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Rockford Drop Forge Co. v. Pollution Control Bd.

ELR Citation: 22 ELR 21009
Nos. No. 2-91-0342, 582 N.E.2d 253/221 Ill. App. 3d 505, (Ill. App. Ct., 11/29/1991)

The court holds that an owner of contaminated property may not receive reimbursement from Illinois's underground storage tank (UST) fund for cleanups resulting from an underground heating oil storage tank leak, and the owner's registration fee for the UST fund is not a taking. The owner appeals an Illinois Pollution Control Board (Illinois PCB) decision upholding the Illinois Environmental Protection Agency's (Illinois EPA's) denial of reimbursement for cleanup costs. The court first notes that it will uphold a quasi-judicial act of the Illinois PCB unless the act is contrary to the manifest weight of the evidence. The court then holds that the tanks do not fall within the Illinois Environmental Protection Act's (IEPA's) definition of "underground storage tank." The court holds that the Illinois EPA and the Illinois PCB properly interpreted the IEPA's definition of UST, which references the Resource Conservation and Recovery Act, rather than the definition used in regulations issued by the Office of the State Fire Marshall (OSFM). The statute specifies that the Illinois EPA is to act as the lead agency in formulating regulations and policies concerning the UST program. The court finds no compelling reason to invoke its equitable powers and order that Rockford be reimbursed from the UST fund, because the statutory exclusion of any "tank used for storing heating oil" is clear and unambiguous, and it is not fundamentally unfair that the owner's tanks are within the definition's exclusion. Although the statute was later amended to include tanks like the owner's, the amendment does not apply retroactively. Finally, the court holds that it was not a taking under the Illinois Constitution for the state to collect a registration fee from the owner that was paid into the UST fund, even though the owner is ineligible for reimbursement from the fund because the fee is more akin to an automobile registration fee than an insurace premium entitling the payer to coverage.

Counsel for Appellant
John W. France
Williams & McCarthy
321 W. State St., PO Box 219, Springfield IL 61105
(815) 987-8900

Counsel for Appellees
Ronald L. Schallawitz
Illinois Environmental Protection Agency
PO Box 19276, Springfield IL 62794
(217) 785-5735

GEIGER and BOWMAN, JJ., concur.