ILLINOIS POLLUTION CONTROL BOARD
October 6, 1994
J. I. CASE COMPANY,
Petitioner,
V.
)
PCB 94—223
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD (by M. McFawn):
On August 16, 1994, J.I. Case Company (Case) filed a
petition for review of the Illinois Environmental Protection
Agency’s (Agency) modification of site-specific cleanup
objectives established pursuant to its Pre-Notice Site Cleanup
Program. On August 25, 1994, the Agency filed a motion to
dismiss this matter, claiming that the Board does not have
jurisdiction to hear this appeal. On August 31, 1994, Case filed
a motion for extension of time until September 12, 1994 to
respond to the motion to dismiss, which the Board granted by
order dated September 15, 1994. Petitioner also filed a waiver
of the decision deadline until March 17, 1995. For the reasons
set forth below, we find that the Agency decision to amend the
voluntary cleanup objectives did not constitute a final agency
action subject to review, and we therefore grant the Agency’s
motion to dismiss.
BACKGROUND
Case is the owner of property located at 625 Third Avenue,
Rock Island, Illinois, which is the site of a former J.I. Case
facility. Between 1986 and 1988, Case removed seven UST’s from
the site in conjunction with the cessation of operations at the
facility. When the tanks were removed, Case discovered that
there had been a release from the USTs. Upon further
investigation, Case discovered a free—oil layer on the
groundwater in one sampling well. The Agency established cleanup
objectives for the site in December, 1988, and issued site-
specific cleanup objectives on April 20, 1989.
On March 28, 1991 the Agency requested that Case voluntarily
enter the Pre-Notice Site Cleanup Program. This program,
established pursuant to Section 22.2(m)(l) of the Environmental
Protection Act (Act) (415 ILCS 5/22.2(m) (1) (1992)), allows the
owners and operators of sites contaminated with hazardous
substances or pesticides to voluntarily clean up their sites
under Agency supervision, where the owner or operator, or an
agent of the owner or operator, has requested such supervision.
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The Agency is authorized to recover its costs for providing
review and evaluation services thereunder.
Independent from this authority, the Agency is authorized
pursuant to Section 4(y) of the Act to release any person from
further responsibility for corrective or preventive action,
following completion of preventive or corrective action
undertaken by such person upon written request by such person.
There appears to be a factual dispute as to when Case
entered the Pre—Notice Program; the Agency asserts that Case
entered the program on June 8, 1993, while Case asserts that it
entered the program on January 25, 1989. For purposes of the
motion to dismiss, we will accept as true Case’s assertion that
it entered the program on January 25, 1989. (See Affidavit of
Kenneth Meyers at 2.) It is undisputed that in January 1994 the
Agency revised the cleanup objectives applicable to the Case
site. The Agency explains that this was done to reflect the
Groundwater Quality Standards adopted by the Board on November 7,
1991.
On May 4, 1994, Case asked the Agency to reconsider the
revision. The Agency responded to this request by letter dated
July 12, 1994. Case considered the Agency’s response a denial of
its request for reconsideration. (Response to Motion to Dismiss
at 7.) Case filed this appeal in order to object to the new
cleanup objectives established by the Agency in January 1994.
Case asserts that the new standards are inappropriate for the
conditions at the site, and that the Agency is collaterally
estopped from changing the cleanup objectives.
AGENCY’S MOTION TO DISMISS
In its motion to dismiss, the Agency asserts that the Board
has no jurisdiction to hear this appeal. The Agency, citing
Transtechnologv Corioration v. Illinois Environmental Protection
Agency, PCB 91-39 (April 25, 1991), asserts the Board lacked
jurisdiction on the following grounds:
1) the Agency has not set a standard in this matter;
2) the Board does not have jurisdiction pursuant to Section
(d) of the Act;
3) the Agency has not made a final determination; and
4) 35 Ill. Adm. Code Section 105.102 is not a proper
jurisdictional basis for this appeal.
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CASE’S RESPONSE
Case asserts that the Board has jurisdiction to hear this
appeal based on Section 5(d) of the Environmental Protection Act,
which sets forth the types of enforcement actions which the Board
can hear. It provides:
The Board shall have authority to conduct hearings upon
complaints charging violations of this Act or regulations
thereunder, upon petitions or variances, upon petitions for
review of the Agency’s denial of a permit in accordance with
Title X of this Act;
. . .
upon other petitions for review
of final determinations which are made pursuant to the Act
or Board rule and which involve a subject which the Board is
authorized to regulate;
and such other hearings as may be
provided by rule. (Emphasis added.)
Case asserts that, under Section 5(d) of the Act, the Agency
decision establishing new cleanup objectives is a “final
determination made pursuant to the Act or Board rule.” Case
asserts that in Gunite Corn.
V.
IEPA, PCB 94—80 (May 18, 1994)
the Board previously held that it has jurisdiction to review
site—specific cleanup objectives. Furthermore, Case asserts that
the Board has jurisdiction to hear this appeal because the Agency
decision imposing new cleanup objectives is a final decision from
which Case has no other recourse and which has caused Case direct
harm. Case also asserts that the Agency is equitably estopped
from amending the cleanup objectives.
ANALYSIS
The Agency is authorized pursuant to Section 22.2(m) of the
Act to establish the voluntary cleanup program now known as the
Pre—Notice Site Cleanup Program. The services provided
thereunder by the Agency include review and evaluations of clean-
up actions, which in this case included establishing clean-up
objectives. The Board must determine whether the Agency’s
actions under the Pre—Notice Program constitute final agency
actions subject to review.
Section 5(d) of the Act, in relevant part, gives the Board
authority to review final determinations which are made pursuant
to the Act or Board rule and which involve a subject which the
Board is authorized to regulate. An administrative order is
final if the process of administrative decisionmaking has reached
a state where judicial review will not disrupt the orderly
process of adjudication, and the rights and obligations of the
parties have been determined, or legal consequences will flow
from the agency action. Waste Management of Illinois. Inc. v.
Illinois Pollution Control Board, 146 Ill.Dec. 961, 558 N.E.2d.
1295 (Ill.App. 1st Dist.),
reversed on other grounds
165 Ill.Dec.
875, 585 N.E.2d 606, 145 Ill.2d 345 (1990) (citations omitted).)
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In providing review and evaluation services under the Pre—
Notice Program, the Agency acts in an advisory capacity, and is
not exercising its enforcement powers. The petitioner is not
required to act upon the Agency’s recommendation, and is not
subject to enforcement for failing to do so. Therefore, the
cleanup objectives established pursuant to the Pre—Notice Program
are voluntary and cannot be considered standards which affect
petitioner’s legal rights and duties.
Furthermore, participation in the Pre-Notice Program is
entirely voluntary, and the petitioner is free to withdraw from
the program at any time. Petitioner’s participation in or
withdrawal from the Pre—Notice Program does not affect
petitioner’s rights and duties under the Act; those are
established by the underlying statutes and regulations applicable
to petitioner’s site. Agency decisions made pursuant to the Pre—
Notice Program do not affect those underlying rights and duties.
For these reasons, we find that the Agency decision in
establishing revised voluntary cleanup objectives pursuant to the
Pre—Notice Program does not constitute final Agency action.
Therefore, the Board has no authority to review these objectives
pursuant to Section 5(d) of the Act.
Our decision in this case is consistent with Transtechnolopy
Corporation v. Illinois Environmental Protection Agency, PCB 91-
39 (April 25, 1991), wherein the Board dismissed for lack of
jurisdiction a petition for review of cleanup objectives
established pursuant to the Agency’s Voluntary Site Cleanup
Program, the prior name for the Pre—Notice Site Cleanup Program.
In that case, the Board stated, “for the reasons articulated by
the Agency, the Board finds that it lacks jurisdiction to hear
this matter.”
~
at 2.) In pertinent part, the reasons
articulated by the Agency included:
1) Petitioner was not required to meet the established
cleanup objectives and was not subject to sanctions for
failing to do so;
2) neither Section 5(d)of the Act nor Section 105.102 of the
Board’s procedural rules establish the Board’s jurisdiction;
(Id. at 1—2.)
Case seeks to distinguish the situation in the present case
from that in Transtechnology on the grounds that Case has asked
the Agency to reconsider its decision and the Agency has refused
to do so. (Petitioner’s Response to the Motion to Dismiss
(Response) at 7-8.) However, because we hold today that the
establishment of voluntary cleanup objectives pursuant to the
Pre—Notice Program cannot be considered a final agency action, it
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is unnecessary for us to consider whether petitioner has sought
to have the Agency reconsider those objectives.
Petitioner’s reliance on Gunite Corporation v. Illinois
Environmental Protection Agency, PCB 94-80 (May 19, 1994) is
misplaced. In Gunite, the petitioner was seeking review of the
Agency’s refusal to establish site—specific cleanup objectives
pursuant to the pre-H.B. 300 UST program. The Agency was acting
in its enforcement role in administering the UST program, and
any cleanup standards established would have been legally binding
upon the petitioner. In contrast, Case’s participation in the
Pre—Notice Program was voluntary, and the established objectives
were not legally binding.
We find that the Agency decision in establishing revised
voluntary cleanup objectives was not a final decision affecting
petitioner’s legal rights and duties. Therefore, we grant the
Agency’s motion to dismiss for lack of jurisdiction. Having held
that the Board lacks jurisdiction to hear this appeal, we do not
reach petitioner’s other arguments.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS
5/41 (1992)) provides for 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. Admn. Code 101.246, Motions for Reconsideration.)
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Bpard, hereby certify th~ the above order was adopted gn the
~~—‘~-
day of
____________________,
by a vote of
~
Dorol
Illinois
Control Board