ILLINOIS POLLUTION CONTROL BOARD

February 28,

1991

ROCKFORD DROP FORGE

)

COMPANY,

)

Petitioner

)

)

v.

)

PCB 90—46

(Underground Storage

ILLINOIS ENVIRONMENTAL

)

Tank Reimbursement)

PROTECTION AGENCY,

)

)

Respondent.

ORDER OF THE BOARD

(by M.

Nardulli):

This

matter

comes

before

the

Board

on

a

motion

for

reconsideration filed January 29, 1991 by petitioner Rockford Drop

Forge

Company

(Rockford).

On

February

8,

1991,

the

Illinois

Environmental Protection Agency filed its response.

By

its motion,

Rockford asks that the Board

reconsider its

decision of December 20,

1990 finding that Rockford’s heating oil

tank

is not an underground

storage tank

(UST)

as defined by the

Environmental Protection Act

(Act)

(Ill. Rev. Stat.

1989,

ch.

111

1/2,

par.

l022.18(e)(1)(a))

and upholding the Agency’s decision

finding Rockford ineligible to access the UST Fund.

Because this

is a matter of first impression, the Board will address Rockford’s

argument’s raised in support of reconsideration.

The

sole

issue

presented

is

whether

the

Agency

correctly

determined

that

Rockford’s

tank

is

not

a

UST

for purposes

of

reimbursement

from the

UST

Fund.

Rockford

contends

that

the

Board’s interpretation of

“on the premises where stored”

as

set

forth in the heating oil exemption is erroneous.

The Board applied

the definition of UST set forth in the Environmental Protection Act

(Act)

in effect

at the time Rockford filed

its application

for

reimbursement.1

That definition,

adopted identical

in substance

from the

federal definition

of UST,

provides that

liST does not

include a “tank used for storing heating oil for consumptive use

on the premises where stored.”

(Ill. Rev. Stat.

1989, ch. 111 1/2,

par.

1022.l8(e)(l)(A);

40

CFR

280.12.)

Hence,

the

Board

was

required to interpret the term “on the premises where stored.”

The

1

As

noted

in

the

Board’s

opinion,

Public Act

86-1050

changed the definition

of UST

in

the

Act to

include

heating

oil

tanks

greater

than

1,100

gallons

serving

other than residential units.

119— 2 1

---

2

Board looked to the preamble to the federal regulations and to a

prior

decision interpreting

a

proposed RCRA definition

of

“on-

site”

(Eureka Co.

V.

Environmental Protection Agency,

PCB 79-117

(September

6,

1979))

for guidance in determining whether the fact

that Rockford’s tank was located on a separate parcel of property

from the

forging

furnaces

(the

two parcels

are separated

by

a

public street) meant that the tank was not used for storing heating

oil

“on the premises where

stored.”

The Board

concluded

that

Rockford’s heating oil tank was located on the same property where

the oil was used even though the property was separated by a public

street.

Therefore,

the Board concluded that Rockford’s tank was

used for storing heating oil for consumptive use on the premises

where stored and, therefore, was not a

liST.

Rockford asserts that the Board erred

in relying on Eureka

because that case interpreted

“on—site”

rather than

“premises”.

In Eureka, the Board had to interpret “on—site” and looked to the

proposed RCRA definition that “two or more pieces of property which

are

geographically

contiguous

and

are

divided

by

a

public

or

private right-of-way are considered a single site.”

(PCB 79-117

at

2.)

The Board did not find that Eureka was

in and of itself

dispositive of the issue at hand, but looked to Eureka for guidance

given

that the

facts

presented here

in

terms

of

the

separate

parcels of property

are analogous to the proposed

RCRA definition

of

“on—site”.

Moreover,

the

Board

relied

primarily

upon

the

federal preamble and the fact that it would be incongruous to treat

Rockford differently

from

a

business located

on one parcel

of

property for purposes of the heating oil exemption in reaching its

determination that Rockford’s tank

fell within

the heating

oil

exemption.

Reliance upon Eureka for guidance in the instant matter

was proper.

Rockford also argues that the Board’s decision is incorrect

because the Agency and the Board relied upon the definition of UST

set forth in the Act rather than the Office of State Fire Marshall

(OSFN)

definition

of

UST.

The

OSFM definition

of UST incudes

heating oil tanks of 1,100 gallons or more whereas, at the relevant

time, the Act and Board regulations followed the federal definition

of UST.

Rockford alleges that the legislature authorized the OSFM

to determine and define what is a liST and that the Agency lacks the

authority to render an independent definition of liST.

The Board is sympathetic to the confusion incurred by Rockford

as

a result of the different definitions of UST.

The following

background discussion of the UST program is given to explain the

Board’s adherence to its position that the Agency and the Board

must apply the definition of UST set forth

in the Act and Board

regulations.

The Act gives authority to both the OSFM and the

Agency

to implement the

liST

program.

The Board has determined

that, while no explicit division of authority is set forth,

such

a division is implied from the provision that the OSFN “shall not

adopt regulations relating to corrective action.”

(Ill. Rev. Stat.

119—22

---

3

1989,

ch.

127

1/2,

par.

l53(3)(b)(ii);

In

the

Matter

of:

UST

Update. USEPA RecTulations,

R88—27 at

3

(April

27,

1989).)

Those

regulations dealing with corrective action

(i.e.,

confirmation of

a suspected release) are implemented by the Agency whereas the OSFN

implements those regulations concerning installation of a tank and

routine leak detection up to the time a leak is confirmed.

(R88-

27 at

3.)

Additionally,

both the OSFM and the Board

are directed to

adopt regulations which are “identical

in substance” to the USEPA

rules.

(Ill.

Rev.

Stat.

1989,

ch.

111

1/2, par.

1022.4(d); .111.

Rev.

Stat.

1989,

ch.

127 1/2,

par.

154(b)(i).)

The Act directs

the Board to adopt regulations to implement the legislative intent

that

the

State

Fund

satisfy

the

federal

financial

assurance

requirements.

(Ill.

Rev.

Stat.

1989,

ch.

111

1/2,

par.

1022.13

(d).)

In numerous identical in substance rulemakings,

the Board

has adopted the USEPA liST regulations.

(See, In the Matter of: UST

State Fund,

R89—l9 at 2

(April 26,

1990)

(setting forth a history

of

liST rulemakings).)

In In the Matter

of;

UST State Fund,

the

Board addressed the Agency’s and the OSFM’s contention that the

Board did not have authority to adopt a regulation governing the

administration of financial assurance.

(R89-19 at 4.)

In support

of its contention, the Agency and the OSFM relied upon a memorandum

of understanding between the two which stated that the OSFM “has

sole

responsibility

for the

administration

of

the

program

for

financial responsibility and that “it

is the

OSFM)

who has the

authority to issue regulations pertaining to the administration of

the financial responsibility portion of the (UST)program.”

(u.)

The Board rejected this contention citing Section 22.13(d)

of the

Act which specifically empowers the Board to adopt such regulations

and the general directive to the Board to adopt USEPA UST rules

identical in substance.

(Id..)

Moreover, the Board stated that the

Agency

and

OSFM

incorrectly

assumed

that

rulemaking

power

is

inherently linked to implementing authority and that “the Board is

given express rulemaking authority over programs which are almost

always implemented by other agencies.”

(~.

at 5.)

The foregoing establishes that simply because an agency, such

as OSFM, has implementing authority does not mean that agency alone

has

rulemaking

authority.

Consequently,

the

Board

rejects

Rockford’s assertion that the Board “lacks the authority to render

an

independent

definition

of

liST).”2

The

foregoing

also

establishes that the division of implementing authority in terms

of corrective action is important in seeking reimbursement from the

UST Fund.

Owners of USTs must register their tanks with the OSFM

2

While Rockford speaks in terms of the Agency rendering

a definition of tJST different from the OSFM definition,

it is clear that the Agency was applying the definition

set forth in the Act and adopted identical in substance

by the Board.

(35 Ill. Adm. Code 731.112.)

119—23

---

4

and,

pursuant to

its statutory authority,

the OSFM establishes

procedures

for collecting

registration

fees.

(Ill.

Rev.

Stat.

1989,

ch.

127

1/2,

par.

156(b)(l),(3)

and

(4).)

Such fees

are

deposited in the UST Fund.

(Ill.

Rev.

Stat.

1989,

ch.

127

1/2,

par.

l56(b)(3).)

The OSFM may withdraw expenses from the Fund

(Ill. Rev.

Stat.

1989,

ch.

127 1/2, par.

157) and may use monies

in the

Fund to take emergency

action necessary to protect

the

public

health.

(Ill.

Rev.

Stat.

1989,

ch.

127

1/2,

par.

1022.13(b).)

Pursuant to the Act, the Agency has the authority to

use the Fund

to pay costs of corrective action incurred by,

and

indemnification

to,

operators of USTs where certain criteria are

satisfied.

(Ill.

Rev.

Stat.

1989,

ch.

111 1/2,

pars.

1022.13(a)

and l022.18b.)

Requests for reimbursement are sent to the Agency

and

owners

or

operators may seek Board

review

of the Agency’s

reimbursement decision.

(Ill. Rev. Stat.

1989, ch ill 1/2, pars.

1022.18b(d)(D)(4)

and l022.18b(g).)

This division

of authority

over

the

Fund

is

consistent

with

the

division

that

the

OSFM

implements those aspects of the program prior to the confirmation

of a leak and the Agency implements those regulations dealing with

corrective action.

The OSFM ‘s administration of the Fund concerns

those aspects, such as registration fees, which are “pre—corrective

action” whereas the Agency oversees those aspects of the Fund, such

as eligibility and reasonableness of costs

of corrective action,

which come into play upon confirmation of a suspected release.

The Board has previously noted that the “complexity of the UST

regulatory and program implementation provisions

...

can create

problems of compatibility.”

(In the Matter

of: UST State

Fund,

R89-l9

at

7

(April

26,

1990).)

As

the

Agency

states

in

its

response, the OSFN has the responsibility for registering tanks and

may adopt regulations defining USTS for purposes of registration.

However, the Agency

is not bound by the OSFM’s definition of UST

•and must adhere to the Act and Board regulations adopted thereunder

in carrying out its responsibilities of determining eligibility to

access the

Fund.

Unfortunately,

at the time pertinent to this

review, what was defined as a UST for registration purposes was not

compatible with

the definition

of

liST

set

forth

in

RCRA,

and

adopted

by

the

Board

identical

in

substance,

for

claims

of

reimbursement

from

the

Fund.

The

Board

rejects

Rockford’s

assertion that the Board applied the wrong definition of

liST in

reviewing the Agency’s decision that Rockford

is

ineligible to

access the Fund.

The Board correctly applied the definition of UST

as set

forth

in RCRA and adopted identical

in substance by the

Board.

The Board has reconsidered its determination that Rockford’s

tank falls within the purview of the heating oil exemption and has

determined

that

its

decision

of

December

20,

1990

is

proper.

Therefore,

the relief requested by Rockford is denied.

IT IS SO ORDERED.

119—24

---

5

Section

41

of

the Environmental

Protection Act

(Ill.

Rev.

Stat.

1989,

ch 111

1/2,

par.

1041)

provides for appeal of

final

Board Orders within

35 days.

The Rules

of the Supreme Court

of

Illinois establish filing requirements.

I, Dorothy

M.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby cer,~ifythat the above Order was adopted on the

2t~-

day of

~

,

1991 by a vote of

4

M~.

Dorothy M.7/unn, Clerk

Illinois P&~L1utionControl Board

119—25