ILLINOIS POLLUTION CONTROL BOARD
Nay 21, 1992
PARKVIEW PLAZA ASSOCIATES, INC.,
)
Petitioner,
PCB 92—73
V.
)
(Underground Storage
)
Tank Reimbursement)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD (by J. Anderson):
This matter is before the Board on its own motion. On Nay
12, 1992, Petitioner, Parkview Plaza Associates, Inc., filed a
petition for review, pursuant to Sections 22.18b(g) and 40 of the
Environmental Protection Act (Ill. Rev. Stat. 1991, ch. 111 1/2,
par. 1022.18b(g) and 1040), of the Illinois Environmental
Protection Agency’s (Agency) determination that Petitioner’s
request for reimbursement from the Underground Storage Tank Fund
(Fund) is subject to a $100,000 deductible. This case is hereby
remanded to the Agency and the docket closed pursuant to the
Board’s decision in Ideal Heating Company v. IEPA, PCB 91—253,
January 23, 1992 (Ideal).
Section 22.18b(a) of the Act sets forth certain requirements
that must be met in order to be eligible to access the Fund.
(Ill. Rev. Stat. 1989, ch. 111 1/2, par. 1022—18b(a).) Section
22.l8b(d) sets forth the applicable deductibles that apply to
requests for reimbursement. (Ill. Rev. Stat. 1989, ch. 111 1/2,
par. 1022.18b(d)) Requests for partial or final payment for
claims under the UST provisions are directed to the Agency and
must satisfy enumerated requirements, including a demonstration
that the corrective actions costs incurred are reasonable.- (Ill.
Rev. Stat. 1989, ch. 111 1/2, par. 1022.l8b(d)(4).) In carrying
out its duties under the Act, the Agency has consistently
followed a twostep review process: (1) a review of the
application to determine whether the applicant is eligible to
access the Fund and what the appropriate deductible is; and (2) a
review of the reimbursable costs pursuant to Section
22. 18b(d) (4). (North Suburban Development Corp. v. IEPA, PCB 91—
109 at 6 (December 19, 1991).)
The Act provides for Board review of the Agency’s
reimbursement determinations. “If the Agency refuses to
reimburse or authorizes only a partial reimbursement, the
affected owner or operator may petition the Board for a hearing
in the manner provided for the review of permit decisions in
Section 40 of this Act.” (Ill. Rev. Stat. 1989, ch. 111 1/2, par.
133— 551
2
1022.18b(g) (emphasis added).) The Board interprets this
language as providing for Board review of Agency UST
determinations only after the Agency has completed its two-step
review process and made a final determination as to the
reimbur.sibility of costs. Of course, where the Agency has
denied eligibility, it has in essence also determined that the
applicant is not entitled to any reimbursement such that the
Agency’s decision would be ripe for Board review.
The Board held in Ideal that review of Agency deductibility
determinations prior to a complete determination on the
reimbursibility of costs is both inconsistent with Section
22.l8b(g) of the Act quoted above and principles of
administrative economy, such as the desire to avoid piecemeal
appeals. The Board’s prior practice of allowing appeals upon a
deductible determination may foster multiple appeals to the
Board. For example, petitioner may prevail before the Board on
the issue of what deductible applies only to have to again seek
Board review if the petitioner disagrees with the Agency’s
determination on what costs are reimbursable. Under a “worst
case scenario”, a petitioner found to be ineligible to access the
Fund appeals that decision to the Board, the Board reverses the
Agency and finds petitioner eligible and remands. on remand, the
Agency applies a deductible amount which petitioner appeals to
the Board. Regardless of the Board’s determination on the
correctness of the Agency’s deductible determination, the case -is
remanded to the Agency for a finding on the reasonableness of
costs. The Agency then determines the reasonableness of costs
and petitioner again appeals to the Board. This “worst case
scenario” results in three separate appeals to the Board. By
holding in Ideal that, where the Agency finds that an applicant
is eligible to access the Fund, the Agency’s decision is not ripe
for appeal to the Board until it has also reached its final
determination on both deductibility and reasonableness of costs,
multiple appeals can be avoided. Of course, where the Agency
denies eligibility, an applicant may appeal to the Board. If the
Board reverses the Agency’s eligibility determination, the
applicant may again seek Board review of the Agency’s deductible
and reasonableness of costs determination. Under the holding in
Ideal, the “worst case scenario” would result in two separate
appeals rather than three.
In determining how to implement the holding in Ideal the
Board held that those cases, such as the instant case, where the
petition for review has been filed but no hearing has been held
the Board adopted the following procedure: the case is remanded
to the Agency to complete its review of the reasonableness of
costs and this docket is closed. Petitioner may file a new
I
33—552
3
petition for review upon the Agency’s final UST determination.’
To avoid prejudice, the Board will waive the $75 filing fee as it
was paid with the original filing. The Board asks that
petitioner reference the original docket number of the case when
filing the new petition for review.
In summary, the Board holds that Agency UST decisions are
appealable to the Board only where: (1) the Agency has denied
eligibility or; (2) the Agency has found the applicant eligible
and has reached a final determination on both the proper
deductible and the reasonableness of costs. This case is
remanded to the Agency for a final determination on the
reasonableness of costs pursuant to Section 22.18b(d)(4).
Petitioner may file a new petition for review in accordance with
this order.
IT IS SO ORDERED.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certifies that the above order was adopted on the
~/-~
day of
-
,
1992 by a vote of
70
The Board notes that today’s holding does not result in the
waiver of any challenges to the Agency’s deductible determination
upon the proper filing of a new petition for review.
Ii
erk
Control Board
133—55:3