BEFORE THE
POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
)
Petitioner,
)
RICHARD
KARLOCK,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Respondent.
)
PCB No.
05-127
)
(LUST Appeal)
)
)
NOTICE
Jeffrey W.
Tock
Harrington & Tock
201 West Springfield Avenue
Suite 601
P.O. Box
1550
Champaign, IL
61824-1550
REC~E~VE~
CLERK’S OFFICE
MAY
2
02005
STATE OF
ILL1NOIS
Pollution Control Board
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, IL
62794-9274
PLEASE
TAKE
NOTICE
that I
have
today
filed with
the
office of the
Clerk
of the
Pollution
Control
Board a MOTION
FOR SUMMARY
JUDGMENT,
copies of which are
herewith
served upon
you.
Respectfully submitted,
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: May
18, 2005
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
CLERK’S
OFFUT3F
MAY 20
2005
Petitioner,
)
STATE
OF
ILLINOIS
)
P~ll~ti~n
Control Board
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
-
MOTION FOR SUMMARY JUDGMENT
NOW COMES the Respondent, the Illinois
Environmental
Protection Agency
(“Illinois
EPA”), by one of its
attorneys, John J.
Kim,
Assistant
Counsel
and
Special
Assistant Attorney
General, and, pursuant to 35
Iii.
Adm.
Code
101.500,
101.508
and
101.516,
hereby respectfully
moves the Illinois Pollution
Control Board
(“Board”) to enter summaryjudgment in favor ofthe
Illinois EPA and against the Petitioner, Richard Karlock (“Karlock”), in that there exist herein no
genuine issues ofmaterial fact, and that the Illinois EPA is
entitled to judgment as a matter oflaw
with respect to the following grounds.
In support ofsaid motion, the Illinois EPA states as follows:
I.
STANDARD
FOR ISSUANCE
AND REVIEW
A
motion
for
summary judgment
should
be
granted
where
the pleadings,
depositions,
admissions on file, and affidavits disclose no
genuine issue as to any material fact and the moving
party is entitled tojudgment as a matter oflaw.
Dowd & Dowd, Ltd. v. Gleason, 181
Il1.2d 460, 483,
693 N.E.2d 358, 370 (1998); McDonald’s Corporation v. Illinois Environmental Protection Agency,
PCB 04-14 (January 22, 2004), p. 2.
Section 57.8(i) ofthe Illinois Environmental Protection Act (“Act”) (415 ILCS
5/57.8(i))
grants an individual the right to appeal a determination ofthe Illinois EPA to the Board pursuant to
Section 40 ofthe Act (415 ILCS
5/40).
Section 40 ofthe Act, the general appeal section forpermits,
RICHARD K.ARLOCK,
PCB No. 05-127
(LUST Appeal)
1
has been
used by the
legislature as the basis
for this
type of appeal to
the Board.
Thus,
when
reviewing an Illinois EPA determination ofineligibility
fOr reimbursement from the Underground
Storage TankFund, the Board must decide whether ornot the application as submitted demonstrates
compliance with the Act and Board regulations.
Rantoul Township High School District District No.
193 v. Illinois EPA, PCB 03-42 (April
17, 2003), p.
3.
-
In decidingwhetherthe Illinois EPA’s decisionunder appeal herewas appropriate,theBoard
must look to the facts and statements within the Petitioner’s Petition forReview (“Petition”).
The
Administrative Record has not yet beenfiled in this matter, asthe parties agree that the factshereare
not so much at issue as the question oflaw.
However, the Illinois EPA is including two documents
as exhibits to this motion for sunimaryjudgment.
Exhibit
1
is a copy ofthe first page ofthe form
reimbursement
claim
submitted
by
Karlock,
and
Exhibit
2
is
the
Owner/Operator
Budget
Certification that was included with
the reimbursement claim.’
The Illinois
EPA notes
that the
Petitioner
acknowledged
in
its
Petition
that
it
had
not
yet
completed
its
Site Investigation
Completion Report (“SICR”), muchless had that report approved.
Petition, p. 2.
Also, the Illinois
EPA notes
and will refer later to
Exhibit B ofthe Petition, which
consists of a letter from HDC
Engineering (the consultant forKarlock) to Niki Weller ofthe Illinois EPA, along with a certified
mail
receipt
and
an
Owner/Operator Billing
Certification.
These
documents,
and the
factual
evidencetherein, are not in dispute and are sufficient, in conjunctionwith therelevantlaw, forBoard
to entera dispositive order in favor ofthe Illinois EPA.
Accordingly, the Illinois EPA respectfully
requests that the Board enter an order affirming the Illinois EPA’s decision.
I The exhibits
attached
to the Petitioner’s Petition are Exhibit A and B, and the exhibits attached to the Illinois EPA’s
motion for
summary
judgment are Exhibits
1 and 2;hopefully, using numbers for the Illinois EPA’s exhibits
will
keep the
two
sets
separate.
2
II.
BURDEN OF PROOF
Pursuant
to
Section
105.112(a)
of the
Board’s
procedural
rules
(35
Iii.
Adm.
Code
105.112(a)), the burden ofproof shallbe on the petitioner.
Inreimbursement appeals, theburden is
on the applicant forreimbursement to demonstratethat incurredcosts arerelated to corrective action,
properly accounted for, and reasonable.
Rezmar Corporation v. Illinois EPA, PCB 02-91 (April 17,
2003), p.
9.
IlL
ISSUE
The questionbefore the Board is whetherthe Illinois EPA correctlydeducted
$26,245.05
in
costs from the Petitioner’s claim forreimbursement as set for in the final decision datedDecember
10, 2004.
Petition, Exhibit A.
The Illinois EPA’s final decision notes that the costs were deducted
forlack ofsupporting documentation, in that an approved SICR had not beensubmitted.
The Illinois
EPA further notes that the Illinois EPA would review the costs presented when the SICR has been
approved.
Also, the Illinois EPA’s final decision stated that the Owner/Operator Billing Certification
form was missing from the claim package, and that a Budget Certification was included instead.
Therefore, to answer the question before the Board, there are two legal issues that must be
resolved.
First, is the Illinois EPA correct in withholding approval ofreimbursement ofcosts related
to
site investigation
activities if a
SICR has not yet been approved.
Second,
did
the claim for
reimbursement byKarlock fail to include a required certification form.
The Illinois EPA argues that
the answers
to both these questions is in the affirmative, and thus the Board should enter an order
granting summaryjudgment in favor ofthe Illinois EPA.
3
IV.
THE ILLINOIS EPA IS ENTITLED TO
SUMMARY JUDGMENT
BASED ON THE FACTS
AND
LAW
A.
Relevant Facts
The basic and relevant facts are as follows.
Onor about September 14, 2004, Karlock sent a
claim for reimbursement of costs associated with site investigation activities to the Illinois
EPA.
Petition, Exhibit A, p.
1; Exhibit
1.
The Illinois EPA received that claim on September 16, 2004.
Exhibit 1.
Intheclaim Karlock sought reimbursement of$26,245.05 in costs.
Petition, Exhibit A, p.
1.
The claim included an Owner/Operator Budget Certification form.
Exhibit 2.
The Illinois EPA
issued
a
final decision dated December
10,
2004,
in which it withheld
approval of the costs in
question.
Petition, Exhibit A, p. 3.
On January 4, 2005, Karlock’s consultant mailed a copy of an
Owner/Operator Billing Certification form to
the Illinois EPA.
Petition, Exhibit B.
B.
No Genuine Issues
Of Material Fact
Exist
The parties
are in
agreement
to
the facts as presented above,
evidenced by
reference
to
documentsprovided by thePetitioner in its Petition and the two pages takendirectly from the claim
for reimbursement itself.
The questions in this case are not offact, but rather oflaw.
Specifically,
the question is
whether the facts
warrant
the deduction of costs based
on the
submission of site
investigation
costs prior to
approval ofthe SICR and the failure
to include
the Owner/Operator
Billing Certification form.
C.
The
Site Investigation Costs Are Not Reimbursable Until
The SICR Is Approved
One of the two reasons for denial ofthe costs submitted was that the costs pertainedto site
investigation activities, and a SICRhas not yetbeen approvedby the Illinois EPA.
Section 57.7 of
the Illinois Environmental Protection Act (“Act”) (415 ILCS
5/57.7)
was amended in 2002 by’four
different bills (PA
92-554,
92-574,
92-651
and 92-735), each ofwhich was signed into law.
Each
4
bill addressed a different subsection ofSection 57.7~butto
datethe General Assembly hasnot passed
a bill reconciling those differing provisions.
However, ofthe four different bills, only PA 92-554
changed the procedure ofcorrective action in that it substituted the concept ofsite investigation in
place ofsite classification.
For releases that took place on or after the effective date ofPA
92-554,
thesite investigation provisions are applicable.
Here, the release was reportedon August 20, 2002.
Exhibit
1.
Therefore, the release is subject to correctiveaction using the siteinvestigation provisions
ofSection 57.7 as amended by PA
92-554.
Had the release been governed by thepreviously-utilized site classification procedure, then
Section 732.601(h) ofTitle 35 ofthe Board’sregulations
(35
Ill. Adm. Code 732.601(h))would have
beenapplicable.
Thatregulationprovides that applications forpayment ofcosts ~associated
with site
classification may not
be
submitted
prior
to
approval
or modification of the
site classification
completion report.
So, ifthe costs in question had beenfor siteclassification activities, and the costs
were submitted prior to approval ofa site classification completion report, there is no doubt that the
costs would have been properly denied pursuant to
Section 732.601(h).
In the present situation, there
is no doubt that Section
732.601(h) does not strictly apply,
since the Petitionerperformed siteinvestigation activities, not site classification activities. However,
there
is
no
corresponding
and
effective
regulation
that
addresses
the
situation
in
which
site
investigation costs are submitted for approvalprior to the approvalofa SICR.2
Inthe absenceofany
corresponding or analogous regulation concerning approval ofsite investigation costs prior to the
approval ofa SICR, it is
acceptable for the Illinois EPA to handle such requests for payment in a
2 The Illinois EPAnotes that thereis a pending rulemaking before the Board that would add new regulations regarding
site
investigation activities
and,
presumably, approval of site investigation costs
in regards to approval of a
SICR.
However, those regulations are notyet in final form, and certainly are not effective,
and
therefore cannot be relief upon
by eitherparty as being an authority.
5
manner
consistent with thepreviously-usedmethod under site classification.
The site investigation
concept, though
somewhat different
in
substance than the
site classification
method,
is
directly
analogous
to
site
classification
in
that
site
investigation
is
the
step
prior to
initiating
formal
corrective action
(just as
site classification was),
and is the
step that
must be completed (via an
approved SICR)
before corrective action may commence (just
as site
classification was
via an
approved site classification completion report).
Given that
there is
no
existing regulation that provides
any guidance
on the question of
whether site investigation costs maybereimbursedprior-to-approval ofa SICR, and that the previous
iteration ofthe pre-corrective action phase ofwork (i.e.,
site classification) did have a regulatory
requirementthat a completion report must be approvedprior to approval ofrelated costs, the Illinois
EPA’s
action
here
was
consistent
with the
only
relevant guidance
available;
namely,
Section
732.601(h).
The Illinois
EPA’s final decision could not cite
to
a regulatory provision regarding
payment ofsite investigation costs, but itdid properly cite to Section
57.7(a)(5)
oftheAct (415 ILCS
5/57.7(a)(5))
(as amended by PA 92-554), which sets
out the requirement that within 30 days of
completing site investigation, a site investigation completion report is to be submitted.3
Similarly,
although the final decisioncould not cite to Section 732.601(h) ofthe Board’sregulations as a direct
authority for denying approval ofthe site investigation costs,
it is
that regulation’s language that
serves to guide the Illinois EPA
and
the Board here.
Based on the persuasive language of Section
732.601(h) to the factspresented, the Illinois EPA’s denial ofthesiteinvestigation costs was correct.
3 The Illinois
EPA acknowledges that
the
fmal decision’s citation to
Sections 57.12(c) and (d) of the
Act (415 ILCS
5/57.12(c), 5/57.12(d))
may havebeen in error, as the provisions cited do
not directly pertainto the
situation at hand.
6
D.
The
Petitioner Failed To Timely Provide The Proper Certification
Form
Regardless
of how
the
Board
rules
on
the
Illinois
EPA’s
argument
presented
above
concerning the approval ofsite investigation costs prior to approval of a SICR, the Illinois
EPA’s
final decision could and should be affirmed
solely on the basis that Karlock failed to
provide the
proper certification form with the original claim for reimbursement.
-
In the original claim for reimbursement, Karlock submitted an Owner/Operator and
Professional
Engineer
Budget Certification
Form
for Leaking Underground Storage
Tank Sites
(“budget certification form”).
Exhibit 2.
However, as Karlock clearlynoted in the first page ofthe
claim forms submitted, the package was a claim forreimbursement, not a budgetproposal.
Exhibit
1.
After
the
Petitioner read the
final
decision,
it
submitted
the
proper
Owner/Operator
and
Professional
Engineer Billing
Certification
Form
for Leaking Underground
Storage Tank
Sites
(“billing certificationform”) to the illinois EPA approximatelyone month afterissuance ofthe final
decision.
Petition, Exhibit B.
The Board’s review ofpermit appeals, including appeals ofdecisions related to the Leaking
Underground Storage Tank Program,
is
generally limited
to
information before the Illinois
EPA
during the Illinois EPA’s statutoryreview period,
and is not based on information developed by the
permit
applicant or the Illinois
EPA after the Illinois EPA’s
decision.
Alton
Packaging Corp.
v.
Pollution Control Board,
162
Ill. App. 3d 731,
738, 516 N.E.2d 275, 280
(5th
Dist.
1987);
Saline
County Landfill, Inc. v. Illinois EPA, PCB 02-108 (May 16, 2002).
So while the Board should not
rely on the information contained within Exhibit B ofthe Petition, it does indicate that the proper
form was not
submitted
until after the issuance
of the decision.
Put another way, if the Board
properly excludes the documents and information contained within Exhibit B to the Petition, then
7
there is clearlyno proofthat thebilling certification form was submitted to the Illinois EPA before
the issuance ofthe final decision.
The difference between a budget certification form
and
a billing certification form is not
inconsequential, since the purpose ofa billing certification form is to providethe owner/operator’s
certification that the costs included within the claim for reimbursementwere properlyincurred, that
the information concerning
the
claim for reimbursement was
done
under
the owner/operator’s
supervision, and that the information within the claim is accurate.
The
failure of the Petitionerto
provide the billing certificationform renderedthe claim package incomplete, and thusthedecision to
withhold approvalofthe costs included in theclaim requestwas correct.
TheBoard should therefore
grant summaryjudgment in favor ofthe Illinois EPA.
V.
CONCLUSION
Forthereasons stated herein, the Illinois EPA respectfullyrequests that theBoard affirmthe
Illinois
EPA’s
December
10,
2004
decision
to
deny
approval
of reimbursement of the
site
investigation costs.
Respectfully submitted,
-
-
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
John J~
Kim
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: May 18, 2005
This filing submitted on recycled paper.
8
BUDGET
AND
BILLING FORM FOR
LEAKING IJNDERGROUN)
STORAGE
TANK
SITES
A.
SITE
INFORMATION
Site Name:
Karlock Service Station/Famey’s Garage
Site Address:
522 South Main_Street
City: Rankin
Zip: 60960
County:
Vermilion
EPA
GeneratorNo.:
1530705004
JEMA Incident No.: 20021180
IEMA
Notification
Date: 8/20/02
Date
this Form
was
Prepared: Mgust 24.2004
-~-~
ir~a
CEIV~~
This
form is being submitted
as
a:
SEP
~
s
_____
Budget Proposal
__
~tfl3
L~
Budget Amendment (Budget Amendments
must in
e~o y
ecosts
over the previous budget.)
-
Amendment Number:__________
-
X
Billing
Package for costs incurred pursuant to
35
Illinois Administrative
-
.
Code (TAC),
Part
732 (“new program”).
This form is being submitted for the
Site Activities indicated below (check one):
______
Early Action
_____
Site Classification
_____
Low Priority Corrective Action
____
High Priority Corrective Action
X
Other (indicateactivities) Site Investigation Plan
DO NOT SUBMIT
“NEW
PROGRAM?’ CQ~TSAfl)
“OLD
PROGRAM?’
COSTS
AT ~E
SAME TIME.
ON ~E
SAME FORMS.
A-I
This
form
must be submitted induplicate.
rIBITI
Illinois Environmental Protection Agency
Owner/Operator and Professional
Engineer
Budget Certification
Porin
for
Leaking
Underground
Storage
Tanks Sites
in
accordance
with
415
JLCS
5/5 7, if
an owner
or operatorintends to seek payment
from the
UST Fund, an
owner or
operator must
submit tothe Agency,
for
the Agency’s approval
or
modification, a budget which
includes an accounting ofall
costs associated with
the implementation ofthe investigative, monitoring
and/or
corrective action plans.
I hereby
certll~’
that I
intend
to
seek payment
from
the IJST Fund for
perforinhig
Site investigation
________________________ activities
at
Karlock Service Station
LUST
site.
I
further
certify that the costs set
forth
in
this
budget
are
necessary activities
and
are reasonable
and
accurate to
the
bestof my knowledge and
belief.
I
also certify
that the costs included in this budget
are
notfor corrective
action in excess ofthe minimum requirements of415 1LCS
5/57
and no
costs
are included in thisbudget
which
are
not described
in
the corrective action plan.
I
further certiiy that costs ineligiblefor payment
from
the Fund pursuant
to
35
Illinois Administrative Code Section 732.606 are not included in the budget
proposal or amendment.
Such ineligible costs include but
are
not
limited
to:
Costs associated with ineligibletanks.
Costs
associated
with site
restoration
(e.g., pump islands, canopies).
~
Costs associated with utilityreplacement (e.g., sewers, electrical, telephone, etc.).
SE~’
1~
‘
Costs
incurred prior to ~EMA notification.
Costs
associated with
plannedtank
pulls.
Legal defense costs.
Costs
incurred prior to July 28,
1989.
Costs associated with
installation
ofnewUSTs or the repair of
existing
USTs.
Seal:
J/2~Jf~k~
,4;c
Subscribed
and
sworn to before me
the
1
day of
(BudgetProposals and Budget Amendments mz~rt
be notarized
Title: Owner
P.E.
Subscribed
and swOrn
to before me
the
_________
day of
~
(Budget Proposals andBudget Amendments must be notarized when the
~O8~772
REG~REU
=
:
PROFESSIONAL
it~
ENGiNEER
:
The Agency is
authorized to
mquirethis information under
415
ILCS
5/1.
required.
Failure to do
so may result
in
the
de!ay or denial of
any budget or payment
This form has been approved by the Forms Management Center.
IL
532
2273
LPC 499Rev. Mar-94
BB:jk\BUDCERT.WPD
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify
that on May
18,
2005,
I
served true and
correct copies
of
a MOTION
FOR SUMMARY JUDGMENT,
by
placing true
and correct
copies
in
properly sealed
and addressed
envelopes and
by depositing
said sealed envelopes
in
a U.S.
mail drop box located within Springfield, Illinois, with sufficient Fir~t
Class Mail postage affixed
thereto, upon the following named persons:
Dorothy M.
Gunn,
Clerk
Jeffrey W. Tock
Illinois Pollution Control Board
Harrington &
Tock
James R.
Thompson Center
201 West Springfield Avenue
100 West Randolph
Street
Suite 601
Suite 11-500
P.O. Box 1550
Chicago, IL 60601
Champaign, IL
61824-1550
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, IL
62794-9274
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Res
nt
John
.Kirn
‘~
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North
Grand Avenue, East
P.O.
Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143
(TDD)
