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MICK’S GARAGE,
BEFORE THE POLLUTION CONTROL BOARD RECEIVED
OF THE STATE OF ILLINOIS
CLERK’S OFFICE
Petitioner,
~UG182003
)
)
STATE OF ILLINOIS
)
Pollution Control Board
)
vs.
)
FOBNo. 03-126
)
(UST Appeal)
ILLINOIS ENVIRONIVIENTAL
PROTECTION AGENCY,
)
)
)
Respondent.
)
NOTICE
Dorothy M. Gunn. Clerk
illinois Pollution Control Board
State of Illinois Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
600 S. Second Street, Suite 402
Springfield, IL 62704
JohnJ. 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 ofthe Clerk of
the Pollution Control Board a Brief of Petitioner, a copy ofwhich 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
urtis W. Martin, At rney for
Mick’s Garage, P?P(f~fler
6
08/18/02
15:13
SHflIJ flHD MRFTIH ~ 1
NO.152
DC:
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
CLERR’S
OFFICE
MICK’S GARAGE.
Petitioner,
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Po//utj
~J
£1*TE
I1UGj
0~OFCont
32003
ILLINOISI”
vs.
)
)
PCB(USTNo.Appeal)
03-126
ro board
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
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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 of the operations.
In the early 1930’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. Finc~ernotice any spill or leak from
the fuel dispenser. Foliowing~th.etractor 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 dwindiIng, Mick’s decided not to repair the pump or to sell these! 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 ofthe
UST’s removed, Arthur Jacobs, the representative ofthe 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
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D05
tanks. In addition, Mr. Jacobs’ Log ofUnderground 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 of the system. Because the suction pump system
operated by drawing fuel out of the 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 Micks 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 of the 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
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~
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 froth $50000.00 to $10,000.00 or $15,000.00. even when the
information caused the deductible determination ~obe “less confusing”.
Mr. Barrett settled upo1~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
199.
for ~asohne 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 of this 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 579(b) ofthe 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 of the confirmed release on or
after July 28. 1989. In the present case, all the USTs were registered prior to July
28, 1939. Therefore, the $10,000.00 deductible applies. At the very least, the
$15,000.00 deductible applies because the UST’s were registered p~jorto July
28,
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~ciiT
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 ofproof 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 of Petitioner’s
request for the application of a $10,000.00 deducti~1e,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.
Robert E. Shaw
ILABDC No. 03123632
Curtis W. Martin
ILARDC No. 06201592
SHAW & MAI~TTN,P.C.
Attorneys at Law
123 S. 10th Street, Suite 302
P0. Box 1789
Mt. Vernon, Iffinois 62864
Telephone (618) 244-1788
Mick’s
Attorney for
Petitioner
5
08/18/03
15:13
SHAH AND MARTIN
1
10.152
~01
~
8 2003
SHAW & MARTIN, p.c.
~
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A T T 0 F N E
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OII1J~jQflContro/
i~obert
E, Shaw
123 SOUTH
ThNTM
STREET.
S1JJTE
~
Curtis W. Martin
P.O.
80X
~
MT.
VERNON, (LLINOES 62864
TELEP1~IONE: 618/Z44-178~
T~AX: &1&’24~-2588
e-m~i1:
~h~wm~rtin~mvii
itet
August 18, 2003
\TTA FAX 312-814..3669
Ms. Dorothy Gunn
Clerk of Illinois Pollution Con~olBoard
State of Illinois Center
100 W. Randolph, Suite 11-500
Chicago, IL 60601
RE:
Mick~Garage vs. Illinois Environmental
Protection~Agency; PCB No. 03-126
Dear Ms. Gunn:
Pursuant to the hearing officer’s Hearing Report, enclosed is a faxed copy of
Petitioner’s Brief in the above cause. Tht~original ofthe Brief will follow by mail.
Upon receipt of the original and copy of the Brief, please return a file-marked copy
to me in the enclosed se1-addressed, stamped envelope. Thank you for your
assistance in this matter.
Very truly yours,
CWMJcm
Enclosures
cc:
Duane Doty
Carol Sudman
John Kim
John McCracken
Curtis W