ILLINOIS POLLUTION CONTROL BOAR!)
February 25,
1993
RUSSELL L. BACON,
Petitioner
v.
)
PCB 92—111
(UST Fund)
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF
THE
BOARD
(by J. Anderson):
On January 22,
1993, the Illinois Environmental Protection
Agency
(Agency) filed a Motion for Reconsideration of one aspect
of the Board’s opinion and order of December 17,
1992.
On
February 3,
1993, Russell
L. Bacon
(Bacon)
filed a response in
opposition.
The Board grants the motion for reconsideration and affirms
its December 17 opinion and Order.
The Agency requests the Board to reconsider its decision
“that the Agency has no authority to require a Professional
Engineers Certification Form in making its LUST Fund
reimbursement determinations and affirm the Agency’s authority to
require a Professional Engineers Certification Form.” (Agency
motion at 7.)
The Agency attached to its motion a copy of its form titled:
“LUST REIMBURSEMENT FUND”, and subtitled:
“PROFESSIONAL ENGINEER
CERTIFICATION FORM 11 (USE FOR $150,000
CORRECTIVE ACTIONS WHERE
NO APPROVED IEPA WOR1~PLAN)”.
(Agency motion, Exh. A.)
As this
form has not before been placed in the record, the Board will not
consider it as
evidence now.2
The Agency does not request reconsideration of the
Board’s reversal of the two other Agency determinations regarding
the “constructive knowledge” deductibility issue and the related
issue of “proof of payment”.
2
We note, however, that the certification form’s limited
applicability,
as stated in the form’s subtitle, does not serve
to support the Agency’s blanket assertions.
We also note that
the Agency’s application for reimbursement, which is part of the
record, raises a further question regarding the use of the
certification form:
applicants whose costs,
like Bacon’s, are not
greater than $50,000, are not to answer the question in the
application regarding whether they developed a corrective action
U139-05 13
2
In its motion, the Agency does not cite to any case law, nor
does it challenge any of the facts
in the record or specific
aspects of the Board’s reasoning contained in its December 17,
1992 opinion.
Nor does the Agency refer to its prior citations
in its response brief to the Environmental Protection Act
(Act)
or Board regulations.
(Agency Resp.
Br., November 16,
1992.)
Instead the Agency essentially presents another entirely new
argument and generally attempts to buttress that argument with
assertions of necessary reliance and the common good.
The Agency recognizes that the Act
(Act) does not contain
language specifically allowing the Agency to require a
professional engineers certification form.
The Agency argues,
however, that a reasonable interpretation of the Act and relevant
regulations in conjunction with the engineers’ seal requirements
in the Professional Engineering Practice Act of 1989
(Ill. Rev.
Stat.,
1991,
ch.
111, par. 5201 et seq.) provides the statutory
authority to require the certification form.
In support, the
Agency states:
If professional engineers are required, through the
inclusion of their seal on technical submissions, to prepare
documents with a reasonable amount of professional skill and
judgment, the Agency should have the authority to request
this type of information when a professional engineer
submits a technical submission.
(Agency motion at 4.)
The Agency argues that it performs a vital function in
administering the LUST cleanups in terms of use of public funds
and protection of the “health and welfare of the people of the
State of Illinois and the environment”.
(Agency motion at 4.)
The Agency then argues that the payments from “Illinois
Taxpayers” into the Fund are far less than the amounts of
reimbursement requested, so it must insure that the amounts are
wisely and efficiently used.
The Agency then claims that it does
not factor the amount of money available in its reimbursement
decisions, but does factor in the activities for which the money
is used.
(Agency motion at
4,
5.)
Thus, the Agency argues,
it must get all the information it
can get; however,
in that it does not have the technical
oversight resources,
it must rely on the professional expertise
of others, particularly professional engineers hired by the
owners/operators,
for such oversight.
The Agency then asserts:
Therefore, the Agency requires that SKS Bacon’s
professional engineering
firm
certify to the Agency that
plan or whether the Agency approved it.
(R.
65.)
We also again
note that the application for reimbursement nowhere mentions the
engineer’s certification form at issue here.
0139-05114
3
the work completed and the resulting costs for which
reimbursement is requested be an a~pro~riate
use of the
Fund.. and a wise use of taxpayer dollars.
The form that
this final certification takes is a Professional Engineers
Certification Form.3 (Agency motion at 6.) EmDhasis added.
The Agency acknowledges that Mr. Winkel of SKS, not being a
registered professional engineer, did not place a seal on the
documents he signed and submitted to the Agency.
The Agency
asserts, though, that it relied on SKS, and therefore it was SKS
that was required to certify.
(Agency motion at 6.)
The Agency
concluded:
The exercise of the authority to require a professional
engineers certification form is for the common good of all
citizens of Illinois, not only the taxpayers but every
citizen who benefit
(sic)
from a
(sic)
the wise use of
taxpayer dollars to protect human health and welfare and the
environment.
(Agency motion at 6.)
At the outset, the Board rejects the Agency’s bald
“piggyback” assertion that the “seal” requirements in the
Professional Engineering Practice Act somehow devolves upon the
Agency the authority under the Environmental Protection Act to
deny reimbursement for failure to submit the Agency’s
certification form.
Rather than pointing to any statutory
language in either Act
(or anywhere else for that matter) to
support its asserted connection, the Agency argues that it should
have such authority because such reliance is necessary and is for
the common good.
The Agency’s arguments simply gloss over what is in the
record in this case.
This record gives little support for the
level or nature of reliance upon the engineer’s certification
form that the Agency claims.
The record suggests an “after the
fact” requirement by the Agency.
There was certainly no Agency
reliance as regards its eligibility determination.
The record is
silent or at best unclear as to the circumstances that require
the use of the certification form and as to what the person’s
certification means.
The Agency now weaves a new argument that
further confuses the issue.
The Agency now expects the engineer
to certify that the work performed and costs incurred are an
“appropriate use of the Fund” and “wise use of taxpayer dollars”,
and gives the following rationalization.
The Board notes that the form contains no such
language.
We also note that the form relies on hearsay
information from other persons not even required to be under the
engineer’s supervision or control.
0139-0515
4
The Agency first uses a “common good” claim that, because
the Fund is underfunded, this factor enhances its duty to insure
wise and efficient use of the Fund.
The Agency then argues in
sequence that its enhanced duty:
1) affects the Agency’s
reimbursement decisions regarding the activities for which the
money is being used;
2)
leads to a special need for more
information about those activities than its technical resources
can gather; then 3)
leads to its need to rely on outside
engineers,
and thence to reliance upon the engineer’s
certification form to assure appropriate and wise use of the
taxpayer’s dollars.
At its inception,
the Agency’s argument is without
foundation.
The Act gives the Agency no authority to allow any
aspect of its review of eligibility or cost reimbursement
determinations to be influenced by the underfunded status of the
Fund.
The Board has already held that the express provisions
in
the Act concerning how to handle insufficient funds do not
provide for Agency withholding of approval of the claim for this
reason.
City of Roodhouse v. IEPA (September 17,
1992), PCB 92-
31.
The Agency is attempting to accomplish, by indirection here,
the same thing, but now “for the common good”——-the statute
notwithstanding.
The Board rejects as unacceptable the Agency’s arguments
that, no matter how couched, boil
down
to an assertion that the
level of the Agency’s duty to ensure wise and efficient use of
the Fund for the common good rises and falls in inverse relation
to whether there is a deficit or surplus in the Fund.
Basically, the issue before the Board is not on the merits
of whether the Agency should require the applicant to submit a
certification form.
The issue before the Board is whether there
is authority in the Act or Board rules for the Agency’s denial of
reimbursement because of Mr. Bacon’s failure to have completed an
IEPA Professional Engineer Certification Form.
(Board opinion,
December 17,
1992 at 18.)
After having carefully reviewed the
issue,
including the listings in the Act regarding the showings
the owner/operator must make---first for eligibility and then for
payment of claims—-as well the federally-derived Board
regulations, and the testimony and evidence in the record, the
Board found that the Agency did not have authority to deny
reimbursent to Mr. Bacon.
The Agency’s arguments fail to refute
the Board’s reasoning, which we will not repeat here.
Upon reconsideration, the Board affirms its December 17,
1992 opinion and order.
IT IS SO ORDERED.
0139-0516
5
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board
hereby certify~thatthe above order was adopted on .the
_______
day of
________________,
1993, by a vote of
~
~).
~Dorothy
M..fqunn, Clerk
Illinois ~9Uution
Control Board
0139-0517