ILLINOIS POLLUTION CONTROL BOARD
April
9,
1992
NORTH
OAK
CHRYSLER PLYMOUTH,
)
)
Complainant,
PCB 91—214
v.
)
(Enforcement)
AMOCO OIL COMPANY,
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by 3.
Anderson):
Currently pending before the Board are North Oak Chrysler
Plymouth’s
(North Oak) January 10,
1992 motion for summary
judgment, Amoco Oil Company’s
(Amoco) January 17,
1992 response
to North Oak’s motion and a cross—motion for summary judgment,
Amoco’s January 21,
1992 motion to strike, North Oak’s January
24,
1992 reply to Amoco’s response to North Oak’s motion for
summary judgment, Amoco’s January 29,
1992 motion for leave to
file a reply to North Oak’s response to Amoco’s cross—motion for
summary judgment, Amoco’s January 29,
1992 motion to strike the
affidavit of Michael G.. Roche, North Oak’s January 31,
1992
response to Amoco’s motion to strike the affidavit of Michael
G.
Roche,
and North Oak’s February 4,
1992 response to Amoco’s
motion for leave to file a reply.
Also before the Board are the North Oak’s February 21,
1992
response and Amoco’s February 21,
1992 response to the Board’s
January 23,
1992 order.
In that order, the Board directed the
parties to address the following issues:
1.
whether the Board has the authority to enter
a cease and desist order with respect to 35
Ill. Adm. Code 731.Subpart E, and
2.
whether the Board has authority to enter a
cease and desist order with respect to 35
Ill. Adm. Code 731.Subpart F without a
showing that Amoco has confirmed a release
pursuant to the Fire Marshal’s rules.2
‘The Board granted North Oak’s
January 21,
.1992
motion
for
leave to file a reply to Amoco’s response to North Oak’s motion for
summary judgement in its January 23,
1992 Board Order.
2P.A.
87-323 requires the Board to repeal Subpart
E,
as set
forth in the Board’s April 9,
1992 final order in R91-14.
It also
requires the Board to repeal its rules on release investigation and
132—93
2
Before going to the substance of the various motions before
the Board, we will first give a brief summary of the facts of
this case.
Amoco purchased property at 6524 West North Avenue,
Chicago,
Illinois in 1961.
In that same year, Amoco obtained
from the City of Chicago Fire Department a permit to install two
6,000 gallon gasoline underground storage tanks
(USTs)
and one
550 gallon waste oil UST.
In 1970, Amoco obtained another permit
to install a third 6,000 gallon gasoline UST.3
On November 8,
1984, the USTS were being used for storage, use or dispensing of
regulated substances.
On or about July 2,
1986, Amoco registered
the USTst with the Office of the Illinois State Fire Marshal
(Fire
Marshal).
Amoco had the USTs removed from the property on July
26, 1986, under the oversight of Chicago’s Flammable Liquid Tank
Bureau.4
In August, 1986,
after removal of the USTs, Amoco
conveyed the property to North Oak, under a real estate sales
contract, and by warranty deed and bill of sale.
North Oak
asserts that,
subsequent to the sale of the property,
it
discovered contamination in the soil and groundwater located at
the site of the UST5.
North Oak also alleges that such
contamination came from Amoco’s USTs and states that it notified
Amoco about the contamination.
Neither party has reported the
suspect.ed release to the Illinois Emergency Services and Disaster
Agency
(ESDA)
or taken remedial action at the site.
Amoco’s motion for leave to file
a reply to North Oak’s response
to Amoco’s cross—motion for summary -judgment
As previously stated, on January 29,
1992,
Amoco filed a
motion for leave to file a reply to North Oak’s response to
Amoco’s cross-motion for summary judgment.
On February 4,
1992,
North Oak filed a response to Amoco’s motion for leave to file.
confirmation so that release investigation and confirmation are
exclusively under the Fire Marshal’s rules.
The corrective action
requirements
of
Subpart
F
are
triggered
only
by
a
confirmed
release.
3Amoco alleges that, at the time it owned the property, a fifth
550 gallon underground tank existed on the premises.
Amoco also
states that the tank was used to store heating oil for consumptive
use on the premises and that it never removed the tank.
4In its motion for summary judgment, North Oak states that the
tanks were removed in 1991, after the sale of the property.
(see
motion
for
summary
judgment
p.
4,
par.
8).
Amoco,
in
its
memorandum of law in support of its response and cross—motion for
summary judgment, states that it presumes that the 1991 date is a
typographical error.
(see memorandum of law p.
4, footnote 2).
A
review of the citations that North Oak quotes in support the 1991
date indicate that the tanks were removed in 1986,
and that the
1991 date is indeed a typographical error.
132—94
3
In its motion, Amoco notes that a footnote in North Oak’s
January 24,
1992 reply to Amoco’s response to North Oak’s motion
for summary judgment states that the document also stands as
North Oak’s response to Amoco’s cross—motion.
Amoco argues that
it should be allowed to file a reply in support of its cross-
motion for summary judgment because North Oak’s response contains
blatant mischaracterizations of the record and of the positions
espoused in Amoco’s cross—motion for summary judgment.
Amoco
adds that North Oak’s response goes well beyond the normal
contours of a reply brief
in that it contains additional
evidentiary material and argues that it should have the
opportunity to such material.
Finally, Amoco asserts that
although no party will be prejudiced if the motion is granted,
it
will be materially prejudiced if its motion
is not granted.
In response, North Oak argues that no material prejudice
will result if Amoco’s motion
is denied because Amoco simply
repeats the arguments made in its cross—motion rather than
replying to the arguments presented in North Oak’s response
brief.
Because the Board has given North Oak the opportunity to
file a reply brief on its motion for summary judgment and because
Amoco does reply to the arguments presented in North Oak’s
response.brief, the Board hereby grants Amoco’s motion to file
a
reply in support of its cross—motion for summary judgment.
North Oak’s motion for summary iudgment and Amoco’s cross—motion
for summary iudcnuent
North Oak cites several arguments in support of its position
that Amoco is responsible for remediating conditions at the site.
First,
North Oak argues that Amoco is the owner of the USTs
because
it owned the site and UST5 from 1961 to 1986 and because
the USTs were used to store and dispense a regulated substance
(i.e.,
gasoline).
North Oak also notes that Amoco admitted that
it is the owner of the USTs when it registered the tanks with the
Fire Marshal on July 2,
1986.
Next, North Oak cites to AXA Land.
Inc.
v. IEPA (March 14,
1991),
PCB 90-177,
in support of its
argument that Amoco is the operator of the UST5 because it had
control and responsibility for the daily operation,
including the
removal,
of the UST5.
North Oak also argues that if Amoco is not
the owner and operator of the USTs, then no entity would be
subject to the UST regulations.
North Oak adds that such
a
result would have a chilling effect on the goal of remediation.
North Oak also argues that it notified Amoco of the release and
that,
as a result, Amoco must report the release to ESDA pursuant
132—95
4
to 35 Ill. Adm. Code 731.150.~ Finally, North Oak argues that
Amoco is also required, pursuant to 35 Ill. Adm. Code 731.152, to
conduct an investigation to confirm whether the release has
occurred and commence corrective action pursuant to 35 Ill. Adm.
Code 731.152(b) (1).
In response, Amoco argues that this matter may be resolved
in favor of Amoco on the legal issues.
Specifically, Amoco
argues that the Board’s regulations do not address remedial
action in cases~where UST5 no longer exist and have been
previously removed.
Rather, Amoco argues that such a situation
is regulated by the Fire Marshal.
In addition to the above, Amoco argues that it
is not the
owner of a UST system because the system was properly removed and
disposed of more than five years ago.
In fact, Amoco argues that
USEPA’s definition of “owner” at 50
Fed. Reg. 46605
(November 8,
1985), the real estate sales contract, and the bill of sale
support the proposition that North Oak assumed responsibility for
the tanks and would be the owner if the UST system had been
closed without physical removal.
Amoco also argues that it is
not the present operator of a UST system because there is no
system to operate.
In fact, Amoco alleges that North Oak may be
considered the operator of the UST system.
Amoco also argues
that it is not.a past operator of the system because it leased
the property to independent dealers who had control of and
responsibility for the daily operation of the UST system.
Amoco also argues that the alleged contamination is not a
“release” from a UST within the meaning of the regulations.
Specifically, Amoco notes that the reporting and corrective
action obligations of
35 Ill.
Adiu.
Code 731.150 and 731.152 were
made effective on June 12,
1989,
three years after the removal of
the UST5,
and do not apply to UST sites closed prior to December
22,
1988.
Amoco also asserts that even if this matter involved a
UST system that was still
in existence,
35 Ill.
Adm. Code 731.173
requires that the Fire Marshal order a reassessment of the site.
Finally, Amoco argues that North Oak’s motion must be denied
because its allegation of a suspected release is not supported by
affidavit or any other admissible evidence.
Rather, Amoco argues
that the report that supports the allegation (“Environmental Site
Assessment for the 6500 Block of West North Avenue, Chicago,
Illinois” by Testing Service Corporation)
is hearsay.
Amoco also
argues that a question of fact exists because its own evidence
shows two potential current sources, both attributable to North
Oak,
of petroleum contamination.
535
Ill.
Adm.
Code 731.150 requires
a
report
to ESDA upon
discovery by owners and operators or others of a release at a UST
site.
132—96
5
When the main body of the UST rules were adopted in R88-27
and R89—4, the Fire Marshal was directed to adopt rules which
were “identical in substance” to the USEPA rules, except those
dealing with “corrective action”.
The Fire Marshal was to
implement the rules up to the point of corrective action and the
Illinois Environmental Protection Agency was to implement the
rules pertaining to corrective action.
The Board, however, was
required to adopt the entire body of the USEPA rules,
including
those also adopted by the Fire Marshal.
The above statutory scheme has now been modified via P.A.
87-323.
PA.
87—323 limits the Board’s rulemaking authority to
those corrective action activities which the Illinois
Environmental Protection Agency implements.
As defined in
Section 22.4(d) (4), “corrective action” includes everything ~:
Design,
construction,
installation, general
operation, release detection, release reporting,
release investigation, release confirmation, out-of-
service systems and their closure and financial
responsibility.
Under P.A.
87-323, the rules relating to the above
activities are exclusively in the Fire Marshal’s rules.6
As a
result,
it becomes impossible for the Board to grant the relief
requested by North Oak (i.e., to order Amoco to conduct a release
investigation or site assessment), absent prior enforcement by
the Fire Marshal.
In other words, P.A. 87—323 has rendered 35
Ill. Adm. Code 731.150 and 731.152 of no force and effect and
has,
in effect, divested the Board of jurisdiction in this
matter.
As for any argument that P.A. 87-323 does not alter the
Board’s ability to grant relief because it contains no express
directive to repeal the Board’s regulations and because a repeal
of the regulations affects only those cases filed after the
effective date of the repeal, the Board believes that a rule must
be repealed once authority for a rule has been withdrawn.
The
Board is a creature of statute.
Moreover, the Environmental
Protection Act
(Act) supersedes the Board’s regulations.
As a
result, the Board can act only pursuant to the authority
expressly conferred on it by the Act and any action outside of
6In fact, the Board is today repealing most of its UST rules
in
35
Ill.
Admn.
Code
731
including the repeal
of the release
investigation and site assessment requirements of 35 Ill. Admn. Code
731.152 and 731.173, respectively.
The Board is also repealing the
site
assessment
requirements
of
35
Ill.
Adm.
Code
731.172
and
731.173.
(see
In
the Matter
of
UST Update
USEPA
Regulations
(1/1/91
—
6/30/91)
(April
9,
1992), R91—14).
132—9
7
6
the authority granted by the Act is void.
(see Village of
Lombard v.
PCB (1977),
66 Ill.
2d 503, 363 N.E.2d 814; Rossler v.
Morton Grove Police Pension Board
(1st Dist. 1989),
178 Ill. App.
3d 769, 533 N.E.2d 927).
If this were not the case,
the Board
would be able to keep regulations alive for an indefinite period
and until such time as it decided to delete the regulations.
Notwithstanding the above, the Board also notes that the UST
regulations, which became effective on June 12, 1989, do not
apply to sites where USTs do not exist.
In other words, the
Board’s ~regulations,which became effective three years after the
removal of the tanks
(i.e., on July 26,
1986), were not intended
to be applied retroactively to cover tanks that were removed
prior to December 22,
1988.
Rather, jurisdiction over a case
involving UST5 removed prior to December 22,
1988,
lies as
a
matter of law with the Fire Marshal rather than the Board.
Specifically, 41 Ill.
Admu. Code 170.650 provides for reassessment
of the site of a UST system removed prior to December 22,
1988,
by the Fire Marshal.7
That section states:
When directed in writing by the Office of the State
Fire Marshal, the owner and operator of an UST system
removed before December 22,
1988 must assess the
excavation zone (including,
if so ordered, re—
excavating and assessing the site where the tank had
been located)
in accordance with Section 170.640 if
release from the UST may have,
in the judgment of the
Office, pose a current or potential threat to human
health and the environment.
As for North Oak’s assertion that Amoco is an owner or
operator, as those terms are defined in the Board’s regulations,
the Board again notes that the Board’s regulations are
inapplicable to UST5 that were removed prior to the effective
date of the regulations.
As to North Oak’s citation to AKA Land
to support its proposition that Amoco is the operator, we note
that that case is distinguishable from the instant case.
~
Land involved the situation where tanks remained in place when
the site was closed, and were not removed from the site until
after the effective date of the Board’s regulations.
Because the Board is unable to grant the requested relief
and because jurisdiction over this matter rests,
as a matter of
law, with the Fire Marshal rather than the Board, the Board ..need
not address the evidentiary
(i.e.,
factual) disputes of this case
or North Oak’s prayer for penalties or a judgment holding Amoco
responsible for response costs to be incurred by the State.
7The corresponding federal regulation can be found at 40 CFR
2.80. 72.
132—98
7
The Board wishes to note, however, that it disagrees with
North Oak’s assertion that there will be a chilling effect on the
goal of remediation and that no entity would be subject to the
UST regulations if the Board determines that Amoco is not the
owner or operator of the UST5.
Our action today should in no way
be construed as a reluctance or a i~ailureto hold a party
responsible for remediation.
Rather, the Board is simply stating
that it has no jurisdiction over the instant case.
Accordingly, for the foregoing reason, the Board denies
North Oak’s motion for summary judgment and grants Amoco’s cross-
motion for summary judgment.
Amoco’s motion to strike the affidavit of Michael G.
Roche
On January 29,
1992, Amoco filed a motion to strike the
affidavit of Michael G.
Roche,
a geologist employed by Testing
Service Corporation.
North Oak submitted the affidavit as an
attachment to its reply brief in support of its motion for
summary judgment.
In the affidavit, Mr. Roche attested that he
personally supervised the preparation of a document entitled
“Environmental Site Assessment for the 6500 Block of West North
Avenue, Chicago,
Illinois”.
The document was prepared to
memorialize the findings made by Testing Service Corporation
after it examined the property to determine whether it was
contaminated.
On January 31,
1992, North Oak filed a response
opposing Amoco’s motion to strike.
Because the Board’s decision
on the motion for summary judgment was based upon a question of
law, the Board need not rule upon Amoco’s motion to strike Mr.
Roche’s affidavit.
Amoco’s motion to strike
On January 21,
1992, Amoco filed a motion requesting the
Board to strike certain allegations made by North Oak in its
complaint
(i
.
e
•,
that Amoco agreed to properly remove all USTs on
the site prior to the completion of the sale of the property).
Specifically, Amoco asserts that the allegation has no basis in
fact.
North Oak has not filed a response to the motion.
Based upon the Board’s decision on the motions for summary
judgment, the Board need not rule upon Amoco’s motion to strike.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Because the Board lacks jurisdiction in this matter and is
unable to grant the relief requested,
the Board grants Amoco’s
cross—motion for summary judgment, denies North Oak’s motion for
summary judgment, and closes the docket in this matter.
132—99
8
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat.
1991,
ch.
111
½,
par.
1041, provides for appeal of final
Orders of the Board within 35 days.
The rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
B. Forcade dissented.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, k~erebycertify that the above opinion ~nd order was
adopted on the
____________
day of
_________________,
1992, by
a vote of
~—,‘
.
Illinois
Control Board
132—100