ILLINOIS POLLUTION CONTROL BOARD
January 6, 1994
FIATALLIS NORTH
)
AMERICAN, INC.,
Petitioner,
v.
)
PCB 93—108
)
(UST Fund)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD (by M. Nardulli):
This matter is before the Board on the Illinois
Environmental Protection Agency’s (the Agency) motion for
reconsideration of the Board’s October 21, 1993, order in this
matter. The Agency challenges our finding that the Agency’s
reconsideration of the deductibility determination in this
Underground Storage Tank Fund (the Fund) matter is void, with the
result that a $10,000 deductible applies in this case. On
December 13, 1993, Fiatallis North American, Inc., (Fiatallis or
petitioner) filed a response to the motion and a motion for leave
to cite additional authority instanter. In its motion to cite
additional authority, Fiatallis sought to direct the Board’s
attention to the Illinois Appellate Court’s decision in Illinois
Environmental Protection Agency v. Illinois Pollution Control
Board, No. 5-92-0468 (5th Dist. Nov. 23, 1993) (Clinton County
Qii). The Agency did not respond to petitioner’s motion. The
Board hereby grants Fiatallis’ motion to cite additional
authority.
In ruling upon a motion for reconsideration the Board is to
consider, but is not limited to, error in the decision and facts
in the record which may have been overlooked. (35 Ill. Adm. Code
101.246(d).) In Citizens Against Regional Landfill v. County
Board of Whiteside (March 11, 1993), PCB 93-156, we stated that
“(t)he intended purpose of the motion for reconsideration is to
bring to the court’s attention newly discovered evidence which
was not available at the time of hearing, changes in the law or
errors in the court’s previous application of the existing law.
(Korociluvan v. Chicago Title & Trust Co. (1st Dist. 1992), 213
Ill. App.3d 622, 572 N.E.2d 1154, 1158.)” We grant the motion
for reconsideration so that we can address several arguments made
by the Agency. However, we reaffirm our October 21, 1993,
opinion and order finding that the Agency may not reconsider its
final deductibility determination.
Background
2
This case arises from the removal of two underground storage
tanks (UST5) at Fiatallis’ Engineering Center, in Springfield,
Illinois. During removal, a leak was discovered and remedial
action ensued. Fiatallis applied for reimbursement from the Fund
on January 3, 1990. On February 26, 1990 the Agency notified
Fiatallis that a deductible of $10,000 would be applied to
Fiatallis’ application for reimbursement for the Fund.
Over three years later, on May 17, 1993, the Agency notified
petitioner that “u)pon review of the information provided to the
Agency, the Agency has determined that the appropriate deductible
for this occurrence is $50,000.00.” The Agency’s May 17, 1993,
decision was based on the same information as the Agency’s
February 26, 1990 determination. There is no allegation that
Fiatallis withheld information from the Agency.
The Board’s October 21, 1993 order in Fiatallis
Fiatallis appealed the Agency’s imposition of a $50,000
deductible. Fiatallis relied upon Reichhold Chemicals. Inc. v.
~ (3d Dist. 1990), 204 Ill. App. 3d 674, 561 N.E.2d 1343, which
held that the Agency lacked statutory authority to reconsider a
final determination. In response, the Agency argued that the
Board’s decision in Ideal Heating (January 23, 1992), PCB 91—253,
compels the conclusion that the deductibility determination was
not final.’ The Agency argued “it is clear that a deductible
determination is not appealable until the juncture (determination
of corrective action costs) is reached, general principles of
appellate practice support a conclusion that it is not final
until this juncture is reached.” Thus, the Agency argued that if
the deductibility determination is not ripe for appeal until a
determination of all costs has been made, then the deductibility
determination must also not be final until that juncture. The
Agency offered no support for the “general principles of
In Ideal Heating the Board held, that in the interests of
judicial economy, only those Agency UST decisions which: (1) deny
eligibility or; (2) reach a complete determination on both the
applicable deductible and the reimbursement of costs, are ripe
for appeal to the Board. Prior to Ideal Heating, an appeal of
the deductibility determination had to be filed within thirty-
five days after notification of the determination. Typically
this notification was made before the Agency reached a final
determination on reimbursement of corrective action costs. As
explained in Ideal Heating, this practice allowed for as many as
three separate appeals for a single UST matter. In Ideal Heating
the Board determined, that in the interests of judicial economy,
the Board would hear appeals of the deductibility determination
only after a determination on all costs had been made. We note
that the Agency did not appeal the Ideal Heating decision at the
time it was decided.
3
appellate practice” on which it relied. In response, the Board
considered U.S. and Illinois Supreme Court caselaw concerning
final agency action and “ripeness.” Based upon that inquiry, the
Board determined that an agency action can be both “final” and
“not ripe.”
The Board concluded that the Agency’s February 26, 1990,
deductibility determination was both final and not ripe.
Furthermore, the Board found that pursuant to Reichhold
Chemicals, the Agency could not reconsider its February 26, 1990
decision because it had no statutory authority to do so. Citing
the Board’s decision in Clinton County Oil, the Board stated:
I)t is well established that an administrative agency has
no inherent authority to amend or change its decision and
may undertake reconsideration only where authorized by
statute. (citations omitted) Although the Board possesses
such power, the appellate court has held that the-Agency has
no such reconsideration powers. (citing Reichhold)
Accordingly, the Board found the Agency’s initial deductibility
determination was final and that the Agency’s reconsideration of
that decision was void, with the result that a $10,000 deductible
applied to Fiatallis.
Agency’s Motion for Reconsideration
The Agency states that the cases cited by the Board do not
support the conclusion that the deductibility decision was both
final and not ripe. The Agency argues:
If all of the facts needed to make a deductibility
determination are available to the Agency when it determines
a deductible amount, why should a claimant not be able to
appeal a deductible determination within 35 days of
pronouncement? Unlike A.E. Staley (A.E. Staley
Manufacturing Company v. Illinois Commerce Commission 166
Ill. App. 3d 202; 519 N.E. 2d 1130) and Toilet Goods
Association, Inc. v. Gardner, Toilet Goods Association,
Inc.
V.
Gardner, 87 S. Ct. 1520) no contingencies or
circumstances arise in the wake of the pronouncement to
ripen the deductibility determination for appeal. If a
claimant is entitled to some degree of certainty in Agency
decisions, why should that claimant not be allowed to
achieve a greater degree of certainty concerning its
deductible by appealing an unfavorable deductible to the
Board within 35 days of its issuance? Under Abbott
Laboratories v. Gardner (87 S. Ct. 1507) and Gardner v.
Toilet Goods Association (87 S. Ct. 1526), it is clear that
a deductible determination is ripe for appeal upon its
pronouncement.
4
Although we are not certain we follow the Agency’s argument, we
believe it is the Agency’s position that a claimant’s certainty
in Agency decisions is undermined by Fiatallis. We reject this
argument on three bases.
First, if we understand the Agency correctly, the Agency
appears to indirectly attack Fiatallis by arguing that Ideal
Heating was wrongly decided. The Agency essentially argues that
a claimant ought to be allowed to appeal the deductibility
decision within 35 days of its pronouncement. Aside from the
purely pragmatic observation that Fiatallis was unlikely to
appeal a favorable determination, under the Agency’s proposed
standard Fiatallis should have appealed the deductibility
decision in March or April of 1990. We are unable to understand
how this supports the Agency’s argument that it ought to be
allowed to reconsider a final decision, absent statutory
authority to do so, three years after making the decision.
Moreover, we are unable to understand how this result will
increase the claimant’s certainty.
Second, it appears that the Agency is merely reprising its
argument below that if the deductibility decision is not ripe
upon notification, the decision must also not be final. We again
reject this argument as contrary to U.S. Supreme Court precedent.
In Abbott Laboratories, the U.S. Supreme Court adopted a two-step
test to determine when an administrative agency decision is ripe
for appeal. The Court directed reviewing courts to evaluate both
the fitness of the issues for judicial review and the hardship to
the parties of withholding court consideration to determine
ripeness. (87 S. Ct. at 1515). The Court characterized
“finality” as an “element” of the first step of the ripeness
test. (j~. at 1516) Thus, ripeness does not determine finality;
rather finality is an element of ripeness. Therefore,
notwithstanding the Agency’s “certainty” arguments, the Board’s
decision in Ideal Heating that the deductibility determination, is
not ripe for appeal until a determination has been made on all
other costs, does not lead to the conclusion that the
deductibility determination is not final upon notification.
Finally, the Agency argues that a claimant’s certainty would
be increased if the Board allowed the Agency to reconsider a
decision three years after initially making the decision. The
Board fails to see how this outcome will increase a claimant’s
certainty.
The Agency also argues that the Fiatallis decision creates
notice difficulties for the Agency. The Agency argues:
Fiatallis states that the deductible determination is a
final decision. Therefore, the Agency must apprise a
claimant of this fact along with the appeal rights. Then,
and only
then, would all of
the
applicable laws .be
5
satisfied. If a claimant does not file an appeal within the
35 day period, the Board does not have jurisdiction to hear
the appeal and the parties involved with the case are
certain as to what the deductible is. If the Agency does
not notify the claimant of these rights when a deductible
determination is made, then the Agency could be viewed as
deliberately causing appeal periods to be tolled. Such
omissions would indicate that the Agency is not being
responsible in its actions, and would not increase the
certainty level concerning deductible determinations.
The Board appreciates the Agency’s desire to not mislead
claimants.2 However, we believe that the notice difficulties are
not insurmountable. Indeed, we believe that the Agency’s
difficulties arise from the Agency’s failure to follow Ideal
Heating. Under Ideal Heating, where there has not been a
determination on all other costs, there is no real danger that
the appeal period of the deductibility determination will toll.
The Board emphasizes, however, that this does not relieve the
Agency of its notice obligations.
Finally, the Agency argues that implementation of Fiatallis
in compliance with the applicable statutes and cases will reverse
any judicial economy attained in Ideal Heating. The Agency bases
this argument on the belief that the deductibility determination
is both final and ripe. We rejected this argument above and will
not reconsider it here except to note that Fiatallis does not
alter Ideal Heating’s holding that the final deductibility
determination is not ripe for appeal until a final determination
has been made on all costs.
Clinton County Oil
On November 23, 1993, the Appellate Court of Illinois, Fifth
District decided Illinois Environmental Protection Agency v.
Illinois Pollution Control Board, Clinton County Oil Co.. et al.,
No. 5—92—0468 (5th Dist. Nov. 23, 1993). The Clinton County Oil
court considered whether the Agency could reconsider an
eligibility decision in a UST matter where new evidence was
presented at hearing before, the Board. The court found that the
2
We note that the Agency has recently revised its notice
language concerning appeals of UST decisions. The Agency
notification currently states that an appeal may be brought
within “35 calendar days from the date the Comptroller mails the
accompanying check to file a petition for a hearing with the
Board.” (emphasis added) In addition, the Agency cites 35 Ill.
Adin. Code 105.102(a) (2), which provides, in pertinent part, “an
applicant who seeks to appeal the Agency decision shall file a
petition for a hearing before the Board within 35 days of the
date of
nailing
of the Agency’s final decision.” (emphasis added)
6
Agency could not reconsider a final determination. The court
stated “it would therefore, violate principles of fundamental
fairness to allow the Agency to notify a applicant of its ‘final
decision’ and then to allow the agency to change that decision on
appeal before the Board.” The Clinton County Oil court held the
rule prohibiting Agency reconsideration of a final decision
applies “even if the Agency discovers new evidence at the Board
hearing which would have altered its decision had the Agency been
aware of the evidence prior to making an eligibility
determination.” (Slip opinion at 7.)
The Board believes that the Clinton County Oil decision
supports our decision in Fiatallis, in which we held that the
Agency may not reconsider a final decision absent statutory
authority to do so.
In sum, we reaffirm our October 21, 1993, decision finding
that the Agency’s reconsideration of the deductibility
determination is void, with the result that a $10,000 deductible
applies in this case. The Board concludes that the Agency has
failed to bring to our attention any error in the Board’s
decision below or to raise facts that were overlooked. In
addition, the Board believes the appellate court’s decision in
Clinton County Oil supports the Board’s earlier decision.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certi that the above order was adopted on the
_________
day of
____________,
1994, by a vote of
~
/7
( ~
Dorothy M4’~Gunn, Clerk
Illinois ~b1lution Control Board