ILLINOIS POLLUTION CONTROL BOARD
February 1, 2001
BOB and SHARON LAMMA,
Petitioners,
v.
OFFICE OF THE STATE
FIRE MARSHAL,
Respondent.
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PCB 99-182
(UST – Appeal)
SHARON LAMMA APPEARED
PRO SE
; and
SALLY A. CARTER, ASSISTANT ATTORNEY GENERAL, ATTORNEY GENERAL’S
OFFICE, and KEITH H. IMMKE, LEGAL COUNSEL, OFFICE OF THE STATE FIRE
MARSHAL, APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by R.C. Flemal):
This matter is before the Board on a petition for review filed by Bob and Sharon
Lamma (petitioners) seeking review of a final deductibility determination issued by the Office
of the State Fire Marshal (OSFM). The OSFM determined that a $100,000 deductible applied
to petitioners regarding their leaking underground storage tanks (UST). For the reasons
explained below, the Board affirms the OSFM’s deductibility determination.
BACKGROUND
On August 28, 1982, petitioners purchased a gas station, under a contract for deed,
located at 402 West Jackson, Auburn, Sangamon County, Illinois. Tr. at 10, 33; Rec. at 9,
83.
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On January 3, 1998, petitioners completed payment on the contract for deed. Rec. at 9.
Until 1986, petitioners operated the site as a gas station. Tr. at 29. After that date, petitioners
used the site as a restaurant. Tr. at 29. On September 11, 1991, petitioners registered the two
gasoline tanks at the site with the OSFM and paid the associated fees. Tr. at 44; Rec. at 70-
71. The tanks were removed on January 12, 1999, and a release was discovered. Rec. at 9-
12; 19. The Illinois Emergency Management Agency was notified. Rec. at 19. On January
25, 1999, petitioners completed a UST Fund eligibility and deductibility application. Rec. at
9-12. Petitioners identified themselves as the owners of the tanks. Rec. at 9. On April 19,
1999, the OSFM notified petitioners that they were eligible to seek payment of costs in excess
of $100,000. Pet. Exh. A. This appeal followed.
1
Citations to the hearing transcript will be referenced as “Tr. at __.” Citations to the record
filed by the OSFM will be referenced as “Rec. at __.”
2
A hearing on the petition was held on December 5, 2000. Petitioners did not file a
posthearing brief. The OSFM filed a posthearing brief on January 18, 2001.
APPLICABLE STATUTES
The Environmental Protection Act (Act) (415 ILCS 5/1
et seq.
(1998)) contains the
requirements for the UST Fund, which states, in pertinent part:
a.
The Underground Storage Tank Fund shall be accessible by owners and
operators who have a confirmed release from an underground storage
tank or related tank system of a substance listed in this Section. The
owner or operator is eligible to access the Underground Storage Tank
Fund if the eligibility requirements of this Title are satisfied and:
1.
Neither the owner nor the operator is the United States
Government.
2.
The tank does not contain fuel which is exempt from the Motor
Fuel Tax Law.
***
b.
An owner or operator may access the Underground Storage Tank Fund
for costs associated with an Agency approved plan and the Agency shall
approve the payment of costs associated with corrective action after the
application of a $10,000 deductible, except in the following situations:
1.
A deductible of $100,000 shall apply when none of the
underground storage tanks were registered prior to July 28, 1989,
except in the case of underground storage tanks used exclusively
to store heating oil for consumptive use on the premises where
stored and which serve other than farms or residential units, a
deductible of $100,000 shall apply when none of these tanks were
registered prior to July 1, 1992.
***
415 ILCS 5/57.9 (1998).
The OSFM found that 57.9(b)(1) applied to the petitioners, and therefore they were not eligible
for the $10,000 deductible. Rec. at 4. Pursuant to Section 57.9(c)(2) of the Act, this appeal
followed.
ARGUMENTS
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Petitioners allege that they were unaware that it was their responsibility to register the
tanks until 1991. Pet. at 2. At that time, Tom Spradlin, of the OSFM, came to the site and
advised petitioners that they needed to register the tanks. Tr. at 34. Petitioners registered the
tanks shortly after Spradlin’s visit. Tr. at 34.
Petitioners also allege that the OSFM’s determination was ambiguous because it
contained the statement “We reserve the right to change the deductible determination should
additional information that would change the determination become available.” Pet. at 1-2.
In its posthearing brief, the OSFM alleges that the tank registration date necessitated
that Section 57.9(b)(1) apply to petitioners. Hrg. Br. at 6. Since petitioners admittedly did not
register the tanks until September 11, 1991, the OSFM alleges that Section 57.9(b)(1),
applying a $100,000 deductible rather than a $10,000 deductible to petitioners, is proper. Hrg.
Br. at 7.
ANALYSIS
The only dispute in this case is whether the OSFM correctly found that petitioners were
eligible for the $100,000 deductible, rather than the $10,000 deductible. The OSFM’s basis
for its decision was the late date on which petitioners registered the tanks. Under the statute,
petitioners, as the undisputed owners of the tanks, had to register the tanks by July 28, 1989.
The record is clear that petitioners did not register the tanks until September 11, 1991. The
Board has previously affirmed OSFM decisions imposing the $100,000 deductible when owner
or operators failed to register tanks by the statutory July 28, 1989 deadline. See R.P. Lumber
Company, Inc. v. OSFM (October 17, 1996), PCB 94-184; Barbara L. Heiser (Heiser’s
Garage) v. OSFM (September 21, 1995), PCB 94-377. Although petitioners allege they were
unaware of the registration requirement, the statute does not allow the Board to consider
petitioners’ intent, or lack thereof. The Board therefore affirms the OSFM’s determination
imposing the $100,000 deductible to petitioners.
This opinion constitutes the Board’s findings of fact and conclusions of law in this
matter.
ORDER
The Board affirms the April 19, 1999 decision of the Office of the State Fire Marshal,
finding Bob and Sharon Lamma eligible to access the Underground Storage Tank Fun with a
$100,000 deductible, for remediation associated with the release that occurred at 402 West
Jackson, Auburn, Sangamon County, Illinois.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1998)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this
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order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 172 Ill. 2d
R. 335; see also 35 Ill. Adm. Code 101.520, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the 1st day of February 2001 by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
