ILLINOIS POLLUTION CONTROL BOARD
October 6, 1994
PACE SUBURBAN BUS,
J
DIVISION OF RTA,
)
)
Petitioner,
)
v.
)
PCB 94—145
)
(UST Fund)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
GABRIELLE L. SIGEL and STEPHEN I. PECK, of JENNER & BLOCK,
APPEARED
ON BEHALF OF PETITIONER; and
JOHN BURDS APPEARED ON BEHALF OF RESPONDENT.
OPINION AND
ORDER OF THE BOARD (by
J. Theodore Meyer):
This matter is before the Board on a May 4,
1994 petition
for review, filed by PACE-Suburban Bus Division of the RTA
(PACE). PACE seeks review of the Illinois Environmental
Protection Agency’s (Agency) April 1, 1994 decision imposing a
$100,000 deductible on PACE’S request for reimbursement from the
Underground Storage Tank (UST) Fund (Fund). Board hearing
officer Medard M. Narko conducted a public hearing on July 27,
1994, in Chicago, Illinois. No members of the public attended
the hearing.
BACKGROUND
This case involves
PACE’s
request for reimbursement from the
Fund for corrective action activities at PACE’s Harvey, Illinois
facility. There were seven tanks located at this facility.
(Rec. II at 16—20.
)
On November 16, 1992, PACE submitted an
application for reimbursement from the Fund. (Rec. II at 4:3-57.)
On March 29, 1993, the Agency denied eligibility for three of the
tanks, known as the 1986 tanks, stating that the Office of the
State Fire Marshal (OSFM) had deemed those three tanks exempt
from registration. (Rec. II at 1-3.) The Agency also found that
the remaining four tanks were eligible. In that same March 1993
letter, the Agency established a “preliminary” deductible amount
of $100,000, based on a finding that none of the tanks at the
Book I of the Agency record will be cited as “Rec, I at
“,
and Book II of the Agency Record will be cited as “Rec. II at
I,
2
facility were registered before July 28, 1989. (Rec. II at 1.)
PACE appealed that March 1993 decision, as it related to the
eligibility of the three 1986 tanks, but not the “preliminary”
imposition of the $100,000 deductible, to the Board on April 30,
1993. That appeal was docketed as PCB 93-79.
On April 1, 1994, the Agency issued its reimbursement for
the remaining four tanks at the site. In that reimbursement, the
Agency applied the $100,000 deductible. The voucher accompanying
the check stated that this action was the Agency’s final
determination. PACE then filed the instant petition for review,
seeking review of the application of the $100,000 deductible.
On September 15, 1994, in the related proceeding PCB 93—79,
the Board granted PACE’S motion for summary judgment. The issue
in PCB 93—79 was whether the three 1986 tanks are eligible for
reimbursement pursuant to Section 22.18b(a) of the Environmental
Protection Act (Act). (415 ILCS 5/22.18b(a) (1992).) That
question hinged on whether the 1986 tanks were properly
registered. After reviewing the record, the Board found that the
three 1986 tanks “are now and have been registered with the
OSFM.” (PACE—Suburban Bus Division of RTA
V.
Illinois
Environmental Protection Ac~ency (September 15, 1994), PCB 93-79,
slip op. at 4.) Thus, the Board granted summary judgment in favor
of PACE.
DISCUSSION
The sole issue in this proceeding is whether the Agency
properly applied the $100,000 deductible to PACE’s application
for reimbursement. Section 22.18b(d) (3) (B)
(1)
of the Act
provides that “if prior to July 28, 1989, the owner or operator
had registered none of the underground storage tanks at the site
on that date, the deductible amount..
.
shall be $100,000 rather
than $10,000.” (415 ILCS 5/22.18b(d)(3)(B)(i) (1992).) The
Agency found that the three 1986 tanks were exempt from
registration, and it is undisputed that the other four tanks were
registered between September 15, 1992 and February 17, 1993.
Therefore, the Agency applied the $100,000 deductible to the
site.
Because it is undisputed that the other four tanks were
registered after July 28, 1989, this case hinges on whether the
three 1986 tanks were registered prior to that date. As noted
above, in our decision in docket PCB 93-79, we specifically found
that the three 1986 tanks are now and have been registered with
OSFM.
Although we made no determination in PCB 93—79 as to the
date of registration, the record in this case reflects that those
tanks were registered on April 24, 1986. (Exh. 1.) Therefore,
we find that the three 1986 tanks were registered prior to July
28, 1989, and that the Agency’s application of the $100,000
deductible was erroneous.
3
There is one remaining matter in this case. On August 11,
1994, PACE filed a motion to clarify the record by adding an
affidavit from Keith Immke of OSFM. That affidavit states that
it is OSFM’s position that PACE registered and paid registration
fees for three underground storage tanks (USTs) in 1986, and that
those three tanks are and remain registered with OSFM. The
Agency filed an objection to that motion on September 1, 1994.
In our September 15, 1994 order in PCB 93-79, the Board
specifically relied in part on that affidavit in finding that the
1986 tanks are registered. The Board has already considered that
affidavit in the related case, and thus we will grant the motion
to add the affidavit to the record of this proceeding.
ORDER
The portion of the Illinois Environmental Protection
Agency’s (Agency) April 1, 1994 decision applying a $100,000
deductible is hereby reversed. Consistent with the Board’s
September 15, 1994 order in PCB 93-79, this case is remanded to
the Agency for determination of the proper deductible and cost
determinations.
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. (See
also 35 Ill.Adin.Code 101.246 “Motions for Reconsideration”.)
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
B ard, hereby certitv that~the above order was adopted on the
____
day of
___________________,
1994, by a vote of
~
~O•
1~
Dorothy M. p~nn, Clerk
Illinois P~jlutionControl Board