ILLINOIS POLLUTION CONTROL BOARD
    March 26, 1992
    CLINTON COUNTY OIL CO.,
    INC.,
    )
    HOFFMAN/MEIER’S SHELL and
    )
    CLARENCE NEIER,
    )
    )
    Petitioners,
    v.
    )
    PCB 91—163
    )
    (Underground Storage
    ILLINOIS ENVIRONMENTAL
    )
    Tank Reimbursement)
    PROTECTION AGENCY,
    )
    Respondent.
    DISSENTING OPINION
    (by R.C. Flemal and B.
    Forcade):
    We respectfully dissent from the March 26,
    1992 opinion and
    order in which the majority fails to address the issue of
    eligibility to access the Underground Storage Tank Fund (UST
    Fund),
    and proceeds to render its determination on the issue of
    the amount of the deductible.
    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.
    We recognize that the issue before the Agency,
    and initially
    before the Board, was whether the petitioner met its burden of
    establishing that it did not have constructive knowledge of
    a
    release prior to the July 28,
    1989 cut off date for the $50,000
    deductible.
    However,
    the petitioner presented testimony at
    hearing that, though intended to indicate lack of knowledge of a
    release at the time, actually indicated that no release from the
    tanks occurred at all.
    Representatives of Clinton Oil Company,
    Office of State Fire Marshall, and the station operator all
    testified that the tanks were not leaking when removed, and no
    contamination was found at the time of removal in 1988.
    The only
    evidence of contamination was found later on March 25,
    1991,
    approximately 30 to 40 feet from the location of the 1988 tank
    removal.
    (See opinion pp.
    1-2 and citations contained therein.)
    These facts show that there can be no connection between the 1988
    tank removal and the contamination found in March 25,
    1991.
    We do not believe that the majority can responsibly proceed
    to decide the deductibility issue,
    and ignore these facts.
    We
    131—499
    2
    would have found that no eligibility to access the fund has been
    shown based on these facts in the record, and would have remanded
    the matter to the Agency for such.determination.
    For these
    reasons, we dissent.
    C~~lemal
    ~r’~
    Bo rd Member
    Board Member
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board,
    hereby certif~t3-iatthe above di
    ent~ngopinion was
    submitted on the
    ‘~1~-1~-~
    day of
    ‘
    ,
    1992.
    ~,
    Dorothy M,//Gunn, Clerk
    Illinois ~6llution Control Board
    131—500

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