ILLINOIS POLLUTION CONTROL BOARD
September 19, 1996
OLIVE STREIT and LISA STREIT,
Complainants,
v.
OBERWEIS DAIRY, INC., RICHARD J.
FETZER AND JOHNNIE W. WARD d/b/a
SERVE-N-SAVE, and RICHARD J.
FETZER, individually, AMOCO OIL
COMPANY, and MOBIL OIL
CORPORATION,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
PCB 95-122
(Enforcement - Citizens)
ORDER OF THE BOARD (by C.A. Manning):
This matter comes before the Board on a motion for summary judgment filed on April
3, 1996 by complainants, Olive and Lisa Streit. Complainants request that the Board grant
summary judgment in their favor against respondent, Oberweis Dairy, Inc. (Oberweis).
Oberweis filed its response to complainants’ motion for summary judgment on May 1, 1996.
Complainants filed their reply to Oberweis’ response on May 15, 1996, and filed a second
motion to supplement the record on May 22, 1996. On May 30, 1996 Oberweis filed a
response to complainants’ motion to supplement the record. In this order, we address both
complainants’ motion for summary judgment and complainants’ motion to supplement the
record.
Summary judgment will be granted where there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. (Sherex Chemical v. IEPA (July
30, 1992), PCB 91-202; Williams Adhesives, Inc. v. IEPA (August 22, 1991), PCB 91-112.)
In complainants’ motion for summary judgment, complainants set forth facts deemed admitted
by Oberweis’ failure to properly serve a signed and verified copy of its response to respondent
Amoco Oil Company’s (Amoco) request to admit facts. The Board acknowledges that
although facts have been deemed admitted as a result of Oberweis’ failure to respond to
Amoco’s request to admit, genuine issues of material fact continue to exist and remain in
dispute between the parties. For reasons more fully explained below, we deny complainants’
motion for summary judgment and deny complainants’ motion to supplement the record.
BACKGROUND
2
On April 4, 1995 complainants filed this citizens’ enforcement action
1
against
respondents alleging that respondents violated the underground storage tank (UST) provisions
of the Environmental Protection Act (Act) (415 ILCS 5/57) (1994) and seeking injunctive
relief, costs, and civil penalties. This case involves the drinking water source of three
residential properties owned and occupied by complainants and located at 1003, 1009 and 1011
North Lake Street, Aurora, Illinois. Complainants allege that a natural spring which serves as
complainants’ drinking water source is contaminated and that the contamination was caused by
one or more of respondents’ neighboring properties. Complainants allege that up until 1991,
their “potable water supplies” within the meaning of the Illinois Water Well Construction
Code, were a spring located at 1009 North Lake Street and a deep water well. (Comp. at 5,
8.) During 1991, complainants state that their drinking water sources became contaminated
with unlawful concentrations of petroleum products. (
Id.
at 7.)
Oberweis is located at 945 and 1001 North Lake Street and is currently a dairy and
retail ice cream store. (
Id.
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.
(
Id.
at 5.) Eight heating oil, gasoline, and diesel-containing USTs were located on the
property. Several of the USTs were removed, which led to the discovery of petroleum
contamination and, at one time, corrective action. (
Id.
at 5-6, Exh. D.)
The complaint alleges that respondents are in violation of Section 57.1(a) and 22.18(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. The complaint further alleges the failure to register the USTs with the State of
Illinois. (
Id.
at 8.) The complaint also alleges that respondents are in violation of Section
57.12 of the Act for costs and damages, remediation, and restoring a potable water supply.
On February 1, 1996 the Board entered an order which, among other matters, granted
Amoco’s motion to strike Oberweis’ response to Amoco’s request to admit. The Board
reasoned that because Oberweis’ response was not properly verified and because Oberweis had
not shown good cause for such a deficiency, Amoco’s motion to strike Oberweis’ response was
proper. The Board thereby deemed the facts admitted pursuant to Section 103.162 of the
Board’s procedural rules (35 Ill. Adm. Code 103.162). As a result of the facts deemed
admitted, complainants filed a motion for summary judgment and motion to supplement the
record.
1
The complaint will hereinafter be referred to as (Comp. at ___.). Complainants’ motion for
summary judgment will hereinafter be referred to as (Mot. at ___.). Complainants’
memorandum in support of their motion for summary judgment will hereinafter be referred to
as (Memo at ___.) Oberweis’ response to complainants’ motion for summary judgment will
hereinafter be referred to as (Res. at ___.). Complainants’ reply in response to Oberweis’
response will be referred to as (Reply at ___.) Complainants’ motion to supplement the record
will hereinafter be referred to as (Supp. at ___.) Oberweis’ reply will be referred to as (Reply
Supp. at ___.).
3
ARGUMENT
Motion to Supplement the Record
Complainants filed a motion to supplement the record on the pending motion for
summary judgment requesting that the Board add Oberweis’ notification to the Illinois Office
of the State Fire Marshal (OSFM) that the USTs at issue were removed in July 1991. Oberweis
opposes complainants’ motion to supplement the record stating that complainants failed to
establish any ground for their request. Oberweis further argues that the admittance of this
information would be grossly unfair and prejudicial to Oberweis which argued the summary
judgment motion based on the record prior to the motion to supplement the record.
The Board finds that granting complainants’ motion to supplement the record at this
time would be unfair and prejudicial to Oberweis. As a result, for purposes of the motion for
summary judgment, we deny complainants’ motion to supplement the record.
Motion for Summary Judgment
Complainants argue that summary judgment should be granted since the facts deemed
admitted show that Oberweis is responsible for the alleged violations. Complainants assert that
since all facts are admitted, no genuine issue of material fact exists in the instant action and,
therefore, the motion should be granted as a matter of law. (Mot. at 1.) Complainants further
argue that in granting their motion, the Board should order Oberweis to take the following
actions: (1) cause appropriate coring of bedrock and installation of monitoring wells; (2) assist
in, and pay the expense of, furnishing potable water supply to complainants’ properties from
the City of Aurora water main; (3) take action in response and remediation under the
supervision of the Agency with advance notification to complainants’ engineering and legal
counsel; and (4) determine the contributory involvement of Mobil and Amoco in further
proceedings so as to share liability and responsibility among co-respondents. (Mot. at 2-3,
Memo at 3.)
Specifically, complainants argue facts deemed admitted by Oberweis. Complainants
state that Oberweis is the responsible party for petroleum releases of USTs on June 24, 1991
and July 15, 1991 (ESDA Incident Nos. 91-1723 and 91-1937). (Memo at 4.) Complainants
state that soil borings conducted by the Agency in August 1991 revealed petroleum
contamination and complainants also state that Oberweis failed to investigate groundwater
contamination pursuant to the Agency’s April 10, 1992 approval of Oberweis’ groundwater
investigation work plan. (
Id.
at 5.) Complainants further assert that the documents set forth in
Amoco’s request to admit fully and conclusively support the factual occurrences necessary for
the granting of a motion for summary judgment. (
Id.
at 6-7.) Complainants argue that the
admissions prove Oberweis violated all sections of the law as alleged and ignored its
responsibility to investigate and identify the source, nature, and extent of contamination as a
potentially responsible party. (
Id.
at 8.) In their motion, complainants also argue that
Oberweis improperly sought a “no further action” letter under the 1994 UST provisions (415
ILCS 5/57 (1994)) when, complainants argue, Oberweis was not within the class for which
“no further action” is available. (
Id.
at 10.)
4
Oberweis argues that genuine issues of material fact still exist with respect to each issue
asserted by complainants. Oberweis states that complainants are not entitled to summary
judgment if disputed issues still exist; therefore, Oberweis argues several disputed issues.
First, Oberweis states that complainants have not established a causal connection between the
leakage of the USTs at the site and the contamination of complainants’ spring. Oberweis states
that complainants have not shown that Oberweis caused the contamination on complainants’
property and that Oberweis was the owner or operator of the USTs at the time of the alleged
release. (Res. at 3-4.) Oberweis further argues that the lack of a causal connection is evident
by its consultants’ report (the SEECO report).
2
The report states that the USTs were not the
source of contamination of the spring, the soil boring from the UST basin did not produce any
groundwater, the USTs were removed over four years ago though the contamination continues,
and no fissures exist in the bedrock that would enable a discharge of contaminants. (
Id.
at 4-
5.)
Second, Oberweis argues it has never been an owner or operator of the USTs or an
operator of the filling station; therefore, it is not obliged to comply with the regulatory
provisions imposed on owners and operators of USTs. Among other documents, Oberweis
submits an affidavit of Elaine Oberweis to establish that Oberweis was never an owner or
operator of the USTs. Oberweis argues that nothing in the affidavit undermines Ms.
Oberweis’ affidavit. Oberweis states it was only acting as a volunteer when removing the
USTs four years ago. (
Id.
at 6-7.) Third, Oberweis asserts it has voluntarily complied with
Agency directives. Oberweis argues it pursued remediation of its property so as to comply
with regulations. Oberweis submits various exhibits attached to its response to show that it
was never accused by the Agency of violating applicable regulations and followed the Agency
directives appropriately. (
Id.
at 8-9.) Last, Oberweis states that complainants’ spring may
have been contaminated by sources other than Oberweis.
Overall, Oberweis states that complainants have not properly established that they are
entitled to summary judgment. Oberweis states that complainants cannot show that Oberweis
is the source that is liable for the contamination. Oberweis states that the facts show it was
never an owner or operator of the USTs or of the filling station operated by its tenants;
therefore, Oberweis states it had no obligation to pursue any remediation program as alleged
by complainants. Oberweis finally states that liability cannot be imposed on it based on pure
speculation simply because it is an “easy target for accusation.” (
Id.
at 10.) Complainants
argue further in their reply that none of Oberweis’ factual interpretations raises any
controversy. Complainants state that the question of owner or operator of the USTs is a
question of law to be decided by the Board. (Reply at 3-4.)
ANALYSIS
2
Oberweis attaches to its response the affidavit of Mr. Collin Gray, President of SEECO
consultants, which states that the contamination in the water on the Streit property has not been
demonstrated to have resulted from an occurrence or release from the Oberweis property.
(Res. at 5.)
5
In a motion for summary judgment, judgment will only be granted where no genuine
issue of material fact exists and the moving party is entitled to judgment as a matter of law.
Complainants’ motion for summary judgment is based on the facts deemed admitted pursuant
to Board order dated February 1, 1996. However, issues of fact remain unanswered by the
facts deemed admitted. Complainants argue that Oberweis is the party responsible for
petroleum releases of the USTs which contaminated complainants’ spring. Yet complainants
fail to draw a nexus between any such petroleum release and contamination of the properties in
question.
The regulations pertaining to the charges against Oberweis place responsibility on the
owner or operator of the USTs. Since Ms. Oberweis, as chief executive officer of Oberweis
Dairy, Inc., denies in her affidavit that Oberweis is the owner or operator of the USTs, a
genuine fact remains at issue. Additionally, in the affidavit of Mr. Gray, Oberweis’
consultant, it is stated that the contamination on the Streit property has not resulted from a
release from the Oberweis property. Although complainants state that Oberweis did not
investigate the source of the release, the record indicates that, in 1991, Oberweis cooperated
with the Agency in remediating any releases caused by USTs located on its property. In this
matter, genuine issues of material fact continue to exist; therefore the Board denies
complainants’ motion for summary judgment.
In summary, the Board denies complainants’ motion for summary judgment and denies
complainants’ motion to supplement the record. Hearing shall expeditiously proceed consistent
with this order.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the _____ day of ___________, 1996, by a vote of
______________.
___________________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board