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04/17/96 BOARD EDUCATION v. THOMAS L. ARMSTEAD

April 17, 1996

BOARD OF EDUCATION, COMMUNITY CONSOLIDATED SCHOOL DISTRICT NO. 15, COOK COUNTY, ILLINOIS, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,
v.
THOMAS L. ARMSTEAD, IN HIS CAPACITY AS THE ILLINOIS STATE FIRE MARSHAL AND THE OFFICE OF THE STATE FIRE MARSHAL, DEFENDANTS-APPELLANTS AND CROSS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Thomas O'Brien, Judge Presiding.

The Honorable Justice Tully delivered the opinion of the court: Cerda and Greiman, JJ., concur.

The opinion of the court was delivered by: Tully

The Honorable Justice TULLY delivered the opinion of the court:

Plaintiff, the Board of Education, Community Consolidated School District No. 15, brought an action for administrative review in the circuit court of Cook County against defendants, Thomas L. Armstead, in his capacity as the Illinois State Fire Marshal, and the Office of the State Fire Marshal (hereinafter "OSFM"), to register plaintiff's nine underground storage tanks in accordance with the Underground Storage Tank program provision of the Gasoline Storage Act (Act) (430 ILCS 15/4(b)(1)(C) (West 1996)). In its complaint, plaintiff sought a writ of mandamus and injunctive relief. Plaintiff moved for summary judgment, which the circuit court granted and ordered the OSFM to register all nine underground storage tanks (UST). It is from this order that defendants now appeal. In addition, plaintiff filed a cross-appeal from a circuit court order denying its motion for attorney fees. Jurisdiction is vested in this court pursuant to Supreme Court Rule 301 (157 Ill. 2d R. 301).

For the reasons which follow, we affirm in part, and reverse in part.

FACTUAL BACKGROUND

The relevant facts are as follows. Plaintiff owned property where nine 500-gallon underground heating oil tanks were situated. In 1964, plaintiff converted from heating by oil to natural gas. Thus, in 1972, it drained as much of the remaining heating oil as possible from the tanks and filled them with sand.

In 1987, the Illinois General Assembly enacted the Gasoline Storage Act (hereinafter Act) (Ill. Rev. Stat. 1987, ch. 127 1/2, par. 152.9 et seq.). The Act requires an "owner of an underground storage tank, which at any time between January 1, 1974, and [July 11, 1990,] contained petroleum or petroleum products or hazardous substances ***" to register with the (Ill. Rev. Stat. 1987, ch. 127 1/2, par. 156(b)(1)). The Act had initially paralleled the 1984 Federal regulatory programs for underground storage tanks. (See 42 U.S.C. ยง 6991 et seq. (1988)). The Act did not include heating oil tanks.

In March of 1990, during the construction of a new school building, plaintiff discovered that heating oil from five of nine tanks located on the property had leaked into the surrounding soil. Consequently, on April 23, 1990, plaintiff removed the five leaking tanks and notified the Emergency Services Disaster Agency of the situation. To date, plaintiff has spent $1.4 million to remove contaminated soil from its property.

On July 11, 1990, the Act was amended to specifically include heating oil tanks, provided those tanks had a capacity in excess of 1,100 gallons (Ill. Rev. Stat. 1991, ch. 127 1/2, par. 156(b)(1)(B)). On January 24, 1991, plaintiff attempted to register all nine tanks, five of which were removed. The OSFM returned plaintiff's registration form and fees and stated that "the tanks in question are not registerable [sic ] tanks since they are heating oil tanks 1,100 gallons or under and have not been in use at any time since January 1, 1974." On May 30, 1991, plaintiff filed a complaint against OSFM in the circuit court.

On September 6, 1991, the Act was amended again, this time eliminating the requirement that the tanks be greater than 1,100 gallons in capacity in order to be registered (430 ILCS 15/4(b)(1)(B) (West 1992)). The amendment provided that an "owner of a heating oil underground storage tank that at any time between January 1, 1974, and July 11, 1990, contained heating oil shall register the tank with the " (430 ILCS 15/4(b)(1)(B) (West 1992)). On October 2, 1991, plaintiff again submitted registration forms and fees to the OSFM to register the five removed tanks, as well as the four underground tanks still on school property. Shortly afterwards, the OSFM denied the applications and informed plaintiff that none of the nine underground storage tanks could be registered because the tanks were "last used prior to January 1, 1974."

On November 1, 1991, plaintiff filed an amended complaint in the circuit court against defendants, in his official capacity as State Fire Marshal. Defendants filed a motion to dismiss, which the court denied. Later, on June 2, 1992, plaintiff filed a motion for summary judgment.

A few days later, both parties initiated a settlement, since the "in use" standard which the OSFM had used to deny plaintiff's registration was contrary to the Act. As part of the settlement, the OSFM agreed to register the nine underground storage tanks by July 1, 1992, in exchange for plaintiff's dismissal of its complaint with prejudice. In July 7, 1992, the OSFM revoked the registration of five of the tanks. Consequently, on August 5, 1992, plaintiff moved to enforce settlement. On the same day, plaintiff had received an administrative order, which pronounced that the five tanks were not registrable. Plaintiff filed an emergency motion to stay administrative proceedings, which the court granted. Eventually, on September 11, 1992, the circuit court granted summary judgment in favor of plaintiff and ordered that the five removed tanks be registered.

The Act was amended again on September 15, 1992, to specifically exclude from coverage heating oil tanks "taken out of operation" before 1974 (430 ILCS 15/4(b)(1)(B) (West Supp. 1993); Public Act 87-1088). Subsequently, the OSFM filed a motion for reconsideration, but it was denied by the circuit court. On November 17, 1992, the circuit court issued a new order in light of this amendment and plaintiff's motion for clarification. The order stated that all nine USTs are to be registered and confirmation ...


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