ILLINOIS POLLUTION CONTROL BOARD
    October 29,
    1992
    RAMADA HOTEL,
    O’HARE,
    )
    )
    Petitioner,
    v.
    )
    PCB 92—87
    )
    (Underground Storage Tank
    Fund
    ILLINOIS ENVIRONMENTAL
    )
    Reimbursement Determination)
    PROTECTION AGENCY,
    )
    Respondent.
    ORDER OF THE BOARD
    (by J.C. Marlin):
    This matter is before the Board on a September 11, 1992
    motion for summary judgment filed by Ramada Hotel O’Hare
    (Ramada)
    and a cross-motion for summary judgment filed by the Illinois
    Environmental Protection Agency
    (Agency) on October 7,
    1992.
    Both motions for summary judgment were filed pursuant to 35 Ill.
    Adm. Code 101.244.
    The Agency filed a response to Ramada’s
    motion for summary judgment on October
    7,
    1992 and Ramada filed a
    response to the Agency’s motion on October
    9,
    1992.
    This case
    involves a petition for review of the Agency’s denial of
    eligibility for reimbursement from the Underground Storage Tank
    Fund
    (UST Fund)
    filed by Ramada on June 4,
    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.
    1022.18b(g)
    and 1040.
    A release of petroleum occurred at a
    garage facility operated by Ramada in the city of Rosemont, Cook
    County,
    Illinois on June 20,
    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.
    BACKGROUND
    On June 20,
    1990 a release of diesel fuel occurred as a
    result of overfilling of Ramada’s buses.
    (Pet.
    at 1.)
    Neither
    the petitioner nor the Agency are completely sure of what caused
    the release.
    Robert
    A.
    Patrick, Ramada’s Vice President of
    Technical Services, North kmerican\Caribbean Division, stated in
    a letter to the Agency, that he did not know exactly what had
    caused the release.
    Patrick went on to write that, to the best
    of his knowledge, the release was caused by an overflow release
    mechanism which malfunctioned when an employee was filling a
    vehicle.
    (Agency Rec. at 29.)
    A passerby smelled the fuel and
    reported it to the police who then found a release at the Ramada
    property.
    (Agency Rec. at 29.)
    On January 27,
    1992 Ramada submitted its application for
    0
    37-OC
    2
    reimbursement of corrective action costs.
    (Pet. at 2.)
    On May
    4,
    1992 the Agency denied the application, stating the release
    was not eligible for reimbursement under the
    TJST Fund.
    (Agency
    Rec.
    at 30.)
    The Agency’s letter explained reimbursement was
    denied because above ground pumps are not included in the
    definition of underground storage tanks.
    (Agency Rec. at 30.)
    Thus,
    the Agency reasoned releases from nozzles are not
    reimbursable under the act.
    (Agency Rec.
    at 30.)
    Ramada filed a
    petition for review with the Board on June 4,
    1992.
    ISSUE
    Summary judgment will be granted where there is no genuine
    issue of material fact and the moving party is entitled to
    judgment as a matter of law.
    (ESG Watts.
    Inc.
    v. IEPA (August
    13,
    1992), PCB 92—54;
    Sherex Chemical v.
    IEPA (July 30,
    1992),
    PCB 91—202;
    Williams Adhesives.
    Inc.
    v.
    IEPA (August 22,
    1991),
    PCB 91-202.)
    The facts are not disputed in this matter.
    Thus,
    the sole issue of law before the Board is whether corrective
    action taken in response to a nozzle related release of petroleum
    is eligible for reimbursement from the UST Fund.
    Ramada,
    in its memorandum in support of its motion for
    summary judgment
    (Memo),
    argues that,
    “the Act does not
    artificially distinguish between nozzle-related releases and
    other releases from an UST.”
    (Memo at 5.)
    In addition, Ramada
    argues that there is nothing in the act which specifically
    excludes spills or overflows from pumps or nozzles.
    (Motion at
    5)
    In its memorandum,
    Ramada contends that the Agency has
    changed its position 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
    91-9.
    (Memo at 5.)
    Ramada further argues 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.
    (Memo at
    4.)
    Ramada argues
    that the Act is to be liberally construed and that interpretation
    of the statute to include releases from the pump nozzle is
    consistent with the express purpose of the Act.
    (Memo at 12-13.)
    Ramada’s memorandum 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.
    (Memo at 9.)
    Ramada further
    argues that the Agency’s interpretation of what constitutes a
    release from an UST is contrary to USEPA’s interpretation of the
    federal UST regulations.
    (Memo at 9.)
    In its cross-motion for summary judgment and response to
    Ramada’s motion for summary judgment
    (Resp.), the Agency notes
    that the issue in Sparkling Springs was the application of the
    deductible and that Ramada’s reliance on the case is misplaced.
    0! 37-0060
    3
    (Resp.
    at
    15.)
    The Agency also argues that it may not reimburse
    an owner or operator for corrective action costs unless the
    release of petroleum is from an underground storage tank.
    (Resp.
    at 9.)
    In its response, the Agency contends that a plain
    reading of the UST regulations set out at 35 Iii.
    Adm. Code
    731.112 leads to the conclusion that a nozzle is not in fact an
    UST or an underground pipe.
    (Resp.
    at 12.)
    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
    nozzle does not qualify for reimbursement because it is not a
    release from an UST.
    (Resp. at 12-13.)
    The Agency also argues
    that there
    is no lack of authority to clean-up spills based on
    its interpretation of what releases are eligible for
    reimbursement costs for corrective action.
    (Resp.
    at 19.)
    Finally, the Agency points out that there is no federal
    equivalent to the Illinois UST Fund.
    (Resp. at 20.)
    Therefore,
    the Agency argues, Ramada’s concern about how the definition of a
    release and liST will affect other liST regulations are unfounded.
    (Resp.
    20.)
    The Agency explains, the present issue centers on
    eligibility for reimbursement from the Illinois UST Fund.
    (Resp.
    20.)
    DISCUSSION
    Reimbursement from the liST 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 Ramada is entitled to relief as a matter
    of law.
    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 Spark1in~SprincT was
    the amount of the deductible.
    The source of contamination was
    not at issue.
    The Board does find Harlem Township v.
    IEPA,
    a case with a
    similar fact pattern to the instant case, to be controlling.
    (Harlem Township v.
    IEPA (October 16,
    1992), PCB 92—83.)
    The
    Board in Harlem held that a release from an aboveground 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.
    (j~.)
    U ~37-UQ6
    I
    4
    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.
    (a.,
    at 4.)
    Additionally, the Board
    explained that a pump system is not a tank or part of the
    underground pipes connecting the tank.
    (u.)
    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.
    (~j~.)
    The release at issue in the instant case and in Harlem was from
    the nozzle of a fuel pump located above ground level.
    The Board does not find
    in this case, nor did it find in
    Harlem, any authority to suggest that the Board’s interpretation
    is contrary to the federal interpretation of the UST regulations.
    (j~.,
    at
    6.)
    Nor does the Board believe that it is 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
    liST Fund.
    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
    the underground storage tank.
    Therefore,
    a release of petroleum
    from the pump or the pump nozzle are not eligible for
    reimbursement.
    The Board affirms the Agency’s May 4,
    1992,
    determination that a release of petroleum from the pump nozzle is
    ineligible for reimbursement from the underground storage tank
    fund.
    Ramada’s motion for summary judgment is denied.
    The
    Agency’s cross—motion for summary judgeinent is hereby granted.
    The result of this ruling is that this docket is closed.
    IT IS SO ORDERED.
    Board Members J. Theodore Meyer and Michael Nardulli
    dissented.
    Section 41 of the Environmental Protection Act
    (Ill.Rev.Stat.
    1991,
    Ch Ill 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 35 111.
    Adm. Code 101.246, Motions for Reconsideration,
    and Castenada
    V.
    Illinois Human Rights Commission
    (1989),
    132
    Ill.
    2d
    304,
    547 N.E.2d
    437.)
    UI
    3;~-UO62
    5
    I, Dorothy M. Gunn, Clerk of the Il~inoisPollution
    Control Board, hereby c~rtifythat the abov,e ~~n~ion and order
    was adopted on the
    ~T~T~-
    day of ______________________
    1992, by a vote of
    __________________
    Dorothy H. ~nn,
    Clerk
    Illinois Po~utionControl Board
    01 ~7-O063

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