BEFORE THE
ILLINOIS
POLLUTION
CONTROL BOARD
RECEIVED
OF THE STATE OF ILLINOIS
CLERK’S OFFICE
VOGUE TYRE &
RUBBER COMPANY,
)
SEP
1112004
Petitioner,
90
~
~
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
Attn:
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 ~
we
filed
with
the
Clerk
of
the
Illinois Pollution Control
Board, Vogue Tyre
& Rubber Company’s
Motion for Leave to File
Vogue’s
Reply Brief Instanter
and Petitioner’s
Reply Brief,
a
copy of which is attached
hereto
and
hereby served
upon
you.
Pursuant
to
35
III.
Admin.
Code
§
101.103(d), these
filings are
submitted on recycled paper.
VOGUE TYR~
& RUBBER
COMPANY
~
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
CERTIFICATE
OF SERVICE
I,
Sety Sadri,
a non-attorney,
certify that
I
caused copies of the foregoing
Notice of
Filing and Petitioner’s Reply Brief to 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 ~
~
ety Sadri
411364
1.DOC
RECEIVED
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION
CONTROL BOARD
OF THE
STATE OF ILLINOIS
STATE OF ILLINOIS
VOGUE TYRE
&
RUBBER COMPANY,
)
Pollution
Control Board
Petitioner,
)
v.
)
PCB No.
96-10
)
(UST Appeal)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
MOTION
FOR LEAVE
TO FILE VOGUE’S REPLY
BRIEF INSTANTER
NOW
COMES,
Petitioner,
Vogue
Tyre
and
Rubber
Company,
(“Vogue”),
by
its
attorneys,
and
hereby
moves
this
Honorable
Board
for
leave
to
file
its
Reply
Brief
Instanter.
In
support of its Motion, Vogue states:
1.
Vogue’s reply was originally scheduled to be filed
on August
19, 2004.
2.
The time for filing Vogue’s Reply Brief was predicated upon the
IEPA’s
filing of its Response
Brief on or before July 29, 2004.
3.
The IEPA filed its Response
Brief, together with
a Motion for Leave to File
Leave Instanter,
on
August
2,
2003.
Vogue
did
not
object to
the IEPA’s
Motion
which
was granted
by this board.
4.
The board set August 23, 2004 as the filing date for Vogue’s reply.
5.
On August 23, 2004, Vogue’s counsel
called
counsel for the IEPA to
request
additional time to file
its
Reply Brief.
The
IEPA’s
counsel stated that he
had
no
objections to any additional time needed.
6.
The reason that Vogue requested
additional time was to ensure that the
client and
the billing attorney at
Vogue’s law firm would
have
an adequate
opportunity to
review and
comment upon the Brief.
7.
Vogue
communicated
its
request
and
the
IEPA’s
position
to
Hearing
Officer.
Bradley Halloran,
on August 23,
2004.
8.
Vogue is now prepared to
file its Reply
Brief.
9.
Vogue’s Motion
is not interposed for purposes of delay
but rather to
ensure that the interest
of justice is served.
Since this
is the last scheduled brief in this
matter,
allowing Vogue to file Instanter will not impact any further scheduling.
WHEREFORE, Vogue respectfully requests this
Board to
grant it leave to
file the
attached
Reply Brief Instanter.
Respectfully submitted,
VOGUE
TYRE &
RUBBER COMPANY
By:
______
David
M.
Allen
Jeffrey
E.
Schiller
Dolores Ayala
Schuyler, Roche & Zwirner,
P.C.
One Prudential
Plaza
Suite 3800
130
East
Randolph Street
Chicago,
Illinois
60601
(312) 565-2400
411948
1.DOC
2
RECE WED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
OF THE STATE OF ILLINOIS
SEP
01
2004
VOGUE TYRE
& RUBBER COMPANY,
Pollu~on
Control Board
Petitioner,
)
v.
)
PCB No. 96-10
)
(UST Appeal)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
PETITIONER’S REPLY BRIEF
Petitioner,
Vogue
Tyre
&
Rubber
Company
(“Vogue”),
by
and
through
its
attorneys,
hereby submits its
Reply Brief in the above-captioned matter.
INTRODUCTION
The
Response
to
Petitioner’s
Post-Hearing
Brief
(the
“Response”)
filed
by
Respondent
Illinois
Environmental
Protection
Agency
(the
“IEPA”)
is,
in
large
part,
a
repetition
of the
arguments
previously
set
forth
by
the IEPA
in
its
rejected
Motion
for
Summary Judgment.
Simply put,
the IEPA asserts that Vogue
is not subject to the Lust
Program
because
the Lust Program,
which
was
in
effect
at
the time Vogue
discovered
that
a gasoline leakage
had
occurred
at its
4801
Golf Road facility
(the “Site”),
and was
in
effect when
Vogue remediated the contamination resulting
from the
leakage was
not
in
effect
when
the
UST’s which
leaked
the
gasoline were
removed
from
the
ground.
Each
of
the
IEPA’s
arguments
is
a
variant
on
this
theme;
for
example,
the
IEPA’s
arguments pertaining
to
retroactive
application
of the
Lust
Program
are of no
moment
if
the
applicable
statute
is determined
by
the time of
application
for
reimbursement
since
the
program was
in
place
when
Vogue applied
for
reimbursement.
Thus,
should
this
Board
determine that the statutory
framework applicable to this case
is the one
in
place
on the date Vogue applied for reimbursement, Vogue is plainly entitled to the relief
it
seeks.
Accordingly,
this
Reply Brief will focus on
that
single question
and will
stand
on
its previous submissions with respect to any other matters.
ARGUMENT
This Board has set the standard for statutory applicability of the Lust Program
on
numerous
past occasions.
In
Pulitzer
Community
Newspapers,
Inc.
v.
IEPA,
PCB 90-
142,
117
PCB
99
(December 20,
1990),
reconsideration
denied
119
PCB
31
(February
28,
1991),
the
Board
specifically
stated that
“the applicability for determining...eligibility
for reimbursement are those
...
provisions
which
were
in
effect
at
the time
Petitioner
its application for
reimbursement... “(1 19 PCB
at 32)
To the extent that
another date
is
important,
the
Board
in
Pulitzer
explained
that
it
was
“the
date
of
discovery
of
the
release... given that discovery of the release triggers the duty to
notify.” (ld~
Similarly,
in
First
Busy
Trust
&
Investment
Co
v.
IEPA,
PCB 91-213,
130
PCB
287
(February
27,
1992),
the
Board
again
ruled
that
the
applicable
statute
to
be
applied
to
Petitioner’s
request for reimbursement
was the
one
in
effect
on the date Petitioner’s
application was
completed. (130 PCB at 294)
The
Illinois
Appellate
Court
has
adopted
this
view.
In
ChemRex
v.
Pollution
Control
Board,
628
N.E.
2d
863
(1st
Dist.
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
..
.“(628 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
2
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.
In its Response, the IEPA cites only Chuck
and Dan’s Auto Service v.
IEPA, PCB
92-203
(August 26, 1993) for the proposition that the applicable
statutory framework was
the one
in
place when
Vogue removed the
UST’s,
rather than the one
in
place
when
it
discovered
the
leak
and/or
applied
for
reimbursement.
(Response
pp.
5-6)
However,
the
Chuck
and
Dan’s
case
simply
does
not stand
for
that
proposition.
Chuck
and
Dan’s
involved
an
attempt
by
the
IEPA
to
utilize
an
amendment
to
a
regulation
enacted
~
remediation
to
preclude
recovery
of
remediation
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
IEPA’s
position.
The
IEPA
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 ~
ç~yof
the
f!jJn
of
the
app!ication
for
reimbursement.”
(Chuck
and
Dan’s,
p.6,
fn.
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,
as
is
made
clear
by
the
above-cited
cases.
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
3
performed
after the change
(where
discovery
and
submission
of claim were also
after the
change) is not eligible for reimbursement.
The IEPA seeks to distinguish
Chemrex on the grounds that the owner/operator of
the UST in that case “was without question
subject to the
Lust Program.”
(Response
p.
11)
This,
however,
is
no
distinction,
because
Vogue
too was
subject
to
the
program.
The
Chemrex
Court’s
clear
statement
is
that
a
company
which
has
acted
to
present
environmental damage resulting
from a
leaking
UST
“should
be
granted
reimbursement”,
so
long
as
it complies
with the
rules in
effect on the date of application for reimbursement,
and
that any
other
ruling “would
defeat the very spirit
and
purpose
of the
Lust
Program.”
(628
N.
E.
2d at 964)
This is not,
as the IEPA claims,
a retroactive application of the
Lust
Program
—
this
would
only
apply
if the
application was
filed
prior
to
the enactment
of the
Lust Program.
That plainly did not occur here.
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
4
(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:
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
411360
1.DOC
5
