2

the release. Finally, the Board questions whether Broderick is barred from reimbursement if it

did not perform early action within the 45-day timeframe. This last question cannot be resolved

on the record before the Board. Therefore, both motions for summary judgment are denied.

STANDARDS FOR REVIEW

Section 57.8(i) of the Environmental Protection Act (Act) grants an individual the right to

appeal an Agency determination to the Board pursuant to Section 40 of the Act. 415 ILCS

5/57.8(i) (1998). Section 40 of the Act is the general appeal section for permits and has been

used by the legislature as the basis for this type of appeal to the Board. Therefore, when

reviewing an Agency determination of ineligibility for reimbursement from the USTF, the Board

must decide whether or not the application, as submitted to the Agency, demonstrates compliance

with the Act and Board regulations. Kathe’s Auto Service Center v. IEPA

(August 1, 1996), PCB 96-102, slip op. at 27.

In this case, both parties have asked the Board to make that determination in the context

of their cross motions for summary judgement. Summary judgment is appropriate when the

pleadings and depositions, together with any affidavits and other items in the record, show that

there is no genuine issue of material fact and that the moving party is entitled to judgment as a

matter of law. See Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 693 N.E.2d 358 (1998). In

ruling on a motion for summary judgment, the Board “must consider the pleadings, depositions,

and affidavits strictly against the movant and in favor of the opposing party.” Dowd, 181 Ill. 2d

at 483, 693 N.E.2d at 370.

Summary judgment “is a drastic means of disposing of litigation,” and therefore it should

only be granted when the movant’s right to the relief “is clear and free from doubt.” Dowd, 181

Ill. 2d at 483, 693 N.E.2d at 370, citing Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871

(1986). However, a party opposing a motion for summary judgment may not rest on its

pleadings, but must “present a factual basis, which would arguably entitle [it] to a judgment.”

Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994).

Again, both parties have made motions for summary judgment. Both have argued that no

material issue of fact exists. Both have framed the same question of law and argued that its

outcome determines whether Broderick is entitled to reimbursement from the USTF.

FACTS

The following are the facts in the record before the Board as summarized in Broderick’s

corrected motion for summary judgment at pages 2-3. The Agency does not dispute these facts

on the record. Broderick contracted for the removal of two USTs located at its facility located in

Chicago, Illinois. On March 4, 1998, Broderick cored the floor and took a soil sample in

preparation for the work to occur at the facility. The soil sample had an oily odor. On that day,

Broderick placed a telephone notice of a suspected release to IEMA. Also on that day, Broderick

applied to the City of Chicago for a UST removal permit. The City of Chicago issued the permit

on March 11, 1998.

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3

On April 30, 1998, Broderick opened the floor of the facility, revealing three USTs.

2

Inspectors from the Department of Environment and Fire Department visually confirmed that a

significant release of product had occurred from each UST. Broderick informed the inspectors

that Broderick had previously informed IEMA of the suspected release. Broderick removed the

tanks on April 30, 1998, and began an initial response to mitigate the source of the release, and

any safety hazards or immediate threats to the environment. Broderick stockpiled the soils on

site, and removed 1,475 gallons of product/water. On May 7, 1998, Broderick removed an

additional 6,650 gallons of product/water and 600 cubic yards of contaminated soil.

On April 6, 2000, the Agency denied Broderick’s application for reimbursement for all

costs claimed for the following three reasons. None of the costs were eligible for reimbursement

because they: (1) exceeded the minimum requirements of the Act (415 ILCS 5/1

et seq.

(1998));

(2) were conducted after the 20 and 45-day reporting requirements of 35 Ill. Adm. Code

732.202(c), 732.202(e), 731.162(b) and 731.163(b); and (3) were not in an approved budget.

Stipulated Administrative Record at 3.

CONFIRMATION OF RELEASE

Both parties’ motions address the Agency’s second denial point. Broderick and the

Agency disagree about whether the activities performed by Broderick occurred within the

timeframe established in the Board’s regulations governing reimbursement. Section 732.202(g)

provides in pertinent part:

For purposes of reimbursement, the activities set forth in subsection (f) of this

Section shall be performed within 45 days after confirmation of a release, unless

special circumstances, approved by the Agency in writing, warrant continuing

such activities beyond 45 days. The owner or operator shall notify the Agency in

writing within 45 days after confirmation of a release of such circumstances.

Costs incurred beyond 45 days shall be eligible if the Agency determines that they

are consistent with early action

.

35 Ill. Adm. Code 732.202(g). (Emphasis

added.)

According to the parties the critical question of law is when was the release confirmed.

Each of the parties believes that once the confirmation date is determined, it will prevail.

Broderick claims that confirmation must be done by the City of Chicago inspectors and so the

confirmation date is the day they observed the tank removal

, i.e

., April 30, 1998. In its motion,

Broderick claims that a “release is confirmed based upon the visual observation of the

independent third party inspection . . . . coupled with reporting to IEMA . . . . Brod. mot. at 11.

3

Broderick premises its argument on that portion of Section 57.5(c) of the Act which

provides that the inspector from the OSFM or its designated agent, in this case the City of

2 The OSFM determined that the third UST was not eligible for reimbursement. Broderick’s

application does not include costs associated with the third UST.

3 Broderick’s motion will be referred to as “Brod. mot. at __.”

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4

Chicago, must be on site during tank removal, at which time, “the inspector shall, upon

preliminary excavation of the tank site, render an opinion as to whether a release of petroleum

has occurred . . . . ” 45 ILCS 5/57.5(c). Brod. mot. at 5. If Broderick is correct, it will have

performed its activities within 45 days of the confirmation date.

The Agency claims that the date Broderick first notified IEMA should be used as the date

confirmation of the release occurred, thus starting the clock for the 45-day requirement of the

Board’s rules. The Agency claims that this March 4, 1998 notification was when Broderick

confirmed the release, and began corrective action. Ag. mot. at 5.

4 The Agency expands on this

argument in its response to Broderick’s motion. The Agency claims that the Act places the

burden of confirming a release on the owner or operator of the UST system, and that this

requirement is triggered as early as when a suspected release is discovered. Ag. resp. at 4.

5 Like

Broderick, the Agency cites to Section 57.5(c) of the Act, but focuses on the remainder of that

Section, which provides:

The owner or operator shall determine whether or not a release has occurred in

conformance with the regulations adopted by the Board and the [OSFM] . . . . In the

event the owner or operator confirms the presence of a release of petroleum, the owner or

operator shall comply with Section 57.6 [Early Action]. 415 ILCS 5/57.5(c) (1998).

(Emphasis added.)

Thus, the first question is who must confirm the suspected release. The Board agrees

with the Agency that pursuant to Section 57.5(c) of the Act, the owner or operator has the

obligation to confirm the release in accordance with OSFM regulations. That entire section

describes the procedure that must be followed during a removal or abandonment of a UST

system, or other actions deemed appropriate by the OSFM. Relevant to the question of who must

confirm a release, the pertinent sentence in Section 57.5(c) is the sentence emphasized above.

Clearly this language is controlling. Broderick, as the owner or operator, has the burden of

confirming the release. Furthermore, according to Section 57.5(c) that confirmation is to be done

in accordance with the OSFM and Board regulations.

The next question of law (and that identified by the parties) is: what is the correct

confirmation date. Since confirmation must be done in conformance with the OSFM regulations,

we will examine the pertinent regulations of the OSFM, specifically Sections 170.560 and

170.580. Section 170.560 governs when an owner or operator must report to IEMA, and in part

states:

Owners or operators of UST systems shall report to [IEMA] within 24 hours and

follow the procedures in Section 170.580 for any of the following conditions:

a)

 

The discovery by owners, operators or others of released regulated

substances at the UST site or in the surrounding area (such as the

4 The Agency’s motion will be referred to as “Ag. mot. at __.”

5 The Agency’s response will be referred to as “Ag. resp. at. __.”

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5

presence of free product or vapors in soils, basements, sewer or utility

lines or nearby surface water). 41 Ill. Adm. Code 170.560. (Emphasis

added.)

On March 4, 1998, Broderick discovered such a release and reported the same to IEMA.

Section 170.580 establishes the procedures an owner or operator must utilize following a report

of such a release to IEMA as required by Section 170.560. Section 170.580 in pertinent part

states:

Unless corrective action is initiated in accordance with Sections 170.600 and

170.610, owners or operators shall investigate and

 

confirm all suspected releases

of regulated substances requiring reporting under Section 170.560 within seven

days . . . . 41 Ill. Adm. Code 170.580. (Emphasis added.)

Together these two OSFM regulations require that the owner or operator confirm the

suspected, reportable release no later than seven days after reporting it to IEMA. Broderick

claims that it “did not have the legal authority to remove the tank until it obtained a City of

Chicago permit and have the City of Chicago inspectors on site.” Brod. mot. at 8. While

accurate, this argument has no impact on Broderick’s ability to meet the release investigation and

confirmation requirements found at 41 Ill. Adm. Code 170.580. Nothing in those sections

requires that the tanks must be removed prior to the OSFM inspection, or even that additional

excavation activities must take place.

The Agency argues that the release confirmation date should be March 4, 1998. The

Board does not agree with the Agency that March 4, 1998, is the correct confirmation date.

Nothing in the Act or the Board regulations indicates that the date the release is suspected and

reported is the confirmation date. The OSFM regulation specifically states that confirmation

must occur within seven days after a reportable release is identified. This makes sense, since

confirming a suspect release is not necessarily instantaneous, but may take some minimal amount

of time. In fact, 24 hours is provided before a suspected release must be reported to IEMA. 41

Ill. Adm. Code 170.560.

In sum, both the Agency and Broderick overlooked the very specific OSFM requirement

that the suspected release be confirmed by the owner or operator within seven days of finding the

reportable release. Broderick first learned of the suspected release on March 4, 1998. Pursuant

to Section 170.560 of the OSFM’s regulations, Broderick was required to, and did, notify IEMA

within 24 hours of the suspected release. 41 Ill. Adm. Code 170.560. Broderick then had seven

days to investigate and confirm the release. 41 Ill. Adm. Code 170.580. According to OSFM

regulation, Broderick had until March 11, 1998, to confirm the release. Broderick failed to do

this. Alternately, Broderick could have initiated corrective action pursuant to Sections 170.600

and 170.610 of the OSFM’s regulations. Broderick did not take such initial response and

abatement measures until April 30, 1998. Brod. mot. at 8. Sections 732.202(f) and (g) of the

Board’s regulations provide that, for purposes of reimbursement, early action activities shall be

performed within 45 days after confirmation of a release. Forty-five (45) days after March 11,

1998, was April 25, 1998. Therefore, Broderick did not perform the activities described at

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6

Section 732.220(f) within 45 days after March, 11, 1998, the last day Broderick had to confirm

the reportable release.

MINIMUM REQUIREMENTS OF THE ACT

Finally, the last question of law is whether Broderick can be reimbursed for the actions

taken April 30, 1998, and over the next month even though Broderick did not act within the

45-day timeframe. Broderick touches upon this issue when it addresses the Agency’s first denial

point, arguing that its actions did satisfy the minimum requirements of the Act. The Agency did

not address this issue in either its motion or its response to Broderick’s motion for summary

judgment. The Agency relied upon the argument that the actions were not performed in the 45-

day timeframe, and therefore were not reimbursable.

The Agency’s denial stated that the costs in Broderick’s application exceeded the

minimum requirements of the Act

. Broderick argues that the actions it took at the site following

the inspection on April 30, 1998, were authorized by Section 57.6 of the Act, which states that

such actions may be taken “prior to submission of any plans to the Agency.”

415 ILCS 5/57.6(b) (1998). Section 57.6(b) of the Act states:

Notwithstanding any other corrective action taken, an owner or operator may, at a

minimum, and prior to submission of any plans to the Agency, remove the tank

system or abandon the [UST] system in place, in accordance with the regulations

promulgated by the [OSFM]. The owner or operator may also remove visibly

contaminated fill material and any groundwater in the excavation which exhibits a

sheen. 415 ILCS 5/57.6(b) (1998).

This language is also set out verbatim at the Early Action rule at Section 732.202(f) of the

Board’s regulations. In addition to this statutory language, the final sentence of Section

732.202(f) states:

Early action may also include disposal in accordance with applicable regulations or ex-

situ treatment of contaminated fill material in accordance with Section 57.7(a)(1)(B) of

the Act. 35 Ill. Adm. Code 732.202(f)

This sentence was added in:

In re

Regulation of Petroleum Leaking Underground Storage Tanks

(March 6, 1997), R97-10, as was all of Section 732.202(g), which is discussed below.

The Agency does not address specifically the impact of this statutory provision on this

case. Again, the Agency focuses on the timeframe for conducting early action found in Section

732.202(g). The Agency claims that reimbursement for Broderick’s actions is barred because

those actions were not taken within the 45-day timeframe after the release was confirmed.

Neither party focused on the final sentence of Section 732.202(g) that provides: “Costs incurred

beyond 45 days shall be eligible if the Agency determines that they are consistent with early

action.” 35 Ill. Adm. Code 732.202(g). This language was added in R97-10, to clarify how

reimbursement worked. During that rulemaking, an inquiry was made at that time whether this

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language meant that early action costs were not reimbursable even if the 45-day reports were not

submitted on time, and the actions not take during that timeframe.

At hearing, Douglas Clay of the Agency was questioned about the consequences if an

owner/operator fails to perform the required actions within the 20 or 45-day timeframe. In

particular, the Agency was asked if there could be no reimbursement for actions outside that

timeframe. The Agency responded that the fact that the owner or operator did not perform those

actions within those timeframes would threaten the ability for reimbursement. However, the

Agency added that even if the reports were submitted late (a violation of the regulations), the

actions could still be reimbursed under “early action,” but the Agency would need to look at that

issue on a case by case basis. R97-10 Tr. at 28-29.

6

A little later, the Agency was specifically asked whether there could be “tasks

appropriately characterized as early action performed 20 days after the release reported and there

is no agency approval of a time extension where the Agency would approve for reimbursement

for those tasks as early action.” The Agency answered “yes.” When asked what factors would be

involved in that decision, several examples were given. One justification acceptable to the

Agency was a problem scheduling contractors, and another was “fire marshal approval or having

the fire marshal coming out.” R97-10 Tr. at 30-31. When asked, the Agency agreed that its

decision to approve reimbursement under these various scenarios could be “characterized to

depend on whether the owner/operator is making a good faith attempt to remove the tank within

that timeframe, but has specific reasons where it could not be done.” R97-10 Tr. at 32.

This discussion about the meaning of Section 732.202(g) was very lengthy and detailed.

The Agency witness testified that actions taken outside of the 20 and 45-day timeframe could be

reimbursed as early action, and the Agency would do so on a case by case basis. This testimony

explains the impact of adding Section 732.202(g), and in particular the last sentence in that

Section. Some factors relevant to the Agency considering reimbursement for early action activity

performed outside the 45-day timeframe were identified, and appear to be on point in this case.

The Agency never qualified this testimony, and the Board did not address it or the specific

meaning of Section 732.202(g) in its adopting opinion. Therefore, the Board concludes that this

testimony supports the relevant language at Section 732.202(g) adopted in R97-10.

CONCLUSION

At this time, the Board will deny the parties’ motions for summary judgment. Summary

judgment is only to be granted if the movant’s right is clear and free from doubt. Neither party’s

right to summary judgment is free from doubt based upon the record before the Board. While the

parties have stipulated to the Administrative Record, facts remain outside of the record that are

necessary for the Board to determine whether Broderick intended its activities to be early actions,

and had justifiable reasons for not performing them in the 45-day timeframe. Furthermore,

neither party specifically addressed this question of law in its brief. Therefore, the Board denies

6 The November 18, 1996 transcript for

In re

Regulation of Petroleum Leaking Underground

Storage Tanks (March 6, 1997), R97-10, will be referred to as “R97-10 Tr. at ___.”

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both motions for summary judgment and instructs the hearing officer to schedule this matter for

hearing and briefing.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the

above order was adopted on the 7th of December 2000 by a vote of 7-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board