BEFORE

THE

ILLINOIS POLLUTION

CONTROL

BOARD

OF THE

STATE OF ILLINOIS

~

,~

~

Co;~i~J

~yd

VOGUE TYRE

& RUBBER

COMPANY,

)

)

Petitioner,

)

)

PCBNo.96-10

v.

)

(UST Appeal)

)

ILLINOIS

ENVIRONMENTAL

PROTECTION)

AGNECY,

)

Respondent.

)

NOTICE

OF FILING

TO:

Ms. Dorothy Gunn,

Clerk of the Board

illinois Pollution Control Board

State ofIllinois Building

100 West Randolph Street

-

Suite 11-500

Chicago, Illinois

60601

BradleyP. Halloran

Hearing Officer

Illinois Pollution Control Board

State ofillinois Building

100 W. Randolph Street

—

Suite 11-500

Chicago, Illinois

60601

John J. Kim

Illinois Environmental Protection Agency

Division ofLegal Counsel

1021 North Grand Avenue East

Springfield, Illinois

62794-9276

PLEASE

TAKE

NOTICE

that

on

July

30,

2003,

we

filed

with

the

Office

of the

Clerk of the

Pollution Control Board Vogue Tyre & Rubber Company’s

Response to Motion for Summary Judgment, a

copy ofwhich is attached hereto andhereby servedupon you.

VOGUE TYRE & RUBBER COMPANY

David M. Allen

JeffreyE. Schiller

Schuyler, Roche & Zwirner

By:

_____________________

130 EastRandolph, Suite 3800

One of its Attorneys

Chicago, IL

60601

David M. Allen

(312) 565-2400

---

CERTIFICATE OF SERVICE

I, Jeffrey E. Schiller, one of the attorneys for Vogue Tyre & Rubber Company, certify that I caused

copies of the foregoing Response to Motion for

Summary Judgment to be

served by hand-delivery before

the hour of4:30 p.m., to:

Ms. Dorothy Gunn, Clerk of the Board

Illinois Pollution Control Board

JamesR. Thompson Center

100 West Randolph Street

-

Suite 11-500

Chicago, Illinois

60601

Bradley P. Halloran

Hearing Officer

illinois Pollution Control Board

JamesR. Thompson Center

100 W. Randolph Street

—

Suite 11-500

Chicago, Illinois

60601

and by depositing same in the United

States Mail, first class postage prepaid, at One Prudential Plaza,

130

East Randolph Street, Chicago, Illinois, to:

John J. Kim

illinois Environmental Protection Agency

Division of Legal Counsel

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois

62794-9276

on this

30th

day of July 2003.

---

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD

-

OF THE STATE OF ILLINOIS

VOGUE TYRE

& RUBBER COMPANY,

)

)

Petitioner,

)

)

PCBNo.96-10

V.

)

(UST Appeal)

)

ILLINOIS ENVIRONMENTAL PROTECTION)

AGNECY,

)

Respondent.

)

PETITIONER’S RESPONSE TO MOTION FOR SUMMARY JUDGEMENT

Petitioner, Vogue Tyre & Rubber Company (“Vogue”),

hereby responds to

the Motion for

Summary for

Summary

Judgment

(the

“Motion”)

filed

by

the

Illinois

Environmental

Protection

Agency (“IEPA”) as follows.

Introduction

By and large, the essential facts

pertinent

to this case are

not in

dispute.

Vogue previously

owned

two

properly registered

10,000

gallon

underground

storage

tanks

(“USTs”)

at its

facility

located at 4801

GolfRoad

in Skokie, Illinois (the “Site”).

Vogue removed these USTs in

1986.

In

1994,

Vogue

discovered,

for the

first

time,

releases of gasoline

from

the

USTs,

which had the

potential to

cause

significant damage

to property and

human

health.

Vogue promptly reported this

discovery

to

the

Illinois

Emergency

Management

Agency

(“IEMA”),

and remediated the

Site.

Vogue petitioned

the Office of the State Fire Marshall (“OSFM”) and the IEPA

for reimbursement

for the costs expended for remediation.

Both have denied Vogue’s request.

What is truly ironic is that Vogue’s requests for reimbursement have been turned down for

reasons completely contradictory with one another.

The

OSFM

deregistered Vogue’s

USTs, and

thus claimed that Vogue was not entitled to reimbursement, based

on regulations adopted after the

---

release

and registrations had occurred.

This Board upheld the OSFM’s

decision.

Now,

the IEPA

argues

that

Vogue

is

not entitled

to

reimbursement from

the Leaking

Underground Storage Tank

(“LUST”) Program because the registrations

and release

occurred before the

effective date of the

LUST Program.

(IEPA Br. p.5).

It is plain to

see that

Vogue is

being unfairly treated.

Vogue acted

promptly in

the public

interest, and

has been told by state agencies

that

its

efforts

are

not

eligible

for reimbursement on

completely opposite grounds.

There

is

no

principled basis

for these dual positions.

The IEPA’s

Motion should be denied.

Argument

Although the IEPA purports to make three separate arguments in

support ofthe Motion,

in

reality, these arguments boil down to

one

—

although Vogue’s

claim and remediation

efforts

occurred well after enactment ofthe LUST Program, the fact that Vogue’s USTs

were removed

prior to the enactment

date precludes application ofthe statute.

This argument fails.

First,

the

1IEPA

argues

that

this

Board’s

decision in

Chuck

and

Dan’s

Auto

Service

v.

Illinois Environment Protection

Agency (PCP

92-203) (“Chuck

and

Dan’s”) establishes that the

law to be

considered was the law in place

at the time

that Vogue removed its USTs

and not the

law in effect when remediation occurred.

However, the Chuck and

Dan’s case simply does not

stand

for that

proposition.

Chuck

and

Dan’s

involved

an

attempt

by

the

IEPA

to

utilize

an

amendment

to a regulation enacted after remediation to preclude recovery of remediation costs.

The

Board rejected

this

attempt.

Here,

there was

no

new law

enacted

after remediation

-

-

rather, remediation

occurred after the

law had

been changed.

Thus,

Chuck and

Dan’s provides

no support

for the IEPA’s position.

---

The IEPA quotes

the Chuck

and Dan’s

case to

the

effect

that

“when

a

statute

involves

‘prior activity or a

certain course of conduct...the applicable

law is

the statue.in place at the time

of tank removal”.

This

quote, however,

leaves out

a critical previous sentence in the Opinion

which

states

that

“the applicable

law

is

the

statute

in

effect

on

the

~j~yof the

filing

of the

application

fbr reimbursement.”

(Chuck

and

Dan’s, p.6,

fh.

2

(emphasis

added))

The

key

to

reconciling these two quotes is

to detennine what constitutes “prior activity or a certain course of

conduct”

as

defined by

the

Board.

Here,

removal

of the

USTs

by

Vogue

does not

fit

this

definition.

What Chuck

and

Dan’s holds

is

that the agency cannot prevent a responsible party

from

recovery

by

changing

the

rules

after

remediation.

It

does

not

hold

that

remediation

performed after the change (where discovery and

submission of claim were also after the change)

is not eligible for reimbursement.

Second,

the

IEPA

asserts

that

public

policy

precludes

the

application

of the

LUST

Program to

this

case.

Specifically, the IEPA

argues

that

“to allow for the

submission of these

reports by Vogue Tyre would

effectively reward them for conduct and activity”

(EPA

Br. p.6),

(emphasis added)).

This assertion is

completely and totally offthe mark.

There is nothing in the

record to

suggest that Vogue acted belatedly

—

indeed, the evidence is that

Vogue acted promptly

and in the public interest.

Vogue does not seek a reward rather, it seeks statutory reimbursement

for actions taken in the public interest and as required by law.

Nor would

application of the LUST

Program to

this

case allow owners or operators of

USTs

to

“backdoor”

themselves

into

eligibility for compensation in

the

future as suggested

by

the

IEPA.

If a release was, or should have been discovered, and was not reported or remediated,

an

owner or operator of USTs

is

subject to substantial penalties under state law, and

significant

exposure from private suits.

There is no

basis for assuming, orbelieving, that business will seek

---

to piggyback on Vogue’s eligibility for LUST

Program reimbursement, nor would the

JEPA

be

required to

approve such applications if they were forthcoming.

This

is a unique case, which will

not

seek a precedent antithetical to public policy.

Finally, the IEPA asserts that application of the LUST Program to

Vogue “would increase

Vogue

Tyre’s

liability

for past

conduct...and

would

impose

new

duties

on

Vogue

Tyre...”

(IEPA

Br.

p.7).

This

vague

and

unspecific

claim provides

no

basis

for the IEPA’s

Motion.

There is

no

enumeration ofthe duties

and liabilities which would

now be present.

There

is

no

discussion as to whether Vogue has already fulfilled the new duties supposedly imposed by

and

through the remediation and

its submissions to EPA.

It is

not enough for the EPA to

label the

LUST Program statutes

as “not intended

...

to be applied retroactively” without providing these

specifics.

Conclusion

For the foregoing reasons, Vogue asked that the Board enter an

order denying the IEPA’s

Motion for SummaryJudgment and set

the matterfor hearing.

Respectfully submitted,

VOGUE

TYRE &

RUBBER

COMPANY

By:___________

One

ts Attorneys

David M. Allen

Jeffrey B.

Schiller

Schuyler, Roche & Zwirner, P.C.

One Prudential Plaza

130

E. Randolph Street, Suite 3800

Chicago, Illinois

60601

(312)