BEFORE

THE

POLLUTION CONTROL BOARD

RECEIVED

OF THE

STATE OF ILLINOIS

CLERKS OFFICE

E & L TRUCKING COMPANY,

)

OCT

282005

Petitioner,

)

STATE OF

ILLINoIs

v.

)

PCB

No. 06-50

~~llUt~Ofl

Control

Board

ILLINOIS ENVIRONMENTAL

)

(UST Appeal)

PROTECTION AGENCY,

)

Respondent.

)

NOTICE

Dorothy M. Gunn, Clerk

John Kim

Illinois Pollution Control Board

Illinois

Environmental Protection Agency

James K. Thompson Center

1021 North Grand Avenue, East

100 West Randolph Street

P.O.

Box

19276

Suite 11-500

Springfield,

IL

62794-9276

Chicago, IL 60601

PLEASE

TAKE

NOTICE that

I have today

filed

with

the

office of the

Clerk of the Pollution

Control Board

a RESPONSE TO THE AGENCY’S MOTION

TO DISMISS PETITION copies ofwhich

are herewith served upon you.

Respectfiñly submitted on behalfofPetitioner,

E & L TRUCKING COMPANY,

John$i3rt

Att9*n~fiLaw

11 ~$afith

Plymouth Court

-

Suite 2NE

Chicago, IL

60605

Phone:

(312) 341-0037

Facsimile:

(312) 341-9394

Dated:

October 28,

2005

---

E

BEFORE

THE

POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

OCT

282995

E & L

TRUCKING COMPANY,

)

Control Board

Petitioner,

)

v.

)

PCB No. 06-50

ILLINOIS ENVIRONMENTAL

)

(UST Appeal)

PROTECTION AGENCY,

)

Respondent.

)

RESPONSE TO AGENCY’S MOTION TO DISMISS PETITION

NOW

COMES

the

Petitioner,

E

&

L

TRUCKING

COMPANY,

by

and

through

its

attorney,

John

Burds

and,

pursuant to

35

III. Adm.

Code

101.500,

105.408(b)

and

105.408(c),

hereby respectfully moves the ILLINOIS POLLUTION CONTROL BOARD (“Board”) to deny

the ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S (“Agency”) Motion to Dismiss

Petition.

1.

On September

14, 2005,

the Agency

issued a final determination “for

purposes

of appeal..

,“

indicating that the application

for reimbursement, allegedly received from E & L

Trucking Company on May 19, 2005,

is incomplete.

2.

The

Agency

allegedly

sent

the

September

14,

2005,

final

determination

via

certified mail; however,

the

actual date of receipt/service of this

final determination by

E

&

L

Trucking Company from tile Agency is not known.

3.

Only

after repeated

and

unsuccessful

attempts

to

contact both,

Agency

Counsel,

Mr. John Kim, as well as the author ofthe Agency’s final determination, Mr. Douglas E.

Oakley,

in

order to

resolve any alleged deficiencies

and/or secure the Agency’s agreement to

file a joint

extension of time

to

file

any

necessary

Petition

for Review pursuant

to

35

Ill.

Adm.

Code

105.406,

was a timely Petition

for Review filed by

E

&

L

Trucking Company on October

Ii,

2005 with the Board.

---

4.

Counsel for the Agency in çliscussions previous and subsequent to the

filing ofthe

above referenced Petition

for Review by

E &

L

Trucking has indicated that

it

is

the Agency’s

position that final determinations concluding that applications and/or submittals

are incomplete

are not subject to Board review.

5.

Pursuant

to

35

III.

Adm.

Code 105.404,

a petitioner

may file either a petition for

review or request for an extension of time to file a petition within 35

days ofthe date of service

of the

Agency’s

final

decision.

Although

the

actual

date

of

service

upon

E

&

L

Trucking

Company ofthe Agency’s September 14, 2005, final determination

is unknown it is clear that the

Petition

for

Review filed

on

October

11,

2005,

is

both

timely

and

that

the

E

&

L

Trucking

disputes

the

Agency’s

incompleteness

finding

within

the

final

determination

issued

on

September 14, 2005.

6.

The

Petition

for Review clearly

establishes

that the

E

&

L

Trucking

Company

disputes

the Agency’s incompleteness determination.

The prayer for relief specifically

requests

the Board to

reverse the determination

and

within the content of the Petition,

E &

L Trucking

Company clearly identifies the Agency’s own previous approval of the High Priority Corrective

Action Plan and Budget,

including these

same

costs,

as a basis for the dispute within numbered

paragraph 3.

7.

More importantly, the final determination issued by the Agency on September

14,

2005,

is both confusing

and inconsistent with prior Agency determinations related to

these same

and/or identical costs.

See, B & L Trucking Company v. IEPA~,

PCB#

2002-053.

Specifically,

the Agency alleges

that the reimbursement application

does not identify costs previously applied

to

the

applicable

deductible;

however,

it was

the

Agency

who

assigned

these

costs

without

specifying and/or noti~’ingE & L Trucking which were applied to the applicable deductible.

---

8.

To

date

B & L

Trucking Company’s

efforts to

identi& these costs

and reconcile

previous reimbursements with the Agency

have received no

response from the Agency despite

repeated assurances from Agency Counsel that the Agency would identify and provide any detail

necessary to

address the Agency’s concerns.

Thus

B

& L Trucking was left with no alternative

but to

file the Petition

for Review.

It is

not possible or reasonable to require

B

&

L

Trucking

Company to identify all possible grounds for appeal at the

initial time of filing.

Likewise in the

context of an administrative hearing/proceeding, it

is

not reasonable to

expect

the repeated

and

continuous

filing

of amended

petitions as infonnation

is

developed

as

new and/or

additional

basis

and/or grounds for appeal

are developed

throughout the exchange of information or over

the course ofdiscovery.

9.

The

Agency

has

not

alleged

and/or

established

any

prejudice,

material

or

otherwise, as a result ofthe alleged deficiencies within the Petition for Review filed, October 11,

2005.

WHEREFORE,

the Petitioner,

B

&

L

TRUCKING COMPANY,

respectfully

requests

that

the Board

deny

the

Agency’s

Motion

to

Dismiss

Petition

or,

in

the alternative,

grant the

Petitioner leave to file an Amended Petition as necessary.

Respectfully submitted on behalfofthe Petitioner,

E & L TRUCKING COMPANY,

~

Law

1170

uth Plymouth Court

-

Suite 2NE

Chicago, IL

60605

Phone:

(312) 341-0037

Facsimile:

(312) 341-9394

Dated: October

25,

2005

This filing submitted on recycled paper.

---

CERTIFICATE OF SERVICE

I, the

undersigned attorney

at

law,

hereby certify

that

on

October

28,

2005,

I

served

true and

correct copies of RESPONSE TO AGENCY’S

MOTION TO DISMISS

PETITION by

placing

true and correct copies thereofin properly sealed and addressed envelopes and by depositing said

sealed envelopes

in

a U.S.

mail

drop box

located within Chicago, Illinois,

with sufficient

First

Class postage affixed thereto, upon the following named persons:

Dorothy M. Gunn, Clerk (also via E-Filing)

John Kim

Illinois Pollution Control Board

Illinois Environmental Protection Agency

James R.

Thompson Center

1021 North Grand Avenue, East

100 West Randolph Street

P.O.

Box

19276

Suite 11-500

Springfield,

IL

62794-9276

Chicago, IL 60601

Respectfully Submitted on behalfof Petitioner,

E&L

TRUCKING COMPANY,

S~c

A

y

Law

1

7

uth Plymouth Court

-

Suite 2NE

cago, IL

60605

Phone:

(312) 341-0037

Facsimile:

(312) 341-9394