BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

IN

THE

MATTER

OF:

PETITION OF

MAXIMUM

INVESTMENTS,

LLC)

AS-09-02

CL

IVE

0

FOR

AN

ADJUSTED

STANDARD FROM

)

35 ILL

II’JOIS

ADMINISTRATIVE CODE

)

‘‘ 1

2Oog

740.2 10(A)3 FOR

THE STONEY CREEK

)

LANDFILL IN PALOS HILLS, IL

)

OI(UtIr,

cjLItiOis

0!

Board

Certificate of Service

I, the

undersigned, certify that I have served the attached Reply Brief

re

Adjusted

Standard, by

depositing in the

US

Postal Service

first class postage prepaid on May

14,

2009, upon the following persons:

Pollution Control Board, Clerk

Mr. William Ingersoll

100 W Randolph

Illinois

EPA

Thompson Center, Suite 11-500

1021 N Grand Ave

East

Chicago, IL 60601-3218

P0 Box 19276

Springfield, IL 61794-9276

Mr.

Brad Halloran

Pollution Control Board

100 W

Randolph

Thompson Center, Suite

11-500

Chicago, IL

60601-3218

Liewellyn

Kedy

WElL & ASSOCIATES,

P.C.

60 Revere Drive

Suite 888

Northbrook IL 60062

847-509-0015 (Telephone)

847-509-0021

(Facsimile)

Atty. No. 16362

jL4I<]5ll4O94WC:Documents nd

---

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

TN THE

MATTER

OF:

PETITION

OF

MAXIMUM

iNVESTMENTS,

LLC)

AS-09-02

FOR AN

ADJUSTED

STANDARD

FROM

)

35 ILL 1NOIS

ADMINISTRATIVE

CODE

)

740.2 l0(A)3

FOR THE

STONEY CREEK

)

LANDFILL

IN

PALOS HILLS,

IL

)

REPLY BRIEF RE

ADJuSTED

STANDARD

The

Illinois EPA argues

that

the Illinois Pollution

Control

Board

does

not have

the

authority

to modify a statutory

requirement

for enrolling

the subject

property

in the

Site Remediation

Program. Petitioner,

however,

has not requested

the board

to modify

the

statutory

requirement in question.

Instead,

as Petitioner points

out

in his Brief,

the

the statute permits

a party to

act “in lieu of the owner”

under

appropriate

circumstances

and argues

that Petitioner

meets this undefined

qualification. It

is

clearly

within

the

Board’s

authority to

interpret the statute where

the statute has ambiguous

language.

The

statute differentiates

acting in

lieu of the owner from

acting

on

behalf

of

the

owner.

Clearly,

acting

on behalf of

the

owner

would

mean that

the party

executing the

agreement is a

corporate officer, attorney

in fact

or

has some

written delegation

of

authority to act. Acting

in lieu

of

the

owner must

mean something else.

Petitioner

believes

the current circumstance

is

a

proper example

of

acting in lieu

of

the

owner.

First, the property is

abandoned

so there is no owner.

Second, Petitioner

is a

lien holder

with

no

lien holders

having

higher

priority.

The Illinois EPA has

not

argued

that Petitioner

does

not

have

the authority

to act

in

lieu

of the

owner

or

that Petitioner’s status

as

lienholder

is insufficient to enable

it to

act in this regard.

Furthermore, Petitioner

provides

an alternate remedy

that

the

Board

define

the

review

and evaluation

services to be performed

under

415 ILCS 5/22.2b.e.

The Illinois

EPA

has not argued that

this

alternate

remedy

is

inappropriate or outside

the Board’s

scope

of authority.

Such evaluation services

could

be identical in all

substantive

respects

to

the Site

Remediation

Program and

require

that

the prospective

purchaser

formally

enroll

the property in

the Site Remediation

Program

once taking

title

but

specifically

allow foF lienholders

to

apply where the

property

is abandoned or the

owner is unable

to

act.

There are

many circumstances

where

such procedure

might

be necessary;

the current

circumstance

of a

tax

lien

on a

property last owned

by a deceased

party being

only

one.

A financial

institution

could

hold a

lien on property

owned

by

a

bankrupt entity

that

elects

in

bankruptcy

court

to abandon its’

interest

and

liquidates without

transferring

title.

The Board

should have

a procedure in place to

accommodate

these

situations.

---

The

Illinois

EPA’s

discussion

of

the

practical

limitations

of

obtaining

relief

under

Section

22.2b is

jumping

ahead of

the

issue

at

hand.

The

purpose

of

the

instant

Petition

is

to

establish

a

mechanism

for

Petitioner

to

apply

for

this

relief.

Petitioner

fully

understands

that

application

is

no

guaranty

the

relief

will

be

granted.

Respectfully

submitted,

An

Attomefor

P’ikion

WElL

&

ASSOCIATES,

P.C.

60

Revere

Drive

Suite

888

Northbrook

IL

60062

847-509-0015

(Telephone)

847-509-0021

(Facsimile)

Atty.

No.

16362

I.AK15fl4/O9.IkJC\000uments

and

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