ILLINOIS POLLUTION CONTROL BOARD
    August
    26,
    1993
    CONSOLIDATION COAL COMPANY,
    )
    Petitioner,
    v.
    )
    PCB 93-84
    )
    (UST Fund)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    PATRICK JOYCE and DENISE M.
    DRUHOT,
    of BROWN,
    HAY
    & STEPHENS,
    APPEARED ON BEHALF OF PETITIONER
    TODD RETTIG,
    of the ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
    APPEARED ON BEHALF OF THE RESPONDENT
    OPINION AND ORDER OF THE BOARD
    (by B.
    Forcade):
    On May 6,
    1993,
    Consolidation Coal Company
    (“CCC”)
    filed a
    Petition for Review of an UST Fund Reimbursement Denial.
    This
    matter was accepted for hearing on May 20,
    1993.
    The Illinois
    Environmental Protection Agency
    (“Agency”)
    filed the record on
    May 26,
    1993.
    The hearing was held on Thursday, July
    15,
    1993.
    CCC filed its brief on July 30,
    1993.
    The Agency filed its brief
    on August
    2,
    1993.
    There
    is no factual dispute in this case.
    The decision
    revolves around the proper interpretation of one statutory
    clause.
    FACTS
    On January 13,
    1993,
    CCC filed an application for
    Reimbursement from the Underground Storage Tank Fund with the
    Agency.
    The Agency requested CCC to amend the application for
    clarification of what products were
    in tank nos.
    2 through
    5.
    The Agency informed CCC in a letter dated April
    5,
    1993,
    that CCC
    was ineligible to seek payment of corrective action costs for:
    1)
    tank no.
    2 containing 90 weight oil,
    2) tank no.
    3 containing
    fleet
    10 oil,
    3)
    tank no.
    4 containing fleet 30 oil and 4) tank
    no.
    5 containing antifreeze.
    The tanks in question are located
    at Consolidation Coal’s facility at Burning Star No.
    4 Mine,
    R.R.
    #1,
    in Perry County,
    Illinois.
    The Agency denied reimbursement
    to CCC for tank nos.
    2,
    3,
    4, and 5,
    because the content of these
    tanks did not meet the definition of “petroleum” as found
    in
    Section 22.18b(a)(5).
    Subsequently, CCC withdrew its request
    regarding tank No.
    5 containing antifreeze.
    The parties
    stipulated that the sole issue on review is whether the 10,
    30
    and 90 weight lubricating oils meet the definition of petroleum.
    2
    Section 22.18b(a) (5)
    of the Illinois Environmental
    Protection Act (“Act”)
    states as follows:
    “(5) The release petroleum is within one or more of the
    following categories:
    (A).
    Fuel, as that term is defined in Section
    1.19 of the Motor Fuel Tax Law.
    (B).
    Aviation Fuels, heating oil,
    or
    kerosene.
    (C).
    Used oil.
    For the purposes of this
    Section,
    “used oil” means any oil that
    has been refined from crude oil used in
    a motor vehicle, as that term is defined
    in Section 1.3 of the Motor Fuel Tax
    Law,
    and that,
    as a result of that use,
    is contaminated by physical or chemical
    impurities.
    415 ILCS 5/22.18b(a)(5)
    (1992)
    In this proceeding CCC is asserting that the materials in
    question are “Motor Fuels” as stated in
    (A)
    above.
    Therefore the
    definition of motor fuel is relevant to this proceeding.
    Section
    1.1 of the Motor Fuel Tax Law provides as follows:
    “1.1
    “Motor Fuel” means all volatile and
    inflammable liquids produced, blended or
    compounded for the purpose of, or which
    are suitable or practicable for,
    operating motor vehicles.
    Among other
    things,
    “Motor Fuel”
    includes “Special
    Fuel”
    as defined in Section 1.13 of this
    Act”.
    35 ILCS 505/1.1
    (1992)
    DISCUSSION
    CCC argues that the materials in question are volatile or
    inflammable liquids and that they are used for the purpose of
    operating motor vehicles.
    CCC does not assert that these
    materials are used motor oils.
    CCC provided testimony,
    by Mr.
    Gefferth, that the 10,
    30, and 90 weight oil
    is used in the cars,
    trucks, pick up trucks, earth moving bulldozers and Caterpillar
    scrapers at the mine.
    (R.
    19).
    The materials in the underground
    tanks are all virgin motor oils because they have never been
    added to a motor vehicle.
    Mr. Gefferth also testified that those
    materials are volatile or inflammable.
    (R.
    23).
    Mr. Gefferth
    stated that these motor vehicles would not be able to operate
    3
    without such lubricating materials.
    (R.
    22—23).
    The Agency argues that the materials in question are not
    motor fuel.
    The Agency asserts that Section 22.18b(a) (5) (C)
    specifically lists
    “used motor oil”, but no portion of the Act
    lists virgin motor oil.
    The Agency asserts that because the Act
    specifically includes used motor oil, the
    lack of language
    regarding virgin motor oil means the General Assembly intended to
    exclude
    it.
    The Agency also asserts that lubricating oils do not
    meet the definition of “fuel” and that accordingly, lubricating
    oils could never meet the definition of motor fuel.
    The Agency
    notes that lubricating oils are not burned in the engine to
    produce energy,
    and that “The American Heritage Dictionary of the
    English Language (1982)” defines fuel as,
    “anything consumed to
    produce energy”.
    The Agency provided testimony,
    by Mr. Paul
    Lake,
    that the Agency has consistently denied virgin motor oil
    for reimbursement under the UST fund and those decisions have
    never been appealed to the Board.
    (R.
    54-56).
    CONCLUSIONS
    The parties agree that
    if the lubricating oils meet the
    definition of “motor fuel” from the Motor Fuel Tax Law, then
    reimbursement is appropriate; if they do not meet the definition,
    reimbursement is not appropriate.
    However, that definition is
    not a statutory provision standing in isolation.
    The definition
    is part of a comprehensive statute, the Motor Fuel Tax Law,
    administered by the Department of Revenue.
    If a material meets
    the definition of “motor fuel”, then it is subject to the taxes
    and collection protocols contained in the statute and
    administered by the Department of Revenue.
    In such
    circumstances, any interpretation provided by the Department of
    Revenue would be quite persuasive.
    However, CCC has provided no
    testimony or argument to show that the Department of Revenue was
    requested to provide such interpretation or,
    in fact, considers
    lubricating oils to be “motor fuel” subject to the Motor Fuel Tax
    Law.
    Nor has CCC provided judicial interpretations providing
    that lubricating oils are subject to taxation under that statute.
    Moreover,
    CCC has admitted that it has never paid Illinois Motor
    Fuel Tax on the contents of tanks 2,
    3, and 4.
    (Motion to Amend
    Record Instanter July 22,
    1993, Affidavit of John Gefferth,
    ¶4).
    The Board finds that CCC has failed to demonstrate that
    lubricating oils meet the definition of “motor fuel” as found
    in
    the Motor Fuel Tax Law.
    Accordingly,
    the Board concludes that the lubricating oils
    in question here
    (tanks
    2,
    3,
    and
    4)
    are not,
    “Fuel,
    as that term
    is defined in Section 1.19 of the Motor Fuel Tax Law.”
    (Section
    22.18b(a)(5)(A).
    Therefore, they are not “within one of the
    following categories of released petroleum” as stated in Section
    22.l8b(a) (5) of the Act.
    The Agency decision to deny eligibility
    was appropriate and the Board affirms the Agency decision.
    4
    This opinion constitutes the Board’s findings of fact and
    conclusions
    of law in this matter.
    ORDER
    The Board hereby affirms the Agency decision of April
    5,
    1993, denying eligibility for tanks
    2,
    3, and 4, at Consolidation
    Coal Company’s facility at Burning Star No.
    4 Mine, R.R.
    #1,
    in
    Perry County,
    Illinois.
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act
    (415 ILCS
    5/41
    (1992))
    provides for the appeal of final orders of the Board
    within 35 days.
    The Rules of the Supreme Court of Illinois
    establish filing requirements.
    (See also 35 Ill. Adm. Code
    101.246, Motion for Reconsideration.)
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certif
    that the ab
    e opinion and order was
    ~opted
    on the -~i~—day of
    7~7
    ,
    1993, by a vote of
    Dorothy M.
    nn, Clerk
    Illinois Pollution Control Board

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