~ECE~Va~
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
REPUBLIC
BANK OF CHICAGO,
as
Trustee of Trust # 2234,
ARISTOTLE
HALIKIAS,
LENA HALIKIAS,
MICHAEL
HALIKIAS,
NIKOLAS HALIKIAS,
NOULA
HALIKIAS,
and
PATRICIA HALIKIAS,
as
beneficiaries of Trust # 2234,
Complainants,
JAN
7
2004
(~4IWMJ~
PO~U110~
cONTROL
SOARI)
NOTICE OF FILING
To:
Joseph Freudenberg,
Esq.,
SUNOCO, INC.
(R&M),
10
Penn Center
-
17th
Floor,
1801
Market Street, Philadelphia,
PA 19103
PLEASE TAKE NOTICE that on January 7, 2004, we filed with
the
Clerk of the
Illinois
Pollution Control Board (‘Board”), 100 West Randolph Street,
James
R.
Thompson Center Suite
11-500,
Chicago,
Illinois,
60601-3218, an original and nine (9)
copies of Complainants’
REPLY
IN
SUPPORT OF
COMPLAINANTS’
MOTION
FOR
RECONSIDERATION OR ALTERNATELY CLARIFICATION;
a copy of said
motion is attached
hereto and hereby served
upon you.
Andrew H.
Perellis
SEYFARTH SHAW
LLC
55 East Monroe Street
Suite 4200
Chicago,
Illinois 60603
(312) 346-8000
REPUBLIC
BANK
OF
CHICAGO,
as
Trustee of Trust # 2234,
ARISTOTLE
HALIKIAS, LENA HALIKIAS,
MICHAEL
HALIKIAS, NIKOLAS HALIKIAS,
NOULA
HALIKIAS,
and PATRICIA HALIKIAS,
as
beneficiaries of Trust #2234
By:
One of Their Attorneys
THIS
FILING IS MADE ON
RECYCLED PAPER
)
)
)
)
)
)
)
)
)
)
PCB-04-69
(Citizen’s Suit UST Enforcement)
V.
SUNOCO, INC.
(R&M),
Respondent.
)
CIII
10625002.1
AECE~V~D
BEFORE THE
ILLINOIS
POLLUTION CONTROL BOARD
cJAN
7
2004
REPUBLIC
BANK OF
CHICAGO, as
)
CONTROL
BOARD
Trustee of Trust # 2234,
ARISTOTLE
)
HALIKIAS,
LENA HALIKIAS,
MICHAEL
)
FIALIKIAS,
NIKOLAS HALIKIAS,
NOULA
)
PCB-04-69
HALIKIAS,
and
PATRICIA HALIKIAS,
as
)
(Citizen s Suit UST Enforcement)
beneficiaries of Trust # 2234,
)
)
Complainants,
)
)
v.
)
)
SUNOCO, INC.
(R&M),
)
Respondent.
)
REPLY
IN SUPPORT OF COMPLAINANTS’ MOTION
FOR RECONSIDERATION OR
ALTERNATELY CLARIFICATION
Complainants,
Republic Bank of Chicago, et al., by their counsel, submit their
reply memorandum in support of the motion
pending before the Pollution Control
Board
to reconsider that portion of its
Order dated
December 4, 2003, which struck as frivolous
“the allegations
in count IV of
the
Complaint
relating to violations ofthe regulations
of
the
Office of State Fire Marshal.” Leave to file this reply was
granted by the
Hearing
Officer on January 6, 2004.
In its filed response opposing Complainants’
motion,
Respondent
SUNOCO,
INC.,
does
not dispute that violations of the regulations of the State Fire Marshal
may
be relevant to Complainants’ claims and could support a violation of the Environmental
Protection Act.
See
~
2-4 of Complainants’
Motion. For any of the
reasons set forth
in
those paragraphs,
no allegation of the Complaint is frivolous.
CR1
10625002.1
THIS FILING
IS MADE ON
RECYCLED PAPER
SUNOCO
does challenge paragraph
5 of Complainants’
Motion by asserting that
the
Board lacks authority to directly enforce violations of Fire Marshal’s regulations
because they were adopted under the Gasoline Storage Act, 430 ILSC 15.
Even if this
were so, for the reasons stated in the
Motion, the allegations of such violations still
would not be frivolous.
However,
a disciplined analysis of the
Environmental
Protection
Act shows that SUNOCO’s contention is incorrect.
In support of its
limited contention, SUNOCO misstates the holding of the Board
in
a
prior case,
Vogue Tyre
& Rubber Co.
v.
Office of State Fire Marshal,
PCB 1995-78
(Dec.
5, 2002). That case held only that the
Board had no authority to review
tank
registration
decisions of the State
Fire Marshal.
SUNOCO
provides
no authority that holds that all of the
Fire Marshal’s
regulations promulgated
pursuant to the Gasoline Storage Act are unenforceable in an
action before the
Board.
No such authority exists, and indeed, this proposition
is
contradicted by the express language of the
Environmental
Protection Act (“Act”). The
Act specifically provides that certain
regulations of the Fire Marshal
—
those pertaining to
tank removal, reporting and response action
—
are part of the “Illinois Leaking
Underground Storage Tank Program,”
a
program created by the legislature under the
Environmental Protection Act.
See
Section 57.3 of the Act (the “Illinois Leaking
Underground Storage Tank Program,” is established to be “administered by the Office
of the State
Fire Marshal and the
Illinois
Environmental
Protection Agency”). The Act
does
not compel the
Fire Marshal to promulgate
regulations under the authority of the
Act, but instead mandates,
in
Section
57.5(b), that removal of a
UST “be carried out in
accordance with
regulations adopted by the Office of State Fire Marshal.”
Similarly,
2
CR110625002.1
Section 57.6(a)
does not obligate the Fire
Marshal to promulgate
rules, but instead
mandates that UST owners comply “with
all
applicable statutory and regulatory
reporting and response requirements.” (Emphasis added.)
Accordingly, although the Fire
Marshal
may have adopted
regulations pursuant
to the Gasoline Storage Act,
compliance with regulations governing
UST removal,
reporting or response remains
a part of the “Illinois Leaking Underground Storage Tank
Program” established
under the
Environmental
Protection Act. One’s failure to comply
with the UST response requirements, i.e., the
Fire Marshal’s release identification,
investigation
and corrective action regulations, constitutes
a violation of the Act. Such
failure necessarily is
enforceable under the
Act in an action before the Board pursuant
to the
Board’s Section 31(d) authority to adjudicate not only a violation of the Act,
but
also “any rule or regulation thereunder.”
WHEREFORE,
Complainants respectfully ask the
Board to reconsider its Order
dated December 4, 2003, and grant to Complainants the relief sought
in their Motion.
Respectfully Submitted,
REPUBLIC
BANK OF
CHICAGO,
as
Trustee of Trust # 2234,
ARISTOTLE
HALIKIAS, LENA HALIKIAS,
MICHAEL
HALIKIAS, NIKOLAS HALIKIAS,
NOULA
HALIKIAS,
and
PATRICIA HALIKIAS,
as
beneficiaries of Trust # 2234
Andrew
H.
Perellis
By:
___________________________
SEYFARTH SHAW
LLC
~i~o
Their Attorneys
55 East Monroe Street
Suite 4200
Chicago,
Illinois
60603
(312) 346-8000
3
CH1
10625002.1
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
REPUBLIC
BANK OF
CHICAGO,
as
)
Trustee
of Trust # 2234,
ARISTOTLE
)
HALIKIAS,
LENA HALIKIAS,
MICHAEL
)
HALIKIAS,
NIKOLAS
HALIKIAS,
NOULA
)
p
-
4
9
HALIKIAS
and
PATRICIA HALIKIAS
as
)
CB
0
6
(Citizen s
Suit UST
Enforcement)
beneficiaries of Trust # 2234,
)
)
Complainants,
)
)
v.
)
)
SUNOCO,
INC.
(R&M),
)
Respondent.
)
AFFIDAVIT OF SERVICE
The undersigned, an attorney, states that he caused
a
copy of the attached
(i)
REPLY IN SUPPORT OF COMPLAINANTS’ MOTION FOR RECONSIDERATION OR ALTERNATELY
CLARIFICATION,
and
(ii)
NOTICE OF FILING,
to be served upon the following by first-class
mail, from
55 East
Monroe
St.,
Chicago,
Illinois
60603, this 7th day of January, 2004:
Joseph Freudenberg,
Esq.
SUNOCO,
INC.
(R&M)
10 Penn Center-
17th Floor
1801
Market Street
Philadelphia, PA 19103
Andrew H.
Perel
is
SUBSCR~,BEDTO AND SWORN BEFORE ME
THIS ~
DAY OF JANUARY, 2004
NO
ARY PUBLIC
OFFICIAL
SEAL
~
KRISTINE
D.
ANDERSON
NOTARY PUBLIC, STATE
OF ILLiNOiS
2005
CR1 10625002.1