RECEfl/ED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUL
212004
STATE OF ILLINOIS
ILLINOIS AYERS OIL
CO.,
)
Pollution Control Board
)
Petitioner,
)
)
v.
)
PCB03-214
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF FILING AND PROOF OF SERVICE
TO:
Dorothy Gui~n,
Clerk
Carol Sudman
Illinois Pollution Control Board
Hearing Officer
100 West Randolph Street
Illinois Pollution Control Board
State ofIllinois Building, Suite 11-500
1021 North Grand Avenue East
Chicago, IL 60601
P.O. Box 19274
Springfield, IL 62794-9274
JohnKim
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O.Box 19276
Springfield, IL 62794-9276
PLEASE BE ADVISED THAT we are today filing with the Pollution Control Board by U.S.
mail the original and nine copies of Response in Opposition to Motion For Leave to Amendment to
Response, a copy ofwhich is attached hereto.
The undersigned hereby certifies that a true and correct copy ofthis Notice ofFiling, together
with a copy of the document described above, were today served upon the hearing officer and counsel
ofrecord ofall parties to this cause by enclosing same in envelopes addressed to such attorneys at
their business addresses as disclosed by the pleadings ofrecord herein, with postage fully prepaid,
arid by depositing same in the U.S. Mail in Springfield, him is on the /(~~‘day ofJuly, 2004.
~~r~~haw
MOHAN, ALEWELT, PRILLAMAN & ADAMI
1 North Old Capitol Plaza, Suite 325
Springfield, IL 62701
Tel: (217) 528-2517
Fax: (217) 528-2553
THIS FILING SUBMITTED ON RECYCLED PAPER
C:\Mapa\CSD Environmental\Notice of FilingO7l 604doc\crk\7/16/04 4:07 PM
RECERVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUL
2 t 2004
ILLINOIS AYERS OIL CO.,
)
Pollution
STATE OF
ControlILLINOISBoard
Petitioner,
)
)
v.
)
PCBO3-214
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
RESPONSE IN
OPPOSITION TO MOTION
FOR LEAVE TO AMENDMENT TO RESPONSE
NOW COMES the Petitioner, Illinois Ayers
Oil Co.
(“Illinois Ayers”), by one ofits
undersigned attorneys, pursuant to Section 101.500(d) ofthe Pollution Control Board Procedural
Rules (35 hll.Adm.Code
§
101.500(d)), in opposition to the Motion for Leave to Amendment to
Response filed by the Illinois Environmental Protection Agency (“Illinois EPA”), stating as
follows:
1.
The Illinois EPA is seeking permission to belatedly amend a late response to
Illinois Ayers’ Motion for Authorization of Payment ofAttorneys Fees as Cost ofCorrective
Action.
2.
As ofthis date, the Board has not accepted the Agency’s initial untimely
response.
3.
Section 101.522 ofthe Pollution Control Board’s Procedural Rules authorizes an
extension oftime for filing any document “for good cause shown.”
(35
Ill.Adm.Code §101.522)
4.
The Illinois EPA claims that it has come into possession ofnew information about
who actuallypaid the attorney fees in question.
5.
The Agency knew, or at the very least had strong reason to know, that CSD
Environmental was incurring the legal charges because Exhibit 1 to Petitioner’s Motion was
clearly identified as the summary ofthe CSD Environmental Services bilL Therefore,
Respondent has not shown good cause to belatedly amend a late filing.
6.
Petitioner would be prejudiced by the late filing because it raises numerous
evidentiary and legal questions about the arrangements made to pay the legal costs in this case.
7.
The identity ofthe person or persons who actually paid the attorney fees is
completely irrelevaht. In any given case, the legal costs of representing a party may actuallybe
paid by a third party, such as an insurance company, a family member, a legal services
organization, or any number ofpeople under an infinite variety of contractual agreements,
indemnities or settlements.
8.
Here, the fee-shifting provision provides that “the Board may authorize payment
oflegal fees” in any case in which the owner or operatorprevails before the Board. (415 ILCS
5/57.7(1))
The statutory language does not even require the legal fees to be incurred, let alone be
paid orpaid by anyone in particular. See In re: Marriage ofBrent, 263 Ill.App.3d 916, 927 (4th
Dist. 1994) (explaining that statutory award of fees “necessarily incurred” implied, albeit
inconclusively, that the legal fees must be incurred to be awarded). In any event, the Agency
does not claim that legal expenses detailedby affidavit and exhibit were not incurred in the
present lawsuit.
9.
Nor does the Act require that the legal cost be paid, let alone be paid solely by the
owner/operator. (415 ILCS
5/57.7(1))
As a general rule, attorney fees need not have been paid
at all in order to justify an attorney fee award. See Brosam v. Employers’ Mutual Casualty Co.,
61 Ill.App.2d 183, 198 (4th Dist.
1965).
It is completely irrelevant whether or not the party
2
entitled to attorneys’ fees actually paid attorney fees. Brubakken v. Morrison, 240 Ill.App.3d
680, 686 (1st Dist. 1992); see also Pitts v. Holt, 304 Ill.App.3d 871, 874 (1st Dist. 1999) (holding
that whether or not the client agreed to pay a fee or whether the attorney agreed to accept any
awarded attorney fees are not valid bases on which to deny or limit an attorney fee award). It is
also irrelevant whether or not the attorney fees are paid by a third party.
~,
~
Pickering v.
Holman, 459 F.2d 403, 408 (9th Circ. 1972) (holding that manufacturer’s willingness to pay
customer’s legal costs is common and should not preclude fee award where customer prevails);
Hernas v. Vickery Hills, 517 F.Supp.
592,
593 n.1 (N.D.Ill. 1981) (plaintiffs’ fees paid by
insurance company irrelevant in determining whether an award offees is appropriate); American
Council ofBlind v. Romer, 962 F.2d 1501, 1503-04 (10th Circ. 1992) (refusing to bar an award
oflegal fees where the attorney was compensatedby a third party; holding that “the type of
financing arrangement involved in the case should not be used an independent basis on which to
deny the plaintiffs their deserved fees.”); ABC, Inc. v. Primetime 24, 67 F.Supp.2d
558,
562
(M.D.N.C. 1999) (holding that the fact that a third party has paid some or all ofthe prevailing
party’s legal fees does not bar recovery ofstatutory attorney fees, citing various statutes). The
totality ofthe case law holds that the identity ofthe person paying the legal fees is ofno
consequence.
10.
The award sought in the subject attorney fee petition is one to be granted to the
owner/operator. Any interest any third-party may have in such an award is not relevant. Where
the Respondent has failed to cite any authority for the legal relevance of this late allegation, the
motion to amend should be denied.
11.
The award of attorney fees in this case is proper because Petitioner’s successful
• challenge of the Agency’s decision reversed an environmentally unsound decision by the Agency
3
to the benefit ofthe Petitioner and the public. In addition, Petitioner’s success in the litigation
corrected a long-standing and erroneous practice by the Agency of secret rate-making, which
also advanced the lawful and fair implementation ofthe LUST program. None ofthese benefits
are reduced orminimized by virtue of the allegation that someone else may have paid legal costs.
WHEREFORE, Petitioner prays for an Order denying Respondent leave to file
amendment to response and in the alternative, if said motion is granted, that Petitioner be given
leave to file such clarifying information as the Board deems relevant, and for such other relief as
the Board deems nfeet and just.
Respectfully submitted,
ILLINOIS AYERS OIL CO., Petitioner
By
By
MOHAN, ALEWELT, PRILLAMAN & ADAMI
1 North Old Capitol Plaza, Suite 325
Springfield, IL
62701
Phone:
(217) 528-2517
Fax: (217) 528-2553
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to the benefit ofthe Petitioner and the public. In addition, Petitioner’s success in the litigation
corrected a long-standing and erroneous practice by the Agency ofsecret rate-making, which
also advanced the lawful and fair implementation of the LUST program. None ofthese benefits
are reduced or minimized by virtue ofthe allegation that someone else may have paid legal costs.
WHEREFORE, Petitioner prays for an Order denying Respondent leave to file
amendment to response and in the alternative, if said motion is granted, that Petitioner be given
leave to file such clarifying information as the Board deems relevant, and for such other relief as
the Board deems meet and just.
Respectfully submitted,
ILLINOIS AYERS OIL CO., Petitioner
By MOHAN;~~EWELT,P~I~AMAN&ADAMI
By
MOHAN, ALEWELT, PRIILLAMAN & ADAMI
1 North Old Capitol Plaza, Suite 325
Springfield, IL 62701
Phone: (217) 528-2517
Fax: (217) 528-2553
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5:05
PM
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