ILLINOIS POLLUTION CONTROL BOARD

July 14,

1993

J.J.R.S.

INVESTMENTS,

An Illinois General Partnership,

Petitioner,

)

v

)

PCB 93—107

(UST Fund)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

DISSENTING OPINION

(by J.

Anderson):

The majority has granted summary judgment based on the

Board’s lack of authority to review a determination of the OSFM

not to register the tank.

In this case, the OSFM disallowed

registration of the tank because

it

is exempt from registration

under the Gasoline Storage Act.

I have no disagreement with the holding that the OSFM’s

registration determinations are not reviewable by the Board.

However,

I don’t believe that the Fire Marshal’s determination

ends the issue as

a matter of

law.

What is properly before the

Board for its determination are the statutory provisions

in the

Environmental Protection Act

(Acy)

addressing eligibility

requirements for accessing the Fund.

The eligibility

requirements are listed in Section 22.l8b(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

in accordance with Sections

4 and 5 of that Act and

regulations adopted by the Office of State Fire Marshal.

(Emphasis added.)

If the Gasoline Storage Act by its terms allows exemptions

from registration,

I suggest that the requirements of Section

22.l8b(4)

have been satisfied.

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 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:

Our fundamental perspective, after all,

is not limited to

questions of monetary claims,

or implicitly to husband the

---

2

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

program are why the Agency-administered UST Fund for

corrective action is in the Environmental Protection 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.

m~/oanG. Anderson

‘/~oardMember

I,

Dorothy N. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the ab?ve dissenting opinion was

submitted on the

J~/~T

day of

_________,

1993.

I

/

/~/

~.:

~

~

Dorothy M. ~

Clerk

Illinois E~o~lutionControl Board