Fedex Ground Package System, Inc. v. Pollution Control Board

889 N.E.2d 697, 382 Ill. App. 3d 1013, 321 Ill. Dec. 432, 2008 Ill. App. LEXIS 466
CourtAppellate Court of Illinois
DecidedMay 23, 2008
Docket1-07-0236
StatusPublished
Cited by2 cases

This text of 889 N.E.2d 697 (Fedex Ground Package System, Inc. v. Pollution Control Board) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fedex Ground Package System, Inc. v. Pollution Control Board, 889 N.E.2d 697, 382 Ill. App. 3d 1013, 321 Ill. Dec. 432, 2008 Ill. App. LEXIS 466 (Ill. Ct. App. 2008).

Opinion

JUSTICE TULLY

delivered the opinion of the court:

This appeal arises from a petition for direct review of an administrative order under Illinois Supreme Court Rule 335. 155 Ill. 2d R. 335. In November 2002, FedEx Ground Package System, Inc. (FedEx), acquired property previously used as a truck terminal. Subsurface samples prior to and after FedEx’s acquisition of the property indicated concentration of fuel-related contaminants that exceeded Tier 1 soil and groundwater remediation objectives set by the Illinois Environmental Protection Agency (IEPA). FedEx notified the Illinois Emergency Management Agency of leaks from underground storage tanks located at the property. Subsequently, the Illinois State Fire Marshall notified FedEx that it was eligible under the Environmental Protection Act (Act) (415 ILCS 5/1 et seq. (West 2006)) to access the Underground Storage Tank Fund (Fund) and seek reimbursement of the costs of corrective action related to the leaking tanks.

FedEx submitted a corrective action plan and proposed budget of $321,151.37 to the IEPA on June 22, 2005, which were both approved. The budget was later amended by FedEx to be increased to $333,980.67, which was also approved by the IEPA. In March 2006, FedEx conducted final sampling to confirm that the corrective action plan had achieved the IEPA’s remediation objectives. On April 20, 2006, FedEx submitted a “Corrective Action Completion Report” to the IEPA and requested that a “non-restricted ‘No Further Remediation’ letter be issued” for the previously reported leaking storage tanks. The IEPA granted the request on May 10, 2006, under conditions specified in a “No Further Remediation” (NFR) letter. The NFR letter indicated that it was required to be filed with the county recorder or registrar of titles within 45 days of receipt and would not be effective until officially recorded. On May 16, 2006, the IEPA was notified that the NFR letter had been recorded on that same date.

On May 31, 2006, FedEx submitted reimbursement claims with the IEPA. Submitted with those claims was a proposed budget amendment, seeking approval of an additional $72,878.75 in expenditures. The IEPA rejected the proposed amendment to the budget on June 21, 2006, stating:

“The budget is rejected for the reason(s) listed below (Sections 57.7(b) and 57.7(c) of the Act and 35 Ill. Adm. Code 734.505(b), 734.510(a) and 734.510(b)).
The budget was submitted after the issuance of a No Further Remediation Letter. Pursuant to 35 Ill. Adm. Code 734.335(d), any corrective action plan or budget must be submitted to the Illinois EPA for review and approval, rejection, or modification in accordance with the procedures contained in Subpart E of 35 Ill. Adm. Code 734 prior to the issuance of a No Further Remediation Letter.”

FedEx appealed the determination to the Illinois Pollution Control Board (Board). The IEPA filed a motion for summary judgment and FedEx filed a cross-motion for summary judgment. On December 21, 2006, the Board, with one member dissenting, rejected FedEx’s contention that section 734.335(d) of Title 35 of the Illinois Administrative Code (35 Ill. Adm. Code §734.335(d), adopted at 30 Ill. Reg. 5090 (eff. March 1, 2006)) either did not apply or was misinterpreted by the IEPA.

FedEx timely appeals the Board’s determination to this court pursuant to section 41(a) of the Act, which provides that judicial review of any final action shall be made under the provisions of the Administrative Review Law (735 ILCS 5/3 — 101 et seq. (West 2006)) except that the review “shall be afforded directly in the Appellate Court for the District in which the cause of action arose and not in the Circuit Court.” 415 ILCS 5/41(a) (West 2006). Because the relevant facts are undisputed, the issues before this court are administrative rulings on questions of law, which we review de novo. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 532 (2006). However, despite not being bound by an administrative agency’s interpretation of the law, a reviewing court should afford substantial deference to the agency’s determination of a statute that the agency administers and enforces. Township of Harlem v. Environmental Protection Agency, 265 Ill. App. 3d 41, 44 (1994).

FedEx contends that it has a statutory right to recover the costs submitted in its proposed amended budget and that terminating that right based on the receipt of the NFR letter is contrary to the language and purpose of the statute. In the alternative, FedEx argues that section 734.335(d) of Title 35 of the Illinois Administrative Code (35 Ill. Adm. Code §734.335(d), adopted at 30 Ill. Reg. 5090 (eff. March 1, 2006)) was inapplicable in its case.

FedEx argues that because of section 57.8 of the Act, the regulations adopted by the Board contradict the Act and that therefore it has a statutory right to reimbursement for actions taken. Section 57.8 of the Act provides that after successfully making corrective action measures, one may be eligible to access the Fund for reimbursement for related costs. 415 ILCS 5/57.8 (West 2006). However, section 57.14A of the Act requires the Board to adopt amendments to the rules governing the administration of Title 35 to make the rules consistent with the Act’s provisions. 415 ILCS 5/57.14A (West 2006). Section 734.335(d) of Title 35 of the Illinois Administrative Code provides:

“Notwithstanding any requirement under this Part for the submission of a corrective action plan or corrective action budget, *** an owner or operator may proceed to conduct corrective action activities in accordance with this Subpart C prior to the submittal or approval of an otherwise required corrective action plan or budget. However, any such plan and budget must be submitted to the Agency for review and approval, rejection, or modification in accordance with the procedures contained in Subpart E of this Part prior to payment for any related costs or the issuance of a No Further Remediation Letter.” 35 Ill. Adm. Code §734.335(d), adopted at 30 Ill. Reg. 5090 (eff. March 1, 2006).

Although there is a statutory right providing reimbursement for corrective actions taken in relation to leaking underground storage tanks, regulations have been promulgated to govern the administration of the Fund. As this court has noted before, the Fund does not have a broad remedial purpose, presumably due to its limited resources. See Strube v. Pollution Control Board, 242 Ill. App. 3d 822, 826 (1993). Accordingly, the rules and regulations administering it are not to be taken lightly and should not be ignored. After reviewing the rules and regulations with the Act, we do not find that imposing a regulation requiring budgets and plans to be submitted before an NFR letter is granted to be unduly restrictive or contrary to the purpose and language of the Act. The NFR letter signifies that no further steps need to be taken to correct the leaking storage tanks and that the matter is essentially outside the scope of the Act, and therefore the Fund.

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Bluebook (online)
889 N.E.2d 697, 382 Ill. App. 3d 1013, 321 Ill. Dec. 432, 2008 Ill. App. LEXIS 466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fedex-ground-package-system-inc-v-pollution-control-board-illappct-2008.