ILLINOIS UPDATE

By DIANA M. JAGIELLA, Howard & Howard Attorneys, P.C.

Report: USTs in Illinois are regulated under the Federal Resource, Conservation and Recovery Act (RCRA), the Illinois Environmental Protection Agency Act (IEPA Act) and the Gasoline Storage Act. The Gasoline Storage Act grants the Illinois Office of State Fire Marshal (OSFM) authority to regulate the keeping, storage, transportation, sale or use of gasoline and volatile oils and directs that the agency adopt rules identical in substance to federal rules promulgated pursuant to RCRA. The IEPA Act grants the IEPA authority for groundwater monitoring and site cleanup requirements and directs that it coordinate with the OSFM regarding leaking USTs.

Based on this statutory framework, OSFM and IEPA have concurrent jurisdiction over USTs. Both agencies interpret their legislative mandate as granting authority over UST installation through final closure and corrective action. The result has been overlapping and sometimes inconsistent regulations and different liability standards for the same USTs.

Whether a party is liable as an UST owner can vary depending on the agency involved at the property. Under RCRA and the IEPA, liability for USTs is imposed on the "Owners and Operators" of the UST. In the case of a new UST, the "Owner" is any person who currently owns the tank. In the case of a tank not in use after November 7, 1984, the owner is the person who owned the UST immediately before it was taken out of service. An "Operator" is "any person in control of, or having responsibility for, daily UST operations." The IEPA follows this definition in determining UST owner status. Under the Gasoline Storage Act, the owner of an UST means the person who has legal or equitable title to an underground storage tank system which has or had a regulated substance contained in it. The OSFM follows this definition in determining UST owner status.

In In Re: Facility—Village of Ellsworth, the Village of Ellsworth owned a tract of land upon which five USTs had been installed by an adjacent property owner in the 1940s. The property was transferred several times, most recently to Doyle Oil Company ("Doyle"). During the 1970s and 1980s, Doyle used the USTs on the Village property.

The Village was not aware of the presence or use of USTs until the OSFM discovered the presence of the USTs and ordered the Village to remove the USTs. The Village appealed the order asserting that it was not the owner of the USTs. The OSFM rejected the Village position finding that the Village had legal and equitable title to the USTs because it owned the property the USTs were located on and, therefore, the Village was the owner of the USTs.

Analysis: The Illinois Leaking Underground Storage Tank Program has created confusion and inconsistent liability results due to overlapping jurisdiction of the ("OSFM") and the IEPA. In Re: Facility—Village of Ellsworth, the OSFM determined that a landowner holds legal and equitable title to underground storage tanks ("USTs") on its property and, therefore, is the UST owner even it the USTs were not purchased, installed or used by the landowner. This decision is inconsistent with the UST owner definitions found in RCRA and the IEPA Act. As liability for corrective action for releases from USTs is imposed on UST owners and operators, the status of UST owners can have significant financial consequences.

As a result of this decision, parties may be liable for corrective action as the owner of a UST under the Gasoline Storage Act but not under the IEPA Act. Based on this current uncertainty, a landowner should carefully evaluate potential UST liability with the assistance of counsel for USTs on its property that have been or may be used by other parties. •

Page 16 / Illinois Municipal Review / June 1993