BEFORE THE ILLINOIS

POLLUTION CONTROL BOARD

Re

OF THE

STATE OF ILLINOIS

OLe?~iVeo

VOGUE TYRE & RUBBER COMPANY,

)

JUN ~

‘~2Oo4

Petitioner,

~

8:h~NO~

v.

)

PCB

No. 96-10

(UST Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

NOTICE

OF FILING

TO:

Illinois Pollution Control Board

Attn:

Ms. Dorothy Gunn, Clerk of the

Board

Attn:

Ms. Adaleen Hogan, Assistant Clerk of the Board

State of Illinois

Building

100

West Randolph Street

-

Suite

11-500

Chicago, Illinois

60601

Illinois

Pollution Control Board

Afin:

Bradley Halloran

Hearing

Officer

State of Illinois Building

100 West Randolph Street

—

Suite 11-500

Chicago,

Illinois 60601

Illinois Environmental Protection Agency

Division of

Legal Counsel

Attn:

John J.

Kim,

Esq.,

Special Assistant Attorney General

2200 Churchill Road

Post Office Box

19276

Springfield,

Illinois

62794

PLEASE

TAKE

NOTICE

that

on

June

23,

2004,

we

filed

with

the

Clerk

of

the

Illinois

Pollution Control

Board,

Vogue Tyre

&

Rubber Company’s Post-Hearing

Brief,

a copy

of which is

attached hereto

and hereby served upon you.

Pursuant to

35111. Admin.

Code

§

101.103(d), these

filings are submitted on recycled

paper.

---

VOGUE lYRE & RUBBER COMPANY

By:_________

ne of its Attorneys

David

M, Allen

Jeffrey

E.

Schiller

Schuyler,

Roche & Zwirner,

P.C.

One Prudential Plaza,

Suite 3800

130 East Randolph

Street

Chicago, Illinois

60601

(312) 565-2400

-2-

---

CERTIFICATE OF SERVICE

I,

the undersigned,

one

of the attorneys for Vogue lyre

&

Rubber

Company,

certify

that

I

caused copies of the foregoing Notice of FIling and Post-Hearing Briefto be served

to:

Illinois Pollution Control

Board

Attn:

Ms.

Dorothy Gunn, Clerk of the Board

Attn:

Ms. Adaleen Hogan, Assistant Clerk of the Board

State of Illinois Building

100 West Randolph Street

-

Suite 11-500

Chicago,

Illinois

60601

Illinois Pollution Control

Board

Attn:

Bradley Halloran

Hearing Officer

100 West Randolph

Street

—

Suite 11-500

Chicago, Illinois 60601

Illinois

Environmental Protection

Agency

Division of Legal Counsel

Attn:

John J. Kim,

Esq.,

Special Assistant Attorney General

2200 Churchill Road

Post Office Box

19276

Springfield,

Illinois

62794

by depositing

same in the

United

States

Mail,

first class postage prepaid,

at One Prudential Plaza,

130 East Randolph Street,

Chicago, on this 23rd day of June, 2004.

a4zc

~i4

-3-

---

REcaiv

BEFORE THE

ILLINOIS

POLLUTION CONTROL BOARD

CLERK.s OFr~P

OF THE STATE OF ILLINOIS

JUN

252994

VOGUE TYRE

& RUBBER

COMPANY,

)

STATE OF

Petitioner,

PolIuu0~

Cot

v.

)

PCB

No. 96-10

(UST Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

PETmONER’S POST-HEARING

BRIEF

Petitioner,

Vogue

Tyre

&

Rubber

Company

(‘Vogue”),

by

and

through

its

attorneys,

hereby submits

its

Post-Hearing

Brief

subsequent

to

the hearing

conducted

on

May

12,

2004

before the Illinois

Pollution Control Board

(the “Board”)1:

INTRODUCTION

From 1965 to

1995,

Vogue

owned

a facility

located

at

4801

Golf Road

in Skokie,

Illinois

(the “Site”) (AR.

73).

At various times,

two

10,000 gallon

underground storage tanks

(“USTs”)

used

to

store gasoline were

located

at the site

and

registered

with the Office of the

State

Fire

Marshall

(the “OSFM”).

Vogue removed these tanks in

19862.

(AR.

76).

Prior

to

the removal

of

the

USTs,

Vogue discovered

an

unexplained

loss

of

gasoline

from

the

tanks.

This

discovery occurred

as

a

result

of a

routine

measurement

of the levels of

gasoline in the tanks.

Vogue

immediately hired

the

P.J.

Hartmann

Company

(“Hartmann”),

an

environmental expert,

to determine whether the gasoline had

leaked

into

the ground.

Hartmann

reached the conclusion that

the

gasoline

had

not leaked

into

the

ground,

but most

likely

had

1

On May

10,

2004,

the IEPA

filed

an Administrative Record in this matter.

References to

the Administrative

Record

will be

designated as

“(AR.

j.”

Attached to

this

Post-Nearing

Brief is an

Appendix which

contains

pertinent pleadings

and

portions of the evidentiary

record which

has been made

part of the proceedings herein.

References to this Appendix

will

be designated as “(App.

_J.”

2

Vogue notes

incorrectly

in a letter dated

June

3,

1988 to the OSFM

that the

USTs were

removed in the spring of

1985.

(AR.

4).

Vogue later corrected this

statement in its

Eligibility and

Deductibility Application (AR. 76).

---

been

stolen.

(App.

47).

Vogue

relied

on

Hartmann’s determinations in filing

a

claim for theft

of

property with its insurance company.

(App. 48).

Vogue’s

insurance company paid

this claim.

In

1994, Vogue discovered,

for the first time, that there was a release of gasoline at the

site.

(A.R.

107-108).

Vogue

promptly

reported

this

incident

to

the

Illinois

Emergency

Management

Agency

(the

“IEMA”).

(App.

2).

Vogue then

immediately hired

Leyden Environmental

(“Leyden”)

to

do further investigation—Leyden

determined that the gasoline from

the USTs

had,

in

fact,

been

leaked into the ground and had the potential to cause damage to the environment and public health

and

welfare.

On

February

23,

1995,

Vogue

commenced

corrective

action

to

remediate

the

contamination at the Site so as to attain compliance with state and

federal environmental laws

and

regulations.

(App.

2).

In January

1995, Vogue

submitted

an

Eligibility

and

Deductibility Application

to

the OSFM

seeking

a

determination that

Vogue was

eligible for

reimbursement for

its

remediation

of the

Site

under

the

Leaking

Underground

Storage

Tank

Program

(the

“LUST

Program”)

and

the

Underground

Storage

Tank

Fund

(the

“UST

Fund”).

(A.R.

71-81).

On

February

1,

1995,

the

OSFM

denied

Vogue’s

request

for

a

determination

of

eligibility

stating

that

the

USTs

were

not

properly

registered,

and

thus Vogue

was

ineligible

for

reimbursement.

(App.

19).

The OSFM

asserted

that

the

USTs were

deregistered

by

an Administrative Order

(the “Order”)

issued

by the

OSFM on

February

17,

1993.

(App.

21).

The purported

basis for the Order was

that although the

tanks were

properly registered

in

1986, they were

removed

prior to

the passage of an

amendment

to the registration rules which became effective in

1967.

(App.

21).

Thus,

the OSFM

determined

that Vogue’s USTs were not

eligible for

reimbursement from

the UST

Fund

because they were

no

longer registered.

(App.

21).

On March 6,

1995,

after

it had commenced remediation efforts to the Site,

Vogue appealed

the OSFM’s Order to the

Board.

(App.

19).

On

December 5,

2002, the Board found

in favor of the

OSFM on the grounds that the Order was not reviewable by

the Board.

(App.

19-23).

The

Board

held that because the Order stated that

it had to be

appealed to the Circuit Court of Cook County

-2-

---

within ten

days,

and

because Vogue

had

not

so

appealed,

no

further review

was

allowed under

statute.

(App.

19-23).

In

so

doing,

the

Board

rejected

Vogue’s

argument

that

the

statutory

predicate to

the Order’s

language pertaining

to appeal

applied gjj~yto

situations where

a hearing

was

held

prior

to the issuance

of the

Order,

a

situation not

present here,

On

February 26,

2003,

Vogue

appealed

the

Board’s decision

to

the

Illinois

Appellate

Court

for

the

First District

(Vogue

Tyre

&

Rubber

Company

v.

Office

of

the

State

Fire

Marshal,

Appellate

Court

No.

03-0521),

asserting that the Board erred

in

ruling that

it was barred from reviewing

the OSFM’s decision.

That

case is still pending.

From

March

to

May

1995,

Vogue

submitted

the

following

reports

to

the

IEPA

seeking

reimbursement underthe LUST Program:

•

Vogue’s 20-Day Report, 45-Day Report,

Site Classification Completion Report

and Corrective Action Plan

(A.R.

97-224);

•

Vogue’s Corrective Action Completion Report (App.

13);

and

•

Vogue’s Site Classification

Work Plan and Budget (App.

13)

(collectively, the

“Reports”).

On

June

15,

1995,

the

IEPA

issued

a

letter denying

Vogue’s

Reports on the grounds that

the USTs at issue were

not subject to

regulation

and

remediation

by the

IEPA because they were

removed before the effective date of the LUST Program.

(App.

13-15).

The IEPA further declared

that the decision was the

IEPA’s “final decision” for the purposes of appeal.

(App.

13-15).

On

July

16,

1995,

Vogue

filed

a

Petition

for

Review

of

the

IEPA’s

final

June

15,

1995

decision.

(App.

1-16).

On

July

20,

1995,

the

Board

entered

an

Order

accepting

this

matter

for

hearing.

(App.

17-IS).

Since

the

time

that

Vogue

filed

its

Petition,

Vogue

has

recovered

$520,000

from

its

insurance carrier for the cost of reimbursement.

Vogue thus seeks $264,000 from the IEPA in this

action,

plus the attorneys’ fees incurred

in the prosecution

of this matter.

In

2003,

the

IEPA

moved

for

summary

judgment

in

this

matter.

(App.

24-34),

The

gravaman of the

IEPA’s Motion

was that Vogue cannot

recover from the LUST Program because:

-3-

---

(a) the OSFM

has

determined that Vogue’s

USTs

were

not

properly

registered;

and

(b) the

USTs

were

removed before the effective date of the LUST Program.

(App.

24-34).

After the

motion was

fully briefed,

the

Hearing

Officer denied

the

IEPA’s

motion,

and

set the

matter

for

hearing.

(App.

41-42).

On

May

12, 2004

a written evidentiary

record was

entered into evidence,

a

stipulation was

read

orally into

evidence,

and

the

record

was

closed.

(App.

43-55).

The

record

and

stipulation

make

it

clear that Vogue did not know of the release until

1994,

and that this fact is disputed.

(App.

47-48).

The Hearing Officer then ordered

post-hearing briefing.

(App. 56-80).

The

IEPA’s

argument

remains

the

same

at

the

pleading

stage,

namely,

that,

for

timing

reasons,

the USTs

were

not registered

at

the relevant time,

and

the

statute does

not

cover pre-

enactment

releases.

The

issue

as

to

whether

the

USTs

were

properly

registered

is

before

the

Illinois Appellate

Court,

and

need not be

discussed

here.

Thus, this

Post-Hearing

Brief will focus

solely

on

the

issue

of whether the LUST Program

applies to

a

pre-enactment release where the

release was not

(and

could

not reasonably

have

been)

discovered

until

after the effective date of

the statute.

ARGUMENT

I.

VOGUE

HAS COMPLIED WITH THE ELIGIBILITY REQUIREMENTS FOR THE LUST

PROGRAM.

The LUST Program is titled under the Illinois Environmental Protection Act (415

ILCS 5/1,

et seq.).

Section 57.9 of the Act sets forth the eligibility requirements for access to the UST Fund

under the LUST Program

and states in pertinent part:

The Underground Storage Tank Fund shall be accessible by

owners

and

operators

who

have

a

confirmed

release

from

an

underground

storage

tank

or related

tank

system

of

a

substance

listed

in

this

Section.

The

owner

or

operator

is

eligible

to

access

the

Underground

Storage Tank

Fund

if the

eligibility

requirements

of

this Title are satisfied and:

(1)

Neither

the

owner

nor

the

operator

is

the

United

States

Government.

-4-

---

(2)

The

tank

does

not

contain

fuel

which is

exempt

from

the

Motor

Fuel Tax Law.

(3)

The costs were

incurred as a result of

a confirmed

release

of any of the following substances:

(A)

“Fuel”, as defined

in

Section

1.19

of the Motor Fuel

Tax Law.

(B)

Aviation Fuel.

(C)

Heating oil.

(D)

Kerosene.

(E)

Used

oil

which

has

been

refined

from

crude

oil

used

in

a motor vehicle,

as defined in Section

1.3 of

the Motor Fuel Tax Law.

(4)

The owner or operator registered the

tank

and

paid

all fees

in

accordance

with

the

statutory

and

regulatory

requirements of the Gasoline Storage Act.

(5)

The

owner

or

operator

notified

the

Illinois

Emergency

Management

Agency

of

a

confirmed

release,

the

costs

were

incurred

after

the

notification

and

the

costs

were

a

result

of

a

release

of

a

substance

listed

in

this

Section.

Costs

of

corrective

action

or

indemnification

incurred

before

providing

that

notification

shall

not

be

eligible

for

payment.

(6)

The

costs

have

not

already

been

paid

to

the

owner

or

operator

under

a

private

insurance

policy,

other

written

agreement, or court order.

(7)

The costs

were

associated

with

“corrective

action”

of

this

Act.

(415 ILCS 5/57.9).

The

issue

of

whether

the

USTs

were

properly

registered

is,

as

noted

above,

a

subject

currently being resolved in the Appellate Court.

In all other respects, there is no dispute that Vogue

complied with the above-referenced language of Section

57.9.

The

Act

does

not

state

that

it

applies only

to

releases

occurring

after

its

enactment date

(1986).

Rather,

it speaks

of costs incurred

after notification

of a

confirmed release.

Although

the

USTs

were

removed

in

1986,

Vogue

did

not discover the releases

until

1994.

Upon

discovery,

Vogue

immediately took

steps to remediate

the

Site

in

compliance with the

applicable state

and

federal

statutory

and

regulatory

reporting

and

response

requirements.

(App.2).

Among

other

-5-

---

things,

Vogue immediately

informed the

IEMA of the

release

and then

initiated

corrective action

in

consultation

with

the

IEMA.

(App.2).

Vogue’s

corrective

action

costs

were

incurred

after

this

notification.

(App.2).

II.

PRINCIPLES OF STATUTORY CONSTRUCTION SUPPORT THE APPLICATION OF

THE LUST PROGRAM

TO THIS CASE.

As

noted,

the LUST

Program

does

not

limit

its

application

to

releases

occurring

after

its

enactment

date.

The best

that

can

be

said

for

IEPA’s

position

is

that

Section

57(a)

does

not

explicitly

state

that

it

applies

to the precise

situation

present

here, j~ where

a

release

occurred

prior

to the effective date of the LUST

Program,

but is discovered

(and

corrective action

is taken)

after

the LUST

Program was

enacted.

However,

established

principles

of statutory

construction

make

it clear that Section 57.9 applies

in this case.

In construing

a

statute,

courts must

give

effect to the

intent of the

legislature.

(Antunes v.

Sookhkitch,

588

N.E.2d

1111,

1114(111.

1992);

People v.

Steppan, 473 N.E.2d

1300,

1303(1985)).

To

ascertain legislative

intent,

it

is

proper

for

the court

not

only

to

consider

the language

of

the

statute,

but also to

look to the “reason and necessity

for the

law, the evils

to be remedied,

and

the

objects

and

purposes

to

be

obtained.”

4

In

construing

statutes,

the

court

presumes

that

the

legislature did not intend absurdity,

inconvenience or injustice.

(People v. Steppan, 473 N.E.2d

at

1303.)

Where the meaning of a statute is not clear from the statutory language itself, the

court

may

also

properly

consider

the

purpose

of

the

enactment.

(Antunes

v.

Sookhkitch,

588

N.E.2d

at

1114.)

Statutes should be

construed to give

them a reasonable meaning and to prevent

absurdity

and hardship.

(j~.

at 1115.)

Section

512(a)(iv)

of the Act states

in pertinent part:

(a)

The General Assembly finds:

(iv)

that

it is the obligation

of the

State

Government

to

manage

its

own

activities

so

as

to

minimize

environmental

damage:

to

encourage

and

assist

local

governments

to

adopt

and

implement

-6-

---

environmental-protection

programs

consistent

with

this Act; to

promote the development of technology

for

environmental

protection

and

conservation

of

natural

resources;

and

in

appropriate

cases

to

afford

financial

assistance

in

preventing

environmental

damage

(v)

that

in order

to

alleviate the burden on

enforcement

agencies, to

assure that all interests

are given

a full

hearing,

and

to

increase

public

participation

in

the

task

of

protecting

the

environment,

private

as well

as

governmental

remedies

must

be

provided

(Emphasis

added).

415

ILCS 5/2 (a)(iv),

(v) (Emphasis added).

Section 5/57 of the Act sets forth the intent and purpose

of the LUST Program

and states:

Intent

and

purpose. This Title shall

be known

and

may be cited

as

the

Leaking

Underground

Storage

Tank

Program

(LUST).

The

purpose of this Title

is,

in

accordance with the requirements

of the

Hazardous

and

Solid

Waste

Amendments

of

1984

of

the

Resource

Conservation

and

Recovery

Act

of

1976

and

in

accordance

with

the

State’s

interest

in

the

protection

of

Illinois’

land

and

water

resources:

(1)

to

adopt

procedures

for

the

remediation

of

underground

storage

tank sites

due to

the release

of

petroleum

and

other substances

regulated

under this Title from

certain

underground storage

tanks or related tank

systems;

(2)

to

establish

and

provide

procedures

for

a

Leaking

Underground

Storage

Tank

Program

which

will

oversee

and

review

any

remediation

required

for

leaking

underground

storage

tanks,

and

administer

the

Underground

Storage

Tank

Fund;

(3)

to

establish

an

Underground

Storage

Tank

Fund

intended

to

be

a

State

fund

by

which

persons

who

qualify

for

access

to

the

Underground

Storage

Tank

Fund

may

satisfy

the

financial

responsibility

requirements

under

applicable

State

law

and

regulations;

(4)

to

establish

requirements

for

eligible

owners

and

operators

of

underground

storage

tanks

to

seek

payment

for

any

costs

associated

with

physical

soil

classification,

groundwater

investigation,

site

classification

and

corrective

action

from

the

Underground

Storage

Tank

Fund;

and

(5)

to

audit

and

approve

corrective

action

efforts

performed

by

Licensed

Professional

Engineers.

(415 ILCS 5/57).

In

this

case,

Vogue

complied

with

the

mandates

of

the

LUST

Program

by

immediately

notifying the IEMA of the release and initiating corrective action.

(App. 2).

Vogue acted promptly

in

-7-

---

accordance

with

the laws

in

effect

at the time of the remediation

and

the

best

interests

of

public

health and

welfare.

In

ChemRex

v.

Pollution

Control

Board,

628

N.E.

2d

863

(1M

Diet.

1993),

the

Illinois

Appellate

Court

explained

the

purpose

of

the LUST

Program

in

words

directly applicable

to

this

case.

Then,

the

Court

found

the

purpose

of the

Illinois

Environmental

Protection

Act

to

be

“to

afford

financial

assistance

in

preventing

environmental

damage

...

(and

to

increase

public

participation

in

the

task

of protection the environment

...“

(626

N.E.

2d

at 966).

The Court

then

found that

ChemRex had “completed with

...

statutory and rules elections by

immediately notifying

the state of the leaks and initiating corrective action.

(Id.)

The Court concluded that:

ChemRex,

having

performed

every

task

required

by

the

statute

and

rules

to

prevent

environmental

damage

in

anticipation

of

financial

assistance,

should

have

been

granted

reimbursement.

To

deny

it

such

assistance

would

defeat

the

very

spirit

and

purpose

of this enactment.

Therefore,

in

order

to

effectuate

the

purpose of the Environmental Protection Act as well as to

avoid an

unjust

consequence,

we

find

that

a

reasonable

time

frame

for

reimbursement will

be

read

into

the statute.

Accordingly,

we

hold

that

eligibility

for

Fund

reimbursement

in

this

case

should

have

been

determined

at

the

time

when

underground

storage

tank

owners

and

operators

notified the state

agencies

of

underground

storage tank leaks.

ChemRex v. Pollution

Control Board,

626

N.E.

2nd

at 964

(Emphasis added).

It

cannot

be

clearer that

Section

57.9

applies to

notifications

and

corrective

actions

taken

after the date of enactment.

Vogue’s eligibility for Fund reimbursement should be determined as of

1994, the date it notified the state of releases from the USTs.

This

is not a case which

could justify

a

public policy

exception

to such

a rule, ~

if a

company deliberately

held off on

notification

and

corrective action

so as to wait until after statutory enactment to gain eligibility.

Rather,

it is a

case

where Vogue

undeniably

acted

promptly

and

in the

public

interest

upon

discovery

of

a

release.

The evidentiary

record

is

undisputed

that Vogue

did

not know that there was

a release

until

1994

because

it

relied

on

an

expert

inspection

to

that

effect.

The

parties

stipulated

that

Vogue’s

-8-

---

witnesses would

testify

to

this

fact,

and

the

IEPA

offered

no

contradictory testimony.

Thus,

the

statute’s purpose can

only be served by permitting Vogue to recover from the UST Fund.

CONCLUSION

WHEREFORE,

Petitioner Vogue Tyre &

Rubber Company respectfully requests that the

Pollution Control

Board:

a.

find that the IEPA’s final decision

of June

15,

1995 was erroneous

and

order the

IEPA to approve the Reports

submitted

by Vogue to

the IEPA;

and

b.

order the IEPA to:

(I)

acknowledge that all of Vogue’s corrective

actions are eligible for

reimbursement from the UST

Fund;

and

(ii)

begin

processing Vogue’s Reports

so that Vogue can

be reimbursed for

the costs of its corrective action.

Respectfully submitted,

VOGUE

TYRE

& RUBBER COMPANY

By:

~4~ci~4

One of its Attorneys

David

M. Allen

Jeffrey

E. Schiller

Schuyler, Roche

& Zwirner,

P.C.

One Prudential

Plaza,

Suite 3800

130 East Randolph Street

Chicago,

Illinois

60601

(312) 565-2400

403822

-9-

---

BEFORE

THE

ILLINOIS

POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

VOGUE TYRE

&

RUBBER COMPANY,

Petitioner,

v.

)

PCB

No. 96-10

(UST Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

APPENDIX

TAB No.

EXHIBIT

DATE

1

Petition for Review of IEPA Final

Decision

7/18195

2

Order of the Board

7/20/95

3

Opinion and

Order of the

Board

(Vogue Tyre

&

Rubber

Company v.

Office of State

Fire Marshall, PCB 95-78)

12/5/02

4

Notice

of Filing

and Respondent’s Motion

for Summary

Judgment

6/20/03

5

Notice

of Filing

and Petitioner’s

Response to

Motion for

Summary Judgment

7/30/03

6

Order of the Board

9/4/03

7

Transcript of Proceedings

5112104

8

Hearing

Report

5/20/04

405334

---

Exhibit

1

---

JUL

181P~.5

/

BEFORE THE ILLINOIS POLLUTION CONTROL

110

OLLuf~kAr~2.J

VOGUE TYRE

& RUBBER

COMPANY,

an

)

illinois

corporation,

)

)

Petitioner,

)

)

PCBNo.96-

10

V.

)

(UST

--

Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

PETITION FOR REVIEW OF IEPA FINAL DECISION

Vogue Tyre

& Rubber Company

(“Vogue Tyre”),

by its

attorneys, pursuant to 415

ILCS

*

5/57.8(1) hereby

petitions

the Illinois Pollution

Control Board

(the

“Board”)

for a

hearing

to contest a final decision by

the Illinois Environmental

Protection Agency

(“IEPA”).

EPA

has

“denied” various

reports submitted

to

it by Vogue Tyre

and has

declined

to

issue a

no

further rernediation letter.

Vogue Tyre’s reports

concern

remediation of contamination

from underground

storage tanks

(“USTs”)

formerly

used to

store gasoline

at a facility

which

until

recently

was

owned by

Vogue Tyre.

Vogue Tyre requests

the Board

to

reverse IEPA’s

final decision and

to require IEPA to approve Vogue Tyre’s reports.

In support of its Petition, Vogue Tyre states

as

follows:

1.

Until July 7,

1995,

Vogue Tyre owned the facility at 4801

Golf Road

in

Skolde, illinois.

The facility,

which

is located in

Cook County,

has been

assigned

number 2-

021982 by

the Office of the Illinois State Fire Marshall

(“OSFM”).

At various

times, a total

of four lISTs have been

located

at the facility and registered

with OSEM.

One UST was a

1

---

8,300 gallon

gasoline UST, another

UST was a

560

gallon

used

oil

UST,

and

two USTs

were

10,000

gallon

gasoline liSTs.

2,

In 1993,

Vogue Tyre

reported

releases

from

the

8,300

and 560

gallon

liSTs

located

at the facility.

These releases

were

assigned

Incident No.

93-1858

by

the illinois

Emergency Management

Agency

(“IBMA”).

On May 6,

1993

the

560 gallon used oil

liST

was

removed

from the

facility.

On

August 26,

1993

the 8,300 gallon gasoline UST was

also

removed.

Vogue Tyre

sought,

and

received,

reimbursement

from the UST Fund

for the

corrective action

in

1993.

In approving the eligibility of the

1993

corrective action,

OSEM

indicated,

on

January

4,

1994,

that

Vogue Tyre

“may be

eligible to

seek payment of

corrective action

costs

associated

with

the

two

10,000

gallon

gasoline

tanks ifit is

determined

that

there

has

been a release

from one or more of these tanks.”

A

true and

correct copy

of the

January

4,

1994

determination

letter is attached

hereto as

Exhibit A and

incorporated herein by

reference.

3.

On

December 7,

1994, Vogue Tyre

reported

releases

of gasoline from the two

10,000

gallon gasoline USTs

on the

facility

to IBMA,

IBMA

assigned

Incident No.

94-2751.

to

these releases.

On February

23,

1995,

after this

notification

to

the IBMA and in

compliance

with

415

ILCS

§

5/57.7(e)(l),

Vogue Tyre commenced corrective action.

This

corrective action

is

substantially completed,

although some final corrective action

is ongoing

at

the

time

of filing of this

Petition.

4.

During corrective action it became apparent

that

a

certain

amount of the

gasoline contamination resulted front the 8,300

gallon UST that

was

removed in

1993.

Although much of the contamination was located

in the area

where the 10,000 gallon

-2-

2

---

gasoline

liSTs were

located,

the 8,300

gallon

UST

had connected

underground product lines

which extended into

the

contaminated

area.

In

addition, some gasoline contamination

(which

was separate

from

the

other contamination)

was

located on

the opposite side

of the facility

from

the

10,000

gallon

USTs.

This contamination

could

not have

resulted from

the

10,000

gallon

USTs

and

must have

resulted

from

the

8,300 gallon

UST.

As

mentioned

above,

corrective action

in regard

to

the 8,300

gallon

UST has already been

determined

to be

subject to

reimbursement by

the UST

Fund.

5.

As a

result

of the

determination

that some

contamination

resulted

from the

8,300 gallon UST (and

thus

related

to Incident No.

93-1858), Vogue Tyre

submitted various

reports

to

IEPA

under

both

the

94-2751

and

93-1858 incident numbers.

On

April 3,

1995,

IEPA received

Vogue Tyre’s

20-Day Report,

45-Day

Report,

Site Classification

Completion

Report,

and Corrective

MUon

Plan.

IEPA

received

Vogue

Tyre’s Corrective

Action

Completion Report

on May 2,

1995.

On

May

19,

1995,

IEPA received

VogUe

Tyre’s Site

Classification

Work

Plan and

Budget.

6.

On June

15,

1995,

by

letter

sent

via telecopier,

IEPA

“denied” Vogue

Tyre’s

reports,

declaring

that Incident No.

94-2751

is

“not subject

to 35 illinois

Administrative

Code (MC),

Part

732

or 35

IAC, Part 731.”

In

the

June

15

letter,

IEPA further

declared

that

the decision

was IEPA’s

“final decision”

for thepurposes of appeal.

A

true and

correct

copy

of the

IEPA Final

Decision Letter

is

attached hereto

as Exhibit B

and incorporated

herein

by

reference.

In

a telephone conversation

on July

19,

1995,

Bur

Filson

of

IEPA

indicated that

Vogue

Tyre’s reports were

“denied”

because the contamination

at issue was

associated with

tanks removed

in

the

mid-

1980s.

-3-

3

---

7.

LEPA’s final decision

is

wrong.

A

certain

amount

of the release of gasoline at

the facility resulted from

the 8,300

gallon gasoline

UST that was

removed in

1993.

The

release was duly reported,

and

corrective action

in

regard

to

that UST has

already

determined to be reimbursable by the liST Fund.

Thus,

the costs

of Vogue ‘lyre’s recent

corrective action to remediate contamination

resulting from the 8,300 gallon liST should

be

reimbursable.

Moreover,

because

the two

10,000 gallon liSTs

were properly

registered

on

May 6,

1986 (prior to

their

removal),

a

February 7,

1993 OSFM aziministrative

order

indicating that the two

10,000

gallon

liSTs “are)

not or are

no longer registrable”

because

of their removal

date

has no

application because

the

two USTs had already

been

registered

prior to

that date.

Therefore,

the costs of Vogue Tyre’s recent corrective action

to temediate

contamination resulting from

the 10,000 gallon

liSTs should

also be reimbursable.

8.

This is Vogue Tyre’s second appeal to the Board

relating

to

the facility.

With

respect to Incident No.

94-2751,

Vogue Tyre

submitted

to OSFM an

Eligibility and

Deductibility Application dated December

27 and 28,

1994.

In

the application,

Vogue ‘lyre

indicated that all USTs at the facility had experienced releases.

In

a

February

1,

1995 letter,

OSFM responded

to the application

by citing

415 ILCS

§ 5157.9

and 430 ILCS

§

15/4 and

noting that the two

10,000 gallon USTs were ineligible because

they

were removed prior to

September 24,

1987.

On March

6,

1995,

Vogue Tyre appealed OSFM’s February

1.

determination,

and that appeal was assigned

No. 95-78.

9.

Since making its proper notifications

to IEMA,

Vogue Tyre

has

undergone

substantial corrective action.

This corrective action is consistent with the remediation

-4-

4

---

purposes of both

the illinois Environmental

Protection

Act

and

the Illinois Gasoline

Storage

Act,

and

Vogue Tyre’s

corrective action

costs

should

be

reimbursed by

the

UST

Fund.

10.

Therefore,

the

main

issue before

the

Board

is

whether IEPA

erred

in

denying

Vogue Tyre’s reports.

Since

it

has

already been

determined

that corrective action

in regard

to the 8,300 gallon liST

is

reimbursable,

one sub-issue is

what

costs

of the recent

corrective

action related

to that

liST.

A

second

sub-issue is

whether

IEPA

erred

in denying Vogue

Tyre’s reports

because

the

two

10,000 gallon

USTs

were

removed

in

the mid-1980s.

11.

Vogue

Tyre

requests a hearing

before

the Board

in

Chicago,

and

requests

that

the Board:

(1)

determine

that

IEPA

‘s

final decision of June

15,

1995

was erroneous

and

order IEPA

to approve the various

reports

submitted by Vogue

Tyre IoIEPA;

and

(ii)

order IEPA to (a) acknowledge that

all

of Vogue Tyre’s corrective

action

is eligible for reimbursement from

the liST Fund,

and

(b) begin

processing

Vogue Tyre’s

reports

so

that Vogue

Tyre

can be reimbursed

for

the costs

of

its corrective action.

Respectfully

submitted,

VOGUE TYRE

&

RUBBER

COMPANY

Dated:

July

18,

1995

By:__________________________

One

of

its

Attorneys

H

S

---

211-765.0969

Olvitisas

ARSON *NESTIGrnOPI

211-7U4$u

DOILER and PRESSURE

VESSEL WETY

217-76246)6

FIRE

PREVENTION

t17-flS-41~4

MAKAGEMENT

SEFMCES

217762.9689

*IPIRS

2114U.-i0S

PERSONNEL

2177*54009

PERSONNEL STANDARDS

and

EDUCATION

2tZfl24312

PETROLEUM

and

cHEMIcA’

WEVY

2175SU7V

PUBLIC #NFORMAflO$

217-7*5-1021

Office

of

the

State

Fire

Marshal

CERTIFIED HAIL

—

RECEIPT REQUESTED # P 435 173 603

January 4.

1994

Jerry Vestweber

Vogue lyre Center

4801 H. Golf. Rd.

Skokie, XL

60077

In re:

Facility I1~.2——021982

lENA

Incident

No. 93—1858

Vogue Tyre Center

4801

H. Golf Rd.

Skokie, COOK CO..

IL

Dear Mr. Vestweber:

The

Reimbursement

Eligibility

and

Deductibility

Application.

received

on

12—21—93

for

the

above

referenced

occurrence

has

been

reviewed.

The

following

determinations

have

been

made

based upon this review.

It

has been determined that you are eligible to seek corrective

action

costs

In

excess

of

$10,000.

The

costs

must

be

in

response

to the occurrence

referenced

above

and

associated with

the following tanks:

Eligible Tanks

Tank #3

—

8.300 gallon gasoline

Tank #4

—

560 gallon used oil

The

Illinois

Environmental

Protection

Agency

packet of Agency

bifling

forms

for submitting

payment.

1035 Stevenson Drive

•

Springfield,

Illinois 62703-4259

8

will

your

send

you

a

request

for

G.nemI Ottla.

---

An

owner

or

operator

is

eligible

to

access

the

Underground

Storage Tank Fund if the eligibility requirements are satisfied:

1.

Neither

the

owner

nor

the

operator

Is

the

United

States

Government;

2.

The

tank

does

not

contain

fuel

which

is

exempt

from

the

Motor

Fuel Tax Law;

3.

The costs were incurred

as

a result of a confirmed release

of any of the following substances:

“Fuel’,

as defined

In Section 1.10 of the Motor Fuel

Tax Law

•

Aviation fuel

Heating oil

Kerosene

Used

oil,

which has

been refined from crude oil

used

in a motor

vehicle,

as defined

irs

Section

1.3 of the

Motor Fuel

Tax

Law.

4.

The

owner, or

operator

registered

the

tank

and

paid

all

fees

in

accordance

with

the

statutory

and

regulatory

requirements of the Gasoline Storage Act.

5.

The

owner

or

operator

notified

the

Illinois

Emergency

Management

Agency of

a

confirmed

release,

the

costs

were

incurred

after

the

notification

and

the

costs

were

a

result

of

a

release

of

a

substance

listed

in

this

Section.

Costs

of

corrective

action

or

indemnification

incurred

before

providing

that

notification

shall

not

be

eligible for payment.

6.

The

costs

have

not

already

been

paid

to

the

owner

or

operator

under a

private

insurance

policy,

other

written

agreement, or court order.

7.

The costs were associated with “corrective actions.

This

constitutes

the

final

decision

as

it

relates

to

your

eligibility and

deductibility.

He

reserve

the

right

to

cha.nge

the deductible

determination

should

additional

information that

would change the determination become available.

An underground

storage

tank owner

or operator

may

appeal

the

decision to

the

Illinois

Pollution

Control

Board

(Board),

pursuant

‘to

Section

57.9

(c)

(2).

An

owner

or

operator

who

seeks

to

appeal

the

decision

shall

file

a.

petition

for

a

hearing

before

the Board

within 35 days

of

the date of mailing of the final

decision

(35

Illinois Administrative Code 105.102(a)

(2)).

9

---

For

information

regarding

the

filing

of

an

appeal,

please

contact:

Dorothy Gunn,

Clerk

Illinois Pollution Control Board

State of Illinois Center

100 West Randolph, Suite 11-500

Chicago, Illinois

60601

(312)814—3620

The follówing• tanks are also listed

for this

site:

Tank #1

—.

10,000 gallon gasoline

Tank #2

—

10,000 gallon empty

Your

application

indicates

that

there

has

not

been

a

release

from

these

tanks.

You

may

be

eligible

to

seek

payment

of

corrective

action

costs

associated

with

these

tanks

if

it

is

determined

that there

has

been

a

release

from one

or more

of

these

tanks.

Once

it

is

determined

that

there

has

been

a

release

from

one

or

more

of

these

tanks

you

may.

submit

a

separate

application

for

an

eligibility

determination

to

seek

corrective action costs associated with this/these tanks.

• If

you

have

any

questions

regarding

the

eligibility

or

deductibility

determinations,

please

contact

Kim

Harms

at

(217)785.1020 or (217)785—5878 between 3:00

—

4:00 p.m.

James

I. McCaslin

Director

Division of Petroleum and Chemical

Safety

JIM: KR:bc

cc:

IEPA

Facility File

#5664

10

---

rn

-

---

JUN-15—95

THU

11:17

IL

EPA-BUREAU

OF

LAND

FAX

NO.

2175244193

•

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY

a

LEAKING

UNDER CR0

UN!)

P.O.Box 19216

2200 ChurchIll Road

Springfield,

IL 82104-9276

STORAGE

TANK

SECTION

PI.EASE OELNER ThES~

3

PAGES,

INCUJOING

THIS COVER PAGE TO:

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or

LOCATION:

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OF THE

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OR

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WE

UEGIBLE,

PI.EAS~

CONTACT

USATONE CF tHE

FOLLIWQiNG NUMBEPS AS

SOON

AS POSSIBLE

OUR ltI.ECOPtER NUMBER 18(217)6244193

OPERATOR’S

PHQNENUMBERIS

(217)524-4648

•

PRINTED

ON

RECYCLED

PAPER

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Return

to originator after sending

13

Discard

EN

OfltCE

uSE

ONLY

F. (II

bATE:

TIME:

NAME:

12

---

JUN-15-95

THU

11:17

Ii

EPA-BUREAU

OF

LAND

FAX

N~2115244193

F.02

•

State ofillinois

ENVIRONMENTAL PROTECTION AGENCY

Mazy A. G*de, Director

.

22W

ChurchIll

Road, Spñngfield,11

62794-9276

217/782-6761.

Vogue

Tyre

&

Rubber

Company

Attn:

Carry

Goyak

4801 West Golf

itoad

Skokie,

XL 60077

Re:

LPC#

0312885216

--

Cook

Skokie/vogue Tyre &

Rubber

Co.

4801

19.

LUST Incident 4942751

Dear Mr. Goyak:

The Illinois Eavironmental Protection

Agency

is in receipt of the

following

reports:

20.-Day

Report,

45-Day

Report,

Si1;e

Classification Completion Report,

and the corrective Action Plan

datedMarch

27,

1995 and received April

3,

1995;

the Correcti”e

Action Completion Report dated April 26,. 1995 and received May

~:,

1995;

and the Site Classification Work Plan and Budget dated MLy

16.

1995 and received May 19, 1995.

Based on the information currently in the Agency’s possession, the

Agency

deems

this

incident

not

subject

to

35

Illinois

Administrative Code

(MC),

Part

732

or

35

(AC,

Part

731.

Va

teahnical

review

of

the

above

documents

has been performed

in

accordance

with

35

XAC,

Section(s)

fl2.202,

732.307,

732.3Q~,

7?2.400, 132.402,

732.403, 732.404 and the Illinois EnvironnentEl

Protection Act, Section(s)

51.

and

57.7.

Therefore, the Agency is

notifying the

owiter or operator that the

following reports are

being deniedt

20-Day Report,. 45-Day Report.

Site Claeaificaticn

Completion

Report,

Corrective

Action

Plan,

Corrective

Acticn

Completion Report,

and

Site Classification Work Plan

and

liudget.

Bowever,

the

Agency

did

conduct

a

review

of

the

infounaticn

submitted to determine site remediation adequacy.

The Agency has

concluded

that

further remedial activities should be performed,

ard

recommends

the

following

to

ensure

that

the

Groundwater

Standards/Objectives

are

not

~xceeded

and

the

remaining

soil

contamination is addressed;

13

fiats.

IKJdS

iqar

---

JUN-15—95

THU

11:18

IL

EPA—BUREAU

OF

LAiR)

FAX

NO.

2116244193

F.C’3

Letter to Garry Goyak

Page 2

I

1.

Reinstallation of q groundwater monitoring well in

tie

area

of

MW-2

whIch

was

destroyed

during

excavatirnt

activities;

2.

Installation

of

a groundwater

monitoring

well

in tie

alley in. close proximity to borings B-13-16;

3.

Quarterly monitoring

of

all monitoring wells

for cac

year; and

4.

Installation of a passive vent system in the area of

ti?

southeast corner of the building in the vicinity of

t?U!

impacted

soils

remaining

along

the southern property

boundary.

Pot

purposes

of

appeal,

this

constitutes

the. Agency’s

finC~

decision regarding the above matters.

Please see Appendix 1 fr

an

owner or operator’s appeal rights.

If

you

have

any

questions please contact

tart

Lcbert of my ntaef

at

But Filson, Manager

Northern Unit

Leaking Underground Storage Tank Section

Division of Remediation Management

Appendices:

1

•

14

---

JUN—15—95

THU

11:18

IL

EPA-BUREAU

OF

LAND

FAX

NO.

2115244193

F.04

Appendix

1

An underground storage tank owner or operator may appeal this final

decisic’n

to the Illinois Pollution Control Board (Board) pursuant

to Section 57.8(i

and Section 40 of the Illinois Environmental Protection Act.

An owner or

operator who seeks

to appeal

the Agency’s decision may. within 35 days aftir

the notification of the final Agency decision, petition for

a hearing before

the

Board; however,

the 35—day period may be extended for a period of time

not

to eAceed 90 days by written notice provided to the Board from the applicart

and the Agency within the 35—day Initial appeal period.

For Information regarding the

filing

of an appeal, please contact:

Dorothy

Gunn.

Clerk

Illinois Pollution Control Board

State of Ill1nois Center

100 Nest Randolph, Suite

11—500

Chicago, IllinoIs

60601

312/814—3620

For information regarding the filing

of’ an extension, please contact:

Illinois Environmental Protection Agency

Division of Legal Counsel

2200 churchill Road

Post Office

Box

19216

Springfield,

Iflinois

62194—9276

217/782—5544

I

S

15

---

CERTIFICATE OF SERVICE

I, Peter C. Warman,

one of the attorneys for Vogue Tyre

& Rubber

Company,

certify that

I

caused a copy of the foregoing Petition for Review of LEPA

Final Decision

to

be served by

messenger delivery before the

hour of

4:30

p.m. to

illinois Pollution

Control Board

Ann:

Ms.

Dorothy Gunn,

Clerk of the Board

State

of Illinois Building

100

West Randolph Street

-

Suite

11-500

Chicago, illinois

60601

and

by

United

States Mail,

first

class

postageprepaid,

to

Illinois Environmental Protection Agency

Ann:

Division of

Legal

Counsel

2200

Churchill Road

Post

Office

Box

19276

Springfield, Illinois

62794

on this 18th

day

of July,

1995.

16

---

Exhibit

2

---

ILLINOIS POLLUTION CONTROL

BOARD

July 20,

1995

VOGUE TIRE

& RUBBER COMPANY,

)

Petitioner,

v.

)

PCB 96—10

(UST

Appeal)

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY,

)

ORDER OF THE BOARD:

On

July

18,

1995,

Vogue

Pyre

&

Rubber

Company

(Vogue

Tyre)

filed

a

petition

for

review

of

an

Illinois

Environmental

Protection Agency

(Agency)

disapproval of Vogue Tyre’s Leaking

Underground Storage Tank Site Classification Completion Report,

20—day Report,

45—day Report,

Corrective Action Plan, Corrective

Action Completion Plan,

and Site Classification Work Plan and

Budget.

The Agency disapproved Vogue Pyre’s Reports and Plans on

June 15,

1995.

The final determination concerns Vogue Pyre’s

site located at 4801 W.

Golf Road, Skokie,

Cook County, Illinois.

This

matter is accepted for hearing.

The hearing must be scheduled and completed in a timely

manner,

consistent with Board practices and the applicable

statutory decision deadline,

or the decision deadline as extended

by a waiver (petitioner may file a waiver of the statutory

decision deadline pursuant to 35 Ill. Adm. Code 101.105).

The

Board will assign

a hearing officer to conduct hearings

consistent with this order,

and the Clerk of the Board shall

promptly issue appropriate directions to that assigned hearing

officer.

The assigned hearing officer shall inform the Clerk of the

Board of the time and location of the hearing at least 40 days in

advance of hearing so that public notice of hearing may be

published.

After hearing,

the hearing officer shall submit an

exhibit list,

a statement regarding credibility of witnesses and

all actual exhibits to the Board within five days of the hearing.

Any briefing schedule shall provide for final filings as

expeditiously as possible and,

in time-limited cases, no later

than 30 days prior to the decision due date, which

is the final

regularly scheduled Board meeting date on or before the statutory

or deferred decision deadline.

Absent any future waivers of the

decision deadline, the statutory decision deadline is now

November 15,

1995

(120 days from July 18,

1995); the Board

meeting.immediately preceding the due date is scheduled for

November 2,

1995.

17

---

2

If

after

appropriate

consultation

with

the

parties,

the

parties

fail

to

provide

an

acceptable

hearing

date

or

if

after

an

attempt

the

hearing

officer

is

unable

to

consult

with

the

parties,

the

hearing

officer

shall

unilaterally

set

a

hearing

date in conformance with the schedule above.

The hearing officer

and the parties are encouraged to expedite this proceeding

as

much as possible.

The Board notes that Hoard rules

(35 Ill. Mm.

Code

1.05.102)

require

the

Agency

to

file

the

entire

Agency

record

inthis

matter

within

14

days

of

notice

of

the

Detition.

This

order

will

not

appear

in

IT IS SO ORDERED.

I, Dorothy

?1.

Gunn,

Clerk of the Illinois Pollution Control

Bo~jd,hereby certi1fq..~thatthe above order was adopted on the

,~~Lit

day of

_________________

,

1995, by a vote of

~‘

~‘

Dorothy

11.

Illinois

P

in

on Control Board

18

---

Exhibit

3

---

ILLINOIS POLLUTION

CONTROL BOARD

December

5,

2002

VOGUE TYRE & RUBBER COMPANY,

)

)

Petitioner,

)

)

v.

)

PCB 95-78

(UST Fund)

OFFICE OF

STATE FIRE MARSHAL,

)

)

Respondent.

)

OPINION AND ORDER OF THE BOARD (by

G.T. Girard):

Vogue Tyre & Rubber Company (Vogue Tyre)

is seeking review ofa determination by

the Office of State Fire Marshal

(OSFM) that

two

tanks removed by Vogue Tyre from

1401

Golf

Road,

Skokie, Cook

County are

ineligible for reimbursement from the leaking underground

storage tank

thnd (UST fund).

On

September

13, 2002, the OSFM filed a motion for summary

judgment (Mot.).

On

November 6, 2002, Vogue Tyre filed a responseto the motion (Resp.).

On

November 22, 2002, OSFM filed a motion for leave to

file a reply and

a reply (Reply), which the

Board hereby grants.

Forthe reasons discussed below the Board finds that there are

no

issues of

material fact and the motion for summary judgment

is granted.

The Board affirms the OSFM’s

February

1,

1995 denial

of eligibility.

FACTS

On March

6,

1995, Vogue Tyre filed a petition for review (Pet.) of an OSFM

determination that Vogue Tyre was ineligible

to seek payment for corrective action for the clean

up ofa leaking underground storage tank.

The Board accepted this matter for hearing

on March

9,

1995.

See

Vogue Tyre & Rubber Company

v. OSFM,

PCB 95-78 (Mar. 9,

1995). This

proceeding was previously stayed pending the resolution ofthe insurance claims related to this

proceeding.

See

Vogue Tyre & Rubber Company

v. OSFM, PCB 95-78 (Jan.

18,

1996).

Vogue

Tyre is no longer asking that the proceeding be stayed.

On March

16

1995,

OSFM filed the

record on appeal (R.).

The Vogue Tyre

sitecontained four underground storage tanks that were registered with

OSFM on May 6,

1986.

R.

at

1.

Tanks

3

and 4

were removed in

1993

and

a release was

reported to Illinois Emergency ManagementAgency (IEMA).

R.

at

13-25, 38.

Those two tanks

are not at

issue in this appeal.

Tanks

I

and

2 were deregistered by

an administrative order issued by OSFM on

February

17,

1993.

R.

at 6.

The administrative order indicates that the tanks could no longer be

registered becausethe tanks were removed prior to September 27,

1987.

Id.

The administrative

order also contained direction on what steps should be taken to appeal the order.

Id.

Vogue Tyre

did not appeal that order.

19

---

2

Tanks

I

and

2 were removed1 prior to the release reported on

December 7,

1994.

R.

at

56.

On December 27,

1994,

Vogue Tyre filed an application for reimbursement with the

OSFM.

R.

at 88-90.

On February

1,

1995, OSFM denied access to the

UST fund because Tanks

I

and

2

were

not registered and were therefore ineligible for access

to the

UST Fund.

R.

at 82-84.

REGULATORYFRAMEWORK

Illinois reimburses owners and operators ofleaking underground storage tanks

for

cleanup

costs through the Underground Storage Tank Program and the UST Fund.

See

415

ILCS

5/57 (2000).

Those seeking reimbursement from the UST

fundmust establish that they are

eligible to access the UST

fund under the criteria set forth

in Section 57.9 ofthe Act (415

ILCS

5/57.9 (2000)).

One of those criteria is that the owner ofthe tank registered the tank and paid the

fees in accordance with the Gasoline Storage Act 430 ILCS

15/1

et seq.

(2000).

See

415

ILCS

5/57.9 (2000).

The

Gasoline Storage Act (430 ILCS

15/1

etseq.

(2000)) provides for registration of

underground storage tanks meeting various criteria.

Section 4(b)(I)(A) of the Gasoline

Storage

Act 430

ILCS

15/4(b)(1)(A) (2000).

Section 4(b) ofthe Gasoline Storage Act 430

ILCS

15/4(b)

(2000)

requires that the owner “shall register the tank with the” OSFM.

Section 7(b) of the

Gasoline Storage Act 430

ILCS

15/7(b) (2000) provides that:

The

State Fire Marshal may suspend or revoke the registration of any person who

has violated the rules ofthe State Fire Marshal after notice and opportunity for an

Administrative hearing which shall be governed by the Administrative Procedure

Act

5

ILCS

100/1.1

et seq.

(2000).

Any appeal

from such suspension or

revocation shall be to the circuit court ofthe

county in which the hearing

was held

and be governed by

the Administrative Review Law (735 ILCS

5/3-101

et seq.

(2000).

430

ILCS

15/7(b) (2000).

STANDARD OF REVIEW FOR MOTIONS FOR SUMMARY JUDGMENT

Summary judgment

is appropriate when the pleadings, depositions, admissions

on

file,

and affidavits disclose that there is

no genuine issue as to any material fact and the moving party

is entitled to judgment as

a matter oflaw.

Dowd & Dowd, Ltd.

v. Gleason,

181

Ill. 2d 460,

483,

693 N.E.2d 358, 370 (1998).

In ruling on

a motion for summary judgment, the Board “must

consider the pleadings, depositions, and affidavits strictly against the

movant and in favor ofthe

opposing party.”

Id.

Summary judgment

“is a drastic means ofdisposing of litigation,” and

therefore it should be granted only when the movant’s right to the relief “is clear and free from

doubt.”

Id,

citing Purtill

v. Hess,

111111.

2d

299,

240, 489 N.E.2d 867,

871

(1986).

However, a

party opposing a motion for summary judgment may not rest on its pleadings, but must “present

The record contains conflicting dates regarding the actual removal ofthe Tanks

I and 2.

The

record indicates that removal occurred either in the

spring of 1985

(seeR. at 4,) or May of 1986

(see

Pet. Exh. C.).

The actual date of removal is not a material

fact for the resolution ofthis

matter.

20

---

3

a factual basis

which would arguably entitle

it

to ajudgment.”

Gauthier v. Westfall, 266

Iii.

App.

3d 213,

219, 639 N.E.2d 994,999 (2d Dist.

1994).

DISCUSSION

The following discussion will briefly

summarize the arguments ofthe parties and then

statethe Board’s findings on

this case.

OSFM Arguments

OSFM asserts that Tanks

I

and

2 are not eligible

for reimbursement because the tanks are

no longer registered.

Mot.

at

5.

OSFM points out that the

Illinois Environmental Protection

Agency and the OSFM jointly administer the Underground Storage Tank Program but the

responsibilities are not identical.

Mot.

at 4, citing 430

ILCS

15/4(a) (2000) and Farrales v.

OSFM, PCB 97.186 (May 7,

1998).

OSFM argues that eligibility determinations are appealable

to the Board but not the registration decision.

Mot.

at 4,

OSFM maintains that the Board has

consistently refused to review OSFM registration decisions.

Mot.

at 4.

OSFM

also argues

that

the Board has recognized the OSFM’s authority

to deregister tanks on

a number of occasions and

cites to several Board cases and OK Trucking Corn.

v.

Armstead, 274

III. App. 3d

376, 653

N.E.2d

863

(1st Dist,

1995).

Mot.

at 6.

In

this case OSFM asserts that the record

is clear that Vogue Tyre received an

administrative order in

1993

stating that Tanks

I

and

2 were

no

longer registerable.

Mot.

at 5.

Vogue Tyre did not appeal that

order,

Id.

OSFM argues that because registration is a

prerequisite

to eligibility to access the UST Fund, petitioner is not eligible to access the UST

Fund as a matter oflaw.

Mot.

at 6.

Vogue Tyre Arguments

Vogue Tyre asserts that the sole basis for the OSFM’s

denial of eligibility “lies in its

deregistration” ofTanks

I

and 2.

Resp.

at 6.

Vogue Tyre asserts that OSFM cannot deregister

tanks “without impinging upon

a vested right” because OSFM cannot deregister tanks without

retroactively applying

a statute.

Id.

Vogue Tyre further argues that

OK Trucking Com.

v. Armstead

is distinguishable

because in that case the tanks did not meet the definition ofunderground storage tank when

registration was sought.

Resp.

at 4.

Vogue Tyre asserts that

in this case the tanks were in the

ground at the time ofregistrations.

Id.

Vogue Tyre maintains that

the

facts of this case are more

analogous

to ChemRex,

Inc. v.

IPCB, 257

Ill.App.3d 274, 628 N.E.2d 963 (1st Dist

1993)

wherein the

tank owner was

denied eligibility because ofsubsequent amendments to the

Environmental Protection Act (Act) (415

ILCS

5/1

et seq.

(2000)

amended by

P.A. 92-0574, eff.

June 26, 2002).

Resp.

at 5-6.

The court found that ChemRex had

a vested right to access the

UST Fund and the amendment to the Act could not be applied retroactively.

Vogue Tyre argues

that the tanks were registered and fees paid in accordance with the statute

at the time and thus

pursuant

to ChemRex the tanks

cannot be deregistered.

Resp. at

5.

21

---

4

Finding

The Board finds that there are no

issues of material fact and judgment

may be

granted as

a matter oflaw.

Therefore, the Board finds that summary judgment

is appropriate.

The sole

issue

is whether the OSFM appropriately denied eligibility to access

the UST

Fund by Vogue

Tyre because Tanks

I

and

2 were deregistered.

Section 4 of the Gasoline Storage Act provides that underground storage tanks

may be

registered with the OSFM.

430 ILCS

15/4 (2000).

The OSFM is also charged with the

responsibility of determining eligibility for access to the UST fund.

See

415 ILCS 5/57.9(c)

(2000).

Pursuant to the Act, decisions by

the

OSFM regarding eligibility are appealed to the

Board.

Id.

However,

decisions regarding registration are appealable

to the circuit court under

the Administrative Review Law (735 ILCS

5/3-101

etseq.

(2000)).

See

430 ILCS

15/7 (2000).

Thus, as the Board has consistently held, the Board is not authorized to review OSFM’s

decision

regarding registration of underground storage tanks.

See

Farrales v. OSFM, PCB 97-186

(May 7,

1998); Divane Brothers

Electric Co.

v. JEPA, PCB 93-105

(November 4,

1993); YjBae

of Lincolnwood v.

LEPA, PCB 91-83 (June 2,

1992).

OSFM has denied Vogue Tyre eligibility to access the UST fund because the tanks at

issue

were deregistered.

In the response to the motion for summary judgment, Vogue Tyre

argues at length that the tanks could not be deregistered.

The Board does not review registration

decisions by the OSFM.

Thus,

the

facts clearly establish that the tanks were not registered at the time that Vogue

Tyre sought access

to the UST Fund.

Registration oftanks

is

a prerequisite to accessing the UST

Fund.

See

415

ILCS

5/57.9(a)(4) (2000).

Authority

to

register tanks

is vested in the OSFM

by

the legislature.

Section

4 ofthe Gasoline Storage Act (430 ILCS

15/4 (2000)).

Therefore, the

denial ofeligibility was appropriate and the Board affirms the decision by the OSFM.

CONCLUSION

The Board finds that there are no issues of material fact andsummary judgment is

appropriate.

Based on the record, the Board finds that OSFM is entitled to judgment as a matter

of law

and

the Board grants OSFM’s motion

for summaryjudgment.

The Board affirms

OSFM’s February

1,

1995,

decision denying access to the UST fund by Vogue Tyre.

This opinion constitutes the Board’s findings of fact and conclusions of law.

ORDER

The Board affirms the Office of State Fire Marshal’s denial of eligibility to access the

Underground Storage Tank Fund by Vogue

Trye

& Rubber Company

for the facility located at

1401

Golf Road, Skokie.

IT IS SO ORDERED.

22

---

5

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

5/41(a) (2000);

see

also

35

III. 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

III. Adm. Code

101.520;

see a/so

35

III.

Adm. Code

101.902,

102.700,

102.702.

1,

Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certif~jthat the

Board

adopted the above opinion and order on December

5, 2002, by

a vote of6-0.

Dorothy M.

Gunn, Clerk

Illinois Pollution Control Board

23

---

Exhibit

4

---

BEFORE THE POLLUTION CONTROL BOARD

RECEIVED

OF THE STATE OF ILLINOIS

CLERK’S OF~’t’~

VOGUE TYRE & RUBBER COMPANY,

)

JUN

202003

Petitioner,

)

F ILLINOIS

O~

-

Pollution

Control

Board

ILLINOIS ENVIRONMENTAL

)

(UST Appeal)

PROTECTION AGENCY,

)

Respondent.

)

NOTICE

Dorothy M. Gunn, Clerk

Bradley P. Halloran, Hearing

Offlcer

Illinois

Pollution Control Board

Illinois Pollution Control

Board

James RI. Thompson Center

James R.

Thompson Center

100

West Randolph Street

lOG West

Randolph

Street

Suite

11-500

Suite 11.500

Chicago,

IL

60601

Chicago, IL

60601

•

Dolores Ayala

Schuyler, Roche &

Zwirner

One Prudential Plaza

Suite3SOO

130

East

Randolph

Street

Chicago,

IL

60601

PLEASE

TAKE NOTICE

that I have today

filed

with

the

office of the Clerk of the Pollution

Control Board

a

MOTION FOR SUMMARY

JUDGMENT,

copies of which are

herewith

served

upon

you.

Respectfully submitted,

ILLINOIS ENVIRONMENTAl. PROTECTION AGENCY,

Assistant

Counsel

Special Assistant Attorney General

Division of Legal Counsel

1021

North

Grand Avenue,

East

P.O.Box

19276

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143

(TDD)

Dated: June 10, 2003

24

---

BEFORE THE POLLUTION CONTROL BOARD

OFTHESTATE OFILLINOIS

RE CE

flit

1)

CLERK’S

flrrlrr

VOGUE TYPE

& RUBBER COMPANY, an)

Illinois corporation,

)

JUN

202003

Petitioner,

•

)

PCB No

96-10

STATE

OF

ILLIINUIS

ILLINOIS ENVIRONMENTAL

)

(UST Appeal)

Pollution Control

Board

PROTECTION AGENCY,

)

Respondent.

)

MOTION FOR SUMMARY JUDGMENT

NOW

COMES

the

Respondent,

the

Illinois

Environmental

Protection

Agency

(“Illinois

EPA”),

by

one of its

attorneys,

John

J.

Kim,

Assistant

Counsel

and

Special

Assistant

Attorney

General, and,

pursuant

to

35

III.

Adun.

Code

101.500,

101.508

and

101.516,

hereby

respectfully

moves

the

Illinois

Pollution

Control

Board

(“Board’)

to

enter summary judgment

in

favor of the Illinois

EPA

and against the

Petitioner,

Vogue

Tyre and Rubber

Company

(“Vogue Tyre”),

in that there exist herein no

genuine issues

of material

fact,

and that

the

Illinois EPA is entitled to judgment

as a matter of law with

resp’~ct

to

the

following grounds.

Iii

support of said motion,

the Illinois

EPA

states

as

follows:

I.

STANDARD

FORISSUANCEAN)

REVIEW

A motion

for

summary

judgment

should

be

granted

where

the

pleadings,

depositions,

admissions

on

file,

and

affidavits

disclose

no

genuine

issue

as

to

any

material

fact and the moving party is entitled to judgment as

a matter of law.

Dowd

&

Dowd,

Ltd.

v.

Gleason,

181

I1l.2d

460,

483,

693

N.E.2d

358,

370

(1998);

Ozinga

Transportation

Services

v.

Illinois

Environmental

Protection

Agency,

PCB

00-188

(December 20,

2001),

p.

2.

I

25

---

The

Board’s authority

to

review

a determination

by

the

Illinois

EPA

that plans

submitted to

it

are

not subject

to regulation pursuant

to the Leaking Underground Storage

Tank

(“LUST”) Program arises

from Section 57.7(c)(4)(D) of the

illinois Environmental

Protection

Act (“Act”)

(415

ILCS

5/57.7(c)(4)(D)).

Section

57.7(c)(4)(D) provides that

such

an

action

is subject

to appeal

to

the

Board in

accordance

with

the

procedures of

Section 40 ofthe Act (415 ILCS

5140).

IL

THE ILLINOIS EPA IS ENTITLED TO SUMMARY JUDGMENT

BASED ON THE FACTS AND LAW

A.

Relevant Facts

Vogue Tyre

owned a

facilityat 4801

GolfRoad in Skokie,

Cook

County, Illinois

until

July

7,

1995.

Vogue lyre

kept two

10,000-gallon

gasoline

underground

storage

tanks (“liSTs”) on this facility~The Office ofthe State Fire Marshal assignednumber 2-

021982

to

the

facility.

These

USIs were removed

in

1986.

Vogue lyre’s

Petition for

Review ofJEPAFinal Decision, pp.

1-4.

On December

7,

1994,

Vogue Tyre reported releases of gasoline front the

10,000

gallon liSTs to the Illinois Emergency Management Agency (“JEMA”).

IEMA assigned

the

releases Incident

Number

94-2751.

Vogue lyre

began

corrective

action

and,

in

December 1994,

submitted to the OSFM

an

Eligibility and

Deductibility Application.

On

February

1,

1995,

the

OSFM

declared

that

since

the

two

10,000

gallon

USIs

were

removed prior to

September 24,

1987, they were ineligible for reimbursement pursuant to

415

ILCS

5/57.9

and 430

ILCS

15/4.

Vogue lyre appealed the OSFM’s decision to the

Board on

March 6,

1995.

On December 5,2002, the Board found in favor ofthe OSFM.

On February 26, 2003, Vogue

Tyre appealed that decision to the

Illinois Appellate

Court

2

•

.

26

---

for the First District (Vogue Tyre

& Rubber Company v. Office ofthe State Fire Marshal,

Appellate Court No. 03-0521).

That case

is still pending.

Vogue Tyre’s Petition, pp. 2-4.

Vogue lyre also submitted numerous reports to the Leaking Underground Storage

Tank section of the Illinois

EPA for review.

The Illinois EPA received Vogue Tyre’s 20-

Day

Report,

45-Day

Report,

Site

Classification

Completion

Report,

and

Corrective

Action

Plan

on

April

3,

1995,

Vogue lyre’s

Corrective

Action

Completion Report on

May 2,

1995,

and

Vogue lyre’s Site Classification

Work

Plan and Budget on May

19,

1995.

Vogue lyre’s Petition, p.

3.

On

June

15,

1995, the

Illinois EPA issued a letter denying Vogue Tyre’s reports,

stating

that

because the

tanks

at

issue were

removed

in

the

mid-1980s,

they

were

not

subject to

regulation and remediation by the Illinois

EPA.

The illinois EPA declared this

decision final, and Vogue Tyre has appealed to theBoard.

Vogue lyre’s Petition, p.

3.

•

B.

No Genuine Issues

Of

Material Fact Exist

The

reports

denied

by

the

Illinois

EPA

were

related

to

the

two

10,000

gallon

liSTs assigned Incident No.

94-2751.

This is the only incidentnumber, and therefore the

only

tanks,

the

Illinois

EPA

addresses

in

its

denial

letter,

Consequently,

no

issue of

material

fact exists

regarding

which

tanks

are

the

subject of this

case.

Furthermore,

neither

party

contests

that

these

two

tanks

were

removed

in

1986,

the

sole

fact upon

which the Illinois

EPA

basod its

denial of Vogue Tyre’s reports.

No

genuine issues of

material fact thus

exist.

3

27

---

C.

The Illinois EPA Is Entitled To Judgment As A Matter Of Law

There are several bases the Board

could and should rely on in recognizing that the

Illinois

EPA’s

decision

to

deny

the

reports

in

question

was

appropriate

given

the

circumstances and underlyinglaw.

1.

The Illinois

EPA’s denial of Vo2ue Tyre’s

reports should be

upheld

because

•

the tanks

at issue were removed prior to the date the LUST program

became

•

effective

The

Illinois

EPA

lacks

regulatory

authority

over

Vogue Tyre’s

10,000-gallon

tanks because the tanks were removed prior to the effective date of the LUST

program.

When a statute involves “prior activity or a certain

course ofconduct..

the applicable law

is

the

statute

in place

at the time of tank removal,”

Chuck

and

Dan’s

Auto

Service v.

Illinois

Environmental

Protection

Agency,

PCB

92-203 (August

26,

1993).

The

only

relevant law

is the

one in place

at the

time the

cdnduct actually occurred, regardless of

whether or

not

the

course

of conduct was

discovered or reported

after

the

statute

or

amendment became effectivó.

~j

In

Chuck

and

Dan’s,

the

Illinois

EPA

denied

the

Petitioner’s

reimbursement

application for certain costs associated with tank removal.

Chuck and Dan’s

at

2.

The

basis of this denial was that

the tanks were notremoved in response to a

release, as was

required through

the adoption

ofP.A. 87-323, an amendment to Section 22.18(e)(1)(C) of

the

LUST program.

~4.

at

7.

On

appeal

to

the

Board

by

Petitioner,

the

Illinois EPA’s

denial was

overturned.

Id.

The Board

stated that

since the

amendment did not become

effective until September 6,

1991, and

Petitioner’s tanks wereremoved

on May

14,

1990,

the amendment did not apply to or govern reimbursement for the previous tank removal;

the applicable

law was

instead the one

in place in

1990.

i!~

Also, since Petitioner

was

4

28

---

seeking reimbursement for a prior course of conduct, the

Board deemed it irrelevant that

Petitioner

submitted the

reimbursement application

to

the

Illinois

EPA

on

February

4,

1994,

after

the amendment

became effective;

this

amendment was

still

inapplicable

to

Petitioner’s

activity.

fl

This same

concept applies to the

Illinois

EPA’s

denial of Vogue Tyre’s reports.

Here,

Vogue Tyre

removed the

10,000-gallon tanks

in

1986.

Following

the

Board’s

decision in Chuck

and Dan’s.

the

law governing

this

removal is

the statute that

was

in

place

at the time of removal

in that

same year.

The earliest

version of Illinois’s LUST

program,

though, did not become effective until

approximately three years later, on July

28,

1989

through the

adoption of P.A.

86-125

§

I.

As

a result, the

LUST

law did

not

apply at the time of removal

and accordingly

did

not

apply at the

time of the

Illinois

EPA’s decisionto reject Vogue Tyre’s reports.

Also

similar to

Chuck and

~

it

is

irrelevant

that

Vogue Tyre

reported

the

release to the Illinois EPA in

1994, after the LUST program becam~

effective, for Vogue

Tyre’s

reports were in regard to

a prior course of conduct, i.e. tank removal and releases

that

occurred before

July

28,

1989.

The

LUST

program therefore

cannot be applied to

Vogue

Tyre’s

tank

removal,

meaning

the

Illinois

EPA

has

no

regulatory

authority

to

require remediation of releases• from such tanks or

review related reports.

Lacking

such

authority, the Illinois EPA’s denial

ofVogue Tyre’s reports

was valid.

2.

The

Illinois

EPA?s

denial of Vogue Tyre’s

reports

should be upheld because

•

tanks removed prior

to the effective date of theLUST

program should not be

subject to

its regulations as a matter ofpublic policy

The

LUST

program

should

not

be applied

to

the

tanks

removed

in

1986

as a

matter

of public

policy.

The

tanks

were

not

subject

to

regulation

under

the

LUST

5

•

29

I

---

program when they

leaked or when they were removed.

They

should not be

subject to

regulation

now.

In

other words,

if Vogue Tyre

had

discovered

the

releases

when

they

occurred, or even

up

to

three

years after

they

occurred,

the

LUST

program

would

not

have applied.

It should

not

apply now simply because Vogue

lyre

happened to find the

releases after the LUST program took effect.

Public policy thus favors the Illinois EPA’s

denial ofVogue Tyre’s reports.

Further,

to

allow

for

the

submission

of these

reports

by

Vogue

Tyre

would

effectively reward them for belated conduct and activity in that they would potentially

be

able

to

seek

reimbursement from

the

Underground Storage Tank

Fund.’

To

allow

an

owner or operator that would not have qualified for eligibility under the

LUST program

due

to

renioval

of

tanks

prior

to

the

effective

date

of the

LUST

program

itself

to

nonetheless “backdoor” themselves into eligibility by

reporting a suspected

release after

the

effective date

of the

program

simply

allows

the

oWner

or operator a

benefit

(i.e.,

reimbursement

of

costs)

to

whiOh

they

were

never

entitled.

The

Illinois

EPA

has

recognized

that

its

authority

has

lithitations

that

must

be

respected,

and

similarly

the

Board should make clear to the Petitioner that an owner or operator of an UST

also has

certain

limitations that cannotbe circumvented.

3.

The

Illinois

EPA’s

denial

of Vogue Tyre’s

reports

should

be

upheld

since

applying the LUST program would constitute retroactive statutory application

The

Illinois EPA

cannot

regulate Vogue Tyre’s

10,000-gallon tanks because

doing

so

would

constitute

retroactive

statutory

application.

Unless

the

legislature

‘As noted earlier, the

Board’s decision to uphold OSFM’s determination that the

two

tO,000

gallon tanks

were

ineligible for reimbursement is currently

under

review by the Appellate Court.

lIthe

AppellateCourt

affirms the Board’s decision,

and

if the Board in this case reverses

the

Illinois EPA and determines that the

reports should

have been accepted

andthat

the

Illinois

EPA

does have

authority

over the

releases,

then

Vogue

Tyre would

be obligated to perform remediationwithout the

possibilityof.reimbursesnent.

6

30

---

indicates what the temporal reach ofa statute should

be,

it

is up

to the court

to determine

whether application ofthe statute would have a “retroactive impact, i.e., whether it would

impair

rights

a

party

possessed

when

he

acted,

increase

a

party’s

liability

for

past

conduct,

or

impose

new

duties

with

respect

to

transactions

already

completed.”

Commonwealth Edison Co.

v. Will

County

Collector, 196 Ill.2d 27, 38, 749 N.E.7d 964,

971

(2001).

The

mere

fact

that

a

statute

is

applied

to

conduct predating

the

statute’s

enactment does not

necessarily mean it has retroactive

impact.

Id.

at

39,

971.

“Rather,

the

court must ask whether the new provision attaches new legal consequences to events

completed before its enactment.”

Id.

at 39,

972.

If the court finds there would

in fact be

retroactive impact, the

presumption is that the legislature did not intend the statute

to be

applied retroactively.

Id.at 38,

971.

Here,

application of the

LUST

law to

Vogue

Tyre’s

tank

removal

would

have

retroactive impact.

If the LUST

program were applied, it

would increase

Vogue Tyre’s

liability

for

past

conduct,

for Vogue

Tyre

would

be

required

to

comply

with

LUST

standards

regarding

cleanup of the ‘previously

removed tanks

and

would

be

subject

to

penalty for failure to do

so.

Applying LUST requirements would also impose new duties

on Vogue Tyre with respect to

transactions already completed.

The

10,000-gallon tanks

were removed before the LUST program went into effect.

The releases occurred prior to

the

LUST•program

as

well, for they had

to have

happened prior to

tank removal.

The

tank removallrelease“transaction” had therefore been completed.

Yet, as just mentioned,

Vogue

Tyre

would

now

acquire

new duties,

namely

the

duty

to remedy

releases from

those tanks in compliance with LUST

standards.

Finally, the LUST program attaches

new legal consequences

to events completed before its enactment.

Asjust outlined, the

7

31

---

events

at

issue in

the case

(removal

and

release)

had

already been

completed

when the

LUST

program

became

effective.

The

LUST

program

would

attach

new

legal

consequences

to

these

evehts

in

that

Vogue Tyre

would

now

be

potentially

subject

to

enforcethent

action

if it

failed

to

comply

with

all

LUST

program

provisions

regarding

release remediation.

Application

o.f

the

LUST

program

to

Vogue

Tyre’s

two

10,000-gallon

tanks

would

therefore

have

a

retroactive

impact.

As

a result,

the

Board

must

presume

the

General

Assembly

did not

intend

the

LUST

law

to

be

applied

retroactively.

Vogue

Tyre’s

10,000-gallon

tanks

are

thereby

not

subject

to

regulation

under

the

LUST

program,

and the

Illinois EPA’s denial ofreports related to these tanks was legitimate.

III.

CONCLUSION

Vogue

Tyre’s

reports

are

not

subject

to

Mview

by

the

Illinois

EPA

under

the

LUST program.

The removal ofVogue Tyre’s

10,000-gallon tanks is subject to the

law

existing at the time the tanks were removed in

1986.

The LUST program did not exist in

1986,

but

rather became

effective three

years

afterwards.

Cbnsequently,

the

I 0,OCO-

gallon

tanks,

as well

as

any

substances

released

from such tanks,

are not

subject

to

the

LUST program or to Illinois EPA

regulation in pursuance ofthe LUST

program.

Along

with the legal guideline set forth

by the Board in Chuck and Dan’s. public policy

favors

such a

conclusion

as

well.

Furthermore, application of the

LUST

law

would

have a

retroactive impact and would therefore constitute unenforceable retroactive application of

the

statute.

The

LUST program,

then,

cannot be

applied to

the tanks at issue, meaning

the Illinois EPA’s denial ofVogue Tyre’s reports was appropriate.

S

32

---

For the

reasons stated herein, the Illinois EPA

respectifully requests that the Board

affirm the Illinois EPA’s decision to deny Vogue Tyre’s reports.

Respectfiully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Assistant Counsel

Special Assistant Attorney General

Dana Vettcrhoffer

Legal Intern

Division ofLegal Counsel

1021 North GrandAvenue, East

P.O. Box

19276

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143 (TDD).

Dated: June

10,

2003

This

filing submitted on recycled paper.

9

33

---

CERTIFICATE OF SERVICE

I, the undersigned attorney at law, hereby

certify that

on June

10, 2003, I served true and

correct copies ofa MOTION FOR SUMMARY JUDGMENT,

by placing true and correct copies

thereofin property sealed

and addressed envelopes and by depositing said

sealed envelopes in a

U.S. mail drop box located within Springfield,

Illinois, with sufficient First Class postage affixed

thereto, upon the following named persons:

Dorothy M. Gunn, Clerk

Bradley P. Halloran,Hearing Officer

Illinois Pollution Control Board

Illinois Pollution Control Board

James R. Thompson Center

James R. Thompson Center

100 West Randolph Street

100 West Randolph Street

Suite 11-500

Suite

11-500

Chicago, IL 60601

Chicago, IL

60601

Dolores Ayala

Schuyler, Roche & Zwirner

OnePrudential Plaza

Suite 3800

130 EastRandolph Street

Chicago, IL

60601

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent

Johnl.Kim

C

Assistant Counsel

Special Assistant Attorney General

Division ofLegal Counsel

1021. North Grand Avenue, East

P.O. Box

19276

Springfield, illinois 62794-9276

217/782-5544

.

217/782-9143

(TDD)

34

Ii

---

Exhibit

5

---

BEFORE

THE ILLINOIS POLLUTIONCONTROLBOARD

OF THE STATE

OF

ILLINOIS

PoJIu2fr~n

coatr~

82Q1C/

‘VOGUE TYRE & RUBBER COMPANY,

)

)

Petitioner,

)

)

.

PCB No. 96-10

v.

)

(liST Appeal)

)

ILLINOISENVIRONMENTAL PROTECTION)

AGNECY,

Respondent.

)

NOTICE OF FlUNG

TO:

Ms. Dorothy Gunn, Clerk ofthe Board

Illinois Pollution Control Board

State ofIllinois Building

100 West Randolph Street

-

Suite 11-500

Chicago, Illinois

60601

Bradley P. Hailoran

Hearing Officer

Illinois Pollution

Control Board

State ofIllinois Building

100 W. Randolph

Street—Suite 11-500

Chicago, illinois

60601

John J. Kim

Illinois Environmental Protection Agency

Division ofLegal Counsel

1021 North Grand Avenue East

Springfield,

Illinois

62794-9276

PLEASE TAKE NOTICE

that

on

July

30,

2003,

we

filed with

the Office of the Clerk ofthe

Pollution

Control Board Vogue Tyre & Rubber Company’s Response to Motion for Summary Judgment, a

copy ofwhich is attached

hereto

and

hereby served

upon you.

VOGUETYRE & RUBBER COMPM’IY

David M. Allen

Jeffrey B. Schiller

Schuyler, Roche & Zwirner

By:

____________________

130 East Randolph, Suite 3800

One ofits Attorneys

Chicago, IL

60601

David M. Allen

(312) 565-2400

35

---

CERTIFICATE OF SERVICE

I, Jeffrey B. Schiller,

one of the attorneys for VogueTyre

& Rubber Company, certi~’that I caused

copies of the foregoing Response to Motion

for Summary Judgment to be served

by

hand-delivery before

the hourof4:30 p.m.,

to:

Ms. Dorothy Gunn, Clerk ofthe Board

illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

-

Suite 11-500

Chicago,

Illinois

60601

Bradley P. Halloran

Hearing Officer

illinois Pollution Control Board

James R.

Thompson Center

100 W. Randolph Street— Suite 11-500

Chicago, Illinois

60601

and by depositing

same in the United States Mail, first class postage prepaid, at One Prudential Plaza,

130

East Randolph Street, Chicago, illinois, to:

John J. Kim

Illinois

Environmental Protection Agency

Division ofLegal

Counsel

1021 North Grand Avenue East

P.O. Box

19276

Springfield,

illinois

62794-9276

on

this

30th

day ofJuly 2003.

~

çj~.&LQi

36

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OFTHE STATEOF ILLINOIS

VOGUE

TYRE &

RUBBER COMPANY,

)

.II.._.;,J

it!

fl

CI’)!

?t/

Petitioner,

)

)

PCBNo,96-1O

V.

)

(LIST Appeal)

)

ILLINOISENVIRONMENTAL PROTECTION)

AGNECY,

Respondent.

)

PETITIONER’S RESPONSE TO MOTION FOR SUMMARY JUDGEMENT

Petitioner, Vogue Tyre & Rubber Company

(“Vogue”),

herebyresponds to the Motion for

Summary

for Summary

Judgment

(the

“Motion”)

filed

by

the

Illinois

Environmental

Protection

Agency (“1EPA”) as follows.

Introduction

By and

large, the essential facts pertinent to this case are not in dispute.

Vogue previously

owned

two properly registered

10,000 gallon

underground

storage

tanks

(“USTs”) at

its

facility

located at 4801

OolfRoad in Sicokie,

illinois (the “Site”).

Vogue removed these USTs in

1986.

In

1994,

Vogue discovered,

for the

first

time,

releases of gasoline from

the

USTs,

which

had the

potential to cause significant damage to property and human health.

Vogue promptly reported this

discovery to

the

illinois

Emergency

Management Agency

(“IEMA”),

and

reinediated

the

Site.

Vogue petitioned the

Office of the State Fire Marshall C’OSFM”) and the EPA for reimbursement

for thecosts expended

for remediation.

Both have deniedVogue’s request.

What is truly ironic is that Vogue’s requests for reimbursementhave been turned

down for

reasons completely contradictory with

one

another.

The

OSFM deregistered

Vogue’s USTs,

and

thus claimed that Vogue was not entitled

to reimbursement, based on regulations adopted after the

37

---

release and registrations had occurred.

This Board upheld the OSFM’s decision.

Now,

the EPA

argues that Vogue is

not

entitled

to

reimbursement from

the

Leaking Underground

Storage

Tank

(“LUST”) Program

because the registrations and release

occurred before the

effective date of the

LUST Program. (EPA Br. p.5).

It is plain to

see that Vogue is being

unfairly treated.

Vogue acted

promptly

in thepublic

interest, and

has been told by state agencies

that

its efforts

are

not eligible

for reimbursement on

completely opposite grounds.

There

is

no

principled

basis

for these

dual

positions.

The EPA’s

Motion should be denied.

Aranment

Although

the IBPA purports to make three separate

arguments in

support of the Motion,

in

reality,

these arguments boil down

to

one

—

although

Vogue’s

claim

and

remediation

efforts

occurred well

after enactment ofthe LUST

Program,

the fact that Vogue’s TJSTs were removed

prior to the enactment date precludes application ofthe statute.

This argument fails.

First,

the EPA

argues

that

this

Board’s decision

in

Chuck

and

Dan’s

Auto

Service

v.

Illinois

Environment Protection• Agency (PCP

92-203) (“Chuck and

Dan’s”) establishes that the

law to be considered was the law in

place at the time that Vogue removed its IJSTs

and not the

law in effect when remediation occurred.

However, the Chuck

and Dan’s case simply does not

stand

for that

proposition.

Chuck

and

Dan’s

involved

an

attempt

by

the EPA

to

utilize

an

amendment

to

a regulation enacted

remediation

to preclude recovery ofremediation costs.

The

Board

rejected this

attempt.

Here,

there was

no

new

law

enacted

after

remediation

-

-

rather, remediation occurred after the

law had

been

changed.

Thus,

Chuck

and Dan’s provides

no support

for the EPA’s

position.

38

---

The EPA

quotes

the

Chuck

and

Dan’s

case to

the

effect

that

“when

a

statute

involves

‘prior activity or a

certain course of conduct...the applicable law is the statue in place

at the time

of tank removal’”.

This quote,

however,

leaves out a critical previous

sentence in the

Opinion

which

states

that

“the

applicable

law

is

the

statute

in

effect

on

~

~y

of ~

fi~n of the

gpplication

for

reimbm-s_~~iiei~~ent.”

LChuck

and

Dan’s,

p.6,

fit

2

(emphasis added))

The

key

to

reconciling these two quotes

is to determine what constitutes “prior activity or a certain course of

conduct”

as

defined

by

the

Board.

Here,

removal

of the

USTs

by

Vogue

does

not

fit

this

definition.

What Chuck

and Dan’s

holds

is

that the

agency cannot prevent a responsible party

from

recovery

by

changing

the

rules

after

remediation.

It

does

not

hold

that

remediation

performed after the change (where discovery and

submission ofclaim

were

also after the change)

is not eligible

for reimbursement.

Second,

the

EPA

asserts

that

public

policy

precludes

the

application

of

the

LUST

Program

to

this case.

Specifically,

the

EPA

argues

that

“to

allow

for the

submission

of these

reports by Vogue Tyre

would effectively reward

~

for conduct

~4

activity” (EPA Br.

p.6),

(emphasis added)).

This assertion is

completely and totally offthe mark.

There is nothing in

the

record to suggest that Vogue acted belatedly

—

indeed, theevidence is that Vogue acted promptly

and in the public interest.

Vogue

~

ps~~

~reward rather, it seeks statutory reimbursement

for actions taken in the public

interest and as requiredby law.

Nor would

application of the

LUST

Program to

~

case

allow

owners

or operators of

USTs

to

“backdoor”

themselves

into

eligibility for compensation

in

the

fixture as suggested by

theEPA.

Ifa release was, or should have been discovered, and was

not reported or remediated,

an owner or operator ofUSTs is subject to substantial penalties under state law,

and significant

thcposure from private suits.

There is no basis for assuming, or believing, that business will seek

39

---

to

piggyback on Vogue’s

eligibility for LUST

Program reimbursement, nor would the

EPA

be

required to approve such applications if they were forthcoming.

This is

a unique case, which will

not seek

a precedent antithetical to public policy.

Finally, the EPA

asserts that application ofthe LUST Program to Vogue “would increase

Vogue Tyre’s

liability

for

past

conduct...and

would

impose

new

duties

on

Vogue

Tyre...”

(EPA

Br. p.7).

This

vague and

unspeciñc

claim provides

no

basis

for the

EPA’s

Motion.

There is

no

enumeration of the duties and liabilities

which would now

be

present.

There

is

no

discussion as

to whether Vogue has already fhlfilled the new duties

supposedly imposed by

and

through the remediation and its submissions

to EPA.

It is not enough for the

EPA

to label

the

LUST Program statutes as “not intendedj

...

to be applied

retroactively” without providingthese

specifics.

Conclusion

Fortheforegoing reasons, Vogue asked that the Board enter an order denying the EPA’s

Motion for Summary Judgment and set the

matter

for

hearing.

Respectfully submitted,

VOGUElYRE& RUBBERCOMPANY

By:____________

__

On

tsAttorneys

David M. Allen

Jeffrey E. Schiller

Schuyler, Roche & Zwimer, P.C.

OnePrudential

Plaza

130 B. Randolph Street, Suite 3800

Chicago, Illinois

60601

(3 12) 565-2400

40

---

Exhibit

6

---

ILLINOIS

POLLUTION CONTROL BOARD

September

4,

2003

VOGUE TYRE & RUBBER COMPANY,

)

Petitioner,

)

)

v.

)

PCB

96-10

)

(UST

Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

Respondent.

)

ORDER OF THE BOARD (by G.T. Girard):

Vogue Tyre & Rubber Company (Vogue Tyre)

is

seeking review of a June

15,

1995

determination by the Illinois Environmental Protection Agency (Agency) that the remediation at

the site located at

1401

GolfRoad,

Skokie, Cook County

was not subject to

35

III, Adm. Code

731

and 732.

On June 20, 2003, the Agency filed a

motion for summary judgment.

On July 30,

2003, Vogue Tyre filed a response to the motion.

For the reasons discussed below the Board

finds that there are issues ofmaterial fact and the motion

for summary judgment is denied.

Summary judgment is appropriate when the pleadings, depositions, admissions

on

file,

and affidavits disclose that there is

no

genuine issue as to any material fact and the moving party

is entitled

to judgment as a matter of law.

Dowd & Dowd, Ltd. v. Gleason,

181111.

2d 460,483,

693 N.E.2d

358,

370 (1998).

In ruling on

a motion for summary judgment, the Board “must

considerthe pleadings, depositions, and affidavits

strictly against the movant and

in favor ofthe

opposing party.”

Id.

Summary judgment “is a drastic means ofdisposing of litigation,” and

therefore it should

be granted only when the movant’s right to the relief “is clear and free from

doubt.”

Id,

citing Purtill

v. Hess, Ill

Ill. 2d 299,

240,

489 N.E.2d 867,

871

(1986).

However, a

party opposing

a motion

for summary judgment may

not rest on its pleadings, but must “present

a factual basis which would arguably entitle

it

to ajudgment,”

Gauthier v. Westfall, 266

III.

App. 3d

213,

219,

639 N.E.2d 994,

999 (2d Dist.

1994).

The record before the Board at this time includes the

original petition filed by Vogue

Tyre, the motion

for summary judgment, and the response from

Vogue Tyre.

None of these

pleadings are accompanied

by

affidavits supporting the facts included

(see

35

Ill. Adm. Code

101.504) in the pleadings.

Therefore, the Board denies the motion for summary judgment

because, the record does not include sufficient facts

for the Board to determine that the Agency

is entitled

to judgment as a matter of law.

The Board notes that the Agency

may renew this

motion after the Agency’s record is

filed.

41

---

2

IT IS

SO ORDERED.

1, Dorothy M. Gunn,

Clerk ofthe Illinois Pollution Control Board, hereby certify that the

Board adopted the

above order on

September

4, 2003,

by

a vote of

5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

42

---

Exhibit

7

---

1

1

ILLINOIS POLLUTION CONTROL BOARD

2

May

12,

2004

3

VOGUE TYRE & RUBBER COMPANY,

4

Petitioner,

5

vs.

)

PCB 96-10

6

ILLINOIS ENVIRONMENTAL

)

(UST Appeal)

7

PROTECTION AGENCY,

B

Respondent.

9

10

11

TRANSCRIPT OF PROCEEDINGS had in the

12

above-entitled

cause on the 12th day of May,

A.D.

13

2004,

at 9:00

a.nt.

14

15

BEFORE:

flEARING OFFICER BRADLEY P.

HALLORAN.

16

17

18

19

20

21

22

23

24

L.A. REPORTING

(312)

419-9292

43

---

2

1

APPEARANCES:

2

3

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

4

(1021 North Grand Avenue East,

5

P.O.

Box 19276,

6

Springfield,

Illinois

62794-9276,

7

217-782-5544)

,

by:

8

MR. JOHN J.

KIM,

9

appeared on behalf of the IEPA;

10

11

SCHUYLER, ROCHE

& SWIRNER,

12

(One Prudential Plaza,

Suite 3800,

13

130 East Randolph Street,

14

Chicago,

Illinois

60601,

15

312-565-8485),

by:

MR.

JEFFREY B. SCHILLER,

17

appeared on behalf

of Vogue Tyre

&

18

Rubber Company.

19

20

21

22

23

REPORTED BY:

SHARON BERKERY,

C.S.R.

24

CERTIFICATE NO.

84-4327.

L.A. REPORTING

(312)

419-9292

44

---

3

1

THE HEARING OFFICER:

Good morning

2

everyone.

My name

is Bradley Halloran,

I’m with the

3

Illinois Pollution Control Board.

I’m also assigned

4

to this matter PCB 96-10 Vogue Tyre and Rubber

5

Company versus

the Illinois Environmental Protection

6

Agency.

This

is an appeal regarding

--

well,

in a

7

nutshell,

it’s an underground storage tank appeal.

8

It’s,

approximately,

9:10 on May

9

12th of the year 2004.

I want

to note,

for the

10

record,

there are no members of the public here,

11

however,

if there were,

they’d be allowed to make a

12

public statement or comment.

13

We are going to run this hearing

14

pursuant to Section 104,

Subpart

D,

and Section 101,

15

Subpart F of the Board’s general provisions.

And

I

16

also want to add this hearing has been noticed up

17

pursuant to 101.602.

18

And this hearing is intended to

19

develop a record for the Pollution Control Board.

20

will not be making the ultimate decision in the

21

case.

Of course,

that’s up to the Pollution Control

22

Board to look at the transcript,

the record, and

23

post-hearing briefs and render

a decision therefore.

24

My job is to ensure an orderly

L.A. REPORTING

(312)

419-9292

45

---

4

1

hearing,

a clear record,

and to rule on any

2

evidentiary matters that may arise.

And,

again,

as

3

stated before,

we worked out

a post-hearing brief,

4

but

I will visit

that later.

5

And with that

said,

Mr. Schiller,

6

would you like to introduce yourself, please.

7

MR.

SCHILLER:

Yes.

My name is

8

Jeffrey Schiller from the law firm Schuyler,

Roche

&

9

Zwirner,

and I’m appearing on behalf of the

10

petitioner,

Vogue Tyre and Rubber Company.

11

MR.

KIM:

John Kim,

with the Illinois

12

EPA.

13

THE HEARING OFFICER:

I think

--

I

14

don’t know if you’re going to do opening, you’re

15

going to waive those, or you’re just going to read a

16

stipulation into the record,

Mr. Schiller?

Am

I

17

correct on that,

Mr.

Kim?

18

MR. SCHILLER:

Yeah,

I think,

19

basically, what we have agreed to do is we have got

20

a record that we both agreed is the record from

21

which we will work in the case,

the documents and

22

the submissions.

We can put a copy of that in as

23

the complete record.

24

That left one issue, and we have a

L.A.

REPORTING

(312)

419-9292

46

---

5

1

stipulation of the

fact with respect to that

2

particular issue.

And once that stipulation is read

3

and made part of the record,

that will be the

4

complete record between the parties.

5

There will be no witnesses,

right,

6

John?

7

MR.

KIM:

That’s correct.

B

THE HEARING OFFICER:

Okay.

9

MR. SCHILLER:

I’ll read in the

10

stipulation after the fact and we can do the rest..

11

“Now come the petitioner,

Vogue

12

Tyre and Rubber Company, by its attorney and the

13

respondent

the Illinois Environmental Protection

14

Agency by one of

its attorneys,

and hereby submit to

15

the Illinois Pollution Control Board this

16

stipulation of fact.

The parties hereby stipulate

17

as follows:

18

“One,

if Vogue were to present

19

live testimony at this hearing on May 12th,

2004,

20

that testimony would include a statement that

it was

21

Vogue’s belief as of,

at least,

February 1985 that a

22

large quantity of gasoline disappeared from the