ILLINOIS POLLUTION CONTROL BOARD
    June
    4,
    1992
    ENTERPRISE
    LEASING
    COMPANY,
    )
    )
    Petitioner,
    )
    v.
    )
    PCB 91—174
    (Underground Storage
    ILLINOIS ENVIRONMENTAL
    Tank Fund)
    PROTECTION AGENCY,
    )
    Respondent.
    ORDER OF THE BOARD
    (by 3.
    Theodore Meyer):
    This matter is before the Board on the Illinois
    Environmental Protection Agency’s (Agency) May 18,
    1992 motion
    for reconsideration.
    The Agency asks the Board to reconsider its
    April
    9,
    1992 decision in this appeal.
    Enterprise Leasing
    Company
    (Enterprise)
    filed its response to the Agency motion on
    May 28,
    1992. The Board grants reconsideration so that it can
    clarify its April
    9 decision and respond to the Agency’s
    arguments.
    The Agency seeks reconsideration of the Board’s April
    9
    decision that $27,871.68
    for, costs associated with tank removal
    is reimbursable by the Underground Storage Tank Fund.
    The Agency
    contends that the Board’s decision in this case is inconsistent
    with its prior decision
    in Rosxnan v.
    Illinois Environmental
    Protection Agency
    (December’ 19,
    1991), PCB 91-80.
    Additionally,
    the Agency argues that the tank removal
    in this case does not
    constitute “corrective action” under the statute.
    (Ill.Rev.Stat.
    1989,
    ch.
    111
    ½,
    par. 1022.l8(e)(1(C).)
    Enterprise responds in
    opposition to the Agency’s motion, contending that the Board’s
    April
    9 decision correctly focused on whether the tank removal
    costs met the statutory definition.
    Enterprise maintains that
    those costs do meet the definition of “corrective action”.
    As stated in our April
    9 decision, the Board believes that
    the Agency has read the decision in Rosman too narrowly.
    Rosman
    turns on whether the tank removal met the statutory definition of
    “corrective action”, and that is the inquiry which was the focus
    of the April
    9 decision in this case.
    However, the Agency
    continues to focus instead on other language in the Rosinan
    opinion, which is
    included in the discussion of tank removal as
    corrective action.
    As the Board stated in our April 9 decision,
    the inclusion of the statement in Rosman that tank removal
    is
    corrective action only when in response to a preidentified
    release was erroneous.
    The Agency’s interpretation ignores the
    Board’s statement in Rosman that:
    13
    4—4
    1
    2
    w)hile
    the Agency equates costs which are not related
    to corrective action with a “planned removal”, we fail
    to see the correlation.
    Simply because a tank removal
    is planned does not rule out the possibility of
    corrective action.
    (Rosman at 7.)
    As the Board stated on April
    9, the heart of the inquiry in
    Rosman was whether the tank removal constituted “corrective
    action”.
    That was the focus of the Board’s determination in this
    case.
    The fact that the result in Rosman was different than the
    result in this case does not mean that the cases are
    inconsistent.
    The Agency also contends that Enterprise’s removal of its
    tanks did not constitute corrective action under the statute.
    The Agency argues that Enterprise’s actions fail the first part
    of the two—step test: whether the actions were for the purpose of
    stopping, minimizing,
    eliminating, or cleaning up a release of
    petroleum.
    The Agency maintains that because Enterprise had
    planned on removing the tanks, the tank removal costs fail that
    test.
    Although the Agency recognizes that Enterprise undertook
    other remedial activities after discovering a release, the Agency
    asserts that it was never supplied with a breakdown of costs
    associated with remedial activities
    (as opposed to strict tank
    removal costs)
    prior to the Agency’s final decision on August 15,
    1991.
    The Board rejects the Agency’s claims.
    First, the Agency
    continues to argue that because Enterprise had planned on
    removing the tanks, the tank removal costs do not meet the first
    test under the definition of corrective action.
    This argument
    ignores the Board’s previous finding, both in Rosman and in this
    case, that simply because a tank removal is planned does not
    exclude the possibility of that removal meeting the definition.
    The Agency’s argument is circular:
    despite the Board’s holding
    that a tank removal in~yconstitute corrective action even if it
    is planned, the Agency continues to assert, without more,
    that
    the Board’s decision was wrong because a planned tank removal
    cannot constitute corrective action.
    Second, the Agency’s contention that it was not supplied
    with a breakdown of costs of remedial activities prior to its
    final decision on August 15, 1991,
    is simply not true.
    In fact,
    the Agency itself noted in its initial brief that it requested a
    further breakdown of costs on June 6,
    1991, that it waited until
    August
    1,
    1991 for a response to that request, that it sent a
    voucher to the Comptroller’s office on August 8,
    1991,
    and that
    it received Enterprise’s response to the request on August
    9,
    1991.
    The Agency stated that it did not consider this response
    because the voucher had already been sent to the Comptroller’s
    office.
    On August 15,
    1991,
    the Agency sent a letter to
    134—42
    3
    Enterprise informing it of the Agency’s decision on the
    application for reimbursement. This chronology is included in the
    Agency’s brief
    (Br.at 3), and was testified to at hearing by
    Julie Hollis, an Agency employee.
    (Tr. at 95-97.)
    For the
    Agency to now assert that it did not receive a reply to its
    request for additional information until after August 15,
    1991 is
    untrue and inconsistent with the Agency’s previous testimony and
    arguments in this case.
    Although this misstatement does not have
    great bearing ‘on the outcome of this case, the Board is
    nevertheless concerned by the representation.’
    The Board reaffirms its April
    9,
    1992 decision that
    $27,871.68 for costs associated with tank removal is reimbursable
    by the Underground Storage Tank Fund.
    IT
    IS
    SO
    ORDERED.
    I, Dorothy M.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board~hereby cert
    y that the above order was adopted on the
    ~~Lt1-
    day of
    _______________,
    1992,
    by a vote of
    70
    ‘~
    The Board is also concerned with the propriety of the
    Agency’s refusal to consider information it received before it
    issued its final decision on August 15,
    1991.
    If the Agency’s
    decision cannot be changed after the voucher is sent to the
    Comptroller’s office, the voucher should not be sent until after
    the Agency’s letter is written.
    134—43

    Back to top