6—
F,—04
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615
656
REC~V~
CLERK’S OFFICE
HIM
I
r
OFFICE
OF THE
STATE’S
ATTORNEY
~
f57
NorthMain Street
MADISON
COUNTY,
ILLINOIS
STATE Or
~-
1~~za~1sjii11e
.tlFinoi;
62025
pot~u~on
Co(i~rO
William A. Mudge
State
‘s Attarn~y
Voice: 61~692-6250
Faceinnle:
618
656—73J2
June
15,
2004
Illinois Pollution Control Board
Philip Novak, Chainnan
State ofIllinois Center
100 West Randolph, Suite 11-500
Chicago, illinois
60601
SENT
VIA
FAX AND MAIL
RB; PCB No. 01-102
Response to Motion for Summary Judgment and Motion for Summary Judgment
Dear
Chairman Novak and Members ofthe Board:
Enclosed you will
find
the Response to the Motion for SummaryJudgment previously
filed by the Illinois EPA and Petitioner’s Motion for SummaryJudgment. In
addition, I
am forwarding a letter to
the Board from Illinois Senator William R. Haine.
Petitioner does not request oral
argument
in
this matter.
Please note that a copy ofthese documents is being sent by facsimile and mail this date to
Hearing Officer Carol Sudman and Assistant Counsel John Kim.
Thank you for
your
cooperation in this matter.
S/~rely,
/
/
~~t,A~stang&A~ome
CC: Hearing Officer Carol Sudman
Assistant Counsel John Kin)
E—i5-—04:
3:30PM
613
656
73~2:~
RECE~vED
CLERK’S OFFICE
JUN
15
2004
STATE OF ILUNOIS
Pollution
Control Board
BEFORE
THE POLLUTION CONTROL BOARD
OF
TEE
STATE OF ILLINOIS
CASSENS AND SONS, NC.,
)
Petitioner,
)
)
PCB No.
01-102
v.
)
)
ILLNOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
PETITIONER’S
RESPONSE
TO MOTION FOR
SUMMARY JUDGMENT
NOW COMES the Petitioner, Cassens and Sons, Inc, by and through Assistant State’s
Attorney Dean E. Sweet and hereby respectfully responds to
theillinois EPA Motion for
Summary Judgment.
I.
STANDARD
FOR
ISSUANCE AND REVIEW
Petitioner agrees with the illinois EPA that there are no genuine issues
as to any material
facts.
-
II.
BURDEN
OF PROOF
Petitioner agrees with the illinois EPA regarding the allocation ofthe burden ofproof.
III.
ISSUE
Petitioner agrees with the ofthe Illinois EPA that the issue
is whetherthe deductions
imposed in the Agency’s final decision dated November 29, 2000 are correct when taking
into account the underlying facts a~d
law.
Petitioner disagrees
with the arginnent and
conclusions contained in Motion ofthe Illinois EPA.
IV.
THE MOTION 01? ILLINOIS EPA FOR
SUMMARY
JTJDGMENTSHOULD BE DENIED
Petitioner submits that the Illinois EPA is NOT entitled to
SummaryJudgment based upon
the facts and law.
1
A.
Relevant Facts
Petitioner does not disagree with the relevant facts as stated in the Motion for
Summary Judgment.
However, Petitioner notes for the Board’s attention the
Permit for Removal
for Underground Storage Tanks
for Petroleum and Hazardous
Materials signed by Fire Inspector Candela regarding the removal date March
16,
1989 at AR, pp 8-9 which does not indicate that there has been a release of
petroleum or other materials.
B.
The $54,811 in
Costs Plus the Related Handling Charges Are
Reimbursable
The “Pre IIEMA” costs,
as refereed to in the Motion ofthe Illinois EPA, are in fact
reimbursable.
The sole issue ofdisagreement between theparties concerns these
costs and the associated handling charges.
It is Petitioner’s position that
Petitioner complied with Section
73 2.202 orin the alternative wasjustified in not
providing notice as follows:
(a)
PRIOR NOTIFICATION RECEIVED BY THE
ILLiNOIS EPA.
There is no
questionthat the Illinois EPA
and the Petitioner had
the same actual knowledge ofthe fact ofunderground storage
tanks and possible petroleum and hazardous materials releases as
ofMarch
1989.
Petitioner had in fact had applied for and received
a permit forremoval ofstorage tanks and the site had been
inspected and approvedby
Fire Inspector Candela,
now deceased,
AR pp 8-9.
The actions ofPetitioner at that time and thereport of
Candela gave the Illinois EPA actual and substantive knowledge of
the possibility of a release.
Any cleanup efforts instituted by
Petitioner on or after that date literally and substantively place
Petitioner in compliance with the applicable law, rules and
regulations, including
35
Ill.
Adm.
Code sections 732.202 and
732. 606(n).
2
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356
73 12:7
4
(b)
JUSTIFIABLE RELIANCE.
It is clear from the affidavit of
William St. Peters that the Petitioner relied upon the information
contained in the Permit for Removal ofunderground storage tanks
and forpetroleum
and hazardous materials received by the Agency
on or about March 27,
1989 AR, p
8-9.
(Affidavit of William St.
Peters attached to joint stipulation.)
Clearly the information
containedin the report ofFire Inspector Candela of 1989 was
incorrect, there had been a release.
Petitioner began the project in.
good faith and in reliance upon the information which it had
obtained after due diligence on its part.
When the test reports were
returned, indi.cating that the information from the State was
inaccurate,
additional notification was provided to the Agency with
this new information.
In this case, Petitioner was not relying on
the information, advice or expertise ofa third party, but rather
upon information supplied by an official source ofthe State of
Illinois, th.e
Office ofthe State Fire Marshal.
(c)
CASSENS and Sons,
Inc. was in fact the owner ofthe property at
the time ofquestion.
However, the real party ofinterest will be the
Madison County Mass Transit District, the present owner,
which
funded and over sawthis project through a grant from Federal
Governmental sources and local match funds.
The Transit Hub
amid parking lot
which was built at this location serves the
residents ofMadison County, including indigent, aged and
disabled adults, with over 2 millionriders countywide annually.
The purpose of the project was to provide better service to
those in
need
The project was primarily funded from Federal
Governmental sources and was originally budgeted based upon the
information the information available, which included the incorrect
information from 1989. The denial
of
this requestwill cause the
3
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District
to
bear the additional costs ofthe cleanup with no
additional Federal reimbursement.
(d)
The General Assembly has stated that it is the public policy ofthe
State ofIllinois
forthe State Government to encourage and assist
local governments to
adopt and implement environmental
protection programs consistent with the Act,
and in appropriate
cases to
afford financial assistance in preventing environmental
damage.
Paraphrase
415
ILCS
512(iv).
Clearly, the illinois EPA
had actual notice, arid the samenotice
as the Petitioner, ofa
problem at this site from 1989.
In addition, the Petitioner was
justified in relying on the documentation which it had received
from the State of Illinois indicating that no release had occurred at
the site.
To penalize the Petitioner
for
failure
to
give additional
notice and to rely on the actions and deeds
ofthe Office ofthe
State Fire Marshal is contrary to the public purpose of the Act, is
contrary to the facts ofthis case, and is contraryto the law of the
State of Illinois.
V. WAVTER
OF
CLAIM
The Petitioner herebywaives its appeal and any claim for additional reimbursement
of
the $3512.40 relatedto the Compaction and Backfill Density Testing costs.
4
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613
656
7312:3
6
VL
CONCLUSION
Conclusion, for the reason stated herein Petitioner respectfully requests that the Board
deny the Motion for Summary Judgment ofthe EPA, grant the appeal ofPetitioner, and
award the amount of
$54,811.51
plus
applicable reimbursable handling charges related to
such eligible costs.
RESPECTFULLY SUBMITTED,
BY:
_______
Assistant State’s Attorney
157 NorthMain Street
,Edwardsville, illinois 62025
618-296-5353
6l8-296~7001
FAX
5
3:31::PM:
:315
65.5.
T3i2:~
7
CLERK’S
OFACE
JUN
152004
STATE OFILLU\J0!S
PoUution Control
Board
BEFORE THE
POLLUTION
CONTROL
BOARD
OF THE STATE
OF ILLINOIS
CASSENS
AND
SONS, INC.,
)
Petitioner,
)
)
PCBNo.Ol-l02
v.
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
PETITIONER’S MOTION FOR
SUMMARY
JUDGMENT
NOW COMES the Petitioner, Cassens and Sons,
Inc., by and
through Assistant State’s
Attorney Dean E.
Sweet and hereby respectfully moves the illinois Pollution Control Board to
enter
summary
judgment in favor ofthe Petitioner and against to the Illinois EPA. The
ilhinoi.s
EPAhas previously filed a Motion for
Suimnary
Judgment. For consistency and to
assist the
Board, to the extent that the parties agree, the same facts and format are followed in this
Motion.
In support ofthis Motion the Petitioner states as follows:
I.
STANDARD
FOR
ISSUANCE AND REVIEW
Petitioner agrees with the Illinois EPA that there are no genuine issues as to
any
material
facts.
II.
BURDEN
OF PROOF
Petitioner agrees with the Illinois EPA regarding the allocation ofthe burden ofproof.
Ill.
ISSUE
Petitioner agrees
with
the
ofthe
Illinois EPA that the issue
is whether
the deductions
imposed
in the Agency’s final
decision dated
November 29, 2000 are correct when taking
into account theunderlying facts and law.
Petitioner disagrees with the
argument
and
conclusions contained in Motion ofthe illinois EPA.
1
3:3P1v1
:
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IV.
TIlE
PETITIONER IS
ENTITLED TO
SUMMARY
JTJDGMENT
AS A
MATTER OF LAW
Petitioner submits that it entitled
to
Summary
Judgmentbased upon the following
undisputed facts
and
law.
A.
Relevant Facts
Petitioner does not disagree with therelevant facts as stated in the Motion for
Summary
Judgment previously filed by the Illinois EPA.
However, Petitioner
notes for the Board’s attention the Permit forRemoval for Underground Storage
Tanks
for Petroleum and Hazardous Materials
signed by Fire Inspector Candela
regarding the removal thte March
16,
1989 at AR, pp 8-9 which does not indicate
that there has been a release of petroleum or othermaterials.
B~
The
554,811
in Costs, Plus
the
Related Handling Charges Are.
Reimbursable
The “Pie IEMA” costs, as refereed to in the Motion ofthe Illinois
EPA,
are
in fact
reimbursable.
The sole issue ofdisagreement between the parties concerns these
costs
and the associated handling charges.
It is Petitioner’s position that
Petitioner complied with Section 732.202
orin the alternative was justified in not
providing notice as follows:
(a)
PRIOR NOTIFICATION RECEIVED BY TRE ILLINOIS EPA.
There is no question that the illinois EPA and the Petitionerhad
the same actualknowledge ofthe fact of underground storage
tanks and possible petroleum and hazardous materials releases as
ofMarch 1989.
Petitioner had in fact had applied for and received
a permit for removal of storage
tanks
and the site had been
inspected
and
approved by Fire Inspector Candela, now deceased,
AR pp 8-9.
The actions ofPetitioner at that time
and
the report of
Candela gave the Illinois EPA actual and substantive knowledge of
the possibility ofa release.
Any cleanup efforts instimted by
2
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3:30PM:
513
655
732:3
Petitioner on or after that date literally and substantively place
Petitioner in compliance with the applicable law, rules and
regulations,
including
35
111. Adin.
Code sections 732.202 and
732.606(n).
(b)
JUSTIFIABLE RELIANCE.
It
is clear from the affidavit of
William St. Peters that the Petitioner relied upon the information
contained in the Permit forRemoval ofunderground storage tanks
and for petroleum
and
hazardous materials received by the Agency
on or about March 27,
1989 AR, p.
8-9.
(Affidavit ofWilliam St.
Peters attached to joint stipulation.)
Clearly the information
contained in the report of Fire Inspector Candela of 1989 was
incorrect, there bad been a release.
Petitioner beganthe project in
good faithand in reliance upon the information which
it
had
obtained after due
diligence on its
part.
When the test reports were
returned, indicating that the information from the State was
inaccurate, additional notification was provided to the Agency with
this new information.
In this case, Petitioner was not relying on
the information, advice or expertise of a third
party,
but rather
upon infonnation supplied by an official source ofthe
State of
Illinois, the Office ofthe State Fire Marshal.
(c)
CASSENS and Sons,
Inc. was in fact the
owner
ofthe property at
the time of question.
However, the real party ofinterest will be the
Madison County Mass Transit District, the present owner, which
funded and over saw this project through a
grant
from Federal
Governmental sources and local match funds.
The Transit Hub
and parking lot
which was built at this location serves the
residents ofMadison County, including indigent,
aged and
disabled adults, with over
2 millionriders county wide annually.
The purpose ofthe project was to providebetter service
to
those in
3
3—15—34:
3:30PM
:
--.
—
-
-
5:.
r3-I2:~
10
need.
The project was primarily funded from Federal
Governmental sources and was originally budgeted based upon the
information the information available, which included the incorrect
information from 1989. The denial of this request will cause the
District
to bear the additional costs ofthe cleanup with no
additional. Federal reimbursement.
(d)
The General Assembly has stated that it is the public policy ofthe
State ofIflinois for the State
Government to encourage
and assist
local governments to adopt and implement environmental
protection programs consistent with the Act, and in
appropriate
cases to
afford financial assistance in preventing environmental
damage.
Paraphrase
415
JLCS
5/2(iv).
Clearly, the illinois EPA
had actual notice,
and the same notice as the Petitioner, ofa
problem at this site from
1989.
In addition, the Petitionerwas
justified in relying on the documentation which it had received
from the State of Illinois indicating that no release had occurred at
the site.
To penalize the Petitioner for failure to give additional
notice and to-rely on the actions and
deeds ofthe Office of the
State Fire Marshal is contraryto the public purpose ofthe Act, is
contraryto the
facts ofthis case, and is contrary to the law ofthe
State ofIllinois.
V.
WAVIER
OF CLAIM
The Petitioner hereby waives its
appeal and any claim for additional, reimbursement of
the
$3512.40
related to the Compaction and Backfill Density Testing costs.
4
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3:~rip(-.i:
513.
65.5
7312:s
i-i
VI.
CONCLUSION
Conclusion, for the reason stated herein Petitioner respectfullyrequests that the Board
grant this Motion for Summary Judgment, grant the appeal ofPetitioner, and award the
amount
of 554,81 1.51 plus applicable reimbursable handling charges related to
such
eligible costs.
RESPECTFULLY SUBMITTED,
BY:
________
DeanE. Sweet
Assistant
-
State’s Attorney
157 North Main Street
Edwardsville, Illinois
62025
618-296-5353
618-296-7001
5
