ILLINOIS POLLUTION CONTROL BOARD
    March
    16,
    1995
    FORREST WILLIAMS d/b/a
    )
    WILLIAMS MOBIL,
    )
    Petitioner,
    V.
    )
    PCB 95—57
    PCB 95—58
    ILLINOIS ENVIRONMENTAL
    )
    (Consolidated)
    PROTECTION AGENCY,
    )
    (UST
    -
    Appeal)
    Respondent.
    ORDER OF THE BOARD
    (by M.
    McFawn):
    This matter is before the Board upon two motions for stay
    filed by petitioner Forrest Williams d/b/a Williams Mobil
    (Williams)
    on February 17,
    1995.
    The first motion,
    filed
    in PCB
    95—57, seeks to stay the effect of the Illinois Environmental
    Protection Agency’s
    (Agency) January 27,
    1995 modification of
    Williams’ revised leaking underground storage tank
    (LUST)
    site
    classification completion report (site classification report)
    during the pendency of Williams’
    appeal of the Agency
    modification.
    The second motion,
    filed in PCB 95—58, seeks to
    stay during the pendency of this appeal the effect of the
    Agency’s modification of Williams’ physical soil classification
    and groundwater investigation plan
    (soil and groundwater plan)
    and the Agency’s approval of Williams’ total budget for the
    physical soil classification and groundwater investigation
    (soil
    and groundwater budget), but only to the extent they affect
    Williams’ right to elect to defer corrective action.
    We also
    note that Williams filed a waiver
    of the decision deadline until
    October 30,
    1995.
    The Agency has not filed a response to either motion.
    Pursuant to Section 103.140(c)
    of the Board’s procedural rules,
    if no response to a motion is filed,
    the parties shall be deemed
    to have waived objection to the granting of the motion, but such
    waiver of objection does not bind the Board in its determination.
    We will therefore proceed to the merits of each motion.
    Notion to Stay Effect of Site Classification Report Modification
    Williams asserts that unless the effect of the Agency’s
    modification of its site classification report is stayed during
    the pendency of this appeal, pursuant to Section 732.503(f),
    Williams will be obligated to submit
    a revised site
    classification completion report within 30 days of the Agency’s
    modification, or the Agency’s modification will be approved by
    operation of law.

    2
    Section 732.503(f)
    provides:
    Any action by the Agency to reject or require modification
    of a plan or report shall be subject to appeal to the Board
    within
    35 days after the Agency’s final action in the manner
    provided for the review of permit decisions in Section 40 of
    the Act.
    Any owner or operator may elect to incorporate
    modifications required by the Agency and shall do so by
    submitting a revised plan or report within 30 days after the
    receipt of the Agency’s written notification.
    If no revised
    plan or report is submitted to the Agency
    or no appeal
    to
    the Board (is
    filed within the specified time frames,
    the
    plan or report shall be deemed approved as modified by the
    Agency.
    (Emphasis added).
    Because Williams filed a timely appeal of the Agency’s
    modification of Williams’ site classification report, the
    language in 732.503(f) which states that the modified plan shall
    be approved within
    30 days does not apply
    to Williams.
    By
    excepting situations where a timely appeal
    is filed,
    the
    regulation has the effect of staying a rejection or modification
    until the appeal
    is resolved.
    Therefore,
    it
    is unnecessary to
    grant Williams a stay from that provision.
    Williams also asserts that it “is to submitt’
    a corrective
    action plan to the Agency within 90 days of the Agency
    modification.
    Williams asserts that in this corrective action
    plan it will be required to address all the criteria for which
    the Agency designated the site high priority,
    including the
    criteria Williams
    is contesting in this appeal.
    Williams also
    points out that the Agency would be required to review proposed
    corrective action submittals which may be found
    to be
    unnecessary.
    Williams has cited no provision requiring the submittal of a
    corrective action plan within 90 days of the Agency modification
    of a site classification report.
    Section 732.405(a)
    of the
    Board’s LUST rules merely requires owners and operators to submit
    a High Priority corrective action plan to the Agency prior to
    conducting corrective action activities.
    Alternatively, pursuant
    to Section 732.405(d),
    an owner or operator can even proceed with
    corrective action activities prior to submitting a corrective
    action plan to the Agency or receiving Agency approval of the
    plan.
    Under this second option the owner
    or operator must
    subsequently submit the corrective action costs to the Agency for
    approval before payment will be authorized,
    and the owner or
    operator therefore runs the risk that incurred costs will not be
    approved,
    and will therefore not be reimbursed.

    3
    Because we find that there
    is nothing which compels Williams
    to submit its corrective action plan to the Agency prior to the
    resolution of the issues in this appeal,
    it
    is not necessary or
    appropriate for the Board to grant a stay.
    Motion to Stay Effect of Soil and Groundwater Plan and Budget
    Williams’
    second motion seeks to stay the effect of the
    Agency’s modification of its soil and groundwater plan and the
    Agency’s approval of its soil and groundwater budget to the
    extent these actions affect Williams’ right to defer corrective
    action.
    Section 732.406(a) of the LUST rules provides:
    a)
    Notwithstanding any other provision or rule of law with
    the exception of the early action requirement of
    Subpart B of this Part,
    the owner or operator who has
    submitted any budget plan pursuant to this Part and who
    is eligible for payment from the Underground Storage
    Tank Fund shall be eligible to elect to commence
    corrective action upon the availability of funds.
    Such
    election shall be made in writing to the Agency within
    30 days
    of
    receipt of Agency approval of
    a budget
    plan.
    The Agency shall provide notice to the owner or
    operator whether sufficient resources are available in
    order to immediately commence the approved measures.
    (Emphasis added.)
    In the Agency’s January 27,
    1995 notification letter to
    Williams concerning the soil and groundwater plan and the soil
    and groundwater budget,
    the Agency states that there are
    insufficient resources available in the LUST Fund to reimburse
    the corrective action costs approved in the budget, and that an
    election to defer corrective action must be made within 30 days.
    The letter refers to the “total proposed budget for the Physical
    Classification and Groundwater Investigation Plan.”
    Because
    Williams is appealing certain conditions included in the Agency’s
    modification of its soil and groundwater plan, Williams seeks a
    stay of the effect of the budget’s approval to the extent it
    triggers the running of the 30-day period in which Williams can
    elect to defer the corrective actions specified in the approved
    budget.
    Because Williams is appealing the Agency’s modifications to
    its soil and groundwater plan,
    it is unclear what costs will
    untimately need to be included in the soil and groundwater
    budget.
    Williams may choose to submit a revised budget pursuant
    to Section 732.305(e)
    of the UST rules.
    Therefore, we find that
    it
    is appropriate to toll the running of the 30-day period for
    electing to defer the corrective actions specified in the budget
    during the pendency of this appeal.
    We hereby grant Williams the
    requested stay from the effect of Agency approval of the soil and
    groundwater budget to the extent it affects Williams’ rights to

    4
    elect to defer corrective action pursuant to Section 732.406(a),
    during the pendency of this appeal.
    IT IS SO ORDERED.
    I,
    Dorothy N. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above order was adopted on the
    /Cf~
    day of
    ________________
    1995, by a vote of
    7-c1~
    Dorothy MSGunn,
    Clerk
    Illinois Pollution Control Board

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