ILLINOIS POLLUTION CONTROL BOARD
February 4, 1993
IDEAL HEATING
COMPANY,
)
an Illinois corporation,
)
Petitioner,
)
v.
)
PCB 92—118
(Underground Storage
ILLINOIS ENVIRONMENTAL
)
Tank Reimbursement)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter is before the Board on several motions.
On
December 4,
1992, petitioner Ideal Heating Company (Ideal)
filed
a motion for summary judgment.
On January 7,
1993, respondent
Illinois Environmental Protection Agency (Agency) filed a
response to Ideal’s motion for summary judgment, a cross motion
for summary judgment, and a motion for leave to file instanter.
Ideal filed a response in opposition to the Agency’s motion to
file instanter on January 13,
1993.
On January 19,
1993, the
Agency filed a reply to Ideal’s response in opposition to the
motion for leave to file instanter.
The Board points out that
our procedural rules state that a moving party shall not have the
right to reply, except as permitted by the Board or the hearing
officer to prevent materialprejudice.
(35 Ill.Adm.Code
101.241(c).) The Agency did not include a motion for leave to
file a reply,
and the Board will not consider the reply.
The Board will first address the Agency’s motion for leave
to file its response and cross motion for summary judgment
instanter.
The Agency contends that its filings were due on
December 27,
1992; that due to the press of Agency business and
the holidays, as well as being short-staffed due to the holidays,
the Agency attorney was unable to complete preparation of the
filings; that Ideal will not suffer irreparable harm due to the
delayed filings;
and that it is important that the Board have an
opportunity to consider the positions of both parties.
Ideal
filed a response in opposition to the motion to file instanter,
maintaining that the hearing officer’s scheduling order provided
that the Agency was to file any response to Ideal’s motion for
summary judgment within 15 days of the date that motion was
filed,
or by December 19,
1992; that the Agency never asked for
an extension of time to respond; that Ideal has met all deadlines
throughout this proceeding; and that if Ideal must meet filing
deadlines,
so must the Agency.
Ideal asks that the Board impose
sanctions against the Agency for its failure to follow the
hearing officer’s scheduling order.
0139-0027
2
The Board first notes that allowing four days for service of
Ideal’s motion for summary judgment
(35 Ill.Adm.Code 101.144),
the Agency’s filings were due on December 23,
1992.
(35
Ill.Adm.Code 101.109.)
Thus,
neither party correctly calculated
the due date for the Agency’s filings.
The Agency has not given
any reason for the delay which would have precluded the filing of
a motion for extension of time when it became apparent that the
Agency was going to miss the filing deadline.
Both the press of
business and the holidays can be predicted ahead of time.
However, the Board will reluctantly grant the Agency’s motion for
leave to file instanter.
Ideal’s request for sanctions is
denied.
BACKGROUND
This case arises out of the Agency’s findings that Ideal
is
eligible for reimbursement from the Underground Storage Tank
(UST)
Fund,
subject to a $100,000 deductible, and that $2,275 in
supplemental soil sampling and analysis is not a reimbursable
cost.
(Rec.
A at 43-44; 133—135.)’
The parties filed a
stipulation of facts on November 16,
1992.
Ideal purchased real
estate at 7335 South Madison, Willowbrook, Illinois, on June 15,
1990.
Ideal was informed of the existence of one UST on the
property at the time of purchase
(June 15,
1990), and had no
knowledge of that tank prior to June 15,
1990.
Ideal and the
Agency agree that Ideal did not operate or own the site prior to
June 15,
1990.
(Stip.
at 1; Pet. at 2.)
On September 19,
1990,
Ideal had the UST removed, and caused
corrective action to be taken in response to a release of a
petroleum product from that UST.
Ideal filed an application for
reimbursement from the UST Fund, pursuant to Section 22..18b of
the Environmental Protection Act
(Act)
(Ill.Rev.Stat.1991,
ch.
111½, par. l022.18b), on July 16,
1991.
(Stip.
at
1; Pet. at 2—
3.)
On August
8,
1991, the Agency sent a letter to Ideal,
notifying Ideal of specific deficiencies in the application.
(Rec. A at 14-15.)
That August
8 letter stated that the Agency
was returning the application due to incompleteness,
and
specifically mentioned the following three items necessary to
complete the application:
1) proof that the tank has been
properly registered, with the facility identificatIon number
entered by the Office of State Fire Marshal
(OFSM);
2) proof that
registration fees had been paid to OSFM; and 3)
full responses to
The Agency record was filed in two binders.
Part one,
the fiscal file, will be cited as “Rec. A at
“,
while part
two, the technical file,
will be cited as “Rec.
B at
_____“.
The
stipulation of facts,
filed by the parties on November 16,
1992,
will be cited as “Stip. at
____“.
The petition for review, filed
on August 19,
1992,
will be cited as “Pet.
at
_____
0139-0028
3
questions 8(a),
(b),
(C),
and
(f) of the application, dealing
with the history of the tank and insurance coverage.
(Rec. A at
14.)
On October 28,
1991, Ideal revised its application.
(Stip.
at 1; Pet. at 3.)
On November 19,
1991, the Agency determined that Ideal was
eligible for reimbursement of corrective action costs, after
payment of
a $100,000 deductible.
(Rec. A at 43—44.)
On July
17,
1992,
the Agency reiterated its conclusion that the $100,000
deductible was applicable to Ideal, and stated that the allowable
corrective action costs to be reimbursed are $5,593.15.
(Rec. A
at 133-135.)
That July 17,
1992 decision does not include
payment of $2,275 in supplemental soil sampling and analysis, but
does not specifically deny payment.
ISSUES
On December 4,
1992, Ideal filed the instant motion for
summary judgment.
Ideal contends that there is no genuine issue
of material fact in this case,
and that it is entitled to
judgment as a matter of law.
On January 7,
1993, the Agency
field a counter motion for summary judgment.
The Agency contends
that it is entitled to summary judgment,
affirming its decision.
However, the Agency also argues,
in the alternative, that a
genuine issue of material fact exists as to when Ideal’s complete
application for reimbursement was filed with the Agency.
There are two issues in this case:
1.
Whether the Agency properly applied P.A.
87-32 3,
effective September 6,
1991, as it amended Section 22.18b of
the Act, to apply a $100,000 deductible to Ideal’s
application for reimbursement; and
2.
Whether $2,275 in supplemental soil sampling and
analysis costs, not included by the Agency in the amount
reimbursed to Ideal, but not specifically denied,
is
reimbursable as a cost of corrective action.
$100,000 Deductible
The dispute over whether a $100,000 deductible applies to
Ideal’s application for reimbursement is rooted in whether
a
September 6,
1991 amendment to Section 22.l8b(d) (3) (B) (i)
should
be applied in this case.
Before September 6,
1991, that section
stated:
If prior to July 28,
1989, the owner or operator has
registered none of the underground storage tanks in
use on
that date on the site,
the deductible amount
...
shall be
$100,000 rather than $10,000.
(Emphasis added.)
0139-0029
4
After the amendment in P.A. 87-323 became effective on
September
6,
1991,
the section states:
If prior to July 28,
1989, the owner or operator had
registered none of the underground storage tanks at the
site
on that date,
the deductible amount
...
shall be $100,000
rather than $10,000.
(Emphasis added.)
It is undisputed that the UST at the site was not registered
prior to July 28,
1989.
It is also undisputed that the amendment
in P.A.
87—323, deleting the “in use” language, would mandate the
imposition of a $100,000 deductible in this case.
Ideal contends
that the September 6,
1991 amendment is not applicable to its
application for reimbursement, so that the proper deductible is
$10,000.
On the other hand,
the Agency argues that the phrase
“in use” should be given a passive, rather than active,
construction, leading to an interpretation that any registrable
tanks which were not registered before July 28,
1989 are subject
to a $100,000 deductible.
Thus,
the Agency argues that the
September 6,
1991 amendment has no effect on this case.
In the
alternative, the Agency contends that the September 6, 1991
amendment was properly applied to Ideal’s application, resulting
in a $100,000 deductible.
Initially, the Board will address the Agency’s contention
that we should construe the phrase “in use”,
as it existed in
Section 22.18b(d) (3) (i) prior to the September 1991 amendment,
in
a passive, rather than active, manner.
The Agency maintains that
a passive construction of “in use”
(i.e., being underground and
storing a regulated substance,
as opposed to the more active
pumping product in and out of the tank) would mean that the
September 1991 amendment is meaningless to the outcome of this
case.
However, as the Agency notes, the Board has previously
applied an active construction to the phrase “in use”.
(First
Busey Trust
& Investment Co.
v. Illinois Environmental Protection
Agency (February 27,
1992),
PCB 91-213,
130 PCB 287; A.K.A. Land
Inc.
v. Illinois Environmental Protection Agency (March 14,
1991), PCB 90-188.)
The Board is not persuaded by the Agency’s
suggestion that we should now use a passive construction of “in
use”.
Thus, whether the September 1991 amendment is applicable
to this case is the dispositive question on the deductible issue.
The Act provides that the applicable deductible is to be
determined based upon the date that the Agency receives a
complete application.
(415 ILCS 5/22.18b(d)(3)(G)
(1992).)
Thus,
in determining whether the September 6,
1991 amendment
applies to Ideal’s application, the Board must determine if Ideal
had submitted a complete application to the Agency before
September
6,
1991.
If Ideal’s July 1991 application was
complete, a $100,000 deductible
is not applicable in this case.
If, however,
as the Agency contends,
Ideal did not file a
complete application until October 1991, the amendment added by
0139-0030
5
P.A. 87—323
is applicable to this case,
so that a $100,000
deductible
is properly applied.
Ideal contends that under the rationale expressed by the
Board in First Busey, Ideal’s application must be considered
complete in July 1991.
Ideal notes that in First Busey, the
Board held that an application for reimbursement cannot be
considered complete unless the information necessary for the
Agency to make its decision is included, and that the issue of
whether an application is complete is a factual determination.
(130 PCB 291.)
Ideal notes that the Agency articulated three
reasons for returning the July 1991 application (returned on
August 8,
1991), but argues that the Agency erred in its findings
that those three requirements had not been met.2
Ideal contends
that its July 1991 application was complete when filed, arguing
that the July application contained all elements necessary for
the Agency to make a decision under the Act.
Ideal maintains
that to find its July application to be incomplete would penalize
Ideal for the Agency’s arbitrary and unilateral mishandling of
the July application,
and would subject Ideal,
or any applicant,
to an uncertain filing date and uncertain applicable law,
completely within the control of the Agency.
The Agency agrees that First Busey is controlling precedent,
but argues that there are fundamental distinctions between the
facts in First Busey and those in this case, which require a
different outcome in this case.
The Agency also rebuts Ideal’s
contention that the application was complete when filed in July
1991.
After reviewing the arguments and the record in this case,
2
Ideal notes that the Agency record filed with the Board
does not include the July 16,
1991 application itself, although
the record does contain documents which accompanied that
application.
(Rec. A at 1-li;
Rec. B at 9—191.)
Ideal presumes
that this omission was an oversight, and provides a copy of the
July 1991 application (and an affidavit attesting to its
authenticity)
as Exhibit A to Ideal’s memorandum in support of
its motion for summary judgment.
(Exhibit B is a private
insurance coverage affidavit,
also excluded from the Agency
record.)
The Agency,
in response, contends that the omission of
the July 1991 application was not an oversight, since that
application was “rejected” by the Agency on August
8,
1991.
The
Board reminds the Agency that the question of the completeness of
an application may become an issue in a case,
as it has in this
proceeding.
Clearly, the “rejected” application must be in the
record so that the Board can review it,
if necessary.
Thus, the
Board will accept Exhibits A and B as part of the record in this
case.
0139-0031
6
the Board finds that Ideal’s application was complete when filed
on July 16,
1991.
The Board recognizes, as the Agency maintains,
that the facts of this case do differ from the facts in First
Bimsey.
However, the important holding in First Busey is that
“t)he
determination of when an application can be considered
complete and therefore filed is a factual determination.”
(130
PCB 291.)
Just as we did in First Busey, the Board must analyze
the facts of this case in order to determine whether the July
1991 application was complete.
In its August 8,
1991 letter to Ideal,
the Agency listed
three items which were deemed incomplete.
(Rec. A at 14.)
First, the Agency stated that Ideal must submit proof that the
tank had been properly registered, including the facility
identification number as entered by OSFI.
Ideal points out that
it furnished,
in the July 1991 application, copies of two forms
filed with OSFM on August 3,
1990 (registration form 7530—1 and
Ideal’s application for a permit to remove the tank),
along with
copies of the front of two checks payable to OSFN.
(Rec. A at 3-
5.)
Additionally, Ideal verified, under oath, that those forms
had been filed with OSFM,
and stated that a registration number
had not been issued by OSFM.
(Exh. A.)
The Board takes official
notice of the fact that there have frequently been lengthy delays
in obtaining registration numbers from OSFM.
(~g~
First Busey,
where tanks were registered on March 5 and April 5,
1990,
but no
confirmation of that registration was issued by OSFN until July
26,
1991.)
Although the Agency contends that it must have
verification from OSFM that the tank was actually registered,
the
Board finds that the information submitted by Ideal in July 1991
on the question of tank registration was sufficiently complete to
deem the application filed.3
Ideal furnished all information in
its possession,
and verified that information under oath, when
filing the July 1991 application.
Second, the Agency stated that the July 1991 application was
incomplete because it lacked proof that all proper registration
fees had been paid.
The Agency stated that such proof should
include front and back copies of checks, or written confirmation
from OSFN.
The Agency argues that those documents are the only
evidence sufficient to document that those fees were actually
paid, rather than merely tendered for payment.
In response,
Ideal points out that it provided a copy of the front of the
checks, and swore under oath that all fees had been paid.
(Exh.
A; Rec. A at 4.)
Ideal also furnished copies of its August 3,
1990 correspondence to
OSFM.
(Rec. B at 15—16.)
The Board finds
that the information submitted by Ideal
in July 1991 on the issue
The Board notes that Ideal was able to subsequently
provide the OSFM site registration number,
in October 1991.
(Rec. A at 35.)
0139-0032
7
of fee payment was sufficiently complete to deem the application.
Third,
the Agency found the July 1991 application was
incomplete because Ideal answered “unknown” to questions 8(a),
(b),
(c), and
(f)
of the application.
Those questions ask about
the owner or operator of the tank at the time of installation,
the date the tank was installed, the date the tank was taken out
of service, and the site registration number.
The Agency also
returned the insurance affidavit,
stating that all blanks must be
completed.
(Rec. A at 14.)
The Agency argues that this
information is relevant to its reimbursement determination
because tanks must be registerable by OSFM, and OSFM cannot
register tanks which were taken out of service before January 1,
1974.
(430 ILCS 15/4(b)(1)(A)
(1992).)
The Agency also
maintains that the exact date that a tank is removed from service
is relevant in determining the appropriate deductible.
In
response,
Ideal notes that it could not certify, under oath,
information to which it was not privy,
and that it did
specifically state that the tank was not in use as of July 28,
1989,
or at any time thereafter.
Ideal contends that it provided
the information necessary for the Agency to determine whether
Ideal was eligible for reimbursement, and to apply the
appropriate deductible.
As to the insurance affidavit,
Ideal
points out that it provided two separate affidavits, one from
Ideal and the other from Ideal’s insurance representative,
and
that those two affidavits,
taken together, are complete.
(Rec. A
at
2,
8—9;
Exh. B.)
The Board finds that the information furnished by Ideal in
July 1991 on the history of the tank, and insurance coverage, was
sufficiently complete to deem the application filed.
Because
only OSFM,
and not the Agency, has authority to register tanks,
the Agency has no need to know whether the tanks were taken out
of service before January
1,
1974.
That fact,
as it relates to
tank registration,
is relevant only to OSFM.
Ideal specifically
stated,
under oath, that the tank was not in use on July 28,
1989, or at anytime thereafter.
This is the information
necessary for the Agency to determine the applicable deductible
in this case.
As to the insurance coverage affidavits,
the Board
finds that the two separate affidavits, taken together, clearly
answer all questions on those affidavits.
In sum, the Board finds that the application and supporting
information submitted by Ideal
in July 1991 was sufficiently
complete for the Agency to make its decision.
Thus, the July
1991 application should have been deemed filed,
so that the
amendment added by P.A. 87-323 does not apply to Ideal.
The
Board grants summary judgment on the issue of the deductible,
in
favor of Ideal.
The Agency’s determination that a $100,000
deductible is applicable to Ideal
is reversed, and a $10,000
deductible should be applied.
0139 -0033
8
Supplemental Soil Sampling Costs
As noted above,
Ideal submitted $2,275 in supplemental soil
sampling and analysis costs to the Agency for reimbursement.
The
Agency’s July 17,
1992 decision did not include payment of those
costs, but also did not specifically deny those costs.
(Rec. A
at 131-135.)
In the stipulation filed in this case, the parties
agreed that the Agency would investigate this matter to determine
whether the amount remains in dispute.
If a dispute was found,
the parties agreed to submit the issue to the Board.
(Stip. at
1—2.)
In its motion for summary judgment and supporting
memorandum,
Ideal contends that the issue has not been resolved
as of the date of hung
(December 4,
1992), and is therefore
properly considered a matter in dispute.
Thus,
Ideal asks that
the B.oard find for Ideal on this issue based upon the facts in
this case.
However,
in the Agency’s motion and memorandum,
it
states that the “denial” of the soil sampling costs was based
upon a belief that the expense was not sufficiently documented.
The Agency states “the parties agreed that upon presentation to
the Agency by Ideal of a copy of its canceled check for the
subject cost documenting proof of payment, the item would be
properly reimbursable from the Fund..
Accordingly, this
r)esponse
and c)ounter—(mnotion
will address only the
deductible issue.”
(Agency motion at 2,
fn. 1)
The Agency has stated that the soil sampling costs are
reimbursable from the Fund.
Therefore, the Board finds that
these costs are no longer in dispute, and are reimbursable.
The
Agency is directed to reimburse Ideal for $2,275 in supplemental
soil sampling and analysis costs, upon Ideal’s presentation of
cancelled checks reflecting payment of those costs.
CONCLUSION
In sum, the Board finds that Ideal’s July 1991 application
for reimbursement was complete, and should have been considered
filed.
Therefore, the September 6, 1991 amendment to the
deductible provisions,
added by P.A. 87—323,
is not applicable to
this case.
Summary judgment on the issue of the deductible is
granted in favor of Ideal, and the Agency is directed to impose a
$10,000 deductible.
Additionally, the Agency is directed to
reimburse Ideal for $2,275 in supplemental soil sampling and
analysis costs, upon presentation of cancelled checks reflecting
payment of those costs.
This case is remanded to the Agency for payment of
reimbursable costs to Ideal, consistent with this order.
This
docket is closed.
This order constitutes the Board’s findings of fact and
0l39-O03~
9
conclusions of law.
IT IS SO
ORDERED.
B. Forcade dissented.
Section 41 of the Environmental Protection Act
(415 ILCS
5/41
(1992)) provides for the appeal of final Board orders.
The
Rules of the Supreme Court of Illinois establish filing
requirements.
(But see also 35 Il1.Adm.Code 101.246 “Motions for
Reconsideration” and Castenada
V.
Illinois Human Rights
Commission
(1989),
132 Ill.2d 304,
547 N.E.2d 437.)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Boa d
hereby cert
y that the above order was adopted on the
______
day of
_______________,
1993, by a vote of
—/
~L.
~Dorothy
N.
n, Clerk
Illinois P 1 ution Control Board
0139-0035
