ILLINOIS POLLUTION CONTROL BOARD
August 1, 1996
KATHE'S AUTO SERVICE CENTER,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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)
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)
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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).
1
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
.
2
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
1
The petition for review will be referred to as “Pet. at.”.
2
The Agency’s motion for summary judgment will be referenced to as “Ag. SJ at .”.
2
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.
3
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.
4
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.
3
The Petitioner’s cross-motion for summary judgment will be referred to as “Pet. SJ at .”.
4
The Agency’s response to Petitioner’s cross-motion for summary judgment will be referred
to as “Ag. Resp. at .”.
3
923382.) on November 28, 1992.
5
(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.)
5
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
.”.
4
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:
1.
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.
2.
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)).
3.
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.)
5
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.
6
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:
1.
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.
2.
Failure to submit an Office of the State Fire Marshal (OSFM) eligibility and
deductibility determination for the 275 gallon heating oil UST which was
6
The Board affirmed the Agency’s rejection of Petitioner’s Site Classification on May 4,
1995.
6
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).
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:
a.
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.
b.
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)
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.
B)
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,
7
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.
4.
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)).
5.
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).
6.
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.
7.
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.
8
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).
8.
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.
9
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:
a)
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.
b)
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:
a)
Physical soil classification and groundwater investigation.
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.
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.
10
B.
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:
3.
No Further Action Site.
A.
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.
B.
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.
11
The Board’s procedural rules at 35 Ill. Adm. Code 732.305 Plan Submittal and Review set
forth the following:
a)
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.
b)
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:
1)
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
2)
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.
c)
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.
d)
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
12
reimbursement for any related costs or the issuance of a “No Further
Remediation” letter.
e)
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’.
13
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
14
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
15
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
16
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.)
17
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
18
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.)
19
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
A.
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.
B.
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.
C.
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.)
20
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.)
D.
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
se
is not only an incorrect reading of the law,
21
but also disingenuous in that to this date the Agency has rejected the classification of the
Petitioner’s site.” (Pet. SJ at 22.)
E.
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.).
F.
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.
7
G.
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.)
8
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.)
7
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.
8
The Agency’s denial reason is stated in its entirety at supra, page 8 paragraph 8.
22
H.
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
A.
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.
9
(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
9
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.
23
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.)
B.
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.)
24
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
25
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:
1)
Report the release to IEMA (e.g., by telephone or electronic mail);
2)
Take immediate action to prevent any further release of the regulated substance
to the environment; and
3)
Identify and mitigate fire, explosion and vapor hazards.
(35 Ill. Adm. Code 732.202(a).)
26
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:”
1)
Remove as much of the petroleum from the UST system as is necessary to
prevent further release into the environment;
2)
Visually inspect any above ground releases or exposed below ground releases
and prevent further migration of the released substance into surrounding soils
and groundwater;
3)
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);
4)
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;
5)
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
6)
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):
27
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.
In
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
28
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
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. (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
29
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
30
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.
31
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