ILLINOIS POLLUTION CONTROL BOARD

March 17, 1994

TOLLES REALTY COMPANY,

)

)

Petitioner,

)

v.

)

PCB 93—124

(UST Fund)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

)

Respondent.

ORDER OF THE BOARD (by E. Dunham):

This matter comes before the Board on a motion for summary

judgment filed on January 14, 1994, by Tolles Realty Company

(Tolles). The Illinois Environmental Protection Agency (Agency)

filed a response to Tolles’ motion instanter and a cross—motion

for summary judgment on February 3, 1994. On March 1, 1994,

Tolles filed its reply.

Tolles filed its petition for review on June 24, 1993.

Tolles seeks review of the Agency’s May 24, 1993 letter denying

eligibility of four tanks. The May 24, 1993, letter by the

Agency reversed the Agency’s March 29, 1993 finding that Tolles

was eligible for reimbursement from the fund. The Agency’s

reversal was the result of notification from the Office of the

State Fire Marshal (OSFM) that four of the tanks were not

registered. Tolles requested the Board to delay setting this

matter for hearing while it pursued a review of the determination

of registration of the tanks with the OSFM. The OSFM’s review of

registration is pending.

“Summary judgment is appropriate where there is no genuine

issue of material fact based on the affidavits, admissions,

pleadings, and other items in the record.” (Williamson Adhesives,

Inc. (August 22, 1991), PCB 91—112 (citing Caruthers v. B.C.

Christopher & Co. (1974), 57 Ill. 2d 376, 380, 313 N.E. 2d 457,

459.) The Board defers ruling on the motions for summary

judgment as a genuine issue of material fact is in dispute in

this matter.

The OSFM’s determination on the registration of the tanks is

presently being reviewed by the OSFM. The Board believes that

the issue of registration is an issue of material fact. This

issue can only be resolved through a decision on the pending

appeal before the OSFN. Therefore, the Board defers ruling on

Tolles’ motion for summary judgment and the Agency’s cross motion

for summary judgment until the issue of material fact is resolved

by the OSFN.

---

2

Tolles also requests attorney fees under Section 57.8(1) of

the Illinois Environmental Protection Act (Act). (415 ILCS

5/57.8(1).) Section 57.13(b) addresses the applicability of the

amendment to the Act for releases reported prior to the effective

date of the amendatory Act. (415 ILCS 5/57.13) Tolles has not

established that the amendments to the Act are applicable or why

the election process does not apply. Tolles made no election to

proceed under the new amendments to the Act for application to

the Fund. Furthermore, Tolles took rio “corrective action” after

the date of the amendatory statute. Finally, Tolles has not

prevailed in this matter. Attorney fees are denied under Section

57.8(1)

IT IS SO ORDERED.

J. Theodore Meyer dissented.

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

Board2 hereby certify that the above order was adopted on the

/7~i~

day of ________________________, 1994, by a vote of

Dorothy M. ~nn, Clerk

Illinois P~Zution Control Board