ILLINOIS
POLLUTION
CONTROL
BOARD
July 20,
1995
WHITE GLOVE OF MORTON GROVE
)
ILLINOIS, A LIMITED PARTNERSHIP,
)
Complainant,
v.
)
PCB 95—113
)
(Enforcement
-
Land)
AMOCO OIL COMPANY,
)
A DELAWARE CORPORATION,
)
Respondent.
ORDER OF THE BOARD
(by C.A. Manning):
This matter is a private citizen enforcement action filed by
White Glove of Morton Grove (White Glove)
on March 28,
1995
charging Amoco Oil Company
(Amoco) with open dumping and unlawful
disposal or petroleum, petroleum products and special waste in
violation of Sections 21(a)
and
(e)
of Illinois Environmental
Protection Act
(Act)
and the corresponding Board regulations.
(415 ILCS 5/21(a),(e);
35 Ill. Adm. Code 809.301 and 809.302.)
White Glove seeks an award of cost recovery, civil penalties and
injunctive relief directing Amoco to remediate White Glove’s
property.
As an initial matter, the Board must make a “frivolous
and duplicitous” determination in this private citizen
enforcement in order to accept this case for hearing pursuant to
the Act and the Board’s regulations.
(415
ILCS 5/31(b)
(1992).)
Additionally, there are three motions pending before the Board
for decision:
The first is a motion for leave to take
depositions filed by White Glove; the second and third are cross-
motions for sanctions filed by the parties.
For reasons more fully explained below, we hereby find that
this case is neither frivolous nor duplicitous and set this
matter for hearing.
Additionally we deny the cross-motions for
sanctions, and refer White Glove’s motion for leave to take
depositions to the hearing officer for a ruling.
FRIVOLOUS
AND
DUPLICITOUS DETERMINATION
According to the complaint, White Glove
is the beneficial
owner and operator of White Glove Car Wash located at 9122
Waukegan Road, Morton Grove, Illinois.
White Glove alleges that
from 1961 to 1986,
Amoco was the former
owner and operator of
eight or nine underground storage tanks which were leaking, and
during this time,
Amoco failed to take remedial action.
The
Board received Amoco’s answer and affirmative defenses on April
27,
1995.
In its affirmative defenses, Amoco argues that the
Board has no jurisdiction as the Office of State Fire Marshal has
not directed Amoco to remove the tanks on the property and that
the Board may not award civil penalties or grant injunctive
4
relief.
Amoco has not filed a motion to dismiss or otherwise
addressed the issue of whether the complaint is frivolous or
duplicitous pursuant to Section 31(b)
of the Act.
(415 ILCS
5/31(b)).
Pursuant to Section 31(b)
ot the Act and the Board’s
procedural rules, the Board must 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.)
We find that in this case,
the complaint is
neither frivolous or duplicitous.
There is no allegation nor
statement in either the complaint or answer that there is another
identical or substantially similar matter pending before the
Board or in any other forum.
(Brandle v. Ropp,
(June
13,
1985),
PCB 85-68,
64 PCB 263;
League of Women Voters v. North Shore
Sanitary Dist.,
(October 8,
1970) PCB 70-1,1 PCB 35;
Winnetkans
Interested in Protectinq the Environment v.Illinois Pollution
Control Board,
13 Ill.Dec.
149,
153,
370 N.E.2d 1176
(1st Dist.
1977).)
An action before the Board is frivolous if it fails to state
a cause of action upon which relief can be granted by the Board.
(Citizens for
a Better
Environment v. Reynolds Metals Co.
(Nay
17,
1973) PCB 73—173,
8 PCB 46.)
Complainant requests that the
Board find respondent has violated Section 21(a)
and
(e)
of the
Act,
assess civil penalties for each violation,
direct that
corrective action take place and reimburse complainant’s costs
incurred conducting corrective action at the site.
We find that
the allegations of the complaint are sufficient to warrant a
hearing on the facts.
At this
time,
therefore
the Board finds
that, pursuant to Section 103.124 (a), the complaint is not
frivolous.
NOTIONS PENDING BEFORE THE BOARD
Notion for
Leave to Take Depositions
On April 28,
1995, White Glove filed a motion for leave to
take depositions which was directed to either the hearing officer
or,
if one had not yet been assigned,
to the full Board.
White
Glove requests that the Board allow discovery to proceed despite
the case having not been accepted for hearing.
On May 5,
1995,
Amoco filed a response indicating that Amoco was opposed
to
taking depositions as they would be premature unless and until
the case had been accepted for hearing by the Board.
Section 103.161(a)
of our procedural rules specifically
states that if the parties cannot agree on a schedule, then it is
the hearing officer who will establish a discovery schedule.
Therefore,
as this case has been set for hearing by virtue of
3
today’s order, we will leave the pending motion for leave to take
depositions to the discretion of the hearing officer.
Cross-Motions for Sanctions
on May 22,
1995, Amoco tiled a motion tor sanctions against
White Glove for costs and reasonable attorneys fees.
The motion
objects to White Glove’s carbon copying the Board on certain
letters to Amoco regarding discovery in this case,
and though
Amoco received a carbon copy, Amoco objects to White Glove
sending a direct letter regarding discovery and assigning a
hearing officer to one of the Board’s attorneys.
Amoco argues
that sending the Board copies of private communication between
the parties is not only in violation of the intended spirit of
cooperation which
is to take place in the deposition stage of a
case, but also as inappropriate and ex parte communication.
Amoco further alleges that the direct letter to a Board attorney
contains argument and factual inaccuracies, and is therefore
violative of
the Board’s procedural rules on ex parte contacts
for the reason that Amoco is not afforded a reply.
White Glove responded to Amoco’s motion for sanctions by
filing a counter motion for sanctions on May 24,
1995.
White
Glove views the letter to the attorney as a request that White
Glove be informed when a hearing officer is appointed.
White
Glove does not offer argument on the propriety of carbon copying
the Board on correspondence between the parties, other than to
explain her reasons for doing so.
White Glove insists that all
of its counsel’s actions are to expedite this case and to have a
hearing officer appointed.
White Glove also seeks reasonable
costs and attorneys fees for having to respond to Amoco’s motion
for sanctions.
Both cross-motions for sanctions are denied at this time.
No costs or attorneys fees will be awarded for these recent
filings on the issue of whether letters should or should not be
carbon copied to the Board,
or directly mailed to a Board
attorney.
Definitionally, White Glove did not engage in an ex
parte communication with Board personnel as Amoco was a party to
the communications because Amoco received carbon copies which
allowed Amoco to file the motion for sanctions,
or otherwise file
a response.
(35 Ill. Adm. Code 101.200.)
Further, the
correspondence is file—stamped and part of the public record in
this case.
More importantly, Amoco does not contend that it did
not receive the correspondence.
Nonetheless, we appreciate Amoco’s concerns regarding direct
written communication by White Glove’s counsel to specific
personnel at the Board prior to the Board setting this matter for
hearing and assigning a hearing officer to deal with these
issues.
Direct correspondence to a Board assistant is not
appropriate.
However, such communication in this case is not
4
tantamount to ex parte communication and it did not prejudice the
respondent.
We believe that the ultimate resolution of the
discovery matter, i.e., White Glove’s filing of a motion for
leave to take depositions with the Board,
is the proper method of
communicating White Glove’s desire to proceed with this case and
we note that attorneys who Uesire case processing intormation
should contact the Clerk’s Office or the Board’s Chief Hearing
Officer,
if a hearing officer has not yet been assigned.
HEARING PROCEDURE
Having determined that this case is neither frivolous
or
duplicitous, 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 or
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 or 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 to the
extent possible.
IT IS SO ORDERED.
I, Dorothy N.
Gunn,
Clerk of the Illinoio Pollution Contr~-I~
Board, here~iycertify that the above order ~qasadopted on
___
day of
____________,
1995,
by a vote of
&~.
Dorothy M. 9t~in, Clerk
Illinois Pc~utionControl Board
6/0
