ILLINOIS

POLLUTION

CONTROL

BOARD

January 21,

1993

PHILLIPS 66 COMPANY,

a DIVISION OF PHILLIPS

PETROLEUM

COMPANY,

)

Petitioner,

)

)

v.

)

PCB

92—171

)

(Underground

Storage

ILLINOIS

ENVIRONMENTAL

)

Tank

Reimbursement)

PROTECTION

AGENCY,

)

)

Respondent.

DISSENTING OPINION (by J. Anderson):

I

dissent

here

for

the

reasons

.xpr.ss.d

in

my dissent of

June 23,

1992,

in

City

of

Lake

Forest

v.

Illinois

Environmental

Protection Aaencv, PCB 92-36.

(See

also

dissents of July 30

1992

on motion for reconsideration in

~

~

and motion for

reconsideration in Villace of Lincoinvood v. Illinois

Environmental Protection Aaency, PCB 91—83.)

Let

me

further elaborate.

All

of

these cases share one

common reason why the Illinois Environmental Protection

Agency

(Agency) denied access to the Underground Storage Tank (UST)

Fund

mohies.

The

reason is: by action of the Office of

the

State Fire

)Iar~hal (OSFM) pursuant to the Gasoline Storage Act,

the

tanks

were exempted from registration

and

the

payment

of

fees. In

that

the

OSFM

also

appears

not to accept voluntary registration and

fee payments, the result is that

~g

applicant

for

UST

Fund

monies

so

situated is able to

make a showing to

the Illinois

Environmental

Protection

Agency

(Agency),

which,

administers the

UST

Fund,

of

registration

and

payment

of

fees

to

the

OSFM.

My

dissent

rests

on

my belief

that

the

majority was in

error

when it

held

that

failure

to

make

such

a

showing to the Agency

prevented

access

to

the

UST

Fund

as

a

matter

of

law.

We

all

agree

that

any

review

of

an

OSFM

dàcision

regarding

registration and payment of

fees,

made

pursuant

to

the Gasoline

Storage Act, is within the purview of the

OSFM,

not the Board.

However,

the

registration

and

payment

of

fees

language

conditioning access to the UST Fund is found in the Environmental

Protection Act (Act), in Section 22.18b(a)(4), and

thus

the

meaning of Section’s language j~within the purview of the Board,

not the OSFM.

I argue that a showing to the

Agency

of

a declaration by the

OSFN

of

an

exemption

from

the

registration

and

fee

requirements

0I 38-O~65

---

2

satisfies the requirements of Section 22.lBb(a)(4)of the Act.

That Section requires that the person seeking access to the UST

Fund is to satisfy the requirement to register “in accordance

with” Section 4 of the Gasoline Storage Act and to pay all fees

required “in accordance with” Sections

4 and 5 of that Act (and

OS??!

regulations).

If

.

such parsons have been duly deemed exempt

by

the

OS?’?!

“in

accordance

with”

the

registration

and

fee

requirements

of

Sections

4

and

5,

then

should

not

the

Board

hold

that

Section

22. 18b(a)

(4)is satisfied?

I suggest

that

the

majority’s contrary holding is arguably “second guessing” a

decision of the Fire Marshal made “in accordunce with” Sections 4

and

5 of the

Gasoline

Storage

Act.

I

believe

that

Section

22. 18b

and .other

provisions

in

the

Act

buttress

the

above

interpretation!

First,

there

is

no

affirmative

declaration

anywhere

in

Section

22.18b

of

legislative

intent

to

totally

prevent

access

to

the

UST

Fund of all exempt

tanks

as a class.

Indeed,

exempt

tanks are

not

mentioned

at

all.

I

would

argue that

totally

eliminating

a

class

of

tanks

in

the

absence

of an affirmative

declaration

is

inconsistent with

the

slaborately detailed’

language of Section 22.18b.

That

language reflects a legislative

intent throughout (albeit often difficult to construe), to

affirmatively detail its Fund-related classifications.

Next,

allowing

the

exempt tank class access to the UST

Fund

is

consistent

with

the

environmental

perspective

embodied

in

the

Environmental

Protection

Act

as

a

whole,

including

its

purpose

as

expressed

in

Section

2.

I

believe

that

th. above

construction

is

consistent

—

as the majority’s is not

—

with the snvironaental

goal in the overall UST removal program, that goal being to clean

up the pollution’ caused by these leaking

underground

storageS

tanks.

The UST

Fund

exists to

make

it easier, and in many cases

to

make

it even possible, to finance these corrective actions.

Finally, a most important point.

The

UST

Fund

exists to

enhance compliance with the federal R8source Conservation and

Recovery Act (RCRA) requirements for Corrective action related to

leaking USTs, or LUSTs.

The RCRA/UST regulations Sncompass the

class of tanks at issue here.

The State Fund is a federally

allowed alternative to the R~RA/USTrequirements for financial

assurance, the latter being generally viewed as unavailable or

financially unduly burdensome.

In ess~.ce, then, the purpose of

the Agency-administered UST

Fund

is to enhance compliance with

the environmentally-related mandates flowing from the R~~RA/UST

‘program.

That is why its corrective action provisions are in the

Environmental Protection Act in the first place.

It seems,

therefore, most appropriate for the Board to have this

environmental perspective also in mind when reviewing questions

of access to the Fund.

0

I38~o

1466

---

3

It is for these reasons that I respectfully dissent.

/~s

4!

~

loan G. Anderson

‘Board Member

I, Dorothy M. Gunn, Clerk of

the Illinois Pollution

Control

n was

Board, hereby certif~tp~the above die

1993.

submitted on the

___________

Dorot~G

n,

Clerk

Illinois Po~tionControl Board

0! 38.:Q45 7