ILLINOIS POLLUTION CONTROL BOARD

December 19,

1991

PAUL ROSMAN,

)

Petitioner,

PCB 91—80

v.

)

(UST Reimbursement

Determination)

)

ILLINOIS ENVIRONMENTAL

PROTECTION AGEItCY,

)

Respondent.

CONCURRING OPINION

(by B.

Forcade):

I respectfully concur with today’s action.

I agree with the

outcome and with all of the reasons, with one minor exception.

believe the decision made in this case regarding statutory

definitions of corrective action must be more clearly linked with

statutory decisions regarding reimbursement or eligibility.

Specifically, the Act envisions the following two-step

review process:

1)

first,

a review of the application to

determine whether the applicant is eligible to access the Fund

and what the appropriate deductible is pursuant to Section

22.18(b) (a)

of the Act, and

2)

a review of the costs pursuant to

Section 22.18(b) (d) (4)

of the Act.

These two decision making

processes are the only two contemplated under Section 22.l8b of

the Act,

each decision is a final Agency action appealable to

this Board and each decision has its own time line and burden of

proof.

If an Agency decision regarding statutory provisions is

going to be reviewed by this Board,

it must be specifically

squeezed into one of those two decision making processes.

The provisions regarding eligibility (the first Agency

decision) are found at Section 22.18b(a)

of the Act, and those

regarding reimbursement (the second Agency decision) are found at

Section 22.18b(d)(4)(D).

If the Agency fails to make the

eligibility decision properly,

it cannot revisit that decision

when it determines reimbursement.

See Pulitzer v.

IEPA,

PCB 90-

142

(December 20,

1990).

The two decisions are totally separate.

Notwithstanding these two decision making processes,

the Act

includes many prohibitions or limitations that affect the amount

of money that a person may retrieve from the state regarding

clean up.

For example, the requested costs may not £it the

statutory definition of corrective action in Section

22.18(e) (1) (C),

as it the case here.

Additional examples include

that the requested corrective action costs may exceed statutory

maximums stated in Sections 22.18b(b) or 22.18c(a).

These

“other” statutory limitations are not specifically connected in

128—26 1

---

2

the Act to either the eligibility decision or to the decision

regarding reimbursement.

If this Board is to connect those

“other” factors with the two statutory decision making processes,

it must use some theory.

Hopefully,

that theory would guide the

Agency and future petitioners before this Board in the proper

implementation of the law.

The only theory articulated by the majority for connecting

the definition of “corrective action” with the reimbursement

decision under Section 22.18b(d) (4) (D)

is found on page

6 of that

Opinion,

“We find that a sufficient nexus exists between

reasonable costs as articulated in Section 22.lSb(d) (4) (C)

and

costs associated with corrective action.”

The majority does not

explain what factors influence the sufficient nexus theory, nor

do they explain how those factors favor connecting the definition

of corrective action to the reimbursement determination rather

than the determination on eligibility.

I believe the theory connecting these other statutory

factors to either reimbursement decisions or eligibility

decisions is the critical element of this case.

Since

I find the

“sufficient nexus” theory inadequate to guide future developments

in the law,

I concur.

Bill

S. Fo cade

Board Member

I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify th~,tthe above Concurring Opinion was filed

on the

~

day of

__________________,

1991.

7~

~

7:~.

Dorothy M.,~unn,Clerk

Illinois Pollution Control Board

128—262