BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
PRIME LOCATION PROPERTIES, LLC, )
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
)
)
)
PCB No. 09-67
(UST Appeal)
NOTICE OF FILING AND PROOF OF SERVICE
TO:
John T. Therriault, Acting Clerk
Illinois Pollution Control Board
100 West Randolph Street
State
of Illinois Building, Suite 11-500
Chicago, IL 60601
Thomas Davis
Assistant Attorney General
500 S. Second Street
Springfield, IL 62706
Carol Webb
Hearing Officer
Illinois Pollution Control Board
James
R.
Thompson Center, Suite 11-500
100
West Randolph Street
Chicago, IL 60601
PLEASE
TAKE NOTICE that I have today electronically filed with the Office of the
Clerk
of the Illinois Pollution Control Board, pursuant to Board Procedural Rule 101.302 (d), a
MOTION FOR AUTHORIZATION OF PAYMENT OF ATTORNEY'S FEES AS COSTS OF
CORRECTNE ACTION, a copy of which is herewith served upon the hearing officer and upon
the attorneys
of record
in
this cause.
The undersigned hereby certifies that a true and correct copy
of this Notice of Filing,
together with a copy
of the document described above, were today served upon the hearing
officer and counsel
of record of all parties to this cause by enclosing same in envelopes addressed
to such attorneys and to said hearing officer with postage fully prepaid, and
by depositing said
envelopes in a
U.S. Post Office Mailbox in Springfield, Illinois on the 17th day of September,
2009.
BY:
Is/Patrick D. Shaw
MOHAN, ALEWELT, PRILLAMAN
&
ADAMI
1 N.
Old Capitol Plaza, Suite 325
Springfield, IL 62701-1323
Tel: (217) 528-2517
Fax: (217) 528-2553
TIDS FILING SUBMITTED ON RECYCLED PAPER
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
PRIME LOCATION PROPERTIES, LLC, )
Petitioner,
)
)
v.
)
)
ILLINOIS ENVIRONMENTAL)
PROTECTION AGENCY,
)
Respondent.
)
PCB No. 09-67
(UST
Appeal)
MOTION FOR AUTHORIZATION OF PAYMENT OF
ATTORNEY'S FEES AS COSTS OF CORRECTIVE ACTION
NOW COMES Petitioner, PRIME LOCATION PROPERTIES, INC. (hereinafter
"Prime"), by its undersigned counsel, and pursuant to Section 57.8(1) of the Illinois
Environmental Protection Act (415
ILCS 5/57.8(1», petitions the Illinois Pollution Control
Board (hereinafter
"the Board") for an order authorizing payment of legal costs, and in support
thereof states as follows:
1. On August 20, 2009, the Board reversed the Illinois Environmental Protection Agency
(hereinafter
"the Agency") and its January 27,2009 determination that the subject action
constituted a new release, subject to an additional deductible and planning and budgeting
approvals.
2.
In
addition, the Board recognized that Prime had requested reimbursement of legal
costs in the event that it prevailed and directed Prime to file a statement setting forth its claim to
the same, as well as arguments for the Board's exercise
of discretion in awarding same.
(Opinion, at p. 34)
3.
Under Section 57.8(1) of the Environmental Protection Act, the legal costs for
2
Electronic Filing - Received, Clerk's Office, September 17, 2009
seeking payment under the Leaking Underground Storage Tank Program are reimbursable from
the underground storage tank fund
if the owner or operator prevails before the Board. (415 ILCS
5/57.8(1)).
4. Unquestionably, Prime has prevailed before the Board.
"A prevailing party, for
purposes
of awarding attorney fees, is one that is successful on a significant issue and achieves
some benefit
in bringing suit." J.B. Esker & Sons, Inc. v. Cle-Pa's Partnership, 325 IlL App. 3d
276,280 (5
th
Dist. 2001). The party need not necessarily succeed as to all issues. See Becovic v.
City of Chicago, 296 Ill. App. 3d 236, 240 (5
th
Dist. 1998) (citing numerous cases in holding that
party prevailed
in obtaining $2,750 judgment in suit seeking $35,300).
5. The award of legal costs are discretionary with the Board. Ted Harrison Oil Co. v.
IEPA,
PCB 99-127 (Oct. 16,2003). In Illinois Ayers Co. V. IEPA, PCB No. 03-214 (Aug. 5,
2004), petitioner urged the Board to follow federal precedents arising under public interest
statutes, which assume that a prevailing party
"should ordinarily recover an attorney's fee unless
special circumstances would render such an award
unjust." Hensley v. Eckerhart, 461 U.S. 424,
429 (1983). While the Board made no express comment
on this presumption, Board precedent
appears to favor the exercise
of discretion in favor of an award since an award appears to have
authorized
by the Board in every case in which the petitioner has prevailed. See Ted Harrison v.
IEPA,
PCB No. 99-127 (Oct. 16,2003) (finding facts of the case justified award of $19,421.75 in
attorney fees); Illinois Ayers
Co. V. IEPA, PCB No. 03-214 (Aug 5, 2004) (finding that "under
the facts of this case awarding legal fees [of$44,456.49] is appropriate"); Swif-T Food Mart v.
IEPA,
PCB No. 03-185 (Aug. 19,2004) (finding that "[b]ased on the facts of this case ... legal
fees [of$11,291.37] should
be awarded); Webb
&
Sons, Inc. v. IEPA, PCB No. 07-24 (May 3,
3
2007) (finding award appropriate, but reducing claimed legal fees by 45 percent in light of
petitioner's failure to obtain reimbursement for 55% of the reductions sought to be reversed).
6. The Board should continue to liberally award legal costs to prevailing parties in
LUST
appeals, though retain the statutory authority to reject claims that would create injustice. The
LUST Fund is a unique feature of Illinois environmental law. The fund acts as public insurance,
not merely for the benefit
of the owner ofthe tanks, but for the neighboring property owners, as
well as communities that benefit from contaminated properties being returned to economic use.
The Board has previously recognized that the adjudication
of contested cases is an essential
element in the formation
of the policies that govern the UST reimbursement program. Platolene
500 v. IEPA, PCB 92-9, at 12-14 (May 7, 1992). In challenging the Agency's decision,
Petitioner has contributed to the body
of law in. which UST reimbursement decisions are based.
Moreover, the benefits
of this contribution are mostly to be appreciated by future Fund claimants
that can look to Board precedent
in shaping future decisions.
7. With respect to the specifics
ofthis appeal, the Board should award reimbursement of
fees for the same reason that legal fees were awarded in Swif-T Food Mart, which the Board
found to
be applicable precedent herein. There doesn't appear to be any relevant distinction
between that case and this one, other than the fact that in
Swif-T Food Mart, the Board had
rejected similar arguments once before, and in this case, the Board had rejected similar
arguments twice before.
8. In addition, the Agency, through the Attorney General's Office, raised an important
issue
of general applicability herein concerning the unauthorized practice oflaw. This was a
difficult, potentially dispositive issue that had not been raised on numerous prior occasions
4
involving similarly situated petitioners, and unfortunately Prime was the "lucky" petitioner that
was required to address this issue. Future petitioners (and future Boards) will presumably be the
beneficiaries
of Prime providing one side ofthe adversarial dialogue herein, and it would be
unfair for
Prime to solely bear those costs.
9. Prime brought this appeal, not merely to avoid payment of multiple deductibles, but
with the hope that cleaning up the property within the context
ofthe existing remediation project
would be quicker and ultimately more economical than starting over from the beginning. Doing
so will not only save money from the Fund, but promote public goals of a prompt clean-up.
9. Attached hereto as Exhibit A is an affidavit of Patrick D. Shaw, documenting the
legal costs
in
this matter, which are $10,803.18. This figure is the sum of the attorney fee
billable time ($10,257.50) and costs ($1,123.18), after one afternoon
of hearing preparation time
is deducted ($577.50) because the witness did not appear. This affidavit is modeled on the one
this office provided in support
of legal fees in the lllinois Ayers case, and which the Board found
sufficient to meet petitioner's prima facie burden
of evidencing litigation costs.
WHEREFORE, Petitioner,
PRIME LOCATION PROPERTIES, LLC requests that this
Board authorize the payment from the leaking underground storage tank fund the amount
of
$10,803.18 in attorney's fees and litigation costs to PRIME LOCATION PROPERTIES, LLC,
pursuant to 415
ILCS 5/57.8(1).
5
Respectfully submitted,
PRIME LOCATION PROPERTIES, LLC,
Petitioner,
BY:
MOHAN, ALEWELT, PRILLAMAN
&
ADAMI,
Its attorneys
BY:
Is/PatrickD.
Shaw
MOHAN,
ALEWELT, PRILLAMAN
&
ADAMI
1 N.
Old Capitol Plaza, Suite 325
Springfield, IL 62701-1323
Tel: (217) 528-2517
Fax: (217) 528-2553
\\Patrick\Patrick Shaw\My Documents\attyfeepet.wpdlcrk
9/17/093:07
pm
6
Electronic Filing - Received, Clerk's Office, September 17, 2009
STATE OF ILLINOIS
)
) ss.
COUNTYOFSANGAMON)
AFFIDAVIT OF PATRICK D. SHAW
VERIFYING ATTORNEY FEES
Affiant, Patrick D. Shaw, being first duly sworn, states as follows:
1.
The statements made herein are based upon my personal knowledge, and I am
competent to testify hereto.
2.
I am an attorney duly licensed to practice law in the
State of Illinois; and I am the
attorney
of record for Petitioner, Prime Location Properties, LLC in the case entitled Prime
Location Properties, LLC
v. Illinois Environmental Protection Agency, PCB 09-67.
3.
I represent Prime Location Properties, LLC solely in matters concerning the
appeal
ofthe Agency's Denial Letter, dated January 27,2009. I represent it on no other matters.
4.
My office specifically began working on this UST Appeal in April of2009, after
the Board directed Petitioner to obtain legal counsel.
5.
On May 29,2009, I received the Attorney General's Motion to Dismiss raising the
issue
of unauthorized practice of law as an uncurable jurisdictional defect.
6.
Subsequently, I prepared for hearing without the benefit of the Agency record that
was weeks late. Two working days prior to the hearing I prepared by outlining the necessary
evidence for post-hearing briefs. I also prepared at that time for testimony of a sponsoring
witness familiar with the submittals in this case. The witness was not available at hearing, but
the Agency brought the record to the hearing.
In
my opinion, no more than one of the two
preparation days touched upon the intended testimony; otherwise, the preparation involved work
that would have been done with or without a hearing.
In
this petition, Petitioner has agreed not
to seek reimbursement for one
of those days of hearing preparation, which resulted in $577.50 in
attorneys fees.
7.
Following the hearing, I researched and prepared the post-hearing briefs and took
no further action on this case until the Board's Order.
8.
Prime Location continues to incur legal expenses in seeking reimbursement of
legal costs. However, since those legal costs are somewhat of a moving target, being incurred as
these document are being prepared, the Petitioner is not seeking reimbursement
of those costs
unless for some unexpected reason, this becomes a protracted dispute.
9.
Attached hereto as Exhibit 1 is an accurate summary of the legal work done and
the legal fees incurred with respect to this matter. This summary has been taken from the actual
•
EXHBT
I
tl
I
Electronic Filing - Received, Clerk's Office, September 17, 2009
invoices and thus reflects actual work perfonned and fees incurred. The summary reveals the
date the
work was perfonned, the description of the work perfonned, the amount of time spent,
and the total fees incurred.
The hourly rates charged are commensurate with the prevailing rates
for environmental legal services
in Springfield, Illinois for 2009 and represent the rates charged
to all clients
of the respective attorneys.
FURTHER AFFIANT SA YETH NOT.
STATE OF ILLINOIS
)
) SS.
COUNTYOFSANGAMON)
The undersigned, a Notary Public in and for said County, in the State aforesaid, does
hereby certify that Patrick D. Shaw, personally known to
me to be the same person whose name
is subscribed to the above instrument, appeared before me today in person and acknowledged
that
he signed and delivered that instrument
as
his free and voluntary act, for the uses and
purposes
set forth.
Given under my hand and official seal, this / %day of September, A.D. 2009.
OFFICIAl SEAL
CINDY R. KOLLEY
NOTARY fUJUC. STATE OF UftOIS
MY
COlMStoN
EXPIa
8+2012
Patrick D. Shaw
MOHAN, ALE WELT, PRILLAMAN & ADAMI
I N. Old Capitol Plaza, Suite 325
Springfield,
IL 62701
Tel: (217) 528-2517
Fax: (217) 528-2553
C:\Mapa\Prime Location Prop\Afffor Atty Fees.wpdlcrk
9/16109
4:17 pm
2
Notary Publi
Mohan, Alewelt, Prillaman & Adami
1 North
Old State Capitol Plaza
Suite
325
Springfield,IL
62701-1323
Invoice submitted to:
Prime Location Properties,
LLC
P.O.
Box
242
Carbondale, IL
62903
September
16, 2009
Professional Services
April
2009
4/6/2009
Tel conf w/Mike Keebler (x2) re appeal.
4/13/2009
Prepare Petition for Review and Entry of Appearance.
4/20/2009
Review file and draft amended petition for review
Prepare Notice
of Filing and Proof of Service (x2), Amended Petition for Review
and Entry
of Appearance. Filed electronically.
4/21/2009
Prepare Notice of Filing, Proof of Service and Entry of Appearance for FCP.
SUBTOTAL:
May
2009
5/4/2009
E-mail rec'd from Carol Webb.
E-mail from Hrg Officer re acceptance
of case
Hrs/Rate
0.40
220.00/hr
1.20
220.00/hr
2.50
165.00/hr
0.50
220.00/hr
0.10
220.00/hr
4.70
0.10
220.00/hr
0.20
165.00/hr
Amount
88.00
264.00
412.50
110.00
22.00
896.50]
22.00
33.00
Electronic Filing - Received, Clerk's Office, September 17, 2009
Prime Location Properties, LLC
5/12/2009
Telephone conf.
wI
client; review court decision on applying deductable; email to
client re same
5/14/2009
Receive & review Board order
5/18/2009
Receive & review notice of hearing officer and hrg officer order
5/22/2009
Receive Notice, Appearance and Motion to Dismiss. Memo to PDS. Revise
memo to
PDS. Additional notes.
5/29/2009
Draft Itr to Mike Keebler transmitting docs
Receive & review motion to dismiss from A.G.; email
to client re same
SUBTOTAL:
June 2009
6/3/2009
Research attorney representation law; prepare response to motion to dismiss
6/4/2009
Revise response in oppositin to motion to dismiss and file
E-mail to
client regarding issues concerning late record
6/12/2009
Receive & review ltr and docs from Keebler
6/15/2009
Review docs; prepare and mark exhibits for hrg; e-mail to client reviewing issues
for hrg
6/16/2009
Prepare for hrg; email from client
6/17/2009
Attend hrg
6/19/2009
Receive & review Hrg Officer order, notice and agency record
Page
2
Hrs/Rate
Amount
3.40
561.00
165.00/hr
0.40
66.00
165.00/hr
0.60
99.00
165.00/hr
1.00
220.00
220.00/hr
0.80
132.00
165.00/hr
0.80
132.00
165.00/hr
7.30
1,265.00]
3.70
610.50
165.00/hr
6.00
990.00
165.00/hr
1.00
165.00
165.00/hr
0.90
148.50
165.00/hr
3.50
577.50
165.001hr
3.50
577.50
165.00/hr
1.50
247.50
165.00/hr
0.30
49.50
165.00/hr
Prime Location Properties, LLC
6/24/2009
Review administrative record; outline docs and begin preparing factual summaryl
chronology
'6/2512009
Draft statement of facts; continue review Agency record
612612009
Draft brief; email draft wI permit notes to Mike
6/29/2009
Revise and file brief
SUBTOTAL:
July 2009
71712009
Rec'd Notice, Response to Petitioners Post Hearing Brief.
7/812009
Review Agency response brief; e-mail copy to client; tel conf. wI client
7/9/2009
Review and draft reply brief; e-mail draft to client
7/13/2009
Revise and file reply
7/17/2009
E-mail to client a copy of reply brief
7/20/2009
Memo to PDS.
7/21/2009
Revise memo to PDS
(x2).
Draft motion for leave to file reply; draft waiver of decision deadline
SUBTOTAL:
For professional services rendered
Page
3
HrslRate
Amount
4.50
742.50
165.00/hr
5.50
907.50
165.00/hr
6.00
990.00
165.00/hr
0.50
82.50
165.00/hr
36.90
6,088.50]
0.10
22.00
220.00/hr
1.30
214.50
165.00/hr
5.90
973.50
165.00/hr
3.30
544.50
165.00/hr
0.30
49.50
165.00/hr
0.40
88.00
220.00/hr
0.30
66.00
220.00/hr
0.30
49.50
165.00/hr
11.90
2,007.50]
60.80
$10,257.50
Electronic Filing - Received, Clerk's Office, September 17, 2009
Prime Location Properties, LLC
Additional
Charges:
April
2009
4/30/2009
Postage for April
2009.
Photocopying for April
2009.
SUBTOTAL:
May
2009
5/31/2009
Lexis charges for May
2009.
Photocopying for May
2009.
SUBTOTAL:
June
2009
6/30/2009
Lexis charges for June
2009.
Photocopying for June
2009.
Postage for June
2009.
SUBTOTAL:
July
2009
7/31/2009
Lexis charges for July
2009.
Photocopying for July
2009.
Postage for July
2009.
SUBTOTAL:
Total additional charges
Page
4
Amount
1.18
5.20
6.38J
473.62
2.80
476.42J
244.22
157.60
2.88
404.70J
228.86
5.60
1.22
235.68J
$1,123.18
Electronic Filing - Received, Clerk's Office, September 17, 2009
