The Utah Petroleum Marketers Association wants to intervene in a lawsuit filed by Idaho-based V-I Oil Co., which does business in Utah, to stop the state from using money from the Petroleum Storage Tank Fund to build the Centennial Highway.

According to papers filed in 3rd District Court, the association believes the taking of $5 million from the fund is illegal and should be returned to be used for its intended purpose or returned to the petroleum retailers who paid the money into the fund.The fees in the fund come from a one-half cent charge on each gallon of gasoline sold in Utah and are collected and managed by the Utah Department of Environmental Quality for cleaning up releases from petroleum storage tanks that threaten human health or the environment.

According to the suit filed by V-1, the Legislature appropriated $5 million from the $38 million fund to fill a shortfall in road construction projects. V-1 officials claim that was an abuse of constitutional protections and the appropriation will leave some gasoline station operators insolvent if health authorities discover their underground storage tanks are contaminating the water supply.

An association spokesman said when the Legislature passed HB454 on the last day of the 1998 legislative session without input from the department or private industry fund participants, the action was based on a erroneous and overruled Utah Supreme Court opinion that the one-half cent environmental surcharge on motor fuel was a tax on gasoline and could be used for highway purposes.

The spokesman said the court reversed itself on Aug. 5, 1997, and found that the surcharge was not a tax on gasoline, but a valid fee that must be used for the original purpose of environmental cleanup.

The department hired Coopers & Lybrand, to provide an actuarial review of the fund because of the removal of $5 million. Coopers & Lybrand said the fund will be broke in 10 years with more than $8 million in unpaid claims owed.

The association asked Gov. Mike Leavitt to veto the legislation, but when he didn't, officials decided to file for intervention.