ILLINOIS POLLUTION CONTROL BOARD
February 28,
1991
PULITZER COMMUNITY
NEWSPAPERS,
INC.,
)
Petitioner,
V.
)
PCB 90—142
(Underground Storage
Tank Reimbursement)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by M. Nardulli):
This
matter
comes
before
the
Board
on
a
motion
for
reconsideration
filed
January
18,
1991
by
the
Illinois
Environmental Protection Agency
(Agency).
On January
23,
1991,
Pulitzer Community Newspapers,
Inc.
(Pulitzer) filed its response.
By its motion, the Agency asks that the Board reconsider its
December
20,
1990
opinion
and
order
reversing
the
Agency’s
determination that Pulitzer is not eligible for reimbursement from
the Underground Storage Tank Fund (Fund).
Because this case is one
of first impression,
the Board will address the arguments raised
by the Agency’s motion.
In denying Pulitzer’s request for reimbursement,
the Agency
stated that Pulitzer’s corrective action costs were incurred prior
to notification to the Emergency Services and Disaster Association
(ESDA), that owners and operators of USTs shall report
“to ESDA
within
24
hours
...
the
discovery
of
...
released
regulated
substances
...
.
(35
Ill.
Adm.
Code
731.150(a))” and that the
statute requires that the owner or operator notify the State of the
release in accordance with applicable requirements (Ill. Rev. Stat.
1989,
ch.
111 1/2, par. 1022.18b(d)(4)(D).
Based upon Pulitzer’s
failure to properly notify ESDA of the discovery of the release,
the Agency denied reimbursement.
The Board concluded that, because neither the Board regulation
requiring notice to ESDA within 24 hours
of the discovery of the
release nor
Section
22.lBb(d)(4)(D)
of
the
Act
requiring that
notice be given in accordance with applicable requirements were in
effect at the time of the instant release, Pulitzer cannot be held
to comply with these notice provisions and the Agency cannot deem
Pulitzer ineligible on this basis.
The Agency argues that the Board applied P.A. 86-125 effective
July 28, 1989, which created the “notice to the State in accordance
119—31
2
with applicable requirements” provision, inconsistently.
According
to the Agency,
if the Board concludes that there was no notice
provision applicable to
Pulitzer pursuant
to
P.A.
86—125,
then
there was also no right to reimbursement.
The Agency states that
“if
the Board focuses on the date when EPulitzer
became aware
of the release
(i.e.,
May
24,
1989)
for establishing applicable
criteria for judging reixnbursability of the claim, then the claim
should be judged by Section 22.18 of the Act as it existed on May
24,
1989.”
According to the Agency, Section 22.18 of the Act,
as
it existed on May
24,
1989,
did not provide
for owner/operator
reimbursement from the Fund.
The Agency incorrectly states that the Board focused on the
date
of
discovery
of
the
“release
(i.e.,
May
24,
1989)
for
establishing
applicable
criteria
for
reimbursement.”
The
applicable
criteria
for
determining
Pulitzer’s
eligibility
for
reimbursement
are
those
criteria
set
forth
at
Section
22.18b(d)(4)(D),
which
became effective July
28,
1989 with
the
enactment of P.A.
86—125, because these provisions were in effect
at the time Pulitzer filed its application
for reimbursement on
November 21,
1989.
P.A. 86-125 requires that an applicant satisfy
certain criteria to be eligible for reimbursement.
One of those
criteria
is that “t)he
owner
or operator notified the State
of
the
release
of
petroleum
in
accordance
with
applicable
requirements.”
The Board focused on the date of discovery of the
release
for
purposes
of
determining
what
notification
duties
applied to Pulitzer.
This approach is logical given that discovery
of the release triggers the duty to notify.
The Board concluded
that it would have been impossible for Pulitzer to give notice to
ESDA within 24 hours of discovery of the release in accordance with
the statute and regulation given
that those
provisions
did not
become
effective
until
approximately
three
months
after
the
release.
However, at the time Pulitzer filed its application, the
statute clearly provided for reimbursement.
The Agency’s second contention is that the Board misconstrued
Section 22.l8b(d) (4) (D)
of the Act which provides that the owner
or operator of
a UST shall
notify the State of the release
“in
accordance with applicable
requirements.”
In particular,
the
Agency points to the Board’s statement that “in the absence of a
statutory
provision
requiring
that
proper
notification
is
a
prerequisite to the right to reimbursement, the Agency may not deny
reimbursement on the basis
of OSFN and ESDA regulations.”
The
Agency argues that this statement
is tantamount
to saying that
notification must be in accordance with Board regulations.
The Agency’s contention is directed to the Board’s conclusion
that
the
Agency
cannot
rely
upon
ESDA
and
OSFN
notification
regulations
as
a
basis
for
denial
of
Pulitzer’s
claim
for
reimbursement.
The Agency’s assertion ignores the context in which
the Board reached this conclusion.
First, the Board concluded that
the
Agency
could
not
use
the
ESDA
and
OSFM
“notification
119—32
3
regulations” as a basis for denial because these regulations were
not cited as reasons for denial in the Agency’s denial letter.
The
Agency does not challenge this determination.
The Board went on
to state
that,
in any event,
Section 22.18b(d) (4) (D)
of the Act
requiring
that
notice
be
given
in
accordance
with
applicable
requirements was not
in effect at
the
time
of the release and,
therefore, the ESDA and OSFM regulations were not tied to the right
to reimbursement.
This does not mean that the Board has equated
“applicable
requirements”
with
“Board
regulations”;
the
Board
recognizes that the OSFM and ESDA may adopt regulations governing
notice
requirements
and that such regulations had
in
fact been
adopted by these agencies.
However,
in the instant case because
of the time frames involved, no provision of the Act was in effect
bringing those notice provisions within the purview of the Act’s
reimbursement provisions.
Therefore, the Board concluded that,
in
addition
to
not
being
proper
bases
for
denial
because
no
notification of these regulations was given in the denial letter,
these regulations were not a proper basis for denial.
The Board believes the above discussion addresses the Agency’s
contentions regarding reconsideration.
However,
the Board will
address several statements made by the Agency in its motion which
the
Board
finds
particularly
troublesome.
In
support
of
its
contention that the Board misconstrued Section 22.l8b(d) (4) (D)
of
the Act by limiting the notice requirements to Board regulations,
the Agency states that:
Section
22.l8b(d)(4)(D)
requires
notification
of
the
State
in accordance
with
applicable
requirements
and
these requirements are the OSFN and ESDA regulations and
not the Board’s regulations.
By agreement between the
Agency and OSFM,
the Agency enforces only 35 Ill.
Adm.
Code Subpart
F, Sections 731.160 through 731.167, which
does not
include the Board’s notification
requirement
found
in 35 Ill.
Adin. Code 731.150.
The Board finds this statement to be inconsistent with the Agency’s
denial
letter.
The Agency is
saying it does not enforce 35 Ill.
Adm.
Code 731.150
of the Board’s
regulations.
Yet,
this
is the
only regulation cited by the Agency as
a basis for denial in its
letter denying Pulitzer’s claim for reimbursement.1
The Agency also states that by virtue
of
a
“Memorandum
of
Understanding”
(Resp.
Ex.
14)
between
the
OSFM,
ESDA
and
the
Agency, the Agency only enforces certain Board regulations relating
The
Board
notes
that
its
December
20,
1990
opinion
incorrectly states that the Agency testified that it has
no authority to enforce OSFN regulations.
(PCB 90-142
at 8.)
The Agency testified that it does not enforce the
Board’s notice regulation.
(Tr. 147—50.)
119—33
4
to USTs
and does not
enforce the Board’s
regulation
requiring
notice
to
ESDA
(35
Ill.
Adm.
Code
731.150).
However,
this
“Memorandum
of Understanding”
does not provide that
the Agency
shall not enforce 35 Ill. Adm. Code 731.150, nor does it make any
reference
to
any
regulation.
(Resp.
Ex.
14.)
The memorandum
provides
that
ESDA
is
the
primary
agency
responsible
for
coordination of response
to environmental
emergencies
involving
“fire/explosion hazards” because the primary concern of agencies
such
as
ESDA
is
to
“protect
life
and
property with
secondary
concern to the protection of the natural environment.”
(Resp.
Ex.
14 at 1.)
“as a result the EO)SFM shall be considered the State’s
Assisting Agency for preventing or mitigating a fire/explosion type
incident.”
(u.)
The Agency also become an “Assisting Agency”
when there
is
a
threat
to life and
property
if
“an
actual
or
potential
release
of
toxic
fumes
or
runoff
...
threatens
the
general public”,
“if
the air, water or lands of the state could
be
seriously
harmed”
or
“ijf
a
public
water
supply,
sewage
treatment system or waste disposal
site
...
could be adversely
affected.”
(~.
at 1—2.)
While it may be true that ESDA is the agency to notify of a
release or threatened release from a UST, that does not mean that
the
Board
is
deprived
of
its
statutory
authority
to
adopt
regulations requiring that notice be given
to ESDA, nor does
it
mean that
the Agency
may
delegate
its
statutory
authority
to
implement the Act and Board regulations.
The Board has previously
stated that simply because an agency has implementing authority
does not mean that agency has exclusive rulemaking authority.
(~j
the Matter
of:
UST State
Fund,
R89-19
at
5
(April
26,
1990).)
While
we
do
not
read
the
“Memorandum
of
Understanding”
as
delegating the Agency’s authority to enforce any Board regulation,
it
is clear that such a delegation would be improper given that
administrative agencies possess only that authority conferred upon
them by
statute.
(Village
of
Lombard
v.
PCB,
363
N.E.2d
814
(1977).)
Moreover, we fail to see how the Agency can say that it
does not enforce the Board’s regulation requiring notice to ESDA
given that the Agency has the duty to enforce the provisions of the
Act and Board regulations.
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2,
par.
1004.)
The
Agency’s
interpretation
that
Section
22.18b(d)(4)(D)
refers to the “OSFM and ESDA regulations and not
the Board’s regulations” and that the Agency does not enforce the
Board’s notice regulations leads to the absurd result that there
is no enforcement of the Board’s regulation by the agency with the
statutory directive to carry out such enforcement.
For
the
foregoing
reasons,
the
Board
has
considered
the
Agency’s motion for reconsideration and hereby denies the relief
requested.
IT IS SO ORDERED.
Section
41
of
the
Environmental
Protection Act
(Ill.
Rev.
119—34
5
Stat.
1989,
ch 111 1/2,
par.
1041)
provides
for appeal of
final
Board Orders within
35 days.
The rules
of the Supreme Court
of
Illinois establish filing requirements.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Cont o
Board, her
y certify that the above Order was a~doptedon the
_____
day of,
~
,
l99lbyavoteof
4~C
~7d~
17,.
Dorothy M.ñunn, Clerk
Illinois ~ftllutionControl Board
119—35