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September 7,

1995

OLIVE STREIT and LISA STREIT,

)

Complainants,

V.

)

PCB 95—122

)

(Enforcement

-

UST)

OBERWEIS DAIRY,

INC., RICHARD

)

3. FETZER and JOHNNIE W.

WARD

)

d/b/a SERVE-N-SAVE, and RICHARD

)

J.

FETZER, individually, AMOCO

)

OIL COMPANY, MOBIL OIL

)

CORPORATION and ILLINOIS

)

ENVIRONMENTAL PROTECTION AGENCY,

)

Respondents.

ORDER OF THE BOARD (by CA. Manning):

This matter

is before the Board on several motions to

dismiss filed by five of the respondents in this cause.

The

underlying citizens’ enforcement complaint was filed by Olive and

Lisa Streit

(Streits)

on April

4,

1995 and alleges that the

respondents, with the exception of the Illinois Environmental

Protection Agency (Agency), violated the underground storage tank

(UST) provisions

of the Illinois Environmental Protection Act

(Act)

(415 ILCS 5/57).

The complaint seeks injunctive relief,

costs and civil penalties.

Motions to dismiss were timely filed

by Amoco Oil Company

(Amoco)

on April

21,

1995; Oberweis Dairy,

Inc.

(Oberweis)

on May 5,

1995; the Agency on April 24,

1995;

Richard J. Fetzer (Fetzer) on May 11,

1995; and pursuant to an

extension granted by the

Board, Mobil

Oil Corporation

(Mobil)

on

Nay 12,

1995.

On July 26,

1995, Mobil filed a motion for leave

to amend it motion to dismiss, which the Board hereby grants.

Additionally, our review of Fetzer’s motion to dismiss shows that

Fetzer appears to be moving for dismissal in his capacity of

being held personally, and individually liable, rather than in

his capacity as doing business as Serve-N—Save.

Therefore,

the

only party to have not filed a motion to dismiss,

or otherwise

answer is Johnnie W. Ward.

Further, no response has been filed

by the Streits to any of the motions pending before the Board.

Though each motion to dismiss raises independent and various

grounds for dismissal relative to each respondent, the motions,

other than that of

the Agency,

all argue the complaint is

factually and legally deficient pursuant to the Act

(415 ILCS

31(a)) and the Board’s procedural rules

(35 Ill. Adm. Code

Section 103.122(c)),

is therefore frivolous and should be

dismissed.

The Agency’s motion seeks to have the Agency

dismissed as a party-respondent on the basis that the complaint

is in actuality,

asking the Agency to perform an investigation of

the property at issue.

---

.2

For the reasons explained in this order, we hereby deny the

motions to dismiss filed by Amoco, Oberweis, Fetzer and Nobil and

grant the Agency’s motion to dismiss itself out as

a respondent.

Additionally we find,

as we are required to do pursuant to

Section 31(b)

of the Act, that this matter is neither frivolous

or duplicitous.

Amoco, Oberweis, Fetzer and Mobil may answer the

complaint within 30 days from service of this order and we set

this matter for hearing.’

BACKGROUND

This case involves the drinking water source of three

residential properties owned and occupied by the Streits and

which are located at 1003,

1009 and 1011 North Lake Street,

Aurora, Illinois.

The Streits allege that

a natural spring which

serves as the Streits drinking water source is contaminated and

that the contamination was caused by one or more of the

neighboring properties of the respondents: Amoco, Oberweis,

Fetzer and Ward dfb/a Serve-N-Save or Mobil.

The Streits’ property is adjacent to or within a three-block

~

of

three

~ite~ owned crnrreritly by Amoco, Oberweig ~nd Mobil.

According to the allegations of the complaint,

all three

properties currently have or had USTs which sustained reportable

releases of petroleum products.

Amoco

is located at 1120 North

Lake Street

(the Amoco site)

and according to complaint sustained

a reportable release of petroleum product from a UST sometime in

1991 which was prompted by an odor complaint and groundwater

sampling (IESDA No.

91-0750).

(Complaint at 3-4.)

The

complainants allege they have in their possession reports which

indicate that due to the proximity of the Amoco site, migration

from the Amoco releace may have followed a public cower or water

main, to the edge of the Fox River.

Oberweis is located at 945 and 1011 North Lake Street

(the

Oberweis site)

and is currently a dairy and retail ice cream

store.

(Complaint at 4-5.)

The dairy is uphill and

approximately 500 feet from the Streits and was once operated as

a retail gas station by Fetzer and Ward d/b/a Serve-N-Save.

(Complaint at

5.) Over time,

eight heating oil, gasoline and

diesel-containing USTs were located on the property,

(four 3,000-

gallon UST5,

three 8,000-gallon UST and one 1100—gallon heating

oil UST), though several USTs were removed which lead to the

discovery of petroleum contamination which was reported, and for

which Oberweis was at one time performing corrective action.

(IESDA No. 91—1723).

(Complaint at 5—6; Exhibit

“D”.)

An

1Since Ward has not answered the complaint or filed a motion to dismiss

within the time allowed under our procedural rules, he is~consideredto have

“denied” the allegations of the complaint.

(35

Ill. Adm. Code Section

103.122(d).)

---

—S

attachment to the complaint indicates that in 1991, the Agency

had approved Oberweis’ groundwater monitoring plan, though the

current status of corrective action is either unknown, or

according to the complainants, inactive.

Mobil is the owner/operator or certain USTs located at 1218

North Lake Street and according to the complaint,

this property

also sustained a reportable release

(IESDA No. 92-1635)

stemming

from a tank removal.

(Complaint at 4.)

According to the

complaint, Mobil is “currently under review for required

replacement of monitor wells due to findings of groundwater

contamination.”

(Complaint at

7.)

The Streits allege that their residential properties have

never been used for commercial purposes, have no underground

storage tanks, and that up until 1991,

their drinking water

sources were a spring located at 1009 North Lake Street and a

deep water well,

and that these were “potable water supplies”

(within the meaning of the Illinois Water Well Construction

Code).

(Complaint at 5 and 8.)

After sometime in 1991,

which is

the same time frame in which the neighboring Amoco, Oberweis and

Mobil sites experienced liSP releases, the Streits’ drinking water

sources became contaminated with unlawful concentrations of

petroleum products.

(Complaint at 7).

The City of Aurora has

provided an alternative source for pOtable water for the Streits;

however, the Streits allege that pursuant to the Illinois Water

Well Construction Code,

this is the responsibility of the

owner/operator who is the source of the potential contamination.

Regarding Oberweis and Fetzer, the complaint specifically

alleges these respondents are in violation of Section 22.18(A),

now Section 57.1(a)

of the Act, for failing to sufficiently

respond to a release of petroleum,

conduct groundwater

investigation,

or conduct corrective action in accordance with

the requirements of the Illinois’ UST program.

(Complaint, at

8,

par.

25(a).)

The complaint also alleges that respondents violated

Section 22.18(A)

for failing to register the USTs.

(Id.,

par.

25(b).)

Finally, the complaint alleges respondents are in

violation of Section 57.7

(sic.)

(Section 57.12 contains the

majority of these alleged violations), for costs and damages

incurred by the State, the complainants, the costs of remediation

and restoring a potable water supply.

Regarding

Amoco

and Mobil,

the complaint alleges that if after an investigation occurs, and

the source of the contamination is shown to be Amoco or Mobil,

that the Board find Amoco or Mobil similarly in violation of the

Act and liable for costs.

---

4

APPLICABLE PROVISIONS OP THE ACT MID REGULATIONS

GOVERNING THE MOTION TO DISMISS

Specifically, the Act and our rules governing the factual

and legal surficiency of a citizens’ enforcement complaint

provide:

Section 31(a)

of the Act2:

The complaint ~

shall specify the provision of this

law or the rule or regulation or permit or term or

condition thereof under which such person is said to be

in violation,

and a statement of the manner in, and the

extent to which such person is said to violate this law

or such rule or regulation or permit or term or

condition thereof

***.

Section 103.122(c)

of the Board’s Procedural Rules:

(c) The formal complaint shall contain:

(1)

A reference to the provision of the Act and regulations

which the respondents are alleged to be violating;

(2)

The dates,

location,

events,

nature,

extent, duration,

and strength of discharges

or emissions,

and

consequences alleged to constitute violations of the

Act and regulations.

The complaint shall advise

respondents of the extent and nature of the alleged

violations to reasonably allow preparation of a

dofonee; and

(3)

A concise statement of the relief which the complainant

seeks.

AMOCO, OBERWEIS,

FETZER AND MOBIL MOTIONS TO DISMISS

Amoco, Oberweis, Fetzer and Mobil each argue that the

complaint is factually and legally deficient to the extent that

it fails to put the parties on notice of the defense they must

construct, and that it fails to satisfy the requirements of the

‘Section 31(b)

of the Act provides:

Any person may file with the Board,

a complaint, meeting the requirements of subsecti.on

(a)

of this Section,

against any person allegedly violating this Act or any rule or regulation

thereunder or any permit or term or condition thereof.

The complainant shall

immediately serve a copy of such complaint upon the person or persons named

therein.

Unless the Board determines that such complaint is duplicitous or

frivolous,

it shall schedule a hearing and serve written notice thereof upon

the person or persons named therein,

in accord with subsection

(a)

of this

Section.

---

5

Act and the Board’s procedural rules.

These respondents all

argue the complaint contains vague references to the violations

at issue (Section 103.122(c) (1)),

limited factual allegations

regarding the manner,

and the extent to which each respondent has

violated the Act or regulations

(Section 103.122(c) (2)), and

contains a legally insufficient prayer for relief because the

Board is neither authorized to order the respondents to require

corrective action, reimburse complainants’ corrective action

costs, or to order relief under the Illinois Water Well

Construction Code.

Additionally,

Amoco and Mobil claim that the complaint does

not specifically state that either Amoco or Mobil are allegedly

in violation of the Act, but only infers an alleged liability

which might result from an investigation: The complaint states:

***if the investigation of the migration pathway

reveals that the source of contamination on the Streit

property is the Amoco site or the Mobil site,

then

Amoco or Mobil is liable for all costs of corrective

action and preventative actions as above described and

the damage,

injury and loss incurred by the

Complainants and costs of remediating the threat to

human health and the threat to potable water supply as

above described.

(Complaint,

at par.

26.)

Two

of the respondents, Oberweis and Fetzer, further argue

that this case should be dismissed because the Streits have

attempted to pursue relief in circuit court and the Streits have

voluntarily dismissed the case because they themselves recognize

the difficulty

in proving the source of petroleum contaminating

the complainants’ drinking water source.

In support, the

respondents point to the complaint before the Board which states:

The Complainants have sought to recover damages from

certain of the parties believed responsible, including

Oberweis Diary,

Inc. and Fetzer, and others, but have

dismissed or will dismiss their action in the civil

court because of the difficulty and expense of

obtaining investigative proof of the migration pathway

and tracing the contamination to a definite source.

(Complaint at par.

20.)

***

It is geologically possible that neither of the

three sites

is the actual source,

but that cannot be

determined without further investigation of migration

pathway.

(Complaint at par.

21.)

Additionally, the respondents object to this case going forward

if the case will require the respondents having to expend

resources to prove the complainants’ case before the Board,

especially when a case could not be adequately made in circuit

---

6

court.

(Amoco Motion at

7; Oberweis Motion at 3—4; and Fetzer at

5.)

DISCUSSION

We hereby deny the motions to dismiss on the basis that the

allegations of the complaint are sufficient to warrant a hearing

on the facts.

We believe the complaint sufficiently

states a

cause of action.

At a minimum, pursuant to Section 57.1(a)

of

the Act,

if the respondents

meet the definitions of the Title

XVI:

Petroleum Underground Storage Tanks, they are required to

“conduct correction

(sic.) action in accordance with the

requirements of the Leaking Underground Storage Tank

Program”

(415 ILCS 5/57.1(a)).

If the parties have failed to conduct

corrective action pursuant to Title XVI,

this would constitute

violation of section 57.1(a).

We do not believe it is necessary

to allege violations of the general prohibitions against

pollution in the Act (Sections 12 and 21)

in order to bring a

private citizens’ enforcement action in response to leaking UST5.

We also disagree that the facts are insufficient to put the

parties on notice of the defense that they must muster for this

case.

It is clear that there is a source of contamination

adversely affecting the Streits’ water supply.

The complainants

have alleged that prior to 1991,

the Streits had

a spring which

served as their potable water source, and that after 1991,. the

water became contaminated, and remains contaminated with

petroleum.

The complaint further alleges that the Amoco,

Oberweis and Mobil properties, are all within a three-block

proximity to the Streit property

(the Oberweis site being uphill)

and they have all experienced reported releases

of petroleum into

the environment from USTs, releases which are all alleged to have

occurred within the same time frame that the Streit’s water

source became undrinkable.

Moreover,

the respondents do not

dispute that the reported releases of petroleum occurred,

and

importantly,

the respondents do not dispute the complaint’s

allegations that all three properties have at one time been

required by the State to perform groundwater monitoring.

If the

complainants meet their burden of proof using their

own experts’ reports and evidence that have been admitted to the

record, any discoverable information or information resulting

from an FOIA request,

we are clearly authorized

under the Act to

make a determination regarding liability for violating of the Act

and “necessarily

the power to order compliance with the Act.”

(Discovery South Group,

Ltd. Music Center Associates Ltd. and

Tinley Park Jam Corp.

V.

IPCB and the Village of Matteson,

No.

1-

93—1438

(1st Dist. August 28, 1995),

slip op.

at 20,

citing,

Kaeding V. IPCB

(1974),

22 Ill. App.

3d 36,

38,

316 N.E.2d 788.)

Consequently, we are authorized to award relief under the Act

which may include a compliance plan governing any necessary

investigation or corrective action, and compliance with Illinois’

UST program.

(See Id.

at

18

(“Illinois decisions reflect the

---

7

generally acknowledged authority of the Board to take whatever

steps are necessary to rectify the problem of pollution and to

correct instance of pollution on a case—by-case basis.”))

Such

relief may also include providing an alternative drinking water

source, reimbursing any costs incurred by the complainants in

performing corrective action

(see Lake County Forest Preserve

Dist.

V.

Ostro, Ostro and Big Foot Enterprises,

(June

2,

1994)

PCB 92-80) and awarding civil penalties to be paid to the

Illinois Environmental Protection Trust Fund.

We hereby deny the motions to dismiss filed by Amoco,

Oberweis, Fetzer ~nd Mobil.

These respondents may answer the

complaint within 30 days of service of this order.

THE AGENCY’S MOTION TO BE DISMISSED AS A PARTY

Essentially, the Agency argues that it should not be a party

to this proceeding because this is a dispute between private

parties.

To the extent that the complainants are seeking that

the Board require the Agency to perform an investigative report

regarding the allegations of the complaint pursuant to Section 30

of the Act, the Agency requests that it be dismissed as a party

and deny the request for a Section 30 report.

At this time, we grant the Agency’s motion to be dismissed

from this proceeding, but do so on the basis that we believe that

the Agency is not properly before us as a respondent in this

matter.

The Agency may only be a named respondent if the

complainants are alleging that the Agency violated the Act.

Such

an allegation is absent here and therefore it

is not appropriate

for the Agency to continue to be a respondent to this private

citizens’ enforcement action.

(Landfill,

Inc.

v.

IPCD,

(1978)

74

Ill.2d 541,

25 Ill.Dec.

602,

387 N.E.2d 258.)

However because we believe that either the parties

themselves may be in possession of the evidence which will be

determinative of the outcome of this case,

or such evidence may

be obtainable through discovery or an FOIA request, we reserve

the right to request a Section 30 investigative report from the

Agency or join the Agency as a necessary—party—in—interest.

(See

International Union, United Automobile, Aerospace and

Agricultural Implement Workers of America and (JAW Local 974; and

Citizens for a Better Environment v.

Caterpillar Inc.

(November

3,

1995) PCB94—240;

35 Ill. Adm.

Code 103.141 and 103.121(c).)

This case involves three sites which ostensibly have been or are

currently undergoing corrective action for UST releases under the

supervision of the Agency, wherein one of the migratory pathways

may have led off—site to neighboring parcels of property.

While

we understand the reasons why the Agency would argue against

being a named respondent, we are confident that our sister agency

will provide to the Streits, pursuant to their procedures, all

public information in their possession relevant to this inquiry.

---

8

Such information could include, unless otherwise prohibited under

the Freedom of Information Act, Agency investigation reports of

the sites, groundwater monitoring reports, corrective action

plans, etc.

Similarly, during the course of discovery, we

anticipate that any reports or expert opinions developed by the

complainants regarding the Streits’ property will be made

available.

PROCEDURAL AND HEARING MATTERS

Frivolous and Duplicitous Standard

Pursuant to Section 31(h)

of the Act and the Roard’s

procedural rules, the Board must also make a determination as to

whether the complaint is frivolous or duplicitous, and if the

Board finds that the complaint is neither frivolous or

duplicitous, the Board shall set the matter for hearing and

assign a hearing officer.

(415 ILCS 5/31(b)

(1992);

35 Ill.

Adm.

Code 103.104.)

For the reasons set forth above, we find that in

this case, the complaint is not frivolous, nor do we find that

this case is duplicitous of another matter currently pending in

another forum.

While there appears to be another matter that was

pending in the circuit court of Kane County

(L KA 92-0406), there

is no allegation that this matter is currently pending, or that

the parties view the Board complaint as failing the duplicitous

standard under which we review citizen’s enforcement actions.

(See

Brandle v. Ropp,

(June 13,

1985), PCB 85-68,

64 PCB 263.)

Scheduling the Hearing

The hearing must be scheduled and completed in a timely

manner consistent with Board practices.

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 five days of the hearing.

If after appropriate consultation with the parties, the

parties fail to provide an acceptable hearing date of if after an

attempt the hearing officer is unable to consult with the

parties, the hearing officer shall unilaterally set a hearing

date in conformance with the schedule above.

The hearing officer

and the parties are encouraged to expedite this proceeding as

much as possible.

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9

IT IS SO ORDERED.

Board Member J.Theodore Meyer dissented.

I, Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board,jie.reby certiry that t

above order was adopted on the

/~

day of _______________________,

1995,

by a vote

of___________

~‘

Dorothy M.,4’unn, Clerk

Illinois ~‘~4lutionControl Board