ILLINOIS POLLUTION CONTROL BOARD
September 17,
1992
CITY OF ROODHOUSE,
)
)
Petitioner,
v.
)
PCB 92-31
)
(Underground Storage Tank
ILLINOIS ENVIRONMENTAL
)
Fund Reimbursement)
PROTECTION AGENCY,
)
)
Respondent.
DISSENTING OPINION
(by B. Forcade):
I respectfully dissent from today’s decision.
First,
I believe the majority has seriously mischaracterized
the Agency’s position.
The majority opinion states:
First, the Agency’s reasons for denial in
paragraphs #5 and 7 were identical,
i.e.
t)he
associated costs
were not corrective
action
costs.
In its testimony and brief,
although
phrased
differently
at
various
times,
the
Agency
appears
to
be
arguing
that
its
consideration of efficient and effective use
of the Fund is an acceptable basis for denial
of reimbursement as unreasonable,
and,
thus,
costs
not
involved
directly
in
remediation
activities are not corrective action costs if
the sufficiency of the Fund is at risk.
There
appear
to
be
two
thrusts
to
the
Agency’s
argument: that it may limit what is corrective
action
if the sufficiency
of the Fund is
at
risk
and
that
it
may
determine
when
the
sufficiency of the Fund is at risk.
(Opinion,
pg. 15).
I believe the majority has focused on several sentences in the
Agency Brief and concluded,
incorrectly, that those sentences
represent the primary basis for the Agency decision.
I reach a
different conclusion.
The Agency compiled a record on appeal which consists of
almost 850 pages.
That record contains a significant amount of
Agency scrutiny and review of the costs.
Nowhere in that record
does the Agency even remotely suggest that the costs are being
O~36-OO149
2
denied because of insufficiency of the fund.
Further, the Agency
denial letter of January 21,
1992 lists five matters being
denied.
For each contested denial the reason was either that the
charges were not corrective action costs,
or that the costs were
not reasonable.
The denial letter contains no reference to
sufficiency of the fund or cost—effectiveness.
The majority has
repeatedly
held ~thatthe~-Agency-cannot~
raise ~on
appeat~areason
for
denial
that
it
failed
to
cite
in
its
denial
letter.
Reichhold
Chemicals
In.,
v
IEPA
(September
17,
1992),
PCB
92—98;
Pulitzer
Community Newspapers.
Inc.
v.
IEPA
(December
20,
1990),
PCB
90—142; and Galesburg Cottage Hospital v.
IEPA (August 13,
1992), PCB 92-62.
(see also Clinton County Oil
Co.
V.
IEPA
(March 26,
1992), PCB 91—163; Burwell Oil Services.
Inc.
v. IEPA
(July 9,
1992), PCB 92—42.)
The Agency testimony at hearing contains only a single
reference to cost-effectiveness and contains no reference to the
sufficiency of the fund.
Mr. Douglas Oakley made one statement
when asked about overnight mail express charges
(Tr. 86):
Q:
Could you explain how you generated that figure?
A:
Mr.
Oakley
Normally the Agency does not pay for overnight
express charges unless it’s as a result of lab samples taken
from the actual contamination site.
Q:
What’s the reason for that?
A:
Mr.
Oakley
Reason being cost effectiveness.
Q:
Okay. Now turning your attention to the next paragraph...
The transcript contains no other reference to cost—effectiveness
or the sufficiency of the fund or similar matters.
On this sole
matter which contains testimony of cost—effectiveness, the
majority affirms the Agency.
At hearing,
Mr. Oakley did indicate why he determined
certain costs were not reasonable
(Tr. 99—100):
Q:
(Hearing Officer Rich
What objective criteria did you use
to determine whether costs.
.
.were reasonable?
A:
(Mr. Oakley
We have certain in—house material that we have
gathered over the course of two years and audited hundreds
of reimbursements.
We determine reasonable costs based on
these particular lists.
Q:
Hearing
Officer Rich
So it’s comparisons to other similar
type of job sites?
A:
Mr.
Oakley) That’s correct.
0136-0050
3
I find this to be a perfectly appropriate method to use, and
conclude that the record,
denial letter, and testimony provide no
basis for concluding the Agency decision was premised upon
preserving the sufficiency of the fund.
The Agency final brief does contain several statements that
~
~èsoüo~~thé
Agency to closely scrutinize requests for reimbursement, and that
the fund must be preserved in order to be used for true
corrective action purposes.
The Agency never states in its brief
that any particular cost was disallowed because the fund was low
on cash.
The penultimate sentence in the brief states the
rationale for the Agency decision:
The Agency’s decision was based on its experience with
other LUST cleanups within Illinois and the corrective
action costs associated with those cleanups.
I find no error in that rationale.
The petitioner has not raised any argument that the Agency
decided this case based upon the sufficiency of the fund.
In
fact, the petitioner agrees that requests for reimbursement must
be “closely scrutinized.”
On a second matter
I also disagree with the majority.
The
majority finds the legal costs, travel expenses, and costs for
attending City Council meetings to be reimbursable.
I would not.
The Act does not provide for repayment of all costs
associated with a leak from a UST.
The Act is not a “make the
claimant whole” type of legislation.
The Act provides that only
corrective action costs be reimbursed, and that only reasonable
costs be reimbursed.
I find the Agency’s approach to placing
limits on such claims acceptable.
Section 22.18(e) (1) (C)
of the Act provides:
“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, groundwater remediation and
monitoring,
exposure assessments, the temporary or
permanent relocation of residents and the provision of
alternate water supplies...Corrective action does not
include legal defense costs.
Legal defense costs
include legal costs for seeking payment under Section
22. 18b.
0136-0051
4
The reasonableness clause,
found at Section 22.18b(d) (4) (C)
states that claims may be paid,
provided:
The owner or operator provided an accounting of all costs,
demonstrated the costs to be reasonable and provided either
proof of payment of such costs or demonstrated the financial
iiéè~dfo~joint
payment
to
the
owner
or
operator
and
the
owner’s or operator’s contractor in order to pay such costs;
There is an obvious logical connection between
“reasonableness” and “corrective action” when attempting to
evaluate reimbursement claims.
Take, for example, the $13.90
charge for motel movies discussed in the Agency Brief at p.
6 and
the Petitioner’s Response Brief at p.
2.
What legal theory would
disallow these costs?
Travel expenses
(including motel charges)
are routinely allowed, therefore the movie charges could be
disallowed as an unreasonable charge in an otherwise valid
reimbursement category.
Alternatively, such costs could be
denied under the theory that watching movies in a motel room is
not corrective action because it is not an “action to stop,
minimize, eliminate or clean up a release of petroleum.”
The record also contains expenses listed for “Elk’s Dues” at
$60.00
(Record 000593).
The record does not explain whether
these were reimbursed or not.
If these charges are not
reimbursable is it because they are unreasonable or not
corrective action?
The record also contains claims for hundreds of phone calls
(See Rec.
00178—00193 for example).
In any list that long,
the
Agency is unlikely to be able to distinguish those calls which
were unreasonable
(too frequent, too long, etc.)
from those which
were not corrective action (not associated with this clean—up
effort).
It seems to me the only viable method of cost
containment is .to say some category of expense is excessive
compared to what would be anticipated for this type of clean-up
and therefore the costs are denied as unreasonable and/or not
corrective action.
I would also deny the claim for legal
fees.
The General
Assembly has provided a definition of corrective action, and
provided
specific
examples
of
what
is
included
and
what
is
excluded.
However,
the
Act
does
not
include
and
exclude
by
example
all
possible
costs.
Some
statutory
interpretation
is
required
to
determine
whether
a
specific
cost
is
covered,
or
not.
To
me,
the
definition
and
listing
of
included
costs
all
reflect
specific physical action words.
The specific costs excluded
include
legal
defense
costs,
a
more
ephemeral
activity
not
similar to moving dirt or removing tanks.
I believe the General Assembly intended that corrective
action would be closely associated with physical activity to
0136-0052
5
clean up the site, not the more indirect activity of planning,
administrative paper moving, conferences and coordination.
I
would draw the definition of corrective action far closer to the
specific physical actions than does the majority opinion.
The
rationale for my interpretation was cogently expressed by Mr.
~
ineurred priortc
turning one shovel full of dirt”.
(Tr. 102).
Today the CERCLA
hazardous waste clean—up fund is beset by criticism for spending
lots of money for very little clean-up.
I do not want our UST
fund to suffer the same fate.
That is not to say that in any manner I think the
contractors are overcharging the client municipality or that such
costs are not necessary expenses for the overall clean up effort.
I just do not believe they are reimbursable corrective action
costs.
It is important to remember that the money in the UST fund
is taxpayers’ money.
It is derived from a gasoline tax pursuant
to Ill. Rev. Stat.
1991,
ch.
120 par.
428a.
I am reluctant to
give away taxpayers’ money except where it clearly falls within
statutory mandates.
Here,
I do not believe it does.
Accordingly,
I dissent.
I,
Dorothy
N.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board, herçb
certify that~t
above dissenting opinion was filed
on the
‘
day of
A/
4J
,
1992.
Do1’othy
Mj~(mn~
Clerk
Illinois
lution
Control
Board
Board
Member
0136-0063