)

PCBNo.96-lO

)

(UST Appeal)

)

)

RECEIVED

CLERK’S OF~’~

JUN

202003

STATE OF ILLINOIS

Pollution

Control

Board

DorothyM. Gunn, Clerk

Illinois Pollution

Control Board

James R. Thompson Center

100 WestRandolph

Street

Suite 11-500

Chicago, IL 60601

Dolores Ayala

Schuyler, Roche & Zwirner

One Prudential Plaza

Suite 3800

130 East Randolph

Street

Chicago, IL

60601

BradleyP. Halloran, Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 WestRandolph Street

Suite

11-500

Chicago, IL

60601

PLEASE

TAKE

NOTICE

that

I have

today filed

with the

office of the Clerk ofthe

Pollution

Control Board

a MOTION FOR SUMMARY

JUDGMENT,

copies of which

are

herewith served

upon

you.

Respectfully submitted,

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY,

JC’u~L,,.

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: June 10, 2003

BEFORE THE POLLUTION

CONTROL BOARD

OF THE STATE OF ILLINOIS

VOGUE TYRE & RUBBER COMPANY,

)

Petitioner,

)

V.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

---

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

RECEIVED

CLERK’S

~

VOGUE TYRE & RUBBER COMPANY, an)

Illinois corporation,

)

JUN

202003

Petitioner,

)

V

)

PCB No

96-10

STATE OF ILLINOIS

ILLINOIS ENVIRONMENTAL

)

(UST Appeal)

Pollution

Control

Boarr~

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.

Adm.

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

respect to the

following grounds.

In

support of said motion,

the Illinois

EPA

states

as

follows:

I.

STANDARD

FOR

ISSUANCE AND 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

Ill.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.

1

---

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 of the Act (415 ILCS

5/40).

II.

THE ILLINOIS EPA IS ENTITLED TO

SUMMARY JUDGMENT

BASED ON THE FACTS

AND

A.

Relevant Facts

Vogue Tyre owned a facility at 4801

GolfRoad in Skokie,

Cook

County,

Illinois

until

July

7,

1995.

Vogue

Tyre kept

two

10,000-gallon

gasoline underground

storage

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

021982

to the facility.

These USTs were

removed in

1986.

Vogue Tyre’s

Petition for

Review ofJEPAFinal Decision,

pp.

1-4.

On December 7,

1994,

Vogue Tyre reported releases of gasoline from the

10,000

gallon USTs to

the Illinois

Emergency Management Agency (“IEMA”).

IEMA assigned

the

releases

Incident

Number

94-2751.

Vogue

Tyre

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

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.

Vogue Tyre appealed the OSFM’s decision to the

Board on March 6,

1995.

On December

5,

2002, the Board found in favor of the OSFM.

On February 26, 2003, Vogue Tyre appealed that decision to the Illinois

Appellate Court

2

---

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 Tyre also submitted numerous reports to the Leaking Underground Storage

Tank section ofthe 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 Tyre’s

Corrective Action Completion

Report

on

May 2,

1995,

and

Vogue Tyre’s

Site Classification Work

Plan and Budget

on

May

19,

1995.

Vogue Tyre’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-i 980s, 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 the’Board.

Vogue Tyre’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

USTs

assigned Incident No. 94-2751.

This is the only incident number, 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 based

its

denial of Vogue Tyre’s

reports.

No genuine issues of

material fact thus exist.

3

---

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 underlying law.

1.

The Illinois EPA’s

denial of Vogue 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 conduct actually occurred, regardless of

whether

or

not the

course

of conduct

was

discovered or reported

after the

statute

or

amendment became effective.

Id.

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 ofthis denial

was that the tanks were not removed in response to a release,

as was

requiredthrough the adoption ofP.A. 87-323, an amendment to Section 22.i8(e)(i)(C) of

the LUST program.

~

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 were removed 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.

Id.

Also,

since Petitioner was

4

---

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. j~

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

§

1.

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

decision to reject Vogue Tyre’s reports.

Also similar

to

Chuck

and

Dan’s,

it

is

irrelevant that

Vogue Tyre

reported the

release to

the Illinois EPA in

1994, after the LUST program became 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 ofreleases 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 the LUST 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

---

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 Tyre happened to find the

releases after the LUST program took effect.

Public policy thus favors the Illinois EPA’s

denial of Vogue 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

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 an owner or operator of an UST also

has

certain limitations that cannot be circumvented.

3.

The

Illinois

EPA’s

denial

of Vogue

lyre’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

10,000

gallon tanks

were ineligible for reimbursement is currently under review by the Appellate Court.

If the Appellate Court

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 and.that

the

Illinois

EPA does have authority over the releases,

then

Vogue Tyre would be obligated

to perform remediation without the possthiity:of=reinthursement.

6

---

indicates what the temporal reach of a statute should be, it is up to the court to determine

whether application of the 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.2d 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.”

j4.~

at 39, 972.

Ifthe court finds there would

in fact be

retroactive impact, the presumption

is that the legislature did not intend the statute to be

applied retroactively.

~

at 38, 971.

Here,

application of the

LUST

law

to

Vogue Tyre’s

tank

removal

would

have

retroactive

impact.

Ifthe LUST

program were

applied, it would increase

Vogue Tyre’s

liability

for past

conduct,

for

Vogue lyre

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 lyre 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 lyre

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.

As just outlined, the

7

---

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

events

in

that

Vogue lyre

would

now be

potentially

subject to

enforcement action if it

failed

to

comply

with

all

LUST

program

provisions

regarding

release remediation.

Application

of the

LUST

program

to

Vogue

lyre’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

lyre’s

10,000-gallon

tanks

are

thereby

not

subject

to

regulation

under

the

LUST

program, and the Illinois EPA’s

denial ofreports relatedto these tanks was

legitimate.

III.

CONCLUSION

Vogue lyre’s

reports

are not

subject to

review by

the

Illinois

EPA

under

the

LUST program.

The removal of Vogue lyre’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.

Cànsequently,

the

1 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 of the 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 of Vogue lyre’s reports was appropriate.

8

---

For the reasons stated herein, the Illinois EPA respectfully requests that the Board

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

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Assistant

Counsel

Special Assistant

Attorney

General

Dana Vetterhoffer

Legal Intern

Division ofLegal 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

This filing submitted on recycled paper.

9

---

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

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

Dolores Ayala

Schuyler, Roche & Zwirner

One Prudential Plaza

Suite 3800

130 East Randolph Street

Chicago, IL

60601

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent

John.~Kim

i:

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)