ILLINOIS POLLUTION CONTROL BOARD

March 16, 1995

KALO GASOLINE COMPANY,

)

)

Petitioner,

v.

)

PCB 95—41

PCB 95—74

ILLINOIS ENVIRONMENTAL

)

(Consolidated)

PROTECTION AGENCY,

)

(UST

-

Appeal)

)

Respondent.

ORDER OF THE BOARD (by C.A. Manning):

This matter is before the Board on two motions for summary

judgment which were both filed by the Illinois Environmental

Protection Agency (Agency). The first motion, filed in PCB 95-41

on February 24, 1995, challenges only those portions of Kalo

Gasoline Company’s (Kalo) petition for review concerning “early

action” activities conducted at Kalo’s UST site. The Agency

argues that PCB 95-41 was brought for the purpose of challenging

the Agency’s December 16, 1994 final determination rejecting

Kalo’s Site Classification Completion Report, and at the time

the petition for review was filed on January 20, 1995, the Agency

had not made a decision on the issue of early action activities.

The Agency subsequently made a decision on Kalo’s submission of

early action costs on January 27, 1995.

In an attempt to cure the Agency’s concerns regarding the

timing and ripeness of the issue of “early action costs”, on

March 3, 1995, Kalo filed a second appeal solely challenging the

Agency’s January 27, 1995 decision denying early action costs in

amount of $56,000. This case is docketed as PCB 95—74 and was

consolidated with PCB 95-41 on March 9, 1995. The Agency’s

second motion for summary judgment essentially argues that

summary judgment is proper in this second appeal because the

Environmental Protection Act, 415 ILCS 5/57.6(b), prohibits

reimbursement for early action activities when they are conducted

after the submission of site classification plans to the Agency.

(3/13/95 Agency Motion at 2.)

Regarding the partial motion for summary judgment in PCB 95-

41, to which Kalo has not filed a response, Kalo does state in

its second petition for review, PCB 95-74, that it believes the

Agency’s motion for partial summary judgment to be moot. (PCB

95-74 Petition at 2.) We agree. Because Kalo timely filed a

petition for review of the Agency’s final determination regarding

early actions costs (PCB 95-74), an appeal which was consolidated

with PCB 95-41, the issue of early action costs is now properly

before the Board. The Agency’s motion is, therefore, moot.

---

2

Regarding the motion for summary judgment in PCB 95-74, no

response has yet been filed but the response time of seven days

has not yet expired. However, because this matter is scheduled

for hearing on April 12, 1995, we find that undue delay or

prejudice may result if the motion for summary judgment is not

now addressed. (35 Ill. Adm. Code 101.241.)

The Agency argues that Section 57.6(b) is a bar to

reimbursement if early action is performed after a site

classification plan is submitted. We disagree. Section 57.6(b)

allows an owner or operator the latitude to perform early action

activities, including tank removal, without having to go through

a plan—submittal process before the Agency. On its face, Section

57.6(b) is not necessarily a bar to reimbursement as the Agency

contends. Instead, seeking reimbursement from the UST Fund is

limited by Section 57.5(a), which provides that costs will not be

reimbursed if they exceed the minimum requirements necessary to

comply with this Environmental Protection Act and by the Board’s

regulations governing early action at 35 Ill. Adm. Code 732.200

et

seq.

Thus, factual issues remain for hearing such as whether

the early action performed by Kalo exceeded the minimum

requirements necessary to comply with the Environmental

Protection Act or whether the activities performed at the site

constitute “early action.” Summary judgment in PCB 95—74 is

therefore denied.

IT IS SO ORDERED.

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

Boa~, hereby certify that the above order was adopted on the

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day of

7~

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,

1995, by a vote o~

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I

/

Dorothy M.iGunn, Clerk

Illinois 1?1ollution Control Board