1. BEFORE THE POLLUTION CONTROL BOARDOF THE STATE OF ILLINOIS
    2. MOTION FOR SUMMARY JUDGMENT
BEFORE THE POLLUTION CONTROL BOARD
8~1CE
OF THE STATE OF ILLINOIS
NOV
142005
MCLEAN COUNTY ASPHALT,
)
POIII~/~
g~t~s
Petitioner,
)
)
vs.
)
PCB
No.
05-154
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE
Dorothy M. Gunn, Clerk
John
J.
Kim
Illinois
Pollution Control Board
Assistant Counsel
State
of Illinois
Center
Special Assistant Attorney General
100
West Randolph Street
Division of Legal
Counsel
Suite
11-500
1021
North Grand Avenue,
East
Chicago,
IL
60601
P.O.
Box 19276
Springfield,
IL
62794-9276
PLEASE TAKE NOTICE
that
I
have today filed with the
office of the Clerk of
the Pollution
Control Board
a Motion for Summary Judgment,
a copy of which is
herewith served upon you.
B/Let
Jh~
/
Curtis
W. Martin, ~ctorney
for
(
McLean County ~phalt,
Petitioner
Robert E.
Shaw
IL ARDC No. 03123632
Curtis
W. Martin
IL
AIRDC No. 06201592
SHAW
&
MARTIN,
P.C.
Attorneys
at Law
123
5. i0~Street, Suite
302
P.O.
Box
1789
Mt. Vernon, Illinois
62864
Telephone
(618) 244-1788
BEFORE
THE POLLUTION
CONTROL BOARD
OF THE STATE OF
ILLINOIS
MCLEAN COUNTY ASPHALT,
)
LEAK’S
OFFICE
)
NOV142905
Petitioner,
STATE OF ILLINOIS
/
Pollution Control Boa
vs.
)
PCB No.
05-154
)
(UST Appeal)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR SUMMARY JUDGMENT
NOW COMES the Petitioner,
McLean County Asphalt
(‘WlcLean”), by one of
its attorneys,
Curtis
W.
Martin of Shaw
& Martin, P.C., and for its Motion For
Summary Judgment, pursuant
to
35 Ill. Adm.
Code 101.516, states as follows:
1.
On February
14,
2004,
McLean filed a Petition for Review of Final
Agency Leaking Underground
Storage Tank Decision.
2.
The basis
for the Petition is that the Agency, by a January
6,
2005
letter, refused to review a Second Amended Corrective Action Plan and Budget
(“Amended Plan”) dated September
9,
2004 submitted by McLean, asserting that it
provided
“final action” to McLean by a previous,
yet unspecified,
letter.
The Agency
asserted that
such action
was subject to appeal within (35) days but McLean failed
to timely file an appeal
thereby “preventing” the Agency from reconsidering
or
revisiting
such final action.
3.
In its January
6,
2005 letter, the Agency cited Sections 57.7(a)(1) and
57.7(c)(4) of the Illinois Environmental
Protection Act (“Act”),
415
ILCS
5/57.7(a)(1)
and
57.7(c)(4), and
Sections 732.305(c),
732.312(j),
732.503(b) and
732.503(f) of 35
Illinois Administrative
Code
(“Code”) in
support of its position that it provided its
“final action” to McLean.
4.
Section 57.7(c)(1) of the Act describes
a final action on the part of the
Agency
in the context of its review of any plan and associated budget as follows:
Agency
approval of any plan
and
associated budget,
.
.
.
shall
be considered final approval for purposes
of seeking and
obtaining payment from the Underground Storage
Tank
Fund
if the costs
associated with completion of any such plan
are
less than
or equal
to the amounts
approved
in such budget.
(emphasis added)
5.
Section
57.8(a)(5)
of the Act states, in part,
as follows:
In the event
that costs are or
will be incurred in addition
to those
approved
by the Agency,
or afterpayment,
the owner or operator may
submit
successive plans
containing amended budgets.
6.
Section
732.405(e)
ofthe
Code further provides as follows:
If, following approval of any groundwater
monitoring plan,
corrective action plan
or associated budget plan,
an
owner
or
operator determines that revised procedures
or cost estimates
are necessary in order
to comply
with the minimum
required
activities for the site, the owner
or operator shall submit,
as
applicable,
an amended groundwater
monitoring plan,
corrective action plan
or associated budget plan
for review by
the Agency.
The Agency shall
review and approve,
object
or
require modifications of the amended plan
in accordance with
the procedures contained in Subpart E of this Part.
(emphasis
added)
7.
In the present case, the costs
associated with the completion of the
Amended Plan
actually incurred by McLean were more than the amounts
approved
in the Budget, and
McLean followed Section 57.8(a)(5) of the Act to seek the
Agency’s approval of an amended budget reflecting those additional costs.
8.
The Agency’s
failure to review and approve, reject,
or require
modification of the Amended Plan submitted by McLean in accordance with
Section
2
57.8(a)(5) of the Act is
in violation of Section
732.405(e)
of the
Code as the Agency’s
prior action was not a “final action” as
defined by Section
57.7(c)(1) of the Act.
9.
There is
no genuine issue
of material fact from the record in this case
such that McLean is
entitled to a Judgment as a matter
of law requiring the Agency
to review and approve,
reject or require modifications of the Amended Plan
submitted by McLean on September
9,
2004.
WHEREFORE, Petitioner,
McLean County Asphalt,
prays that this
Board
enter a Summary Judgment
in its favor and against the Agency requiring the
Agency to review and approve, reject or require modifications
ofthe Amended Plan
submitted by McLean on
September
9,
2004, and that this
Board award
McLean its
attorneys fees
and costs incurred in this cause pursuant
to
415 ILCS
5/57-.8(l)
-and-
35
Ill. Adm.
Code
732.606(g), and that it be granted such other and further relief as
the Board
deems just and
equitable.
Respectfully submitted,
SHAW & MARTIN,
P.C.
By/1~t~
(Jh’t~±)
orney for
County Asphalt
Robert E.
Shaw
IL
ARDC No. 03123632
Curtis W. Martin
IL ARDC No. 06201592
SHAW
& MARTIN, P.C.
Attorneys
at Law
123 S. 1O~Street, Suite
302
P.O.
Box
1789
Mt. Vernon, Illinois
62864
Telephone
(618) 244-1788
Petitioner,
3
CERTIFICATE
OF SERVICE
I, the
undersigned attorney at law, hereby certify that
on
November
1/
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 Mt. Vernon,
Illinois,
with
sufficient postage affixed thereto,
upon the following named persons:
Dorothy M.
Gunn, Clerk
John J.
Kim
Illinois
Pollution Control Board
Assistant
Counsel
State of Illinois Center
Special Assistant Attorney
General
100
West Randolph Street
Division ofLegal Counsel
Suite
11-500
1021 North Grand Avenue,
East
Chicago,
IL
60601
P.O.
Box
19276
Springfield,
IL
62794-9276
Carol Webb
Hearing
Officer
Illinois
Pollution
Control Board
1021
North Grand Avenue
East
P.O.
Box
19274
Springfield,
IL
62796-9274
____
Z~
_
/Curtis
W. Martin, A$rney
for
Petitioner, McLea
County Asphalt

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