ILLINOIS POLLUTION CONTROL BOARD
    December 21, 2006
    FEDEX GROUND PACKAGE SYSTEM,
    INC.,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 07-12
    (UST Appeal)
    DISSENTING OPINION (by T.E. Johnson):
    I respectfully dissent with the majority opinion. In the majority opinion, the Board grants
    the motion for summary judgment filed by the Illinois Environmental Protection Agency
    (Agency), and denies the cross-motion for summary judgment filed by Fedex Ground Package
    System, Inc. (Fedex), finding that the Agency properly rejected requests for budget amendments
    regarding corrective action at Fedex’s site because the Agency received the budget amendment
    after it issued an No Further Remediation (NFR) letter for the site.
    The crux of both motions for summary judgment is the meaning of 35 Ill. Adm. Code
    734.335. Section 734.335(d) provides that a corrective action budget must be submitted to the
    Agency prior to the issuance of a NFR letter. However, this sentence must be read in light of he
    overall purpose of the regulation. I feel that this regulation is intended to address cases in which
    the owner has proceeded with corrective action before submitting a corrective action plan or
    budget. In this case, the record is clear that the respondent first submitted the corrective action
    plan and the budget, and received approval from the Agency before beginning corrective action.
    The amended budget was submitted after the issuance of the NFR letter, but seeks
    reimbursement only for any work specifically identified and approved by the Agency in the
    corrective action plan and the original budget – both filed before corrective action commenced
    and well before the issuance of the NFR letter. Thus, the respondent has followed the
    requirements of Section 734.335 and the Agency should consider the amended budget.
    Accordingly, I feel the proper course of action in this case is to grant FedEx’s motion for
    summary judgment and deny the motion filed by the Agency. This matter should be remanded
    to the Agency with instructions to consider whether the proposed budget amendment covers the
    actual costs of implementing the corrective action plan previously approved by Agency.
    For these reasons, I respectfully dissent.
    2
    Thomas E. Johnson
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the above
    dissenting opinion was submitted on January 8, 2007.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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