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07/22/94 TOWNSHIP HARLEM v. ENVIRONMENTAL

July 22, 1994

THE TOWNSHIP OF HARLEM, PETITIONER-APPELLANT,
v.
ENVIRONMENTAL PROTECTION AGENCY AND POLLUTION CONTROL BOARD, RESPONDENTS-APPELLEES.



Petition for Review of a Final Order of the Illinois Pollution Control Board. PCB No. 92-83

PECCARELLI, McLAREN, Doyle

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

Harlem Township (Harlem or the township) petitions for review of the order of the Pollution Control Board (the Board) which denied reimbursement from the underground storage tank fund for the cost of cleaning up a petroleum spill. Harlem contends that the Board erred in determining that the nozzle from which the gasoline spilled was not part of an underground storage tank system.

The relevant facts are not in dispute. Harlem's employee, Charles Brockman, reported for work on April 22, 1991, and noticed that fuel had spilled from a pump on the premises over the weekend. The pump was connected to an underground storage tank (UST). Brockman noticed that the front gate was open and the shop door was unlocked. There was a puddle by the fuel pump, and the nozzle was lying on the ground unlocked. No gas was coming from the nozzle because the pump had "burned out." Brockman had locked the shop door when he left work on Friday evening.

Harlem suspected vandalism and filed a police report, but the perpetrators were never caught. Approximately 450 gallons of gasoline were released from the pump. Harlem paid Rockford Blacktop $68,367.24 to clean up the spill.

Harlem filed an application for reimbursement from the underground storage tank fund (the fund). (See 415 ILCS 5/22.18 (West 1992).) The Environmental Protection Agency (the Agency) denied the request. Harlem petitioned for review by the Board. Following a hearing, the Board upheld the agency's determination. The Board found that the pump and nozzle from which the fuel spilled were not part of an "underground storage tank system" within the meaning of the statute.

Harlem filed a petition for reconsideration, which the Board denied. Harlem then petitioned directly to this court for review of the Board's order. See 415 ILCS 5/41(a) (West 1992).

Harlem contends that the Board improperly denied it reimbursement from the fund. Harlem maintains that the release from the pump nozzle was a release from an underground storage tank system within the meaning of the statute. Harlem presents several relatedarguments based on statutory construction and public policy. The Board responds that its interpretation is consistent with the purpose of the statute creating the fund.

To minimize the adverse affects on the environment caused by the handling, storage and disposal of petroleum, the legislature created a system to register underground storage tanks and provide a State fund from which owners and operators can be reimbursed for the cost of corrective action incurred as the result of a release of petroleum from an underground storage tank. (415 ILCS 5/22.18, 22.18b (West 1992).) The statute adopted the definition of "underground storage tank" contained in Federal environmental statutes. The statutes define an "underground storage tank" as "any one or combination of tanks (including underground pipes connected thereto) which is used to contain an accumulation of regulated substances, and the volume of which (including the volume of the underground pipes connected thereto) is 10 per centum or more beneath the surface of the ground." (415 ILCS 5/22.18(e)(1)(A) (West 1992); 42 U.S.C. § 6991(1) (19 ).) The definition is subject to several exceptions not relevant here. The Board has promulgated regulations regarding underground storage tanks which define "underground storage tank system" as including the tank, connected underground piping, underground ancillary equipment, and a containment system, if any. 35 Ill. Adm. Code § 731.112 (1991).

In substance, the statute provides that owners and operators of underground storage tanks must register them with the State and pay a registration fee. (415 ILCS 5/22.18(b)(1)(B) (West 1992).) The fees are deposited in the underground storage tank fund. (415 ILCS 5/22-13(a) (West 1992).) An owner or operator may apply to the fund for reimbursement for costs associated with "a release of petroleum from an underground storage tank." 415 ILCS 5/22.13(b) (West 1992).

The Agency and the Board denied Harlem's application on the basis that the release through a pump nozzle located above ground was not a release from an underground storage tank or underground storage tank system as defined by the relevant statutes and regulations. Harlem protests that this is an unduly restrictive interpretation of the statute. Harlem contends that the statute should be construed broadly to effectuate its remedial purpose. It notes that the potential for environmental damage caused by petroleum releases is the same whether the petroleum escapes directly from an underground tank into the soil or through a pump nozzle on the surface. Harlem contends that in either case the spilled fuel comes "from an underground storage tank."

The Board responds that its interpretation is reasonable in light of the purpose of the statute. It contends that the statute has a narrow purpose, to alleviate damage caused by leakage from underground tanks, and that the statute should therefore be construed narrowly.

In this case, we are once again called upon to enter the "'fantastic labyrinths'" of the UST statutory scheme. ( Rockford Drop Forge Co. v. Pollution Control Board (1991), 221 Ill. App. 3d 505, 510, 164 Ill. Dec. 45, 582 N.E.2d 253, quoting Hand, "Thomas Walter Swan," 57 Yale L.J. 167, 169 (1947).) In this, we are guided by well-established principles regarding the respective roles of administrative agencies and the courts. The review of an administrative agency decision extends to all questions of law and of fact presented by the record. The agency's findings of fact are considered to be prima facie true and correct. ( Strube v. Pollution Control Board (1993), 242 Ill. App. 3d 822, 826, 182 Ill. Dec. 848, 610 N.E.2d 717.) The agency's determinations of questions of law are not entitled to the same deference as its findings of fact. Nonetheless, a ...


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