ILLINOIS POLLUTION CONTROL BOARD
October 18, 2007
JOE’S MIDTOWN AUTO REPAIR,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 07-143
(UST Appeal)
ORDER OF THE BOARD (by G.T. Girard):
On September 20, 2007, the Board accepted a petition for review from Joe’s Midtown
Auto Repair (petitioner) concerning a decision by the Illinois Environmental Protection Agency
(IEPA) to apply a second deductible to the reimbursement request of petitioner. The site is a
leaking underground petroleum storage tank facility located at One South Main Street, Princeton,
Bureau County. On September 17, 2007, the IEPA filed a motion to dismiss the petition for
review (Mot.). On September 25, 2007, petitioner filed a response (Resp.). As discussed below,
the Board denies the motion to dismiss and directs the parties to proceed with this case. The
Board will summarize the arguments of the parties, and then clarify the Board’s reasoning.
ARGUMENTS
The IEPA states that petitioner notified the Illinois Emergency Management Agency
(IEMA) of a release for a 100-gallon heating oil tank and a 500-gallon waste oil tank on May 27,
1997. Mot. at 1. IEMA assigned incident number 970927 to this release. On August 1, 1998,
another release was reported by petitioner to IEMA for a 6000-gallon gasoline tank.
Id
. IEMA
assigned incident number 982038 to this release.
Id
. On August 5, 2002, the Office of the State
Fire Marshal (OSFM) issued two reimbursement and deductibility determinations for petitioner’s
site.
Id
.
IEPA states that OSFM determined that for incident number 970927, a deductible of
$10,000 applied and for incident number 982038, a deductible of $10,000 applied. Mot. at 2.
IEPA argues that any challenge to the deductible amount must have been filed by petitioner
within 35 days of the date of the OSFM decision. Mot. at 2, citing Maple Quick Mart and Ranjit
Singh v. IEPA, PCB 07-21 (Nov. 6, 2006). IEPA asserts that the deductible amount determined
by OSFM was merely applied by the IEPA in making the reimbursement decision. Mot. at 2.
IEPA argues there is no relief the Board can grant petitioner and the Board should dismiss the
petition. Mot. at 2-3.
In response, petitioner maintains that procedurally a motion to dismiss is not appropriate
for the grounds raised by the IEPA. Resp. at 2. Petitioner points out that the Board’s procedural
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rules enumerate situations in which a petition maybe dismissed and none of the specific
situations apply here. Resp. at 2, citing 35 Ill. Adm. Code 105.108. Petitioner concedes that
Section 105.108(e) provides that dismissal maybe appropriate if other grounds exist that “bar
petitioner from proceeding” with the petition.
Id
. However, petitioner argues that the other
grounds must be like in nature and involve a defect to the petition. Resp. at 3. Petitioner asserts
that because the motion to dismiss is supported by portions of the IEPA record that has not yet
been filed, such an evidentiary motion is not proper grounds for dismissal.
Id
.
Petitioner further argues that even if the motion is procedurally proper, the Board should
deny the motion. Resp. at 3. Petitioner maintains that petitioner is appealing the IEPA’s
determination of the amount to be reimbursed and the IEPA wrongfully applied a second
deductible.
Id
. Petitioner asserts that properly applying the deductible is the responsibility of the
IEPA not OSFM.
Id
.
Petitioner notes that the IEPA did not specifically address the issue of two deductibles but
did file documents indicating that two deductibles were applied to the same site. Resp. at 3.
Petitioner argues that the Board has previously interpreted the Environmental Protection Act
(415 ILCS 5/1
et. seq.
(2006)) as assessing deductibles per site not per incident.
Id
., citing Swif-
T-Food Mart v. IEPA, PCB 03-185 (May 20, 2004). Petitioner argues that in Swif-T-Food Mart
the Board rejected the same arguments made by IEPA in the motion to dismiss.
Id
. Petitioner
argues that the motion to dismiss is directly contrary to Swif-T-Food Mart and should be denied.
Id
.
DISCUSSION
The Board’s standard for deciding motions to dismiss has been well-established in case
law.
See, e.g.,
People v. Stein Steel Mills Services, Inc., PCB 02-1 (Nov. 15, 2001); Shelton v.
Crown, PCB 96-53 (May 2, 1996); Krautsak v. Patel, PCB 95-143 (June 15, 1995); Miehle v.
Chicago Bridge and Iron Co., PCB 93-150 (Nov. 4, 1993). The Board takes all well-pleaded
allegations as true in determining a motion to dismiss. Import Sales Inc. v. Continental Bearings
Corp., 217 Ill. App. 3d 893, 577 N.E.2d 1205 (1st Dist. 1991); s
ee also
Stein Steel, PCB 02-1;
Shelton, PCB 96-53; Krautsack, PCB 95-143; Miehle, PCB 93-150. In addition, dismissal of a
complaint is proper only if it is clear that no set of facts could be proven that would entitle
complainant to relief.
See
Stein Steel, PCB 02-1; Shelton, PCB 96-53; Krautsack, PCB 95-143;
Miehle, PCB 93-150.
In addition, the Board’s procedural rules set forth four specific grounds for dismissing a
petition and one general. 35 Ill. Adm. Code 105.108. The petition may be dismissed if it fails to
contain information required by the Board’s rules or the petitioner fails to comply with a Board
or hearing officer order. 35 Ill. Adm. Code 105.105(a) and (c). The petition may also be
dismissed if the petition is untimely or petitioner does not have standing. 35 Ill. Adm. Code
105.105(b) and (d). Finally, a petition may be dismissed for if other grounds exist which bar the
petitioner from proceeding. 35 Ill. Adm. Code 105.105(c).
The IEPA seeks dismissal of the petition on the grounds that the Board cannot provide
the relief sought by petitioner. The Board has reviewed the arguments and disagrees with the
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IEPA’s arguments. The Board finds that there are facts and legal arguments that could entitle
petitioner to the relief sought. Further, based on prior Board precedent, the Board may be able to
grant the relief sought. Specifically, the petitioner has raised the similarities between the facts of
this case, as now before the Board, and Swif-T-Food Mart
. Therefore, the Board denies the
motion to dismiss and directs the parties to proceed with the case.
IT IS SO ORDERED.
I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the Board adopted the above order on October 18, 2007, by a vote of 4-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
