ILLINOIS POLLUTION CONTROL BOARD
    December 20, 1990
    ROCKFORD DROP FORGE
    )
    COMPANY,
    Petitioner,
    v.
    )
    PCB 90—46
    )
    (Underground Storage Tank)
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    )
    )
    Respondent.
    DISSENTING OPINION (by J. Anderson and J. Dumelle)
    We would have placed the Rockford Drop Forge (Rockford)
    tanks under the umbrella of the regulations. We would have held
    that, since lO—l5 of the oil, not an insignificant amount, was
    used to fuel mobile vehicles, i.e. the fork lift trucks, the
    tanks fell outside what (JSEPA was addressing in its exemption
    language. The examples used by USEPA all refer to stationary
    uses (see p. 4 and 5 of majority opinion). We believe that the
    use of the tanks to fuel mobile vehicles is compatible with
    petroleum tanks used to fuel mobile vehicles, the latter tanks
    being clearly covered by the regulations. We would have held
    that whether the forklifts did or did not stay on the premises at
    all times was not controlling; rather, it was the fact that they
    are mobile vehicles.
    We emphasize that the USEPA regulations are getting after an
    important pollution problem. We believe that the USEPA’s intent,
    in its preamble to the regulations, quoted on p. 3 of the
    majority opinion, should be given more weight than it was. We
    re—quote it as follows:
    Throughout the development of the UST
    regulations, where there has been ambiguity in
    the terms defining the jurisdiction of the
    Subtitle I program, it has been the Agency’s
    policy to define the scope of the UST
    regulations broadly and interpret the
    exclusions relatively narrowly. By taking
    this approach, the Agency hoped to avoid
    prematurely eliminating from its jurisdiction
    tanks that may pose an environmental threat.
    (citation omitted).
    That the Illinois Legislature subsequently added, as a class
    of UST’s eligible for state
    fund reimbursement,
    all heating oil
    tanks greater than 1,100 gallons is not, we believe, a persuasive
    117—73
    —2—
    argument buttressing Rockford’s exclusion from the then—
    controlling federal definition applied in this case. It is clear
    that the federal definition does not exclude all heating oil
    tanks as a class, just some of them.
    We also believe that we should “reach out” here, because we
    believe that the governmental system within which Rockford was
    interacting in good faith ended with an unfair result. After
    consultation, Rockford registered and “paid its dues” as a UST
    with the Office of the State Fire Marshall, then did the
    environmentally correct thing in removing the tanks, only to find
    out at the back—end that the rules had changed, literally. We in
    government need to make every effort to avoid a situation such as
    this, where persons place reliance on a system that borders on
    the irrational. It does not serve the purposes of achieving a
    clean environment that persons who voluntarily comply are “led
    down the garden path” in this manner.
    It is for these~reasonsthat we respectfully dissent.
    joan
    ~
    G./Andelson
    4 h4~/k
    acob D. Dumelle, P.E.
    f~oard Wembe~
    CDR-CED-USNR (RET)
    V
    Board Member
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Dissenting Opinion was
    submitted on the /‘~-~dayofc,~-Q-~
    ~
    ,
    1990.
    Dorothy M. Gu n, Clerk
    Illinois Pollution Control Board
    117—74

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