ILLINOIS POLLUTION CONTROL BOARD

May 4, 1995

KATHE’S AUTO SERVICE CENTER,

Petitioner,

v.

)

PCB 95—48

(UST-Appeal)

ILLINOIS ENVIRONMENTAL      

)

PROTECTION AGENCY,         

)

Respondent.

ORDER OF THE BOARD (by J. Yi):

This matter is before the Board on a motion for summary

judgment filed by the Illinois Environmental Protection Agency

(Agency) on March 23, 1995. Kathe’s Auto Service Center (Kathe)

is challenging the Agency’s determination denying Kathe’s Auto

Service Center’s requested reimbursement for “early action”

activities conducted at Kathe’s tJST site.1 The Agency’s motion

is similar to the one it filed in Kalo Gasoline Company v.

Illinois Environmental Protection Agency, (March 16, 1995), PCB

95-41, PCB 95-74, (consolidated matters) where the Board denied

the Agency’s motion for summary judgement. In doing so the Board

stated:

The Agency argues that Section 57.6(b) is a bar to

reimbursement if early action is performed after a site

classification plan is submitted. We disagree.

Section 57.6(b) allows an owner or operator the

latitude to perform early action activities, including

tank removal, without having to go through a plan-

submittal process before the Agency. On its face,

Section 57.6(b) is not necessarily a bar to

reimbursement as the Agency contends. Instead, seeking

reimbursement from the UST Fund is limited by Section

57.5(a), which provides that costs will not be

reimbursed if they exceed the minimum requirements

necessary to comply with this Environmental Protection

Act and by the Board’s regulations governing early

‘Kathe’s has also filed a petition with the Board appealing

the Agency’s denial of its site classification plan which is

docketed as PCB 95-43. The Board consolidated these matters for

the purposes of hearing only and made no finding as to whether

these cases will be consolidated for the purposes of final

decision. A hearing was had on March 13 and 14, 1995 at which

the parties decided to not present evidence concerning PCB 95-48

and continued the matter. The statutory decision deadline in PCB

95-48 has been waived to October 30, 1995.

2

action at 35 Ill. Adm. Code 732.200 et 

seq. 

Thus,

factual issues remain for hearing such as whether the

early action performed by Kalo exceeded the minimum

requirements necessary to comply with the Environmental

Protection Act or whether the activities performed at

the site constitute “early action.”

In this case the Agency, citing Section 57.6(b) of the Act,

states that “p)etitioner is not entitled to reimbursement for

early action costs incurred subsequent to the submission of the

its Site Classification Plan....” (415 ILCS 5/57.6(b) (1902).)

The Agency argues, as it did in Kalo, that Section 57.6(b) limits

early action to activities performed prior to the submission of

the site classification plan.

Section 57.6(b) of the Act states “n)otwithstanding any

other corrective action taken, an owner and operator may, at a

minimum, and prior to submission of any plans to the Agency,

remove the tank system  

“

(415 ILCS 5/57.6(b) (1993).)

Section 57.6 of the Act allows individuals to take action prior

to the submission of any plans to the Agency and is not a bar to

taking actions which meet the requirements of 35 Ill. Adm. Code

732.200 et. 

seq. 

if plans are submitted to the Agency. We find

no reason in this case to find differently than we had in Kalo.

There are factual issues remaining for hearing to determine

whether the early action performed by Kathe’s goes beyond the

necessary early action activities set forth at 35 Ill. Adm. Code

732.200 

et seq. 

Therefore, the Agency’s motion for summary

judgement is denied.

IT IS SO ORDERED.

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

Board, hereby certify that the above order was adopted on the

~/tZ~day of    

~Y)

4-’-1     

1995, by a vote of 

Dorothy M4’Gunn, Clerk

Illinois (~,bllutionControl Board