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03/21/96 FIRST AMERICA TRUST COMPANY v. THOMAS L.

March 21, 1996

FIRST OF AMERICA TRUST COMPANY, AS TRUSTEE OF THE EMIL A. HARBERS TRUST, APPELLEE,
v.
THOMAS L. ARMSTEAD, STATE FIRE MARSHAL, ET AL., APPELLANTS.



The Honorable Justice Nickels delivered the opinion of the court: Justice Miller took no part in the consideration or decision of this case.

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

In this appeal, we decide whether plaintiff is entitled to register its underground storage tanks pursuant to the Gasoline Storage Act (430 ILCS 15/4(b)(1)(A) (West 1992)). Plaintiff, First of America Trust Company, as trustee of the Emil A. Harbers trust, sought to register three underground storage tanks with the office of the State Fire Marshal. The State Fire Marshal denied plaintiff's request for registration, and plaintiff sought administrative review in the circuit court of Peoria County. During the pendency of the review, the General Assembly amended the Gasoline Storage Act (430 ILCS 15/4(b)(1)(A) (West Supp. 1993)). The circuit court of Peoria County applied the amended statute and confirmed the decision of the State Fire Marshal denying registration of the tanks. Plaintiff appealed, arguing that the circuit court erred in applying the amended statute. The appellate court agreed with plaintiff and ordered that the tanks be registered pursuant to the unamended statute. 269 Ill. App. 3d 432, 646 N.E.2d 302, 206 Ill. Dec. 935. We granted the petition for leave to appeal of defendants Thomas L. Armstead, as State Fire Marshal, and the office of the State Fire Marshal. 145 Ill. 2d R. 315. We hold that the circuit court properly applied the amended statute.

BACKGROUND

In 1984, Congress established a federal program to regulate underground storage tanks. 42 U.S.C. § 6991 et seq. (1988). Pursuant to this statute, the federal Environmental Protection Agency may delegate to the states certain powers and duties to regulate tanks. 42 U.S.C. §§ 6991b(h)(7), 6991c (1988). In most respects, the stateregulatory program must be no less stringent than the standards established under federal law. 42 U.S.C. § 6991c(b)(1) (1988).

In 1985, the Illinois General Assembly enacted the Gasoline Storage Act (430 ILCS 15/0.01 et seq. (West 1992)). In partial fulfillment of the federal requirements, the Act requires that owners of certain underground storage tanks register their tanks with the office of the State Fire Marshal. 430 ILCS 15/4(b)(1)(A) (West 1992). Registration requires the payment of a fee (430 ILCS 15/4(3)(A) (West 1992)), but also entitles the tank owner to potential benefits. Where other prerequisites are met, these benefits may include the reimbursement of a portion of clean-up costs associated with the release of petroleum. See 415 ILCS 5/57 et seq. (West Supp. 1993).

Plaintiff, as trustee of the Emil A. Harbers trust, holds legal title to real estate in Peoria, Illinois. This real estate was the site of a gasoline station until 1962. Although the gasoline station has not operated since that time, three underground storage tanks remain on the property. The parties agree that the tanks presently contain some residual petroleum products.

On March 15, 1992, plaintiff submitted an application for registration of the tanks with the office of the State Fire Marshal. At the time of plaintiff's application, section 4 of the Gasoline Storage Act provided:

"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.) 430 ILCS 15/4(b)(1)(A) (West 1992).

Plaintiff contended that it was entitled to registration because the underground storage tanks "contained" petroleum products during the applicable period. However, the State Fire Marshal rejected this reading and found that the statute further required that the tanks be inoperation during the statutory period. After an administrative hearing, the State Fire Marshal issued an order denying plaintiff's application for registration.

Plaintiff filed a complaint for administrative review in the circuit court of Peoria County. 735 ILCS 5/3-101 et seq. (West 1992). During the pendency of the review, the General Assembly amended section 4 of the Gasoline Storage Act. Pub. Act 87-1088, eff. September 15, 1992 (amending 430 ILCS 15/4(b)(1)(A) (West 1992)). The amended act expressly prohibited registration of tanks taken out of operation prior to January 2, 1974:

"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 15/4(b)(1)(A) (West Supp. 1993).

Relying on this amendment, the circuit court confirmed the decision of the office of the State Fire Marshal denying registration of the tanks.

Plaintiff appealed from the circuit court's decision, arguing that it was error to apply the amended statute. The appellate court agreed and reversed the decision of the circuit court. 269 Ill. App. 3d 432, 646 N.E.2d 302, 206 Ill. Dec. 935. The appellate court relied on the general principle that a statutory amendment is presumed to apply prospectively, and should only be applied retroactively where such an interpretation is supported by a clear expression of legislative intent. 269 Ill. App. 3d at 434. Not finding any language supporting a retroactive application of the amendment, the appellate court reasoned that plaintiff's application for registration should be permitted under the superseded statute. Under that statute, the appellate court determined that plaintiff was entitled to registration because the tanks "contained" petroleum residue. 269 Ill. App. 3d at 434-35.

In addition to seeking registration of its tanks, plaintiff further contended that it was entitled to attorney fees and costs pursuant to the Illinois Administrative Procedure Act (5 ILCS 100/1-1 et seq. (West 1992)). The Administrative Procedure Act provides for the recovery of attorney fees "in any case in which a party has any administrative rule invalidated by a court for any reason." 5 ILCS 100/10-55(c) (West 1992). The appellate court determined that plaintiff was not entitled to attorney fees because the denial of plaintiff's application was not an administrative rule within the meaning of section 10-55(c). 269 Ill. App. 3d at 435.

We granted defendants' petition for leave to appeal on the issue of whether plaintiff was entitled to registration of its tanks. 145 Ill. 2d R. 315. In addition, plaintiff seeks reversal of the appellate court's decision denying its request for attorney fees and costs. 155 Ill. 2d R. 318(a).

ANALYSIS

I. Applicability ...


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