ILLINOIS POLLUTION CONTROL BC ~D
July 9, 1992
BERNARD MILLER,
)
)
Petitioner.
)
V.
)
PCB 92-49
(Underground Storage
ILLINOIS ENVIRONMENTAL
)
Tank Fund)
PROTECTION AGENCY,
)
Respondent.
BERNARD MILLER and CHARLES MEYER APPEARED ON BEHALF OF
PETITIONER; and
JEANNE HEATON and DANIEL P. MERRIMAN APPEARED ON BEHALF OF
RESPONDENT.
OPINION AND ORDER OF THE BOARD (by J. Theodore Meyer):
• This matter is before the Board on a petition for review
filed March 30, 1992 by petitioner Bernard Miller pursuant to
Section 22.18b(g) of the Environmental Protection Act (Act).
(Ill.Rev.Stat. 1991, ch. 111½, par. 1022.18b(g).) Miller seeks
review of the Illinois Environmental Protection Agency’s (Agency)
March 5, 1992 partial denial of reimbursement from the
Underground Storage Tank (UST) Fund. A hearing was held on June
5, 1992, in Newton, Illinois. No members of the public attended.
Neither party chose to file a brief, but relied on closing
arguments.
There are two major disputes in this case. The first issue
is whether costs incurred in association with a planned removal
of USTs are “corrective action” costs and are thus reimbursable
by the Fund. The second dispute is whether concrete replacement
costs are reimbursable by the Fund.
BACKGROUND
This case involves the removal of TJSTs and corrective action
at a former service station at 704 West Jourdan, Newton,
Illinois. (R. A at 17.)! Mr. Miller operated the service
station with his brother from 1954 until the end of 1988. (Tr.
at 40-41.) On December 28, 1990, the Millers entered into a
“R. A” denotes citation to the Agency record, fiscal file,
“R. B” indicates citation to the Agency record, technical file,
and “Tr.” denotes citation to the hearing transcript.
0135-0053
2
contract for the sale of the property, and on December 31, 1990,
applied to the Office of the State Fire Marshal (OSFM) for a
permit to remove the existing four USTs. (Tr. at 41; R. B at
61.) The contract required the removal of the tanks. (Tr. •at
43-44.) On January 3, 1991, OSFM issued a permit for the removal
of the tanks. (R. B at 61.) The Millers retained Charles Meyer,
a registered professional engineer with the firm of J.B. Esker &
Sons, Inc., to assist in the removal process. (Tr. at 14, 44.)
Preparation for tank removal began on February 6, 1991. A
crew from J.B. Esker & Sons removed the concrete slab that
covered three of the four tanks and the vent lines. (R. B at 13;
Tr. at 16—17.) On February 7, 1991, the vent lines and, fill
lines were disconnected and the tanks vented by a crew from Petro
Maintenance, a subcontractor. When a representative from OSFM
arrived, he noted an odor to the soil which had been removed from
around the tanks. (Tr. at 23; R. B at 13.) Mr. Meyer testified
at hearing that the odor smelled like gasoline, and was coming
from the soil, rather than the venting or cleaning processes.
(Tr. at 23-24.) Mr. Meyer then notified the Illinois Emergency
Services and Disaster Agency (ESDA) that there had been a release
of petroleum. (Tr. at 24; R. B at 2, 13—14.) After ESDA was
notified, the tanks were removed. (Tr. at 24—25.) Petro
Maintenance then cleaned the tanks. All four tanks were removed
on February 7, 1991. The hole was backfilled with soil and sand,
and the concrete was removed from the site. (Tr. at 25—26.)
Replacement concrete pads were subsequently poured in August
1991. (Tr. at 27, 31.)
Mr. Miller originally sent an application for reimbursement
from the UST Fund to the Agency on July 22, 1991. That
application was returned by the Agency due to incompleteness and
for clarification. (R. A at 1,15.) On August 21, 1991, the
Agency received Mr. Miller’s amended application for
reimbursement. (R. A at 16-24.) The invoices submitted in
support of the claim for reimbursement covered the period from
February 1, 1991 to August 1, 1991, and the total amount
requested was $49,961.17. (R. A at 101.) On March 5, 1992, the
Agency issued its decision, finding that, after deducting the
applicable $10,000 deductible (R. A at 81—82), $32,229.27 was
reimbursable. The Agency listed three separate amounts for which
reimbursement was denied. (R. A at 101-103.) Mr. Miller filed
his petition for review with the Board on March 30, 1992.
DISCUSSION
In his petition for review, Mr. Miller challenged all three
items for which the Agency denied reimbursement: $3,725.05 for
an adjustment in tank removal costs; $3080.00 for concrete
replacement costs; and $926.85 for an adjustment in costs lacking
supporting documentation. (Pet. at 1—2; R. A at 103.) However,
testimony at hearing indicates that Mr. Miller and the Agency
‘UI 35-005L~
3
have reached an agreement on the $926.85 for costs lacking
documentation. (Tr. at 57, 79.) Therefore, the Board will
address only the challenged costs for tank removal and concrete
replacement.
Tank Removal Costs
The Agency denied reimbursement of $3,725.05 in tank removal
costs, stating that the tanks were not removed in response to a
release, and that therefore the associated costs are not
corrective action costs. (R. A at 103.), The Agency pointed to
Section 22.18(e) (1) (C) of the Act, which states in part:
Corrective action does not include removal of an
underground storage tank if the tank was removed or
permitted for removal by the Office of State Fire
Marshal prior to the owner or operator providing notice
of a release of petroleum in accordance with applicable
notice requirements. (Ill.Rev.Stat. 1991, ch. 111½,
par. 1022.18(e) (1) (C).)
Mr. Miller argues that the fact that the tank removal was
planned should not preclude him from applying for reimbursement
for tank removal costs once a release of petroleum was
discovered. Mr. Miller notes that the definition of “corrective
action” was amended by P.A. 87-323, effective September 6, 1991,
to exclude tank removals where permitted for removal prior to
discovery of a release. However, Mr. Miller contends that prior
to September 6, 1991, such a situation would constitute
“corrective action”, so that his tank removal costs should be
reimbursed.
In response, the Agency points out that it is limited to
reimbursing for expenses that constitute “corrective action”
under the Act. The Agency notes that OSFM issued a permit for
the removal of these tanks on January 3, 1991, and that the
application for reimbursement states that the reason for removal
was the sale of the property. Therefore, the Agency maintains
that the tanks were not pulled in response to a release and thus
the tank removal costs do not constitute corrective action.
After a review of the record and the arguments of the
parties, the Board partially reverses the Agency’s determination
that $3,725.05 in tank removal costs are not reimbursable. TherE
are two parts to the Agency’s argument that the tank removal
costs are not corrective action costs. First, the Agency argues
that Section 22.18(e) (1) (C) of the Act excludes this situation
from the definition of “corrective action”, because Mr. Miller
had received a permit from OSFM for removal of tanks before the
release was discovered. The Agency is correct that Section
22.18(e) (1) (C), as amended by P.A. 87—323, now specifically
states that tank removal is not corrective action if the tank is
0135-0055
4
removed or permitted for removal by OSFM prior to notification of
a release. However, this addition to Section 22.18(e) (1) (C) was
approved and effective on September 6, 1991, after the disputed
costs were incurred in February 1991, and after Mr. Miller filed
his application in summer 1991.2 The Board has previously
determined that statutory provisions in effect on the date of
filing of the application for reimbursement are the statutory
provisions which govern that application. (Pulitzer Community
Newspapers. Inc. v. Illinois Environmental Protection Agency
(December 20, 1990), PCB 90—142, slip op. at 4—5.) Therefore,
the provisions of P.A. 87-323, including the addition to the’
Section 22.18(e) (1) (C) definition of corrective action, are not
applicable to Mr. Miller’s application.
Second, the Agency contends that because the tanks were part
of a “planned removal” due to the sale of property, the tanks
were not ‘pulled in response to a release, and therefore the tank
removal costs are not corrective action. This argument ignores
the Board’s decision in Enterprise Leasing Co. v. Illinois
Environmental Protection Agency (April 9, 1992), PCB 91-174.
,
In
Enterprise Leasing, the Board specifically held that the fact
that a petitioner had planned to remove tanks does not bar tank
removal costs from being reimbursed as corrective action costs
when those activities meet the statutory definition. (Enterprise
Leasing, slip op. at 5; see also Enterprise Leasing Co. v.
Illinois Environmental Protection Agency (June 4, 1992), PCB 91-
174’.) Therefore, the proper inquiry is whether the tank removal
costs meet the definition of “corrective action”, as that
definition existed when the application for reimbursement was
filed, not whether the tank removal, was planned.
The definition of “corrective action” as it existed when Mr.
Miller filed his application for reimbursement stated:
“Corrective action” means an action to stop, minimize,
eliminate, or clean up a release of petroleum or its
effects as may be necessary or appropriate to’ protect
human health and the environment. This includes, but
is not limited to, release investigation, mitigation of
fire and safety hazards, tank removal, soil
remediation, hydrogeological investigations, free
product removal, ground water rernediation and
monitorina.
~rnogur~
assessments, the temporary or
2As noted above, Mr. Miller originally sent his application
to the Agency on July 22, 1991. That application was returned,
and Mr. Miller filed an amended application on August 21, 1991.
In this case, it is immaterial which of these dates constitutes
the date of filing of the application, because both dates are
before the September 6, 1991 effective date of P.A. 87—323.
0135-0056
5
permanent relocation of residents and the provision of
alternate water supplies. (Ill.Rev.Stat. 1989, ch.
111½, par. 1022.18(e)(1)(C).)
As the Board noted in Enterprise Leasing, this definition
presents a two—part test: whether the costs are incurred as a
result of action to “stop, minimize, eliminate, or clean up a
release of petroleum”, and whether the costs are the result of
activities such as tank removal. The Board finds that the tank
removal costs incurred by Mr. Miller on February 7 (the second
day of activities at the site) meet both parts of the definition.
Therefore, the Board finds that the tank removal costs incurred
on February 7,1991 are reimbursable as corrective action costs.
However, the costs incurred on February 6, the day before the
release was discovered, are not corrective action costs and not
reimbursable. The record indicates that $984 was incurred on
February 6, 1991. (R. A at 93; Tr. 81—83.) Deducting $984 from
the $3,725.05 disallowed by the Agency results in $2741.05 in
reimbursable tank removal costs.
Concrete Replacement
The Agency also disallowed $3,080.00 in costs associated
with the replacement of concrete. The Agency stated in its March
5, 1992 letter that concrete and asphalt are considered
“structures”, and that costs associated with the replacement of
structures are not reimbursable. (R. A at 103~)
Mr. Miller argues that the Agency’s guidance manual on UST
cleanups states that costs’ for destruction of structures costing
less than $10,000 are reimbursable upon certification that the
removal was necessary to perform remedial action. Mr. Miller
states that he and his engineer, Mr. Meyer, interpreted this
provision to mean that the concrete replacement costs would be
reimbursable since the concrete had to be removed to perform
remedial action.
In response, the Agency points to this Board’s previous
decisions in Platolene 500, Inc. v. Illinois Environmental
Protection Agency (May 7, 1992), PCB 92—9 and Strubbe v. Illinois
Environmental Protection Agency (May 21, 1992), PCB 91-105, for
the proposition that in most cases replacement of concrete is not
corrective action because it is not an action to minimize, stop,
eliminate, or clean up a release of petroleum. The Agency
contends that the evidence shows that the concrete was replaced
in order to restore the property to its original condition, and
not incurred as a response to a release.
After reviewing the record and the arguments of the parties,
the Board affirms the Agency’s decision that $3,080.00 in
concrete replacement costs is not corrective •action and therefore
not reimbursable by the Fund. As we noted in both, Platolene 500
UI 35-0057
6
and Strubbe, the Agency’s guidance manual does clearly allow for
reimbursement for the dismantling and reassembly of structures,
and includes concrete or asphalt paving as a structure. However,
because the Agency did not promulgate the guidance manual
according to the Illinois Administrative Procedure Act, the
manual has no legal or regulatory effect in proceedings before
the Board. The Board must determine whether concrete replacement
is reimbursable by applying the statutory definition of
corrective action.
As the Agency correctly points out, in both Platolene 500
and Strubbe the Board found that the replacement of concrete
under most circumstances is not corrective action, because it is
not an action to stop or minimize a release. However, under
certain circumstances concrete replacement costs may be proven to
constitute corrective action costs. The specific facts of each
case will determine whether concrete replacement is corrective
action. In this case, the Board finds that Mr. Miller has
presented no evidence that the concrete replacement was an action
to stop, minimize, eliminate, or clean up a release of petroleum
in order to protect human health and the environment. Instead,
the replacement of the concrete in this case restored the
facility to its original condition. As the Board stated in
Platolene 500, “while restoration actions may b.e beneficial to
the property owner and society, they do not serve to stop or
minimize the leak or protect human health or the environment.”
(Platolene 500, slip op. at 7.) Therefore, the Board affirms
that Agency’s determination that the concrete replacement costs
are not reimbursable.
The Board is concerned’ that the Agency’s guidance manual is’
misleading petitioners to believe that concrete replacement costs
(as opposed to reassembly costs) are reimbursable as a matter of
course, when in most cases such costs are not reimbursable. This
is the fourth case raising this issue that the Board has ruled
upon in the past two months. (Platolene 500, Inc. v. Illinois
Environmental Protection Agency (May 7, 1992), PCB 92-9; Strubbe
v. Illinois Environmental Protection Agency (May 21, 1992), PCB
91—105; and Warren’s Service v~. Illinois Environmental Protection
Agency (June 4, 1992), PCB 92-22.)
CONCLUSION
In sum, the Board finds that $2,741.05 in tank removal costs
are corrective action costs and are therefore reimbursable. The
Board affirms the Agency’s decision that $984.00 in tank removal
costs incurred on before the release was discovered, and
$3,080.00 in concrete replacement costs, are not reimbursable.
This opinion constitutes the Board’s findings, of fact and
conclusions of law.
, •
0135-0058
7
ORDER
The Board hereby reverses the Agency’s March 5, 1992
determination that $2,741.05 in tank removal costs is not
reimbursable. The Agency’s determinations that $984.00 in tank
removal costs incurred before the release was discovered, and
$3,080.00 in concrete replacement costs are not reimbursable are
hereby affirmed. This case is remanded to the Agency for
disbursement of the $2,741.05 amount, consistent with this
opinion and order. This docket is closed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(Ill.Rev.Stat. 1991, ch. 111½, par. 1041) provides for the appeal
of final’ Board orders. The Rules of the Supreme Court of
Illinois establish filing requirements.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the abo e opinion and order was
adopted on the
~7~t
day of
________________,
1992, by a vote
of ~—O
.
‘/
~
~.•/
~.
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~AJ
~Dorothy N. Gt~nn, Clerk
Illinois Pollution Control Board
0135-0059