ILLINOIS POLLUTION CONTROL BOARD
December 1,
1994
CITY OF
WHEATON,
)
Petitioner,
v.
)
PCB 94-18
)
(UST Fund)
OFFICE OF THE ILLINOIS STATE
)
FIRE MARSHAL,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by C.A. Manning):
This matter is before the Illinois Pollution Control Board
(“Board”)
on a petition for review filed by the City of Wheaton
(“Wheaton” or “City”) on January 7, 1994.
Wheaton is appealing
the Office of State Fire Marshal’s
(OSFM)
final deductibility
determination regarding the City’s ability to access the
underground storage tank (“UST”) fund rendered on December 6,
1993.
The final determination letter issued by the OSFM found
that of two UST5 owned by the City, one was ineligible to access
the fund altogether and the second was eligible but would be
subject to a $100,000 deductible because none of the USTS on the
site were registered prior to July 28,
1989.
(415 ILCS
5/57.9(b)(1993).)
The petition solely challenges the OSFN’s
application of the $100,000 deductible.
No hearing in this matter has been held.
According to the
status reports submitted by the respondent,
in both April and
May, the parties have been pursuing settlement of this case and
have been negotiating a stipulation toward that end.
On June 22,
1994,
the
OSFM,
by and through its counsel, the Office of the
Attorney General,
filed a motion for summary judgment.
The City
of Wheaton did not file a response.
On September
1,
1994, the
Board entered an opinion and order granting the OSFN’s motion for
summary judgment finding that the OSFM’s application of the
$100,000 deductible was proper.
Thereafter on October
4,
1994,
the City of Wheaton, alleging that it never received service of
the motion for summary judgment, filed a Motion to Vacate the
Opinion and Order of the Board,
and a Memorandum in Response to
the Office of the Illinois State Fire Marshal’s Motion for
Summary Judgment.
The OSFM has not filed a responsive filing.
We hereby vacate our opinion and order entered on September
1,
1994, and allow the City of Wheaton’s response to the OSFN’s
motion for summary judgment.
However, for the reasons stated
below, we grant the motion for summary judgment.
2
FACTUAL BACKGROUND
The City of Wheaton is the owner/operator of two underground
storage tanks which, prior to their removal, were located at the
Wheaton Police Department Headquarters on 119 N. Wheaton Aye,
Wheaton, Illinois,
in DuPage County.
(R. at 1,
3 and Pet. at 1.)
Though the petitioner is not challenging the OSFN’s final
decision that Tank #1
is ineligible to access the UST Fund,
registration information about this tank is relevant to our
review of whether the OSFM applied the correct deductible to Tank
#2.
Tank #1 was registered on March 14,
1986 when the City
submitted the federally-required “Notification for Underground
Storage Tanks” form to the OSFM.
Though the notification form
listed the status of the tank as a 2,000 gallon gasoline tank,
“permanently out of service” and last used in January of 1978,
the City did not indicate that the tank had been removed from the
ground.
The second tank,
Tank #2, was registered on March 15,
1991
as a 1,000 gallon diesel tank that was “currently in use.”
In
order to register the tank,
the City paid a $100 registration fee
and a $500 late registration fee.
(R. at 3-6,
and 10)
Simultaneously,
the City also submitted a tank removal permit
application for Tank #2, which the OSFM granted on March 26,
1991.
When Wheaton pulled Tank #2 on August 12,
1991, the City’s
tank removal contractor verified the tank was not 1,000 gallons,
but was instead a 2500-gallon tank.
(R. at 11.)
The contractor
sent this new information to the OSFN who amended the permit to
show the new capacity size
(Tank #2).
(R. at 9 and 13.)
For reasons not provided in the record,
on November 12,
1993, the City of Wheaton re-submitted a third “Notification for
Underground Storage Tanks” form.
Again,
the City of Wheaton
changed Tank #2’s capacity size,
from 2,500 to 3,000 gallons,
and also clearly indicated for the first time that Tank #1 had
been removed from the ground on June
1,
1982.’
(R.
at 18-19)
Upon receipt of this third UST notification form, the OSFM
issued an administrative order on November 22,
1993 changing the
registration status of Tank #1.
The order read as follows:
A review of our records indicates that the following
underground storage tank(s)
is not or is no longer
1Our copy of the l4arch,1991 UST notification form contained in the record
of appeal,
shows in the column concerning “Additional
information
(for tanks
permanently taken out of service)
“,
that the City marked the appropriate box
to indicate that Tank #1 was filled with inert material and also,
in barely
legible handwriting, written above the box are the words,
“tank removed.”
The
petitioner’s copy shows that under the box, the words,
“pulled 1982.”
are
written in.
3
registrable because:
Tank #1
(2,000 gallon gasoline)
was removed prior to September 24,
1987.
On its face, the OSFI4 administrative order also provided that it
was appealable within 10 days and that a failure to appeal would
result in forfeiture of the right to appeal.
The record before
US
does not show that the City of Wheaton appealed the OSFM’s
November 22,
1993
administrative order.
On November 12,
1993,
the City also submitted an application
to the OSFM in order to determine eligibility to access the UST
Fund and the applicable deductible.
In
the past, the Agency made
the eligibility and deductibility determination; however, on
September 13,
1993,
Illinois’ new LUST law became effective
(415
ILCS 5/57 et sea) and the OSFM had become the governmental entity
now responsible for such determinations.
On December
6,
1993,
the
OSFM
made a final determination that with regard to Tank #1,
the City was ineligible to access the UST Fund because the tank
had been removed prior to September 24,
1987 and with regard to
Tank #2, the City was eligible to seek reimbursement for
corrective action, but only for costs in excess of a deductible
of $100,000.
The letter does not state why $100,000
is the
applicable deductible rather than the other statutory available
deductibles of $10,000,
$15,000, or $50,000.
The final
determination also notified the City of Wheaton that the OSFM’s
decision was appealable to the Board.
(R. at 23—25.)
As stated above, the instant appeal was filed on January
7,
1994.
The petition for review seeks review of the $100,000
deductible decision on the basis that several errors were made by
the City in relaying information about its UST5,
but ultimately
the City should be entitled to only the $15,000 deductible.2
While asking the Board to review the OSFN’s application of the
$100,000 deductible, Wheaton explains that the City originally,
incorrectly registered Tank #1
-
the 2,000 gasoline tank.
The
City intended to register the diesel tank in 1986 and not the
gasoline tank,
and the diesel tank had been in the ground and was
still currently in use.
The City claims to have acted in good
faith, albeit in error.
(Pet.
1-3.)
Thus the City of Wheaton is
asking that we ultimately determine whether the OSFM made the
correct decision when it issued the administrative order on
November 22,
1993 taking Tank #1 out of registration.
2The petition for review originally Bought the application of a $10,000
deductible.
However, after having its counsel review the matter, the City
clarified that the amount of the deductible should be $15,000.
(ResponBe at
3.)
4
MOTION FOR
SUMMARY
JUDGMENT
The OSFN contends it is entitled to summary judgment in this
matter because none of the tanks located on the City of Wheaton’s
Police Station Headquarters were ever properly registered prior
to July 28,
1989, and as such the $100,000 deductible is the
appropriate deductible under Section 57.9(b) (1)
of the Act.
This
subsection provides:
b.
An owner or operator may access the
Underground Storage Tank Fund for costs
associated with an Agency approved plan and
the Agency shall approve the payment of costs
associated with corrective action after the
application of a $10,000 deductible,
except
in the following situations:
1.
A deductible of $100,000 shall apply
when none of the underground storage
tanks were registered prior to July 28,
1989
*
*
*
In support, the OSFN argues that Tank #2’s registration does
not satisfy Section 57.9(b) (1) because it was clearly not
registered until March of 1991.
(Motion at 6.)
The OSFN further
argues that even though Tank #1 was registered from 1986 to 1993,
its registration was based upon mistaken information regarding
the tank’s status and therefore it was never properly registered.
The OSFM registered this tank relying upon the certification of
the City of Wheaton that Tank #1 was “permanently out of use”,
but still in the ground when petitioner submitted the federally-
required “Underground Storage Tank Notification” form in March of
1986.
Not until the City filed its second and third UST
notification forms did the OSFN learn the true status of Tank #1,
i.e.,
that it had been removed prior to September 24,
1987 and
was therefore not registrable under the law.
The OSFM cites to
the Gasoline Storage Act which provides that tanks pulled prior
to September 24,
1987 are not registrable:
The owner of an underground storage tank that was not
taken out of operation before January 2,
1974, and that
at any time between January
1,
1974 and September 24.
1987, contained petroleum or petroleum products or
hazardous substances, with the exception of hazardous
wastes,
shall register the tank with Office of the
State Fire Marshal.
No underground storage tank taken
out of operation before January 2,
1974, may be
registered under this Act.
No underground storage tank
otherwise required to be reaistered under this
subparagraph
(a) may be registered under this Act if
that tank was removed before SeDtember 24,
1987.
5
(P.A.
87—1088,
eff.
Sept.
15,
1992 amending ch.
127 1/2,
Ill.
Rev.
Stat. par.
154,
sec. 4(b)(1)(A).
This section is now cited
as 415 ILCS 15/4(b)(1)(A).
Emphasis added by the Board.)
Moreover, the OSFM argues that because petitioner is
actually seeking review of the OSFM’s November 22,
1993
administrative order taking Tank #1 out of registration, rather
than the OSFM’s final deductibility determination, the Board has
no jurisdiction to review this matter.
The OSFM argues that no
where in the Gasoline Storage Act, which sets out the
registration requirements, does it state that decisions of the
OSFM are appealable to the Board.
(Motion at 7.)
The OSFM also
cites several cases decided by the Board prior to the passage of
the new LUST Law for the proposition that the Board itself
recognizes that OSFN registration decisions are not reviewable to
the Board.
~
citing, Divane Bros. Electric Co.
v. Illinois
~,
PCB 93—105
(November 4,
1993) and Village of Lincolnwood v.
IEPA,
PCB 91-83
(June
4,
1992).)
Further, the OSFN argues that
the City of Wheaton had a right to appeal the administrative
order to circuit court and it failed to do so, rendering the
decision final and binding, and not now subject to review.
In its response to the motion for summary judgment, the City
of Wheaton essentially argues that once the registration for Tank
#1 was submitted to the OSFM, the OSFM had no statutory authority
to reject or otherwise alter that registration.
The City argues
that Section 15/4(b) (1) (A)
of the Gasoline Storage Act does not
grant the OSFM any authority to grant, deny or change
registration: “the simple act of filing the registration under
the specific language of the statute constitutes a legally valid
registration.” (Response at 5.)
As a creature of statute, the
OSFM is without the statutory authority to reject the City’s
registration of Tank #1, and the Board should find the City’s
registration in conformance with the Gasoline Storage Act.
DECISION
The OSFM issued its administrative order on November 22,
1993.
In critical part, the OSFN found Tank #1 “is not or is no
longer registrable because:
Tank #1
(2,000 gallon gasoline) was
removed prior to September 24,
1987.”
The OSFM informed the City
of Wheaton at that time that the administrative order must be
appealed within ten days or the right to appeal would be
forfeited.
The City did not appeal the order.
In our opinion,
it therefore constitutes a final and binding administrative
decision.
We must,
therefore, accept the final unappealed
decision of the OSFN that Tank #1 is no longer registrable
pursuant to the Gasoline Storage Act.
Since registration is a
condition precedent to determining eligibility and the
appropriate deductible,
the $100,000 deductible is proper.
Since
the City did not appeal the OSFN registration determination,
it
6
has waived any right it may have had otherwise.
We therefore
reach no other issue.
(~gLindsay Klein v. OSFM (August 11,
1994), PCB 93-255 and Christ EpiscoDal Church v. OSFM (December
1,
1994),
PCB 94—192.)
Accordingly, as no material issues of fact remain in this
matter, we therefore grant the respondent’s motion for summary
judgment and affirm the decision of the OSFN applying a $100,000
deductible to the City of Wheaton’s eligibility to access the UST
Fund.
The OSFM decision is affirmed and this docket is closed.
This opinion and order constitutes the Board’s finding of
fact and conclusions of law in this matter.
ORDER
The Board hereby grants the OSFM’s motion for summary
judgment and affirms the OSFM’s December 6,
1993 determination
that the City of Wheaton may access the UST Fund subject to a
$100, 000
deductible.
IT IS SO ORDERED.
Board Member J.
Yi
abstained.
Section 41 of the Environment Protection Act
(415 ILCS 5/41
(1992)
provides for the appeal of final Board orders within 35
days of the date of service of this order.
The Rules of the
Supreme Court of Illinois establish filing requirements.
I, Dorothy N. Gunn, Clerk of the Pollution Control Board,
hereby certify th~tthe above opinion and order was açlopted on
the 1~~’dayof
~
,
1994,
by
a vote of
~.
~.
Dorothy M.7iGunn, Clerk
Illinois E~llutionControl Board