Insufficient
CONCLUSION

ILLINOIS POLLUTION CONTROL BOARD

November 4, 1993

ROBERT MIEHLE,

Complainant,

v.

)

PCB 93—150

(Enforcement)

CHICAGO BRIDGE AND

IRON COMPANY,

Respondent.

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

This matter is before the Board pursuant to a two—count

complaint filed August 18, 1993 by Robert Miehle (Miehle) against

Chicago Bridge and Iron Company (CBI), located in Chicago, Cook

County, Illinois. The complaint alleges that respondent violated

415 ILCS 5/21(e) of the Environmental Protection Act (Act) in that

respondent disposed or abandoned waste at a facility which does

not meet the requirements of the Act, and 35 Ill. Ada. Code Section

731.160, in that respondent failed to undertake corrective action

regarding. an alleged release of petroleum from underground storage

tanks (USTS).

On September 10, 1993, CBI filed a motion to dismiss the

complaint and a memorandum of law in support of the motion pursuant

to 35 Ill. Ada. Code Section 101.243 on essentially two bases: (1)

the Board does not have jurisdiction over the complaint; and (2)

the complaint is substantially insufficient in law. Miehle filed

a response to the motion to dismiss on October 4, 1993.

After consideration of the issues raised by the motion, for

the following reasons, the Board hereby denies the motion to

dismiss and accepts this case for hearing.

The ComDlaint

Count I. 

—

Violation of 35 Ill. Adm. Coda Beation 731.160

Count I alleges CBI was the “owner” or “operator” of

“property” located at 1357 West 105th Street in Chicago, Illinois

until approximately April 4, 1986,  (Complaint, at 1) and that

during CBI’ 

S

“ownership,” “numerous” USTs were located on—site and

contained petroleum and/or heating oil. 

(~)

The complaint

states that CHI is the last party to have operated or otherwise

“used” the USTs 

(~)

and the tanks were no longer in use on

November 4, 1984.

Without explaining how the release was discovered, the

complaint alleges a laboratory analysis was performed on April 28,

1993, on soil samples from the 1357 West 105th Street site and the

analysis “confirmed” a release of petroleum from the USTS. 

at

2.) The complaint does not indicate from which USTs the petroleum

release is alleged to have occurred.

Count I also alleges Miehle contacted CBI notifying respondent

of the releases of petroleum from the USTs. (~j According to

Miehle, CBI responded by “disclaiming status as owner or operator

of the USTs and effectively refusing to undertake corrective

action.” 

(~&.)

The Count I prayer for relief requests that the Board find

CBI is the “owner” and “operator” of the UST5; that CBI failed to

undertake corrective action in violation of 35 Ill. Ada. Code

731.160; that CBI pay a civil penalty of $50,000 for each violation

and an additional civil penalty of $10,000 for each day the

violations continue; and that the Board direct CBI to cease and

desist from further violation of the I~ct1 and to undertake

corrective action of the petroleum releases.

Count II 

Violation of Section 21(e) of the Environmental

Protection Act

Count II realleges the paragraphs of Count I and in addition,

asserts a violation of 415 ILCS 5/21(e), “which makes it a

violation of the Environmental Protection Act to dispose or abandon

any waste at a site which does not meet the requirements of the

Act.” 

at 3.) Count II concludes, by “respondent’s failure to

clean—up, remove or reclaim petroleum from underground storage

tanks, in soils at the above—referenced (site), respondent has

disposed of or abandoned a waste at the above—described facility.”

(~~)

Without any description, it is Miehle’s claim the facility at

1357 West 105th Street in Chicago does not meet the requirements of

the Act. 

(~~)

The Count II prayer for relief requests that the Board find

CBI violated 415 XLCS 5/21(e); that CBI pay a civil penalty of

$50,000 for each violation and an additional civil penalty of

$10,000 for each day the violations continue; and that the Board

direct CBI to cease and desist from further violation of the Act

and to undertake “clean up” of the petroleum releases.

Motion to Dismiss

(1)

The

Board is Without Jurisdiction

CBI filed a motion to dismiss and a memorandum of law in

support, pleading that the Board does not have jurisdiction to

order an “owner” or “operator” of USTs to conduct release

‘Count I does not allege a violation of the Act; but instead

alleges a violation of 35 Ill. Adm. Code Section 731.160.

investigation, site assessment or, in this case, corrective action,

unless a prior enforcement action has been brought before the

Office of the State Fire Marshal (OSFM). (Motion to. Dismiss at 1,

citing, North Oak Chrysler Plymouth v. Amoco Oil Co., (April 4,

1992) PCB 91-214, 

____

PCB

____.)

It is CBI’s position that P.A.

87-323, effective September 6, 1991, divided Jurisdiction between

the OSFM and the Board, giving the Board jurisdiction only over

corrective action requirements applicable to owners and operators

required to undertake corrective action by the OSFM. According to

CBI, the Board is authorized to promulgate regulations only for

corrective action, while the OSFM promulgates regulations defining

owner or operator or certifying a release. The OSFX is responsible

for promulgating regulations pursuant to Section 22.4(d) (3), which

provides:

“Corrective action shall not include requirements

providing for design, construction, installation, general

operation, release detection, release reporting, release

investigation, release confirmation, out—of—service

systems and their closure or financial responsibility.”

(415 ILCS 5/22.4(d) (3).)

CBI argues the Board is limited to promulgating regulations for UST

corrective action beyond Section 22.14(d) (3) and that because of

this distinction between the Board and the OSFM’s authority,

neither the Agency nor a private citizen, such as is the case here,

may bring, a claim before the Board that a UST owner violated 35

Ill. Ada. Code Section 731.160, until such time as the OSFM has

confirmed a release.

In support of the proposition that the Board is without

authority to order CBI to commence “corrective action” or “clean

up” the site, and generally that P.A. 87-323 limits the Board’s

jurisdiction, CBI points to the Board’s opinion and order in In the

Matter of UST Update, R91-14 (January 9, 1992). In that opinion

the Board stated:

We suggest that another problem with the current scheme

is that there appears to be no real enforcement potential

before the Board, except for failure of the operator to

properly execute the corrective action plan, even for

intentional violation of the design and operating

requirements.  

For example, an operator could

intentionally design a tank in violation of the

regulations, operate it in a reckless manner so as to

cause a release, and then fail to report (the release.

So long as the operator (after being caught) complied

with2 the corrective action requirements of Subpart F

there would be no possibility of enforcement before the

Board. Moreover, if the operator failed to comply with

Subpart F, Board enforcement would be limited to

enforcement of the “paperwork” requirements of that

Subpart.

There would be no opportunity to enforce for

the pollution incident itself 

or the underlying design

and operation violations which cause the release. (In the

Matter of: UST Update USEPA Regulations (1/1/91 

6/30/91), (January 9, 1992) R91—14, 129 PCB 151, 155

(Footnote added).)

Based on this quotation, CBI makes the 

argument that before Miehle

can allege that CBI violated “the detailed procedural requirements

applicable to those parties who were required to undertake

corrective action, the OSFM (not the Board) must find (1) CBI is

an owner or operator, and (2) that CBI failed to “begin corrective

action in accordance with 40 CFR 

280, 

Subpart F, incorporated by

reference in Section (41 Ill. Ada. Code 170.410.” 

41

Ill.Adm.Códe Section 170.580(b) (2).)

(2) The Complaint is Insufficient in Law

The motion to dismiss and memorandum further argue that the

complaint is insufficient at law to state a claim for relief.

First CBI asserts that the complaint fails to state a claim for

declaratory relief because CBI fails to allege any fact that

indicates Miehle has an interest in the outcome of the litigation.

CBI cites to Underaround Contractors Ass’n v. City of Chicago,

(1977) 66 Ill.2d 371, 376, 362 N.E.2d 29, for the proposition that

it is “fundamental that any claim, including one for declaratory

judgment, must contain an allegation which demonstrates that a

party is ‘interested in the controversy.’” (Memorandum at 8,

quoting, Underaround Contractors, 362 N.E.2d at 301.)

The motion to dismiss and memorandum also argue the complaint

is insufficient at law to state a claim for declaratory relief

because Miehle fails to allege the “source” of the purported

contamination. (Memorandum at 8.) CBI argues that the complaint

concludes that “(a laboratory analysis of soil samples at the

above—described site confirmed a release of petroleum from the

USTs.” 

auoting, complaint at par. 7.) However, the report

does not reach this conclusion, but instead fails to indicate the

source. (~j..) CBI cites to Outboard Marine v. James Chisholm &

Sons. Inc., (2nd Diet. 1985) 113 Ill.App.3d 238, 478 N.E.2d 651

for the proposition that “although a motion to dismiss admits well-

2Bracketed language appears in the text of the Board’s opinion

and order in R91-14 on page 5, but was omitted in the quotation of

the opinion cited in CBI’s memorandum. (Memorandum at 3—4.)

5

pleaded facts, it does not admit unsupported conclusions of law or

fact; nor does it admit facts which contradict facts contained in

an exhibit.” (~j citing, Outboard Marine, 478 N.E.2d at 656.)

DISCUSSION

Standard to 

Apnlied on a Motion to Dismiss

CBI filed the motion to dismiss in this matter pursuant to 35

Ill. Ada. Code Section 101.243, Motions Attacking Jurisdiction or

Sufficiency of the Pleadings, which provides:

a) All motions to strike or dismiss challenging the

sufficiency of any pleading shall be filed within

21 days after the service of the challenged

document, unless the Board determines that material

prejudice would result....

b) All motion challenging the jurisdiction of the

Board shall be filed prior to the filing of any

other document by the moving participant or party

unless the Board determines that material prejudice

will result....

It is well-settled that proceedings before the Board are

governed by the Board’s procedural rules rather than the Illinois

Code of Civil Procedure. (Villaae of South Elain v. Waste Mgt of

Illinois Inc., (1978) 64 Ill.App.3d 565, 381 N.E.2d 778, 21

Ill.Dec. 451.)  However, Section 101.100(b) of the Board’s

procedural rules allows that in the absence of a specific rule to

govern a particular situation, the parties may argue that the Code

(or the Illinois Supreme Court Rules) applies. (35 Ill. Adm. Code

Section 101. 100(b).) Our procedures do not articulate standards

upon which to decide a motion to dismiss; therefore, we will

determine the instant motion by the same principles applied to

Illinois Code of Civil Procedure 2-615 and 2-619 motions to strike

or dismiss. (735 ILCS 5/2—615 and 5/2—619.) It is axiomatic that

the trial court must take all well-pleaded allegations in the

complaint as true, (Import Sales v. Continental Bearings, (1st

Dist. 1991) 217 Ill.App.3d 893, 577 N.E.2d 1205, 160 Ill.Dec. 634,

639) and a complaint should not be dismissed unless it clearly

appears that no set of facts could be proven that would entitle a

plaintiff to relief (Callaizakis v. Astor DeveloDment Co., (1st

Diet. 1972) 4 Ill.App.3d 163, 280 N.E.2d 512). The Board will

consider the instant motion to dismiss by the same criteria.

Count I 

—

Violation of 35 Ill. Ada. Code 

Section

733.160

Jurisdiction

CBI’s main argument against the Board’s allowing Count I to go

forward is that the Board is without the statutory authority to

enter an order finding a violation of Section 731.16O and order the

respondent to perform corrective action without there first being

an “enforcement action” before the

OSFM. 

On this •issue, CBI and

Miehle have cited North Oak, In the Matter of UST Update. USEPA

Regulations (1/1/91 

—

6/30/91), (January 9, 1992) R91—14, 129 PCB

149, and AKA Land. Inc. v. IEPA (March 14, 1991) PCB 90—177, 120

PCB 35. However, the Board has issued an order on this identical

issue when deciding a motion to dismiss and motion for summary

judgment in Mandel v. KulDaka, (July 30, ‘1992) PCB 92—33,

PCB

In Mandel, on a motion to dismiss, we struck the portion of

the complaint alleging a violation Section 731.160 on the basis

that it is the “confirmation of a release that imposes the

requirements of Section 731.160 on the owner or operator.”

(Mandel, Slip Op. at 11.) Though not expressly stated as such in

Mandel, the Board need not wait for a prior enforcement aôtion

before the OSFM. The Environmental Protection Act (Act) confers

jurisdiàtion upon the Board to entertain violations of the Act and

Board regulations.  (415 ILCS 5/31.) Section 31 of the Act

authorizes the Board to impose civil penalties for violations

payable into public funds, not to private parties, and it

authorizes the Board to order a person found in violation to cease

and desist from further violation. (415 ILCS 5/33(a), 5/33(b) and

5/42.) Count I of the complaint requests that the Board find CBI

in violation of Section 731.160 of the Board’s regulations, that we

declare CBI to be the owner or operator, that we issue a cease and

desist order, that we order CBI to perform corrective action and

that a civil penalty be assessed. Such forms of relief are within

the Board’s traditional statutory authority. (Mandel, Slip Op. at

4—5.)

It is significant that we struck the portion of the Mandel

complaint alleging a violation of Section 731.160 because Mandel

had alleged the petroleum release occurred in the 1970’s. We

reasoned that because the release did not 

occur subsequent to

the

effective date of Section 731.160 

June, 1989 

it would have been

an unlawful retroactive application of that provision. (Mandel,

Slip Op. at 11, citing, Pulitzer Community Newspapers. Inc. v

IEPA, (December 20, 1990), PCB 90—142, 117 PCB 99, Slip Op. at 4.)

Pursuant 

to our determination in Mandel, Count I of

the

instant

complaint survives the motion to dismiss.

Here, Mieble alleged

that even though CBI was the last party to be the “owner” or

“operator” of UST5 sometime in 1986 (Complaint, at 1), Miehle also

alleged that the release was discovered in 1993

—

a release, which

if is proven at hearing, will have been “confirmed” subsequent to

the effective date of Section 731.160.

We note that the parties have placed great emphasis on

7

comments made in In the Matter of UST Update where we discussed the

Board’s authority over certain aspects of the UST program. (~g

supra at 3 - 4.) The intent of R91—14 was to illustrate how

jurisdiction is divided between the OSFM and the Board with regard

to the State of Illinois’ UST program. The comments made by the

Board in R91-14 were never intended to apply to the rights of a

private citizen, the Environmental Protection Agency or the Office

of the Attorney General, to enforce the Act or its corresponding

regulations. The statements made by the Board in R91-14, which

have been construed by CBI to limit the Board’s authority, have no

bearing on this private citizen enforcement action and are not

dispositive

Insufficient

of

theLawoutcome in this adjudicatory proceeding.3

CBI further argues that the complaint 

is insufficient in law

because it 

includes a

request for declaratory relief, and it

alleges insufficient facts to demonstrate Miehle’s interest in the

outcome of the case to substantiate a “case or controversy.” We

find that such an argument is misplaced in the context of a

“citizen’s enforcement action.” The Act specifically grants

standing to “any person” to enforce the provisions of the Act or

regulations promulgated thereunder:

Any person may file with the Board, a complaint...

against any person allegedly violating this Act. (415

.ILCS 5/31(b).)

Miehle is a “person” as that term is defined in the Act, “Person”

is any individual....” (415 ILCS 5/3.26.) Caselaw relied upon by

CBI

—

Underground Contractors 

—

has no consequence when citizen’s

enforcement actions are directly authorized by statute.4

3Discussing the Board’s authority in relation to Section

731.160, in Mandel, we recounted our holdings in R91—14 and North

Oak and stated that we have “opined that the repeal of those rules

(R91-14 UST rules would leave the Board without authority to enter

an order absent a prior finding by the Fire Marshal.” (Mandel,

Slip Op. at 10, n. 10.) As a matter of clarification, the Board

decided in Mandel that the Board has authority to enter a

corrective action order once a release has been confirmed. The

effect of Mandel is that we rejected the notion that the Board is

without such authority.

4The right to bring a citizen’s enforcement action has its

roots in the Constitution of the State of Illinois. Though the

Constitution does not by itself confer the right to bring the

citizen’s enforcement action (Parsons v. Walker, (4th Diet. 1975)

28 Ill.App.3d 517, 328 N.E.2d 920), the Illinois Constitution of

Similarly, 

with regard to the argument that Count I is

insufficient in law because it failed to allege that the source of

the contamination came from tanks owned or operated by CBI, this

argument also fails. In a light most favorable to Miehle as the

nonmoving party, the Board can foresee a set of facts upon which

Miehle could recover.

If Miehle can demonstrate at hearing that

CBI is the “owner” or “operator” of the tanks located at 1357 West

105th Street, and 

if Miehle can show the petroleum discovered on

the premises “leaked” from those tanks, a finding of violation

could result. The Board notes however, that by way of this order,

the Board makes no finding as to the merits of the complaint. EJe

only find that the allegations regarding a release of petroleum are

sufficiently pled to survive a motion to dismiss as to Count I.

Count II 

Violation of Section 21(e) of 

the

Environmental

Protection Act

Jurisdiction

The memorandum of law in support of the motion to dismiss

Count II primarily argues that the Board is without jurisdiction to

order CBI to “clean up...petroleum waste” at the site even if

Miehle could prove a violation of Section 21(e) of the Act.

(Memorandum, at 6-7.) Section 21(e) provides that no

person shall:

No person shall.:

e. Dispose, 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.

The contention

raised by 

Cal is that Congress specifically designed

the Resource and Conservation and Recovery Act to regulate USTs, 42

1970 in conjunction with the Environmental Protection AOt (Section

31) allows individual members of the public to sue on behalf of the

public at large.  Article XI, Section 2 of the Illinois

Constitution provides:

Each person has the right to a healthful environment.

Each person may enforce this right against any party,

governmental or private, through appropriate legal

proceedings subject to reasonable limitation and

regulation as the General Assembly may provide by law.

It is clear from the records of the Constitutional Convention that

this provision was intended to “abolish” any requirement that the

party suing have any “special damage.” L.Cunningham, Procedure,

“Environmental Law”, IICLE, ch. 1.14, at 1—16 (1983.)

U.S.C. section 6991—6991i, (RCRA, Subtitle I), and

the

Illinois

General Assembly specifically created a UST program and authorized

the Board to adopt regulations

“identical—in—substance” to federal

regulations promulgated by 

the USEPA pursuant to

RCRA 

Subtitle I.

CBI’s argument is that the intention of these laws is to enable UST

owners and operators to voluntarily remediate UST releases and

gauge compliance.

(Memorandum, at 7.)

According to CBI, the

regulations enable the OSFN, the IEPA and the Board to consistently

address in a “streamlined fashion”, the numerous UST releases in

Illinois.

the

response to the motion to dismiss, Miehie indicates

that research has provided no caselaw on point, either from Board

decisions or Illinois Appellate decisions, that hold the failure to

remediate petroleum leakage from a UST constitutes the abandonment

or disposal of a waste, and that this is may be a matter of first

impression

in Illinois.

(Response, at 12.)

Miehle urges the

Board to find that a respondent’s refusal to remediate petroleum

leakage can violate

Section 21(e) and that this policy

consistent with the State’s public

policy that “the Act shall be

liberally construed to effectuate the purposes of the Act.” (415

ILCS 5/2 (c).)  “It is the purpose of the Act to restore, protect

and enhance...the environment, and to assure that adverse effects

upon the environment are fully borne by those who cause them.” (415

ILCS 5/2 (b).)

(Response, at 12.) Miehle argues that a petroleum

leak can be a “waste” resulting from “commercial activities”

provided for in the definition of waste as enacted by the General

Assembly:

Any

garbage or other

discarded material, including solid

(or liquid, from industrial or

commercial activities.

(415 ILCS 5/3.53.)

Miehie points to the case of Pantry. Inc.

Ston—N—Go Foods.

Inc.,(S.D.

md. 1991) 796 F.Supp. 1171,

which held that a UST

owner/operator’s

refusal to remediate petroleum leakage was an

improper disposal of waste in

violation of a Kentucky statute

virtually identical to Illinois’ Section 21(e).

(Response, at 12—

13.)

While 

Board research has not found a final Board opinion “on—

point” on this issue, in Mandel, the Board allowed the portion of

the complaint to proceed to

hearing which alleged a 

violation of

Section 21(e). In that case, we determined that the development of

the record and the briefing of certain issues germane to that case

would aid the Board’s deliberations on whether a violation of

Section 21(e) had occurred. The Board found that the complaint had

raised issues within the Board’s jurisdiction.

Similarly, the Board is inclined to follow our determination

.in Mandel and allow Count II to proceed to hearing. Pursuant to

the motion to dismiss standard, that the complaint should only be

dismissed if no set of facts could be alleged warranting recovery,

the Board finds that there are many issues which need to be

addressed at hearing, and which could support the finding of a

violation.

These issues could include, but would not be limited

to: (1) Whether CBI is an owner or operator for purposes of Section

21(e); (2) Whether “leaking” occurred from USTs owned or operated

by CBI; (3) Whether “leaking” constitutes abandonment or disposal

or whether it is the alleged refusal to perform corrective action

which constitutes disposal or abandonment; (4) Whether “waste”

includes “petroleum”; (5) Whether Illinois’ UST

program 

with

the

corresponding regulations and statutory authority, is intended to

be the exclusive remedy for rectifying releases of petroleum from

UST5 in

the

State of Illinois; and (7) Whether violation of Section

21(e) is intended to include confirmed releases of petroleum from

USTs.

Insufficient in Law

CBI also moved to dismiss Count II on one of the same bases as

it

moved to

dismiss Count I 

that Miehle failed to allege that the

source of the petroleum was the USTs owned or operated by CBI. For

the same reasons we set out with regard to Count I, the Board finds

that Count II is sufficient to survive the motion to dismiss.

CONCLUSION

The Board hereby denies CBI’s motion to dismiss in its

entirety. Accordingly, this matter shall proceed to hearing. The

Chief Hearing Officer shall assign a hearing officer to conduct

hearings. Hearing must be scheduled and completed as directed by

the chief hearing Officer. The Chief Hearing Officer~shall

promptly issue appropriate directions to the assigned hearing

officer consistent with this order.

The assigned hearing officer shall inform the Clerk of the

Board regarding the time and location of the hearing at least 40

days in advance of hearing so that public notice may be published.

After hearing, the hearing office shall submit an exhibit list, a

statement regarding credibility of witnesses and all actual

exhibits to the Board within five (5) days of the hearing. The

hearing officer and the parties are encouraged to expedite this

proceeding to the extent possible.

IT IS SO ORDERED.

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

Board, hereby certify that the above order was ~dopted on the 

_____

day of 

,~e-,-~e&/,

1993, by a vote of ~

~

orothy M. G~34n, Clerk

Illinois Pol),&i~ionControl Board