ILLINOIS POLLUTION CONTROL BOARD

May 19, 1994

IKE BUICK—NISSAN, LTD.,

Petitioner,

V.

PCB 94—118

ILLINOIS ENVIRONMENTAL

(UST Fund)

PROTECTION AGENCY,

Respondent.

DOUGLAS E. HINES,

THOMAS

J. WOLF,

JR., P.C., APPEARED ON BEHALF

OF PETITIONER;

ROBERT J. SCHERSCHLIGT, APPEARED ON BEHALF OF RESPONDENT.

OPINION

AND

ORDER OF THE BOARD

(by C.A. Manning):

This matter is before the Board pursuant to a motion for

summary judgment filed by Ike Buick-Nissan on April 22,

1994.

This case was originally filed on April 7, 1994 and set for

hearing on April

21,

1994; however, due to the subsequent filing

of the summary judgment motion, no hearing has been held. The

Illinois Environmental Protection Agency

(“Agency”)

filed a

response to the motion for summary judgment on May 7,

1994 in

agreement that petitioner is entitled, as a matter of law, to

reversal of the Agency’s application of an excess deductible in

the amount of $10,000. For the reasons set forth below, we hereby

grant the motion for summary judgment.

The underground storage tank (“UST”) site at issue is the

Ike Buick—Nissan dealership located at Route 13 East and Lake

Road,

Jackson County, Carbondale,

Illinois 62902. At least two

confirmed releases were discovered on site in 1992, and were

separately reported resulting in multiple incident numbers being

assigned to the site: one incident number corresponding to a

release from either a 1,000-gallon gasoline tank or a 560—gallon

gasoline tank (Lust Incident No. 921432)

and another number for a

release from a 1,000-gallon waste oil tank (LUST Incident No.

921557).

In June of 1993,

the Agency required the dealership to

apply separately for reimbursement from Illinois’ UST Fund.

In

doing so, the Agency separately processed the costs for

reimbursement applying two separate deductibles, each in the

amount of $10,000.

Ike appealed on the basis that only one

$10,000 deductible should apply to the entire “site.”

As a matter of law, petitioner is entitled to having the

Agency apply only one $10,000 deductible for the UST site at

issue. This case appears to have been processed by the Agency

under the UST law in effect at the time the incident numbers were

assigned

(415 ILCS 4/22

.

18b et seq.), rather than under the new

---

2

Leaking Underground Storage Tank Program which was signed into

law by the Governor on September 13,

1993 as P.A. 88-496.

However, whether proceeding under the former UST law or under

P.A. 88-496, there is no question that this matter involves only

one site.

And that under either law, a site, in this case the

property known as the Ike Buick—Nissan dealership is “any single

location, place, tract of land or parcel of property including

contiguous property not separated by a public right—of-way.”

(415 ILCS 5/57.2

(1993);

see also 415 ILCS 5/3.43.)

More

importantly, under either law, only one annual deductible applies

per site regardless of the number of incident numbers assigned.

(415 ILCS 5/22.18b(d) (3) (A); 415 ILCS 5/57.8(a) (4) and 415 ILCS

5/57.9(b).)

Accordingly, petitioner’s motion for summary judgment is

granted. The Agency’s application of two $10,000 deductibles to

the Ike Buick-Nissan UST site is reversed.

This opinion constitutes the Board’s finding of fact and

conclusions of law in this matter.

ORDER

Respondent,

the Illinois Environmental Protection Agency is

hereby directed to cause reimbursement of $10,000 from the

Illinois Underground Storage Tank Fund to be paid to Ike Buick-

Nissan.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act (415 ILCS

4/40.1) provides for the appeal of final Board orders within 35

days of service of this order.

(But see also, 35 Ill.

Adin.

Code

101.246, Motions for Reconsideration.)

The Rules of the Supreme

Court of Illinois establish the filing requirements.

I, Dorothy N. Gunn,

Clerk of the Illinois Pollution Control

Bo~4~dohereby certify that the above order was adopt~don the

/

1L~i

day of

7-c~-1

,

1994,

by a vote of

~

—O

Dorothy M. ,~nn,Clerk

Illinois P?/lution

Control Board