ILLINOIS POLLUTION CONTROL BOARD
December 16, 1999
TED HARRISON OIL COMPANY,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 99-127
(UST - Appeal)
ORDER OF THE BOARD (by G.T. Girard):
On October 15, 1999, Ted Harrison Oil Company (Harrison Oil or petitioner) filed a motion
for summary judgment (Mot.) on Harrison Oil’s petition for review of an Illinois Environmental
Protection Agency (Agency) denial of reimbursement for costs associated with the removal of an
underground storage tank. On November 15, 1999, the Agency filed a response (Res.). After
reviewing the arguments presented, the Board denies the motion for summary judgment for the reasons
enunciated below.
DISCUSSION
Summary judgment is appropriate when the pleadings, depositions, admissions on file, and
affidavits disclose there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483, 693 N.E.2d 358,
370 (1998). When 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.”
Id
. Summary
judgment “is a drastic means of disposing of litigation,” therefore it should be granted only when the
movant’s right to the relief “is clear and free from doubt.”
Id
., 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 (2d Dist. 1994).
Harrison Oil argues that it is entitled to summary judgment for five reasons. First, Harrison Oil
maintains that the decision by the Agency is contrary to the Board’s prior decision in Owens Oil
Company v. IEPA (December 18, 1997), PCB 98-32 (Owens Oil). Second, Harrison Oil asserts that
the costs submitted for the work done by Harrison Environmental Solutions are reasonable. Third,
Harrison Oil argues that the Agency’s decision violates the Administrative Procedure Act (5 ILCS
1001-1
et. seq
(1998)) and fourth, Harrison Oil maintains that the Agency decision violates Section
57.8 of the Environmental Protection Act (Act) (415 ILCS 5/57.8 (1998)) and 35 Ill. Adm. Code
732.602(e). Finally, Harrison Oil asserts that the costs submitted for a 24-hour turnaround time for
2
laboratory analysis is reasonable. We will address each of these arguments in turn along with the
Agency’s response.
Owens Oil
Harrison Oil argues that the Agency’s decision denying reimbursement of $33,250.07 in
handling charges to be paid to Harrison Environmental Solutions is contrary to the Board’s prior
decision in Owens Oil
1
. Harrison Oil asserts that on three prior occasions Harrison Oil had filed for
reimbursement of handling charges and the Agency had reimbursed the petitioner, with slight
adjustments. Mot. at 4. Harrison Oil maintains that the Agency’s prior practice of reimbursing
petitioner is like the situation in Owens Oil and the Board should reverse the Agency’s decision.
The Board finds that the facts surrounding Harrison Oil’s requests for reimbursement are
distinguishable from the facts of Owens Oil Therefore, the Board finds that Owens Oil does not apply
to this case.
Reasonableness of Costs
The second and fifth arguments made by Harrison Oil are similar and we will address them
together. Harrison Oil argues that the costs submitted for services performed by Harrison
Environmental Solutions were reasonable and the Agency’s denial of reimbursement should be
reversed. Mot. at 5-6. Harrison Oil also argues that the cost for the 24 hour laboratory analysis
turnaround is reasonable. In response to these assertions, the Agency articulates several points in the
record that the Agency asserts demonstrate that Harrison Oil has not demonstrated the reasonableness
of the costs. Res. at 7-8. Specifically, the Agency maintains that the handling charges are excessive
and the labor costs are not justified. The Agency also maintains there is no justification in the record for
a 24-hour turnaround.
The Board finds that the petitioner is not entitled to summary judgment on the issue of
reasonableness of costs. The reasonableness of the costs involves a factual determination and issues still
exist regarding the reasonableness of the costs. Therefore, summary judgment is denied on these issues.
Administrative Procedure Act and Section 57.8 of the Act
1
In Owens Oil, the petitioner had contracted with a consulting firm to remediate a contaminated site and
the firm constructed a groundwater treatment plant. The groundwater treatment plant was leased to the
petitioner at a rate of $3,500 per month. In 1996, the petitioner filed three requests for reimbursement,
all of which included the $3,500 per month cost for treatment, and the Agency fully reimbursed the
petitioner. In May 1997, the petitioner filed a request for reimbursement and the Agency failed to
reimburse the full amount of the lease because the petitioner failed to demonstrate the $3,500 per month
was reasonable. The Board reversed the Agency’s decision finding that the Agency had acted
arbitrarily by refusing to reimburse the full lease amount.
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Harrison Oil also argues that the Agency’s decision violates the Administrative Procedure Act.
Harrison Oil argues that, under the Administrative Procedure Act, “any statement of general applicability
implement [sic], applying, interpreting or prescribing law or policy by the Agency, be promulgated as a
rule.” Mot. at 8. Harrison Oil asserts that the Agency’s denial of reimbursement because the charges
were “billing owner for owner’s work” is such a statement of general applicability so as to require
Agency promulgation of a rule. The Agency denies that this is such a statement of general applicability.
Owners will be reimbursed for work performed so long as the statutory requirements for reimbursement
are met, according to the Agency. The Board is not persuaded by this argument and summary
judgment is denied.
Finally, Harrison Oil argues that the Agency’s denial letter fails to meet the requirements of
Section 57.8 of the Act and 35 Ill. Adm. Code 732.602(e). The Agency points out that this matter
involves a release that occurred prior to September 13, 1993, the effective date of Title XVI of the Act
and the petitioner did not “opt into” Title XVI of the Act as allowed by Section 57.13(b). Therefore,
the Agency argues that Section 57.8 of the Act and 35 Ill. Adm. Code 732.602(e) do not apply to
petitioner. The Board agrees with the Agency. The tanks were removed on June 25 and 26, 1992,
(R0681) and the release was reported prior to the adoption of Title XVI. Petitioner did not choose to
proceed under Title XVI of the Act. Therefore, Section 57.8 of the Act and 35 Ill. Adm. Code
732.602(e) are not applicable to this appeal.
CONCLUSION
The Board finds that Owens Oil is not controlling based on the facts of this case and, therefore,
summary judgment is not appropriate on that ground. The Board also finds that the Agency’s decision
does not violate the Administrative Procedure Act or Section 57.8 of the Act. Finally, the Board finds
that there are genuine issues of material fact concerning the reasonableness of costs associated with
services provided by Harrison Environmental Solutions and the 24-hour laboratory analysis turnaround.
Therefore, summary judgment is denied and this matter is directed to hearing.
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 16th day of December 1999, by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
