ILLINOIS POLLUTION CONTROL BOARD
    September 6, 2001
     
    NELSON WESTERBERG, INC.
     
    Petitioner,
     
    v.
     
    OFFICE OF THE STATE FIRE MARSHAL,
     
    Respondent.
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    PCB 01-140
    (UST - Appeal)
     
     
     
     
    DISSENTING OPINION (by G.T. Girard and Thomas E. Johnson):
     
    We respectfully dissent from the majority order issued today. This case is before the
    Board on cross-motions for summary judgement. We do not believe that additional explanation
    by the Office of State Fire Marshal is necessary or warranted. In deciding a motion for summary
    judgement the Board first determines if there is a genuine issue of material fact. Based on the
    record and pleadings before the Board, there is no genuine issue of material fact and this case is
    ripe for decision.
     
    The record clearly demonstrates that the two tanks at issue were properly registered in
    March 1986 and the two tanks were in use at the time of registration. R. at 1-2. The denial letter
    from Office of State Marshal states that the petitioner is ineligible for reimbursement because the
    two tanks were “not in operation at any time since January 1, 1974.” There is no support in the
    record for this assertion. Therefore, this case is ready to be decided. Based on facts in the record
    and the application of Section 57.9 of the Environmental Protection Act (415 ILCS 5/57.9), we
    would grant summary judgement in favor of the petitioner and find that petitioner is eligible for
    reimbursement.
     
    For these reasons, we respectfully dissent.
     
     
     
     
      
     
    G. Tanner Girard
     
     
    ______________________________
      
     
    Thomas E. Johnson
     
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that I received
    the above dissenting opinion on September 6, 2001.
     
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    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     
     
      

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