ILLINOIS POLLUTION CONTROL BOARD
March 14, 1991
SPARKLING SPRING MINERAL
)
WATER CO.,
)
Petitioner,
v.
)
PCB 91—9
(Underground Storage
ILLINOIS ENVIRONMENTAL
)
Tank Reimbursement)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter
is
before
the
Board
on
a motion
for
summary
judgment
filed
by
the
Illinois
Environmental
Protection
Agency
(Agency)
on February 5,
1991.
The Agency contends that there are
no
questions
of
law
or
fact
in
dispute.
Petitioner
Sparkling
Spring Mineral
Water
Company
(Sparkling
Spring)
did not file
a
response.
Sparkling Spring applied to the Agency for reimbursement of
the costs
of
removing two underground storage tanks
(UST5)
.
On
December 14, 1990, the Agency denied Sparkling Spring’s request for
reimbursement for the
costs
of
removing
a
1000 gallon tank,
and
determined
that
Sparkling
Spring
was
subject
to
a
$50,000
deductible
for the
costs
of
removing
a
2000
gallon
tank.
On
January
17,
1991,
Sparkling
Spring
filed
this
appeal
of
the
Agency’s determination.
The Agency now asks that the Board enter
summary judgment upholding its decisions on both tanks.
After reviewing the Agency’s motion and the record in this
case,
the Board grants the Agency’s request for summary judgment
on the Agency’s determination that the costs of removing the 1000
gallon tank are not eligible for reimbursement.
It is undisputed
that the
1000 gallon UST was
last used
prior to
1972.
(Agency
Record
(Rec.)
at
000007.)
The
Agency
notes
that
one
of
the
criteria
for establishing access to the UST fund
is that the UST
has been
registered
with
the
Office
of
the State
Fire Marshal
(OSFM).
(Section 22.l8b(a)(4) of the Environmental Protection Act
(Act),
Ill.Rev.Stat.
1989,
ch.
ill
1/2,
par.
1022.18b(a)(4).)
The Agency also states that OSFM will not register an UST that ~as
not operated on or after January
1,
1974
(Ill.Rev.Stat.l989,
ch.
127 1/2, par.
156(b)), and has provided an affidavit of an Agency
employee which states that OSFM indicated that the 1000 gallon tank
is
considered
unregisterable by OSFM because
that tank was last
operated before January
1,
1974.
Although Sparkling Spring did not
file a response to the Agency’s motion for summary judgment,
it did
indicate
in its application for reimbursement and in its petition
120—7 1
2
review of the Agency decision that the 1000 gallon UST cannot
registered.
(Agency Rec.
at 000007; Pet.
at 1-2.)
Because it
undisputed
that
the
1000 gallon
tank
is
not and
cannot
be
istered, and because the Act requires that tanks be registered
order to qualify for reimbursement, the Board finds that there
no genuine issues of material fact or law on the issue of the
0 gallon tank.
Therefore, summary judgment is granted in favor
bhe Agency on its determination that the 1000 gallon tank is not
gible for reimbursement.
The Agency’s request for summary judgment on its determination
t the
2000 gallon tank is
subject to
a $50,000 deductible
is
e complicated.
First, the Agency notes that Sparkling Spring’s
ition before this Board states that “the 2,000 gallon tank was
leaking when removed from the ground, as evidenced by the State
e Marshall
sic
on
site.”
(Pet.
at
1.)
Sparkling Spring’s
lication to the Agency for reimbursement has indicated that the
0 gallon tank was leaking.
(Agency Rec. at 000006.)
The Agency
ntains
that
the
Act
allows
reimbursement
for
the
costs
of
rrective action”, and argues that the definition of “corrective
ion”
pertains
only
to
releases
of
petroleum.
(Section
18b(a) (3)
and
(e) (1) (c)
of
the
Act.)
The Agency
therefore
ues
that
Sparkling
Spring
is
not
entitled
to
reimbursement
ause the 2000 gallon tank did not leak.
The Board
is not persuaded.
It
is impossible to determine,
m
the
statement
in
Sparkling
Spring’s
petition
or
from
ormnation
provided
by
the
Agency,
whether
the
tank
was
not
king when
it was removed
from
the
ground,
or that
it
never
ked.
The
Board
believes
that
there
is
a
genuine
issue
of
erial
fact,
so that summary judgment
is not appropriate.
Second,
the
Agency
apparently
contends
that
there
is
no
uine issue of material fact
as to
its determination that the
0 gallon tank is subject to a $50,000 deductible.
The $50,000
uctible
was
applied
based
upon
Section
22.18b(d)(3)(c)(ii),
ch
provides
that
if
the costs
are
related
to
a
release
of
roleum
which
first
occurred
prior
to
July
28,
1989,
the
uctible shall
be $50,000 or $100,000 if the owner
or operator
actual or constructive knowledge of the release, and a lesser
unt
(usually
$10,000)
if the owner
or operator did
not have
ual
or constructive knowledge
of the
release.
The owner
or
rator must prove that it had no actual or constructive knowledge
at the release of petroleum for which a claim is submitted first
urred prior
to July 28,
1989.”
The Agency points out that it
undisputed that the 2000 gallon tank was taken out of service
February
1,
1988.
(Agency Rec.
at 000006.)
The Agency then
~1udes that because the 2000 gallon tank was not operated after
ruary
1,
1988,
the contamination from that tank could not have
iirred after that date.
Consequently,
the Agency asserts that
release occurred prior
to July
28,
1989
and that Sparkling
ing did not prove that it did not have constructive knowledge
120—7 2
3
of that release,
and that therefore the deductible for the 2000
gallon tank must be $50,000.
Again,
the
Board
is
not persuaded that there
is
no genuine
issue
of material
fact as to the amount of the deductible.
The
Board
does
not agree with
the Agency’s
conclusion
that simply
because the 2000 gallon tank was taken out of service before July
28,
1989,
the release must have occurred prior to that date.
It
is possible that the release happened sometime after the tank was
taken out of service.
In essence,
it is impossible for the Board
to determine when the release occurred, based on the facts before
it.
The Agency’s request for summary judgment in its favor as to
the 2000 gallon tank is denied.
This case will proceed to hearing
in accordance with the Board’s January 24,
1991 order.
IT IS SO ORDERED.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certi~ that the above
Order
was
adopted
on
the
/j~-
day of
YT)a_t~c.I..,
,
1991,
by a vote of
7—o
I
Control Board
120—73