ILLINOIS POLLUTION CONTROL BOARD

January 23,

1992

IDEAL HEATING COMPANY,

)

an Illinois Corporation,

)

V.

)

PCB 91—253

)

(Underground. Storage

ILLINOIS ENVIRONMENTAL

)

Tank Reimbursement)

PROTECTION AGENCY,

)

)

Respondent.

ORDER OF THE BOARD

(by M. Nardulli):

This

matter

is

before

the Board

on

its

own

motion.

On

December 20,

1991, petitioner Ideal Heating Company

(Ideal)

filed

a petition for review, pursuant to Sections 22.lBb(g) and 4.0 of the

Environmental Protection Act

(Ill. Rev.

Stat.

1989,

ch.

111 1/2,

par.

1022.18b(g)

and

1040),

of

the

Illinois

Environmental

Protection Agency’s (Agency) determination that Ideal’s request for

reimbursement

from the Underground

Storage Tank

Fund

(Fund)

is

subject to a $100,000 deductible.

For the following reasons,

the

Board concludes that the Agency’s determination on eligibility and

deductibility alone, without a determination on the reimbursibility

of costs,

is not an appealable order.

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 22.18b(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.

1022.18b(d)(4).)

In

carrying

out

its

duties under the Act, the Agency has consistently followed a two-

step 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.lBb(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.

l022.18b(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

129—329

---

2

determination as to the reimbursibility 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.

Board review of Agency deductibility determinations prior to

a complete determination on the reimbursibility of costs is both

inconsistent with Section 22.18b(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 today 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 today’s holding,

the “worst case scenario”

would result

in two separate appeals rather than three.

In determining how to implement the Board’s holding that only

complete determinations by the Agency are~appealable,

the Board

finds that today’s holding should apply to all UST cases which have

not yet proceeded to hearing.

In those cases, such as the instant

case, where the petition for review has been filed but no hearing

has been held the Board adopts the following procedure~ tile 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

petition

for

review

upon

the

Agency’s

final

UST

determination.1

To avoid unfair prejudice,

the Board will waive

1

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.

129—330

---

3

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.

The

Board

suggests

the

following

‘Agency

procedure

in

an

attempt to alleviate any possible confusion resulting from today’s

holding.

In

those

cases

where

the

Agency

has

reached

a

determination

finding the

applicant eligible

and assessing

the

appropriate deductible, the Agency should not include the “35-day

appeal language”.

Instead, the Agency should notify the applicant

that the’ deductible determination is not appealable to the Board

until

a

review

of

the

reimbursibility

of

costs

has

also

been

completed.

Regarding denial

of

eligibility determinations and

complete

determinations

on

reimbursibility,

the

Agency

should

continue to include the “35-day appeal language”.

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.l8b(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 cert,~iesthat the above Order was adopted on the

______

of

_________________,

1992 by a vote of

~S- ~

I

Control Board

129—33 1