ILLINOIS POLLUTION CONTROL BOARD

October 16, 1992

HARLEM TOWNSHIP,

Petitioner,

V

3

PCB

~92—S3

(Underground Storage Tank Fund

ILLINOIS ENVIRONMENTAL

)

Reimbursement Determination)

PROTECTION AGENCY,

)

)

Respondent.

DISSENTING OPINION (by M. Nardulli and

J.

Theodore Meyer):

We dissent from the majority’s action in this case. This case

involves a question of statutory construction: Whether a release

of gasoline from a pump nozzle is a “release from a UST”. If the

answer is yes, petitioner is entitled to reimbursement from the UST

Fund for corrective action costs.

Although the majority recognizes that a spill or overfill

occurring during the transfer of product into the UST is a “release

from a UST”, the majority concludes that a spill out from the pump

nozzle, which is connected to the UST, is not a “release from a

UST”. In so holding, we believe that the majority is elevating

form over substance. We do not believe the legislature intended

such an inconsistent result particularly where the threat to the

environment and human health is the same irrespective of whether

the petroleum is released from the nozzle coming from the UST or

from the nozzle going into the UST. (See, Sparkling Spring Mineral

Water Co. v. IEPA (May 9, 1991), PCB 91—9.) Because we believe

that a release from the pump nozzle is the type of release intended

to be included in the definition of UST, we would allow

reimbursement from the Fund.

Therefore, we dissent.

~

N. Nardulli

Board Member

~ Theodore Meyer

~óard Member

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that th a .ove dissenting opinion was filed

on the

~

day of

________________,

1992.

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_

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0

—1~orothyN. ~unn, Clerk

Illinois Pollution Control Board

0136-0397