ILLINOIS POLLUTION CONTROL BOARD
June 4,
1992
VILLAGE OF LINCOLNWOOD,
)
a Municipal Corporation,
)
)
Petitioner,
)
PCB 91—83
v
)
(Underground Storage
Tank
)
Fund Reimbursement)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by M. Nardulli):
This matter is before the Board on a motion for summary
judgment filed by the Illinois
Environmental Protection Agency
(Agency)
on April 27,
1992.
On May 20,
1992, the Village of
Lincolnwood
(Village) filed its motion for leave to file its
response instanter and a motion to supplement the record.
The
Village’s motion to file its response instanter is granted.
On February
1,
1991,
the Village filed an application for
reimbursement from the Underground Storage Tank Fund (Fund)
for
corrective action costs associated with seven underground storage
tanks
(USTs).
Three UST5 were registered with the Office of
State Fire Marshal
(OSFN)
on February 20,
1990.
The remaining
four USTs (referred to as the “four abandoned tanks”), which were
discovered during the removal of the three registered USTS,
have
not been registered with the OSFM.
All seven USTs were removed
under the guidance of OSFM and the Agency and corrective action
costs of $510,823.48 have been incurred by the Village
(R. 21.).
On February
1,
1991,
the Village filed an application
seeking reimbursement from the Fund.
The application states that
the date the four abandoned tanks were taken out of service is
unknown, that the contents of the tanks was “unknown/sand” and
that •they were not registered because they were “exempt/abandoned
before 1970”.
(R.
17—20.)
On April 15,
1991, the Agency issued
its denial letter stating that the three USTs are subject to a
$100,000 deductible pursuant to Section 22.18b(d) (3) (B)
(i)
of the
Environmental Protection Act (Act)
because none of the tanks on
site were registered prior to July 28,
1989.
(Ill.
Rev.
Stat.
1989,
ch.
111.1/2, par. 1022.18b(d)(3)(B)(i).)
The Agency also
found that corrective action costs associated with the four
abandoned tanks were not eligible for reimbursement from the Fund
because the tanks were not registered with the OSFM as required
by Section 22.l8b(a) (4) and because the application indicated
that the contents of the tanks were unknown and, therefore, the
costs were not incurred as a result of a release of petroleum
134—33
2
(Ill. Rev.
Stat.
1989,
ch.
111 1/2, par.
1022.l8(b)(a)(3).)
On
May 20,
1991, the Village filed its petition seeking review of
the Agency’s Fund decision.
In its prayer for relief, the
Village asks that the Agency’s denial of eligibility be reversed,
or alternatively, that the Board direct the OSFM to register the
four abandoned tanks.
The Agency contends that there is no genuine issue of
material fact as to whether the four abandoned tanks are
registered with the OSFH and that, as a matter of law, corrective
action costs associated with these tanks are not eligible for
reimbursement from the Fund.
The Village contends that a genuine
issue of material fact exists as to whether the four tanks can be
registered.
Pursuant to Section 4(b)
of the Gasoline Storage Act
(Ill.
Rev. Stat.
1989,
ch.
127 1/2, par.
156(b)), the OSFM has taken
the position that it cannot register tanks taken out of service
prior to January 1,
1974.
(See also,
Sparkling Spring Mineral
Water v. IEPA (March 14,
1991), PCB 91—9.)
The Village seeks to
avoid summary judgment by asserting that a genuine issue of
material fact exists as to whether the OSFN should have
registered the four USTs.
According to the Village,
if this case
proceeded to hearing, the Village could prove that two of the
four tanks were not taken out of service until the late 1970’s
and early 1980’s.
The Village has attached affidavits in support
of this contention.’
The Village has also attached a letter to
OSFN requesting reconsideration of its decision and the affidavit
of the Village’s attorney attesting to a conversation with the
OSFN concerning reconsideration of the OSFN’s determination that
the four abandoned tanks cannot be registered.
The Board’s opinions in UST cases illustrate the confusion
encountered. by Fund applicants.
(See ~.g., Rockford Drop Forge
Co.
v. IEPA (December 20,
1990),
PCB 90-46; Lawrence Cadillac v.
IEPA (February 6,
1992), PCB 91-133.)
However, under the
statutory division of authority, the OSFN is the agency with the
authority to register USTs.
(Ill. Rev.
Stat. 1989,
ch.
127 1/2,
par. 156.)
The parties agree that the four abandoned USTs are
not registered.
Under Section 22.18b(a) (4)
of the Act, an owner
or operator of a UST is eligible for reimbursement from the Fund
only if the UST is registered with the OSFM.
(Ill. Rev.
Stat.
1989,
ch. 111 1/2, par. 1022.18b(a)(4).)
The Board has no
authority over registration of USTs and,
therefore, the issue of
whether the four USTs could,
should, or might be registered is
1
The Village filed a motion to supplement the record
with affidavits and letters attached tO its repsonse.
The Board will consider these documents in determining
whether a genuine issue of material fact exists,
but
denies the motion to supplement the Agency record.
134—34
3
not material to the Board’s review of the Agency’s motion for
summary
judgment.
Because
it is undisputed that the four abandoned UST5 are
not registered with the
OSFM,
and because the Act requires that
tanks be registered on order to qualify for reimbursement, the
Board finds that there are no genuine issues of material fact
and the Agency’s denial of eligibility is correct as a matter of
law.
The Agency also moves for summary judgment on its
determination that the three registered tanks are subject to a
$100,000 deductible pursuant to Section 22.28b(d)(3)(B)(i) of the
Act.
In Ideal Heating Co.
v.
IEPA (January 23,
1992), PCB 91-
253, the Board held that Agency determinations on the applicable
deductible amount are not ripe for Board review.
Consequently,
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 appealable to the
Board.
The instant situation presents an issue of first impression
for the Board as to how Ideal Heating applies to an Agency denial
of eligibility and application of a deductible in a single denial
letter.
Because an Agency denial of eligibility alone is
appealable under Ideal Heating, the Board concludes that such a
determination remains appealable even when coupled with a
deductible determination as in the instant case.
However, an
Agency deductible determination is still not ripe for review even
when coupled with a denial of eligibility.
Therefore, the Board
finds that the Agency’s motion for summary judgment on its
determination that the three registered tanks are subject to a
$100,000 deductible is denied as this deductible determination is
not ripe for review pursuant to Ideal Heating.
Summary judgment is granted in favor of the Agency as to
its determination that costs of corrective action associated with
the four abandoned USTs are not eligible for reimbursement from
the Fund.
Summary judgment is denied as to the Agency’s
deductible decision pursuant to Ideal Heating.
This docket is
closed.
Any
appeal of an Agency final determination as to the
three registered tanks should be filed as a new petition for
review.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(Ill. Rev.
Stat.
1989,
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.
134—35
4
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Bq~d,
hereby c
ify that the above order was adapted on the
~-‘~-Lday of
____________,
1992
b
a vote of
/—O,~,
//
orothy N. ~,ünn,C1e±~kT
Illinois P~,1lutionControl Board
13 4—36