ILLINOIS POLLUTION CONTROL BOARD

November 3, 1994

INTERNATIONAL UNION, UNITED    

)

AUTOMOBILE, AEROSPACE 

AND

)

AGRICULTURAL IMPLEMENT WORKERS

)

AMERICA AND UAW LOCAL 974;   

)

AND CITIZENS FOR A BETTER     

)

ENVIRONMENT,

)

Complainants,

)

CATERPILLAR INC.,          

)

PCB 94-240

(Enforcement)

Respondent,

)

ILLINOIS 

ENVIRONMENTAL

)

PROTECTION AGENCY,         

)

Party-in-Interest.

ORDER OF THE BOARD (by C. A. Manning):

This matter is before the Board on a private citizens

enforcement complaint filed on September 1, 1994 by three

complainants: the International Union, United Automobile,

Aerospace and Agriculture Implement Workers of America (“UAW

International Union”); UAW Local 974 (“Local 974”); and Citizens

for a Better Environment (“CBE”) (collectively, “complainants”).

The seven-count complaint alleges that Caterpillar, Inc.

(“Caterpillar” or “company”) has violated seven different

provisions of the Environmental Protection Act (“Act”) and 14

provisions of the Illinois Administrative Code. The complainants

seek declaratory and injunctive relief and the maximum penalties

allowed by law for these violations.

The complaint charges that Caterpillar conducted the

unlawful operation of a waste treatment, storage and disposal

site, operated a hazardous waste management facility without

interim status, operated without a hazardous waste permit,

operated in violation of the Board’s hazardous waste regulations,

failed to apply for and obtain a post-closure permit, unlawfully

stored hazardous waste, caused water pollution and created a

water pollution hazard at Caterpillar’s East Peoria transmission

and assembly operations. The complaint specifically alleges

violations of Sections 12(a), 12(d), 21(e), 21(f), 2l(f)(l),

21(f) (2), 21(f) (3) of the Act and the Board’s regulations, 35

Ill. Adm. Code 702.121(a), 702.121(b), 703.121, 703.126, 703.151,

2

703.152, 703.152(a), 703.153, 703.154, 703.155, 703.155(a),

703.155(b), 703.155(c) and 703.180.

On September 20, 1994, Caterpillar filed a motion to dismiss

the complaint arguing that the complaint is frivolous and

duplicitous, that it fails to state a cause of action and that

the Board lacks jurisdiction to consider the matter. On October

11, 1994, the complainants filed a response to the motion to

dismiss. Thereafter on October 18, 1994, Caterpillar filed a

reply to the motion accompanied by a motion for leave to file. On

October 31, 1994, complainants filed a response to Caterpillar’s

reply. For the reasons more fully explained below, the motion to

dismiss is denied, and this case shall be set for hearing.

BACKGROUND

As alleged in the complaint, and as described in the

memorandum of law and affidavits in support of the motion to

dismiss, in November of 1990 during construction excavation at

Caterpillar’s East Peoria transmission and assembly operations,

Caterpillar discovered perchlorolethylene, trichloroethylene and

1,2 dichloroethylene on-site. The complainants allege that

tetracholoethylene and vinyl chloride were also sampled at the

site. (Complaint at 3.) Complainants allege, among other

things, that the contaminants at issue here are probable and

known human carcinogens, that at least 13,000 tons of

contaminated soil have already been excavated and need to be

remediated, and an additional 35,000 tons may need to be

excavated. According to the complainants, the excavated 13,000

tons contain nearly 4 tons of VOCs, including 3 tons of

perchlorolethylene. The 35,000 tons of soil needing to be

excavated contain 13 tons of VOC5. (Complaint at 5.) Complainants

further allege there is shallow groundwater below the surface of

the contamination at a depth of 15 to 27 feet, that this

groundwater has been impacted, and that the groundwater flow runs

towards the Illinois River.

According to Caterpillar, the company notified the Illinois

Environmental Protection Agency (“Agency”), entered the Agency’s

voluntary cleanup program which is now referred to as the

Agency’s 4(q) Pre—Notice Program (“4(q) Program”), and has been

in the program since. Some corrective action has been conducted

at the site. According to the reply filed by Caterpillar, the

company has recently received approval under the 4(q) Program for

Caterpillar’s soil remediation plan and has begun remediation of

the excavated soils. (Reply at 2.)

MOTION TO 

DISMISS

Citing both the Board’s caselaw on frivolous and

duplicitous determinations and 35 Ill. Adm. Code 103.140,

Caterpillar argues that the complaint should be dismissed because

3

it fails to state a cause of action. (~gCitizens for a Better

Environment 

V.

Reynolds Metals Co., (May 17, 1973) PCB 73-173, 8

PCB 46.) Caterpillar mainly argues that because the bulk of the

complaint (Counts I 

VI) concerns Caterpillar’s failure to

obtain the proper permits for handling, storing and disposing of

hazardous substances, it should be dismissed because Caterpillar

is effectively exempt from having to submit permit applications.

Caterpillar asserts that its participation in the 4(q) Program is

the functional equivalent of submitting to the permitting

process, and it cannot now be sued for not having done so.

Caterpillar is essentially arguing that its participation in the

4(q) Program effectively shields these counts of the complaint

from this private citizen enforcement action because the Board

can not now order that Caterpillar apply for any permits. In any

event, Caterpillar argues that it has begun corrective action and

the necessity of a permit is moot.

Caterpillar further argues that the complaint’s only other

allegations do not relate to permit requirements (Count VII), but

concern other alleged violations of the Act’s land and water

pollution prohibitions contained in Section 12(a) and (d), and

these allegations fail to state a cause of action altogether.

Caterpillar cites to appellate court caselaw for the proposition

that a complaint must allege facts which would show a very

definite danger of pollution, and that in the absence of such

specificity, a conclusory allegation is insufficient to state a

cause of action. (City of Des Plaines v. Pollution Control Board

(1st Dist. 1978) 17 Ill. App.3d 924, 377 N.E.2d 114.) and Jerry

Russel Bliss Inc. 

V.

IEPA (5th Dist. 1985) 138 Ill. App.3d 699,

485 N.E.2d 1154.) Caterpillar asserts that the allegations are

fatally insufficient in that they merely claim “on information

and belief” that groundwater has been impacted. Among

Caterpillar’s many complaints with the water pollution

allegations, the company is mostly concerned with the term

“impacted” and claims that this description is simply inadequate.

Caterpillar believes that the water pollution allegation must do

more; it must claim that the contamination will create a

nuisance, or render the waters “harmful, detrimental, or

injurious.” (Memorandum of Law at 9.)

Caterpillar also argues that the complaint is duplicitous

because this matter is already being considered by another forum,

i.e., the Illinois Environmental Protection Agency. Caterpillar

argues that Board jurisdiction over this citizen enforcement

action is inconsistent with the intent of the Section 4(q)

Program and accordingly should be barred.

Caterpillar also argues that under the federal CERCLA

provisions analogous to Illinois’ clean up statutes, Congress

barred federal courts from reviewing private citizen actions when

a site is involved in a CERCLA remedial action. Caterpillar

argues that this case is nothing more than a collateral attack on

4

the remedial efforts of the Agency and that it should be

jurisdictionally barred, as it is under the federal law. (Motion

to Dismiss at 5, citing, CERCLA, 42 U.S. C. Sec. 9613(h).)

In response to the motion to dismiss, the complainants argue

that unlike CERCLA, which provides an express bar to federal

court jurisdiction over a citizens suit, there is no such bar to

citizens’ enforcement actions brought pursuant to Section 31(b)

of the Act. They argue that neither Section 22.2(m) (2) of the

Act nor the relevant administrative rules of the Board or the

Agency contain such a bar. Therefore, complainants argue that

the Board is not without jurisdiction to hear this case.

DISCUSSION

The Board has previously tield that a complaint should not

be dismissed unless it clearly appears that no set of facts could

be proven which would entitle a complainant to relief. (Herrin

Security Bank v. Shell Oil Comiany (September 1, 1994) PCB 94-

178.) At this stage of the proceeding, Caterpillar has not shown

that an absolute bar exists to the bringing of this particular

enforcement action and we find that the complaint alleges

sufficient facts and raises an adequate basis for relief so as to

warrant a hearing. It is not frivolous since it presents

allegations which, if proven, may result in findings of

violations of the EnvironmentaiProtection Act.

With regard to Counts I through IV, the Act provides that

enforcement actions may be brought by any person such as the

Agency, local state’s attorneys or by private citizens. (415

ILCS 5/31(a) (1) and (b).) While Caterpillar’s incentive to enter

the 4(q) Program may be the Agency’s agreement to excuse any

permitting requirements that would otherwise apply, we find

nothing specifically in the Act which would prohibit a citizens

enforcement action on these counts. The parties, of course, are

free to further address the applicability of permits to the 4(q)

Program during this proceeding.

With regard to Count VII, we find that the cases cited by

Caterpillar are distinguishable, especially City of Des Plaines

which involved allegations of air pollution from a sewage

treatment plant. In this case, the complainants have pled

sufficient information to survive the motion to dismiss alleging

that there are large quantities of hazardous substances on-site

that are known and probable human carcinogens, that the

groundwater has been impacted, that the contaminants have

migrated toward the Illinois River, that the contaminants are in

the groundwater, and that the uses of the river will be

negatively impacted and degraded if the contaminants remain in

the soil and groundwater.

Finally, with regard to whether the complaint is duplicitous

under Section 31(b) of the Act, Caterpillar appears to argue that

the complaint is duplicitous since the environmental matters at

issue have been brought to the Agency’s attention and may be

resolved under the Agency’s 4(q) Program. We have before us,

however, a citizen’s enforcement complaint alleging various

violations of the Act. Pursuant to Section 31(b), 35 Ill. Adm.

Code Section 103.124 and Board precedent, a complaint is

duplicitous if it is identical or substantially similar to one

brought in another forum. (Brandle v. Ropp, (June 13, 1985), PCB

85—68, 64 PCB 263.)’ In the context of the adjudication of

environmental enforcement cases, the Agency is not a duplicative

forum to the Board. Rather, the Agency, along with the Illinois

Attorney General, is the prosecutorial arm of the enforcement

process. When the Agency chooses to work with companies in its

voluntary program, it may of course exercise its prosecutorial

discretion to bring or not bring a complaint before the Board or

a court. The exercise of this discretion however does not make

the Agency another “forum” for the adjudication of a citizen’s

enforcement complaint properly brought pursuant to Section

3l(b)of the Act. Since the issues before the Board are not being

litigated before any other judicial forum with jurisdiction to

hear and decide these issues, this complaint is not duplicitous.

CONCLUSION

We hereby deny the motion to dismiss brought by Caterpillar,

Inc. We find that the complaint is neither frivolous nor

duplicitous, that it states a claim upon which relief could be

granted, and no authority exists serving to deprive us of

jurisdiction of this matter. Accordingly, this matter is to

proceed, to hearing, and Caterpillar’s answer to the complaint is

due 30 days from the date of this order.

Additionally, we believe that the Agency’s participation in

this case is vital to a final resolution of this matter. We

hereby request, pursuant to Section 30 of the Act, that the

Agency initiate an investigation of the allegations contained in

the complaint. The results of that investigation are important

and are to be made a part of this case. We believe that in the

interest of a convenient, expeditious and complete determination

of this claim, the Agency should be joined as a party to this

proceeding. Further, any order we may eventually enter in this

1Pursuant to

Section 31(b) of the Act, 

complaints of

violations of the Act

may be brought by the Illinois Environmental Protection Agency, the Attorney

General, local state’s attorneys or private citizens, and may be heard by

either the Board or circuit courts of Illinois.

Generally, when the Board

finds an enforcement action “duplicitous” such finding is based upon facts

e.g.that Decaturthe

sameAutoissueAuctionis beingv.

MaconlitigatedCountyin

anFarmIllinoisBureau, circuitInc.,

etcourt.al. (November

(~

18, 1993) PCB 93—192.)

6

case has the potential to impact the Agency’s 4(q) Program, and

therefore, on our own motion we find that the Illinois

Environmental Protection Agency is a necessary party—in—interest.

(35 Ill. Adm.Code 103.141 and 103.121(c).)

The hearing officer shall establish a hearing schedule which

may include a pre—hearing conference or a status meeting with all

the parties in order to coordinate, among other things, a filing

date for the results of the Agency investigation and the

presentation of evidence and testimony at hearing.

IT IS SO ORDERED.

I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above order was adopted on the~’~~

day of /V2Cr~2/C~—’ 

1994, by a vote of e~’-~-1)

~

C~/

/ ~

,L~

Dorothy M. Gu~j, Clerk

Illinois Pollution Control Board