BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOAR])

IN THE

MATTER

OF:

PETITION

OF

MAXIMUM

INVESTMENTS,

LLC)

AS-09-02

FOR AN

ADJ1JSTED

STANDARD

FROM

)

RECE8VED

35 ILL

INOIS

ADMINISTRATIVE

CODE

)

CLERK’S

OFFICE

740.2

10(A)3

FOR

THE

STONEY

CREEK

)

LANDFILL

IN

PALOS

HILLS,

IL

)

STATE

OF

ILLINOIS

Pollution

Control

Board

Certificate

of

Service

I, the

undersigned,

certify

that

I

have

served

the attached

Brief re

Adjusted

Standard,

by

depositing

in

the US

Postal

Service

first

class

postage

prepaid

on August

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

Richard

Roba/

,/

---

BEFORE

THE ILLINOIS

POLLUTION

CONTROL

BOAR])

IN

THE

MATTER

OF:

PETITION

OF

MAXIMUM

INVESTMENTS,

LLC)

AS-09-02

FOR AN

ADJUSTED

STA]ND)ARD FROM

)

REcEIVED

35 ILL

FNOIS

ADMINISTRATiVE

CODE

)

CLERK’S

OFFICE

740.2 10(A)3 FOR

THE

STONEY CREEK

LANDFILL

IN PALOS HILLS,

IL

)

AUG

172009

STATE

OF

IWNOIS

Pollution

Control

Board

PETITIONER’S REPLY

TO THE

IEPA’S RESPONSE

The IEPA is

correct

when

it

states that one of

the purposes of a

motion for

reconsideration

is to bring to

the court’s

attention

errors in

its application of

existing law, but it

is

incorrect when it claims

Petitioner’s Motion

to Reconsider

fails to meet this

standard. In a

disingenuous sleight of

hand, the IEPA at first claims

that Petitioner gives

no reason why the

decision of

the Illinois Pollution

Control Board (“the

Board”) should be reconsidered.

Then

in

a

single sentence buried in

its last

paragraph,

the

JEPA glosses over

Petitioner’s argument and

rushes to conclude,

without any analysis or citation to authority,

that Petitioner’s argument was

meritless which “in other words”

the

JEPA

equates

with

being non-existent. However, contrary

to the

IEPA’s

assertion, the Motion to

Reconsider very specifically points

out the Board’s

misapplication of

the law, namely its failure to address the inconsistency

between

the statutory

language of the Illinois

Environmental Protection Act (“the Act”) and the Illinois Administrative

Code (“the

Code”).

Although the IEPA does

not directly

address the substance of Petitioner’ position,

it

appears to argue that the “very real meaning”

of

“Remediation

Application”

(“RA”) would

preclude a tax lienholder

from becoming a

RA.

Without

any citation,

the

IEPA claims that

by

definition a RA is

“someone with legal authority to take actions

at the site.” Nowhere do

those

words

appear

in

the statutory

definition

of RA.

1.

---

Section

58.2

states

that:

“Remediation

Applicant”

(RA)

means

any person

seeking

to perform

or

performing

investigative

or

remedial

activities

under

this

Title,

including

the

owner

or

operator

of

the

site

or

persons

authorized

by

law

or

consent

to act

on

behalf

of or in

lieu of

the owner

or

operator

of the site.

(Emphasis

added)

Contrary

to

the JEPA’

s assertion

and

as the

emphasized

language

makes

clear,

the

definition

of

a RA is

broad and

inclusive

generally,

it

is not exclusive:

“any

person

. .

.

including

but

not limited

to...”

To read

into this

provision

a narrow

defmition

that

excludes

a person

in Petitioner’s

situation

seeking

to

perform

remedial

activities

would

circumvent

the

public

policy

and

purpose of

site remediation

under

the

Act.

Furthermore,

by

ignoring

the

inclusive

definition

of a RA

in Section

58.2,

and

by

unnecessarily

limiting

review

and evaluation

services

under

Section

5 8.7(b)

of

the Act in

favor

of the

restrictions

of

the Code,

the Board

is

perpetuating

a

situation

whereby a

derelict

property

with

no

living

owner of record

or

clear

chain

of

title would

never

be

able

to be remediated

by

interested parties

who

have

legal

interest, namely,

tax

lienholders

seeking

to

perfect

their

claim

to

the

property.

It

is an untenable

Catch-22

that

is

inconsistent

with

the

guidelines

and

definitions

of

the

Act, and

it

is a misapplication

by

the

Board of

the provisions

of

the Act.

An

AttorneylVe

2

fier

7

WElL

&

ASSOCIATES,

P.C.

60

Revere

Drive

Suite

888

Nortlibrook IL

60062

847-509-0015

(Telephone)

847-509-0021

(Facsimile)

Atty.No.

16362

rn’d S.

NP_OW

S

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