ILLINOIS POLLUTION CONTROL BOARD
August 26, 1993
DIVANE BROS. ELECTRIC CO.,
Petitioner,
v.
)
PCB 93—105
)
(UST Fund)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD (by R.C. Flemal):
This matter comes before the Board on a motion for summary
judgment filed July 23, 1993 by Divane Bros. Electric Co.
(Divane) and a cross—motion for summary judgment filed August 5,
1993 by the Illinois Environmental Protection Agency (Agency).
The Agency filed its response to
Divane’s
motion with its cross
motion’, and Divans filed its response to the Agency’s cross—
motion on August 12, 19932.
For the reasons stated below, the Board denies the motion
and cross—motion for summary judgment.
This action pertains solely to the issue of eligibility to
access the Underground Storage Tank Fund (Fund) for one 8,000
gallon heating oil tank serving other than residential units for
consumptive use on the premises. Divane alleges that it
registered the tank with the Office of the State Fire Marshal
(OSFM) on or about March 25, 1986 and paid required fees. On
June 28, 1990 Divane first became aware that a release had
occurred from the tank, subsequently removed the tank and took
other corrective action. On March 13, 1992 Divane filed its
application for reimbursement for corrective action costs with
the Agency. (Pet. at 1-2.) The application was amended on
Divane also filed an open waiver of the decision deadline
and motion to continue the hearing. The Agency filed a motion to
file -its response to Divane’s motion instanter. The motion to
continue and motion to file were granted by the hearing officer
by order of August 3, 1993.
2 Divane also filed this document as a reply to the Agency’s
response to Divane’s motion for summary judgment. Divane did not
ask leave to file such reply, and this document will be
considered as the response to the Agency’s cross—motion for
summary judgment.
2
January 13, 1993. (Divane motion at 3.) Divane filed this appeal
of the Agency’s determination of ineligibility for reimbursement
from the Fund on May 24, 1993. On April 19, 1993 The Agency
denied eligibility because it believes the tank does not meet the
requirements of Section 22.18(b) (a) (4) as follows:
a. An owner or operator is eligible to receive
money from the Underground Storage Tank Fund
for costs of corrective action or
indemnification only if all of the following
requirements are satisfied:
** *
4. The owner or operator has
registered the tank in accordance
with Section 4 of the Gasoline
Storage Act and paid into the
Underground Storage Tank Fund all
fees required for the tank in
accordance with Sections 4 and 5 of
that Act and regulations adopted by
the (OSFM).
The Agency stated in its denial letter that “t)he (OSFM) lists
(Divane’s tank as being ‘exempt’ from registration due to the
date this tank was removed (6/28/90)”. (Denial Letter at 2.)
The parties also present argument on the proper law to be
applied in UST registration. The Board does not reach this issue
because it is obvious at the onset that genuine issues of
material fact remain.
The pleadings indicate that it is a disputed fact that OSFM
has decided to consider the tank “exempt”, and has reported this
to the Agency. Page 101 of the Agency record, cited by the
Agency in support of its position that the tank is exempt, is a
form sent to the Agency by OSFM. Page 101 indicates that the
tank is exempt from registration and that the tank is not
registered. The form is dated in three places, bearing an
original date of July 28, 1992, and two revised dates, March 3,
1993 and March 31, 1993. These revised dates bear the signature
of what appears to be “Jim Boone”, near each date. This form at
page 101 appears to be an altered version of the form at page 82.
Page 82, cited by Divane in support of its contentions, does not
contain the March 31, 1993 date and signature. Page 82 also
shows the tanks were registered on March 25, 1986 and that fees
were paid. Neither form contains any alleged reason OSFM found
the tank exempt, contrary to the Agency’s denial letter which
states that OSFM “lists this tank as being ‘exempt’ from
registration due to the date this tank was removed.” (Denia’
letter at 2.)
3
Due to these factual discrepancies contained in the record
which have not been clarified by the parties in their filings and
supported by affidavit, the Board denies the motion and cross-
motion for summary judgment as genuine issues of material fact
remain. Should this matter proceed to hearing the Board orders
the parties to address whether OSFM in fact registered this tank,
and whether the tank registration was in effect at the time the
application was filed. The parties shall also address whether
the tank registration was ever revised or revoked by OSFM.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above order was adopted on the
~i(~~2
day of
___________________,
1993, by a vote of
c~--c:
Dorothy M. G4z’in, Clerk
Illinois Pollution Control Board