96102D.PDF

ILLINOIS POLLUTION CONTROL BOARD

August 1, 1996

KATHE'S AUTO SERVICE CENTER,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB 96-102

(UST - Reimbursement)

NEAL H. WEINFELD OF BELL, BOYD & LLOYD APPEARED ON BEHALF OF

PETITIONER;

DANIEL P. MERRIMAN APPEARED ON BEHALF OF THE RESPONDENT.

OPINION AND ORDER OF THE BOARD (by J. Yi):

On November 11, 1995, Kathe’s Auto Service Center (Petitioner) filed a petition

appealing the Illinois Environmental Protection Agency’s (Agency) final reimbursement

decision concerning Petitioner’s leaking underground storage tanks pursuant to Sections 57.8(i)

and 40(a) of the Environmental Protection Act (Act).

This matter is before the Board

pursuant to a motion and cross-motion for summary judgment. Today’s order addresses those

motions and the related response filings.

For the reasons stated below, the Board grants the Agency’s motion for summary

judgment and denies the Petitioner’s cross-motion for summary judgment.

PROCEDURAL HISTORY

On April 5, 1996 the Agency filed a motion for summary judgment and a motion to

consolidate this matter with PCB 96-52,

Raleigh Realty Corporation v. Illinois Environmental

Protection Agency

On April 15, 1996, Petitioner filed a cross-motion for summary judgment, a response

brief to the Agency’s motion for summary judgment, a motion to file its cross-motion for

summary judgment in excess of the fifteen (15) page limitation and a response to the Agency’s

The petition for review will be referred to as “Pet. at.”.

The Agency’s motion for summary judgment will be referenced to as “Ag. SJ at .”.

motion for summary judgment, a motion to stay the Agency’s motion for summary judgment

and a motion to adopt Raleigh Realty Corporation’s motion to deny the Agency’s motion to

consolidate these matters.

On April 29, 1996, the Agency filed a response to Petitioner’s motions to deny the

Agency’s motion to consolidate and to stay the Agency’s motion for summary judgment, a

motion for leave to file a reply to Petitioner’s motion for summary judgment, a motion to

strike Petitioner’s response brief to the Agency’s motion for summary judgment and an

objection to both the Petitioner’s motion to file its response brief to the Agency’s motion for

summary judgment and the Petitioner’s motion to file its motion for summary judgment in

excess of the 15 page limitation. On April 30, 1996, Petitioner filed a response to the

Agency’s motion to strike.

On May 2, 1996, Petitioner filed a response to the Agency’s motion to strike

Petitioner’s response brief to the Agency’s motion for summary judgment; a response to the

Agency’s responses to Petitioner’s motion to deny the Agency’s motion to consolidate; a

response to the Agency’s response to Petitioner’s motion to stay the Agency’s motion for

summary judgment; a response to the Agency’s motion to strike Petitioner’s motion to deny

the Agency’s motion to consolidate; a response to the Agency’s objection to the Petitioner’s

motion to file its motion for summary judgment in excess of the 15 page limitation and a

response to the Agency’s motion for leave to file a reply brief to the Petitioner’s response to

the Agency’s motion for summary judgment. Also on May 2, 1996, the Agency filed a

motion to file its response to the Petitioner’s motion for summary judgment in excess of the 15

page limitation and its response.

On May 8, 1996, Petitioner filed a motion to file its reply brief in support of its motion

for summary judgment instanter and its reply brief.

The above mentioned motions, except for the Agency’s motion for summary judgment

and Petitioner’s cross-motion for summary judgment, were decided by the Board in its May 2

and June 6, 1996, orders in this matter.

BACKGROUND

Petitioner owns and operates a retail gasoline facility located at 835 Milwaukee Avenue

in Glenview, Illinois (hereafter referred to as the “Site”.) Petitioner filed an Illinois

Emergency Management Agency (IEMA) report as a result of leaking underground storage

tanks (USTs), to which IEMA assigned an incident report number of 923382 (Incident No.

The Petitioner’s cross-motion for summary judgment will be referred to as “Pet. SJ at .”.

The Agency’s response to Petitioner’s cross-motion for summary judgment will be referred

to as “Ag. Resp. at .”.

923382.) on November 28, 1992.

(Tech. I at 1.) The Petitioner filed a 20 Day Report with

the Agency dated December 28, 1992. (Tech. I at 3-4.)

On January 22, 1993, Petitioner filed a corrective action plan. (Pet. at 1.) After the

adoption of Title XVI of the Act, Petitioner filed a revised Corrective Action Plan (Revised

Plan) pursuant to, then new, Title XVI on October 14, 1993. (Tech. I at 108-149, 151-190.)

A cover letter to the Revised Plan indicated that the Site qualified as a “Low Priority Site”.

(Tech. I at 108.) However contained in the body of the Revised Plan is a statement that

“[b]ased on the results of the site assessment activities, the 835 Milwaukee Avenue site meets

the criteria for classification as a ‘No Further Action’ site under the Title XVI guidelines”.

(Tech. I at 117.) The Revised Plan also stated that “[t]he revised Corrective Actions which

will be completed at the 835 Milwaukee Avenue site in accordance with the Title XVI

guidelines for remediation of ‘No Further Action’ sites will involve removal of all four

remaining USTs, the gasoline UST product piping, and affected backfill materials.” (Tech. I

at 124.) On November 18, 1993, Petitioner filed a letter requesting the Agency to reclassify

the Site as a “No Further Action Site.” (Tech. I at 191-192.)

The Agency on February 10, 1994, rejected the Revised Plan because Petitioner had

not elected to proceed under the new Title XVI and had failed to meet certain technical

requirements. (Tech. II at 303-316.) Additionally the Agency noted the following:

The information also includes a corrective action plan and corrective action

budget. It is not completely clear to the Agency why a corrective action plan

and corrective action budget were submitted if you believe your site

classification is “No Further Action”. Pursuant to Section 57.7(c)(3)(A) No

Further Action sites require no remediation beyond that required in Section 57.6

and subsection (a) of Section 57.7. Further, because the Agency is

disapproving the site classification as outlined in Attachment A, and will require

that additional work be performed to classify the site, it is impossible to

determine the requirements for corrective action at the site. The corrective

action plan and budget are being disapproved as it is impossible, without an

appropriate site classification, to determine if these activities are beyond the

minimum requirements necessary to comply with Title XVI (Section 57.5(a) of

the Act).

Petitioner, on February 29, 1994, filed its election to proceed with corrective action under

Title XVI with the Agency. (Tech. I at 202.)

The Agency’s record consisting of Technical File Books 1 and 2, and Fiscal File Books 1

and 2 will be referred to as “Tech. I at .”, “Tech. II at .”, “Fisc. I at .” and “”Fisc. II at

.”.

On March 9, 1994, Petitioner submitted to the Agency a Site Classification Work Plan,

including a Physical Soil Classification and Work Plan and related budget. (Tech. I at 203-

237.)

On June 23, 1994, the Agency sent Petitioner a letter modifying the March 9, 1994

Physical Soil Classification and Work Plan. (Tech. I at 238-243.) The budget for the work

approved by the Agency was $8,378.60.

On August 18, 1994, the Petitioner filed a Site Classification Completion Report with

the Agency. (Tech. I at 246-284.) The report concluded that the Site met the requirements of

a “No Further Action Site” under Title XVI of the Act and related portions of the Board

regulations.

On December 20, 1994, the Agency issued a letter to Petitioner rejecting the proposed

“No Further Action” Site Classification proposed in the August 18, 1994 Classification

Completion Report. The Agency recited several reasons for the rejection including: (1) the

soil borings were inadequate; (2) the soil boring log did not contain the necessary information;

and (3) it could not be determined whether the USTs were within the minimum or maximum

setback zone for a potable water supply well. (Pet. at 2, Tech. I at 288-299.) Additionally,

the Agency stated the report includes a corrective action proposal for UST removal and

contaminated backfill removal and demonstrates a “desire” to classify the site as “No Further

Action”. (Tech. I at 288.) The Agency continued “[t]herefore, the Agency is rejecting the

proposal for such UST removal and backfill removal for the reasons listed in Attachment B”.

(Tech. I at 288.) Attachment B states the following:

Pursuant to 35 IAC Section 732.400(b), owners or operators of a site classified

in accordance with the requirements of Subpart C as “No Further Action” may

choose to conduct the remediation sufficient to satisfy the remediation objectives

in 35 IAC Section 732.408. If the plan was submitted pursuant to 35 IAC

Section 732.400(b), a plan is not required for such remediation. Further, the

Board Notes in 35 IAC Section 732.400 indicates that owners or operators

electing to proceed in accordance with 35 IAC Section 732.400(b) are advised

that they may not be entitled to full payment or reimbursement.

Removal of contaminated backfill and the underground storage tanks would

exceed the minimum requirements for a “No Further Action” site (Section

57.5(a) of the Act and 35 IAC Section 732.505(c) and 732.606(o)).

If the plan was submitted pursuant to 35 IAC Part 732, Subpart D and Section

57.7(c) of the Act, pursuant to 35 IAC Section 732.402 and Section 57.7(c)(3)

of the Act, “No Further Action” sites require no additional remediation.

(Tech. I at 296.)

On January 5, 1995, the Agency sent Petitioner a voucher for $5,413.62 relating to the

costs incurred by the Petitioner for completion of the Site Classification Activities submitted

on June 23, 1994. The Agency rejected $1,220.83 of the costs submitted, stating that said

amount was due to impermissible budget line increases.

On January 23, 1995, Petitioner appealed the Agency’s rejection of its proposed “No

Further Action” Site Classification. The appeal was designated PCB 95-43 by the Board.

On January 30, 1995, Petitioner initiated the claimed early action activities at the Site.

Those activities consisted of removing one 8,000 gallon and two 6,000 gallon gasoline USTs

and two 285 gallon heating oil USTs. While the 8,000 gallon gasoline UST and one 6,000

gallon gasoline UST were found to be free of corrosion, one 6,000 gallon UST removed from

the westernmost portion of the excavation was found to contain a few corrosion holes. The

two 285 gallon heating oil USTs were also found to contain corrosion holes. A total of

approximately 330 cubic yards of affected backfill materials and native soil were removed

from the gasoline UST excavation. (Pet. at 2-3.)

On February 15, 1995, Petitioner submitted its “Leaking Underground Storage Tank

(LUST) Closure Report - Early Remedial Actions” to the Agency. (Tech. II at 321-444.) The

report described the early remedial actions performed at the Site between November 7, 1994

and February 17, 1995, including tank and contaminated backfill removal activities.

On June 12, 1995, Petitioner submitted its completed LUST Reimbursement Cost

Summary and related supporting materials to the Agency. (Fisc. II at 150-226.) The

reimbursement requested $45,242.01 in costs associated with “Early Remedial Actions” at the

Site.

On October 5, 1995, the Agency issued its denial letter to Petitioner’s early remedial

action reimbursement request. The letter denied all reimbursement costs requested for the

following reasons:

Failure to submit an Illinois Licensed Professional Engineer Certification

pursuant to Section 57.8(a)(6) of the Illinois Environmental Protection Act (Act)

and 35 Illinois Administrative Code (IAC) Section 732.601(b)(1). Information

in the Agency’s possession from the Illinois Department of Professional

Regulation fails to indicate that Mr. Ronald W. Schrack was a Licensed

Professional Engineer in the State of Illinois on May 12, 1995, the date that Mr.

Schrack signed the certification.

Failure to submit an Office of the State Fire Marshal (OSFM) eligibility and

deductibility determination for the 275 gallon heating oil UST which was

The Board affirmed the Agency’s rejection of Petitioner’s Site Classification on May 4,

1995.

discovered January 1995. Such OSFM determination is required in accordance

with Section 57.8(a)(6)(C) of the Act and 35 IAC Section 732.601(b)(3).

The application for reimbursement states that the costs requested are for

completion of Early Remediation Actions. The Agency has determined that

such activities are not early action as outlined below:

Pursuant to Section 57.6(b) of the Act and 35 IAC Section 732.202(f),

notwithstanding any other corrective action taken, an owner or operator

may, at a minimum and prior to submission of any plans to the Agency,

remove the tank system, or repair or abandon the underground storage

tank in place, in accordance with the regulations promulgated by the

Office of the State Fire Marshal. The owner or operator may also

remove visibly contaminated fill material and any groundwater in the

excavation which exhibits a sheen.

Information in the Agency’s possession indicates that a site classification

work plan dated March 9, 1994 was received by the Agency March 11,

1994. The activities for which reimbursement is being requested were

conducted from November 17, 1994 through February 17, 1995.

Therefore, such activities were not conducted prior to submission of any

plan and, thus, are not early action activities.

Pursuant to Section 57.7(a)(1) of the Act and 35 IAC Section

732.305(b)(1), prior to conducting any physical soil classification and

groundwater investigation activities required by statute or regulation, the

owner or operator shall prepare and submit to the Agency for the

Agency’s approval or modification:

a physical soil classification and groundwater investigation plan

designed to determine site classification, in accordance with

subsection (b) of this Section [57.7], as High Priority, Low

Priority, or No Further Action.

a request for payment of costs associated with eligible early

action costs are provided in Section 57.6(b). However, for

purposes of payment for early action costs, fill material shall not

be removed in an amount in excess of 4 feet from the outside

dimensions of the tank.

Information in the Agency’s possession indicates that a site classification

completion report dated August 18, 1994 was received by the Agency on

August 22, 1994 which documented physical soil classification and other

site classification activities that had been conducted prior to the date of

the report. The application for reimbursement was submitted June 12,

1995 and was received by the Agency June 14, 1995. Therefore, the

request for payment was not submitted prior to conducting any physical

soil classification and groundwater investigation activities.

These costs exceed the minimum requirements necessary to comply with Title

XVI of the Act (Section 57.5(a) of the Act and 35 IAC Section 732.606(0)) and

35 IAC Part 732 (35 IAC Section 732.505(c)).

These costs are not corrective action costs. Corrective action means an activity

associated with compliance with the provisions of Sections 57.6 and 57.7 of the

Act (Section 57.2 of the Act and 35 IAC Section 732.103). One of the

eligibility requirements for accessing the UST Fund is that costs are associated

with “corrective action” (Section 57.9(a)(7) of the Act).

This is a deduction for costs that are neither early action costs (Section 57.6 of

the Act and 35 IAC Section 732.202) as is indicated in item 3 above nor were

they submitted (nor approved) in a budget. Budgets must be submitted pursuant

to Sections 57.7(a)(2), 57.7(c)(1)(B), and 57.7(c)(2) of the Act as well as 35

IAC Sections 732.305(b)(2), 732.403(c), and 732.405(b). Pursuant to Section

75.7(c)(4) of the Act, Agency approval of any plan and associated budget as

described in this subsection (d)(3) [of Section 57.7] shall be considered final

approval for purposes of seeking and obtaining payment from the Underground

Storage Tank Fund if the costs associated with the completion of any such plan

are less than or equal to the amounts approved in such budget. Pursuant to 35

IAC Section 732.601(f), in no case shall the Agency authorize payment to an

owner or operator in an amount greater than the amount approved by the

Agency or by operation of law in a corresponding budget plan.

Pursuant to 35 IAC Section 732.601(a), an owner or operator seeking payment

from the fund shall submit to the Agency an application for payment on forms

prescribed by the Agency or in a similar format containing the same

information. The owner or operator may submit an application for partial

payment or final payment for materials, activities or services contained in an

approved budget plan. An application for payment also may be submitted for

materials, activities or services for early action conducted pursuant to subpart B

of this Part [732] and for which no budget plan is required.

The request for reimbursement includes costs associated with USTs that are

ineligible for reimbursement from the State Underground Storage Tank Fund

(Section 57.9(a) of the Act and 35 IAC Section 732.606(s)). Specifically, the

December 13, 1993 OSFM eligibility determination indicates that one-385

gallon heating oil UST is ineligible for reimbursement. Further, there is no

OSFM eligibility decision regarding the 275 gallon heating oil UST discovered

in January 1995. The Agency is unable to determine the specific dollar amounts

associated with such USTs.

Further, it appears that such heating oil USTs were taken out of service prior to

January 2, 1974. Pursuant to Section 57.5(g) of the Act, if the Office of the

State Fire Marshal (OSFM) does not issue an Order for Removal for an UST

taken out of use prior to January 2, 1974, owners or operators who report an

occurrence as a result of a release from such USTs are not required to perform

corrective action. Based on information in the Agency possession, it appears

that an Order to remove the USTs was not issued by the OSFM. Therefore

there is no corrective action requirement for such USTs as indicated in the

Agency’s June 21, 1995 letter. Therefore, such costs are not corrective action

costs. Corrective action means an activity associated with compliance with the

provisions of Sections 57.6 and 57.7 of the Act (Section 57.2 of the Act and 35

IAC Section 732.103). One of the eligibility requirements for accessing the

UST Fund is that costs are associated with “corrective action” (57.9(a)(7) of the

Act).

These costs are related to activities, materials or services not necessary to stop,

minimize, eliminate, or clean up a release of petroleum or its effects in

accordance with the minimum requirements of the Act and regulations (35 IAC

Section 732.606(y)).

In addition, $2,026.73 of the $45,242.01 is being deducted not only for the

reasons above in this Attachment A, but also due to a math error and lack of

documentation. Therefore, the owner or operator has failed to demonstrate that

the costs do not exceed the minimum requirements necessary to comply with

Title XVI (Section 57.5(a) of the Act) and 35 IAC Part 732 (35 IAC Section

732.505(c)). Costs for corrective action activities and associated materials or

services exceeding the minimum requirements necessary to comply with the Act

are not eligible for reimbursement from the Fund (35 IAC Section 732.606(o)).

It also cannot be determined whether the costs are corrective action costs.

“Corrective action” means an activity associated with compliance with the

provision of Section 57.6 and 57.7 of the Act (Section 57.02 of the Act and 35

IAC Section 732.103). One of the eligibility requirements for accessing the

UST Fund is that costs are associated with “corrective action” (Section

57.9(a)(7) of the Act). Finally, the owner or operator has failed to demonstrate

that such cost is related to activities materials or services necessary to stop,

minimize, eliminate, or clean up a release of petroleum or its effects in

accordance with the minimum requirements of the Act and regulations (35 IAC

Section 732.606(y)).

Petitioner filed its appeal on November 11, 1995 challenging all of the Agency’s

reasons for denial except for those associated with the USTs containing heating oil.

APPLICABLE LAW

Section 57.5(a) of the Act states:

Notwithstanding the eligibility or the level of deductibility of an owner or operator

under the Underground Storage Tank, any owner or operator of an Underground

Storage Tank may seek to remove, repair, or abandon such tank under the provisions of

this Title. In order to be reimbursed under Section 57.8, the owner or operator must

comply with the provisions of this Title. In no event will an owner or operator be

reimbursed for any costs which exceed the minimum requirements necessary to comply

with this Title.

(415 ILCS 5/57.5(a).)

Section 57.6 of the Act states:

Owners or operators of underground storage tanks shall, in response to all

confirmed releases, comply with all applicable statutory and regulatory

reporting and response requirements.

Notwithstanding any other corrective action taken, an owner or operator

may, at a minimum, and prior to submission of any plans to the Agency,

remove the tank system, or repair or abandon the underground storage

tank in place, in accordance with the regulations promulgated by the

Office of the State Fire Marshal. The owner or operator may also

remove visibly contaminated fill material and any groundwater in the

excavation which exhibits a sheen.

(415 ILCS 5/57.6.)

Section 57.7 of the Act provides in pertinent part:

Physical soil classification and groundwater investigation.

Prior to conducting any physical soil classification and groundwater

investigation activities required by statute or regulation, the owner or

operator shall prepare and submit to the Agency for the Agency’s

approval or modification:

a physical soil classification and groundwater investigation plan

designed to determine site classification, in accordance with

subsection (b) of this Section, as High Priority, Low Priority, or

No Further Action.

a request for payment of costs associated with eligible early

action costs as provided in Section 57.6(b). However, for

purposes of payment for early action costs, fill material shall not

be removed in an amount in excess of 4 feet from the outside

dimensions of the tank.

(415 ILCS 5/57.7.)

Section 57.7(c)(3) of the Act states in pertinent part:

No Further Action Site.

No Further Action sites require no remediation beyond that

required in Section 57.6 and subsection (a) of this Section if the

owner or operator has submitted to the Agency a certification by

a Licensed Professional Engineer that the site meets all of the

criteria for classification as No Further Action in subsection (b)

of the Section.

Unless the Agency takes action to reject or modify a site

classification under subsection (b) of this Section, or the site

classification is rejected by operation of law under item (4)(B) of

subsection (c) of this Section, upon receipt of a certification by a

Licensed Professional Engineer submitted pursuant to part (A) of

paragraph (3) of subsection (c) of this Section, the Agency shall

issue to the owner or operator a no further remediation letter in

accordance with Section 57.10.

(415 ILCS 5/57.7(c)(3).)

The Board’s procedural rules at 35 Ill. Adm. Code 732.204 Application for Payment state:

Owners or operators intending to seek payment or reimbursement for early action activities are

not required to submit a corresponding budget plan to the Agency prior to the application for

payment. The application for payment may be submitted to the Agency upon completion of

the early action activities in accordance with the requirements at Subpart F of this Part. In the

alternative, the owner or operator may submit line item estimates of the activities and costs as

part of a site classification budget plan submitted pursuant to Section 732.305 for prior review

and approval in accordance with Subpart E of this Part. If the alternative of submitting a line

item estimate of the activities and costs is selected, a subsequent application for payment

satisfying the requirements of Subpart F will be required before payment can be approved and

such application for payment must be submitted with an application for payment for site

classification activities.

The Board’s procedural rules at 35 Ill. Adm. Code 732.305 Plan Submittal and Review set

forth the following:

Prior to conducting any site evaluation activities, the owner or operator shall

submit to the Agency a site classification plan, including but not limited to a

physical soil classification and groundwater investigation plan, satisfying the

minimum requirements for site evaluation activities as set forth in Section

732.307. The plans shall be designed to collect data sufficient to determine the

site classification in accordance with Sections 732.302, 732.303 or 732.304 of

this Part. Site classifications plans shall be submitted on forms prescribed by

the Agency or in a similar format containing the same information.

In addition to the plan required in subsection (a) above and prior to conducting

any site evaluation activities, any owner or operator intending to seek payment

from the Fund shall submit to the Agency:

An application for payment of costs associated with eligible early action

costs incurred pursuant to Subpart B of this Part, except as provided in

subsection (b)(2) below; and

A site classification budget plan, which shall include, but not be limited

to, a copy of the eligibility and deductibility determination of the OSFM

and a line item estimate of all costs associated with the development,

implementation and completion of the site evaluation activities required

in Section 732.307. In accordance with Section 732.204 of this Part, the

owner or operator may submit a site classification budget plan that

includes a line item estimate of the activities and costs of early action for

review and approval prior to the submittal of an application for payment.

Formulation of budget plans should be consistent with the eligible and

ineligible costs listed at Sections 732.605 and 732.606 of this Part. Site

classification budget plans shall be submitted on forms prescribed by the

Agency or in a similar format containing the same information.

The Agency shall have the authority to review and approve, reject or require

modification of any plan submitted pursuant to this Section in accordance with

the procedures contained in Subpart E of this Part.

Notwithstanding subsections (a) and (b) above, an owner or operator may

proceed to conduct site evaluation activities in accordance with this Subpart C

prior to the submittal or approval or an otherwise required site classification

plan (including physical soil classification and groundwater investigation plans

and associated budget plans). However, any such plan shall be submitted to the

Agency for review and approval, rejection or modification in accordance with

the procedures contained in Subpart E of this Part prior to payment or

reimbursement for any related costs or the issuance of a “No Further

Remediation” letter.

If, following the approval of any site classification plan, an owner or operator

determines that revised procedures or cost estimates are necessary in order to

comply with the minimum required activities for the site, the owner or operator

shall submit, as applicable, an amended site classification plan or associated

budget plan for review by the Agency. The Agency shall have the authority to

review and approve, reject or require modification of the amended plan in

accordance with the procedures contained Subpart E of this Part.

BOARD NOTE: Owners or operators proceeding under subsection (d) of this Section

are advised that they may not be entitled to full payment or reimbursement. See

Subpart F of this Part.

STANDARDS OF REVIEW

Summary Judgment. Summary judgment is proper only when the pleadings, affidavits,

admissions and other items in the record demonstrate that there is no genuine issue of material

fact and that the moving party is entitled to a judgment as a matter of law. (

Waste

Management of Illinois v. IEPA,

(July 21, 1994), PCB 94-153;

Solomon v.

American Nat’l

Bank & Trust Co

., 243 Ill.App.3d 132, 612 N.E.2d 3 (1st Dist. 1993).)

Review of Agency Determination to Deny Reimbursement. The Board authority to

review the Agency’s determination to deny reimbursement from the UST Fund arises from

Section 57.8(i) of the Act, which grants individuals the right to appeal an Agency

determination to the Board pursuant to Section 40 of the Act. Section 40 of the Act is the

general appeal section for permits and has been used by the legislature as the basis for other

types of appeals to the Board, including this type of appeal. Summarizing the respective roles

of the appealing party, the Agency and the Board under Section 40 appeals, the Board stated in

City of Herrin v. IEPA

, (March 17, 1994), PCB 93-195:

“Petition for review of permit denial is authorized by Section 40(a)(1) of the Act [415

ILCS 5/40(a)(2)] and 35 Ill. Adm. Code 105.102(a). The Board has long held that in

permit appeals the burden of proof rests with the petitioner. The petitioner bears the

burden of proving that the application, as submitted to the Agency, would not violate

the Act or the Board’s regulations. This standard of review was enunciated in

Browning-Ferris Industries of Illinois v. IPCB

, 179 Ill.App.3d 598, 534 N.E.2d 616

(2nd Dist. 1989) and reiterated in

John Sexton Contractors Co. v. Illinois

, (February

23, 1989) PCB 88-139. In

Sexton

the Board held:

‘...that the sole question before the Board is whether the applicant proves that

the application, as submitted to the Agency, demonstrated that no violations of

the Environmental Protection Act would have occurred if the requested permit

had been issued’.

Therefore, the petitioner must establish to the Board that the permit would not violate

the Act or the Board’s rules if the requested permit was to be issued by the Agency. In

addition, the Agency’s written response to the permit application frames the issues on

appeal from the decision. (

Pulitzer Community Newspapers, Inc. v. IEPA

, (December

20, 1990) PCB 90-142).”

In reviewing an Agency determination of ineligibility for reimbursement from the UST

Fund, then, the Board must decide whether or not the application, as submitted to the Agency,

demonstrates compliance with the Act and Board regulations.

Eligibility for Reimbursement Under the UST Fund. To be eligible for reimbursement

from the UST Fund, costs must be reasonable and related to corrective action. (

Platolene 500,

Inc. v. IEPA

, (May 7, 1992) PCB 92-9, 133 PCB 259.) The burden of proving that

challenged costs are reasonable and related to corrective action rests solely on the applicant for

reimbursement. (

Id.

at 266.)

The Agency’s denial letter frames the issues on appeal. (

Pulitzer Community

Newspapers, Inc. v. IEPA

, (December 20, 1990), PCB 90-142.) In its letter denying

Petitioner’s reimbursement request, the Agency states several reasons for denying

reimbursement. (See supra page 8-10.) Therefore, in deciding the motions for summary

judgment, the Board must determine as a matter of law whether the Agency’s denial reasons

contained in its letter of October 5, 1995, are appropriate because Petitioner has not

demonstrated that the challenged costs are reasonable and related to corrective action or

Petitioner has demonstrated that the challenged costs are reasonable and related to corrective

action and is entitled to a judgment as a matter of law.

ARGUMENTS

Agency’s Motion for Summary Judgment

The first argument made by the Agency is that the activities for which the Petitioner

seeks reimbursement exceed the minimum requirements necessary to comply with Title XVI of

the Act because they were conducted after the site was classified and certified as a No Further

Action site. (Ag. SJ at 4.) Citing to

Platolene 500 Inc. v. IEPA

, (May 7, 1992), PCB 92-9,

133 PCB 259, the Agency states it is the burden of the applicant for reimbursement to prove

that the challenged costs are reasonable and related to corrective action. (Ag. SJ at 4.) In

support of its contention, the Agency maintains that the site was classified as a No Further

Action site and certified by a licensed professional engineer on August 18, 1994. (Ag. SJ at

5.) The Agency asserts that such classification and certification were not conditioned upon

completion of the activities for which the Petitioner is now seeking reimbursement and it

informed Petitioner that the activities would not be necessary. (Ag. SJ at 5.)

Furthermore, the Agency argues, citing to language in Section 57.7(c)(3)(A) of the

Act, Petitioner is not required to perform any activities beyond what is required in Sections

57.6 and 57.7(a) of the Act, and that any required activities were to be performed prior to site

classification and certification. (Ag. SJ at 5-6.) The Agency contends that the only activities

required by Section 57.7(a) of the Act are physical soil classification and groundwater

investigation, and the only mandatory remedial requirements of Section 57.6 of the Act

contained in subsection (a), which requires owners and operators to comply with all applicable

statutory and regulatory reporting and response requirements. (Ag. SJ at 6.) The Agency

argues that Section 57.6(b) of the Act is not a mandate and is discretionary. (Ag. SJ at 6.)

The Agency states that the Board has recognized this interpretation of Section 57.6(b) of the

Act and quotes the following Board language from

Kalo Gasoline Co. v. IEPA

, (March 16,

1995), PCB 95-41, “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, and by refusing to reimburse others for the removal of fill material as early action

activities.” (Ag. SJ at 7.) The Agency argues “[t]o say that these activities can be conducted

at any time and are always necessary as early action activities eliminates any need or reason to

distinguish such activities from ordinary corrective action activities. (Ag. SJ at 7.) The

Agency concludes by stating “[t]herefore any activities performed at the Site after it was

classified and certified as a No Further Action site exceeded the minimum requirements

necessary to comply with the Act and were not required or necessary to comply with the Act

as early action activities; therefore, to reimburse the Petitioner for the costs associated with

those activities would result in a violation of the Act.” (Ag. SJ at 7.)

The Agency’s second argument is that Petitioner’s activities are not reimbursable as

early action activities because it conducted physical soil classification and groundwater

investigation activities prior to seeking reimbursement for the claimed early action activities.

(Ag. SJ at 8.) The Agency states that the Act at Section 57.7(c)(1)(B) “expressly mandates the

expeditious completion of early action activities” and paraphrases language from Sections

57.7(a)(1) and 57.7(a)(1)(B) of the Act. (415 ILCS 5/57.7(a)(1) and 5/57.7(a)(1)(B).) (Ag.

SJ at 8.) The Agency argues that Petitioner is not eligible pursuant to Sections 57.7(a)(1) and

57.7(a)(1)(B) because it conducted physical soil classification and groundwater investigation

activities prior to its June 12, 1995 submittal for reimbursement of early action activities, as

evidenced by the August 18, 1994 submittal of the site classification and certification. (Ag. SJ

at 8-9.)

Finally the Agency argues that the activities for which Petitioner seeks reimbursement

as early action do not constitute early action activities because the activities occurred almost

two years after the initial release at the Site. (Ag. SJ at 9.) The Agency presents several

arguments in support of this contention in its motion for summary judgment. First, the

Agency states, citing to

Kelley-Williamson Company v. IEPA

, (November 16, 1995), PCB 95-

116, that the Board recognizes the interpretation of the Act and corresponding regulations

“envision” “that early action activities, if performed, will be completed prior to the submittal

of the 20 Day Report, and well before the submittal of the 45 Day Report”. (Ag. SJ at 9.)

Next, the Agency states that “[o]n its face the term ‘Early Action’ suggests that the activities

defined as such will be conducted early in the process, certainly sooner rather than later.”

(Ag. at 9.) Again citing to

Kelly-Williamson

and the preamble of the 40 C.F.R. Part 280, the

Agency asserts that “[e]arly action activities are considered emergency measures and are

preventative in nature to abate the immediate threats of a petroleum release to human health

and the environment.” (Ag. SJ at 10.) The Agency further states that the Board in adopting 35

Ill. Adm. Code Part 732 described early action to be “initial response” and as “immediate

action to prevent further release”, as well as “initial abatement.” (Ag. SJ at 10-11.)

Furthermore, citing

Kelly-Williamson

and

Kalo

, the Agency asserts that in addition to 35 Ill.

Adm. Code Part 732 the Board’s interpretation of the case law demonstrates that the

completion of early action activities should take place soon after the reported release. (Ag. SJ

at 11-12.)

Finally, in support of its assertion that the activities conducted by Petitioners do not

constitute early action activities, the Agency states that the 20 Day Report filed by Petitioner

on November 30, 1992 certified that no further response action was necessary in stating the

following:

That as much of the regulated substance as necessary to prevent further release to the

environment has been removed;

That further migration of the released substance into surrounding soils and groundwater

has been prevented;

That the appropriate procedures will be used to investigate and determine the possible

presence of free-product, and begin free-product removal as soon as possible, if

applicable, in accordance with Section 731.164;

That a summary of the above activities will be provided within 45 days of the

confirmation of a release. (Ag. SJ at 12-13.)

The Agency concludes by asserting that “to leave an open window of opportunity to complete

or conduct activities allowed as early action will render the entire concept of early action

meaningless and undermine any purposes that are served by the concept of early action” and

“would undermine the objectives sought to be achieved by allowing owners and operators to

indefinitely put off initial abatement activities which were intended to prevent the immediate

threats of petroleum releases to human health and the environment not to mention the violence

it will do to the Act and regulations”. (Ag. SJ at 13.)

Petitioner’s Response

In response to the Agency’s motion for summary judgment, the Petitioner argues that

the Agency should not be allowed to assert new arguments for denying reimbursement in its

motion for summary judgment. (Pet. Resp. at 10.) The Petitioner claims that the following

arguments made by the Agency are new arguments that were not stated in the Agency’s

October 5, 1995, denial letter. (Pet. Resp. at 10-11.)

That the Site was classified as a No Further Action Site and certified as such by a

licensed professional engineer on August 18, 1994, and “[t]he Petitioner’s classification

and certification were not conditioned upon the completion of the activities for which

Petitioner is now seeking reimbursement.”

That tank and limited fill removal activities under 57.6(b) are discretionary and,

therefore, not reimbursable under the Act.

That Petitioner failed to submit a complete reimbursement application for early action

activities prior to conducting any physical soil classification and groundwater

investigation activities.

That Petitioner’s early action activities were conducted after the submittal of

Petitioner’s 20 and 45 Day Reports.

Petitioner argues that the Agency has 120 days in which to respond to a completed

application for reimbursement for corrective action and is barred from asserting new

arguments at this time that were not included in its reimbursement denial letter. (Pet. Resp. at

11.) Citing to

Landwehrmeier v. IEPA

, (June 2, 1994), PCB 94-55;

Rosman v. IEPA

(December 19, 1991), PCB 91-80 and

Pulitzer v. IEPA

, (December 20, 1990), PCB 90-142,

Petitioner states that the Board “has repeatedly held that an Agency’s statement denying

reimbursement from the fund must detail the reasons and the statutory and regulatory support

for such denial.” (Pet. Resp. at 11.) Petitioner concludes that “[s]ince the Agency failed to

include the above bases for denying reimbursement in its October 5, 1995, denial letter, it is

estopped from raising them now.” (Pet. Resp. at 11.) The Petitioner also adds that “[t]o

allow the Agency the opportunity to reinvent its case as the matter proceeds is wholly unfair

and invites the type of abuse of power evident in the Agency’s motion for Summary

Judgment.” (Pet. Resp. at 11-12.)

In response to the Agency’s first argument, Petitioner claims that tank removal and

limited contaminated fill material removal activities are necessary once an owner or operator

has confirmed that a release has occurred from an UST regardless of whether the site is

classified as High Priority, Low Priority or No Further Action. (Pet. Resp. at 15.)

Petitioner, citing to

Kelly-Williamson

, argues that the following activities are federally-

mandated corrective actions:

Report the release to the Illinois Emergency Management Agency (“IEMA”);

Remove all sources of contamination including tanks and piping; and

Mitigate potential fire, explosion, or vapor hazards.

The Petitioner argues that the word “may” in Section 57.6(b) “does not address whether tank

removal is required, but rather when tank removal may be undertaken.” (Pet. Resp. at 16.)

Petitioner argues that “the correct reading of Section 57.6(b) is that tank removal may be

undertaken either before or after the submission of plans to the Agency”. (Pet. Resp. at 16.)

Furthermore, Petitioner asserts that early action activities are a type of corrective action

activities and therefore do not exceed the minimum requirements necessary to comply with the

Act. (Pet. Resp. at 16.) Petitioner states that Section 57.2 of the Act defines corrective action

activities to mean activities associated with compliance with the provision of Section 57.6 and

57.7 of this Title and that Section 57.6 provides “[n]ot withstanding any other corrective

actions” which indicates that early action is considered corrective action.

Finally, Petitioner claims that the Agency has ignored “basic UST closure requirements

found at 40 C.F.R. 280.71(b)” which states:

To permanently close a tank, owners and operators must empty and clean it by

removing all liquids and accumulated sludges. All tanks taken out of service

permanently must also be either removed from the ground or filled with an inert solid

material. (Pet. Resp. at 13-14.)

Petitioner states, as a result of the federal closure requirements, that “all USTs taken out of

service must be physically removed from the ground or, in limited circumstances, abandoned

in place”. (Pet. Resp. at 17.) Petitioner concludes that “the Agency’s statement that tank and

limited fill removal activities are not mandated as part of early action is an incorrect statement

of law” and accordingly the Board should deny the Agency’s motion for summary judgment.

(Pet. Resp. at 17.)

In response to the Agency’s second argument that Petitioner is not eligible for

reimbursement as early action activities because it failed to request reimbursement prior to

conducting physical soil classification and groundwater monitoring investigation activities, the

Petitioner claims that the Agency has carefully avoided rearguing its first basis for denying

reimbursement due to the Board’s rulings in

Kalo

and

Kathe

, and that the Agency’s position is

not supported by the plain language of the Act and the Board’s interpretation. (Pet. Resp. at

12 and 17.)

Citing

Kalo

and

Kathe

, the Petitioner asserts that the Board has interpreted Section

57.6(b) to be permissive in that an owner or operator may remove a tank system before

classifying the site but is not required to do so. (Pet. Resp. at 12-13.) Petitioner cites to the

language of the Board’s order in

Kalo

which states “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” and concludes that “the Board has

twice addressed this issue and twice held that the timing of early action activities is irrelevant

in determining whether reimbursement from the Fund is available.” (Pet. Resp. at 13.)

Additionally, Petitioner argues that Section 57.7(a) of the Act merely provides that a

request for payment must be submitted if early action activities have already been performed

and is not a prohibition to when early action is performed. (Pet. Resp. at 18.) Petitioner

asserts that since it did not perform early action prior to conducting the soil and groundwater

investigation, it is not obligated to seek reimbursement prior to conducting the soil and

groundwater investigation. Petitioner also states that the position is supported by the Board’s

orders in

Kalo

and

Kathe

. (Pet. Resp. at 18.) Furthermore, Petitioner maintains that it “had

requested payment for ‘eligible early action costs’ prior to issuing its initial Site Classification

Work Plan” when it submitted a revised Corrective Action Plan on October 14, 1993. (Pet.

Resp. at 19.)

Finally, Petitioner responds to the Agency’s last argument, that the early action

activities were not timely performed, by stating that the Agency “suggests that the

Kelly-

Williamson

decision requires that early action activities in

all cases

must be performed prior to

the submittal of the 20 and 45 Day Reports to the Agency.” (Pet. Resp. at 19.) Petitioner

claims that the “Agency not only misstates the facts of this case, but also misinterprets and

misapplies the Board’s decision in

Kelly-Williamson Company

v. Illinois Environmental

Protection Agency

, PCB -116, (Opinion and Order dated November 16, 1995).” (Pet. Resp.

at 19.) The Petitioner asserts that “the facts in

Kelly-Williamson

are unique and are not at all

similar to the facts of the instant case.” (Pet. Resp. at 19.) The Petitioner states that in this

case it never informed the Agency that early actions were completed and asserts that it

continuously apprised the Agency of further Site activities which is unlike the situation in

Kelly-Williamson

. (Pet. Resp. at 19-20.)

The Petitioner states that “the Board in

Kelley-Williamson

noted, in part, that the

Agency had asserted that the 45 Day Report is a requirement of early action ‘intended to

inform the Agency of the

status

of activities at a given site’” and that “the Board went on to

find that ‘the 45 Day Reports as an affirmative statement by the owner/operator that required

early action activities have been completed’”. (Pet. Resp. at 20.) Petitioner asserts that the

Board “held that it was not the filing of the 45 Day Report itself that terminated the ability to

proceed with early action activities” but “it was the contents of the 45 Day Report in

informing the Agency of what additional early activities needed to be undertaken that

controlled when early action activities would be considered complete.” (Pet. Resp. at 21-22.)

Petitioner claims that, unlike the owner or operator in

Kelly-Williamson

, it continuously

informed the Agency of intended actions at the Site, and that it was the Agency that

continuously delayed the Petitioner’s early actions. (Pet. Resp. at 22.) Petitioner argues that

the Agency delayed corrective action, including early action, because “under the old UST

rules, it was the Agency, not the Petitioner, that controlled the time frame under which a

corrective action would be undertaken” and “the Petitioner could not have legally undertaken

any corrective action (including early action) at the Site prior to February 20, 1994, because

the Agency had failed to approve the Petitioner’s proposed corrective action plans.” (Pet.

Resp. at 23.) Petitioner states that it was unable to opt into new Title XVI until February 20,

1994 “due to

ad hoc

requirements.” (Pet. Resp. at 23.) Petitioner states that it opted into the

new Title XVI on February 20, 1994 and that a corrective action plan was needed to determine

the Site classification. (Pet. Resp. at 23.) Petitioner further states that “despite several

attempts since then, however, the Petitioner has been unable to obtain a site classification from

the Agency.” (Pet. Resp. at 23.)

Petitioner concludes its response to the Agency motion for summary judgment by

stating that new arguments raised by the Agency should be rejected as well as any argument

that contaminated soil can remain on-site. (Pet. Resp. at 24.) Finally, Petitioner argues “[t]he

Agency’s attempt to place a higher priority upon ‘preserving the Fund,’ than upon remediating

UST releases, flies in the face of unequivocal statutory mandates, and must not be allowed to

stand.” (Pet. Resp. at 24.)

Petitioner’s Cross-Motion for Summary Judgment

Early actions pursuant to Section 57.6(b) of Act are reimbursable even if undertaken

after the submittal of plans to the Agency

In response to the Agency’s first denial point, Petitioner argues, as it did in its response

to the Agency’s motion for summary judgment, that an owner or operator may remove a tank

system before classifying the site, but is not required to do so. (Pet. SJ at 14.) The Petitioner

argues that the Board must follow the established precedent of

Kalo

and

Kathe

which is on

point with the fact situation here. (Pet. SJ at 14-16.) The Board will not reiterate a summary

of those arguments again, as they are outlined in detail on page 14 of this opinion.

Tank removal activities and limited contaminated fill material activities are necessary to

comply with the provisions of Sections 57.6 and 57.7 of the Act.

Again, as Petitioner argued in its response to the Agency’s motion for summary

judgment, it believes that the Agency’s denial points three and four are inadequate as a matter

of law because the owner or operator is federally-mandated to remove the tank whether the site

is classified as High Priority, Low Priority or No Further Action and that early action is

corrective action. (Pet. SJ at 16.) Petitioner proceeds to restate its argument contained in its

response. For a discussion of the Petitioner’s arguments, please refer to pages 13 through 14

of this opinion.

Petitioner was not required to submit a budget for early action costs.

Petitioner asserts that the Agency’s denial reason, that Petitioner was required to submit

a budget for early action costs, is without any statutory or regulatory basis. (Pet. SJ at 19.)

Petitioner claims that the cited sections of the Act and Board regulations by the Agency in its

stated denial reason do not apply to early actions. (Pet. SJ at 19.) Petitioner asserts that

“Section 57.7(a)(2) and 35 IAC 732.305(b)(2) apply to budgets for site classifications” and

“Section 57.7(c)(1)(B) applies to budgets for ‘corrective action beyond that required by

Section 57.6 [early action] and subsection (a) of 57.7 [site classification]’”. (Pet. SJ at 19.)

Additionally, Petitioner contends that Section 57.7(c)(2) and 35 Ill. Adm. Code 732.406(c)

“applies to budgets for groundwater monitoring” and 35 Ill. Adm. Code 732.405(b) “applies

to budgets for those corrective action activities for ‘Low’ and ‘High’ priority site corrective

actions.” (Pet. SJ at 19.)

The Petitioner concludes “that there is no requirement to submit a budget for early

action costs” and that “[i]n fact, the regulations clearly provide that an owner or operator ‘

may

submit a site classification budget plan that includes an itemized accounting of the activities

and costs of early action for review and approval prior to the submittal of an application for

payment,’ 35 IAC 732.305(b)(2) (emphasis added), but is not required to do so.” (Pet. SJ at

19-20.)

Section 57.7(a) of this Act does not limit Petitioner’s reimbursement for early action

activities taken after the completion of physical soil classification and groundwater

investigation activities.

Petitioner states that the Agency’s “second basis” for denying reimbursement is

“unsupported by the Act’s plain language as interpreted by the Board.” (Pet. SJ at 20.)

Petitioner asserts that Section 57.7(a) of the Act “does not limit one’s ability to seek

reimbursement for early action costs performed after a site classification plan has been

submitted” as claimed by the Agency. (Pet. SJ at 20.) Instead, the Petitioner contends that

Section 57.7(a) of the Act “merely provides that a request for payment must be submitted if

early action activities have already been performed.” (Pet. SJ at 20.) The Petitioner states

that Section 57.6(b) of the Act allows owners and operators to perform early action either

before or after submittal of plans and that Section 57.7(a)(1)(b) “contemplates a situation in

which early actions have taken place prior to submittal of a site classification plan.” (Pet SJ at

21.) Petitioner argues that “since it did not conduct early action activities prior to conducting

the soil and groundwater investigation, it could not know how the Site would ultimately be

classified for corrective action purposes” and that “the obligation to seek payment depends

upon when the early actions are performed, not the other way around.” (Pet. SJ at 21.)

Additionally, Petitioner maintains that it “had requested payment of ‘eligible early

action costs’ prior to issuing its initial Site Classification Work Plan on March 9, 1994” when

it submitted its “revised Corrective Action Plan on October 14, 1993” because the revised

Corrective Action Plan contained a budget for the proposed early action activities. (Pet. SJ at

21.) Petitioner argues that “[t]his is tantamount to a request for payment of ‘eligible early

action costs’ under Section 57.7(c)(3) of the Act.” (Pet. SJ at 21.)

Finally, Petitioner states that “the Agency’s position contradicts the plain meaning of

Section 57.7(c)(3) of the Act. (Pet. SJ at 21.) Petitioner asserts that “the plain language of

Section 57.7(c)(3) indicates that a site classified as ‘No Further Action’ requires at a

minimum, two things: (1) remediation required under Section 57.6 of the Act (remediation

which is referred to under Section 57.6 as ‘early action’); and (2) a ‘physical soil classification

and groundwater investigation’ under Section 57.7(a).” (Pet. SJ at 22.) Petitioner states that

the Board in

Kelly-Williamson

determined that Section 57.6 of the Act requires an owner or

operator to report the release, remove all sources of contamination including tanks and piping

and mitigate potential fire, explosion, or vapor hazards. (Pet. SJ at 22.) Petitioner concludes

that “the Agency’s position that the unilateral certification of a site by a certified engineer

makes all subsequent early actions excessive

per

is not only an incorrect reading of the law,

but also disingenuous in that to this date the Agency has rejected the classification of the

Petitioner’s site.” (Pet. SJ at 22.)

Petitioner Submitted an Illinois Licensed Professional Engineer Certification Pursuant

to Section 57.8(a)(6) of this Act.

Petitioner argues that the Agency’s first denial point that the application failed to

submit a certification by a professional licensed engineer as required by Section 57.8(a)(6)

“raises form over substance.” (Pet. SJ at 23.) Petitioner states that the professional engineer

involved completed all necessary course work, examinations and that his license was never

revoked. (Pet. SJ at 23-24.) Petitioner states that the engineer “has been a licensed

Professional Engineer (“P.E.”) in Illinois since 1991.” Pet. SJ at 23.) Petitioner further

states that on November 30, 1994, the license expired due to inadvertent failure to pay the

licensing fee and a renewal application was filed but the license was not renewed until May 23,

1995. (Pet. SJ at 23.) Petitioner states that when the application was submitted to the Agency

on June 12, 1995, the application was certified by a professional licensed engineer. (Pet. SJ at

23-24.).

No Issue of Material Facts.

Petitioner states that the Agency does not raise any specific reasons why Petitioner’s

activities have violated Section 57.5(a) of the Act and the Agency admits there are no factual

disputes. (Pet. SJ at 24.) Petitioner asserts that “[u]nder the Board’s ruling in

Kalo

and

Kathe

, the only relevant inquiry is whether any activities at issue exceeded the scope of early

action activities required by the Act (e.g., removing in excess of four feet of soil from the

outside dimensions of the UST.).” (Pet. SJ at 24.) The Petitioner argues that the Agency

instead denies reimbursement based on incorrect statutory interpretations of the Act to deny

reimbursement and therefore as a matter of law it is entitled to summary judgment.

The Agency improperly denied reimbursement of $2,026.73.

The Petitioner argues that the Agency improperly denied reimbursement for the above

costs for failing to state specific reasons for the denial. (Pet. SJ at 25-26.)

Petitioner asserts

that “[t]he Agency’s sixth basis of denial was that $2,026.73 was being deducted for the

‘reasons above’, and for an unspecified math error and alleged lack of documentation does not

meet the regulatory disclosure standard.” (Pet. SJ at 26.)

In addition to this argument Petitioner reargues that the Agency cannot raise new denial

points at this time. This is the same argument made by the Petitioner in its response to the

Agency’s motion for summary judgment. We will not restate those arguments. See supra,

page 12, for a discussion of those arguments.

The Agency’s denial reason is stated in its entirety at supra, page 8 paragraph 8.

Policy Considerations.

Petitioner presents several policy reasons for why its motion for summary judgment

should be granted. (Pet. SJ at 26-30.) The main focus of the Petitioner’s policy arguments

pertain to how the UST’s program would function if the Agency position was affirmed by the

Board. Furthermore, some of the arguments question the Agency’s course of action pursuant

to what Petitioner believes is sound engineering judgment. (Pet. SJ 27-29.) The arguments

made by Petitioner are not in direct relation to any basis given by the Agency for denial of

reimbursement.

Agency’s Response

Petitioner’s cross-motion for summary judgment should be denied because it is

dependent upon facts not within the administrative record or supported by affidavit.

The Agency contends that petitioner never provided the Agency with information as to

why the USTs and surrounding contaminated fill material had to be removed prior to its

October 5, 1995 decision in light of the August 18, 1994 classification and certification of the

Site as a No Further Action site. (Ag. Resp. at 4.) The Agency states that “Petitioner skirts

asking or answering any of these questions by declaring both the removal of the USTs and

surrounding fill material are required by law.” (Ag. Resp. at 4.) The Agency asserts that the

Petitioner has not cited any authority that requires the removal of the USTs or the surrounding

fill material. (Ag. Resp. at 4.) The Agency claims that “[i]n fact any level of review or

scrutiny of the authority cited by the Petitioner for these alleged requirements illustrates that

these activities are not mandatory, but discretionary and at most conditioned upon certain

activities, circumstances or events for which Petitioner provides no support within the record

or accompanying affidavit to establish as fact as this Site.” (Ag. Resp. at 4.)

The Agency states that the Board’s procedural rules require all facts asserted by

Petitioner which are not in the record to be supported by affidavit, that the Board has held the

initial burden to be on the Petitioner and that the Board will only consider evidence before the

Agency at the time it makes its reimbursement decision when reviewing that determination.

(Ag. Resp. at 5.) The Agency argues “[t]o allow the petitioner to invent alternative bases or

introduce new evidence never provided to the Agency prior to its final determination would

render the Agency review process meaningless by allowing such information to be withheld

until the party in possession of that document deems it necessary and/or relevant” which would

force the Agency to defend its final determinations on an “ad hoc” basis. (Ag. Resp. at 5-6.)

To conclude the Agency states that the Petitioner does not cite to the record in this matter or a

supporting affidavit to establish the truth for the assertions or assumptions that the USTs and

The Agency cites to

Clarendon Hills Bridal Center v. IEPA

, (February 16, 1995), PCB 93-

55, appeal pending, where the Board found that Petitioner may not supplement the record

before the Board with new information because the Petitioner should have know that such

information was necessary for the Agency to make a determination and should have been

included in the reimbursement application to the Agency.

surrounding fill material was required to be removed. (Ag. Resp. at 6.) The Agency asserts

that they are “nothing more than assumptions, which are clearly contradicted” by the

Petitioner’s own site classification and certification that the Site was a No Further Action site.

(Ag. Resp. at 6.)

Petitioner’s cross-motion should be denied as a matter of law.

The Agency argues that the Petitioner’s cross-motion should be denied as a matter of

law because the activities for which the Petitioner seeks reimbursement exceed the minimum

requirements necessary to comply with the Act and cannot be reimbursed as early action

activities. (Ag. Resp. at 7.) The Agency states that the Petitioner “in a desperate attempt to

obtain reimbursement for alleged early action activities, which based upon the Petitioner’s own

submittal were not necessary to be performed and a portion of which were not even associated

with eligible USTs, the Petitioner tries to reconcile its conduct at the Site with the

requirements of Title XVI of the Act by a self preserving interpretation of the applicable

requirements under the Act, which is so vain that if adopted will undermine the very concept

of early action and reek havoc on the regulations adopted pursuant to Title XVI of the Act.”

(Ag. Resp. at 7.)

As stated by the Agency in its motion for summary judgment, it again states that in

order to be eligible for reimbursement from the UST Fund, costs must be reasonable and

related to corrective action and that the burden of proving that challenged costs are reasonable

and related to corrective action is on the owner or operator. (Ag. Resp at 8.) The Agency

asserts that “the petitioner admits that its request for reimbursement includes costs for activities

associated with ineligible USTs at the site.” (Ag. Resp. at 8.) The Agency claims that

“[b]oth in its Petition for Appeal and its Cross-Motion the Petitioner acknowledges and admits

that the activities for which it is seeking reimbursement for in its June 12, 1995 request for

reimbursement include costs for activities associated with ineligible USTs at the Site” citing to

certain pages of the Petitioner’s filings. (Ag. Resp at 8-9.)

The Agency argues that Petitioner is attempting “to circumvent the entire Agency

review process by now modifying the amount of its June 12, 1995 reimbursement request from

$45,242.01 to $41,706.38 through an apportionment of those costs.” The Agency states that it

denied “the entire amount requested by the Petitioner in its June 12, 1995 reimbursement

request and specifically identified the inclusion of costs associated with ineligible USTs at the

Site and the Agency’s inability to accurately apportion those costs as one of eight separate

basis for its denial of the Petitioner’s June 12, 1995 reimbursement request” and now that

Petitioner is requesting the Board to accept such apportionment based on information the

petitioner never provided to the Agency. (Ag. Resp. at 9.) The Agency argues that this

“constitutes a new submittal of new information never before submitted to or reviewed by the

Agency” and would render the Agency’s review meaningless and would “shift the burden of

proving the reimburseability of challenged costs from the party seeking reimbursement to the

Agency by requiring the Agency to consider and evaluate that information and evidence for the

first time ad hoc in a proceeding before the Board and consequently require the Board to

conduct the initial review of that new evidence and information.” (Ag. Resp. at 10.)

Again

as the Agency argued in its motion for summary judgment, it also argues in its

response that the Site was classified as a No Further Action site and certified as such by a

licensed professional engineer on August 18, 1994, therefore, Petitioner’s activities after such

classification and certification exceed the minimum requirements of the Act. (Ag. Resp. at

11-14.) (See supra page 10-11 for a full discussion of the Agency’s arguments.) In addition

to those arguments, the Agency notes in a footnote that the Board stated in

Kalo

and

Kathe

“seeking reimbursement from the UST Fund is limited by Section 57.5(a), which provides that

costs will not be reimbursed if they exceed 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.” (Ag. Resp at 13.)

The final response presented by the Agency is that the activities for which the

Petitioner seeks reimbursement cannot be reimbursed as early action activities because its

reimbursement request for its alleged early action activities was submitted to the Agency after

Petitioner conducted physical soil classification and groundwater investigation activities

required by statute or regulation and the activities do not constitute early action. (Ag. Resp. at

14-20.) The Agency’s response argues the same facts and law as it argued in its motion for

summary judgment which are discussed on supra page 12-13. In conclusion, the Agency

asserts that its October 5, 1995 denial letter or determination satisfied the Act’s denial

notification requirements because it provides an explanation of how the Act and rules would be

violated if reimbursement was granted and statements of specific reasons why the requirements

of the Act and regulation may not be met if reimbursement was granted. (Ag. Resp. 20-21.)

Finally, the Agency notes that Petitioner admits that when the classification and certification

was signed by the engineer, he did not have a license. (Ag. Resp. at 21.) For all of the above

reasons, and based upon Petitioner’s admissions, the Agency requests that the Board grant the

Agency summary judgment as a matter of law and deny Petitioner’s cross-motion for summary

judgment. (Ag. Resp. at 21.)

DISCUSSION

The regulation of USTs by the states is authorized by the Hazardous and Solid Waste

Amendments of 1984 to Subtitle I of the federal Resource Conservation and Recovery Act.

States may adopt their own UST programs as long as the standards are “no less stringent” than

federal law or regulations promulgated thereto. (RCRA Section 6991 (c)(b)(1) and 6991 (g).)

The State legislature in adopting P.A. 88-496, which Governor Edgar signed into law on

September 13, 1993, specifically identified five purposes underlying the new law. The

Board’s opinion and order in R94-2(a)

In the Matter of: Regulation of Petroleum Leaking

Underground Storage Tanks 35 Ill. Adm. Code 732

dated August 11, 1994 states:

“[t]he most significant change from Illinois former UST program is the

legislation’s infusion of ‘risk-based’ decision-making into UST site classification

and remediation. Instead of requiring excavation of all UST sites until sampling

reaches the cleanup objectives of the Agency’s guidance document (the LUST

Cleanup Manual), the legislature enacted a statutory priority scheme based upon

soil type, groundwater locality, migratory pathways and a variety of other

factors. Using these factors, the owner/operator and the Agency can, together,

determine the level of cleanup necessary at any given site.” (Id. at 3.)

In discussing the operation of the regulations, the Board further explained:

Directly from the new LUST law, “early action” requires an

owner/operator upon confirmation of a release by the OSFM, to perform initial

response actions within 24 hours of the release. Those initial response actions

include reporting the release to IEMA, taking immediate action to prevent

further release of the regulated substance, and identifying and mitigating fire,

explosion, and vapor hazards. The owner/operator must then perform initial

abatement, measures, including removal of petroleum from the UST system to

prevent further release into the environment, visual inspection of releases and

prevention of further migration into surrounding soils and groundwater,

investigation of migratory pathways and investigation and removal of possible

free product. Within 20 days after confirmation of the release, the

owner/operator shall submit a report summarizing its initial abatement steps and

any resulting information (the “20 day report”). The owner/operators must

then continue to assemble information about the site and the nature of the

release, and submit that information to the Agency within 45 days of

confirmation of a release (the “45 day report”). At sites where “free product”

is present, the owner/operator must also submit a free product removal report

within 45 days of the confirmation of the release. Prior to the submission of

any plans to the Agency, the owner/operator may also remove contaminated fill

material (within an area of four feet from the outside dimensions of the tank)

and any groundwater in the excavation which exhibits a sheen. An application

for reimbursement for early action costs can be submitted after the early action

activities. Alternatively, an owner/operator can include its request for

reimbursement for early action costs when submitting its corrective action

budget plan to the Agency. (Id. at 13-14.)

Subpart B of the Board’s regulations found at 35 Ill. Adm. Code Part 732 set forth the

requirements under early action. Pursuant to those regulations an owner/operator upon

confirmation of a release shall perform the following initial response actions within 24 hours:

Report the release to IEMA (e.g., by telephone or electronic mail);

Take immediate action to prevent any further release of the regulated substance

to the environment; and

Identify and mitigate fire, explosion and vapor hazards.

(35 Ill. Adm. Code 732.202(a).)

Additionally, an owner and/or operator shall “upon confirmation of a release of petroleum

from a UST system in accordance with regulations promulgated by the OSFM, the owner or

operator shall perform the following initial abatement measures:”

Remove as much of the petroleum from the UST system as is necessary to

prevent further release into the environment;

Visually inspect any above ground releases or exposed below ground releases

and prevent further migration of the released substance into surrounding soils

and groundwater;

Continue to monitor and mitigate any additional fire and safety hazards posed

by vapors or free product that have migrated from UST excavation zone and

entered into subsurface structures (such as sewers or basements);

Remedy hazards posed by contaminated soils that are excavated or exposed as a

result of release confirmation, site investigation, abatement or corrective action

activities. If these remedies include treatment or disposal of soils, the owner or

operator shall comply with 35 Ill. Adm. Code 722, 724, 725, and 807 through

815;

Measure for the presence of a release where contamination is most likely to be

present at the UST site, unless the presence and source of the release have been

confirmed in accordance with regulations promulgated by the OSFM. In

selecting sample types, sample locations, and measurement methods, the owner

or operator shall consider the nature of the stored substance, the type of

backfill, depth to groundwater and other factors as appropriate for identifying

the presence and source of the release; and

Investigate to determine the possible presence of free product, and begin free

product removal as soon as practicable and in accordance with Section 732.203

below.

(35 Ill. Adm. Code 732.202)(b).)

The owner or/and operator is also required to report to the Agency the initial abatement

steps taken and any information or date collected within 20 days of release. (35 Ill Adm.

Code 732.202(c).) Furthermore, within 45 days the owner or/and operator shall submit data

collected pursuant to Section 732.202(d). (35 Ill. Adm. Code 732.202(e).) Finally, Section

732.202(f) quotes the statutory language of Section 57.6 of the Act

verbatim

. There is no

additional language which would clarify the intent or establish a requirement concerning the

removal of USTs and the contaminated fill material.

In discussing the different roles of the State agencies involved, the Board stated the

following concerning the Office of the State Fire Marshal (OSFM):

Beginning with leak detection, the LUST Law gives the OSFM direct

responsibility for oversight of activities such as tank removal, abandonment and

repair. The OSFM’s duties and the requirements for conducting tank removal

still key off of RCRA, and its corresponding federal (42 U.S.C. Section 6991I)

and state identical-in-substance regulations (35 Ill. Adm. Code Part 731 and 41

Ill. Adm. Code Part 1870). However, the OSFM now has a much greater role

in the present UST program than in the previous ones. In particular, the OSFM

must provide on-site assistance to the owner/operator for leak confirmation,

evaluation and eligibility information. The OSFM is also the state entity

responsible for making eligibility and deductibility determinations (access to the

fund issues). Further, the OSFM has the responsibility to issue, where

appropriate, “Certificates of removal, repair or abandonment” which have the

same statutory effect as an Agency “No Further Remediation Letter.” (415

ILCS 5/57.5 and 57.9.)

Agency’s motion for summary judgment

In response to the Agency’s motion for summary judgment Petitioner argues that the

Agency raises new denial reasons which were not stated in the Agency’s October 5, 1995

denial letter and therefore cannot be argued now. (See supra pages 11-12.) We disagree. The

Agency’s denial letter states several reasons for why it denied reimbursement. The majority of

those reasons state that the activities are neither necessary corrective action nor early action.

(See supra pages 5-8.) The Agency’s motion for summary judgment raises three arguments as

to why its decision should be affirmed as a matter of law: the activities exceed minimum

requirements; the activities are not early action because they were conducted after physical soil

and groundwater monitoring investigation; and the activities are not early action because they

occurred several years after the release. (See supra pages 9-11.) Paragraphs three, four, five,

six and eight of the Agency’s denial letter correspond to the arguments being made by the

Agency in its motion for summary judgment. Therefore, we find that the Agency has not

raised new arguments in its motion for summary judgment and those arguments are properly

before us.

The Agency argues that the activities exceed minimum requirements of the Act because

they were performed after the Site was classified as No Further Action.

In response to the Agency’s first argument, citing to

Kelly-Williamson

and 40 C.F.R

280.71(b), Petitioner claims that once there is a confirmed release, tank and limited

contaminated fill material removal are necessary activities under the Act and federal law. (See

supra pages 12-13.) We disagree. Any requirement to pull USTs and to remove fill material

is dependent on the fact situation particular to that site and reimbursement of any activity is

limited by Section 57.5(a) of the Act.

Kelley-Williamson,

the Board was applying the UST regulations pursuant to 35 Ill.

Adm. Code Part 731 and stated that an owner or operator may receive reimbursement (beyond

the appropriate level), so long as the early action activities are consistent with the minimum

standards of the Act. (

Kelley-Williamson

at 5.) Additionally, 40 C.F.R 280.71(b) does not

state that all sites with confirmed releases must remove the USTs and contaminated fill

material. In fact it states that “[a]ll tanks taken out of service permanently must also be either

removed from the ground or filled with inert solid material.” (40 C.F.R. 280.71(b).) There

is an option as to whether the tanks remain and this option is set forth in the OSFM rules

concerning abandonment, repair or removal. (35 Ill. Adm. Code 732.202.) Therefore there is

no requirement that USTs be removed from a site once there has been a confirmed release.

As stated above, the removal of USTs is dependent on the facts relating to a particular

site. Neither the Act nor the Board’s adopted UST regulations require USTs to be removed if

there is a confirmed release. Instead, under newly adopted Title XVI, a “risk-based” approach

based upon soil type, groundwater locality, migratory pathways and a variety of other factors

is used in determining the corrective action necessary for a given site. As set forth in 35 Ill.

Adm. Code 732.302, a site may be classified as No Further Action without removal of USTs

or backfill material. Furthermore, even if it is determined that tank removal and contaminated

fill removal is necessary for the Site, the activities of tank removal and fill material removal

are not necessarily early action activities. As Petitioner argued in response to the Agency’s

motion for summary judgment, Section 57.6(b) does not require tank removal but rather when

tank removal may take place.

Although the Board finds that tank and contaminated backfill removal are not always

required, we cannot grant the Agency’s motion for summary judgment based on this argument

because the Agency has rejected the Site Classification of No Further Action and we cannot

make a determination as to what corrective action is necessary. Ultimately, based on the facts

at the Site, which are not fully developed before us now, a Site Classification and a

corresponding Corrective Action Plan may require tank and contaminated fill removal at the

Site. Since the Agency rejected the Site Classification, the Board cannot determine what is

and what is not necessary corrective action at the Site, and whether the activities for which

Petitioner seeks reimbursement exceed the minimum requirements of the Act.

The Agency argues that the activities are not eligible for reimbursement as early action

because Petitioner failed to seek reimbursement and performed the activities prior to

conducting physical soil classification and groundwater investigation activities.

In response to the Agency’s second argument, Petitioner claims that the Agency has

carefully avoided rearguing its first basis for denying reimbursement due to the Board’s rulings

Kalo

and

Kathe

, and that the Agency’s position is not supported by the plain language of the

Act and the Board’s interpretation. (See supra pages 13-14.) We would agree with the

Petitioner, had the Agency argued that it is denying reimbursement because plans were

submitted prior to the claimed early action activities.

Unlike the situations before the Board in

Kalo

and

Kathe

, the Agency is arguing that

the Petitioner performed site classification activities prior to submitting an application for

reimbursement and before conducting the claimed early action activities. Petitioner is correct

in stating that the Board has interpreted Section 57.6(b) of the Act to be permissive, in that an

owner or operator may remove a tank system before classifying the site but is not required to

do so. However, Petitioner is incorrect in that the Board has interpreted Section 57.6(b) of the

Act to mean that an owner or operator may conduct physical soil classification and

groundwater investigation prior to seeking reimbursement and performing early action

activities. As stated by the Board in adopting 35 Ill. Adm. Code Part 732 “[a]fter completion

of early action activities, the owner/operator proceeds to evaluation and classification of the

site.” (

R94-2(A),

supra, at 15.) While it is true that the Board found in

Kalo

and

Kathe

that

the owner or operator may conduct early action activities after the submittal of a site

classification plan, an owner or operator may not conduct activities such as tank and

contaminated fill removal subsequent to physical soil classification and groundwater

investigation and seek reimbursement for those activities as early action.

Section 57.7 of the Act requires Petitioner to submit to the Agency for the Agency’s

approval or modification a physical soil classification and groundwater investigation plan prior

to conducting any site classification activities. Additionally, Section 57.7 of the Act states that

prior to conducting any site classification activities a request for payment of costs associated

with eligible early action costs as provided in Section 57.6(b) of the Act may be submitted.

The Board’s regulations state that as an alternative to submitting a request for reimbursement

prior to submitting any plans for site classification, an owner or operator may submit early

action costs as part of the site classification budget plan. Therefore, activities associated with

early action have to be conducted prior to physical soil classification and groundwater

investigation activities. We disagree with Petitioner’s argument concerning this issue that the

obligation to seek payment depends upon when the early actions take place. (See supra page

14.) Subsection (b) of Section 57.7 of the Act is not dependent on Section 57.6(b) of the Act

and the correct interpretation of Section 57.7 of the Act, and the rest of Title XVI, is that early

action must be performed prior to physical soil classification and groundwater investigation

activities. An owner and operator cannot perform physical soil classification and groundwater

investigation activities, determine the sites classification, and then perform early action

activities.

Once a site has been classified, or in this case, attempts to classify a site, any further

corrective action must be conducted pursuant to that site’s classification and corresponding

corrective action plan if required. Early action activities should be done as initial abatement of

possible environmental hazards or risk to human health. Under Title XVI the State is

implementing a “risk-based” approach for UST remediation and to automatically reimburse for

tank and fill removal after site classification activities would undercut that intent. Therefore

we agree with the Agency in that activities conducted after physical soil classification and

groundwater investigation activities cannot be early action activities.

The Agency argues that activities do not constitute early action due to the passage of

time.

The Agency finally argues that Petitioner cannot claim that activities conducted nearly

two years after the confirmation of release are early action. We agree that these activities

cannot be early action in this case, however, not because of the mere passage of time. We

agree with the Agency’s interpretation that early action is to be completed early in the process,

as initial response, or to remediate immediate danger to the environment and health of the

public. In this case, however, given that Petitioner opted into the new Title XVI program on

February 29, 1994, which was two years after the confirmed release, it would have been

impossible to conduct early action defined by initial response or remediation of immediate

danger pursuant to Title XVI. The passage of time is important and early action activities

should be conducted prior to classification activities and as initial response; however, since

Title XVI allowed certain owners or operators to opt under Title XVI after proceeding under

the old program, with certain limitation, the passage of time cannot dictate what is and is not

early action in these situations.

CONCLUSION

We find that Petitioner’s activities are not early action because they occurred after the

Petitioner conducted physical soil classification and groundwater investigation activities as

discussed above. Furthermore, Petitioner filed with the Agency a site classification pursuant

to 35 Ill. Adm. Code 732.302, indicating that it was a No Further Action site prior to the

actual tank removal and contaminated fill removal which was rejected by the Agency. The

activities for which Petitioner is seeking reimbursement as early action activities are not early

action activities in this case.

The Petitioner is seeking reimbursement for activities which may be reimbursable

corrective action; however, they are not activities for which Petitioner may receive

reimbursement for as early action pursuant to Sections 57.6 and 57.7 of the Act. On August

18, 1994 Petitioner filed a Site Classification Completion Report classifying the site as No

Further action and stating that it would remove the UST and contaminated backfill. On

December 20, 1994 the Agency in its response denied the site classification and rejected a

proposal to remove the USTs and the contaminated fill material. Subsequently the Petitioner

removed the USTs and the contaminated fill material. Early action activities should occur

early in the process and prior to site classification activities at the site. Early action activities

are designed as initial response to the confirmation of a release. (See supra page 22.) To

interpret the Act and the Board regulations as to allowing early action activities to take place

after physical soil classification and groundwater investigation activities would render the

“initial response” component of early action and the intent of a “risk-based” remediation

approach meaningless.

Owners or operators of a UST site should conduct early action activities prior to any

other activities at the site and preferably prior to filing the 45 Day Report. Although the

Board has in

Kalo

and

Kathe

allowed Petitioner to perform early action activities after

Petitioner has filed a physical soil and groundwater investigation plan, these rulings provide no

precedent as to whether the Petitioner can claim as early action activities conducted after

performing the activities in the plan for the purposes of reimbursement. While the Board

prefers that early action be performed prior to the submittal of plans, the Board realizes that

there may be circumstances beyond an owner or operator control which delays such activities.

Nevertheless, early action activities must be performed prior to conducting site classification at

the site.

Activities conducted after site classification activities should be done in accordance with

a corrective action plan based on, that site’s particular classification. As noted above, the

most significant change from Illinois former UST program is the “risk-based” approach to

decision-making in UST site classification and remediation. Under Title XVI, instead of

requiring excavation at UST sites until sampling reaches the cleanup objectives a priority

scheme based upon soil type, groundwater locality, migratory pathways and a variety of other

factors are used by the owner/operator and the Agency, together, to determine the level of

cleanup necessary at any given site. In this case, reimbursement for the claimed early action

activities may be sought instead as corrective action activities pursuant to an approved site

classification, plan and budget.

For these reasons, as a matter of law, the Agency is entitled to summary judgment.

The Agency’s denial of Petitioner’s request for reimbursement for early action activities is

affirmed. Since the Board is granting the Agency’s motion for summary judgment, for the

same reasoning we deny Petitioner’s cross-motion for summary judgment.

This opinion constitutes the Board’s findings of fact and conclusions of law.

ORDER

For the reasons stated above, the Board grants the Agency’s motion for summary

judgment and denies Petitioner’s cross-motion for summary judgment. Therefore the Board

affirms the Agency’s denial of the Petitioner’s June 12, 1995 request for reimbursement for

tank and contaminated soil removal as being early action and closes the docket in this matter.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1994)) provides for

the appeal of final Board orders within 35 days of the date of service of this order. The Rules

of the Supreme Court of Illinois establish filing requirements. (See also 35 Ill. Adm. Code

101.246 "Motions for Reconsideration.")

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that

the above opinion and order was adopted on the _____ day of ___________, 1996, by a vote

of ______________.

___________________________________

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board