ILLINOIS POLLUTION CONTROL BOARD

July 9,

1992

BURWELL OIL SERVICE,

INC.,

)

)

Petitioner,

)

v.

)

PCB 92—42

)

(Underground Storage Tank Fund

ILLINOIS ENVIRONMENTAL

)

Reimbursement Determination)

PROTECTION AGENCY,

)

)

Respondent.

DISSENTING OPINION

(by B.

Forcade and R.C. Flemal):

We respectfully dissent from the July 9,

1992,

opinion and

order in this proceeding in which the majority fails to address

the issue of whether Burwell Oil can access the Underground

Storage Tank Fund (UST Fund)

at all.

We dissent for reasons

previously expressed in our dissenting opinion in Clinton County

Oil Co.,

Inc., Hoffinan/Meier’s Shell and Clarence Meir v.

Illinois Environmental Protection Agency, PCB 91—163

(Dissenting

Opinion, March 24,

1992).

Here,

in an effort to prove that they had no constructive

knowledge of a petroleum leak prior to July 28,

1989, Burwell has

provided ample evidence to conclude that the tanks removed in

September 1988 did not in fact leak.

The Board should allow the

Agency to evaluate this newly produced evidenôe and reach the

conclusion that the tanks were not respcnsible for the leak.

Accordingly, Burwell is not eligible for any reimbursement for

the removal of these tanks.

Instead, the majority precludes the

Agency from reevaluating its position based on newly presented

evidence.

This means, in effect, that if a petitioner can hide

the information from the Agency long enough, the petitioner may

prevail in reimbursement decisions.

There is no indication

Burwell did so, but others may.

We do not believe this to be a

proper procedure.

As we stated in our Clinton CountY dissent:

We

believe

that

the

majority,

in

the

interest

of

procedural. “correctness”

and

an

intense

desire

to

recognize

procedural

limitations upon

the

Illinois

Environmental

Protection Agency,

ignores a most key element

in this

case;

that the

facts

in the record

alone suPPort a finding that the petitioner is

ineligible

to

access

the

UST

Fund,

irrespective

of

the

issue

of

whether

the

Agency

can

change

its

own

eligibility

determination.

(Emphasis in Original)

01 35-0Oe9

---

2

The majority interpretation creates a problem from two

perspectives.

First,

the majority precludes te Agency from

reevaluating the new evidence asserting that it would constitute

a prohibited “reconsideration” and it would violate fundamental

fairness to allow the Agency to cite a new basis for its

decision.

Second, the majority will not allow this Board to

evaluate the newly presented evidence because it applies to a

legal theory not cited in the Agency’s denial letter. This is a

classic Catch-22 situation.

Such an interpretation might have merit if Board review were

limited to the existing factual paper record and legal briefs

from the parties.

However,

as long as the Board hearings allow

new evidence in the form of testimony and documents, problems

will surface.

It is important to remember that the money in the UST fund

is taxpayers’ money.

It is derived from a gasoline tax pursuant

to Ill. Rev. Stat.

1991,

ch.

120 par.

428a.

We are reluctant to

give away taxpayers’ money to people who do not meet the

statutory criteria to receive that money,

simply because the

Agency made a different decision before it had access to this

newly presented evide

e.

Accordingly

we dissent.

c

\

c

Bill S.

Forcade

Ronald

C. Flemal

Board Member

Board Member

I, Dorothy M.

Gunn, Clerk of the Illinois Pollution Control

Board, hereb~certifythat

e above dissenting opinion was filed

on the

i?

day of

___________________,

1992.

‘V

~

i~.

/

Dorothy N. G~inn,Clerk

Illinois P~IlutionControl Board

0135-0050