ILLINOIS POLLUTION CONTROL BOARD
August 13,
1992
MARTIN OIL MARKETING,
#64
)
Petitioner,
v.
)
PCB 92—53
(Underground Storage
ILLINOIS ENVIRONMENTAL
)
Tank Reimbursement)
PROTECTION AGENCY,
Respondent.
PHILLIP DITTAMORE
AND
DONALD WATERLANDER APPEARED ON BEHALF OF
PETITIONER~
DANIEL MERRIMAM
AND
JEANNE HEATON, ENVIRONMENTAL PROTECTION
AGENCY, APPEARED ON BEHALF OF THE RESPONDENT.
OPINION
AND
ORDER
OF THE BOARD
(by
13.
Forcade):
This matter comes before the Board on a petition for
review of an underground storage tank reimbursement
determination filed by Martin Oil Marketing
(Martin) on April
8,
1992.
The petition seeks review of the Environmental Protection
Agency’s
(Agency) determination that $62,904.64
in costs
associated with the removal of underground storage tanks
(USTs)
were ineligible for reimbursement.
A hearing was held on this
matter on June 11,
1992,
in Chicago,
Illinois.
*
No members of th~
public attended the hearing.
The parties chose not to file
briefs but relied on closing arguments.
FACTS
Martin owns and operates a service station located at 3554
W. North Ave.
in Chicago,
Cook County,
Illinois.
This site
contained sixteen underground storage tanks.
The tanks consistec
of six 4,000 gallon gasoline tanks,
a 4,000 gallon kerosene tank
and nine tanks
(seven 4,000 gallon and two 550 gallon)
containinc
inert materials.
(R.A’ at 35.)
Martin estimated the dates that
the nine tanks were last used as:
one in 1964,
two in 1970,
fivE
in July of 1982 and one in September of 1984.
(R.A at 24
—
26.)
Martin notified ESDA (Emergency Services and Disaster Agency)
of
a leak from the underground storage tanks on October 30,
1990.
(R.B at 4.)
On January 8,
1991,
Martin forwarded an application for
reimbursement from the underground storage tank fund to the
“R.A at
“
references the technical file of the
Agency record.
“R.B at
“
references the fiscal
file of the Agency record.
0135-0293
2
Agency.
(R.A at
2
-
21.)
The Agency informed Martin that the
nine tanks containing inert material were not eligible for
reimbursement and that a breakdown of costs separating the cost
for the ineligible tanks was required before the Agency could
further review the application.
(R.A at 34
-
35.)
Martin
provided the Agency with an estimate of the costs for the removal
of the abandoned tanks and the disposal of the inert material in
the tanks.
(R.A at 44
—
45.)
This cost was estimated as
$19,519.84.
(R.A at 45.)
On March
6,
1992, the Agency informed Martin that $62,904.64
in costs were denied reimbursement.
(R.A at
55
—
57.)
The amount
in issue,
$62,904.64 is comprised of $27,043.50 for concrete
replacement,
$150.00 for expenses incurred prior to notification
of ESDA,
$16,139.56 in undocumented costs,
$51.74 for costs that
were double billed and $19,519.84 for costs associated with tanks
that were unregistered.
(R.A at 57.)
Martin is not contesting the denial of.costs that were
incurred prior to notifying ESDA.
(Tr. at 8.)
Martin has
submitted additional documentation to the Agency and the Agency
has approved reimbursement of the costs that were previously
denied due to lack of documentation.
(Tr. at 9.)
The Agency also
reviewed the charges that were denied reimbursement because of
double billing and determined these charges to be reimbursable.
(Tr.
at 9.)
Therefore,
the costs still at issue are the cost for
concrete replacement and the costs associated with the removal of
the unregistered tanks.
(Tr. at 5.)
DISCUSSION
Replacement of Concrete
Martin argues that the Agency has previously reimbursed for
costs associated with the replacement of concrete.
Martin also
argues that the replacement of concrete was part of the
corrective action plan submitted to the Agency.
Martin further
argues that if it had known that the replacement of concrete was
not reimbursable,
it would have selected an alternate method of
remediation.
Martin argues that the Agency indicated that the
costs of concrete replacement would be reimbursable by previously
allowing such reimbursement and by approval of the corrective
action plan containing concrete replacement.
(Tr. at 14.)
The Agency contends that the replacement of concrete is not
reimbursable because it is not corrective action.
The Agency
does not deny that it may have previously allowed reimbursement
for the replacement of concrete but admits that this was in error
and occurred during the early years of the reimbursement program.
The present policy of the Agency is that reimbursement is not
allowed for the replacement of concrete.
The Agency also. relies
•OI35-O29L~
3
on previous decisions of the Board upholding
-
Agency’s denial
of reimbursement for the cost of replacement of concrete.
The corrective action plan submitted by Martin does not
specifically mention the replacement of concrete
(Tr. at 31) but
the need to replace the concrete could reasonably be assumed due
to the nature of the plan.
The approval of a corrective action
plan cannot be construed as an approval for reimbursement.
Approval of a corrective action plan does not mean that the
measures approved are eligible for reimbursement.
The Agency
noted in a letter to Martin that the technical review of the site
and the reimbursement review are conducted separately.
(R.B at
154.)
Mr. Bur Filson of the Agency, described the review of the
corrective action plan and reimbursement as two separate
functions.
(Tr. at 108.)
The Board has held that the Agency
is
not in a position to make pre—determinations on the reimbursement
of specific costs because the Agency has not promulgated rules
concerning which costs are reimbursable.
(Strube v. IEPA
(May 21,
1992), PCB 91—205, _PCB_.)
Mr. Mehrens,
of RAN Engineering, testified that he was
personally involved in a site where reimbursement was allowed for
the replacement of concrete and was aware of other cases.
(Tr.
at
35.)
Mr. Mehrens notes that there were some differences between
the two cases but the method of remediation was the same.
(Tr.
at 36
—
37.)
The other case referenced by Martin occurred
sometime in 1990.
(Tr.
at 34.)
The Agency admits that this was
early in the development of the program and may have been an
oversight.
(Tr. at 131.)
Reimbursement from the fund
is governed
by the statute and not by previous determinations of the Agency.
The statute allows for reimbursement from the fund “for
costs of corrective action or indemnification.”
(Section
22.l8b(a).)
In Platolene 500,
Inc. v. IEPA
(May 7,
1992), PCB
92-9,
____PCB
,
the Board held that in most cases the
replacement of concrete
is not corrective action and is not
reimbursable.
(See also Strube
v.
IEPA (May 21,1992), PCB 91—
105,
PCB,
Warren’s Service v. IEPA (June
4,
1992), PCB 92—
22,
PCB
and Bernard Miller (July
9,
1992), PCB 92—49,
PCB.)
Martin does not argue that the replacement of
concrete at its site was corrective action.
There are no facts
in this case to show that the concrete was replaced as a
corrective action.
Reimbursement
is only allowed for corrective
action and Martin has failed to show that the replacement of
concrete at the site was a corrective action.
Therefore the Board affirms the Agency denial of
reimbursement of $27,043.50 for the replacement of concrete.
0135-0295
4
Unregistered tanks
Martin contends that they made every effort to register the
tanks with the Office of the State Fire Marshall
(OSFM).
The
registration form included all sixteen tanks located at the site.
(R.A at 22
—
26, Tr. at 59.)
In Village of Lincolnwood v. IEPA (June
4,
1992), PCB 91-83,
PCB
,
the Board held that it “has no authority over
registration of UST5 and, therefore, the issue of whether the
USTs, could, should, or might be registered is not material to
the Board’s review..”
Any determination of registration is made
by the OSFM and is not reviewable by the Board.
The records of
the OSFM indicate that of the sixteen tanks on the site only
seven were registered by the OSFM.
(Tr. at 143.)
The remaining
nine tanks were not eligible for registration because the tanks
did not meet the OSFM’s definition of a tank for registration
purposes.
(Tr. at 146.)
In addition Martin argues that the removal of the nine
unregistered tanks was necessary to remove the contaminated soil
in the area of the tank.
Martin contends that the removal of the
nine tanks was a corrective action and is reimbursable.
Martin
argues that because the tanks were properly abandoned in place,
the removal of the tanks was not required.
(Tr. at 80.)
The
engineer for Martin contends that the only reason for the removal
of the tanks was to reniediate the area.
(Tr.
at 80.)
Martin
further contends that the removal of the tanks is similar to the
removal of other objects discovered during the excavation.
Martin contends that the removal of foundation or other objects
would be reimbursable and therefore the removal of the tanks
should be reimbursable.
Mr. Mehrens of RAN Engineering,
testified concerning a hypothetical situation.
Q.
So an object which was buried which was blocking your
access to contaminated soil would most probably have to be
removed prior to excavating the contaminated soil?
A.
The decision would be made on each particular object,
yes, on whether or not it’s cost effective to remove.
Q.
And in your opinion you felt it was cost effective to
remove the nine unregistered tanks.
A.
Yes.
Tr. at 85.
The Agency argues that the amount deducted represents the
cost of removal and transport of the unregistered tanks and the
material contained in the tanks.
The Agency contends that the
tanks were not registered and the cost of corrective action
0135-0296
5
associated with unregistered tanks is not reimbursable in
accordance with Section 22.18b(a) (4).
In Village of Lincolnwood v.
IEPA June 4,
1992, PCB 91—83,
PCB_ and City of Lake Forest v. IEPA June 23,
1992, PCB 92-36,
—
—
PCB_,
the Board enforced the statutory requirement of Section
22.18b(a) (4)
that a tank must be registered to be eligible for
reimbursement.
Based on the facts of this case and the arguments
presented by Martin
it is evident that further discussion of this
requirement
is needed.
Section 22.18b(a) specifies the requirements that must be
meet to be eligible to receive monies from the fund.
All six of
the listed requirements must be satisfied for eligibility.
The
tank referenced in Section 22.l8b(a)(4)
is the leaking tank that
is the source of the contamination.
To be eligible for
reimbursement from the fund the costs of corrective action must
be incurred as a result of a release of petroleum from an
underground storage tank (Section l8b(a)3)
and the tank must be
registered.
(Section 18b(a)4.)
Corrective action is defined in Section 22.18(e) (1) (C)
of
the Act as:
an action to stop, minimize, eliminate, or clean up
a release of petroleum or its effects as may be
necessary or appropriate to protect human health and
the environment.
This includes but is not limited to,
release investigation, mitigation of fire and safety
hazards, tank removal, soil remediation,
hydrogeological investigations,
free product removal
and groundwater remediation and monitoring,
exposure
assessments, the temporary or permanent relocation of
residents and the provision of alternate water
supplies.
The removal of the tanks satisfies the definition of corrective
action in that the tanks were removed to clean up a release of
petroleum.
To be eligible for reimbursement the corrective
action must be related to a leak from a registered tank.
The removal of the unregistered tanks would need to be corrective
action to clean up a release of petroleum from the seven
registered tanks to be eligible for reimbursement.
Mr. Mehrens testified as follows on the source of the leak:
I would also like to say,
I don’t know for certain that
there’s a release
—
—
I mean which tank actually had a
release.
In other words,
I can’t say that these nine tanks
caused the release or these seven tanks caused the release.
Tr.
at 82.
0135-0297
6
In the application for reimbursement Martin noted “it is not
known at this time which tank system is responsible for the
release.”
(Tr. at 90, R.A at 4
—
8,
11, 12.)
The contamination
at the station encompassed a large portion of the station.
(R.B
at 114.)
Most of the tanks were pitted and/or contained holes.
(R.B at 103.)
The burden of proof in appeals of reimbursement
determinations is on the petitioner.
(Sections 22.18b(g) and
40(a)(1).)
Martin has failed to show that the corrective action
cost of removing the unregistered tanks was a corrective action
related to the remediation of a leak from a registered tank.
Martin is unable to determine the source of the petroleum leak.
(Tr. at 82.)
The abandoned tanks contained holes as did the
tanks
in use.
(R.B at 103.)
The reason for taking the nine tanks
out of service was that they were “no longer needed for
operation.”
(Tr.
at 94, R.A at. 9,
10,
13
-
19.)
Martin did not
offer any evidence that indicates that the leak of petroleum was
not from any of the abandoned tanks.
Under a different fact situation where it could be proven
that the removal of the unregistered tank was a corrective action
associated with leakage exclusively from a registered tank,
the
cost would be eligible for reimbursement.
The Agency argues that
allowing reimbursement for the removal of unregistered tanks as
corrective action in the remediation of other tanks would obviate
the registration requirements of Section 22.l8b(a)(4).
(Tr. at
174.)
The Board believes that the above interpretation of the
statute will have no effect on the need for tanks to be
registered.
Registration of the tank is required to be eligible
for reimbursement from the fund for corrective actions related to
the registered tank.
Where active UST systems are operated near closed tanks or
in multi-tank systems it can be difficult to accurately determine
which tanks caused the contamination or what degree of
contamination is related to each leaking tank.
Where registered
and unregistered tanks are located at a common site it may be
necessary to apportion the costs of corrective action
accordingly.
The Agency approved reimbursement for the removal
and disposal of the soil around the unregistered tanks.
(Tr. at
174.)
Given the facts of the case and the difficulty in
determining the sources of the contamination the Board finds this
to be a reasonable method of apportioning costs.
This opinion constitute’s the Board’s findings of facts and
conclusions of law in this matter.
0135-0298
7
ORDER
The Board affirms the Agency denial of reimbursement of
$27,043.50 for concrete replacement because it is not corrective
action.
The Board also affirms the denial of reimbursement of
$19,519.84 for the removal of unregistered tanks because the
removal of the tanks was not proven to be corrective action to
clean up a release of petroleum from a registered tank.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(Ill.
Rev.Stat.
1991,
ch.
111 1/2, par 1041) provides for appeal of
final orders of the Board within 35 days.
The Rules of the
Supreme Court of Illinois establish filing requirements.
(But see
also 35 Ill. Adm. Code 101.246, Motions for Reconsideration,
and
Castenada v.
Illinois Human Rights Commission
(1989),
132 Ill.
2d
304,
547 N.E.2d 437.)
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the _____________day of________________________
1992,
by a vote of
________.
--
•
.
~1
~
~.
~
•-.
Dorothy N. Gunn, ~Clerk
Illinois Pollution Control Board
0135-0299