ILLINOIS POLLUTION CONTROL BOARD
August 24, 1995
EUGENE W. GRAHAM,
)
)
Petitioner,
v.
)
PCB 95—89
)
(UST Fund)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
JAMES P. O’BRIEN AND JEREMY A. GIBSON OF CHAPMAN AND CUTLER
APPEARED ON BEHALF OF PETITIONER;
MELANIE A. JARVIS AND JOHN BURDS APPEARED ON BEHALF OF
RESPONDENT.
OPINION AND ORDER OF THE BOARD (by 3. Yi):
On March 10, 1995, Eugene W. Graham, owner of the
Libertyville Citgo (Graham), filed a petition for review of the
Illinois Environmental Protection Agency’s (Agency) Underground
Storage Tank Fund (UST Fund) reimbursement determination
regarding the facility’s tanks located at 109 South Milwaukee
Ave., Libertyville, Lake County, Illinois. Graham filed the
petition for review pursuant to Section 57.8(i) and 40(a) of the
Environmental Protection Act (Act) and 35 Ill. Adm. Code
732.602(h) of the Board’s regulations. (415 ILCS 5/57.8(1) and
5/40(a) (1994).) This matter was accepted for hearing at our
March 16, 1995 meeting.
On March 20, 1995 the Agency filed a motion to dismiss the
petition for review for lack of subject matter jurisdiction. On
March 28, 1995, Graham filed a response to the motion to dismiss
and a motion for leave to amend its petition. The Board, in an
order dated April 20, 1995, granted Graham’s motion for leave to
amend its petition and found the Agency’s motion to dismiss moot.
Graham filed an amended petition on May 5, 1995, thereby causing
the statutory decision deadline to be September 5, 1995. A
hearing was held on May 10, 1995, before hearing officer June C.
Edvenson. Pursuant to the briefing schedule established by the
hearing officer, Graham filed its post-hearing brief on June 2,
1995, the Agency filed its post-hearing brief on June 19, 1995
and a Supplemental Record as ordered by the hearing officer, and
Graham filed its reply brief on June 23, 1995.
2
Background
Eugene Graham is the owner and operator of a gasoline
station located at 109 South Milwaukee Avenue, Libertyville, Lake
County, Illinois (the site). (Amend. Pet. at 1.)’ A release
from the USTs at the site was reported to the Illinois Emergency
Management Agency on or about February 10, 1993. (Amend. Pet. at
1.) Graham states that on or about May 6, 1993, it filed a UST
corrective action plan (Corrective Plan) with the Agency.
(Amend. Pet. at 1.) On June 14, 1993, the Agency approved the
Corrective Plan and Graham began implementation of that
Corrective Plan pursuant to the Illinois UST program in effect
until September 13, 1993. Governor Edgar signed P.A. 88-496,
Illinois’ new UST program on September 13, 1993 causing the new
Title XVI, Sections 57 through 57.17 of the Act to become
effective and replaced the prior State program. However, the new
program provides that a release that is reported prior to the
effective date is to be administered pursuant to the old UST
program unless an applicant specifically opts into the new
program under Section 57.13 of the Act. (415 ILCS 5/57.13
(1994).) Graham has not opted to proceed under the new UST
program pursuant to Section 57.13 of the Act. The new law
specifically provides that even if the election is made,
corrective action performed prior to the change in law is to be
reimbursed under the old UST program.
Graham filed an eligibility and deductibility determination
with the Illinois Office of the State Fire Marshal (OSFM) on
November 29, 1993 for reimbursement from the UST Fund. (Amend.
Pet. at 1.). On December 16, 1993 the OSFM determined that
Graham was eligible for reimbursement from UST Fund.
On November 9, 1994, Graham submitted to the Agency a
request for reimbursement from the UST Fund for the amount of
$73,770.95. (Rec. at 118.) The Agency, on February 6, 1995,
sent Graham its final determination which included an Attachment
A explaining why certain costs were denied reimbursement. On
March 1, 1995 the Agency sent another letter to Graham stating
that “t)his letter recendes (sic) the Agency’s letter dated
2/6/95” and also includes an Attachment A which explains which
costs were denied. On March 10, 1995, Graham filed this appeal
to review the Agency’s determination denying certain costs as
explained in Attachment A.
1The amended petition will be referenced as “Amend. Pet.
at”; the petitioner’s post—hearing brief will be referenced as
“Brief at
“;
the respondent’s post hearing brief will be referred
to as “Brief at
“;
the petitioner’s reply brief will be
referenced as “Reply at
“
and the record in this matter will be
referred to as “Rec. at
“.
3
The February 6, 1995, Agency determination denied
reimbursement for costs associated with “...replacement of
concrete and/or asphalt.” The March 1, 1995, Agency
determination also denied the costs associated with the
replacement of concrete and/or asphalt. The difference between
the two determinations is the amount being deducted from the
reimbursement voucher for the concrete and/or asphalt
replacement. The February 6 Agency determination deducts
$58,172.77 and the March 1 determination deducts $53,988.60 for
the replacement of concrete and/or asphalt. It is the denial of
the $53,988.60 for the replacement and/or concrete that is at
issue before the Board in Graham’s appeal. However, at hearing
and throughout the briefs in this matter the parties take issue
as to which portion of the concrete reimbursement is being sought
by Graham.
Site’s Corrective Action Plan
The Corrective Plan that was approved by the Agency with
conditions establishes on—site bio—remediation as the method of
cleanup for the contaminated soil. (Rec. at 169—171.) Graham,
pursuant to the Corrective Plan, installed a pump and treat
system at the site which would essentially pump clean water above
the contaminated soil, wash the soil and treat the contaminated
water using bio-remediation. (Rec. at 172-297.) After the clean
water is distributed above the contamination, the water migrates
through the contaminated soil, and is collected and pumped into a
treatment shed located on the site where the bio—remediation
takes place. (Rec. at 193.) Once at the treatment shed, micro-
organisms are added to the contaminated water in a tank. Once
the contaminated water is treated it is re-applied to the
contaminated soil and the whole process is repeated until the
target levels are reached in the contaminated soil. (Rec. at
196.) The treatment system is located on the eastern half of the
site mainly under the gas station’s pump islands. Graham placed
poly vinyl chloride (PVC) piping three (3) feet under the ground
to distribute the clean and treated water to the area of
contamination at a rate of five (5) gallons per minute. (Rec. at
193, 194.) A recovery trench is located along the eastern border
of the site and is 12 feet deep. (Rec. at 192—194.) Four pumps
are located in the recovery trench to pump the contaminated water
to the treatment shed. (Rec. at 191.) Concrete has been placed
over the entire site. (Petitioner’ Exhibit #4, Exhibit #1.)
There is no discussion of concrete replacement in the Corrective
Plan or the corresponding “Estimated Bio-Remediation Budget”.
(Rec. at 199.) The budget lists all the costs of remediation
from tank removal to final closure report and professional
engineer’s certification. The budget’s estimated total cost is
$100,870. (Rec. at 199.) The bio—remediation at the site was
estimated to operate for 5 to 6 months. (Brief at 193.)
4
The Concrete Area
On an Agency form entitled “Underground Storage Tank
Program, Request for Payment of UST Corrective Action Costs”
(Reimbursement Request) which Graham filed, Joseph Frett & Sons,
Inc. is listed as a subcontractor with a corresponding work
description of “Concrete/Paving/Build Shed” and an amount for
$58,172.77. (Rec. at 303.) Submitted along with the
Reimbursement Request was a letter dated December 30, 1993 from
Walter Frett of Joseph Frett & Sons, Inc. to Mr. Graham. (Rec.
at 304.) The letter states “pJer your instructions, we have
calculated the area that we poured concrete paving to cover the
soil reclamation work” and states the calculated amount to be
$53,988.60. (Rec. at 304.) The letter does not specify the area
where concrete was poured.
Prior to hearing Graham filed the written testimony of
Graham’s witness, Mr. Ronald Schrack of Schrack Environmental
Consulting, Inc. The written testimony was entered into the
record at the hearing as Petitioner’s Exhibit #4. (Tr. at 32.)
Attached to written testimony and designated as “Exhibit 1” was a
map which depicted the area of concrete replacement for which
reimbursement was being sought by Graham. According to the map
Graham sought reimbursement for the cost of the concrete poured
on the eastern half of the site. In addition, the written
testimony states “...it should be noted that the costs associated
with the concrete replacement exclude the costs for replacement
of the concrete surface located beneath the canopy and the costs
incurred for replacement of the pump islands.” (Petitioner’s
Exhibit #4 at 3.) At hearing Mr. Schrack testified that the
concrete under the canopy and the pump islands is not included in
the request. (Tr. at 78, 81.) However Mr. Schrack upon cross—
examination stated “Based on review of my files, the $53,988.60
in contention here included the area underneath the canopy” and
“I stand corrected on my previous testimony based on review of
the files.” (Tr. at 112.) Mr. Schrack later stated that the
statement in Petitioner’s Exhibit #4 on page 3 is incorrect and
that the amount that is being sought is for the whole area as
depicted in the map which is attached and marked as Exhibit 1 to
Petitioner’s Exhibit #4. (Tr. at 112—114.)
Regulatory Framework
The Board’s authority to review the Agency’s determination
in UST reimbursement determinations arises from Section
57.7(c)(4)(D) and 57.8(i) of the Act. (415 ILCS 5/57.7(c) (4) CD)
and 5/57.8(i) (1994).) Section 57.7(c) (4) (D) grants individuals
the right to appeal an Agency determination to the Board in
accordance with the procedures of Section 40 of the Act. (415
ILCS 5/40 (1994).) Section 57.8(1) of the Act grants parties the
right to petition the Board to review the Agency denial or
partial payment of a reimbursement request in the manner provided
5
in Section 40 of the Act~. Section 40 of the Act is the general
appeal section for permits and has been used by the legislature
as the basis for other types of appeals to the Board, including
this type of appeal. There is a large body of case law
concerning the respective roles of the appealing party, the
Agency and the Board under Section 40 appeals. Summarizing those
roles and authority, the Board stated in City of Herrin v.
Illinois Environmental Protection Agency, (March 17, 1994), PCB
93—195
Petition for review of permit denial is authorized by
Section 40(a)(l) of the Act 415 ILCS 5/40 (a)(l)) and
35 Ill. Adm. Code Section 105.102(a). The Board has
long held that in permit appeals the burden of proof
rests with the petitioner. The petitioner bears the
burden of proving that the application, as submitted to
the Agency, would not violate the Act or the Board’s
regulations. This standard of review was enunciated in
Browning—Ferris Industries of Illinois, Inc. v.
Pollution Control Board, 179 Ill. App. 3d 598, 534 N.E.
2d 616, (Second District 1989) and reiterated in John
Sexton Contractors Company v. Illinois (Sexton), PCB
88-139, February 23, 1989. In Sexton the Board held:
...that the sole question before the Board is
whether the applicant proves that the application,
as submitted to the Agency, demonstrated that no
violations of the Environmental Protection Act
would have occurred if the requested permit had
been issued.
Preliminary Issues
The parties raised several preliminary issues before the
Board involving evidentiary matters. Graham objects to the
Agency’s supplement to the record and argues that the site in
question should not be compared with the sites outlined in the
supplement to the record. (Brief at 12.) Graham argues that to
allow the information contained in the Supplement Record to be
entered into the record will lead to extensive litigation.
(Brief at 12.) Graham also asserts that the information
contained in the supplement is irrelevant, that there has been no
presentation that these sites are representative, that there is
no exclusive inference that can be drawn from the information and
that all are distinguishable from Graham’s site. (Brief 12—14.)
The Board will allow the information contained in the Agency
supplemental record to be made part of the record that was
responsive to the hearing officer’s request since Graham did not
object to the submittal of the information as requested by the
hearing officer at hearing. The hearing officer requested a
“...list of the locations that had approved bioremediation with
any reimbursement for associated concrete or other sources.”
6
(Tr. at 269.) Instead the Agency filed lengthy records of sites
some of which did not involve concrete reimbursement and their
corresponding corrective action plans. As argued by Graham, if
the information submitted is substantive it should have been part
of the record or presented at hearing. Therefore only the
information relating to the location of sites that had approved
bio—remediation and whether concrete associated with the site was
reimbursed. Any information beyond what was requested by the
hearing officer will not be entered into the record.
The Agency has two preliminary objections concerning the
testimony of Mr. Schrack, Graham’s witness, and the introduction
of Attachment A to Petitioner’s Exhibit #4. (Brief at 4-10.)
The Agency objects to the hearing officer’s ruling which denied
it the right to voir dire Mr. Schrack prior to his testifying.
(Brief at 4.) In particular the Agency argues that it had a
right to ask questions of Mr. Schrack concerning his status as a
licensed professional engineer. (Brief at 4.) Nevertheless, the
Agency further states it was allowed to ask Mr. Schrack those
questions upon cross—examination which are reflected on pages 53—
55 of the transcript in this matter. (Brief at 4.) In addition
to being denied its right to voir dire, the Agency cites to
purported conflicting statements made by Mr. Schrack as to his
professional engineering license. (Brief at 4—6.) As a result
the Agency requests the Board to weigh the testimony given by Mr.
Schrack accordingly given these circumstances. (Brief at 4—6.)
In addition, the Agency also asserts that Mr. Schrack was not
qualified to testify as an expert concerning groundwater
remediation because he failed to hold a Class K certification and
was not certified pursuant to Section 13(a) (4) of the Act and 35
Ill. Adm. Code 312.102 and 35 Ill. Adm. Code Part 380. (Brief at
6-7.) The Agency requests the Board again to weigh the testimony
accordingly given the above information. (Brief at 7.) While we
will not overrule the hearing officer’s determination regarding
voir dire, we will weigh the testimony given by Mr. Schrack
accordingly in our consideration of Graham’s contention that
concrete replacement constitutes corrective action.
Also as a preliminary matter the Agency requests that
Attachment A, the Sol—Mar article, be stricken from the record.
(Brief at 10.) The Agency argues that Graham failed to produce
all the information requested by the hearing officer concerning
the background of the authors of the article, that the article
was not before the Agency upon making its determination and that
Mr. Schrack never reviewed the article prior to the hearing.
(Brief at 7-9.) The Agency argues pursuant to Clarendon Hills
Bridal Center v. Illinois Environmental Protection Agency,
(February 16, 1995), PCB 93-55; and Kathe’s Auto Service Center
v. IEPA (May 18, 1995), PCB 95-43, the information should not be
considered since it is evidence that came after the Agency’s
determination. (Brief at 9-10.)
7
The Board will admit Petitioner’s Exhibit #4 Attachment A.
The information contained in Attachment A is the type of evidence
allowed in prior UST Fund reimbursement cases. In SParkling
Mineral Water Co. v. IEPA(August 26, 1993) PCB 92-203, and Chuck
& Dan’s Auto Service v. IEPA (August 26, 2993) PCB 92—203, the
Board allowed petitioners to supplement the record with
information which was not contained in the Agency record so that
petitioners could clarify why a disputed cost should be
reimbursed. More recently, in Clarendon Hills, the Board
followed the evidentiary rule applied in permit appeals and
excluded the information petitioner sought to introduce because
the petitioner had failed to meet its initial burden that the
remediation costs satisfy the definition of corrective action.
(Platolene 550, Inc. v. IEPA (May 7, 1992) PCB 92—9, 133 PCB 259
at 7.) In Clarendon Hills, the information petitioner sought to
introduce was critical to prove that the disputed cost was for
corrective action. The record before the Agency contained only
an invoice with no information about what task was performed.
Here, Attachment A contains evidence to support Graham’s
proposition that the moisture level of the soil must be
maintained in order for the bio—remediation to be effective.
This is not the type of information necessary for the Agency to
make its initial determination as to whether the installation of
the concrete was part of corrective action. Rather, this type of
evidence may explain if oxygen/moisture is relevant when
utilizing this type of micro-organisms. Therefore, the Board
will allow the evidence. The Board, however, is concerned that
Graham failed to provide all of the requested information
concerning the authors of the article as requested by the hearing
officer, and will weigh Attachment A accordingly.
Arguments
Graham argues that this site is using bio-remediation where
the contaminated soil is left on—site thereby requiring the
replacement of the concrete as a necessary part of corrective
action. (Brief at 11.) Graham states that the relevant
definition of corrective action set forth at Section 22.18(e) (1)
reads:
...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 response investigation, mitigation of fire and
safety hazards, tank removal, soil remediation,
hydrogeological investigations, free product removal
and groundwater remediation and monitoring, exposure
assessments, the temporary or permanent relocation of
residents and the provision of alternate water
supplies.
B
Graham asserts that the installation of the concrete at its site
meets the definition because it
“...
serves 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.” (Brief at 12.)
Graham states that the concrete is relatively impermeable
and limits surface water intrusion which minimizes migration of
the contaminate and reduces the cost of the bio—remediation pump
and treat system because of the over—all lower water flow.
(Brief at 12.) Additionally, Graham asserts that the concrete is
necessary for the maintenance of the moisture/oxygen level of the
soil so that the micro-organisms function properly. (Brief at
13, Reply at 11—12.) Graham also states that besides controlling
the moisture level, the concrete also serves to protect human
exposure to the contaminated soil and waters during the
remediation process, protects the structural integrity of the
pump and treat system that is in place, and prevents fugitive
emissions. (Brief at 13-14, Reply at 10-il.) Graham concludes
that, since the site is utilizing bio-remediation as the method
for corrective action, and the concrete is necessary based on the
above reasons to conduct the bio—remediation at the site, the
concrete is a necessary part of corrective action at the site and
is therefore reimbursable. (Brief at 16, Reply at 17.)
Additionally, Graham argues that the situation at this site
can be distinguished from the established case precedent where
reimbursement for concrete replacement has been repeatedly
denied. In fact, Graham argues that the request for
reimbursement for the concrete in this matter is consistent with
the precedents set forth in Platolene 500, Inc. v. Illinois
Environmental Protection Agency, (May 7, 1992), PCB 92-9; Strube
v. Illinois Environmental Protection Agency, (May 21, 1992), PCB
91-205; Strube v. Illinois Pollution Control Board, 242
Ill.App.3d 822, 610 N.E.2d 717 (3rd Dist. 1993); Warren’s
Service, Inc. v. Illinois Environmental Protection Agency, (June
4, 1992), PCB 92—22; Miller v. Illinois Environmental Protection
Agency, (July 9, 1992), PCB 92-49; Ron’s Interstate Sunoco v.
Illinois Environmental Protection Agency, (July 9, 1992), PCB 92—
200; Southern Food Park, Inc. v. Illinois Environmental
Protection Agency, (March 3, 1994), PCB 92—200; and Enterprising
Leasing Co. v. Illinois Environmental Protection Agency, (April
9, 1992), PCB 91—174. (Brief at 14—15, Reply 5—9.) Graham
argues that the Board recognized that each case may have specific
fact situations that would determine whether reimbursement is
appropriate. (Reply 7—10.) Graham asserts that “all response
actions could be characterized as ‘restoration’ because they
restore a property to pre—release conditions; all such actions
benefit the owner or operator and increase the value of the
property.” (Reply at 7.) Graham states that
“. .
.the
distinguishing characteristics of the actions are reimbursable is
that they
also
do something to contain or clean up a petroleum
9
release
in addition
to restoring pre—release conditions.” (Reply
at 7.) Graham argues that this site is distinguishable from the
sites involved in the above—mentioned cases because the
contamination remains on—site, and surface water infiltration may
jeopardize the bio—remediation process, and unlike the sites in
the cases mentioned above where the contaminated soil had been
removed or met the clean up levels. Furthermore, Graham argues
that since the contamination remains on—site during the
remediation process, the concrete meets the statutory definition
of corrective action and is reimbursable. (Reply 8—12.) Graham
also asserts pursuant to Martin Oil Marketing #64 v. Illinois
Environmental Protection Agency, (August 13, 1992), PCB 92-52,
that the use of the concrete was implied in the Corrective Plan.
(Reply at 16.)
Finally, Graham seeks to be reimbursed for the costs of
pursuing this action. (Amend. Pet. at 4.) However, Graham does
not argue any law which supports the imposition of its costs
against the Agency. Graham merely requests in its prayer for
relief that it be awarded costs. (Amend. Pet, at 4.)
The Agency argues that the concrete was restoration of the
site and not corrective action. The Agency states that the Board
should apply the reasoning of Enterprising Leasing Company v.
IEPA, (April 9, 1992), PCB 91-174 and Platolene 500 v. IEPA, (May
7, 1992), PCB 92-9 to the facts of this case and that the burden
is on Graham to demonstrate that circumstances exist at its site
to demonstrate the concrete is corrective action and not
restoration. (Brief at 10-13.) The Agency, citing to the
Board’s analysis in those two cases, states that Graham has
failed to demonstrate that its site’s circumstances allow for
concrete to be part of the corrective action and therefore is not
reimbursable. (Brief at 13.) In addition, the Agency compares
the circumstances in this case to those in Southern Food Park
where the Board denied reimbursement for concrete replacement.
The Agency argues that the situations are the same and therefore
the Board should find that the concrete is not part of corrective
action. (Brief at 13—18.)
The Agency also asserts that the concrete is not necessary
for corrective action at the site. The Agency argues that
concrete “...is not impervious to water and is subject to the
same seasonal heaving and thawing as is soil, and is subject to
cracks.” (Brief at 13.) The Agency also states that Graham’s
concern about surface water infiltration is invalid since the
bio-remediation method is constantly inundating the contaminated
soil with water. (Brief at 14.) In addition the Agency states
that, since the bio-reinediation method is forcing water through
the contaminated soil, the spread of the contamination may happen
with or without the concrete. (Brief a 14.) Finally, the Agency
states that Graham’s own witness, Mr. Schrack, recognized that a
portion of the concrete located under the canopy where the
10
gasoline pumps are located was primarily for restoration purposes
and not corrective action. (Brief at 28.) The Agency
concludes that the primary purposes of the concrete was
restoration. (Brief at 30.)
In response to Graham’s request for its costs for bringing
this action, the Agency argues that Graham has not provided any
authority which supports its claim, that the definition of
corrective action does not include legal defense costs, and that
the Board determined in Clarendon Hills that it would not allow
legal costs which were not corrective action. (Brief at 33.)
The Agency asserts that Graham has not demonstrated that the
legal costs in this case are corrective action. (Brief at 33.)
Discussion
In applying the 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. However, it is the particular
facts surrounding the activity and the purpose of the activity
that will ultimately determine whether it constitutes corrective
action.
We find that it is not reasonably apparent from the facts in
this case that the concrete was part of the corrective action
plan. We disagree with Graham’s argument that pursuant to Martin
Oil Marketing #64 v. Illinois Environmental Protection Agency,
(August 13, 1992), PCB 92—52, it was reasonably apparent that
installation of the concrete was part of the plan. It may be
apparent that if Graham was to utilize the site as a gasoline
dispensing station, concrete/asphalt would have to be replaced at
the site. It is not reasonably apparent that the concrete was
part of corrective action plan which included an estimated budget
and the cost for the replacement of concrete was not included.
In addition, the estimated budget for the whole corrective action
plan was $100,770 and the cost for the concrete was roughly half.
Nevertheless the Board also stated in Martin Oil Marketing #64
that whether an activity was included or not included as part of
atthe3.)correctiveThe issueactionis toplanbe
doesdecidednotuponaloneadecidedeterminationthe issue.of
(~
whether the action is corrective action.
In this case the Board must interpret the statutory language
as applied to the circumstances of Graham’s site in order to
determine whether the concrete is corrective action that is
reimbursable under the Act. Section 22.18(e) (1) (c) of the Act
has been interpreted by the Board on several occasions. In
Enterprising Leasing Co. and Platolene the Board established the
following:
The definition of corrective action consists of two
11
inquiries: whether the costs are incurred as a result
of 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. When reviewing
reimbursement determinations the proper standard is to
apply the statutory definition of corrective action.
In Enterprising Leasing Co. the Board stated that “bjoth
requirements must be met in order for costs to be reimbursed as
corrective action.” (Enterprising Leasing Company v. IEPA,
(April 9, 1992), PCB 91-174, page 5.) In addition in Southern
Food Park, Inc. v. Illinois Environmental Protection Agency,
(March 3, 1994), PCB 92—200; the Board examined the petitioner’s
“main intent” in the context of determining whether concrete
replacement satisfied the corrective action test established in
Platolene and Enterprising Leasing. (See Chuck and Dan’s Auto
Service v. Illinois Environmental Protection Agency, (August 26,
1993), PCB 92—203.) In State Bank of Whittington v. Illinois
Environmental Protection Agency, (June 3, 1993), PCB 92-152, the
Board reversed the Agency’s determination that roller/compactor
and nuclear density testing charges were not corrective action.
In that case the petitioner not only demonstrated that the
roller/compactor and nuclear density testing were corrective
action for the site, the petitioner also argued that they were
the best alternative. (Id. at 15.) As with concrete,
roller/compactor activity was usually denied as being restoration
and not corrective action, but the Board found, based on the
evidence presented by the petitioner, the roller/compactor
activity met the two-part test of Platolene,and Enterprising
Leasing. Thus Graham must demonstrate that the activity meets
the two—part test in order for the cost of the concrete to be
reimbursable.
The appellate court in Strube v. Illinois Pollution Control
Board, 242 Ill. App.3d 822, 610 N.E.2d 717, 851 (3rd Dist. 1993),
held that the purposes of the UST Fund are narrow. The Act
establishing the UST Fund limits reimbursement to those actions
which remediate or stop, eliminate, and minimize the
contamination. The UST Fund was not developed to reimburse
operators for the costs of restoration as a result of remediation
at the site. Accordingly the Board does not believe that any or
all actions that may contribute to cleaning up or containing a
petroleum release constitute corrective action. If that were the
case, it could be argued that erection of a building foundation
over the contamination at the site is arguably part of the
corrective action. When applying the analysis of Platolene,
Enterprising Leasing and Southern Food Park, the Board will
consider the motivating circumstances of why that particular
activity was chosen or if an alternative could have been utilized
12
but forThethefirstrestorationquestion
beforepurposes.the2 Board in determining whether
the concrete is corrective action at the site is whether the
concrete stops, minimizes, eliminates, or cleans up a release of
petroleum. Graham has presented several possible reasons why a
relatively impermeable layer may be part of the corrective action
at the site to control the emissions from and the migration of
the contamination in the soil.
Graham’s argument that the moisture and/or oxygen content of
the soil must be maintained in order for the micro—organisms to
effectively treat the contaminated soil, is inconsistent with the
description of how the system operates. According to the
explanation given the micro-organisms are added to the
contaminated water in a tank located in a shed and are not added
directly to an unsaturated area of the soil where the
moisture/oxygen content becomes relevant. While it is true that
the treated water is recirculated into the area of soil
contamination, the bio—reinediation process is designed and
operated to take place in the tank in the treatment shed, where
the micro-organisms are initially added.
Furthermore, the protection of the pump and treatment system
from vehicular traffic only becomes necessary when restoring the
site as a gasoline dispensing station and is not in relation to
stopping, minimizing or eliminating the contamination. Graham
does set forth some arguments that a relatively impermeable
layer, such as the concrete, may minimize fugitive emissions and
direct human contact. However, corrective action for these two
concerns, i.e. the concrete, only becomes necessary for purposes
of restoring the property as a gasoline dispensing station while
the remediation process is still on-going.
The second question before the Board is whether the costs
2The Board in adopting regulations pursuant to Section
57.14(b) of the Act in Regulations of Petroleum Leaking
Underground Storage Tanks, 35 Ill. Adm. Code 732, R94-2(a)
established a list of activities at 35 Ill.Adm. Code 732.605
which are eligible for reimbursement as corrective action based
on the new definition of corrective action at Section 57.2 of the
Act. (415 ILCS 5/57.2 and 5/57.14(b) (1994).) The Board’s
regulations under the new UST program would allow
lt••
.costs for
destruction and replacement of concrete, asphalt and paving to
the extent necessary to conduct corrective action and if the
destruction and replacement has been certified as necessary to
the performance of corrective action by a licensed Professional
Engineer.” Those actions must also be contained in the
corrective action plan and budget. (See 35 Ill. Adm. Code
732. 601.)
13
associated with the concrete are the result of tank removal, soil
remediation and/or free product removal. Graham does not argue
that the costs of the concrete are the result of tank removal or
free product removal. Instead, Graham argues that the cost of
the concrete is the result of the on—going soil remediation. We
disagree that the cost of the concrete is the result of the on-
going soil reinediation. Graham has failed to demonstrate that
the concrete is necessary part of the soil remediation plan. The
pump and treat system as designed, approved by the Agency, and
operated provides the necessary corrective action. The concrete
is not necessary for soil remediation. Instead the restoration
of the site as a gasoline dispensing station drives the necessity
of utilizing the concrete. As such we find that the cost of the
concrete is not the result of soil reinediation at the site but is
the result of restoration of the site. Unlike the petitioner in
State Bank of Whittington, Graham has not shown that the concrete
is necessary for corrective action at this site or in the
alternative that it is the best alternative for corrective action
purposes for this site. Therefore pursuant to the test
established in Platolene, Enterprising Leasing and Southern Food
Park, the concrete is not reimbursable.
The Board finds the main purpose of the replacement of the
concrete is to restore the site as a gasoline dispensing station.
The corrective action plan did not include the concrete as part
of the plan; the budget attached to the corrective action plan
did not include the cost of the concrete; and the necessity of
the concrete is directly related to the use of the site as a
gasoline dispensing station, and not to the soil reinediation at
the site which was to last 5 to 6 months. The narrow legislative
purpose of the UST Fund is reimbursement of costs directly
related to corrective action at the site and not for the costs
attributed to the restoration of the site. The fact that an
action may partially contribute to corrective action while
primarily having a restoration role does not make it necessary
for corrective action at a particular site. Based on these
facts, we find Graham has not met the two—part test and therefore
the costs associated with the concrete are not reimbursable.
For the reasons stated above we affirm the Agency’s denial
of the costs associated with the concrete. Since we affirm the
Agency’s determination, petitioner’s request for costs is moot.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
14
ORDER
For the forgoing reasons, the Board affirms the Agency’s
March 1, 1995, determination that replacement of concrete by the
petitioner, Eugene Graham, is not a reimbursable expense.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act, (415 ILCS
5/41 (1992)), provides for appeal of final orders of the Board
within 35 days. The Rules of the Supreme Court of Illinois
establish filing requirements. (See also 35 Ill. Adm. Code
101.246, Motions for Reconsideration.)
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the abpye opinion and order was
adopted on the ~
day of
_________________
,
1995, by a
vote of
~‘
.
Dorothy M.,4unn, Clerk
/~((.
Illinois r~dllutionControl Board
