ILLINOIS POLLUTION CONTROL BOARD
September 1, 1994
CITY OF WHEATON,
)
)
Petitioner,
)
v.
)
PCB 94—18
)
(UST Fund)
OFFICE OF THE ILLINOIS 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 a petition for review filed by the City of Wheaton
(“Wheaton”
or “City”)
on January 7,
1994.
Wheaton is appealing
the Office of State Fire Marshal’s final deductibility
determination regarding the City’s ability to access the
underground storage tank
(“UST”) fund rendered on December 6,
1993. The final determination letter issued by the OSFM found
that of two USTs owned by the City,
one was ineligible to access
the fund altogether and the second was eligible but would be
subject to a $100,000 deductible because none of the USTs on the
site were registered prior to July 28,
1989.
(415 ILCS
5/57.9(b) (1993).) The petition solely challenges the OSFN’s
application of the $100,000 deductible.
No hearing in this matter has been held. According to the
status reports submitted by the respondent,
in both April and
Nay, the parties have been pursuing settlement of this case and
have been negotiating
a stipulation toward that end. On June 22,
1994, the OSFM,
by and through its counsel, the Office of the
Attorney General,
filed a motion for summary judgment.
Though
the petitioner was served by first class mail, no response to the
motion has been filed.
For the reasons stated below, we hereby
grant the motion for summary judgment and do so based on our
review of the City’s petition for review, the motion for summary
judgment and supporting memorandum of law, and the record of
appeal filed on February 17,
1994.
FACTUAL BACKGROUND
The City of Wheaton is the owner/operator of two underground
storage tanks which prior to their removal, were located at the
Wheaton Police Department Headquarters on 119
N. Wheaton Aye,
Wheaton,
Illinois in DuPage County.
(R.
at
1,
3 and Pet,
at 1.)
Though the petitioner is not challenging the OSFM’s final
decision that Tank #1 is ineligible to access the UST Fund,
registration information about this tank is relevant to our
review of whether the OSFM applied the correct deductible to Tank
2
#2.
Tank #1 was registered on March 14,
1986 when the City
submitted the federally-required “Notification for Underground
Storage Tanks” form to the OSFM.
Though the notification form
listed the status of the tank as a 2,000 gallon gasoline tank,
“permanently out of service” and last used in January of 1978,
the City did not indicate that the tank had been removed from the
ground.
The second tank, Tank #2, was registered on March 15,
1991
as a 1,000 gallon diesel tank that was “currently in use.”
In
order to register the tank, the City paid a $100 registration fee
and a $500 late registration fee
(R.
at 3-6, and 10.)
Simultaneously, the City also submitted a tank removal permit
application for Tank #2, which the OSFM granted on
March 26,
1991.
When Wheaton pulled Tank #2 on August 12,
1991,
the
City’s tank removal contractor verified the tank was not 1,000
gallons, but was instead,
a 2500-gallon tank.
(R.
at
11.)
The
contractor sent this new information to the OSFM who amended the
permit to show the new capacity size
(Tank #2).
(R.
at
9 and
13.)
For reasons not provided in the record, on November 12,
1993, the City of Wheaton
re—submitted a third “Notification for
Underground Storage Tanks” form.
Again, the City of Wheaton
changed Tank #2’s capacity size,
from 2,500 to 3,000 gallons,
and also clearly indicated for the first time,
that Tank #1 had
been removed from the ground on
June 1,
1982.’
(R. at 18-19)
Upon receipt of this third UST notification form, the OSFM
issued
art
administrative order on November 22,
1993 changing the
registration status of Tank #1.
The order read as follows:
A review of our records indicates that the following
underground storage tank(s)
is not or is no longer
registrable because:
Tank #1
(2,000 gallon gasoline)
was removed prior to September 24,
1987.
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 record before
us does not show that OSFN appealed the OSFM’s November 22,
1993
administrative order.
‘Our copy of the March, 1991
UST notification form contained in the record of appeal,
shows
in
the column
concerning
U
Additional information
(for tanks permanently taken
out of
service)
“,
that the City
marked
the appropriate box to
indicate that Tank #1
was
filled with
inert material
and
also,
in barely legible
handwriting,
written above
the box
are
the words,
“tank
removed.”
The
petitioner’s
copy
shows that under the box,
the words,
“pulled
1982.”
are
written in.
3
On November 12,
1993,
the City also submitted an application
to the OSFN in order to determine eligibility to access the UST
Fund and the applicable deductible.
In the past,
the Agency made
the eligibility and deductibility determination; however,
on
September
13,
1993, Illinois’ new LUST law became effective (415
ILCS 5/57 et sea.)
and the OSFM had become the governmental
entity now responsible for such determinations.
On December 6,
1993, the OSFN made a final determination that Tank #1 is
ineligible to access the UST Fund because the tank had been
removed prior to September 24,
1987 and that Tank
#2 was eligible
to seek reimbursement for corrective action, but only for costs
in excess of a deductible of $100,000. The letter does not state
why $100,000
is the applicable deductible rather than the other
statutory available deductibles of $10,000,
$15,000,
or $50,000.
The final determination also notified the City of Wheaton that
the OSFM’s decision was appealable to the Board.
(R.
at 23-25.)
As stated above, the instant appeal was filed on January
7,
1994.
The petition for review seeks review of the $100,000
deductible decision on the basis that several errors were made by
the City in relaying information about its USTs,
but ultimately
it should be entitled to only the $10,000 deductible.
While
asking the Board to review the OSFM’s application of the $100,000
deductible, Wheaton explains that it originally,
incorrectly
registered Tank #1
-
the 2,000 gasoline tank.
According to the
petition, which is unaccompanied by an affidavit or any other
evidence supporting this point, the City intended to register the
diesel tank in 1986 and not the gasoline tank,
and it had been in
the ground and was still currently in use.
The City claims to
have acted in good faith,
albeit in error.
(Pet.
1-3.)
Thus the
City of Wheaton is asking that we ultimately determine whether
the OSFM made the correct decision when it issued the
administrative order on November 22,
1993 taking Tank #1 out of
registration.
MOTION FOR
SUMMARY
JUDGMENT
The OSFM contends
it is entitled to summary judgment in this
matter because none of the tanks located on the City of Wheaton’s
Police Station Headquarters were ever properly
registered prior
to July 28,
1989,
and as such the $100,000 deductible is the
appropriate deductible under Section 57.9(b) (1)
of the Act.
This
subsection provides:
b.
An owner or operator may access the
Underground Storage Tank Fund for costs
associated with an Agency approved plan and
the Agency shall approve the payment of costs
associated with corrective action after the
application of a $10,000 deductible, except
in the following situations:
4
1.
A deductible of $100,000 shall apply
when none of the underground storage
tanks were registered prior to July 28,
1989
*
*
*
In support, the OSFN argues that Tank #2’s registration does
not satisfy Section 57.9(b) (1) because
it was clearly not
registered until March of 1991.
(Mot.
at 6.)
The OSFM further
argues that even though Tank #1 was registered from 1986 to 1993,
its registration was based upon mistaken information regarding
the tank’s status and therefore it was never properly registered.
The OSFM registered this tank relying upon the certification of
the City of Wheaton that Tank #1 was “permanently out of use”,
but still
in the ground when petitioner submitted the federally
-
required “Underground Storage Tank Notification” form in March of
1986.
Not until the City filed
its second and third UST
notification forms, did the OSFM learn the true status of Tank
#1,
i.e., that it was that had been removed prior to September
24,
1987 and was therefore not registrable under the law.
The
OSFM cites to the Gasoline Storage Act which provides that tanks
pulled prior to September 24,
1987 are not registrable:
The owner of an underground storage tank that was not
taken out of operation before January
2,
1974,
and that
at any time between January
1,
1974 and September 24~
1987,
contained petroleum or petroleum products or
hazardous substances, with the exception of hazardous
wastes,
shall register the tank with Office of the
State Fire Marshal.
No underground storage tank taken
out of operation before January
2,
1974, may be
registered under this Act.
No underground storage tank
otherwise required to be registered under this
subparagraph
(a) may be registered under this Act if
that tank was removed before September 24,
1987.
(P.A.
87—1088,
eff. Sept.
15,
1992 amending ch.
127 1/2,
Ill.
Rev.
Stat. par.
154,
sec. 4(b) (1) (A).
This section now cited as
415 ILCS 15/4(b)(1)(A).
Emphasis added by the Board.)
Moreover, the OSFM argues that because petitioner
is
actually seeking review of the OSFM’s November 22,
1993
administrative order taking Tank #1 out of registration, rather
than the OSFM’s final deductibility determination, the Board has
no jurisdiction to review this matter.
The OSFM argues that no
where in the Gasoline Storage Act, which sets out the
registration requirements, does it state that decisions of the
OSFN are appealable to the Board.
(Mot.
at 7.)
The OSFN also
cites several cases decided by the Board prior to the passage of
the new LUST Law for the proposition that the Board itself
recognizes that OSFM registration decision are not reviewable to
the Board.
~
citing, Divane Bros. Electric Co.
v. Illinois
~,
PCB 93-105
(November 4,
1993)
and Village of Lincolnwood v.
5
IEPA, PCB 91—83
(June
4,
1992).)
Further, the OSFM argues that
the City of Wheaton had a right to appeal the administrative
order to circuit court and it failed to do so, rendering it final
and binding, and not now subject to review.
DECISION
The OSFN issued its administrative order on November 22,
1993.
In critical part, the OSFN found Tank #1 “is not or is no
longer registrable because:
Tank #1 (2,000 gallon gasoline) was
removed prior to September 24,
1987.”
The OSFM
informed the
City of Wheaton at that time that the administrative order must
be appealed within ten days or the right to appeal would be
forfeited.
The City did not appeal the 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 Tank #1 is no longer registrable
pursuant to the Gasoline Storage Act.
Since registration is a
condition precedent to determining eligibility and the
appropriate deductible,
the $100,000 deductible is proper.
Since
the City did not appeal the OSFM registration determination,
it
has waived any right
it may have had otherwise.
We therefore
reach no other issue.
(See Lindsay Klein v. OSFM (August 11,
1994), PCB 93—255.)
Accordingly, we therefore grant the respondent’s motion for
summary judgment and affirm the decision of the OSFM applying a
$100,000 deductible to the City of Wheaton’s eligibility to
access the UST Fund.
This opinion and order constitutes the Board’s finding of
fact and conclusions of law in this matter.
ORDER
The Board hereby grants the OSFM’s motion for summary
judgment and affirms the OSFM’s December
6,
1993 determination
that the City of Wheaton may access the UST Fund subject to a
$100,000 deductible.
6
IT IS SO ORDERED.
Section 41 of the Environment 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.
I, Dorothy N. Gunn,
Clerk of the Pollution Control Board,
hereby certify that the above opinion and order was adopted on
the
~
day of
,
1994,
by a vote of 6’~
/1•.~
~
L/~
-~z~’;
~
~
Dorothy N. ó~inn, Clerk
Illinois Pollution Control Board