RECE~VED

CLERK’S OFFICE

AUG

092004

STATE OF ILLIMOIS

Pollution

Control Board

NOTICE

DorothyM. Gunn, Clerk

Carol Sudman, Hearing Officer

Illinois Pollution Control Board

illinois Pollution Control Board

James R. Thompson Center

1021 North Grand Avenue, East

100 West Randolph

Street

P.O. Box 19274

Suite 11-500

Springfield, IL

62794-9274

Chicago, IL 60601

Dean E. Sweet, Assistant State’s Attorney

Madison County Administration Building

-

157 North Main Street

Suite 402

Edwardsville, IL 62025-1964

PLEASE TAKE

NOTICE

that

I have

today filed

with

the

office of the

Clerk

of the

Pollution

Control

Board

a

RESPONSE

TO

PETITIONER’S

MOTION FOR

SUMMARY

JUDGMENT

AND

REPLY TO PETITIONER’S RESPONSE, copies of which are herewith served upon you.

Respectfully submitted,

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)

Dated: August 6, 2004

BEFORE THE

POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

CASSEN

AND

SONS,

INC.,

)

Petitioner,

)

V.

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

)

)

)

PCB No.

01-102

(UST Fund)

---

BEFORE THE POLLUTION

CONTROL BOARD

OF THE STATE OF ILLINOIS

CASSENS AND SONS, INC.,

)

Petitioner,

)

v.

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

RESPONSE

TO PETITIONER’S MOTION FOR SUMMARY JUDGMENT

AND

RESPONDENT’S 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

Ill.

Adm.

Code

101.500,

101.504

and

101.516,

and

the

Hearing

Officer’s

order

dated

July

16,

2004,

hereby responds

to

the

motion

for

summary judgment

(“Motion”) filedby the Petitioner, Cassens and Sons, Inc. (“Cassens”) and replies to the response to

the

Illinois

EPA’s

motion

for

summary judgment.

Because

of the

duplicative

nature

of the

Petitioner’s

Motion

and

the

Petitioner’s response

to

the

Illinois

EPA’s

motion

for summary

judgment, only this onepleading need be filed.

In support of said response arid reply, the Illinois

EPA states as follows:

I.

The Petitioner Misstates The Facts And

Makes Erroneous

Conclusions

In its

Motion,

the Petitioner makes several

factual misstatements

and

draws erroneous

conclusions from those misstatements.

The Petitioner first focuseson the two formsincluded

within

the Administrative Record’

in support ofits arguments.

The !etitioner claims neither a document

signed by the Office ofthe State Fire Marshal (“OSFM”) inspector at the time ofthe tank removal

nor the accompanying permit

for removal

of the

tanks

indicates there

has been

any

release

of

REC~JV~D

CLERK’S OFFICE

AUG

092004

STATE OF ILLNOIS

Pollution Control Board

PCB No.

01-102

(UST Fund Appeal)

1

---

petroleum or othermaterials.

Petitioner’s Motion, p. 2; AR, pp.

8, 9.

However, the permit for removal was issued before the removal ofthe tanks was conducted,

therefore it would be impossible for that document to make reference to any leak discovered at the

time ofremoval.

AR, p.

9.

Looking to the document signed by the OSFM inspector, it indeed does

not

indicate

any

notation

by

the

inspector

that

a

release

had

occurred.

That

omission

notwithstanding, there is

no

relevance attached to

that fact since the issue here does not turn on

whether the OSFM inspectorproperly detected a release at the time ofthe tanks’ removal.

Rather,

the

issue

turns

on

whether certain

activities

conducted

by

the

Petitioner pre-dated

the date of

notification to the Illinois Emergency Management Agency (“IEMA”) ofa possible release.

The

Petitioner

acknowledges that

the activities

in

question pre-dated

the

notification.

Petitioner’s

Motion,

p.

2.

Thus,

the

costs

associated

with

those

activities

are

clearly

ineligible

for

reimbursement.

Further, the Petitioner somehow claims that the actions ofthe Petitioner at the time ofthe

removal ofthetanks in questionput the Illinois EPA on actual and substantive knowledge that there

was a possibility 6f a release

from

those

tanks.

Petitioner’s

Motion,

p.

2.

That

is

a statement

stretches the facts at best.

The Illinois

EPA did

apparently receive a copy ofthe removal report

signed by the OSFM inspector.

To conclude, however, that

receipt of such a document puts the

Illinois EPAon notice that there was a possibility ofa release is both irrelevantanthnconsequential.

There was no actual or substantive notice on the part ofthe Illinois EPA that a release had occurred

as evidenced by a report ofa release provided to IEMA.

The Illinois

EPA and IEMA are separate

state agencies,

and

even if there was actual notice of a release (which in this case there was not)

provided to the Illinois EPA, such actual notice would still not constitute notice to the proper state

I

References to the Administrative Record will henceforth be done as~

“AR,

p.

2

---

agency (JEMA) as clearly required by the Act.

The

issue

here does not

turn

on whether the

Illinois

EPA had

reason to

believe that

the

Petitioner’s tanks, or any underground storage tanks in the State, carry with them a possibility ofa

release.

The issue here is whetherthe steps taken by the Petitioner, and not assumptions it seeks to

impute upon the Illinois EPA, were such that

costs associated with

the steps are not eligible for

reimbursement.

Whether ornot the Illinois EPA had reason to think that the Petitioner’s tanks may

have experienced a release does not change the fact that the Petitioner conducted activities prior to

notifying IEMA ofa release and that the Petitioner now seeks to be reimbursed for ineligible costs

associated with those activities.

For the Petitioner to

state that the Illinois EPA had actual knowledge of a possibility of

release from

tanks,

and that actual knowledge of a possibility

is akin to the Petitioner satisfying

necessary notification

requirements clearly set forth in

the Illinois Environmental Protection Act

(“Act”) and related Board regulations, is an incredulous stretch ofthe facts and law.

ThePetitioner’s

statement that it literally and substantively compliedwith applicable lawsandregulationsis~patently

false.

Petitioner’s Motion, p. 3.

The costs under appeal were indisputably incurred before the date

that the Petitioner notified IEMA ofa release from the tanks.

There is nothing in the facts that can

cause that fact pattern to change or be rendered immaterial.

The Petitioneralso states that it was the fault ofthe State, and not the Petitioner, that created

the situation athand.

The Petitioner argues that the document signed by the OSFM inspectordid not

include any notation ofa release, and therefore the document was erroneous.

Petitioner’s Motion, p.

3.

Thus, the reasoning goes that this inaccurate information from the State was relied upon to the

detriment ofthe Petitioner.

Setting aside that the Petitionerhas not attempted to make any credible

3

---

argument regarding detrimental reliance, the lack ofsucha notation in the OSFMdocument does not

in any wayalleviate the Petitioner from its responsibilities and obligations set forth in the Act and

Board

regulations.

It

is

the Petitioner’s

obligation to

make a

timely notification

to

IIEMA of a

release, and it is the Petitioner’s restriction that costs associated with activities conducted prior to

such notification to IIEMA are not eligible for reimbursement.

II.

The Financial Impact Of This Situation Does

Not Justify Reversal

ThePetitioner argues that the present situationregardingthe tanksiteand the costs associated

with the remediation are such that an inequity will be created ifthe Illinois EPA’s final decision is

not overturned. Petitioner’s Motion, pp. 3-4.

The Illinois EPAacknowledges that the final decision

under appeal maycreate a hardship to the Madison County TransitMass TransitDistrict (“District”),

and that is certainlyregrettable.

However, in order forthere to be some redressto the District in this

situation, there must be a corresponding legal authority allowing fora change in the final decision.

The Petitioner has identified none,

as none exists.

Indeed, if the Board were to

go beyond their statutory authority and attempt to resolve this

case

on the basis ofargued inequities, it would do more extensive damage to

the application and

utilization ofthe Leaking Underground Storage Tank Program as a whole, since it would resultin a

decision that

is without basis in either fact or law.

That the District

has found itselfin

a difficult

positionnot necessarilyofits own doing may be true, but equally true is that theIllinois EPA’s final

decision comported with the relevant law and properly applied the undisputed facts.

4

---

III.

Conclusion

Forthe reasons stated herein,the Illinois EPA respectfullyrequests that the Board affirm the

Illinois EPA’s final decision, under appeal.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Responde

Jo

.m

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: August 6, 2004

This filing

submitted on recycled

paper.

5

---

CERTIFICATE OF SERVICE

I, the undersigned attorney

at law,

hereby certify that

on

August

6,

2004,

I served true

and

correct

copies

of

a

RESPONSE

TO

PETITIONER’S

MOTION

FOR

SUMMARY

JUDGMENT AND REPLY TO PETITIONER’S 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

Carol Sudman, Hearing Officer

Illinois Pollution Control Board

Illinois Pollution Control Board

James

R. Thompson Center

1021 North Grand Avenue, East

100 West Randolph Street

P.O.

Box 19274

Suite

11-500

Springfield, IL

62794-9274

Chicago, IL 60601

Dean

E.

Sweet, Assistant State’s Attorney

Madison

County

Administration Building

157 NorthMain Street

Suite 402

Edwardsville, IL 62025-1964

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Res

nd

nt

~1

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)