ILLINOIS POLLUTION CONTROL BQARD
    December 6,
    199.
    NORTH SUBURBAN DEVELOPMENT
    CORPORATION,
    )
    Petitioner,
    PCB 91—109
    v.
    )
    (UST Reimbursement)
    ILLINOIS ENVIRONNENTAL
    PROTECTION AGENCY,
    Respondent.
    DISSENTING OPINION
    (by 3. Anderson and M. Nardulli):
    We respectfully dissent from today’s action.
    We believe
    that the majority’s conclusion that
    it is bound by a generally
    worded state statute whose meaning can be gleaned by looking only
    at a federally derived regulation is misplaced.
    We do not
    believe the Board was so bound and we would have found for North
    Suburban on the basis that the Agency had contradicted itself
    through its communications with North Suburban and had bound
    itself by its first determination.
    Any reasonable person would
    have relied on the Agency’s first determination and,
    as a result,
    the Agency should not be allowed to contradict it.
    On October 25,
    1990, the Agency told North Suburban that it
    was eligible for reimbursement from the Fund for its reinediation
    costs.
    It also delineated some parameters relating to the issue
    of which costs were reimbursable (such as the deductible amount).
    Nearly seven months after it made its initial determination of
    eligibility and reimbursability
    (and eleven months after North
    Suburban submitted its application for reimbursement), the Agency
    sought to further limit North Suburban’s access to the Fund.
    The
    question that the Board must answer is whether a reasonable
    person would have relied on the Agency’s initial determination
    and whether that initial determination can be further limited in
    scope.
    The Act clearly contemplates that an applicant must satisfy
    certain requirements before he can be eligible for access to the
    Fund.
    Section 22.lBb(a)
    of the Act sets forth those
    requirements.
    In addition, Section 22.lBb(d)
    of the Act sets
    froth certain requirements that must be met before costs can be
    considered reimbursable.
    Many of the requirements in the two
    sections are quite specific.
    For example, Section 22.18b(a) (4)
    requires an owner to register the tanks with the Office of State
    Fire Marshal in accordance with the requirements delineated in
    Sections
    4 and 5 of the Gasoline Storage Act,
    Ill. Rev.
    Stat.
    128—55

    2
    1989,
    ch.
    127½,
    pars.
    156 and 157, and Section 22.18b(d) (3)
    sets
    forth in detail how the applicable deductible
    is to be
    determined.
    Unlike the above provisions, however, the “ESDA”
    notification requirement of Section 22.18b(d)(4)(D)
    applicable to
    this case was general in nature.
    Section 22.18b(d)
    (4)
    (D)
    states,
    in pertinent part, as follows:
    Requests for partial or final payment for
    claims under this Section shall be sent to
    the Agency and shall satisfy all of the
    following:
    ***
    D.
    The owner or operator notified the State
    of the release of petroleum
    in
    accordance with applicable requirements.
    (Emphasis added).
    It is clear from the language of Section 22.18b(d) (4) (D)
    itself that an applicant must give notification of a release in
    accordance with applicable requirements in order to receive its
    reimbursement.
    In fact,
    in Pulitzer Community Newspapers,
    Inc.
    v.
    IEPA, PCB 90-142,
    (December 20,
    1990), the Board itself
    recognized that Section 22.18b(d) (4) (D) was one of the
    requirements that had to be met before an applicant could receive
    a reimbursement.’
    (Id.
    p.
    6).
    Section 22.l8b(d) (4) CD),
    however, does not provide any
    specific information regarding who needs to be notified and when
    notification must be given.
    Moreover, although the section
    refers to “applicable requirements” and is capable of
    interpretation,
    no citation is made to any specific requirements
    (unlike the tank registration requirement of Section
    22.l8b(a)(4)).
    Recognizing this lack of specificity, the Board
    itself has recognized the linkage between Section 22.18b(d) (4)
    and the 24 hour ESDA notification requirement set forth 35
    Ill.
    Adm. Code 731.150(a),
    a regulation that was derived from RCRA’s
    financial assurance requirements via the Board’s identical-in—
    substance rulemaking in R88—27, and that was effective on June
    12,
    1989.
    Pulitzer at
    4.
    In addition, the legislature ha~
    amended Section 22.18b to specifically exclude remediation costs
    ‘It
    is
    important to note that the Board
    in Pulitzer never
    reached the general issue as to
    1
    whether pre—ESDA notification
    costs are reimbursable.
    128—56

    3
    incurred prior to ESDA notification.2 (HB-l741) Specifically, the
    legislature added the following language to the section:
    Costs of corrective action or
    indemnification incurred before providing
    that notification shall not be eligible for
    payment.
    (See Rockford Drop Forge Co. v IEPA,
    No. 2-91-0342 slip op. at
    12
    (2d Dist 1991)
    citing State of Illinois
    v. Mikusch,
    138 Ill.
    2d
    242,
    252
    (1990)).
    It is evident from the record
    (i.e., North Suburban’s
    application for reimbursement)
    that the Agency had all of the
    facts regarding North Suburban’s ESDA notification at the outset
    of its review process.
    The Agency expressly determined that
    North Suburban was eligible for access to the Fund,
    as well as
    the various limitations on its eligibility and the
    reimbursability of costs, and communicated this information to
    North Suburban on October 25,
    1990.
    In fact, the Agency’s
    account technician, who discovered the ESDA notification issue,
    testified at hearing as follows:
    Q.
    Now, just turning back to what your
    present position is, you said
    is an
    account technician,
    what generally
    are the duties of an account
    technician?
    A.
    In this particular case I reviewed
    billings and invoices
    in regards to
    leaking underground storage tank
    claims for reimbursement.
    Q.
    Okay. And is that the sole
    responsibility that you have?
    A.
    Yes.
    ***
    Q.
    Okay.
    How did you become aware of
    the application filed.by North
    Suburban Development Corporation?
    A.
    It came across my desk after the
    2Subsequent
    to the
    hearing
    in
    this
    case,
    the
    Agency
    also
    amended its Fall
    199.
    LUST guidance manual to reflect the fact that
    pre-ESDA notification
    costs
    are not reimbursable.
    (Tr.
    32-33;
    Reply Br.
    Ex.
    B
    -
    p.
    21).
    128—57

    4
    deductible amount and eligibility
    was determined.
    (Tr.
    pp.
    22-23
    -
    Emphasis
    added).
    For the account technician, whose duty it was to review
    billings and invoices, to determine, for the first time that
    another entire class of costs
    (i.e.
    pre—ESDA notification costs)
    was unacceptable because it contradicts the formal determination
    that the’ Agency previously made and communicated to North
    Suburban.
    In other words, the Agency cannot “limit” and,
    in
    effect void or repudiate,
    its reimbursement determination at the
    tail end of its review process once it has already communicated
    some of the parameters of that determination to an applicant.
    As for the Agency’s assertion that it has “uniformly
    interpreted the Act and the regulations to require notification
    of ESDA within 24 hours of the discovery of a release”
    (ic~.p
    6),
    I note that the above statement conflicts with the Agency’s
    assertion that “it would be unreasonable to require the Agency to
    inform an applicant that specific cOsts were not reimbursable
    prior to its complete review of all the information submitted by
    an applicant.”
    (~.
    pp.
    6,
    7—8).
    Moreover,
    if the Agency has
    always considered pre—ESDA notification cOsts non—reimbursable,
    there is no reason why the Agency could not have promulgated its
    own regulations on the subject or enunciated its position in its
    guidance documents in order to place applicants on notice of its
    position at the outset of its reimbursement determination
    process.
    In fact,
    Section 22.18b(f)
    of the Act explicitly
    authorizes the Agency to “adopt reasonable and necessary rules
    for the administration of the
    Fund).”
    Moreover, Section 3.09 of
    the Administrative Procedure Act,
    Ill. Rev.
    Stat.
    1989,
    ch.
    127,
    par. 1003.09, defines a “rule” as follows:
    “Rule” means each agency statement of general
    applicability that implements, applies,
    interprets, or prescribes law or policy,
    but
    does not include
    (a) statements concerning
    only the internal management of an agency and
    not affecting private rights or procedures
    available to persons or entities outside the
    agency,
    (b)
    informal advisory rulings...
    (c)
    intra—agency memoranda or
    (d) the
    prescription of standardized forms.
    Notwithstanding the above,
    the Agency,
    at the very least,
    should have notified North Suburban at the outset of the review
    process of its determination regarding pre-ESDA notification
    costs.
    It did not, however.
    Specifically, the Agency,
    in its
    October 25,
    1990 letter to North Suburban, approved North
    Suburban’s application for reimbursement with only three caveats,
    128—58

    5
    a $15,000 deductible, the non-reimbursability of costs incurred
    prior to July 28,
    1989,
    and the $500 deduction for North
    Suburban’s late tank registration.
    I do not see any distinction
    between these three caveats and the caveat regarding ESDA
    notification.
    In other words, once the Agency informs the
    applicant
    o1
    some of the limits on its eligibility and on the
    amount of the costs that can be reimbursed
    (such as the
    deductible amount),
    it must inform the applicant of all of the
    limits on eligibility and reimbursability.
    The failure of the
    Agency to include this fourth caveat during its determination is
    unfair tb say the least.
    We also wish to emphasize that we are disturbed by the fact
    that the Agency never informed North Suburban of its stance on
    the pre-ESDA notification issue during its eleven month review
    process although it had all of the pertinent information
    necessary to decide this issue at the outset of the process and
    although it had numerous contacts with North Suburban (in person
    and via the telephone)
    throughout the process.
    (Pet.
    pp. 5-6
    Ex.
    K; Stip of Facts pars.
    56,
    58,
    Ex. K
    -
    pars.
    10,
    12; Joint
    Ex.
    2 pars.
    56,
    58,
    Ex.
    K
    pars.
    10,
    12).
    Moreover, the Agency
    cannot expect North Suburban to have ra,ised its concerns
    regarding the issue when the Agency itself did not document its
    position in either its October 25,
    1990 letter or its 1989 or
    1990 guidance documents
    (Tr.
    pp.
    40—41; Stip of Facts Exs. L
    -
    pp.
    10. 4—10.5, M
    -
    pp.
    14-3-14-4)
    and when the Agency’s and
    Board’s position regarding the interrelationship of Section
    22.18b(d)(4)(D)
    and 35 Ill.
    Adm. Code 731.150 had not been
    publicized
    (see Pulitzer, PCB 90—142
    (December 20,
    1990)).
    Accordingly,
    for the foregoing reasons, we believe that the
    Board should have reversed the Agency’s determination regarding
    the non—reimbursability of costs incurred prior to North
    Suburban’s notification of ESDA.
    ~
    ~
    ~
    ~oan
    G. Anders
    I, Dorothy N. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certify that,~theabove Dissenting Opinion was filed
    on the
    c5j/4-’fr
    day of
    /1&~UI1LL~
    Illinois P~llutionControl Board
    1/
    128—59

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