ILLINOIS POLLUTION CONTROL BOARD
November
4,
1993
DIVANE
BROS.
ELECTRIC
CO.,
)
)
Petitioner,
)
v.
)
PCB 93—105
(UST Fund)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION AND
ORDER
OF THE BOARD
(by R. C. Flemal):
This matter comes before the Board on a second motion for
summary judgment filed October
4,
1993 by the Illinois
Environmental Protection Agency
(Agency) and a cross—motion for
summary judgment filed October 12,
1993 by Divane Bros. Electric
Co.
(Divane).
Divane filed its response to the Agency’s motion
with its cross motion and attaches and incorporates the arguments
made in its prior July 23,
1993 motion for summary judgment and
August 12,
1993 reply.
The Agency filed its response to the
Divane’s cross—motion on October 19,
1993.
For the reasons stated below, the Board grants the Agency’s
second motion for summary judgment and denies Divane’s cross—
motion for summary judgment, and dismisses this appeal.
This action pertains solely to the issue of eligibility to
access the Underground Storage Tank Fund (Fund)
for one.8,000
gallon heating oil tank serving other than residential units for
consumptive use on the premises.
The record indicates that on
March 25,
1986 Divane completed Agency form 7530-1, Notification
For Underground Storage Tanks.
(Rec.
103—105.)
On June 6,
1990
a permit for removal of petitioner’s UST was issued by OSFM.
(Rec.
32.)
On June 28,
1990 Divane removed the tank and took
other corrective action.
(Rec.
33;
105—106.)
Divane’s petition for review before this Board indicates
that on March 13, 1992 Divane filed its application for
reimbursement for corrective action costs with the Agency1.
(Pet. at 1—2.)
The record indicates that on July 17,
1992 the
Agency received Divane’s application for reimbursement.
(Rec.
70-76.)
The application was amended on January
13,
1993 to,
inter alia, amend the tank removal date from August 24, 1990 to
1
The petition for reimbursement, though dated March 13,
1992, was mailed by Divane’s attorney on July 14,
1992.
2
June 28,
1990.
(Rec.
105—106.)
On August 19,
1992 the Agency
notified Divane through correspondence that it had received
Divane’s application, but had ceased reviewing it due to the
Office of the State Fire Marshal
(OSFM)
needing additional
information regarding Divane’s UST.
(Rec. 88-89.)
On January
20,
1993 the OSFM received an incomplete Removal Notice from
Divane, which was returned to Divane on March 3,
1993 as needing
a required signature.
(Rec.
100.)
On March
4,
1993 the Agency
received an intra—agency communication from the OSFM that listed
Divane’~tank as registered on March 25, 1986 with all fees paid
but listing a Removal Notice as still needed by the OSFM.
(Rec.
82.)
On March 15,
1993 the Agency again notified Divane through
correspondence that its review of Divane’s UST had ceased due to
an indication from the OSFM that the registration of Divane’s UST
was incomplete and that review would be resumed upon notification
of registration completion from OSFM.
(Rec.
107.)
On March 23,
1993 the OSFM received a completed Removal
Notice from Divane.
(Rec.
101.)
On April
12,
1993 the Agency
received a revised intra—agency communication from the OSFM
listing Divane’s tank as exempt from registration.
(~.)
On
April 19,
1993 the Agency denied eligibility because it believes
the tank does not meet the requirements of Section 22.18(b) (a) (4)
as follows:
a.
An owner or operator is eligible to receive
money from the Underground Storage
Tank
Fund
for costs of corrective action or
indemnification only if all of the following
requirements are satisfied:
*
*
*
4.
The owner or operator has
registered the tank in accordance
with Section 4 of the Gasoline
Storage Act and paid into the
Underground Storage Tank Fund all
fees required for the tank in
accordance with Sections
4 and 5 of
that Act and regulations adopted by
the (OSFM.
The Agency stated in its denial letter that “t)he
(OSFM
lists
Divane’s)
tank as being ‘exempt’ from registration due to
the
date this tank was removed (6/28/90)”.
(Denial Letter at 2; Rec.
108.)
In a “Reimbursement Application Review Memo” dated April
8,
1993, Karl Kaiser of the Agency indicated that
information)
was requested from OSFM on July
28,
1992.
August
5,
1992 the Agency received
information
from OSFM and generated a OSFM deficiency
3
letter requesting submission of a removal notice.
At
this time OSFM listed the tank as registered and fees
paid.
Upon receipt of their removal notice OSFM
changed their registration status to “exempt.”
It is
my understanding that this is due to the date the tank
was removed.
Based on the most current OSFM
registration status received
April
2,
1993
Divane)
would be ineligible to seek reimbursement.
(Rec.
79;
See also K. Kaiser affidavit, Exh. A to the Agency’s
second motion.)
Divane filed this appeal of the Agency’s determination of
ineligibility for reimbursement from the Fund on May 24,
1993.
On. August 26, 1993 the Board denied previous summary
judgment motions and cross motions filed by the parties, finding
that genuine issues of material fact existed.
The order stated:
The pleadings indicate that it is a disputed fact that
OSFM has decided to consider the tank “exempt”, and has
reported this to the Agency.
Page 101 of the Agency
record, cited by the Agency in support of its position
that the tank is exempt,
is a form sent to the Agency
by OSFM.
Page 101 indicates that the tank is exempt
from registration and that the tank is not registered.
The form is dated in three places, bearing an original
date of July 28,
1992, and two revised dates, March 3,
1993 and March 31, 1993.
These revised dates bear the
signature of what appears to be “Jim Boone”, near each
date.
This form at page 101 appears to be an altered
version of the form at page 82.
Page 82,
cited by
Divane in support of its contentions, does not contain
the March 31,
1993 date and signature.
Page 82 also
shows the tanks were registered on March 25,
1986 and
that fees were paid.
Neither form contains any alleged
reason OSFN found the tank exempt, contrary to
the
Agency’s denial letter which states that OSFM “lists
this tank as being ‘exempt’ from registration due to
the date this tank was removed.”
(Denial letter at 2.)
Due to these factual discrepancies contained in the record
which have not been clarified by the parties in their
filings and supported by affidavit, the Board denies the
motion and cross—motion for summary judgment as genuine
issues of material fact remain.
Should this matter proceed
to hearing the Board orders the parties to address whether
OSFM in fact registered this tank, and whether the tank
registration was in effect at the time the application was
filed.
The parties shall also address whether the tank
registration was ever revised or revoked by OSFM.
(Divane
v. IEPA,
at 2.)
4
The Agency, as in its previous motion for summary judgment,
argues that Djvane was unable to satisfy Section 22.18b(a)(4) of
the Act (quoted above) and is ineligible to access the Fund.
In
support of its contentions the Agency also cites Villaae of
Lincolnwood
V
IEPA
(June 4,
1992), PCB 91-83, 134 PCB 33; and
City of Lake Forest v. IEPA (June 23,
1992), PCB 92—36, 134 PCB
337.
In answer to the Board’s prior inquiries, the Agency in its
second motion for summary judgment points to segments of the
record that precede the March 31,
1993 determination of OSFM that
the tanks were “exempt” and presents affidavits of
OSFM
and
Agency personnel in an attempt to clarify the discrepancies cited
by the Board in its August 1993 order.
The affidavit of Jim
Boone, OSFM indicates:
Any prior determination or indication that the tank at
Divane’s)
site was registered is incorrect and or was
based upon incomplete information provided to the OSFM.
*
*
*
This same registration information is still
accurate as of the date of this affidavit.
(dated
September 30,
1993
(Exh.
B to the Agency’s second
motion.)
-
In its response, Divane contests the Agency’s allegations
that its tank was not registered with OSFM,
and further relies
upon its arguments made in its prior motion for summary
judgment2.
Divane relies primarily upon Rockford Drop Forge V.
~
(1991), 221 Ill.App.3d 505,
582 N.E.
2d 253 and argues that
the law to be applied is that which is in effect at the time the
application was filed.
For purposes of eligibility for
reimbursement from the Fund,
Divane argues, the law in effect at
the time the application was filed indicates that an underground
storage tank shall include a heating oil underground tank and
that “heating oil underground tank”
is defined as a
tank
“serving
other than farms or residential units that is used exclusively to
store heating oil for consumptive use on the premises where
stored”.
(Public Act 86-1050, effective July 11,
1990; Section
22.18(e) (1) (A) and
(I)
of the Act.)
From this, Divane argues that the Agency erred in denying
eligibility because Divane’s tank meets the definition of
underground storage tank contained in the Act at the time of the
filing of the application, and that should the Board uphold the
Agency’s determination, the Board would be finding that the date
of removal of a registered tank determines eligilibity for Fund
reimbursement.
(Divane’s July 23,
1993 memo in support of motion
2
The Board notes that as was the case with its previous
motion for summary judgment, Divane’s current filing is not
‘-“
~~fidavit.
5
for summary judgment at 8.)
Divane essentially argues that the
Agency should not have followed the OSFM’s registration
determination.
(citing, Rockford Drop Forae.)
Divane also
recognizes that OSFM initially registered the tank, but that OSFM
later altered the document which had indicated that the
registration was complete, to show that the tank was not
registered.
(Second cross motion at
5; Rec. at 101.)
Divane
denies that it is contesting OSFM’s determination in this action
before the Board.
DISCUSSION
Divane is correct that the law in effect at the time the
application is filed is the applicable law here.
(See,
Rockford
Drop Forge, 582 N.E.2d 253, where court applied statutory
definition in effect at the time the application was filed.)
As
the Board has previously stated:
It is true that when determining eligibility for
reimbursement, the applicable law to be applied is that
which is in effect on the date of the filing of the
application for reimbursement (citations omitted).
(Galesburci Cottage Hostital v. IEPA (August
13,
1992),
PCB 92—62,
135 PCB 319.)
The petitioner in Rockford DroD Forge, paid a registration
fee to the OSFM in 1986.
The petitioner was then denied
eligibility by the Agency because the definition of USTs in the
Act at the time of the filing of the application did not include
certain heating oil tanks.
OSFM regulations at the time would
have included Rockford’s heating oil tanks as USTs, contrary to
the Act’s definition.
The Act was later amended, effective July
11,
1990, to include certain heating oil tanks.
However, the
court held that at the time of the filing of the application,
petitioner’s tanks were not included in the Act’s definition and
were not eligible.
The court also held that the Board and Agency
are not bound by the definition of underground storage tank
contained in the OSFM regulations and applied by OSFM, but rather
are bound by the definition contained in the Act.
The court
consequently upheld the Board’s affirming the Agency’s denial of
eligibility.
In Lincoinwood and later in Lake Forest, the Board found
that OSFM is the agency with the authority to register USTs, and
that the owner or operator is only eligible if the tanks are
registered with OSFM.
The Board further found that “the
Board
has no authority over registration of UST5, and therefore, the
issue of whether the four USTs could,
should, or might be
registered is not material to the Board’s review of the Agency’s
decision”.
(Lincoinwood at 2—3,
134 PCB 34—35.)
In both
Lincoinwood and Lake Forest, there was no dispute as to whether
the tanks were in fact registered; they were not.
6
Although the instant situation seems similar to Rockford
DroD Forge,
it differs because central to the situation in
Rockford DroD Forge was whether the UST in question came under
the definition of UST in the Act, and thus met the eligibility
requirements of the Act.
In the instant matter, the issue is
whether OSFM registered the tank.
The similarity to Rockford
Drom Forge also involves the Board’s, Agency’s, and OSFM’s roles
which was later addressed in Lincoinwood and Lake Forest.
Both the Agency and Divane agree that the applicable law is
the law in effect at the time of the filing of the application.
The applicable law indicates that Divane’s tank may have been
“registerable”.
However, whether or not a tank is “registerable”
under the Act at the time of application is not the issue before
the Agency.
(See, Lincoinwood and Lake Forest.)
The issue for
the Agency is whether the tank was registered by OSFM, as
OSFM.
is
the, agency responsible for registering tanks.
The record and
summary judgment filings indicate that the OSFM initially
determined the tank was registered and then later determined it
was exempt from registration.
Although the applicable law shows
the tank may have been “registerable”, the Board has no authority
to overturn a decision of the OSFM so it will conform to that
law3.
Similarly, the Board has no authority over whether OSFM
may or may not revise its earlier determination that petitioner’s
tank was registered.
The Board finds that the facts have now been sufficiently
clarified and indicate that OSFX has in fact not registered the
subject tank.
Petitioner may appeal OSFM’s determination through
the proper appeal process for that determination.
The Board
therefore finds that the Agency was correct in denying
eligibility based on the fact that the tank was not registered by
OSFM.
For the reasons stated above, the Board hereby denies
Divane’s cross—motion for summary judgment and grants the
Agency’s second motion for summary judgment.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Illinois Environmental Protection Agency’s October 4,
1993 motion for summary judgment is hereby granted.
This docket
is closed.
~ PA 88-496, which gives the Board authority to review
certain OSFM determinations was not effective until September 13,
1993,
and is not applicable to this matter which was filed on May
24, 1993.
7
IT IS SO ORDERED.
Board Member J. Anderson dissented.
Section 41 of the Environmental Protection Act (415 ILCS
5/41
(1992)) provides for the appeal of final Board orders within
35 days.
The Rules of the Supreme Court of Illinois establish
filing requirements.
(See also 35 Ill.Adm.Code 101.246 “Motions
for Reconsideration”.)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi~ythat the above opinion and order was
adopted on the
~-‘~-
day of
___________________,
1993,
by a
vote of
~5~—/
~,
Clerk
.ution Control Board