ILLINOIS POLLUTION CONTROL BOARD

February

6,

1992

KATHLEEN WANBACK,

)

Petitioner,

PCB 92—16

v.

)

(Underground Storage

)

Tank Reimbursement)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

•

)

Respondent.

ORDER OF THE BOARD

(by M. Nardulli):

This matter is before the Board on its own motion.

On January

24,

1992, petitioner Kathleen Wamback filed a petition for review,

pursuant

to

Sections

22.lBb(g)

and

40

of

the

Environmental

Protection Act

(Ill. Rev. Stat. 1989, ch. 111 1/2, par. ~1022.l8b(g)

and

1040),

of

the

Illinois

Environmental

Protection

Agency’s

(Agency) determination that Petitioner’s request for reimbursement

from the Underground

Storage

Tank Fund

(Fund)

is

subject

to

a

$15,000 deductible.

This case is hereby remanded to the Agency and

the docket closed pursuant to the Board’s decision in Ideal Heating

Company

v.

IEPA, PCB 91-253, January 23,

1992

(Ideal).

Section 22.18b(a)

of the Act sets forth certain requirements

that must be met in order to be eligible to access the Fund.

(Ill.

Rev. Stat.

1989,

ch. 111 1/2, par. 1022.l8b(a).).

Section 22.18b(d)

sets forth the applicable deductibles that apply to requests for

reimbursement.

(Ill.

Rev.

Stat.

1989,

ch.

111

1/2,

par.

1022.18b(d)..)

Requests

for partial or

final payment for claims

under

the UST provisions

are

directed to

the

Agency

and must

satisfy enumerated requirements, including a demonstration that the

corrective actions costs incurred are reasonable.

(Ill. Rev. Stat.

1989,

oh.

lii

1/2,

par.

l022.18b(d)(4).)

In

carrying out

its

duties under the Act, the Agency has consistently followed a two-

step review process:

(1)

a review of the application to determine

whether the applicant is eligible to access the Fund and what the

appropriate deductible

is;

and

(2)

a review of the reimbursable

costs

pursuant

to

Section

22.18b(d)(4).

(North

Suburban

Development Corp.

v.

IEPA,

PCB 91-109 at

6

(December 19,

1991).)

The

Act

provides

for

Board

review

of

the

Agency’s

reimbursement determinations.

“If the Agency refuses to reimburse

or authorizes only a partial reimbursement, the affected owner or

operator

may

petition

the

Board

for

a

hearing

in

the

manner

provided for the review of permit decisions in Section 40 of this

Act.”

(Ill.

Rev.

Stat.

1989,

ch.

111

1/2,

par.

1022.18b(g)

(emphasis added).)

The Board interprets this language as providing

for Board review of Agency UST determinations only after the Agency

130—89

---

2

has

completed

its

two-step

review

process

and

made

a

final

determination as to the reiinbursibility of costs.

Of course, where

the

Agency

has

denied

eligibility,

it

has

in

essence

also

determined that the applicant is not entitled to any reimbursement

such that the Agency’s decision would be ripe for Board review.

The Board held in Ideal that review of Agency deductibility

determinations

prior

to

a

complete

determination

on

the

reimbursibility

•of

costs

is

both

inconsistent

with

Section

22.l8b(g) of the Act quoted above and principles of administrative

economy,’ such

as

the desire

to

avoid

piecemeal

appeals.

The

Board’s

prior

practice

of

allowing

appeals

upon

a

deductible

determination

may

foster

multiple

appeals

to

the

Board.

For

example, petitioner may prevail before the Board on the issue of

what deductible applies only to have to again seek Board review if

the petitioner disagrees with the Agency’s determination on what

costs

are

reimbursable.

Under

a

“worst

case

scenario”,

a

petitioner found to be ineligible to access the Fund appeals that

decision to the

Board,

the Board

reverses

the Agency and

finds

petitioner eligible and remands.

On remand, the Agency applies a

deductible

amount

which

petitioner

appeals

to

the

Board.

Regardless of the Board’s determination on the correctness of the

Agency’s deductible

determination,

the case

is

remanded to

the

Agency for

a finding on the reasonableness of costs.

The Agency

then determines the reasonableness of costs and petitioner again

appeals to the Board.

This “worst case scenario” results in three

separate appeals to the Board.

By holding in Ideal that, where the

Agency finds that an applicant is eligible to access the Fund, the

Agency’s decision is not ripe for appeal to the Board until it has

also reached

its

final

determination on both deductibility

and

reasonableness

of

costs,

multiple appeals

can

be

avoided.

Of

course,

where

the

Agency

denies

eligibility,

an

applicant

may

appeal

to

the

Board.

If

the

Board

reverses

the

Agency’s

eligibility

determination,

the

applicant may

again

seek

Board

review

of

the

Agency’s deductible

and reasonableness

of

costs

determination.

Under

the

holding

in

Ideal,

the

“worst

case

scenario” would result in two separate appeals rather than three.

In determining how to implement the holding in ideal the Board

held that those cases, such as the instant case, where the petition

for review has been filed but no hearing has been held the Board

adopted the

following procedure:

the case

is remanded to

the

~gency to complete its review of the reasonableness of costs and

this docket

is

closed.

Petitioner may

file

a new petition

for

review

upon

the

Agency’s

final

UST

determination.1

To

avoid

prejudice, the Board will waive the $75 filing fee as it was paid

~iiththe original filing.

The Board asks that petitioner reference

1

The Board notes that today’s holding does not result in the

~iaiverof any challenges to the Agency’s deductible determination

.ipon the proper filing of a new petition for review.

130—90

---

3

the original docket number of the case when filing the new petition

for review.

In

summary,

the

Board

holds that Agency UST

decisions are

appealable

to the Board

only where:

(1)

the Agency

has denied

eligibility or;

(2) the Agency has found the applicant eligible and

has reached a final determination on both the proper deductible and

the reasonableness of costs.

This case is remanded to the Agency

for a final determination on the reasonableness of costs pursuant

to Section 22.18b(d)(4).

Petitioner may file

a new petition for

review i~naccordance with this order.

IT IS SO ORDERED.

I, Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

hereby certj4ies that the above Order was adopted, on the

______

day of

ce~i~i~~

,

1992 by a vote of ~

-

6’~

~

~7.

Dorothy M. ,4(inn, Clerk

Illinois Pbllution Control Board

130—9 1