ILLINOIS POLLUTION CONTROL BOARD
    September
    1,
    1994
    HERRIN
    SECURITY
    BANK,
    an
    )
    Illinois
    banking
    corporation,
    )
    Complainant,
    v.
    )
    PCB 94—178
    (Enforcement)
    SHELL OIL COMPANY,
    )
    a Delaware corporation,
    Respondent.
    ORDER OF THE BOARD
    (by J. Theodore Meyer):
    This matter is before the Board on respondent Shell Oil
    Company’s
    (Shell) July 7,
    1994 motion to deny issuance of
    complaint.
    In essence, Shell moves that the Board dismiss the
    complaint filed against it on June 20,
    1994,
    by Herrin Security
    Bank (Herrin).
    Herrin filed a response in opposition to Shell’s
    motion on July 20,
    1994.
    On July 28,
    1994,
    Shell filed a reply
    to Herrin’s response.
    However, the Board’s procedural rules
    provide that the movant shall not have the right to reply except
    as specifically allowed by the Board
    (or hearing officer) to
    prevent material prejudice.
    (35 Iii. Adm. Code 101.241(c).)
    Shell did not include a motion for leave to file its reply, nor
    has it alleged that material prejudice would result from an
    inability to reply.
    Thus,
    the reply
    is not accepted.
    The complaint which
    is the subject of this motion was filed
    by Herrin on June 20,
    1994.
    Herrin alleges that Shell owned or
    leased the site at issue from approximately 1930 to March 12,
    1979; that Shell used the site for the purpose of selling
    petroleum products and operating a gasoline station; that Shell
    discontinued its use of the underground storage tanks
    (USTs)
    at
    the site in 1979; that Shell abandoned the UST5 and did not
    remove them prior to relinquishing its interest in the site in
    1979;
    that Herrin did not use the UST system while it owned the
    site (which it acquired
    in 1979); and that in 1982 Herrin removed
    a building and “certain” UST5 on the site.
    Herrin further
    alleges that in spring and summer 1992 it notified Shell of
    contamination problems on the site and requested assistance; that
    Shell failed to assist in reniediation of the site; that chemical
    analysis of the soil at or near the old product lines shows
    elevated PNA levels which exceed the generic clean—up levels
    established by the Illinois Environmental Protection Agency; that
    the contamination was caused or contributed to by a release from
    the UST system operated and abandoned by Shell; and that Herrin
    has incurred costs
    in excess of $69,000 in responding to the
    contamination.
    Herrin alleges that during the period from 1930
    2
    to March 1979 Shell deposited contaminants in such manner as to
    create a water pollution hazard in violation of Section 12(d)
    of
    the Environmental Protection Act
    (Act); caused or allowed the
    open dumping of waste in violation of Section 21(a)
    of the Act;
    and stored,
    disposed, and abandoned waste at a facility which did
    not meet the requirements of the Act and regulations,
    in
    violation of Section 21(e)
    of the Act.
    (415 ILCS 5/12(d), 21(a),
    and 21(e)
    (1992).)
    Shell raises five contentions in support of its motion.
    First,
    Shell argues that the Board has no jurisdiction over the
    alleged violations of Sections 21(a) and 21(e)
    because those
    sections were amended after the date that Shell relinquished its
    interest in the site,
    and that those amendments cannot be applied
    retroactively.
    Second,
    Shell maintains that the complaint is
    moot because the alleged pollution problems have been remedied.
    Third,
    Shell contends that the Board has no jurisdiction where no
    pollution exists and where a respondent has no control over the
    site at issue.
    Fourth, Shell alleges that the Board has no
    subject matter jurisdiction over
    a private party’s claim for
    damages.
    Finally,
    Shell argues that because there is no actual
    or threatened pollution, an injunction would be overbroad and
    excessive.
    Herrin has responded in opposition to Shell’s claims.
    As the Board has previously held,
    a complaint should not be
    dismissed unless it clearly appears that no set of facts could be
    proven that would entitle a complainant to relief.
    (Miehle v
    Chicago Bridge and Iron~Co. (November 4,
    1993), PCB 93-150,
    citing Callaizakis v. Astor Develoxxnent Co.
    (1st Dist.
    1972),
    4
    Ill.App.3d 163,
    280 N.E.2d 512.)
    After considering the
    contentions raised by both parties, the Board denies Shell’s
    motion.
    None of the arguments put forth by Shell convinces the
    Board that the complaint should be dismissed.
    For example, we
    have specifically held that we have the authority to award
    cleanup costs to private parties.
    (Lake County Forest Preserve
    District v.
    Ostro
    (March 31,
    1994),
    PCB 92-80.)
    Additionally,
    the Board has specific statutory authority to enter a cease and
    desist order, as requested in the complaint.
    (415 ILCS 5/33(b)
    (1992).)
    As to Shell’s other three arguments, the record does
    not contain sufficient facts for the Board to conclude,
    at this
    time, that Herrin is not entitled to relief.
    Shell’s motion is
    denied.
    Pursuant to Section 31(b)
    of the Act, the Board must make a
    determination as to whether the complaint
    is frivolous or
    duplicitous.
    (415 ILCS 5/31(b)
    (1992).)
    After reviewing the
    complaint,
    we find that the complaint is neither frivolous nor
    duplicitous.
    The complaint states a cause of action upon which
    relief can be granted, and there
    is no indication that there are
    other cases in another forum or court arising from the same
    issue.
    Therefore, this matter is directed to hearing.
    3
    The hearing must be scheduled and completed in a timely
    manner consistent with Board practices.
    If, after appropriate
    consultation with the parties,
    the parties fail to provide an
    acceptable hearing date, or if after an attempt the hearing
    officer is unable to consult with the parties, the hearing
    officer shall unilaterally set a hearing date. The hearing
    officer shall inform the Clerk of the Board of the time and
    location of the hearing at least 40 days
    in advance of hearing so
    that public notice of hearing may be published.
    After hearing,
    the hearing officer shall submit an exhibit list,
    a statement
    regarding the credibility of witnesses,
    and all actual exhibits
    to the Board within
    5 days of the hearing.
    IT IS SO ORDERED.
    I,
    Dorothy N. Gunn,
    Clerk of the Illinois Pollution Control
    Boar9~,hereby certify that the above order was adopted on the
    ~
    day
    of
    ~
    ,
    1994,
    by
    a
    vote
    of
    ~c)
    V
    fl
    Dorothy M. ~unn, Clerk
    Illinois Pollution Control Board

    Back to top