mes G. Richardson
Special Assistant Attorney General
Dated : November 20, 2006
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
PLEASE TAKE NOTICE that I have today caused to be filed a MOTION FOR SUMMARY
JUDGMENT with the Illinois Pollution Control Board, copies of which are served upon you
.
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RERK,EI
VIED
VILLAGE OF WILMETTE
)
Petitioner,
)
v.
)
PCB 07-27
Appeal)
h''.-V
2 21006
STATE OF ILLINOIS
Pollution Control Board
(UST
ILLINOIS ENVIRONMENTAL PROTECTION )
AGENCY,
)
Respondent.
)
NOTICE
Dorothy Gunn
Bradley P
. Halloran
Mary Beth Cyze
Clerk
Hearing Officer
Village of Wilmette
Illinois Pollution Control Board
Illinois Pollution Control
1200 Wilmette Avenue
100 West Randolph Street,
Board
Wilmette, Illinois 60091
Suite 11-500
100 West Randolph Street,
Chicago, Illinois 60601-3218
Suite 11-500
Chicago, Illinois 60601
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
VILLAGE OF WILMETTE,
)
Petitioner,
)
v.
)
PCB 07-27
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent
.
)
MOTION FOR SUMMARY JUDGMENT
NOW COMES the Respondent, the Illinois Environmental Protection Agency ("Illinois EPA"),
by one of its attorneys, James G
. Richardson, 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, Village of Wilmette ("Wilmette"), 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
:
1
. 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(1), grants
RECEIV
CLERK'S OFFICE
ED
NO V
2 2 2006
Pollution
STATE OF
Control
ILLINOIS
Board
1
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
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 ("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 .
IL BURDEN OF PROOF
Pursuant to Section 105 .112(a) of the Board's procedural rules, 35111 . Adm. Code 105 .112(a), the
burden of proof shall he 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 September 14, 2006 (AR, p
. 1) taking into account the
underlying facts and law
. As will be argued below, the facts in this case are undisputed and clearly
2
demonstrate that the decision was appropriate and should be affirmed .
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 October 24, 2005, the Illinois EPA issued aNFR letter to Wilmette . (AR, p .27) Revised NFR
letters were issued to Wilmette on November 29, 2005 and June 16, 2006 . (AR, p . 47)
On July 7, 2006, Wilmette recorded the NFR letter . (AR, p. 44)
On August 4, 2006, MACTEC Engineering and Consulting, Inc ., on behalf of Wilmette,
submitted a High Priority Corrective Action Plan Budget amendment
. (AR, p. 6)
On September 14, 2006, the Illinois EPA issued a determination letter rejecting the budget
because "[t]he budget was submitted after the issuance of a No Further Remediation Letter. Pursuant to
Section 57.6(a) of the Act and 35 Ill . Adm
. Code 732 .405(d), any corrective action plan or budget must
be submitted to the Illinois EPA for review and approval, rejection, or modification in accordance with
the procedures contained in Subpart E of 35 Ill
. Adm. Code 732 prior to the issuance of a No Further
Remediation Letter ." (AR, p. 1)
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
3
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 (f) of this Section and except as provided at
Section 732.407
of this Part, an owner or operator may proceed to conduct Low Priority
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)
4
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 ofremediation 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
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
5
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 OfMaterial
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 . 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 Part prior to payment for any related costs or the issuance of a No
Further
Remediation Letter
." (Emphasis added) . It is clear from the record that the Illinois EPA issued
W ilmette a NFR letter on October 24, 2005 and revised NFR letters on November 29, 2005 and June 16,
2006 . Wilmette recorded its NFR letter on July 7, 2006 . MACTEC Engineering and Consulting, Inc .,
on behalf of Wilmette, submitted a High Priority Corrective Action Plan Budget amendment on August
4, 2006
. The record clearly shows that Wilmette 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 decision to reject the High Priority Corrective Action Plan Budget amendment in the
September 14, 2006 final decision .
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
esp
4t
f
en
Ja es G . Richardson
Assistant Counsel
SpecialAssistant 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
: November 20, 2006
This filing submitted on recycled paper .
7
dson
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)
CERTIFICATE OF SERVICE
1, the undersigned attorney at law, hereby certify that on November 20, 20061 served true and
correct copies of a MOTION FOR SUMMARY JUDGMENT by first class mail of the United States
Postal Service upon the persons as follows
:
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Dorothy Gunn
Bradley Halloran
Mary Beth Cyze
Illinois Pollution Control Board
Hearing Officer
Village of Wilmette
100 West Randolph Street, Suite 11-500
Illinois Pollution Control
1200 Wilmette
Chicago, Illinois 60601-3218
Board
Avenue
100 West Randolph Street,
Wilmette, Illinois
Suite 11-500
60091
Chicago, Illinois 60601
