ILLINOIS POLLUTION CONTROL
BOARD
November 19, 1992
JANES LYNCH,
)
Petitioner,
)
v.
)
PCB 92-81
)
(Underground Storage Tank
ILLINOIS ENVIRONNENTAL
)
Reimbursement Determination)
PROTECTION AGENCY,
)
Respondent.
JAMES LYNCH APPEARED PRO SE; and
TODD RETTIG AND GREGORY RICHARDSON APPEARED ON BEHALF OF
RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter is before the Board on a petition for review
filed June
1,
1992 by petitioner James Lynch pursuant to Section
22.18b(g)
of the Environmental Protection Act (Act).
(Ill.Rev..Stat.
1991,
ch.
111½,
par.
1022.18b(g).)
Lynch seeks
review of the Illinois Environmental Protection Agency’s
(Agency)
April
27,
1992 partial denial
of reimbursement from the
Underground Storage Tank
(UST)
Fund.
A hearing was held on
September 30,
1992,
in Carlinville,
Illinois.
No members of the
public attended.
Neither party filed a brief.
The only issue in this case
is whether costs incurred in
association with
a planned removal of USTs are “corrective
action”
costs and thus reimbursable by the Fund.
BACKGROUND
This case involves the removal of liSTs at Jim’s Shell and
Marine,
located at 400 North Springfield in Virden,
Illinois.
(R.A at
2.)’
Mr. Lynch purchased the property on January
1,
1979.
(R.A at 3.)
The site contained six USTs,
all of which
were taken out of service on November 30,
1990.
(R.A at 3—8,
14.)
on March 28,
1991,
the Office of the State Fire Narshal
(OSFM) received Lynch’s application for a permit to remove the
six tanks.
(R.B at
1-2.)
OSFM issued that permit for removal of
1
“R.A” denotes citation to Part
1 of the Agency record,
and “R.B” indicates citation to Part
2 of the Agency record.
“Tr.” refers to the transcript of the September 30,
1992 hearing.
çfl37-Ol&S
2
the USTs on April 22,
1991.
(R.B at 1-2.)
The tanks were
removed on May 10,
1991.
(R.A at 3—8,
14; R.f at
3.)
Contamination was discovered during the courEe of the removal of
the tanks, and a strong petroleum odor and discoloration of the
soil was noted.
(R.B at 13,
43, 52;
Tr. at
5—8.)
One of the
tanks was perforated.
(R.B at
13,
52; R.A at 3.)
Lynch notified
the Illinois Emergency Services and Disaster Agency
(ESDA)
of the
release on May 10,
1991.2
(R.B at
5.)
Lynch subsequently
performed remedial activities on the site.
Lynch filed an application for reimbursement with the Agency
on August 21,
1991.
(R.A at 2-20.)
The invoices submitted in
support of the application covered the period from May 1991 to
October 1991,
and the total amount requested was $88,854.27.
(R.A at
127.)
On April 27,
1992, the Agency issued its decision,
finding that,
after deducting the applicable $15,000 deductible,
$66,515.53 was reimbursable.
The Agency denied reimbursement of
$7,338.74 in tank removal costs.
(R.A at 127-129.)
Lynch filed
his petition for review with the Board on June
1,
1992.
DISCUSSION
As noted above, the Agency denied reimbursement of $7,338.74
in tank removal costs,
stating that the tanks were not removed
in
response to a release,
and that therefore the associated costs
are not corrective action.
(R.A at 129.)
The Agency pointed to
Section 22.18(e) (1) (C)
of the Act, which states in part:
Corrective action does not include removal of an underground
storage tank
if the tank was removed or permitted for
removal
by the Office of the State Fire Marshal prior to the
owner or operator providing notice of a release of petroleum
in accordance with applicable notice requirements.
(I11.Rev.Stat.
1991,
ch.
111½,
par.
1022.18(e) (1) (C).)
This
limitation, excluding tank removals where permitted prior to
notification of a release, was added by PA.
87-323, effective
September
6,
1991.
In its letter denying reimbursement of the $7,338.74
in tank
removal
costs, the Agency cited to this statutory limitation in
support of its contention that the tank removal costs are not
corrective action costs.
However, the Board has previously held
in determining whether tank removal costs are reimbursable
as
2
The Board notes that the date of ESDA notification
is
given as May
14,
1991
in several places
in the record.
(R.A at
4;
R.B at
52.)
However,
the ESDA form documenting the incident
report
is
clearly dated May 10,
1991.
(R.B at 5.)
The Board
accepts that
May
10 date as the date of ESDA notification.
C
137-0166
3
corrective action costs, the law to be applied
is the definition
of “corrective action” as it existed when the costs were
incurred.
(Galesburg Cottage Hospital
V.
Illinois Environmental
Protection Agency
(August 13,
1992), PCB 92—62,
slip op.
at 3-6;
see also Pulitzer Community Newspapers,
Inc.
v.
Illinois
Environmental Protection Agency
(December 20,
1990 and February
28,
1991),
PCB 90-142.)
Where a statutory amendment involves
prior activity or a certain course of conduct, the law to be
applied
is the provisions in effect at the time that the course
of conduct occurred.
In this case, the costs were incurred in
Nay 1991, well before the statutory amendment was effective on
September
6,
1991.
Thus,
the limitation of Section
22.18(e) (1) (C) cannot be applied to this case.3
The definition of “corrective action”,
as it existed in Nay
1991,
stated:
“Corrective action” means an action to stop, minimize,
eliminate,
or clean up a release of petroleum or its effects
as may be necessary or appropriate to protect human health
and the environment.
This includes, but is not limited to,
release investigation, mitigation of fire and safety
hazards, tank removal,
soil remediation, hydrogeological
investigations,
free product removal,
ground water
remediation and monitoring,
exposure assessments, the
temporary or permanent relocation of residents and the
provision of alternate water supplies.
(Ill.Rev.Stat.
1989,
ch.
111½,
par.
1022.18(e) (1) (C).)
As the Board held
in Miller and in Enterprise Leasing Co.
v.
Illinois Environmental Protection Agency
(April
9,
1992 and June
4,
1992), PCB 91-174), this definition presents a two—part test:
whether the costs are incurred as a result of action to “stop,
minimize, eliminate,
or clean up a release of petroleum”,
and
whether the costs are the result of activities such as tank
removal.
The Board finds that the tank removal costs incurred by
Lynch meet both parts of the definition.
Therefore,
the tank
~
The Board also points out that Lynch’s application for
reimbursement was filed with the Agency on August 21,
1991,
before the statutory amendment was effective on September
6,
1991.
The Board has previously held that when determining
eligibility for reimbursement
(as opposed to the issue of
corrective action), the applicable law is that which
is
in effect
on the date of the filing of the application.
(Miller
v.
Illinois Environmental Protection Agency
(July
9,
1992),
PCB 92—
49; First Busey Trust
& Investment Co.
v.
Illinois Environmental
Protection Agency
(February 27,
1992), PCB 91-213.)
Therefore,
even under that standard, Section 22.18b(e) (1) (C)
cannot be
applied in this case.
0.137-0167
4
removal costs are reimbursable as corrective action costs.
At hearing, the Agency did not specificaily contend that the
tank removal costs are not corrective action because of the
limitation in Section 22.18(e)(1)(C).
Instead, the Agency argued
that Section 22.18b(a) (3) precluded reimbursement of the tank
removal costs.
Section 22.18b(a)(3) states that an owner or
operator is eligible for reimbursement from the UST Fund if:
the costs of corrective action or indemnification were
incurred by an owner or operator as a result of a release of
petroleum,
but not including any hazardous substance,
from
an underground storage tank.
(Ill.Rev.Stat.
1991,
ch.
111½,
par.
1022.18b(a)(3).)
The Agency maintained that because the tank was removed before
the release was discovered,
the facts of this case do not
satisfy the requirements of Section 22.l8b(a)(3).
Thus,
the
Agency asserts that the tank removal costs are not reimbursable.
(R.A at 129;
Tr.
at 19—20.)
The Board is not persuaded by the Agency’s arguments on this
issue.
Section 22.l8b(a) (3) merely sets forth the requirement
that only corrective action costs are reimbursable.
We must then
specifically look to the definition of “corrective action”,
contained in Section 22.18b(e) (1) (C), to determine whether the
disputed costs are indeed “corrective action” costs.
As the
Board found above, the tank removal costs
in the instant case
meet both parts of the definition of “corrective action”, and are
thus reimbursable.
Finally,
the Board notes that although six tanks were
removed from the site,
only one tank was leaking.
(R.A at
3; R.B
at 13,
52.)
The record does not indicate whether the $7,338.74
in disallowed tank removal costs was for the removal of all six
tanks, or for just one tank.
(R.A at 36,
119—121.)
Because the
record
is unclear, and because the Agency never raised an
objection to the tank removal costs on the grounds that some of
those costs might not be allowable because they are not related
to a release of petroleum,
the Board finds that the entire
$7,338.74
in tank removal costs should be reimbursed.
This opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
The Board hereby reverses the Agency’s April 27,
1992
determination that $7,338.74
in tank removal costs is not
reimbursable.
This case is remanded to the Agency for
disbursement of the $7,338.74 amount,
consistent with this
opinion and order.
This docket is closed.
0 t37-3 168
5
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(Ill.Rev.Stat.
1991,
ch.
111½
,
par.
1041)
provides for the
appeal of final Board orders.
The Rules of the Supreme Court of
Illinois establish filing requirements.
(But see also 35
Ill.Adm.Code 101.246 “Motions for Reconsideration” and Castenada
v. Illinois Human Rights Commission
(1989),
132 Ill.2d 304,
547
N.E.2d 437.)
J.C. Marlin dissented.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the
/Y~
day of
~7
~Lc&’
,
1992, by a vote
of
~-~/
.
-
(..
~
I
~
M.
~iftin,
Clerk
Pollution Control Board
0137-0
169
Ill