OR IGINAI
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
KNAPP OIL COMPANY,
)
DON'S 66,
)
Petitioner,
)
v.
)
PCB 06-52
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent .
)
NOTICE OF FILING
To:
Melanie A. Jarvis
Carol Webb, Hearing Officer
Assistant Counsel
Illinois Pollution Control Board
Division of Legal Counsel
1021 North Grand Avenue East
1021 North Grand Avenue, East
P.O
. Box 19274
P.O. Box 19276
Springfield, IL 62794-9274
Springfield, IL 62794-9276
PLEASE TAKE NOTICE that on December 7, 2006, there was filed with the Clerk of
the Illinois Pollution Control Board of the State of Illinois, an original, executed copy of the
APPEARANCE, PETITIONER'S MOTION FOR LEAVE TO SUPPLEMENT
ADMINISTRATIVE RECORD, PETITIONER'S SUPPLEMENT TO THE
ADMINISTRATIVE RECORD, and PETITIONER'S RESPONSE IN OPPOSITION TO
MOTION FOR SUMMARY JUDGMENT, copies of which are herewith served upon you .
Dated : December 7, 2006
Respectfully submitted,
Carolyn S . Hesse
David T. Ballard
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
Knapp Oil Company, Don's 66
By: /
_
One of Its Attorneys
IThis filing submitted on recycled paper as defined in 35 III . Adm . code 101 .2021
RECE
S OFFICE
I
VED
DEC 0
?
2006
Pollution
STATE OF
Control
ILLINOIS
Board
RECEIVEDCLERK'S
OFFICE
I h
!
4
)OF OF SERVICE,
DEC
l
2016
.
STATE OF ILLINOIS
I, the undersigned, a non-attorney, certify, under penalties pursuant P
tR,HqL~~jq-y"'ro
that I caused the attached NOTICE OF FILING and APPEARANCE, PETITIONER'S
MOTION FOR LEAVE TO SUPPLEMENT ADMINISTRATIVE RECORD,
PETITIONER'S SUPPLEMENT TO THE
ADMINISTRATIVE RECORD, and
PETITIONER'S RESPONSE IN OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT, to be served via U.S. Mail, this 7th day of December, 2006, upon the following
:
Melanie A
. Jarvis
Carol Webb, Hearing Officer
Assistant Counsel
Illinois Pollution Control Board
Division of Legal Counsel
1021 North Grand Avenue East
1021 North Grand Avenue, East
P.O. Box 19274
P.O. Box 19276
Springfield, IL 62794-9274
Springfield, IL 62794-9276
Barb ra E. Szynalik
CHDS01 DTB 3691]9v[
(This filing submitted on recycled paper as defined in 35 III . Adm . code 101 .2021
2
BEFORE THE POi.RQ "'I&OL BOARD
OF THE STATE OF ILLINOIS
CHDSOI DTB 368706v 1
APPEARANCE
The undersigned hereby enters an APPEARANCE on behalf of the Petitioner, Knapp
Oil Company, Don's 66, in this matter:
Petitioner :
Knapp Oil Company, Don's 66
Attorneys :
David T. Ballard
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
Phone : (312) 357-1313
Respectfully submitted,
Knapp Oil Company / Don's 66
By:
~,
-- _
One of Its Attorneys
DATED
: December 7, 2006
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
Phone:
(312) 357-1313
KNAPP OIL COMPANY,
)
DON'S 66,
)
flCERK'SOVED
Petitioner,
)
DEC 0) 2006
v.
) PCB 06-52
STATE OF ILLINOIS
ILLINOIS ENVIRONMENTAL
)
(UST
Appeal)
Pollution Control Board
PROTECTION AGENCY,
)
Respondent .
)
PETITIONER'S MOTION FOR LEAVE TO
SUPPLEMENT ADMINISTRATIVE RECORD
Petitioner, Knapp Oil Company ("Knapp"), by its counsel Barnes & Thornburg, LLP, and
pursuant to 35 Ill . Adm . Code 101
.508 and 105 .212, moves the Board for leave to file a
supplement to the Administrative Record filed previously
. In support of its Motion, Knapp states
as follows :
1 .
On October 17, 2005, Knapp filed a Petition for Review of Illinois Environmental
Protection Agency ("IEPA") Decision based on IEPA's rejection of a High Priority Corrective
Action Plan and Budget on September 21, 2005
.
2.
On December 29, 2005, the Illinois Enivronmental Protection Agency ("IEPA")
mailed the filing of the Administrative Record in this case .
3 .
On September 21, 2006, IEPA filed a Motion for Summary Judgment, seeking
that the Board affirm IEPA's decision
. The Agency's Motion references and relies on
documents that were not included in the Record that the Agency filed previously
.
4.
On September 22, 2006, IEPA filed a Motion for Leave to Supplement
Administrative Record to include the documents that IEPA cited in its Motion for Summary
IThis filing submitted on recycled paper as defined in 35 111
. Adm . Code 101 .2021
OR
IGINJAI
BEFORE THE POLLUTION CONTROL BOARD
RECEIVED
CLERK'S OFFICE
OF THE STATE OF ILLINOIS
DEC 0 7 ?_006
KNAPP OIL COMPANY,
)
DON'S
66,
STATE OF ILLINOIS
)
Pollution Control board
Petitioner,
)
v.
) PCB 06-52
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent
.
)
Judgment . Knapp did not object to IEPA's Motion for Leave to Supplement Administrative
Record.
5.
Through the course of reviewing IEPA's Motion for Summary Judgment and
assessing its response to IEPA's Motion, Knapp discovered several documents that were
submitted to IEPA by Knapp and correspondence from IEPA to Knapp that were not included in
the Administrative Record that IEPA filed in 2005 or in the Supplemental Administrative Record
IEPA filed more recently .
6.
According to the Board's procedural rules at 35 Ill . Adm . Code 105 .212 the
documents that Knapp is seeking to have included in the Record for this appeal must be included
in the record. Section 105 .212 states:
a)
The Agency must file its entire record of its decision with the Clerk in
accordance with Section 105 .116 of this Part.
The record must include :
1)
Any permit application or other request that resulted in the
Agency's final decision ;
2) Correspondence with the petitioner and any documents or
materials submitted by the petitioner to the Agency related to the
permit application
;
3)
The permit denial letter that conforms to the requirements of
Section 39(a) of the Act or the issued permit or other Agency final
decision;
and
4)
Any other information the Agency relied upon in making its final
decision.
b)
7.
The documents that Knapp seeks to have included in the Record consist of
:
A letter from Knapp's consultant dated February 14, 2002 responding to the
Agency's comments regarding the Knapp site and forwarding an amended Budget
(P 1-2);
This filing submitted on recycled paper as defined in 35 III
. Adm . Code 101 .202
2
The February 14, 2002 amended Budget for Knapp Oil (P 3-37)
;
A letter from IEPA dated May 15, 2002 to Knapp regarding the February 14,
2002 Budget (P 38-40)
;
A letter from Knapp's consultant dated October 4, 2004 forwarding a Site
Assessment Report and Corrective Action Plan for Knapp Oil (P 41)
;
The Site Assessment Report and Corrective Action Plan for Knapp Oil dated
October 2004 (P 42-347)
; and
The Application to the OSFM to amend the eligibility determination
. (P 348-352)
A copy of the Petitioner's Supplement to the Administrative Record is filed concurrently
with this Motion
.
8 .
Because these documents are within the category of "correspondence with the
petitioner and any documents or materials submitted by the petitioner to the Agency related to
the permit application," or as relevant in this case, the CAP and Budget that are subject to this
appeal, they are documents that the Agency should have included in the Administrative Record
when it was originally filed in 2005 .
9 .
The omission of the documents was not due to any bad faith of Knapp, but rather
was only recently discovered to have been excluded from the original Administrative Record and
the Supplemental Administrative Record
.
10.
No hardship to IEPA should occur due to the filing of the Supplemental
Administrative Record attached to this Motion, as all of the documents, except perhaps the letter
to the OSFM, were submitted to IEPA before this appeal was filed and are documents the IEPA
already had in its possession
. The inclusion of these documents should be allowed to complete
the Administrative Record before the Board
.
11 .
Failure to include the documents would prejudice Petitioner because those
documents include information that the Agency had in its possession and should have reviewed
[This filing submitted on recycled paper as defined in
35 III . Adm. Code 101 .2021
3
and considered when making its decisions that are the subject of this appeal
. The Agency should
not be allowed to pick and choose only the information that the Agency wants to consider when
making a decision and the Agency should not be permitted to disregard relevant, more recent
information that contradicts older information that the Agency cited as the basis of its decisions
.
In this case, IEPA argued that in 1990, Knapp reported that only a gasoline tank had a release,
citing to documents IEPA included in the Supplemental Administrative Record
; yet IEPA chose
to ignore a report in its files dated October 2004 that states that, "contamination found during the
site assessment indicates that all three tanks had contributed to the release
." P 49
. IEPA also
chose to ignore the fact that the October 2004 report contained data showing contamination with
chemicals that indicate the presence of diesel fuel (P 59-61) and the OSFM determination that
the diesel tank at issue here was eligible for reimbursement from the Underground Storage Tank
Trust Fund
. P 346-347
. The samples that documented the release were collected in 2002 after
the dates of the documents the Agency cited to support its arguments that the diesel tank did not
have a release . P59-61 .
12 .
The documents that Knapp wishes to file to supplement the Record should have
been included in the Adminstrative Record when it was originally filed in 2005
. The Agency
should be compelled to supplement the Record with all documents that were in its possession
related to this site at the time of its decision on September 21, 2005 that led to this appeal
.
13 .
Knapp also respectfully requests that it be allowed to file a reduced number of
copies of its proposed supplemental record with the Board and is concurrently filing a total of
five copies with the Board
.
(This filing submitted on recycled paper as defined in 35 III
. Adm
. Code 101.2021
4
WHEREFORE, Knapp Oil Company requests that the Board grant this Motion, grant
Knapp leave to file a supplement to Administrative Record, and grant all relief it deems fair and
just.
Carolyn S . Hesse
David T. Ballard
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
CHD501 UM 368474vI
This filing submitted on recycled paper as defined in 35 III . Adm . Code 101 .202
5
By:
Respectfully submitted,
Knapp Oil Compan , Don's 66
ORIGINAL
BEFORE THE POLLUTION CONTROL BOARD
PETITIONER'S RESPONSE IN OPPOSITION TO
MOTION FOR SUMMARY JUDGMENT
Petitioner, Knapp Oil Company ("Knapp"), by its counsel Barnes & Thornburg, LLP, and
pursuant to 35 Ill . Adm. Code 101 .516, files its Response in Opposition to the Illinois
Environmental Protection Agency's ("IEPA" or the "Agency") Motion for Summary Judgment .
In support of its Response, Knapp states as follows
:
INTRODUCTION
Summary judgment is not appropriate on either of the bases rr d in IEPA's Motion.
First, the Agency's motion for summary judgment should be denied as to t
issue of whether a
diesel underground storage tank ("UST")
at the property at issue is eligib e for reimbursement
under a high priority corrective action plan and budget submitted by K app . As the record
shows, the Office of the State Fire Marshall ("OSFM") determined that the
esel UST is eligible
for reimbursement . IEPA argues that it determined the diesel UST is not eligible for
reimbursement because Knapp did not report a release from the diesel UST to the Illinois
Emergency Management Agency
("IEMA") . This argument is wrong, as SFM has exclusive
IThis filing submitted on recycled paper as defined in 35 I11. Adm . Code 101 .2021
KNAPP OIL COMPANY,
OF THE STATE) OF ILLINOIS
RECEIVED
CLFRK'S OFFICE
DON'S 66,
)
cac_
o
?
2096
Petitioner,
)
STATE OF ILLINOIS
v.
) PCB 06-52
Pollution Control Board
ILLINOIS ENVIRONMENTAL
)
(UST Appeal)
PROTECTION AGENCY,
)
Respondent .
)
jurisdiction under the Environmental Protection Act ("Act") at Section 57.9(c)
to make eligibility
determinations for USTs .
In addition, IEPA seeks summary judgment on the issue that an additional investigation
should be conducted on the properties west of the contaminated property
. A material issue of
fact, however, exists as to whether such an investigation is necessary, as required under 35 111
.
Adm. Code 732 .404(e)
. Because an issue of fact exists, summary judgment should be denied
.
BACKGROUND FACTS
1 .
Knapp is the owner of underground storage tanks ("USTs") at a former gasoline
service station known as "Don's 66," located at 700 East Main Street, Olney, Richland County,
Illinois (the "Station")
. There are three USTs at the Station, two of which stored gasoline and
one that stored diesel .'
2 .
On July 19, 1990, Knapp notified IEMA that it found gasoline in the monitoring
well next to Knapp's Super No Lead tank located at the Station
. SAR 4
.2 Knapp originally
believed that only one gasoline tank leaked
.
3 .
Both gasoline tanks and the diesel tank were relined and upgraded on
September 7, 1990 . AR 13.
4.
On June 28, 1995, Knapp submitted a Site Classification Work Plan and Budget
to the IEPA. SAR 5
. That Plan and Budget stated that the "following tanks are located on the
Station's property
: one (1) 6,000-gallon gasoline UST, one (1) 8,000-gallon gasoline UST, and
one (1) 1,000-gallon diesel fuel UST
." SAR 12
. The Plan and Budget also reported that on July
1
Hereinafter, the 1,000-gallon diesel fuel tank will be referenced as the "Diesel UST" or "Diesel Tank
."
2
"SAR _" means [EPA's Supplemental Administrative Record, "AR _" means the original Administrative
Record, and "P _" means the Supplemental Administrative Record submitted by Knapp that is at issue in Knapp's
Motion for Leave to Supplement Administrative Record
.
(This filing submitted on recycled paper as defined in 35 111
. Adm . Code 101
.2021
2
3, 1990, "gasoline was found in a monitoring well next to one of the gasoline UST's . . ." SAR
12
. Because it believed at that time that only gasoline had been released, Knapp proposed testing
only for benzene, toluene, ethylbenzene and xylene (BTEX), indicators of the presence of
gasoline . SAR 12, 18.
5 . On June 26, 1995, Knapp submitted an Underground Storage Tank Fund
Eligibility and Deductibility Application to OSFM . SAR 66 . This Application indicated that
there were three USTs at the Station, but that only one of the USTs storing gasoline had a
release. SAR 67 .
6.
On July 25, 1995, OSFM notified Knapp that the 6,000-gallon gasoline tank was
eligible for the payment of costs from the Underground Storage Tank Fund . SAR 63 . The
July 25, 1995 OSFM eligibility determination referred to tank number 3, the Diesel Tank and
stated as follows :
Your application indicates that there has not been a release from
these tanks . You may be eligible to seek payment of corrective
action costs associated with these tanks if it is determined that
there has been release from one or more of these tanks . Once it is
determined that there has been release from one or more of these
tanks, you may submit a separate application for an eligibility
determination to seek corrective action costs associated with
this/these tanks.
SAR 65.
7
.
On September 13, 2000, Knapp submitted a Site Classification Completion
Report. SAR 71-147 . At that time, Knapp still believed that only one of the gasoline tanks
leaked. SAR 78 . Hence, samples were analyzed only for BTEX, that indicated the presence of
gasoline
. SAR 126, 128-130 .
IThis filing submitted on recycled paper as defined in 35 I11 . Adm . Code 101 .2021
3
8 .
On July 27, 2001, Knapp submitted a Site Assessment Report and Corrective
Action Plan (the "2001 CAP") . SAR 148-294. In the 2001 CAP, Knapp stated that there may
have been a release in the Diesel Tank
. This report states :
While prior reporting indicated that tank numbers 1 and 3 did not
contribute to the release, contamination found during the site
assessment beneath the pump island and at the east property line
indicates that all three tanks may have contributed to the release .
SAR 155.
9.
By letter dated November 16, 2001, the Agency rejected the 2001 CAP and
required Knapp to perform additional investigation (AR 11, SAR 296-305), including the
investigation of whether the Diesel Tank leaked . SAR 299 .
10. On February 14, 2002, CW3M
on behalf of Knapp responded to various issues
IEPA raised on November 16, 2001, and submitted a revised CAP and budget to get paid for
costs already incurred to investigate BTEX .3 P 1-37
. The February 14, 2002 submission also
explained that it was only during the subsequent site assessment that Knapp discovered that the
Diesel Tank may have contributed to contamination at the Station . P 1-37.
11 . On March 7, 2002, Knapp submitted an Amended Eligibility and Deductibility
application which changed the "date" registered for all three tanks at the property and listed in
paragraph 8 that there have been releases from all three tanks on the property
. P 348
. This was
done in accordance with the instructions from the OSFM to submit an "application for an
eligibility determination to seek corrective action costs associated with this/these tanks
." SAR
65 .
3 Knapp still has not been reimbursed for these costs.
This filing submitted on recycled paper as defined in 35 111 . Adm . Code 101 .202
4
12 . On March 26, 2002, OSFM issued an eligibility and deductibility determination
that the Diesel Tank, as well as both of the gasoline tanks at the Station, were eligible for
reimbursement from the Underground Storage Tank Fund . AR 303-304. The releases from the
gasoline and diesel tanks likely occurred around the same time because all three tanks were
upgraded and relined at the same time . OSFM stated that its determination was "the final
decision as it relates to your eligibility and deductibility ." AR 304. A copy of the OSFM
determination was included in Appendix G of the Site Assessment Report and Corrective Action
Plan dated August 2005 4 AR 304-305 . The OSFM determination was also included in
documents submitted to IEPA earlier.
13 .
The budget for the site investigation work was rejected by the Agency on May 15,
2002 . P 38-40.
14. Another Site Assessment Report and Corrective Action Plan to address both
gasoline and diesel contamination were submitted on behalf of Knapp to IEPA on October 4,
2004
. (the "2004 CAP") . P 41-347. In the 2004 CAP, the release status of the Diesel Tank was
listed as "unknown" and the report stated, while prior reporting indicated that tank numbers 1
and 3 did not contribute to the release, a review of the history of the site, interviews with the tank
owner and operator, and contamination found during the site assessment indicated that all three
tanks had contributed to the release . P 49 . The 2004 CAP included data from samples collected
on February 20, 2002 and August 27, 2002 that were analyzed for polynuclear aromatic
hydrocarbons (PAH) which are diesel fuel indicators, and polynuclear aromatic hydrocarbons
4
Note that the Agency's denial of the August 2005 Corrective Action Plan and its associated Budget are the subject
of this Appeal .
This filing submitted on recycled paper as defined in 35 III . Adm . Code 101 .202
5
were found . P 57, 59-61 . These actions are consistent with IEPA's instructions in November of
2001 to investigate the Diesel Tank further
. SAR 299.
15 .
On January 19, 2005, IEPA rejected the 2004 CAP because it included removal of
the Diesel Tank and remediation of the diesel contamination (AR 316) and requested an affidavit
from Knapp identifying specific off-site property that required access and for which access had
been denied. AR 317
. IEPA also requested that Knapp request access from the Elliot Avenue
Highway Authority to investigate the right-of-way area on the west side of the street
.
Id.
If this
was not possible, IEPA stated that "additional delineation beyond the Bank of Olney property
will be required for verification that soil or groundwater contamination does not extend
downgradient beyond the Bank of Olney property ." Id
. At that time, the Bank had not granted
access to collect samples on its property . AR 26-27 .
16 . On August 2, 2005, Knapp submitted a High Priority Corrective Act Plan and
associated budget (the "2005 CAP and Budget") to IEPA and responded to IEPA's requests for
information in the Agency's January 19, 2005 letter. AR 1-304. Knapp provided information
showing that additional investigation activities were not necessary to determine the full extent of
the soil or groundwater contamination
. AR
2. As to the requested affidavit, Knapp stated that it
would be included in the Corrective Action Completion Report
("CACR"), as was required by
the applicable regulations . AR 1-2. Knapp also stated that "If the Bank changes its mind and
permits access prior to the preparation of the CACR, the owner/operator reserves the right to
investigate and if contamination is found, remediate the contamination ." AR 2. Knapp also
stated that because of the urban setting and numerous utilities, an investigation of the right-of-
way was not practical. Id. Moreover, Knapp stated that
:
The properties west of the Bank of Olney property do not appear to
be downgradient, as the groundwater flow direction appears to be
This filing submitted on recycled paper as defined in 35 111 . Adm . Code 101 .202
6
north-northwest . Modeling was also performed which indicates
that the contamination would not reach the Bank of Olney
property, let alone across and beyond it . Investigation well beyond
the modeled distances would exceed the minimum requirements of
the Act .
Id.
17
. The 2005 CAP and Budget included costs related to removing the Diesel Tank in
addition to the gasoline tanks and to remediate the release from all the tanks. AR 1-304. The
letter regarding the 2005 CAP and Budget stated that the OSFM made a determination that the
Diesel Tank was eligible for reimbursement and the 2005 CAP and Budget included a copy of
the OSFM letter stating that the Diesel Tank is eligible . AR 1, 303-304 . The 2005 CAP and
Budget also explained why the Diesel Tank was not initially included in the September 13, 2000
Site Classification Completion Report :
The information that the Diesel Tank had to be upgraded when the
gasoline tanks were upgraded, and the product noted in the
observation well had been assumed to be gasoline, but may have
been diesel was not known by CW3M until after the Site
Classification Completion Report was submitted . The presence of
diesel does not change the High Priority designation, merely
refines the release from them .
The information that resulted in the Diesel Tank being added
appeared in the CAP submitted in February of 2002, and was based
on interviews and a review of the OSFM records for the site .
AR 1 .
18. The 2005 CAP and Budget contains data from numerous samples collected on
August 27, 2002 in which indicator parameters for diesel exceeded their respective remedial
objectives
("ROs")
.
For example, groundwater samples from MW-D exceeded ROs for
benzo(a)anthracene, benzo(a)pyrene, benzo(b)flouranthene and benzo(k)flouranthene (AR 23) ;
This filing submitted on recycled paper as defined in 35 III . Adm . Code 101 .202
7
benzo-(a)pyrene exceeded ROs in soil samples collected from SB5a-3, SBIa-5, SB11-3 (AR 24)
and from SB4a-3 (AR 25) .
19. On September 21, 2005, IEPA issued a letter to Knapp rejecting the entire 2005
CAP and Budget . AR 323-330 . IEPA rejected the 2005 CAP and Budget as related to the Diesel
Tank based on the following statement :
Incident no . 901831 was reported as a result of free product
observed in an observation well located in the gasoline tank basin
.
The substance reported released was gasoline only . The release
was classified as High Priority based on the elevated concentration
of gasoline indicator contaminants (BTEX) . Site Classification
was approved by the Agency on January 3, 2001, based on
information supplied in the Site Classification Completion report
received by the Agency on September 14, 2000 . This report states
that there was no release from the Diesel Tank, and diesel indicator
contaminants were not analyzed for during site classification
.
Therefore, any activity associated with the delineation and
remediation of diesel fuel indicator contaminants exceed the
minimum requirements to comply with Title XVI of the Act . In
addition, these costs are not reimbursable pursuant to 35 IAC
Section 732
.606(o)
.
AR 325 . This letter ignored the information provided in 2004 and 2005 .
20 . On October 17, 2005, Knapp filed a Petition for Review of Illinois Environmental
Protection Agency Decision based on IEPA's rejection of the 2005 CAP and Budget on
September 21, 2005 .
This filing submitted on recycled paper as defined in 35 Ill . Adm . Code 101 .202
8
ARGUMENT
1.
Standard for summary judgment
.
35 Ill . Adm. Code 101 .516(b) provides :
If the record, including pleadings, depositions and admissions on
file, together with any affidavits, shows that there is no genuine
issue of material fact, and that the moving party is entitled to
judgment as a matter of law, the Board will enter summary
judgment .
"Because summary judgment is a drastic means of disposing of litigation, a court must exercise
extraordinary diligence in reviewing the record so as not to preempt a party's right to fully
present the factual basis for its claim
." Northern Illinois Emergency Physicians v. Landau,
Omahana & Kopka, Ltd.,
216 Ill. 2d 294, 205-206, 837 N .E.2d 99, 106 (Ill. 2005). Moreover,
"[a]t the summary judgment stage, plaintiffs are not required to prove their cases
." Id. In
addition, summary judgment should only be granted "when the right of the moving party is clear
and free from doubt." Id. "In ruling upon a motion for summary judgment, a court has a duty to
construe the evidence strictly against the movant and liberally in favor of the nonmovant
."
Chatham Foot Specialists, P .C. v. Health Care Serv . Corp., 216 Ill
. 2d 366, 376, 837 N .E.2d 48,
55 (Ill . 2005). Under these standards, summary judgment is not appropriate in IEPA's favor
.
II.
Knapp satisfied the requirements for approval of a High Priority Corrective Action
Plan and Budget including for the Diesel Tank .
IEPA argues that because Knapp did not report a release of the Diesel Tank to IEMA,
Knapp failed to establish that it was entitled to approval of the 2005 CAP and Budget
. IEPA is
incorrect . As a review of the record shows, Knapp satisfied the requirements for approval of the
IThis filing submitted on recycled paper as defined in 35 111
. Adm . Code 101 .2021
9
2005 CAP and Budget, such that summary judgment is appropriate in Knapp's favor .5 IEPA's
Motion should be denied
.
35 Ill . Adm. Code 732
.405(b) provides the requirements for IEPA's approval of a high
priority corrective plan and budget :
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 not be 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 .
(emphasis added) . IEPA argues that Knapp failed to meet the above elements because Knapp
did not report a release from the Diesel Tank to IEMA . This argument is wrong, as Knapp
provided the information required under section 732 .405(b). Section 732
.405(b) does not state
that Knapp needs to file a separate report of a release from the Diesel Tank to IEMA for IEPA to
approve a high priority corrective action plan and budget . It only states that a copy of the OSFM
eligibility and deductibility determination must be included . In this case, an incident at the site
was reported in 1990 and an incident number was obtained from IEMA
. After learning that the
Diesel Tank was also involved in the previously reported release, Knapp submitted an amended
application to the OSFM
. On March 26, 2002, OSFM made a final decision that the three tanks
at the Station, including the Diesel Tank, were eligible for the payment of costs in excess of
5 Knapp agrees with IEPA's statement that the question of whether the reimbursements of the Diesel Tank costs are
appropriate "is not one of fact, but rather of law ." IEPA's Motion, p . 9
. However, Knapp, and not IEPA, is entitled
to summary judgment, as there is no issue of material fact that Knapp has satisfied the requirements for
reimbursements of the 2005 CAP and Budget
. Accordingly, Knapp will be filing its own Motion for Summary
Judgment on this issue within the next several days .
IThis filing submitted on recycled paper as defined in 35 Ill . Adm . Code 101 .2021
10
$10,000 . AR 303-304. Accordingly, Knapp satisfied the requirements for approval of the high
priority corrective action plan and budget .
Moreover, IEPA is attempting to claim that it can make eligibility determinations. To the
contrary, as provided in Section 57 .9(c) of the Illinois Environmental Protection Act (the "Act"),
415 ILCS 5/57 .9(c), "Eligibility and deductibility determinations shall be made by the Office of
the State Fire Marshal
." In accordance with its jurisdiction, OSFM made the determination that
the Diesel Tank was also an eligible tank. AR 303-304 . IEPA is not entitled to second guess
OSFM's eligibility decision, as OSFM issues its eligibility determination by issuing "one letter
enunciating the final eligibility and deductibility determination, and such determination or failure
to act within the time prescribed shall be a final decision appealable to the Illinois Pollution
Control Board
." 415 ILCS 5/57.9(c)(2) . Accordingly, OSFM's decision that Knapp was eligible
to access the Underground Storage Tank Fund was made final by OSFM's decision, and that
determination cannot be second-guessed or challenged by IEPA, as it is attempting to do in its
Motion.
IEPA attempts to explain that although "the Petitioner did have the Office of State Fire
Marshal issue a new eligibility determination listing the Diesel Tank as an eligible tank,
however, that does not replace the need for IEMA to be notified."
IEPA's Motion, p . 10
. This
argument is misleading
. Neither section 732 .404 nor 732 .405 requires that Knapp notify IEMA
of a release from the Diesel Tank . Instead, only section 732
.202 requires a report of a release to
IEMA. 35 111 . Adm. Code 732.202(a)(1). Sections 732
.404 and 732 .405, however, do not
predicate approval of a CAP and budget upon compliance with 732
.202, nor do they require
Knapp to contact IEMA for any reason
. IEPA is attempting to impose an additional requirement
in 732.404 and 732 .405 that is not supported in the regulatory language
. As a result, whether
[This filing submitted on recycled paper as defined in 35 III . Adm . Code 101 .2021
11
Knapp notified IEMA of a release from the Diesel Tank is irrelevant for determining whether a
CAP and budget that include the Diesel Tank should be approved
. Knapp satisfied the elements
under 732.405
by obtaining an eligibility determination for the Diesel Tank, and is thus entitled
to approval of the 2005 CAP and Budget
. IEPA's failure to approve the 2005 CAP and Budget
for all three tanks is wrong
.
IEPA also argues that Knapp is not entitled to approval of the 2005 CAP and Budget
because Incident Number 908131, dated July 2, 1990, was reported as a release from a gasoline
tank only
. Knapp, however, fully informed IEPA that there had been a release from the Diesel
Tank as soon as it became aware of the release in its Site Assessment Report and Corrective
Action Plan, dated July 27, 2001 .
SAR 150
. That Report and Plan stated that "While prior
reporting indicted that tank numbers 1 and 3 did not contribute to the release, contamination
found during the site assessment beneath the pump island and at the East property line indicates
that all three tanks may have contributed to the release
." SAR 155
. Further, Knapp explained
when he submitted the 2005 CAP and Budget why the release of the Diesel Tank was not
discovered and disclosed in the September 13, 2000 Site Classification Completion Report
. AR
1
. In addition, data indicating the presence of diesel is contained in the 2005 CAP and Budget on
pages 13, 14, and 15 of that report. AR
23-25
. Moreover, the OSFM was informed and issued
an eligibility determination that included the Diesel Tank
.
AR 303-304 . Again, Knapp is
entitled to approval of the 2005 CAP and Budget
.
In its denial letter and its Memorandum in Support of its Motion for Summary Judgment,
the Agency ignored the data and information contained in the 2005 CAP and Budget that the
Agency received in 2001 and 2005 and chose to use information submitted in 1990 and 2000,
before the samples that contained diesel were collected and the additional information was
This filing submitted on recycled paper as defined in 35 I11
. Adm . Code 101 .202
12
provided to Knapp's consultant, CW
3M. The Agency used the 2000 information to conclude that
a diesel release did not occur. The Agency then cited 35 Ill . Adm. Code 732 .606(o) to deny the
2005 CAP and Budget. This subsection provides as follows :
Section 732 .606 Ineligible Costs . Costs ineligible for payment
from the Fund include but are not limited to :
o)
Costs for corrective action activities and associated
materials or services exceeding the minimum requirements
necessary to comply with the Act.
It appears that IEPA is confusing the statutory authority of the OSFM to determine tank
eligibility with the regulatory provisions that apply to whether a specific cost is eligible for
reimbursement
.6
However, the language in the Act at section 57 .9(c) is clear
. Determinations of
whether a tank is eligible for reimbursement from the Fund are made by the OSFM, not the
IEPA. 415 ILCS 5/57.9(c); see also, People v. Whitney, 188 Ill. 2d 91, 97, 720 N .E.2d 225, 228
(Ill. 1999) ("The language of a statute is the best means of determining legislative intent . The
statutory language should be given its plain and ordinary meaning . Where statutory language is
clear and not ambiguous, its plain meaning will be given effect .") (citations omitted) .
Section 732 .606 is not relevant here because Knapp Oil is not seeking reimbursement of
costs . Rather, it is seeking to get a plan and budget approved to remove the three USTs that the
OSFM has determined are eligible to access the fund . When the tanks are pulled, the OSFM will
be able to further confirm the releases and as typically occurs, IEMA will be notified again .
However, before that can happen, the 2005 CAP and Budget to allow the tanks to be removed
6 It should be noted that the Agency's brief in support of its motion for summary judgment raises for the first time
that subsection 732 .606(n) also applies to make costs related to the diesel tank ineligible for reimbursement
.
However, the Agency did not include Subsection 732 .606(n) in its denial letter and, accordingly, waived that issue
.
Pulitzer Community Newspapers, Inc
. v
. Illinois EPA, PCB No . 90-142, 1990 III . ENV LEXIS 1040, *14-15 (Dec .
20, 1990) (Board did not consider IEPA's reliance on additional reasons for denying petitioner's permit raised for
the first time before the Board, stating "[flundamental fairness would be violated if the Agency were free to cite
additional statutory and regulatory reasons for denial for the first time at the Board hearing .")
This filing submitted on recycled paper as defined in 35 III . Adm . Code 101 .202
13
must be approved by IEPA and Knapp Oil has met its burden for getting the 2005 CAP and
Budget approved
. Accordingly, IEPA's motion for summary judgment should be denied
.
III.
An issue of material fact exists with regard to Knapp's compliance with 35
Ill. Adm.
Code 732
.404(e) .
IEPA argues that summary judgment is appropriate on the issue of whether an additional
investigation should be conducted to verify that soil or groundwater contamination does not
extend past the Bank of Olney property pursuant to 35 111
. Adm
. Code 732.404(e).
IEPA,
however, is wrong, in that there is a genuine of issue of material fact as to whether an additional
investigation was necessary under section 732
.404(e).
35 Ill. Adm
. Code 732 .404(e) provides :
Except where provided otherwise pursuant to Section 732
.312 of
this Part, in developing the corrective action plan, additional
investigation
activities beyond those required for the
site
evaluation and classification
may be necessary
to determine the
full extent of soil or groundwater contamination and of threats to
human health or the environment
. Such activities may include, but
are not limited to, additional soil borings with sampling and
analysis or additional groundwater monitoring wells with sampling
and analysis
. Such activities as are
technically necessary and
consistent with generally accepted engineering practices may be
performed without submitting a work plan or receiving prior
approval from the Agency, and associated costs may be included in
a High Priority corrective action budget plan
.
A description of
these activities and the results shall be included as a part of the
corrective action plan
.
(Emphasis added
.)
An issue of fact exists as to whether the requested investigation by IEPA was necessary
under 35 Ill . Adm
. Code 732.404(e)
. According to IEPA, an investigation is necessary to
determine whether there is additional soil and groundwater contamination west of the Bank of
Olney.
Knapp, however, has presented information showing that such an investigation is
unnecessary
. Specifically, in the 2005 CAP and Budget, Knapp provided information that the
This filing submitted on recycled paper as defined in 35 III
. Adm . Code 101
.202
14
groundwater does not flow towards the Bank of Olney property, and would not extend beyond
Knapp's property line in the direction of the Bank . AR 2. Instead, the groundwater flow from
the site is to the north and northwest, and not to the west toward the Bank . Moreover, requiring
an investigation of groundwater at the Bank and the property to the west of the Bank is not a
generally accepted engineering practice under section 732 .404(e), as modeling provided to IEPA
shows that contamination will not reach the Bank property, let alone the property to the west of
the Bank. AR 2. Accordingly, an issue of fact exists as to whether additional sampling is
necessary, as IEPA and Knapp have presented contradictory evidence as to whether
contamination would flow westward toward the Bank of Olney .
Lastly, despite IEPA's assertions, Knapp properly provided that it would submit an
affidavit for off-site access refusal with its CACR. 35 Ill . Adm. Code 732.411(c)
provides:
An owner or operator, in demonstrating that the requirements of
this Section have been met, must provide to the Agency, as part of
the
corrective action completion report, the following
documentation :
1) A sworn affidavit, signed by the owner or operator, identifying
the specific off site property involved by address, the measures
proposed in the corrective action plan that require off-site access,
and the efforts taken to obtain access, and stating that the owner or
operator has been unable to obtain access despite the use of best
efforts; and
2) A copy of the certified letter sent to the owner of the off-site
property pursuant to subsection (b) of this Section
.
(emphasis added)
. Under this regulation, Knapp was entitled to submit the affidavit requested by
IEPA with the CACR, and was not required to submit the affidavit with the 2005 CAP and
Budget, prior to the submission of the CACR, as requested by IEPA. AR 1-2. Accordingly,
IEPA's insistence that the affidavit be submitted prior to Knapp's submission of the CACR was
not supported by law .
IThis riling submitted on recycled paper as defined in 35 111 . Adm . Code 101
.2021
15
Knapp is entitled to present evidence at hearing as to whether an additional investigation
is needed under section 732 .404(e) . Because an issue of fact exists as to whether a further
investigation is needed under section 732
.404(e), summary judgment should be denied .
CONCLUSION
For the forgoing reasons, the Board should deny IEPA's Motion for Summary Judgment
and grant all relief it deems fair and just .
Carolyn S . Hesse
David T. Ballard
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
Phone: (312) 357-1313
Fax: (312) 759-5646
CHD50I DTB 358970v1
Respectfully submitted,
Knapp Oil Company, Don's 66
By:
1
r One of Its Attorneys
ITbis filing submitted on recycled paper as defined in 35 111. Adm . Code 101
.202
16
G r
I
-
f'~IAILORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
KNAPP OIL COMPANY,
)
DON'S 66,
)
Petitioner,
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
Carolyn S . Hesse
David T. Ballard
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
CHD501 DTB 369006v1
By:
PCB 06-52
(UST Appeal)
PETITIONER'S SUPPLEMENT TO THE ADMINISTRATIVE RECORD
Petitioner, Knapp Oil Company ("Knapp"), by its counsel Barnes & Thornburg, LLP,
files the following Supplement to the Administrative Record
:
1 .
A letter from Knapp's consultant dated February 14, 2002 responding to the Agency's
comments regarding the Knapp site and forwarding an amended Budget (P 1-2)
2 .
The February 14, 2002 amended Budget for Knapp Oil (P 3-37)
3 .
A letter from IEPA dated May 15, 2002 to Knapp regarding the February 14, 2002
Budget (P 38-40)
4.
A letter from Knapp's consultant dated October 4, 2004 forwarding a Site Assessment
Report and Corrective Action Plan for Knapp Oil (P 41)
5 .
The Site Assessment Report and Corrective Action Plan for Knapp Oil dated October
2004 (P 42-347)
6 .
The Application to the OSFM to amend the eligibility determination
. (P 348-352)
Respectfully submitted,
Knapp Oil Company, Don's 66
One of Its Attorneys
[This filing submitted on recycled paper as defined in 35 111
. Adm
. Code 101 .2021
RE'7"P!VED
CI
.ERK'S OFFICE
DE ; U ?
20,16
STATE OF ILLINOIS
Pollution Control Board
