ILLINOIS POLLUTION CONTROL BOARD
    June 18,
    1976
    ENVIRONMENTAL PROTECTION AGENCY,
    Complainant,
    v.
    )
    PCB 74—471
    WILFORD
    E.
    (“ERNIE”) JOHNSON and
    NORMA
    I.
    JOHNSON, d/b/a BYRON
    SALVAGE,
    )
    Respondents.
    INTERIM ORDER OF THE BOARD
    (by Mr.
    Zeitlin):
    This matter is before the Board on
    a Motion for Entry of
    Interim Consent Order filed by the Environmental Protection Agency
    (Agency)
    on June
    14,
    1976.
    The procedural history of this matter
    is
    somewhat complex, with Interim Orders having been entered by the
    Board on July 10, August
    7, September
    4, September 18, October 16,
    November 6, November 26 and December
    4, 1975, and March 11,
    1976,
    and need not be fully set out here.
    The parties now wish us to
    enter an Interim Order,
    “in
    rio
    manner
    .
    .
    .
    intended to delay or
    alter the outcome of the present case,” which will purportedly
    allow further testing and studies on the realty which is the subject
    of the case, the results of which will be provided to the Board if
    they have any “significant bearing on any future Board Order.”
    This matter has now been before the Board for a protracted
    period; Respondents have been added and subsequently dismissed,
    a
    Count in the Amended Complaint has been dismissed, and there have
    been several continuances.
    At the February 17,
    1976 hearing in the
    matter Complainant and the remaining Respondents orally entered a
    fact Stipulation which purportedly provides the Board with an
    adequate basis for decision in this case,
    on which subject we note
    the following:
    1.
    The Attorney General specifically made Complainant’s
    participation
    in the Stipulation contingent on the receipt of certain
    documentation from Respondents and additional communication to the
    Board by the Attorney General,
    (R.
    29,
    30).
    The Board has received
    nothing further on that subject, although Briefs have been received
    from both Complainant and Respondents.
    22—85
    —2-.
    2.
    The matters in that Stipulation on the subject of
    §
    33(c)
    of the Environmental Protection Act indicate
    (without now deciding
    on the subject), that Respondents may in fact be “judgement proof”
    to the extent that any of the remedies requested by Complainant may,
    if included in a future Board Order, be an exercise in futility,
    (R.
    26-29).
    None of the parties briefed,
    or even discussed,
    the
    possibility that the Agency itself might,
    in an appropriate action,
    be held responsible for the implementation of such remedies.
    Yet
    Ii
    1(e) of the proposed Consent Order would permit such remedies
    to
    be performed by the Agency.
    Although we do not decide on such
    issues,
    the intent of the parties with regard to them is not clear.
    The Board’s function goes beyond the mere imposition of
    liability in cases such as these,
    and includes finding with reason-
    able assurance that pollution problems such as those admitted to in
    the aforementioned fact Stipulation will be abated.
    We shall for
    that reason allow the Interim Consent Order proposed by the parties,
    for study or for such abatement measures as either of the parties
    may find appropriate.
    We shall not, however, allow the one—year period requested in
    the Attorney General’s Motion.
    We shall allow the Motion in part,
    granting 90 days for the additional studies or other activities
    contemplated by the parties.
    We shall in addition require the submission within said 90-day
    period of further pleadings by the parties on the issues raised
    above, and ask the parties to provide additional specific, detailed
    information on the subject of what is needed for abatement;
    and,
    contingent on any Board decision on the issue of liability for the
    performance of such abatement, the likelihood of performance of
    such abatement activities
    as are determined to be necessary.
    In
    the absence of further evidence concerning a final resolution of
    this case by the end of that 90-day period,
    the Board will decide
    the case on the merits of the record before it.
    The following Interim Consent Order is entered, effective
    immediately:
    1.
    The Agency, its employees, contractors or
    anyone under its direct supervision or control, shall
    have the right,
    for a period not exceeding ninety
    (90)
    days from the date of entry of this Consent Order, with
    respect to a parcel of property owned and/or operated
    by the Johnsons located on Razorville Road,
    Byron,
    Illinois,
    and known commonly as the “Byron Salvage Yard,” to enter
    upon such property for the following purposes:
    (a)
    to obtain soil and surface and ground-
    water sampling;
    (b)
    to take photographs;
    22—86
    —3—
    (c)
    to drill monitoring wells
    if necessary
    and sample said wells on a regular basis;
    (d)
    to perform any additional work that might
    be necessary to determine the nature and
    extent of cyanide and heavy metal contami-
    nation on or from the site;
    and
    (e)
    to remove,
    treat, contain or otherwise act
    upon any materials which might be causing
    or contributing to cyanide or heavy metal
    contamination on or from the site.
    2.
    To accomplish such purposes,
    the Johnsons shall:
    (a)
    allow access to the site at all times for
    Agency-related activities.
    This includes
    opening the gate to the site and removing
    obstacles to allow passage of vehicles or
    equipment.
    (b)
    provide information as soon thereafter as
    requested, with respect to the location of
    known areas of buried barrels and the number
    of such barrels and areas where tank truck
    discharges may have occurred;
    (c)
    provide what other information as may be
    necessary for the Agency’s purposes;
    (d)
    notify any potential buyer or successor
    in title of this agreement and not to volun-
    tarily pass title without it being subject to
    this agreement.
    3.
    The Agency shall:
    (a)
    notify the Johnsons whenever possible of
    visits to the site;
    (b)
    inform the Johnsons of substantially extensive
    work that will be performed at the site;
    (c)
    preserve, whenever possible, material removed
    from the site;
    (d)
    inform the Johnsons of the results of the work.
    22—87
    —4—
    The following additional Interim Order
    is entered:
    Complainant and Respondent herein shall, within
    90
    days of the date of this Order,
    submit such additional
    pleadings as are required by the foregoing discussion
    of the
    issues in this case.
    IT IS SO ORDERED.
    Mr. James Young abstained.
    I, Christan L. Moffett, Clerk of the Illinois Pollution
    Control Boa,~rd, hereby certify the above Interim Order was adopted
    on the
    ~‘~
    day of~~-~_-
    ,
    1976,
    by a vote of
    I..~
    Illinois Pollution
    22—88

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