ILLINOIS POLLUTION CONTROL BOARD
October 18, 2001
C.C. DILLON COMPANY (RACEWAY GAS
AND FOOD),
Petitioner,
v.
OFFICE OF THE STATE
FIRE MARSHAL,
Respondent.
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PCB 00-146
(UST Appeal)
OPINION AND ORDER OF THE BOARD (by R.C. Flemal):
This matter is before the Board on cross-motions for summary judgment. At issue is
whether the applicable deductible for certain underground storage tanks is $10,000, as contended
by petitioner, C.C. Dillon Company, or is $100,000, as determined by the Office of the State Fire
Marshal (OFSM).
For the reasons set forth below, the Board finds that there is no genuine issue of material
fact. Additionally, pursuant to Section 57.9(b) of the Environmental Protection Act (Act) (415
ILCS 5/57.9(b) (2000)) the Board finds the OSFM correctly determined petitioner was eligible
for the $100,000 deductible. Accordingly, the Board denies the petitioner’s motion for summary
judgment and grants the OSFM’s motion for summary judgment.
BACKGROUND
On March 8, 2000, petitioner filed a petition for review of the OSFM’s February 2, 2000
determination that petitioner was eligible to seek reimbursement for costs associated with two
underground storage tank (USTs). On September 6, 2001, petitioner filed a motion for summary
judgment (Pet. Mot.). On September 25, 2001, the OSFM filed as one document a response to
petitioner’s motion and a motion for summary judgment (OSFM Mot.). Also on September 25,
2001, the OSFM filed a memorandum in support of its motion (OSFM Memo).
The site at issue is Raceway Gas and Food (site) located at 8407 Collinsville Road,
Collinsville, Madison County, Illinois. Pet. at 1. On May 7, 1986, petitioner registered five
USTs at the site. Pet. Mot. at 2, OSFM Memo at 1, Exh. 1.
1
Sometime later in 1986, petitioner
replaced the five tanks with two 12,000 gallon tanks and one 6,000 gallon tank. Pet. Mot. at 2,
OSFM Mot. at 2. On January 27, 2000, petitioner submitted to OSFM an application for an
eligibility and deductibility determination regarding cleanup costs associated with the two
12,000 gallon tanks. Pet. at 1, Exh. A. On February 2, 2000, OSFM issued a determination that
1
Both parties attached exhibits to their pleadings. They will be cited at “Exh. __ at __.”
2
petitioner was eligible for a $100,000 deductible for the two 12,000 gallon tanks. Exh. B. It is
this determination that is the subject of the motions for summary judgment.
APPLICABLE STATUTES
Section 57.9 of the Act contains the requirements for accessibility to the UST Fund,
which states, in pertinent part:
a. The Underground Storage Tank Fund shall be accessible by owners and
operators who have a confirmed release from an underground storage tank
or related tank system of a substance listed in this Section. The owner or
operator is eligible to access the Underground Storage Tank Fund if the
eligibility requirements of this Title are satisfied and:
1. Neither the owner nor the operator is the United States
Government.
2. The tank does not contain fuel which is exempt from the Motor
Fuel Tax Law.
***
4. The owner or operator registered the tank and paid all fees in
accordance with the statutory and regulatory requirements of the
Gasoline Storage Act.
b. An owner or operator may access the Underground Storage Tank Fund for
costs associated with an Agency approved plan and the Agency shall
approve the payment of costs associated with corrective action after the
application of a $10,000 deductible, except in the following situations:
1.
A deductible of $100,000 shall apply when none of the
underground storage tanks were registered prior to July 28, 1989,
except in the case of underground storage tanks used exclusively to
store heating oil for consumptive use on the premises where stored
and which serve other than farms or residential units, a deductible
of $100,000 shall apply when none of these tanks were registered
prior to July 1, 1992. (emphasis added)
***
c. Eligibility and deductibility determinations shall be made by the Office of the
State Fire Marshal.
***
PETITIONER’S MOTION
3
Petitioner asserts that there is no genuine issue of material fact regarding the tanks’
registration and the registration fees. Pet. Mot. at 2. Petitioner argues it sent the amended
registration form for the three tanks to OSFM on December 13, 1989, which is admittedly
beyond the registration date of July 28, 1989, found at Section 57.9(b)(1) of the Act. Pet. Mot. at
2. However, because the OSFM had “actual notice” that the three tanks were replacing the
previously registered five tanks, petitioner argues the tanks were timely registered. Pet. Mot. at
3.
2
Petitioner emphasizes that it paid the fees for the tanks on time. Pet. Mot. at 3.
Petitioner relies on Stroh Oil. v. Office of the State Fire Marshal and Pollution Control
Board, 281 Ill. App. 3d 121, 665 N.E. 2d 540 (4th Dist. 1996). In Stroh, the appellate court held,
in part, that the OSFM’s supervision of petitioner’s 1988 tank installation was insufficient for
purposes of registration as required by the Gasoline Storage Act (430 ILCS 15/4 (2000)). Stroh,
281 Ill. App. 3d at 125, 665 N.E. 2d at 544. The petitioner in Stroh had argued that the OSFM’s
supervision of the tank’s installation was sufficient to fulfill the notification requirements of the
Gasoline Storage Act. In the instant case, petitioner argues that unlike Stroh, it filed a timely
notification of the USTs when it filed the original notification of the five original tanks. Pet.
Mot. at 4.
Petitioner further argues that the replacing the five tanks with the three tanks “grew out
of the same transaction” and involved the same site. Pet. Mot. at 5. It argues that the December
1989 registration form “relates back” to the timely registered five tanks. Pet. at 5.
OSFM MOTION
OSFM argues that petitioner admits the three tanks were not registered until December
1989. OSFM Memo at 4. OSFM further argues that payment of fees does not constitute
registration of the tanks. OSFM Memo at 5. OSFM notes that Section 57.9(a)(4) of the Act
requires that the tanks be registered and all fees paid to be eligible to access the UST Fund.
OSFM Memo at 5. OSFM determined that petitioner was eligible to access the fund. OSFM
Memo at 5. OSFM further argues that Section 57.9(b) refers only to the tanks’ registration date,
not the payment of fees. OSFM Memo at 5. OSFM also argues that petitioner cannot
“bootstrap” the registration of the five tanks to the unregistered three replacement tanks. OSFM
Memo at 5.
STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate when the pleadings and depositions, together with any
affidavits and other items in the record, show that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v.
Gleason, 181 Ill. 2d 460, 693 N.E.2d 358 (1998). In ruling on a motion for summary judgment,
the Board “must consider the pleadings, depositions, and affidavits strictly against the movant
and in favor of the opposing party.” Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370.
2
The OSFM had representatives at the site when the five tanks were replaced. Pet. Mot. at 3.
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Summary judgment “is a drastic means of disposing of litigation,” and therefore it should
be granted only when the movant’s right to the relief, “is clear and free from doubt.” Dowd, 181
Ill. 2d at 483, 693 N.E.2d at 370, citing Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871
(1986). However, a party opposing a motion for summary judgment may not rest on its
pleadings, but must “present a factual basis which would arguably entitle [it] to a judgment.”
Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994).
To grant either motion for summary judgment, the Board must find that there is no
genuine issue of material fact and that the undisputed facts show that the party that filed the
motion’s right to the relief requested is “clear and free from doubt.”
See
Dowd, 181 Ill. 2d at
483, 693 N.E.2d at 370, citing Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.
ANALYSIS
The UST reimbursement statute is clear that a $100,000 deductible applies when no
USTs are registered before July 28, 1989.
See
415 ILCS 5/57.9(b)(1) (2000). It is uncontested
that petitioner did not file the registration form for the three USTs until December 1989, more
than five months after the statutory deadline. Both parties agree that petitioner is eligible to
access the UST fund. There are no genuine issues of fact in this instance.
The only issue is one of law: namely, whether petitioner’s registration of the five tanks in
1986 transfers to the three tanks petitioner installed to replace the properly registered five tanks.
The Board finds that nothing in the Act supports the theory that tank registration is transferable.
The Board further finds that petitioner’s payment of fees is only relevant in determining
whether petitioner is eligible to access the UST fund, pursuant to Section 57.9(a)(4) of the Act.
Whether petitioner is eligible to access the fund is undisputed. Therefore, petitioner’s argument
that he paid the fees for the tanks is irrelevant to the issue of what deductible applies.
CONCLUSION
The Board finds that the OSFM correctly determined that petitioner registered the tanks
after July 28, 1989. The Board also finds that the undisputed facts show that OSFM’s right to
the relief requested is clear and free from doubt.
This opinion constitutes the Board’s findings of fact and conclusions of law.
ORDER
The Board hereby affirms the OSFM’s finding that petitioner is eligible for the $100,000
deductible pursuant to Section 57.9(b) of the Act. Petitioner’s motion for summary judgment is
denied. OSFM’s motion for summary judgment is granted. As there are no remaining issues in
this case, the docket is closed.
IT IS SO ORDERED.
5
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2000);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above opinion and order on October 18, 2001, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
