J. Philip Novak, Chairman
Board Members:
G. Tanner Girard, Thomas E. Johnson,
Nicholas J. Melas, Andrea S. Moore
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph, Suite 11-500
Chicago, Illinois 60601
(312) 814-3620
(312) 814-6032 TDD
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, Illinois 62794-9274
(217) 524-8500
Web Site: http://www.ipcb.state.il.us
Letter from the Chairman
While adjudicating contested cases is a large part of the Pollution
Control Board’s workload, Section 5(b) of the Environmental Protection Act
(Act) provides that “[t]he Board shall determine, define and implement the
environmental control standards applicable in the State of Illinois.” This
rulemaking process is a very important responsibility, and the Board expects
a full schedule of this activity in the next several months.
The Board’s semi-annual regulatory agenda recently appeared in
the
Illinois Register
at 28 Ill. Reg. 10429-81. You can also view it on and
download it from the Board’s Web site at
http://www.ipcb.state.il.us/Archive/dscgi/dx.py/View/Collection-487. The
proposals summarized below won’t necessarily be filed during the second
half of the calendar year, and the Board may take up other proposals, but we
do expect to begin considering the following issues during the fall or winter
of 2004.
Concentrated Animal Feeding Operation (CAFO): The Illinois Environmental Protection Agency (IEPA)
will prepare a proposal relating to new CAFO regulations enacted by the U.S. Environmental Protection Agency
(USEPA) in 2002 under the National Pollutant Discharge Elimination System (NPDES).
Nitrogen Oxides Emissions: Public Act 93-0669 (effective March 19, 2004) authorized the IEPA to sell
certain allowances and to disburse the proceeds, and the Board expects a proposal implementing these sales. The
Board also expects this proposal to include emission controls for large internal combustion engines, as required by
the state’s NOx SIP Call issued by the USEPA.
Recycling Facilities: The Board expects to receive a proposal that would add operating standards for
facilities recycling materials such as paper, glass, plastic, or metal cans.
Site Remediation Program: Because these sites may generate public attention and concern, the IEPA
expects to propose new rules requiring them to develop and implement a Community Relations Plan.
Sludge Management Standards: The Board expects the IEPA to file a proposal relating to land application
of sewage sludge. These rules would establish pollutant limits, pathogen reduction requirements, and vector control
measures.
Tiered Approach to Corrective Action Objectives (TACO): Since the Board adopted TACO regulations in
1997, implementation of those rules has generated the need for various amendments, corrections, and clarifications.
Water Quality Standards: The IEPA is now preparing a proposal relating to water quality standards for
total dissolved solids, sulfate, and chloride, which will be used to determine compliance with various requirements
under the federal Clean Water Act. The Board also expects a proposal addressing bacteria levels in the state’s
surface waters.
The Board certainly will continue to decide contested cases, but these new rulemakings would be a large
and important part of our activity. Naturally, the Board will continue to consider its active rulemaking dockets,
including those addressing underground storage tanks, water quality standards for radium and dissolved oxygen,
and interim phosphorus effluent standards. The Board invites you to take part in all of these proceedings and assist
us in making sound environmental policy for the people of our state.
Sincerely,
J. Philip Novak
Chairman
Environmental Register – September 2004
1
Inside This Issue:
FEDERAL UPDATE
P. 1
APPELLATE UPDATE
P. 2
RULE UPDATE
P. 8
BOARD ACTIONS
P. 9
NEW CASES
P. 17
BOARD CALENDAR
P. 19
Federal Update
United States Environmental Protection Agency Adop
Performance Standards for the Meat and Poultry Products Point Source Category Under the Clean Water
Act
On September 8, 2004 (69 Fed. Reg. 54475), the United States Environmental Protection Agency (USEPA) adopted
effluent limitations guidelines and new source performance standards for the meat and poultry products point source
category. The adopted rules revise Clean Water Act effluent limitations guidelines and new source performance
The adopted amendments apply to: existing as well as ne
w slaughtering facilities (first processors); facilities that
further process meat to produce products like sausages (furt
her processors); and indepe
ndent rendering facilities that
convert inedible by-products to items
like pet food (renderers). Additionally, th
e rules establish, for the first time,
effluent limitations guidelines and new source performance
standards for existing and new poultry first and further
processors.
ater discharges of specifi
ed pollutants for meat and
poultry products facilities that discharge di
rectly to U.S. waters. There are no
current regulations for facilities that
discharge indirectly, and USEP
A has not adopted regul
ations for those facilities. Th
e adopted standards apply to
facilities that are at or above a specifi
ed production threshold, a
nd did not revise the curre
nt effluent limitations
guidelines or new source performance standards for meat firs
t or further processors below the production threshold.
USEPA changed the production threshold for small poultr
y producers from 10 million pounds per year (lbs/yr) to
100 million lbs/yr.
USEPA has estimated that these final rules will benefit
the Nation's receiving waters
by reducing di
scharges of
conventional pollutants, ammonia, and nitrogen. USEP
A expects compliance with this regulation to reduce
discharges of nitrogen up to 27 m
illion pounds per year, ammonia by 3 m
illion pounds per year, and conventional
pollutants by 4 million pounds per year.
These regulations become effective October 8, 2004.
For additional technical informati
on contact Samantha Le
wis at (202) 566-1058. For additional economic
information contact James Covington at (202) 566-1034.
The Board anticipates that the Illinois Environmental Pr
otection Agency (IEPA) will determine, as part of the
triennial review of the State’s water rules required by th
e Clean Water Act, whether an
y amendments to the State’s
water rules are necessary as a result of this federal acti
on. If so, the Board would e
xpect to receive a regulatory
proposal from the IEPA under Section 27 or 28.2 of th
e Environmental Protection Act (415 ILCS 5/27, 28.2
(2002)).
United States Environmental Protection Agency Adop
ts National Emission Standards for Hazardous Air
Pollutants for Industrial, Commercial, a
nd Institutional Boilers
and Process Heaters Under Section 112(d) of
Environmental Register – September 2004
2
the Clean Air Act
On September 13, 2004 (69 Fed. Reg. 55217), the United States Environmental Protection Agency (USEPA)
adopted national emission standards for hazardous air pollutants (NESHAP) for industrial, commercial, and
institutional boilers and process heaters.
USEPA has identified industrial, commercial, and institutional boilers and process heaters as major sources of
hazardous air pollutants (HAP) emissions. The final rule will implement section 112(d) of the Clean Air Act (CAA)
by requiring all major sources to meet HAP emissions standards reflecting the application of the maximum
achievable control technology. The final rule is expected to reduce HAP emissions by 50,600 to 58,000 tons per
year.
The HAP emitted by facilities in the boiler and process heater source category include arsenic, cadmium, chromium,
hydrogen chloride (HCl), hydrogen fluoride, lead, manganese, mercury, nickel, and various organic HAP.
Exposure to these substances has been demonstrated to cause adverse health effects such as irritation to the lung,
skin, and mucus membranes, effects on the central nervous system, kidney damage, and cancer. In general, these
findings only have been shown with concentrations higher than those typically in the ambient air. The final rule
contains numerous compliance provisions including health-based compliance alternatives for the hydrogen chloride
and total selected metals emission limits.
The final rule is effective November 12, 2004.
For information concerning the rule development, contact Jim Eddinger, Combustion Group, Emission Standards
Division (C439-01), U.S. EPA, Research Triangle Park, North Carolina 27711, telephone number (919) 541-5426,
fax number (919) 541-5450, email address at: eddinger.jim@epa.gov.
Pursuant to Section 9.1(b) of the Environmental Protection Act (Act) (415 ILCS 5/9.1(b) (2002)), once adopted by
the USEPA, NESHAP rules are applicable and enforceable under the Act without further action by the Board.
Appellate Update
Third District Grants The Board’s Motion To Dismiss Appeal in “People v. ESG Watts, Inc.”, No. 3-04-0341
(September 13, 2004), PCB 01-167(April 1, 2004)
In a September 13, 2004 final unpublished order under Supreme Court Rule 23 (155 Ill.2d R. 23), the Third District
Appellate Court dismissed, for lack of jurisdiction, an appeal filed by ESG Watts, Inc. and miscaptioned by ESG
Watts as People v. ESG Watts, Inc., No. 3-04-0341 (September 13, 2004). When filing the appeal, ESG Watts did
not name the Board as a party respondent. The Board argued that the appellant’s failure to name all necessary
parties of record pursuant to Supreme Court Rule 335 was a fatal error. The Court agreed, dismissing the appeal in
a one-paragraph order.
The Illinois Supreme Court Rules and the Administrative Review Law (735 ILCS 5/3-113 (2002)) require that
petitions for review name all parties from the underlying proceeding and the administrative agency that rendered the
decision being appealed. In the motion to dismiss ESG Watts appeal, among other precedent, the Board relied on
the Illinois Supreme Court's 2000 decision in ESG Watts v. Pollution Control Board, 191 Ill. 2d 26, 727 N.E.2d
1022 (2000). In that appeal of a Board decision in an enforcement case, the Illinois Supreme Court dismissed the
appeal because ESG Watts failed to name the People, the complainant in the action before the Board. In so ruling,
the Court applied its earlier precedent McGaughy v. Illinois Human Rights Commission, 165 Ill. 2d 1, 649 N.E.2d
404 (1995).
Here, in response to the motion to dismiss, ESG Watts unsuccessfully argued that because he allegedly was not
served with the Board's final order, he had to file the appeal in a "rush" and so mistakenly copied and pasted the
caption from the underlying Board case (
i.e.
, People v. ESG Watts). In its reply to that assertion, the Board
provided the Court with an affidavit from the Board’s Clerk. The affidavit outlined the steps taken to make service
Environmental Register – September 2004
3
of various orders on ESG Watts' attorney of record at the address he provided in his appearance. Attached were
certified mail receipts confirming proper service, effectively rebuffing the claims of ESG Watts' counsel.
The dismissal of ESG Watts’ appeal leaves undisturbed the Board’s April 1, 2004 decision in the underlying case.
The Board found that ESG Watts committed numerous violations at its Taylor Ridge landfill in Rock Island County.
These included 1) failure to initiate and complete landfill closure in violation of permits and a prior Board order
(People v. ESG Watts, Inc., PCB 96-107 (February 5, 1998)); 2) odor violations as a result of emission of landfill
gas and other contaminants, 3) water pollution by allowing stormwater runoff and other contaminants to flow into
waters of the State, 4) deposition of over 34,000 cubic yards of waste in areas of the landfill exceeding the
maximum permitted height, and 5) failure to submit quarterly groundwater reports for five quarters.
The Board imposed a $1,000,000 civil penalty and required ESG Watts to pay the People's attorney fees and expert
witness costs totaling $7,140.
First District Dismisses Appeal in Vogue Tyre & Rubber Co. v. Office of the State Fire Marshal of the State
of Illinois, No. 1-03-0521 (September 28, 2004)(PCB 01-167)
In a September 28, 2004 final unpublished order under Supreme Court Rule 23 (155 Ill.2d R. 23), the First District
Appellate Court dismissed, for lack of jurisdiction, the appeal Vogue Tyre Rubber & Co. v. Office of the State Fire
Marshal No. 1-03-0521 (September 28, 2004). In the case before the Board, the Board had affirmed a decision by
the Office of the State Fire Marshal (OSFM) finding Vogue Tyre’s ineligible to have cleanup costs for specific
leaking underground storage tanks (USTs) reimbursed from the UST Fund under the Environmental Protection Act
(415 ILCS 5/57.9(a)(4) (2002). Vogue Tyre Rubber & Co. v. Office of the State Fire Marshal, PCB 95-78
(December 5, 2002).
When filing the appeal, Vogue Tyre did not name the Board as a party respondent. In April 2003, the OSFM and
the Board moved to dismiss, arguing that the appellant’s failure to name all necessary parties of record pursuant to
Supreme Court Rule 335 was a fatal error. Instead of ruling on the motion, the court decided to "take the motion
with the case", and required the parties and the Board to fully brief the underlying environmental issues. Before
oral argument, however, the court issued a 14-page order dismissing the appeal on the grounds argued by the Board.
The Court agreed, dismissing the appeal in order. Because the appeal was dismissed due to procedural defect, the
court did not reach any of the UST issues briefed by the parties.
The First District Ruling in No. 1-03-0521
The appellate court first looked to the language of Section 3-113(b) of the Administrative Review Law (735 ILCS
5/3-113 (2002)) and the identical language of Supreme Court Rule 335(a) on who must be named as a respondent in
petitions for direct appellate court review of administrative orders. The court found that each required that, in a
petition for review, “The agency and all other parties of record shall be named as respondents." Vogue Tyre Rubber
& Co. v. Office of the State Fire Marshal No. 1-03-0521 (September 28, 2004)(slip op. at 6).
The court then cited long-standing precedent for the proposition that because Illinois appellate courts exercise
special statutory jurisdiction in reviewing administrative actions, those who seek to appeal must strictly adhere to
the statute (
i.e.
, Section 41(a) of the Environmental Protection Act, which incorporates the Administrative Review
Law). The court found that when those parties do not strictly comply, the court cannot consider the appeal.
Id
., slip
op. at 6-7. In response to various arguments made by Vogue, the court determined that "substantial compliance,"
such as by merely serving the Board with the petition for review and referring to the Board order, is not sufficient
under various precedents.
Id.
, slip op at 7-9 (citing, among other cases, McGaughy v. Illinois Human Rights
Commission, 165 Ill. 2d 1, 649 N.E.2d 404 (1995)).
The court then looked to another provision of the Administrative Review Law on amending petitions: Section 3-
113(b). The provision allows a petitioner to amend its petition, but only if the unnamed party "was not named by
the administrative agency in its final order as a party of record." Vogue Tyre creatively argued that it could amend
because the Board failed to name itself in its final order as a party of record. The court rejected the “good-faith
effort” exception to the strict statutory requirements advocated by Vogue as applied to a petition for review in
another case involving the Board prior to amendment of Section 3-113(b) to specifically delineate when a petition
Environmental Register – September 2004
4
could be amended.
See
Worthen v. Village of Roxana, 253 Ill. App. 3d 378, 623 N.E.2d 1058 (1993) (amendment
allowed in petition for review of local siting decision under Section 40.1 of the Act (415 ILCS 5/40.1)(2002)). The
court held that strict adherence to the plain language of Section 113(b) "does not provide an exception that allows a
petitioner to amend its petition for review to name the agency as respondent."
Id.
(slip op at 13). The court
concluded that “because Vogue failed to name the Board as a respondent and Vogue is not permitted to amend its
petition for review, this court lacks jurisdiction to hear this appeal.”
Id.
, slip op at 13.
The Board’s Decision in PCB 95-78
By way of background for better understanding of the issues in this UST case, petroleum leaks from underground
storage tanks (USTs) are presently remediated under Title XVI of the Act. 415 ILCS 5/57-57.17 (2002).
(Remediation was formerly made under the now-repealed Title V (415 ILCS 5/22.13, 22.18, 22.18b (1992)).) The
Act specifies what actions must be taken, provides for Illinois Environmental Protection Agency (IEPA) approval of
remediation plans and budgets, and establishes an Underground Storage Tank Fund (Fund). Under certain
conditions, a person who has registered USTs with the OSFM can obtain reimbursement for costs of corrective
action, subject to statutorily-set deductibles.
Title XVI divides program responsibilities between IEPA and OSFM. OSFM has oversight responsibility for some
aspects of early action activities, such as supervising UST removals. OSFM also determines whether an owner or
operator is eligible for reimbursement from the UST Fund, and if so, what the deductible amount should be. IEPA
focuses on risk-based clean-up and site assessment, and makes various determinations on corrective action plans for
remediation and monitoring and on the appropriateness of budgets and expenditures for which reimbursement is
sought from the Fund. Title XVI specifies several points at which a UST owner or operator can appeal IEPA or
OSFM decisions to the Board.
Vogue Tyre's site in Skokie had four USTs registered with the OSFM in 1986. (Tanks 3 and 4 were not at issue.)
In February 1993, the OSFM, by administrative order, deregistered Tanks 1 and 2, apparently because they had
been removed before September 27, 1987. Vogue Tyre did not appeal the OSFM's deregistration order. In
December 1994, Vogue Tyre reported a UST release and applied to the OSFM for a determination on eligibility to
have Vogue Tyre's cleanup costs reimbursed from the UST Fund. In February 1995, the OSFM denied Vogue Tyre
access to the UST Fund because tanks 1 and 2 were not registered. In March 1995, Vogue Tyre petitioned the
Board to review the OSFM's denial. The Board proceeding was stayed pending resolution of related insurance
claims. In September 2002, the OSFM filed a motion for summary judgment with the Board.
In December 2002, the Board granted the OSFM's motion for summary judgment. The Board found no genuine
issue of material fact that the USTs at issue were not registered when Vogue Tyre applied for UST Fund access.
Because tank registration is a prerequisite to UST Fund eligibility under the Act (
see esp.
415 ILCS 5/57.9(a)(4)
(2002)), the Board held that the OSFM's 1995 decision to deny UST Fund eligibility was entitled to affirmation as a
matter of law. Further, Vogue Tyre's arguments that the OSFM erred in its 1993 UST deregistering were misplaced,
according to the Board. The Board reiterated its long-held position that it lacks authority to review OSFM
registration or deregistration decisions under the Gasoline Storage Act (430 ILCS 15/4 (2002)); those decisions are
appealable to the circuit court under the Administrative Review Law.
See
Farrales v. OSFM, PCB 97-186 (May 7,
1998); Divane Brothers Electric Co. v. IEPA, PCB 93-105 (November 4, 1993); Village of Lincolnwood v. IEPA,
PCB 91-83 (June 2, 1992).
Second District Grants The Board’s Motion to Publish Additional Portion of its Opinion in State Oil Co.
et
al.
v. People of the State of Illinois
et al.
; Abraham
et al.
v. Pollution Control Board
et al.
, Nos.2-03-0463 and
2-03-0493 (cons.) (August 18, 2004) (PCB 97-103)
In a September 30, 2004 order, the Second District Appellate Court granted the motion of the People and the Board
to publish an additional portion of the court’s opinion in State Oil Co.
et al.
v. People of the State of Illinois
et al
.;
Abraham
et al.
v. Pollution Control Board
et al.
, Nos.2-03-0463 and 2-03-0493 (cons.) (August 18, 2004).
(hereinafter “State Oil (2d Dist.)”). The court’s original August 18, 2004 28-page opinion was withdrawn, and a
29-page opinion was filed in its stead. State Oil (2d Dist. Sept. 30, 2004).
Environmental Register – September 2004
5
As reported in the August 2004
Environmental Register
, on August 18, 2004, the Second District Appellate Court
affirmed the Board in the leaking underground storage tank enforcement case. State Oil (2d Dist. August 18, 2004).
The Board had ordered respondents to remediate the site, to reimburse the State for substantial clean-up costs, to
pay civil penalties in the Board’s case entitled People of the State of Illinois v. State Oil Company, William Anest
f/d/b/a S & S Petroleum Products, Peter Anest f/d/b/a S & S Petroleum Products, Charles Abraham, Josephine
Abraham, and Millstream Service, Inc.; Charles Abraham, Josephine Abraham, and Millstream Service, Inc. v. State
Oil Company, William Anest f/d/b/a S & S Petroleum Products, Peter Anest f/d/b/a S & S Petroleum Products.,
PCB 97-103 (March 20, 2003) (hereinafter “People v. State Oil”).
The appellate court authorized publication of only a portion of its August 18, 2004 28-page decision. Originally,
the only portion to be published, and which could be cited as precedent, affirmed the Board holding regarding the
applicability of proportionate share liability under Title XVII of the Environmental Protection Act (Act), 415 ILCS
5/100
et seq.
See State Oil (2d Dist. August 18, 2004)(slip op. at 1-7, 28). The balance of the decision (pages 8-
27), which affirmed the remediation order and penalties assessed against various respondents, was "nonpublishable"
under Supreme Court Rule 23 (155 Ill.2d R. 23) and therefore was not precedential.
Id.
, slip op. at 8-27.
The Board and the People moved the court to publish an additional portion of its opinion: that portion specifically
interpreting Section 57.12 of the Act. The court rejected State Oil’s contention that it could not be held liable for
costs of investigation, preventive action, corrective action, or enforcement action because State Oil was a former
owner of the leaking USTs, and not a current owner or operator. The court also determined that Section 57.12
could be applied retroactively.
As earlier stated, in a September 30, 2004 order, the court granted the motion to publish its ruling regarding Section
57.12 of the Act. The August 18, 2004 29-page opinion was withdrawn, and a 29-page opinion was filed in its
stead. State Oil (2d Dist. Sept. 30, 2004). For the reader’s convenience, the Board’s August 2004 synopsis of the
case is updated below, and includes citations to the court’s September 30, 2004 final opinion.
The Board's Decision in People v. State Oil. PCB 97-103 was an enforcement case brought on behalf of the People
by the Attorney General's Office. The case concerned gasoline contamination from leaking underground storage
tanks (USTs) at a service station in McHenry County. The People filed the complaint in 1996 against Anest/State
Oil (the former service station owner/operator and seller) and Abraham/Millstream Service (the current service
station owner/operator and purchaser). Abraham/Millstream Service in turn filed a cross-complaint against
Anest/State Oil. In 1983 or 1984, gasoline began leaking from the service station into Boone Creek, which
bordered the station. Anest/State Oil reported the release to the State. The service station was sold in 1985 to
Abraham/Millstream Service. Gasoline was leaking into the creek in 1986, 1987, and 1989. The Illinois
Environmental Protection Agency (IEPA) performed an emergency cleanup in 1989-1991. But, no mitigation or
remediation work had been completed at the site since 1996, and no respondent ever received a No Further
Remediation letter from the IEPA. People v. State Oil (March 20, 2003), slip op. at 5-7.
The Board issued an interim opinion and order on April 4, 2002 ruling on motions for summary judgment in the
People’s case, and finding that all respondents had violated Section 12(a) of the Act. The Board then held hearing
on the issues of cost recovery and the Abrahams’ cross-complaint against the Anests, issuing a final opinion and
order on March 20, 2003 that:
a) Found the respondents jointly and severally liable to
reimburse the State for $86,652.50 in remediation costs
incurred by the IEPA. (The Board disallowed some $12,000 in
costs for which the Board found the supporting IEPA
vouchers unreliable). People v. State Oil (March 20, 2003),
slip op. at 5-7;
b) Assessed a total civil penalty of $40,000 ($20,000 against
the Abrahams and Millstream Service; $20,000 against the
Anests and State Oil) People v. State Oil (March 20, 2003),
slip op. at 14-20; and
Environmental Register – September 2004
6
c) Ordered the respondents to perform any additional
necessary clean up of the site and to obtain a No Further
Remediation Letter from the IEPA. The Board also found the
respondents jointly and severally liable for any future
remediation. People v. State Oil (March 20, 2003), slip op. at
20-26.
The Board did not, however, find that the People were entitled to attorney fees and costs concerning their complaint
against the Abrahams. The Board concluded that there was insufficient evidence to support a finding that the
Abrahams’ violation was “willful, knowing, or repeated” within the meaning of Section 42(f) of the Act. 415 ILCS
5/42(f) (2002). People v. State Oil (March 20, 2003), slip op. at 20-21.
In its last order in the case, the Board denied respondents’ motion to stay the March 20, 2003 order pending appeal,
in the sound exercise of its discretion. The Board also denied the People’s motion to modify the order, finding that
the filing of the appeal had ended the Board’s jurisdiction in the case. People v. State Oil (May 15, 2003), slip op.
at.1-2.
Second District’s Decision in State Oil (2d Dist. Sept. 30, 2004). As stated earlier, the court affirmed the Board on
all points. The court structured its opinion to analyze first Millstream’s arguments, and then State Oil’s arguments.
The portion of the court's decision to be published is discussed first, and the rest afterwards.
Published Decision on Millstream’s Argument on Joint and Several Liability/Proportionate Share Liability. In the
published portion of the court's decision (State Oil (2d Dist. Sept. 30, 2004) slip op. at 1-7), the court agreed with
the Board that the respondents were jointly and severally liable and therefore that proportionate share liability did
not apply. In certain situations, the proportionate share liability provision of the Act (Section 58.9(a)(1)) limits a
respondent's cleanup liability to what the respondent "proximately caused,"
i.e.
, to its "proportionate share." See
415 ILCS 5/58.9 (a)(1) (2002).
Section 58.1(a)(2) of the Act is the applicability provision of the Act’s Title XVII “Site Remediation Program.”
Section 58.1(a)(2) excludes sites subject to the UST laws, like the site at issue. Title XVII includes the
proportionate share liability provision of Section 58.9(a)(1). The Board held, and the court agreed, that
proportionate share liability did not apply in this case because Section 58.1(a)(2) limits the applicability of all of
Title XVII, including the proportionate share liability provision. As the court stated: "Put simply, one must enter
through a door before one can throw something out the window. In other words, Millstream is not entitled to
invoke the provisions of Title XVII unless Title XVII is applicable to it in the first place."
Id.
, slip op. at 7.
Published Decision on State Oil’s Leaking UST Liability Arguments and Section 57.12 of the Act. As explained
above, in response to motion, the court agreed to publish that portion of the decision relating to Section 57.12 of the
Act. (State Oil (2d Dist. Sept. 30, 2004) slip op. at 18-19.) The court provided two interpretations of an important
provision of the Act's Title XVI on USTs, both of which now have precedential effect.
Section 57.12(a) of the Act provides, in pertinent part, that:
the owner or operator, or both, of an underground storage tank
shall be liable for all costs of investigation, preventive action,
corrective action and enforcement action incurred by the State
of Illinois resulting from an underground storage tank.
Importantly, the court affirmed the Board's reading of Section 57.12(a). The court agreed that the provision applied
not only to the current UST owner or operator, but also a former owner or operator:
[A] statute must not be construed so that it produces an absurd
result . . . . Allowing an owner to escape liability by simply
selling a property would, in our estimation, be absurd . . . . In
short, State Oil was the owner when the problem began. That
Environmental Register – September 2004
7
the problem continued beyond its ownership of the property
does not absolve it from responsibility.
Id.
, slip op. at 18-19.
After reviewing several provisions of the Act, the court also concluded that the Act properly applied retroactively,
since "it is clear that the legislature intended the Act to address ongoing problems, which, by definition existed at
the time that the Act was enacted."
Id.
, slip op. at 19.
Unpublished Decision on Millstream’s State Cleanup Costs Issues (Evidence Admissibility and Award Amount). In
the unpublished portion of the decision (State Oil (2d Dist. Sept. 30, 2004) slip op. at 8-18), the court upheld the
Board's decision that the IEPA's vouchers reflecting cleanup costs incurred were admissible as evidence, being both
relevant and within the business-record exception to the hearsay rule. Next, the court addressed Millstream’s
challenge to the Board's refusal to give the State the exact amount of reimbursement requested. The court affirmed
the Board's decision to award the State approximately $86,000 of the requested $98,000 in remediation costs, stating
that "one of the reasons administrative agencies exist is the special expertise they possess in their given field [and]
to the extent Millstream's argument can be read as attacking the Board's use of that expertise, it is ill taken."
Id.
, slip
op. at 11.
Millstream also argued that the State introduced no evidence that its cleanup expenses were "reasonable or
necessary." Looking at the plain language of Section 57.12(a), the court refused to place the burden of proving
reasonableness or necessity of its costs on the State, but cautioned:
This is not to say, however, that the State is free to run up
outrageous expenses. While we read section 57.12(a) as
excluding reasonableness and necessity from the elements the
State must prove, *** the failure to mitigate damages remains
an affirmative defense; however, the burden of proving the
failure to mitigate lies with the respondent.
Id
., slip op. at 12-
13.
Accordingly, the court found that the Board's award of cleanup costs to the State was not contrary to the manifest
weight of the evidence.
Unpublished Decision on Penalty Issue as to Millstream. In the unpublished portion of the decision on penalty
(State Oil (2d Dist. Sept. 30, 2004), slip op. at 13-15, the court upheld the Board's penalty determination as to
Millstream as neither arbitrary, capricious, nor unreasonable. The court noted that Section 42 of the Act would have
allowed a fine in excess of $1 million. So, the $20,000 penalty assessed against Millstream was "relatively modest"
considering the statutory maximum penalties that are allowed. The court focused on the aggravating factors of
gasoline actually leaking into the creek for 3 years and Millstream’s lack of diligence in remediating the problem.
Id.
, slip op. at 15.
Unpublished Decision on State Oil’s Issues (Notice and Due Process; Joint and Several Liability; Cost Award;
Summary Judgment; Penalty). In the unpublished portion of the decision dealing with issues raised by State Oil
(State Oil (2d Dist. Sept. 30, 2004), slip op. at 13-18, 20-29), the court first rejected an argument that the omission
of State Oil from the prayer for relief in the count of the complaint for reimbursement amounted to a notice defect
that violated its due process rights. The court found that State Oil had failed to demonstrate prejudice.
Id.
, slip op
at 16-17. The court then rejected State Oil’s arguments regarding both joint and several liability and the clean-up
cost award for the reasons it had earlier rejected Millstream’s similar arguments.
Id.
, slip op at 17-18, 20.
Next, the court found that the Board had properly granted summary judgment in favor of the People on the issue of
whether State Oil violated section 12 (a) of the Act by causing or allowing “water pollution” within the meaning of
section 3.545 of the Act. The court found that State Oil’s answers to request to admit constituted an admission that
“gasoline was intermittently leaking from December 1984 through April 1985. A leak that continues, even
intermittently for almost half of a year, is a significant matter.”
Id.
, slip op. at 24-25. The court concluded that:
While we agree with State Oil that, generally speaking, a
discharge of a substance may be so minimal as to raise the
Environmental Register – September 2004
8
question of whether it fits within the definition of water
pollution, where a discharge is significant, as in the instant
case, we do not believe that more is necessary to establish,
through expert testimony or otherwise, such things as that the
leak was a nuisance or harmful.
Id.
, slip op. at 25-26.
As to penalty, the court determined that the Board had not improperly based its decision on matters occurring
outside the scope of the complaint.
Id.
, slip op. at 23-26. Despite the Board’s mention of events occurring prior to
the complaint’s allegations concerning events occurring on a single day (December 5, 1984), the court found that
the Board had correctly characterized as “severe” a leak into a waterway that continues for over five months. The
court held that the Board could properly find State Oil’s lack of diligence in remediating the problem to be an
aggravating factor.
Lastly, the court rejected State Oil’s arguments that the $20,000 penalty against it was excessive, and impermissibly
punitive.
Id.
, slip op. at 26-29. In light of the factors of Section 42(h) of the Act, the court found that the Board’s
penalty against State Oil “was an appropriate use of [the Board's] discretion,” based on adequate evidence in the
record.
Id.
, slip op. at 29.
Rule Update
Board Dismisses 3 Identical in Substance Rulemaking Dockets As Unnecessary: UST Update, USEPA
Regulations (January 1, 2004 through June 30, 2004), R05-3; Exemptions from the Definition of VOM
Update, USEPA Regulations (January 1, 2004 through June 30, 2004), R05-5; UIC Update, USEPA
Regulations (January 1, 2004 through June 30, 2004), R05-7
Every six months the Board reserves a series of dockets, for adoption of Board rules, to accommodate any rules
adopted by the United States Environmental Protection Agency (USEPA) to implement various programs. On
September 16, 2004, the Board dismissed as unnecessary three dockets reserved to consider rules adopted by
USEPA during the period January 1, 2004 through June 30, 2004. In each of the three program areas described
below, USEPA adopted no rules during the update period.
UST Program (R05-3)
. Section 22.4(d) of the Environmental Protection Act (Act) (415 ILCS 5/22.4(d) (2002))
requires the Board to adopt regulations which are “identical in substance,” as defined at Section 7.2 of the Act (415
ILCS 5/7.2 (2002)), to underground storage tank (UST) regulations promulgated by the USEPA pursuant to Section
9003 of the federal Resource Conservation and Recovery Act of 1976 (RCRA) as amended, 42 U.S.C. § 6991b
(2003), to implement Subtitle I of RCRA (42 U.S.C. §§ 6991
et seq
. (2003)), with certain limitations. USEPA has
codified its UST regulations at 40 C.F.R. 281 through 283.
VOM Program (R05-5)
. Section 9.1(e) of the Environmental Protection Act (Act) (415 ILCS 5/9.1(e) (2002))
requires the Board to adopt regulations that are “identical in substance,” as defined at Section 7.2 of the Act (415
ILCS 5/7.2 (2002)), to exemptions from the definition of “volatile organic material” (VOM), those compounds that
the United States Environmental Protection Agency (USEPA) has found to be exempted from regulation under state
implementation plans for ozone due to negligible photochemical reactivity. USEPA has codified these exemptions
as part of its definitions at 40 C.F.R. 51.100(s).
UIC Program (R05-7)
. Section 13(c) of the Environmental Protection Act (Act) (415 ILCS 5/13(c) (2002))
requires the Board to adopt regulations that are “identical in substance” to regulations of the United States
Environmental Protection Agency (USEPA). 415 ILCS 5/7.2 (2002). Specifically, Section 13(c) relates to
underground injection control (UIC) regulations that USEPA adopted to implement provisions of the Safe Drinking
Water Act (42 U.S.C. § 300h
et seq
. (2003)). USEPA has codified its UIC regulations at 40 C.F.R. 144 through
148.
Copies of the Board’s separate dismissal orders in R05-3, R05-5, and R05-7 may be obtained by calling Dorothy
Gunn at 312-814-3620, or by downloading copies from the Board’s Web site at www.ipcb.state.il.us.
Environmental Register – September 2004
9
For additional information contact Mike McCambridge at 312/814-6924; e-mail address:
mccambm@ipcb.state.il.us.
Board Actions
September 2, 2004
Via Videoconference
Springfield and Chicago, Illinois
Administrative Citations
AC 04-27 IEPA v. Douglas S. Carrico, d/b/a Carrico’s Auto Heap – The Board entered an
interim opinion and order finding respondent violated Section 21(p)(1) of the
Environmental Protection Act (415 ILCS 5/21(p)(1) (2002)) and assessing a
penalty of $1,500. The Board ordered the Clerk of the Board and the
Environmental Protection Agency to file within 14 days a statement of hearing
costs, supported by affidavit, with service on respondent.
5-0
AC 04-43 County of Jackson v. Frank Stonemark– In response to a joint stipulation and
settlement agreement in this administrative citation action involving a Jackson
County facility, the Board found respondent violated Section 21(p)(1) of the
Environmental Protection Act (415 ILCS 5/21(p)(1) (2002)) and ordered
respondent to pay a civil penalty of $1,500. The Board also granted the parties’
joint motion to dismiss respondent’s petition for review and the alleged violation
of 415 ILCS 5/21(p)(7) (2002).
5-0
AC 04-63
AC 04-64
County of Jackson v. Egon Kamarasy – The Board granted complainant's motion
to consolidate AC 04-63 and AC 04-64.
5-0
AC 04-80 IEPA v. Joseph Luparell and Troy Curley – The Board accepted complainant’s
response to the July 8, 2004 Board order regarding service on respondent Troy
Curley. The Board found that complainant properly served respondent and
accepted for hearing Troy Curley’s petition for review of an administrative
citation against these Sangamon County respondents.
5-0
AC 05-3 IEPA v. City of Freeport and Ryan Wilson – The Board found that these
Stephenson County respondents violated Section 21(o)(11) of the Environmental
Protection Act (415 ILCS 5/21(o)(11) (2002)), and ordered respondent to pay a
civil penalty of $500.
5-0
AC 05-5 IEPA v. Robert and Phylis Ulrich and Bob Ulrich Pallet, Inc. – The Board
accepted for hearing this petition for review of an administrative citation against
these Adams County respondents.
5-0
AC 05-6 IEPA v. Knox County Landfill Committee and Greg Ingle – The Board found
that these Knox County respondents violated Sections 21(o)(1), (o)(2), (o)(5),
and (o)(12) of the Act (415 ILCS 5/21(o)(1), (o)(2), (o)(5), and (o)(12) (2002)),
and ordered respondents to pay a civil penalty of $2,000.
5-0
AC 05-8 IEPA v. Ted Harrison and Gerald S. Gill – The Board accepted for hearing
respondents Harrison’s and Gill’s petitions for review of an administrative
5-0
Environmental Register – September 2004
10
citation against these Adams County respondents.
AC 05-9 IEPA v. Bill Collins – The Board found that this Franklin County respondent
violated Section 21(p)(1) of the Environmental Protection Act (415 ILCS
5/21(p)(1) (2002)), and ordered respondent to pay a civil penalty of $1,500.
5-0
AC 05-10 IEPA v. Lawrence P. and Jacqueline L. Koch – The Board found that these Bond
County respondents violated Sections 21(p)(1) and (p)(3) of the Act (415 ILCS
5/21(p)(1), (p)(3) (2002)), and ordered respondents to pay a civil penalty of
$3,000.
5-0
AC 05-11 IEPA v. Environmental Reclamation Company and Gene Stacey – The Board
found that these Bond County respondents violated Sections 21(o)(5) and (o)(12)
of the Act (415 ILCS 5/21(o)(5), (o)(12) (2002)), and ordered respondents to pay
a civil penalty of $1,000.
5-0
AC 05-12 County of Sangamon v. James Withers – The Board granted complainant’s
motion to dismiss this administrative citation for lack of service on respondent.
5-0
Decisions
PCB 96-98 People of the State of Illinois v. Skokie Valley Asphalt, Company, Inc., Edwin L.
Frederick, Jr. individually and as owner and President of Skokie Valley Asphalt
Company, Inc., and Richard J. Frederick individually and as owner and Vice-
President of Skokie Valley Asphalt Company, Inc. – The Board found that
respondents violated the following provisions of the Environmental Protection
Act (Act) and the Board’s regulations: Sections 12 (a) and (f) of the Act (415
ILCS 5/12(a) and (f) (2002)), and 35 Ill. Adm. Code 302.203, 304.105, 304.106,
305.102(b), 309.102(a), and 309.104(a) at respondent’s facility located
Grayslake Village, Lake County. The Board ordered the respondents to pay a
total civil penalty of $153,000.
5-0
W-E
PCB 01-1 People of the State of Illinois v. Metals Technology Corporation – In this air
enforcement action concerning a DuPage County facility, the Board granted
relief from the hearing requirement of Section 31(c)(1) of the Environmental
Protection Act (415 ILCS 5/31(c)(1) (2002)), accepted a stipulation and
settlement agreement, and ordered the respondent to pay a total civil penalty of
$50,000 and to cease and desist from further violations.
5-0
A-E
PCB 04-67 People of the State of Illinois v. Royal Trucking Company– In this water
enforcement action concerning a location in Cook County, the Board granted
relief from the hearing requirement of Section 31(c)(1) of the Environmental
Protection Act (415 ILCS 5/31(c)(1) (2002)), accepted a stipulation and
settlement agreement, and ordered the respondent to pay a total civil penalty of
$5,000 and to cease and desist from further violations.
5-0
W-E
Motions and Other Matters
PCB 99-187 Gina Pattermann v. Boughton Trucking and Materials, Inc. – The Board denied
respondent’s motion for reconsideration.
5-0
A&N-E
Environmental Register – September 2004
11
PCB 01-7 People of the State of Illinois v. QC Finishers, Inc. – Upon receipt of a proposed
stipulation and settlement agreement and an agreed motion to request relief from
the hearing requirement in this air enforcement action involving a Cook County
facility, the Board ordered publication of the required newspaper notice.
5-0
A-E
PCB 03-125
PCB 03-133
PCB 03-134
PCB 03-135
PCB 03-144
(Cons.)
City of Kankakee v. County of Kankakee, County Board of Kankakee, and
Waste Management of Illinois, Inc.; Merlin Karlock v. County Board of
Kankakee, County Board of Kankakee, and Waste Management of Illinois, Inc.;
Michael Watson v. County of Kankakee, County Board of Kankakee, and Waste
Management of Illinois, Inc; Keith Runyon v. County of Kankakee, County
Board of Kankakee and Waste Management of Illinois, Inc.; Waste Management
of Illinois, Inc. v. County of Kankakee – The Board declined to take action on
the pending motions due to lack of jurisdiction to modify the Board’s judgment
or to rule on matters of substance, which are the subject of appeal.
5-0
P-C-F-S-R
PCB 04-31 Broadus Oil v. IEPA – The Board granted petitioner’s motion for leave to clarify
petition for review. The board directed the Clerk of the Board to open a new
docket (PCB 05-43) for review of the September 8, 2003 decision and instructed
petitioner to submit a filing fee for the new docket by October 4, 2004. Finally,
the Board on its on motion consolidated PCB 04-31 and PCB 05-43.
5-0
UST Appeal
PCB 04-183 Johnson Oil Company v. IEPA – The Board accepted petitioner’s amended
petition for review for hearing and granted the motion for admission of John D.
Moriarity to appear
Pro Hac Vice.
5-0
UST Appeal
PCB 04-190 Johnson Oil Company v. IEPA – The Board accepted petitioner’s amended
petition for review for hearing and granted the motion for admission of John D.
Moriarity to appear
Pro Hac Vice.
5-0
UST Appeal
PCB 04-202 Auburn Realty v. IEPA – Having previously granted a request for a 90-day
extension, the Board dismissed this matter because no underground storage tank
appeal was filed on behalf of this Christian County facility.
5-0
UST Appeal
PCB 04-203 2 F, Inc. v. IEPA – Having previously granted a request for a 90-day extension,
the Board dismissed this matter because no underground storage tank appeal was
filed on behalf of this Williamson County facility.
5-0
UST Appeal
PCB 04-208 Yesley Service Company v. IEPA – Having previously granted a request for a
90-day extension, the Board dismissed this matter because no underground
storage tank appeal was filed on behalf of this Randolph County facility.
5-0
UST Appeal
PCB 04-209 DiMucci Development Corporation v. IEPA– The Board accepted for hearing
this underground storage tank appeal involving a Cook County facility.
5-0
UST Appeal
PCB 04-210 Aylsworth Oil Company v. IEPA – Having previously granted a request for a 90- 5-0
Environmental Register – September 2004
12
day extension, the Board dismissed this matter because no underground storage
tank appeal was filed on behalf of this White County facility.
UST Appeal
PCB 05-2 Holland Energy, L.L.C.-Beecher City (Property Identification Numbers 0524-01-
00-100-004, 0825-16-00-100-004, 0825-16-00-300-002, 0825-16-00-300-003,
0825-16-00-200-002) v. IEPA – Because the Board did not receive any petition
for review of the IEPA’s recommendation to deny certification, consistent with
the IEPA’s recommendation, the Board declined to certify that Holland Energy’s
facilities are pollution control facilities and dismissed this matter.
5-0
T-C
PCB 05-3 Holland Energy, L.L.C.-Beecher City (Property Identification Numbers 0524-01-
00-100-004, 0825-16-00-100-004, 0825-16-00-300-002, 0825-16-00-300-003,
0825-16-00-200-002) v. IEPA – Because the Board did not receive any petition
for review of the IEPA’s recommendation to deny certification, consistent with
the IEPA’s recommendation, the Board declined to certify that Holland Energy’s
facilities are pollution control facilities and dismissed this matter.
5-0
T-C
PCB 05-4 Holland Energy, L.L.C.-Beecher City (Property Identification Numbers 0524-01-
00-100-004, 0825-16-00-100-004, 0825-16-00-300-002, 0825-16-00-300-003,
0825-16-00-200-002) v. IEPA – Because the Board did not receive any petition
for review of the IEPA’s recommendation to deny certification, consistent with
the IEPA’s recommendation, the Board declined to certify that Holland Energy’s
facilities are pollution control facilities and dismissed this matter.
5-0
T-C
PCB 05-5 Holland Energy, L.L.C.-Beecher City (Property Identification Numbers 0524-01-
00-100-004, 0825-16-00-100-004, 0825-16-00-300-002, 0825-16-00-300-003,
0825-16-00-200-002) v. IEPA – Because the Board did not receive any petition
for review of the IEPA’s recommendation to deny certification, consistent with
the IEPA’s recommendation, the Board declined to certify that Holland Energy’s
facilities are pollution control facilities and dismissed this matter.
5-0
T-C
PCB 05-6 Holland Energy, L.L.C.-Beecher City (Property Identification Numbers 0524-01-
00-100-004, 0825-16-00-100-004, 0825-16-00-300-002, 0825-16-00-300-003,
0825-16-00-200-002) v. IEPA – Because the Board did not receive any petition
for review of the IEPA’s recommendation to deny certification, consistent with
the IEPA’s recommendation, the Board declined to certify that Holland Energy’s
facilities are pollution control facilities and dismissed this matter.
5-0
Novak
T-C
Environmental Register – September 2004
13
PCB 05-11 UAP Richter – Dixon (Property Identification Number 02-15-07-100-020) v.
IEPA – Because the Board did not receive any petition for review of the IEPA’s
recommendation to deny certification, consistent with the IEPA’s
recommendation, the Board declined to certify that UAP Richter’s facilities are
pollution control facilities and dismissed this matter.
5-0
T-C
PCB 05-27 Heritage FS, Inc. (Property Identification Numbers 06-10-06-400-005) v. IEPA –
Upon receipt of the Illinois Environmental Protection Agency’s
recommendation, the Board found and certified that certain agrichemical
containment facilities of Heritage FS, Inc. located in Shelby County are pollution
control facilities for the purpose of preferential tax treatment under the Property
Tax Code (35 ILCS 200/11-10 (2002)). No action was taken on the
recommendation to deny certification for the certain portion of the building over
the minibulk/package agrichemical secondary containment structure at the site.
5-0
T-C
PCB 05-30 Village of Frankfort v. IEPA – The Board accepted for hearing this permit
appeal involving a facility located in Cook and Will Counties.
5-0
P-A, Water
PCB 05-31 Hall’s Automotive (SICR) v. IEPA – The Board granted this request for a 90-day
extension of time to file an underground storage tank appeal on behalf of this
Hardin County facility
5-0
P-A, NPDES
PCB 05-32 People of the State of Illinois, by Lisa Madigan, Attorney General for the State
of Illinois v. GTC, International, an Illinois corporation – The Board accepted for
hearing this air enforcement action involving a site located in Cook County.
5-0
A-E
PCB 05-33 Vollbracht Farms, Inc. (Property ID # 14-0-0282-000-00) v. IEPA – Upon
receipt of the Illinois Environmental Protection Agency’s recommendation, the
Board found and certified that specified facilities of Vollbracht Farms, Inc.
located in Adams County are pollution control facilities for the purpose of
preferential tax treatment under the Property Tax Code (35 ILCS 200/11-10
(2002)).
5-0
T-C
PCB 05-34 Moss Family Farms, Inc. (Property ID #34-013-08) v. IEPA – Upon receipt of
the Illinois Environmental Protection Agency’s recommendation, the Board
found and certified that specified facilities of Moss Family Farms, Inc. located in
Pike County are pollution control facilities for the purpose of preferential tax
treatment under the Property Tax Code (35 ILCS 200/11-10 (2002)).
5-0
T-C
PCB 05-35 Kibler Development Corporation and Marion Ridge Landfill, Inc. v. IEPA – The
Board accepted for hearing this permit appeal involving a facility located in
Williamson County.
5-0
P-A, Land
PCB 05-36 Bunker Hill Amoco v. IEPA – The Board accepted for hearing this underground
storage tank appeal involving a Macoupin County facility.
5-0
UST Appeal
Environmental Register – September 2004
14
PCB 05-37 Mussman's Back Acres, Inc. (Property ID # 01-04-14-200-008) v. IEPA – Upon
receipt of the Illinois Environmental Protection Agency’s recommendation, the
Board found and certified that specified facilities of Mussman's Back Acres, Inc.
located in Kankakee County are pollution control facilities for the purpose of
preferential tax treatment under the Property Tax Code (35 ILCS 200/11-10
(2002)).
5-0
T-C
PCB 05-38 Lone Willow USA, Inc. (Property ID # 09-12-100-007 and 09-12-200-011) v.
IEPA – Upon receipt of the Illinois Environmental Protection Agency’s
recommendation, the Board found and certified that specified facilities of Lone
Willow USA, Inc. located in Woodford County are pollution control facilities for
the purpose of preferential tax treatment under the Property Tax Code (35 ILCS
200/11-10 (2002)).
5-0
T-C
PCB 05-39
Lincoln Land FS, Inc. (Property ID # 09-21-404-007) v. IEPA – Upon receipt of
the Illinois Environmental Protection Agency’s recommendation, the Board
found and certified that specified facilities of Lincoln Land FS, Inc. located in
Morgan County are pollution control facilities for the purpose of preferential tax
treatment under the Property Tax Code (35 ILCS 200/11-10 (2002)).
5-0
T-C
PCB 05-40 Lincoln Land FS, Inc. (Property ID #06-29-100-023-0080 and 06-29-100-019-
0080) v. IEPA – Upon receipt of the Illinois Environmental Protection Agency’s
recommendation, the Board found and certified that specified facilities of
Lincoln Land FS, Inc. located in Scott County are pollution control facilities for
the purpose of preferential tax treatment under the Property Tax Code (35 ILCS
200/11-10 (2002)).
5-0
T-C
PCB 05-41 Lazy B Farm (Property ID #05-000-289-00) v. IEPA – Upon receipt of the
Illinois Environmental Protection Agency’s recommendation, the Board found
and certified that specified facilities of Lazy B Farm located in Lawrence County
are pollution control facilities for the purpose of preferential tax treatment under
the Property Tax Code (35 ILCS 200/11-10 (2002)).
5-0
T-C
PCB 05-42 Chris and Greg Niebrugge (Property ID #07-1-23-000-011-000) v. IEPA –
Upon receipt of the Illinois Environmental Protection Agency’s
recommendation, the Board found and certified that specified facilities of Chris
and Greg Niebrugge located in Crawford County are pollution control facilities
for the purpose of preferential tax treatment under the Property Tax Code (35
ILCS 200/11-10 (2002)).
5-0
T-C
Environmental Register – September 2004
15
September 16, 2004
Chicago, Illinois
Rulemakings
R05-3 In the Matter of: UST Update, USEPA Regulations (January 1, 2004 through
June 30, 2004) – The Board dismissed this reserved identical-in-substance
docket because the United States Environmental Protection Agency did not
amend its exemptions from the definition of underground storage tank during the
update period of January 1, 2004 through June 30, 2004.
5-0
R, Land
R05-5 In the Matter of: Exemptions from the Definition of VOM Update, USEPA
Regulations (January 1, 2004 through June 30, 2004) - The Board dismissed this
reserved identical-in-substance docket because the United States Environmental
Protection Agency did not amend its exemptions from the definition of volatile
organic material during the update period of January 1, 2004 through June 30,
2004.
5-0
R, Air
R05-7 In the Matter of: UIC Update, USEPA Regulations (January 1, 2004 through
June 30, 2004) - The Board dismissed this reserved identical-in-substance docket
because the United States Environmental Protection Agency did not amend its
underground injection control regulations during the update period of January 1,
2004 through June 30, 2004.
5-0
R, Land
Administrative Citations
AC 04-13 City of Chicago Department of Environment v. Eddie Greer – The Board entered
an interim opinion and order finding respondent violated Sections 21(p)(1) and
21(p)(7) of the Act (415 ILCS 5/21(p)(1) and (p)(7) (2002)) and assessing a
penalty of $3,000. The Board ordered the Clerk of the Board and the
Environmental Protection Agency to file within 14 days a statement of their
hearing costs and allowed respondent to file a response by October 14, 2004.
5-0
AC 05-13 IEPA v. Roy Bruce – The Board found that this Jefferson County respondent
violated Sections 21(p)(1) and (p)(3) of the Act (415 ILCS 5/21(p)(1), (p)(3)
(2002)), and ordered respondent to pay a civil penalty of $3,000.
5-0
AC 05-17 IEPA v. Roger Miller and Joan Kay Miller – The Board accepted for hearing this
petition for review of an administrative citation against these Cumberland
County respondents.
5-0
Decisions
PCB 91-17 Noveon, Inc. f/k/a BF Goodrich Corporation (Henry Facility) v. IEPA – The
Board affirmed the National Pollutant Discharge Elimination System permit as
issued by respondent on December 28, 1990.
5-0
P-A, Land
Environmental Register – September 2004
16
PCB 99-120 People of the State of Illinois v. Wood River Refining Company – In this air
enforcement action concerning a Madison County facility, the Board granted
relief from the hearing requirement of Section 31(c)(1) of the Environmental
Protection Act (415 ILCS 5/31(c)(1) (2002)), accepted a stipulation and
settlement agreement, and ordered the respondent to pay a total civil penalty of
$126,000 and to cease and desist from further violations.
5-0
A-E
PCB 02-164
Barbara and Ronald Stuart v. Franklin Fisher and Phyllis Fisher – The Board
found that only respondent Franklin Fisher violated the following provisions of
the Environmental Protection Act (Act) and the Board’s regulations: Section 24
of the Act (415 ILCS 5/24) and 35 Ill. Adm. Code 900.102 at respondent’s
facility located in Will County. The Board directed Franklin Fisher to cease and
desist from further violation of the Environmental Protection Act and Board
regulations by ceasing and desisting the use of the propane cannons on the
property.
3-1
Johnson
dissented
Novak
abstained
Citizens
N-E
Motions and Other Matters
PCB 02-177 People of the State of Illinois v. John Prior d/b/a Prior Oil Company and James
Mezo d/b/a Mezo Oil Company – The Board granted respondent John Prior’s
motion for stay of final order entered July 8, 2004, pending the outcome of his
petition for direct review in Fifth District Appellate Court.
5-0
L, W-E
PCB 04-15 People of the State of Illinois v. Atkinson Grain & Fertilizer, Inc. – Upon receipt
of a proposed stipulation and settlement agreement and an agreed motion to
request relief from the hearing requirement in this water enforcement action
involving a Henry County facility, the Board ordered publication of the required
newspaper notice.
5-0
W-E
PCB 04-48 Village of Robbins and Allied Waste Transportation, Inc. v. IEPA – The Board
denied the Cook County petitioners’ motion for summary judgment, and directed
the matter to hearing on all issues.
5-0
P-A, Land
PCB 04-105 Webb & Sons, Inc. v. IEPA – The Board granted petitioner’s motion for
voluntary dismissal of this underground storage tank appeal involving a Coles
County facility.
5-0
UST Appeal
PCB 04-164 People of the State of Illinois v. The Fields of Long Grove Home Owner’s
Association – Upon receipt of a proposed stipulation and settlement agreement
and an agreed motion to request relief from the hearing requirement in this public
water supply enforcement action involving a Lake County facility, the Board
ordered publication of the required newspaper notice.
5-0
PWS-E
PCB 04-187 Sutter Sanitation, Inc. and Lavonne Haker v. IEPA – The Board denied the
motion to intervene of the Ruffner family, Mr. Stock, and Stock & Co. The
Board also granted in part and denied in part the respondent’s motion to strike,
striking Exhibits 1-7 of, and references to those exhibits in, petitioners’ motion
for partial summary judgment. Finally, the Board granted petitioners’ motion for
partial summary judgment, denied the respondent’s motion for partial summary
judgment, and directed the parties to hearing on the remaining two grounds for
permit denial, for this Effingham County facility.
5-0
P-A, Land
Environmental Register – September 2004
17
PCB 04-217 Telzrow Oil Company v. IEPA – Having previously granted a request for a 90-
day extension, the Board dismissed this matter because no underground storage
tank appeal was filed on behalf of this Calhoun County facility.
5-0
UST Appeal
PCB 04-219 Commonwealth Edison v. IEPA – Having previously granted a request for a 90-
day extension, the Board dismissed this matter because no underground storage
tank appeal was filed on behalf of this La Salle County facility.
5-0
UST Appeal
PCB 04-220 Jim’s Mobil v. IEPA – Having previously granted a request for a 90-day
extension, the Board dismissed this matter because no underground storage tank
appeal was filed on behalf of this Madison County facility.
5-0
UST Appeal
PCB 05-44 People of the State of Illinois v. Roger Kuberski – The Board accepted for
hearing this water enforcement action involving a site located in Cook County.
5-0
W-E,
NPDES
PCB 05-45 United Parcel Service (Claim #1) v. IEPA – The Board granted this request for a
90-day extension of time to file an underground storage tank appeal on behalf of
this St. Clair County facility.
5-0
UST Appeal
90-Day Ext.
PCB 05-46 United Parcel Service (Claim #3) v. IEPA - The Board granted this request for a
90-day extension of time to file an underground storage tank appeal on behalf of
this St. Clair County facility.
5-0
UST Appeal
90-Day Ext.
PCB 05-47 United Parcel Service (Claim #2) v. IEPA - The Board granted this request for a
90-day extension of time to file an underground storage tank appeal on behalf of
this St. Clair County facility.
5-0
UST Appeal
90-Day Ext.
PCB 05-48 Illinois Ayers Oil Company (Ayerco #7) v. IEPA – The Board granted this
request for a 90-day extension of time to file an underground storage tank appeal
on behalf of this Cass County facility.
5-0
UST Appeal
PCB 05-50 L. Keller Oil Properties (Charleston) v. IEPA – The Board accepted for hearing
and this underground storage tank appeal involving a Cook County facility. The
Board also granted petitioner’s motion for expedited review.
5-0
UST Appeal
PCB 05-51 People of the State of Illinois v. Randy Oldenberger d/b/a Environmental Health
and Safety – The Board accepted for hearing this air enforcement action
involving a site located in Cook County.
5-0
A-E
New Cases
September 2, 2004 Board Meeting
05-029
Mather Investment Properties, L.L.C. v. Illinois State Trapshooters Association, Inc. – The Board held for a
later duplicative/frivolous determination this citizen’s enforcement action involving a Sangamon County facility.
05-030
Village of Frankfort v. IEPA – The Board accepted for hearing this permit appeal involving a facility
located in Cook and Will Counties.
05-031
Hall’s Automotive (SICR) v. IEPA – The Board granted this request for a 90-day extension of time to file
an underground storage tank appeal on behalf of this Hardin County facility.
Environmental Register – September 2004
18
05-032
People of the State of Illinois, by Lisa Madigan, Attorney General for the State of Illinois v. GTC,
International, an Illinois corporation – The Board accepted for hearing this air enforcement action involving a site
located in Cook County.
05-033
Vollbracht Farms, Inc. (Property ID # 14-0-0282-000-00) v. IEPA – Upon receipt of the Illinois
Environmental Protection Agency’s recommendation, the Board found and certified that specified facilities of
Vollbracht Farms, Inc. located in Adams County are pollution control facilities for the purpose of preferential tax
treatment under the Property Tax Code (35 ILCS 200/11-10 (2002)).
05-034
Moss Family Farms, Inc. (Property ID #34-013-08) v. IEPA – Upon receipt of the Illinois Environmental
Protection Agency’s recommendation, the Board found and certified that specified facilities of Moss Family Farms,
Inc. located in Pike County are pollution control facilities for the purpose of preferential tax treatment under the
Property Tax Code (35 ILCS 200/11-10 (2002)).
05-035
Kibler Development Corporation and Marion Ridge Landfill, Inc. v. IEPA – The Board accepted for hearing
this permit appeal involving a facility located in Williamson County.
05-036
Bunker Hill Amoco v. IEPA – The Board accepted for hearing this underground storage tank appeal
involving a Macoupin County facility.
05-037
Mussman's Back Acres, Inc. (Property ID # 01-04-14-200-008) v. IEPA – Upon receipt of the Illinois
Environmental Protection Agency’s recommendation, the Board found and certified that specified facilities of
Mussman's Back Acres, Inc. located in Kankakee County are pollution control facilities for the purpose of
preferential tax treatment under the Property Tax Code (35 ILCS 200/11-10 (2002)).
05-038
Lone Willow USA, Inc. (Property ID # 09-12-100-007 and 09-12-200-011) v. IEPA – Upon receipt of the
Illinois Environmental Protection Agency’s recommendation, the Board found and certified that specified facilities
of Lone Willow USA, Inc. located in Woodford County are pollution control facilities for the purpose of
preferential tax treatment under the Property Tax Code (35 ILCS 200/11-10 (2002)).
05-039
Lincoln Land FS, Inc. (Property ID # 09-21-404-007) v. IEPA – Upon receipt of the Illinois Environmental
Protection Agency’s recommendation, the Board found and certified that specified facilities of Lincoln Land FS,
Inc. located in Morgan County are pollution control facilities for the purpose of preferential tax treatment under the
Property Tax Code (35 ILCS 200/11-10 (2002)).
05-040
Lincoln Land FS, Inc. (Property ID #06-29-100-023-0080 and 06-29-100-019-0080) v. IEPA – Upon
receipt of the Illinois Environmental Protection Agency’s recommendation, the Board found and certified that
specified facilities of Lincoln Land FS, Inc. located in Scott County are pollution control facilities for the purpose of
preferential tax treatment under the Property Tax Code (35 ILCS 200/11-10 (2002)).
05-041
Lazy B Farm (Property ID #05-000-289-00) v. IEPA
– Upon receipt of the Illinois Environmental
Protection Agency’s recommendation, the Board found and certified that specified facilities of Lazy B Farm located
in Lawrence County are pollution control facilities for the purpose of preferential tax treatment under the Property
Tax Code (35 ILCS 200/11-10 (2002)).
05-042
Chris and Greg Niebrugge (Property ID #07-1-23-000-011-000) v. IEPA – Upon receipt of the Illinois
Environmental Protection Agency’s recommendation, the Board found and certified that specified facilities of Chris
and Greg Niebrugge located in Crawford County are pollution control facilities for the purpose of preferential tax
treatment under the Property Tax Code (35 ILCS 200/11-10 (2002)).
AC 05-014
City of Chicago Department of Environment v. Bovis Lend Lease, Inc. – The Board accepted an
administrative citation against this Cook County respondent.
AC 05-015
IEPA v. C. John Blickham – The Board accepted an administrative citation against this Adams County
respondent.
AC 05-016
IEPA v. Richard Groff – The Board accepted an administrative citation against this Fulton County
respondent.
AC 05-017
IEPA v. Roger and Joan Kay Miller – The Board accepted an administrative citation against these
Champaign County respondents.
Environmental Register – September 2004
19
AC 05-018
IEPA v. William Shrum
– The Board accepted an administrative citation against this Perry County
respondent.
AC 05-019
IEPA v. David and Shelby Hill and N. E. Finch Company – The Board accepted an administrative
citation against these Fulton County respondents.
AC 05-020
IEPA v. John Groff and Robert Groff – The Board accepted an administrative citation against these
Marion County respondents.
AC 05-021
IEPA v. Willis E. Farley, Jr. – The Board accepted an administrative citation against this Mason County
respondent.
September 16, 2004 Board Meeting
05-044
People of the State of Illinois v. Roger Kuberski – The Board accepted for hearing this water enforcement
action involving a site located in Cook County.
05-045
United Parcel Service (Claim #1) v. IEPA – The Board granted this request for a 90-day extension of time to
file an underground storage tank appeal on behalf of this St. Clair County facility.
05-046
United Parcel Service (Claim #3) v. IEPA – The Board granted this request for a 90-day extension of time to
file an underground storage tank appeal on behalf of this St. Clair County facility.
05-047
United Parcel Service (Claim #2) v. IEPA – The Board granted this request for a 90-day extension of time to
file an underground storage tank appeal on behalf of this St. Clair County facility.
05-048
Illinois Ayers Oil Company (Ayerco #7) v. IEPA
– The Board granted this request for a 90-day extension of
time to file an underground storage tank appeal on behalf of this Cass County facility.
05-049
Morton F. Dorothy v. Flex-N-Gate Corporation – The Board held for a later duplicative/frivolous
determination this citizen’s enforcement action involving a Champaign County facility.
05-050
L. Keller Oil Properties (Charleston) v. IEPA – The Board accepted for hearing this underground storage
tank appeal involving a Cook County facility. The Board also granted petitioner’s motion for expedited review.
05-051
People of the State of Illinois v. Randy Oldenberger d/b/a Environmental Health and Safety – The Board
accepted for hearing this air enforcement action involving a site located in Cook County.
AC 05-022
County of Sangamon v. James Withers – The Board accepted an administrative citation against this
Sangamon County respondent.
AC 05-023
IEPA v. Phillip Hamann – The Board accepted an administrative citation against this Mason County
respondent.
AC 05-024
City of Chicago Department of Environment v. Richland Group Enterprises, Inc. – The Board accepted
an administrative citation against this Cook County respondent.
AC 05-025
County of Montgomery v. Ronald F. Simmons – The Board accepted an administrative citation against
this Montgomery County respondent.
Calendar
10/6/04
9:30AM
PCB 04-79
Bonita Saxbury and Richard Saxbury v.
Archer Daniels Midland (Hull, Illinois
Division)
City Hall Council Chambers
215 N. Monroe Street
Pittsfield
10/7/04
10:00AM
Illinois Pollution Control Board Meeting
Union League Club
65 W. Jackson Boulevard
Chicago
Environmental Register – September 2004
20
10/7/04
10:00AM
PCB 04-81
People of the State of Illinois v. Emmett
Utilities, Inc, an Illinois corporation, and
Russell D. Thorell, individually and as
president of Emmett Utilities, Inc.
City Hall Council Chambers
232 E. Jackson
Macomb
10/8/04
10:00AM
PCB 04-81
People of the State of Illinois v. Emmett
Utilities, Inc, an Illinois corporation, and
Russell D. Thorell, individually and as
president of Emmett Utilities, Inc.
City Hall Council Chambers
232 E. Jackson
Macomb
10/21/04
10:00AM
Illinois Pollution Control Board Meeting
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph Street
Room 2-025
10/21/04
1:30PM
R04-21
In the Matter of: Revisions to Radium
Water Quality Standards: Proposed New
35 Ill. Adm. Code 302.307 and
Amendments to 35 Ill. Adm. Code
302.207 and 302.525
Michael A. Bilandic Building
Room N-502
160 North LaSalle
Chicago
10/22/04
1:30PM
R04-21
In the Matter of: Revisions to Radium
Water Quality Standards: Proposed New
35 Ill. Adm. Code 302.307 and
Amendments to 35 Ill. Adm. Code
302.207 and 302.525
James R. Thompson Center
Room 2-025
100 W. Randolph Street
Chicago
10/25/04
10:00AM
R04-26
In the Matter of: Interim Phosphorus
Effluent Standard, Proposed 35 Ill. Adm.
Code 304.123(g-k)
Illinois Department of Natural
Resources Building
Illinois State Fairgrounds
Lakeview A, B, and C
Springfield
10/26/04
10:00AM
R04-26
In the Matter of: Interim Phosphorus
Effluent Standard, Proposed 35 Ill. Adm.
Code 304.123(g-k)
Illinois Department of Natural
Resources Building
Illinois State Fairgrounds
Lakeview A, B, and C
Springfield
11/1/04
11:00AM
AC 04-63
County of Jackson v. Egon Kamarasy
(Site Code 0778095036)(Consolidated:
AC 04-63 and 64)
Jackson County Health
Department
Front Building
415 Health Department Road
Murphysboro
11/1/04
11:00AM
AC 04-64
County of Jackson v. Egon Kamarasy
(Site Code 0778125013)(Consolidated:
AC 04-63 and 64)
Jackson County Health
Department
Front Building
415 Health Department Road
Murphysboro
11/4/04
Illinois Pollution Control Board Meeting
Videoconference
Chicago/Springfield
James R. Thompson Center
Hearing Room 11-512
100 W. Randolph Street
Chicago
And
1021 N. Grand Avenue East
Oliver Holmes Conference
Room 2012 N
Springfield
Environmental Register – September 2004
21
11/4/04
1:00PM
R03-9
In the Matter of: Proposed New and
Updated Rules for Measurement and
Numerical Sound Emissions Standards
Amendments to 35 Ill. Adm. Code 901
and 910
Mississippi Room
Bureau of Water
1021 N. Grand Avenue East
Springfield
11/9/04
12:00PM
AC 04-82
IEPA v. John Brown d/b/a John Brown
Painting
City Hall Council Chambers
106 W. 5th Street
Metropolis
------------------------------------------------CUT HERE------------------------------------------------
Environmental Register Comment Card
The Illinois Pollution Control Board is an independent five-member board
that adopts environmental control standards, rules on enforcement actions,
and other environmental disputes for the State of Illinois.
The
Environmental Register
is published monthly by the Board, and
contains
updates on rulemakings, descriptions of final decisions, the Board’s hearing
calendar, and other environmental law information.
------------------------------------------------CUT HERE------------------------------------------------
Illinois Pollution Control Board
Environmental Register Coordinator
1021 N. Grand Avenue East
P.O. Box 19274
Springfield, Illinois 62794-9274
