BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
VILLAGE OF
WILMETTE
)
1
Petitioner,
)
v.
)
PCB 07-27
)
ILLINOIS ENVIRONMENTAL PROTECTION
1
(UST Appeal)
AGENCY,
1
)
Respondent
1
PETITIONER'S RESPONSE TO IEPA'S MOTION FOR SUMMARY JUDGMENT
AND CROSS-MOTION FOR SUMMARY JUDGMENT
NOW COMES Petitioner, the Village of Wilmette ("Village"), through its
undersigned attorney, and pursuant to Section 101.516 of this Board's procedural rules,
35
111. Adm. Code Section 101.516,
hereby responds to the Motion for Summary
Judgment filed by Respondent ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
("IEPA). In addition, the Village hereby files and submits this Response as its own
Cross-Motion for Summary Judgment. In support thereof, the Village states as follows:
BACKGROUND
This appeal involves the Village's challenge to the decision of the
IEPA with
respect to cost reimbursement under the LUST program for corrective action completed
at the Village's site located at 710 Ridge Road, Wilmette, Illinois (AR. 34). In particular,
this action involves
IEPA's September 14, 2006 denial of the Village's High Priority
Corrective Action Plan Budget amendment. The Village also filed a related appeal
(PCB 07-48) as to
IEPA's subsequent denial, dated November 13, 2006, of the Village's
final request for reimbursement of the costs for the remediation work associated with
the budget amendment.
Although the Board has denied the Village's Motion to
Electronic Filing, Received, Clerk's Office, April 5, 2007
Consolidate the two appeals filed by the Village, a decision in this appeal, PCB-027,
regarding
IEPA's denial of the budget amendment, will be dispositive of the issue raised
by PCB-048.
At the outset it is significant to recognize that the Village's final reimbursement
request was less than the previously approved total budget. Nevertheless, because the
amounts within the subcategories varied from the total budget amount, the Village
needed to file a budget amendment. In other words, the budget amendment
represented a proper accounting of the previously approved total amount as required.
Nevertheless, IEPA denied the request on the grounds that, under 35
111. Adm. Code
732.405(d), the Village's budget amendment had been submitted subsequent to
issuance of a No Further Remediation ("NFR") letter. Consequently, because the
budget amendment amounts within certain categories varied, IEPA denied those
amounts in the Village's final reimbursement request. Accordingly, PCB 07-27 and 07-
48 raise the issue of whether IEPA correctly denied the budget amendment and final
reimbursement request. This in turn raises the issue of whether, as a matter of law, all
budget amendments submitted after the issuance of an NFR must be denied.
The Village recognizes that this Board has recently issued two decisions
addressing the issue of budget amendments filed after the issuance of an NFR letter. In
Fed
Ex Ground Packaging System, lnc.
v.
IEPA, PCB 07-012 ("Fed
Ex")
and Broadus
Oil v. IEPA, PCB 07-27 and 07-48 ("Broadus Oif') (interpreting 35 111. Adm. Code
Section
734.335(d) and Section 732.405(d) respectively), the Board ruled that IEPA
properly denied budget amendments on the grounds that the amendments were
submitted after the issuance of an NFR letter. Notwithstanding the Board's Opinion and
Electronic Filing, Received, Clerk's Office, April 5, 2007
Order in those two cases, because as of the time of this submittal by the Village the
there is a pending appeal in the Fed
Ex case, the Village believes it is necessary to
preserve its legal right to raise those arguments herein. More importantly, the Village
files this Cross Motion for Summary Judgment because this instant case is
distinguishable from
Broadus Oil and Fed Ex.
FACTS
The facts before this Board are undisputed, and therefore, the Village accepts as
true the statement of facts set forth in the IEPA's motion for summary judgment. The
Village hereby incorporates those facts as its own, in support of both its response to the
IEPA's motion for summary judgment, and of its own cross-motion for summary
judgment.
The Village would emphasize, however, certain facts that are missing from
IEPA's brief which demonstrate that the legal basis provided by
lEPA does not support
the denial of the budget amendment. Specifically, what factually distinguishes this case
from Fed
Ex and Broadus
Oil
is the fact that here, the Village's final reimbursement
request was
less
than the previously approved total budget. (AR. 6-8). Nevertheless,
because the amounts within the subcategories varied from the original budget amount,
the Village needed to file a budget amendment. It is undisputed that the budget
amendment was the proper accounting of the previously approved total budget amount.
STANDARD
IEPA identifies the Village's burden of proof in this case as requiring that the
Village "demonstrate that the incurred costs are related to corrective action, properly
accounted for, and reasonable." (IEPA Motion p.2). IEPA, however, cites no facts in the
Electronic Filing, Received, Clerk's Office, April 5, 2007
record, nor are there any to cite, to show that the Village's request was not "related to
corrective action, properly accounted for, and reasonable." In fact, the budget
amendment at issue in this case only sought to reallocate costs among categories, with
the result that the overall final reimbursement request was less than the previously
approved budget. Moreover, in denying the budget amendment, the IEPA did not
question that the work performed was not necessary, having previously determined that
the corrective action had been done according to the approved corrective action plan
(AR. 27). Thus, as a matter of law, there is no question as to whether that the Village
met its burden of proof in its underlying submittal.
lEPA has recognized that "the facts in this case are undisputed" (IEPA motion, at
2). IEPA acknowledges that "the question in this case is not one of fact, but rather of
law." (IEPA motion, at 6). As this Board has noted, "the law is well settled that when
reviewing a question of law the reviewing court should use the de
novo standard of
review."
Citv of Kankakee v. Countv of Kankakee, PCB 03-125, 03-133, 03-134, and 03-
135 (cons.), 2003 111. ENV LEXlS 462, at *34 (111. PCB, Aug.
7,
2003) (citing Panhandle
Eastern Pipeline v. IEPA, 314 111. App. 3d 296, 734 N.E. 2d 18 (4 Dist. 2000)).
The standard of review for this Board, proceeding pursuant to Section 40 of the
Illinois Environmental Protection Act, 415
iLCS 5/40, is to determine whether the
application, as reviewed by the IEPA, would not violate the Act and this Board's
regulations. Only information considered by the IEPA at the time it rendered its decision
can be considered, and
IEPA's denial letter frames the issues on appeal. Swift Food
Mart
v. Illinois EPA, PCB 03-185, slip op. at ll (May 20, 2004).
The letter from the IEPA to the Village denying the budget amendment stated:
Electronic Filing, Received, Clerk's Office, April 5, 2007
"The budget was submitted after the issuance of a No Further
Remediation Letter.
Pursuant to
57.6(a) and 35 111. 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 35 111. Adm.
Code 732 prior to the issuance of a No Further Remediation Letter.
(AR. 1).
IEPA'S DENIAL OF THE VILLAGE'S BUDGET AMENDMENT AND FINAL REQUEST
FOR REIMBURSEMENT IS NOT SUPPORTED BY THE LANGUAGE OF 35 ILL.
ADM. CODE
732.405(D) OR THE BOARD'S INTERPRETATION THEREOF.
In the recently decided cases of Broadus Oil and Fed Ex, this Board addressed
the issue of whether the regulatory provision cited by the IEPA, 35
111. Adm. Code
732.405(d), constitutes a basis for rejecting budget amendments and requests for
reimbursement filed after the issuance of an NFR letter. In rejecting the argument that
subsection (d) applies only where an owner has elected to proceed with corrective
action before submitting a CAP or budget, the Board ruled that subsection (d) "applies
not only
to those who proceed wifh no approved plan or budget, but also to those who
go beyond an approvedplan or budget." (Slip. Op. at 10,
Dec. 21, 2006). Accordingly,
because the Petitioners in those matters had gone beyond their respective approved
budgets, they were required to have filed their budget amendments prior to the issuance
of an NFR letter.
In contrast to the Petitioners in
Broadus Oil and Fed Ex, the Village here did not
incur costs beyond the approved budget. The total approved budget for the Village's
site was $607,703.08. The Village's final reimbursement request was $559,583.49,
which is
$48,119.59
less than the approved budget.
(AR. 6-8). IEPA does not dispute
this fact.
This Board's decisions in
Broadus Oil and Fed Ex held that subsection (d)
Electronic Filing, Received, Clerk's Office, April 5, 2007
applies to those who go beyond an approved budget. The language of the opinions
does not apply to reallocations within subcategories of an approved budget. More
importantly, the opinion should not be construed to apply to such a situation as that of
the Village's. The Village's budget amendment is nothing more than what the Village
was required to do in this case which is to properly account for the corrective action
costs. IEPA does not dispute that the costs were not properly accounted for.
Nor is
there a dispute that the costs were related to the corrective action. Moreover, it is within
this Board's purview to find that a final budget request that is approximately $48,000.00
less than the previously approved IEPA budget, is reasonable as a matter of law.
Hence, IEPA improperly rejected the Village's budget amendment and subsequent final
reimbursement request, and therefore, summary judgment should be entered in favor of
the Village and against IEPA
SECTION 732.405(d) IS NOT A SUFFICIENT BASIS FOR IEPA'S DENIAL
BECAUSE, AS A MATTER OF LAW, IT DOES NOT APPLY TO THE VILLAGE IN
THIS CASE.
As stated at the outset, the Village recognizes that this Board has recently issued
two decisions addressing the issue of budget amendments filed after the issuance of an
NFR letter. However, because as of the filing of this Response and Cross Motion, an
appeal is pending in the Fed
EX
case, the Village believes it is necessary to reference
the legal arguments in this brief so as to preserve its legal rights. Accordingly, for the
same reasons as raised by the Petitioners in Fed
Ex
and Broadus
Oil,
the Village
maintains that, at a matter law, Section
732.405(d) applies only to the right of
owners/operators to proceed with
remediation prior to submittal or approval of a
corrective action plan or budget, a situation which is not applicable in this case.
Electronic Filing, Received, Clerk's Office, April 5, 2007
Specifically, the sentence in 732.405(d) at issue provides: "However, any such
plan and budget plan shall be submitted to the Illinois EPA for review and approval,
rejection or modification in accordance with the procedures contained in Subpart F of
this Part prior to payment for any related costs or the issuance of a No Further
Remediation Letter." A Board Note following the subsection advises: "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."
IEPA's argument in its brief consists of a single paragraph at page 6 of its
motion, in which the IEPA defines the issue presented as "whether the IEPA can
consider a High Priority Corrective Action Plan Budget Amendment after the issuance of
a No Further Remediation Letter." Citing Section
732.405(d) as its basis, IEPA goes on
to state that "The IEPA is prohibited from reviewing the High Priority Corrective Action
Plan Budget Amendment pursuant Section
732.405(d)." (IEPA motion p. 6). This
interpretation of Section
732.405(d), however, does not comport with the regulatory and
statutory scheme that this Board is bound to consider.
The argument that the Board should interpret the second sentence of
734.335(d)
as prohibiting the IEPA from reviewing budget amendments submitted ignores the
immediately preceding sentence of that subsection, ignores the entire section
immediately following subsection
734.335(e), and ignores certain provisions of Section
57.8 of the Environmental Protection Act (the Act.). In particular, when interpreting a
single sentence in a regulatory subsection, as IEPA has done here, the sentence must
Electronic Filing, Received, Clerk's Office, April 5, 2007
be read as part of the whole regulation, and in light of its overall purpose. See Counfy of
Dupage
v.
E & F Hauling, PCB AC 88-76, 88-77 (Feb. 8, 1990) p. 3, citing People
v.
Jordan, 103 111. 2d 192, 469 N.E. 2d 569 (1984.) A reading of the entire Section
734.335 (quoted in full in
IEPA's motion, pages 4-7), shows that most subsections
address situations where the owner submits a CAP and Budget to
IEPA for approval
before conducting the corrective action, just as the Village did here. Subsection
734.335(d) is the only subsection that applies where an owner has elected to proceed
with corrective action before submitting a CAP or budget. This subsection does not
apply where an owner submits its plan and budget for approval before doing the work,
like the Village has done here. Absent from language of subsection
734.335(d) is any
reference to amended budgets at all. Instead, amended budgets are addressed in
Subsection
734.335(e).
In interpreting subsection (d), this Board should do so within the entirety of that
Section. The Section is entitled "Plan Submittal and Review." Subsection (a) of Section
732.405 concerns the general requirement that remediation plans be submitted for IEPA
review prior to conducting any remediation activities pursuant to those plans.
Subsection (b) provides that, if an ownerloperator intends to seek reimbursement for
remediation, the ownerloperator shall also submit budget plans for the remediation work
being proposed. Subsection (c) confirms that the
IEPA has authority to review,
approve, reject or require modification of any plans submitted to it.
Subsection (e)
states that whenever an
ownerloperator realizes after approval of any plan or budget
that modifications are necessary to comply with the Illinois Environmental Protection Act
or this Board's regulations, the
ownerloperator "shall submit, as applicable, an amended
Electronic Filing, Received, Clerk's Office, April 5, 2007
groundwater monitoring plan, corrective action plan or associated budget plan for
review by the IEPA." Subsection
(f) addresses IEPA's authority to require revised
corrective action plans in the event an approved plan is not working as anticipated.
Subsection (d), which begins: "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." Put simply, Subsection (d) concerns those
instances where an ownerloperator submits no remediation plan or budget for approval
prior to conducting remedial activities, and the regulation allows the
ownerloperator to
nevertheless proceed with that remediation. The sentence in question then follows:
"However, any such plan and budget plan shall be submitted to the Illinois EPA 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 to the issuance
of a No Further Remediation Letter." Hence, the work can be completed without a
remediation plan, but the remediation plan must be submitted before reimbursement
can be obtained for that work,
andlor before an NFR is issued as a result of that work.
Nothing in this language prohibited the
IEPA from considering the Village's
budget amendment proposal, and consequently denying the associated reimbursement
costs. Nothing in subsections (b) or (e) requires that such amendments be requested
prior to issuance of an NFR. To the contrary, only subsection (d) has such a restriction.
This interpretation of the regulatory scheme is sound legislative construction.
Electronic Filing, Received, Clerk's Office, April 5, 2007
Clearly an NFR should not be issued for a site before the corrective action plan for that
site has been reviewed and compared with finalization of remediation, nor should any
reimbursement be approved for a site for which no budget whatsoever has ever been
submitted. On the other hand, where as here a site has already received IEPA review
and scrutiny,
including both for corrective action and for budget, and in fact where the
corrective action for which reimbursement is sought has been determined to have been
effective, no reason exists, and none was inserted in this Board's regulations, limiting
budgetary amendments only to those requested prior to issuance of the
NFR.
In addition to the lack of regulatory support for its position, the IEPA also lacks
any statutory basis. (Of course, if the regulation supports the. IEPA, but is itself contrary
to the statute, the regulation must be deemed void and the statute controls. Even if this
is the type of case subject to
732.406(d), the IEPA's interpretation of the regulation will
only apply if it is consistent with the Illinois Environmental Protection Act's treatment of
the subject, but it is not. Section
57.7(e) of the Act, 415 ILCS 5157.7(e), addresses the
issue. That subsection allows an
ownerloperator to elect to proceed with any corrective
action "...prior to the submittal or approval of an otherwise required plan. If the owner
or operator elects to so proceed, an applicable plan shall be filed with the Agency at any
time." (415
ILCS 5157.7(e)(I) Subsection (e) continues by requiring the IEPA to
"proceed to review in the same manner as required under this Title." (415
ILCS
5/57.7(e)(2)). In turn, Section 57.8 concerns the underground storage tank fund, and
Section 57.9 concerns eligibility for reimbursement from that fund (415
ILCS 5157.8 and
5157.9). Neither addresses ineligibility based upon an amended budget being submitted
to approve payment for admittedly required corrective action subsequent to the
Electronic Filing, Received, Clerk's Office, April 5, 2007
issuance of the NFR.
Simply put, there is no statutory or regulatory authority for the
IEPA's action in this case.
The facts before this Board are undisputed, and it is conceded by the
IEPA that
the work for which the amended budget and reimbursement are sought was corrective
action activities eligible for reimbursement from the fund. Therefore, no genuine issue
of material fact exists, and
lEPA improperly rejected the Village's budget amendment
and subsequent final reimbursement request.
Accordingly, summary judgment should
be entered in favor of the Village and against IEPA.
The Village is entitled to this
Board's judgment as a matter of law.
WHEREFORE, Petitioner, the Village, requests that this Board deny the motion
for summary judgment submitted by Respondent ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, and enter summary judgment in favor of the Village ordering
the Illinois Environmental Protection Agency to approve the Village's proposed
amended budget and final request for reimbursement and award the Village all such
other and further relief as is within this Board's authority and jurisdiction,
Respectfully submitted,
THE VILLAGE OF
WILMETTE
Petitioner,
Mary Beth Cyze, Esq.
Village of Wilmette
1200 Wilmette Avenue
Wilmette,
IL 60091
847-853-7505
Electronic Filing, Received, Clerk's Office, April 5, 2007
CERTIFICATE OF SERVICE
PLEASE TAKE NOTICE that on April 5,2007, the Village of Wilmette has electronically filed
with the office
of the Clerk of the Pollution Control Board
PETITIONER'S RESPONSE TO
IEPA'S MOTION FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR
SUMMARY JUDGMENT,
a copy of which is hereby served upon you.
SERVICE LIST
Dorothy
M.
Gunn. Clerk
Greg Richardson
Bradley P. Halloran
Illinois Pollution Control Board
Illinois Environmental Protection Agency Illinois Pollution Control Board
James
R. Thomoson Center
1021 North Grand Avenue. East
James R. Thomnson Center
100 West
~andbl~h
Street
Suite 11-500
Chicago,
IL 60601
P.O. Box 19276
100 West
Randblph Street
Springf eld, Illinois 62794-9276
Suite 11-500
217-782-5544
Chicago,
IL 60601
Electronic Filing, Received, Clerk's Office, April 5, 2007