ILLINOIS POLLUTION CONTROL BOARD
October 16,
1992
HARLEM TOWNSHIP,
Petitioner,
PCB 92—83
v.
)
(Underground Storage Tank Fund
)
ReimburseNentDeterminat
ion)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
Respondent.
NANCY
MINDRUP
APPEARED
ON
BEHALF
OF
THE
PETITIONER,
HARLEM
TOWNSHIP;
DANIEL MERRIMAN APPEARED ON BEHALF OF THE RESPONDENT,
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD
(by B. Forcade):
This matter is before the Board on a “Petition for Review of
Agency Decision” filed by Harlem Township on June 2,
1992,
pursuant to Sections 22.18b(g) and 40 of the Illinois
Environmental Protection Act (Act).
(Ill. Rev. Stat 1991,
ch.
111
1/2, par.
1022.l8b(g) and 1022.40.)
A release of petroleum
occurred at a garage facility operated by Harlem Township,
located in Winnebago County, Illinois.
The petition seeks review
of the Environmental Protection Agency’s
(Agency) determination
that the release is ineligible for reimbursement because it is
not associated with an UST (underground storage tank)
system.
A hearing
was held on August 18,
1992 in Machesney Park,
Illinois.
The parties did not file final briefs but relied on
closing arguments at hearing.
On September 10,
1992, Ramada Hotel,
O’Hare (Ramada)
filed a
“Notion for Leave to Submit an Ainicus Curiae Brief”.
On
September 28,
1992, Harlem Township filed a response in support
of the ainicus brief.
Harlem Township in its response requests
the Board to deem the amicus curiae brief submitted by Ramada to
have been adopted by Harlem Township.
The Agency filed its
response on September 29,
1992, along with a motion to file the
response instanter.
The Board grants the above motions and
accepts the above filings.
BACKGROUND
On April
22,
1991,
Charles Brockman, an employee of the
Harlem Township road commission, noticed signs that a release of
petroleum from the fuel pump had occurred over the weekend.
Upon
arriving at work that morning he noticed that the gate was open,
the shop door was unlocked and there was
a puddle by the fuel
0136-0389
2
pumps.
(Tr. at 7—9.)
He also noticed one of the nozzles from the
fuel pump in an unlocked position laying on the ground.
(Tr. at
9.)
No gasoline was being discharged from the nozzle at the time
because the pump had burned out.
(Tr. at 10-11.)
The area where the pump is located is gravel and grass with
biacktop~around~it. (trr. ~
swit~1Ftoacti1ate the~
is located in the shop.
(Pr. at 16.)
A police report was filed
on the incident.
(Tr. at 20,
R. at 49.)
Vandalism is suspected
but no arrest has been made.
(Pr. at 21.)
Harlem Township
estimates that approximately 450 gallons of gasoline were
released from the pump.
(Tr. at 12.)
The pumps and tanks were subsequently pulled and the site
remediated.
(Tr. at 21.)
Harlem Township filed an application
with the Agency for reimbursement from the underground storage
tank fund on February 28,
1992.
(R. at 9.)
The Agency denied
reimbursement because the release is not a release from an
underground storage tank system.
(R. at 56, Pr.
at 34.)
ISSUE
The facts are not disputed in this matter.
The question
before the Board
is whether a release of gasoline from a pump
nozzle is covered by the liST reimbursement fund.
Harlem Township argues that pumps or pump nozzles are not
specifically excluded from the definition of underground storage
tank.
Harlem Township further argues that if the intent had been
to exclude them they would have been listed as a specific
exclusion.
Additionally, Harlem Township argues that the
definition of underground storage tank system at 35 Iii. Adm.
Code 731.112
includes containment system and the pump and pump
nozzle are part of the containment system.
Harlem Township also
references language from the Agency’s guidance manual in support
of its argument.’
The Agency asserts that references to the associated piping
and ancillary equipment in the definition of underground storage
tank includes the term ‘underground’.
The Agency argues that the
customary and ordinary meaning should be applied to underground
and therefore the pump and pump nozzle would not be part of the
underground storage tank.
In platolene 500 v. IEPA (May 7,
1992),
PCB 92—9, the
Board held that the guidance manual has no legal or regulatory
effect in proceedings before the Board and that the Board is not
bound by the guidance manual.
Therefore, the Board will not
consider the arguments that rely upon the guidance manual.
0136-0390
3
Harlem Township,
in response to the Agency’s argument,
contends that underground is not used to describe containment
system.
It further argues that some of the listed exclusions of
underground storage tank include equipment that is located above
ground
(surface impoundment, pit, pond or lagoon).
The amI~uS
CUr1ae~br1ef~conte~ds -~that~the—Agency-hae
-changed
its position,
in that the Agency previously maintained that
spillage during vehicle filling was a release from an UST in
S~arkliriaSprings Mineral Water Co.
•v. IEPA (May 9,
1991), PCB
91—9.
(Am. Br.
at 3.)
The brief further points out that the
danger to human health and the threat to the environment are the
same irrespective of whether the petroleum is released from the
nozzle or leaks from the underground tank.
(Am. Br. at 4.)
The
Amicus states that the Act is to be liberally construed and
interpreting the statute to include releases from the pump nozzle
is consistent with the express purpose of the Act.
(Am. Br. at
5.)
The brief further argues that the Agency’s interpretation of
the statute would remove contamination from spills though the
nozzle from the corrective action requirements and various
regulations in the liST statutes.
(Am. Br. at 7.)
The amicus
further argues that the Agency’s interpretation is contrary to
USEPA’s interpretation of the Federal
liST. Regulations and could
jeopardize federal dollars.
(Am. Br.
at 8.)
The Agency in its response interprets the language in the
statute and regulations defining UST and liST system to not
include the pump nozzle and therefore concludes that a release of
petroleum from the nozzle is not eligible for reimbursement from
the fund.
(Resp. at 10-il.)
The Agency references the
regulations of the Office of the State Fire Marshal
(OSFM)
regulating gasoline storage tanks.
(Resp.
at 11.)
The Agency
states that the OSFN regulations draw a clear distinction between
USP5 or liST systems and the dispensing unit.
(Resp at 12.)
The
Agency notes that the issue in Sparkling Springs was the
application of the deductible and that Ramada’s reliance on
Sparklina SPrings is misplaced.
(Resp.
at 13—14.)
The Agency
contends that its interpretation is consistent with USEPA’s
interpretation.
(Resp. at 15.)
The Agency further notes a
distinction between the liST fund reimbursement provisions, and
the clean-up provisions of the Act.
(Resp. at 15.)
The Agency
maintains that its interpretation is consistent with the
specified intent of the Act and the liST reimbursement fund.
(Resp. at 16.)
The Agency also contends that a narrow
construction will preserve ta9ayer funds and ensure continued
availability of reimbursement.
2
The Board has previously found that the Agency does not
have the authority to determine reimbursement based on the
sufficiency of the fund.
(See City of Roodhouse v. IEPA
(September 17,
1992), PCB 92—31.
0136-0391
4
DISCUSSION
Reimbursement from the 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~wasa- reiease-of~petroteumfhoWeverthe qtiestioh remainS
whether the release was from an underground storage tank.
Section 22.18(e) (1) (A) of the Act states that “underground
storage tank” shall have the same meaning as in Subtitle I of the
Hazardous Solid Waste Amendments of 1984
(P.L. 98—616), of the
Resource Conservation and Recovery Act of 1976
(P.L.
94-580).
Underground storage tank is defined in the Board’s regulations in
Section 731.112 as “one or a combination of tanks
(including
underground pipes connected thereto) which is used to contain an
accumulation of regulated substances, and the volume of which
(including the volume of underground pipes connected thereto)
is
ten per centum or more beneath the surface of the ground.”
The
regulations then proceed to list several exclusions from the
definition of underground storage tank.3
The pump and the pump nozzle are not an underground storage
tank.
The pump system is not a tank or part of the underground
pipes connecting the tank.
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.
While the Act references “release from an underground
storage tank”, the Agency denied eligibility on the basis that
the release was not from an “UST system.”
The parties in their
arguments do not make a distinction between the underground
storage tank and an underground storage tank system and often
discuss the two terms interchangeably.
However, even if
reimbursement was extended to include a release from an UST
system,
a release from the pump nozzle would be ineligible for
reimbursement.
The Board’s regulations define an “UST system” or “tank
system” as “an underground storage tank, connected underground
piping, underground ancillary equipment, and containment system,
if any.”
(Section 731.112.)
In addition to the liST tank (tank
and underground piping) the UST system also includes underground
ancillary equipment and any containment system.
~ The definition and exclusions found in the Board’s
regulations are identical to the federal definition of
underground storage tank and exclusions found at 40 CFR 280.1.
0136-0392
5
Ancillary equipment is defined at Section 731.112 as “any
device including but not limited to,
such devices as piping,
fittings,
flanges, valves, and pumps used to distribute, meter or
control the flow of regulated substances from an UST.”
The fuel
pump and pump nozzle satisfy the definition of ancillary
equipment.
It is the function of the fuel pump to control and
meter~the flow
~gaso1ine~for
distrtbtition.
The~pumpàhd~pümp
nozzle are located above ground level and are not underground
ancillary equipment included in the definition of UST system.
The Board’s rules and regulations on USTs do not provide a
definition of containment system4.
Because containment system is
not specifically defined it must be given its ordinary meaning.
A containment system holds or retains a substance.
The pump and
pump nozzle do not constitute part of the containment system.
While the pump and pump nozzle do contain product, the function
of these parts is to regulate the flow of the product for
distribution.
It is not the function of the pump nozzle to
contain the contents of the tank.
The Board also finds that for a containment system to be
part of a liST system it must be at least partially located
underground.
To hold otherwise would be contrary to the
prevailing emphasis on underground systems found in the
regulations.
To hold that an aboveground tank or piping system
is part of a liST system on the basis that it is a containment
system would place equipment that is located totally above ground
into the liST system.
Many of the definitions and provisions
found in the regulations clearly exclude above ground items.
The
Board finds no reason why the limitation of underground would not
apply to the containment system.
The release at issue was from the nozzle of a fuel pump
located above groundlevel.
The release of petroleum was from
ancillary equipment located above ground.
The regulation
specifically includes only the ancillary equipment located
underground as part of the UST system.
Ancillary equipment that
is not located underground is not part of the UST system.
The
release from the pump was not a release from an UST system.
Therefore, even if reimbursement was allowed for a release from a
UST system, a release from the pump nozzle would not be eligible
for reimbursement.
The Board does not find Sparkling Springs to be controlling
on determining the eligibility of a release of petroleum from a
~ The federal UST regulations provide the requirements for
secondary containment systems in 40 CFR 280.42(b) (1).
0136-0393
6
pump nozzle.5
In its original application Sparkling Springs
noted that the tanks were removed because of leakage.
In an
amended application Sparkling Springs identified the release as a
product overfill.
At hearing testimony was presented that there
was spillage and overfill from both the filling of the UST and
filling the delivery trucks.
The Board stated that “regardless
of which version-of events -is -a-pplied—it-s
-
-deductible--remains --the
same.”
The eligibility determination in Sparklinc~Springs would
not have been altered by a finding that a release from the pump
nozzle were ineligible for reimbursement.
The reported source of
contamination also involved overfills on filling the UST tank.
Any implication in Sparkling SPrings that spills from the filling
of vehicles were eligible for reimbursement was dicta and is not
controlling.
Based on the Board’s review of the statute and
regulations pertaining to USTs the Board finds such implication
in error.
The Board is likewise not persuaded by the other arguments
presented in the amicus curiae brief.
The Board agrees that the
effects on the environment and human health are the same whether
the release is from a leak in the tank or from the nozzle.
However, the Board notes that the Act allows for reimbursement
for certain activities,
not for all environmental consequences.
Additionally the Board notes that the Act denies reimbursement
from the fund in other cases where the same environmental effects
are found
(i.e.,
unregistered tanks, failure to notify ESDA and
exempt fuels).
The Board does not find any authority to suggest that the
Board’s interpretation is contrary to the federal interpretation
of the UST regulations.
Nor does the Board believe that this
interpretation is contrary to the intent of the statute or the
intent
of
the
UST
fund.
Where
the
federal
regulations
discuss
spills
and
overf ills
these incidents appear to be limited to the transfer of product
to the UST system.
(40 CFR 280.20(c).)
The explanatory opinion
accompanying the USEPA’s adoption of the federal UST regulations
in discussing spills and overfills notes that:
.there is an even more prevalent source of release
that takes place at the tank fill port during filling.
Although usually small in volume,
spill and overfill
releases are probably the most common causes of
releases from UST systems.
*
**
~ The issue before the Board in Sparkling SPrings
was the amount of the deductible.
The source of contamination
was not at issue.
01 36-039~4
7
Spills most often occur at the fill pipe opening when
the delivery truck’s hose is disconnected, usually
releasing only a few gallons
Overfills generally
result from a release from loose or nonoperational
components located above the tanks...., or from the
tank’s vent pipes as product is forced out during
overfilling -the system;
53 Fed. Reg. 185, 37090
(1988)
The regulations appear to extend the liST regulations to include
the fill port and cover releases that occur while filling the
UST.
While the regulations expressed a concern for releases on
filling the tank,
the regulations do not expressly mention
releases during the transfer of product from the liST.
While the
Board recognizes that releases frequently occur from the pump
nozzle, the Board does not find an intent in the regulations for
releases from the pump nozzle to be covered by the UST
regulations.
In Illinois, the Office of the State Fire Marshal
(OSFI4)
regulates gasoline storage tanks under the auspices of the
Gasoline Storage Act
(Ill. Rev. Stat.
1991,
ch.
127 1/2, par.
152.1
-
159).
The OSFM regulations on the “storage,
transportation, sale and use of petroleum and other regulated
substances” are found at 41 Ill. Adm. Code Part 170.
Similar
definitions and provisions are found in the OSFM’s regulations,
the Board’s regulations and the federal regulations.
The OSFN
regulations contain provisions on the registration,
installation,
leak detection,
leak reporting,
repair, etc.
The OSFM
regulations also contain separate provisions on the dispensing of
gasoline or other regulated substances from USTs.
The OSFM
regulations draws a distinction between UST systems and the
dispensing system.
While not controlling, the OSFM regulations
buttress the Board’s conclusion.
Dispensing systems are not regulated under the federal UST
regulations or the Board’s regulations.
OSFM is authorized to
regulate the storage of petroleum and provides separate
provisions on UST systems and dispensing equipment.
The fact
that the federal and Board regulations do not mention dispensing
systems or the transfer of petroleum from the liST system implies
that this area was not intended to be covered by the liST
regulations.
The fact that the OSFM regulations cover dispensing
equipment and liSTs in separate provisions supports the conclusion
that the pump nozzle is not part of the UST system.
CONCLUSION
To be eligible to access funds from the underground storage
tank fund the release must be from an underground storage tank.
The above ground dispensing pump and pump nozzle are not part of
0136-03-95
8
the underground storage tank.
Therefore,
a release of petroleum
from the pump or the pump nozzle are not eligible for
reimbursement.
This opinion constitutes the Board’s finding of fact and
conclusions of law in this matter.
ORDER
The Board affirms the Agency’s determination that a
release of petroleum from the pump nozzle is ineligible for
reimbursement from the underground storage tank fund.
IT IS SO ORDERED.
Board Members J. Theodore Meyer and M. Nardulli 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 v.
Illinois Human Rights Commission
(1989),
132 Ill.
2d
304,
547 N.E.2d 437.)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify ~at
the above opi
on and order was
adopted on the _____________day of________________________
1992, by a vote of
..6—
.~
Dorothy N.
/
n, Clerk
Illinois P0
ution Control Board
0136-0396
