ILLINOIS POLLUTION CONTROL BOARD
October 16, 2003
TED HARRISON OIL COMPANY,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 99-127
(UST Appeal)
ORDER OF THE BOARD (by G.T. Girard):
On September 2, 2003, petitioner filed a motion for authorization of payment of attorney
fees as costs of corrective action (Mot.). Petitioner asks that the motion be treated as a motion
for modification of the Board’s order entered on July 24, 2003. Respondent has not filed a
response to the motion.
Petitioner argues that under Section 57.8(l) of the Environmental Protection Act (Act)
(415 ILCS 5/57.8(l) (2002)), legal defense funds are reimbursable from the underground storage
tank fund if the owner or operator prevails before the Board. Mot. at 1. Petitioner argues that,
having prevailed before the Board, petitioner is now asking the Board to authorize payment of
legal fees incurred by petitioner in this matter.
Id
. Petitioner attaches an affidavit verifying
attorney fees of $19,421.75.
BOARD’S JULY 24, 2002 ORDER
On July 24, 2003, the Board found that the record did not support the respondent’s
determination denying reimbursement for $116,297.82. Specifically the Board found that the
record did support the petitioner’s request for reimbursement of $2,906.25, for the 24-hour lab
turnaround of the analysis of potentially impacted soil. The Board further found that the record
supported the petitioner’s request for reimbursement of $33,250.07, which represents the denial
of the 15 percent handling charge assessed by Harrison Environmental Solutions (HES). Finally,
the Board found that the record supported the petitioner’s request for reimbursement of
$80,141.50 in charges for site supervision for the activities performed by HES at the site.
DISCUSSION
Section 57.8(l) of the Act provides:
Corrective action does not include legal defense costs. Legal defense costs
include legal costs for seeking payment under this Title unless the owner or
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operator prevails before the Board in which case the Board may authorize
payment of legal fees. 415 ILCS 5/57.8(l) (2002).
Title XVI is known as the Leaking Underground Storage Tank Program. The purpose of Title
XVI includes administering and overseeing the underground storage tank fund, as well as
establishing requirements for eligible owners to seek reimbursement from the underground
storage tank fund. 415 ILCS 5/57 (2002).
The Act clearly authorizes the Board to allow for reimbursement of legal defense costs
when an owner or operator prevails before the Board in seeking payment under Title XVI. The
plain language of the Act states that the Board “may” authorize reimbursement (415 ILCS
5/57.8(l) (2002)), so the payment of legal fees is discretionary, not mandatory. The Board has
reviewed the record in this proceeding to determine if the reimbursement for legal defense costs
is warranted. The Board finds that the reimbursement of legal defense costs is warranted, based
on the facts of this case. Therefore, the motion to modify is granted and the Board directs that
$19,421.75 be reimbursed. The Board will set forth the entire modified order below.
ORDER
The Board reverses the Agency’s denial of reimbursement to Ted Harrison Oil Company
and directs the Agency to provide reimbursement to Ted Harrison Oil Company for:
1. $2,906.25, for the 24-hour lab turnaround of the analysis of potentially impacted
soil;
2. $33,250.07 for the 15 percent handling charge assessed by Harrison
Environmental Solutions;
3. $80,141.50 in charges for site supervision for the activities performed by Harrison
Environmental Solutions at the site; and
4. $19,421.75 in attorney fees for legal defense costs.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/31(a) (2002));
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on October 16, 2003, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
