ILLINOIS POLLUTION CONTROL BOARD
September
12,
1991
BEER MOTORS,
INC.,
)
Petitioner,
v.
)
PCB 91—120
)
(Underground Storage Tank
ILLINOIS ENVIRONMENTAL
)
Fund Reimbursement)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter is before the Board on the Illinois Environmental
Protection Agency’s (Agency) motion for summary judgment,
filed on
August
27,
1991.
Petitioner
Beer.Motors,
Inc.
(Beer)
has
not
responded to the motion.
On
December
17,
1990,
Beer
applied
to
the
Agency
for
reimbursement
from
the Underground
Storage
Tank
(UST)
Fund
for
corrective
action
costs.
On
January
24,
1991,
the
Agency
determined
that Beer
is eligible for reimbursement,
subject
to a
$50,000 deductible.
(Rec.
at 32—33.)
The Agency stated that the
$50,000 deductible applied pursuant to Section 22.18b(d) (3) (C) (ii)
of the Environmental Protection Act (Act), which provides:
If the costs
incurred were
in response to a release
of
petroleum which first occurred prior to July 28, 1989 and
the
owner
or
operator
had
actual
or
constructive
knowledge that such a release had occurred prior to July
28,
1989,
the
deductible
amount
...
shall
be
$50,000
rather than $10,000...
Ill.Rev.
Stat.
1989,
ch.
111
1/2,
par.
1022.18b(d) (3) (C) (ii)
On February
8 and May 20,
1991,
Beer requested
a review of
the
Agency’s determination,
contending that it had no knowledge
of a
release
until June
1,
1990,
and that
thus
a
$10,000 deductible
should
apply.
(Rec.
at
24-26.)
On June
12,
1991,
the Agency
reaffirmed its decision that a $50,000 applies to Beer.
(Rec.
at
27.
)
Beer filed this appeal with the Board on July
17,
1991.
In its motion for summary judgment,
the Agency contends that
there is no genuine issue of material fact in this matter and that
the Agency is entitled to judgment as a matter of law.
The Agency
maintains that a release occurred prior to July 28,
1989, and that
126—75
2
Beer had constructive, if not actual, knowledge of a release before
July 28,
1989.
In support of these claims, the Agency notes that
in May 1989 O’Brien
& Associates,
Consulting Engineers (O’Brien)
performed
soil
sampling
on
Beer’s
property
on
behalf
of
a
prospective purchaser of the property.
On June
9,
1989,
O’Brien
notified the prospective purchaser’s attorney, Leon Teichner, that
its tests indicted that the property contained elevated levels of
benzene and xylene.
(Rec.
at 5.)
Mr. Teichner forwarded a copy
of O’Brien’s report to Beer on June 9,
1989.
(Rec.
at
8..)
Beer’s
tanks weTe taken out of service on July 8,
1989
(Rec. at 39).
On
July
14,
1989,
O’Brien
performed
additional
testing
on
the
property, at Beer’s request.
These tests indicated that levels of
benzene, toluene, and xylene were below Agency clean—up objectives.
(Rec.
at 10-11.)
The tanks were removed on June
1,
1990.
(Rec.
at 16-17;
39.)
The Agency asserts that these
facts, contained in
the record of this proceeding,
show that a release occurred prior
to July 28,
1989,
and that Beer had constructive,
if not actual,
knowledge of that release.
Beer
did
not
file
a
response
to
the
motion
for
summary
judgment.
However, after examining the statute and the record, the
Board denies the Agency’s motion for summary judgment. O’Brien’s
May
1989
testing
does
indicate
that
there
may
have
been
contamination on the property prior to July 28,
1989, although the
results of the July 14,
1989 testing show that levels of benzene,
toluene, and xylene were below clean—up objectives.
However, the
Agency has focused
simply
on
the
issue
of contamination
on the
property, without focusing on the fact that contamination does not
necessarily equate with a release.
35 Il1.Adm.Code 731.112 defines
“release” as:
any spilling, leaking,
emitting, discharging,
escaping,
leaching
or
disposing
from
a
UST
into
groundwater,
surface water or subsurface soils.
(emphasis added.)
Therefore, the relevant issue is whether the contamination is the
result of spilling,
leaking,
or discharging from the tanks.
The
record contains
a number of suggestions as to the source
of the
contamination discovered in May 1989.
Various suggestions include
surface spills, leakage from USTs,
leakage of diesel fuel from a
piece of construction equipment,
and off—site contamination from
the Shell Oil tank farm adjacent to the Beer property.
(Rec.
at
5,
11,
17,
20,
and
24.)
Based
upon
the varying
information
contained in the record, the Board finds that there is indeed a
genuine material issue of fact in this proceeding,
as to whether
a release occurred prior to July 28,
1989 and to whether Beer had
actual or constructive knowledge of a release.
The Board notes that the Agency asserts that the June 9, 1989
letter from O’Brien to Mr. Teichner states that the contamination
is the result
of
a
release
or
spill
from the UST
system.
The
1~gencycontends:
126—76
3
According to the letter from O’Brien to the attorney for
the
purchasers
of
the
Property
~sic
dated
June
9,
l990sic
the native
soils
are relatively
impermeable
clays therefore, contamination at this depth must be the
result
of
a
release
from
the
.
.
.UST
system
or
very
serious spillage from the UST system.1
(Agency motion at 7.)
However, the letter actually states:
With the available
information,
it
is not possible to
accurately
determine
the source
of the contamination.
Because the lot has a gravel surface and the majority of
the
native
soils
are
relatively
impermeable
clays,
contamination from surface spillage is a likely cause.
Less likely causes
include
leakage
from the
tanks and
off—site contamination.
(Rec.
at 5.)
The Board believes that
it
is improper to characterize
a letter
which
actually
states
that
leakage
from
the
tanks
is
a
“less
likely”
source
of
contamination
as
saying
that
the
source
of
contamination “must be” leakage from the liST system.
The Agency’s motion
for summary judgment
is
denied.
This
matter will proceed to hearing.
IT IS SO ORDERED.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby
certify
that
the
above
Order was
adopted
on
the
//~rz~
day of
~
1991, by a vote of
70
I
7/
~
I~2.
~
Dorothy M.,4unn,
Clerk
Illinois P6~lutionControl Board
1
The Board notes that the Agency cites
a June
9,
1990 date
for this letter.
The Board believes that the Agency is referring
to the June 9,
1989 letter from O’Brien to Mr. Teichner.
126—77