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
i
y that the above Order was adopted on the
~
day of ___________________________,
1992, by a vote of
V
~
~
Dorothy M. ~n,
Clerk
Illinois Po~,IutionControl Board
129—303