ILLINOIS POLLUTION CONTROL BOARD
    March 17, 1994
    TOLLES REALTY
    COMPANY,
    )
    )
    Petitioner,
    )
    )
    v.
    )
    PCB 93—124
    (UST Fund)
    ILLINOIS
    ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    DISSENTING OPINION (by J. Theodore Meyer):
    I respectfully dissent from the majority’s order. The
    majority found that there is a genuine issue of material fact in
    dispute in this matter, and thus decided to defer ruling on the
    two pending motions for summary judgment. I dissent for two
    reasons.
    First, assuming
    arguendo
    that there is indeed a genuine
    issue of material fact, the proper ruling would have been to deny
    both motions for summary judgment. As the majority correctly
    notes, summary judgment is appropriate where there is no genuine
    issue of material fact, and where the moving party is entitled to
    judgment as a matter of law. The majority specifically found
    that this case presents a genuine issue of material fact.
    Therefore, the case does not meet the first part of the standard
    for summary judgment. The courts have held that when there is a
    genuine issue of material fact, summary judgment must be denied.
    (Village of Glenview v. Northfjejd Woods Water & Utility Co.,
    Inc. (1st Dist. 1991), 216 Ill.App.3d 40, 576 N.E.2d 238, 159
    Ill.Dec. 569; LaSalle National Insurance Co. v. Executive Auto
    Leasing Co. (1st Dist. 1970), 121 Ill.App.3d 430, 257 N.E.2d
    508.) To thus defer ruling on the motions to some unspecified
    time misses the point of
    summary
    judgment as an aid to
    expeditious disposition of a matter.
    (~
    Lavat v. Fruin Colnon
    Corp. (1st Dist. 1992), 232 Il..App.3d 1013, 597 N.E.2d 888, 173
    Il..Dec. 914.) Assuming that there is a genuine issue of
    material fact, I would have denied both motions for summary
    judgment.
    Second, I am not convinced that there is a genuine issue of
    material fact. The majority focuses on the fact that the Office
    of the State Fire Marshal (OSFM) is reviewing its determination
    on the registration of the tanks. However, I believe the crux of
    the issue is whether the Illinois Environmental Protection Agency
    (Agency) had the authority to issue a revised eligibility
    decision after it issued an initial eligibility decision which
    stated that that initial decision constituted the Agency’s final
    decision concerning eligibility. Whether OSFM may determine that
    its registration information was incorrect is irrelevant to that
    2
    issue, and thus is not a genuine issue of material fact.
    For the above reasons, I respectfully dissent.
    I
    -
    --
    1.-
    J. ~eodore Meyer
    Board Member
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereb~certify that the above dissenting opinion was filed
    on the
    ~
    ~-day of
    _____________,
    1994.
    7
    £4~t~1
    Dorothy N. nfl,
    Ji.
    Clerk
    Illinois o lution Control Board

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