ILLINOIS POLLUTION CONTROL BOARD
    March 14,
    1991
    A.K.A.
    LARD,
    INC.,
    )
    Petitioner,
    )
    v.
    )
    PCB 90—177
    (UST Reimbursement)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Respondent.
    SUPPLEMENTAL STATEMENT
    (by R.C. Fleinal):
    The fundamental issue raised in this matter is whether
    Petitioner,
    and other persons similarly situated,
    are subject to
    the provisions of the State and federal UST regulations.
    Clearly
    they must be.
    Otherwise major portions of both UST programs
    would be rendered meaningless.
    The immediate difficulty is how to reconcile this conclusion
    with the unfortunately foggy definitions of “owner” and
    “operator”
    found in the two programs.
    I believe that today’s majority Opinion correctly
    articulates why a person such as Petitioner is an operator for
    the purposes of the UST regulations.
    However,
    I do not believe
    that it sufficiently explores why Petitioner is also (or
    alternatively)
    an owner for UST purposes.
    The fact that ownership is transferable has not been
    addressed in the Opinion.
    As the Illinois Environmental
    Protection Agency
    (“Agency”)
    states in its “Memoranda in Response
    to an Interim Order” filed February 19,
    1991:
    The Agency maintains that UST5 are fixtures.
    When land
    in purchased and title passes to the new owner, the
    fixtures associated with the land are also purchased
    and their title also passes, unless there is clear
    proof to the contrary.
    Agency Memoranda at
    1.
    Certainly an argument can be made that the USTs are articles
    which are in the nature of personalty that have been so annexed
    to the realty that they are regarded as part of the land.
    (See
    Leawood National Bank of Kansas City v. City National Bank
    &
    Trust Company of Kansas City,
    (No. App.)
    474 S.W.
    2d 641
    (1971),
    on fixtures; and Atlantic Refining Co.
    v.
    Feinberg,
    112 A.
    685
    (1920), where gasoline pump and tanks were held to be fixtures).
    120—63
    —2—
    The fact that USTs are transferable with real property has
    also been recognized by the Illinois legislature in the
    Responsible Property Transfer Act
    (Ill. Rev. Stat.
    1989 ch.
    30,
    par. 901 et seq.).
    That Act defines real property thusly:
    “Real Property” means any specific and identifiable
    parcel of land,
    including improvements thereon, located
    within the State of Illinois
    *
    *
    *
    which:
    *
    *
    *
    (2) has underground storage tanks which
    require registration with the State Fire
    Marshall.
    If USTs were not meant to be considered transferable with a
    parcel of land, then why did the legislature include USTs in this
    definition
    in an Act which specifically covers notice
    requirements for transferability of real property?
    I believe the
    majority Opinion misses the aspect of ownership of USTs as
    transferable,
    and would have addressed this issue before making
    any determination that ATh was not an owner of the tanks in
    question.
    Whether the legislature intended to so restrict the
    basic principles of transfer of ownership when including the
    Resource Conservation and Recovery Act definition of owner
    (42
    U.S.C.
    6991)
    at Section 22.18
    of the Environmental Protection Act
    remains an open question.
    onald C.
    Flemal
    Board Member
    I,
    Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Supplemental Statement was
    submitted on the
    ~
    day of
    _____________________,
    1991.
    ~.
    Dorothy M. ,~1inn, Clerk
    Illinois PdJ/lution Control Board
    120—64

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