ILLINOIS POLLUTION

CONTROL

BOARD

January 21,

1993

PHILLIPS 66 COMPANY,

)

a DIVISION OF PHILLIPS

)

PETROLEUM

COMPANY,

)

Petitioner,

)

PCB

 92—171

)

 (Underground

Storage

ILLINOI S

ENVIRONMENTAL

)

 Tank

Reimbursement)

PROTECTION AGENCY,

)

Respondent.

ORDER

OF THE BOARD

 (by G. T. Girard):

On

 December

30,

 1992,

 respondent

 Illinois

 Environmental

Protection Agency (Agency) filed a motion for summary

judgment.

On

January

6,

 1993,

 petitioner Phillips 66 Company

 (Phillips)

 filed

its response.

Under Section 22.lBb (a) (4)

 of the Environmental Protection

Act, an owner or operator of a underground storage tank

 (UST)

is

eligible for reimbursement from the UST Fund only if the’ UST is

registered with the Office of State Fire

Marshal.

 (Ill. Rev. Stat.

1991,

ch.

111

 1/2, par.

 1022.18b(a)(4))

The

Agency moves for

summary judgment on the basis that

there

 is no

 genuine issue of

material

 fact

 concerning

 .whether

the

 USTs

in

 question

 were

registered with the Fire Marshal and that,

 as a matter of law,

Phillips is not eligible to

access the UST

Fund because the

tanks

are not registered.

The record contains correspondence from the Fire Marshal to

the Agency dated August 19,

1992

(R.

 142) and September

15,

1992

(R.

 143).

 The August 19,

 1992 form indicates that the tanks were

registered

on

 February

6,

1986

and

the

 comment that

 the Fire

Marshal needed to know the date the

tanks

were last in use.

(C.

142.)

 The September 15,

 1992 form, which appears to be the same

form

 as the August

19

 form with

 some

 additions and deletions,

indicates that the tanks are exempt from registration.

(C.

 143.)

However, attached to

the Agency’s. motion for summary judgment is

the affidavit of Patrick Ketchum, an employee of

the Fire Marshal

 who verifies registration of USTB, which attests to the fact that

as of December

29,

 1992,

 Phillips’ USTs were not registered with

the Fire Marshal.

While

the interagency correspondence indicates some confusion

as to tank registration,

 the Board finds that the affidavit of

Ketchuin establishes that the tanks in question are not properly

registered with the Fire Marshal.

 The Board has previously noted

that the Fire Marshal, not the Board,

 has jurisdiction over

tank

registration

 and that

 the question

 of whether the

 tanks

 could,

38-O~.63

should,

 or might

 be registered

is

 not material to the Board’s

review of an Agency motion

 for summary

 judgment.

 (Villaae of

Lincoinwood v. IEPA (June

4, 1992), PCB 91—83 at 2—3.)

 Because the

Act requires registration in order to quality for reimbursement and

because there is no genuine issue of aaterialfact.concerning the

registration of Phillips’

 liSTs, the Board finds that the Agency’s

denial of eligibility is correct as a matter of law.

 Therefore,

the Agency’s motion for summary judgment is granted.

IT IS

SO

ORDERED.

J. Anderson dissents

Section

41

 of the Environmental Protection Act

 (Ill.

 Rev.

Stat.

 1993.,

ch.

111

 1/2,

 par.

 1041) 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.

Ada.

Code

 101.246, Motions for Reconsideration, and Casteneda v

Illinois

 Human

 Riahts

 Commission

 (1989),

132

 Iii.

2d

 304,

547

N.E.2d 437.)

I, Dorothy

M.

 Gunn,

 Clerk

 of the

 Illinois Pollution Control

Board, hereby

cer

 that the

above

order was adopted on the

~/-‘~

 day of

 1993 by a vote of

‘7

Il1ino~

 Control Board