Appeal from the Circuit Court of the Tenth Judicial Circuit, Peoria County, Illinois. No. 92 MR 235. Honorable John A. Barra Judge, Presiding.
Released for Publication March 3, 1995. As Corrected March 29, 1995.
Present - Honorable Tom M. Lytton, Justice, Honorable Michael P. MC Cuskey, Justice, Honorable Kent Slater, Justice
The opinion of the court was delivered by: Lytton
JUSTICE LYTTON delivered the opinion of the court:
Plaintiff, First of America Trust Company, as trustee of the Emil A. Harbers Trust, appeals from a judgment order of the circuit court of Peoria County confirming a decision of Thomas L. Armstead, Illinois State Fire Marshall, and the Office of the State Fire Marshal (OSFM) which denied plaintiff's request for registration of three underground storage tanks (USTs). Plaintiff contends that the court erred in giving retrospective application to a September 15, 1992, amendment to section 4(b)(1) of the Gasoline Storage Act (GSA) (430 ILCS 15/4(b)(1) (West 1992)). We agree and reverse that ruling; however, we affirm the denial of attorney's fees sought by plaintiff.
Illinois has established an Underground Storage Tank Fund (Fund) to reimburse owners and/or operators of USTs for the corrective actions taken in response to a release or a substantial threat of a release of petroleum from a UST. (415 ILCS 5/22.18b-22.18c (West 1992).) An owner or operator of a UST is eligible to receive money from the Fund if the tank has been registered under section 4 of the Gasoline Storage Act (430 ILCS 15/4 (West 1992)). 415 ILCS 5/22.18b.
Plaintiff holds certain real estate in Peoria which was used as a gasoline station until 1962. Three USTs located on the property were used to store and dispense gasoline when the station was in operation. Since 1962, the USTs have not been used but do contain a small quantity of petroleum and petroleum residue. On March 15, 1992, plaintiff submitted an application for registration of the three USTs to OSFM pursuant to the applicable statute then in effect, section 4(b)(1)(A) of the Gasoline Storage Act (Ill. Rev. Stat. 1991, c. 127 1/2, par. 156(b)(1)(A)):
"The owner of an underground storage tank * * * which at any time between January 1, 1974, and September 24, 1987 contained petroleum or petroleum products * * * shall register the tank with the Office of the State Fire Marshal." (Emphasis added.)
Plaintiff's application for registration was rejected because OSFM construed the requirement that the tanks "contained petroleum" after 1974 to mean that the tanks must have been in use after 1974. On September 9, 1992, after an administrative hearing, Armstead issued an administrative order denying registration on that basis.
Effective September 15, 1992, P.A. 87-1088 amended the applicable statute, now section 4 of the Gasoline Storage Act, to provide:
"The owner of an underground storage tank that was not taken out of operation before January 2, 1974, and that at any time between January 1, 1974, and September 24, 1987, contained petroleum or petroleum products * * * shall register the tank with the Office of the State Fire Marshal.
No underground storage tank taken out of operation before January 2, 1974, may be registered under this Act." 430 ILCS ...