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