ILLINOIS POLLUTION CONTROL BOARD

January

23,

1992

NORTH OAK CHRYSLER PLYMOUTH,

)

Complainant,

v

)

 PCB 91—214

(Enforcement)

AMOCO OIL COMPANY,

Respondent.

ORDER OF THE BOARD

 (by J. Anderson):

Among motions currently pending in this matter are North Oak

Chrysler Plymouth’s

 (North

 Oak)

 motion

 for summary judgment and

Amoco Oil Company’s

 (Amoco)

 January

17,

 1992 response and cross

motion for summary judgment,

 and Amoco’s January

21,

 1992 motion

to strike.

 This Order does not address those motions.

 On January

21,

 1992, North Oak moved for leave until January 24, 1992 to file

a reply to Amoco’s response.

 This motion

 is hereby granted.

The

Board notes that the hearing

 in this matter scheduled for January

24, 1992 was cancelled by Hearing Officer Order of January 21, 1992

to allow the Board to consider disposition of this matter without

hearing.

 In the

 interests

 of administrative

 economy,

the

 Board

additionally requests the parties

 to address the following

 issue

related to enactment of P.A.

 87—323.

This

is

 a UST enforcement action by a current owner against

 a prior owner.

 The pleadings indicate that Amoco removed the USTs

in

 1986,

and

 sold

the

 property

to

 North

 Oak,

 which

is

now

attempting to sell the property.

 Drilling

 in connection with the

second sale indicates contamination from the USTs remains.

 Among

other things,

 North Oak is seeking that the Board order Amoco to

cease and desist from violations

of

35

 Ill.

 Adm. Code.Subparts E

and F.

 In other words,

 North Oak is asking the Board to require

Amoco to undertake the release investigation and confirmation steps

in

 Subpart

E,

and

 then

 perform

 corrective

 action

 pursuant

to

Subpart

F.

P.A.

 87-323 requires the Board

 to repeal Subpart

E,

 as set

forth in the January

9,

 1992,

 Proposal for Public Comment Opinion

and Order in R91-14.

 The parties are requested to address whether

the Board has

 authority to

 enter

a

 cease

 and desist

 order

 with

respect to Subpart E.

Under

 P.A.

 87-323,

 release

 investigation

and

 confirmation

would

be

 exclusively

 under

the

 Fire

 Marshal’s

 rules.

The

corrective action requirements

 of Subpart F are triggered only by

a confirmed release.

 The parties are requested to address whether

129—30 1

2

the

 Board has authority

 to enter

a

 cease

 and desist

 order with

respect to Subpart F without a showing that Amoco has confirmed

a

release pursuant to the Fire Marsha;’s rules.

In R9l-14, the Board discussed the vagueness created by,

and

limitations on UST enforcement under P.A.

 87-323,

 as follows:

We recognize that the proposed deletions create a vagueness

in

the

 remaining

 portions;

 however,

 these

 amendments

are

driyen

 by statutory

 amendments.

One

 problem

is

 that the

corrective action provisions of the USEPA rules exist within

the

 larger

 body

of

the

UST

 rules.

 They

 include

 cross

reference into that larger body of rules.

 It is unclear how

the Board

is

 supposed to deal with these

 cross references.

As

 is discussed below,

 the Board has proposed to repeal the

cross

 references,

 leaving

a

 narrative

 description

of

the

actions

 being

 referenced.

 This may make

 it difficult for

persons to follow the rules in actual practice.

 However, this

result appears to be dictated by the statutory amendments.

We suggest

 that another problem with the current

 scheme

is

that there appears to be no real enforcement potential before

the

 Board,

 except

for

 failure

 of the

 operator

to

 properly

execute

his

 corrective

 action

 plan,

 even

for

 intentional

violation

of

the

 design

and

 operating

 requirements.

For

example,

an

 operator

 could

 intentionally design

a

 tank

in

violation of the regulations, operate it in a reckless manner

so as to cause a release, and then fail to report the release.

So long as the operator (after being caught) complied

with the

corrective action requirements of Subpart

F,

 there would be

no possibility of enforcement before the Board.

 Moreover,

if

the

 operator

 failed

to

 comply

 with

 Subpart

F,

 Board

enforcement would be limited to enforcement of the “paperwork”

 requirements of that Subpart.

 There would

 be no opportunity

to

 enforce

 for the

 pollution

 incident

 itself,

or

for

the

underlying design and operating violations which caused the

release.

The parties

 are directed to respond

to

 these

 issues

in

a

filing to be received by the Board on or before February 21,

 1992.

The Clerk is requested to serve the parties with a copy of the R91-

14 Opinion and Order of January

9,

 1992,

 along with a copy of this

Order,

 via first class mail.

IT IS SO ORDERED.

129—302

3

I,

 Dorothy

M.

 Gunn,

 Clerk of the Illinois Pollution Control

Board,,7hereby cer

 y that the above Order was adopted on the

 day of ___________________________,

 1992, by a vote of

Dorothy M. ~n,

 Clerk

Illinois Po~,IutionControl Board

129—303