ILLINOIS POLLUTION CONTROL BOARD

April 8, 1993

KEWANEE COMMUNITY UNIT SCHOOL   

)

DISTRICT NO. 229,

Petitioner,

)

PCB 93-39

(UST Fund)

ILLINOIS ENVIRONMENTAL      

)

PROTECTION AGENCY,         

)

Respondent.

ORDER OF THE BOARD (by J. Theodore Meyer):

This matter is before the Board on a March 30, 1993 motion

£ or summary judgment, filed by respondent Illinois Environmental

Protection Agency (Agency). Petitioner Kewanee Community Unit

School District No. 229 (Kewanee) filed its response in

opposition to the motion on April 2, 1993.

The Agency contends that all costs which are the subject of

this appeal were incurred before Kewanee notified the Illinois

Emergency Services and Disaster Agency (ESDA). The Agency points

to prior Board decisions holding that costs incurred before ESDA

was notified of a release should not be reimbursed. (North

Suburban Development Corp. v. Illinois Environmental Protection

Agency (December 19, 1991), PCB 91—109; Kronon Motor Sales, Inc.

v. Illinois Environmental Protection Agency (January 9, 1992),

PCB 91-138, aff’d. Kronon Motor Sales, Inc. v. Pollution Control

Board (1st Dist. October 30, 1992), No. 1-92-1032.) Thus, the

Agency maintains that because the costs in dispute were clearly

incurred before notification of ESDA, and because the disputed

costs in combination with the $10,000 deductible total more than

the amount sought by Kewanee, there are no reimbursable costs for

the Agency to pay. The Agency asserts that there is no genuine

issue of material fact, and that it is entitled to summary

judgment.

In response, Kewanee disputes the Agency’s contention that

there is no genuine issue of material fact. Kewanee states that

it does not dispute that a $10,000 deductible is applicable, nor

does it dispute that costs incurred before ESDA notification do

not qualify for reimbursement. However, Kewanee does contend

that there is a genuine issue of material fact as to how much of

the disputed costs were billed prior to ESDA notification.

Kewanee argues that the Agency has erroneously doubled the

expenditures for two months before ESDA notification, by listing

the backup for the invoices as separate bills. Kewanee has

included an affidavit from its consultant, stating that two pages

01

i-UI 29

2

of costs referred to by the Agency (R. at 69, 82) are not

separate bills but are documentation of two invoices. (R. at 62,

65.) In sum, Kewanee maintains that because of this factual

dispute, summary judgment must be denied.

After reviewing the record, the Board finds that there is a

genuine issue of material fact as to what costs were incurred

prior to ESDA notification. It is not possible to tell, from the

face of the record, whether the pages in dispute comprise

separate bills or backup documentation. Because there is a

genuine issue of material fact, summary judgment is not

appropriate. Therefore, the Agency’s motion is denied.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Bo~r~.hereby certi~ythat the above order was adopted on the

day of 

________________,

1993, by a vote of ~

—

i—--

~

it -

~borothy M. Gu~n, Clerk

Illinois Po1,~4ition Control Board

UIL~t-UI3O