ILLINOIS POLLUTION CONTROL BOARD

April

1992

NORTH

OAK

CHRYSLER

PLYMOUTH,

)

Complainant,

)

PCB

91—214

(Enforcement)

AMOCO OIL

COMPANY,

)

Respondent.

DISSENTING OPINION

 (by B.

 Forcade):

I respectfully dissent from today’s decision.

 The majority

essentially has granted dismissal for failure to state a cause of

action over which the Board has jurisdiction.

 For two reasons,

I

would have denied both motions for summary judgment and set the

matter for hearing.

First, despite any ruling regarding the UST regulations,

I

believe North Oak Chrysler (North Oak) has filed a complaint

which states sufficient facts to support a cause of action over

which this Board has jurisdiction.

For purposes of ruling on a motion to dismiss, all well

pleaded facts contained in the complaint must be taken

as true and all inferences therefrom must be drawn, in

favor of the nonmovant.

 citations

 omitted).

A

complaint should not be dismissed for failure to state

a cause of action unless it clearly appears that no set

of facts could be proven under the pleadings which

would entitle plaintiff to relief.

 citations

 omitted)

Illinois requires fact rather than notice pleading.

citations

 omitted)

...

 Emphasis

 Added)

Bruxaley v. Touche

 Ross

 & Co.

 (1984),

 123 Ill.

 App.

3d

636,

 463 N.E.2d 195.

North Oak’s Complaint states that:

 (1) Amoco was the owner and

operator of underground gasoline storage tanks

 (USTs)

 at the site

from 1961 until 1986 when the USTs were removed so the property

could be sold to North Oak

 (paragraphs 3-12),

 (2) no one has used

the property for storage or handling of petroleum products since

that time (paragraph 6),

(3)

 chemical analysis of soil and

groundwater from the immediate proximity of the UST’s

demonstrated contamination (including benzene, ethlybenzene,

toluene, xylene and total hydrocarbons in the groundwater) with

132—10

1

2

the heaviest concentrations of petroleum contamination at the

exact site of two of the removed USTs (paragraphs

4,

 16), and

(4)

Amoco did not remove the soil and groundwater contamination which

had resulted from the TJSTs when it sold the property (paragraph

3).

 These facts,

 favorably construed, could support a finding of

violation under the Illinois Environmental Protection Act

 (Act)

 Ill.

 Rev.

 Stat. 1991,

ch.

 111 1/2, para.

 1001,

 et. seq..

For

example, Section 12 of the Act states,

 in part:

Section 12

No person shall:

a.

 Cause or threaten or allow the

discharge of any contaminants 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, or so as to violate

regulations or standards adopted by

the Pollution Control Board under

this Act;

d.

 Deposit any contaminants upon the

land in such place and manner so as

to create a water pollution hazard;

Since I believe the complaint states sufficient facts to

support a viable cause of action,

 I would not have granted

dismissal.

 I do not yet know whether North Oak can prove those

facts and their most favorable inferences.

 Nor do I know if

Amoco might have a perfectly valid defense.

 The question of what

relief is available,

 if any,

 is even more complicated.

 Those

matters must be resolved later in the proceeding.

Since the majority focuses only on the regulatory provisions

involved, I assume the majority concludes that notice pleading

rather than fact pleading controls here.

 I would disagree.

Illinois is a fact pleading state.

 Ill. Rev.

 Stat. 1989,

ch.

 110,

para.

 2-601.

 This Board is an administrative agency rather than

a court of law.

 Further, this proceeding is a citizen

enforcement action.

 Under those conditions,

 I believe the Board

should be as lenient as the law will allow in regard to the

particulars of formal pleading.

Second,

 I disagree with the’majority pertaining to the

interpretation of the statutory amendments contained in P.A. 87-

323 and their impact on this case.

 I agree that P.A. 87-323

requires this Board to repeal our UST regulations pertaining to,

132—102

“design, construction, installation, general operation, release

detection, release reporting,

 release investigation, release

confirmation, out—of—service systems and their closure or

financial responsibility”

 (hereinafter “the non—corrective action

regulations”).

 This will constitute repeal of about 60 of the 75

typed pages of regulations in 35 Ill. Adm Code Part 731.

However,

 I do not believe that P.A. 87-323 has a retroactive

application or that its makes tne Board’s prior regulatory

activity in this area void ab initio.

 The Board’s identical in

substance regui~ttionsare generally intended to secure federal

approval’ for environmental regulatory programs.

Any

interpretation which can allow those regulations to be declared

 void ab initio years after their adoption could threaten federal

approval of such Illinois programs.

To me, the non—corrective action regulations were validly

adopted under existing statutory authority.

 They remain valid

Illinois regulatory law from the date of their adoption to the

date of their repeal.

 Since the repeal was adopted by the Board

today in docket R 91-14,

 UST Update. USEPA Regulations

 (1/1-191

6/30/91),

 I fail to understand how this action could vacate

regulations in effect upon the date of filing of this complaint.

The complaint alleges violations of both the non—corrective

action regulations and the corrective action regulations of 35

Ill.

 Adm. Code.Part 731-from about August

 3, 1990 until the

filing of the complaint in November,

 1991.

 To me, the

regulations were in full force and effect during that time frame.

In dicta,

 the majority states without explanation that,

 “the

Board’s regulations are inapplicable to liST’s that were removed

prior to the effective date of the regulations”.

 According to

the majority, jurisdiction over such removed UST’s rests with the

Fire Marshall under 41 Iii. Adm. Code 170.650.

 The regulatory

language of 41 Ill.

 Adin. Code 170.650 is identical to the Board’s

regulation at 35 Ill. Adm Code 731.173.

 Both regulations are

identical in substance to federal regulations at 40 CFR 280.73.

In fact, nearly all of the federal regulatory language of 40 CFR

Part 280 has been duplicated in both Fire Marshall regulations at

41 Ill. Adm. Code Part 170 and Pollution Control Board

regulations at 35 Ill.

 Adm. Code Part 731.

 All three regulatory

programs were adopted at least two years after Amoco’s tanks were

removed from the ground.

 I cannot understand.how one set of

three identical regulatory programs would not be applicable to

tanks removed before regulatory adoption, but the remaining

2

sets of identical regulations would be applicable.

The relevant federal regulatory language setting forth the

general mandate to clean up permanently closed systems is 40 CFR

280.73, which states:

When directed by the implementing agency, the

owner and operator of an UST system

132—103

permanently closed before December 22,

 1988,

must assess the excavation zone and close the

UST system in accordance with this Subpart if

releases from the UST system may,

 in the

judgment of the implementing agency, pose a

current or potential threat to human health

or the environment.

I believe that this language (which was adopted by USEPA in

December,

 1988, and by this Board in June,

 1989)

 is definitely

retroactive in that it only addresses conduct which occurred

prior to its adoption.

 This is evidence of a clear federal

intent that this body of regulations should address the present

impact from any past activity.

 This interpretation is not

violative of due process, and is consistent with interpretations

of other federal environmental laws.

 U.S. v. Conservation

Chemical Company (1985, WD Missouri),

619

 F. Supp.

 162; Zands v.

Nelson

 (1991, SD California),

779

F.

 Supp.

 1254.

In sum,

 I believe the complaint states a viable claim, over

which this Board has jurisdiction,

 for violations of Section 12

of the Act, and for past violations of 35 Ill.

Adm

Code Part 731.

I, Dorothy M. Gunn,

 Clerk of the Illinois Pollution Control

Board, hereb

 certify th t the above dissenting opinion was filed

on the

 day of _________________,1992.

•1

Dorothy N. Gi~h,Clerk

Illinois Poli~tionControl Board

Board Member

132—104