ILLINOIS POLLUTION CONTROL BOARD
June 4,
1992
CLINTON COUNTY OIL CO.,
INC.,
)
HOFFMAN/MEIER’S SHELL and
)
CLARENCE MEIER,
)
)
Petitioners,
)
v.
)
PCB 91—163
)
(Underground Storage Tank
ILLINOIS ENVIRONMENTAL
)
Fund Reimbursement)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by M. Nardulli):
This matter is before the Board on the April 30,
1992 motion
for reconsideration filed
by the Illinois Environmental Protection
Agency
(Agency).
On
May
11,
1992,
petitioners
filed
their
response.
The Agency seeks reconsideration of the Board’s March 26, 1992
decision reversing the Agency’s determination that petitioners’
claim
for reimbursement
from
the Underground Storage Tank Fund
(Fund)
is subject to a $50,000 deductible.
Petitioners
appealed
the Agency’s decision that petitioners were eligible to access the
Fund subject to a $50,000 deductible.
Based upon evidence adduced
at hearing, the Agency argued for the first time before the Board
that petitioners were not even eligible to access the Fund.
The
Board found that the Agency was bound by its initial determination
of eligibility and concluded that the Agency’s imposition of the
$50,000 deductible was erroneous.
Petitioners
contend
that
the
Agency’s
motion
for
reconsideration should be denied because the Agency has failed to
raise any new facts or issues which were not previously considered
by the Board.
The Board agrees that the Agency’s motion does not
raise any new facts.
However, the motion does raise a new argument
in
support
of the Agency’s contention that the Board
erred
in
refusing to consider the
issue
of
eligibility.
Therefore,
the
Board will consider the merits of the Agency’s motion.
Both the
Board
and the Agency
agree
that the
UST review
process,
like the
permit
review
process,
is
an administrative
continuum which is not complete until the Board holds a hearing and
issues its final determination.
However, relying on this principle
the Agency contends that it should be allowed to reach a new UST
determination where it is surprised by the evidence introduced at
hearing.
The Agency asks that this case be remanded to the Agency
to “amend” its UST determination.
The Agency argues that this case
should
be
remanded
for
a
second
determination
because
“new”
134—37
2
evidence “unavailable” to the Agency when it reached its
initial
determination of eligibility was introduced by petitioners at the
Board
hearing.
This
“new”
evidence
is
simply
petitioners’
testimony of the facts surrounding the removal of the USTs and
installation of new tanks.
This testimony is not inconsistent with
petitioners’ application and was offered in support of petitioner’s
contention
that
it did not
have
constructive knowledge of the
release before July 28, 1989.
There is nothing indicating that the
Agency was prevented from obtaining this information during its
review of petitioner’s application.
In fact, the record indicates
that the Agency sought more information only after it had rendered
its final determination on petitioners’ application.
Under
the
permit
review
process,
which
applies
to
UST
decisions
(Ill.
Rev. Stat.
1989,
ch.
111 1/2, par. 1022.18(g)),
a
hearing is not held at the Agency level, but is provided before the
Board when an applicant challenges the Agency’s UST determination.
In appealing to the Board,
an applicant is seeking review of the
Agency’s decision.
The Agency’s UST decision frames the issue on
review.
(See ~.g., Pulitzer Community Newspai~erv. IEPA (December
20,
1990, PCB 90-142 at 7.)
At the Board hearing the applicant and
the Agency may,
as happened here, present evidence in support of
their respective positions regarding accessing the UST Fund.
While
it is true that the Agency’s decision is not final for purposes of
review
by
the
appellate
court,
the
Agency
is
bound
by
its
determination
on
review
before
the
Board.
In
this
sense,
the
Agency’s determination
is
“final”.
If the Agency were free
to
change its mind after it had reached its “final” determination, the
Agency’s initial determination would be rendered meaningless.
Under
the
Act,
the
Agency
reviews
applications
for
reimbursement
from
the
Fund
and
determines
what
costs
are
reimbursable.
(Ill.
Rev.
Stat.
1989,
ch.
111
1/2,
par.
1022.18b(d) (4).)
The Board sees no reason tO depart from its prior
holding that, upon making its determination, the Agency is bound by
that decision before the
Board.
The Board has reconsidered
its
decision. of
March
26,
1992
and affirms
its
determination that
eligibility was not at issue and that the Agency’s imposition of
the $50,000 deductible must be reversed.
IT IS SO ORDERED.
R.
Flemal and B. Forcade dissent.
Section
41
of the Environmental Protection Act
(Ill.
Rev.
Stat.
1989,
ch.
111
1/2,
par.
1041)
provides
for
the appeal
of
final Board orders within 35 days.
The Rules of the Supreme Court
of Illinois establish filing requirements.
134—38
3
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board
hereby ce
ify that the above order was adopted on the
______
day of
______________,
1992 by a vote of
~
‘~DorothyM. Gu~n,Clerk
Illinois Pol~AtionControl Board
134—39