ILLINOIS POLLUTION CONTROL BOARD
July 7,
1995
R.P. LUMBER COMPANY,
INC.,
)
Petitioner,
v.
)
PCB 94—184
)
(UST
-
Fund)
OFFICE OP THE STATE
)
FIRE MARSHAL,
)
Respondent.
ORDER OF THE BOARD
(by R.C. Flemal):
This matter is before the Board on a May
1,
1995 Motion for
Summary Judgment filed by petitioner
R.P. Lumber Company,
Inc.
(R.P.)1.
R.P. requests that the Board reverse the Office of the
State Fire Marshal’s
(OSFM) deductibility determination at
issue
in this case.
On May 31, 1995 the OSFM filed a Response to Motion for
Summary Judgment.
On June 5,
1995 R.P. filed a Motion to Leave
to File Reply to OSFM’s May 31, 1995 filing.
The Board hereby
grants RP. Lumber’s June 5,
1995 Motion for Leave to File Reply
and accepts its Reply to Response to Motion for Summary Judgment.
BACKGROUND
At issue is an “L” shaped property located at 514
E.
Vandalia, Edwardsville, Madison County, Illinois.
(Pet. at
1;
MSJ at
2.)2
The entire property was owned until 1986 by
Illinois Lumber Company
(Illinois Lumber).
(MSJ at
3.)
R.P.
acquired the property in separate stages from 1986 to 1994,
and
currently owns the entire “L” property.
(Resp. Res. at
2.)
The summary judgment motion was accompanied by a motion to
file instanter,
which was granted by Board order of May 11,
1995.
By the same order the Board granted OSFM a fourteen-day period to
respond to the summary judgment notion.
2
Petitioner’s June 27, 1994 Petition ror Review will be
cited as “Pet.
at
_.“;
petitioner’s May 1,
1995 Motion for
Summary Judgment will be cited as “MSJ at
_.“;
the Agency
record will
be cited as
~
at
_.“;
respondent’s Response to
Interrogatories will be cited as “Res.
Inter.
at
.“;
and
respondent’s Response to Motion for Summary Judgment will be
cited as “Resp.
Res.
at
4
R.P. purchased the first portion of the “L” property on
September 26,
1986, the second portion on April 14,
1988,
the
third portion on December 31,
1991,
and the fourth and final
portion in December 1994.
(Resp.
Res.
at
2.)
The September 1986
and April 1988 purchases were made from Illinois Lumber; the
December 1991 and December 1994 purchases were made from the Bank
of Alton, which had foreclosed upon Illinois Lumber’s interest.
(MSJ at
3.)
Prior to any of the purchases by R.P., Illinois Lumber had
on April
14,
1986 registered one underground storage tank (UST)
on the “L” property; this tank is hereinafter referred to as UST
#1.
Based upon the 1986 registration of liST #1, OSFM designated
the Illinois Lumber site with facility number 6-015341.
(MSJ at
3.)
On October 10,
1991, a release from liST #1 was reported to
the Illinois Emergency Management Agency
(IEMA).
(MSJ at
3.)
On
the
same day the Bank of Alton removed UST #1.
(MSJ at
3;
R.
at
35.)
The location of UST #1 was in the fourth parcel of the “L”
property, that parcel purchased by R.P. in December 1994.
In 1992 two additional USTs were discovered.
Both were
located on the parcel of the “L” property purchased by R.P.
in
September 1986.
(MSJ at
3.)
The first, known hereinafter as UST
#2, was a 500-gallon tank containing petroleum products;
liST #2
had been taken out of use prior to January
1,
1974.
(MSJ at
1.)
Upon discovery of UST #2, R.P. notified OSFM,
which assigned the
facility number 6-031455 and issued a permit for removal of the
tank.
(MSJ at
2.)
Additionally,
according to R.P.,
R.P.
was
told by the OSFM that the UST #2 “tank need not be registered”.
(Is)
On December
3,
1992, while removing liST #2,
R.P.
discovered
liST #3, a 550-gallon tank.
Thereafter on December 16,
1992, R.P.
submitted paperwork to the OSFM to register UST #2~,noting that
UST #3 had been taken out of operation on September
1,
1977.
(Is)
A permit for removal of UST #3 was issued on January 15,
1993,
and UST #3 was removed on February 18,
1993.
(MSJ at 2.)
During
the
removal
of
UST
#3
a
“significant release of petroleum
was discovered from the tanks”; R.P.
notified IEMA, which issued
incident number 92-3437 to the release.
(Id..)
This release of
petroleum at UST #3 is at issue in R.P.’s petition for review.
~ R.P. does not claim that UST #2 was actually ever
registered
by
the
OSFM.
j
On March 15, 1994 R.P.
filed a Reimbursement Eligibility and
Deductibility Application
(Pet. at
2) with the OSFM pursuant to
Section 57.9(c) (1)
of the Act
(415 ILCS 5/57.9(c) (1))
to access
the Illinois Underground Storage Tank Fund
(Fund) with respect to
the release from UST #3,
incident number 92—3437
(MSJ at 3.).
The OSFM issued a final deductibility determination letter
on March
29, 1994 and re-issued the letter on May 20, 1994 after
the OSFM
discovered
that the March 15th letter
was lost
in the
mail.
(Resp. Res. at 2.)
Both letters found R.P. eligible to
seek reimbursement from the Fund for UST #3,
incident number 92-
3437, subject to
a $100,000 deductible.4
(Pet.
at
2; Resp.
Res.
at 2.)
The OSFM determined this deductible because “no UST on
petitioner’s site at the time of the removal/release was
registered prior to July 28, 1989.”
(Resp.
Res.
at
3.)
STATUTORY
FRAMEWORK
Section 57.9(b)
of the Act states in relevant part:
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,
.
2.
A deductible of $50,000 shall apply if any of
the underground storage tanks were registered
prior to July
28,
1989, and the State
received notice of the confirmed release
prior to July
28,
1989.
3.
A deductible of $15,000 shall apply when one
or more, but not all,
of the underground
storage tanks were registered prior to July
28,
1989,
and the State received notice of
the confirmed release on or after July 28,
1989.
(415 ILCS 5/57.9(b)
(1992).)
‘
The OSFM also determined R.P. was ineligible to seek
indemnification associated with the UST #1.
LA
“Site”
is defined in the Act as:
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
(1992).)
DISCUSSION
R.P.
argues that the application of the $100,000 deductible
is inappropriate and a $15,000 deductible should apply.
(MSJ at
4.)
R.P. claims that in 1986 when Illinois Lumber registered UST
#1, the property included the entire “L” shaped tract, including
the portion where the unregistered
liSTs #2 and #3 were located.
(MSJ at 4-5.)
R.P. asserts that the definition of
“site” in the
Act
means that the Illinois
Lumber/R.P.
Lumber property
constitutes a single site for the deductible provisions of the
Fund because the entire “L” shaped property constituted a single
tract of land in 1986 when liST #1 was registered,
and is again
owned by a single owner in 1995.
(MSJ at
6.)
Additionally, R.P.
asserts that at all times the portions of the tract have remained
contiguous and have never been separated by a public right-of—
way.
(MSJ at 7.)
The OSFM claims the $100,000 deductible amount was issued
because no USTs on petitioner’s site at the time of
removal/release were registered until after July 28,
1989.
(Resp. Res.
at 3;
Res. Inter.
at
1.)
The OSFM argues that a “UST
located on the portion of property obtained by petitioner in
December of 1994 was registered on April
14,
1986, but at the
time of the release for which petitioner seeks to access the UST
fund,
this property was owned by the Bank of Alton”.
(Resp. Res.
at 3.)
The OSFM concludes that “(t)he tank referenced was not and
has never been owned by R.P. Lumber, therefore,
it would not
affect the deductible assigned to the R.P. Lumber facility”
because the applicant for the deductible must be the owner or
operator of the UST for which eligibility has been applied.
(Res.
Inter.
at 2 citing 415 ILCS 5/57.9)
The OSFM argues that
R.P. cannot legally claim ownership of tanks owned by another
party.
(Res.
Inter.
at
3.)
According to the OSFM,
at the time
of removal and discovery of the release,
at the time of
application to the Fund,
and at the time when the deductibility
determination was made,
no UST at the site was registered prior
to
July
28,
1989.
(Resp. Res. at
3.)
Illinois Lumber reported the release from UST #1 on October
10,
1991.
(MSJ at 3.)
The Bank of Alton subsequently acquired
F;
that tank and the property on which it was located through
foreclosure.
The Bank of Alton then removed the UST from the
property on October 10,
1991.
UST #1 was registered,
leaked and
removed prior to R.P. acquiring that portion of the property.
R.P. did not purchase the property on which registered UST #1 was
located until December 1994.
(MSJ at
3.)
R.P.
is correct in its assertion that Section 57.9(b)
does
not limit the deductibility to the entity which owned the UST at
the time of registration.
The fact that R.P. was not the actual
entity who registered UST #1 is not dispositive of this matter.
The OSFM explains that its determination
is not based on the fact
that R.P. did not own the property when UST #1 was registered in
1986, but rather on that fact that R.P. never owned the tank at
facility number 6015341, UST #1.
(Res.
Inter,
at
3.) The
property on which UST #1 was located was owned by someone other
than R.P. from 1986 to December 1994.
The Act
states
that
“(a)n owner or operator may access
the
Underground Storage Tank Fund for costs
.
.
.“
subject to a $15,000
deductible when
~
.one or more,
but not all,
of the underground
storage tanks were registered prior to July 28, 1989...”.
(415
ILCS 5/57.9(b),
57.9(b)(3)
(1992).)
R.P. was not the owner or
operator of UST #1, nor was it the owner or operator of UST #1’s
site,
until after the OSFM made its final determination.
The
applicant for the deductible must be the owner or operator of the
UST on which Fund eligibility has been determined.
R.P. cannot
benefit from a $15,000 deductible based upon a tank at a site
which it did not own when it applied for Fund reimbursement for a
release at another site.
Accordingly in this matter, where none
of the tanks were registered prior to July 28,
1989, the
applicable deductible is $100,000.
In addition, Section 57.9(b)
refers to a
“site”.
The
integrity of the original “site” was not restored until R.P.
purchased the final piece which previously contained UST #1.
R.P. cannot claim in March of 1994 that the site was restored to
its original composition before the final piece was purchased in
December 1994.
The only indication the OSFM had of R.P.’s
intention to purchase the final piece of property was a letter
received on July 23, 1993 which stated that “it is the intention
of R.P. Lumber to acquire the 4th, which is the final, portion of
the site from the Bank of Alton.”
(Record at 33.)
The OSFM
cannot reasonably rely on R.P.’s “intention” to perform in the
future.
Under the facts before the OSFM and the Board, the
integrity of the site was not restored prior to the OSFM’s
deductibility determination.
It is well established that an administrative agency has no
inherent authority to amend or change its decision and may
undertake reconsideration only where authorized by statute.
4lciinton County Oil Co.,
Inc., Hoffman/Meier’s Shell and Clarence
6
Meier v.
IEPA,
PCB 91-163,
(March 26, 1992);
Reichold Chemicals
Inc.
v.
PCB (3d Dist.
1991), 204 Ill. App.
3d 674, 561 N.E.2d
1343.)
Although the Board possess such power, the appellate
court has held that the Agency has no such reconsideration
powers.
(Reichold,
561 N.E.2d 1343.)
Here the OSFM deemed R.P.
eligible to access the Fund with
a $100,000 deductible in March
1994.
The fact that R.P. went and purchased a registered tank
site in December 1994,
after the OSFM made its final
deductibility determination, does not alter the outcome. The OSPM
has no power to reconsider its final decision.
Although at times the OSFM incorrectly interprets RP.’s
position, the Board is persuaded that if R.P. were allowed to
benefit from the $15,000 deductible, the OSFM would be placed in
the exacting position of determining whether or not every site
applying for access to the Fund was once part of a larger site
which contained a UST registered prior to July 28,
1989 and may
in some future time be restored.
The Board notes that the OSFM
postulates that had the release from R.P.’s UST #3 occurred after
December 1994, R.P. would have been eligible for the $15,000
deductible.
(Resp. Res.
at 7.)
CONCLUSION
The Board hereby denies R.P. Lumber’s motion captioned
Motion for Summary Judgment, which text moves for partial summary
judgment.
R.P. Lumber has requested this matter be set for hearing for
other issues raised in this case.
It appears the only
outstanding argument is the Forms Management Program Act
(20 ILCS
435/4(a))
issue raised in the Amended Petition filed on April
26,
1995.
In light of today’s action, the Board believes this issue
may not warrant going
to
hearing in this matter.
Therefore if
R.P. Lumber wishes to proceed to hearing on this or any other
theory raised in the pleadings thus far, the Board directs
petitioner to brief why such
issues are appropriate for hearing
at this stage.
Such brief shall be filed,
if one is not
received, on or before August
6,
1995.
IT IS SO ORDERED.
Clerk of the Illinois Pollution Control
above order was adopted on the
1995, by a vote of
7—0
~
Dorothy M.
Gjnfts,
Clerk
Illinois
Po(ll tion Control
I, Dorothy
74.
Board,
~7tt
day
7
