ILLINOIS POLLUTION CONTROL BOARD
June
23,
1992
CITY OF
LAKE
FOREST,
)
)
Petitioner,
v.
)
PCB 92—36
)
(Underground Storage Tank Fund
Reimbursement Determination)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
MURRAY R. CONZELMAN APPEARED ON BEHALF OF PETITIONER,
AND
DANIEL P. MERRIMANN APPEARED ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by J.
C.
Marlin):
This matter
comes
before the Board on the February 26,
1992
petition for review filed by the City of Lake Forest
(City),
Lake
County,
pursuant
to
Sections
22.18b(g)
and
40
of
the
Illinois
Environmental Protection Act (Act)
(Ill.
Rev.
Stat.
1989,
ch.
111
1/2,
par.
1022.18b(g)
and
1022.40).
The
City
challenges
the
January 27, 1992 decision of the Illinois Environmental Protection
Agency
(Agency) denying the City’s November
21,
1991 application
for reimbursement from the Underground Storage Tank Fund
(Fund).
The City sought $36,924 in corrective action costs associated with
removal
of a 750 gallon abandoned underground storage tank which
was exempt from registration by the Office of State Fire Marshal
(OSFN).
Hearing was held on May 14, 1992; no members of the public
attended.
Pursuant to schedule, the City filed its opening brief
on May
22,
1992.
The Agency’s brief,
due June
1, was not filed,
and no reply brief was filed by the City.
FACTS
There is no factual dispute
in this case.
Rather,
the City
disputes denial of access to the Fund under the facts of the case,
which it alleges presents a flCatch_22u situation in which
it could
not register
a UST which
it
had not known
existed prior to
its
discovery
during
the
process
of
a planned
removal
of
another,
registered UST.
At hearing, the City presentdd the testimony of two witnesses.
The first was Max L.
Slankard, Assistant to the City’s Director of
Public
Works.
(Tr.
pp.
6-21.)
The
second
was
Patricia
Kirschhoffer,
President of
Kirschhoffer
Construction
Co.,
whose
company was retained by the City to remove the USTs at issue.
(Tr.
134—337
2
pp.
22—42.)
The Agency presented one witness, Kendra Schmidt, the
project manager
in the Agency’s UST Section,
Bureau of Land, who
reviewed the City’s reimbursement application.
The site at issue is the Deerpath Park Golf Course.
The City
was aware of two UST5 at the site,
a gasoline storage tank which it
proposed to leave in place, and
a 500 gallon waste oil tank which
it proposed to remove.
The City also planned to remove another
tank on Waverly Road.
Removal commenced on July 16,
1990.
Persons
present included Mrs. Kirschhoffer, to perform the removal, and Ms.
Susan Dwyer of the OSFM, to observe that removal.
(Tr. pp.
17,
24,
54
& Pet.
Exh.
1.)
During the course of the removal of the 500
gallon waste oil UST, the west wall of the excavation fell away and
exposed the end of a previously unknown tank located at
a higher
elevation.
(Tr.
p.
23
& Pet.
Exh.
2.)
This UST was discovered to
be a 750 gallon tank, partially filled with gasoline and sand; in
the past,
sand or other inert materials were often introduced into
UST5 during the process of “abandonment in place” or closure.
As
the second unknown tank was exposed,
a strong gasoline odor was
present in the air, and gasoline was leaking from the tank.
Vapors
from the tank were monitored, and because “the explosion level was
too high”,
the excavation was closed
while
the contractor went
through
the
OSFN
process
of
tank
registration
and
permitting
necessary prior to tank removal.
(Tr. pp. 24-26.)
The incident was
duly reported to the Emergency Service and Disaster Agency (ESDA)
and logged
as Incident
#
901982.
OSFM
issued
its UST removal
permit on August
1,
1990.
(Pet.
Exh.
1,
pp.
1-2.)
Actual tank removal began on October 26,
1990.
There
is no
dispute
that
the
tank
was
appropriately
removed,
transported,
cleansed, and disposed of.
Six hundred and fifty cubic yards of
gasoline
contaminated
soil
was
excavated
and
removed
for
appropriate disposal between October
26 and November 2,
1990.
As
costs for the project had increased 970
over the City’s estimates,
the City stopped excavation and closed the site in order to further
evaluate the remediation process.
Soil borings performed in mid-March,
1991 indicated two areas
of contamination
on the
south
side
of
the
original excavation.
Consequently, one year after the discovery of the unknown UST, the
site was again excavated.
As the result
of discussions with the
Agency and the City’s remediation consultants,
Soil and Material
Consultants,
Inc., the City determined to attempt landfarming as a
remediation method.
This consisted of
layered placement of soil
exhibiting traces of odor or visual contamination on an asphalt
parking lot, with subsequent working and turning of the soil with
a small tractor.
On July 19,
1991,
the City returned the treated soil to the
excavation
and
closed
the
site.
The
results
of
soil
samples
received
by
August
14,
1991
led
the
City
to
believe
that
remediation had been successfully completed.
The cost of this year
134—338
3
long project was $36,924.
(Pet.
Exh.
1,
pp.
12-13.)
The City submitted an application for reimbursement for these
costs from the Fund on November 21,
1991.
The application sought
reimbursement for costs associated with corrective action for
1)
the known,
registered
500
ga.llon waste
oil
UST
and
500 gallon
gasoline UST and
2) the unknown, unregistered 750 gallon gasoline—
sandfilled tank.
(Pet.
Exh.
1.)
The Agency issued its letter of determination on February 26,
1992.
(Agency Rec. pp. 64-65).
The Agency determination concerning
the 500 gallon USTs was not challenged, so it will not be set forth
here.
As to the 750 gallon gasoline UST,
the Agency stated that
“corrective
action costs associated with it,
which was the only
tank
indicated
to
have
had
a
release,
are
not
eligible
for
reimbursement...This tank failed to meet the eligible requirement
(sic)
of
Section
22.18b(a)(4)J.
specifically,
(1)
the
OSFM
indicates
the
tank
was
filled
with
sand
(and)
is
exempt
from
registration, and
(2)
the fees have not been paid for the tank”.
At
hearing,
the
Agency
acknowledged
that
at
the
close
of
hearing “a)s
far as the registration fee
is concerned,
it’s our
understanding that they do not owe a fee.
We have no concern over
that”.
(Tr. p.
80).
The Board accordingly finds that the Agency’s
second reasonfor denial, non-payment
of
fees,
was
in error,
and
will not further discuss this reason.
The testimony of the City is uncontroverted that the existence
of the 750 gallon gasoline-sandfilled tank was unknown to the City,
and that the tank had not been used since before 1973
(Tr. pp.
27-
28).
Pursuant to Section 4(b)
of the Gasoline Storage Act
(Ill.
Rev. Stat.
1989,
ch.
127 1/2,
par.
156(b),
the OSFM has taken the
position that it cannot register tanks taken out of service prior
to January
1,
1974.
(See Sparkling Spring Mineral Water
v.
IEPA,
(March 14,
1991) PCB 91—9.)
The substance of the testimony of the
Agency’s Ms. Schmidt is that, based on the information provided to
her by OSFM (Agency Rec. pp.
59-62) eligibility was denied because
the tank was not registered.
Ms.
Schmidt agreed that if OSFM had
informed her that the tank was registered,
that her decision would
have
changed
to
a
determination
that
the
tank
was
eligible
“providing
all
other
criteria
were
met”.
(Tr.
75-76).
The
Agency’s
position
was
further
underscored
in
response
to
questioning by the Board’s Hearing Officer:
Hearing Officer Hurwitz:
You
don’t
care
whether
OSFM
is
ri9ht or wrong,
is that what you are
saying,
you
just
go
by
what
they
tell you?
The Witness:
I
made
this
decision
based
on
the
information they gave me,
yes.
t
34—339
4
Hearing Office Hurwitz:
So that with respect to whether or
not
a
tank should be registered or
exempt,
that’s
not
your
decision,
that’s
the
State
Fire
Marshall’s
decision?
The Witness:
Exactly.
(Tr.
p.
77).
ARGUNENT
The City’s position in this case is best presented by quoting
its own language.
In the City’s view,
The only dispute is about registration.
Petitioner couldn’t
have registered the tank before July
1990 because it didn’t
know the tank existed and the minute the tank was uncovered
the
State
Fire
Marshal
would
have
refused
to
accept
the
registration because the tank was “exempt from registration”.
The good purpose of the Statute is to rid the environment of
leaking underground storage tanks.
A rule which discourages
their removal because reimbursement is refused by bureaucratic
whim or caprice
is directly contrary to the good purpose of
the Statute.
The City.
.
.did everything it was supposed to do.
It did not
know of the existence of the seven hundred fifty gallon tank,
but when that tank was uncovered it immediately took steps to
obtain necessary permits and it removed the tank.
It followed
the law precisely and
it carried out the purposes for which
the law was enacted.
To now say that it
is not entitled to
reimbursement,
not because
it
won’t pay
fees because those
have been tendered, but because it didn’t register a tank it
didn’t know about and because the State Fire Marshal would not
have accepted registration because he found that the tank was
“exempt
from
registration”,
that
presents
a
ludicrous
situation
having
nothing
to
do
with
the
purpose
of
the
Statute.
That can only be explained by a bureaucrat’s rigid
adherence to form over substance and purpose.
(City Brief,
pp.
5-6).
DISCUSSION
The Board sympathizes with the City’s
position,
and agrees
that the City finds itself
in
a ~“Catch-22” situtation.
However,
the Board must implement the statutory scheme
as adopted by the
legislature.
As the Board has recently stated in a similar case,
Village of Lincolnwood
v.
IEPA
(June
4,
1992),
PCB 91—83,
involving a municipality’s inability to register unknown, abandoned
tanks with consequent ineligibility for reimbursement from the UST
134—34 ()
5
Fund:
The Board’s
opinions
in UST cases
illustrate the confusion
encountered by Fund applicants.
(See ~.q., Rockford Drop Forcie
Co. v. IEPA (December 20,
1990), PCB 90-46; Lawrence Cadillac
v.
IEPA (February
6,
1992), PCB 91-133.)
However, under the
statutory division of authority, the OSFM is the agency with
the authority to register USTs.
(Ill. Rev. Stat.
1989, ch. 127
1/2,
par.
156.)
The parties agree that the
four abandoned
UST5 are not registered.
Under Section 22.18b(a)(4)
of the
Act,
an owner
or
operator of
a
UST
is registered with the
OSFM.
(Ill.
Rev.
Stat.
1989,
ch.
111
1/2,
par.
1022.18b(a) (4).)
The Board has no authority over registration
of UST5
and,
therefore,
the issue
of whether
the four UST5
could, should,
or might be registered
is not material to the
Board’s review of the Agency’s
decision.
Any remedy for this sort of situation can come only from the
legislature; the Board has no authority to rewrite the statutory
scheme to cover this type of case.
Had the legislature wished to
provide that UST5 exempt from registration were eligible to access
the Fund,
it could have so stated.
Under these circumstances, the
Board can only find that the Agency correctly determined that the
City is ineligible to access the UST fund.
This
opinion constitutes
the
Board’s
finding
of
fact
and
conclusions of law in this matter.
ORDER
The
Board
hereby
affirms
the
Agency’s
January
27,
1992
determination that corrective action costs associated with a 750
gallon
gasoline
tank
removed
from
Deerpath
Golf
Course
are
ineligible for reimbursement from the UST fund.
IT IS SO ORDERED.
J. Anderson dissented.
Section
41
of the Environmental
Protection Act
(Ill.
Rev.
Stat.
1991,
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—341
6
I, Dorothy M. Gunn, Clerk of Illinois Pollution Control Board,
herebv certify that the above opinion and order was adopted on the
3~
day of
z~—~C
,
1992, by a vote of
~
/
7
7/
~
~ThorothyM. Gu~, Clerk’
Illinois Po1~1&itionControl Board