ILLINOIS POLLUTION CONTROL BOARD
April 23,
1992
EXPORT PACKAGING CO.,
INC.,
)
)
Petitioner,
)
v.
)
PCB 91—203
(Underground Storage
ILLINOIS ENVIRONMENTAL
)
Tank Reimbursement)
PROTECTION AGENCY,
)
)
Respondent.
DAVE COOPMAN APPEARED PRO SE.
RONALD SCHALLAWITZ APPEARED ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE
BOARD
(by N. Nardulli):
This matter is before the Board on the October 28,
1991
petition for review filed by petitioner Export Packaging Co.,
Inc.
(Export).
Export seeks review pursuant to Section 22.18b(g)
of the Environmental Protection Act
(Act)
of the Illinois
Environmental Protection Agency’s (Agency) October
2,
1991
decision denying reimbursement from the Underground Storage Tank
Fund
(UST Fund)
for certain costs associated with leaking USTS.
A hearing was held on January 22,
1992 in Rock Island, Rock
Island County,
Illinois,
at which one member of the public
attended.
FACTS
Export packages service parts, production components and
agricultural machines for export.
(R.
A’ at 82-83.)
On August
7
and 8,
1990,
eight UST5 were removed from Export’s Moline,
Illinois facility in the presence of an employee of the Office of
State Fire Marshal
(Fire Marshal).
(R. A at 83.)
Three USTs
were located on one site and five USTs were located in another
site on the same parcel of property.
(R. A at 58;
R. B at 157.)
A release was discovered and proper notification was given to
the
Emergency Services and Disaster Agency
(now called the Emegency
Management Agency).
(R. A at 83.)
On October 11,
1990 all
remedial work required by the Agency was completed.
(R. A at
83.)
On November 23, 1990,
Export submitted its application for
reimbursement.
(R. A at 23—35.)
On January 24,
1991, the Agency
informed Export that corrective action associated with the five-
tank site was not eligible for reimbursement because none of
“R. A at
—
“
refers to Book A of the Agency record
and “R.
B. at
“
refers to Book B of the Agency
record.
133— 143
2
these tanks had been registered with the Fire Marshal.
(R. A at
88.)
However, corrective action associated with the three—tank
site was reimbursable subject to a $10,000 deductible.
(R. A at
88.)
On July 3,
1991,
the Agency requested more information
regarding the three—tank site.
•(R. A at 90-91.)
On July 30,
1991,
Export responded with information regarding the sizes of
the three—tank, and five-tank sites and costs associated with the
sites.
(R. A at 65-72.)
On October
2,
1991,
the Agency notified
Export that of the $46,693.91 claimed corrective action costs,
$28,101.34 would not be reimbursed because these costs were
associated with the five—tank excavation.
(R. A at 94-96.)
After applying the $10,000 deductible, the Agency issued
a
voucher for $8,592.57 to Export.
(R. A at 78, 94.)
On October 28,
1991, Export filed its petition for review
challenging the amount of reimbursed corrective action costs.
(R. A at 82—86.)
DISCUSSION
Section 22.18b(d) (4) (C) requires that the applicant seeking
reimbursement from the Fund shall provide an accounting of all
corrective action costs and demonstrate that the costs are
reasonable.
(Ill. Rev.
Stat.
1989,
ch.
111 1/2, par.
1022. l8b(d) (4) (C).)
Here, the question of which costs are
reimbursable stems from the fact that at the time excavation and
clean up were performed,
Export believed both the five-tank site
and three—tank site would be eligible for reimbursement.
Hence,
Export did not keep separate records of the corrective action
costs.
Export does not challenge the Agency’s determination that
the five-tank site is ineligible for reimbursement or the
application of the $10,000 deductible.
Export also agrees that
the corrective action costs of the two sites must be apportioned.
However,
in apportioning the costs, the parties have arrived at
different conclusions as to the amount to be reimbursed.
Export
contends that it is entitled to a reimbursement of $16,459
(R. A
at 116) compared to the $8,592.57 reimbursed by the Agency
(R. A
at 78,
94.)
Therefore, the sole issue on appeal is whether the
amount of corrective action costs reimbursed by the Agency is
correct.
The Agency’s final decision on Export’s claim for
reimbursement states that the following costs are ineligible:
1.
$26,551.34 for subcontractor costs associated with the
five tank excavation.
2.
$1,550.00 for personnel costs associated with the five
tank excavation.
(R. A at 96.)
133—144
3
The record establishes that Export does not challenge the
Agency’s determination that $1,550 for personnel costs are not
reimbursable.
(Tr.
53-55,
83-84,
115.)
The parties do not agree
on reimbursement of subcontractor costs for excavating, disposing
and backfilling the three-tank site.
The record establishes that the truck logs from River City
Excavating indicate that a total of 1,156 cubic yards of soil
were removed from both sites and that BFI’s logs indicate it
received a total of 1,156 cubic yards of soil for disposal.
(R.
A at 98—101,
104—106,
125; Tr.
26,
28,
73,
74,
102.)
The record
also establishes that the Jo-Harry Inc. backfilled 1,016 cubic
yards of sand for both sites.
(R. A at 108; Pet.
Ex.
1; Tr.
75)
Mr. Coopman, vice president of marketing at Export testified as
to how Export arrived at the amount of corrective action costs
associated with the three-tank site.
(Tr.
19—33.’)
In an attempt
to apportion the costs,
Export extrapolated from these total
amounts to arrive at the costs associated with the three-tank
site.
(Tr. 23-27;
102.)
Based upon the River City and BFI logs,
Export calculated that 712 cubic yards were removed from the
three-tank site.
(R. A at 116; Tr.
23-24.)
Extrapolating from
the total amount backfilled by Jo-Harry Inc.,
Export calculated
that, 516 cubic yards were backfilled into the three-tank site.
(R. A at 108,
116;
Tr. 24-25,
28.)
Coopman testified that “there
is a
problem, an obvious difference between the actual and the
calculated excavation sizes.”
(Tr.
33.)
Mr. Kyle Rominger, Agency LUST project manager, testified
that he performed a technical review of the bills submitted for
reimbursement by Export.
(Tr. 65.)
In attempting to apportion
costs between the two sites so that the five—tank site costs
could be deducted, Rominger saw a discrepancy in the total volume
hauled from both sites and the size of each site.
(Tr.
69.)
Based upon drawings submitted by Export, Rominger calculated the
size of each site.
(Tr. 71;
R. A at 117,
121—22.)
Rominger
calculated the size of the three-tank site to be. 786 cubic yards
and the five-tank site to be 1,061 cubic yards2.
(Tr. 75;
R. A
at 117.)
Rominger’s calculation of a total of 1,847 cubic yards
did not agree with the amount of 1,156 cubic yards hauled away by
river City and disposed by BFI, the 1,016 cubic yards filled by
Jo-Harry,
Inc.
(Tr. 75)
or the 2,062 total cubic yards calculated
by Export in its letter of July 30,
1991
(R. A at 65.).
Because
the cubic yard figures did not agree, Rominger determined the
eligible costs on the basis that three tanks out of eight were
2
The Agency admitted at hearing that it had mistakenly
calculated the size of the five—tank site to be 3,467
cubic yards
(R.
117,
122) when the correct calculation
is 1,061 cubic yards.
(Tr. 74—75.)
133— 145
4
eligible for reimbursement.3
(Tr. 79,
83.)
Consequently,
37.5
of the total costs attributed to River City, BFI and Jo—Harry
were deemed reimbursable by the Agency.
(Tr.
82,
84,
91;
R.
a at
80; Resp.
Ex.
1.)
Regarding the ALEX lab fees,
Roininger
determined that nine tests attributable to the three-tank site at
$120 each were reimbursable.
(Tr. 82, 85-86;
R. A at 80; Resp.
Ex.
1.)
Rominger also deducted $450 from the Alex fees because
that amount had already been included in the charge by BFI.
(Tr.
82, 85, 88.)
Export establishes that it expended $46,693 for
both sites.
(Tr. 89.)
After subtracting the amount of
$38,101.35 associated with the five—tank site
(R. A at 80; Resp.
Ex.
1)
and the $10,000 deductible,
the Agency determined that
Export should be reimbursed $8,592.57.
(Tr. 89;
R. A at 78,
94-
95.)
The Board concludes that Export failed to demonstrate that
tts accounting of costs associated with the three-tank site is
reasonable.
(Ill. Rev.
Stat.
1989,
ch.
111 1/2, par.
1022.18b(d)(4)(C).)
The Board’s review of the record establishes
that Export was unable to explain the inconsistencies which led
the Agency to apply a calculation method based upon the number of
reimbursable tanks over the total number of tanks.
The method of
apportioning costs employed by the Agency is reasonable
in light
of the inconsistencies in Export’s claim for reimbursement.
Therefore,
the Agency’s decision is affirmed.
This constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Agency’s decision reimbursing Export Packaging Co.,
Inc.
$8,592.67 for corrective action costs is affirmed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(Ill.
Rev.
Stat~1989,
ch.
111 1/2, par.
1041) provides for the appeal of
final Board orders within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
The Agency also considered apportioning costs on the
basis of tank volume so that 33.3
of the total costs
would be reimbursed.
(Tr. 91;R.
118.)
This method
was rejected in favor of reimbursing 37.5
of the total
costs.
(Tr. 91.)
133—146
5
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the~Z3A-.~
day of
~
,
1992 by a vote
of
7—0
.
Dorothy M.,79~unn, Cle~rk
Illinois ~91lution Control Board
133—147