BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ILLINOIS AYERS
OIL
COMPANY,
Petitioner,
ILLINOIS ENV1IRON~ENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
)
)
NOTICE
PCB No.
03-2 14
(LUST Appeal)
V.
RECEIVED
CLERK’S OFFICE
MAY
272005
STATE OF ILlINOIS
Pollution Control Board
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph Street
Suite 11-500
Chicago,
IL 60601
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield,
IL
62794-9274
Fred
C. Prillaman
Mohan, Alewelt, Prillaman & Adami
Suite 325
1
North Old Capitol Plaza
Springfield,
IlL
6270 1-1323
PLEASE
TAKE NOTICE
that
I have
today
filed
with
the
office of the
Clerk
of the Pollution
Control Board a MOTION
FOR LEAVE TO
FILE
INSTANTER and RESPONSE
TO PETITIONER’S
PETITION
FOR SUPPLEMENTAL
ATTORNEYS’
FEES,
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
25,
2005
ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE POLLUTION CONTROL BOARD
OF THE
STATE OF ILLINOIS
ILLINOIS AYERS OIL COMPANY,
)
Petitioner,
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
MOTION FOR LEAVE TO
FILE INSTANTER
RESPONSE TO PETITION FOR SUPPLEMENTAL ATTORNEYS’
FEES
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
Ill.
Adm.
Code
101.500, hereby requests that the Illinois Pollution
Control Board (“Board”) grant the Illinois EPA leave to
file instanter its Response to Petitioner’s
Petition
for Supplemental Attorneys’
Fees.
In support
of this motion,
the Illinois
EPA states
as
follows:
CLERK’S OFFICE
MAY
272005
STATE OF ILLINOIS
P~IIutj~n
Control Board
PCB No. 03-214
(LUST Appeal)
1.
The Petitioner, Illinois
Ayers
Oil Company,
served its
Petition for Supplemental
Attorneys’
Fees upon the Illinois EPA on
April 20,
2005.
The Illinois EPA filed two
subsequent
motions
for
extension
of
time,
seeking
additional
time
to
file
a
response
to
the
Petitioner’s
petition.
2.
Due
to
the
work
load
of
staff
within
the
Illinois
EPA,
the
response
and
accompanying affidavit were not finalized until
the present date.
3.
Counsel
for
the
Illinois
EPA
regrets
the
delay
in
filing
the
response
to
the
Petitioner’s petition.
The short delay should not prejudice the rights ofthe Petitioner, especially
given that the payment voucher in question has been in the processing stage since well beforç the
filing ofthe Petitioner’s petition.
1
WHEREFORE,
for
the
reasons
stated
above,
the.
Illinois
EPA
hereby
respectfully
requests
that
the
Board
grant
the
Illinois
EPA
leave
to
file
instanter
its
Response
to
the
Petitioner’s Petition for Supplemental
Attorneys’ Fees.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
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
25,
2005
This filing
submitted on recycled paper.
2
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ILLINOIS AYERS OIL COMPANY,
)
Petitioner,
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
RESPONSE
TO PETITION FOR SUPPLEMENTAL
ATTORNEYS’ FEES
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
Ill.
Adm.
Code
101.500, hereby requests that
the Illinois
Pollution
Control
Board
(“Board”)
deny
the
Petitioner’s
Petition
for
Supplemental
Attorneys’
Fees
(“Petitioner’s petition”).
In support of this response, the Illinois EPA states as follows:
I.
BACKGROUND
On April
1, 2004,
the Board issued
an order in this matter, resolving the issues raised on
appeal by the Petitioner.
As part ofthe order, the Board reversed in part and affirmed in part the
Illinois
EPA’s
final, decision.
On May 3,
2004,
the
Petitioner
filed a
motion with
the
Board,
seeking
a
finding by
the
Board
that
the
legal
fees
incurred
as part
of bringing
the
appeal be
authorized for reimbursement pursuant to
Section
57.8(1)
ofthe Illinois Environmental Protection
Act (“Act”) (415 ILCS 5/57.8(1)).
On
August
5,
2004,
the
Board
entered
an
order,
granting
the Petitioner’s
request
and
ordering the Illinois EPA to reimburse the legal
fees incurred by the Petitioner in the amount of
$44,456.49.
On September
16, 2004, the Illinois EPA filed a motion for reconsideration, asking
that the Board reconsider its
decision.
On October
7,
2004, the Board
issued
an
order denying
the Illinois EPA’s motion for reconsideration and
affirming the award ofreimbursement oflegal
RECE~VE~
CLERK’S OFFICE
MAY
272005
STATE OF ILLINOIS
Pollution
Control Board
PCB No. 03-214
(LUST Appeal)
1
fees.
Included in the order issued by the Board was the statement that,
pursuant to
Section 41(a)
of the
Act
(415
ILCS
5/41(a)),
the
Board’s
order
may
be
appealed
directly
to
the
Illinois
Appellate Court within
35
days after service ofthe
order.
The Illinois EPA received service
of
the
Board’s order
on
or about
October
12,
2004.
Thirty-five days
from October
12,
2004,
is
November 16,
2004.
II.
THE ‘ILLINOIS EPA HAS ACTED
DILIGENTLY
In the Petitioner’s petition, the claim is
made that the Illinois EPA has never appealed nor
complied with
the Board’s August 5,
2004
final decision.
Further,
the Petitioner argues
that by
all
appearances,
the
Illinois
EPA
is
deliberately
and
systematically
disregarding
the
Board’s
orders by refusing to reimburse the attorneys’ fees.
Petitioner’s petition, p. 2.
The claims by the Petitioner are simply incorrect.
As
described above, the Illinois EPA
sought the Board’s reconsideration of its August 2004 order, as was the Illinois EPA’s right, and
in
October
2004
the
Board
ruled
on
that
request.
The
Illinois
EPA
had
until
the
middle
of
November 2004 to decide whether or not to further file an appeal ofthe Board’s ruling.
It would
be prejudicial
to the Illinois EPA’s rights,
and indeed the rights of any party that appears before
the Board,
to
find that taking the time to
actively consider whether or not
appeal of an order of
the Board
is
a
decision that
should
be held
against
the
party.
The Petitioner
argues’ that
the
Illinois EPA has effectively done nothing since August 5, 2004, in response to the Board’s order.
Nothing could be further from the truth.
The
Illinois
EPA
first
exercised
its
right
to
ask
the Board
to
reconsider its
decision.
When the Board
issued a decision on that request, the Illinois’ EPA then took the time to.consider
whether
an
appeal
to
the Appellate Court
should
be
taken.
The time
allowed by
statute for a
party, including the Illinois
EPA, to decide whether or not to
further appeal a decision is not time
2
that
should be
held against a party.
At
best, when the Illinois
EPA
decided not
to
appeal
the
Board’s orders (and that
decision did not
have
to be
made
until
November
16,
2004), then the
Petitioner could make a valid claim that action should be taken in response to
the Board’s ruling
to
award attorneys’ fees.
After November
16,
2004,
there was a short period of time that passed before the Illinois
EPA’s
Leaking
Underground
Storage
Tank
Claims
Unit
(“LCU”)
was
informed
that
steps
needed to
be
taken
to
process
the
payment
voucher for
the
fees.
On
December
15,
2004,
a
memorandum was
sent
from
the Illinois
EPA’s
Division of Legal
Counsel
to
LCU
instructing
that
such a voucher be processed.
Affidavit of Doug Oakley,
p.
1
(attached).
The
actual time
between the expiration ofthe date by which to file an appeal
and the memorandum to
LCU was
18 business days.
While the Petitioner may argue
that
even
18
days is
a
long period
of time, in
practical
terms it could not and should
be
interpreted as
any intention decision
to
delay payment by
the
Illinois
EPA of the
legal
fees.
The
truth of the matter
is
that
at
no
time
has there been any
disregard or deliberate disobedience of the Board’s order.
All that has transpired since the final
date by which
the Illinois
EPA could appeal
the Board’s decisions has been the systematic and
normal handling ofa payment voucher.
Further,
since November 2004 to
the present, there have been delays
in
payments
from
the
Underground Storage
Tank
Fund
(“UST
Fund”)
with
the
exception
of one
month.
The
delays
are attributable
to
the consistent
lack of adequate balances
in the UST Fund to
allow for
the payment of all pending vouchers.
Oakley AIfidavit,
p.
2.
When such shortages
in the UST
Fund balance
occur, a priority list for payment is generated
and payments are handled pursuant
to
the
date
on
which
a
complete
application
for payment
was
received
pursuant
to
Section
.3
57.8(a)(3) of the Act (415 ILCS
5/57.8(a)(3)).
The payment for the fees here is being handled no
differently
than
all
other
payment
vouchers
for costs
to
be
paid
from
the
UST
Fund,
in
that
prioritization is utilized and some payments must wait until their priority has moved sufficiently
high on the list.
The
payment
voucher for the
fees
awarded
in
the Board’s
August 2004
order
is
being
processed,
is
on the priority
list, and will be
approved and paid when it moves
high
enough on
the priority list.
Oakley Affidavit,
p.
1.
This
scenario is
the
same for each and
every payment
voucher
on
the
list
at
this
time.
There
has been
no
conspiratorial
or disobedient
act
by
the
Illinois EPA to fail to
pay the costs at issue;
rather, the payment voucher is
simply experiencing
the same delays
(due to
the
low balance of the UST Fund)
that all
other payment vouchers
are
experiencing.
III.
CONCLUSION
The
Illinois
EPA has
acted with
all
due
and
normal diligence
in
the
handling
of this
matter, and has not disregarded any order ofthe Board
in the process.
The payment voucher for
the attorneys’
fees
in the amount of $44,456.49
is presently in the processing stage,
and when it
is
due
for payment
a check will be
issued.
To
treat
this
payment
voucher differently than
all
other pending payment vouchers would be inconsistent with
the statutory system ofprioritization
during
times of low
balance in the UST Fund.
There
is
no
malfeasance or nonfeasance
on
the
part of the Illinois EPA that would warrant the imposition ofany further
fees in this matter.
For
these reasons, the Illinois EPA respectfully requests that the Board
deny the Petitioner’s petition.
4
WHEREFORE,
for
the
reasons
stated
above,
the
Illinois
EPA
hereby
respectfully
requests that the Board enter an order denying the Petitioner’s petition.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
R
det
Jo
J.
im
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
25,
2005
This
filing submitted on recycled
paper.
5
STATE OF ILLINOIS
)
)
SS
SANGAMON COUNTY
)
AFFIDAVIT
I, Doug Oakley;upon my oath, do hereby state as follows:
1.
I
am employed
as
the Manager
of the Leaking
Underground
Storage Tank Claims
Unit
(“LCU”) for the Illinois Environmental Protection Agency (“Illinois
EPATT).
2.
As Manager ofthe LCU,
I have reviewed the status ofthe pending payment voucher to pay
certain corrective action costs (so deemed by the Illinois Pollution Control Board (“Board”) in
an order dated August
5,
2004,
in the caseofIllinois Ayers Oil Companyv. Illinois EPA,PCB
Q3-214).
3.
The requirement to pay the legal defensefees, found to be corrective action costs by the Board
in its
August 2004 order,
totals $44,456.49.
4.
The voucher to pay Illinois Ayers Oil Company (“Ayers”) is currently in the processing stage
within Illinois
EPA.
The voucher is
on a priority list,
listed
by queue date and amount, as
prescribed by Section
57.8(a)(3)
of the Illinois Environmental Protection Act
(“Act”) (415
ILCS
5/57.8(a)(3)).
When the voucher moves sufficientlyhigh on the priority list, it will be
approved forpayment and forwarded to the Office ofthe Comptroller in the same manner as
all other vouchers currently on the priority list.
5.
OnDecember 15, 2004,
a memorandum was sent to LCU from the DivisionofLegal Counsel
requesting that steps be taken to process a payment voucher forthe fees.
Following receipt of
the memorandum, LCU began processing the paymentvoucher in the same manneras all other
requests forpayment from the Underground Storage Tank Fund (“UST Fund”).
6.
There hasbeen no intentional or deliberate attempt ofany kind to delayor preventthepayment
ofthe fees/costs that were the subject ofthe Board’s August 2004 order.
7.
The queue date associated with thepayment voucherwill be set as August 5, 2004, the date of
the Board’s order finding that the legal defense
fees were corrective action costs.
‘
8.
It is difficult to
estimate exactly when the payment voucherwill be forwarded to the Office of
the Comptroller, giventhe ever-changing status ofthe USTFund balance and prioritizationof
payment vouchers.
9.
The present expectation is that newclaims for payment from theUST Fundwill take anywhere
from six to nine months from the date of submission to payment by the Comptroller.
10.
From November 2004 through
May 2005,
there have been payments delays in every month
except forMarch 2005.
These delays are attributable to the lack ofan adequatebalance in the
-
UST Fund to pay all pending claims.
11.
To
the best ofmy knowledge, the information herein is true and accurate.
FURTHER AFFIANT SAYETH NOT.
Dou~A3akley
I’
Subscribed and sworn to
before me
thisc~5~dayof
,2005.
BRENDA BOEl*1~’~
Notary Public
NOTARY
PUBLIC,
STATE
O~
lLUNOiS5~,
•~MYCOMMISSION
EXPIRES
11.14-2O.~
2
CERTIFICATE OF SERVICE
I, the undersigned attorney
at law, hereby certify that on May
25,
2005, I served true and
correct
copies
of
a
MOTION
FOR
LEAVE
TO
FILE
INSTANTER
and
RESPONSE
TO
PETITIONER’S PETITION FOR SUPPLEMENTAL ATTORNEYS’ FEES, 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 First Class
Mail postage affixed thereto, upon the following named persons:
Dorothy M.
Gurm, Clerk
Fred C. Prillaman
Illinois
Pollution Control Board
Mohan, Alewelt, Prillaman & Adami
James R. Thompson Center
Suite 325
100 West Randolph Street
1 North Old Capitol Plaza
Suite 11-500
Springfield,
IL
62701-1323
Chicago, IL 60601
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,
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)
