ILLINOIS POLLUTION CONTROL BOARD
May 5,
1993
PRINCETON/BECK OIL
)
COMPANY,
Petitioner,
V.
)
PCB 93-8
)
(UST Fund)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
DANIEL J. McFADDEN,
VALLEY PETROLEUM EQUIPMENT MAINTENANCE CO.,
APPEARED ON BEHALF OF PETITIONER, and
TODD
F. RETTIG APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter
is before the Board on a petition for review
filed January
8,
1993 by Princeton/Beck Oil Company
(Beck)pursuant to Section 22.18b(g)
of the Environmental
Protection Act
(Act).
(415 ILCS 5/22.18b(g)
(1992).)
Beck seeks
review of a December
4,
1992 Illinois Environmental Protection
Agency (Agency) decision disallowing some costs for which Beck
sought reimbursement from the Underground Storage Tank
(UST)
Fund.
A hearing was held on March 24,
1993,
in Princeton,
Illinois.
No members of the public attended.
The only issue remaining in dispute is whether $1780
in
equipment and labor costs associated with compaction of backfill
is reimbursable from the UST Fund.
BACKGROUND
Beck owns an auto truck plaza on Interstate 80 in Princeton,
Illinois.
On January 30,
1992,
Beck became aware of a release of
petroleum.
Beck notified the Emergency Services and Disaster
Agency
(ESDA)1 of that release on January 31,
1992.
(Exh.
A.)2
There are nine USTs at the site.
Beck began corrective action on
February 21,
1992 by removing three of the tanks.
As part of the
ESDA is now known as the Emergency Management Agency.
2
Beck’s application for reimbursement,
which was not
included in the Agency record, will be indicated by “Exh.
A”, the
Agency Record,
Technical File, will be indicated by “R. A”,
and
the Agency Record,
Fiscal File,
will be denoted by “R. B.”
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initial activity, Beck removed those three tanks,
stockpiled
contaminated soil, and placed backfill in the excavation hole
next to a building to provide “needed support for the foundation”
of the building.
(R. A at 8.)
Eventually,
all nine tanks were
removed.
(Tr. at 27.)
Beck submitted an application for
reimbursement to the Agency, and on June 5,
1992,
the Agency
determined that Beck was eligible to access the Fund, subject to
a $10,000 deductible.
(R. A at 73.)
During the spring and summer of 1992 Beck submitted various
billing forms to the Agency for reimbursement.
On December 4,
1992,
the Agency
issued its final reimbursement determination
letter.
(R. A at 145-148.)
In its decision, the Agency made
seven adjustments to the amount of reimbursement requested by
Beck.
Beck had requested reimbursement of $175,719.15, and the
Agency allowed reimbursement of $155,755.15.
(R. A at 145-148.)
Beck then filed this appeal with the Board.
ISSUE
Beck originally contested all seven adjustments to its
requested reimbursement.
At hearing, Beck agreed not to contest
$120 of the first adjustment of $657 due to a math error,
and not
to contest the third adjustment of $31 in manifesting costs.
(Tr.
at 5; Pet. Br.
at 1-2.)
In its brief, the Agency states
that after considering the hearing testimony,
it agrees not to
contest adjustments 4,
5,
6, and $80.55 of
2.
(Agency Br.
at 2.)
The Agency then states that the remaining issue
is adjustment
7
of $1780
in equipment and labor costs associated with compaction
of backfill.
(Agency Br. at 2.)
Initially, the Board notes that the Agency does not address,
in its brief, the $537 remaining in adjustment
1 or the $18
remaining in adjustment
2.
In its brief, Beck states that “item
2 should be $18.00.”
(Pet.
Br.
at
1.)
Thus, the Board finds
that Beck and the Agency agree that the amount of adjustment
2
should be $18, instead of $98.55,
for an adjustment in handling
charges.
As to the remaining $537 of adjustment
1,
the Board
construes the Agency’s statements in its brief to recede from
contesting that $537.
Thus, the Board’s review is limited to
adjustment
7:
$1780 in equipment and labor costs associated with
compaction of backfill.
The Agency denied reimbursement of $1780
in equipment and
labor costs associated with compaction of backfill.
The Agency
found that those costs are not corrective action costs, and
therefore are not reimbursable.
The Agency stated that one of
the eligibility requirements for accessing the UST Fund is that
the costs incurred were corrective action costs which were
incurred as a result of a release of petroleum from
a UST.
(R. A
at 148.)
The statutory definition of “corrective action” states
in part:
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3
“Corrective action” means 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 response investigation,
mitigation of fire and safety hazards, tank removal,
soil remediation, hydrogeological investigations,
free
product removal, groundwater reinediation and
monitoring, exposure assessments, and the provision of
alternate water supplies.
(415 ILCS 5/22.18(e)
(1)
(C)
(1992)
.)
Beck notes that the Agency adopted emergency rules in
October 1992,
stating that backfill and compaction costs are
ineligible for reimbursement, but contends that it performed the
work six months before those rules were adopted.
Beck maintains
that the Agency’s guidance manual includes placement of backfill
material as an eligible cost,
and argues that if placement of
backfill material
is reimbursable, then compaction of that
material should also be reimbursable.
Beck contends that
compaction of backfill material is a mandatory construction
practice for excavations as deep as the one in this case.
Beck
argues that failure to compact would endanger the structure next
to the excavation,
and would be hazardous to traffic as the
material settled on its own.
In response, the Agency argues that this issue can be
decided by a straightforward application of the Board’s
corrective action “formula.”
The Agency notes that the Board has
previously held that in order to determine whether a given
activity is corrective action, the Board must determine whether
the activity was intended to stop, minimize, eliminate,
or clean
up a release of petroleum,
and whether the activity was of the
type contemplated by the statutory definition,
i.e. release
investigation, mitigation of fire and safety hazards, tank
removal,
etc.
The Agency contends that Beck’s compaction of
backfill fails the first part of the formula.
The Agency
maintains that Beck’s compaction of backfill was for the sole
purpose of shoring up the foundation of a building on the
premises,
and not to minimize,
eliminate,
or clean up a release
of petroleum.
The Agency states that compaction of the backfill
at the facility did not affect,
in any way, the amount of
contamination at the facility, and thus argues that the
compaction fails the first part of the corrective action formula.
Therefore, the Agency contends that the costs associated with
compaction are not reimbursable from the Fund.
After
a review of the record and the arguments of the
parties, the Board concludes that the costs associated with
compaction of backfill are not corrective action costs.
The
Agency correctly points out that determining whether costs were
incurred as a result of corrective action is a two—step inquiry:
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4
first, whether the costs were incurred as
a result of action to
stop, minimize, eliminate,
or clean up a release of petroleum,
and second, whether those costs are the result of activities such
as tank removal,
soil remediation, and free product removal. Both
requirements must be met in order for costs to be reimbursed as
corrective action.
(Enterprise Leasing Co.
v. Illinois
Environmental Protection Agency
(April
9,
1992),
PCB 91-174, slip
op.
at
5.)
We do not believe that compaction of backfill, under the
facts presented here,
meets the first part of the test.
Beck’s
witness testified that the backfill was compacted to provide a
solid foundation for a nearby building.
(Tr. at 36.)
The
compaction is analogous to the replacement of concrete.
These
actions restore the facility to its original condition.
While
such restoration may be beneficial to the property owner and
society,
it does not stop, minimize, eliminate,
or clean up a
release of petroleum.
As the Agency points out, the compaction
of backfill at the facility did not affect the amount of
contamination.
The Board has previously held that in most cases
the replacement of concrete is not corrective action, and is not
reimbursable.
(See,
e.g.,
Southern Food Park,
Inc.
v.
Illinois
Environmental Protection Agency
(December 17,
1992),
PCB 92-88;
Platolene 500,
Inc.
v. Illinois Environmental Protection Agency
(May 7,
1992), PCB 92—9.)
The appellate court has upheld the
Board’s finding that replacement of concrete is not corrective
action.
(Strube v. Illinois Pollution Control Board, No.
3-92-
0468,
slip op.
at 6—7
(3d Dist. March 15,
1993).)
Because we
find that compaction of backfill in this case is analogous to the
replacement of concrete,
since the compaction served to restore
the property, we find that the compaction does not meet the first
part of the corrective action test.
Thus,
those costs are not
reimbursable.
The Board is cognizant of Beck’s argument that although the
Agency’s October 1992 emergency rules do not allow for recovery
of compaction costs, the Agency’s guidance manual did allow
recovery for backfill, and thus Beck contends that compaction
costs should be allowed.
However, this Board has previously held
that the guidance manual
is a rule which was not properly
promulgated by the Agency pursuant to the Administrative
Procedure Act, and that therefore the manual has no legal or
regulatory effect in proceedings before the Board.
(Platolene
500,
Inc.
V.
Illinois Environmental Protection Agency
(May 7,
1992), PCB 92—9,
slip op.
at
5;
Strube v. Illinois Environmental
Protection Agency
(May 21,
1992),
PCB 91—205, slip op.
at 2-3.)
The proper inquiry in determining whether an activity is
corrective action is whether that activity meets both parts of
the statutory definition.
Because we have determined that
compaction of backfill in this case does not meet that
definition,
the costs are reimbursable.
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5
CONCLUSION
In sum, the Board finds that $1780
in equipment and labor
costs for compaction of backfill are not corrective action, and
thus are not reimbursable from the Fund.
This opinion constitutes the Board’s findings of fact and
conclusions
of law.
ORDER
The Board hereby affirms the Agency’s December 4,
1992
determination that $1780
in equipment and labor costs associated
with the compaction of backfill are not corrective action costs,
and thus are not reimbursable.
The Agency has agreed not to
contest adjustments 4,
5,
6, and $80.55 of adjustment
2,
and the
Board has construed the Agency’s brief as receding from
contesting $537 of adjustment
1.
Beck has agreed not to contest
$120 of adjustment
1,
and not to contest adjustment
3.
This case is remanded to the Agency for disbursement of the
additional
$8015 amount, consistent with this opinion and order.
This docket is closed.
IT
IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS
5/41) provides for the appeal of final Board orders.
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; Strube
V.
Illinois Pollution Control Board,
No.
3—92—0468,
slip op. at 4—5
(3d Dist. March
15,
1993).)
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the abçve opinion and order was
adopted on the
~
day of
_______________,
1993,
by a vote
of
5~o
.
7/
(1
Dorothy M.
çtthn,
Clerk
Illinois Pol~LutionControl Board
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I