BEFORE
TIlE
ILLINOIS
POLLUTION
CONTROL
BOARD
ai
S&D
REALTY,
INC.,
)
NOV
Petitioner,
)
2009
I
OIIL4jjfl
,
v.
)
PCB
09-33
°fltro%
)
(LUST
Appeal)
ILLINOIS
ENVIRONMENTAL
PROTECTION
)
AGENCY,
)
Respondent.
)
RESPONSE
TO
THE
RESPONDENT’S
MOTION
IN
LIMINE
NOW
COMES
the
Petitioner,
S&D
Realty,
Inc.
(hereinafter
“Petitioner”),
by
and
through
its
attorneys,
the
Law
Offices
of
Cohen
&
Hussien,
P.C.,
and
for
its
Response
to the
Respondent’s
Motion
In
Limine
states
as
follows:
Background
and
Facts
1.
On
June
13,
2008,
the
Petitioner
submitted
to
the
Agency
an
application
for
payment
from
the
Underground
Storage
Tank
Fund
for
Leaking
UST
incident
number
20050020
pursuant
to
§
57.8(a)
of
the
Illinois
Environmental
Protection
Act,
and
35
Ill.
Adm.
Code
732,
Subpart
F.
The
Agency
received
the
application
on
June 27,
2008.
The
application
for
payment
covers
the
period
from
January
8,
2005,
to
April 18,
2005.
The
amount
requested
was
$153,801.58.
2.
By
letter
dated
October
10,
2008,
the
Agency
made
a final
decision
on
the
Petitioner’s
application.
The
Agency
denied
Petitioner
reimbursement
in
the
amount
of$13,340.08
“for
costs
for
removal,
disposal,
or
abandonment
of
UST
if
the
tank
was
removed
or
abandoned,
or permitted
for
removal
or
abandonment,
by
1
the
Office
of the
State
Fire
Marshal
before
the
owner
or
operator
provided
notice
to
Illinois Emergency
Management
Agency
of
a release
of
petroleum,
pursuant
to
§
57.8(k)
of
the
Environmental
Protection
Act
and
35
Iii.
Adm.
Code
734.630(k).”
3.
The
Agency
also
denied
reimbursement
in
the
amount
of
$98,760.00
“for
costs
which
lack
supporting
documentation.
Such
costs
are
ineligible
for
payment
from
the
Fund
pursuant
to
35
Ill.
Adm.
Code
734.630(cc).”
4.
The
Agency
identified
two
costs
which
lacked
supporting
documentation.
First,
“Remediation
and
disposal
costs
do
not
have
backup
invoices
for
backfill
costs,
overburden
costs,
permit
costs,
in
the
amount
of
$46,960.00.”
Second,
“Paving
and
demolition
costs
do
not
have
backup
invoices
for
concrete
removal
and
replacement,
and
the
dismantling
and
reassembling
of gasoline
pumps
in
the
amount of
$51,800.00.”
5.
On
February
12,
2009,
the
Petitioner
filed
its
Petition
for
Review
of
the
Illinois
Environmental
Protection
Agency
decision
that
denied
reimbursement
for
the
costs
of
the
tank
removal
and
for
costs
which
lack
supporting
documentation.
On
March
5,
2009,
the
Board
granted
the
Petitioner’s
Petition
for
Review.
6.
On
September
3,
2009,
the
Petitioner
disclosed
Eric
D.
Hasman
as
a
retained
expert
to
testify
about
the
costs
for
the
work
that
was
completed
on
the
remediation
project
for
which
the
property
owner
does
not
have
the
physical
receipts and
invoices.
Also
included
with
said
disclosure
was
Mr.
Hasman’s
Report, dated
August
27,
2009,
and
Mr.
Hasman’s
resume.
7.
On
October
29,
2009,
the
Respondent
filed
its
Motion
In
Limine Directed
to
the
2
Hearing
Officer
to enter
an
order preventing
Mr.
Hasman
from
testifying
or
the
Petitioner
presenting
any
other
form
of
evidence
arising
from
or related
to
an
August
27,
2009,
report
prepared
by
Mr.
Hasman
concerning
the
UST
site
that
is
the
subject
of this
appeal.
Argument
8.
The
Respondent
claims
that
its
Motion
In
Limine
should
be
granted
because,
“in
reimbursement
appeals,
the
applicant
for
reimbursement
has
the
burden
to
demonstrate
that
costs
are
related
to corrective
action,
properly
accounted
for,
and
reasonable.”
Further,
the
Respondent
cites
35
Ill.
Adm.
Code
732.60
l(b)(9),
which
states
that
a complete
application
for
payment
must
include,
“An
accounting
of
all
costs,
including
but
not
limited
to,
invoices,
receipts,
and
supporting
documentation
showing
the
dates
and
descriptions
of
the
work
performed.”
Despite
the
Respondent’s
contentions,
the
Motion
In
Limine
should
be
denied.
9.
It
has
been
established
that
the
Petitioner
does
not
have
all of
the
physical
receipts
and
invoices
for
the
work completed
during
the
remediation
project.
This
is
due
in
part
because
the
Petitioner’s
general
contractor
for
the
remediation
project,
Courtesy
Services,
Inc.,
does
not
have
all
of
the
physical
receipts
and
invoices.
When
the
Petitioner
demanded
the
same
from
Courtesy
Services,
Inc.,
the
Petitioner
learned
that
the
principal
of Courtesy
Services,
Inc.
had
a
major
stroke
and
is not
able
to
assist
the
Petitioner
in
this
matter.
The
Petitioner
learned
that
all
of the
records
that
Courtesy
Services,
Inc.
has
for
the
Petitioner,
save
for
the
3
few
receipts
and
invoices
submitted
to
the
Agency
for
reimbursement,
are
missing.
10.
Despite
these
circumstances,
the
Petitioner
should still
be
allowed
to
recover
the
reasonable
costs
it
incurred
during
the
remediation
project
as
a result
of Mr.
Hasman’s
Report.
As
a
licensed
professional
geologist
with
experience
in
underground
storage
tank
removals
similar
to
the
case
at
hand,
Mr.
Hasman
has
the
type
of
scientific,
teclmical,
or specialized
knowledge
to
assist
the
trier
of
fact
to
determine
the
reasonable
costs
associated
with
the
completion
of
the
remediation
project
in
this
case.
In
turn,
Mr.
Hasman’s
Report,
which
was
based
upon
his
experiences
and
upon
a
reasonable
degree
of
geological
and
engineering
certainty,
clearly
lays
out
(1)
the
costs
that
are
related
to the
remediation
project,
(2)
that
these
costs
are
properly
accounted
for,
and
(3)
that
these
costs
are
reasonable.
11.
Further,
35111.
Adm.
Code
732.601(b)(9)
is not
inclusive,
as
the
Respondent
is
attempting
to
argue.
The
Code
simply
asks
for
an accounting
of
all
costs
from
supporting
documentation,
which
the
Report
provides.
It
should
be
noted
that
the
Report
is
not
adding
new
costs
to
the
amount
requested
in
its
original
application
to
the
Agency.
Rather,
the
Report
is
supplementing
the
application
by
showing
that
the
remediation
project
was
completed
and
showing
that
the
costs
requested
in
the
application
were
reasonable
for
the
type
of
work
that
was
done.
This,
in
turn,
serves
the
same
purpose
as
if
the
receipts
and
invoices
for
all
of the
costs
had
been
submitted
in the
application
to
the
Agency
in
the
first
place.
4
12.
While
the
Report
is
silent
on
the
exact
dates
that
the
work
was
performed,
there
is
no
question
that
the
work
was
completed.
The
Report
details
the
work
that
was
completed,
the
Report
references
photographs
that
were
taken
of
the
work
being
completed,
and
the
Respondent
never
challenges
the
fact
that
the
work
was
not
completed.
And
to
further support
this
contention,
on
page
3
of
the
Report,
Mr.
Hasman
states
that,
“It
should
be
noted
that
for
each
step
of
the
tank
removal
and
installation
a
representative
from
the
City
of
Chicago
Department
of
Environment
or
the
Fire
Department
is
on-site
to
document
or
inspect
the
removal
or
installation
of
the
USTs
and
piping.”
13.
The
Respondent
also
claims
that
its
Motion
In
Limine
should
be
granted
because
the
Board
will
not
consider
new
information
not
before
the
Illinois
EPA
prior
to
its
final
determination
regarding
the
issues
on
appeal.
14.
However,
the
Petitioner
could
not anticipate
that
the
Agency
would
decline
its
requests
for
reimbursement
due
to
the
lack
of
actual
invoices
and
receipts.
The
Petitioner
provided
all
the
documents
it
could
get
from
Courtesy
Services,
Inc.
Upon
the
Agency’s
rejection
of
its
reimbursement
package,
the
Petitioner
has
again
attempted
to
provide
sufficient
information
to
provide
reimbursement
to
the
Petitioner
through
the
disclosure
of
Mr.
Hasman
and
Mr.
Hasman’s
Report
to
show
the
reasonable
costs
associated
with
this
remediation
project.
The
Petitioner
therefore
should
be
allowed
to
supplement
the
Record
in
order
to
clarify
the
issues
raised
by
the
Agency’s
rejection.
Allowing
the
Petitioner
to
do
so
would
not
undermine
the
role
of
the
Agency
in
making
these
kinds
of
determinations
in
the
5
future.
WHEREFORE,
the
Petitioner,
S&D Realty
Inc.,
respectfiully
petitions
the
Illinois
Pollution Control
Board
to
deny
the
Respondent’s
Motion
In
Limine
and
for
any
other
relief
deemed
just
and
appropriate.
November
12,
2009
Respectflully
Submitted,
By:
QtQ
One
of
the
Petitioner’s
Attorneys
Law
Offices
of
Cohen
and
Hussien,
P.C.
Attorney
Number:
39565
Attorneys
for
Petitioner
6901
W.
1
th
Street
Worth,
Illinois
60482
(708) 361-3030
6