ILLINOIS POLLUTION CONTROL BOARD

PROCEDURAL BACKGROUND
STANDARD OF REVIEW FOR MOTIONS FOR SUMMARY JUDGMENT
FACTS
STATUTORY AND REGULATORY PROVISIONS
AGENCY’S MOTION FOR SUMMARY JUDGMENT
VILLAGE’S RESPONSE TO AGENCY’S MOTION FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT
AGENCY’S REPLY TO VILLAGE’S RESPONSE
DISCUSSION
CONCLUSION
ORDER

July 12, 2007

VILLAGE OF WILMETTE,

Petitioner,

ILLINOIS ENVIRONMENTAL

OPINION AND ORDER OF THE BOARD (by G.T. Girard):

In this appeal, the Village of Wilmette (Wilmette) challenges a decision by the Illinois

Environmental Protection Agency (Agency) rejecting a request for a budget amendment. The

budget amendment concerns corrective actions at Wilmette’s leaking underground storage tank

site at 710 Ridge Road in Cook County. The Agency denied the request on the grounds that the

previous issuance of a No Further Remediation (NFR) letter barred Agency consideration of the

request.

This matter is before the Board today on the parties’ cross-motions for summary

judgment. This opinion first reviews the procedural history and factual background of the case.

The opinion then discusses and rules on the cross-motions for summary judgment. For the

reasons discussed below, the Board finds that there are no genuine issues of material fact, and

that the Agency is entitled to summary judgment as a matter of law. The Board accordingly

grants summary judgment to the Agency, denies summary judgment to Wilmette, and closes this

docket.

PROCEDURAL BACKGROUND

On October 23, 2006, Wilmette filed with the Board a petition to review an Agency

decision in which the Agency rejected a High Priority Corrective Action Plan Budget

amendment. The Board accepted the petition on November 2, 2006.

On November 22, 2006, the Agency filed the administrative record (R.) along with a

motion for summary judgment (Mot.). On January 18, 2007, Wilmette filed a motion to

consolidate this proceeding with PCB 07-48. On March 15, 2007, the Board denied the motion

to consolidate.

On April 5, 2007, Wilmette filed a response to the Agency’s motion for summary

judgment and a cross motion for summary judgment (Resp.). On April 23, 2007, the Agency

filed a motion for leave to reply and a response to the cross motion (Reply). The Board grants

the motion for leave to file a reply.

STANDARD OF REVIEW FOR MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is appropriate when the pleadings, deposition, admissions on file, and

affidavits disclose that 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). 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.”

Id.

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

therefore it should be granted only when the movant's right to relief “is clear and free from

doubt.” Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483, 693 N.E. 2d 358, 370 (1998),

citing Purtill v. Hess, 111 Ill. 2d 299, 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 judgment.”

Gauthier v. Westfall, 266 Ill. App.

3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994).

Both the parties agree that the facts in this proceeding are not in dispute and summary

judgment is appropriate. Mot. at 2-3; Resp. at 3. The parties argue that the issues involve only

questions of law, specifically the applicability and interpretation of Section 732.405(d) of the

Board's rules (35 Ill. Adm. Code 732.405(d)). The Board has reviewed the filings and agrees

with the parties that there are no issues of material fact and summary judgment is appropriate.

FACTS

On October 24, 2005, the Agency issued a NFR letter to Wilmette for Incident No.

982714. R. at 27. Revised letters were issued on November 29, 2005 and June 16, 2006. R. at

47. Wilmette recorded the NFR letter on July 7, 2006. R. at 44.

On August 4, 2006, MACTEC Engineering and Consulting, Inc., on behalf of Wilmette,

submitted a High Priority Corrective Action Plan Budget amendment. R. at 6. The budget

amendment included an increase in personnel costs and handling charges.

On September 14, 2006, the Agency issued a determination letter rejecting the amended

budget. R. at 1. The denial letter states:

The budget is rejected for the reason listed below (Section 57.7(c) of the Act and

35 Ill. Adm. Code 732.405(c) and 732.503(b)).

The budget was submitted after the issuance of a No Further Remediation Letter.

Pursuant to Section 57.6(a) of the Act and 35 Ill. Adm. Code 732.405(d), any

corrective action plan or budget must be submitted to the Illinois EPA for review

and approval, rejection, or modification in accordance with the procedures

contained in Subpart E of 35 Ill. Adm. Code 732 prior to the issuance of a No

Further Remediation Letter. R. at 1.

STATUTORY AND REGULATORY PROVISIONS

Sections 57.7(c)(1)(B) and (c)(2)(B) of the Environmental Protection Act (Act), 415

ILCS 5/57.7 (2006), require that if “the owner or operator intends to seek payment from the

fund” a budget must be submitted which includes an accounting of all cost associated with the

implementation of the corrective action plan.

Section 57.7(e) of the Act, as amended by Public Acts 92-574, 92-651, and 92-735,

provides:

(1)

Notwithstanding the provisions of this Section, an owner or operator may

proceed to conduct physical soil classification, groundwater investigation,

site classification or other corrective action prior to the submittal or

approval of an otherwise required plan. If the owner or operator elects to

so proceed, an applicable plan shall be filed with the Agency at any time.

Such plan shall detail the steps taken to determine the type of corrective

action which was necessary at the site along with the corrective action

taken or to be taken, in addition to costs associated with activities to date

and anticipated costs.

(2)

Upon receipt of a plan submitted after activities have commenced at a site,

the Agency shall proceed to review in the same manner as required under

this Title. In the event the Agency disapproves all or part of the costs, the

owner or operator may appeal such decision to the Board. The owner or

operator shall not be eligible to be reimbursed for such disapproved costs

unless and until the Board determines that such costs were eligible for

payment. 415 ILCS 5/57.7(e) (2006).

Section 57.8 of the Act in pertinent part provides:

If an owner or operator is eligible to access the Underground Storage Tank Fund

pursuant to an Office of State Fire Marshal eligibility/deductible final

determination letter issued in accordance with Section 57. 9, the owner or

operator may submit a complete application for final or partial payment to the

Agency for activities taken in response to a confirmed release. An owner or

operator may submit a request for partial or final payment regarding a site no

more frequently than once every 90 days.

(a)

Payment after completion of corrective action measures. The owner or

operator may submit an application for payment for activities performed at

a site after completion of the requirements of Sections 57.6 and 57.7 or

after completion of any other required activities at the underground

storage tank site.

* * *

(5)

In the event that costs are or will be incurred in addition to those approved

by the Agency, or after payment, the owner or operator may submit

successive plans containing amended budgets. The requirements of

Section 57.7 shall apply to any amended plans. 415 ILCS 5/57.8 (2006)

Section 57.10(c)(1) of the Act provides:

(c)

The Agency's issuance of a no further remediation letter shall signify,

based on the certification of the Licensed Professional Engineer, that:

(1)

all statutory and regulatory corrective action requirements

applicable to the occurrence have been complied with. 415 ILCS

57.10(c)(1) (2006).

Section 732.405(d) of the Board's underground storage tank regulations, addressing

releases reported between September 23, 1994 and June 23, 2002, provides:

Notwithstanding subsections (a), (b), (e), and (f) of this Section and except

as provided at Section 732.407 of this Part, an owner or operator may

proceed to conduct Low Priority groundwater monitoring or High Priority

corrective action activities in accordance with this Subpart D prior to the

submittal or approval of an otherwise required groundwater monitoring

plan or budget plan or corrective action plan or budget plan. However,

any such plan and budget plan shall be submitted to the Agency for review

and approval, rejection, or modification in accordance with the procedures

contained in Subpart E of this Part prior to payment for any related costs

or the issuance of a No Further Remediation Letter.

BOARD NOTE: Owners or operators proceeding under subsection (d) of this

Section are advised that they may not be entitled to full payment from the Fund.

Furthermore, applications for payment must be submitted no later than one year

after the date the Agency issues a No Further Remediation Letter. See Subpart F

of this Part. 35 Ill. Adm. Code 732.405(d).

Section 732.405(e) provides:

If, following approval of any groundwater monitoring plan, corrective

action plan or associated budget plan, an owner or operator determines

that revised procedures or cost estimates are necessary in order to comply

with the minimum required activities for the site, the owner or operator

shall submit, as applicable, an amended groundwater monitoring plan,

corrective action plan or associated budget plan for review by the Agency.

The Agency shall review and approve, reject, or require modifications of

the amended plan or budget plan in accordance with the procedures

contained in Subpart E of this Part. 35 Ill. Adm. Code 732.405(e).

Section 732.702 sets forth the requirements for a No Further Remediation Letter and

provides:

A No Further Remediation Letter issued pursuant to this Part shall include all of the

following:

An acknowledgment that the requirements of the applicable report

were satisfied;

A description of the location of the affected property by adequate

legal description or by reference to a plat showing its boundaries,

or, for purposes of Section 732.703(d) of this Part, other means

sufficient to identify site location with particularity;

A statement that the remediation objectives were determined in

accordance with 35 Ill. Adm. Code 742, and the identification

of any land use limitation, as applicable, required by 35 Ill. Adm.

Code 742 as a condition of the remediation objectives;

A statement that the Agency's issuance of the No Further

Remediation Letter signifies that:

All corrective action requirements

under Title XVI of the

Act and this Part

applicable to the occurrence have been

complied with

;

All corrective action concerning the remediation of the

occurrence has been completed; and

No further corrective action concerning the occurrence is

necessary for the protection of human health, safety and the

environment

[415 ILCS 5/57.10(c)(1)-(3)], or, if the No

Further Remediation Letter is issued pursuant to Section

732.411(e) of this Part, that the owner or operator has

demonstrated to the Agency's satisfaction an inability to

obtain access to an off-site property despite best efforts and

therefore is not required to perform corrective action on the

off-site property in order to satisfy the corrective action

requirements of this Part, but is not relieved of

responsibility to clean up portions of the release that have

migrated off-site;

The prohibition under Section 732.703(e) of this Part against the

use of any site in a manner inconsistent with any applicable land

use limitation, without additional appropriate remedial activities;

A description of any approved preventive, engineering, and

institutional controls identified in the plan or report and

notification that failure to manage the controls in full compliance

with the terms of the plan or report may result in voidance of the

No Further Remediation Letter;

The recording obligations pursuant to Section 732.703 of this Part;

The opportunity to request a change in the recorded land use

pursuant to Section 732.703(e) of this Part;

Notification that further information regarding the site can be

obtained from the Agency through a request under the Freedom of

Information Act [5 ILCS 140]; and

Any other provisions agreed to by the Agency and the owner or

operator. 35 Ill. Adm. Code 732.702.

Section 734.335(d) of the Board's underground storage tank regulations, addressing

releases reported on or after June 24, 2002, provides:

Notwithstanding any requirement under this Part for the submission of a

corrective action plan or corrective action budget, except as provided at

Section 734.340 of this Part, an owner or operator may proceed to conduct

corrective action activities in accordance with this Subpart C prior to the

submittal or approval of an otherwise required corrective action plan or

budget. However, any such plan and budget must be submitted to the

Agency for review and approval, rejection, or modification in accordance

with the procedures contained in Subpart E of this Part prior to payment

for any related costs or the issuance of a No Further Remediation Letter.

BOARD NOTE: Owners or operators proceeding under subsection (d) of this

Section are advised that they may not be entitled to full payment from the Fund.

Furthermore, applications for payment must be submitted no later than one year

after the date the Agency issues a No Further Remediation Letter. See Subpart F

of this Part. 35 Ill. Adm. Code 734.335(d).

AGENCY’S MOTION FOR SUMMARY JUDGMENT

The Agency asserts that the question in this case is not one of fact but rather of law. Mot.

at 6. The Agency claims that the question is whether the Agency can consider a High Priority

Corrective Action Plan Budget amendment after the issuance of a NFR Letter.

. The Agency

emphasizes that Section 732.405(d) of the Board’s regulations, 35 Ill. Adm. Code 732.405(d),

clearly states that any such plan and budget plan shall be submitted to the Agency for review and

approval, rejection, or modification prior to the issuance of a NFR Letter.

. The Agency

issued Wilmette a NFR letter on October 24, 2005, and revised letters on November 29, 2005

and June 16, 2006.

. Wilmette recorded the NFR letter on July 7, 2006.

. The High Priority

Corrective Action Plan Budget amendment was submitted on August 4, 2006.

. The Agency

asserts that the amendment was submitted after the issuance of a NFR letter. Therefore, the

Agency maintains that the Agency is prohibited from reviewing the High Priority Corrective

Action Plan Budget amendment pursuant to Section 732.405(d) of the Board’s regulations.

VILLAGE’S RESPONSE TO AGENCY’S MOTION FOR SUMMARY JUDGMENT

AND CROSS-MOTION FOR SUMMARY JUDGMENT

The Village of Wilmette agrees that summary judgment is appropriate as there are no

issues of fact in this proceeding. Resp. at 3. Wilmette emphasizes that certain facts are missing

from the Agency’s brief which demonstrate that the legal basis provided by the Agency does not

support the denial of the budget amendment.

. Wilmette asserts that this particular case differs

from the previous cases of FedEx Ground Package System, Inc. v. IEPA, PCB 07-12 (Dec. 21,

2006), and Broadus Oil v. IEPA, PCB 04-31, 05-43 (consol.) (Dec. 21 2006), in that here

Wilmette’s final reimbursement request was less than the previously approved total budget.

Resp. at 3, citing R. at 6-8. Wilmette states the budget amendment was filed because the

amounts within the subcategories varied from the original budget amount. Resp. at 3. Wilmette

asserts that the budget amendment at issue in this case only sought to reallocate costs among

categories. Resp. at 4. Wilmette also states that it is undisputed that the budget amount was the

proper accounting of the previously approved total budget amount. Resp. at 3.

Wilmette claims that the Agency’s denial of the budget amendment and final request for

reimbursement is not supported by the language of 35 Ill. Adm. Code 732.405(d) or the Board’s

interpretation thereof. Resp. at 5. Wilmette states that, in the recently decided Broadus Oil and

FedEx cases, the Board ruled that subsection (d) “applies not only to those who proceed with no

approved plan or budget, but also to those who go beyond an approved plan or budget.” Resp. at

5, citing Slip. Op. at 10, Dec. 21, 2006. Wilmette asserts that it did not incur costs beyond the

approved budget, and that the Agency does not dispute this fact. Resp. at 5. Wilmette maintains

that the Board’s decisions in

Broadus Oil and FedEx held that subsection (d) applies to those

who go beyond an approved budget and does not apply to reallocations within subcategories of

an approved budget. Resp. at 5-6. Wilmette states that the budget amendment is simply

Wilmette properly accounting for the corrective action costs, and that it is within the Board’s

purview to find that a final budget request approximately $48,000 less than the previously

approved budget is reasonable as a matter of law. Resp. at 6.

Wilmette states that Section 732.405(d) is not a sufficient basis for the Agency’s denial

because, as a matter of law, it does not apply to the Village in this case. Resp. at 6. Wilmette

asserts that Section 732.405(d) applies “only to the right of owners/operators to proceed with

remediation prior to submittal or approval of a corrective action plan or budget.”

. Wilmette

claims that the Agency’s interpretation of Section 732.405(d) does not comport with the

regulatory and statutory scheme that this Board is bound to consider. Resp. at 7.

Wilmette claims that the Agency’s interpretation of the second sentence of subsection (d)

ignores the immediately preceding sentence of that subsection, ignores the entire section

immediately following subsection 734.335(e), and ignores certain provisions of Section 57.8 of

the Act. Resp. at 7. Wilmette states that, when interpreting a single sentence in a regulation, that

sentence must be read as part of the whole regulation and in light of its overall purpose. Resp. at

8, citing County of Dupage v. E & F Hauling, AC 88-76, 88-77 (consol.) (Feb. 8, 1990).

Wilmette argues that a reading of Section 734.335 shows that most subsections address situations

where the owner submits a Corrective Action Plan (CAP) and Budget to the Agency for approval

before conducting the corrective action. Resp. at 8. Wilmette asserts that subsection 734.335(d)

is the only subsection that applies where an owner has elected to proceed with corrective action

before submitting a CAP or budget, and that the subsection does not apply where an owner

submits its plan and budget for approval before doing the work.

. Wilmette states that

amended budgets are addressed in subsection 734.335(e) and that there is no reference to

amended budgets in the language of 734.335(d) at all.

Wilmette states that the Board should interpret Section 732.405(d) within the entirety of

that section, entitled “Plan Submittal and Review.” Wilmette notes that subsection (a) concerns

the requirement that remediation plans be submitted for Agency review prior to conducting any

remediation activities. Wilmette also notes that subsection (b) provides that if an owner/operator

intends to seek reimbursement for remediation, a budget plan shall also be submitted for the

remediation proposed. Wilmette states that subsection (c) confirms the Agency’s authority to

review, approve, reject or require modification of any plans submitted to it. Wilmette further

states that subsection (e) allows for submission of amended plans and budgets where an

owner/operator realizes that modifications of an approved plan or budget are necessary to

comply with the Act or this Board’s regulations. Finally, Wilmette states that subsection (f)

addresses the Agency’s authority to require revised corrective action plans in the event an

approved plan is not working as anticipated. Resp. at 8-9.

Wilmette argues that subsection (d) “concerns those instances where an owner/operator

submits no remediation plan or budget for approval prior to conducting remedial activities, and

the regulation allows the owner/operator to nevertheless proceed with that remediation.” Resp.

at 9. Wilmette believes the work can be completed without a remediation plan, but the plan must

be submitted “before reimbursement can be obtained for that work, and/or before a NFR letter is

issued as a result of that work.”

Wilmette asserts that nothing in the language of subsection (d) prohibits the Agency from

considering Wilmette’s budget amendment proposal. Wilmette states that nothing in subsections

(b) or (e) require that such amendments be requested prior to issuance of a NFR letter, and that

only subsection (d) has such a restriction. Resp. at 9. Wilmette believes that, where a site has

already received Agency review and scrutiny including both for corrective action and for budget,

Wilmette refers at times to Section 734.335 (35 Ill. Adm. Code 734.335), which is analogous to

Section 732.405 (35 Ill. Adm. Code 732.405). These references appear to be inadvertent error.

Part 734 addresses releases reported on or after June 24, 2002. Part 732 addresses releases

reported on or after September 23, 1994, but prior to June 24, 2002. It is apparent from the

record, including the Agency determination under appeal, that Section 732.405 is at issue here.

where the corrective action for which reimbursement is sought has been determined to have been

effective, no reason exists limiting budgetary amendments only to those requested prior to

issuance of the NFR letter. Resp. at 10.

Wilmette feels that the Agency lacks any statutory basis for its position. Resp. at 10.

Wilmette argues that subsection (e) allows an owner/operator to elect to proceed with any

corrective action prior to the submittal or approval of an otherwise required plan. Wilmette

states that if an owner/operator chooses to proceed, an applicable plan shall be filed with the

Agency at any time.

. Wilmette further argues that neither Section 57.8 of the Act (415 ILCS

5/57.8 (2006)), dealing with the Underground Storage Tank Fund, nor Section 57.9 of the Act

(415 ILCS 5/57.9 (2006)), dealing with eligibility for reimbursement from that fund, addresses

ineligibility based upon an amended budget being submitted to approve payment for admittedly

required corrective action subsequent to the issuance of the NFR letter. Resp. at 10-11.

Finally, Wilmette argues that the facts are undisputed and the Agency concedes that the

work for which the amended budget and reimbursement are sought were corrective action

activities eligible for reimbursement from the fund. Resp. at 11. Accordingly, Wilmette believes

summary judgment should be entered in its favor and that it is entitled to this Board’s judgment

as a matter of law.

AGENCY’S REPLY TO VILLAGE’S RESPONSE

The Agency reiterates that Section 732.405(d) prohibits it from reviewing a High Priority

Corrective Action Plan Budget amendment submitted after the issuance of a NFR letter. The

Agency states that the Board addressed this same issue on December 21, 2006, in the cases of

Broadus Oil and FedEx. The Agency contends that many of Wilmette’s arguments have already

been presented to the Board in these previous cases and that the Board’s decisions in those cases

outline and analyze the arguments, as well as the Agency’s arguments. The Agency therefore

asks that the Board take judicial notice of these arguments and its analyses in Broadus Oil and

FedEx and reach a similar conclusion in favor of the Agency in this case. Reply at 2.

The Agency claims Wilmette’s other argument (that even though the costs in the budget

amendment exceeded previously approved budget amounts in their subcategories, the budget

amendment did not exceed the previously approved total budget as a whole) is not persuasive.

Reply at 2. The Agency states that FedEx had a balance remaining in its approved total budget

when its budget amendment was submitted, but that this fact did not play a part in the Board’s

analysis in FedEx nor did it result in FedEx partially prevailing on its budget amendment.

The Agency also states Wilmette’s claim that the Agency does not dispute that the costs in

question were related to corrective action, properly accounted for, and reasonable is mere

conjecture since the Agency never completed a full review of the budget amendment.

. The

Agency argues that Wilmette’s total budget surplus argument disregards the importance of

budget subcategories, which the Agency states are critical for reviewing budgets and making

reasonableness determinations.

The Agency asks that the Board affirm its September 14, 2006 decision rejecting

Wilmette’s High Priority Corrective Action Plan Budget amendment and that Wilmette’s cross

motion for summary judgment be denied. Reply at 3.

DISCUSSION

The Board finds the parties have shown that there are no genuine issues of material fact

and that summary judgment is appropriate. Wilmette maintains that, as a matter of law, Section

732.405(d) “applies only to the right of owners/operators to proceed with remediation prior to

submittal or approval of a corrective action plan or budget.” Resp. at 6. Wilmette therefore

claims that Section 732.405(d) does not apply where an owner or operator submits a plan and

budget for approval before doing the work. After careful consideration of subsection (d) within

the full context of the UST rules, the Board disagrees.

The Board stated in Broadus Oil, “subsection (d) is not limited to sites where corrective

action is performed before any corrective action plan or budget is submitted or approved.”

Broadus Oil, PCB 04-31, 05-43 (consol.), slip. op. at 10. Rather, subsection (d) applies “where

any corrective action activities are performed or costs incurred for which there is no Agency pre-

approval.”

Id.

Section 732.405(d) applies:

to the extent that an owner or operator performs corrective action activities or

incurs corrective action costs for which there is no Agency pre-approval. That is,

subsection (d) applies to the extent that activities go beyond the scope of the

approved corrective action plan or that costs go beyond the approved corrective

action budget. FedEx, PCB 07-12, slip. op. at 18 (interpreting 35 Ill. Adm. Code

734.335(d), which is analogous to Section 732.405(d) but addresses releases

reported on or after June 24, 2002).

Wilmette’s argument that subsection (d) applies only where there was no approved plan

or budget is rejected. Such an argument ignores that subsection (d) begins with

“[n]otwithstanding subsection[] … (e).”

Broadus Oil, PCB 04-31, 05-43 (consol.), slip. op. at

10. Subsection (e) requires amendments to plans or budgets. Subsection (d) contemplates the

already-existing and approved plan or budget. In this case, Wilmette proceeded under subsection

(d) by incurring costs beyond the approved plan or budget without first getting the amended

budget approved by the Agency. For the budget amendment to be reviewed by the Agency, such

amendment must be submitted prior to the issuance of a NFR letter. The Board also stated in

Broadus Oil that the Board note under subsection (d), which provides that owners or operators

proceeding under subsection (d) may not be entitled to full payment from the Underground

Storage Tank Fund, applies “not only to those who proceed with no approved plan or budget, but

also to those who go beyond an approved plan or budget.”

Id.

The Board stated in Broadus Oil:

In relation to the UST rules, subsection (d) is an exception to the general rule that

plans and budgets must be submitted to the Agency prior to performing the work.

Subsection (e) clearly requires amendments to remediation plans or budgets. That

is why it is necessary for subsection (d) to specify that any such ‘after-the-fact’

plan or budget or amended plan or budget, must be submitted before the NFR

letter issues. Broadus Oil, PCB 04-31, 05-43 (consol.), slip. op. at 10.

In addition, the second sentence of subsection (d) is not a “stand-alone” ban on all post-

NFR plan or budget submittals. Broadus Oil, PCB 04-31, 05-43 (consol.), slip. op. at 10. There

is no need for such a broad ban because normally remediation plans and budgets are submitted

before corrective action commences.

Wilmette also argues that the language in FedEx and Broadus Oil held that subsection (d)

applies to those who go beyond an approved budget, and does not apply to reallocations within

subcategories of an approved budget. Resp. at 5-6. After careful consideration of subsection (d)

and the previous cases, the Board disagrees. The Board stated in Broadus Oil that subsection (d)

applies “to the extent any corrective action activities are performed or costs are incurred for

which there is no Agency pre-approval,

i.e.

to the extent the activities or costs go beyond the

approved corrective action plan or budget.” Broadus Oil, PCB 04-31, 05-43 (consol.), slip. op. at

10. The changes within the budget amendment subcategories go beyond the previously approved

budget amounts within those subcategories and are therefore costs incurred without Agency pre-

approval. Accordingly, the Board finds Wilmette’s argument unpersuasive.

The Board finds that the Agency properly rejected Wilmette’s request for a budget

amendment concerning corrective action at Wilmette’s site because the budget amendment was

received after a NFR letter was issued for the site. The Board grants the Agency’s motion for

summary judgment.

CONCLUSION

The Board finds that summary judgment is appropriate in this case as there are no issues

of material fact and the Agency is entitled to judgment as a matter of law. The Board grants the

Agency’s motion for summary judgment and rejects Wilmette’s cross-motion for summary

judgment. The Board finds that the Agency properly rejected the amended budget pursuant to

Section 732.405(d) of the Board’s regulations.

This opinion constitutes the Board’s findings of fact and conclusions of law.

ORDER

The Board grants the Agency’s motion for summary judgment and denies Wilmette’s

motion for summary judgment. This docket is closed.

IT IS SO ORDERED.

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2006);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board's procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above opinion and order on July 12, 2007, by a vote of 3-1.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board