McDONALD’ S
CORPORATION,
Petitioner,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
~VED
CLERK’S
OFP!CE
BEFORE
THE POLLUTION
CONTROL BOARD
NOV
32003
OF THE STATE OF ILLINOIS
STATE
OF
ILLINOIS
)
Pollution
Control Board
)
V.
)
)
)
Respondent.
)
Dorothy M.
Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson
Center
100 West Randolph Street
Suite 11-500
Chicago,
IL 60601
Mark D. Erzen
Karaganis, White & Magel, Ltd.
414 North Orleans Street
Suite 810
Chicago,
IL 60610
NOTICE
PCB No. 04-14
(UST Appeal)
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100
West Randolph Street
Suite 11-500
Chicago,
IL
60601
PLEASE
TAKE NOTICE
that
I
have
today
filed with
the
office of the
Clerk
of the
Pollution
Control Board a MOTION
FOR SUMMARY
JUDGMENT,
copies
of which are herewith
served
upon
you.
Respectfully submitted,
Jt-,~
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:
October 30, 2003
AGENCY,
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
McDONALD’S
CORPORATION,
)
Petitioner,
)
V.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
MOTION FOR SUMMARY JUDGMENT
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
Iii.
Adm.
Code
101.500,
101.508
and
101.5 16,
hereby respectfully
moves the Illinois
Pollution Control Board (“Board”) to enter summaryjudgment in
favor of the
Illinois EPA and against the Petitioner, McDonald’s Corporation(“McDonald’s”), in that thereexist
herein no genuine issues ofmaterial fact, and that the Illinois EPA is entitled
to judgment as a matter
of law with respect to
the following grounds.
In support ofsaid motion, the Illinois EPA states as
follows:
I.
STANDARD
FOR ISSUANCE AND REVIEW
A
motion
for
summary judgment
should
be
granted
where
the pleadings,
depositions,
admissions
on file, and affidavits
disclose no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter oflaw.
Dowd & Dowd, Ltd. v. Gleason, 181 Ill.2d460,483,
693 N.E.2d 358, 370 (1998);
Ozinga Transportation Services v. Illinois Environmental Protection
Agency, PCB 00-188 (December 20,
2001), p. 2.
The Board’s authority to reviewa determination by the Illinois EPAto deny in part or in full
a request for reimbursement submitted pursuantto the Leaking Underground StorageTank (“LUST”)
RECEKVED
CLERK’S
OFFICE
NOV
32003
STATE OF ILLINOIS
Pollution
Control Board
PCB No. 04-14
(UST Appeal)
1
Program
arises
from
Section
22.1 8b(g) ofthe Environmental Protection Act
(“Act”) (415
ILCS
5/22.1 8b(g)
(Repealed)).
That section provides
that
an
applicant may
appeal
an
Illinois
EPA
decision denying reimbursement to
the Board under the provisions of Section 40 ofthe
Act (415
ILCS
5/40).
Pursuant
to
Section
40 of the
Act,
the
Board’s standard of review
is
whether
the
application submitted to
the Illinois EPA would not violate the Act and Board
regulations.
Ted
Harrison Oil
Company v.
Illinois EPA, PCB 99-127 (July 24, 2003), p.
3•1
More specifically,
in the situation ofa party appealing a decision denying reimbursement
from the Underground Storage Tank Fund (“UST Fund”), the standard is for the Board to applythe
statutory definition of corrective action and
determine whether the
costs
in
question sought for
reimbursement meet that definition.
Salyer v. Illinois EPA, PCB
98-156
(January 21,
1999), p. 7;
Graham v. Illinois EPA, PCB
95-98
(August 24,
1995), p. 8.
The parties have filed a Joint
Stipulation Of Facts (“stipulation”) in
this matter, and
the
Administrative
Record has not been filed.
The Illinois
EPA asserts that the stipulation and the
argumentspresented in this motion are sufficient fortheBoard to entera dispositive order in favorof
the Illinois EPA on all relevantissues.
The applicable law is found in Section 22.1 8b ofthe Act, as
the bases for denial as found in the decisionletter arebased upon Section 22.1 8b(d)(4)(C) ofthe Act
(415
ILCS
5/22.18b(d)(4)(C)).2
As
the
Board described in
Ted
Harrison,
the
law
in
Illinois
regulating releases from underground storagetanks (“USTs”)transitioned from that foundin Section
22.l8b of the Act to Section 57 ofthe
Act.
Ted Harrison, pp.
4-5.
1
The Illinois EPA’s citation to page numbers in Board decisions is
sometimes
based~onpagination
provided by Westlaw
printouts ofthe decisions.
It is thus possible that the pagereferences~
may sometimes be inconsistentwith the pages in the
“official”Board.
The Illinois EPAhopes any such inconsistencies
are
at a minimum and not tootroublesome for Board
staff.
2 The fmal decision, as found inExhibit 6 ofthe
stipulation, includes an erroneous reference to Section
57.8(i)
of
theAct
as one ofthe statutory bases for appeal ofthe decision.
The reference should not havebeen to a provision ofSection 57,
butrather to Section 22.1 8b.
However, any such error is harmless as the Petitionerwas obviously provided with ample
2
II.
BURDEN
OF PROOF
Pursuant
to
Section
105.112(a)
of
the
Board’s
procedural
rules
(35
Ill.
Adm.
Code
105.112(a)), the burden ofproofshall be
on the petitioner.
The burden ofproving that challenged
costs in a claim forreimbursement are reasonable and related to corrective action rests solely on the
applicant for reimbursement.
Salyer, p.
3; Ted Harrison, pp. 3-4 (the owner or operator bears the
burden ofproofto provide an accounting ofall costs).
III.
ISSUE
The issue before the Board is straightforward; namely, whether the costs forcompaction of
backfill material, as submitted by McDonald’sfor reimbursement from the UST Fund, are corrective
action such that the costs may be reimbursed.
The Illinois EPA’s position is that the costs do not
meet the two-prong test for corrective action, and therefore cannot be considered to be
corrective
action.
Accordingly, the costs are not subjectto reimbursement from the UST Fund.
IV.
THE ILLINOIS EPA IS ENTITLED TO SUMMARY JUDGMENT
BASED ON THE FACTS
AND
LAW
A.
Relevant Facts
As set forth in the stipulation, McDonald’s is the owner ofa site located at 1120 West 22~’
Street in Oak Brook, Illinois.
Stipulation, pars. 3, 8.
Following a release from a tank ortanks atthe
site, McDonald’s undertook remediation ofthe resulting contamination.
Stipulation, pars. 7, 8.
As
component of that remediation,
McDonald’s decided to use clean fill soil
that was owned by the
Village ofOak Brook as backfill material.
Stipulation, par.
11,
12.
Following successful sampling to ensure that the clean
fill
materialwas appropriate for use as
back fill, McDonald’s followed through and used the backfill material at the excavation atthe site.
and sufficientnotice that it could file an appeal ofthe decision.
3
As part ofthe process ofusing the backfill material, McDonald’s employed a sheepsfoot
roller to
compact the backfill material.
Stipuation, pars.
18,
19.
McDonald’s described the use ofthe roller
forcompaction as necessary to prevent later voids
and severe settlement ofthe backfill material.
Stipulation, pars. 20-23,
32.
There were
other reasons given for use of the backfill material
by
McDonald’s, including to
assist
Oak Brook in
the disposal ofthe unwanted
soil, and to
save
in
remediation costs.
Stipulation,
pars. 33,
34.
McDonald’s did not
conduct any
in-place density
testing ofthe backfill soil, and did not intend the compactionto be later utilized aspart of a base for
later construction at the site.
Stipulation,
par. 26.
Following a requestby McDonald’s that the compaction costs be reimbursed from the UST
Fund, the Illinois EPA issued a decision on June 23, 2003, denying the costs for reimbursementon
the basis that the owner/operator failed to demonstrate that the costs were reasonable.
Stipulation,
pars.
35,
36; Exhibit
6.
This appeal then followed.
B.
No Genuine Issues Of Material Fact Exist
As
evidenced
by the
submission of the
stipulation, the parties are in agreement with
all
relevant facts needed for the Board to consider while determining whether summaryjudgment
is
appropriate.
The question in this case is not one offact, but rather oflaw.
Specifically, thequestion
is whether the underlying facts surrounding the use of a compaction device, and the costs related
thereto, when placing the backfill material warrant the Board deciding that the compaction was or
was not corrective action.
For that reason, there is no genuine issue ofmaterial fact.
V.
THE COMPACTION COSTS HERE ARE NOT REIMBURSABLE
In appeals involving a challenge ofa denial forcosts associated with compaction ofsoil, the
Board hasfollowed the long line ofrelated and directlyanalogous cases involving appeals ofdenials
4
ofreimbursement ofcosts for replacement ofconcrete at sites in which USTs have been excavated.
The principles, applicable law and rationale in soil compaction and concrete replacement cases are
the same.
Since the costs for soil
compaction here are not corrective action by definition, the costs
are not reimbursable.
A.
The Board Employs A Two-Prong Test And
Looks
To The “Main Intent”
To
determine whether request for reimbursement ofa cost should have been approved for
payment, the Board looks first to determine whether the cost is associated with an activity or task
that
meets
the definition
of corrective action.
Beginning
with
the case
of Enterprise
Leasing
Companyv. Illinois EPA, PCB 91-174 (April 9, 1992),the Board notedthat the proper inquiry to be
made
in
determining reimbursability
is
whether
the activity
meets
both
parts
of the
statutory
definition ofcorrective action.
The first prong ofthe corrective action definitionis whether the costs
were incurred as a result ofaction to stop, minimize, eliminate, or clean up a release of petroleum.
The second prong is
whether the
costs
were
the result of such activities
as tank removal,
soil
remediation and freeproductremoval.
See also, Platoléne 500, Inc. v. Illinois EPA,PCB 92-9 (May
7,
1992), p. 4.
Ifthe activity in
question does not meet both prongs ofthe definitional
standard, then the
activity
is not corrective action.
Accordingly, the activity
is not subject to reimbursement from the
UST Fund.
A further consideration or component ofthe Board’s review process was elucidated
in the
case of Southern Food Park, Inc. v. Illinois EPA, PCB 92-88 (December
17, 1992). There, the Board
reiterated the test of whether an activity was defined as corrective action.
But the Board went on to
also consider the main intent behind the activity in question.
There, the Board decided that themain
5
intent in replacingthe concrete at the site was to restore the area to its previous condition in order to
continue operation as a gas station.
Southern Food Park, p. 4.
Therefore, taking into account the specific factsofthe case, the Board appliesthe two-prong
definition test to,
and also considers the main intent behind, the activity in question.
B.
The Soil Compaction Here Does Not Meet The Corrective Action Definition
The first step is to applythe two-prongtest to the soil compaction activity atthe McDonald’s
site.
The question is whether the soil
compaction costs were
incurred as a result of action to stop,
minimize, eliminate, or clean up a releaseofpetroleum.
Clearly, in this instance, theansweris “No.”
Thesoil compaction here was done for thepurposes ofpreventing voids and settlement atthe site, so
that McDonald’s would not have to later add additional fill material to bring the backfill to grade.
However, that has nothingto do with stopping, minimizing, eliminatingor cleaningup thereleaseof
petroleum.
There
is
no
claim or fact before the Board that the
soil
compaction was in
any way
related to the remediationofthe contamination at the site.
Rather, McDonald’s did not want to have
to expend additional
costs later to
address any voids or settlements ofthe backfill material.
That
goalwas perfectly logical and reasonable, but not rising to the standard set forth in thedefinitiontest.
Put
another way, had McDonald’s not employed the
soil
compaction for which it is
now
seeking reimbursement, was there any claim made by McDonald’s that the release ofpetroleum
would not be stopped, minimized, eliminated orcleaned up?
Of course not, as the compactionhad
nothing to do with remediation ofthe petroleum release, but everything to do with restoring the site
back to a level grade.
It is not that the act ofcompaction was unreasonable in conjunctionwith:the
use ofthe backfillmaterial.
However, that is not the sameas saying that the compaction wasalso a
component ofcorrective action.
6
Although
the compaction does not meet the first prong ofthe definition test, and thus does
not qualif~r
as corrective action,
the second prong should nonetheless be examined as well.
The
second prong of the test is whetherthe costs were the result ofsuch activities as tank removal, soil
remediation and freeproductremoval.
Again, the compaction had nothingto do with tankremoval,
nothing to do with soil remediation, and nothing to do with free productremoval.
It was an activity
solely related
to
the manner in which the backfill was deposited at the
site.
Therefore,
the
soil
compaction activity meets neither ofthe two prongs ofthe corrective action definition test.
C.
The Main Intent For Compaction Was To Restore The Site
As stated in a letter from the consultant retained by McDonald’s to
the Illinois EPA, the
reason behind soil
compaction was to prevent voids and settlements ofthe backfill, which would
necessitate additional cost and laborto McDonald’s.
The intent was not to assist
in the exercise of
remediation atthe site, and no statementwas ever made that the soil compaction wasa component of
any corrective action taken at the
site.
Rather, it was simply done to restore the site backto a level
and firm grade.
The soil compaction therefore was not intended as corrective action.
D.
The Illinois EPA’s Decision Here Is Consistent With Past Cases
There
are
numerous
cases
that
have
been
decided
by
the
Board
involving
claims
for
reimbursement ofconcrete replacement or soil compaction costs.3
Those cases all employ the two-
prong test
for corrective action
in
considering whether the activity
in question was or was not
corrective action.4
3 For example, see: Salyer; Bernard Miller v. Illinois EPA, PCB92-49 (July 9,
1992); Warren’s Servicev. Illinois EPA,
PCB 92-22 (June 4,
1992);
Strube v.
IllinoisEPA, PCB
9 1-205 (May 21,
1992);
and Platolene.
4 One case
inwhich the Board did fmd that roller/compaction costs related to soil compaction were corrective action and
therefore reimbursable was State Bank of Whittington v. Illinois EPA, PCB92-152 (June 3, 1993).
However, that case is
clearly distinguishable from the case at hand, since therethe Petitionermade an argument that the soil compaction was a
necessarycomponent ofthe corrective action at the site.
Also, the Petitionerthere also employed nuclear densitytesting
of the
soil.
Here, as
McDonald’s notes,
no
such in-place
density testing took place, since
the
compaction was not
7
As
discussed earlier, the Southern
Food Park case also
introduced the factor of the “main
intent” in undertaking the activity in question.
In Southern FoodPark, the Board also stated that the
general
rule
(subject to
exception) was that
actions that
occurred prior
to backfilling would
be
considered
corrective
action,
and
actions
that
occurred
after backfilling
would
be
considered
restoration.
The Board noted that the specific
facts of each case should
be the deciding
factor.
Southern Food Park, p. 4.
Another observation by the Board that should be considered here is that the purposes ofthe
UST Fund are narrow.
The Act limits reimbursement from the UST Fund to
those actions which
remediate or stop, eliminate or minimize the contamination.
The UST Fund was not developed to
reimburse operators forthe costs ofrestoration as a resultofremediation atthe site.
Accordingly, the
Board did
not believe that any or all
actions that may contribute to
cleaning up
or containing a
petroleum release
constitute corrective action.
Graham,
p.
9,
citing,
Strube
v. Illinois
Pollution
Control Board, 242 Ill. App. 3d 822, 610 N.E.2d 717
(3rd
Dist.
1993).
Even ifMcDonald’s had in some waymade a claim that the soil compactiondid playa role in
the
corrective action,
such
a
claim
is
not
enough
in
and of itself to justify a
finding
that
the
compaction is corrective action.
Again, McDonald’s made no such claim here, and rightly so since
the compaction was not relatedto corrective action.
However,the Board when reaching its decision
should consider the narrow purpose ofthe UST Fund.
VI.
CONCLUSION
For the reasons stated herein, the Illinois EPA respectfullyrequests that the Board affirmthe
Illinois
EPA’s
decision
to
deny
approval of reimbursement
of the
costs
associated
with
soil
considered
as a component in the
corrective action.
The compaction was done purely to try
tO
avoid later voids and
settlement of the
backfill material, which would
be
akin to using concrete to cover backfill to prevent
later voids
or
8
compaction.
There was
no demonstration
by McDonald’s that the costs
associated with the
soil
compaction were reasonable,
given that the costs were not associated with a task that
is corrective
action.
Since activities that are not corrective action cannot be reimbursed from the UST Fund, the
Illinois EPA’s decision to
deny reimbursement here was appropriate, correct and consistent with
applicable law.
The Illinois EPA respectfully requests that the Board enteran order in favor ofthe
Illinois EPA, affirming the June 23, 2003 decision under appeal.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
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: October 30, 2003
This filing submitted on recycled paper.
settlement.
9
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that
on October 30,
2003,
I served true
and correct
copies of a
MOTION FOR SUMMARY
JUDGMENT,
by placing true
and
correct
copies
thereof
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
postage affixed thereto, upon the following named persons:
DorothyM.
Gunn, Clerk
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
Illinois
Pollution Control Board
James
R. Thompson Center
James R. Thompson Center
100 WestRandolph
Street
100
West Randolph Street
Suite 11-500
Suite 11-500
Chicago, IL 60601
Chicago, IL
60601
Mark D. Erzen
Karaganis,
White &
Magel, Ltd.
414 North Orleans
Street
Suite 810
Chicago, IL6O61O
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Jo~Ki~Th
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)