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