ILLINOIS POLLUTION CONTROL BOARD
    July 12, 2007
    VILLAGE OF WILMETTE,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 07-27
    (UST Appeal)
    DISSENTING OPINION (by T.E. Johnson):
    I respectfully dissent from the majority opinion, in which 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 the Village of Wilmette (Village). The majority
    opinion finds that the Agency properly rejected the Village’s request for a budget amendment
    concerning corrective action performed at the Village’s leaking underground storage tank (UST)
    site. The sole reason for the rejection is that the Village submitted its proposed budget
    amendment to the Agency after the Agency issued a No Further Remediation (NFR) letter for the
    site.
    The crux of both motions for summary judgment is the meaning of 35 Ill. Adm. Code
    732.405(d). The last sentence of Section 732.405(d) provides that a corrective action plan and
    budget must be submitted to the Agency prior to issuance of an NFR letter. This sentence,
    however, must be read in light of the overall purpose of the regulation. I believe that this
    regulation is intended to address only those situations when a UST owner or owner has
    proceeded with corrective action before submitting or receiving approval of any corrective action
    plan or budget. That is not the case here. The record is clear that the Village submitted and
    received approval of a corrective action plan and budget before beginning corrective action,
    making Section 732.405(d) inapplicable. Moreover, though the Village’s amended budget was
    submitted after the work was completed and the NFR letter was issued, the proposed budget
    amendment seeks reimbursement only for work previously approved by the Agency.
    Accordingly, I feel the proper course of action in this case is to grant the Village’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 the merits of the Village’s proposed budget
    amendment.
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    For these reasons, I respectfully dissent.
    __________________________________
    Thomas E. Johnson
    I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
    the above dissenting opinion was submitted on July 17, 2007.
    ___________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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