THE ILLINOIS POLLUTION CONTROL BOARD
P E C E ~V E D
CLERK’S OFFICE
FREEDOM OIL COMPANY,
)
~2005
Petitioner,
)
PCB
03-54
STATE OF ILLINOIS
)
PCB
03-105
Pollution Control Board
vs.
)
PCBO3-179
)
PCB 04-02
ILLiNOIS ENVIRONMENTAL
)
(LUST Fund)
PROTECTION AGENCY,
)
PCB
03-56
)
(UST Appeal)
Respondent.
)
(Consolidated)
MOTION FOR SUMMARY JUDGMENT
NOW
COMES
the
Petitioner,
FREEDOM
OIL
COMPANY,
an
Illinois
corporation
(“Freedom”),
by
its
attorneys, Howard
and
Howard Attorneys,
P.C.,
and
in
support ofits
Motion for Summary Judgment pursuant to
35
Ill.
Admin.
Code
§
101.516,
states as follows:
INTRODUCTION
This
case
raises
a
relatively
simple
question
regarding
the
Illinois
Leaking
Underground
Storage Tank
Fund,
established
at
415
ILCS
5/57.8
(“Fund”).
Can
the
Illinois
Environmental
Protection
Agency
(“IEPA”)
direct or
compel,
by
court
order,
corrective
action
with
regard
to
Fund
eligible
tank
releases,
and
then
deny
Fund
reimbursement
because
Fund ineligible
tanks
are
discovered during
implementation
of
the ordered corrective action?
As
discussed below,
IEPA has
improperly
apportioned
costs
to
ineligible
tanks.
IEPA
imposed
cost
apportionment
despite
an
absence
of evidence
demonstrating
the
Fund ineligible
tanks
created any
conditions
requiring remediation.
More
importantly,
THIS FILING IS SUBMITTED
ON RECYCLED
PAPER
1
JEPA
imposed
cost
apportionment despite the
fact
the agency
specifically
ordered
the
corrective action at issue based on releases from Fund eligible tanks.
IEPA’s
apportionment
and
denial
of
reimbursement
is
either
arbitrary
or
capricious or a misapplication of the
law.
Moreover,
IEPA
is judicially
estopped
from
apportioning costs to
Fund ineligible tanks based on
its representations
in
Edgar County
Circuit
Court that
the
corrective action
was immediately
necessary to
address
releases
from Fund eligible tanks.
Freedom cannot cite to the record in support ofthis motion because IEPA did not
timely
file the record.
In lieu of the record, Petitioner has attached and cites to reports,
letters and
applications filed with
IEPA or in
IEPA’s
possession.
It would be
unfair to
prohibit
Freedom from
seeking summary judgment because of IEPA delays in
filing the
record.
See, E&L
Trucking Company
v. IEPA,
PCB
02-53,
April
18, 2002.
Further, as
the
IEPA
has
not
responded
to
discovery
requests
or
Petitioner’s
draft
Statement
of
Agreed Facts, despite orders to do so, a presumption the agency does not dispute the facts
outlined below is warranted’.
Petitioner previously filed a Motion for Default Judgment or in the Alternative to
Bar
IEPA Evidence
at Hearing.
Based
on
a
motion
by the
agency, the
April
6,
2005,
hearing was
continued.
In the event the
Board
denies
Petitioner’s
Motion for Default,
Petitioner submits this
alternative Motion for Summary Judgment.
‘Notwithstanding
this presumption, the facts cited by Freedom are
supported by the
exhibits to this motion.
THIS FILING IS SUBMITTED ON RECYCLED PAPER
2
BACKGROUND FACTS
Freedom Oil Company (“Freedom”) purchased a gasoline station located at 401
S.
Main
Street, Paris,
Illinois,
in
1985
(“Freedom Station”,
“Site” or “Property”).
Prior to
2002,
eleven
(11) USTs were
located at the Freedom
Station.
(pp.
1035-1036)
Six
(6)
USTs
were owned and registered
by Freedom with the
Office of the
State Fire
Marshal
(“OSFM”)
under
41111.
Admin.
Code
§
170.440.
OSFM registration
qualified these
tanks
for the Fund.
(pp.
1032-1036)
These tanks
are referred to
herein as the “Eligible
Tanks.”
The presence ofthe other five (5) tanks was discovered during the 2002 corrective
action
at
issue
in
this
case.
(p. 63)
Sometime prior to
1974,
the prior property
owner
filled
these tanks
with sand and
closed them
in
place.
(pp.
63,
1090)
Freedom never
owned or operated the tanks.
As
the tanks were not in
use after 1974, they are ineligible
for OSFM registration and the Fund.
(pp.
1032-1036)
These
tanks
are referred to herein
as the “Ineligible Tanks.”
The volume, product contents and OSFM registration status of
all the tanks is
set forth below:
UST
~#
Volume
(gallons)
Product
Notes
1
4,000
Diesel
Registered with OSFM
2
4,000
Gasoline
Registeredwith OSFM
3
4,000
Gasoline
Registered with OSFM
4
4,000
Gasoline
Registered withOSFM.
5
1,000
Gasoline
Registered withOSFM.
Removed prior to 2002.
6
1,000
Kerosene
Registered with OSFM
7
1,000
Gasoline
Not registered
8
1,000
Gasoline
Not registered
9
1,000
Gasoline
Not registered
10
1,000
Gasoline
Not registered
11
500
Heating
Oil
Unregulated tank.
THIS FILING IS SUBMITTED ON RECYCLED PAPER
3
(pp.
1032-1036)
The
Site layout
is
depicted in
the MACTEC
(formerly known
as Harding ESE)
map
attached
as
Exhibit
1
(p.
1).
As
reflected
on
the
map,
the
Eligible
Tanks
were
located
together
in
a
cavity
on
the
southern
portion
of the
Property
(“Eligible
Tank
Cavity”
or “Tank Cavity”).
The
Ineligible Tanks
were
located north
and west of the
center of the
Site.
They were
approximately
40
feet north of the Eligible
Tank
cavity.
The pump
islands
serving
the
Eligible
Tank cavity
were
in
between the
Eligible
and
Ineligible
Tanks.
A
diesel
pump
island
was
located
on
the
north
of the
Property
connected to
a diesel tank in the Eligible Tank cavity.
In
1993,
Tank
No.
5
experienced
a
release.
The tank was
removed.
PSI,
an
environmental
consulting
firm
completed
remediation
and
closed
this
incident.
(Exhibit 2, pp. 2-19)
In 1996,
Freedom commissioned Z&R Oil and
Armor Shield to
upgrade its
tanks
(tanks
1-4 and 6) with
corrosion resistant linings, new piping, and
overfill protection as
required by
law.
During the upgrade activities, vapors were detected downgradient ofthe
Tank
Cavity
in
the
southern
sewer.
Z&R
Oil
made three
excavations to
investigate.
Petroleum sludge was found downgradient near a tile
in the southwest
corner of the Site.
The tile was plugged and a sump installed.
A release was reported and assigned Incident
961825.
Freedom retained PSI
to
address this
release.
PSI
installed monitoring
wells
and
conducted
sampling
to
investigate
this
release.
In
early
1997
PSI
submitted
an
investigation report to the IEPA.
(Exhibit 3, pp. 391-419)
THIS FILING IS SUBMITTED
ON RECYCLED
PAPER
4
2002 Release History
In 2002,
two
release incidents
from USTs
occurred at the Freedom Station.
The
MACTEC reports attached as Exhibit 4 (pp.
49-453)
describe the releases and corrective
action.
The first release was discovered in April 2002
when Paris High School,
located
across the street north and upgradient ofthe station,
reported vapors.
(p.
57)
An April 3,
2002
investigation
revealed that
a
shear
valve
on
Pump
No.
1
was
leaking.
(p.
57)
Freedom shut down the tank and retained Barnhardt Equipment Co.
to immediately repair
the valve.
(p. 57)
The shear valve leaked because it was not properly tightened by the
company conducting tank and
line testing.
This release was assigned Incident 20020433.
(p.
57)
On August
7, 2002,
a tank liner failure
in Tank No.
1
occurred causing a release
estimated by
the OSFM
at
approximately
1,100
gallons of gasoline.
This
release
was
discovered after vapors were reported downgradient of the tank cavity in the sewer and in
homes
located
south
of
the
Freedom
Station.
This
release
was
assigned
Incident
20021122.
(p.57)
Freedom
performed corrective
actions at the
Site in
response to
these
releases.
From
April
3,
2002
to
April
10,
2002,
the
OSFM
directed
the
emergency
response
activities.
Thereafter, the Illinois Environmental
Protection Agency Office ofEmergency
Response (“OER”) directed and ordered all
aspects ofthis
corrective action.
(pp. 49,
58,
62,
486,
1105)
Michael
J.
Hoffman,
a
professional
engineer,
Richard Pletz
and
Terry
Dixon
of
MACTEC,
an
environmental
consulting
firm
(formerly
Harding
ESE),
supervised
the corrective
action
on
behalf of Freedom.
(See
Exhibit
4,
and
pp.
1088-
1091)
In summary, the corrective action included multiple trench construction north and
THIS
FILING IS SUBMITTED
ON RECYCLED PAPER
5
south
of the
Site,
collection
and
sampling
of soil
and
groundwater
in
the
trenches,
collection of free product and
groundwater
from
recovery wells,
soil
and
groundwater
sampling,
sewer
investigation
(dye/smoke
testing
and
terescan
videotape
vehicle
investigation),
high school investigation, high
school monitoring, sewer vapor extraction
and significant soil excavation.
A
description
of
the
corrective
action
activities
associated
with
each
Reimbursement
Application
is
attached
as
Exhibit
5.
The
OER
ordered
each of the
corrective actions described in this Exhibit.
A review of the listed activities demonstrates
the corrective action dealt with
conditions
created by the Eligible
Tank releases, not by
30-year
old
tanks
filled
with
sand that
clearly
did
not
produce the
sewer vapors,
free
product in wells or free product oozing from soil pores addressed by the
2002
corrective
action.
Agency statements during disputes between the OER and MACTEC regarding the
corrective
action
ordered
by
OER
confirm
the
agency’s
directives
related
to
Fund
Eligible
Tanks.
Freedom’s
consultant,
MACTEC,
raised
concerns
about
the
appropriateness
and
reimbursability
of the
corrective
action
work
ordered
by
OE~.2
MACTEC
argued many corrective
action
steps
ordered by OER were
unnecessary and
2
OER’s
conduct was inconsistent with
legislative policy
designed not only to promote health and welfare
but to also
ensure
that
gas stations may stay in business to provide a necessary commodity.
Continuing
to
order
work
on
the North
side of the
Property and requiring disposal of uncontaminated groundwater was
clearly
unnecessary
as the
reported
results
demonstrated.
The agency
compounded
its
disregard
of the
LUST program
policies by
not only requiring unnecessary work but then
failing
to honor reimbursement
for work it ordered to address
leaks from clearly eligible
tanks.
Its
disregard for the rights of Freedom to
operate its business free from
arbitrary
actions
were made more evident by the fact IEPA placed barriers to
Freedom’s corrective
action efforts.
For example,
while
insisting Freedom discover the pathway for the
shear valve release to migrate north, the
IEPA nonetheless directed
the public school
to deny Freedom the
rightto test soil and groundwater on school
property.
(See
Exhibit 6, pp. 481-484, 487)
THIS FILING IS SUBMITTED ON RECYCLED PAPER
6
not supported
by the analytical evidence.
Nonetheless,
OER continued to mandate these
actions to address the April and August releases.
(See
Exhibit 6)
MACTEC
objected to
OER’s theory that the shear valve release
migrated
north
(the upgradient direction) through the
soil
as “slug” to the high
school
sewer leaving no
residual
contamination.
(pp.
473-478)
After
investigating
and
finding
no
apparent
pathway
for the
shear valve
release
to
have reached
the
high
school
sewer, MACTEC
raised an objection to continuing the investigations
upgradient of the shear valve release
(e.g.,
the significant and continuing
trench operations and sewer investigations) (p. 481-
485).
MACTEC
also
objected
to
OER’s
order
that
uncontaminated
groundwater
recovered
from
the
northern
trench
be
shipped
off-site
to
a
licensed
disposal
facility
rather than allowing sewer discharge ofthe water.
(pp. 47 1-473, 477-478)
As
reflected
in the Exhibit
6
correspondence, OER
continued to
persist
in
its
demands based
on
the
Eligible Tank releases.
To
ensure
its
control,
OER
requested the
Attorney
General
pursue
a
Verified
Complaint for Injunctive Relief,
filed on April
15,
2002,
in
Edgar County.
Exhibit
7.
As
set
forth in the Complaint, the injunctive relief sought was an order to
correct conditions
caused
by
the
April
2002
shear
valve
leak.
See
paragraphs
8
and
9
of Complaint.
(p. 492)
Following
the
August release
from
the tank
liner
failure
Freedom
once
again
immediately
mobilized
MACTEC
and emergency contractors
to the
Site.
(p.
57)
After
this
release, MACTEC
objected to
OER’s orders regarding the extent of soil
excavation
and
sampling.
(pp. 45 8-467)
In response, the Attorney General filed a Verified Motion
for Immediate
Injunction
in
the
same
Edgar County
case seeking
action
to
address
the
THIS FILING IS SUBMITTED ON RECYCLED PAPER
7
tank liner
release.
(See
Exhibit
8.)
The Attorney
General’s motion
specifically
deals
with the leak arising
from the tank liner failure.
As evidenced by statements in Court during the hearings on the Motion, the relief
requested by the state sought
to address either the discharge from the shear valve or from
the tank liner failure.
In statements before the Court,
counsel for the IEPA specifically
stated that the requested relief related to
the Eligible
Tanks.
For example, in discussing
the
time
needed to
address digging to
determine extent of contamination, counsel stated
there was no dispute regarding the source ofcontamination:
THE COURT:
We have moved back
and
forth
whether or not
the tank leak was the source ofthis August 7 gas leak.
Is that a dispute or
non-dispute?
MR. MORGAN:
We
don’t
dispute
that
the
tank
is
the
source.
What we don’t know yet is
exactly how the material
entered into the sewer
and then potentially in the homes.
THE COURT:
The path it took after it left the tank?
MR. MORGAN:
After
it left the tank.
Did
it enter
—
it has been
suggested
that
it
has
been
carried
by
the
ground
water.
If it has
been
carried by the ground water, that means there
is additional
contamination
in the immediate vent of it.
THE COURT:
The problem is
whether the hole
is
going to be
big or little?
MR. MORGAN:
Right.
THE COURT:
But it got out ofthat tank?
MR. MORGAN:
Got out ofthat tank.
Transcript, Hearing August
15,
2002.
(Exhibit 9, pp.
542-543)
In connection with
the hearing,
counsel for the parties marked up
an
immediate
injunction order, which order specifically recognized tank
1
as the tank in
issue.
(Exhibit
THIS FILING IS SUBMITTED ON RECYCLED PAPER
8
10, p.
567)
In fact, the original proposed order ofthe IEPA specifically identifies Tank
1
as the leaking tank.
On
August
23,
2003,
despite
objections
from
Freedom,
another
Immediate
Injunction
Order
was
entered
following
disputes
about
the
necessity
to
remove
the
Eligible
Tanks,
and
the necessity for
soil
excavation destabilizing the
Tank Cavity
and
the station
building
which
would
put
Freedom
out
of business.
See
Exhibit
11.
Once
again, paragraph
1 ofthe order is clear that the excavation is attributable to
Fund eligible
tank
1,
identifies tank
1
as the leaking tank,
and orders its removal.
(p. 574)
The entire
order is
related to the “latest release” which
counsel for the IEPA represented to
be Fund
eligible tank 1.
The state’s argument to the Court in support ofits requested order follows:
MR.
MORGAN:
The
touchstone
of
this
order
is
the
first
provision:
“The defendant
shall
cease and desist
from any further
violations
ofthe Environmental Protection Act.”
Our motion,
the
testimony
today,
has
demonstrated
ongoing
violations
of
the
Environmental
Protection
Act
for as
long
as
that
contamination,
that gross
contamination, remains in place.
There
is
a threat of release into the sewer.
As we noted
in
our
Memorandum,
the
regulations
specifically
provide,
at
35
Illinois
Administrative
Code
307.1101,
Paragraph
21
of
our
motion:
“No
person
shall
introduce
the
following
types
of
pollutants into a POTW:”
That’s Public-Owned Treatment Works.
“General Requirements.
Pollutants
which
shall
interfere
with
the
operation
or performance ofthe POTW; or
Pollutants
which
create
a
fire
or explosion hazard
within the POTW;
THIS FILING IS SUBMITTED ON RECYCLED PAPER
9
Pollutants
which would
cause safety hazards to the
personnel operating the treatment works;
Pollutants
which
would
be
injurious
in
any
other
way to sewers, treatment works or structures.”
Chief
Taylor
testified
that
indeed
the
vapors
from
this
release, as well as the contamination itself, posejust such a threat:
pollutants
which
create
a
fire
or
explosion
hazard
within
the
POTW.
Hearing Transcript.
(Exhibit 9, pp.
553-554)
The state argued as follows regarding Freedom’s concerns the excavation ordered
by
the agency would put
Freedom out of business
by
destabilizing the
tank cavity
and
building structure.
MR.
MORGAN:
Now,
we’ve
proposed
that
this
excavation
should
chase
that
contamination,
wherever
it
is,
to
the
greatest
extent possible.
What we’ve gotten is, “If we do that, it may affect
our tank system.
But we haven’t looked at the measures available
to
protect
that tank
system.
It
may
affect
our building.
But we
haven’t looked at the measures
available to
protect
that
building.
We just don’t want to do it, because it may.”
The
only
certainty
we
have
is
that
that
contamination
is
going
to
continue
to
adversely affect this
community as long
as it
stays
in
place.
This
is
a
situation
where
there
are
ongoing
violations
of
the
Environmental
Protection
Act
and
ongoing
substantial danger to this community.
This order will put a stop to
that.
We
believe the
order
should
be
entered.
We
believe
the
order must be entered.
And we ask the court to do so.
Thank you.
(p.
555)
The orders entered in
the Circuit Court mandated corrective action because ofthe
leaking valve and tank liner failure.
Furthermore, the argument
and representations made
by the
state in
Circuit Court
reflect that
IEPA sought the
corrective actions
because of
these releases.
As
explained
in
the argument
section, IEPA
is judicially
estopped from
THIS FILING IS SUBMITTED ON RECYCLED PAPER
10
arguing that these actions, and the ~osts associated therewith,
can now be attributable to
the Ineligible Tanks.
LUST Fund Reimbursement Requests
Freedom
submitted
three
reimbursement
applications
requesting
a
total
of
$1,012,240.99
in
costs
incurred to
remediate
the
2002
releases
incidents.
(Exhibit
12)
IEPA
denied
Fund
reimbursement
to
Freedom
in
the
amount
of $225,848.51.
On
December
18,
2002, IEPA denied $35,501.01~. (Exhibit
13)
On March
19, 2003,
IEPA
denied
$169,051.90
(Exhibit
14).
On
May
28,
2003,
IEPA
denied
$22,559.71
(Exhibit
15).
(Collectively,
the
“Denied
Costs.”)
The
Denied
Costs relevant
to
this
appeal fall within the following categories:
Amount
Type of Cost
$24,638.82
Handling
costs
$362.84
cell phone and mileage
$27.76
dye for tracer testing
$140.00
notice of smoke testing
costs
$33.25
.
VHS tape copies of sewer
investigation
$200,645.84
Corrective action
—
ineligible_tanks
IEPA’s Denial of Corrective Action Cost Reimbursement
As
reflected
in
the
above
chart,
IEPA denied
$200,645.84
in
corrective
action
costs
under
415
ILCS
5/57.8(m)(1) based
on
the presence of Ineligible Tanks.
IEPA
determined 80.95
ofthe corrective action costs were associated with the Eligible Tanks
and,
therefore,
reimbursable.
IEPA
determined
19.05
of the
corrective
action
costs
were
associated with the Ineligible Tanks and, therefore, not reimbursable.
~This number is based on the allocation adjustment made by IEPA following Freedom’s Motion for Partial
SummaryJudgment.
THIS FILING IS SUBMITTED ON RECYCLED PAPER
11
In reaching this payment allocation, IEPA found tanks
1-4 and 6 eligible for Fund
reimbursement,
and
tanks
7
through
10
ineligible
for reimbursement.
IEPA
did
not
include
in
its
calculations
tank
5
which
had been
removed,
or
tank
11
based
on
its
unregulated status.
IBPA reached the 80.95
allocation
based on the ratio of 17,000 gallons eligible
tank volume
(tanks
1-4, and
6) to
21,000 gallons total
tank volume
(tanks
1-4,
6 and 7-
10).
(See
Exhibit
15)
IEPA’s calculation is based on the following formula:
17,000 eligible gallons
+
21,000 total gallons
=
80.95.
(pp. 1085-1086)
The chart below
depicts the corrective
action
costs
paid for eligible
tanks
based
on IEPA’s allocation.
Reimbursement Application
Date of IEPA
Action
Corrective Action
Costs Incurred
Amount Denied for
Ineligible Tanks
Percentage
Paid
-
Costs between April 3, 2002
and August 2, 2002
December
18,
2002
$185,644.12
$35,333.25
80.95
2- Costs
between August2,
2002
and December 24, 2002
March
19, 2003
$709,748.50
$143,123.59
79.07
3
-
Costs between December 24,
2002
and February 11,2003
May 28, 2003
$116,848.37
$22,189.00
80.95
TOTAL
$1,012,240.99
$200,645.84
The IEPA Fund denial
notifications to Freedom explain in
an attachment entitled
“Technical Deductions” “that
there were
ten tanks
at the subject facility, each of which
was
determined by
the Office of State
Fire
Marshal
to
have had
a
significant release.”
(pp. 1076,
1082,
1085)
STATEMENT OF ISSUES
IEPA
denied $200,645.84
in
corrective action costs
under
415
ILCS
5/57(m)(1)
due to the presence oftanks
ineligible for Fund coverage.
IEPA
also
denied $24,638.82
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
12
in
handling costs,
$362.84 in cell
phone costs,
$27.76
in sewer dye tracer costs,
$140.00
for publishing notice of the sewer smoke testing,
and $33.25
for
VHS
tape copies ofthe
sewer investigation. The issues presented are whether allocation of 19.05
ofcorrective
costs to
the Ineligible Tanks (7,
8
9 and
10) and
denial of the other costs
listed above
is
appropriate under
the facts of this
case.
Additionally,
this
case raises
an
issue
whether
IEPA
is judicially
estopped from asserting that costs are
attributable to
tanks
other than
the Eligible
Tanks
based
on
its
pleadings and arguments
advanced
in
the Edgar County
Circuit Court.
RELEVANT LEGAL PROVISIONS
The
legal
provisions
set
forth
below
are
relevant
to
the
relief
requested
by
Freedom through this motion.
Basis for Apportionment of LUST Fund
Costs to
Ineligible
Tanks
415 ILCS
5/57.8(m)
provides the authority and prerequisites
for apportionment of
LUST
Fund
Reimbursement
Costs
based
on
the
presence
of Ineligible
Tanks.
This
provision provides in pertinent part:
(m)
The
Agency
may
apportion
payment
of
costs
for
plans
submitted under Section 57 if:
(1)
The
owner
or
operator
was
deemed
eligible
to
access
the
Fund
or
payment
of
corrective
action
costs
for
some,
but
not
all,
of
the
underground
storage tanks at the site, and
(2)
the
owner
or
operator
failed
to
justify
all
costs
attributable to
each underground
storage tank at the
site.
35
IAC §732.608 the regulation implementing this provision
provides in pertinent
part:
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
13
a)
The Agency may apportion payment ofcosts if:
1)
The
owner
or
operator
was
deemed
eligible
to
access
the
fund
for
payment
of corrective
action
costs
for
some,
but
not
all,
of the
underground
storage tanks at the site; and
2)
The
owner
or
operator
failed
to
justify
all
costs
attributable
to
each underground storage tank at the
site.
(Derived from Section 57.8(m) ofthe Act)
b)
The Agency will determine, based
on volume or number of
tanks,
which
method
of
apportionment
will
be
most
favorable to the owner or operator.
The Agency will notify
the owner or operator ofsuch determination in writing.
Circumstances under which Corrective Action is Required for Pre-74 Tanks
The obligation
to
conduct corrective action
is not
the same
for
Ineligible
Tanks
(pre-1974)
and
Eligible
Tanks.
Under
Illinois
law,
removal
of
pre-74
tanks
and
remediation of contamination
from
the
tanks
is
required only if the tank
and/or release
pose a
current or potential
threat to
human health
and
the environment and
the
OSFM
issues an
order
requiring removal
and/or remediation.
The Illinois
legislature
enacted
this
provision
because
corrective
action
for
pre-1974
tanks
is
not
eligible
for
reimbursement
from
the
Fund.
As
a
compromise
to
petroleum
distributors
for
eliminating Fund
eligibility
for pre-1974
tanks,
the legislature
clarified that
corrective
action for pre-1974 tanks and releases was required only if a current or potential threat to
human health or the environmentwas present.
The law provides as follows:
The owner or operator ofan underground storage tank taken out of
operation
before January 2,
1974,
shall not be
required to
remove
or abandon
in
place
such
underground
storage tank except
in
the
case in which the Office of the
State
Fire Marshal has determined
that a release from the underground storage tank poses a current or
potential threat to human health and the envjronment.
In that case,
and
upon
receipt
of an
order
from
the
Office
of the
State
Fire
THIS FILING IS SUBMITTED ON RECYCLED PAPER
14
Marshal,
the owner
or operator of such underground
storage tank
shall
conduct
removal
and,
if
necessary,
site
investigation
and
corrective
action
in
accordance
with
this
Title
and
regulations
promulgated by the Office ofState Fire Marshal and the Board.
415 ILCS 5/57.5(g).
ARGUMENT
FREEDOM IS
ENTITLED TO SUMMARY JUDGMENT
BASED ON THE FACTS
IEPA’s
Fund denial
letter bases
its
cost
allocation to
the Ineligible Tanks
on
the
OSFM’s
report
of a
release
from
all
tanks
at the
Site.
(pp.
1076,
1082,
1085)
This
explanation fails to
support IEPA’s action.
The OSFM did determine that there were ten
tanks
at
the
facility
and
advised
MACTEC
a
release
should
be
reported
based
on
observation
of
tank
holes.
(p.
1030)
However,
the
OSFM
did
not,
and
does
not,
determine whether corrective action
is
required.
Illinois
abandoned the
color and
odor
test
to
mandate
corrective
action
years
ago
in
favor
of
analytical
evidence.
OSFM
characterizations,
therefore,
do
not
constitute
evidence
that
the
corrective
action,
and
associated
costs, here were attributable to Ineligible Tanks.
The
OSFM
did
not
issue
an
order
requiring
removal
or
remediation
of the
Ineligible Tanks
in
this case.
The field observations
and analytical results from the Site
reflect no factual basis for such an
order to
have been ordered.
Thus,
as a matter of law,
no
actions
can be
deemed
to
have
incurred with
respect
to
these tanks
and none of the
costs may be attributed to
these tanks.
Furthermore,
the
OER
ordered
the
corrective
action
to
address
Eligible
Tank
conditions
(the valve release
and tank liner failure).
The Edgar Circuit Court pleadings
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
15
and transcripts document this basis
for OER’s orders.
The agency cannot offer a specific
reason for corrective action in
one venue and
another reason in a different venue.
Finally,
field conditions
and analytical evidence confirm that
the Eligible
Tanks,
not
the Ineligible Tanks caused the contamination requiring remediation.
Thus,
all costs
are attributableto the Eligible Tanks, regardless ofany initial OSFM release declarations.
Freedom justified its
costs as attributable to releases from Eligible USTs.
The
ineligible tanks did not create environmental condi-tions requiring remediation.
The work done in connection with Reimbursement Application No.
1
was clearly
related to the shear valve release from Pump No.
1.
(Exhibit 4,
Exhibit
5
-
pp.
454-45
5,
and Exhibit
12
-
pp.
585-752)
As
explained in the MACTEC reports,
the work focused
exclusively
on
emergency response
to
address the shear valve release
and investigation
into whether that
release
caused the vapors
identified at the high
school.
None
of the
work conducted related in any way to the Ineligible Tanks.
(pp. 57-61,
346-353)
Similarly,
the work
done
in
connection with Reimbursement Applications
No.
2
and 3 was precipitated by the tank liner failure.
(Exhibit 4, Exhibit
5
-
pp.
455-456,
and
Exhibit
12
-
pp.
753-1073)
The
work
consisted
initially
of emergency
response
to
address
conditions
in
the
southern
sewer
and
homes
due
to
the
tank
liner
failure.
Thereafter,
the work included trench
construction
and
related activities
to
evaluate and
abate the flow from the release to the
south.
The final aspects
of the work included
soil
excavation
ordered by
OBR to
remove
“gross” soil
contamination caused by
the shear
valve
and tank liner releases.
(pp.
62-64)
Once
again, none of the work related
to
the
Ineligible Tanks.
THIS FILING IS SUBMITTED ON RECYCLED PAPER
16
In fact, the work described above was ordered by OER before the Ineligible Tanks
were even discovered.
The discovery of the Ineligible Tanks
was merely a coincidental
finding during the excavation already ordered.
In sum, OER
ordered the trenches, sewer
investigations, soil
excavations
and other corrective action to
address the releases caused
by the shear valve and the tank liner failures
--
not to address the Ineligible Tanks.
Moreover,
IEPA
has
submitted
no
evidence
of any
condition
created
by
the
Ineligible Tanks
that
required remediation
under
Illinois
law.
No
available
analytical
evidence
documents
conditions
or
contaminant
levels
associated
with
the
Ineligible
Tanks
warranting
remediation.
In
the
absence
of
scientific
evidence
indicating
the
Ineligible Tanks necessitated the corrective action, allocation ofcorrective action
costs to
these tanks is arbitrary and capricious.
This
is particularly
true given that field conditions and analytical
evidence refute
any
argument
the
Ineligible
Tanks
created
environmental
conditions
necessitating the
corrective
action
conducted
at the Property.
The
tanks
had
been filled
with
sand
and
closed
in place at least thirty years before the 2002
events.
(p. 63)
Thus, it’s not possible
the Ineligible Tanks caused the sewer vapors, gasoline in the sewer, free product found in
wells or product oozing from soil
pores
—
the conditions
that formed the factual basis for
the work ordered by OER.
In
addition,
analytical
results
from
sampling
in
connection
with
the
1993
and
1996
release
and
in
2002
demonstrate
the
Ineligible
Tanks
did
not
give
rise
to
a
remediation
obligation or create conditions necessitating the corrective action
conducted
at the Property.
Specifically:
THIS FILING IS SUBMITTED ON RECYCLED PAPER
17
Sampling
conducted
in
connection
with
the
1993
and
1996
Incidents
did
not
identify
contamination
in
the
vicinity
of the
Ineligible
Tanks
suggesting
a
need
for
remediation.
No contamination was found following the
1993
excavation.
(p. 495)
The
1996 sampling showed minor detections of petroleum constituents to
the north and west
in the vicinity ofthe Ineligible Tanks.
According to
the PSI report,
soil
and groundwater
sampling from these areas revealed the following:
Parameter
Boring
1- Soil
-
(ppm)
Clean up
Objective
Benzene
1,000
ppb
.17
Toluene
6.6
29
Ethylbenzene
13
19
Xylene
8.9
150
Parameter
MW-i
Groundwater -_(ppm)
Clean
up
Objective
Benzene
0.038
.025
Toluene
0.005
2.5
Ethylbenzene
0.035
1.0
Xylene
0.014
10.0
Parameter
Boring 2
—
Soil
-
(ppm)
Cleanup
Objective
Benzene
Toluene
Ethylbenzene
Xylenes
Parameter
MW-2
Groundwater
—
(ppm)
Clean up
Objective
Benzene
.025
.025
Toluene
.0091J
2.5
Ethylbenzene
1
ppb
1.0
Xylene
.0018J
10.0
0.027
0.047
0.011
0.050
.17
29
19
15
PSI noted that diesel pump
islands
were
present at the north of the Site
and that
the
constituents
detected
in
borings
1
and
2
might have been
associated with
a leaking
fuel
line
serving the diesel pump
islands.
PSI
also concluded
that the contamination
in
the
area of Borings
1
and
2
might
not
be
as
extensive
as near
borings
3
and
4
as the
groundwater from MW-i
appeared
only minimally
impacted.
(p. 403)
In contrast, the
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
(p. 402)
18
sampling to the
south and east at borings
3 and 4
downgradient ofthe Tank cavity where
the upgrades were underway revealed significant levels of contamination associated with
the 1996 Incident.
Parameter
Boring 3
-
Soil
-
(ppm)
Clean up
Objective
Benzene
.77
.17
Toluene
2.9
29
Ethylbenzene
6.3
19
Xylene
19
150
Parameter
MW-3
Groundwater -_(ppm)
Clean
up Objective
Benzene
5.9
.025
Toluene
20
2.5
Ethylbenzene
3.5
1.0
Xylene
19
10.0
Parameter
Boring 4
-
Soil
-
(ppm)
Clean
up Objective
Benzene
1.4
.17
Toluene
6.8
29
Ethylbenzene
4.6
19
Xylenes
13
15
Parameter
MW-4
Groundwater -_(ppm)
Clean up
Objective
Benzene
0,71
.025
Toluene
1.1
2.5
Ethylbenzene
0.17
1.0
Xylene
1.0
10.0
(p. 402)
MACTEC’s
2002
sampling
revealed
similar
conditions
—
no
“gross”
contamination
or
contaminants
requiring
remediation
under
TACO
standards
in
the
central
and
north
portion of the Property and gross
soil
and
groundwater contamination
south and west, downgradient ofthe pump
islands
and Eligible Tank Cavity.
Consistent
with the
1993
and
1996 data, the 2002
data indicated the Ineligible Tanks did not
create
conditions mandating remediation under Illinois law.
In April
2002
OER
ordered significant
investigation
and
soil
excavation
on
the
north
end
of the Property
to
identify
a potential
pathway
for the shear valve
release
to
THIS FILING IS SUBMITTED ON RECYCLED PAPER
19
reach the high school to
the north.
The basis for this work was the vapors reported in the
sewer
to
the north near the high
school.
The results of this
work did not
identify any
significant
soil
or groundwater contamination
in
the
vicinity of or
associated
with
the
Ineligible
Tanks.
(p.
57-64)
Analysis
of soil
and groundwater samples
from
the north
end of the property
nearest to the Ineligible Tanks revealed benzene
at levels from
less
than .025 ppm to .037 ppm in soil and less than .05 ppm in groundwater.
As depicted in the charts below,
the analytical results of samples taken closest to
the
Ineligible
Tanks
did
not
identify
contamination
caused
by
the
tanks
requiring
remediation:
Soil Sampling (ppm)
Parameter
RW-i
Clean-Up Objective
Benzene
Toluene
Ethylbenzene
Xylene
.005
0.0 12
.005
.01
0.17
29
19
150
Parameter
B-02-1
Clean-Up Objective
Benzene
Toluene
Ethylbenzene
Xylene
.025
.085
.5
.082
0.17
29
19
150
Parameter
MW-02-4
Clean-Up Objective
Benzene
Toluene
Ethylbenzene
Xylene
.005
.012
.013
.04
0.17
29
19
150
Parameter
MW-02-3
Clean-Up Objective
Benzene
Toluene
Ethylbenzene
Xylene
.005
.005
.005
.010
0.17
29
19
150
Parameter
B-02-6
Clean-Up Objective
Benzene
Toluene
Ethylbenzene
Xylene
.025
.025
1.7
0.11
0.17
29
19
150
THIS FILING IS SUBMITTED ON RECYCLED PAPER
20
Parameter
B-02-7
Clean-Up Objective
Benzene
Toluene
Ethylbenzene
Xylene
.025
.025
.025
.05
0.17
29
19
150
Parameter
B-02-2
Clean-Up Objective
Benzene
Toluene
Ethylbenzene
Xylene
.034
.049
5.2
.52
0.17
29
19
150
Parameter
B-02-3
Clean-Up
Objective
Benzene
Toluene
Ethylbenzene
Xylene
.037
.027
3.0
.15
0.17
29
19
150
Parameter
B-02-4
Clean-Up
Objective
Benzene
Toluene
Ethylbenzene
Xylene
.025
.068
.025
.05
0.17
29
19
150
Parameter
B-02-5
Clean-Up
Objective
Benzene
Toluene
Ethylbenzene
Xylene
.025
.025
.025
.05
0.17
29
19
150
(p. 354-355)
Groundwater Sam
pj~g
-
Parameter
MW-i
Clean-Up Objective
Benzene
.005
.025
Toluene
•
.005
2.5
Ethylbenzene
.005
1.0
Xylene
.010
10.0
Parameter
MW-02-3
Clean-Up Objective
Benzene
.005
.025
Toluene
.005
2.5
Ethylbenzene
.005
1.0
Xylene
.010
10.0
Parameter
MW-02-4
Clean-Up Objective
Benzene
.005
.025
Toluene
.005
2.5
Ethylbenzene
.005
1.0
Xylene
.010
10.0
(p.
356-35
8,
See also
pp. 72-76)
In contrast, grossly contaminated soil
and groundwater indicating a recent release
was
found
directly
south
and
west
downgradient
of
the
shear
valve
and
tank
liner
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
21
releases.
(pp.
70-71)
MACTEC
also
reported other
conditions
indicative
of a
recent
release including
sheen on sewer water, sewer vapors, free product in
wells
and product
oozing from soil pores.
In August 2002,
the EPA OER ordered excavation of soil
at the
Site.
This work
was ordered based
on vapors in the sewer and free product found in wells and soil
on the
south
portion of the
Site downgradient of the Eligible
Tanks.
Sampling
in
connection
with
the excavation ordered
also
demonstrates
the corrective
action at the
Site was not
necessitated by
the
Ineligible
Tanks.
PID
readings taken
around
the Ineligible
Tanks
during the removal ofthe tanks and excavation of surrounding soil in October 2002 were
very
low
indicating
no
releases
requiring
remediation
from
these
tanks.
The
PID
readings were 0.0,
1.0,
1.6,
1.8,
1.8, 3.4, and
8.5.
The exact locations at which these PID
readings were taken are depicted on Exhibit
16.
Lab
analysis
of soil
samples
taken
in
the
area of the
Ineligible
Tanks
during
removal
and
excavation in
October 2002
also
confirms
an
absence
of contamination
in
the
vicinity
of the
pre-74
tanks.
The sample results
were
non-detect
for BTEX.
The
exact locations
at which these samples were taken are depicted on
Exhibit
16.
(pp.
131-
146)
(Samples
52, 53,
54, 55, 57, 58,
59, 60)
Field
observations
and
evaluation
of the
analytical
data
by
the
environmental
professionals
retained by
Freedom
demonstrate
the
Ineligible Tanks
did
not
create
the
need for the corrective action ordered by OER.
According to the MACTEC
reports and
affidavits
of Michael Hoffman
and Richard Pletz,
the corrective action
conducted
at the
Site was caused by releases from the shear valve and tank liner failure, not the Ineligible
Tanks.
(Exhibit 17)
THIS FILING IS SUBMITTED
ON RECYCLED PAPER
22
Based on the analytical information and field observations set forth above, there is
no
evidence
that
remediation
of
conditions
associated
with
the
Ineligible
Tanks
was
legally required.
There is no evidence any condition associated with the Ineligible Tanks
presented a threat sufficient under Illinois
law
to compel
corrective action.
Constituents
at the levels detected, particularly when associated
with pre-74 tanks,
do not necessitate
corrective action under TACO.
These levels do not give rise to an imminent hazard such
that
corrective
action
for
pre-74
UST
releases
may
be
ordered,
particularly
of
the
dramatic
nature
mandated
by
OER.
In
the
absence of evidence
of such
conditions,
Freedom has
amply justified the
corrective action
costs
as
associated with
the Eligible
Tanks
and
that
the
Ineligible
Tanks
were
merely
a
coincidental
discovery
during
the
excavation.
As
Freedom justified
all
costs
to
Eligible
Tanks,
IEPA has
no
authority
to
apportion
costs.
All of the corrective
actions taken relate
to
the shear
valve release
on
pump
1,
which was duly
registered, or the tank liner failure in
a registered tank.
Not only is
there
no
evidence that
any
corrective action
involved the Ineligible
Tanks,
OER
actions and
representations in court preclude
a separate
finding as discussed more fully below.
The
environmental professionals
involved in
the release
investigations concur that corrective
action here was solely related to the specific underground tanks eligible for compensation
by the Fund, not the Ineligible Tanks.
Although
Section
57.8(m)
has yet
to
be
interpreted
by
a
court,
its
meaning
is
plain.
Apportionment
to
deny
LUST Fund reimbursement may not
occur merely
based
on
the
presence
of ineligible
tanks.
The
Section
permits
apportionment
only
if
such
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
23
ineligible
tanks
are
present
~
the
owner
cannot
attribute
the
costs
to
eligible
underground
storage tank(s).
The
costs
here have been specifically
attributed
to
Fund
eligible tanks (tank
1).
Not only do the facts support this conclusion, but the IEPA’s
own
orders were
based
on the
discharges related to
the eligible
tanks.
There
is
no
evidence
that
any
order,
and thus
any
action
or cost,
was made
to
address a
problem due
to
the
Ineligible Tanks.
Instead, the IEPA appears
either
to
(1) hold the view
that
the mere presence of
Ineligible Tanks justifies apportionment or (2) that a mere statement of the Fire
Marshall
that all tanks had
a release was sufficient.
This
is
a clear misreading of the
statute.
The
first
position
negates
the
use of the
conjunctive
“and.”
The
second
position fails to
recognize that apportionment is based on costs attributable to the tanks, not that a release
was deemed to have occurred based on an observation of holes.
In Illinois, one may not read the conjunction “and” as an “or” unless the use ofthe
word “and” in its literal meaning would defeat legislative intent.
People
v.
ex rel Dept. of
Registration and Ed.
v. D.R.G., Inc.,
62 Ill. 2d 401, 342 N.E.2d 380 (1976).
See also City
of Carbondale
v. Bower,
32
Ill.
App.
3d
928,
173
N.E.2d
182,
265
Ill.
Dec.
820
(2002)
(Generally,
principles
of statutory
construction
interpret the
term “and”
as conjunctive
rather than disjunctive.”)
Here, the intent is clearly conjunctive.
Otherwise, IEPA could
apportion whenever
one
fails
to
attribute
costs
to
particular tanks even if there
are
no
ineligible tanks.
The clear intent is that apportionment is appropriate only when there are
both
ineligible
and eligible
tanks ~
an
inability
to
determine
which
tanks
caused the
corrective action.
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
24
As
to the second position, whether or not the Fire Marshal
determined each tank
had a
significant release, even if true,
is
also
irrelevant to
the
issue.
The statute
permits
apportionment only
if the
costs
of the response
actions
were
attributable to
Ineligible
Tanks.
As
previously discussed, none of the corrective actions were
ordered to
address
releases from the Ineligible Tanks.
Rather, all actions were ordered solely because of the
leaking
shear
valve
and
tank
liner failure.
Thus,
no
costs
are
apportionable
to
the
Ineligible Tanks.
The IEPA may not
simply apportion
costs based
upon
a finding of a
release,
especially if under
applicable
law no action
would be
taken.
As
we previously
discussed, applicable
law
would
not
require
any
action
with
respect to
pre-1974
tanks
given the analytical evidence at the Site
in the areas nearest these
tanks.
No
order was
ever issued regarding these
tanks
based upon a finding that
these tanks ever presented a
threat to
health.
To permit apportionment merely based upon a finding of a release premised on an
observation of tank
holes
not
only
exceeds
the authority
of the
IEPA under
Section
57.8(m),
it
subverts
the
clear
legislative
protection
of
Section
57.5(g).
That
section
clearly permits
corrective action
only
upon
a specific
finding
of the
State Fire
Marshal
that the release from such tank posed a threat.
No such finding occurred here nor is there
any
factual
evidence
such
an
order
would
have
been
legitimately
issued.
Thus,
no
corrective action
was
required,
and
Freedom
was to
be
fully
protected from
losses
by
reimbursement from the Fund.
However, by now apportioning
costs to Ineligible Tanks,
the JEPA is in fact forcing Freedom to
incur costs associated with these tanks
despite the
fact that the requisite findings were never made.
The legislation’s protection afforded by
THIS FILING IS SUBMITTED ON RECYCLED PAPER
25
Section
57.5(g) becomes meaningless,
and
Freedom nonetheless becomes saddled with
unreimbursed costs
due to tanks not posing a threat.
Therefore, the relevant question
is not
whether releases were
ever attributable to
Ineligible
Tanks.
The
question
is
whether the
costs
of the
actions
set
forth
in
the
applications were
attributable to
Ineligible Tanks.
They were not.
These actions were a
direct
result
of orders to
address conditions
caused by Eligible
Tanks.
They cannot be
apportioned to the Ineligible Tanks.
This Board has already concurred with this interpretation in
a previous matter.
In
Martin Oil Marketing v. IEPA,
case PCB 92-53 (August 13,
1992), this
Board ruled upon
a
similar
issue of apportionment.
The
matter
involved
whether
the
removal of non-
registered
tanks
was
reimbursable.
In
that
matter,
the
Board
upheld
apportionment
because it was not possible to determine the cause ofcontamination that necessitated the
remediation.
However, this Board made it very clear that the presence ofineligible tanks
and even the
costs
of their removal will not prevent complete reimbursement where the
action being performed arose from a leak from a registered tank:
The
removal
of
the
tanks
satisfies
the
definition
of
corrective
action
in
that
the
tanks
were
removed
to
clean
up
a
release
of
petroleum.
To be
eligible
for reimbursement the corrective action
must be
related to
a leak from a registered tank.
The removal of
the unregistered tanks
would need to
be corrective action to clean
up
a
release
of petroleum
from
the
seven
registered
tanks
to
be
eligible for reimbursement.
However, in
that matter,
the Board noted
that
the petitioner failed
to
demonstrate
“that
the
corrective
action
cost
of removing the
unregistered
tanks
was
a
corrective
action
related to the remediation ofa leak from a registered
tank” and further that the petitioner
“did not offer any evidence that indicates that the leak of petroleum was not from any of
THIS FILING IS SUBMITTED ON RECYCLED PAPER
26
the abandoned tanks.”
Had the petitioner
demonstrated the
corrective
action
occurred
because ofa leak from a registered tank, even the removal ofunregistered tanks would be
reimbursable.
Here, Petitioner has unequivocally demonstrated that all
the corrective action was
not related to
remediation of leaks from
the shear valve release or the tank liner failure.
Thus, unlike the petitioners in
Martin,
it
has shown that the corrective action was “related
to
the
remediation
of
a
leak
from
a
registered
tank.”
In
fact,
in
Court,
the
IEPA
specifically
admitted that the leak was indisputably
from Fund eligible
tank
1.
As this
Board
concluded
in
the
Martin
matter,
once
one
demonstrates
that
the
action
ordered
arose
to
address
a
leak
from
a
registered
tank,
it
is
reimbursable
regardless
of the
presence ofother tanks or even if such tanks must be removed as part ofsuch action.
The State represented in
Court that corrective action was needed due to discharges
from eligible
tanks and is judicially
estopped from
taking a different position in this
forum.
Prior
to
the
discovery
of the
Ineligible
Tanks,
OER
demanded~installation
of
trenches, sewer investigations
and excavation of soil at the
Site.
As MACTEC and OER
disagreed
as
to
the
extent
of soil
excavation
warranted
at the
Site,
OER
obtained
an
Injunctive
Order
from
the
Paris
Circuit
Court
on
August
23,
2002,
for excavation of
grossly contaminated soil.
At the injunctive hearing, Illinois OER advised the court such
excavation was necessary based on
vapors discovered at the high
school
from the
shear
valve release and the vapors discovered in the southern sewer from the tank liner failure.
The
request was not
based
on
any
allegation
or
even suspicion
of contamination
from
tanks taken out ofservice prior to
1974 and filled with sand.
In fact, the Ineligible Tanks
were
not
even
discovered
until
the
excavation
ordered was
underway.
As
discussed
THIS FILING IS SUBMITTED ON RECYCLED PAPER
27
below,
IEPA should not be allowed to demand a judge order excavation of soils for one
reason
and
then
offer
a
different
reason for the work
in
another forum
to
deny
Fund
reimbursement.
In seeking
injunctive
relief,
the
IEPA specifically
argued to
a court
of law
that
action
was
needed to
address
the
shear
valve release
and
the
tank liner failure.
It
is
because
of these
events that
the
IEPA
obtained
a judicial
order
requiring
Freedom to
make expenditures.
The IEPA
is
collaterally estopped from presenting evidence about a
coincidental discovery to refute such allegations.4
Judicial
estoppel
arises whenever
a party attempts to take (1)
two
positions,
(2)
that
are factually inconsistent,
(3)
in
separate judicial
or quasi-judicial
proceedings (4)
intending
for
the
trier
of
fact
to
accept
the
truth
of the
facts
alleged
and
(5)
have
succeeded
in
the
first proceeding
and
received
some
benefit
from
it.
Chicago Alliance
for Neighborhood Safety v.
City of Chicago,
348 Ill. App.
3d
188,
808 N.E.2d
56,
283
Iii.
Dec.
506
(2004).
The purpose ofjudicial
estoppel
is
to
protect
the integrity ofjudicial
proceedings
by
preventing
litigants
from
deliberately
shifting
positions
to
suit
the
exigencies
of the
moment.
Barack Ferrazzano
Kirschbaum
Penman
&
Nagelberg
v.
Loffredi,
342 Ill. App. 3d 453,
795
N.E.2d 779, 277 Ill. Dec.
111(2003).
The doctrine of
judicial estoppel, as opposed to equitable estoppel, applies equally to the State as a party
as
to
any
other party
that
is
non
governmental.
See
e.g.
Johnson
v.
DuPage
Airport
Authority,
268 Ill. App. 3d 409,
644 N.E.2d 802, 206 Ill. Dec.
34 (1994).
‘~
The State’s
written promises, although
possibly a separate ground
for estoppel, serve
to confirm that
the
State
took the
legal
position
in the
injunction
actions
that
the
corrective
action was
needed to
address
problems
from eligible
tanks and that the work would be reimbursed.
(See
Exhibit
18)
THIS FILING IS SUBMITTED ON RECYCLED PAPER
28
Judicial
estoppel
applies here.
To
obtain
injunctive
relief,
the Attorney General
on behalf ofthe IEPA, represented to
a court oflaw that
extensive
corrective action was
needed
because of the
valve
release
and
the tank failure.
The
IEPA sought
an
order
demanding
the
corrective
action
to
address these
problems.
The
resulting
injunctive
relief,
by
its
own terms,
indicates the
action ordered
was to
address
the releases
from
these events.
Based
upon
the fact that the
order was
dependant
upon
addressing
these
failures,
as
to
which
there
was
no
question
to
the
right
of
reimbursement,
Freedom
decided
not
to
appeal.
Had Freedom believed
otherwise,
it may
have
appealed
what
amounted to many unnecessary actions.
Here,
the IEPA seeks to
maintain
in
this
separate
quasi-judicial
proceeding that
the costs incurred as a result ofthis order must also be attributable in part to the Ineligible
Tanks.
This
the
IEPA
cannot do.
It
cannot seek
an
order
to
take action
to
correct
a
problem caused by an eligible tank
and then later, when convenient, assert the action was
attributable to ineligible tanks.
IEPA
is judicially
estopped
from
changing its
position that
remedial action was
needed to
address the valve release and the tank liner failure.
As
a result, the IEPA must
be deemed in agreement that all costs are solely attributable to eligible
tanks.
Freedom is entitled to Reimbursement ofthe Miscellaneous Costs denied by IEPA
OER
ordered
dye
testing,
smoke
testing
and
telescan investigation
of the sewer
between the
high
school
and
the
Station
in
April
2002.
IEPA denied $27.76
in
Fund
reimbursement for dye for tracer testing the sewer on the basis it “has
been determined to
not be related to Early Action Activities.
Therefore, it
is not reasonable.
..
.“
MACTEC
completed dye tracer testing ofsewer in
order to
determine if a sewer connection existed
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
29
between the Freedom Oil station
and sewers in the vicinity ofthe Site.
The dye testing of
the
sewer
was completed
at the
direction
of OER
as part
of Early
Action/Emergency
Response activities.
Therefore, this cost should be eligible for reimbursement.
OER ordered that notice of the smoke testing
be published in the Paris Beacon so
residents would not be alarmed by the testing.
IEPA also denied $140.00 for publication
fees
associated with
the notice of smoke testing.
MACTEC
completed smoke
testing of
sewer
in
order
to
determine if a
sewer connection existed between the Freedom station
and sewers in the vicinity of the Site.
Public notice was required by the City of Paris and
OER in order for permission to be granted to MACTEC to complete the test.
Therefore,
this cost should be eligible
for reimbursement.
IEPA
also
denied
$33.25
for
VHS
copies.
These charges
were
for VHS
tape
copies
of
the
sewer
investigation
conducted
by
MACTEC.
The
Illinois
Attorney
General’s Office and OER specifically requested copies ofthese videos.
Therefore,
this
cost should be eligible forreimbursement.
Accordingly, the
$27.76 for sewer dye
testing,
$140 for publication of the sewer
smoke testing,
and $33.25
for VHS
tape copies of the sewer investigation were
all
early
action
activities
directly
ordered by
OER and
Freedom
is
entitled
to
reimbursement of
these costs totaling $201.01.
Freedom’s
Reimbursement
applications
contained
handling
costs,
a
charge
permitted under
the regulations.
IEPA’s
denial of $24,638.82
in
handling
costs
was in
error.
As
illustrated
in
the
chart
attached
as
Exhibit
19,
based
on
handling
charges
allowable
under
the
law,
Freedom
is
entitled
to
an
additional
$16,987.03
in
handling
charges.
THIS FILING IS SUBMITTED
ON
RECYCLED PAPER
30
IEPA
also
denied $362.84
for cell
phone
and
mileage handling
costs.
$226.76
was
deducted
for
cell
phone
rental
from
10/28/2002
-
11/27/2002.
Apparently,
IEPA
made this deduction based on a belief MACTEC staff were
on Site for five days, not nine
days. A similar deduction of $103.96 was made for the period 09/28/2002
-
10/27/2002.
Attached
are
time
sheets
verifying
ESE
staff
were
on
Site
for
these
time
periods
submitted to IEPA.
CONCLUSION
MACTEC’s report and affidavits demonstrate the need for corrective action at the
Site was
caused by
recent
releases from
the
shear
valve
and
tank
liner failure
not
the
Ineligible Tanks.
MACTEC’s conclusions are based on their field observations about the
Ineligible Tanks
and the analytical evidence, all ofwhich appears
in the reports filed with
the IEPA.
IEPA did
not
collect
any
analytical evidence refuting Freedom’s
analytical
results.
Nor was IEPA present during removal ofthe Ineligible Tanks..
Moreover,
IEPA
ordered
the
corrective
actions
because
of problems
due
to
Eligible Tanks
and further represented in
Court that the problems were from these tanks.
IEPA, therefore,
cannot
offer testimony factually
supporting
a conclusion the Ineligible
Tanks created conditions mandating remediation.
Accordingly, there is no
genuine issue
of disputed
fact.
The
corrective action was associated
with
recent
releases
from Fund
Eligible
Tanks
and
Freedom
is
entitled
to
judgment
in
its
favor for reimbursement of
$200,645.84
in corrective action
costs denied based on
improper allocation to
Ineligible
Tanks.
The $27.76 for sewer dye testing, $140 for publication ofthe sewer smoke testing,
and $33.25
for VHS tape copies of the sewer investigation were
all early action activities
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
31
directly ordered by
OER.
As
such, Freedom is
entitled to reimbursement ofthese
costs
totaling $201.01.
Finally, Freedom
is
entitled
to
the handling costs
allowable under the
regulations in the amount of$16,987.03.
In total, Freedom is
entitled to
$210,853.64.
Freedom should
also be
awarded its
attorneys’ fees.
WHEREFORE,
Petitioner,
Freedom
Oil
Company,
an
Illinois
corporation,
requests this Board enter summary judgment in its
favor pursuant to
35 Ill.
Admin.
Code
§101.516(b)
as
the
reports,
pleadings,
admissions,
and
affidavits
presented
herein
demonstrate there
is
no
genuine
issue of material
fact and
that
Freedom
is
entitled
to
judgment as a matter oflaw and against IEPA.
Respectfully submitted,
HOWARD & HOWARD ATTORNEYS, P.C.
By:
A&4,~~1
1J’i.
q~~
Diana M. Jagie
a
Dated: March 31, 2005
Diana M. Jagiella
Attorney for Petitioner
Howard & Howard Attorneys, P.C.
One Technology Plaza, Suite 600
211
Fulton Street
Peoria, IL
61602-1350
THIS FILING IS SUBMITTED
ON
RECYCLED PAPER
32
CERTIFICATE
OF SERVICE
I, the undersigned, hereby certify that on this
31th
day of March 2005,
I have served
the attached Motion
for
Summary Judgment
by
depositing same via
first-class U.S.
mail
delivery to:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
State ofIllinois
Center
100 West Randolph, Suite 11-500
Chicago, IL
60601-3218
Carol
Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, IL 62794-9274
Diana M.
Jagiella
Howard & Howard Attorneys, P.C.
One Technology Plaza, Suite 600
211 Fulton Street
Peoria, IL
61602
(309) 672-1483
man\julie\fvu\G:\F\Freedom Oil\pldgs\Motion for Summ. Jdgmt.doc
John J. Kim, Assistant Counsel
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East, P. 0. Box
19276
Springfield,
IL
62794-9276
Diana M. Jagiella
o
ey for
Petitioner
THIS FILING IS SUBMITTED ON RECYCLED PAPER
33
