ILLINOIS POLLUTION CONTROL BOARD

December 1, 1994

CHRIST EPISCOPAL CHURCH,

Petitioner,

v.

)

PCB 94—192

(UST Fund)

OFFICE OF THE ILLINOIS STATE

FIRE MARSHAL,

Respondent.

ORDER OF THE BOARD (by G. T. Girard):

This

matter is before the Board on a motion for summary

judgement filed by the respondent, the Office of State Fire

Marshal (OSFN), on October 25, 1994. On November 17, 1994, the

petitioner, Christ Episcopal Church (CEC), filed a response. For

the reasons set forth below the Board grants the motion for

summary judgement.

The petitioner filed this appeal seeking review of the

determination of the OSFM that petitioner was ineligible for

reimbursement from the underground storage tank fund.

Specifically, the denial of eligibility related to a 1,000 gallon

tank which had contained heating oil. OSFM stated that the tank

was ineligible for reimbursement because it was not registerable

as the tank was “not in operation at any time since 1-1-74 (430

ILCS 15.4)” and that there bad been “no confirmed release

reported”. (R. at 35—38.)

The OSFM argues that this appeal should be dismissed as the

petitioner is in effect seeking a review of the OSFM

determination that the tank is not registerable and such a review

is inappropriate to this proceeding. (Hot. at 3.)’ The OSFM

states that on March 4, 1994, the OSFM issued an administrative

order to CEC which stated that the tank was “not or no longer

registrable” because the tank was taken out of service before

January 1, 1974. (Hot. at 2; R. at 17-18.) Within that

administrative order CEC was provided 10 days to appeal the

OSFN’s decision.

(Id.)

CEC did not appeal that decision;

however, CEC did file a request for reimbursement on May 16, 1994

‘

The petition will be cited as “Pet. at

_“;

the record

will be cited as “R. at

_“;

motion for summary judgement will be

cited as “Mot. at

_“;

the memorandum of law in support of that

motion will be cited as “OSFM mem. at

_“;

the petitioner’s

response will be cited as “Res. at

_“;

and the petitioner’s

memorandum of law in support of the response will be cited as

“CEC mem. at

“.

---

2

which was denied on June 6, 1994. (Not. at 2; R. at 27-30; 35-

38.)

CEC does not deny that it received the notification that the

tank was not registerable and in fact includes a copy with its

response.

(~

Exhibit E.) Further, CEC states in its

memorandum in support of its response that “Petitioner argues

that the tank was appropriately registered in June of 1992.”

(CEC. mem. at 4—5.)

The Board has held that the decision to register a tank is

that of the OSFM and that the Board will not review such a

decision when eligibility is denied on that basis. (Lindsey-

Klein Chevrolet—Olds. Inc. v. Office of State Fire Marshal, PCB

93—255

—

PCB

—,

(August 11, 1994).) In this case, the OSFM

notified the petitioner that the tank was not registerable and

stated on the notification that an appeal must be filed within

ten days. CEC choose not to appeal the OSFN determination.

Therefore, the OSFI4 decision that the tank is not registerable is

a final decision which the Board will not review.

The Board finds that the OSFN properly denied petitioner’s

eligibility to seek reimbursement from the underground storage

tank fund based on the fact that the tank was not registerable.

The Board further finds that there are no material issues of fact

remaining in this matter and summary judgement in favor of the

Office of State Fire Marshal is granted. The OSFH decision is

hereby affirmed and this docket is closed.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby cer ify that the above order was adopted on the

/A~ day of

___________________,

1994, by a vote of

7_O.

Dorothy M./~unn, Clerk

Illinois P~1LlutionControl Board