Ron Christian v. Tennessee Petroleum Underground Storage Tank Board, and J.W. Luna, as Commissioner of Tennesse Department of Environment and Conservation

Citation: Not availableDocket: 01A01-9508-CH-00368

Court: Court of Appeals of Tennessee; March 7, 1996; Tennessee; State Appellate Court

Original Court Document: View Document

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Ron Christian appealed his eligibility for assistance from the Tennessee Petroleum Underground Storage Tank fund, which was denied by the Tennessee Petroleum Underground Storage Tank Board due to his failure to conduct a required site check. This decision was upheld by the Davidson County Chancery Court. The case revisits a prior ruling where Christian was found ineligible because of untimely registration fee payments. 

Christian owns four underground storage tanks at the Country Corner Market, registered with the Tennessee Department of Environment and Conservation (TDEC). The current appeal challenges the legality of the Board imposing additional conditions for restoring his fund eligibility, beyond just fee payment and penalties.

The Board's findings noted Christian paid his annual fees and late penalties for the 1991 fee year but received a directive on April 26, 1991, to conduct a site check to confirm that his property was not contaminated, a requirement he did not fulfill. Additionally, he was informed of a December 22, 1991, deadline for leak detection reporting for tanks installed between 1970 and 1974 but failed to submit the required detection method. The court affirmed the Board's authority to impose these conditions for fund eligibility restoration.

On February 27, 1992, the Division received a complaint regarding potential contamination of a spring in Thompson Station, Tennessee. Water samples revealed benzene and total petroleum hydrocarbons above cleanup levels as defined by the Underground Storage Tank Program Rules. Subsequently, on March 4, 1992, the Division notified Christian of the contamination and mandated a systems test. Soil samples collected on July 7, 1992, at the Country Corner Market confirmed the presence of BTX above cleanup thresholds. Systems tests conducted by Christian on September 30, 1992, identified a leak in a 3,000-gallon gasoline underground storage tank (UST). Following this, the Division informed Christian of the necessary steps to address the confirmed petroleum release via a certified letter on November 30, 1992. 

On January 20, 1993, Christian submitted an Initial Site Characterization Report, which lacked the required site check results. The Board determined that Christian did not take necessary actions, such as conducting a site check or environmental assessment, nor did he pay the required annual tank fees, leading to his loss of fund eligibility. The Board ordered Christian to perform an environmental assessment and, pending approval, implement a corrective action plan. 

The ongoing appeal questions whether the Board's requirement for a site check, alongside the payment of fees and penalties, violates Christian's rights or exceeds the agency's statutory authority. Christian claims the Division did not adhere to the Uniform Administrative Procedures Act by failing to create clear rules regarding site checks, instead relying on a guidance memorandum. The rules designate the Division as the entity overseeing the Underground Storage Tank Program, and a letter from TDEC outlines the steps for reestablishing fund eligibility, including proper registration of tanks, payment of all fees, and conducting a site check to confirm there is no contamination.

The policy mandates that analytical work related to underground storage tanks (USTs) must be conducted by laboratories on the UST Approved Laboratory List, with required pre-approval from the Technical Review Staff. Soil samples are to be collected at designated locations and depths for specific chemical analysis based on the type of petroleum involved. The Tennessee Uniform Administrative Procedures Act (UAPA) outlines the definition of a 'rule' and states that only authorized state entities can promulgate rules or hear contested cases under it. The Tennessee Petroleum Underground Storage Tank Act authorizes the Board to create rules under the UAPA, while the Division is tasked with implementing the UST program, not creating rules. 

The Division must assist in program implementation, particularly regarding Fund eligibility. If an owner/operator fails to maintain Fund eligibility, the Division must notify them, granting 30 days to demonstrate compliance. If unresolved, a Notice of Fund Ineligibility is issued, and the owner/operator has 60 days to secure alternate financial assurance. The Fund does not cover costs related to releases that occurred during periods of ineligibility. 

The discretion to require site checks for releases during Fund ineligibility is affirmed, as without such measures, identifying non-compliance would be difficult. The Board's requirement for a site check to restore Fund eligibility is consistent with statutory provisions, and the trial court's judgment affirming this decision is upheld, with costs assessed against Ron Christian.