ILLINOIS POLLUTION CONTROL BOARD

June

23, 1992

THE CITY OF

LAKE

FOREST, A

)

MUNICIPAL CORPORATION OF

)

ILLINOIS,

Petitioner,

PCB 92—36

vs.

)

(Underground Storage Tank

)

Fund Reimbursement

ILLINOIS ENVIRONMENTAL

)

Determination)

PROTECTION AGENCY,

)

Respondent.

DISSENTING OPINION

(by 3. Anderson):

The gist of my problem with the outcome of the majority is

best expressed by quoting the following questions and answers

from page 74 of the hearing transcript in this case;

it involves

testimony of the Agency in response to questions from Lake

Forest’s attorney and an exchange between the hearing officer and

the attorney:

Q.

If you had known on January 27,

1992, that the tank

was filled partly with. sand and partly with gasoline,

would you have reached a different conclusion?

A.

No.

Q.

Why not?

A.

Because the fact of the matter is the tank was not

registered.

Q.

But it was exempt from registration?

A.

That is correct.

Q.

And from the payment of fees?

A.

Correct.

Hearing

Officer

Is there a Catch—22 here that I’m missing

as a Hearing Officer?.

Attorney

Yes.

It’s called the State of Illinois.

I agree with the Board’s holdings that the Agency was bound

to accept the OSFM’s decision that the tank in question here was

not registered, and could not be, because it was exempt from

registration.’

However,

I suggest that it was error to conclude

that this ended the issue as a matter of law.

In so saying,

I

fully share the ongoing difficulty the Board has had with the

It

is difficult,

though, to understand

-

certainly from

a

environmental perspective

—

how finding sand in a tank not emptied

of

its

gasoline

is

an

activity

that would

have

the

result

of

exempting the tank from a subsequent registration requirement.

134— 34

3

---

2

statutory language of the UST fund.2

The “registration required” language that allows access to

the UST Fund is in the Environmental Protection Act, not the

Gasoline Storage Act.

Thus, the interpretation of the “exempt”

question is within the purview of the Board.

I would argue that being exempt from registration satisfies

the registration and fee requirements of Section 22.18b(a)(4).

That Section requires that the person seeking access to the UST

fund is to register “in accordance with” Section 4 of the

Gasoline Storage Act and pay all fees required “in accordance

with Sections

4 and 5 of that Act (and OSFN regulations);

if

Section 4 exempts a person, and Sections 4 and

5 accordingly do

not require payment of fees, then should the Board not hold that

Section 22.18b(a) (4)

is satisfied?3

I do not believe that Section 22.18b(a)(4)

is plain on its

face, and

I know of no other statutory language related to the

UST Fund that would make plain the “exempt” question.

I would

argue,

therefore,

that we should construe the section from the

environmental perspective embodied in the Environmental

Protection Act as a whole, including its purpose as expressed in

Section

2.

Our fundamental perspective, after all,

is not limited

solely to questions of monetary claims, or implicitly to husband

the UST Fund for particular classes of tank owners.

The

majority’s decision can have a chilling effect on goal of

cleaning up the pollution caused by these leaking underground

storage tanks and I believe that shutting out a Lake Forest

-entirely from the corrective action program does this.

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.

2

While there are certain facts distinguishing this case from

the Village of Lincoinwood

v.

IEPA

(June

4,

1992),

upon further

reflection and for the reasons presented here,

I have concluded

that my vote in that case was in ~rror.

~

Note

that

Lake

Forest

will

tender

whatever

fees

are

necessary

if it’s a question of paying registration fees

(See Tr.

p.

42.)

Note also that the Agency acknowledged that Lake Forest’s

failure to pay a fee was no longer a concern.

(See Tr.

p. 80)

I

14—

344

---

3

It is for these reasons that

I respectfully dissent.

Z4~’

~L~4~J

roan G. Anderson

I, Dorothy N. Gunn,

Clerk of the Illinois Pollution Control

Board hereby certify~tJiatthe above

issenting Opinion was

submitted on the

I

day of

~

,

1992.

Dorothy N.

Illinois

Control Board

134—34 5