ILLINOIS POLLUTION CONTROL BOARD

September 15, 1994

PACE SUBURBAN BUS DIVISION

)

OF RTA,

)

Petitioner,

)

V.

)

PCB 93—79

(UST Fund)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

OPINION AND ORDER OF THE BOARD (by G. T. Girard):

This matter is before the Board on cross—motions for summary

judgement filed by PACE Suburban Bus Division of the Regional

Transportation Authority (PACE) and the Illinois Environmental

Protection Agency (Agency). The issue to be resolved is whether

or not PACE is eligible for reimbursement from the underground

storage tank (UST) fund for the removal costs of three PACE UST5.

PACE filed its motion for summary judgement on July 29, 1994 and

the Agency filed its motion on August 1, 1994. Responses to the

motions were filed on August 12 (PACE) and August 16 (Agency).

The Agency also filed a reply to PACE’s response on August 29,

1994.

PACE’s ability to access the UST fund is governed by the

eligibility requirements of Section 22.18b of the Environmental

Protection Act (Act) (415 ILCS 5/22. 18b).

(~,

Chemrex v.

Pollution Control Board, (No. 1-93—0804 (1st Dist.) (December 28,

1993).). Section 22.18b provides in pertinent part that:

(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 of 1919 and paid into the Underground Storage

Tank Fund all fees required for the tank in

accordance with Section 4 and 5 of that Act and

regulations adopted by the Office of State Fire

Marshall.

* *

*(emphasis added)

Therefore, if the Office of State Fire Marshal (OSFM) determines

a tank is not registered or not eligible for registration, the

owner or operator cannot access the UST fund for that tank.

---

2

The Agency notified PACE by letter dated March 29, 1993 that

the 20,000 gallon diesel, 10,000 gallon diesel, and 1,000 gallon

heating oil tanks were not eligible for reimbursement. (R. at

79_80.)1 The Agency informed PACE that these tanks were not

eligible for reimbursement because the OSFM had indicated that

the three tanks “have been deemed exempt from registration”. (R.

at 80.) On April 30, 1993, PACE filed this appeal of the

Agency’s determination regarding the eligibility of the three

USTs with the Board.

In making its determination the Agency relied on a document

entitled “Confidential Intra-Agency Communications Proof of UST

Registrations and Fee Payment” from the OSFM. (R. at 42.) The

document contains several columns including one titled “Exempt

from Reg.”, one titled “Fees Paid” and one titled “Not Req.”. On

the form found in the Agency record at page 42 for each of the

three tanks the columns are circled under each of the above named

titles. The circles are crossed—out under the “Fees Paid”

column. (Id.) The Agency therefore, determined that the three

USTs were exempt from registration and by statute ineligible for

reimbursement.

The Agency maintains that the record before it clearly

indicated that the three USTs at issue were not registered. (Ag.

Res. at 2.) Thus, according to the Agency, PACE is not eligible

to receive money from the UST fund for the tanks.

(u.)

Further, the Agency points out that neither the Agency nor the

Board could review the OSFM determination regarding registration

under the law as it existed in March 1993 pursuant to 415 ILCS

5/22.18b. (Ag. Res. at 3.) Thus, the issue of whether the tanks

“should, could or might be registered is not material to the

Board’s review of the Agency’s decision”. (Ag. Res. at 3.)

Therefore, the Agency accepted the confidential document from

OSFM at page 42 of its record and conducted no further review.

PACE argues that the Agency incorrectly relied on the

confidential OSFN document at page 42 of the Agency record. PACE

argues that the record also includes copies of valid registration

documents (R. at 31—31), sworn statements from the Petitioner

that the tanks are registered (R. at 54-69) and a second

“Confidential Intra—Agency Communications Proof of UST

‘The Agency’s record will be cited as “R. at

_“;

The

Agency’s response will be cited as “Ag. Res. at

_“;

the April

30, 1993, Petitioner’s Memorandum will be cited as “Pet. Memo. at

“;

the Petitioner’s motion will be cited as “Pet. Not. at

_“;

the Petitioner’s exhibits will be cited as “Pet. Exh.

“;

Petitioner’s response will be cited as “Pet. Res. at

_“;

the

attachment to Petitioner’s motion will be cited as “Pet. Mot.

attachment”.

---

3

Registrations and Fee Payment” from the OSFM on page 41 of the

record which indicates that the USTs were registered. Thus,

according to PACE the record was inconsistent and the Agency

should have investigated the facts supporting the fund

determination. PACE cites to IEPA V. Illinois Pollution Control

Board, No. 5—92-0468 (5th Dist. November 23, 1994) (Clinton Oil).

PACE asserts that in Clinton Oil the court reproached “the Agency

for failing to investigate the facts supporting a Fund

eligibility application.” (Pet. Memo. at 5.)

PACE further points out that it did not receive notification

that the three UST5 were allegedly not eligible for registration

until April 6, 1993 when Keith H. Iuimke, legal counsel for the

Division of Petroleum Chemical Safety for OSFM notified PACE by

letter that the registration had been revoked. (Pet. Exh. A.)

PACE timely appealed the OSFM decision and in a stipulation with

OSFM dated April 4, 1994, the OSFM withdrew the letter of April

6, 1993 revoking registration. (Pet. Exh. B and C.) Finally,

PACE presented an affidavit of Mr. Inunke dated July 28, 1994,

which indicates that the three UST5 “currently are and remain

registered with the OSFM”. (Pet. Mot. attachment.) Thus, the

OSFM now considers the three USTs as registered.

PACE therefore argues that even if the Agency could have

properly relied on the single document in the record, the

evidence is clear that the OSFM now considers the USTs to be

registered. Therefore, PACE argues that the Board should issue

an order granting PACE’s eligibility. (Pet. Hot. at 6.)

The Agency argues that the documents filed with petitioner’s

motion for summary judgement were all executed after the Agency

made its determination and were not nor could not be a part of

the record before it. (Ag. Res. at 4.) Further, the Agency

points to testimony at the Board’s hearing on July 27, 1994, in a

related case, (PACE Suburban Bus Division of RTA v. IEPA, PCB 94—

145) in which OSFN’s Mr. Inunke indicates that the stipulation

(Pet. Exh. B) and the withdrawal of the revocation (Pet. Exh. C)

do not necessarily mean that the UST5 are registered. (Ag. Res.

at 6.) Finally, the Agency states that:

It might be argued that the Agency’s inability to alter or

amend its March 29, 1993 final decision places Petitioner in

an administrative “Catch-22” position. At first glance it

may seem so. However, the Petitioner is in a quandrey of

its own making. It need not require the Agency to undo its

correct March 29, 1993, final decision. All the Petitioner

need do is simply submit an amended or new application for

UST-Fund reimbursement with the new information it believes

establishes the eligibility of the three (3) USTs to the

OSFM pursuant to Title 57 of the Act. This will place the

registration question within the purview of the agency that

governs it and the eligibility question immediately after it

---

4

in the same place, the OSFM.

(Ag. Res. at 7.)

The Board finds that the three USTs at issue in this appeal

are now and have been registered with the OSFM. In making this

determination the Board must rely on OSFI4 and Mr. Immke’s

affidavit. Mr. Immke’s affidavit, dated July 28, 1994, indicates

that the tanks are now registered and the attempted revocation of

the registration by OSFM was improper. Further, the Board notes

that the Agency record included two contradictory forms from

OSFN. Thus, the information before the Agency when making its

determination was confusing. However, the record before the

Board is clear. Therefore, in the interest of judicial economy,

administrative ease and expedient use of state resources, the

Board will not simply uphold the Agency’s determination to deny

eligibility, which was based on OSFM’s misinformation, and ask

PACE to resubmit an application amended merely to indicate the

clear registration of the tanks to the Agency. Rather, the Board

will remand this proceeding to the Agency to determine the

deductible which is appropriate and the proper reimbursements in

light of the OSFM determination that the USTS are registered.

ORDER

The Board hereby remands this proceeding to the Agency for

determination of deductibility and cost determinations.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby cert~ythat the abq*e ~pinion and order was

adopted on the /~-‘~dayof

_________________,

1994, by a

vote of

_____.

~-,

/

Dorothy N. ~~unn, Clerk

Illinois Po1lution Control Board