CLERK’S OFFICE
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
SEP 23 2004
ILLINOIS AYERS OIL CO.,
)
STATE OF
ILLINOIS
)
Pollution Control Board
Petitioner,
)
)
v.
)
PCB03-214
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF FILING AND PROOF OF SERVICE
TO:
Dorothy
Gunn,
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
John Kim
Division ofLegal 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 ofResponse in Opposition to Motion For Reconsideration, a copy of
which is attached hereto.
The undersigned hereby certifies that a true and correct copy ofthis Notice ofFiling, together
with a copy ofthe document described above, were today served upon the hearing officer and counsel
of record 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,
and by depositing same in the U.S. Mail in Springfield, Illinois n the
7 (~
day of September,
2004.
Patrick-D,-Sh~
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 F11ing092004.doc\crk\9/20/04 1:47 PM
•
RECEn/ED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
ILLINOIS AYERS OIL CO.,
)
SEP 232004
)
STATE OF ILLINOIS
• Petitioner,
)
Pollution
Control Board
)
v.
)
PCBO3-214
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
RESPONSE IN OPPOSITION TO MOTION FOR RECONSIDERATION
NOW COMES Petitioner, Illinois Ayers Oil Co., by its undersigned attorneys, pursuant
to Section 101 .520(b) ofthe Board’s Procedural Rules
(35
Ill.Admin.Code
§
101.520(b)), and
responds as follows to the IIEPA’s Motion for Reconsideration:
1.
Tn ruling upon a motion forreconsideration, the Board will consider factors
including new evidence, or change in the law, to conclude that the Board’s decision was in error.
(35
Ill.Admin.Code
§
101.902).
2.
Since the EPA’s motion does not present new evidence or a change in the law to
indicate that the Board’s decision was in error, the Board should deny the motion to reconsider.
City ofKankakee v. County ofKankakee, PCB No. 03-125 (Oct. 16, 2003).
3.
While the Board’s procedural rules obligate the Board to consider new evidence
or changes in the law
(35
Ill.Admin.Code
§
101.902), the Board is not required to consider other
reasons.
4.
Where, as here, the IEPA simply readdresses arguments already considered and
rejected by the Board, the Board should deny the motion for reconsideration. People v. Skokie
ValleyAsphalt, Co., PCB No. 96-98 (July 24, 2003).
5.
Inthe event that the Board deems it appropriate to reconsider its ruling, Petitioner
hereby reincorporates its previous filings. By asking the Board to construe the phrase “seeking
•
payment” in isolation from all the provisions ofthe statutory enactment, the IEPA continues to
ignore the proper analytical framework for construing statutes. Carver v. Sheriff ofLaSalle
County, 203 Ill.2d 497, 507 (2003). The Board correctly viewed Section
57.8(1)
as a whole, in
the context ofthe entirety ofthe Leaking Underground Storage Tank Program, and in light of the
primary objectives ofthe aforementioned legislation. The legislative history also indicates that
reimbursement of attorney fees was intended to be available under all provisions ofthe LUST
Program. (Reply in Support of Motion for Attorney Fees, at p.7).
6.
The bulk ofthe Agency’s argument, however, appears to be directed to the
owner/operator who has wrongfully been denied approval ofa Corrective Action Plan, but who
has not evidenced a desire to seek reimbursement for corrective action costs. Petitioner is not
this hypothetical individual and this hypothetical debate is better left to be addressed between
parties who have an interest in its outcome. In any event, the Board is under no compulsion to
award attorney fees in any strange, inequitable hypothetical suggested by the IEPA because the
award is ultimately discretionary.’
WHEREFORE, Petitioner, Illinois Ayers Oil Co., respectfullyrequest that the Board
deny the motion for reconsideration outright, and for such other and further relief as the Board
deems meet and just.
Petitionerdoes not necessarily agree that the hypothetical offered by the IEPA would reach an inequitable result.
All we know about the hypothetical is that the IEPA was demonstrably proven to be wrong. We do not know the
circumstances by which the Agency did not have knowledge of the owner/operator’s intent to seek reimbursement.
2
ILLINOIS AYERS OIL CO., Petitioner
BY:
BY:
BY:
MOHAN,
MOHAN, ALEWELT, PRILLAMAN & ADAMI
1 North Old Capitol Plaza, Suite 325
Springfield, IL 62701
Phone: (217) 528-2517
Fax: (217) 528-2553
C:\Mapa\C5D Environmental\Resp in Opp to Motion to Reconsider.doc\crk\9/21/04 9:46 AM
&
ADAMI
Fr d C. Pi~1llaman
3
