BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
VILLAGE OF WILMETTE,
)
Petitioner,
)
)
v.
)
PCB 07-27
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
)
Respondent.
)
)
NOTICE
Dorothy Gunn
Mary Beth Cyze
Bradley P. Halloran
Clerk
Village of Wilmette
Hearing Officer
Illinois Pollution Control Board
1200 Wilmette Avenue
Illinois Pollution Control
100 West Randolph Street,
Wilmette, Illinois 60091
Board
Suite 11-500
100 West Randolph Street,
Chicago, Illinois 60601-3218
Suite 11-500
Chicago, Illinois 60601-3218
PLEASE TAKE NOTICE that I have today caused to be filed a MOTION FOR LEAVE
TO FILE REPLY/RESPONSE TO PETITIONER’S RESPONSE TO IEPA’S MOTION FOR
SUMMARY JUDGMENT AND CROSS MOTION FOR SUMMARY JUDGMENT and
REPLY/RESPONSE TO PETITIONER’S RESPONSE TO IEPA’S MOTION FOR SUMMARY
JUDGMENT AND CROSS MOTION FOR SUMMARY JUDGMENT with the Illinois
Pollution Control Board, copies of which are served upon you.
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
/s/ James G. Richardson________
James G. Richardson
Special Assistant Attorney General
Dated: April 23, 2007
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Electronic Filing, Received, Clerk's Office, April 23, 2007
VILLAGE OF WILMETTE,
)
Petitioner,
)
)
v.
)
PCB 07-27
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
MOTION FOR LEAVE TO FILE REPLY/RESPONSE TO PETITIONER’S
RESPONSE TO IEPA’S MOTION FOR SUMMARY JUDGMENT AND CROSS
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 Section 101.500(e) of the Illinois Pollution Control Board’s
(“Board’s”) procedural rules, 35 Ill. Adm. Code 101.500(e), seeks leave to file a reply to Petitioner’s
Response to IEPA’s Motion for Summary Judgment and Cross Motion for Summary Judgment
(“Response/Cross Motion”). The Illinois EPA received the Response/Cross Motion on April 10,
2007. In support of this motion, the Illinois EPA states as follows:
1.
The Response/Cross Motion extensively references the Board’s December 21, 2006
decisions in Broadus Oil v. IEPA, PCB 04-31, 05-43 (cons.) and FedEx Ground Package System,
Inc. v. IEPA, PCB 07-12.
2.
The Illinois EPA’s Motion for Summary Judgment in this case was filed on
November 20, 2006 before
Broadus and FedEx were decided.
3.
Allowing the Illinois EPA to file a reply so that the Illinois EPA can provide its
perspective on the applicability of Broadus and FedEx to the instant case is appropriate and would
prevent the Illinois EPA from suffering any material prejudice.
Electronic Filing, Received, Clerk's Office, April 23, 2007
For the reasons stated herein, the Illinois EPA respectfully requests that the Board allow the
Illinois EPA to file a reply to the Response/Cross Motion to prevent material prejudice.
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
/s/ James G. Richardson________
James G. Richardson
Special Assistant Attorney General
Dated: April 23, 2007
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Electronic Filing, Received, Clerk's Office, April 23, 2007
VILLAGE OF WILMETTE,
)
Petitioner,
)
)
v.
)
PCB 07-27
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
REPLY/RESPONSE TO PETITIONER’S RESPONSE TO IEPA’S MOTION FOR
SUMMARY JUDGMENT AND CROSS 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 hereby submits to the Illinois Pollution Control Board (“Board”) its
Reply/Response to Petitioner’s Response to IEPA’s Motion for Summary Judgment and Cross
Motion for Summary Judgment. The Illinois EPA received Petitioner’s Response to IEPA’s Motion
for Summary Judgment and Cross Motion for Summary Judgment (“Response/Cross Motion”) on
April 10, 2007. It is the Illinois EPA’s position that its September 14, 2006 decision rejecting the
Village of Wilmette’s (“Wilmette’s”) High Priority Corrective Action Plan Budget amendment be
affirmed and that Wilmette’s Cross Motion for Summary Judgment be denied.
I. ARGUMENT
The Illinois EPA filed its Motion for Summary Judgment in this case on November 20, 2006,
arguing that Section 732.405(d) of the Board’s regulations, 35 Ill. Adm. Code 732.405(d), prohibited
it from reviewing a High Priority Corrective Action Plan Budget amendment submitted after the
issuance of a No Further Remediation Letter. On December 21, 2006, the Board addressed this
same issue for the first time in two other cases. In both cases, Broadus Oil v. IEPA, PCB 04-31, 05-
Electronic Filing, Received, Clerk's Office, April 23, 2007
43 (cons.) and FedEx Ground Package System, Inc. v. IEPA, PCB 07-12, the Board upheld the
Illinois EPA’s rejection of budget amendments submitted after the issuance of No Further
Remediation Letters.
Most of the arguments in Wilmette’s Response/Cross Motion have already been presented to
the Board by the petitioners in Broadus and FedEx. The Board’s December 21, 2006 decisions
outline and analyze these arguments as well as those presented by the Illinois EPA, making it
unnecessary to repeat them here. Instead, the Illinois EPA requests that the Board take judicial
notice of these arguments and its analyses in Broadus and FedEx and reach a similar conclusion in
favor of the Illinois EPA in the instant case.
Wilmette’s other arguments attempt to distinguish its situation from Broadus and FedEx.
Wilmette places significance on the fact that the costs in its budget amendment, even though they
did exceed previously approved budget amounts for their subcategories, did not exceed the
previously approved total budget as a whole. This argument is not persuasive. It appears that FedEx
had a balance remaining in its approved total budget when its budget amendment was submitted, but
this fact neither played a role in the Board’s analysis in FedEx nor did it result in FedEx partially
prevailing on its budget amendment.
FedEx Ground Package System, Inc. v. IEPA, PCB 07-12, slip
op. at 3 (December 21, 2006). Wilmette also claims the Illinois EPA does not dispute that the costs
in question were related to corrective action, properly accounted for, and reasonable. This is mere
conjecture since the Illinois EPA never completed a full review of the budget amendment. In
addition, Wilmette’s total budget surplus argument discounts the importance of budget
subcategories, which are critical for reviewing budgets and making reasonableness determinations.
II. CONCLUSION
Electronic Filing, Received, Clerk's Office, April 23, 2007
For the reasons stated herein, as well as those previously presented by the Illinois EPA, the
Illinois EPA respectfully requests that the Board affirm its September 14, 2006 decision rejecting
Wilmette’s High Priority Corrective Action Plan Budget amendment and that Wilmette’s Cross
Motion for Summary Judgment be denied.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
/s/ James G. Richardson________
James G. Richardson
Special Assistant Attorney General
Dated: April 23, 2007
Electronic Filing, Received, Clerk's Office, April 23, 2007
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on April 23, 2007 I served true and
correct copies of a MOTION FOR LEAVE TO FILE A REPLY/RESPONSE TO PETITIONER’S
RESPONSE TO IEPA’S MOTION FOR SUMMARY JUDGMENT AND CROSS MOTION FOR
SUMMARY JUDGMENT and REPLY/RESPONSE TO PETITIONER’S RESPONSE TO IEPA’S
MOTION FOR SUMMARY JUDGMENT AND CROSS MOTION FOR SUMMARY JUDGMENT
upon the persons and by the methods as follows:
[
ElectronicFiling
]
Dorothy Gunn
Clerk
Illinois Pollution Control Board
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601-3218
[1
st
Class U.S. Mail]
Mary Beth Cyze
Bradley P. Halloran
Village of Wilmette
Hearing Officer
1200 Wilmette Avenue
Illinois Pollution Control Board
Wilmette, Illinois 60091
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
/s/ James G. Richardson________
James G. Richardson
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)
Electronic Filing, Received, Clerk's Office, April 23, 2007