’s motion.
Had the Illinois EPA been in possession ofthis testimony at
the time offiling its response, reference to the testimony would have been included.
3.
Although the testimony post-dates the filing ofthe response, its
content is relevant
and
thus should be
considered by the Board
in weighing the merits of the Petitioner’s motion.
It
1
would present a material prejudice to
the Illinois EPA if this testimony were not
considered, as it
was provided under oath by
a witness
that
also
provided testimony
in
the present appeal.
The
testimony, which was given prior to the Board’s ruling on
the pending Petitioner’s motion,
bears
on whether the Board should grant the motion for payment of attorneys’ fees.
4.
Specifically,
the
testimony
addresses
who
actually
paid
the
attorneys’
fees
in
question.
Given
the nature of the testimony, the Board should
have the ability to
consider that
fact before rendering its decision.
WHEREFORE,
for
the
reasons
stated
above,
the
Illinois
EPA
hereby
respectfully
requests
that
this
motion
for
leave
to
file
an
amendment
to
the
Illinois
EPA’s
response
be
allowed.
Respectfully submitted,
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)
Dated: July 6, 2004
-
This
filing submitted on
recycled paper.
2
RECEIVED
CLERK’S OFFICE
BEFORE THE
POLLUTION CONTROL
BOARD
OF THE STATE OF ILLINOIS
JUL
082004
STATE OF ILLINOIS
ILLINOIS AYERS OIL COMPANY,
)
Pollution Control Board
Petitioner,
)
v.
)
PCB
No. 03-214
ILLINOIS ENVIRONMENTAL
)
(LUST Appeal)
PROTECTION AGENCY,
)
Respondent.
)
AMENDMENT
TO
RESPONSE
TO
MOTION FOR AUTHORIZATION OF
PAYMENT OF
ATTORNEYS’ FEES AS
COSTS OF
CORRECTIVE
ACTION
NOW COMES
the Respondent,
the Illinois
Environmental Protection Agency
(“Illinois
EPA”),
by one ofits
attorneys, John J. Kim,
Assistant
Counsel
and
Special
Assistant
Attorney
General,
and, pursuant to
35
Ill.
Adm.
Code
101.500,
hereby requests that the Illinois
Pollution
Control
Board
(“Board”)
deny
the
Petitioner’s
Motion
For
Authorization
Of
Payment
Of
Attorneys’
Fees
As
Costs
Of
Corrective
Action
(“Petitioner’s
motion”).
In
support
of this
amended response, the Illinois EPA states as follows:
1.
On May 21,
2004,
the
Illinois
EPA
filed a
response
to the Petitioner’s
motion
(“Illinois EPA’s response”).
Assuming the Board
grants
the Illinois EPA’s motion
for leave
to
file this amendment; the Illinois EPA hereby incorporates the Illinois EPA’s response.
2.
Since the filing of the Illinois EPA’s response, but before the Board has ruled on
the
Petitioner’s
motion,
the
Board
has
presided
over
separate
~hearings
related
to
two
rulemakings.
Specifically,
in
those
cases
(In
the
matter
of:
Proposed
Amei~dmentsto
Regulations of Petroleum
Leaking
Underground Storage
Tanks
(35
Ill.
Adm.
Code
732), R04-
22;
and
In
the
matter
of:
Proposed
Amendments
to
Regulation
of
Petroleum
Leaking
Underground
Storage
Tanks
(35
Ill.
Adm.
Code
734),
R04-23
(Consolidated))
(“LUST
Rulemakings”), the Board held hearings
on
June 21
and June 22,
2004,
to hear testimony from
participants.
1
3.
Included in the witnesses providing sworn testimony on June 21, 2004, was Cindy
Davis,
a
principal
and
the
name
member
in
the
consulting
company of CSD
Environmental.
Under questioning from
Claire
Manning,
counsel for Professionals of Illinois
for the Protection
of the Environment (“PIPE”),
Ms.
Davis testified she provided testimony
in the present case of
Illinois Ayers
Oil
Company v. Illinois EPA, PCB 03-214.
Ms. Davis testified that Illinois
Ayers
Oil
Company was
and
still
is
a
client of “CEC” (which is
apparently a transcription
error,
and
should have been referenced as “CSD”).
LUST Rulemakings, June 21, 2004 transcript, p.
95.
4.
Ms.
Davis further testified that her opinion in
the Illinois Ayers case was that the
Illinois EPA’s use ofthe “rate sheet” was unfair for a variety of reasons.
She further testified:
Hence the reason we decided to
appeal Ayers.
I paid for the appeal on Ayers, and not the
owner/operator.
The reason I did is,
I guess it was just something that stuck
in me that
I
didn’t feel was right, and
it was affecting my
business, driving the
cost of cleanups up
because
all
we
were
doing
was spending
time
trying to justify why we were
needing
more money than the Agency was willing to
give to
us.
LUST Rulemakings, June 21, 2004 transcript, p. 96.
5.
Ms. Davis clearly testified that it was the consultant, CSD Environmental, and not
the owner/operator,
Illinois
Ayers Oil
Company, which initiated
and paid for the appeal.
This
testimony
was
reiterated
by
Ms.
Manning
on
a
second
day
of
testimony
in
the
LUST
Rulemakings proceedings.
Ms. Manning stated:
Just
to clarif~r
this
too,
for purposes of the record, Cindy
Davis testified on behalf ofher
company, that when she, you know, that it was her company that incurred the-legal costs,
you know, in terms of going forward to the Board as opposed to the owner/operator.
LUST Rulemakings, June 22, 2004 transcript, p.
74.
6.
Therefore,
both
Ms.
Davis
and
Ms.
Manning
stated
that
it
was
CSD
Environmental,
not
illinois
Ayers
Oil
Company,
that
incurred
the legal
costs
of bringing
the
appeal
in Illinois Ayers
Oil.
Further,
they made clear that the owner/operator, Illinois
Ayers Oil
2
Company, was not the party that paid any of those costs.
Ms.
Davis testified that the reason her
company initiated the appeal was her company’s concerns regarding the cost ofdoing business.
7.
If the Board
were
to
approve
the payment of costs
as sought
by
the
Petitioner
here,
then it
would
be
approving a
payment of money
to
a party (the owner/operator,
Illinois
Ayers
Oil
Company). that
did
not
incur
any
of the
costs
at
issue.
In
effect,
it
would
be
subsidizing the
legal
activity
of CSD
Environmental,
an
entity
that
has
no
legal
obligation,
responsibility, or rights
under the Illinois
Environmental Protection Act (“Act”) (415 ILCS
5/1,
et seq.).
8.
Only
an
owner/operator
may
receive
payment
of costs
from
the
Underground
Storage
Tank Fund
(“UST Fund”).
If the
Board
approves the payment
sought
here, it
would
require that
the Board find that the attorneys’ fees
are a corrective action that would be payable
from the UST Fund pursuant to
Section 57.8(1) ofthe Act (415 JLCS
5/57.8(1)).
9.
It
is
a
fundamental
concept
to
the
Act
that
costs
deemed
eligible
for
reimbursement from the UST Fund are payable only to the owner/operator, under the basis that it
is
the owner/operator
that
incurs
those
costs.
Here,
the consultant
to the owner/operator
has
testified under oath that the owner/operator did not incur those costs, and in fact did not make the
decision to
bring this appeal in its own name.
Rather, it was the owner/operator’s consultant that
had
a
business
concern,
paid
for the
appeal,
and
now
seeks
to
reap
the
benefits
by
way of
payment of legal
fees.
To
allow
such a payment
would
open
the
door to
other
situations
in
which an
owner/operator, in name only, seeks costs for reimbursement or payment from the UST
Fund that were never actually incurred by the owner/operator.
This is
a bad precedent, and one
that should be stopped now to prevent future erosion of the purposes ofthe Act.
3
WHEREFORE,
for
the
reasons
stated
above,
the
Illinois
EPA
hereby
respectfully
requests that the Board enter an order denying the Petitioner’s motion.
Respectfully submitted,
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: July 6, 2004
AGENCY,
This filing submitted on recycled paper.
4
CERTIFICATE OF SERVICE
I, the undersigned attorney at
law, hereby certify
that on July
6,
2004,
I served true
and
correct
copies
of a
MOTION
FOR
LEAVE
TO
FILE
AMENDMENT
TO
RESPONSE
and
AMENDMENT
TO
RESPONSE,
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
Fred C. Priulaman
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)
