ILLINOIS POLLUTION CONTROL BOARD
June 6,
1991
MARJORIE B. CAMPBELL,
)
)
Petitioner,
)
PCB 92—5
V.
)
(UST Reimbursement)
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER
OF THE BOARD
(by J.D.
Duinelle):
This matter comes before the Board on Petitioner’s appeal of
the
Illinois
Environmental
Protection
Agency’s
(“Agency”)
determination that Petitioner is subject to the $100,000 deductible
under the provisions of the Underground Storage Tank Reimbursement
Fund.
The appeal was filed on January 7, 1991 and hearing was held
on March
6,
1991.
The
sole
issue
in this
case
involves
the
interpretation of
Ill.
Rev.
Stat.
2989 ch.
111-1/2,
par.
1018b
(3) (B) (1) (b).
FAcTS
In 1982, Marjorie Campbell inherited a gas station from her
mother.
(Tr. at 9).
The
station had existed since 1930, but from
1979 until April of 1989 the property was leased to the operator,
Tom Doran.
(Tr. at 10).
In April of 2989,
Mr. Doran filed for
bankruptcy and the station ceased operating.
On October 19,
1989,
the Office of the Illinois State Fire Marshall (“OSFN”) recognized
the site as an abandoned station and required petitioner to either
remove
the
tanks
or
take
them out—of—service
pursuant
to
its
regulations.
(Tr. at 11).
Petitioner received a permit from OSFM
to remove the tanks on November 1,
1989.
On Nov~iuber27,
1989,
the petitioner removed the tanks from
the
site.
(Tr.
at 14).
Mr.
Douglas Kirk,
a representative of
OSFN, was present at this time.
Upon removal,
Mr.
Kirk informed
petitioner that the USTS were not registered and, further,
there
was an indication that a release of petroleum had occurred.
The
petitioner immediately completed a form to register the tanks and
notified the Emergency Services and Disaster Agency (“ESDA”) of the
suspected release.
On November 28,
1989,
petitioner sent a check
to OSFM for late registration of the tanks.
(Tr. at 14—15).
Petitioner
subsequently
sought
engineering
assistance
and
ultimately hired Berns and Clancy, Inc.
They in turn subcontracted
Goodwin and Broms,
Inc.
(“Goodwin”), an environmental engineering
firm
in Springfield.
These firms did some initial testing and were
123—25
2
prepared to undertake a full cleanup.
(Tr. at 16-22).
In April
of 1990, Goodwin sent in an application on behalf of the petitioner
to access
the. UST Fund.
On May 3,
1990, the Agency sent a letter
to the Petitioner stating that she was eligible to access the UST
Fund
and
that
her
deductible
was
detej~mined to
be
$100,000.
Although Goodwin requested reconsideration
on Petitioner’s behalf,
the Agency denied this request.
Petitioner testified that based
on this knowledge, she hired counsel.
(Tr.at
22).
She further
testified that,
as explained to her by the engineering firms, her
maximum deductible would be $15,000.
In the event that the costs
to petitioner would be $100,000, she would have to secure a loan
in order
to raise the necessary capital to achieve compliance.
(Tr. at 28).
As
a consequence, work on the site was interrupted
and..a full clean-up has not been achieved.
DISCUSSION
The
Agency
first
argues
under
which
law
Petitioner’s
application
falls.
In
a somewhat confusing manner,
the Agency
maintains
that
P.A.958,
effective
December
5,
1989
is
the
appropriate statute.
There is no contention by the petitioner that
such is not the case.
In fact,
the entire issue surrounding this
case revolves around Section 22.18b(d)(3)(B)(i)
of the Act.
In
Pulitzer Community Newspaper, Inc. v. EPA, PCB 90—142 (December 20,
1990), we stated that the applicable law is that which is in effect
upon the date of filing an application for reimbursement.
Because
the application
in the instant case was submitted on
April
19,
1990,
there
is
no
doubt
but
that
P.A.958
is
the
appropriate
benchmark.
Turning to the substantive issue, section 22.18b(d) (3) (B)
(i)
of the Act states:
If
prior
to
July
28,
1989,
the
owner
or
operator
had
registered
none
of
the
underground storage tanks in use on that date
at
the
site,
the
deductible
amount
under
subparagraph
(A)
of
paragraph
(3)
of
this
subsection
(d)
shall be $100,000 rather than
$10,000.
After the $100,000 deductible amount
has
been
paid,
the
deductible
amount
shall
thereafter be as provided under subparagraph
(A)
of paragraph
(3) of this subsection
(d).
The bone of contention in this case involves the phrase “in
use on that date at the site”.
The Agency contends that “in use”,
‘Subsequent to April of 1990,
in Reichhold Chemicals
V.
EPA,
204
Ill.
App
3d
674,
561
N.E.2d
1.343,
(3d
Dist.
1990),
the
appellate
court
held that the Agency
is without
the
statutory
authority to entertain motions for reconsideration.
123—26
3
as it pertains to an UST,
is anything which is not properly taken
out—of—service or removed.
In support thereof,
the Agency has
supplied
the
Board
with
various
definitions
such
•as
“tank”,
“regulated substance”
and “operational
life”,
which
include the
word “contain”.
In short, it is the Agency’s assertion that any
UST containing any petroleum which is not abandoned or taken out—
of—service
pursuant
to
regulation
is
“in
use”.
The
Agency.
maintains this position even though it was flatly rejected in
~XA
Land.
Inc. v.
EPA, PCB 90—188
(March 14, 1991).
In
~,
the Board stated that the “in use” language inherent
in section 22.18b(d) (3) (B) (i)
denoted an affirmative action such
as dispensing or storing.
(See also,
Dissenting Opinion by J.D.
Dumelle and J.T. Meyer).
To do otherwise, the Board stated, would
effectively
render
the
“in
use”
language
as
mere
surplusage.
Despite the fact that the Agency attempted to distinguish ~
from
the instant case, the same principle applies in toady’s case.
The
only
differences
between
~
and
the
case
at
bar
articulated by the Agency remain irrelevant factual distinctions.
These distinctions are bound to occur
in every case, yet they do
not
alter
the
meaning
of
how
a
specific
section
should
be
interpreted where those facts are not related to the term being
construed.
If
this
Board
were
to
hold
that
“in
use”
means
“containing” simply by virtue of extraneous factual differences,
the results would undoubtedly be arbitrary and capricious.
In
short,
the
precedent
set
by
~
as
it
applies
to
section
22b(d) (3) (B) (i) will be adhered to absent a legislative change.
The Agency
is equally unpersuasive when it states that “in
use” should be equated with “containing” because without such a
meaning, any new tank would only be subject to a $10,000 deductible
regardless of the actions of the owner or operator.
Taking the
provisions of the Fund in its entire context, such a rationale is
simply unconvincing.
For example, Section 22
•
18(b) (c)
states:
Notwithstanding
subsection
(a)
or
(b),
no
owner or operator is eligible to receive money
from the Fund for costs of indemnification or
corrective action for any underground storage
tank installed after July 28, 1989, unless the
owner or operator demonstrates to the Agency
that the tank was installed and operated in
accordance
with
regulations
adopted
by
the
Board.
For
purposes
of
this
subsection,
certification by the Office of the State Fire
Marshal
that
the
underground
storage
tanks
were installed in accordance with Board rules,
shall
be prima
facie evidence that the owner
or
operator
so
installed
such
underground
storage tanks.
(Emphasis added).
123—27
4
Further, Section 22.18b(d) (3) (A)
reads:
If
an owner
or operator submits
a
claim
or
claims to the Agency for approval under this
Section 22.18b,
the Agency shall deduct from
the
amount approved
a total
of
$10,000
for
each site for which a claim is submitted.
Read together, these two sections clearly take into account
the inevitability of tanks being installed subsequent to July 28,
1989.
In order to be eligible for reimbursement under the Fund,
an owner or operator would have to install and operate their tanks
in accordance with Board regulations.
If that were that case, then
the owner/operator will be subject to the $10,000 deductible.
If
the USTs in question were not operated pursuant to the regulations,
then the owner/operator would not be eligible for reimbursement at
all.
Read in its entirety, this makes sense.
We note that all of
the subsections contained within Section 22.18b(d)(3)(B)
contain
the date July 28, 1989.
These subsections contain various punitive
provisions to those owners/operators who were in business
(i.e.,
utilizing USTs)
and failed to perform certain duties by certain
dates.
All of these subsections require that the USTsin question
were being used on July 28,
1989.
In the case at bar,
it is indisputable that the USTs ceased
functioning
in
April
of
1989.
That
such
was
the
case
was
officially confirmed by OSFM.
In its letter of October 19,
1989,
the OSFM recognized that the tanks were out—of-service.
(Tr. at
57).
The Agency notes that OSFM used the word “temporarily” and
insists that the tanks were still capable of being used.
While we
agree with this possibility, the fact remains that they were not
used from April of 1989 until they were removed on November 27,
1989.
Accordingly, they were not “in use”.
The only remaining issue,
then,
is what deductible pertains
to the petitioner.
Because neither the $15,000 nor the $100,000
provisions apply,
the only alternatives are the standard $10,000
deductible
or
the
$50,000
deductible
as
enumerated
in
Section
22.18b(C)(ii).
This section states:
If the costs
incurred were
in response to
a
release
of
petroleum
which
first
occurred
prior
to
July
28,
1989,
and
the
owner
or
operator had actual or constructive knowledge
that such a release had occurred prior to July
28,
1989,
the
deductible
amount
under
subparagraph
(A)
of
paragraph
(3)
of
this
subsection
(d)
shall
be
$50,000 rather
than
$10,000,
unless subparagraph
(B)(i)
applies,
in which case the deductible amount shall be
$100,000.
If
the
costs
incurred
were
in
response to a release of petroleum which first
123—28
5
occurred .prior to July 28, 1989, but the owner
or
operator
had
no
actual
or
constructive
knowledge
that such a
release
had
occurred
prior to July
28, 1989, the deductible amount
shall be as provided under subparagraph
(A) or
(B)
of paragraph
(3)
of this subsection
(d),
whichever is applicable E(ie., $10,000)).
It
shall be the burden of the owner or operator
to prove
to the
satisfaction
of
the Agency
that the owner or operator had no actual
or
constructive
knowledge
that
the
release
of
petroleum for which a claim is submitted first
occurred prior to July 28,
1989.
Based
on
the evidence before this Board,
it
is
possible,
although unlikely, that the petitioner
in today’s case may~fall
under this provision.
It is almost certain, for instance, that the
contamination occurred prior to July
28,
1989.
The station was
built in 1930 and taken out of service in April of 1989.
The only
issue
left,
therefore,
is whether the petitioner had actual
or
constructive knowledge
of the release.
The testimony at hearing
revealed
that
the
petitioner
had
never
operated
the
station.
Moreover, the petitioner has responded diligently to every request
imposed upon her by State authorities.
She has complied with the
regulations of OSFM, paid her late registration fees, removed the
abandoned tanks and initiated a complex clean—up arrangement with
two professional firms.
This being the case, the Board is doubtful
that petitioner had either constructive or actual knowledge of
a
release prior to July 28,
1989.
Nevertheless, hearing was not held
in this regard and it is possible that evidence might exist which
would lead to a contrary conclusion.
Accordingly, we will reverse
and remand.
As a final note, the Agency has, throughout hearing and within
its closing brief, repeatedly submitted that 22.18b
~.
~.
is a
reimbursement fund.
That is,
once an applicant is determined to
be eligible,
an appropriate deductible
is ascertained and clean-
up is completed, only then is a petitioner able to access the Fund.
Although not
explicitly
stated,
the
argument
seems
to
be that
petitioner is not eligible because a full clean-up of the site has
not been accomplished.
Notwithstanding the potential merits
of
this argument,
it is
irrelevant in the case at bar.
The
issue
before this Board concerns an appeal
of
a
final
administrative
determination
as it pertains to an appropriate
deductible.
As
such,
the
Agency
is
precluded
from
arguing
eligibility
or
withdrawing its deductibility determination.
ORDER
The $100,000 deductible determination of the Agency is hereby
reversed.
The case
is
remanded t~the Agency for a determination
123—29
6
of
whether
a
deductible
of
$10,000
or
$50,000
applies
to
the
petitioner.
IT IS SO ORDERED.
Board Member B. Forcade concurred.
1,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board hereby pertify that the above Opin
n and Order was adopted
on the
_______________
day of
__________________,
1991 by a
voteof
.
7c’
.
~
~.
Dorothy M. 4unn, Clerk
Illinois Po~lutionControl Board
123—30