ILLINOIS POLLUTION CONTROL BOARD
    June 4,
    1992
    WARREN’S
    SERVICE,
    )
    )
    Petitioner,
    )
    PCB 92—22
    v.
    )
    (Underground Storage Tank
    )
    Fund Reimbursement)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ROBERT
    C.
    SHEARER
    APPEARED
    ON
    BEHALF
    OF THE PETITIONER.
    JEANE
    HEATON
    AND
    DANIEL
    MERRIMEN
    APPERED
    ON
    BEHALF
    OF
    THE
    RESPONDENT.
    OPINION
    AND
    ORDER
    OF
    THE
    BOARD
    (by
    G.
    T.
    Girard):
    On
    February
    7,
    1992, the petitioner, Warren’s Service,
    filed
    a petition for review of a January 23,
    1992, determination by the
    Illinois Environmental Protection Agency (Agency) that certain
    costs were not reimbursable from the Underground Storage Tank
    Reimbursement Fund (Fund).
    The costs at issue were incurred
    during the remediation of a site where underground storage tanks
    were removed.
    On March 2,
    1992, the Agency filed the record in
    this case.
    Hearing was held on April 21,
    1992,
    in Aledo, Mercer
    County,
    Illinois.
    No members of the public were present.
    The
    parties did not present briefs on this matter choosing to rest on
    the closing arguments at hearing.
    FACTS
    Warren’s Service, which
    is
    owned
    by Mr. Ron Ayers,
    is
    located at 502 Fifth Street in Sherrard, Illinois.
    Warren’s
    Service is operated as a gas station and light mechanical work is
    done on the site.
    Petitioner discovered that at least three
    tanks under the property were leaking in
    August
    1989.
    (R. at
    56)..1
    The property held four tanks, all of which were registered
    with Office of the State Fire Marshal.
    Three tanks were
    registered in 1986 and fourth tank was registered after
    installation in 1990.
    (R. at 57—61.)
    The Emergency Service and
    Disaster Agency was notified of the leak on July 27,
    1990.
    (R.
    at 56.)
    The tanks were removed from service on July 23,
    1990 and
    the process of removing the tanks began on August 10,
    1990.
    1
    The Agency record will be cited as “R. at
    “;
    the transcript
    will be cited as “Tr.
    at
    “;
    the Petition will be cited as
    “Pet.
    at”.
    134—47
    Mr. Ayers hired a consulting
    firm,
    Beling Consultants, to
    direct the removal of the tanks and remediation of the site.
    At
    the instruction of the consulting firm,
    concrete was broken and
    removed to allow for access to contaminated soil.
    (Tr.
    at 12.)
    The concrete was hauled away to another site for disposal.
    After
    reaching the excavation limit, new tanks were installed and
    washed rock for compaction was placed over the new tanks.
    (Tr.
    at 14-15.)
    Finally, concrete was poured on top of the washed
    rock.
    (Tr. at 15.)
    In February of 1991,
    Mr. Ayers submitted an application for
    reimbursement from the fund, requesting $45,956.46.
    (R. at 64;
    Pet. at 2.)
    On January 23,
    1992, the Agency notified Mr.
    Ayers
    that a $10,000 deductible was applied and reimbursement would be
    forthcoming for $28,092.12.
    The difference of $5,595.94 was
    disallowed because the Agency declined to reimburse for the
    replacement of the concrete.
    (Pet. at 3.)
    DISCUSSION
    The sole issue raised by this petition is whether or not the
    costs incurred in the replacement of concrete are reimbursable.
    (Tr. at 6.)
    This issue has been squarely before the Board on two
    previous occasions in the cases Platolene 500. Inc.
    V.
    IEPA (May
    7,
    1992), PCB 92—9, _____PCB
    ______
    and Strube v.
    IEPA
    •(May 21,
    1992), PCB 91—205,
    ___
    PCB
    ____.)
    In both Platolene and Strube
    the Board held that the replacement of concrete is not corrective
    action and the Agency properly denied reimbursement.
    The facts
    in this case present no new material which would convince the
    Board that replacement of concrete is
    a reimbursable costs.
    Therefore,
    for the following reasons the Board upholds the
    Agency’s denial of reimbursement.
    The petitioner maintains that the guidance manual allows for
    reimbursement of concrete.
    (Tr. at 28,
    37.)
    When asked why the
    concrete was replaced the petitioner stated:
    A
    Because we had to have a concrete driveway back in
    there again.
    Q
    Did some Agency or body tell you you had to do that?
    A
    No, you just don’t run a gas station on gravel.
    Q
    Why
    is that?
    A
    For one thing
    I don’t think the tanks would hold up.
    Q
    The
    A
    I was under the assumption that we could replace it
    just right back the way it was.
    134—48
    3
    Thus, the petitioner is arguing that replacement of concrete was
    necessary for safety.
    When asked specifically if the guidance manual stated that
    pouring new concrete to replace the removed concrete was
    reimbursable, the petitioner replied:
    A
    The way I read it, read the manual,
    is when they say
    the concrete was covered as a structure, they said
    structures are covered for dismantling and mantling.
    Concrete is a structure.
    But
    I suppose I could have
    re-mantled the old concrete but it would have taken
    twice as much money.
    Q
    But,
    in fact,
    you destroyed the old concrete?
    A
    Right.
    Q
    It wouldn’t have been possible for you to reassemble
    it?
    A
    I suppose if you could have cut it in big squares,
    knowing the technicality,
    it would have cost a bundle.
    But
    I suppose it could have been done.
    Q
    It didn’t say repaving or pouring down new concrete was
    a reimbursable expense?
    A
    No.,
    it didn’t.
    The Agency maintains that the replacement of concrete is not
    corrective action and is therefore not reimbursable.
    The Agency
    through cross-examination distinguishes between replacement and
    reassembly.
    (Tr. at 28—29.)
    The Agency also points out that
    reimbursement was given for removal of the concrete.
    The guidance manual clearly allows for reimbursement for the
    dismantling and “reassembling of structures” and includes paving
    (concrete or asphalt) as a structure.
    There
    is no provision in
    the statute that deals with the replacement or reassembly of
    structures.
    InPiatolene and in Strube, .the Board found that the
    guidance manual was a rule which was not promulgated according to
    the Administrative Procedure Act
    (APA) and therefore the manual
    has no legal or regulatory effect in proceedings before the
    Board.
    Therefore,
    the Board cannot enforce the provisions of the
    guidance manual and determinations on reimbursement must be
    consistent with any applicable statutory or regulatory
    requirements.
    134—49
    4
    The statute limits reimbursement to costs of corrective
    action.
    (Section 22.18b(a).)
    The definition of corrective action
    consists of two inquiries:
    whether the costs are incurred as a
    result of an action to “stop minimize, eliminate,
    or clean up a
    release of petroleum”,
    and whether those costs are the result of
    such activities as tank removal, soil remediation and free
    product removal.
    (Ill. Rev.
    Stat.
    1989,
    ch.
    111 1/2,
    par.
    1022.18(e) (1) (C), see Enterprise Leasina Company v. IEPA (April
    9,
    1992),. PCB 91—174, ____PCB
    .)
    In applying this
    definition
    of
    corrective action to the replacement of concrete
    the Board has determined that the replacement of concrete under
    most circumstances does not constitute corrective action, because
    it is not an act to stop or minimize a release.
    (Platolene
    500,
    Inc.
    V.
    IEPA
    (May. 7,
    1992),
    PCB 92—9, _____PCB
    .)
    However,
    the Board does believe that under certain circumstances the
    replacement of concrete may be proven to be a corrective action.
    (Ibid. at
    6.)
    The particular facts surrounding the action and
    the purpose of the action will ultimately determine whether that
    action is a corrective action.
    (Ibid.
    at
    6..)
    The facts in this case do not support a finding that the
    replacement of concrete was a corrective action.
    In fact,
    Mr.
    Ayers testified that placing concrete over the new tanks was
    necessary for safety reasons, not to further remediate the
    leaking tanks.
    Thus,
    the replacement of the concrete was done as
    a part of improvements made after corrective action was complete.
    CONCLUSION
    The guidance manual has no legal force or effect because it
    was not promulgated according to the requirements of the APA.
    Corrective action is an action to stop, minimize, eliminate or
    clean up a release of petroleum.
    The petitioner has not shown
    that the replacement of concrete at the station was a corrective
    action.
    Therefore,
    the Board finds that the petitioner is not
    eligible for reimbursement of the cost of replacement of concrete
    pursuant to the statute.
    This opinion constitutes the Board’s finding of facts and
    conclusions of law in this matter..
    ORDER
    The Board affirms the Agency’s January 23,
    1992,
    determination that the petitioner,
    Warren’s Service, cost of
    replacement of concrete is not a reimbursable expense because the
    repaving did not constitute
    a corrective action.
    IT IS SO ORDERED.
    134—50
    5
    Section 41 of the Environmental Protection Act
    (Ill.Rev.Stat.
    1991,
    ch.
    111 1/2, par.
    1041)
    provides for the
    appeal of final orders of the Board within 35 days.
    The Rules of
    the Supreme Court of Illinois establish filing requirements..
    I, Dorothy Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certif
    that the above opinion and order was
    adopted on the
    _______
    day of
    _______________,
    1992, by a vote
    of
    7c~
    .
    (I
    ~
    ~Dorothy M. G)~hn, Clerk
    Illinois Pol4ution Control Board
    13 4—5
    1

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