ILLINOIS POLLUTION CONTROL BOARD
    May 18,
    1995
    HERRIN SECURITY BANK,
    )
    Complainant,
    )
    v.
    )
    PCB 94—178
    )
    (Enforcement
    -
    Land)
    SHELL OIL COMPANY,
    )
    )
    Respondent.
    ORDER OF THE BOARD
    (by M.
    McFawn):
    This matter is before the Board on a motion to stay
    proceedings filed by complainant Herrin Security Bank
    (Herrin)
    on May
    1,
    1995.
    Respondent Shell Oil Company filed a response to
    the motion for stay on May 3,
    1995,
    opposing grant of the stay.
    Herrin filed a reply to the response accompanied by a motion for
    leave to file on May 16, 1995.
    The Board hereby grants
    complainant’s motion for leave to file and accepts its reply.
    In the motion for stay, Herrin seeks a stay pending an
    eligibility/deductibility determination by the Office of the
    State Fire Marshal,
    in order to determine whether cleanup costs
    at the site can be reimbursed from the Leaking Underground
    Storage Tank Fund
    (Fund).
    In support of the motion, Herrin
    states that it was not aware the tanks located at the site were
    registered,
    and thus eligible for reimbursement.
    Herrin states
    that, attached to a letter faxed by respondent’s counsel to
    complainant’s counsel was a “Notification for Underground Storage
    Tanks”, which indicated
    that 5 tanks at the site, including four
    gasoline and one used oil tank, were registered by Shell as the
    owner.
    Complainant thus asserts that the tanks may be eligible
    for reimbursement from the Fund with a $10,000 deductible.
    Complainant asserts that
    it is prudent to determine whether
    access to the Fund is possible prior to incurring additional
    costs, since it would significantly reduce the damages sought in
    this action.
    Respondent Shell opposes the stay.
    Shell states that it has
    expended “tens of thousands of dollars” to defend itself in this
    action.
    Shell contends that the tank registration form, which it
    supplied to Herrin, demonstrates that there was no kerosene or
    diesel fuel tanks on the property, as asserted by Herrin in its
    complaint.
    Shell asserts that it was not the owner or operator
    of the site,
    and that Herrin is aware
    of this.
    Shell further
    asserts that it
    is currently scheduling evidence depositions
    which are intended to show that there was no release, that Shell
    did not cause or contribute to a release,
    and that the
    remediation undertaken was unnecessary.
    Shell asserts that it
    would be unfair and unjust to require it to continue with this
    cause while complainant pursues reimbursement from the Fund.
    2
    In its reply, Herrin disputes the factual assertions made by
    Shell
    in its brief.
    Herrin asserts that it is seeking the stay
    in order to seek reimbursement from the Fund, which,
    if
    successful, will mitigate the damages sought.
    As described above, the parties have demonstrated that
    certain factual disputes exist concerning the site.
    However, the
    Board need not consider or attempt to resolve those disputes at
    this time.
    We find that respondent Shell has not demonstrated
    that it will be prejudiced by the grant of a stay in this matter.
    Furthermore, complainant has stated,
    “If the Bank is able to gain
    access to the Fund, the additional time and cost associated with
    addressing this claim may be unnecessary.”
    Therefore,
    while the
    Board is aware that we could proceed to determine liability in
    this matter prior to determining the appropriate damages, we find
    that complainant has demonstrated that allowing it to submit an
    eligibility/deductibility application to OSFN in order to seek
    reimbursement from the Fund may contribute to the expeditious
    resolution of this action.
    Accordingly, the motion for stay is
    hereby granted for a period of seventy-five days from the date of
    this order to allow complainant to seek an eligibility!
    deductibility determination from OSFM.
    At the expiration of this
    time period, the parties are to submit status reports to the
    hearing officer assigned to this matter.
    The hearing officer
    shall then proceed accordingly.
    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
    /~7~Z
    day of
    _________________,
    1995,
    by a vote of
    e~
    -~
    /L~J
    Dorothy N. ~tinn,Clerk
    Illinois PG~LlutionControl Board

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