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12/17/97 R. P. LUMBER COMPANY v. OFFICE STATE FIRE

December 17, 1997

R. P. LUMBER COMPANY, INC., PETITIONER,
v.
THE OFFICE OF THE STATE FIRE MARSHAL AND THE POLLUTION CONTROL BOARD, RESPONDENTS.



Petition for Review of an Order of the Pollution Control Board. PCB No. 94-184.

As Corrected December 23, 1997.

The Honorable Justice Kuehn delivered the opinion of the court. Maag, J., and Goldenhersh, J., concur.

The opinion of the court was delivered by: Kuehn

The Honorable Justice KUEHN delivered the opinion of the court:

R. P. Lumber Company, Inc. (R. P. Lumber), appeals from the October 17, 1996, order of the Pollution Control Board (Board) affirming the May 20, 1994, determination of the Office of the State Fire Marshal (OSFM) that R. P. Lumber's underground storage tank (UST) remediation reimbursement request was subject to a $100,000 deductible. We affirm.

The land involved in this case is located in downtown Edwardsville in Madison County. In April 1986, this entire land parcel was owned by Illinois Lumber. In December 1994, R. P. Lumber purchased the last section of this property, which made it the sole owner of the original Illinois Lumber parcel. R. P. Lumber acquired this property by making four separate land purchases.

On April 14, 1986, Illinois Lumber registered a UST with the OSFM. Later that year, on September 26, 1986, R. P. Lumber purchased its first section of this Illinois Lumber property. What R. P. Lumber did not know at the time of the purchase and would not discover for many years was that there were two unregistered USTs on this piece of property.

On April 14, 1988, R. P. Lumber purchased the second portion of this property from Illinois Lumber.

Sometime after R. P. Lumber's second purchase, the Bank of Alton foreclosed on the remainder of the property. In October 1991, the Bank of Alton removed and subsequently cleaned up the area of the April 14, 1986, registered UST.

On December 31, 1991, R. P. Lumber purchased the third portion of this property from the Bank of Alton. This third portion did not contain the area of the October 1991 remediation.

Sometime in 1992, R. P. Lumber discovered the first unregistered UST on the first parcel purchased. Because of the early date that this UST was removed from service, it was not necessary to register it with the State. On October 22, 1992, the OSFM designated this UST with a facility number. On December 3, 1992, R. P. Lumber removed this UST and discovered the second unregistered UST. On December 16, 1992, R. P. Lumber registered the second UST with the OSFM.

On February 18, 1993, R. P. Lumber removed the second UST and discovered a significant petroleum release requiring remediation. R. P. Lumber promptly notified the Illinois Emergency Management Agency, and an incident number was issued.

R. P. Lumber asked the OSFM to determine its eligibility for access to the Illinois UST fund for remedial activities. On May 20, 1994, the OSFM concluded that R. P. Lumber was eligible for fund access and determined that the applicable deductible was $100,000.

R. P. Lumber petitioned the Board on June 24, 1994, to challenge the OSFM's deductible determination, contending that under the applicable statutory ...


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