~ECE~VED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
SWIF-T FOOD MART,
)
JUN
072004
STATE OF ILUNOIS
Petitioner,
)
Pollution Control Board
)
v.
)
PCBO3-185
)
(UST
appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
‘AGENCY,
)
)
Respondent.
)
MOTION
FOR AUTHORIZATION OF
PAYMENT
OF
ATTORNEYS’ FEES AS COSTS
OF CORRECTIVE ACTION
NOW COMES Petitioner, SWIF-T FOOD MART, through its undersigned attorney, and
pursuant to 415 ILCS 5/57.8(1), submits its
Motion forAuthorization ofPayment ofAttorneys’
Fees as Costs of CorrectiveAction.
In support of this Motion, Petitioner states as follows:
1.
By its Opinion and Order dated May 20, 2004, this Board reversed the Illinois
Environmental Protection Agency’s denial of $13,808.86 in
reimbursement costs and application of
a second $10,000.00 deductible to
Swif-T Food Mart associated with remediation ofleaking
underground storage tanks at its facility, thereby awarding Swif-T Food Mart an additional
$23,808.86 in reimbursement.
2.
$23,808.86 constituted the full amount that Petitioner s
ught in the reimbursement
appeal.
Accordingly, Petitioner has fully and completely prevailed in its action
before this Board
seeking payment under Title XVI of the Illinois Environmental Protection Act.
3.
Section
57.8(1)
ofthe Environmental Protection Act, 415 ILCS 5/57.8(1), states that
“cjorrective
action does not include legal
defense costs.
Legal defense costs include legal costs
for seeking payment under this Title unless the owner or operator prevails before the Board in
which case the Board may authorize payment oflegal fees.”
4.
Petitioner, haying prevailed before this Board in its action seeking payment under
Title XVI, now requests that this Board authorize the payment of legal fees incurred by Petitioner in
this matter from
the leaking underground storage tank fund.
This motion is being made within 35
days following this Board’s order granting Petitioner relief herein, and forjurisdictional purposes
Petitioner requests that this Board treat this motion as one for reconsideration or modification, as
expressed on page
12 ofthis
Board’s May 20, 2004 order.
This motion
is being made at this time
because until this Board entered
its May 20 order, Petitionerhad not yet prevailed before the Board,
and
so was not authorized to
seek these amounts.
See Ted Harrison Oil Co.
v. IEPA, PCB
1999-
127; slip op.
(Oct.
16, 2003) (Board Order granting Sec. 57.8(1) attorney fees under this procedure,
under similar circumstances).
5.
Attached to and incorporated herein is the Affidavit of Stephen F. Hedinger
Verifying Attorneys’ Fees, documenting under oath the attorneys’ fees and costs being sought in
this matter, which total $11,291.37.
WHEREFORE, Petitioner, SWIF-T FOOD MART, requests that this Board authorize the
payment from the leaking underground storage tank fund the amount of$11,291.37
in attorneys’
fees and costs to Petitioner, SWIF-T FOOD MART, pursuant to 415 ILCS 5/57.8(1).
Respectfully submitted,
Swif-T Food Mart,
Petitioner,
By its attorney,
HEDINGE
AW OFFICE
~
~.Hedin~1t~~
Hedinger Law Office
2601 S. Fifth St.
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
2
STATE OF ILLINOIS
)
)
SS
COUNTY OF SANGAMON
)
AFFIDAVIT OF STEPHEN F. HEDINGER VERIFYING ATTORNEYS’ FEES
Affiant, Stephen F. Hedinger, being first duly sworn, states as follows:
1.:
The statements made
herein are
based
upon
my
personal knowledge,
and
I
am
competent to testify
hereto.
2.
I am
an attorney duly
licensed to practice law in
the State of Illinois; and I am the
attorney of record for Petitioner Swif-T Food
Mart in
the
case entitled,
Swif-T
Food Mart
v.
Illinois Environmental Protection Agency, PCB 03-185.
3.
This affidavit is
being filed with the Board in
support of Petitioner’s Motion for
Authorization of Payment of Attorneys’
Fees as Costs of Corrective Action.
4.
Affiant, Attorney Stephen
F.
Hedinger, started work
on
this case
in June
2003,
and has represented Petitioner since that time.
His total time for this
case, representing Petitioner
in this Fund reimbursement matter, including
paralegal time, is $10,862.50.
7.
Attached as Exhibit A
is
an
accurate summary of the legal
work done,
and legal
fees
and costs
incurred,
with respect to
this
matter.
The summary has been taken from actual
invoices of the attorney and
paralegal involved, and thus reflects actual work performed and fees
and costs incurred.
All time relates solely to
this LUST fund reimbursement case (PCB 03-185).
The summary reveals the date the work was performed, the description of work performed, the
amount
of time
spent,
and
the total
fees
and
costs
incurred.
The “time keeper”
reflects
the
attorney
or paralegal
(SF11
means
Stephen
F.
Hedinger,
and the
initials
ERA
are those
of
Affiant’s
paralegal,
Elaine
Agnew);
all
paralegal
work
was
conducted
under
the
direct
supervision and authority of the Affiant.
The total number of hours incurred includes time spent
drafting
pleadings,
reviewing
the
record,
discussing
the
case
with
the
client
and
its
representatives, preparing for and
participating in the hearing, drafting the closing brief and reply
brief, reviewing Respondent’s
briefs and pleadings, reviewing hearing officer and Board orders,
and participating in all other litigation activities, including status
conferences.
The total
number
of attorney
hours
expended was 60.20,
and
the total
number of paralegal hours expended was
14.30, which were reasonable and necessary for the issues
involved.
The hourly rate charged by
me was
$165.00,
and
the
hourly
rate charged by
my
paralegal was
$65.00.
These rates
are
commensurate with the prevailing rate for general legal
services
in
Springfield,
Illinois for the
years represented,
and are well below market rates for attorneys concentrating
in environmental
matters
in
Illinois,
which
generally
are about double the amount actually charged in
this
case.
Accordingly the total amount of legal
fees incurred and sought herein, $10,862.50,
is reasonable,
legitimate and appropriate.
Further Affiant sayeth not.
Subscribed and sworn to
before me, a Notary
Public in
and for said County and State, this
~
day of June, 2004.
OFFICIAL
SEAL
ERIN N.
WYSS
NOTARY PUBUC, STATE OF IWNOIS
MY
cOMMISSION EXPIRES 9.13.2006
My Commission Expires:
R-x~
-~c~i~
Notary
2
LUST
Fund
Reimbursement
Date
Timekeeper
Description
Time
Total
6/25/03
SFH
Review
file materials & begin work
on petition
for review
0.50
$82.50
7/1/03
ERA
Review
file; draft petition
for review
2.20
$143.00
7/2/03
ERA
Revise draft petition for review; conf SFH
re
same
0.80
$52.00
~.•
7/2/03
SFH
Conference with
EA re petition for review;
review draft petition & review
file;
revise drat
petition
0.90
$148.50
7/3/03
SFH
Revise,
finalize & file
petition for review
0.50
$82.50
7/17/03
SFH
Receive/Review
PCB
order re acceptance of
petition & scheduling
0.10
$16.50
7/25/03
SFH
Receive/Review Swif-T hearing officer order
0.10
$1 6.50
7/30/03
SFH
Telephone
hearing officer &
IEPA
atty Kim
re
scheduling and
record; ltr client draft & file
waiver of decision deadline
0.50
$82.50
9/17/03
SFH
Telephone conf call
IEPA atty
& hearing officer
re status; draft
decision deadline waiver & ltr
Jake
0.30
$49.50
9/24/03
ERA
Receive/Review Hearing Officer Order; check
IPCB website to
see if record
was submitted
0.20
.
$1 3.00
9/25/03
SFH
Receive/Review hearing officer order;
message
IEPA atty Kim re status of record
0.20
$33.00
9/26/03
SFH
Telephone IEPA atty Kim
re record
0.20
$33.00
10/21/03
SFH
Telephone atty Kim; telephone hearing
officer;
draft
add’l extension
of decision deadline
0.20
$33.00
10/26/03
SFH
Receive/Review hearing
officer order & forward
to client
0.10
$16.50
1 2/1 5/03
SFH
Review
file & record
0.50
$82.50
1 2/22/03
SFH
Review record;
prep for status conf call; attend
telephonic status & sched.
Hrg.
0.50
$82.50
1 2/30/03
SFH
Telephone client re status of existing
case
0.10
$1 6.50
1/6/04
SFH
Telephone hearing officer re
hearing date &
pretrial
conf date
0.10
$16.50
1/8/04
SFH
Receive/Review hearing notice & hearing officer
order
0.10
$16.50
1/13/04
SFH
Telephone
client re hrg & status
& strategy
0.10
$16.50
1/29/04
SFH
Review
file & prepare for final pretrial; t/c
hearing officer &
IEPA atty Kim
0.50
$82.50
2/3/04
SFH
Review
file re prep for hrg.; t/c Jake
&
Karl
2.50
$41 2.50
2/4/04
ERA
Review
file for upcoming hearing; draft not to
appear
for
EPA
personnel
4.20
$273.00
2/4/04
SFH
Conference with
EA re record & hrg
prep.; work
on witness list;
finalize & file; t/c
EPA atty Kim
1 .00
$1 65.00
2/5/04
ERA
Draft not.
of errata/refiling of witness list
0.20
$1 3.00
2/5/04
ERA
Review
case law re handling
charges
1 .20
$78.00
2/5/04
SFH
Telephone IEPA atty Kim & conf call Kim &
hearing
officer re prep for
hrg.; review file; t/c
Kim; voicemail client
1.10
$181.50
Hedinger Law Office
Page
1
6/4/04
LUST
Fund
Reimbursement
2/6/04
ERA
Research re budget details
2.10
$1 36.50
2/6/04~
SFH
Telephone client;
rec & review add’l record
pages from
Kim
0.40
$66.00
2/9/04
ERA
Work on
list of documents missing from record
0.90
$58.50
2/9/04
SFH
Telephone atty Kim re pre-hrg issues
0.50
$82.50
:
2/10/04
SFH
Letter to atty Kim
re hearing witnesses; add’l
prep for hrg.;
rec
&
review add’l record docs
from
Kim; t/c client; to Libertyville & add’l hrg
prep.
7.70
$1,270.50
2/11/04
SFH
Meeting with client & add’l hrg prep
& record
review;
participate
in
hrg; return Spfld
9.00
$1 ,485.00
2/24/04
SFH
Receive/Review hearing transcript from
PCB
0.20
$33.00
3/1 5/04
SFH
Review
Swif-T file & work
on closing
brief
8.50
$1 ,402.50
3/1 6/04
SFH
Draft closing brief; revise,
finalize & file
6.80
$1
,1 22.00
4/7/04
SFH
Receive/Review
EPA response brief
1 .20
$1 98.00
/1 5/04
SFH
Work on reply (begin);
gather materials
0.20
$33.00
4/20/04
SFH
Work on
reply
7.00
$1
,1 55.00
4/21/04
SFH
Final
work
on reply; draft
motion
for leave to
file;
revise,
finalize & file
all
5.00
$825.00
5/20/04
ERA
Draft motion for attorney fees
2.50
$1 62.50
5/20/04
SFH
Conference with EA re case decision; t/c
(voicemail)
to client re same;
conference with
EA re motion for attorney fees
0.30
$49.50
5/24/04
SFH
Telephone
IPCB re status of decision; t/c client
0.10
$1 6.50
5/27/04
SFH
Receive/Review PCB
order; revise draft of
motion for attorney fees and
research re
same
2.90
$478.50
5/28/04
SFH
Research
(add’l)
re motion for attorney
fees
0.30
$49.50
Total
74.50
$10,862.50
Hedinger Law
Office
Page 2
6/4/04
Date
Description
Cost
7/3/03
Filing
fee for Petition for Review
$
75.00
2/10/04
Mileage to/from
hrg
$
1 83.00
2/11/04
Hotel charges
for 2/11/04
$
93.24
4/9/04
Online research charges for
March 2004
$
1 9.86
4/22/04
Federal Express charges for shipment to
IPCB on 4/22/02
$
17.14
5/10/04
Online research
charges for April
2004
$
40.63
Total
$
428.87
~ECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN
072004
SWIF-T FOOD MART,
)
STATE OF ILLINOIS
Petitioner,
Pollution Control
Board
)
v.
)
PCBO3-185
)
(UST appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
)
)
Respondent.
)
NOTICE OF FILING AND PROOF OF SERVICE
To:
Bradley Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
John Kim
Division ofLegal Counsel
Illinois Environmental Protection Agency
1021
N. Grand Ave. East
P.O.
Box 19276
~Springfield,IL 62794-9276
The undersigned certifies that an original and nine copies of Petitioner’s
Motion for
Authorization for Payment ofAttorney’s Fees as Costs of Corrective Action were served upon
the
Clerk ofthe Illinois Pollution
Control Board and one copy was served upon the hearing officer and
the above party ofrecord in this case via first class
U.S.
Mail
by
enclosing same
in
envelopes with
postage fully prepaid,
and
J~y
depositing
said
envelopes
in
a
U.S.
Post
Office
Mail
Box
in
Springfield, Illinois on the ~-day
ofJune,
2004.
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
THIS FILING IS SUBMITTED ON RECYCLED PAPER
