2

recover from respondents the Abrahams and Millstream over $150,000 the People expended to

remediate contamination from underground storage tanks at the site. The People seek these costs

under Section 57.12(a) of the Act. 415 ICLS 5/57.12(a) (2000).

 

On March 6, 1997, the Abrahams and Millstream filed a cross-complaint against the

Anests. The cross-complaint alleges that, based on prior fraudulent activities, the Anests should

be held liable to the Abrahams and Millstream for any costs or penalties assessed under count II

of the People’s complaint.

 

PROCEDURAL HISTORY

 

The People’s complaint has two counts. In the first count, the People ask the Board to

issue an order that: (1) finds that State Oil, the Anests, the Abrahams, and Millstream have

violated Section 12(a) of the Act; (2) enjoins the respondents from further violation; (3) orders

the respondents to perform specific remedial activity; (4) imposes a civil penalty; and (5) finds

the respondents liable for attorneys fees and costs. Comp. at 8. The second count is a cost

recovery action brought pursuant to Section 57.12(a) of the Act (415 ICLS 5/57.12(a)(2000))

against the Abrahams and Millstream.

 

The cross-complaint has three counts. The first alleges that the Anests are responsible for

the open dumping of a waste (gasoline) resulting in a violation of Section 21(a) of the Act. 415

ICLS 5/21(a)(2000). The second count alleges that the Anests violated 415 ILCS 5/21(d)(2) by

allowing gasoline and waste oil to discharge at the site and thereby violating applicable statutory

and regulatory reporting and response requirements under 35 Ill. Adm. Code 732.200. The third

count alleges that the Anests violated Sections 12(d) and (f) of the Act. 415 ILCS

5/12(d)(f)(2000). After each count, the Abrahams and Millstream pray that the Board find the

Anests in violation of the Act, that the Board issue an order requiring the Anests to remediate the

site, and that the Anests be found liable to the Abrahams and Millstream if the Abrahams and

Millstream are found liable on either count of the People’s complaint.

 

As stated previously, four motions for summary judgment are pending before the Board.

On November 26, 2001, the Anests filed a motion for summary judgment on the cross-

complainant against the Abrahams and Millstream. The Abrahams and Millstream filed a

response to the motion on December 31, 2001. The People filed a response to the motion on

December 27, 2001. The Anests filed a reply on January 17, 2002.

 

On November 27, 2001, the People filed a motion for partial summary judgment against

State Oil and the Anests. On December 24, 2001, State Oil and the Anests filed a response to the

motion. The People filed a reply to the response on January 17, 2002.

 

On November 27, 2001, the People filed a motion for partial summary judgment against

the Abrahams and Millstream (the People’s second motion). The Abrahams and Millstream filed

a response to the motion on December 31, 2001. The People filed a reply to the response on

January 17, 2002.

 

 

  

---

 

3

On November 27, 2001, the Abrahams and Millstream filed a motion for summary

judgment on count II of the People’s complaint. The People filed a response to the motion on

December 27, 2001. The Abrahams and Millstream filed a reply to the response on

January 17, 2002.

 

UNCONTESTED FACTS

 

State Oil and the Anests have owned the site since approximately 1974. The site was

operated by State Oil from April 3, 1984 to August, 1985. State Oil resp. to People’s request to

admit Nos. 1,5. Gasoline was discovered leaking into Boone Creek near to where the creek

flowed past the site in late 1983 or early 1984. Around that time, gasoline was observed by State

Oil or an employee of State Oil on the surface of the creek adjacent to the site. State Oil resp. to

Millstream req. to admit No. 5.

 

On December 5, 1984, Rich Barnes, an employee of State Oil, informed the Illinois

Environmental Protection Agency (Agency) that gasoline was seeping from the site onto the

banks of Boone Creek and then entering the creek. Req. 10 and Req. 3. Agency inspectors

visited the site in December of 1984, but did not require any specific remedial actions to be

undertaken at that time. Req. 10-12. Gasoline leaked intermittently onto Boone Creek until

April, 1985. Req. 18. In May of 1985, the Agency inspected Boone Creek where it flowed past

the site and did not see any gasoline leaking into the creek.

 

On or about August 15, 1985, the Anests entered into an installment contract to sell the

site to the Abrahams. The Abrahams and Millstream took possession of the site on August 15,

1985. The Abrahams are the current owners of the site and the underground storage tanks

(USTs) on the site. The Abrahams as well as Millstream are all current operators of the site.

 

Gasoline continued to seep from the site onto Boone Creek in February 1986, causing

Rich Barnes to order absorbent pads placed on the banks of the creek and absorbent booms

placed on the surface of the creek to collect gasoline. In 1989, the Agency or its contractors

excavated a trench, removed soil and filled the trench with gravel. The Agency conducted

construction activities at the site.

 

In 1990, the Abrahams filed a civil action (case number 90-L-354) against the Anests in

the Circuit Court of McHenry County. The action has two counts: the first alleges that the

Anests breached warranties contained in the contracts relating to the sale of the site; the second

alleges that fraudulent representations were made by the Anests who also failed to inform the

Abrahams of conditions about which they were entitled to be informed. The jury found for the

Abrahams on both counts and awarded the Abrahams $128,403 on or about April 1994. The

decision was upheld by an appellate court in a rule 23 order with appeal number 2-94-1062 on

June 26, 1995. Both the jury and the appellate court indicate that the amount awarded the

Abrahams reflects the total sum spent by them to mitigate the release of gasoline from the gas

station’s premises into the nearby creek.

See

Ex. 1 of Millstream’s motion for summary

judgment.

 

 

  

---

 

4

STANDARD OF REVIEW

 

Summary judgment is appropriate when the pleadings and depositions, together with any

affidavits and other items in the record, show that there is no genuine issue of material fact and

that the moving party is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason,

181 Ill. 2d 460, 693 N.E.2d 358 (1998). In ruling on a motion for summary judgment, the Board

“must consider the pleadings, depositions, and affidavits strictly against the movant and in favor

of the opposing party.” Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370.

 

Summary judgment “is a drastic means of disposing of litigation,” and therefore it should

be granted only when the movant’s right to the relief “is clear and free from doubt.” Dowd, 181

Ill. 2d at 483, 693 N.E.2d at 370, citing Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871

(1986). However, a party opposing a motion for summary judgment may not rest on its

pleadings, but must “present a factual basis which would arguably entitle [it] to a judgment.”

Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994).

 

MOTIONS

 

 

The Board next addresses each party’s motion for summary judgment separately. The

Board will summarize the arguments pertaining to each motion, as well as the respective

responses and replies before deciding the motion.

 

Anests’ Motion for Summary Judgment

 

The Anests’ Motion

 

In their motion and accompanying memorandum in support thereof, the Anests assert that

they cannot have caused the Abrahams and Millstream to incur penalties, and that summary

judgment should be awarded in favor of the Anests to the extent that any prayer for

reimbursement of penalties assessed against the Abrahams and Millstream are referenced in the

cross-complaint. Anests’ mem. at 2.

2

The Anests argue that any award to the People under

Section 57.12 of the Act is limited to the remediation of releases proximately caused by the

respondent’s act or omission, and that such award cannot go beyond the respondent’s

proportionate degree of responsibility for the costs of the remediation.

Id

.

 

The Anests next assert that the regulations referenced in count II of the cross-complaint

did not exist at the time the site was purchased by the Abrahams and Millstream, and that

because no orders were issued to the Anests and the regulation was not in existence before the

site was sold, that count II should be dismissed. Anests’ mem. at 3.

2 The Anests’ motion for summary judgment will be cited as “Anests’ mot. at __.”; the Anests’

memorandum in support of their motion for summary judgment will be cited as “Anests’ mem. at

__.”; the Abrahams and Millstream’s response to the Anests motion for summary judgment will

be cited as “Millstream resp. at __.”; the People’s response to the Anests’ motion for summary

judgment will be cited as “People’s resp. at __.”; the Anests’ reply will be cited as “Anests’ reply

at __.”

 

  

---

 

5

 

The Anests maintain that they had control of the site starting April 1984, and that prior to

that time the station was leased to a tenant. Anests’ mem. at 4. The Anests further maintain that

after August 15, 1985 (when the Anests and the Abrhams entered into an installment contract for

sale of the site) they did not have control of the site.

Id

. The Anests conclude that because no

evidence indicates that any storage tank located at the site was leaking between April 1984 and

August 1985, no liability can ensue and summary judgment should be granted those parts of the

cross-complaint alleging violations of Section 12(d), 21(a) and(d)(2) of the Act. 415 ILCS

12(d), 21(a), 21(d)(2) (2000).

 

Finally, the Anests assert that the McHenry County judgment is of no value in this

proceeding. Anests’ mem. at 6. The Anests argue that because it is impossible to be certain

about the actual basis for the McHenry Court judgment, that collateral estoppel cannot apply.

Anests’ mem. at 7.

  

The Abrahams and Millstream’s Response

 

The Abrahams and Millstream assert that no part of the Anests’ motion establishes that

the Anests are entitled to summary judgment as a matter of law based upon undisputed material

facts as to any portion of the cross-complaint and that the motion must be denied in its entirety.

Millstream’s resp. at 3. The Abrahams and Millstream note that it is the Anests’ actions that

have placed the Abrahams and Millstream in a position where they may incur penalties, that this

is a clear causal link between the Anests’ violations of the Act and the penalties that may be

imposed upon the Abrahams and Millstream, and that the Board would, thus, be justified in

finding that penalties imposed on the Abrahams and Millstream should be paid by the Anests.

Millstream’s resp. at 5.

 

The Abrahams and Millstream argue that substantial uncertainty exists concerning

proportionate share liability and its application to this case, and that the People may argue it can

recover all of its costs from the Abrahams and Millstream because they owned the site when the

costs were incurred. Millstream’s resp. at 6. The Abrahams and Millstream contend that until

the Board resolves the application of the proportionate share liability statute in this case, the

Anests’ motion must be denied.

 

The Abrahams and Millstream next address the Anests’ argument concerning the

application of recently promulgated regulations. The Abrahams and Millstream assert that waste

remaining in the ground is an on-going environmental problem and that post-disposal regulations

may properly address the continuing violation even if the moment of disposal pre-dated the

regulations. Millstream’s resp. at 7. The Abrahams and Millstream further argue that a property

owner’s responsibility for a release does not necessarily end when he sells the property, and that

the Agency did issue an order to State Oil requiring remedial activities at the site. This, finish

the Abrahams and Millstream, is sufficient to create a contested issue of material fact.

Millstream’s resp. at 8.

 

The Abrahams and Millstream urge that the mere fact that the Anests leased the property

is not proof of a lack of control to prevent liability, and that the extent and duration of control

 

  

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6

remains a contested issue of material fact. Millstream’s resp. at 9. Finally, the Abrahams and

Millstream address estoppel, contending that the judgment in the civil litigation required the

Anests to pay the Abrahams for all the costs incurred up to that date in connection with the site’s

contamination issues. Millstream’s resp. at 10. But, contends the Abrahams and Millstream, the

preclusive use of the judgment will not come into play until the People can show that one of the

respondents have responsibility for the alleged release.

Id

. For all these reasons, the Abrahams

and Millstream asks that the Anests’ motion be denied in total.

 

People’s Response

 

 

The People note that the Anests’ motion only seeks judgment against the cross-

complainants, but request that the motion be denied to the extent that any judgment for the

Anests is contrary to a finding of violation of Section 12(a) of the Act. 415 ILCS 5/12(a) (2000).

The People maintain that ample evidence exists that during their ownership or operation of the

site the Anests caused or allowed the discharge of gasoline into the environment causing water

pollution and violating Section 12(a) of the Act. People’s resp. at 2.

 

The Anests’ Reply

 

 

In their reply, the Anests assert that a mere violation of the Act on the part of the Anests

will not generate the liability that the Abrahams and Millstream are seeking. Instead, the

Abrahams and Millstream must show that there was a release from the tanks during the time the

Anests controlled the site. Anests’ reply at 2. The Anests reiterate that for estoppel to apply, a

finding of a specific, material and controlling fact in the former case must have been made.

Id

.

The Anests contend that estoppel will not apply because the timing of the release was immaterial

in the McHenry case, but is the central question here. Anests’ reply at 3. The Anests maintain

that in the instant case, the Abrahams and Millstream must prove specifics connected with the

Act. Anests’ reply at 5.

 

 

The Anests argue that Section 42(h) of the Act provides the basis for the imposition of

penalties and must be the sole factor in determining whether a penalty should be imposed on the

Abrahams and Millstream, not the actions of the Anests. Anests’ reply at 3. The Anests next

maintain that the People cannot base its action on liability as an owner because under Section

58.9 of the Act, the action can only be based on a person’s act or omission. Ownership, contend

the Anests, is neither an act nor omission. Anests’ reply at 4.

 

 

Finally, the Anests assert that the only regulations or standards that the Abrahams and

Millstream identify in the cross complaint are regulations adopted after the events alleged that

the Anests could not have violated because they did not exist when the Anests owned the site.

Anests’ reply at 5.

 

Discussion

 

The Anests’ motion for summary judgment on the cross-complaint is denied. The

primary issue in this motion is whether or not the Board has the authority to hold the Anests

liable as requested in the cross-complaint. The cross-complaint requests that the Board issue an

 

  

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7

order finding the Anests jointly and severally liable to the Abrahams and Millstream in the event

that they are found liable on either count of the People’s complaint. As noted, the People’s

complaint has two counts; the first seeking a violation of 12(a) of the Act, and the second being a

cost recovery action brought pursuant to Section 57.12(a) of the Act (415 ICLS

5/57.12(a)(2000)) against the Abrahams and Millstream.

 

The cross-complaint has three counts. After each count, the Abrahams and Millstream

pray that the Board find the Anests in violation of the Act, that the Board issue an order requiring

the Anests to remediate the site, and that the Anests be found liable to the Abrahams and

Millstream if they are found liable on either count of the People’s complaint.

 

On May 18, 2000, the Board issued an order denying the Anests’ motion to strike the

second amended cross-complaint. In that order, the Board found that the cross-complaint was

valid. In so doing, the Board referred to a line of cases allowing the Board to direct a respondent

to pay cleanup costs incurred by another party.

See

Dayton Hudson Corp. v. Cardinal Industries,

Inc., PCB 97-134 (Aug. 21, 1997), slip op. at 5-7, and cases cited therein. The Anests have not

raised any arguments since that decision regarding this issue to cause the Board to reach a

different decision here.

 

The Anests have argued that no evidence exists that the USTs on the site were leaking

during the time the Anests had control over the site. But, it is clear that gasoline was entering

Boone Creek during the time the site was owned by State Oil and the Anests, and operated by

State Oil. In addition, the Abrahams and Millstream have alleged that a release of gasoline from

the USTs on site occurred during the time the Anests controlled the site. A genuine issue of

material fact does exist as to when the USTs were leaking, and the motion for summary

judgment cannot be granted.

 

Again, summary judgment is a drastic means of disposing of litigation and should be

granted only when the movant’s right to the relief is free from doubt. Dowd, 181 Ill. 2d at 483,

693 N.E.2d at 370. Here, the Anests have not shown a clear right to relief. Accordingly, the

Anests’ motion for summary judgment is denied.

 

The Board notes that, although raised by both parties, the issues surrounding the

McHenry County judgment do not impact the disposition of the Anests’ motion for summary

judgment. Accordingly, the Board will not provide an advisory opinion on whether collateral

estoppel applies based on that judgment.

 

Although the Anests’ motion for summary judgment is denied, as a result of their motion,

two items were raised that need Board clarification prior to hearing. First, the Board has never

decided that penalties are an item that can be reimbursed as cleanup costs. The Dayton Hudson

line of cases addresses only remedial costs and specifically exempts other expenses such as

witness fees. The Board cannot issue an order directing the Anests to pay for any penalty

imposed on the Abrahams and Millstream as a result of the People’s complaint. To the extent

that any portion of the cross-complaint seeks reimbursement of penalties, it is stricken.

 

 

  

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8

Second, the Anests argue that the regulations on which count II of the cross-complaint is

based were not in existence before they sold the site, and request that the count be dismissed.

This argument is not a proper basis for a motion for summary judgment. Accordingly, the Board

will not consider this argument at this time. The Anests may, of course, address this issue at

hearing.

 

People’s Motion for Summary Judgment Against State Oil and the Anests

 

People’s Motion

 

 

The People first contend that water pollution occurs whenever contamination is likely to

render water unusable, and that no need to show actual harm exists, only that harm would occur

if the contaminated water were to be used. People’s first mot. at 3.

3

The People argue that

knowledge is not an element of a Section 12(a) violation, and that the People must only show

that the alleged polluter had control or the capability to control the premises where the pollution

occurred. People’s first mot. at 4.

 

 

The People assert that State Oil and the Anests had control over the tanks and their

contents during their ownership and operation of the site, that they made attempts to control the

gasoline in December of 1984, and that in February of 1986 gasoline was still entering Boone

Creek. People’s first mot. at 5.

 

 

The People contend that no genuine issue of any material fact exists that during the

ownership or operation of the site by State Oil and the Anests, they caused or allowed the

discharge of gasoline into the environment thereby causing water pollution.

Id

. The People

request that summary judgment against State Oil and the Anests be granted and that said

respondents be found liable for penalties for violating Section 12(a) of the Act.

 

State Oil and the Anest’s Response

 

 

State Oil and the Anests state they only admitted they operated the site until August 1985.

State Oil’s resp. at 2. State Oil and the Anests note that the evidence indicates that the People’s

witness has no recollection of the amount of gasoline that entered the creek or the area that it

covered.

Id

. State Oil and the Anests further contend that this witness’s testimony is an opinion

that was not disclosed in response to an interrogatory and that courts are adamant in refusing to

permit opinions from an undisclosed opinion witness. State Oil’s resp. at 3. State Oil and the

Anests argue that the testimony should not be accepted as the basis for a summary judgment

motion.

 

 

According to State Oil and the Anests, the People must show that State Oil had the

capability of control over the pollution or were in control of the premises where the pollution

occurred in order for a violation to be found.

Id

. State Oil’s resp. at 6. State Oil and the Anests

3

The People’s motion for summary judgment against State Oil and the Anests will be cited as

“People’s first mot. at __.”; The response filed by State Oil and the Anests will be cited as “State

Oil resp. at __.”; the People’s reply will be cited as People’s reply at __.”

 

  

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9

maintain that they were not in possession or control of the station during the times referred to in

the People’s motion - late 1983 through early 1984, and February, 1986 – and contend that the

only relevant remaining fact is that on December 5, 1984 an employee of respondent reported

gasoline seeping from the site into the banks of Boone Creek. State Oil’s resp. at 3. State Oil

and the Anests state that this fact, standing alone, is not sufficient to support the granting of a

summary judgment motion. State Oil’s resp. at 4. State Oil and the Anests argue that the mere

existence of a discharge does not establish a violation and that the People must present evidence

showing the quantity and concentration of the contaminant. State Oil’s resp. at 5.

 

 

State Oil and the Anests also contend that the notice requirements of the Act were not

followed. Specifically, they argue that no contention is present that the notice required in Section

31 was ever sent and that, therefore, no action under Section 31 may be brought. State Oil’s

resp. at 5.

 

 

State Oil and the Anests next address the penalty request, and postulate that the General

Assembly did not intend that the Board should impose a monetary fine in every case of a

violation of the Act. State Oil’s resp. at 6. State Oil and the Anests cite Park Crematory v.

Pollution Control Board, 264 Ill. App. 3d 498, 637 N.E.2d 520 for the proposition that a

discharge alone does not provide the basis for imposition of a penalty.

Id

.

 

State Oil and the Anests attack the importance of the McHenry County judgment and

argue that collateral estoppel cannot be applied on pure speculation as to what the trial court

found. In order for a former judgment to operate as an estoppel, assert State Oil and the Anests,

there must have been a finding of a specific, material and controlling fact in the former case, and

it must conclusively appear that the issue of fact was so in issue that the court rendering the

judgment necessarily determined it. State Oil’s resp. at 8 citing Lange v. Coca-Cola Bottling Co.

of Chicago, Inc., 44, Ill.2d 73, 75, 254 N.E.2d 467 (1969).

 

Finally, State Oil and the Anests conclude that the Board has been presented with

insufficient factual information to even determine that there has been a violation much less that a

penalty should be imposed. State Oil’s resp. at 9. State Oil and the Anests assert that the only

fact presented is the discharge and that because no information concerning the extent or degree

of the discharge exists, the motion should be denied.

 

People’s Reply

 

 

In reply, the People assert that it is not State Oil and the Anest’s position to decide what

is and is not relevant. The People maintain that State Oil and the Anests have owned the site

since 1974, operated the site from April 1984 to August 1985, and continued to have services

performed at the site as late as February 1986. People’s reply at 2. The People claim that State

Oil and the Anests did, in fact, control the site in May 1985 as referenced in their motion.

 

 

The People maintain that the McHenry judgment is not attached for the purpose of issue

preclusion, but for the Board to take judicial notice of the prior proceeding and weigh the facts

set forth in that opinion. People’s Reply at 2. At this point, state the People, only a finding of

 

  

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10

liability is being sought and the People acknowledge that a subsequent proceeding would be

necessary for the Board to determine a specific penalty.

Id

.

 

 

The People contend that a complaint need not be brought pursuant to Section 31 of the

Act in all instances, and that the Illinois Attorney General is permitted to bring complaints on his

own motion.

Id

. The People state that the instant complaint alleges that it is brought by the

Attorney General on his own motion. Finally, the People assert that State Oil and the Anests

have admitted ownership and control during the period the release occurred and that it is

undisputed that a visible sheen of gasoline was present on Boone Creek from the site in

December 1984. People’s reply at 3.

 

Discussion

 

The People’s motion for summary judgment against State Oil and the Anests is

granted. However, before the Board discusses the substance of the motion, a preliminary

matter must be addressed. Although not properly a part of the motion for summary

judgment, in their response, State Oil and the Anests argue that the People cannot bring this

action because the notice requirements of Section 31 were not followed. Section 31 was

amended in 1996, and the amendment became effective on August 1 of that year.

See

415

ILCS 5/31 (2000). Compliance with this section is now a precondition to Agency referral of

a case to the Attorney General for enforcement.

Id.

  

 

Specifically, Section 31(a) requires that within 180 days of becoming aware of a potential

violation, the Agency must serve the alleged violator with a written notice containing specific

information about the potential violation. 415 ILCS 5/31(a) (2000).

 

The Board has addressed this situation before.

See

People v. John Crane, PCB 01-76

(May 17, 2001). The Board has repeatedly held that the Section 31 notice requirements

should be applied only prospectively.

See

People v. Eagle-Pitcer-Boge, PCB 99-152 (July

22, 1999). The Board has found that applying the Section 31 notice requirements when the

violations were initially observed prior to August 1, 1996, would result in the retroactive

application of Section 31.

Id

. In the instant case, the Agency first became aware of

potential violations well before the effective date of Section 31 – as early as December 1984.

Requiring the Agency to provide 180 days notice for violations first noted prior to the

effective date of the amended Section 31 would result in an unreasonable and unworkable

interpretation of Section 31. Accordingly, the Board finds that Section 31 is not a bar to this

complaint.

 

In their motion, the People allege that State Oil and the Anests violated Section 12(a)

of the Act, which states:

   

No person shall cause or threaten or allow the discharge of any contaminants into

the environment in any State so as to cause or tend to cause water pollution in

Illinois, either alone or in combination with matter from other sources, or so as to

violate regulations or standards adopted by the Pollution Control Board under

this Act. 415 ILCS 5/12(a) (2000).

 

  

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11

   

To determine whether respondent violated Section 12(a) of the Act, consideration of three

terms in Section 12(a) is particularly important. First, “contaminant” is defined in Section

3.06 of the Act as:

   

Any solid, liquid, or gaseous matter, any odor, or any form of energy, from

whatever source. 415 ILCS 5/3.06 (2000).

   

Second, "water pollution

"

is defined in Section 3.55 of the Act as:

   

Such alteration of the physical, thermal, chemical, biological or radioactive

properties of any waters of the State, or such discharge of any contaminant into

any waters of the State, as will or is likely to create a nuisance or render such

waters harmful or detrimental or injurious to public health, safety or welfare, or to

domestic, commercial, industrial, agricultural, recreational, or other legitimate

uses, or to livestock, wild animals, birds, fish or other aquatic life. 415 ILCS

5/3.55 (2000).

   

Additionally, "waters" as defined in Section 3.56 of the Act means:

   

All accumulations of water, surface and underground, natural, and artificial,

public and private, or parts thereof, which are wholly or partially within, flow

through, or border upon this State. 415 ILCS 5/3.56 (2000).

   

Given these definitions, the Board must determine whether a genuine issue of material

facts exists that State Oil and the Anests violated Section 12(a) of the Act. Section 12(a) can be

broken down into four main elements. A respondent must (1) cause, threaten, or allow a

discharge of (2) a contaminant (3) into the environment (4) so as to cause or tend to cause water

pollution. The Board finds that the People sufficiently proved each element for the reasons

expressed below.

 

It is uncontested that State Oil and the Anests owned the site since approximately 1974,

operated the site from April 1984 to August 1985, and that the gasoline was discovered leaking

onto Boone Creek in late 1983 or early 1984. Also uncontested is that on December 5, 1984, an

employee of State Oil informed the Agency that gasoline was seeping from the site onto the

banks of Boone Creek and then entering the creek – this fact is acknowledged by State Oil and

the Anests in their response to the motion for summary judgment.

See

State Oil’s resp. to

People’s first mot. at 3.

 

The Board finds that Boone Creek is a “water of the State,” defined by the Act as “all

accumulations of water, surface and underground, natural, and artificial, public and private, or

parts thereof, which are wholly or partially within, flow through, or border upon this State. 415

ILCS 5/3.56 (2000). Thus, it is undisputed that a contaminant was discharged into Boone Creek

 

  

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12

during the timeframe State Oil and the Anests owned and operated the site, and that State Oil and

the Anests “caused, threatened, or allowed” a discharge of contaminants into Boone Creek.

 

The People must also show that State Oil and the Anests had the capability of control

over the pollution or were in control of the premises where the pollution occurred. The owner of

the source of pollution causes or allows the pollution within the meaning Section 12(a) and is

responsible for that pollution unless the facts establish that the owner either lacked the capability

to control the source or had undertaken extensive precautions to prevent vandalism or other

intervening causes. Davinroy, 618 N.E.2d at 1287. The uncontested facts make clear that State

Oil and the Anests not only owned the site while gasoline was seeping into Boone Creek, but

were also admittedly operating the site at that time. This incident alone provides sufficient

indicia of control for the purpose of Section 12(a).

 

The Board must next address whether or not the discharge caused or tended to cause

water pollution. Two items of evidence currently before the Board address this issue:1) the

testimony contained in the deposition transcript of Edward O. Osowski, an employee of the

Agency in the office of emergency management, attached as exhibit D to the motion for

summary judgment, and 2) an incident control sheet attached as an exhibit to the deposition.

Osowski referenced seeing the gasoline entering Boone Creek during his site visit in December,

1984. In his deposition, Osowski testified that the gasoline resulted in an aquatic toxicity

violating the water act. People’s first mot., ex. D. at 28

 

The Board finds that State Oil and the Anests discharged gasoline into Boone Creek that

was likely to create a nuisance or render such waters harmful or detrimental or injurious and

result in water pollution as defined by the Act.

See

415 ILCS 5/3.55 (2000). Accordingly, the

Board finds that no genuine issue of material fact exists that State Oil and the Anests violated

Section 12(a) of the Act (415 ILCS 5/12(a) (2000)) by causing, allowing, or threatening the

discharge of contaminants, in the form of gasoline into Boone Creek so as to cause or tend to

cause water pollution. Thus, the People’s motion for summary judgment is granted.

 

People’s Motion for Summary Judgment Against the Abrahams and Millstream

 

The People’s Motion

 

 

Initially, the People note that this motion for summary judgment is limited to the

Abrahams and Millstream and the alleged 12(a) violation during their ownership and operation

of the site as well as for the costs incurred by the Agency in performing remedial activities at the

site. People’s second mot. at 2.

4

The People first contend that the water pollution occurs

whenever contamination is likely to render water unusable, and that no need to show actual harm

exists, only that harm would occur if the contaminated water were to be used. People’s second

mot. at 3.

 

 

4

The People’s motion for summary judgment against the Abrahams and Millstream will be cited

as “People’s second mot. at __.”; the response filed by the Abrahams and Millstream will be

cited as “Millstream’s resp. at __.”; the People’s reply will be cited as “People’s reply at __.”

 

  

---

 

13

 

As uncontested facts, the People assert that the Abrahams and Millstream admit they took

possession of the site on August 15, 1985; that the Abrahams admitted that they are the owners

of the site and the USTs on the site; and that Millstream admitted it is the operator of the site.

People’s second mot. at 5.

 

 

The People further allege as uncontested facts that the Abrahams and Millstream

admitted that in 1989 the Agency excavated a trench at the site and filed the trench with gravel;

that gasoline continued to seep on the surface of the creek adjacent to the site after the Abrahams

and Millstream became owners and Millstream became the operator; and that the Agency

conducted construction activities at the site to address the concern of harm to the river by the

petroleum. People’s second mot. at 6.

 

 

The People assert that it is uncontested that gasoline continued to seep into the creek

from the banks of the creek adjacent to the site during the ownership and operation of the site by

the Abrahams and Millstream. People’s second mot. at 6. The People allege that gasoline was

observed on the creek adjacent to the site, thus causing or tending to cause water pollution in

Illinois and violating Section 12(a) of the Act.

Id

.

 

 

The People contend that no genuine issue of material facts exists that the People hired

and paid contractors to perform corrective action work at the site during he ownership and

operation of the Abrahams and Millstream, and that pursuant to Section 57.12 of the Act the

Abrahams and Millstream are liable for the costs of investigative, preventive, corrective and

enforcement actions resulting. People’s second mot. at 7.

 

The Abrahams and Millstream’s Response

 

 

The Abrahams and Millstream assert that the People did not present facts sufficient to

prove a violation of Section 12(a) because no attempt to show that the quantity and concentration

of the gasoline was likely to create a nuisance or render the waters harmful, detrimental or

injurious was made. They cites to Environmental Site Developers v. White & Brewer Trucking,

Inc., PCB 96-180 (Nov. 20, 1997) for this proposition. Millstream’s resp. at 3-4.

 

 

The Abrahams and Millstream next contend that the motion must be denied because there

is no proof that the Abrahams and Millstream were in possession of the premises at the time that

the discharge occurred and were, thus, able to control the discharge. Millstream’s resp. at 4.

The Abrahams and Millstream argue that Section 12(a) requires that to prove a 12(a) violation,

the alleged violator must be able to control the discharge of contaminants.

Id

. The fact,

continues the Abrahams and Millstream, that a subsequent seepage of gasoline into the creek

occurred during their involvement with the site does not prove that they were in possession or

control of the site at the time the gasoline was discharged into the environment, because the

gasoline could, in fact, have been in the ground as a result of releases occurring in the years prior

to their involvement with the site. Millstream’s resp. at 5.

 

 

Next, the Abrahams and Millstream note that penalties are not mandatory in this instance,

and that the Board may find that no penalties are warranted after a consideration of the 42(h)

factors. Millstream’s resp. at 6. According to the Abrahams and Millstream, the People have not

 

  

---

 

14

presented any evidence that penalties are warranted in this case and that the motion for summary

judgment must be denied insofar as it requests a finding that the Abrahams and Millstream are

liable for penalties.

Id

. Regardless, the argument continues, any penalties that are requested

would be a direct result of fraud and breach of contract by the Anests, who owned the site prior

to the Abrahams and Millstream.

Id

.

 

 

The Abrahams and Millstream next address count II of the complaint. They assert that

even though not solely responsible for the alleged contamination at the site, the People have sued

only the Abrahams and Millstream in count II of the complaint, and that this is not allowed under

the proportionate liability statute that prohibits the People form seeking recovery from a person

in excess of that person’s proportionate liability. Millstream’s resp. at 7. The Abrahams and

Millstream argue that without control over the release, no liability under Section 57.2 of the Act

(415 ILCS 5/57.2 (2000)) may exist. Millstream’s resp. at 8.

 

 

The Abrahams and Millstream stress that the People have presented no evidence in the

form of testimony or affidavit setting forth the costs allegedly incurred by the Agency at the site,

and that no witness has admitted to compiling cost figures. Millstream’s resp. at 9. The

Abrahams and Millstream contend that the lack of evidence concerning costs and the propriety of

work giving rise to the costs are contested issues of material fact and that summary judgment

must, therefore, be denied. Millstream’s resp. at 10.

 

 

Finally, the Abrahams and Millstream assert that the People delayed filing of its action

for costs for more than seven years after the majority of the costs were incurred, and that this

creates a triable defense of laches as pled by the Abrahams and Millstream and acknowledged by

the Board in a May 18, 2000 order denying the People’s motion to strike. Millstream’s resp. at

11.

 

People’s Reply

 

 

In reply, the People address three arguments regarding count I of the complaint. First,

they note that a specific penalty amount is not being sought at this time, and that they have

moved the Board for an order finding that the Abrahams and Millstream have violated Section

12(a) of the Act while reserving the question of penalties for a separate proceeding. People’s

second reply at 1-2. The People next argue that the Abrahams and Millstream have created an

artificial and irrelevant distinction between the discharge of the gasoline into the ground and the

discharge of the gasoline into Boone Creek. People’s reply at 2. The essential fact, assert the

People, is that the Abrahams and Millstream had the ability to control the gasoline from entering

Boone Creek, but chose not to as it was easier to blame someone else.

Id.

The People next point

to the deposition of Stephen Colantino, a Program Manager for the Agency’s Bureau of Land.

The deposition is attached as exhibit E of the motion for summary judgment. In the deposition,

Colantino testifies to the injury to the environment due to the gasoline entering Boone Creek.

Id

.

 

The People next address arguments made in the response pertaining to count II of the

complaint. First, the People assert that the proportionate share liability statute does not apply

because the Abrahams and Millstream are subject to the State underground storage tank laws.

People’s second reply at 3. The People contend that liability under Section 57.12 of the Act is

 

  

---

 

15

based on ownership or operation, that the Abrahams and Millstream qualify as both, and that

they made the conscious decision not to act.

Id

. Further, the People allege that the motion for

summary judgment is only meant to establish liability for the costs on the part of the Abrahams

and Millstream, and that the argument that the lack of costs in the motion are grounds to deny it

is not persuasive.

Id.

The People conclude that no genuine issue of fact on the liability of the

costs is in issue and that summary judgment is appropriate. Peoples’ second reply at 4.

 

Discussion

 

The People’s motion for summary judgment against the Abrahams and Millstream is

granted in part and denied in part. The Board first considers the alleged violation of Section

12(a). Using the definitions referenced in the previous section, the Board must determine

whether a genuine issue of material facts exists as to whether the Abrahams and Millstream

violated Section 12(a) of the Act. As before, Section 12(a) can be broken down into four main

elements. A respondent must (1) cause, threaten, or allow a discharge of (2) a contaminant (3)

into the environment (4) so as to cause or tend to cause water pollution. The Board finds that the

People sufficiently proved each element for the reasons expressed below.

 

It is uncontested that the Abrahams and Millstream took possession of the site on August

15, 1985, that the Abrahams are the owners of the site and the USTs on the site, and that

Millstream is the operator of the site. Also uncontested is that gasoline continued to seep from

the site entering Boone Creek during the Abrahams and Millstream’s tenure. Once again, it is

undisputed that a contaminant was entering Boone Creek during the timeframe that the

Abrahams and Millstream owned and operated the site.

 

The Board has determined that Boone Creek is a water of the State as defined by the Act.

See

415 ILCS 5/3.56 (2000). Thus, it is undisputed that a discharge of a contaminant was

entering Boone Creek during the timeframe the Abrahams and Millstream owned and operated

the site, and that the Abrahams and Millstram “caused, threatened, or allowed” a discharge of

contaminants into Boone Creek.

 

The Abrahams and Millstream argue that seepage during the time they were involved

with the site could have been gasoline that was in the ground as a result of a prior release. The

Board is not convinced. The fact remains that the Abrahams and Millstream were in control of

the site while a contaminant from the site was entering a water of the State. As before, the Board

must next address whether or not the discharge caused or tended to cause water pollution, and

specifically whether the quantity and concentration of the gasoline was likely to create a

nuisance of render the waters harmful, detrimental or injurious.

 

In their reply, the People refer to the testimony of Colantino as proving a violation of

Section 12(a). People’s second reply at 3. The testimony of Colantino addresses the issue of

environmental impact. Colantino states that the release was an immediate and significant risk of

harm to human life and health and the environment. Colantino Dep. test. at 62. When asked for

the basis of this opinion, Colantino cited the volume of the product, the recreational use of the

river, and the concerns of the local fire department from a fire and safety position, and the

Agency’s emergency response office’s significant concerns over the health and safety aspects of

 

  

---

 

16

the situation.

Id

. Colantino further testified that field monitoring was conducted and indicated

that noticeable levels of volatiles were present. Colantino Dep. test. at 63.

    

The Board finds that the Abrahams and Millstream discharged gasoline into Boone Creek

that was likely to create a nuisance or render such waters harmful or detrimental or injurious and

result in water pollution as defined by the Act.

See

415 ILCS 5/3.55 (2000). Accordingly, the

Board finds that no genuine issue of material fact exists that the Abrahams and Millstream

violated Section 12(a) of the Act (415 ILCS 5/12(a) (2000)) by causing, allowing, or threatening

the discharge of contaminants, in the form of gasoline, into Boone Creek so as to cause or tend to

cause water pollution. The People’s right to relief is clear. Thus, the People’s motion for

summary judgment is granted in this regard.

    

The Board next turns to count II of the People’s complaint. The regulations pertaining to

the charges against the Abrahams and Millstream place responsibility on the owner or operator

of the USTs. Specifically, Section 57.12 provides:

 

Notwithstanding any other provision or rule of law, the owner or operator, or both

of an underground storage tank shall be liable for all costs of investigation,

preventative action, corrective action and enforcement action incurred by the

State of Illinois resulting form an underground storage tank. 415 ILCS 5/57/12

(2000).

 

 

Section 57.2 of the Act, 415 ILCS 5/57.2 (2000)) provides definitions of corrective

action, owner and operator. The Abrahams and Millstream do not contest that the actions in

question were corrective action or that it does not qualify as operator, and the Abrahams and

Millstream do not contest that they are the owners of the site.

 

The Abrahams and Millstream make a number of arguments as to why a motion for

summary judgment on count II is not appropriate. First, they contend that count II of the

People’s complaint is a violation of the proportionate share liability statute. Section 58.1(a)(2)

excludes from proportionate share liability a site “subject to federal or State underground storage

tank laws.” Further, the Board's rules implementing the proportionate share liability program

codify this exclusion.

See

35 Ill. Adm. Code 741.105(f)(5). Thus, the People’s action under

Section 57.12 is excluded from proportionate share liability, and Section 58.9 of the Act

therefore does not limit respondents' liabilities.

 

Next, the Abrahams and Millstream argue that the People have not presented sufficient

evidence setting forth the costs allegedly incurred by the Agency in this matter. In reply, the

People assert that they are only seeking to establish liability for the costs on the part of the

Arbrahams and Millstream. As the People are seeking only liability and reserving the amount of

the costs for hearing, this argument is moot.

 

Finally, the Abrahams and Millstream argue that a triable defense of laches creating a

genuine issue of material fact exists. As noted in the Board’s order of May 18, 2000, the State is

not immune from application of laches in exercise of its governmental functions under

 

  

---

 

17

compelling circumstances. People v. State Oil, slip op. at 4, citing Hickey v. Illinois Central

Railroad Co., 35 Ill. 2d 427, 220 N.E.2d 415 (1966).

 

The Abrahams and Millstream assert that by waiting more than seven years after the

majority of costs were incurred to file its action, the People have prejudiced them in that they

were unable to recover that amount in their action against the Anests. While not necessarily

agreeing with this statement, the Board finds that a genuine issue of material fact concerning the

affirmative defense of laches exists The issue of when the costs sought by the People were

incurred remains unclear. Until the Board can ascertain the dates of these costs, it cannot

properly determine whether compelling circumstances are present in this matter so that the

affirmative defense of laches may lie. Accordingly, the People’s second motion is denied in this

regard.

 

The Abrahams and Millstream’s Motion for Summary Judgment

Against the People on Count II

 

The Abrahams and Millstream’s Motion

 

The Abrahams and Millstream argue that the People’s right to bring a cost recovery

action such as that brought in count II is limited and constrained by Section 58.9 of the Act. 415

ILCS 5/58.9 (2000). Millstream’s mot. at 2.

5

The Abrahams and Millstream contend that the

People violated the aforementioned limits and constraints by filing a cost recovery action solely

against the Abrahams and Millstream even though the undisputed facts show that the costs at

issue were proximately caused or contributed to by other persons. Millstream’s mot. at 3.

 

No genuine issue of fact exists, assert the Abrahams and Millstream, that the Anests and

State Oil are at least partially responsible for the contamination and the costs incurred at the site,

and that the releases that occurred during the Anests’ tenure contributed to the costs of

addressing the contamination at the site. Millstream’s mot. at 7. The Abrahams and Millstream

note that the McHenry County judgmentmakes the responsibility of the Anests clear in that the

jury in that case awarded the Abrahams and Millstream the total sum spent by them to mitigate

the release of gasoline from the gas station’s premises into the nearby creek. Millstream’s mot.

at 8.

 

Finally, the Abrahams and Millstream assert that Section 58.9 of the Act does not allow

the People to maintain the cost recovery claim contained in count II and that, given the facts of

this case, count II cannot be brought. Millstream’s mot. at 9.

 

 

 

5

The Abrahams and Millstream’s motion for summary judgment on Count II of the People’s

complaint will be cited as “Millstream mot. at __.”; the People’s response will be cited as

“People’s resp. at __.”; the reply filed by the Abrahams and Millstream will be cited as

“Millstream’s reply at __.”

 

  

---

 

18

Peoples’ Response

 

In response, the People argue that Section 58.9 is not applicable to this proceeding

because the complaint was brought under Section 57.12(a). People’s resp. at 2. The People also

assert that because Section 58.9 has an effective date of July 1, 1996, it does not apply to costs in

this case occurring through December 31, 1995.

Id

. Further, the People contend that the

Abrahams and Millstream have admitted both ownership and operation of the USTs at the site

during the time period that remedial activities were performed.

Id.

Finally, the People state that

the allegations of count I set out facts that State Oil caused or allowed water pollution but that

nothing further from those allegations should be inferred. People’s resp. at 3.

 

The Abrahams and Millstream’s Reply

 

In reply, the Abrahams and Millstream state that their motion for summary judgment is

based on two uncontested facts: one, that other persons (the Anests) are responsible for the

release at issue; and two, that the People have, nonetheless, sued only the Abrahams and

Millstream to recover all the costs that the State of Illinois incurred in addressing the release.

Millstream’s reply at 2. The Abrahams and Millstream reiterate that cost-recovery actions

seeking to impose a disproportionate share of remedial costs on a person are expressly prohibited

by Section 58.9 of the Act, and that the People do not dispute that Section 58.9, if applied to this

case, would bar the action.

Id.

 

 

The Abrahams and Millstream assert that adjudicative bodies like the Board are required

to enforce the plain language of a statute as written, and that the plain language of Section 58.9

applied to this case mandates that the summary judgment motion must be granted. Millstream’s

reply at 3-4.

 

Next, the Abrahams and Millstream argue that Section 58.9 does not attempt to regulate

or limit the costs that may or may not be recovered to costs incurred at certain times.

Millstream’s reply at 6. They continue that this action was filed well after the effective date of

Section 58.9, and that this action is subject to the prohibition contained therein.

Id.

Finally, the

Abrahams and Millstream contend that Section 58.9 expressly provides that it controls over any

and all other provisions of the Act because it contains the provision that ‘notwithstanding any

other provisions of this Act to the contrary’ in its first line. Millstream’s reply at 7, citing 415

ILCS 58.9(a)(1) (2000).

 

Discussion

 

The motion for summary judgment against the People on count II is denied. As

previously discussed, the Abrahams and Millstream’s site is excluded under Section 58.1(a)(2)

from proportionate share liability because it is a site subject to federal or State underground

storage tank laws.

 

The Abrahams and Millstream’s motion relies entirely upon the applicability of

proportionate share liability to the site in question. As this is the only argument made in the

motion, no further discussion is necessary and the motion is denied in total.

 

  

---

 

 

19

 

CONCLUSION

 

 

The Board denies the Anests’ motion for summary judgment against the Abrahams on

their cross-complaint, but strikes count II of the cross-complaint and any portion of the cross-

complaint that seeks reimbursement of penalties. The Board grants the People’s motion for

partial summary judgment against State Oil and the Anests. The Board grants the People’s

motion for summary judgment against the Abrahams and Millstream in part and denies it in part.

Specifically, the motion for summary judgment is granted as to count I of the People’s complaint

that alleges a violation of Section 12(a) of the Act (415 ILCS 5/12(a) (2000)), but denied as to

count II of the People’s complaint seeking reimbursement for costs incurred by the State

pursuant to Section 57.12 of the Act. 415 ILCS 5/57.12 (2000). Finally, the Board denies the

motion for summary judgment filed by the Abrahams and Millstream against the People on count

II of the People’s complaint.

 

The People’s motions for summary judgment sought only a finding of liability.

Accordingly, issues involving penalty determinations for the found violations of Section 12(a)

must be addressed at hearing, as must all other remaining issues. The parties are directed to

hearing as expeditiously as possible.

 

 

IT IS SO ORDERED.

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on April 4, 2002, by a vote of 6-0.

 

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control