BEFORE ~
~.LTROL
BOARD
I
OIS
MICK’S
GARAGE,
)
)
RECEiVED
CLERK’S OFF?(~F
AUG
2
12003
STATE OF
ILLINOIS
Pollution
Control Board
Petitioner,
)
)
vs.
)
PCB No. 03-126
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTI CE
Dorothy
M. Gunn, Clerk
Illinois
Pollution Control Board
State
ofIllinois
Center
100 West Randolph Street
Suite
11-500
Chicago, IL
60601
Carol Sudman
Hearing
Officer
Illinois Pollution
Control Board
600
5.
Second Street,
Suite 402
Springfield,
IL
62704
John J.
Kim
Assistant
Counsel
Special Assistant
Attorney General
Division of Legal
Counsel
1021 North Grand Avenue, East
P.O.
Box
19276
Springfield,
IL
62794-9276
PLEASE TAKE NOTICE that I have today filed with the
office of the Clerk of
the Pollution Control Board a Brief of Petitioner,
a copy of which is herewith
served
upon you.
Curtis W. Martin
IL ARDC No. 06201592
SHAW & MARTIN,
P.C.
Attorneys at Law
P.O. Box
1789
Mt.
Vernon, Illinois
62864
Telephone (618) 244-1788
By
/Curtis
W. Martin, At)~rneyfor
Mick’s Garage,
Pe
~tioner
6
•
BEFORE THE ~
OF THE
~
A’~OF~~
i
‘~
S
OFFtç~
11UG21
2003
MICK’S
GARAGE,
)
ST
)
~011~~~1TE
OF
ILLi1~ojs
Petitioner,
)
O~
Co~
trol Board
)
vs.
)
PCB No. 03-126
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
BRIEF OF PETITIONER
NOW COMES the Petitioner,
Mick’s Garage,
(“Mick’s”), by one of its
attorneys, Curtis W. Martin of Shaw
& Martin,
P.C., and for its Brief pursuant
to
the Hearing Report of the Hearing Officer filed July
28,
2003, states as follows:
This appeal concerns the proper
deductible determination
applicable to the
Mick’s facility located at
1251 East Chain of Rocks
Road in Pontoon Beach, Illinois.
Mick’s has been in operation as a truck repair facility and fueling station
since
1945.
On June
11,
1991,
a “suspected” release of contaminants was reported
to the
Illinois Emergency
Services Disaster
Agency
(“IESDA”) and Incident No. 911582
was assigned to the site.
The suspected release related to an area of discoloration
above gasoline lines near Mick’s building.
No diesel fuel flowed through these
lines.
At various
times between
1991 and
1999,
Mick’s environmental
consultants
submitted requests for reimbursements resulting
in Agency letters
dated
February
7,
1992, March
9,
1992 and January
10,
2003, the current Agency decision
Mick’s now appeals.
The February
7,
1992 and March
9,
1992 Agency letters both
reference
two
(2) 2000
gallon diesel fuel tanks
(as corrected by the Agency’s March
24,
1992 letter),
and Mick’s constructive knowledge that a release
occurred from
these tanks prior to July
28,
1989.
Stephen
Fincher,
now Mick’s President, has been involved in the family
business since
1973 and in the early 1980’s became the manager ofthe operations.
In the early
1980’s a dispenser connected
to the two (2)
2000
gallon diesel fuel tanks
located at the rear of Mick’s facility was damaged by a tractor trailer.
At
no time
following the tractor
trailer incident did Mr.
Fincher notice any spill or leak from
the fuel dispenser.
Following the tractor trailer
incident, the pump attached to the
two
(2) 2000
gallon diesel fuel tanks
would not dispense fuel.
Mr. Fincher was not
aware of how the dispenser operated and made an assumption that the reason it
was not operating was because the line to the pump must have leaked.
Mr. Fincher
held to this
assumption for a number ofyears.
Because diesel fuel sales at Mick’s
had
been dwindling,
Mick’s decided not to repair the pump or to sell diesel fuel at
its facility.
Eleven underground
storage tanks
(“UST’s”) were removed from Mick’s on
April
5 through
8,
1999.
Because there appeared to be
a release
from some of the
UST’s removed, Arthur Jacobs, the representative
of the
Office of the State
Fire
Marshall
(“OSFM”), requested a second reporting of the initial suspected release of
June
11,
1991.
On April 5,
1999 the Illinois
Emergency Management Agency
(“IEMA”) assigned a second Incident
No. 990820 to
Mick’s site.
Mr. Fincher
and
Mr. Jacobs were present when the two
(2) 2000
gallon diesel fuel tanks were
removed.
Mr. Fincher observed
no spill, leak, or other free product from the two
2
tanks.
In addition, Mr. Jacobs’ Log of Underground
Storage Tank Removal
reflected no release from the two
(2) 2000
gallon diesel fuel tanks.
Following the removal of the tanks,
Mr. Fincher provided a written
explanation to the Agency,
and provided testimony during the hearing, that he was
not previously aware that the diesel fuel delivery system connected to the two
(2)
2000
gallon diesel fuel tanks was a suction pump apparatus.
Mr.
Fincher later
learned that the system was a suction pump system and that a crack in the pump
caused a complete malfunction ofthe system.
Because the suction pump
system
operated by drawing fuel out ofthe tanks,
its complete malfunction would not
allow
fuel to be removed from the tanks
to enter the lines causing the fuel to remain
in
the tanks.
Once this explanation was provided to the Agency, however, it swiftly shifted
its focus to a prior reported leak from the gasoline UST’s in
1991.
The Agency
further seems to take the position that
Mick’s prior submittal to the Agency of the
Underground Storage Tank Fund Eligibility and Deductibility Applications
preclude Mick’s from reaping the benefit of the proper
lesser deductible.
Granted,
the various applications for deductible determination caused initial confusion, but
the true facts were properly and timely presented to the Agency.
The true facts of
the case are, based upon the Removal Log of the OSFM,
that neither
ofthe two
(2)
diesel fuel tanks had a release
or contributed in any other way to the contamination
at the Mick’s site.
Illustrative of the Agency’s failure
to consider the true facts in this
case is the
testimony of John Barrett, the Agency’s Project Manager for the Mick’s project.
He
3
testified that once he discovered a $50,000.00
deductible determination
in the
Agency’s file, he decided
not to waiver from that
decision as it was the first Agency
decision and in his view nothing had been submitted
by Mick’s to change that
decision.
Yet, despite the additional information provided by Petitioner,
Mr.
Barrett
stated this would not have caused him to change the deductible
determination
from $50,000.00
to $10,000.00
or $15,000.00, even when the
information caused the deductible determination
to be “less confusing”.
Mr. Barrett settled upon the
1991 report of a release
from gasoline UST’s
registered in
1986 as a basis
for the $50,000.00
deductible determination.
Taking
Mr. Barrett’s, and ultimately the Agency’s, position renders the following
undisputed facts:
(1) the two
(2) 2000
gallon diesel fuel UST’s had
not leaked;
(2) if
any leak occurred it was reported to the State in
1991 for gasoline UST’s registered
in
1986
(3) Mick’s could not have constructive knowledge prior to
1989 of a diesel
fuel leak that never occurred; and (4) there
is no
evidence in the record ofthis case
to suggest that
Mick’s had or could have had knowledge of a leak from gasoline
UST’s prior to
1989.
Given these undisputed
facts,
Section
57.9(b)
of the Environmental
Protection
Act,
415 ILCS
5/57.9(b), directs that the deductible will be $10,000.00,
except under Section
57.9(b)(3), where
one or more but not all UST’s were registered
prior to July
28,
1989 and the State
received notice ofthe confirmed release
on or
after July
28,
1989.
In the present case, all the UST’s were registered prior to July
28,
1989.
Therefore, the $10,000.00 deductible applies.
At the very least, the
$15,000.00 deductible applies because the UST’s were registered prior to July
28,
4
1989 and the State
was notified of the confirmed release, be it gasoline or diesel
fuel, after July
28,
1989.
Accordingly, Mick’s has met its burden of proof that the
Agency’s determination
of a $50,000.00
deductible is
applicable
in this case was
error.
Petitioner,
Mick’s Garage,
for the reasons stated
above, requests that the
Board reverse the deductible
decision of the Agency and rule in favor ofPetitioner’s
request for the application of a $10,000.00 deductible, or in the alternative a
$15,000.00 deductible, and grant Petitioner such other and further relief as the
Board deems just
and equitable in the circumstances.
Respectfully submitted,
SHAW
& MARTIN, P.C.
BY~~
~J
/
—
Curtis W. Mar~1c,Attorney for
Mick’s Gara
,Petitioner
Robert E. Shaw
IL ARDC No. 03123632
Curtis
W. Martin
ILARDC
No. 06201592
SHAW & MARTIN,
P.C.
Attorneys at Law
123
5.
10th Street,
Suite 302
P.O.
Box
1789
Mt. Vernon, Illinois 62864
Telephone (618) 244-1788
5