Vogue Tyre & Rubber Co. v. Office of the State Fire Marshal

820 N.E.2d 15, 354 Ill. App. 3d 20, 289 Ill. Dec. 507, 2004 Ill. App. LEXIS 1312
CourtAppellate Court of Illinois
DecidedNovember 2, 2004
Docket1-03-0521
StatusPublished
Cited by7 cases

This text of 820 N.E.2d 15 (Vogue Tyre & Rubber Co. v. Office of the State Fire Marshal) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vogue Tyre & Rubber Co. v. Office of the State Fire Marshal, 820 N.E.2d 15, 354 Ill. App. 3d 20, 289 Ill. Dec. 507, 2004 Ill. App. LEXIS 1312 (Ill. Ct. App. 2004).

Opinion

JUSTICE GARCIA

delivered the opinion of the court.

Petitioner, Vogue Tyre & Rubber Company (Vogue), appeals from a decision of the Illinois Pollution Control Board (Board) granting summary judgment in favor of respondent, the Office of the State Fire Marshal (OSFM). Vogue argues summary judgment was not appropriate and that it is entitled to reimbursement from the leaking underground storage tank fund (UST fund). The OSFM filed a motion to dismiss the appeal, arguing this court lacks jurisdiction because Vogue failed to name the Board in its petition for direct review. We dismiss the appeal.

I. Background

Vogue manufactures and distributes custom-built, after-market tires for use on luxury automobiles. Prior to 1994, Vogue also owned a service station located at 4801 Golf Lake Road in Skokie, Illinois. Before May 15, 1986, the Golf Lake property housed four underground storage tanks. Only tanks one and two are at issue in this appeal.

Tanks one and two were installed in 1966 and were used to store petroleum until 1985. On May 6, 1986, these tanks were properly registered with OSFM pursuant to the statute governing underground storage tank registration, “An Act relating to the investigation and prevention of fire” (the Act) (Ill. Rev. Stat. 1985, ch. 127½, par. 4). Shortly after these tanks were registered with OSFM, they were removed from the ground.

In 1987, the registration provisions of the Act were repealed and replaced by the provisions of the Illinois Underground Storage Tank program (Program) found in “An Act prescribing the color and label for gasoline or benzol receptacles” (the Gasoline Storage Act) (Ill. Rev. Stat. 1987, ch. 127½, pars. 156 through 159). These amendments, in conjunction with amendments to the Environmental Protection Act (Ill. Rev. Stat. 1987, ch. 111½, par. 1001 et seq.), established the fund. Ill. Rev. Stat. 1987, ch. 111½, par. 1022.12(a). Pursuant to these amendments, any owner that registered its tank in compliance with the Act would be deemed to have registered its tank under the Gasoline Storage Act. Ill. Rev. Stat. 1987, ch. 127½, par. 156(b)(2). The Gasoline Storage Act was further amended in 1993 and relevant portions now read “[n]o underground storage tank otherwise required to be registered *** may be registered under this Act if that tank was removed before September 24, 1987.” 430 ILCS 15/4(b)(l)(A) (West 2002).

In February 1993, OSFM issued an administrative order informing Vogue that tanks one and two were “no longer registrable” because they had been removed from the ground prior to September 24, 1987. Vogue received no notice and no administrative hearing was held before the order was issued. The order did, however, inform Vogue of its right to appeal. The order read “[sjhould you elect to appeal this [ojrder, your request must be made within 10 days, not including the date of receipt; otherwise, you forfeit the right to appeal.” Vogue did not appeal the order.

In December 1994, Vogue reported a petroleum release from tanks one and two to the Illinois Emergency Management Agency (IEMA). Vogue sought reimbursement from the OSFM for monies paid for corrective action under the UST fund. In February 1995, the OSFM denied Vogue’s request for funding. Vogue was ineligible for the funding because tanks one and two had been removed from the Golf Lake property prior to September 24, 1987, and were therefore not registrable. Vogue then filed a petition for administrative review before the Board. At Vogue’s request, the proceedings before the Board were stayed until April 2002.

In September 2002, OSFM filed a motion for summary judgment with the Board, arguing that because Vogue’s tanks were not registered, they were not eligible for reimbursement. The Board granted OSFM’s motion. The Board explained that under section 7(b) of the Gasoline Storage Act (430 ILCS 15/7(b) (West 2000)), it did not have the power to review registration decisions made by the OSFM. Vogue’s failure to appeal OSFM’s 1993 order deregistering the tanks resulted in a final order that was not appealable before the Board. Therefore, because Vogue’s tanks were not registered, Vogue was not eligible to receive UST funds.

In January 2003, Vogue filed a motion to reconsider with the Board. Vogue argued the Board misapplied section 7(b) of the Gasoline Storage Act and, in fact, had the power to review the deregistration order. The Board denied Vogue’s motion. This appeal followed.

Vogue argues the Board had authority to review OSFM’s 1993 deregistration decision and contends that had the Board reviewed the decision, the Board would have concluded that the tanks were properly registered and Vogue was entitled to reimbursement. The OSFM filed a motion to dismiss the appeal for lack of jurisdiction because Vogue failed to name the Board in its petition for review. Vogue then filed a motion for leave to amend its petition to name the Board as a respondent. Both motions were taken with the case.

A. Failure to Name the Board

We must first determine the effect of Vogue’s failure to name the Board as respondent in its petition for review with this court. This jurisdictional question is a question of law and the standard of review is de novo. See Cameron v. Owens-Coming Fiberglas Corp., 296 Ill. App. 3d 978, 983, 695 N.E.2d 572 (1998).

Illinois appellate courts have power to directly review administrative actions only “as provided by law.” Ill. Const. 1970, art. VI, § 6; see also ESC Watts, Inc. v. Pollution Control Board, 191 Ill. 2d 26, 29, 727 N.E.2d 1022 (2000). In this case, section 41(a) of the Environmental Protection Act (415 ILCS 5/41 (a) (West 2002)) authorizes direct review of Board decisions to the appellate court. Section 41(a) provides that any party adversely affected by a final order or determination of the Board “may obtain judicial review, by filing a petition for review ***, under the provisions of the Administrative Review Law, as amended[,] and the rules adopted pursuant thereto.” 415 ILCS 5/41(a) (West 2002).

Section 41(a) therefore incorporates by reference the requirements of and the rules adopted pursuant to the Administrative Review Law (Review Law) (735 ILCS 5/3—101 through 3—113 (West 2002)). Section 3 —113(b) of the Review Law (735 ILCS 5/3—113(b) (West 2002)) and Supreme Court Rule 335(a) (155 Ill. 2d R. 335(a)) specifically apply to petitions for direct review of administrative orders in the appellate court. Section 3—113(b) and Rule 335(a) are identical with respect to who must be named as a respondent and provide that a petition for review “shall specify the parties seeking review and shall designate the respondent and the order or part thereof to be reviewed.

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Bluebook (online)
820 N.E.2d 15, 354 Ill. App. 3d 20, 289 Ill. Dec. 507, 2004 Ill. App. LEXIS 1312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vogue-tyre-rubber-co-v-office-of-the-state-fire-marshal-illappct-2004.