ILLINOIS POLLUTION CONTROL BOARD

February 4, 1993

GREENVILLE AIRPORT AUTHORITY, 

)

Petitioner,

)

v.

)

PCB 92—157

(Underground Storage Tank Fund

ILLINOIS ENVIRONMENTAL     

)

Reimbursement Determination)

PROTECTION AGENCY,       

)

Respondent.

R. RANDALL NEUMANN,

ESQ., 

APPEARED FOR THE PETITIONER;

AND

TODD

F. RETTIG, ESQ., ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

APPEARED FOR THE RESPONDENT.

OPINION AND ORDER OF THE BOARD (by 3. C. Marlin):

This matter is before the Board on a petition for review of

the Illinois Environmental Agency’s (Agency) denial of

eligibility for reimbursement from the Underground Storage Tank

Fund (Fund) filed by Greenville Airport Authority (Greenville) on

October 22, 1992, pursuant to Sections 22.lBb(g) and 40 of the

Illinois Environmental Protection Act (Act). Ill. Rev. Stat.

1991, ch. 111 1/2, par. 1022.18b(g) and 1040. A release of

aviation jet fuel (fuel) occurred at the Greenville Airport in

the City of Greenville, Bond County, Illinois on May 30, 1990.

The petition seeks review of the Agency’s determination that the

release is ineligible for reimbursement because it is not

associated with an underground storage tank (UST) system. The

hearing in this matter was held on December 22, 1992. Greenville

filed a post hearing brief on January 8, 1993, and on January 11,

1993, the Agency filed a post hearing brief.

PRELIMINARY ISSUES

Greenville and the Agency make several motions at hearing

and in their briefs. One such motion is the motion by Greenville

for sanctions against the Agency pursuant to 35 Ill. Adin. Code

101.280. Greenville argues in its brief (G. Brief) that, because

the Agency has not yet responded to Greenville’s Freedom of

Information Act (FOIA) requests, the Agency is “maliciously

withholding information” and should be sanctioned. (G. Brief at

2.) Greenville characterizes the Agency’s failure to respond as

a deliberate failure to comply with discovery requests. (G.

Brief at 3)

0139-0063

2

In addition, Greenville cites several cases in support of

the imposition of sanctions. (C. Brief at 2 and 3.) However,

the majority of these cases involve the Illinois Code of Civil

Procedure and not the Board’s procedural rules. Greenville

argues that the Illinois Code of Civil Procedure and the Illinois

Supreme Court Rules should be considered by the Board in order to

offer guidance pursuant to 35 Ill. Adm. Code 101.100(b).

In response to Greenville’s motion, the Agency in its brief

(A. Brief) argues that 35 Ill. Adm. Code 101.280 requires a

discovery attempt prior to the assessment of sanctions. It is

the Agency’s position that it did not refuse to comply with the

Board’s rules or any order of the Board or Hearing Officer. (A.

Brief at 12.) The Agency argues that Greenville has not

attempted discovery pursuant to the Board’s procedural rules.

(A. Brief at 12.) ~As for the FOIA request, the Agency argues

that FOIA contains its own provisions for appeal if a requesting

entity is not satisfied with the response it receives. (A. Brief

at 13, citing Ill. Rev. Stat., 1991, ch. 116, par. 210.)

The sanctions requested by Greenville are denied. 35 Ill.

Adm. Code 101.280 provides in part, “if any party or person

unreasonably fails to comply with any order entered by the Board

or the Hearing off icer...the Board will issue sanctions.” The

Board does not know of any Hearing Officer or Board order with

which the Agency has unreasonably failed to comply. The Board

also notes that it does not find the Illinois Code of Civil

Procedure or the Illinois Supreme Court Rules to be controlling

in this matter. The Board’s rules state expressly that the

parties may argue that the Illinois Code of Civil Procedure and

the Illinois Supreme Court Rules should be applied in absence of

a sDecific provision in the Board’s procedural rules which

governs a particular situation. (35 Ill. Adm. Code 101.100(b).)

In the instant case, sanctions and discovery are specifically

provided for in the Board’s procedural rules. (35 Ill. Adm. Code

101.260 and 101.261 and 101.280.)

Additionally, the Board points out that FOIA contains its

own provision for review and that it does not provide for an

appeal to the Board. Therefore, the Board finds that FOIA

request is improperly before it and that the Board lacks

jurisdiction to review the request.

The Agency in its brief (A. Brief) moves the Board to strike

petitioner’s exhibits #1, #2, #4, and #5. (A. Brief at 7.) The

Agency argues that exhibits #1 and #2 are FOIA requests which are

incorrectly characterized as discovery documents. (A. Brief at

B.) In addition, the Agency argues that exhibits #4 and #5 were

not part of the Agency’s Record or in the Agency’s possession

prior to its final determination. (A. Brief at 9.) Greenville

did not directly respond either at hearing or in its post hearing

brief to the Agency’s motions to strike.

01 39-OO6l~

3

The Board finds that petitioner’s exhibits #1, #2, #4, and

#5 are not relevant to this proceeding. The exhibits were not

part of the Agency record or in the Agency’s possession prior to

its final eligibility determination. The scope of the Board’s

review is limited to the material relied upon by the Agency in

making its decision. (See, Alton Packagina Corn. v. PCB, 162 Ill.

App. 3d 731, 516 N.E. 2d 275, 280 (5th Dist. 1987); and çj~f

Chemical Services. Inc. v. IEPA, (July 11, 1991), PCB 89—177.)

Therefore, the Board grants the Agency’s motion and strikes

petitioner’s exhibits #1, #2, #4, and #5.

BACKGROUND

The Agency record (R.) establishes that a release of fuel

occurred at the Greenville Airport early in the morning on. May

30, 1991. (R. at 000002 and 000051.) The Record and the

testimony at hearing establish that the release occurred after a

plane was refueled. (R. at 000051 and Tr. at 42 and 48) The

fuel pump was not turned off after the refueling and when the

fuel hose ruptured the pump turned on and released 1,500 gallons

of fuel onto the asphalt apron at the airport. (R. at 000051 and

Tr. at 42 and 48.) The asphalt apron is described in the

testimony of Thomas Meyer, Chairman of the Greenville Airport

Authority, as the area where the planes are parked. (Tr. at 42)

On July 15, 1992 Greenville submitted its application for

reimbursement of corrective action costs. (R. at 48) On August

14, 1992, the Agency returned Greenville’s application because it

was incomplete. (R. 48.) On August 27, 1992, Greenville

resubmitted its application. (R. 49.) On September 11, 1992 the

Agency denied the application, stating the release was not

eligible for reimbursement under the UST Fund. (R. at 66 and

67.) The Agency’s letter explained that reimbursement was

denied because the release was from a broken fill hose and not

from an underground storage tank. (R. at 67.) Greenville filed

a petition for review with the Board on October 2, 1992.

ISSUES

The facts in this case are not disputed. The question

before the Board is whether a release of fuel from a ruptured

pump hose and nozzle is covered by the Fund.

Greenville in its post hearing brief argues that the

Agency’s interpretation that a release from a broken hose does

not constitute a release from an underground storage tank is

narrow and that it conflicts with Section 2(b) and (C) of the Act

which require that the Act be liberally construed. (G. Brief at

6 and 10.) Additionally, Greenville argues that it does not make

sense to arbitrarily distinguish between a release from a UST and

0139-0065

4

a release from a UST via a broken pressurized fuel delivery pipe.

(G. Brief at 12.)

In contrast to Greenville’s arguments, the Agency in its

post hearing brief asserts that a release of fuel from a ruptured

above—ground hose is not a release as defined in Section

22.18b(a) (3) of the Act. (A. Brief at 3.) The Agency contends

that the ruptured filler hose is, in fact, ancillary equipment

which is separate and distinct from the UST to which it is

attached. (A. Brief at 4 and 5.)

Greenville also argues that the Agency’s interpretation of

the statute would remove contamination from spills through the

nozzle from the corrective action requirements and various

regulations in the UST statutes. (G. Brief at 13 and 15.)

Greenville further argues that the Agency’s interpretation of

what constitutes a release ~rom an UST is contrary to United

States Environmental Protection Agency’s interpretation of the

federal UST regulations. (G. Brief at 14 and 15.)

In its brief, the Agency also contends that a plain

reading of the UST regulations set out at 35 Ill. Adm. Code

731.112 leads to the conclusion that a filler hose is not in fact

an UST or an underground pipe. (A. Brief at 6.) The Agency

asserts that references to the associated piping and ancillary

equipment in the definition of the underground storage tank

include the term “underground”. Thus, the Agency argues, a

release from a filler hose which is attached to a pipe sticking

two feet out of the ground does not qualify for reimbursement

because it is not a release from an UST. (A. Brief at 4-6.)

In addition, Greenville in its brief argues that the recent

Board decisions in Harlem Township v. IEPA (October 16, 1992),

PCB 92—83, motion for reconsideration denied January 7, 1993, and

Ramada Hotel. O’Hare v. IEPA, (October 29, 1992), PCB 92-87,

motion for reconsideration denied January 7, 1993, should not

apply to this case. (G. Brief at 6.) Greenville argues that the

previous decisions are distinguishable because the cases involved

releases from an above—ground dispensing hose and above—ground

fuel pump. (G. Brief at 6.) Greenville maintains that in the

instant case, the release was from a flexible hose attached to

the fuel nozzle which is an integral part of a pressurized

underground storage tank system. (G. Brief at 5 and 6.) In its

brief, the Agency argues that the Board’s decisions in Harlem and

Ramada, taken together with relevant portions of the Act,

indicate that a release, such as the one in this case, was not

intended to be covered by the Fund. (A. Brief at 4.)

Greenville also contends that the Agency has changed its

position on releases in that the Agency previously maintained

that spillage during vehicle filing was a release from an UST in

Sparkling Springs Mineral Water Co. v. IEPA, (May 9, 1991), PCB

0139-0066

91—9, and now maintains that an accidental release of the type

the petitioner suffered is not reimbursable from the Fund.

(G. Brief at 7 and 8.) However, the Agency notes in its brief

that the issue in Sparkling Springs was the application of the

deductible and that Greenville’s reliance on the case is

misplaced. (A. Brief at 7.) The Agency also argues that it may

not reimburse an owner or operator for corrective action costs

unless the release of fuel is from an underground storage tank.

(A. Brief at 15.)

Finally, Greenville contends that the Agency should have

turned over to the Attorney General’s (AG) office Greenville’s

notification that it paid $47,026.71 as a result of litigation

regarding the fuel spill. (G. Brief at 17.) Greenville argues

that under Section 22.18(b) (e) (1), the Agency is required to

forward a copy of an indemnification request to the AG’S Office

if the petitioner has fully complied with the requirements in

Section 22.18b(d)(4). (G. Brief at 17.) Greenville states in

its brief that it has fully complied with Section 22. 18b(d) (4).

(G. Brief at 18.)

On the other hand, the Agency argues that Greenville is

barred from raising the issue of indemnification now because it

failed to raise the issue prior to the Agency’s final eligibility

determination. (A. brief at 9.) Additionally, the Agency points

to previous decisions by the Board which state that it is the

Agency denial letter which frames the issues on appeal. (A.

Brief at 9.) In its brief, the Agency argues that the Agency

record does not show any requests by Greenville for

indemnification as required by Section 22.18b(e)(1) of the Act.

(A. Brief at 10.) Finally, the Agency argues that it did not

construe Greenville’s notification of the litigation as a request

for indemnification. (A. Brief at 10.)

DISCUSSION

Reimbursement from the UST Fund is allowed for corrective

action resulting from a release of petroleum from an underground

storage tank. (Section 22.18b(a)(3) of the Act.) It is

undisputed that there was a release of petroleum; however, the

question remains whether Greenville is entitled to Fund

reimbursement for corrective action in response to an above

ground release as occurred here. In addition, the question of

whether or not Greenville is entitled to indemnification also

remains. The Board will first address the question of

indemnification.

In prior decisions, the Board has held that it is the

Agency’s denial letter which frames the issues on appeal. (See,

Centralia 

IEPA, (May 10, 1990), PCB 89—170; City of

MetroPolis v. IEPA, (February 22, 1990), PCB 90—8; and Paul

0139-0067

Rosman 

IEPA, (December 19, 1991) PCB 91-80.). In the instant

case there is no evidence in the record that Greenville requested

indemnification prior to the Agency’s final eligibility

determination. The Board finds that here, where the issue was

not raised below and is not in the Agency letter, Greenville may

not raise indemnification for the first time on review.

The Board now moves to the issue of whether Greenville is

entitled to reimbursement from the Fund for the corrective action

it took in response to ar. above—ground fuel release. The Board

does not find Sparkling Spring to be controlling on determining

the eligibility of a release of petroleum from a pump nozzle.

The issue before the Board in Sparkling SPring was the amount of

the deductible. The source of contamination was not at issue.

The Board does find Harlem Township v. IEPA and Ramada

Hotel. O’Hare v. IEPA cases, with similar fact patterns to the

instant case, to be controlling. The Board held in both cases

that a release from an above—ground pump nozzle was not eligible

for reimbursement from the UST Fund.

The reason for the nozzle release in Harlem was unknown, but

was most likely a result of vandalism. 

(u.,

at 1—2.) In

Harlem, an employee of Harlem Township arrived at work to find

the gate open and the shop door unlocked. The employee also

found a puddle of fuel near the pumps. In addition, the employee

noticed a nozzle from the fuel pump laying on the ground in an

unlocked position on the ground. The pump motor was burned out

and fuel was no longer discharging from the nozzle. 

(a.)

In Ramada, it was believed that the release of diesel fuel

occurred as a result of overfilling of Ramada’s buses. (Ramada

at 1.) Neither Ramada nor the Agency were completely sure of

what caused the release. However, to the best of anyone’s

knowledge, the release was caused by an overflow release

mechanism which malfunctioned when an employee was filling a

vehicle. 

(n.)

The Board in Harlem determined that the pump and the pump

nozzle are not part of an underground storage tank as it is

defined by the Act. 

(u.,

at 4.) Additionally, the Board

explained that a pump system is not a tank or part of the

underground pipes connecting the tank. 

(a.)

The Board went on

to state:

...if the statute is read as limiting reimbursement to

leaks from underground tanks and underground

interconnecting piping only, the release from the pump

nozzle would not be eligible for reimbursement from the

fund because the pump is not part of the underground

storage tank or underground piping. 

(L~.)

0139-0068

7

The Board did not find in Harlem, nor did it find in Ramada,

any authority to suggest that the Board’s interpretation was

contrary to the federal interpretation of the UST regulations.

(Harlem, at 6, and Ramada at 4.) Additionally, the Board did not

believe that it was contrary to the intent of the statute or the

intent of the UST Fund to hold that corrective action in response

to a release from an above ground nozzle is not reimbursable from

the UST Fund. (Harlem at 6, and Ramada at 4.)

The Board is not persuaded by Greenville’s argument that the

above—ground filler hose is part of the underground storage tank.

Despite the fact that Greenville argues that the release in this

case is different from that in Harlem or Ramada because

Greenville’s UST system is an integrated pressurized system, the

release still came from an above ground source. To be eligible

to access money from the Fund, the release must be from an

underground storage tank. Thus, the Board finds that a release

of fuel from a ruptured filler hose is not eligible for

reimbursement. Accordingly, the Board affirms the Agency’s

September 11, 1992, determination that a release of fuel from the

filler hose is ineligible for reimbursement from the underground.

storage tank fund.

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

For the reasons stated in the above opinion and order, the

Board affirms the Agency’s, September 11, 1992, denial of

reimbursement to the Greenville Airport Authority from the

Underground Storage Tank Fund.

IT IS SO ORDERED.

J. Theodore Meyer dissented.

Section 41 of the Environmental Protection Act

(Ill.Rev.Stat. 1991, Ch 111 1/2, par. 1041) provides for appeal

of final orders of the Board within 35 days. The rules of the

Supreme Court of Illinois establish filing requirements. (But

see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration,

and Castenada 

Illinois Human Rights Commission (1989), 132

Ill. 2d 304, 547 N.E2d 437.)

0139-0069

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certifL~hat the above

opij3ion and order was

adopted on the  4~ day of _____________________, 

1993,

by a vote of ___________________.

DorothyM. G~n,

Clerk

Illinois PoJ~ition Control Board

o~t39007O