ILLINOIS POLLUTION CONTROL BOARD
January 24, 2002
ECOLAB, INC., )
)
Complainant, )
)
v. ) PCB 02-78
) (Citizens UST Enforcement)
OCCIDENTAL CHEMICAL CORPORATION )
f/d/b/a Occidental Electrochemicals Corporation, )
successor to Diamond Shamrock Corporation, )
)
Respondent. )
ORDER OF THE BOARD (by S.T. Lawton, Jr.):
This matter is before the Board to determine whether the citizen’s enforcement complaint
by Ecolab, Inc. (Ecolab) for cost recovery is duplicitous or frivolous. Ecolab alleges in its
complaint that from 1975 through 1987, respondent, Occidental Chemical Corporation
(Occidental) improperly handled, treated, stored and disposed of solid and hazardous wastes at
its leased location at 10421 Franklin Avenue, Franklin Park. Ecolab asserts that Occidental’s
actions resulted in the wastes being released, spilled, emitted, and discharged into the
environment, in violation of Sections 21(e), 12(a), and 12(d) of the Environmental Protection Act
(Act) (415 ILCS 5/21(e), 12(a), (d) (2000)). Ecolab alleges that it purchased the site in 1987,
and paid $225,000 to remediate the site. The Board finds that the complaint is neither
duplicitous nor frivolous, and accepts this matter for hearing for the reasons expressed below.
DUPLICITOUS/FRIVOLOUS DETERMINATION
Section 103.212(a) of the Board’s procedural rules (35 Ill. Adm. Code 103.212(a))
implements Section 31(d) of the Act (415 ILCS 5/31(d) (2000)), providing that the Board shall
schedule a hearing upon receipt of a citizen’s complaint, unless it determines that the complaint
is duplicitous or frivolous.
Duplicitous
A matter is duplicitous if it is “identical or substantially similar to one brought before the
Board or another forum.” 35 Ill. Adm. Code 101.202. The Board has not identified any other
cases, identical or substantively similar to this, pending in this or any other forum.
Frivolous
An action before the Board is frivolous if the complaint requests relief that the Board
does not have the authority to grant, or “fails to state a cause of action upon which the Board can
grant relief.” 35 Ill. Adm. Code 101.202. Ecolab requests, among other things, that the Board
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award it costs that it has incurred in cleaning up contamination at the site. The Board has
consistently held that it has the authority to award cleanup costs to private parties for a violation
of the Act.
See
Chrysler Realty Corp. v. Thomas Industries, Inc., PCB 01-25, slip op. at 3 (Dec.
7, 2000); Lake County Forrest Preserve Dist. v. Ostro, PCB 92-80 (Mar. 31, 1994); Richey v.
Texaco Refining and Marketing, Inc., PCB 97-148 (Aug. 7, 1997). Our holding in Ostro was
based on the broad language of Section 33(a) of the Act (415 ILCS 5/33(a) (2000)) as well as the
Illinois Supreme Court decision in People v. Fiorini, 143 Ill. 2d 318, 574 N.E.2d 612 (1991).
In
Fiorini, the Illinois Supreme Court considered the issue of private cost recovery in the
context of a third-party complaint that sought, among other things, cleanup costs incurred
because of an alleged violation of Section 21 of the Act.
See also
Chrysler, PCB 01-25, slip op.
at 3. The Supreme Court denied respondent’s motion to dismiss the third party complaint,
stating that, “[w]hile cleanup costs are not expressly provided for in these [Sections 33(b) and 42
through 45] of the Act, we decline to hold here that an award of cleanup costs would not be an
available remedy for a violation of the Act under appropriate facts. Rather, we believe that such
a determination is properly left to the trial court’s discretion.” Fiorini, 143 Ill. 2d at 350, 574
N.E.2d 625. Using this rationale, the Board has repeatedly upheld its ability to award cleanup
costs under the Act.
See
Chrysler, PCB 01-25, slip op. at 3.
Ecolab also alleges violations under the Act that are not frivolous. Specifically, Ecolab
alleges that Occidental violated Sections 21(e), 12(a), and 12(d) of the Act (415 ILCS 5/21(e),
12(a), (d) (2000)). Section 21(e) provides that no person shall “[d]ispose, treat, store or abandon
any waste, or transport any waste into this State for disposal, treatment, storage or abandonment,
except at a site or facility which meets the requirements of this Act and of regulations and
standards thereunder.” 415 ILCS 5/21(e) (2000). Section 12(a) states in pertinent part that no
person shall “cause or threaten or allow the discharge of any contaminant 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. . . .” 415 ILCS 5/12(a) (2000). Section 12(d) of the Act states in
relevant part that no person shall “[d]eposit any contaminants upon the land in such place and
manner so as to create a water pollution hazard.” 415 ILCS 5/12(d) (2000).
Ecolab alleges that the above violations occurred when Occidental conducted various
manufacturing operations at the site between 1975 and 1987. According to Ecolab, Occidental
manufactured specialty cleaning chemicals and supplies that it sold to commercial, institutional,
and industrial laundries. Ecolab asserts that Occidental stored and mixed liquid and solid
caustics, surfactants, phosphates, solvents, oils and alcohols. Ecolab alleges that Occidental
specifically used organic compounds including acetone, trimethylbenzene, and tetrachloroethene,
which is otherwise known as perc or PCE. Ecolab states that PCE breaks down into
trichloroethene, dichloroethene, and vinyl chloride, which it alleges are hazardous under the Act.
Ecolab further alleges that if these substances are discarded, they are considered to be hazardous
wastes under the Resource Conservation and Recovery Act.
Ecolab alleges that it conducted tests that show that Occidental improperly handled,
treated, stored and disposed of these solid and hazardous wastes in a manner resulting in the
above violations of the Act. Ecolab states that March, 2000 soil samples showed elevated
concentrations of volatile organic compounds, including tetrachloroethene, trichloroethene,
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trimethylbenzene, and vinyl chloride. Ecolab also alleges that June, 2000 soil and groundwater
samples at the site show elevated concentrations of volatile organic compounds, including
acetone, cis – 1, 2 dichloroethene, tetrachloroethene, trichloroethene, trimethylbenzene, and
vinyl chloride. Ecolab states that it remediated the contaminated soil and water, and received a
“No Further Remediation” letter from the Illinois Environmental Protection Agency for the site
on July 23, 2001. The Board finds that Ecolab provided sufficient facts in support of the above
alleged violations of the Act to show that the complaint is not frivolous.
CONCLUSION
The Board finds that the allegations concerning Sections 12(a), 12(d), and 21(e) of the
Act (415 ILCS 5/12(a), 12(d), 21(e) (2000)) are neither frivolous nor duplicitous, and accepts
this matter for hearing. The Board directs that this matter proceed to hearing as expeditiously as
practicable. The Board will assign a hearing officer to conduct hearings consistent with this
order and Sections 101.600 and 101.612 of the Board’s rules.
See
35 Ill. Adm. Code 101.600
and 101.612.
The assigned hearing officer shall inform the Clerk of the Board of the time and location
of the hearing at least 30 days within advance of the hearing so that a 21-day public notice of the
hearing may be published. After hearing, the hearing officer shall submit an exhibit list, a
statement regarding credibility of witnesses, and all actual exhibits to the Board within five days
of the hearing.
Any briefing schedule shall provide for final filings as expeditiously as possible. It is the
responsibility of the hearing officer to guide the parties toward prompt resolution or adjudication
of this matter, through whatever status calls and hearing officer orders he determines are
necessary and appropriate.
IT IS SO ORDERED.
Board Member R.C. Flemal dissented.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on January 24, 2002, by a vote of 6-1.
Dorothy M. Gunn, Clerk
Illinois Pollution Control
