ILLINOIS POLLUTION CONTROL BOARD
    March 11,
    1993
    HILLSBORO GLASS CO.,
    )
    )
    Petitioner,
    v
    )
    PCB 93—9
    )
    (UST Fund)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ORDER OF THE BOARD
    (by J. Anderson):
    This matter is before the Board on petitioner’s motion for
    summary judgment filed February 9,
    1993 and respondent Illinois
    Enviromnental Protection Agency’s (Agency) motion to file the
    record instanter filed February 23,
    1993.
    Respondent filed its
    response to petitioner’s motion for summary judgment on February
    22,
    1993.
    On February 23,
    1993, petitioner filed a motion for
    leave to file a reply and reply.
    First, the Board addresses respondent’s motion to file the
    record instanter.
    The record was due to be filed with the Board
    no later than January 28,
    1993.
    Therefore, the record is
    approximately one month late.
    The Board grants the Agency’s
    motion to file the record instanter, but notes with concern the
    Agency’s failure to file a motion for extension of time to file
    the record.
    Second, the Board addresses petitioner’s motion for leave to
    file a reply.
    Motions for leave to file a reply will be granted
    to prevent material prejudice.
    (35 Ill.
    Adin. Code 101.241(c).)
    Petitioner contends that its reply is needed to prevent material
    prejudice because the Agency’s response has unnecessarily clouded
    the issue of law presented.
    Petitioner does not assert that the
    Agency has misstated any facts at issue requiring clarification
    through a reply.
    The Board is well equipped to assess the merit
    of the arguments raised in the Agency’s response and finds that
    petitioner’s motion for leave to file a reply need not be granted
    to prevent material prejudice.
    The Board now addresses petitioner’s motion for summary
    judgment.
    The following facts are undisputed.
    Petitioner filed
    its application for reimbursement from the Underground Storage
    Tank (UST)
    Fund on December 13,
    1990 for a release from a 1,000
    gallon tank.
    (R. Part One at 2.)
    On April 30,
    1991, the Agency
    notified petitioner that it was eligible to access Fund monies
    subject to
    a $10,000 deductible.
    (R. Part One at 113.)
    On
    January 31,
    1992, the Agency reached the second part of its
    review process and notified petitioner that $16,656.21 of the
    claimed $30,873.71 corrective action costs were reimbursable.
    0
    I Li~O-OO55
    2
    (R. Part One at 124.)
    Petitioner has received reimbursement of
    $16,656.21.
    On December 9,
    1992,
    on its own initiative, the Agency sent
    petitioner a letter stating that, based upon information dated
    November 6,
    1989,
    respondent now determined that petitioner was
    ineligible for the Fund and requesting that the monies previously
    reimbursed be returned.
    (R. Part One at 128.)
    The November 6,
    1989 letter, which respondent had in its possession prior to
    reaching its determination that petitioner
    was
    eligible for the
    Fund,
    indicated that “(the
    present
    1,000 gallon tank is not
    leaking.
    The contaminant was released from a previous 500 gallon
    tank in the same location approximately that was replaced in
    early 1985.”
    (R. Part Two at
    6.)
    Based upon this information,
    which respondent discovered in a review of the application after
    it rendered its April 30,
    1991 determination, respondent stated
    that petitioner was ineligible for the Fund because the 500
    gallon tank had not been registered with the Office of State Fire
    Marshal.
    (R. Part One at 128.)
    Petitioner contends that,
    as a matter of law, the Agency
    cannot reconsider or amend its final determination of April
    30,
    1991 finding petitioner eligible for the Fund subject to the
    minimum deductible.
    In support of its motion, petitioner cites
    Reichhold Chemicals.
    Inc.
    v. PCB
    (3d Dist.
    1990),
    204 Ill. App.
    3d 674,
    561 N.E.2d 1343,
    which holds that the Agency has no
    statutory authority to reconsider a permit decision and several
    Board opinions establishing that the Agency may not reconsider
    its finding of eligibility
    (see e.g., A.B. Dick Co.
    v. IEPA (July
    9,
    1992),
    PCB 92~99FClinton County Oil v. IEPA (March 26,
    1992),
    PCB 91—163)
    The Agency contends that petitioner’s filing of
    contradictory information raises a genuine issue of material fact
    that needs to be decided prior to applying the rule of law set
    forth in Reichhold that the Agency has no authority to reconsider
    a final decision.
    The Agency asserts that this matter should
    proceed to hearing so that the basis for this contradiction can
    be explained.
    The Agency does not dispute that it unilaterally changed its
    eligibility determination approximately 20 months after it
    reached its final decision and approximately 11 months after it
    reimbursed petitioner $16,656.21 for corrective action costs.
    (R. Part One at 124.)
    It is well established that the Agency
    cannot reconsider or amend its final decision.
    (Reichhold, 561
    N.E.2d 1343; Waste Nanciement of Illinois v. PCB
    (1st Dist.
    1992),
    231 Ill. App.
    3d 278,
    595 NE.2d 1171,
    1185;
    see generally,
    Weinpart v
    Department of Labor
    (1988),
    122 Ill.
    2d
    1,
    521 N.E.2d
    913; AB. Dick Co.
    v. IEPA (July
    9,
    1992), PCB 92—99; Clinton
    County Oil v
    IEPA (March 26,
    1992), PCB 91—163.)
    In its appeal
    to the appellate court of the Board’s Clinton County Oil
    01 L~Q-OQ56
    3
    decision, the Agency has challenged the Board’s ruling that it
    may not reconsider eligibility decisions.
    However,
    in that
    appeal, the Agency argues that such a decision remains final
    until the applicant files a petition for review with the Board.
    (IEPA v. PCB and Clinton County Oil,
    No. 5-92-0468 Agency Brief
    at 16.)
    In the instant case, the Agency has unilaterally
    reconsidered its final eligibility decision before any petition
    for review was filed by the applicant.
    Unlike Clinton CountY
    Qil,
    where the Agency waited until Clinton sought Board review
    before it attempted to reconsider its eligibility decision,
    in
    the instant case the Agency’s reconsideration triggered
    petitioner’s appeal to the Board.
    The position taken by the
    Agency appears inconsistent with that argued on appeal that it is
    the filing of a petition for review by the applicant that allows
    the Agency to reconsider its heretofore final decision.
    The Board finds that the distinction between the instant
    case and Clinton County Oil in terms of the timing of the
    Agency’s attempted reconsideration necessitates a different
    result than Clinton County Oil.
    Although this matter comes
    before the Board on a motion for summary judgment, the Board
    finds that the instant case actually presents a jurisdictional
    issue.
    Because an administrative agency has no power beyond that
    conferred by statute,
    a decision by an agency which lacks the
    statutory power to enter the decision is void.
    (Business
    &
    Professional Peo~1ev
    Commerce Commission
    (1989),
    136 Ill. 2d
    192, 555 N.E.2d
    693,
    716-17.)
    The Board concludes that the
    Agency had no statutory authority to reconsider its April 30,
    1991 decision finding petitioner eligible for the Fund subject to
    a $10,000 deductible.
    Consequently, the Agency’s December 9,
    1992 decision finding petitioner ineligible for the Fund and
    demanding that the reimbursed costs of $16,656.21 be returned is
    void.
    Because there was no decision entered by the Agency
    pursuant to its statutory authority, there was no final decision
    from which petitioner could file a petition for review so as to
    confer jurisdiction on the Board pursuant to Section 22.18b(g)
    of
    the Act.
    (415 ILCS 5/22. 18b(g)
    (1992).)
    Therefore, the Board
    concludes that the instant matter should be dismissed for want of
    jurisdiction.
    If the Board were to find that it does have jurisdiction to
    reach petitioner’s motion for summary judgment,
    it would find
    that summary judgment would be proper.
    The Agency’s claim that
    it should not be bound by the rule that it has no authority to
    reconsider because the instant case involves contradictory
    information is without merit.
    The Agency makes no allegation
    that newly discovered evidence has led it to question its earlier
    eligibility determination.
    Rather, based upon the identical
    information available at the time it rendered its April
    30,
    1992
    decision, the Agency now alleges some 20 months later that a
    discrepancy exists.
    In its response, the Agency states that it
    is possible, although it declines to specifically allege, that
    OJL~Q-ijO57
    4
    this discrepancy results from petitioner’s intentional
    falsification of information.
    The Agency cannot avoid the rule
    that it has no statutory authority to reconsider by making
    unsupported allegations 20 months after it has reached a final
    decision that some discrepancy in information previously
    submitted necessitates a hearing.
    Moreover, the Agency should
    not be allowed,
    11 months after it has reimbursed Fund monies, to
    defeat a motion for summary judgment by making unsupported
    allegations that a hearing is needed to determine if an applicant
    knowingly falsified its application.
    Whatever doubts the Agency had as to petitioner’s
    eligibility should have been addressed prior to rendering its
    eligibility determination.
    An applicant who has relied on the
    Agency’s final Fund decision is entitled to a degree of certainty
    that that decision cannot simply be unilaterally reconsidered by
    the Agency at some unknown future date.
    Therefore,
    if the Board
    were to reach the issue of summary judgment,
    it would conclude
    there is no genuine issue of material fact as to whether the
    Agency attempted to reconsider its final decision and that,
    as a
    matter of law,
    the Agency cannot so reconsider where the Agency’s
    attempt to reconsider
    is based solely upon information previously
    submitted to the Agency by the applicant prior to the Agency’s
    rendering a final decision.
    For the foregoing reasons, this matter is dismissed for want
    of jurisdiction.
    IT IS SO ORDERED.
    B. Forcade abstains.
    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.
    (But see also,
    35 Ill. Adm. Code 101.246,
    Motions for Reconsideration, and Casteneda v. Illinois Human
    Rights Commission
    (1989),
    132 Ill.
    2d 304,
    547 N.E.2d 437.)
    I, Dorothy N.
    Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certif
    that the above order was adopted on the
    //‘~
    day of
    ________________,
    1993 by a vote of
    .5—C
    A.
    L~
    Dorothy M. ~Xnn, Clerk
    Illinois PQ~1utionControl Board
    01 L~.O-O058

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