ILLINOIS POLLUTION CONTROL BOARD
    July
    1,
    1993
    ZMC,
    INC.
    (OMNI
    PRODUCTS)1,
    )
    Petitioner,
    v.
    )
    PCB 93—100
    )
    (UST Fund)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ORDER OF THE BOARD
    (by R.
    C.
    Flemal):
    On May 12,
    1993,
    ZMC,
    Inc.
    (Omni Products)
    (hereinafter,
    Omni),
    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 to file
    the record instanter.
    The record is 14 days late.
    The motion to
    file the record instanter is granted.
    On June 21,
    1993 the Agency also filed a motion for partial
    summary judgment and a memorandum of law in support of its motion
    for partial summary judgment.
    No response has been filed by
    Omni.
    The Agency’s motion pertains to certain costs incurred by
    Omni after September 20,
    1989 and prior to January
    7,
    1991 that
    the Agency alleges were incurred prior to ESDA2 notification.
    The Agency states that the Board has previously decided cases
    where pre-ESDA notification costs were sought by the applicant,
    and has held that such costs should not be reimbursed.
    North
    Suburban Development CoriDoration v. IEPA (December 19,
    1991), PCB
    91-109,
    128 PCB 263; Kronon Motor Sales,
    Inc., v. IEPA (January
    9,
    1992), PCB 91-138, aff’d Kronon Motor Sales.
    Inc.,
    v. IPCB and
    IEPA,
    609 N.E.2d 678.
    The Agency alleges that no genuine issue
    of material fact exists that these certain costs were incurred
    prior to ESDA notification, and that the Board should
    consequently grant the motion for summary judgment as to these
    costs.
    1
    The original caption in this case stated petitioner solely
    as “ZMC,
    Inc.”
    In the application for reimbursement, petitioner
    is characterized as “ZMC,
    Inc.
    (Omni Products)”.
    The Board
    changes the caption to contain the name as listed on the
    application.
    2
    ESDA is now the Illinois Emergency Management Agency.
    2
    The Agency is correct that the Board has previously held in
    the cases cited above that costs incurred prior to ESDA
    notification are not to be reimbursed.
    However, the Board finds
    that the Agency has failed to show that no genuine issue of
    material fact exists that the costs incurred between September
    20,
    1989 and January
    7, 1991 were incurred prior to ESDA
    notification.
    Initially, the Board finds that facts contained in the
    Agency’s memorandum that are not part of the record of this
    proceeding are not supported by affidavit as required by the
    Board’s procedural rules.
    (See,
    35
    Ill.
    Adin. Code 101.242.)
    In
    addition,
    a reading of the memorandum and Agency record portions
    cited by the Agency do not support a finding for the Agency
    without further exploration of the facts surrounding ESDA
    notification in this case.
    For example, a portion of the Agency
    record cited by the Agency in support of its position is subject
    to differing interpretations.
    (See, Agency fiscal file at 295,
    question
    6.)
    The Board finds that genuine issues of material fact exist,
    and consequently denies the Agency’s motion for summary judgment.
    These issues may be explored at the hearing which is currently
    scheduled for July 8,
    1993.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board,
    hereby certi
    that the above order was adopted on the
    //‘~
    day of
    ___________________,
    1993,
    by a vote of
    7~
    ~/i
    ~7~-~i
    A
    Dorothy M.
    nn, Clerk
    Illinois P
    1 ution Control Board

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