ILLINOIS POLLUTION CONTROL BOARD
October 21, 1993
FIATALLIS NORTH
)
AMERICAN, INC.,
)
Petitioner,
)
v.
)
PCB 93—108
)
(TJST Fund)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
BECKY MCKAY
OF
MOHAN, ALEWELT, PRILLMAN & ADAMI
APPEARED ON
BEHALF OF PETITIONER; and
GREG RICHARDSON OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by M. Nardulli):
This matter is before the Board on a June 8, 1993, petition
for review filed by petitioner Fiatallis North American
(Fiatallis or petitioner) pursuant to Section 22.18b(g) of the
Environmental Protection Act (Act). (415 ILCS 5/22. 18b(g).)
Fiatallis filed a supplement to the petition on June 11, 1993.
Fiatallis seeks review of the Illinois Environmental Protection
Agency’s (Agency or respondent) imposition of a $50,000
deductible on Fiatallis’ claim for reimbursement from the
Underground Storage Tank Fund (Fund) (415 ILCS
5/22.18b(d)(3)(C)(ii)). A hearing was held on August 23, 1993,
in Springfield, Illinois. No members of the public attended.
Fiatallis’ closing brief was filed on August 19, 1993; the
Agency’s closing brief was filed on August 30, 1993. On
September 7, 1993, Fiatallis filed a reply brief.
Petitioner appeals the Agency’s decision to impose a $50,000
deductible.
BACKGROUND
This case involves the removal of two Underground Storage
Tanks (UST5) at Fiatallis’ Engineering Center, located at 701
Stevenson Drive in Springfield, Illinois. (P.B. at 1.)! The
USTs were registered on February 1, 1989. (Rec.A. at 84.) On
April 27, 1989, petitioner removed two underground storage tanks
“P.B.” denotes citation to Petitioner’s Brief; “Res.B.”
denotes citation to Respondent’s brief; “Rec.A.” denotes citation
to Part 1 of the Agency record, and “Rec.B.” indicates citation
to Part 2 of the Agency record.
2
and discovered that a release had occurred from the 5,000 gallon
underground storage tank which contained diesel fuel.2 (P.B. at
1.) Fiatallis notified the Illinois Emergency Services and
Disaster Agency (ESDA) of the release on that same day, April 27,
1989, and received LUST incident #890662. (Rec.A. at 71.)~
Fiatallis subsequently performed remedial activities on the site.
Fiatallis applied for reimbursement from the Fund on January
3, 1990. (P.B. at 3.) Members of the Agency’s Screening
Committee met on January 18, 1990, and determined that petitioner
was eligible for reimbursement from the Fund, subject to a
$10,000 deductible. (Rec.A. at 68, 80.) On January 26, 1990,
the Agency requested additional information from petitioner “on
the use of the underground storage tanks for which a
determination of eligibi~ity is being requested.” (Rec.A. at 80;
RecB. at 115.) After the requested information was supplied,
the Agency’s letter of February 26, 1990 stated in pertinent
part:
The Agency is in receipt of your Application for
Reimbursement, requesting a determination of eligibility for
reimbursement from the State Underground Storage Tank Fund.
The Agency has reviewed the application and determined you
are eligible to seek reimbursement from the Fund for
corrective action costs, accrued on or after July 28, 1989,
in excess of $10,000.00. A $10,000.00 deductible will be
applied to the requests for reimbursement for any additional
years that corrective action activities continue in response
to this release. (Rec.A. at 52; Rec.B. at 116.)
Over three years later, in April of 1993, Agency employee
Steve Jones determined that the original deductible determination
was incorrect. Jones recommended an “adjustment in deductible”
to $50,000. (Rec.A. at 7, 10.) On Nay 17, 1993, the Agency
notified petitioner that “upon review of the information
provided to the Agency, the Agency has determined that the
2 Petitioner’s application for reimbursement states that
two UST5 were removed from the site on April 27, 1989. However,
the December 1989 work plan prepared by Andrews Environmental
Engineering, Inc., states that three USTs were removed in April
1989, one fuel oil tank, one diesel fuel tank, and one gasoline
tank. (R.A. at 263.)
~ The Board notes that various dates are given for ESDA
notification, including April 25, 1989, April 27, 1989, and
November 16, 1989. (RecA. at 7, 8 and Rec.B. at 14) The Board
concludes that this is due to the fact that the Agency’s record
contains information concerning incidents unrelated to this
matter. The Board concludes that the ESDA was properly notified
on April 27, 1989.
3
appropriate deductible for this occurrence is $50,000.00.”
(Rec.A. at 111.) In the same letter, the Agency notified
petitioner of its final determination denying reimbursement for
costs associated with soil sampling and equipment.
According to both parties’ final briefs, all issues
concerning corrective action costs have been resolved between the
parties resulting in the Agency agreeing to approve reimbursement
for the contested costs. Therefore, the Board will direct the
Agency to approve reimbursement for those costs. The only
remaining issue on appeal is whether the Agency may reconsider
its initial deductibility determination.
STATUTORY BACKGROUND
Section 22.b(a) of the Act sets forth certain requirements
that must be met in order to be eligible to access the Fund. (415
ILCS 5/22.18b(a)(1992).) The law to be applied to a UST Fund
application is the law in effect on the date the application was
filed with the Agency. Pulitzer Community NewspaPer v Illinois
Environmental Protection Agency (December 20, 1990) PCB 90—142;
Mariorie B. Campbell v. Illinois Environmental Protection Agency
(June 6, 1991) PCB 91—5; Galesbu.rg Cottage Hospital v. Illinois
Environmental Protection Agency (August 13, 1992) PCB 92-162.
Section 22.18b (Underground Storage Tank Fund; eligibility) took
effect on July 28, 1989 and was amended on December 5, 1989.
Section 22.l8b(d) (3) (C) (ii), which became effective on December
5, 1989, states,
If the costs incurred were in response to a release of
petroleum for which the State received notification prior to
July 28, 1989, the deductible amount under subparagraph (a)
of paragraph (3) of this subsection (d) shall be $50000
rather than $10000, unless sub~ara~ra~h(B) (i) applies,4 in
which case the deductible shall be $100,000. (emphasis
added)
Section 22.18b(g) of the Act allows affected owners or
operators to petition the Board for a hearing where the Agency
has refused reimbursement or has authorized only partial
reimbursement. Such hearings are pursuant to the permit review
provisions found in Section 40 of the Act.
DISCUSSION
Pursuant to Section 22.18b(d) (3) (C) (ii), there can be little
doubt that $50,000 is the correct deductible to be applied to
Fiatallis. Indeed, even petitioner does not contest that that is
~ Section 22.18(d) (3) (B) (i) relates to unregistered tanks
and is inapplicable here.
4
the proper amount. However, the issue before us is whether the
Agency’s February 26, 1990 deductibility determination was final.
As discussed below, the Board finds that the February 26, 1990,
decision by the Agency was final and that the Agency has no
authority to reconsider that decision.
Fiatallis contends that, as a matter of law, the Agency
cannot reconsider or amend its deductible determination. In
support of its argument, Fiatallis cites Reichhold Chemicals.
Inc. v. PCB (3d Dist. 1990), 204 Ill. App. 3d 674, 561 N.E.2d
1343, which holds that the Agency has no statutory authority to
reconsider a permit decision. Indeed, several Board opinions
establish that the Agency may not reconsider its finding of
eligibility (see e.g., AS. Dick Co. v. IEPA (July 9, 1992), PCB
92—99; Hilisboro Glass (March 11, 1993), PCB 93—912; Clinton
County Oil V. IEPA (March 26, 1992), PCB 91-163). In Clinton the
Board stated:
(It is well established that an administrative agency has
no inherent authority to amend or change its decision and
may undertake reconsideration only where authorized by
statute. (Pearce Hospital v. Public Aid Commission (1958),
15 Ill.2d 301,154 N.E.2d 691; Reichhold Chemicals Inc. v
~ (3d Dist. 1991), 204 Ill. App. 3d 674, 561 N.E.2d 1343.)
Although the Board possesses such power, the appellate court
has held that the Agency has no such reconsideration powers.
(Reichhold, 561 N.E.2d 1343.)
The Agency contends that the February 26, 1990, notification
was not a final decision. The Agency argues that the deductible
remains “in—house” until the Agency issues a letter concerning
its determination of reimbursable costs. (R.B. at 4.) Moreover,
the Agency admits that it was mistaken in applying the $10,000
deductible. The Agency attributed this error to the frequent
changes that were occurring to the UST scheme at the time
Fiatallis applied for reimbursement.5 The Agency argues that the
principle that the law to be applied to a UST Fund application is
the law in effect on the date the application was filed with the
Agency was not declared until after the Agency made the
determination in this matter.6 The Agency provides no
elaboration on this argument. The Agency also argues that the
~ Under P.A. 86—125, effective July 28, 1989, the
deductible limit to owners and operators similarly situated to
Fiatallis would have been $10,000. Under P.A. 86—958, effective
December 5, 1989, the deductible limit applicable to owners and
operators similarly situated to Fiatallis would have been
$50, 000.
6 Pulitzer Community Newspaper (December 20, 1990) PCB 90—
142 and Marjorie B. Campbell (June 6, 1991) PCB 91—5.
5
Board has previously held that Agency errors are best addressed
by correction, not perpetuation
Ideal Heating
Prior to the Board’s decision in Ideal Heating, (January 23,
1992), PCB 91-253, an appeal of the deductibility determination
had to be filed within thirty-five days after notification of the
determination. Typically this notification was made before the
Agency reached a final determination on reimbursement of
corrective action costs. (See, Macmet v Illinois Environmental
Protection Agency, (December 6, 1991) PCB 90-136, 128 PCB 27;
Sparkling Springs Mineral Water v. Illinois Environmental
Protection Agency, (Nay 9, 1991) PCB 91-9, 122 PCB 115; Alton
Community Unit School (February 7, 1991) PCB 91-1, 118 PCB 275;
and Campbell v. Illinois Environmental Protection A~ency, (June
6, 1991) PCB 91—5, 123 PCB 25).
In Ideal Heating the Board held that only those Agency UST
decisions which: (1) deny eligibility or; (2) reach a complete
determination on both the applicable deductible and the
reimbursement of costs is ripe for appeal to the Board.
Consequently, an Agency determination that approved eligibility
and set the deductible, but did not determine corrective action
costs, was not yet ripe for appeal before the Board. In Ideal
Heating the Board interpreted the Act as allowing the Board
review of Agency UST determinations only after the Agency has
completed the final determination of the reimbursibility of
costs. In support of this, the Board reasoned “Board review of
Agency deductibility determinations prior to a complete
determination on the reimbursibility of costs is both
inconsistent with Section 22.18b(g) of the Act quoted above and
principles of administrative economy, such as the desire to avoid
piecemeal appeals.” (PCB 91-253 at 256) The Board did not
elaborate on the “inconsistency” with the Act and devoted the
remainder of the opinion to a discussion of judicial economy.
From this, the Board concludes that the basis of Ideal Heating
was primarily one of judicial economy.
Clearly, Ideal Heating holds that the deductibility
determination is “not ripe.” However, under Ideal Heating it
remains an open question whether the deductibility decision was
final, so as to preclude reconsideration under Reichhold.
Conspicuous by its absence is any language in Ideal Heating
striking down past Board holdings that the deductible decision is
final.
In the wake of Ideal Heating, several Board cases dismissed
appeals of deductibility determinations as “not ripe.” Often
these cases merely repeated the holding in Ideal Heating, but did
not elaborate on that holding. (See, Bacon v. Illinois
Environmental Protection Agency, (April 16, 1992) PCB 92-1, 133
6
PCB 113; Parkview Plaza Associates v Illinois Environmental
Protection Agency, (Nay 21, 1992) PCB 92—73, 133 PCB 551; Slainpak
v. Illinois Environmental Protection Agency, (October 1, 1992)
PCB 92—139, 136 PCB 253; Superamerica v. Illinois Environmental
Protection Agency, (October 16, 1992) PCB 92—151, 136 PCB 423;
Sto—Jo Joint Venture v. Illinois Environmental Protection Agency,
(August 26, 1993) PCB 93—146).
However, one Board decision, Leewards Creative Crafts v.
Illinois Environmental Protection Agency,
.
(April 22, 1993) PCB
93-69, contains language that very nearly states that the
deductibility decision is no longer deemed final in light of
Ideal Heating. Leewards states:
The Board is baffled as to why Leewards believes that it is
necessary to file a “protective” petition for hearing of an
Agency decision that
Leewards agrees is not final.
Leewards
has not cited any decision that might cast doubt on the
Board’s determination in Ideal Heating that “the Agency’s
determination on eligibility and deductibility alone,
without a determination on the reimbursibility of costs, is
not an appealable order.7 (emphasis added)
It is not stated who Leeward is agreeing with. However, the
implication of Leeward is that the Board believed the deductible
decision was not final.
In another decision, the Board employed a different approach
to the finality of the deductibility decision. In Bacon v
Illinois Environmental Protection Agency, (June 23, 1992) PCB 92-
1, 134 PCB 333, the Board declined to make an exception to. Ideal
Heating on a case—by—case basis because to do so would defeat the
principle of judicial economy. Thus, Bacon treated the purpose
of Ideal Heating as primarily a decision of judicial economy
rather than a decision arising from the “finality”, or lack there
of, of the determination. Implicit in the Board’s decision in
Bacon is the belief that the Board has authority under the Act to
consider the appeal on deductibility alone but chose to await a
complete Agency decision on costs.
In another Board decision, the Board allowed the Agency to
reduce the deductible after petitioner appealed but prior to a
Board decision. In State Bank of Whittington v. Illinois
Environmental Protection Agency, (June 3, 1993) PCB 92—152,
petitioner appealed the deductibility amount before the Agency
had reached a final decision on all corrective action costs.
7The Board notes that it is incorrect to characterize the
determination as not “appealable.” The appealability of these
determinations has never been in doubt. These decisions are more
accurately characterized as “not ripe for appeal.”
7
Prior to a Board decision, the Agency reduced the deductible to
$10,000 from $100,000. The Board allowed this redetermination
without comment.8 Although Leewards, Bacon, and State Bank of
Whittington are not directly at odds, there appears to be at
least some underlying discrepancy in approach.
In summary, while Ideal Heating clearly held that the
Agency’s deductibility determination is not ripe for appeal until
there is a complete determination of costs, Ideal Heating left
unsettled whether the deductibility decision was final.
Moreover, no post—Ideal Heating case has decided the question.
Finality
The Agency argues “it is clear that a deductible
determination is not appealable until the juncture (determination
of corrective action costs) is reached, general principles of
appellate practice support a conclusion that it is not final
until this juncture is reached.” (Res.B. at 4.) However, the
Agency offers no support for this “general principle.”
An examination of Illinois caselaw offers no support for the
Agency’s contention. In general, finality, as it pertains to
.administrative agency decisions, is a decision which “fully
terminates proceedings before an administrative body.” Taylor v.
State Universities Retirement, 111 Ill. Dec.283; 512 N.E.2d 399
(Ill. App. 4 Dist. 1987)
.~
Under
this construction, the Agency’s
8
Other Board decisions
have addressed appealability issues
in the aftermath of Ideal Heating, but these decisions do not
directly address whether the
deductibility decision was final.
(See, e.g. Clinton County Oil v. Illinois Environmental
Protection Agency, (March 26, 1992) PCB 91—163, 131 PCB 491
(concerning the reconsideration of an eligibility decision);
Village of Lincolnwood v Illinois Environmental Protection
A~ency, (June 4, 1992) PCB 91—83, 134 PCB 33, (finding that the
eligibility
determination was appealable but
the deductible was
not ripe); Chemrex v. Illinois Environmental Protection Agency,
(February 4, 1993) PCB 92—123, (characterizing the eligibility
decision as “final” upon notification and finding the
deductibility decision “not ripe” upon notification). See also,
Ideal Heating v. Illinois Environmental Protection Agency,
(February 4, 1993) PCB 92—118; Suburban Trust v Illinois
Environmental Protection Agency, (March 25, 1993) PCB 93-53;
Chuck and Dan’s Auto Service v. Illinois Environmental Protection
Agency, (August 26, 1993) PCB 92—203.
~ See also, Bi—State Developnient v. Dept. of Rev. 205
Il1.App.3d 668; 563 N.E.2d 1154; 151 Ill. Dec. 48(defining
“finality” pursuant to the Administrative Review Law); County of
Cook v Labor Relations Board, 162 Ill.Dec. 52, 579 N.E.2d 866
8
deductible determinations are not final because the corrective
action costs are yet to be determined. However, Taylor and its
progeny were decided pursuant to the Administrative Review Law.
735 ILCS 5/3
~.
~q.
The Administrative Review Law, defines an “Administrative
decision” or “decision” as “any decision, order, or determination
of any administrative agency rendered in a particular case, which
affects the legal rights, duties or privileges of parties and
which terminates the proceedings before the athuinistrative
agency.” 735 ILCS 5/3—101. However, by its plain language the
scope of the Administrative Review Law is limited to “apply to
and govern every action to review judicially a final decision of
any administrative agency where the Act creating or conferring
power on such agency, by express reference adopts the provisions
of Article III of this Act or its predecessor, the Administrative
Review Act..”(emphasis added) 735 ILCS 5/3—102. Therefore, in
order for the definition of finality under Taylor and under the
Administrative Review Law to apply to the instant matter, the
Environmental Protection Act must expressly reference the
Administrative Review Law.
The Environmental Protection Act references the
Administrative Review Law at Section 41 (concerning appeals to
the Appellate court of Board decisions); Section 52(b) (procedure
of review of employee review dismissal governed by Administrative
Review Law) and Section 55.12 (review of Department of Revenue
actions under the Used Tires provisions shall reviewed under the
Administrative Review Law). Section 1(c) the Act contains a
general reference to the “Criminal Code of 1961”, but no such
general reference to the Administrative Review Law appears.
Therefore, because there is no direct reference to the
Administrative Review Law, the Board concludes that the
Administrative Review Law’s definition of finality does not apply
to the instant matter. This conclusion is supported by Illinois
caselaw. In National Marine Service Incorporated v. IEPA, 76
Ill. Dec. 151; 458 N.E.2d 551 (Ill. App. 4 Dist. 1983) plaintiff
brought suit challenging the Agency’s denial of federal Clean
Water Act certification of plaintiff’s proposed barge fleeting
facility. The court stated “The legislature has expressly
limited the application of the Administrative Review Law to
specific enumerated actions taken by the Pollution Control Board.
(Ill. 1991) (a statutory provision that generally directs an
appellant to seek review of an order in accordance with the
Administrative Review Law, does not reflect clear legislative
intent that all of the provisions of the Administrative Review
Law apply directly to appellate court review of the Agency
decision).
9
This effectively excludes actions taken by IEPA.” (emphasis
8
We conclude that the definition of “finality” under the
Administrative Review Law and cases decided pursuant to it,
including Taylor, do not apply to the instant matter. Thus,
while some “general principles” of appellate practice support the
Agency’s argument, those principles do not apply here.
Ripeness
In addition, the Board finds no support for the Agency’s
contention in Illinois
caselaw concerning ripeness. Illinois
courts have frequently addressed the notion of ripeness as it
concerns administrative decisions. In A.E. Staley Manufacturing
ComPanY V.
Illinois Commerce
Commission, 166 Ill. App.3d 202; 116
Ill. Dec. 915 at 918; 519 N.E.2d 1130,the appellate court
stated:
The basic rationale of the ripeness doctrine as it
relates to challenges against unlawful administrative
action ‘is to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in
abstract disagreements over administrative policies,
and also to protect the agencies from judicial
interference until an administrative decision has been
formalized and its effects felt in a concrete way by
the challenging parties.’ (Bio-Medical Laboratories,
Inc., v. Trainor (1977), 68 Ill.2d 540, 546; 370 N.E.2d
223,226; 12 Ill. Dec. 600; quoting Abbot Laboratories
v Gardner (1967), 387 U.S. 136, 148—49, 18 L.Ed 2d
681, 691; 87 S.Ct. 1507 1515). Ripeness involves a
two—step test: (1) an evaluation of the fitness of the
issues for judicial decision; and (2) the hardship to
the parties of withholding court consideration.
8 See also, Horace File v. D & L Landfill, Inc.,, 162 Ill.
Dec. 4.14, 579 N.E.2d 1228 (Ill. App. 5 Dist. 1991) (Board
decision appealed to the appellate court pursuant to the
Administrative Review Law where pertinent section referenced the
Administrative Review Law); States Land Improvement v Illinois
Environmental Protection Agency, 173 Ill. Dec. 285; 596 N.E.1164
(Ill. App. 4 Dist. 1992), (common law writ of
certiorari
was
appropriate means of judicial review of final Agency decision
exercising quasi—judicial functions, because the Agency’s
enabling statute does not expressly adopt the Administrative
Review Law); Archer Daniels Midland v. Illinois Environmental
Protection Agency, 102 Ill. dec.687; 500 N.E.2d 580 (Ill.App. 4
Dist. 1986), (Board decision appealed pursuant to the
Administrative Review Law where section expressly referenced the
Administrative Review Law)
10
(citation omitted)
This test has been followed by the
courts in Illinois.
(citation omitted)
In A.E. Staley, the court found that the agency in question
had issued a “final agency determination” but that it was “not
ripe for adjudication.” Abbott Laboratories v Gardner, cited in
A.E. Staley, concerned an administrative regulation which was
deemed final although the Court characterized it as a “statement
of intent.” The Court went on to describe other recent cases
that have taken a similar flexille view of “finality.” In Toilet
Goods Association v Gardner, 87 S. Ct. 1520, decided the same
day as Abbott Laboratories, the U.S. Supreme Court found that
there “can be no question that this regulation *** is a ‘final
agency action” but that it was not “ripe” in part because the
effect was not immediately felt by petitioners. In light of the
above discussion, the Board concludes that general principles of
appellate practice do not preclude the conclusion that the
deductibility decision is both “final” and “not ripe.”
We conclude that Ideal Heating did not overturn past Board
decisions that held that the Agency deductibility decision is
final upon notification. In the instant matter, the Board finds
that the Agency deductibility decision was final upon
notification to petitioner on February 26, 1990. Moreover, the
Board finds pursuant to Reichhold, the Agency may not reconsider
a final deductibility determination.
CONCLUSION
The Board finds that the Agency’s
decision making authority
over the deductibility
determination was concluded on February
26, 1990. Moreover, the Board holds, pursuant to Reichhold, that
the Agency may not reconsider the decision.
In Hillsboro Glass v. Illinois Environmental Protection
Agency, (March 11, 1993) PCB
93-9,, petitioner moved
for summary
judgement on the issue of whether the Agency could reconsider
petitioner’s eligibility for reimbursement from
the Fund. In
Hillsboro, the Agency originally found that petitioner
was
eligible for reimbursement from the Fund and had authorized the
Comptroller to pay petitioner reimbursement of $16,656.21. After
petitioner had received the money, the Agency informed petitioner
that the Agency had reconsidered the matter and concluded that
petitioner was ineligible to access the Fund. The Agency then
requested petitioner to return the money from the Fund. The
Agency based this reconsideration on information the Agency had
in its possession prior to making the eligibility determination.
Citing Business
& Professional People v. Commerce
Commission,
(1989), 136 Ill. 2d 192, 555 N.E.2d 693, 716—17), the Board
stated
11
Because an administrative agency has no
power beyond that
conferred by statute, a decision by an agency which lacks
the statutory power to enter the decision is void. ***
Because there was no decision entered by the Agency pursuant
to its statutory authority, there is no final decision from
which a petitioner could file a petition for review so as to
confer jurisdiction on the Board pursuant to Section 22.18b
of the Act. (citation omitted) Therefore the Board
concludes that the instant matter should be dismissed for
want of jurisdiction.
In addition, the Board notes that there is no allegation
that Fiatallis withheld information or attempted to deceive the
Agency. Instead,
based on the information it had all along, the
Agency has attempted to reconsider its decision,
thirty-nine
months later.
Whatever concerns the Agency had as to the
deductibility limit should have been addressed
prior to making
the
determination. The Agency was under no time pressures to
rush into its
decision. Moreover, the individual petitioner is
entitled to a certain degree of certainty in
the Agency’s
decisions.
The Agency implies that it applied the $10,000 deductible
because it believed at the time it was correct. The Agency also
argues that the Board has previously held that Agency errors are
best addressed by correction, not perpetuation. Therefore, the
Agency argues, whether the error was due to misapplication of the
law or simply an honest mistake, the Agency ought to be allowed
to correct this error. It is true that the Board has made such
statements,9 however the Agency quotes the statements out of
context. The Board made this statement in allowing the Agency to
deny reimbursement for costs in a subsequent case where the
Agency had allowed reimbursement for those costs in previous
cases. In other words, the Board affirms the Agency’s ability to
correct an error from one case to the next. The Board can not
authorize the Agency to reconsider the Agency’s decisions, even
where the Agency has made an honest mistake; only the legislature
has that authority.
In conclusion, the Board finds that under Ideal Heating, the
deductibility decision
is final upon notification to petitioner
but is not
ripe for appeal until a complete determination of
corrective action costs has
been made. In
addition, the Board
finds that the Agency’s reconsideration of the deductibility
determination is void, with the result that a $10,000 deductible
applies in this case. Lastly, the Board directs the Agency to
authorize reimbursement to petitioner for the corrective action
costs for soil sampling and stand-by equipment which were denied
reimbursement in the Agency’s May 17, 1993 letter.
~ See, State Bank of Whittington.
12
This opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
For the foregoing reasons, the Board hereby declares the
Agency’s May 17, 1993 imposition of the $50,000 to be void. This
case is remanded to the Agency in accordance with this order,
including the imposition of a $10,000 deductible. In accordance
with the parties’ agreement, the Board hereby reverses the
Agency’s May 17, 1993 final determination to deny reimbursement
to petitioner for:
A. $1,440.00 in costs associated with analysis of
constituents.
B. $600.00 for stand-by charges.
IT IS SO ORDERED.
B. Forcade, R.C. Flemal and C.A. Manning dissented.
Section 41 of the Environmental Protection Act, (415 ILCS
5/41 (1992)), provides for appeal of final orders of the Board
within 35 days. The Rules of the Supreme Court of Illinois
establish filing requirements. (See also 35 Ill. Adm. Code
101.246 “Motions for Reconsideration”.)
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above op’nion and order was
adopted on the ~/~24~
day of
___________,
1993, by~7avote
of
~
•
7.
Dorothy M. G4~n, Clerk
Illinois P?~iution Control Board
