17
Board Order
FedEx Ground Package System, Inc. (FedEx), in a
petition fi led August 21, 2006, sought the Board’s
review of a July 17, 2006 IEPA determination reject-ing
an amended remediation budget for FedEx’s
underground storage tank site in Bedford Park, Cook
County. On April 3, 2003, FedEx reported a leak
from an underground storage tank at its site. FedEx
took corrective action at the site, and received reim-bursement
from the UST Fund. On April 21, 2006,
the IEPA received from FedEx a Corrective Action
Completion Report (CACR), an engineer’s certifi ca-tion,
and a request for an NFR letter. Under Section
57.10(c)(1) of the Act, the NFR letter’s issuance sig-nifi
es that all statutory and regulatory requirements
for remediation, and the planning and budgeting
submissions therefore, have been met and that such
activities are complete. On May 10, 2006, the IEPA
acknowledged receiving FedEx’s CACR and granted
FedEx’s request for an NFR letter. On May 17, 2006,
FedEx recorded the NFR letter with the Cook County
Recorder of Deeds.
On May 30, 2006, FedEx submitted a proposed
budget amendment and claim for reimbursement to
the IEPA.
In a letter dated July 17, 2006, the IEPA rejected
FedEx’s proposed amended budget. As its basis for
doing so, the IEPA again stated that the budget was
submitted after the issuance of a NFR letter and any
corrective action plan or budget must be submitted to
the IEPA for review and approval, rejection, or modifi -
cation prior to the issuance of a NFR letter.
The Board affi rmed the IEPA amended budget
disapproval, ruling on cross motions for summary
judgment. The Board found that the Board’s rules
at issue apply not only to those who proceed with no
approved plan or budget at all, but also to those who
go beyond the scope of an approved plan or who
incur costs that go beyond the approved corrective
action budget, necessitating an amendment. In this
case, FedEx proceeded by incurring costs beyond
amounts contained in its approved budget without
fi rst receiving IEPA approval of an amended budget.
The Board held that for the IEPA to review a pro-posed
budget amendment, the amendment must be
submitted before the IEPA issues the NFR letter.
Court Decision
The court reviewed de novo the Board’s rulings on
questions of law, but added that “a reviewing court
should afford substantial deference to the agency’s
determination of a statute which the agency adminis-ters
and enforces.” FedEx, 889 N.E.2d at 699. The
court noted that the Act required the Board to adopt
rules governing the administration of the Fund, which
Fund “does not have a broad remedial purpose,
presumably due to its limited resources.” Id., Accord-ingly,
the court continued, “the rules and regulations
administering it are not to be taken lightly and should
not be ignored.” FedEx, 889 N.E.2d at 700.
The court then found the Board’s rules reasonable
and not in confl ict with the Act, stating:
We do not fi nd that imposing a regulation requiring
budgets and plans to be submitted before an NFR
letter is granted to be unduly restrictive or con-trary
to the purpose and language of the Act. The
NFR letter signifi es 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. Without such a
regulation, budgets and plans for corrective ac-tions
taken in excess of the requirements set forth
by the act could be submitted indefi nitely for what-ever
costs incurred, possibly even for measures
that may have been taken unnecessarily. Ac-cordingly,
although there exists a statutory right to
reimbursement from the Fund, we do not fi nd that
this right is unlimited. Furthermore, we do not fi nd
that section 734.335(d) of the Illinois Administra-tive
Code is contrary to the purpose and language
of the Act, and is a reasonable and enforceable
regulation limiting the statutory right to reimburse-ment
from the fund.” FedEx, 889 N.E.2d at 700.
FedEx alternatively argued that Section 734.335(d)
simply did not apply in this case because FedEx al-ready
had an approved plan and budget. FedEx, 889
N.E.2d at 700. The court, “after a careful reading of
the relevant sections,” disagreed. Id. The court found
that subsection (d) is not limited solely to instances
where corrective action precedes the submittal of a
plan or budget. Rather, the subsection applies to
“those who proceed not only with no budget or plan,”
but also to those who “go beyond the scope of an ap-proved
plan or budget.” Id. The court added:
Furthermore, section 734.335(e) allows amend-ments
to plans or budgets when revised proce-dures
or cost estimates are necessary. Because
of this, it is logical to see that section 734.335(d)
is a necessary limitation specifying that plan or
budget changes, or essentially the creation of a
new plan or budget, should be submitted prior to
the issuance of a NFR letter. Id.
