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May 9, 1996


Administrative Review of the Illinois Pollution Control Board. No. 94-215.

As Corrected August 27, 1996.

Honorable Robert W. Cook, P.j., Honorable Frederick S. Green, J., Honorable Rita B. Garman, J., Concurring. Presiding Justice Cook delivered the opinion of the court: Green and Garman, JJ., concur.

The opinion of the court was delivered by: Cook

PRESIDING JUSTICE COOK delivered the opinion of the court:

Petitioner, Stroh Oil Company (Stroh), petitioned for direct review in this court of an opinion and order of respondent, Illinois Pollution Control Board (Board). Stroh Oil Co. v. Office of the State Fire Marshal, Ill. Pollution Control Bd. Op. 94-215 (July 20, 1995). The Board had affirmed a final eligibility/deductibility determination issued by respondent Office of the State Fire Marshal (OSFM), finding Stroh eligible for access to the Underground Storage Tank Fund (UST Fund) but imposing the maximum $100,000 deductible against Stroh. Stroh argues (1) it should have only been assessed a $15,000 deductible since it had registered one of its underground storage tanks (UST) prior to July 28, 1989 (see 415 ILCS 5/57.9 (West 1994)); (2) OSFM's failure to comply with the Forms Management Program Act (20 ILCS 435/1 et seq. (West 1994)) relieved Stroh from the obligation of submitting any registration forms (20 ILCS 435/5.1 (West 1994)); and (3) the UST Fund deductible scheme violates the special legislation clause of the Illinois Constitution and the equal protection clauses of the Illinois and United States Constitutions (Ill. Const. 1970, art. IV, § 13, art. I, § 2; U.S. Const., amend. XIV). We affirm.

Stroh operated as a petroleum retailer at the site in question from 1936 to 1990. The site contained three USTs. In April 1988, Stroh decided to replace one of the existing USTs with a larger UST. The OSFM approved the installation plan and issued the appropriate permit. An inspector from the OSFM supervised the 1988 installation. During another inspection by the OSFM on October 26, 1989, the registration status of the USTs at the Stroh site was questioned. Although Stroh believed the USTs had been registered previously, a subsequent check of the records indicated the USTs had not, in fact, been registered. On or about October 28, 1989, Stroh submitted the necessary registration forms.

In May 1991, Stroh received permission to remove all USTs on site. On September 16, 1991, all USTs were removed. At that time it became apparent a petroleum release had occurred at some point in the past. Stroh immediately notified what was then known as the Emergency Services and Disaster Agency of the release. Stroh submitted an eligibility-deductibility application to the OSFM on April 19, 1994. Stroh sought reimbursement for its corrective action costs from the UST Fund.

The relevant statute on April 19, 1994, provided a minimum deductible of $10,000 for all UST Fund distributions. If all USTs at a site were registered with the OSFM by July 28, 1989, no increase in the amount of the deductible was applicable. If one but not all USTs at a site were registered by this same date, the deductible would be $15,000 rather than $10,000. Finally, if no USTs at a site were registered by July 28, 1989, the deductible jumped to $100,000. See 415 ILCS 5/57.9(b)(1) through (b)(3) (West 1994).

In its application for access to the UST Fund, Stroh asserted its 1988 UST installation-replacement and accompanying OSFM supervision constituted "registration" of the UST with the OSFM so as to qualify for the $15,000 deductible. On June 30, 1994, the OSFM issued its final eligibility-deductibility determination, rejecting Stroh's "registration" theory and finding the $100,000 deductible applicable to Stroh since no UST had been registered by July 28, 1989. In a written opinion and order dated July 20, 1995, the Board affirmed the OSFM's ruling. This appeal followed.

Our review of rulings made by an administrative agency extends to all questions of law and fact presented by the record. 735 ILCS 5/3-110 (West 1994); Strube v. Pollution Control Board, 242 Ill. App. 3d 822, 826, 610 N.E.2d 717, 720, 182 Ill. Dec. 848 (1993). However, we accord questions of fact and questions of law differing degrees of deference. Township of Harlem v. Environmental Protection Agency, 265 Ill. App. 3d 41, 44, 637 N.E.2d 1252, 1254, 202 Ill. Dec. 516 (1994). We consider an agency's findings of fact to be prima facie true and correct. 735 ILCS 5/3-110 (West 1994). Although we do not give the same deference to an agency's rulings on questions of law, we do afford some deference to an agency's interpretation of a statute which that agency is charged with administering and enforcing. City of Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d 335, 345, 538 N.E.2d 1146, 1149, 131 Ill. Dec. 590 (1989). This deference is substantial if the statute being interpreted is ambiguous. Central City Education Ass'n v. Illinois Educational Labor Relations Board, 149 Ill. 2d 496, 510, 599 N.E.2d 892, 898, 174 Ill. Dec. 808 (1992).

The facts of this case are not in dispute. The parties do differ on a question of law; namely, whether the OSFM's supervision of Stroh's 1988 installation of a UST constituted "registration" within the meaning of section 4 of the Gasoline Storage Act (Act) (430 ILCS 15/4 (West 1994)). We conclude no registration occurred in this case on or before July 28, 1989, as Stroh failed to properly notify the OSFM of the existence of any of its USTs by that date.

The section which first required all applicable UST owners to register their USTs (by May 8, 1986) was added by Public Act 84-1072, effective July 1, 1986. Pub. Act 84-1072, § 1, eff. July 1, 1986 (1985 Ill. Laws 7096). Public Act 84-1072 required registration to be "on the form provided by the [Illinois Environmental Protection] Agency pursuant to Subtitle I of The Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616) of the Resource Conservation and Recovery Act of 1976 (P.L. 94-580)." Pub. Act 84-1072, § 1, eff. July 1, 1986 (1985 Ill. Laws 7096, 7098). Similarly, Public Act 85-861, effective September 24, 1987, transferred responsibility for maintaining UST records from the Illinois Environmental Protection Agency to the OSFM and required owners to register their USTs "on forms provided by the ." Pub. Act 85-861, § 2, eff. September 24, 1987 (1987 Ill. Laws 3607, 3619). No significant changes to the form requirement of the registration procedure have been made since Public Act 85-861. Keith Immke, legal counsel for the division of petroleum and chemical safety of the OSFM, testified that no OSFM regulations pertaining to registration procedures were promulgated until January 1989, but he also testified that prior to that time his office relied on the federal notification form for state notification purposes. The forms at all times have required the UST owner-operator to fill in basic information about his USTs and required the owner-operator to certify that the information provided was complete and accurate. Stroh failed to provide the OSFM with this form by the applicable deadline and has, therefore, failed to satisfy the requirements of the registration procedure under the Act.

We reject Stroh's contention that the OSFM's supervision of Stroh's 1988 installation fulfilled the notification requirements of the Act. The inspection report utilized by the OSFM was a form filled out by an OSFM inspector and was separate and distinct from the registration form to be filled out and certified as true and accurate by the UST owner-operator. While much of the information entered on an inspection report by an OSFM inspector may be identical to that required of an owner-operator when filling out a registration form, we agree with the Board that OSFM should not be required to "cull" from the inspection report information which an owner-operator is statutorily required to provide to the OSFM (see Pub. Act 84-1072, § 1, eff. July 1, 1986 (1985 Ill. Laws 7096, 7098) (establishing a duty to register existing USTs)), especially where, as here, the testimony indicated inspection and registration duties were performed by different divisions within the OSFM.

We also reject Stroh's suggestion that the 1988 UST must have been registered because section 4(b)(6) of the Act (430 ILCS 15/4(b)(6) (West 1994)) requires any new tank to be registered prior to installation. This argument is pure and simple bootstrapping--where the law requires things to be done in sequence (here registration before installation), completion of the second task does not mean the first requirement is automatically satisfied. To the contrary, we agree with the Board that Stroh's failure to register the tank prior to installation is simply another example of Stroh's failure to comply with its ...

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