ILLINOIS POLLUTION CONTROL BOARD
    November 18, 1993
    RON’S INTERSTATE SUNOCO,
    )
    )
    Petitioner,
    )
    v
    )
    PCB 92—200
    (UST Fund)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ORDER OF THE BOARD
    (by R.C.
    Flemal):
    On November
    5,
    1993 the Illinois Environmental Protection
    Agency (Agency) filed a motion for summary judgment in this
    proceeding.
    On November 15, 1993 Ron’s Interstate Sunoco (Ron’s)
    filed a motion to file instanter and memorandum of law in
    opposition to the Agency’s motion for summary judgment.
    The Board first addresses Ron’s motion to file instanter.
    The motion indicates that Ron’s attorney has changed his business
    address1 and that the Agency’s motion for summary judgment was
    mailed to Ron’s attorney’s prior business address.
    Ron’s argues
    that if its memorandum is late as a consequence of the mailing
    problem,
    it is at most one day late.
    The Agency mailed its
    motion on November 4,
    1993.
    It was received by Ron’s attorney
    four days after mailing on November 8,
    1993, completing service.
    Seven days from November 8,
    1993, the date of service,
    is
    November 15,
    1993.
    The memorandum was filed on November 15,
    1993.
    Therefore, the Board finds that the memorandum is timely
    filed.
    (See also,
    35 Iii.
    Adm.
    Code 101.144 and 241.)
    The
    motion to file instanter is denied as moot.
    We now turn to the motion for summary judgment.
    The
    uncontested facts are that Ron’s discovered releases from two
    petroleum underground storage tanks
    (USTs) and the Emergency
    Services and Disaster Agency was notified of the release on
    August 23,
    1991.
    (R.
    3,
    14-15.)
    The sole issue is whether
    certain costs submitted for concrete removal and replacement are
    related to corrective action taken at the site.
    Agency argues that concrete replacement at this site did not
    constitute corrective action and presents a series of opinions
    and orders where the Board has found that concrete replacement
    1
    No change of address was filed with the Board.
    2
    under certain circumstances does not meet the definition of
    corrective action.
    In reply, Ron’s argues that the “replacement of the concrete
    did not constitute an ‘improvement’ on the owner’s property, but
    rather, restored the drive to the condition it was in prior to
    the waste removal project.”
    (Ron’s memorandum at 2.)
    Ron’s
    further argues that it relied to its detriment on the Agency’s
    “policy manual” that the replacement of the concrete would
    -be
    reimbursed.
    As to the removal of concrete,
    the Agency alleges that the
    bills for removal of the concrete indicate that the destruction
    of the concrete occurred June and July 19922, after the engineer
    certified on May 20,
    1992,
    that the cleanup objectives have been
    met for the site.
    Ron’s replies that in order to remove the
    leaking tanks,
    existing concrete had to be removed.
    In Platolene 500,
    Inc.
    v. IEPA (May 7,
    1992), PCB 92—9,
    133
    PCB 259, and in Strube v. IEPA (May 21,
    1992), PCB 91-105, 91 PCB
    205, aff’d Strube
    V.
    PCB (3rd Dist.
    1993),
    242 111. App.
    3d 822,
    610 N.E. 2d 717, the Board found that the guidance manual was a
    rule which was not promulgated according to the Administrative
    Procedure Act and therefore the manual has no legal or regulatory
    effect in proceedings before the Board.
    Therefore, the Board
    cannot enforce the provisions of the guidance manual and
    determinations on reimbursement must be consistent with any
    applicable statutory or regulatory requirements.
    Ron’s has
    presented nothing which would persuade the Board from departing
    from its prior position on the issue of the guidance manual.
    The Environmental Protection Act limits reimbursement to
    costs of corrective action.
    (415 ILCS 5/22.18b(a).)
    The
    definitiàn of corrective action consists of two inquiries:
    whether the costs are incurred as a result of an action to “stop
    minimize,
    eliminate, or clean up a release of petroleum”, and
    whether those costs are the result of such activities as tank
    removal,
    soil remediation and free product removal.
    (415 ILCS
    5/22.18(e) (1) (C), see Enterprise Leasing Company
    V.
    IEPA (April
    9,
    1992), PCB 91—174,
    132 PCB 87.)
    In applying this definition
    of corrective action to the replacement of concrete the Board has
    determined that the replacement of concrete under most
    circumstances does not constitute corrective action, because it
    is not an act to stop, minimize, eliminate, or clean up a release
    of petroleum.
    (Platolene 500,
    Inc.
    v. IEPA (May 7,
    1992), PCB
    92-9,
    133 PCB 259,
    265.)
    The particular facts surrounding the
    2
    Items
    1 and
    3 contained in the Agency’s motion, totalling
    5919.51, with the 15
    handling charge
    (Agency motion at 2-3; R.
    at 128—129.)
    -
    3
    action and the purpose of the action will ultimately determine
    whether that action is a corrective action.
    (Ibid.
    at 264.)
    The facts
    in this case presented in the summary judgment and
    memorandum in opposition do not support a finding that the
    replacement of concrete was a corrective action.
    In fact, Ron’s
    states that replacement of the concrete was to “restore the drive
    to the condition it was in prior to the waste removal project”
    (Ron’s memorandum at 2), not to stop, minimize, eliminate or
    clean up the release, or for the tank removal, soil remediation,
    and free product removal.
    Thus, the replacement of the concrete
    was done as a part of improvements made after corrective action
    was complete.
    -
    The Board finds that genuine issues of material fact remain
    surrounding whether the removal of concrete at this site
    constituted corrective action.
    The bills for concrete removal
    are dated July 1992
    (R. at 123-129), after certification of the
    completion of remediation was signed on May 14,
    1992
    (R. at 97),
    However, the facts are not clear on the actual dates of concrete
    removal, or whether the removal of the concrete was part of the
    corrective action taken at the site.
    Upon review of the facts and law presented in the motion for
    summary judgment and memorandum in opposition, the Board grants
    the Agency’s motion for summary judgment solely as it pertains to
    the issue of the replacement of concrete.
    The Board denies the
    Agency’s motion for summary judgment as it pertains to the
    removal of concrete at this site.
    This matter shall proceed in
    accordance with this order and the hearing schedule established
    by the hearing officer.
    -
    IT IS SO ORDERED.
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Bo~, hereby ce tify that the above order was adopted on the
    /1~
    day of
    __________________,
    1993, by a vote of
    ~
    ~Dorothy
    N. 9i~n,Clerk
    Illinois Po(ljution Control Board

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