BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Jeffrey W. Tock
Barrington & Tock
201 West Springfield Avenue
Suite 601
P.O. Box 1550
Champaign, IL
61824-1550
RECEIVED
CLERK’S OFFICE
JUN 03 2005
STATE OF ILLINOIS
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 RESPONSE TO PETITIONER’S MOTION FOR SUMMARY JUDGMENT, copies of
which are herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
~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: June 1, 2005
RICHARD KARLOCK,
)
Petitioner,
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
NOTICE
PCB No.
05-127
(LUST Appeal)
BEFORE THE POLLUTION CONTROL BOARD
CLERK’S ~
OF THE STATE OF ILLINOIS
E
RICHARD KARLOCK,
.
)
STATE
JUN03
OF ILLINGI
2005
Petitioner,
)
~OlIUtionControlBoard
v.
)
PCB
No.
05-127
ILLINOIS ENVIRONMENTAL
)
(LUST Appeal)
PROTECTION AGENCY,
)
Respondent.
)
RESPONSE
TO PETITIONER’S 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 Ill. Adm. Code 101.500, 101.508
and
101.516, herebyresponds to the
Motion for Summary Judgment filed by the Petitioner, Richard Karlock
(“Karlock”).
The Illinois
EPA respectfully requests that the Illinois Pollution Control Board (“Board”) deny the Petitioner’s
motion for summaryjudgment and instead issue an order granting the Illinois EPA’s own motion for
summaryjudgment. In support of this response, the Illinois EPA states as follows:
I. THE PETITIONER FAILED TO PROVIDE
THE PROPER CERTIFICATION FORM
In its motion, the Petitioner notes that the final decision under appeal contains the following
explanation for the denial of the costs:
Item #
Description ofDeductions
1.
$26,245.05, deduction for costs lacking supporting documentation.
An approved site investigation completion report has not been
submitted. (Sections 57.7(a)(5) and 57.1.2(c) and (d) ofthe Act and
35 Ill. Adm. Code 732.100 and 732.105).
When the site investigation completion report has been approved,
fax/send a copy of the Agency letter approving the site investigation
completion report and request a re-review.
1
Also, the claim was missing the Owner/Operator Billing Certification
Form. The form that was enclosed was for budget certification. I
have enclosed a copy of the Billing Certification fonn.
Petitioner’s motion, Petitioner’s Exhibit 2, p. 3.
The Petitioner, in response to the second basis for denial of the costs in question, notes that
on January 4, 2005, the Petitioner sent a letter to the Illinois EPA in Which the requested Billing
Certification Form for the Application for Reimbursement was provided. Petitioner’s motion, p. 2.
The certificationitselfwas dated January 3, 2005. Petitioner’s motion, Petitioner’s Exhibit 3, p. 3.
However, the final decision under appeal is dated December 10, 2004. Therefore, the
Petitioner provided the proper billing certification form to the illinois EPA almost one month too
late. Even if the Board were to find that the Illinois EPA’s decision regarding the necessity of
approval of the site investigation completion report (“SICR”) before approval of related costs for
reimbursement, the fact that the Petitioner failed to provide the necessary billing certification is more
than enoughjustification for the Board to grant the illinois EPA’smotion for summaryjudgment and
affirm the December 2004 decision.
To counter this argument, the Petitioner noted that the illinois EPA referred to the application
as being complete in one portion of the December 2004 final decision, yet later denied the costs in
question in part due to the lack of a proper certification form. Petitioner’s motion, pp. 3-5. The
Illinois EPA’s final decision does provide that the illinois EPA received the Petitioner’s “complete
application for payment” of the claim. Petitioner’s motion, Petitioner’s Exhibit 2, p. 1. However,
the final decision also clearly and specifically provides that the Petitioner failed to include the proper
billing certification form. Petitioner’s motion, Petitioner’s Exhibit 2, p.3. These two components of
the final decision are not necessarily at odds with one another. Rather, the final decision could and
2
should be read to mean that the Illinois EPA received all the information that Petitioner provided in
support ofits claim, including what the Petitioner thought to be the correctcertification ofcosts (i.e.,
a complete application), yet in fact the certification was incorrect.
The statement in the final decision that the application was complete is not dispositive of a
question of whether the proper certification was submitted, since the illinois EPA clearly stated
within the final decision that the proper certificationwas not provided. In essence, the Petitioner is
asking the Board to ignore the stated reasons for denial and instead focus on the boilerplate language
found within the final decision. While such language should not go totally unnoticed, it is much
more reasonable to interpret the “complete application” language ofthe letter to mean that all ofthe
Petitioner’s documents, including those it felt were responsive to the statutory requirements, were
received. The question as to whether those documents were sufficient or proper or correct or
persuasive is another matter, and in this situation the certification document was found to be lacking.
Given that the Illinois EPA clearly stated its reasons for denial, including the lack of a proper
certification, the final decision’s language was not inconsistent and the decision should be affirmed.
II. THE ILLINOIS EPA PROPERLY WITHHELD APPROVAL OF COSTS
The other reason for denying the costs in question, as described by the illinois EPA’s final
decision, was that the Petitioner has not yet received approval on a 51CR. The costs in question are
related to site investigation activities. Petitioner’s motion, Petitioner’s Exhibit 1, p. A-i. The
Petitioner argues that there is no specific statutory or regulatory provision that prevents the approval
of site investigation costs for reimbursement even if site investigation activities have not yet been
completed. Rather, the Petitioner argues that the general language of Section 57.8 ofthe Act (415
ILCS
5/5
7.8) should control. That language states that an owner or operator may submit a complete
3
application for final or partial payment to the Illinois EPA for activities taken in response to a
confirmed release.
Despite the Petitioner’s reading, that language is not a blanket statement that an application
maybe made anytime for any type ofcorrective action cost. There are situations in which a request
for payment, whetherfinal or partialin nature, must be preceded by a separatemilestone. The easiest
example is the requirement that costs other than for early action activities may not be approved for
reimbursement until a related budget has been approved. There is no prohibition to an owner or
operator beginning corrective action activities without the benefit of an approved plan or budget,
although to do so does not provide a guarantee that the work and associated costs will ultimately be
approved by the Illinois EPA. But pursuant to the Petitioner’s interpretation of Section 57.8, an
owner or operator could submit a request for reimbursement ofcosts that have been incurred prior to
the approval of a plan or budget, since Section 57.8 does not have any restrictive language.
The Petitioner has to concede that Section 57.8 does not allow an owner or operator to submit
an application for payment at any phase of a site’s cleanup (e.g., before a relatedplan and budget has
been approved) andexpect that application to be acted upon. The only argument that the Petitioner
could possibly make in response to the budget requirement is that such a requirement is set forth
elsewhere in the LUST program’s provisions. But, as noted by the illinois EPA in its motion for
summaryjudgment, the LUST program is currently operating in a vacuum in terms of regulations to
“flesh out” the new provisions of the Act, including those related to site investigation. Just as the
requirement existed in regulatory form that site classification be completed before site classification
costs could be approved for reimbursed, so too will there likelybe some regulation that discussesthe
similar situation involving site investigation activities and costs.
4
But until the pending rulemaking is complete, it is impossible to say with absolute certainty
how that provision will read in final form. Therefore, as theIllinois EPA has argued, it is sensible to
look to the previous regulatory stance on this topic (in the contextofsite classification activities and
costs) for guidance. Since there was a regulation that prohibited approval of site classification costs
until the site classification completion report was approved, so too should there be a prohibition (at
least until the new regulations are final) on the approval of site investigation costs until a site
investigation completion report has been approved. Ifthe new regulation on this question is different
than the regulation regarding site classification, a corresponding change in practice can then take
place.
III. CONCLUSION
For the reasons stated herein, the Illinois EPA respectfully requests that the Board deny the
Petitioner’s motion for summaryjudgment and instead grant the Illinois EPA’s motion for summary
judgment by affirming the illinois EPA’s December 10, 2004 decision to deny approval of
reimbursement of the site investigation costs.
Respectfully submitted, -
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
John
J.
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: June 1, 2005
This filing submitted on recycled paper.
5
CERTIFICATE OF SERVICE
I,
the
undersigned attorney at law, hereby certify that on June 1, 2005, I served true and
correct copies
of
a RESPONSE TO PETITIONER’S 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
First Class Mail postage affixed thereto, upon the following named persons:
Dorothy M.
Gunn, Clerk
Jeffrey W. Tock
Illinois Pollution Control Board
Harrington &
Tock
JamesR. 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,
~
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)
