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No. 2--97--1146

December 28, 1998

____________________________________________________________ ____

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

__________________________________________________________________________

JUSTICE COLWELL delivered the opinion of the court:

On March 23, 1994, Jim Drager, of the defendant Office of the State Fire Marshall (Fire Marshall), issued an administrative order to Clifford Trickie, requiring him to register and remove out-of-use underground storage tanks (USTs) at Cliff's Restaurant. Trickie objected that he was not the owner of the tanks, and Drager researched the prior ownership of the property and concluded that plaintiff, Lillian Griffiths, was the party responsible for registering and removing the tanks. Plaintiff was issued an order requiring her to do so, and she appealed to the Fire Marshall. The hearing officer concluded that Griffiths was the owner of the tanks because they were fixtures that became part of the real estate. Griffiths filed a complaint for administrative review, and the circuit court upheld the Fire Marshall's decision. Griffiths now appeals, arguing that (1) the USTs are trade fixtures and thus she is not the owner of the USTs for purposes of the registration and removal requirements, and, alternatively, (2) with respect to the removal requirement, it is contrary to common law to impose upon a person without possession the duty to correct a condition on the premises, and the regulations do not specifically provide for such a result. We reverse and remand.

The parties are familiar with the relevant facts and they will not be repeated in detail here. The essential facts are that on September 11, 1958, plaintiff leased vacant property to Owen Brown under a 20-year lease. Brown opened a service station on the property and installed the USTs. At various times over the next several years, Coil Oil Company, Smith Oil Company, and Sun Oil company operated at the site. Brown testified that he assigned his rights under the 20-year lease to Coil Oil and he believed that Coil Oil later assigned its rights to Smith Oil. However, these assignments were never recorded. There was a memorandum recorded in 1977 that showed that Sun Oil was relinquishing its rights under the 1958 Brown Lease. Additionally, the Fire Marshall produced evidence showing that deliveries from Torch Oil Company were made to Stateline Truck Stop at the premises in 1978. There was no evidence that the tanks were used after 1978. Plaintiff entered into an agreement for deed with Trickie in 1983, but the property was not officially deeded to him until June 1, 1987.

The hearing officer concluded that plaintiff owned the tanks at the relevant time because they were fixtures of the property and thus part of the real estate. The hearing officer relied on section 4(e) of the Gasoline Storage Act (430 ILCS 15/4(e) (West 1996)), which adopts the Federal definition of an "owner" of a UST. The definition applicable to this case is as follows:

"[I]n the case of any underground storage tank in use before November 8, 1984, but no longer in use on November 8, 1984, any person who owned such tank immediately before the discontinuation of its use." (Emphasis added.) 42 U.S.C.A.