BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
     
    ILLINOIS AYERS OIL COMPANY, )
    )
    Petitioner, )
    )
    v. ) Nos. PCB 03-70
    ) PCB 03-214
    ILLINOIS ENVIRONMENTAL ) PCB 05-048
    PROTECTION AGENCY, ) (UST Appeals)
    )
    Respondent. )
     
    NOTICE OF FILING AND PROOF OF SERVICE
     
     
    TO: Dorothy Gunn, Clerk Carol Webb
    Illinois Pollution Control Board Hearing Officer
    100 West Randolph Street Illinois Pollution Control Board
    State of Illinois Building, Suite 11-500 1021 North Grand Avenue East
    Chicago, IL 60601 P.O. Box 19274
    Springfield, IL 62794-9274
    John Kim
    Division of Legal Counsel
    Illinois Environmental Protection Agency
    1021 North Grand Avenue East
    P.O. Box 19276
    Springfield, IL 62794-9276
     
    PLEASE TAKE NOTICE that on May 31, 2005, I filed the original Notice of Filing and
    Proof of Service, Motion for Leave to File Reply in Support of Petition for Supplemental
    Attorneys’ Fees Instanter and Reply in Support of Petition for Supplemental Attorneys’ Fees
    with the Office of the Clerk of the Pollution Control Board by electronic filing with the Clerk’s
    Office On-Line (COOL).
     
    The undersigned certifies that he served the Notice of Filing and Proof of Service,
    Motion for Leave to File Reply in Support of Petition for Supplemental Attorneys’ Fees
    Instanter and Reply in Support of Petition for Supplemental Attorneys’ Fees by mailing a
    copy to the above persons by U.S. Mail on May 31, 2005.
     
     
    __________________________________
    Patrick D. Shaw
    MOHAN, ALEWELT, PRILLAMAN & ADAMI
    1 North Old Capitol Plaza, Suite 325
    Springfield, IL 62701
    Tel: (217) 528-2517
    Fax: (217) 528-2553
    THIS FILING SUBMITTED ON RECYCLED PAPER
    BEFORE THE POLLUTION CONTROL BOARD
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 31, 2005
    OF THE STATE OF ILLINOIS
     
    ILLINOIS AYERS OIL COMPANY, )
    )
    Petitioner, )
    )
    v. ) PCB No. 03-70
    ) PCB No. 03-214
    ILLINOIS ENVIRONMENTAL ) PCB No. 05-048
    PROTECTION AGENCY, ) (UST Appeals)
    )
    Respondent. )
     
    MOTION FOR LEAVE TO FILE REPLY IN SUPPORT OF PETITION FOR
    SUPPLEMENTAL ATTORNEYS’ FEES INSTANTER
     
    NOW COMES Petitioner, ILLINOIS AYERS OIL CO., by its undersigned attorneys,
    pursuant to Section 101.500(e)) of the Board’s Procedural Rules (35 Ill. Admin. Code §
    101.500(e)) and moves for leave to file a reply
    instanter
    , stating as follows:
    1.
    On May 26, 2005, Petitioner received a copy of the Motion for Leave to
    File Instanter Response to Petition for Supplemental Attorneys’ Fees.
    2. Said Response includes an affidavit of Doug Oakley, which consists of
    new information unavailable to Petitioner beforehand. Petitioner would be prejudiced if
    unable to respond to new information that it could not necessarily anticipate in its initial
    motion.
    3. The Board is authorized to grant leave to file a reply if sought within
    fourteen days after service of the response.
    4. Attached hereto is a Reply in Support of Petition for Supplemental
    Attorneys’ Fees, which Petitioner asks leave to file
    instanter
    .
    WHEREFORE, Petitioner prays for an order giving it leave to file the attached
    reply
    instanter
    , or for such other relief as the Board deems meet and just.
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 31, 2005
    Respectfully submitted,
     
    ILLINOIS AYERS OIL COMPANY, Petitioner
     
    By MOHAN, ALEWELT, PRILLAMAN & ADAMI
     
     
     
    By __________________________________
    Patrick D. Shaw
     
     
     
     
     
    Fred C. Prillaman
    Patrick D. Shaw
    MOHAN, ALEWELT, PRILLAMAN & ADAMI
    1 North Old Capitol Plaza, Suite 325
    Springfield, IL 62701
    Phone: (217) 528-2517
    Fax: (217) 528-2553
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 31, 2005
    BEFORE THE POLLUTION CONTROL BOARD
    OF THE STATE OF ILLINOIS
     
    ILLINOIS AYERS OIL COMPANY, )
    )
    Petitioner, )
    )
    v. ) PCB No. 03-70
    ) PCB No. 03-214
    ILLINOIS ENVIRONMENTAL ) PCB No. 05-048
    PROTECTION AGENCY, ) (UST Appeals)
    )
    Respondent. )
     
    REPLY IN SUPPORT OF PETITION FOR SUPPLEMENTAL ATTORNEYS’ FEES
    NOW COMES Petitioner, ILLINOIS AYERS OIL CO., by its undersigned
    attorneys, and replies in support of its Petition for Supplemental Attorneys’ Fees, stating
    as follows:
     
     
    I. THE ILLINOIS EPA HAS NOT ACTED DILIGENTLY.
     
     
    To act in a “diligent” manner requires“steady, earnest, and energetic effort.”
    (Merriam Webster’s Collegiate Dictionary (10
    th
    ed. 1993))
    On August 5, 2004, the Board ordered the IEPA to pay Petitioner’s litigation
    expenses, and the Board denied reconsideration of the same order on October 7, 2004.
    The Board’s Petroleum Underground Storage Tank rules state:
    If the owner or operator has filed an appeal with the Board of the
    Agency's final decision on an application for payment, the Agency
    shall have 60 days after the final resolution of the appeal to forward
    to the Office of the State Comptroller a voucher in the amount
    ordered as a result of the appeal
    .
    (35 Ill. Admin. Code § 732.603(a))
    The IEPA argues that it had until November 16, 2004, to appeal the Board’s
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 31, 2005
    decision. This is wholly irrelevant given that the IEPA did not appeal and neither a
    party’s deliberations, nor an appeal itself act to stay a final order. (35 Ill. Admin. Code §
    101.906(c); S. Ct. R. 335(g)) Regardless of when “the final resolution of the appeal” is
    dated, that day has clearly come and gone.
    Other than a December 15, 2004 memorandum in which the Division of Legal
    Counsel directed the LUST Claims Unit to pay the legal fees, no effort appears to have
    been made to forward the voucher to the Comptroller. Nor does Doug Oakley express
    any opinion as to when such a payment voucher might be forwarded. (Oakley Aff. at ¶
    8) This is not diligence.
    The IEPA implies that the UST Fund has insufficient money to meet its liabilities.
    What Doug Oakley actually states is:
    From November 2004 through May 2005, there have been payments
    [sic] delays in every month except for March 2005. These delays are
    attributable to the lack of an adequate balance in the UST Fund to
    pay all pending claims.
     
    (Oakley Aff. at ¶ 10 (emphasis added))
    Oakley does not actually testify that there was ever insufficient money to pay
    Petitioner. Instead, he describes a scenario in which the IEPA may be intentionally
    delaying payments in order to avoid an actual condition of insufficient funds that would
    trigger provisions to defer site investigation and corrective action. (415 ILCS 5/57.8(b))
    In any event, there were adequate funds in March of 2005, so the assumption must be
    that as of March of 2005, the IEPA had failed to place Illinois Ayers on the priority list.
    1
      
    1
    The IEPA “shall form a priority list for payment and shall notify persons in such
    priority list monthly of the availability of funds and when payment shall be made.” (415 ILCS
    5/57.8(a)(3)) Oakley does not indicate that such notice was given, nor when payment can be
    expected. (Oakley Aff. at ¶ 8)
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 31, 2005
    Doug Oakley further states that “[t]he queue date associated with the payment
    voucher will be set as August 5, 2004.” (Oakley Aff. at ¶ 7 (emphasis added)) The
    assumption also must be that the queue date for Petitioner is not currently set as
    August 5, 2004. On April 12, 2005, the IEPA forwarded vouchers to the Comptroller for
    numerous sites with queue dates later than any of the Board’s previous orders,
    including a voucher for $113,417.10 for the Des Plaines Oasis with an application
    acceptance date of December 10, 2004. (Pet. Supp. Atty Fees, Ex. E)
    2
    As of April 12,
    2005, the Illinois Ayers site was clearly being treated as a site with less “priority” than
    one with a December 10, 2004, application acceptance date.
    With respect to the issue of priority, the Board’s rules prioritize payments due as
    a result of an appeal to the Board:
    Within 60 days after notification to an owner or operator that the
    application for payment or a portion thereof has been approved by
    the Agency or by operation of law, the Agency shall forward to the
    Office of the State Comptroller in accordance with subsection (d) or
    (e) of this Section a voucher in the amount approved. If the owner or
    operator has filed an appeal with the Board of the Agency's final
    decision on an application for payment, the Agency shall have 60
    days after the final resolution of the appeal to forward to the Office of
    the State Comptroller a voucher in the amount ordered as a result of
    the appeal.
     
    2
    Other vouchers were forwarded for Belvidere Oasis North (11/29/2004), Clark #5596
    (11/16/2004), Dave’s Garage (11/19/2004), George Vitovec (11/16/2004), Lee’s Food Mart
    (11/19/2004), Leonard Henson (11/29/2004), Linker Oil Co. (11/18/2004), Munsterman Shell
    Station (11/30/2004), Simpson’s Auto Service (12/1/2004), and Vandalia Bus Garage
    (11/19/2004 and 11/22/2004).
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 31, 2005
    (35 Ill. Admin. Code § 732.603(a) (emphasis added))
    With respect to conventional applications for payment, payment must be “in
    accordance with subsection (d) or (e),” which contains the priority list provisions. With
    respect to payments authorized by the Board on appeal, no such condition attaches,
    meaning that such payments are not subject to the priority of earlier conventional
    payment applications. Such a superpriority is justified by the fact that Board appeals
    arise from much earlier events.
    Whether or not payments arising from Board appeals should give rise to
    “superpriority,” there is no justification for treating Illinois Ayers worse than other sites.
    Unfortunately, it appears that “but for” the filing of this supplemental petition on April 18,
    2005, the IEPA was not prepared to take any action for the foreseeable future.
     
    II. THE SUPPLEMENTAL PETITION IS NOT BASED SOLELY ON THE ISSUE
    OF DELAY.
     
    The IEPA responds solely to the complaint of delay, but Petitioners’ request was
    also premised on the same reasons that gave rise to the initial award (Pet. Supp. Atty
    Fees at ¶ 8) It is not uncommon for litigation concerning the appropriateness of an
    attorney fee award to give rise to litigation above and beyond that of the underlying
    case. In such cases it is appropriate to give a supplemental award of those additional
    legal expenses incurred after the initial petition was filed. See Citizens Organizing
    Project v. IDNR, 189 Ill.2d 593, 599 (2000) (ordering trial court to award legal fees,
    including costs of appealing trial court’s decision to deny legal fee award). The IEPA
    has failed to respond to this argument.
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 31, 2005
    CONCLUSION
     
    For the foregoing reasons, Petitioner renews its request for the relief sought in
    the Petition for Supplemental Attorneys’ Fees.
     
    Respectfully submitted,
     
    ILLINOIS AYERS OIL COMPANY, Petitioner
     
    By MOHAN, ALEWELT, PRILLAMAN & ADAMI
     
     
     
    By __________________________________
    Fred C. Prillaman
     
     
     
    By __________________________________
    Patrick D. Shaw
     
     
     
     
     
    Fred C. Prillaman
    Patrick D. Shaw
    MOHAN, ALEWELT, PRILLAMAN & ADAMI
    1 North Old Capitol Plaza, Suite 325
    Springfield, IL 62701
    Phone: (217) 528-2517
    Fax: (217) 528-2553
     
     
    C:\Mapa\CSD Environmental\Notice of Filing 053105.wpd/crk 5/31/05 4:39 PM
     
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 31, 2005

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