ILLINOIS POLLUTION CONTROL BOARD

March 16,

1995

STICKNEY-FOREST VIEW PUBLIC

)

LIBRARY DISTRICT,

)

)

Petitioner,

)

V.

)

PCB 94—224

)

(UST Fund)

OFFICE OF THE STATE FIRE

)

MARSHAL,

)

Respondent.

OPINION AND ORDER OF THE BOARD

(by C.A. Manning):

This matter

is before the Illinois Pollution Control Board

(Board) on an amended petition for review filed by the Stickney-

Forest View Public Library District

(Library or Stickney Library)

on August 23,

1994.’

Stickney is appealing the Office of State

Fire Marshal’s

(OSFM)

final eligibility determination denying the

Library eligibility to access the underground storage tank fund

(UST Fund)

issued on July 12,

1994.

On February 2,

1995, the OSFM,

by and through its counsel,

the Office of the Illinois Attorney General,

filed a motion for

summary judgment and a supporting memorandum of law.

The Library

filed its response on February 17,

1995.

For the reasons stated

below, we hereby grant the motion for summary judgment.

FACTUAL BACKGROUND

The Stickney Library is the owner and operator of one 2,000—

gallon UST containing heating oil which,

prior to its removal in

1992, was located at the Stickney-Forest View Public Library on

6800 W. 43rd Street, Stickney, Illinois in Cook County.

(R.

at

11 and 45-48.)

On April

3,

1992, the Stickney Library registered

the liST by submitting the federally and state-required

“Notification for Underground Storage Tanks”

(UST Form) to the

OSFM.

On that UST Form, the Library indicated the estimated date

of the tank’s

last use was “unknown”,

that its contents were

“unknown”, and that the tank was “permanently out of use.”

(R.

at

2.)

After Stickney removed the tank and reported a release to

the Illinois Emergency Management Agency

(IEMA)

on October 29th

1The original petition was filed August

16,

1995 and the amended

petition was filed on August

23,

1995.

---

2

of

19922

(R.

at 4), the OSFM notified the Library on February

23,

1993, that

it was necessary to submit an amended UST Form to the

OSFM, which the Library did on February 23,

1993.

(R. at 16-20.)

Again, the Library described the estimated date of the tank’s

last use as “unknown.”

(R.

at

17..)

Thereafter, on March 15,

1994,

Stickney completed an

Eligibility and Deductibility Application and submitted it to the

OSFM in order to begin the process of seeking reimbursement for

corrective action costs from the UST Fund.3

For the first time,

Stickney indicated that the heating oil UST was “out of service”

in 1960.

(R.

at 24).

Instead of accepting the application, the

OSFM returned it in order for the Library to complete yet another

UST Form.

(R.

at 25.)

The OSFM requested the Library to provide

specific information regarding the date of the liST’s last use.

(R. at 25-26.)

On June 16,

1994,

the Library resubmitted the

eligibility application and the UST Form indicating that the

estimated last date of use was “ap~rox. 1958” and that the age of

the tank was “approximately 1958.”

(R.

at 28.)

Based on the June 16,

1994 UST Form,

on July

11,

1994,

the

OSFN issued an administrative order essentially “deregistering”

the Library’s heating oil UST.

The order provided:

A review of our records indicates that the following

underground storage tank(s)

is not registered because:

Tank No.1(l)

2000 gallon heating oil not in operation

at any time since 1—1—74

(430 ILCS 15/4).

(R.

at 42.)

On its face,

the OSFM administrative

order

also provided that

it

was appealable within

10 days and that

a failure to appeal would

result

in

forfeiture

of the right to appeal.

The OSFM also

returned the Stickney Library’s

$100 UST registration

fee.

(R.

2The record on appeal

as transmitted by the OSFM to the Board indicates

that the Stickney Library notified IEMA of

a release in May of 1992.

(R.

at

4.)

31n the past, the Illinois Environmental Protection Agency made the

eligibility and deductibility determination~ however,

on September

13,

1993,

Illinois’ new Underground Storage Tank

law,

P.A.

88-496, became effective

amending the Illinois Environmental

Protection Act and the Gasoline Storage

Act.

(415 ILCS 5/57

et

seq.

and 430 ILCS 5/4 et

seq.)

Under the new law,

the OSFM became the governmental entity responsible for eligibility and

deductibility determinations.

4me Library first resubmitted the eligibility application and the UST

Form on May

4,

1994;

however, the OSFM returned the documents for

notarization.

The Library resubmitted the eligibility application and the UST

Form a second time on June

16,

1994.

(R.

at

28,

30—34.)

---

3

at 44•)5

The record of appeal contains no information regarding

any appeal of the OSFM’s July 11,

1994 administrative order.

The next day,

on July 12,

1994,

the OSFM issued a final

determination on the eligibility application finding the 2,000-

gallon heating oil UST ineligible to access the UST Fund for the

following reason:

Tank #1

—

(1)

2,000 heating oil not in operation at any

time since 1—1—74

(430 ILCS 5/4.)

(R. at 46.)

This eligibility determination also notified the Stickney Library

that the OSFM’s decision was final and appealable to the Board.

(R. at 46—47.)

MOTION FOR SUMMARY JUDGMENT

The OSFM contends it is entitled to summary judgment in this

matter because the petitioner is,

in effect, seeking review of

the OSFM’s determination that the heating oil UST is not

registerable, and such a review is inappropriate before the

Illinois Pollution Control Board.

The OSFM argues that its July

11,

1994 registration administrative order should have been

appealed within the

10 days as set forth in the administrative

order.

Stickney Library did not seek to appeal that registration

decision and it is therefore final and binding.

Because registration is a condition precedent to

eligibility,

and the registration decision in this case finds

that the Library’s UST was “not registered,” the OSFM argues that

the Stickney Library cannot, as a matter of law, be eligible to

access the UST Fund.

The OSFM further points out that even

though the Environmental Protection Act and the Gasoline Storage

Act were amended giving the Pollution Control Board authority

over the eligibility determinations when P.A. 88-496 became

effective on September 13,

1993, there was no additional

authority given the Board to review the OSFM’s final registration

decisions; this specific authority lies with the circuit court.

In its response, the Stickney Library restates from its

amended petition for review, that the UST registration fee was

paid in this case and the tank has been registered since 1992.

The Library was not aware until the July 11,

1994 administrative

order deregistering the tank that

it was exempt from

registration.

The Library also argues that the information

provided to the OSFM on the June 16,

1994 UST Form was related to

the “actual usage” of the tank and that date was approximately

5me

record

is unclear regarding the date that the Stickney—Library paid

the registration fee to the OSFM;

however,

the record does show that

it was

deposited by the OSFM in June of 1992.

---

4

1958, rather than whether the tank was “in operation” after that

time.

The Library contends that the need to use the heating oil

tank never arose and the tank was “in operation” until its

removal in 1992.

DECISION

The OSFM issued its administrative order regarding

registration on July 11,

1994.

In critical part, the OSFM found

in its administrative order that the UST was not registered

because:

“Tank No.1(1)

2000 gallon heating oil not in operation

at any time since 1-1-74

(430 ILCS 15/4).”

The OSFM informed the

Stickney Library at that time that the administrative order must

be appealed within ten days to the OSFM.

The Library has not

appealed that order.

In our opinion,

it therefore constitutes a

final and binding administrative decision.

We must,

therefore,

accept the final, unappealed decision of the OSFM that the

heating oil tank is not registered pursuant to the Gasoline

Storage Act.

Since registration

is a condition precedent to

determining eligibility, the OSFM’s decision finding the Library

ineligible to access the UST Fund

is proper.

Since the Library

did not appeal the OSFM registration determination,

it has waived

any right

it may have

had otherwise. We therefore reach no other

issue.

~

Lindsay-Klein

v. OSFM,

(August

11,

1994)

PCB 93—255;

City of Wheatort v.

OSFM

(December

1,

1994)

PCB 94-18; and Christ

Episcopal Church v.

OSFM (December

1,

1994)

PCB 94—192).

Accordingly,

as no material issues of fact remain in this

matter, we therefore grant the OSFM’s motion for summary judgment

and affirm the July 12, 1994 final determination of the OSFM that

the Stickney Library is ineligible to access the UST Fund.

The

OSFN decision is affirmed and this docket is closed.

This opinion and order constitutes the Board’s finding of

fact and conclusions of law in this matter.

ORDER

The Board hereby grants the OSFN’s motion for summary

judgment and affirms the OSFM’s July 12, 1994 determination that

the Stickney Library

is not eligible to access the UST Fund.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act (415 ILCS

5/41

(1992)) provides for the appeal of final Board orders within

35 days of the date of service of this order.

The Rules of the

Supreme Court of Illinois establish filing requirements.

---

5

I, Dorothy

M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above opinion and order were

adopted on the

/~e

day of

________________,

1995,

by a vote

of

~—(~

.

Control Board