ILLINOIS POLLUTION CONTROL BOARD
    August 26, 1993
    ZMC, INC. (OMNI PRODUCTS),
    Petitioner,
    v.
    )
    PCB 93—100
    (UST Fund)
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    RICHARD ZACCAGNI, PRESIDENT OF OMNI PRODUCTS, DIVISION OF ZMC,
    INC, APPEARED ON BEHALF OF PETITIONER;
    JAMES G. RICHARDSON, APPEARED ON BEHALF OF RESPONDENT.
    OPINION AND ORDER OF THE BOARD (by R. C. Flemal):
    On May 12, 1993 ZMC, Inc. (Omni Products) (hereinafter,
    Omrii), filed a petition for review of an underground storage tank
    reimbursement determination. On June 21, 1993 the Illinois
    Environmental Protection Agency (Agency) filed a motion for
    partial summary judgment and a memorandum of law is support of
    its motion for partial summary judgment. The Board denied the
    motion by written order on July 1, 1993 allowing the matter to
    proceed to hearing on all issues. Hearing was held on July 8,
    1993 in Addison, Illinois. No members of the public attended.
    No briefs were filed.
    For the reasons set forth below, the Board today finds that
    the Agency correctly denied reimbursement for $16,167.45 in
    charges incurred for corrective action associated with a leaking
    underground storage tank, and that all other issues were
    withdrawn.
    BACKGROUND
    In September 1989 OMNI was notified by its neighbor, Hanson
    Management, of a spill that appeared to come from one of OMNI’s
    underground storage tanks (USTs). Omni contacted its consultant,
    Hunter/Keck Environmental Services, Inc. (Hunter) to handle the
    corrective action. OMNI obtained an Illinois generator
    identification number from Hunter on September 20, 1989.
    Apparently, OMMI personnel mistook this number for the “incident
    number”, which is the number received from the Illinois Emergency
    2
    Management Agency (lENA)’ when a release of petroleum—related
    product is reported to lENA. (Pet. Exh. 1 at 1-2.) Corrective
    action commenced at the site2 and costs were incurred. (See,
    Rec., generally.) IEMA was not notified of a release relating to
    a UST at petitioner’s site until January 7, 1991. (Joint Exh. 1
    at 1). On February 19, 1992 the Agency received petitioner’s
    application for reimbursement for costs incurred in response to a
    release. (Rec. at 290.) A series of information exchanges
    ensued (See Rec., generally.)
    On April 7, 1993 the Agency denied reimbursement for certain
    corrective action costs associated with the clean—up. On May 12,
    1993 ONNI brought this appeal contesting two of the Agency’s
    denial reasons.
    DISCUSSION
    At hearing petitioner withdrew its appeal pertaining to all
    issues, except one (Tr. at 6—7.) Therefore, the sole issue in
    this proceeding is whether the Agency erred in failing to
    reimburse $16,167.45 of corrective action costs because these
    charges were allegedly incurred prior to notification of IEMA.
    The parties stipulated that lENA was not notified of a
    release relating to an UST at petitioner’s site until January 7,
    1991. The parties also stipulated that certain costs were
    incurred before January 7, 1991, and that these costs totalled
    $16,167.45. (Joint Exh. 1 at 1)
    It is the Agency’s position that since these costs were
    incurred prior to lENA notification they are not reimbursable.
    Section 22.18b(d)(4)(d), applicable to petitioner, states in
    pertinent part as follows:
    Requests for partial or final payment for claims under
    this section shall be sent to the Agency and shall
    satisfy the following:
    ***
    IEMA was formerly known as the Emergency Services and
    Disaster Agency (ESDA).
    2 The application indicates that seven tanks were pulled,
    that the piping was leaking, and that no one tank could be
    specifically identified as leaking. (Rec. at 294-304.) The
    relationship between the tank pulls and corrective action in
    response to a release is not at issue in this proceeding.
    3
    D. The owner or operator notified the state
    of the release of petroleum in
    accordance with applicable requirements.
    Requirements found at 35 Ill. Adm. Code 731.150 entitled
    “Reporting of Suspected Releases” are as follows:
    Owners and operators of UST systems shall report to the
    lENA within 24 hours and follow the procedures in
    Section 731.152 for any of the following conditions:
    a) The discovery by owners and operators or
    others of released regulated substances
    at the UST site or in the surrounding
    area (such as the presence of free
    product or vapors in soils, basements,
    sewer and utility lines or nearby
    surface waters).
    ***
    The Agency states that the Board has previously decided
    cases where pre-IEMA notification costs were sought by an
    applicant, and has held that such costs should not be reimbursed.
    North Suburban Development Corporation v. IEPA (December 19,
    1991), PCB 91—109, 128 PCB 263; (holding that lENA notification
    is a condition for payment of UST reimbursement claims) Kronon
    Motor Sales, Inc.. v. IEPA (January 9, 1992), PCB 91—138, aff’d
    Kronon Motor Sales, Inc., v. IPCB and IEPA (1992), 609 N.E.2d
    678. (While recognizing seemingly harsh result, the court upheld
    the Board’s determination that denied reimbursement for
    corrective action taken prior to notification of lENA.)
    Omni does not contest the Agency’s position on the law
    concerning pre-IEMA notification reimbursement. Rather, ONNI
    asks the Board to consider ordering reimbursement because, as
    OMNI alleges, the company needs the funds to complete the cleanup
    project, and because OMNI was unaware that its consultant did not
    notify lENA prior to January 7, 1991. (Pet. Exh. 1 at 1-3.)
    The Board finds that the regulatory requirements that
    existed at the time of leak detection required OMNI to give
    notification to lENA within 24 hours, and that the statutory
    language required OMNI to provide the Agency with proof of
    notification as a condition for payment of such claims. The
    cases cited above establish precedent that such pre-IEMA
    notification costs are not reimbursable. Concerning
    OMNI’s
    position, the Board sympathizes with the situation as presented;
    however, the Board is not authorized to act contrary to the clear
    directives of the law.
    4
    Accordingly, for the foregoing reasons, the Board hereby
    affirms the Agency’s determination that costs incurred prior to
    OMNI’s notification of a release to lENA are not reimbursable.
    This opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    The Board hereby affirms the Agency’s determination that
    costs incurred prior to OMNI’s notification of a release to IEMA
    are not reimbursable.
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act (415 ILCS
    5/41 (1992)) provides for the appeal of final Board orders 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 N. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the appve opinion and order was
    adopted on the
    ,-4~—
    day of
    -(e~5~7
    ,
    1993, by a
    vote of
    (~O .
    Dorothy M. nfl, Clerk
    Illinois Pollution Control Board

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