ILLINOIS POLLUTION CONTROL BOARD
May 6, 2004
HOME OIL COMPANY,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 04-172
(UST Appeal)
ORDER OF THE BOARD (by N.J. Melas):
On March 26, 2004, Home Oil Company (Home Oil) filed a petition asking the Board to
review a determination of the Illinois Environmental Protection Agency (Agency).
See
415
ILCS 5/40(a)(1) (2002); 35 Ill. Adm. Code 105.404. The Agency denied Home Oil’s request for
reimbursement from the Underground Storage Tank Fund regarding an underground storage tank
(UST) site at 2700 W. Main Street, Belleville, St. Clair County. Home Oil appeals on the
grounds that the costs submitted for reimbursement are corrective action costs and are
reasonable. The petition was accompanied by a motion to consolidate this case with two earlier
filed consolidated cases docketed as PCB 02-205 and PCB 02-206. To date, the Agency has not
responded.
As discussed below, the Board cannot accept
The motion to consolidate is therefore denied as moot.
BACKGROUND
Home Oil currently owns land located at 2700 W. Main Street, Belleville, St. Clair
County. At this site, Home Oil previously operated a gasoline service station with USTs. Pet.
and Home Oil obtained a Leaking Underground
Storage Tank (LUST) incident number (910367). Home Oil, through its environmental
consultant, United Science Services, submitted to the Agency a corrective action plan (CAP)
dated November 5, 1996 that included groundwater treatment and soil vapor extraction (SVE)
systems to address the contamination. Pet. 206 at 1. The Agency approved the CAP on
February 21, 1997. Pet. 206, Exh. A.
The Agency received Home Oil’s request to be reimbursed $17,929.09 in corrective
action costs from the Illinois UST Fund for the period of July 1, 2002 to August 31, 2002. Pet.
Exh. A. On January 28, 2004, the Agency issued its final decision that it would reimburse Home
Oil $9,265.11 of the request. The Agency’s letter denied the following costs as unreasonable:
(1) $488.30 in per diem, mileage, and handling charges for lodging; (2) $6,519.41 for the lease
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and installation of a SVE/Vapor Treatment system; and (3) $1,393.55 for the lease of the Mobile
Groundwater System.
In denying certain costs for the lease and installation of the SVA/Vapor Treatment
system, the Agency stated that Home Oil must provide the Agency with additional information
before the costs would be approved. The Agency identified the additional information as
technical specifications on the components of the remediation system and individual costs of the
components, the expected life of the remediation system and what Home Oil will do with the
system and its components at the end of that life, and any additional costs included in the
purchase price of the remediation system.
The Agency’s letter stated: “This is the Agency’s final action with regard to the above
invoices,” and explained that Home Oil could appeal the decision to the Board within 35 days, or
write the Agency to request a 90-day extension of the appeal period.
On March 2, 2004, Home Oil, through environmental consultant CW
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M, sent a letter to
the Agency, attached to which was additional information allegedly responsive to the deductions
made by the Agency. On March 22, 2004, the Agency rejected Home’s response to the
Agency’s denial letter, identifying the response as “miscellaneous correspondence.”
HOME OIL’S PETITION FOR REVIEW
Home Oil petitions the Board to review the Agency’s March 22, 2004 letter on the basis
that it “relates back” to the Agency’s January 28, 2004 letter, in which the Agency limits
reimbursement. Pet. at 2. Home Oil argues that the Agency’s January 28, 2004 letter “requested
additional information and, thus, was not a final decision despite the . . . standard language
regarding it being a final decision.”
Id
. Home Oil contends the Agency denied reimbursement
for rates and procedures that the Agency has approved in the past, and that the rules the Agency
uses to approve or deny rates and procedures have not been adopted by the Board and therefore
violate the Administrative Procedure Act.
Id
. at 2-3.
DISCUSSION
If an applicant wishes to seek review of an Agency decision denying reimbursement from
the UST Fund, the applicant must file an appeal with the Board within 35 days after service of
the Agency’s final decision.
See
35 Ill. Adm. Code 105.404. Alternatively, the Board, at the
request of both the Agency and the applicant, may extend the time period within which the
applicant may appeal by not more than 90 days. However, to get the extension, the parties must
request one within the initial 35-day appeal period.
See
415 ILCS 5/40(a)(1) (2002); 35 Ill.
Adm. Code 105.406.
For the reasons below, the Board finds that the January 28, 2004 letter is the Agency’s
final decision on Home Oil’s reimbursement request for July 1, 2002 through August 31, 2002,
and that Home Oil failed to timely appeal that decision. That Agency letter sets forth the reasons
for denying reimbursement and explains how Home Oil may appeal the decision to the Board or
request an extension of the time period for appealing. Contrary to Home Oil’s assertions, the
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fact that the Agency’s denial letter identifies what the Agency considers to be the missing
information from Home Oil’s request does not make the Agency’s action any less final. The
Agency is required to provide the bases for its decisions.
Upon receipt of the Agency’s January 28, 2004 letter, Home Oil could have filed an
appeal with the Board or request an extension of the appeal period, but did not. Rather, on
March 2, 2004, Home Oil submitted additional information to the Agency that, according to
Home Oil, responded to the reimbursement deductions made by the Agency. The Agency’s
March 22, 2004 letter takes no final action on, and does not address the contents of, Home Oil’s
March 2, 2004 submission, but instead merely states that the January 28, 2004 letter was the
Agency’s final action. Home Oil cites no authority for its proposition that the March 22, 2004
Agency letter somehow relates back to the January 28, 2004 Agency letter. The Board finds that
the 35-day period for Home Oil to appeal the Agency’s January 28, 2004 decision expired on
March 4, 2004. Home Oil’s March 26, 2004 petition is therefore untimely. Accordingly, the
Board cannot accept the petition for hearing.
The Board notes that Home Oil appears to have intended its March 2, 2004 submission to
the Agency as an amendment to the reimbursement application, and thus a new application for
the Agency to consider. The Agency, on the other hand, characterized the submission as
“miscellaneous correspondence” and stated that the passing of the appeal period precluded
further Agency review. This suggests that the Agency did not consider Home Oil’s March 2,
2004 material a new reimbursement application. The appellate court has held that while the
Agency does not the authority to simply reconsider its final decision, it must consider a new
application made in response to a final decision.
See
Reichold Chem. v. PCB, 204 Ill. App. 3d
674, 561 N.E.2d 1333, 1346 (3d Dist. 1990). The Board’s decision today in no way precludes
Home Oil from submitting a new application for reimbursement to the Agency.
CONCLUSION
The Board does not accept for hearing Home Oil’s untimely petition of the Agency’s
January 28, 2004 letter, and accordingly denies Home Oil’s motion to consolidate as moot. The
Board therefore dismisses this case and closes the docket.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2002);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on May 6, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
