ILLINOIS POLLUTION CONTROL BOARD
April 22, 1993
RTC INDUSTRIES, INC.
Petitioner,
v.
)
PCB 93—28
(UST Fund)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD (by B. Forcade):
This matter is before the Board on a March 19, 1993 motion
for summary judgment filed by the Illinois Environmental
Protection Agency (Agency) and RTC Industries’ (RTC) “Cross-
Motion for Summary Judgment” filed on April 7, 1993. RTC did not
file a response to the Agency’s motion and the Agency did not
file a response to RTC’s motion. On April 15, 1993, the Agency
filed a motion to strike RTC’s cross motion.
The Agency claims that the RTC’s cross-motion should be
stricken because it was not filed twenty days prior to the April
22, 1993 hearing as required by 35 Ill. Adm. Code 101.245(a).
RTC has filed a motion to reschedule the hearing, therefore the
Board denies the motion to strike.
RTC filed its petition for review with the Board on February
10, 1993. The petition seeks review of the Agency’s January 19,
1993 denial of eligibility for a 10,000 gallon heating oil tank.
The Agency found the tank to be ineligible “because the tank is
not registered and the fees are not paid.” RTC claims that the
tank was registered on December 18, 1989 and applicable fees
paid. (Pet. at 3.) Attached to RTC’s petition is a registration
form which includes the 10,000 gallon heating oil tank.
The Agency contends that the only issue raised for review is
the ineligibility determination for the 10,000 gallon heating oil
tank. The Office of State Fire Marshall (OSFM) informed the
Agency that the oil tank was exempt from registration and
therefore no fee was required. (Ag. Fiscal File at 91.) The
Agency argues that based on notification from OSFM that the tank
was not registered, the Agency determined the tank was
ineligible. The Agency notes that the Board has previously held
that OSFM registration determinations are not reviewable by the
Board.
RTC claims that summary judgment should be granted in favor
of RTC. RTC claims that the tank was registered pursuant to 41
Ill. Adm. Code 170 in effect at the time RTC filed its
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Notification of Underground Storage Tank with the OSFM. RTC also
argues that the Agency’s reliance on the affidavit from OSFM was
erroneous because it presents a legal conclusion which is not an
appropriate subject matter for an affidavit. RTC notes that it
has filed an appeal with the OSFM of its determination.
In the alternative, RTC requests the Board to stay these
proceedings until the conclusion of RTC’s appeal of the OSFM’s
determination.
The Board finds that the only issue on review is the
Agency’s denial of eligibility of the 10,000 gallon oil tank
because the tank was not registered. To be eligible to receive
money from the Underground Storage Tank Fund, the owner or
operator must have registered the tank and paid all applicable
fees. (415 ILCS 5/22.18b(4) (1992).)’ Under the statutory
division of authority, the OSFM is the agency with the authority
to register tanks. (430 ILCS 15/4 (l992).)2 In Village of
Lincoinwood v. IEPA (June 4, 1992), PCB 91—83,PCB
,
the
Board held that it “has no authority over registration of UST5
and, therefore, the issue of whether the
...
UST5, could, should,
or might be registered is not material to the Board’s review.
.“
Any determination of registration is made by the OSFM and is not
reviewable by the Board. (Martin Oil Marketing v. IEPA (August
13, 1992), PCB 92—53.)
As the registration of the tank is presently being appealed
to the OSFM, the Board denies the Agency’s motion for summary
judgment and RTC’s cross—motion for summary judgment.
RTC has requested a stay of the proceedings until the
conclusion of its appeal to the OSFM. RTC has provided a waiver
of the decision deadline in this matter until October 4, 1993.
The Board notes that it has previously granted stays in UST cases
where the issue of the registration of tanks is being appealed to
the OSFM. (See Weyerhauser Co. V. IEPA (September 17, 1992), PCB
92-105, Reichhold Chemical v. IEPA (December 3, 1993), PCB 92-
165.) The Board also notes that in Community Consolidated School
District No. 15
V.
IEPA, PCB 91-75 and OK Trucking v. IEPA, PCB
92-105, the petitioners have appeals before OSFM.
The stay as requested by RTC is not for a definite period,
the stay is contingent upon the OSFN reaching its decision on
RTC’s appeal of registration. RTC has provided no estimated time
Previously codified at Ill. Rev. Stat. 1991, ch. 111½, par.
1022. l8b(4).
2
Previously codified at Ill. Rev. Stat. 1991, ch. 127½, par.
156.)
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when OSFM may reach a decision or indicated that the OSFM’s
decision would occur prior to the decision deadline. The Board
will not grant a stay for an indeterminate period or a contingent
stay. The waiver of the decision deadline, as provided by RTC,
is insufficient for the Board to stay this matter for any length
of time. Therefore, the motion for stay is denied.
It is the responsibility of the petitioner to provide
adequate waivers and proceed with the matter in a timely fashion,
yet not to cancel hearings after notice has been published
without substantial justification.
Failure to provide the Board with an adequate waiver or
cancellation of noticed hearings may subject this matter to
dismissal for want of prosecution.
The hearing officer has ordered the parties to report the
status of this case to the hearing officer on June 1, 1993. The
hearing officer also noted that hearing must be set on or about
July 15, 1993 to meet the decision deadline. The Board notes
that this schedule creates a very short time frame for the
completion of hearings and may affect the filing of briefs and
limiL the Board’s time for deliberation in this matter.
IT IS SO ORDERED.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certi y that the above order was adopted on the
~~~-~-day of
___________________,
1993, by a vote of
,~‘,
()
1/I
~
~C.
Dorothy M. G,~inn, Clerk
Illinois P93/lution Control Board
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