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 a MOTION FOR LEAVE TO FILE REPLY TO RESPONSE TO MOTION FOR SUMMARY
JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGEMENT and REPLY TO
PETITIONERS' RESPONSE TO MOTION FOR SUMMARY JUDGEMENT AND RESPONSE TO
PETITIONER'S CROSS-MOTION FOR SUMMARY JUDGMENT, copies of which are herewith served
upon you .
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
RECEIVEDCLERK'S
OFFICE
BEFORE THE POLLUTION CONTROL BOARD
2 8 2006
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
: September 26, 2006
This filing submitted on recycled paper .
STATE OF ILLINOIS
Pollution Control Board
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)
MOTION FOR LEAVE TO FILE REPLY TO RESPONSE TO MOTION FOR
SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGEMENT
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 Section 101
.500(e) of the Illinois Pollution Control Board's
("Board") procedural rules (35 Ill
. Adm. Code 101 .500(e)), hereby files a motion for leave to file
a reply to the Petitioner's Response and Memorandum Opposing IEPA's Motion for Summary
Judgment . In support of this motion for leave, the Illinois EPA provides as follows
.
1 .
The Illinois EPA filed it Motion for Summary Judgment on May 4, 2006
.
2 .
The Petitioner filed its Response on September 18, 2006 .
3 .
The issue in this case is one of first impression and material prejudice may result
if the Illinois EPA is not allowed to reply .
4.
The Petitioner's arguments require a full reply from the Illinois EPA so that the
Board can be fully briefed when making its decision on the case .
1
4
RECEIVEDCLERK'S
OFFICE
SEP 2 8 2006
STATE
OF ILLINOIS
Pollution Control Board
5 .
For the reasons stated herein, the Illinois EPA hereby respectfully requests that
the Hearing Officer allow the Illinois EPA to file a reply to the Petitioner's response to prevent
material prejudice.
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
: September 26, 2006
This filing submitted on recycled paper
.
2
RECLE R
EIIVI
ED
Sr,P 2
8
2006
BROADUS OIL,
STATE OF ILLINOIS
)
Petitioner,
Pollution Control
Board
)
v.
)
PCB 04-31
ILLINOIS ENVIRONMENTAL
)
PCB 05-43
PROTECTION AGENCY,
)
(UST Appeal)
Respondent .
)
(Consolidated)
REPLY TO PETITIONERS' RESPONSE TO MOTION FOR SUMMARY JUDGEMENT
AND RESPONSE TO PETITIONER'S CROSS-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 35'111 . Adm. Code 101 .500(e), hereby respectfully responds
to the Response to Motion for Summary Judgment and Cross-Motion for Summary Judgment
("Petitioners' response") filed by the Petitioners, Broadus Oil
. In response to the Petitioners'
response and cross-motion for summary judgment, the Illinois EPA states as follows
:
I. INTRODUCTION
The Petitioner argues in its response that the Illinois EPA completely misconstrued the
language of 35 Ill . Adm. Code 732.405(d) as prohibiting it from approving Petitioner's May 12,
2003 Budget Amendment (received by the Illinois EPA on July 24, 2003) . The Illinois EPA
strongly disagrees with the Petitioner's assertion .
For the reasons that will be explained below, the Illinois EPA's decision comported with
the law and facts as presented, and the Illinois Pollution Control Board ("Board") should affirm
the Illinois EPA's decision.
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
1
11. APPLICABLE LAW
415 ILCS 5/57 .10
Professional Engineer or Professions Geologist certification
;
presumptions against liability
.
(a) Within 120 days of the Agency's receipt of a corrective action completion
report, the Agency shall issue to the owner or operator a "no further remediation
letter" unless the Agency has requested a modification, issued a rejection under
subsection (d) of this Section, or the report has been rejected by operation of law
.
(b) By certifying such a statement, a Licensed Professional Engineer or Licensed
Professional Geologist shall in no way be liable thereon, unless the engineer or
geologist gave such certification despite his or her actual knowledge that the
performed measures were not in compliance with applicable statutory or regulatory
requirements or any plan submitted to the Agency
.
(c) The Agency's issuance of a no further remediation letter shall signify, based
on the certification of the Licensed Professional Engineer, that
:
(1) all statutory and regulatory corrective action requirements applicable to
the occurrence have been complied with ;
(2) all corrective action concerning the remediation of the occurrence has been
completed
; and
(3) no further corrective action concerning the occurrence is necessary for the
protection of human health, safety and the environment .
This subsection (c) does not apply to off-site contamination related to the occurrence
that has not been remediated due to denial of access to the off-site property
.
(d) The no further remediation letter issued under this Section shall apply in favor
of the following parties :
(1) The owner or operator to whom the letter was issued
.
(2) Any parent corporation or subsidiary of such owner or operator
.
(3) Any co-owner or co-operator, either by joint tenancy, right-of-
survivorship, or any other party sharing a legal relationship with the owner or
operator to whom the letter is issued.
(4) Any holder of a beneficial interest of a land trust or inter vivos trust
whether revocable or irrevocable
.
(5) Any mortgagee or trustee of a deed of trust of such owner or operator
.
(6) Any successor-in-interest of such owner or operator
.
(7) Any transferee of such owner or operator whether the transfer was by sale,
bankruptcy proceeding, partition, dissolution of marriage, settlement or
adjudication of any civil action, charitable gift, or bequest
.
(8) Any heir or devisee or such owner or operator
.
(9) An owner of a parcel of real property to the extent that the no further
remediation letter under subsection (c) of this Section applies to the occurrence on
that parcel
.
2
(e) If the Agency notifies the owner or operator that the "no further remediation"
letter has been rejected, the grounds for such rejection shall be described in the notice
.
Such a decision shall be a final determination which may be appealed by the owner or
operator
.
(f) The Board shall adopt rules setting forth the criteria under which the Agency
may require an owner or operator to conduct further investigation or remediation
related to a release for which a no further remediation letter has been issued
.
(g) Holders of security interests in sites subject to the requirements of this Title
XVI shall be entitled to the same protections and subject to the same responsibilities
provided under general regulations promulgated under Subtitle I of the Hazardous
and Solid Waste Amendments of 1984
(P.L.
98-616) of the Resource Conservation
and Recovery Act of 1976 (P.L
. 94-580). (Emphasis added)
35 111. Adm. Code 732
.702 Contents of a No Further Remediation Letter
A No Further Remediation Letter issued pursuant to this Part shall include all of the following
:
a)
An acknowledgment that the requirements of the applicable report were satisfied
;
b)
A description of the location of the affected property by adequate legal
description or by reference to a plat showing its boundaries, or, for purposes of
Section 732
.703(d) of this Part, other means sufficient to identify site location
with particularity;
c)
A statement that the remediation objectives were determined in accordance with
35 Ill . Adm
. Code 742, and the identification of any land use limitation, as
applicable, required by 35 111
. Adm
. Code 742 as a condition of the remediation
objectives ;
d)
A statement that the Agency's issuance of the No Further Remediation Letter
signifies that :
1)
All
corrective action requirements
under Title XVI of the Act and this
Part
applicable to the occurrence have been complied with
;
2)
All corrective action concerning the remediation of the occurrence has
been completed
; and
3)
Nofurther
corrective action concerning the occurrence is necessary for
the protection of human health, safety and the environment
[415 ILCS
5/57.10(c)(1)-(3)),
or, if the No Further Remediation Letter is issued
pursuant to Section 732
.411(e) of this Part, that the owner or operator has
demonstrated to the Agency's satisfaction an inability to obtain access to
an off-site property despite best efforts and therefore is not required to
3
J)
perform corrective action on the off-site property in order to satisfy the
corrective action requirements of this Part, but is not relieved of
responsibility to clean up portions of the release that have migrated off-
site;
e)
The prohibition under Section 732
.703(e) of this Part against the use of any site in
a manner inconsistent with any applicable land use limitation, without additional
appropriate remedial activities ;
f)
A description of any approved preventive, engineering, and institutional controls
identified in the plan or report and notification that failure to manage the controls
in full compliance with the terms of the plan or report may result in voidance of
the No Further Remediation Letter
;
g)
The recording obligations pursuant to Section 732
.703 of this Part;
h)
The opportunity to request a change in the recorded land use pursuant to Section
732.703(e) of this Part ;
Notification that further information regarding the site can be obtained from the
Agency through a request under the Freedom of Information Act [5 ILCS 140]
;
and
Any other provisions agreed to by the Agency and the owner or operator
.
(Emphasis added)
III
. THE ILLINOIS EPA CANNOT REVIEW A BUDGET AMENDMENT AFTER THE
ISSUANCE OF A NO FURTHER REMEDIATION LETTER
Pursuant to the Act and the regulations promulgated thereunder, the Illinois EPA is
prohibited from reviewing a budget amendment after the issuance of a No Further Remediation
("NFR") letter
. Even though Petitioner argues that the Illinois EPA position is in opposition to
the Act and Regulations when they are read as a whole and that Section 732
.405(d) does not
apply to their submittal, the Illinois EPA respectfully disagrees
. 35 Ill . Adm . Code 732 .702(d)
discusses, what a NFR letter signifies
. Section 732
.702(d) quotes the statutory language of
Section 57
.10(c)(1)-(3).
These provisions state that the NFR letter signifies that "[a]ll statutory
and regulatory corrective action requirements applicable to the occurrence have been complied
with."
This means that the provisions of 415 ILCS 5/57
.7 have to be finished and complied with
prior to the issuance of a NFR letter
. If they are not finished a NFR letter cannot be issued
.
4
Section 57 .7 includes all of the provisions relating to the approval of budgets and states that the
budget needs to be submitted if the owner or operator is seeking reimbursement from the fund
and should include an accounting of all costs associated with the implementation and completion
of the corrective action plan
. Therefore, when reading the Act and regulations as a whole, it is
clear that the Act requires that the budget be submitted prior to the issuance of a NFR letter
.
Section 732
.405(d) merely reiterates what the Act already requires
; all plans and budgets need to
be submitted to the Illinois EPA prior to the issuance of a NFR letter
. The budget in this case
cannot be reviewed by the Illinois EPA due to the statutory and regulatory mandates
. Because
the budget amendment was not reviewed, it was not approved and therefore the reimbursement
package could not be paid because there was not a corresponding approved budget
. The Illinois
EPA, having not reviewed the budget amendment, does not concede whether if reviewed the
budget amendment would be approved
.
VI. CONCLUSION
For the reasons stated herein, as well as those previously made by the Illinois EPA, the
Illinois EPA respectfully requests that the Board affirm its 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: September 26, 2006
This filing submitted on recycled paper
.
5
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on September 26, 2006 I served true and
correct copies of a MOTION FOR LEAVE TO FILE REPLY TO RESPONSE TO MOTION FOR
SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGEMENT and REPLY TO
PETITIONERS' RESPONSE TO MOTION FOR SUMMARY JUDGEMENT AND RESPONSE TO
PETITIONER'S CROSS-MOTION FOR SUMMARY JUDGMENT, 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
.
