ILLINOIS POLLUTION CONTROL BOARD
    January 9, 1992
    KRONON MOTORS SALES, INC.,
    )
    )
    Petitioner,
    )
    PCB 91—138
    v.
    )
    (Underground Storage Tank
    Reimbursement Determination)
    )
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ORDER OF THE BOARD (by R. C. Flemal):
    On November 25, 1991, the Illinois Environmental Protection
    Agency (“Agency”) filed a Motion for Summary Judgement. On
    December 10, 1991, the Board received a Cross—Motion for Summary
    Judgement filed by Kronon Motor Sales, Inc. (“Kronon”). The Agency
    filed a response to the cross motion which the Board received on
    December 20, 1991. On December 31, 1991, Kronon filed a “Reply to
    Respondent’s Objection to Cross—Motion for Summary Judgement”.
    Section 101.241(c) of the Board’s procedural rules provides that
    the moving person shall not have a right to reply except as
    permitted by the Board or the hearing officer to prevent material
    prejudice. Kronon has not sought leave of the Board to file its
    reply,’ therefore, the reply will not be considered. The sole issue
    before the Board in this appeal of the Agency’s determination for
    reimbursement is whether or not Kronon is eligible to receive
    reimbursement for costs for remedial action incurred prior to
    notification by Kronon of the Emergency Service and Disaster Agency
    (“ESDA”). Both parties seek summary judgement in their favor on
    that issue.
    The Board has recently held that costs which are incurred
    prior to ESDA notification are not reimbursable. (North Suburban
    Development Corporation v. IEPA, PCB 91-109, December 19, 1991).
    In North Suburban, the Board thoroughly discussed the arguments
    put forth by the parties regarding the interpretation of Section
    22.18b(d) (4) (D) of the Environmental Protection Act (“Act”) and of
    Section 731.150 of the Board’s rules. Kronon has not presented any
    new arguments regarding the interpretation of the Act and the
    Board’s rules. The only new argument presented by Kronon is the
    applicability of Section 731.150 to the facts surrounding Kronon’s
    removal of the tanks.
    Kronon maintains that Section 731.150 applies only to
    underground storage tank systems which are in operation and since
    Kronon’s tanks were not in operation, Section 731.161 should apply
    to Kronon. The Board finds this argument unpersuasive. As the
    Agency points out in its response, the express language of Section
    731.150 is applicable to “UST sites”. The Board is persuaded
    129—37
    2
    that the presence of underground storage tanks on property does
    constitute “UST sitels)”. Regardless of which notification
    requirement Kronon is subject to, costs incurred prior to
    notification of ESDA are not reimbursable. Therefore, the Board
    grants the Agency’s Motion for Summary Judgement and denies
    Kronon’s Cross—Motion for Summary Judgement. The Agency’s denial
    of reimbursement for costs incurred prior to ESDA notification is
    affirmed. This docket is hereby closed.
    IT IS SO ORDERED.
    J. Anderson and M. Nardulli dissented.
    Section 41 of the Environmental Protection Act, Ill. Rev.
    Stat. 1989, ch. ill 1/2 par. 1041, provides for appeal of final
    Orders of the Board within 35 days. The Rules of the Supreme Court
    of Illinois establish filing requirements.
    I, Dorothy N. Gunn, Clerk of the Illinois Pollution Qontrol
    Board, do hereby certi~ that the above Order was adopted op the
    ___________
    day of
    _____________,
    1992, by a vote of ~
    —2-
    ,
    Clerk
    lution Control Board
    129—38

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