ILLINOIS POLLUTION CONTROL BOARD
July 14,
1993
J.J.R.S.
INVESTMENTS,
An Illinois General Partnership,
Petitioner,
v.
)
PCB 93—107
(UST Fund)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by
C.
A. Manning):
This matter is before the Board on a May 28 appeal,
filed by
J.J.R.S.
Investments
(Investments),
of an Illinois Environmental
Protection Agency (Agency) determination that
a 275 gallon
underground storage tank was ineligible for reimbursement from
the underground storage tank fund.
Because of the necessity for
immediate Board action
in these cases, the case was accepted by
the Board upon filing,
and a hearing date was immediately set.
While the Board’s rules
(35 Ill. Adm. Code 105.102(a) (4)
require that the Agency file its record with us within
14 days of
the date of notice of the petition (on June 11,
1993), the record
in this case was not submitted by the Agency until June 23.
On
that date,
along with its motion to file the record instanter,
the Agency also filed a motion for summary judgement.
The basis
of this summary judgement motion was that the Office of the State
Fire Marshal
(OSFM)
had refused to register the tank.
Citing
various Board cases which held that the OSFM has the exclusive
statutory authority to register tanks pursuant to the Act,
see
e.g., Village of Lincoinwood,
(June 4,1992), PCB 91—83,
134 PCB
33; City of Lake Forest v.
IEPA,
(June 23,
1992), PCB 92—36,
134
PCB 337; Martin Oil Marketing,
# 64
v.
IEPA,
(August 13,
1992),
PCB 92-53,
135 PCB 293.,
the Agency argues that the Board lacks
authority to review a determination of the OSFM regarding
registration and consequent eligibility for reimbursement from
the fund. Thus, the Agency argues that the case must be
dismissed.
On July 2,
1993,
Investments filed a motion for denial of
summary judgement and a memorandum in support thereof.
In these
pleadings,
Investments argues that the OSFM improperly denied
registration of the 275 gallon tank since the tank was used for
heating oil storage; it looks to the Board to review the
determination of OSFM.
Under the current statutory structure,
however,
no such review by the Board is available.
(See cases
cited above.)
Rather, petitioners in other cases before the Board
who have been denied reimbursement based upon adverse eligibility
2
determination of the OSFM have sought review of that OSFM
decision, and have requested a stay of the proceedings before the
Board.
(~g, Community Consolidated School District No.
14 v.
IEPA, PCB 91-75; The OK Trucking Company v.
IEPA,
PCB 92-108; and
RTC Industries
v.
IEPA,
PCB 93-28.)
Since no such stay has been
requested here, we must rule on the motion as presented by the
facts of this case.
Unless and until Petitioner presents us with
a determination from the OSFN
(or the courts) that the tank has
been registered and an Agency action pursuant thereto, there
is
nothing for us to review.
The Board finds that summary judgement
is appropriate in this case and grants summary judgement as
requested by the Agency.
Regarding the Agency’s motion to file the record instanter,
the Board grants the motion and accepts the record since
(1) the
petitioner suffers no prejudice as a result of the late filing
and (2)the record is virtually inconsequential considering the
Respondent’s admission of the OSFM denial.
The Board cautions
the Agency for future cases,
however, that late filed records in
UST cases may result in determinations adverse to the Agency’s
interests.
IT IS SO ORDERED.
J. Anderson dissented.
Section 41 of the Environmental Protection Act
(415 ILCS
5/40.1)
provides for the appeal of final Board orders 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.~order was adopted on the
/-/
day of
_____________________
,
1993, by a vote
of
-~-‘—/
.
1-)
-
Dorothy M.
Gu,i’mn, Clerk
Illinois PoLlution Control Board