ILLINOIS POLLUTION CONTROL BOARD
    July 18, 1996
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    LLOYD WIEMANN, d/b/a WIEMANN ICE
    AND FUEL, TEXACO REFINING and
    MARKETING, INC., AND EUGENE and
    CHERYL HALBROOKS,
    Respondents.
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    PCB 93-191
    (Enforcement - UST)
    OPINION AND ORDER OF THE BOARD (by C.A. Manning):
    This matter comes before the Board on a motion for leave to join additional parties
    filed by respondent Lloyd Wiemann d/b/a Wiemann Ice and Fuel (Wiemann) on October 30,
    1995. In an order dated March 25, 1996 Hearing Officer Deborah Frank ordered Wiemann to
    serve the motion on the parties sought to be added: Texaco Refining and Marketing Inc.
    (TRMI) and Eugene and Cheryl Halbrooks (Halbrooks). On April 15, 1996 TRMI filed a
    response in opposition to Wiemann’s motion to join additional parties. Wiemann subsequently
    filed a reply to TRMI’s response on May 2, 1996. This order addresses Wiemann’s motion to
    join additional parties and TRMI’s response in opposition to Wiemann’s motion.
    BACKGROUND AND PROCEDURAL HISTORY
    The Illinois Attorney General, representing the People of the State of Illinois on behalf
    of the Illinois Environmental Protection Agency (Agency), filed this enforcement case on
    October 8, 1993 alleging that Wiemann was the owner or operator of one or more tanks and
    underground pipes located at two locations: (1) 1800 Vandalia Street, Collinsville, Madison
    County, Illinois (Site One) and (2) Route 111 and Forest Boulevard, Washington Park, St.
    Clair County, Illinois (Site Two). Complainant also alleged that Wiemann failed to file 20-day
    and 45-day reports and alleged that Wiemann failed to perform abatement measures as required
    by 35 Ill. Adm. Code 731.162, 731.163, 731.160 (1994).
    On February 1, 1996 the Board issued an opinion and order addressing the motion for
    summary judgment filed October 6, 1995 by complainant, the People of the State of Illinois on
    behalf of the Illinois Environmental Protection Agency (Agency), and Wiemann’s cross-
    motion for summary judgment filed on December 18, 1995. The Board denied complainant’s
    motion for summary judgment as to Site One and granted partial summary judgment as to the
    Site Two. The Board further denied Wiemann’s cross-motion for summary judgment.
    Regarding Site One, the Board found that a genuine issue of material fact needed further
    2
    determination at hearing since Wiemann denied being owner or operator of the underground
    storage tanks (USTs). The Board also decided that the penalty issue had yet to be determined
    with regard to Site Two. The Board ordered this case to proceed to hearing.
    ARGUMENT
    Wiemann argues in its motion for leave to join additional parties that it is not the owner
    or operator of the USTs at Site One. Wiemann asserts that TRMI is the owner of the USTs at
    Site One. Wiemann further argues that the service station owners, Eugene and Cheryl
    Halbrooks, are the operators of Site One since the Halbrooks are responsible for the vending
    of fuel products at the premises. As such, they were responsible for the daily operation of the
    UST system. (Motion to Join at 2-3.) Wiemann states that its role was limited to supplying
    the fuel and owning the pumps and signage at Site One. Wiemann argues that evidence exists
    to prove that it is neither the owner nor operator of the USTs at Site One and that TRMI and
    the Halbrooks should be designated as owner and operator. Wiemann seeks to prevent
    assigning liability and penalties to a person who has no statutory responsibility for the USTs at
    issue; therefore, Wiemann requests that this Board join both TRMI and the Halbrooks as
    respondents in this matter. (
    Id
    . at 5.)
    TRMI responded by arguing that it did not own or operate the USTs during the time of
    the release in question. TRMI asserts that because the USTs were sold to the Halbrooks in
    1986 and because the release occurred in April 1991, the Halbrooks were the owners during
    the time of the release. TRMI states that the definition of an underground storage tank owner
    or operator refers to a person who presently owns the underground storage tank. (See 35 Ill.
    Adm. Code 731.112 (1994).) (Response at 2-3.) TRMI asserts that the Bill of Sale signed on
    November 21, 1986 by TRMI’s attorney and the Halbrooks releases TRMI of all risks,
    liabilities, and hazards. TRMI also asserts that the indemnification and “hold harmless
    clauses” in the Bill of Sale require the Halbrooks to assume responsibility for the USTs located
    at Site One.
    Wiemann’s reply states that TRMI did not address its potential status as operator of the
    USTs located at Site One. Wiemann further argues that the Bill of Sale is an agreement
    between TRMI and the Halbrooks which has no direct nexus to the liability issues present in
    this matter. (Reply at 2.) Wiemann asserts that TRMI may pursue the Halbrooks for
    fulfillment of the indemnity provision in the Bill of Sale after TRMI and the Halbrooks are
    joined and after the Board determines who is the owner or operator of the USTs at Site One.
    Wiemann argues that though the release in question was reported in April 1991, the release
    may have actually occurred before TRMI sold the USTs to the Halbrooks. Finally, Wiemann
    argues that a former tank farm on Site One removed by TRMI in 1984 caused contamination to
    Site One and continues to cause off-site impacts. (
    Id
    . at 4.) Therefore, Wiemann states TRMI
    should be added as a party respondent to insure that all issues regarding owner or operator
    status of the USTs at Site One may be resolved in this matter.
    ANALYSIS
    3
    In determining whether to join an additional party, the Board refers to Section
    103.121(c) of the Board’s procedural rules. (35 Ill. Adm. Code 103.121(c) (1994).) Section
    103.121(c) requires that the Board bring in another party if a complete determination of a
    controversy cannot occur without the presence of the other party. This section further allows
    the Board or hearing officer to join another party to a controversy in an enforcement
    proceeding if the other party has an interest which the order may affect. In order for the
    Board to make a complete determination of the factual and legal issues concerning liability, we
    must determine the proper owner or operator of Site One for this enforcement action. The
    pleadings in this case have not presented the Board with adequate information to determine
    which parties are responsible for the contamination at Site One. Presently, all potential
    owners or operators have not been joined before the Board so as to insure that all liability
    issues will be adequately addressed. As a result, the Board finds that a complete determination
    of this matter cannot be made, and accordingly joins both the Halbrooks and TRMI.
    Halbrooks
    On May 2, 1996 the hearing officer in this case found that Wiemann substantially
    complied with the previous March 25, 1996 hearing officer order requiring service on the
    Halbrooks and TRMI. The Board acknowledges that though Eugene Halbrooks was unable to
    be served, Cheryl Halbrooks was properly served on April 5, 1996. The Board has not
    received any filing from either Cheryl or Eugene Halbrooks which opposes Wiemann’s motion
    to join additional parties. The Halbrooks may be potential owners or operators. For these
    reasons, the Board joins the Halbrooks as additional party respondents in this case.
    TRMI
    TRMI argues that it is neither the owner nor operator of the USTs at Site One. TRMI
    believes that the Halbrooks own the USTs located at Site One and, therefore, TRMI believes it
    should be released of all liability. TRMI fails to draw a nexus, however, between the date of
    the Bill of Sale to the Halbrooks and the time of the release of the contaminants. The
    pleadings address the date which the release was reported but no discussion exists regarding
    the timeframe of the actual release. Further, TRMI fails to explain what remediation, if any at
    all, took place due to the previous removal of the other USTs located at Site One in 1984.
    TRMI may be a potential owner or operator in this matter; it raises issues and arguments that
    would be best presented at hearing. Therefore, the Board also joins TRMI as an additional
    party respondent in this matter.
    At this time, the Board directs this matter to proceed to hearing. Several issues of fact
    and law must still be addressed in this case. The Board requires information on the record that
    shows which party is the owner or operator of the USTs at Site One. Further, consistent with
    the February 2, 1996 Board order, the Board requests that evidence and arguments concerning
    any penalty be addressed at hearing with regard to Site Two. The Board stresses the
    importance that this matter expeditiously proceed to hearing to address all questions which
    remain in this case. This matter shall proceed to hearing consistent with this order.
    CONCLUSION
    4
    In summary, the Board grants Wiemann’s motion to join both additional parties, TRMI
    and the Halbrooks.
    1
    The Board denies TRMI’s response motion in opposition to Wiemann’s
    motion to join. The Board directs the hearing officer to promptly set this matter for hearing.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above opinion and order was adopted on the _____ day of ___________, 1996, by a vote
    of ______________.
    1
    The caption of this opinion and order has been amended to include these joined parties. This
    amended caption should be used in all future pleadings.
    ___________________________________
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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