ILLINOIS POLLUTION CONTROL BOARD
    February 2, 2006
    FREEDOM OIL COMPANY,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 03-54
    PCB 03-56
    PCB 03-105
    PCB 03-179
    PCB 04-2
    (UST Appeal)
    (Consolidated)
    CONCURRING OPINION (by T.E. Johnson):
    I respectfully concur with the majority opinion. As was discussed in the majority
    opinion, the Board finds, in part, that Freedom Oil Company (Freedom Oil) failed to meet its
    burden of proof to avoid apportionment of the costs in its second and third reimbursement
    applications. Accordingly, the Board affirmed the Illinois Environmental Protection Agency
    (Agency) Agency’s second determination concerning cost apportionment, appealed in PCB 03-
    179, which apportioned $143,123.59 to ineligible tanks, as well as the Agency’s third
    determination concerning cost apportionment, appealed in PCB 04-2, which apportioned $22,189
    to ineligible tanks.
    In reaching this decision, the majority concludes that the primary question is “did
    Freedom Oil show by a preponderance of the evidence that of the costs
    actually incurred
    , none
    were incurred on any contamination from the ineligible tanks?” Freedom Oil Company v. IEPA,
    PCB 03-54, slip op. at 60 (Feb. 2, 2006). The majority reasons that it is not holding that in every
    instance a Underground Storage Tank owner or operator must prove that contamination from
    ineligible tanks did not contribute
    at all
    to cleanup costs, and that apportionment can be applied
    by the Agency only when the owner or operator
    does not attribute all
    costs.
    Id.
    I agree with the ultimate result on this issue. Freedom Oil failed to prove that it incurred
    no costs removing any soil impacted by the ineligible tanks at issue in the Agency’s second and
    third determination. Because the majority grants the Agency’s counter-motion for summary
    judgment, Freedom Oil is precluded from addressing this issue at hearing. However, as the
    Board has previously held, Freedom Oil is not precluded from submitting a new application to
    the Agency should additional evidence or new information become available regarding this
    issue.
    See
    Kean Oil Company v. IEPA
    , PCB 97-146, (May 1, 1997).
    2
    For these reasons, I respectfully concur.
    Thomas E. Johnson
    Board Member
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the above
    concurring opinion was submitted on February 7, 2006.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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