BROADUS OIL,
)
Petitioner,
)
v.
)
PCB No. 04-31
05-43
ILLINOIS ENVIRONMENTAL
)
(UST Fund)
PROTECTION AGENCY,
)
Respondent
.
)
NOTICE
Dorothy M . Gunn, Clerk
Bradley Halloran, Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
James R . Thompson Center
James R . Thompson Center
100 West Randolph Street, Suite 11-500
100 West Randolph Street, Suite 11-500
Chicago, IL 60601
Chicago, IL 60601
Stephen F
. Hedinger
Hedinger Law Officer
2601 South Fifth Street
Springfield, IL 62703
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution Control
Board an APPEARANCE, the ADMINISTRATIVE RECORD, and MOTION FOR SUMMARY
JUDGEMENT, copies of which are herewith served upon you
.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
Melanie A Jarvis
Assistant Counsel
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 2, 2006
This filing submitted on recycled paper .
RECEIVEDCLERK'S
OFFICE
MAY
- 8 2006
Pollution
STATEOF
ControlILLINOISBoard
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on May 4, 2006 I served true and correct
copies of an APPEARANCE, the ADMINISTRATIVE RECORD, and MOTION FOR SUMMARY
JUDGEMENT, by placing true and correct copies thereof 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 postage affixed thereto, upon the following named persons
:
Dorothy M . Gunn, Clerk
Bradley Halloran, Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
James R
. Thompson Center
James R
. Thompson Center
100 West Randolph Street, Suite 11-500
100 West Randolph Street, Suite 11-500
Chicago, IL 60601
Chicago, IL 60601
Stephen F
. Hedinger
Hedinger Law Officer
2601 South Fifth Street
Springfield, IL 62703
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Melanie A. Jarvis
Assistant Counsel
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
This filing submitted on recycled paper
.
APPEARANCE
The undersigned, as one of its attorneys, hereby enters her Appearance on behalf of the
Respondent, the Illinois Environmental Protection Agency .
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Melanie A . Jarvis
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 2, 2006
This filing submitted on recycled paper
.
BEFORE THE POLLUTION CONTROL BOARD
BROADUS OIL,
OF THE STATE OF ILLINOIS
RECEIVED
CLERK'S
OFFICE
)
MAY -
B 2006
Petitioner,
v .
)
STATE OF ILLINOIS
) PCB No. 04-31
Pollution Control Board
05-43
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent .
)
(UST Fund)
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
BROADUS OIL,
)
Petitioner,
)
v.
)
PCB 04-31
ILLINOIS ENVIRONMENTAL
)
PCB 05-43
PROTECTION AGENCY,
)
(UST Appeal)
Respondent .
)
(Consolidated)
RECEIVED
CLERKS
OFFICE
MAY
-
8 2006
Pollution
STATE OFControl
ILLINOIS
Board
MOTION FOR SUMMARY JUDGMENT
NOW COMES the Respondent, the Illinois Environmental Protection Agency ("Illinois EPA"),
by one of its attorneys, Melanie A
. Jarvis, Assistant Counsel and Special Assistant Attorney General,
and, pursuant to 35 Ill
. Adm. Code 101 .500, 101 .508 and 101
.516, hereby respectfully moves the Illinois
Pollution Control Board ('Board") to enter summary judgment in favor of the Illinois EPA and against
the Petitioner, Broadus Oil ("Broadus"), in that there exist herein no genuine issues of material fact, and
that the Illinois EPA is entitled to judgment as a matter of law with respect to the following grounds
. In
support of said motion, the Illinois EPA states as follows
:
I
. STANDARD FOR ISSUANCE AND REVIEW
A motion for summary judgment should be granted where the pleadings, depositions, admissions
on file, and affidavits disclose no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law . Dowd & Dowd, Ltd
. v. Gleason,181111 .2d
460, 483, 693 N .E.2d
358, 370
(1998)
; McDonald's Corporation v
. Illinois Environmental Protection Agency,
PCB 04-14 (January 22,
2004), p . 2 .
Section 57
.8(1) of the Illinois Environmental Protection Act
("Act") (415 ILCS 5/57
.8(i)) grants
an individual the right to appeal a determination of the Illinois EPA to the Board pursuant to Section 40
of the Act (415 ILCS 5/40)
. Section 40 of the Act, the general appeal section for permits, has been used
1
by the legislature as the basis for this type of appeal to the Board
. Thus, when reviewing an Illinois EPA
determination of ineligibility for reimbursement from the Underground Storage Tank Fund, the Board
must decide whether or not the application as submitted demonstrates compliance with the Act and
Board regulations . Rantoul Township High School District No
. 193 v . Illinois EPA, PCB 03-42 (April
17, 2003), p . 3 .
In deciding whether the Illinois EPA's decision under appeal here was appropriate, the Board
must look to the documents within the Administrative Record ("Record" or "AR"). The Illinois EPA
asserts that the Record and the arguments presented in this motion are sufficient for the Board to enter a
dispositive order in favor of the Illinois EPA on all relevant issues . Accordingly, the Illinois EPA
respectfully requests that the Board enter an order affirming the Illinois EPA's decision
.
II. BURDEN OF PROOF
Pursuant to Section 105 .112(a) of the Board's procedural rules (35 111 . Adm. Code 105 .112(a)),
the burden of proof shall be on the petitioner . In reimbursement appeals, the burden is on the applicant
for reimbursement to demonstrate that incurred costs are related to corrective action, properly accounted
for, and reasonable . Rezmar Corporation v . Illinois EPA, PCB 02-91 (April 17, 2003), p . 9 .
III. ISSUE
The issue before the Board is whether the Illinois EPA can consider a High Priority Corrective
Action Plan Budget amendment after the issuance of a No Further Remediation ("NFR") letter as set
forth in the Illinois EPA's final decision dated August 6, 2003 (AR, p .59) and the denial of costs as in
excess of an approved budget as
set forth in the Illinois EPA's final decision dated September 8, 2003
(AR, p. 64), taking into account the underlying facts and law . As will be argued below, the facts in this
case are undisputed and clearly demonstrate that the decisions were appropriate and should be affirmed
.
2
IV . THE ILLINOIS EPA IS ENTITLED TO SUMMARY JUDGMENT
BASED ON THE FACTS AND LAW
A.
Relevant Facts
The facts in the Illinois EPA record supporting this motion are as follows :
On December 17, 2002, the Illinois EPA granted an NFR letter to Broadus Oil Corporation . (AR,
p
.1)
On December 19, 2002, Broadus Oil recorded the NFR letter
. (AR, p.25)
On May 13, 2003, Rapps Engineering, on behalf of Broadus Oil, submitted a High Priority
Corrective Action Plan Budget amendment . (AR, p. 37)
On August 6, 2003, Illinois EPA issued a determination letter rejecting the budget because
"[p]ursuant to 35 Ill . Adm. Code 732
.405(d), plans submitted to the Agency for review and approval,
rejection or modification in accordance with the procedures in Subpart E must be submitted prior to the
issuance of a No Further Remediation Letter
. This budget was received after the December 17, 2002
issuance of the No Further Remediation Letter
." (Emphasis original) (AR, p .59)
On September 8, 2003, Illinois EPA issued a determination letter denying costs that exceeded
approved budget amounts due to the August 6, 2003 rejection of the budget amendment
. Specifically,
$24,289.70
was denied because the costs exceeded the budget ; $19.02
were denied because the actual
amounts spent listed on receipts were different than the amount requested
; and $1 .26 was an adjustment
in the handling charges due to the denial of the $24,289
.70 in costs that exceeded the budget
. The total
denied was $24, 309 .98
. (AR, p.64)
3
B. Relevant Law
Section 732 .405
Plan Submittal and Review
a)
Prior to conducting any corrective action activities pursuant to this Subpart D, the owner or
operator shall submit to the Agency a Low Priority groundwater monitoring plan or a High
Priority corrective action plan satisfying the minimum requirements for such activities as set
forth in Section 732 .403 or 732 .404 of this Part, as applicable .
b)
In addition to the plans required in subsections (a), (e), and (f) of this Section and prior to
conducting any groundwater monitoring or corrective action activities, any owner or operator
intending to seek payment from the Fund shall submit to the Agency a groundwater monitoring
or corrective action budget plan with the corresponding groundwater monitoring or corrective
action plan
. Such budget plans shall include, but is not limited to, a copy of the eligibility and
deductibility determination of the OSFM and an estimate of all costs associated with the
development, implementation and completion of the applicable activities, excluding handling
charges
. Formulation of budget plans should be consistent with the eligible and ineligible costs
listed at Sections 732 .605 and 732 .606 of this Part and the maximum payment amounts set forth
in Subpart H of this Part . As part of the budget plan the Agency may require a comparison
between the costs of the proposed method of remediation and other methods of remediation .
c)
The Agency shall have the authority to review and approve, reject or require modification of any
plan or budget plan submitted pursuant to this Section in accordance with the procedures
contained in Subpart E of this Part
.
d)
Notwithstanding subsections (a), (b), (e), and (0 of this Section and except as provided at
Section 732 .407 of this Part, an owner or operator may proceed to conduct Low Priority
4
groundwater monitoring or High Priority corrective action activities in accordance with this
Subpart D prior to the submittal or approval of an otherwise required groundwater monitoring
plan or budget plan or corrective action plan or budget plan
. However, any such plan and budget
plan shall be submitted to the Agency for review and approval, rejection, or modification in
accordance with the procedures contained in Subpart E of this Part prior to payment for any
related costs or the issuance of a No Further Remediation Letter.
(Emphasis added)
BOARD NOTE
: Owners or operators proceeding under subsection (d) of this Section are
advised that they may not be entitled to full payment from the Fund . Furthermore, applications
for payment must be submitted no later than one year after the date the Agency issues a No
Further Remediation Letter . See Subpart F of this Part
.
e)
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,
reject, or require modifications of the amended plan or budget plan in accordance with the
procedures contained in Subpart E of this Part .
f)
If the Agency determines any approved corrective action plan has not achieved applicable
remediation objectives within a reasonable time, based upon the method of remediation and site
specific circumstances, the Agency may require the owner or operator to submit a revised
corrective action plan . If the owner or operator intends to . seek payment from the Fund, the
owner or operator must also submit a revised budget plan
. Any action by the Agency to require a
5
revised corrective action plan pursuant to this subsection (f) shall be subject to appeal to the
Board within 35 days after the Agency's final action in the manner provided for the review of
permit decisions in Section 40 of the Act.
BOARD NOTE
: Owners and operators are advised that the total payment from the Fund for all
groundwater monitoring plans and associated budget plans, and for all corrective action plans
and associated budget plans, submitted by an owner or operator must not exceed the amounts set
forth in Subpart H of this Part
.
C. No Genuine Issues Of Material Fact Exist
The question in this case is not one of fact, but rather of law
. Specifically, the question is
whether the Illinois EPA can consider a High Priority Corrective Action Plan Budget amendment after
the issuance of a No Further Remediation letter
. The determination of this issue, which is the stated
reason of the August 6, 2003 rejection letter, will control the payment of the majority of the costs denied
in the September 8, 2003 denial letter
. Section 732.405(d)
of the Board's regulations, 35111 . Adm
. Code
732.405(d) clearly states
: "However, any such plan and budget plan shall be submitted to the Agency for
review and approval, rejection, or modification in accordance with the procedures contained in Subpart E
of this Partprior to payment for any related costs or
the issuance ofa
No Further Remediation Letter ."
(Emphasis added)
. It is clear from the record that the Illinois EPA issued a NFR letter to Broadus Oil on
December 17, 2002
. Broadus Oil recorded this NFR letter on December 19, 2002
. Rapps Engineering,
on behalf of Broadus Oil, submitted the High Priority Corrective Action Plan Budget amendment on
May 13, 2003
. The record clearly shows that Broadus Oil submitted this High Priority Corrective Action
Plan Budget amendment after the issuance of a NFR letter
. The Illinois EPA is prohibited from
reviewing the High Priority Corrective Action Plan Budget amendment pursuant to Section 732
.405(d).
6
V. CONCLUSION
For the reasons stated herein, the Illinois EPA respectfully requests that the Board affirm the
Illinois EPA's decisions to reject the High Priority Corrective Action Plan Budget amendment in the
August 6, 2003 final decision and deny approval of reimbursement of the costs identified in Attachment
A of the September 8, 2003 final decision .
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Melanie A . Jarvis
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 4, 2006
This filing submitted on recycled paper.
7
