ILLINOIS

November

POLLUTION

4,

CONTROL

1993

BOARD

DIVANE BROS . ELECTRIC CO .,

)

Petitioner,

)

v .

)

PCB

(UST

93-105Fund)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

)

Respondent .

)

DISSENTING OPINION (by J . Anderson) :

I again dissent for the reasons expressed in my earlier

dissents

107 ; Phillips

in J .J66 .RCompany

.S . Investments

v

. IEPA

v(January

. IEPA (July

21, 1993),

14, 1993),

PCB 92-171PCB

93-

;

City of Lake Forest v . IEPA (June 23, 1992), PCB 92-36 ; and my

dissents

Forest andof

Villaqe

July 30,

of

1992

Lincolnwood

on motions

v .

for

IEPA,reconsideration

PCB 91-83 .

in Lake

my most

Perhaps

recent

it

dissent,is

best to

J .Jsimply

.R .S . Investmentsrepeat

my reasons

.

expressed in

Board's

The

lack

majority

of authority

has granted

to review

summary

a determination

judgment based

of

on

the

theOSFM

not to register the tank

. In this case, the OSFM disallowed

under

registration

the Gasoline

of the

Storage

tank because

Act .

it is exempt from registration

registration

I have no

determinations

disagreement

are

with

not

the

reviewable

holding that

by the

the

BoardOSFM's.

However, I don't believe that the Fire Marshal's determination

ends the issue as a matter of law . What is properly before the

Environmental

Board for its determination

Protection Act

are

addressing

the statutory

eligibility

provisions

requirementsin

the

for accessing the Fund . The eligibility requirements are listed

in Section 22 .18b(a) of the Environmental Protection Act . In

pertinent part, Section 22 .18b(4) states :

The owner or operator has registered the tank in accordance

with Section 4 of the Gasoline Storage Act and paid into the

Underground Storage Tank Fund all fees required for the tank

regulations

in accordance

adopted

with Sections

by the Office

4 and

of

5 of

State

that

Fire

Act

Marshaland .

(Emphasis added .)

If the Gasoline Storage Act by its terms allows exemptions

from registration, I suggest that the requirements of Section

22 .18b(4)of the Environmental Protection Act have been satisfied .

---

2

At

the very least, I don't believe that the above-quoted

provision is plain on its face

. I would argue, therefore, that

we should construe the section from the environmental perspective

embodied in the Environmental Protection Act as a whole

. As I

stated in an earlier dissent on this same subject in

City of Lake

Forest v . IEPA,

(June 23, 1992), PCB 92-36, 134 PCB 337

:

questions

Our fundamental

of monetary

perspective,

claims,

after

or implicitly

all, is not

to husband

limited tothe

UST Fund for particular classes of tank owners

. .

.After

all, the UST Fund exists to make it easier to comply with

RCRA requirements for corrective action for UST's

; indeed,

the environmental-related concerns flowing from the RCRA

corrective

program are

action

why the

is

Agency-administered

in the Environmental

UST

Protection

Fund for

Act in

the first place .

In so saying, I fully share the ongoing difficulty the Board

has had construing the statutory language of the UST Fund

.

It is for these reasons that I respectfully dissent

.

,0,,

oan G

. Anderson

I, Dorothy M

. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certif that the above dissenting opinion was

submitted on the

-6 day of

7t~xa~

,

1993 .

Dorothy M .

nn, Clerk

Illinois P lution Control Board