ILLINOIS POLLUTION CONTROL BOARD
September 21,
1995
BARBARA
L. HEISER
(HEISER’S GARAGE),
Petitioner,
v.
)
PCB 94—377
)
(UST
-
Fund)
OFFICE OF THE STATE
)
FIRE MARSHAL,
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by M. McFawn):
This matter is before the Board on a December
9,
1994
petition for review filed by Barbara Heiser d/b/a Heiser’s Garage
(Heiser),
seeking review of a December 5,
1994 final
eligibility/deductibility determination issued by the Office of
the State Fire Marshal (OSFM).
Heiser seeks the reversal of
OSFM’s imposition of a $100,000 deductible, and seeks to have a
$10,000 deductible applied to the site.
Additionally, there are several motions and responsive
pleadings pending before the Board.
Heiser filed a motion for
summary judgment with supporting affidavit and supporting
memorandum on June 12,
1995.
On June 26, 1995 the OSFM filed a
cross—motion for summary judgment and a response to petitioner’s
motion for summary judgment, with a supporting memorandum.
Also
on June 26,
1995, OSFM filed a motion to strike petitioner’s
affidavit in support of its motion for summary judgment.
On July
10,
1995, Heiser filed a response in opposition to OSFM’s motion
to strike,
accompanied by a motion for leave to file instanter.
On July 12, 1995 Heiser filed a combined response to OSFM’s
cross-motion for summary judgment and reply to OSFM’s response to
Heiser’s motion for summary judgment.
1-teiser tiled a motion for
leave to file the reply on July 18,
1995.
Also on July 18,
1995
OSFM filed a reply to Heiser’s response to the motion to strike,
accompanied by a motion for leave to file.
Motions for Leave to File
As an initial matter, we will address the various motions
for leave to file pleadings.
We grant Heiser’s motion for leave
to file a response to OSFM’s motion to strike petitioner’s
affidavit; we believe that no prejudice will result from allowing
Heiser to respond to this motion.
Because Heiser’s response to
the OSFM motion to strike raised new issues, we also grant OSFM’s
motion for leave
to
file
a
reply
to
Heiser’s response.
Finally,
we also grant Heiser’s motion for leave to file a reply to the
OSFM’s response to Heiser’s motion for summary judgment.
2
Notion to Strike
We will next address the OSFM’s motion to strike the
affidavit of Barbara Heiser, Heiser’s response to that motion,
and the OSFM’s reply.
The affidavit of Barbara Heiser was
submitted in support of
Jleiser’s
motion for summary judgment.
The affidavit describes Barbara Heiser’s relationship to the
business conducted at the site, and the actions surrounding the
discovery of the petroleum release at the site.
It includes
descriptions of the illness of Raymond Heiser, who suffered from
cancer which ultimately caused his death on November 15,
1993,
and the illness of Linda Moelle Heiser, the wife of Norman
Heiser, who also suffered from cancer, and who died in 1993.
Several documents were attached to the affidavit as exhibits and
referenced therein, which were not included in the OSFM’s record
on appeal.
These documents include correspondence sent between
Norman Heiser and the Agency between October and November 1989.
The OSFM seeks to strike the
affidavit
of Barbara Heicor, on
the grounds that the affidavit contains conclusory and irrelevant
statements, and statements which are not within the affiant’s
personal knowledge.
The OSFM asserts that,
since the affiant
admits that she did not manage the businesses operated at the
site, and that she was unaware of any problems with the property
until early 1994,
it can be reasonably inferred that she lacks
any personal knowledge regarding the release of petroleum and the
facts surrounding that release.
The OSFM therefore asserts that
the Board should not consider Mrs. Heiser’s affidavit, and should
strike the affidavit in its entirety.
Alternatively, the OSFM
asserts that the Board should strike those portions of the
affidavit that contain conclusory or irrelevant statements, and
identifies paragraphs 11-14,
and 18-19 as those portions of the
affidavit which should be stricken.
The Board’s procedural rules do not address what information
can be properly submitted in an affidavit supporting
a motion for
summary judgment.
The Board’s procedural rule at 35 Ill. Adm.
Code 101.100 provides that in the absence of a specific rule in
the Board’s procedural rules, the parties may argue that a
particular provision of the Code of Civil Procedure or Supreme
Court Rules should apply.
In its motion to strike, the OSFM
seeks to rely on Supreme Court Rule 191(a), which provides:
Affidavits in support of and in opposition to a motion for
summary judgment
.
.
.
shall be made on the personal
knowledge of the affiants; shall set forth with
particularity the facts upon which the claim, counterclaim,
or defense is based; shall have attached thereto sworn or
certified
copies of all papers upon which the affiant
relies; shall not consist of conclusions but of facts
admissible in evidence; and shall affirmatively show that
the affiant,
if sworn as a witness, can testify competently
3
thereto.
If all of the facts to be sworn are not within the
personal knowledge of one person, two or more affidavits
shall be used.
The OSFM further seeks to rely on Clausen
V.
Ed Fanning
chevrolet.
Inc.,
8 Ill App.3d 1053,
291 N.E.2d 202 (3d Dist.
1972), which holds that conclusions to which an affiant cannot
competently testify should be disregarded in considering
a motion
for summary judgment.
Heiser argues that, pursuant to Chemrex v. Illinois
P~1lutioTL,Control Board, 257 I1l.App.3d 274,
628 N.E.2d 963
(1993),
it is necessary and appropriate for petitioner to present
facts and equitable considerations which support application of
the rule of law established in Chemrex.
Heiser cites State Farm
Mutual Automobile Insurance Company v. Short, 125 Ill.App.2d
97,
260 N E.2d 415
(5th Dist.
1970), for the proposition that “where
a witness is qualified to express
.
.
.
an opinion by reason of
his special knowledge or familiarity with
the matter in
question, he will be permitted to give his conclusion”
(260
N.E.2d at 418).
Heiser asserts that the information in paragraph 11 of
Barbara Heiser’s affidavit is
a conclusion which the affiant
is
clearly qualified to express based on her relationship to Raymond
Heiser, and
her
observations of
hint during his illness.
Heiser
asserts that this information is relevant as an equitable
consideration pursuant to Chemrex.
Similarly, petitioner asserts
that the information in paragraph 12 concerning the illness of
Linda Heiser is within the scope of the affiant’s personal
knowledge,
since the affiant was her sister—in-law, and that this
information is similarly admissible as an equitable consideration
pursuant to Chemrex.
Regarding paragraph 13, petitioner asserts that the
conclusion therein is based
on
the
affiant’s relationship with
her husband and brother-in—law,
and her personal observations of
their behavior.
Petitioner asserts that this information is also
relevant as an equitable consideration under Chemrex.
Regarding the documents referenced in paragraph 14,
petitioner, citing Mitchell v.
Simms,
79 Ill. App.
3d 215,
398
N.E.2d 211,
216
(1st Dist.
1979), asserts that the affiant,
as
executor of the estate of Norman Heiser,
is in a position to
testify regarding the referenced documents through personal
knowledge.
Petitioner also argues that those documents are
relevant to show that,
under the rule in Chemrex, petitioner
embarked upon remediation,
and was diligently pursuing such
remediation until his illness prevented him from doing so~
Regarding the statement in paragraph 18, petitioner admits
that the evidence is arguably hearsay, but asserts that the same
4
information is included in the record on appeal.
Finally,
concerning paragraph 19 of the affidavit,
petitioner asserts that
Barbara Heiser is competent to testify at hearing regarding
petitioner’s diligent efforts to resolve all remaining issues
concerning underground storage tanks
(USTs) at the site.
We find that it is inappropriate to strike the entire
affidavit.
Barbara Heiser is the executor of the estate of
Raymond Heiser, and as such
is now responsible in part for the
site and related obligations.
As such she was required to take
charge of activities at the site, and to familiarize herself with
earlier activities associated with the USTs.
She is therefore
competent to attest to facts concerning the site and related
activities.
We will therefore consider the OSFM’s objections to
particular portions of the affidavit.
Concerning paragraphs 11-13
of the affidavit, we find that
Barbara Heiser is clearly competent to testify regarding the
illnesses of her husband and sister—in—law, and the impact that
those illnesses had on the lives of the Heiser family.
We
therefore deny OSFM’s motion to strike these paragraphs.
OSFM’s
remaining objections to paragraphs
11-13 are based upon OSFM’s
belief that the Board should reject petitioner’s
legal theory
regarding the application of Chemrex to the present case.
The
appropriateness of petitioner’s legal theory will be addressed
separately below.
Concerning paragraph 14 and the referenced exhibits attached
to the affidavit,
we find that they should be stricken.
This is
not information which was within Barbara Heiser’s personal
knowledge.
Furthermore, the Board must make its determination
based upon the record that was before OSFM at the time of its
decision.
The documents which petitioner seeks to admit were not
before OSFM at the time of its decision, and they therefore
cannot be admitted to form the basis of our opinion in this
matter.
We find that the portion of paragraph 18 referencing the
conversation between Duane Haag,
a friend of the Heiser family,
and Jane Squires of the OSFM,
is based on hearsay.
We therefore
grant the motion to strike this statement.
However, we note
that,
as petitioner correctly points out, the fact that this
phone conversation took place is recorded in the record on
appeal.
Petitioner can therefore rely on this record in
asserting that such a conversation took place.
We also grant the
motion to strike paragraph 19, referencing the “diligent efforts”
of Barbara Heiser to resolve any conflicts concerning the USTs at
the site.
This statement is self—serving and conclusory.
BACKGROUND
Heiser is the owner of a facility known as Heiser’s Garage
located at 1728
N. Sheridan Road, Peoria,
Illinois (the site).
The site previously contained four USTs.
The four UST5 were
removed from the site on September 20,
1989,
by Illinois Oil
Marketing Equipment, Inc., pursuant to a removal permit issued by
OSFM.
A release was discovered during the removal of the tanks,
and the Illinois Emergency Management Agency
(TEMA)
was notified.
The matter was assigned
IEMA
Incident No. 89—1836.
Ileiser also
attempted to register the USTs on September 20,
1989,
by
submitting a “Notification for Underground Storage Tanks” to the
OSFM’s Division of Petroleum/Chemical Safety.
On November 13,
1991, OSFM sent a letter to Heiser acknowledging receipt of the
notification, but denying registration, stating that the tanks
did not meet the criteria for registration.
On July
5,
1994, pursuant to a June 29, 1994 inquiry from
Barbara Heiser, the OSFM sent Heiser
an
administrative order
informing Heiser that the four tanks at the site were not
registered since they had not been in use at any time since
January
1,
1974.
Subsequently, by letter dated September 12,
1994, PDC Technical Services
(PDC)
provided documentation to OSFM
that the tanks were in use in 1979.
By letter dated October
7,
1994, OSFN rescinded the July 5,
1994 administrative order
because the tanks at the site were in operation after January
1,
1974.
PDC submitted an eligibility/deductibility application on
Heiser’s behalf, which was received by OSFM on September 15,
1994.
OSFM determined that the initial application was
deficient,
since Heiser owed $2,400 in annual and/or late tank
registration fees.
On November 4,
1994, Heiser resubmitted the
application, accompanied by the appropriate fees.
On November
10,
1994 the OSFN issued its final eligibility/deductibility
determination, finding that petitioner was eligible to access the
UST Fund with a $100,000 deductible.
Summary judgment is appropriate where there are no genuine
issues of material fact to be considered by the trier of fact and
the movant is entitled to judgment as a matter of law.
(Waste
Management of Illinois,
Inc.
V.
IEPA
(July 21,
1994) PCB 94—153;
ESG Watts
V.
IEPA (August 13, 1992), PCB 92-54; Sherex Chemical
v. IEPA (July
30, 1992),
PCB 91-202; Williams Adhesives,
Inc.
v.
IEPA
(August 22, 1991), PCB 91-112.)
Because we find there are
no genuine issues of material fact, we find that summary judgment
is appropriate.
We will therefore rule on both Heiser’s motion
for summary judgment and the OSFM’s cross—motion for summary
judgment.
APPLICABLE
LAW
Statutory History
P.A. 86—125,
effective on July 28, 1989,
amended the
Environmental Protection Act
(Act)
by establishing new criteria
for UST owners and operators to access the Fund.
Pursuant to
these provisions, owners and operators of USTs were subject to a
$10,
000 annual deductible when
accessing
the Fund,
or
alternatively,
if the owner or operator failed to register its
USTs in accordance with the requirements of the Gasoline Storage
Act (GSA) prior to July 28,
1989,
the owner or operator would be
subject to a $15,000 deductible.
Specifically,
Section
22. 18b(d) (3) provided:
(A)
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 cite for which a claim is submitted.
This deductible amount shall apply annually for each
site at which costs were incurred under a claim
submitted pursuant to this Section.
(B)
If prior to the effective date of this amendatory Act
of 1989
July
28, 1989,
the owner or operator has not
registered the underground storage tanks in use on that
date at the site and paid all required fees as provided
in item
(4)
of subsection
(a), the deductible amount
under subparagraph
(A)
of paragraph
(3)
of this
subsection
(d)
for the first year in which a claim is
submitted shall be $15,000 rather than $10,000.
P.A.
86-958,
effective December 5,
1989,
amended those
deductibility provisions of the Act.
Pursuant to these
amendments,
a $10,000 deductible still applied for owners and
operators who properly registered their tanks prior to July 28,
1989.
However, additional deductible levels were established for
tank owners who did not register their tanks prior to July 28,
1989.
These levels included a $100,000 deductible for owners and
operators who failed to register any of the tanks at the site
prior to July 28,
1989,
and a $15,000 deductible
if one or more,
but not all,
of the tanks at the site were registered prior to
July 28,
1989.
Specifically, Section 22.18b(d) (3) (B)
provided in
relevant part:
(i)
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.
7
Subsequently, the legislature adopted P.A.
87-323,
effective
September
6,
1991, wherein the legislature amended Section
22.18b(d) (3) (B)
(i)
by deleting the words “in use”.
The
subsection then read as follows:
(i)
If prior to July 26,
1989, the owner or operator
had registered none of the underground storage
tanks at the site on that date, the deductible
amount under subparagraph
(A)
of paragraph
(3)
of
this subsection
(d)
shall be $100,000 rather than
$10,000.
P.A.
88-496, also known as H.B.
300, effective September 13,
1993,
moved the UST provisions of the Act to a new Title
XVI.
The sections pertaining to deductible amounts were moved to
Section 57.9.
This amendatory act also gave the OSFM authority
to determine whether an owner or operator of
a
lIST site is
eligible to seek reimbursement for corrective action costs from
thn UST Fund, and
to
determine the appropriate deductible to be
applied to reimbursement applications.
These determinations are
appealable to the Board.
Pursuant to Section 107.340 of the
Board’s procedural rules governing appeals from OSFM
determinations,
adopted on October 20,
1994 in docket R94-11, the
standard of review the Board will apply in these cases is
“whether the application,
as submitted to OSFM, demonstrates
compliance with the Act and Board regulations.”
Pursuant to Section 57.9(b)
of the Act, an eligible owner or
operator is entitled to access the UST Fund with a $10,000
deductible, unless one of the enumerated exceptions apply, which
include the following:
1)
A deductible of $100,000 shall apply when none of
the underground storage tanks were registered
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.
The OSFM applied a $100,000 deductible to the Heiser site
pursuant to Section 57
•
9(b) (1), finding that none of the tanks at
the site were registered prior to July 28,
1989.
ARGUMENTS OF THE PARTIES
Arciuments of Heiser
In the motion for summary judgment, Heiser argues that OSFM
applied the incorrect law when determining the appropriate
deductible for Heiser’s site.
OSFM applied the law in effect at
the. time the eligibility/deductibility application was submitted
on October
19,
1994.
Instead, Heiser argues that OSEM should
have applied the law in effect at the time the release was
reported on September 20,
1989.
The law in effect on that date
was Section 22.18b(d) (3),
as enacted by P.A.
86—125,
effective on
July 28,
1989.
Heiser asserts that, pursuant to that law,
it was
entitled to a $10,000 deductible.
In support of this position, Heiser asserts that the
Illinois Appellate Court has already determined that the
appropriate deductible should be determined based on the law in
effect
at the date
of
the release.
Heiser relies on Chemrox and
First of America Trust Co.
v. Armstead, 206 Ill.Dec.
935, 646
N.E.2d 303
(Ill.App.
3 Dist.
1995).
Arauments of the OSFM
In its response and cross—motion for
summary
judgment, the
OSFM asserts that it correctly applied the law in effect at the
time of the eligibility/deductibility application.
Heiser
submitted its initial eligibility/deductibility application on
September 15,
1994, and a corrected application on November 4,
1994.
The law in effect during this time period was Section
57.9(b)
of the Act, as amended by P.A.
88-496, effective
September 13,
1993.
OSFM asserts that, pursuant to this law,
it
correctly determined that Heiser was entitled to access the Fund
with a $100,000 deductible.
OSFM argues that the long-standing rule is that the law in
effect at the time of the application applies when making an
eligibility/deductibility determination, and that Heiser is
incorrectly seeking to expand the limited scope of the holding in
Chemrex.
OSFM asserts that the court in Chemrex was exercising
its equitable powers to avoid an unjust result, and that the
holding was therefore limited to its facts.
OSFM further asserts
that the facts of this case,
where the most recent amendments to
the UST law were in effect for over one year before the
application was filed, and where the application was filed almost
5 years after the release occurred, do not warrant the same
equitable consideration.
OSFM
further asserts that the right to an
eligibility/deductibility determination is not triggered solely
by the occurrence or the report of a release.
Rather, the right
to a determination is triggered by the submittal of an
eligibility/deductibility application, and then only if the
applicant meets the requirements set forth in the statute.
Heiser submitted its initial application on September 15,
1994, and a corrected application on November
4,
1994.
The law
in effect at
that
time was
Section 57.9(b)
of the Act,
as amended
by P.A.
88-496.
OSFM asserts that, pursuant to this law,
it
correctly determined that Heiser was entitled to access the Fund
with
a $100,000 deductible.
DISCUSSION
AND
DECISION
The Board has consistently held that the law to be applied
is that which is in effect upon the date the application is
filed.
(Pulitzer Community Newspaper, Inc.
v. Illinois
Environmental Protection Aciency PCB 90-142
(December
5, 1989);
Marjorie B. Campbell v. Illinois Environmental Protection Agency,
PCB 91-5
(June
6,
1991); First Busey Trust & Investment Co.
V.
Illinois Environmental Protection Agency, PCB 91—213
(February
27, 1992).
Heiser applied for an eligibility/deductibility
determination in the September of 1994,
at which time Section
57.9(b)
of the Act specified a $100,000 deductible for owners or
operators who failed to register any tanks prior to July 28,
1989.
Heiser did not register any of the tanks at the site prior
to the July 28,
1989 statutory cut-off.
Therefore, unless we
find cause not follow this precedent, the $100,000 deductible in
effect at the time of eligibity/deductibility application is the
deductible properly applied to Heiser.
Relying upon Chemrex, Heiser argues that the applicable law
is that in effect at the time the release was reported on
September 20,
1989.
In Chemrex, the Agency denied eligibility
for Chemrex to access the UST Fund based on a change in the
eligibility criteria that occurred after a release from Chemrex’s
tanks had occurred, but before Chemrex applied for reimbursement.
Having completed its remecliation, Chenrex applied to the Fund,
one month after the passage of P.A.
87-323.
P.A. 87-323 had
changed the eligibility criteria for accessing the Fund, such
that five of Chemrex’s tanks containing petroleum—based solvents
were no longer eligible for reimbursement.
The Board upheld the
Agency’s denial of eligibility, on the grounds that the law in
effect at the time the application was submitted controlled the
eligibility determination.
The appellate court reversed,
finding
that the application of the law to Chemrex constituted an
unlawful retroactive deprivation of rights.
We find that the present case is not controlled by Chemrex.
The most important distinction is that Cheirtrex involved a change
in the statutory eligibility requirements for accessing
the UST
Fund.
This change occurred between the time Chemrex initiated
corrective action and the time Chemrex submitted its eligibility
application.
The statutory amendment establishing the new
LU
eligibility criteria was,
on its face,
a “prospective” law.
A
general rule of statutory construction in Illinois requires that
an amendatory act be construed as prospective only.
(Chemrex,
257 Ill.App.3d
274,
at 502 citing Rivard v. .chicago Fire Fighters
Union, No.2
(1988),
122 Ill.
2d
303,
309,
522 N.E.2d 1195,
1198.)
This presumption of prospectivity is rebuttable by express
statutory language to the contrary, or by necessary implication
(flL. at 502 citing Rivard,
122 Ill.
2d at 309.)
In Chemrex, the
court found that express statutory
language
making the new
eligibility criteria retroactive was “absent”.
(flJ
The court
found that denying Chemrex eligibility to access the UST Fund
based on the date it submitted its eligibility application had an
unlawful retroactive effect on Chemrex.
The unlawful effect was
to deprive Chemrex of its “vested” right to seek reimbursement
front the UST Fund, when Chemrex had performed all statutory
requirements to be eligible, i.e., properly registered the USTs,
notified the proper state authority,
embarked upon and completed
remediation.
Unlike chemrex, this case involves a statutory amendment to
the deductibility provisions of the UST law.
This change
occurred between the date of Heiser’s release and the date of
Heiser’s registration of the tanks.
While the cut-off date of
July 28,
1989 remained the same, the deductible was raised to
$100,000
if none of the tanks were registered prior to the cut-
off date.
Again, there is no dispute that by July,
28,
1989,
Heiser had not registered any of the tanks at the site.
While
Heiser applied to register the tanks on September 20,
1989, OSFM
denied registration in November of 1991.
Heiser neither
appealed this decision nor reapplied for registration until three
years later in September of 1994.
Thereafter, OSFM registered
the tanks on October
7,
1994 based upon new information submitted
by Heiser.
Beginning with its first act creating the lIST Fund,
the
legislature has specifically tied the amount of the deductible to
be assessed against any reimbursement from the UST Fund to
whether or not the owner or operator had registered the
underground storage tanks by July 28,
1989.
In P.A.
86-125,
effective July 28, 1989,
if the owner or operator had not
properly registered the tank by that date, the deductible would
be $15,000.
Then,
in P.A.
86—958, effective December 5,
1989,
the legislature enacted legislation providing that if the owner
or operator had not registered any of the tanks in use as of July
28, 1989, the deductible would be $100,000.
In P.A.
87—323,
effective September 6,
1991, the legislature deleted the “in-use”
requirement and if no tanks, whether in—use or not, were
registered by July 28,
1989, the deductible would be $100,000.
While there were extensive amendments to the
lIST
law in
1993,
the
legislature again retained the $100,000 deductible
if no tanks
were registered by July 28,
1989.
(P.A.
88-496.)
i--i-
Initially,
and in all of the amendments to the deductible
provisions, the legislature has consistently determined that the
deductible will retroactively apply to the owners or operators
who failed to properly register their UST5 by July 28,
1989.
Unlike the eligibility provisions at issue in Chemrex,
since
their original adoption and with every subsequent amendment, the
deductibility provisions are expressly retroactive.
Since Heiser
submitted its deductibility application in 1994,
fully three
years after the $100,000 deductible
became applicable to any tank
not registered by July 28,
1989,
the OSFM, and consequently this
Board, has no alternative but to apply the $100,000 deductible.
Heiser’s arguments that the application of these provisions
constitutes an unlawful retrospective application is in error.
Furthermore, the amendment Heiser seeks to avoid has been in
effect since the enactment of P.A.
87-323, effective September
6,
1991.
The Illinois Supreme Court has held that there is no
vested right in the continuance of
a law.
The legislature has an
ongoing right to amend a statute
(Envirito corporation
v. The
Illinois Environmental Protection Agency,
198 Ill.
Dec.
424, 426,
632 N.E.
2d 1035
(Ill.
1994),
citing
People ex rel.
Eitel v.
Lindheimer
(1930),
371 Ill.
367,
373,
21 N.E.2d 318.)
We find
that Heiser had no reasonable expectation of application to it of
the law that was in effect almost five years prior to the
submission of its eligibility/deductibility application.
Having examined and found the deductibility provisions now
found at Section 57.9(b)
of the Act to be expressly retroactive,
we find that the law in effect at the time of Heiser’s
eligibility/deductibility application is the appropriate law to
apply.
As stated previously, the law in effect during this time
period was Section 57.9(b)
of the Act.
Pursuant to this law,
a
deductible of $100,000 applies when none of the underground
storage tanks were registered prior to July 28, 1989.
Since
Heiser registered its tanks after this date,
the OSFN correctly
applied a $100,000 deductible to the site.
We therefore affirm
the OSFM’s decision imposing a $100,000 deductible and grant the
OSFM’s cross—motion for summary judgment, and deny Heiser’s
motion for summary judgment.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The November 10,
1994 decision of the Office of the State
Fire Marshal (OSFM),
finding Barbara Heiser d/b/a Heiser’s Garage
(Heiser) eligible to access the Underground Storage Tank Fund
with a $100,000 deductible, for remediation associated with the
September 20, 1989 release of petroleum at Heiser’s facility
located at 1728
N. Sheridan Road,
Peoria,
Illinois is hereby
Li
affirmed.
Heiser’s motion for summary judgment is denied, and
OSFM’s cross—motion for summary judgment is granted.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS
5/41
(1994)) provides for the appeal of final Board orders within
35 days of the date of service of this order.
The Rules of the
Supreme
Cour?
of Illinois establish filing requirements.
(See
also 35 Ill.
Adin.
Code 101.246, “Motions for Reconsideration”.)
I, Dorothy
lvi.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the aboi~o ini.on and order was
adopted on
the
~
day of
______________
1995,
by a vote
~
A~
Dorothy M.
c34in, Clerk
Illinois Pc~utionControl Board
