ILLINOIS POLLUTION CONTROL BOARD
October 20,
1994
PEOPLE OF THE STATE
)
OF ILLINOIS,
)
Complainant,
)
v.
)
PCB 93—58
)
(Enforcement)
L. KELLER OIL
)
PROPERTIES, INC.,
)
)
Respondent.
JOHN J. KIM, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF OF
COMPLAINANT,
and
WILLIAM
W.
AUSTIN,
of
PARKER,
SIEMER,
AUSTIN
& RESCH, APPEARED ON
BEHALF
OF
RESPONDENT.
INTERIM
OPINION
AND
ORDER
OF
THE
BOARD
(by
J.
Theodore
Meyer):
This matter is before the Board on a six—count complaint
filed by complainant the People of the State of Illinois on March
19,
1993.
The complaint alleges that respondent L. Keller Oil
Properties,
Inc.
(Keller) failed to comply with the reporting
requirements for releases from an underground storage tank (UST).
Those reporting requirements are set forth at 35 Ill. Adm. Code
731.162,
731.163, and 731.164.
The complaint alleges 18
violations of these regulations, stemming from nine releases at
six different sites.
Hearings were held before
hearing officer
Joseph Kelleher on August 31, October
5, and October
6,
1993 in
Springfield, Illinois.
No members of the public were present.
APPLICABLE REGULATIONS
Section 731.162(a)
of the Board’s regulations requires the
owner or operator of a UST to perform specific abatement measures
after confirmation of a release from the UST.
Subsection
(b)
requires the owner or operator to submit a report to the Illinois
Environmental Protection Agency
(Agency) within 20 days after
release confirmation, summarizing the initial abatement steps
taken.
This report is commonly known as a 20—day report.
Similarly, Section 731.163(a) requires owners and operators
to assemble initial site characterization information, while
subsection
(b)
requires the owner or operator to submit a report
within 45 days of confirmation of the release, summarizing the
information collected.
This report is commonly known as a 45—day
report.
Finally, Section 731.164 requires owners and operators
to prepare and submit a free product removal report within 45
days of confirmation of the release.
All three of these sections
2
became effective on June 12, 1989.
JURISDICTION
Initially, Keller argues that, pursuant to G.J. Leasing Co.
Inc.
v. Union Electric Co.
(S.D.
Ill.
1993), 825 F.
Supp.
1363,
the Board is precluded from enforcing 35 Ill. Adm. Code Part 731.
In that case, the court held that the Illinois UST program was
preempted by federal law because Illinois’ program lacked federal
approval.
However, the portion of the order that found the
federal law preemption was subsequently vacated on December 17,
1993, rendering this argument invalid.
Therefore, the Board does
have jurisdiction to enforce 35 Iii. Adm. Code Part 731.
FACTS
The Mt. Vernon site
The first count of the six count complaint concerns a UST
system located at 3401 West Broadway in Mount Vernon, Jefferson
County,
Illinois, which is owned and/or operated by Keller. The
site has at least one UST with associated piping that has at
least ten
(10) per centum of the volume is beneath ground
surface.
Complainant alleges that on or about February 1,
1989,
December 23,
1989,
and November 5,
1990 petroleum spilled,
leaked, emitted, discharged, escaped or leached from a UST at the
site into the subsurface soils and possibly groundwater at or in
the vicinity of the site.
Those releases were reported to the
Emergency Services and Disaster Agency
(ESDA)1 on February 1,
1989,
December 23,
1989, and November 5,
1990.
(Comp.
Exh.
1—
3•)2
Complainant also contends that free product was observed as
a result of the February
1989
release.
The
Agency
sent
notices
to Keller following the three releases on March 13,
1989, January
5,
1990, and November 15,
1990.
(Comp. Exh.
10-12.)
Those
notices differ in language, but all informed Keller that the
release of petroleum requires submission of reports to the
Agency.
Complainant alleges that Keller failed to submit the
required 20 and 45—day reports for each of the three releases,
thus violating Sections 731.162(b)
and 731.163(b).
Complainant
also contends that Keller failed to submit a free product removal
report in connection with the February 1989 release, thus
violating Section 731.164(d).
ESDA is now known as the Illinois Emergency Management
Agency.
2
Complainant’s exhibits, which are mismarked as
“petitioner’s” exhibits, will be indicated by “Comp.
Exh.”,
while
exhibits submitted by Keller will be denoted as “Resp. Exh.”.
The transcript of the hearing will be indicated as “Tr. at X.”.
3
The Charleston (Lincoln Street~site
The second count concerns Keller’s UST system located at 419
West Lincoln in Charleston,
Coles County,
Illinois.
Keller’s
site contains at least one UST and associated piping that has ten
(10) per centum
of the volume beneath ground surface.
Complainant contends that on or about December 15,
1988 and June
1, 1989 petroleum at Keller’s site spilled,
leaked, emitted,
discharged, escaped or leached from a UST into the subsurface
soils and possibly groundwater at or in the vicinity of the site.
Those releases were reported to ESDA on December 15,
1988 and
June 7,
1989.
(Comp.
Exh.
4
&
5.)
The Agency sent notices to
Keller in response to the incident on December 29,
1988 and on
June 13,
1989.
(Comp.
Exh.
13
&
14.)
Those notices informed
Keller that the releases of petroleum require submission of
reports to the Agency.
Complainant alleges that Keller failed to
submit the required 20 and 45—day reports for the two releases,
thus violating Sections 731.162(b)
and 731.163(b).
The Pontoon Beach site
The third count of the complaint stems from Keller’s
facility located at 4160 Pontoon Road, Pontoon Beach, Madison
County,
Illinois.
The site contains at least one UST and
associated piping that has ten
(10) per centumu of the UST’s
volume beneath ground surface.
Complainant alleges that on or
about August
3,
1989,
a UST spilled, leaked,
emitted,
discharged,
escaped or leached petroleum into the subsurface soils and
possibly groundwater at or in the vicinity of the site.
That
release was reported to ESDA on August
3,
1989.
(Colup.
Exh.
6.)
In response to the incident the Agency sent a notice to Keller on
August 14,
1989.
(Comp.
Exh.
15.)
That notice informed Keller
that the release of petroleum required submission of reports to
the Agency.
Complainant alleges that Keller failed to submit the
required 20 and 45—day reports for the release, thus violating
Sections 731.162(b)
and ‘731.163(b).
The Bement site
Count four of the complaint concerns a UST system located at
249 South Macon,
Beinent, Piatt County, Illinois which is owned
and/or operated by Keller. The site has at least one UST with
associated piping that has at least ten
(10) per centum of its
volume beneath ground surface.
Complainant contends that on or
about December 4,
1989, petroleum spilled,
leaked, emitted,
discharged,
escaped or leached from a UST at the site into the
subsurface soils and possibly groundwater at or in the vicinity
of the site.
That release was reported to ESDA on December 4,
1989.
(Comp. Exh.
7.)
The Agency sent notice of the release to
Keller on December 8,
1989.
(Comp.
Exh.
16.)
That notice
informed Keller that the release of petroleum required submission
of reports to the Agency.
Complainant alleges that Keller failed
4
to submit the required 45-day report for the release, thus
violating Section 731.163(b).
The Charleston
(18th Street~site
The fifth count of the complaint concerns a facility located
at 814 18th Street, Charleston,
Coles County, Illinois.
The site
has at least one UST with associated piping that has at least ten
(10) per centum of its volume beneath ground surface. Complainant
alleges that on or about January 26,
1990 petroleum spilled,
leaked,
emitted,
discharged, escaped or leached from a UST at the.
site into the subsurface soils and possibly groundwater at or in
the vicinity of the site.
That release was reported to ESDA on
January 26,
1990.
(Comp.
Exh.
8.)
On February 8, 1990 the
Agency sent notice of the incident to Keller.
That notice
informed Keller that the release of petroleum require submission
of reports to the Agency.
(Comp. Exh.
17.)
Complainant alleges
that Keller failed to submit the required 20 and 45-day reports
for the release, thus violating Sections 731.162(b)
and
731.163(b).
The Salem site
The final count of the complaint concerns Keller’s facility
located at Interstate 57 and Illinois Route 50 in Salem, Marion
County,
Illinois.
The site has at least one UST with associated
piping that has at least ten (10) per centum of its volume
beneath ground surface. Complainant alleges that on or before May
9,
1990 petroleum spilled, leaked,
emitted,
discharged, escaped
or leached from a UST at the site into the subsurface soils and
possibly groundwater at or in the vicinity of the site.
That
release was reported to ESDA on May 9,
1990.
(Comp.
Exh.
9.)
On
May 21,
1990, the Agency sent notice of the release to Keller.
That notice informed Keller that the release of petroleum
required submission of reports to the Agency.
(Comp.
Exh.
18.)
Complainant alleges that Keller failed to submit the required 20
and 45—day reports for the release, thus violating Sections
731.162(b) and 731.163(b).
DISCUSSION
Keller does not deny that there were confirmed releases at
all six sites.
Additionally, Keller does not deny that it is the
owner or operator of the UST system at each site, with the
exception of the 18th Street site in Charleston.
Keller raises
several claims in its defense:
1) that the regulations were not
in effect at the time of the releases;
2) that Keller
substantially complied with the requirements of the regulations;
3)
that the Agency’s inconsistent enforcement and tardy
communication with Keller should bar enforcement;
4) that
Keller’s compliance with requirements established during a
December 1991 pre—enforcement conference estop the Agency from
5
proceeding against Keller; and 5) that the requested civil
penalties are not appropriate.
Owner or Operator at 18th Street
Keller contends that complainant has failed to show that
Keller was the owner or operator of the UST system at the
Bartley’s Garage site on 18th Street in Charleston.
Keller
states that its president testified at hearing that its
involvement with the Bartley Garage was solely as a commercial
account, where Keller supplied fuel to the garage.
(Tr. at 166.)
Keller further points to the testimony of Keller’s operations
manager, who testified that in the interests of good business,
Keller assisted many of its customers in filling out tank
registrations “and often filled those registrations out as Keller
being the owner of the tank when in fact we were not the owner of
the tank.”
(Tr. at 284-285.)
In response, complainant argues
that Keller should not be allowed to hold itself out as the owner
of a UST system for purposes of tank registration, but then take
the position that it is not the owner.
The Board finds that this issue was settled by Keller’s
response to complainant’s request to admit facts.
On page six of
Keller’s response,
filed with the Board on August 25,
1993,
Keller answers “admitted” in response to the statement “Keller
owns and/or operates an UST system at Bartley Garage, a gasoline
filling station located at 814 18th Street, Charleston, Coles
County,
Illinois.”
Thus, Keller has admitted to being the owner
or operator of the UST system at Bartley Garage.
Effective Date of Regulations
Keller contends, without further explanation, that the
regulations involved in this case did not go into effect until
after the releases, so that Keller cannot be charged with any
duty under those regulations.
In response, complainant states
that there were federal rules
(40 CFR 280) which required the
same sort of reports prior to the effective date of the state
regulations.
Thus, complainant claims that Keller was subject to
a reporting duty for all releases.
Sections 731.162, 731.163, and 731.164 were adopted by the
Board in In the Matter of:
UST Update. USEPA Regulations
(September 23.
1988)
(April
27,
1989), R88—27.
Those rules
became effective on June 12,
1989.
Three of the releases at
issue in this case were confirmed before June 12,
1989:
the
February 1,
1989 release at the Mount Vernon site,
and the
December 15,
1988 and June 7,
1989 releases at the Lincoln Street
site in Charleston.
The Board finds that Keller cannot be found
in violation of Sections 731.162,
731.163, and 731.164 for those
three releases, which were confirmed before those sections were
effective.
Those sections require an owner or operator to
6
provide specific reports within a specific time period (i.e.,
20
or 45 days)
after confirmation of a release.
All of those three
release were confirmed prior to the effective date of the
regulations, and two of those releases were confirmed more than
20 and 45 days before the effective date.
Thus,
timely
compliance with the rules was impossible.
We will not
retroactively enforce a rule for which timely compliance was
impossible.
As to complainant’s argument that there were federal
reporting requirements in place for that period, the complaint
does not allege violations of any federal provisions. Thus,
even
assuming’ that the Board would have jurisidiction over the federal
requirements, there are no alleged violations of 40 CFR 280
properly before the Board.
In sum, we find that Keller was not subject to the
provisions of Sections 731.162, 731.163, and 731.164 for the
releases confirmed on February
1,
1989 at the Mount Vernon site,
and the releases confirmed on December 15,
1988 and June
7,
1989
at the Lincoln Street site in Charleston.3
Substantial Compliance
Keller argues that it “substantially complied” with the
requirements of the regulations.
Keller contends that it had
numerous oral and written communications with the Agency during
its corrective action activities,
and that those communications
constitute substantial compliance with Sections 731.162(b)
and
731.163(b).
For example,
in connection with the Mount Vernon
site, Keller notes a number of contacts between it and the
Agency, and notes that on January 30,
1992,
it filed a 20-day and
45—day report for the three releases at Mount Vernon.4
(Resp.
Exh.
10
&
11.)
Likewise, Keller notes contacts with the Agency
regarding the Pontoon Beach and Bement sites, and the filing of a
20-day report
(for Pontoon Beach) and 45-day reports (for both
Pontoon Beach and Bement) on January 30 and 31,
1992.
(Resp.
Exh.
31,
32, and 41.)
As to the Bartley Garage site in
Charleston, Keller points to communications with the Agency, and
We note that the only alleged violation of Section
731.164, which requires the submission of a free product report,
was made as to the February 1,
1989 Mount Vernon release.
Thus,
only allegations of violation of Sections 731.162(b)
and
731.163(b)
remain.
Keller states that the reports were filed as agreed
during a December 10, 1991 pre—enforcement conference.
Much of
Keller’s argument concerning the specific contacts relates to the
February 1,
1989 confirmed release.
We note that we have found
no violation relating to that release, because the regulations
were not effective on that date.
7
Keller’s good faith efforts to comply.
Finally, as to the Salem
site, Keller states that a letter dated 12 days after the release
fulfilled the requirements of the
20. day report, and that 20-day
and 45-day reports were submitted to the Agency on January 30,
1992.
(Resp. Exh.
61
& 62.)
In response, complainant contends that Keller’s actions in
response to the releases, and Keller’s communications with the
Agency, do not explain why Keller failed to submit the 20 and 45
day reports in a timely manner.
Complainant maintains that it
has shown that Keller was the owner or operator at each site,
that there were confirmed releases, that the regulations required
Keller to submit reports within a specific period of time, and
that Keller did not submit the required reports in a timely
manner.
Complainant argues that for Keller to claim that the
submission of reports in January 1992, for releases which
occurred in 1989 and 1990, constitutes substantial compliance is
“nonsensical at best”.
The Board rejects Keller’s contention that it substantially
complied with the regulations.
It is clear from the record that
Keller took significant action in response to the releases, and
that Keller was in regular communication with the Agency.
However, this action and communication cannot change the fact
that Keller failed to submit 20 and 45 day reports within the
time period allowed by the regulations.
We find no evidence of
substantial compliance with the 20 and 45 day time frames.
The
submission of the reports in January 1992, while ending the
continuing failure to submit reports, simply does not constitute
substantial compliance with the rules.5
Inconsistent Enforcement and Tardy Communication
Next,
Keller contends that the Agency’s inconsistent
enforcement of the reporting requirements and its tardy
communication with industry bar this enforcement action.
Keller
maintains that the record shows that there were no forms for the
20 and 45 day reports until October 1991, that the Agency was
very slow in reviewing incidents, that Keller’s compliance
efforts were at least average for the industry, and that the
overall regulatory climate during this phase-in period of the new
regulations was much less organized and less stringent.
Keller
also argues that considering the frequent written and oral
contacts between the Agency and Keller and its environmental
consultants,
it is unfair for the Agency not to have notified
Keller of the alleged violations.
We also note that the record does not show that 20 and
45 day reports have ever been filed for the release at the
Bartley Garage in Charleston.
8
In response, complainant maintains that Keller’s “growing
pains” defense is without merit.
Complainant contends that the
Agency’s initial understaffing led to a focus on emergency
situations, and that such focus
is need-based enforcement, not
inconsistent enforcement.
Complainant also argues that although
one of Keller’s witnesses testified that it was common practice
to give oral,
rather than written, reports to the Agency,
industry practice does not dictate what is compliance under the
law.
Further,
complainant maintains that the creation of forms
by the Agency is not required by the regulations, and the
effectiveness of the regulations is not dependent upon the
existence of such forms.
The Board finds that Keller’s claims that the rules were
inconsistently enforced, and that communication with industry was
slow,
do not bar the Agency from enforcing the reporting
regulations.
We are sympathetic to the uncertainties which arise
when new regulations become effective.
Nevertheless, the owner
or operator is charged with compliance with the rules,
regardless
of whether the Agency is enforcing those rules in the manner that
the owner or operator believes is appropriate.
Once again, the
inquiry is whether Keller was the owner or operator of the site
when a release was confirmed, and whether Keller complied with
the reporting requirements in a timely manner.
The fact that the
reporting requirements may not have been uniformly enforced, and
that communication with industry may have been less than
complete, cannot change the fact that Keller failed to comply
with Sections 731.162(b) and 731.163(b).
Estotrnel
Finally, Keller argues that its compliance with requirements
established during the December 1991 pre—enforcement conference
estop the Agency from pursuing this enforcement action.
Keller
contends that at that pre—enforcement conference,
the Agency and
Keller reached an agreement that if Keller furnished the missing
reports, the Agency would not bring an action to enforce the
regulations.
Keller states that it relied on the Agency’s
representations when it filed the reports in January 1992.
Keller maintains that for the Agency to now pursue enforcement is
unfair and fails to recognize the importance of trust between the
Agency and the regulated community.
Keller argues that an
agreement not to enforce was upheld in Modine Manufacturing Co.
v. Pollution Control Board
(2d Dist.
1990),
176 Ill.App.3d 1172,
549 N.E.2d 359,
139 Ill.Dec.
847, and that the holding in Modine
is equally applicable to the agreement between Keller and the
Agency.
In response, complainant first challenges Keller’s
contention that there was an agreement not to enforce the rules.
Complainant points to a memorandum prepared two days after the
pre—enforcement conference, which states that the Agency informed
9
Keller that it would proceed with enforcement and seek penalties.
(Resp.
ExIt.
1.)
Assuming
arguendo
that such an agreement
existed, complainant contends that the estoppel argument still
fails.
Complainant maintains that the doctrine of estoppel lies
against the State only when there have been positive acts by
State officials which may have induced the action of the adverse
party,
and that the doctrine is invoked only to prevent fraud and
injustice.
(Jack Bradlev~.Inc.
v. Department of Employment
Security (1991),
146 Ill.2d 61,
585 N.E.2d 123; Rockford Life
Insurance Co.
v. Department of Revenue (1986),
112 I1l.2d 174,
492 N.E.2d 1278.)
Complainant argues that in this case,
there
was no positive act by the Agency, and certainly no act performed
by Keller beyond that which was already required.
The record contains conflicting evidence on the issue of the
alleged agreement.
On the one hand, the memorandum prepared by
an Agency employee on December 12, 1991 specifically states
“the
Agency informed Keller Oil we would proceed with
enforcement and seek penalties for noncompliance with the
regulations at all of the Keller stations to which the Agency has
sent Compliance Inquiry Letters.”
(Resp. Exh.
1 at 1.)
On the
other hand, two of Keller’s witnesses testified at hearing that
the memorandum was wrong, and that there was a specific statement
by an Agency employee that if Keller submitted the missing
reports the file would be closed and Keller would be in
compliance.
(Tr. at 198; 263-264.)
For example, Gregory Kemper,
a Keller employee, testified that “if we complied with the
requested 20 day and 45 day report forms that we discussed at
that meeting, that the file would be closed and that we would be
in compliance...that
was a direct statement.”
(Tr. at 263-
264.)
After considering this evidence, the Board finds that
there was an agreement between the Agency and Keller.
We find
that the sworn testimony of Keller’s witnesses, both of whom
attended the December 1991 pre—enforcement conference, outweighs
the statement in the memo that the Agency told Keller that it
would pursue enforcement.
Complainant did not present testimony
from any of the three Agency employees present at the pre—
enforcement conference, which might have rebutted the testimony
of Keller’s witnesses.
Having found the existence of an agreement not to enforce,
the Board must examine the elements of estoppel,
as applied
against the State.
As complainant points out, estoppel lies
against the State only when there have been positive acts by
State officials which may have induced the action of the adverse
party.
(Jack Bradley,
Inc.
y.
Department of Emplo\riuent Security
(1991),
146 Ill.2d 61,
585 N.E.2d 123.)
The Board has rarely
applied the doctrine of estoppel.
(People of the State of
Illinois v. Freedom Oil Company
(May 5,
1994), PCB 93—59;
city
of
Herrin v. Illinois Environmental Protection Agency
(March 17,
1994), PCB 93—195).
In those cases where we have found estoppel,
the Agency was found to have affirmatively misled a party and
10
then sought enforcement against that party for acting on the
Agency recommendation.
(See. e.g.
In the Matter of:
Pielet
Brothers’ Trading.
Inc.
(July 13,
1989), AC 88—51.)
We find that estoppel does not apply in this case.
We agree
with complainant that Keller performed only those acts which were
already required—-the filing of the 20 and 45 day reports—-in
reliance on the Agency’s agreement not to enforce.
We cannot
find that the Agency affirmatively misled Keller, since the only
action taken by Keller was compliance, although late, with the
existing regulations.
Estoppel against public bodies
is not
favored
(Miller
V.
Town of Cicero
(1st Dist.
1992),
225 Ill.
App.3d 105,
590 N.E.2d 490), and we do not find that the facts of
this case rise to the level of estoppel.
However, there remains the issue of the agreement not to
enforce.
In Nodine Manufacturing Co. v. Pollution Control Board
(2d Dist.
1988), 176 IllApp.3d 1172,
549 N.E.2d 359
(Modine
~)
(an unpublished order discussed in Nodine Manufacturing Co. v
Pollution Control Board
(2d Dist.
1990),
193 Ill.App.3d 643, 549
N.E.2d 1379),
the appellate court found that the Agency’s
agreement not to institute enforcement proceedings for emission
violations barred a subsequent enforcement action for those
alleged violations.
This decision was not based on principles of
estoppel.
The Board subsequently applied Modine
I in finding
that the Agency was barred from bringing an administrative
citation action where statements made by an Agency field
inspector led the respondent to believe that no administrative
citation would be filed if the respondent cleaned up his
facility.
(Illinois Environmental Protection Agency v
Wright
(August 30,
1990), AC 89—227.)
After reviewing the facts of this case,
we find no
difference between the Agency field inspector’s representation
that no administrative citation would be brought in Wright, and
the agreement that we have found between the Agency and Keller in
this case.
In both cases, Agency personnel agreed that if the
respondent took action
(i.e. filing the missing reports within a
specified time period), no further action would be taken.6
Complainant attempts to distinguish the court’s decision in
Nodine
I by noting that it is not clear in that case whether the
Agency contested the existence of an agreement, while in the
instant case complainant disputes any promise of non—enforcement.
However, as noted above, we have found that the evidence shows
the existence of an agreement not to enforce.
It would be unfair
6
Although complainant does assert in its reply brief
that Cindy Davis, the Agency employee alleged to have made the
agreement, did not have any authority to make an agreement, there
is no evidence in the record on this point.
11
to allow the Agency to agree not to pursue enforcement, and then
pursue such enforcement regardless of the agreement.
Therefore,
we find that the Agency is barred from enforcing Sections
731.162(b)
and 731.163(b)
as to those releases for which Keller
filed the missing reports in January 1992:
the December 23,
1989
and November 5, 1990 releases at the Mount Vernon site (Resp.
Exh.
10
&
11); the August
3,
1989 release at Pontoon Beach
(Resp.
Exh. 31
& 32); the December 4,
1989 release at Bement
(Resp.
Exit.
41); and the May 9,
1990 release at Salem
(Resp.
Exh.
61
& 62).~
DECISION
Based on the record, the Board finds that Keller failed to
comply in a timely manner with the reporting requirements of
Sections 731.162(b)
and 731.163(b)
for the January 26,
1990
release at the Bartley Garage in Charleston.
Keller does not
deny that there was a confirmed release at that site, nor does
Keller claim that the required reports were submitted in a timely
manner.
Indeed, there is no evidence in this record that the 20
and 45 day reports for the release at Bartley Garage have ever
been filed.
The only defenses offered by Keller in relation to
this release8 have been rejected by the Board.
Thus,
we find
Keller in violation of Sections 731.162(b)
and 731.163(b)
for the
January 26,
1990 release at the Bartley Garage in Charleston.
REMEDY
Having found Keller in violation of Sections 731.162(b)
and
731.163(b),
the Board must order an appropriate remedy.
Pursuant
to Section 33(c)
of the Environmental Protection Act
(Act)
(415
ILCS 5/33(c)
(1992)), when issuing its orders and determinations,
the Board is to consider all facts and circumstances relating to
the reasonableness of the emissions, discharges, or deposits
involved,
including:
1.
the character and degree of injury to, or interference
with the protection of the health, general welfare and
physical property of the people;
The record
is not clear as to exactly which sites were
discussed at the December 1991 meeting.
The memo specifically
mentions Pontoon Beach, Mount Vernon, and Bement, but then
concludes with a general reference to “each of Keller Oil’s
twelve LUST sites”.
(Resp. Exh.
1 at 2.)
We believe that the
evidence tends to show that all of the sites were discussed at
the meeting, and thus that all were covered by the agreement.
8
As noted above, Keller contended that it is not the
owner or operator of the Bartley Garage site,
and that it had
substantially complied with the requirements of the regulations.
12
2.
the social and economic value of the pollution source;
3.
the suitability or unsuitability of the pollution
source to the area in which it is located,
including
the question of priority of location in the area
involved;
4.
the technical practicability and economic
reasonableness of reducing or eliminating the
emissions, discharges or deposits resulting from such
pollution source; and
5.
any subsequent compliance.
The Board’s consideration of these factors has been
difficult, because neither complainant nor Keller has
specifically addressed the factors.
For example, there is no
discussion of the suitability or unsuitability of the pollution
source to the area in which it is located.
Nevertheless, the
Board has considered each of the Section 33(c) factors.
There
has been no subsequent compliance by Keller.
The 20 and 45 day
reports for the release at the Bartley Garage have not been
filed, although the release was confirmed on January 26,
1990.
Failure to file the required reports
is a serious matter.
Without the data required by the regulations, the Agency cannot
determine the degree of injury to the environment.
Keller has not argued that it was technically impracticable
or economically unreasonable to file the reports, and the Board
specifically finds that the filing of those reports is both
practicable and reasonable.
However, Keller does state that its
contractor was initially denied access to the site by the owner
of the garage, but that once Keller obtained access, the
necessary cleanup was performed.
(Tr. at 279—281.)
The Board
finds that the delay in access may have contributed to a delay in
filing the reports, although the testimony is not clear as to the
time during which access was denied.
Thus,
the delay in access
mitigates the violation somewhat.
However, the missing reports
still have not been filed, although Keller has apparently
obtained access to the property and has performed cleanup.
PENALTY
In assessing a penalty, Section 42(h)
of the Act authorizes
the Board to consider any matters of record in mitigation or
aggravation of penalty, including but not limited to:
1.
the duration and gravity of the violation;
2.
the presence or absence of due diligence on the part of
the violator in attempting to comply with the
requirements of the Act and regulations or to secure
13
relief therefrom as provided by the Act;
3.
any economic benefits accrued by the violator because
of delay in compliance with requirements;
4.
the amount of monetary penalty which will serve to
deter further violations by the violator and to
otherwise aid in enhancing voluntary compliance with
the Act by the violator and other persons similarly
subject to the Act; and
5.
the number, proximity in time, and gravity of
previously adjudicated violations of the Act by the
violator.
The first factor, the duration and gravity of the violation,
aggravates the penalty against Keller.
The releases at Bartley
Garage were confirmed on January 26,
1990, yet Keller has never
filed either a 20-day or a 45-day report.
As noted above, the
reporting violations are serious violations, because the reports
enable the Agency to make decisions on the extent of the
contamination at the site.
We specifically reject Keller’s
implication that the violations are merely technical violations.
Reporting requirements are an essential part of the environmental
regulatory scheme, and failure to comply with those requirements
are not “technical noncompliance”.
The second factor, due diligence on the part of Keller, also
aggravates the penalty against Keller.
Not only did Keller fail
to submit the reports in a timely manner, but those reports have
never been filed.
It is true that Keller has apparently
performed the necessary remedial actions.
However, the fact that
Keller has complied with other regulations regarding cleanup
activities does not translate to due diligence in complying with
the reporting requirements of Sections 731.162 (b)
and 731.163(b).
There is no specific evidence in the record on the amount of
economic benefit gained by noncompliance, although Keller has
saved the amount necessary to actually prepare and file the
missing reports.
However, we find that this factor neither
aggravates nor mitigates the penalty.
The fourth factor allows consideration of the amount of
penalty necessary for deterrence, both as to the violator and to
those persons also subject to the regulations.
Complainant
contends that a penalty of $12,500 per violation is appropriate
to deter future violations.
Complainant notes that this figure
is substantially lower than the statutory maximum penalty, but
contends that this figure would send the message that Keller’s
conduct is unacceptable.
Keller contends that complainant’s
suggested penalty would not deter future violations or enhance
voluntary compliance.
14
Finally, the fifth factor, concerning previous adjudications
of violations, mitigates the penalty.
Complainant admits that
there are no prior adjudications against Keller.
As noted above, complainant requests the imposition of a
$12,500 penalty for each violation,
plus an award of costs and
fees pursuant to Section 42(f)
of the Act.
Section 42(a)
provides for civil penalties of up to $50,000 per violation, plus
up to $10,000 for each day that the violation continues.
Given
Keller’s very lengthy, and continuing, failure to file the
required reports, complainant’s requested penalty per violation
is much less than the maximum penalty.
After considering all of
the Section 33(c)
and Section 42(h)
factors, both aggravating and
mitigating, the Board will impose a $7500 penalty for each
violation, resulting in a total penalty of $15,000.
That amount
is consistent with our decision in People v. Freedom Oil
(June
6,
1994), PCB 93—59, where we imposed a $30,000 penalty for
violations of both the investigation and reporting requirements
of Sections 731.162 and 731.163.
We find that a $15,000 penalty
will aid in the enforcement of the Act.
Additionally, we will
order Keller to submit the missing reports, and to cease and
desist from violations of Sections 731.162(b)
and 731.163(b).
We find that our decision in this case is consistent with
the appellate court’s decision in Park Crematory.
Inc. v.
Pollution Control Board
(June 20,
1994), No.
1—92-2729.
In that
case, the appellate court vacated
a $9000 penalty imposed for
failure to have required permits.
The court found that Park
Crematory had acted in good faith,
had corrected the violations
when
notified of those violations, and was in full compliance
prior
to
the
initiation
of
the
enforcement
case.
In
this
case,
however,
we
have
found that Keller remains
out
of
compliance
more
than
four
years
after
the
confirmation
of
the
release,
and
after
specific notification by the Agency.
Quite simply, Keller still
has not filed the required 20 and 45 day reports.
Thus,
we find
that the $15,000 penalty is appropriate under these facts.
As for an award of costs and fees pursuant to Section 42(f),
the Board finds that Keller has committed knowing violations of
Board regulations.
Keller knew,
since the Agency’s February 8,
1990
letter,
that
there were reporting requirements, and had
knowledge of the specific state requirements since at least
December 1991, when the pre—enforceiuent conference occurred.
Thus, we will award attorney’s fees and costs, as requested by
complainant and allowed by Section 42(f).
This opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
The Board hereby finds L. Keller Oil Properties
(Keller)
in
15
violation of Sections 731.162(b)
and 731.163(b)
in connection
with the January 26,
1990 confirmed release at the Bartley Garage
site,
814 18th Street, in Charleston, Coles County,
Illinois.
We
award the following relief:
1.
Keller shall submit properly completed 20 and 45 day reports
for the release to the Illinois Environmental Protection
Agency (Agency) within 35 days of the date of this order,
and shall cease and desist from further violations of
Sections 731.162(b)
and 731.163(b).
2.
Keller shall pay the sum of fifteen thousand dollars
($15,000) within 35 days of the date of this order.
That
payment shall be made by certified check or money order,
payable to the Treasurer of the State of Illinois,
designated for deposit to the Environmental Protection Trust
Fund, and shall be sent by First Class mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, IL 62706
The certified check or money order shall clearly indicate on
its face the case name and number and Keller’s Federal
Employer Identification Number or Social Security Number.
Any penalty not paid within the time prescribed shall incur
interest at the rate set forth in subsection
(a) of Section
1003 of the Illinois Income Tax Act
(35 ILCS 5/1003
(1992)),
as now or hereafter amended, from the date payment is due
until the date payment is received.
Interest shall not
accrue during the pendency of an appeal during which payment
of the penalty has been stayed.
3.
Keller shall pay the attorney’s fees and costs incurred by
the Office of the Attorney General in its representation of
the People of the State of Illinois.
Within 14 days from
receipt of this order, the Attorney General shall file with
the Board, and serve upon Keller, an affidavit of fees and
costs relating to the two violations found against Keller.
Keller may file a response with the Board within 7 days
after service of the affidavit.
IT IS SO ORDERED.
M.
NcFawn
concurred.
16
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution
Control Board, hereby certify that th~above opinion and order
was adopte~on the
~
day of
~
y
,
1994, by a
vote of
~-~O
.
“7
~
~
Dorothy
N.
G~gfrt,
Clerk
Illinois Poli~ütionControl Board
