ILLINOIS POLLUTION CONTROL BOARD
August 13,
1992
GALESBURG COTTAGE HOSPITAL,
)
)
Petitioner,
v.
)
PCB 92—62
)
(Underground Storage
ILLINOIS ENVIRONMENTAL
)
Tank Fund)
PROTECTION AGENCY,
)
Respondent.
STEPHEN
F. HEDINGER of MOHAN,
ALEWET, PRILLAMAN
& ADANI APPEARED
ON BEHALF OF PETITIONER.
OPINION AND ORDER OF THE BOARD
(by 3. Theodore Meyer):
This matter
is before the Board on a petition for review
filed April 27,
1992 by petitioner Galesburg Cottage Hospital
(Cottage Hospital) pursuant to Section 22.18b(g)
of the
Environmental Protection Act
(Act).
(Ill.Rev.Stat.1991,
ch.
111½, par. 1022.18b(g).)
Cottage Hospital seeks review of the
Illinois Environmental Protection Agency’s
(Agency) March 23,
1992 partial denial of reimbursement from the Underground Storage
Tank
(UST)
Fund.
A hearing was held on June 29,
1992 in
Galesburg,
Illinois.
No members of the public attended.
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 USTs at a service station
located at Losey and Seminary
Streets, Galesburg,
Illinois.
(R.
at 35.)’
Cottage Hospital purchased the site in 1979.
From 1979
until September 1990, the site was operated as a gasoline
dispensing service station by Cottage Hospital’s tenant, Mr. Dale
Bolin.
(R. at 31.)
On April 27,
1990,
and again on May 14,
1990, Cottage Hospital’s contractor,
Illinois Oil Marketing
Equipment,
Inc., tested the gasoline lines at the facility.
The
line dispensing premium gasoline would not hold pressure, and
thus failed the tightness test.
(R. at 75,
81.)
The operator of
1
“R.” denotes citation to the Agency record, and “Stip.”
indicates citation to a stipulation entered by the parties at
hearing.
0135-0319
2
the station, Mr. Bolin, was directed to immediately stop
dispensing premhun fuel.
The trustees of Cottage Hospital
subsequently decided to cease leasing the property as a service
station and have the tanks removed.
Mr.
Bolin was notified of
this decision on June
1,
1990.
(R.
at 31.)
On August
8,
1990,
the Office of the State Fire Marshal
(OSFM)
received Cottage Hospital’s application for a permit to
remove the three tanks at the facility.
(R.
at 1.)
OSFM issued
that permit for removal of the USTs on August 20,
1990.
(R. at
3.)
The tanks were removed in September 1990.2
During the
course of the removal,
it was discovered that there had been a
release of petroleum.
(Stip.
at 5.)
Cottage Hospital notified
the Illinois Emergency Services and Disaster Agency
(ESDA)
of the
release on September 20,
1990.
(P. at 4—5.)
Cottage Hospital
subsequently performed remedial activities at the site.
On July
31,
1991,
the Agency notified Cottage Hospital that no further
remediation was necessary.
(R.
at 30.)
Cottage Hospital filed its application for reimbursement
with the Agency on September
30,
1991.
(R. at 31-56.)
The
invoices submitted in support of the application covered the
period from April 26,
1990 to April
4,
1991, and the total amount
requested was $36,779.07.
(R. at 146.)
On March 23,
1992,
the
Agency issued its decision, finding that, after deducting the
applicable $15,000 deductible,
$10,539.52 was reimbursable.
The
Agency listed three separate amounts for which reimbursement was
denied.
(P. at 146—148.)
Cottage Hospital filed its petition
for review with the Board on April
27,
1992.
DISCUSSION
In its petition for review, Cottage Hospital challenged all
three items for which the Agency denied reimbursement:
$3,069.98
for charges incurred prior to notification of ESDA
(item 1);
$6,452.20 for tank removal costs
(item 2); and $1,717.37 for an
adjustment in handling charges
(item 3).
(R.
at 148.)
However,
the stipulation entered by the parties at hearing states that the
parties have resolved the disputes as to items
1 and 3.
(Stip.
at
1-2.)
Therefore,
the only issue remaining is the disputed
tank removal costs in item
2.
2
There is conflicting evidence as to the actual date of the
removal of the tanks.
The corrective action report states that
the tanks were removed on September 11,
1990
(R. at 6), the
stipulation states that Cottage Hospital’s witness would have
testified that the tanks were removed on September 20,
1990
(Stip.
at 5), and the application for reimbursement states that
the tanks were removed on September 21 and 24,
1990.
(P. at 37,
43, and 49.)
0135-0320
3
The Agency denied reimbursement of $6,452.20 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 costs.
(P. at 148.)
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.
(Ill.Rev.Stat.
1991,
ch.
111½, par. 1022.18(e)(1)(C).)
Cottage Hospital argues that the Agency erred in applying
this limitation on “corrective action” to this case.
Cottage
Hospital notes that this limitation, excluding tank removals
where permitted prior to notification of a release, was added by
P.A.
87—323, effective September 6,
1991.
Cottage Hospital
states that the tank removal
in this case occurred on September
20,
1990,
almost a full year before the effective date of the
change in the definition of “corrective action.”
Thus,
Cottage
Hospital contends that the amendment cannot be used to defeat
reimbursement for the tank removal costs.
Cottage Hospital recognizes that in determining
reimbursibility,
the law to be applied is the law in effect on
the date of the filing of the application for reimbursement.
(First Busev Trust
& Investment Co.
V.
Illinois Environmental
Protection Agency
(February 27,
1992),
PCB 91—213; Pulitzer
Community Newspapers
v.
Illinois Environmental Protection Agency
(December
20,
1990),
PCB 90-142.)
Cottage Hospital does not
dispute that only corrective action costs can be reimbursed,
but
contends that the Agency has erroneously applied a definition of
“corrective action” which was not in effect until well after all
corrective actions in this case were completed.
Cottage Hospital
maintains that this situation is like the situation in Pulitzer
Community Newspapers, where the Agency similarly denied
reimbursement on the basis of statutes and regulations which did
not exist at the time the corrective action was undertaken.
Cottage Hospital states that the Board explained in Pulitzer
Community Newspapers that the statute in effect at the time of
filing the application is applicable,
but in determining whether
those provisions were complied with,
the statute in effect at the
time the actions were undertaken is applicable.
(Pulitzer
Community Newspapers (February 28,
1991), PCB 90-142.)
Therefore, Cottage Hospital argues that only the costs of
corrective action are reimbursable, and that in determining
whether the actions undertaken in this case are corrective
action, the law in effect at the time the actions were undertaken
is determinative.
The Agency argues that there are two reasons that the tank
0135-0321
4
removal costs incurred by Cottage Hospital are not corrective
action costs, and thus not reimbursable.
First, the Agency
contends that because Cottage Hospital made a business decision
to remove the tanks, the tanks apparently would have been removed
whether or not a release was subsequently discovered.
Thus, the
Agency asserts that the removal of the tanks was not “an action
to stop, minimize, eliminate,
or clean up a release of petroleum
or its effects..”
(Section.22.18(e)(1(C)
of the Act),
and was
not therefore corrective action.
Second, the Agency points to the amendment of the definition
of “corrective action” in P.A. 87—323, effective September 6,
1991, excluding tank removals if removed or permitted for removal
by OSFM prior to notification of a release.
The Agency argues
that if this amendment applies to Cottage Hospital’s application
for reimbursement, it is clear that the tank removal costs are
not corrective action,
since Cottage Hospital obtained its
removal permit one month before any notification to ESDA of a
release.
The Agency cites this Board’s decision in First Busey
Trust
& Investment Co.
v. Illinois Environmental Protection
Agency
(February 27,
1992), PCB 91-213,
for the proposition that
the law to be applied is that which was in effect at the time the
Agency received the applicant’s completed application.
Thus,
the
Agency maintains that the tank removal costs are not corrective
action, and therefore are not reimbursable.
After
a review of the record and the arguments of the
parties, the Board reverses the Agency’s determination that
$6,452.20 in tank removal costs are not reimbursable.
Initially,
the Board again rejects the Agency’s argument that the removal
costs are not reimbursable because the tanks were removed as the
result of a business decision, and thus are not corrective action
costs.
The Board has twice held that the fact that a petitioner
had planned to remove tanks does not bar tank removal costs from
being reimbursed as corrective action costs when those activities
meet the statutory definition.
(Miller v. Illinois Environmental
Protection Agency
(July 9,
1992), PCB 92-49;
Enterprise Leasing
Co.
v.
Illinois Environmental Protection Agency (April
9,
1992
and June 4,
1992),
PCB 91-174.)
The proper inquiry in this case
is whether the tank removal costs meet the definition of
“corrective action.”
Thus,
the Board must determine whether P.A.
87—323 applies to this case.
The Board finds that the Agency’s reliance on First Busey to
apply the P.A. 87-323 amendment to this case is misplaced.
First
Busey involved a change in eligibility requirements
(a change in
deductibles), not a statutory change which concerned prior
activity.
It is true that when determining eligibility for
reimbursement, the applicable law to be applied
is that which
is
in effect on the date of the filing of the application for
reimbursement.
(Cite First Busey, Campbell, Rockford Drop Forge,
and change in definition of petroleum case(?))
However, where a
0135-0322
5
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.
That is exactly
what this Board did in Pulitzer Community Newspapers.
Inc.
v.
Illinois Environmental Protection Agency (December 20,
1990 and
February 28,
1991), PCB 90—142.
Pulitzer Community Newspapers iflvolved an Agency denial of
reimbursement because the costs were incurred prior to
notification of ESDA that a release had occurred.
The Board
reversed the Agency’s decision, because neither the statute nor
the regulation requiring notification of ESDA within 24 hours
after the discovery of a release were in effect at the time the
release was discovered.
The Board concluded that it would have
been impossible for Pulitzer to give notice to ESDA in accordance
with the statute and the regulation,
since those provisions did
not become effective until approximately three months after the
release.
(Pulitzer Community Newspapers
(December 20,
1990),
PCB
90-142,
slip op.
at 4-5; Pulitzer Community.Newspapers
(February
28,
1991),
PCB 90—142,
slip op.
at 2.)
The Board stated:
The applicable criteria for determining Pulitzer’s
eligibility fer reimbursement are those criteria set forth
at Section 22.18b(d)(4)(D), which became effective July 28,
1989 with the enactment of P.A.
86—125,
because these
provisions were in effect at the time Pulitzer filed its
application for reimbursement on November 21,
1989.
P.A.
86-125 requires that an applicant satisfy certain criteria
to be eligible for reimbursement.
One of those criteria is
that “(t)he owner or operator notir~edthe State of the
release of petroleum in accordance with applicable
requirements.”
The Board focused on the date of discovery
of the release for purposes of determining what notification
duties applied to Pulitzer.
(Pulitzer Community Newspapers
(February 28,
1991), PCB 90—142, slip op.
at 2.)
The facts of this case are directly analogous to the
situation presented in Pulitzer Community Newspapers.
Cottage
Hospital obtained its permit to remove the tanks
in August 1990,
and actually removed those tanks in September 1990.
ESDA was
notified of the release on September 20,
1990.
All of these
dates were long before the September 6,
199.
effective date of
P.A.
87-323, which added the provision that tank removal costs
are not corrective action costs if the tank was removed or
permitted for removal by OSFN prior to notification of the
release.
There was no way for Cottage Hospital to know that it
must provide proper notification (to ESDA) before obtaining the
OSFM permit.
Applying P.A. 87-323 to Cottage Hospital’s
application for reimbursement would illogically require Cottage
Hospital to conform its conduct to requirements which were not
effective until almost a year after the conduct was done.
Thus,
in order to determine whether the tank removal costs are
0135-0323
6
reimbursable as corrective action costs, the Board must apply the
definition of “corrective action” as it existed when the costs
were incurred,
i.e.
in September l990.~
That definition of “corrective action” 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. l022.18(e)(1)(C).)
As the Board noted in Enterprise Leasing and in Miller,
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 Cottage Hospital
meet both
parts of the definition.
Therefore,
the $6,452.20
in tank removal
costs are reimbursable as corrective action costs.
Finally,
the Board notes that the Agency argues
in its brief
that the tank removal costs are not reimbursable
because,
assuming that the release was discovered at the time of the tank
tightness tests, Cottage Hospital failed to notify ESDA within
24 hours of the discovery of the release.
However,
this reason
for denying reimbursement was not included in the Agency’s final
decision.
(R.
at 146—148.)
As the Board has previously held,
the Agency
is bound on review by the reasons given in its letter
communicating its decision.
The Agency cannot,
at the Board
level, raise new reasons for denying reimbursement.
(Clinton
County Oil Co.
v.
Illinois Environmental Protection Agency(March
26,
1992), PCB 91-163,
slip op.
at 3;see also Pultizer Community
Newspapers
(December 20,
1990), PCB 90—142.)
Therefore, the
~ The Board recognizes that in Miller
v.
Illinois
Environmental Protection Agency
(July 9,
1992),
PCB 92-49,
it
stated that the proper inquiry was whether the tank removal costs
met the definition of “corrective action” as that definition
existed when Miller’s application for reimbursement was filed.
However, that case involved an Agency denial for reimbursement of
costs because the tank removal was “planned”,
not the application
of the language of P.A. 87—323,
since Miller’s application was
filed before the effective date of P.A.
87—323.
01 35-832k
7
Board will not consider this argument.
CONCLUSION
In sum, the Board finds that $6,452.20 in tank removal costs
are corrective action costs and are therefore reimbursable.
In
determining eligibility for reimbursement, the applicable law is
that which is in effect on the date of the filing of the
application for reimbursement.
However, where a statutory
amendment involves prior activity or a certain course of conduct,
the law to be applied are the provisions in effect at the time
that the course of conduct occurred.
The Agency’s determination
that the tank removal costs are not reimbursable is reversed.
This opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
The Board hereby reverses the Agency’s March 23,
1992
determination that $6,452.20 in tank removal costs is not
reimbursable.
This case is remanded to the Agency for
disbursement of the $6,452.20 amount, consistent with this
opinion and order.
This docket is closed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(Il1.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.)
P.
Flemal and B.
Forcade concurred,
and 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
/3—i.-
day of
_______________,
1992, by a vote
of
~
ii
~
~t.
/t~L~~’
Dorothy M//Gunn,
Clerk
Il1inois~y’ollutionControl Board
0135-0325