R E~
~
~l
V E
CLEP~’S
OF~CE
AUG
2
2OU~
BEFORE THE POLLUTION CONTROL BOARD
OF THE
STATE OF ILLINOIS
VOGUE
TYRE
&
RUBBER COMPANY,
)
Petitioner,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
)
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, 1L
60601
Jeffrey E. Schiller
Schuyler, Roche & Zwirner
One Prudential Plaza
Suite 3800
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 LEAVE
TO FILE INSTANTER and RESPONSE,
copies of which are
herewith served upon you.
Respectfully submitted,
-
ILLIN
IS E
ONMENTAL
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: July 30, 2004
STATE OF ILLINOIS
Pollution Control Board
)
)
)
PCB No. 96-10
(UST
Appeal)
NOTICE
BEFORE THE POLLUTION CONTROL
BOARD
OF THE STATE OF ILLINOIS
VOGUE TYRE & RUBBER COMPANY,
)
Petitioner,
)
V.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
MOTION FOR LEAVE TO
FILE INSTANTER RESPONDENT’S RESPONSE
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, hereby submits this motion
for leave to file instanter the Illinois EPA’s response to the
Post-Hearing Brief filed by
the Petitioner.
In
support of this
motion the Illinois
EPA
states
as
follows:
-
1.
The Illinois EPA’s responsewas due on July 28, 2004.
However, the undersigned
attorney’s ability to
file this response on
behalfof the
Illinois
EPA was dependent upon receipt
of an
annual appointment
as a
Special
Assistant
Attorney General
(“SAAG”)
from the Illinois
Attorney General’s Offlce.
-
2.
Due to
apparent administrative delays, the undersigned attorney’s appointment
as
a
SAAG was
not
received
until
afler
5
p.m.
on
July 29,
2004.
This delay
is
regrettable, but
should
not prove to be prejudicial
to
the ultimate
deliberation and resolution of the case,
as the
Petitioner has previously submitted an open waiver ofthe Board’s decision deadline.
3.
Further,
the
Illinois
EPA has no
objection
to
the Petitioner receiving at least an
equal (if not additional) extension oftime by which it may file its Reply, if any.
REC~VED
CLERK’S OFFICE
AUG-2
2004
STATE OF ILLINOIS
PoIIut~on
Control Board
PCB No. 96-10
(UST Appeal)
1
WHEREFORE,
for
the
reasons
stated
above,
the
Illinois
EPA
hereby
respectfully
requests that this motion for leave to file instanter be allowed.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Res
nt
~-Th
John
.Kim
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)
Dated: July 30, 2004
This filing
submitted on recycled paper.
2
BEFORE THE
POLLUTION CONTROL BOARD
OF THE
STATE OF ILLINOIS
VOGUE TYRE & RUBBER COMPANY,
)
Petitioner,
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
RESPONSE TO PETITIONER’S
POST-HEARING BRIEF
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 the Hearing
Officer’s
order dated June
21,
2004, hereby submits its Response to the Petitioner’s Post-Hearing Brief (“brief’) to
the
Illinois Pollution Control Board (“Board”).
I.
BURDEN
OF PROOF
Pursuant to
Section 105.112(a) ofthe Board’s procedural rules
(35
Ill. Adm. Code
105.112(a)), the burden of proof shall be
on
the petitioner.
An owner or operator of a
leaking
underground storage tank (“LUST”) must
prepare and submit a corrective action
plan designed to mitigate
any threat to
human health,
human safety or the environment
resulting
from
the
underground
storage
tank
release.
415
ILçS
5/57.7(b)(2).
The
primary focus must remain on the adequacy ofthe permit application and the information
submitted
by
the applicant
to
the
Illinois
EPA.
John Sexton
Contractors Company
v.
Illinois
EPA,
PCB
88-139
(February
23,
1989), p.
5.
Further,
the ultimate
burden of
proof remains on
the party initiating
an
appeal of an
Illinois
EPA final decision.
John
Sexton
Contractors
Company v.
Illinois
Pollution Control
Board,
201
Ill.
App.
3d
415,
425-426,
558
N.E.2d 1222,
1229
(1st
Dist.
1990).
REC~JVED
CLERK’S OFFICE
AUG
2
2004
STATE OF ILLINOIS
Pollution Control Board
PCB No. 96-10
(UST Appeal)
1
Thus
the
Petitioner,
Vogue
Tyre
&
Rubber
Company
(“Vogue”),
must
demonstrate to
the
Board
that
it has
satisfied its
burden before the Board
can enter an
order
reversing or modifying
the Illinois
EPA’s
decision under review.
Specifically in
this
case, Vogue must
demonstrate that
the release that
apparently occurred at its
facility
is
subject
to
the .LUST
program
as
set
forth
in
Section
XVI
of the
Environmental
Protection Act (“Act”) (415 ILCS
5/1, et ~çq.).
II.
STANDARD
OF REVIEW
Section
57.8(i)
ofthe Act grants an
individual the right to
appeal a determination
of the Illinois
EPA to the Board pursuant to
Section 40 of the Act (415 ILCS
5/57.8(i)).
Section
40 of the Act
(415 ILCS
5/40)
is the general appeal
section for permits and has
been used by
the legislature as the basis
for this type ofappeal to the Board.
Therefore,
when reviewing an Illinois EPA decision on submitted technical plans or reports pursuant
to the LUST program, the Board must decide whether or not the submissions demonstrate
compliance with the Act and Board regulations.
Broderick Teaming Company v.
Illinois
EPA,
PCB
00-187
(December
7,
2000).
In
this
particular
appeal,
the
Board
must
determine whether or not the facility is
even subject to regulation pursuant to
the LUST
program.
The Board will not consider information that was not before the Illinois EPA prior
to
the issuance of its
determination on appeal.
The
Illinois EPA’s
final decision frames
the issues
on
appeal.
Todd’s
Service
Station
v.
Illinois
EPA,
PCB
03-2 (January
22,
2004), p.
4.
In considering whether the Illinois EPA’s decision now under appeal was correct,
the Board must look only to the documents within the Administrative Record (“Record”),
2
along with relevant and appropriate testimony provided at the hearing held in this matter.’
Based
on
the
information within the
Record
and the testimony,
along
with the relevant
law,
the
Illinois
EPA
respectfully requests
that
the Board
enter an
order
affirming
the
Illinois EPA’s decision.
-
III.
INTRODUCTION
Based upon the relevant facts and law, the Board should conclude that the Illinois
EPA correctly
determined that
the
documents
submitted
pursuant
to
Incident
Number
942751 were not subject to regulation pursuant to the State’s LUST program.
From January
1966 until July 7,
1995, Vogue owned a facility at 4801 GolfRoad
in Skokie,
Cook County, Illinois.
AR, p. 73;
App., p.
64.
Vogue owned or operated two
10,000-gallon
gasoline underground
storage tanks
(“USTs”
or “tanks”) on
this
facility.
The Office ofthe State Fire Marshal (“OSFM”) assigned number 2-021982
to the facility.
These USTs were removed on May 15,
1986.
AR, pp.
73,
108.
On
December
7,
1994,
Vogue
reported
releases of gasoline
from
the
10,000
gallon USTs
to the Illinois
Emergency Management
Agency (“IEMA”);
IEMA assigned
the releases Incident #94275 1.
AR, p.
73.
In the time between the removal ofthe tanks
and the date the releases were reported, Vogue had a “mistaken belief’ that gasoline had
not leaked into the ground but rather had been stolen.
Vogue later decided that this belief
that
gasoline had
been stolen was a mistake, but
that
information and
explanation as to
the
delay
in
reporting
was
never
conveyed to
the
Illinois
EPA
in
the
documents
in
question.
App., p. 48.
Citations
to
the
Administrative
Record will hereinafter
be made
as,
“AR, p.
.“
Referepces to
the
transcript
of
the
hearing
will
be
made as,
“TR,
p.
.“
Consistent
with the
abbreviation
used in the
Petitioner’s btief~,
references to the Appendix to the briefwill be made as, “App., p.
.“
Included
within
the
Appendix is Exhibit
1
offered at the hearing, consisting of the
Petition.
Also included in the Appendix
is the transcript of the
hearing, which includes a set of factual stipulations agreed upon by the parties.
3
Vogue
then
began
corrective
action
and,
in
December
1994,
submitted
to
the
OSFM
an
Eligibility and
Deductibility
Application.
AR,
pp.
72-82.
On February
1,
1995,
the OSFM declared that since the two
10,000 gallon USTs
were removed prior to
September 24,
1987, they were ineligible for reimbursement pursuant to
415 ILCS 5/57.9
and 430 ILCS
15/4.
AR, pp.
83-85.
Vogue appealed OSFM’s decision to the Board on
March 6,
1995.
On December
5,
2002, the Board found in
favor ofthe OSFM.
App., pp.
19-23.
On
February
26,
2003,
Vogue
appealed
the
Board’s
decision
to
the
Illinois
Appellate Court for the First District (“OSFM appeal”) (Vogue Tyre & Rubber Company
v.
Office
of the
State
Fire
Marshal,
Appellate
Court
No.
03-0521).
That case
is
still
pending.
Vogue’s Post-Hearing Brief (“Brief’), p.
3.
Vogue
also
submitted
numerous
reports
to
the
Leaking
Undergtound
Storage
Tank section ofthe Illinois EPA for review.
The illinois EPA received Vogue’s 20-Day
Report,
45-Day
Report,
Site
Classification
Completion Report,
and
Corrective Action
Plan
on April
3,
1995,
Vogue’s Corrective Action Completion Report
on May 2,
1995,
and
Vogue’s
Site Classification Work Plan and Budget on May
19,
1995.
AR,
pp.
97-
224; App., pp.
13,
66.
-
On June
15,
1995,
the
Illinois
EPA
issued
a
final
decision in
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:
App. Pp.
13-15.
That final decision is the decision now under review.
IV.
THE ISSUES IN THE OSFM
APPEAL ARE SEPARATE
The
Petitioner notes
that
the
issue
regarding whether
the USTs
were
properly
registered
is
now pending
before the
appellate
court,
and
thus
is
not
discussed in
the
4
Petitioner’s Brief.
Petitioner’s Brief, p. 4.
The Illinois EPA agrees that the issues in that
matter are distinct from the appeal at hand, but also wishes to
clarify a statement made by
the Petitioner related to the OSFM appeal.
The Illinois EPA has not based any arguments
in prior pleadings on th~Board’s
decision in
the
OSFM
case.
The
Illinois
EPA
and
OSFM play separate roles
and
apply different statutory
and
regulatory provisions in
the
implementation ofthe LUST program, though those roles act in concert with one another.
It
is
OSFM that
issues
findings of eligibility and
deductibility,
and
the
Illinois
EPA
reviews
submissions regarding corrective action
and
requests
for reimbursement.
As Section 57.5(e) ofthe Act (415 ILCS
5/57.5(e))
provides,
it is
conceivable that the an
owner or operator of an underground storage tank may not be eligible for reimbursement
yet is
still obligated to perform corrective action as required by the Act.
Thus,
a finding
ofineligibility for reimbursement is not tantamount to
a finding ofno
liability pursuant to
the other provisions ofTitle XVI ofthe Act.
V.
VOGUE IS NOT
SUBJECT TO THE LUST
PROGRAM
For
several
reasons,
the
Board
should
affirm
the
Illinois
EPA’s
finding
that
Vogue is not subject to the LUST program.
To
find otherwise would require a retroactive
application of the law, which is
improper both legally and for policy reasons.
Vogue’s
argument
that it has complied with the eligibility requirements presumes
it is subject to
the LUST program, an obstacle it cannot overcome.
A.
The Illinois EPA’s denial of Vogue’s reports should be upheld because the tanks
at issue were removed prior to the date the LUST program became effective
Simply put,
the
Illinois
EPA
lacks
regulatory
authority
over
Vogue’s
10,000-
gallon
tanks because the tanks
were
removed prior
to
the
effective date of the
LUST
program.
The Board
has recognized
that
when
a
statute
involves
“prior
activity
or a
5
certain course of conduct.
.
.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
conduct
actually
occurred,
regardless
of whether
or
not
the
course
of
conduct
was
discovered or reported after the statute or amendment became effective.
Id.
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
May of
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 ofIllinois’s
LUST program, though, did not become
effective until July
1,
1986, several months after
the tank removal.
$~,
P.A.
84-1072, sec.
1,
adopting
Section
1022.12
of
the Act
(Ill.
Rev.
Stat. Ch.
111
Y2, par.
1022.12) (1987), effective July
1,
1986.
That the LUST program was effective only several months (as opposed to
several
years) after the USTs were removed is relevant to the extent that the removal predated the
effective date ofthe LUST program by any time.
At the time ofthe tanks’ removal, there
simply was
no
LUST
program in
effect
as now found in the Act.
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 of Vogue Tyre’s reports
was valid.
For this reason, the Board
should find that the Illinois EPA properly rejected
the technical plans and reports.
B.
The Illinois EPA’s final decision should be upheld since applying
the LUST program to Vogue would
constitute retroactive statutory application
6
The Illinois EPA cannot regulate Vogue Tyre’s
10,000-gallon tanks because to
do
so
would
constitute retroactive
statutory
application.
The
Illinois
Supreme Court has
recently addressed
the issue of retroactive
statutory
application,
and
its
clear
guidance
further supports the Illinois EPA’s final decision under appeal.
In the case of Caveney v. Bower, 207 Ill.2d 82, 797 N.E.2d 596
(2003), the court
considered arguments related
to
retroactive
application of law.
The court noted that
in
the case of Commonwealth Edison
Co.
v.
Will
County Collector,
196
Ill.2d 27,
38,
749
N.E.2d 964,
971
(2001), it first adopted the United
States Supreme Court’s retroactivity
analysis as set
forth
in the
case of Landgraf v.
USI
Film Products,
511
U.S.
244,
114
S.Ct.
1483 (1994).
Caveney, 207 Ill.2d at 91, 797 N.E.2d at 601.
Under
the
Lancigraf analysis,
the
first
question
is
whether the
legislature
has
clearly
indicated
the
“temporal
reach”
of an
amended
statute.
If so,
then
absent
a
constitutional provision, that expression oflegislative intent must be
given effect.
Ifnot,
then
the
court must
determine whether
applying
the
statute
would
have
a
retroactive
impact (i.e.,
whether it would impair
rights possessed when
the party acted,
increase
a
party’s
liability
for
past
conduct,
or
impose
new
duties
with respect
to
transactions
already completed).
If there would
be no
retroactive impact, then the amended law may
be applied retroactively.
If there would be
a retroactive impact, however, then the court
must presume that the legislature did not intend that it be so applied.
Id.
The
court went
on
to
state
that it had
recently
acknowledged
in
another case,
People v.
Glisson, 202 Ill.2d
499, 782 N.E.2d 251
(2002), that
the legislature has clearly
indicated the
“temporal reach”
of every
amended
statute
by
virtue of section
4 of the
Statute on Statutes.
Caveney, 207 Ill.2d at 92, 797 N.E.2d at
601.
Applying its holding
7
in
Glisson, the court held that
section 4
represented a clear legislative
directive as to
the
temporal reach ofstatutory amendments and repeals.
Namely, that those
amendments or
repeals that
are procedural
in
nature may be
applied
retroactively, while those
that
are
substantive may not.
Id.
-
Therefore,
-the
court
concluded
that
applying
those
relevant
cases
and
their
respective
holdings,
it
is
virtually
inconceivable
that
an
Illinois
court
(and
here,
the
Board) will ever
go beyond step
one ofthe Landgraf approach.
That deliberation should
involve a determination ofwhether the amendment in question contains an
“unequivocal
expression oflegislative intent” authorizing retroactive
application.
Ifthe amendatory act
does not
contain
such a
clear
indication of legislative
intent,
then the section
4
of the
Statute on Statutes
is the legislative indication that retroactive
application -of substantive
statutory changes is
forbidden.
Caveney, 207 Ill.2d at 94-95, 797 N.E.2d at 603.
Here,
there
is
absolutely
no
indication
in
either
Section
57
of the
Act
(the
amended
portion of the
Act)
or
Section
1022.12
(the
first
statutory
amendment
that
created the LUST program) that the program was intended to be
applied in a retroactive
fashion.
Even
the
Petitioner
acknowledges
that
Section
57(a)
of the
Act
does
not
explicitly state that it applies to a release that
took place prior to the effective date of the
LUST
program.
Petitioner’s Brief, p. 6.
More specifically, the Illinois
EPA’s position is
that there is no
language anywhere in Section 57 ofthe Act that indicates it is intended to
apply retroactively to underground storage tanks that were not in existence at the time of
the amendment that created the LUST program.
A
similar
situation
was
encountered
in
the
case
of OK
Trucking
Company
v.
Armstead, 274 Ill. App.
3d
376, 653 N.E.2d 863
(1st Dist.
1995).
There, a party sought to
8
register underground storage
tanks that
had
been removed from the
ground prior to
the
time ofthe requested registration.
The
court held that no
such registration was possible
since
the
tanks
in
question
did
not
meet
the
unambiguous
federal
definition
of
underground storage tank; namely, the tanks in question did not exist.
OK Trucking, 274
Ill.
App.
3d
at
380,
653
N.E.2d
at
865-866.
Those
definitions
relied
upon
by
the
appellate court are the same as now found in Section
57.2 ofthe Act (415 ILCS
5/57.2).
The
court
ruled
that
if
the
General
Assembly
had
intended
to
regulate
former
underground
storage
tanks,
it was
confident
that
it would
have clearly
indicated such
intent.
However, the court found no
evidence of any such intent.
OK Trucking, 274 Ill.
App. 3d
at 380, 653 N.E.2d at 866.
Therefore,
the Illinois
Supreme Court’s
guidance
should be
followed,
and
given
that
there
is
no
language
in
any
portion of Title
XVI
of
the
Act
that
evidences
a
legislative
intent
that
the
program
be
applied
retroactively,
and
since
Title
XVI
is
definitely a substantive (versus procedural) amendment to
the Act itself, the Board should
accept
the Illinois
EPA’s
argument
that
application of the LUST
program
to
Vogue
in
this specific situation would constitute an improperretroactive application oflaw.
C.
Vogue’s arguments are without merit and lack factual and legal support
Vogue
argues
in
its brief that
language within
Title
XVI of the
Act
supports a
finding that the LUST program applies to a release from tanks that were removed before
the effective date ofthe program
itself.
In support of that contention, Vogue notes that
Section
2(a)(iv)
and
2(a)(v)
of the
Act
(415
ILCS
5/2(a)(iv),(v)) provide
that
it
is
the
obligation of State government to
afford financial assistance in preventing environmental
damage
and
private
as
well
as
governmental
remedies
must
be
provided
to
increase
9
public participation in the task of protecting the environment.
Further, Vogue cites to the
intent and purpose provisions ofTitle XVI ofthe Act.
Petitioner’s Brief, pp.
6-7.
While
that
language
does accurately
express the purpose of the
Act
in
general,
and
Title XVI of the Act in particular,
to
assist
in,
encourage,
and
foster the cleanup of
contaminated sites
and property, it does not contain the specific
legislative intent that the
Act and
its provisions are
to applied in a retroactive fashion.
Indeed, the predicate for all
of the arguments of the Petitioner is
that there must
have been
an
underground
storage
tank meeting the statutory definition found in Section
57.2 of the Act in
existence at some
relevant date
or time.
By their own admission,
Vogue removed the
USTs
prior
to
the
effective date of the LUST
program.
That so, it could not
and
cannot now convincingly
represent that those tanks were or are subject to the program.
-
•
Another argument advanced by the Petitioner is that the case ofChemRex,
Inc. v.
Pollution Control Board, 257 Ill. App. 3d 274, 628 N.E.2d 963
(1st Dist.
1993), is
directly
analogous and weighs in favorofVogue.
A simple reading ofthat case, however, reveals
that if anything, ChemRex supports the Illinois EPA’s final decision.
In
ChemRex,
an
owner/operator of
an
underground
storage
tank
that
properly
registered the
tanks
and was subject to
the LUST program challenged an
attempt by the
Illinois
EPA
to
retroactively apply an
amendatory
provision of the
Act.
The appellate
court stated that as a general rule of statutory construction in Illinois,
an amendatory act
is
to
be
construed
as prospective
only.
ChemRex,
257
Ill.
App.
3d
at 278-279,
628
N.E.2d at
966.
In reviewing the actions taken by the Illinois
EPA in that case, the court
found
that
the
retroactive
application
of the
statutory
amendment
in
question was
an
abuse ofdiscretion.
ChemRex, 257 Ill. App. 3d at 280,
628
N.E.2d at 967.
10
Factually, the ChemRex case
is
distinguishable from the present situation,
in that
the owner/operator of the UST
in
question was without question
subject to
the
LUST
program.
Further, the owner/operator there had properly registered the tanks in
question.
Here,
it is disputed as to
whether Vogue is
subject to the LUST program,
and Vogue has
not properly registered its
tanks
in question.
Thus,
on those
grounds the court’s
finding
that
eligibility
for reimbursement from
the Underground
Storage
Tank
Fund (“Fund”)
should have been determined
as of the
time
when the owner/operator
notified the state
agencies ofthe release is inapplicable, since there was no dispute the owner/operator was
subject to the LUST program.
Legally, though, the fundamental statements oflaw cited to by the court are most
relevant,
in
that
the court
recognized
that
as
a
general
rule,
statutory
amendments
in
Illinois
(e.g.,
the
adoption
of
the
LUST
program
into
the
Act)
are
to
be
applied
prospectively
only.
The
court
did
not
find
any
statutory
language
that
indicated
a
legislative
intent
that
the
LUST
program,
or
any
provisions
therein,
be
applied
in
a
retroactive
fashion.
-
Even
though
ChemRex
was
decided
before
the
Illinois
Supreme
Court’s most recent
discourse on retroactive application
(in Caveney), the appellate court
did properly cite to the general
principle regarding prospective
application.
Further,
the
appellate court did not find any
legislative intent in the statutory provisions ofthe LUST
program (or the Act) allowing
forretroactive application ofamendments.
Finally, Vogue argues that “it cannot be clearer that Section 57.9” of the Act (415
ILCS
5/5
7.9)
applies to
notifications
and
corrective actions
taken
after the
date of the
enactment.
Unfortunately,
the Petitioner does not point
to
any specific
language
in that
provision that is consistent
with that contention.
Again, if Vogue did not have any USTs
11
in
existence
at the time
the
LUST
program became effective,
then it did
not have any
underground
storage
tank that
met
the definition
such that
it would
be
subject
to
the
provisions of the LUST
program.
It is
impossible for Vogue
to
claim it
met
all
of the
eligibility requirements in Section 57.9 ofthe Act if it never had an underground storage
tank in existence at any time the LUST program was effective.
For that reason alone, the
Board should affirm the Illinois EPA’s final decision.
D.
The Illinois
EPA’s final decision is consistent with public policy
The
LUST
program
should
not
be
applied
to
the
tanks
removed
prior
to
the
effective date of the LUST
program as
a matter of public
policy.
The tanks were not
subject
to
regulation
under
the
LUST
program
when
they
leaked or
when
they were
removed, and they should not be
subject to
regulation now.
Had Vogue
discovered the
releases at the time the USTs were removed, the provisions ofthe LUST
program would
not have applied since there was no LUST program to
speak of.
If the Board were to
accept Vogue’s claim that the USTs
not
in existence at the
time
of the
effective
date of the LUST
program
are nonetheless
subject to
the LUST
program,
any
past
owner or operator of such
an
underground
storage tank
would
be
subject to the corrective action provisions now found in Title
XVI of the Act.
Although
Vogue
is presenting itself as a willing party, others in that situation may not be so eager
to
concede
such
obligations.
Further,
since
Vogue’s tanks
were
removed
prior
to
the
effective date of the LUST program, and the related provisions regarding payment offees
into
the
Fund, Vogue would
be
availing
itself of a
pool
of money to
which
it neyer
contributed as part ofthe LUST program.
12
Further,
to require that the Illinois EPA accept the plans and reports submitted by
Vogue would effectively reward them for belated conduct and activity in that they would
potentially be able to
seek reimbursement from
the Fund.
To
allow an owner or operator
that would not have qualified for eligibility under the LUST program
due
to removal 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
which they were
never entitled.
The Illinois
EPA has recognized that its
authority has
limitations
that
must
be
respected,
and
similarly
the
Board
should
make
clear
to
the
Petitioner that there are certain limitations to the Fund that cannot be circumvented.
While the Petitioner has stated it had a “mistaken belief’ for not niaking a timely
report of the release or submitting
plans
and
reports,
the Petitioner acknowledges that
“mistaken belief’
was never conveyed
to
the Illinois
EPA.
Therefore,
based
upon
the
documents and
information before it at the time of its decision, the Illinois EPA had no
reason
to believe there was any justification or explanation for the delay ofseveral years
between the removal of the tanks
and the subsequent
report of a release.
Ifthe owner or
operator of an underground storage tank that was removed even in the
1 960s now
finds
evidence of petroleum
contamination
at
the
site, Vogue
would
have the
Illinois
EPA
accept that owner or operator stepping forth
to
be
able
to
claim reimbursement for any
corrective
action
taken
in
association
with
that
contamination.
The
fact
pattern
is
identical
to
the
situation
here:
Tanks
were
removed
before
the
effective
date
of the
LUST
program,
the
tanks
were
not
in
existence
at
any
effective
time
of the
LUST
program, and yet
an owner/operator seeks to avail itself ofreimbursement from the Fund.
13
Admittedly, that party would also conceivably have to perform all nebes~ary
work, but it
still would result in the application of a law that was not in
effect at the time the subject
of the law (i.e., underground
storage tanks) were in existence.
-
VI.
CONCLUSION
Vogue’s plans
and
reports were not
subject to
review by
the Illinois
EPA under
the LUST program
since the subject tanks were
not subject to the LUST program.
The
removal of the
10,000-gallon tanks
was subject to
the
law
in
existence at the
time
the
tanks
were
removed, and
that excludes the LUST
program.
Consequently,
the
10,000-
gallon
tanks,
as well as
any substances
released
from
such tanks,
are not
subject to
the
LUST program orto Illinois EPA regulation pursuant to the LUST program.
For the reasons stated herein, the Illinois EPA respectfully requests-that the Board
affirm the Illinois EPA’s final decision under appeal.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Resp
nt
•
John
.
im
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)
Dated: July 30, 2004
This filing submitted on recycledpaper.
14
CERTIFICATE OF SERVICE
I, the undersigned attorney at
law, hereby certify
that on July 30, 2004,
I served
true and
correct copies of a MOTION FOR LEAVE TO FILE INSTANTER and RESPONSE, by placing
true
and correct copies thereof in properly 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
Jeffrey E.
Schiller
Schuyler, Roche & Zwimer
One Prudential Plaza
Suite 3800
130 East Randolph Street
Chicago, IL
60601
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
-
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)
