ILLINOIS POLLUTION CONTROL

BOARD

July 9, 1992

A.B. DICK COMPANY,

)

)

Petitioner,

PCB 92—99

vs.

)

(Underground Storage

)

Tank Fund Reimbursement

Determination)

ILLINOIS

ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

DISSENTING OPINIQN (by B. Forcade):

I respectfully dissent from today’s action by the majority as

premature. In its June 1, 1992 denial letter, the Agency stated:

This decision does not constitute the Agency’s

final determination of eligibility. The

Agency reserves the right to change this

determination should additional information

become available which would modify this

decision. The final decision regarding

eligibility and appropriate deductible amounts

will be made as requests for reimbursement are

reviewed by the Agency.

The majority finds this an unacceptable attempt to reserve a right

to “reconsider”, inconsistent with Reichhold Chemicals, Inc v. IPCB

(1990), 204 Ill. App. 3d 674, 561 N.E.2d 1343.

In Ideal Heating Company v. IEPA, PCB 91—253, January 23,

1992

,

the BOard interpreted the Act as providing for Board review

of Agency UST determinations only after the Agency had completed

its two—step review process and made a final determination as to

the reimbursibility of costs. In my mind the above quoted language

does little more than implement the Ideal decision.

Without objection from the Petitioner as to this language, the

Board has jumped on the Agency for attempting to secure an

unauthorized right to change its mind based on new information. I

certainly support the Agency’s ability to change its mind based on

new information. (See Dissenting Opinions in Clinton County Oil

Co., Inc., Hoffman/Meier’s Shell and Clarence Meier v. Illinois

Environmental Protection Agency, PCB 91—163 (March 24, 1992), and

Burwell Oil Service, Inc. v. Illinois Environmental Protection

Agency, PCB 92-42 (July 9, 1992). But I do not believe that is

what has happened he’-~

0135—0079

---

2

I would have tentatively set this matter for hearing, and

asked the parties to brief whether there is in fact a conflict

regarding the finality of this decsion.

Bill F~cade

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board hereby certify tj~t the above issenting Opinion was

submitted on the

~

day of

___________,

1992.

~‘~L

Dorothy M.,/~unn,

~..

Clerk

/~~/

Illinois P~’llutionControl Board

0135-0080