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07/14/95 OK TRUCKING CO. v. THOMAS L. ARMSTEAD

July 14, 1995

OK TRUCKING CO., PLAINTIFF-APPELLANT,
v.
THOMAS L. ARMSTEAD, ILLINOIS STATE FIRE MARSHAL, OFFICE OF THE ILLINOIS STATE FIRE MARSHAL, DIVISION OF PETROLEUM AND CHEMICAL SAFETY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Lester D. Foreman, Judge Presiding.

Released for Publication September 6, 1995.

The Honorable Justice Zwick delivered the opinion of the court: Egan, J., and Rakowski, J., concur.

The opinion of the court was delivered by: Zwick

JUSTICE ZWICK delivered the opinion of the court:

Plaintiff, OK Trucking Co., appeals from a judgment order of the circuit court of Cook County affirming a decision of Thomas L. Armstead, Illinois State Fire Marshall, and the Office of the State Fire Marshal (OSFM) which revoked registration of one petroleum storage tank and which denied the registration of two others under the Gasoline Storage Act (the Act). We affirm the judgment of the circuit court.

In 1967, plaintiff purchased a truck terminal facility located at 1940 West 33rd Street in Chicago. The record is unclear as to the number of underground petroleum tanks on the property at the time the land was purchased, but does indicate that there was at least one underground tank which was unknown to plaintiff on the property at this time. Plaintiff later designated this tank as Tank 3.

By the spring of 1986, plaintiff had at least four underground tanks in active use which it later designated as Tanks 1, 2, 4 and 5. On April 22, 1986, plaintiff registered Tank 1 and Tank 2 pursuant to section 4 of the Act and removed from the ground Tank 4 and Tank 5. Plaintiff did not attempt to register Tank 4 or Tank 5 at this time.

On July 28, 1989, the Illinois General Assembly amended the Environmental Protection Act to allow the Underground Storage Tank Fund (Fund) to reimburse owners and/or operators of underground storage tanks for the release of petroleum products into the ground. (415 ILCS 5/22.18b-22.18c (West 1992).) An owner or operator of a underground tank became eligible to receive reimbursement for corrective action or indemnification from the Fund only if a series of conditions were met, including the condition that any tank releasing petroleum was properly registered under section 4 of the Act (430 ILCS 15/4 (West 1992)). 415 ILCS 5/22.18b(a)(4).

In October of 1990, plaintiff discovered Tank 3 while removing Tanks 1 and 2 from the ground. At that time Tank 3 contained 350-400 gallons of petroleum contaminated with water. Tank 3 was removed and destroyed. Subsequently, on October 22, 1990, plaintiff notified OSFM of the discovery of Tank 3 and remitted a registration and late fee.

On March 18, 1992, plaintiff sent registration forms for Tank 4 and Tank 5 to OSFM. Plaintiff did so even though these tanks had been removed from the ground nearly six years earlier, in April of 1986.

On June 18, 1992, OSFM sent a letter to plaintiff stating that Tanks 3, 4 and 5 could not be registered. The letter rescinded the registration of Tank 3 and denied the registration of Tanks 4 and 5.

On September 15, 1992, the General Assembly amended Section 4 of the Act. Plaintiff concedes that it would not be entitled to register Tanks 3, 4 and 5 under the amended statute.

Plaintiff initially contends that the OSFM acted improperly in denying registration for Tanks 3, 4 and 5, by giving retrospective application to the September 15, 1992 amendment to section 4(b)(1) of the Act (430 ILCS 15/4(b)(1) (West 1992)). Plaintiff points to section 4 of the Act at the time it attempted to register its tanks which provided:

"The owner of an underground storage tank *** which at any time between January 1, 1974, and September 24, 1987, contained petroleum *** shall register the tank with the Office of the State Fire ...


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