ILLINOIS POLLUTION CONTROL BOARD
    February 4, 1993
    JAMES LYNCH,
    )
    )
    Petitioner,
    )
    V.
    )
    PCB 92—81
    )
    (Underground Storage Tank
    ILLINOIS ENVIRONMENTAL
    )
    Reimbursement Determination)
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ORDER OF BOARD (by J. Theodore Meyer):
    This matter is before the Board on respondent Illinois
    Environmental Protection Agency’s (Agency) December 24, 1992
    motion for reconsideration. Petitioner James Lynch has not
    responded to the motion.
    The Agency seeks reconsideration of the Board’s November 19,
    1992 decision in this case. In that decision, the Board found
    that $7,338.74 in tank removal costs were corrective action
    costs, and were reimbursable from the Underground Storage Tank
    (UST) Fund. The Agency now asks the Board to reconsider that
    finding, and reverse its decision that the costs are reimbursable
    from the fund.
    The Board grants the motion for reconsideration so that it
    can address the arguments raised by the Agency. The Agency
    contends that the Board’s opinion and order does not indicate
    that relevant facts (i.e. that the release of petroleum wa.s
    discovered after petitioner initiated the tank removal) were
    considered within the context of an alleged “dual purpose” of the
    tank removal. The Board points out, however, that the testimony
    cited by the Agency was discussed in the November 19 opinion,
    where the Board stated “tc)ontamination was discovered during the
    course of the removal of the tanks, and a strong petroleum odor
    and discoloration of the soil was noted. (R.B at 13, 43, 52.; Tr.
    at 5-8.).” (Opinion at 2.) The Board therefore rejects the
    Agency’s contention that we did not consider relevant facts.
    The Agency maintains that the facts in this case indicate
    that the main intent of petitioner’s tank removal was to close
    his service station, not corrective action activity. Citing the
    Board’s decision in Southern Food Park v. Illinois Environmental
    Protection Agency (December 17, 1992), PCB 92-88, the Agency
    contends that since petitioner’s tank removal was not for the
    primary purpose of cleaning up a release of petroleum, that tank
    removal should not be considered corrective action activity.
    Thus, the Agency argues that petitioner’s tank removal costs are
    0139-0023
    2
    not reimbursable from the Fund.
    The Board has reviewed its decision in Southern Food Park,
    and finds that the language referred to by the Agency is not
    applicable to this case. In Southern Food Park, the Board
    determined that the replacement of concrete by the petitioner was
    not corrective action. That decision followed a line of cases
    which have determined that although concrete replacement could
    possibly be shown to be corrective action, the circumstances of
    those cases have not sup~ortedsuch a finding. However, this case
    involves the reimubursability of tank removal costs. The Board
    affirms its November 19 finding that the tank removal costs in
    this case did constitute corrective action, and are thus
    reimbursable.
    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.
    I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certi y that the above order was adopted on the
    I/Q7 day of
    _______________,
    1993, by a vote of ~
    Dorothy M.(~unn,
    Illinois r~gAlutionControl Board
    OI39-002~

    Back to top