ILLINOIS POLLUTION CONTROL BOARD
May 20, 1999
UNIVERSAL SCRAP METALS, INC.,
Complainant,
v.
FLEXI-VAN LEASING, INC.,
a Delaware corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB 99-149
(Enforcement - Citizens, UST)
ORDER OF THE BOARD (by E.Z. Kezelis):
On April 19, 1999, Universal Scrap Metals, Inc. (Universal Scrap) filed a complaint
against Flexi-Van Leasing, Inc. (Flexi-Van), a Delaware corporation. In the complaint, Universal
Scrap alleges violations pertaining to past operations of a trucking business on property located in
Chicago, Cook County, Illinois. Specifically, Universal Scrap alleges that Flexi-Van, violated
Section 21(a) of the Illinois Environmental Protection Act (Act) (415 ILCS 5/21(a) (1996)) by
causing or allowing the open dumping of waste; Section 21(e) of the Act (415 ILCS 5/21(e)
(1996)) by disposing, treating, or storing waste on property that does not meet the requirements
of the Act and regulations; Section 21(f)(2) of the Act (415 ILCS 5/21(f)(2) (1996)) by
conducting a hazardous waste storage or disposal operation in violation of the Act and
regulations; and Section 57.1(a) of the Act (415 ILCS 5/57.1(a) (1996)) by failing to conduct
tank removal, abandonment, repair, physical soil classification, groundwater investigation, site
classification, or corrective action of its underground storage tanks.
As evidenced by the certificate of service filed on April 19, 1999, Flexi-Van was served
with the complaint and notice of filing by hand delivery on April 19, 1999. On May 5, 1999, an
entry of appearance was filed on behalf of Flexi-Van. No responsive pleadings have been filed.
Section 103.124(a) of the Board’s procedural rules directs the Board to determine
whether or not a citizen’s complaint is duplicitous or frivolous. Except as discussed below, the
Board finds that the complaint is not duplicitous or frivolous, and therefore accepts it for hearing.
BACKGROUND
Universal Scrap is an Illinois corporation with its principal place of business in Chicago,
Cook County, Illinois. From August 1986 until July 1998, it was the owner of property located at
2201 West Fulton Street, Chicago, Cook County, Illinois (site). Universal Scrap alleges that
Flexi-Van is the successor-in-interest to Gilbert Property Corporation (GPC), an Illinois
corporation that from February 1963 until July 1985 owned the site. Universal Scrap alleges that
during GPC’s ownership of the site GPC operated four underground storage tanks containing
2
gasoline, diesel fuel, fuel oil, and waste oil. Universal Scrap further alleges that as the successor-
in-interest to GPC, Flexi-Van is now liable for violations committed by GPC at the site.
Universal Scrap discovered the underground storage tanks in 1997. After determining
that the petroleum-containing tanks had leaked and that the soil surrounding the tanks had been
contaminated by the release, Universal Scrap performed remediation work. Universal Scrap
received a “No Further Remediation” letter from the Illinois Environmental Protection Agency in
September 1998. Universal Scrap alleges that it has expended $66,877.02 as a result of the
remediation at the site; that the release of petroleum occurred during GPC’s ownership and
operation of the site; and that as the successor-in-interest, Flexi-Van is now responsible for those
violations. Universal Scrap seeks to have the Board order Flexi-Van to reimburse it for all costs
incurred in performing remedial action at the site and to pay its costs and attorney fees.
DUPLICITIOUS/FRIVOLOUS DETERMINATION
Section 103.124(a) of the Board’s procedural rules implements Section 31(b) of the Act.
It provides:
The Clerk shall assign a docket number to each complaint filed
*** the Chairman shall place the matter on the agenda for Board
determination whether the complaint is duplicitous or frivolous. If
the Board rules that the complaint is duplicitous or frivolous, it
shall enter an order setting forth its reasons for so ruling and shall
notify the parties of the decision. If the Board rules that the
complaint is not duplicitous or frivolous, this does not preclude the
filing of motions regarding the insufficiency of the pleadings. 35 Ill.
Adm. Code 103.124 (a).
Duplicitous
An action before the Board is duplicitous if the matter is identical or substantially similar
to one brought in another forum. Brandle v. Ropp (June 13, 1985), PCB 85-68.
The Board has not identified any other cases, identical or substantially similar to this,
pending in other forums. Therefore, based on the record before us, this matter is not duplicitous.
Frivolous
An action before the Board is frivolous if it requests relief which the Board cannot grant.
Lake County Forest Preserve Dist. v. Ostro (July 30, 1992), PCB 92-80.
In the present case, Universal Scrap alleges violations relating to the ownership and
operation of leaking underground storage tanks. Specifically, it alleges that Flexi-Van, as the
successor-in-interest to GPC, violated Sections 21(a), (e), (f)(2) and 57.1(a) of the Act (415
ILCS 5/21(a), (e), (f)(2) and 57.1(a) (1996)). With the exceptions discussed below, Universal
Scrap alleges facts which, if proved at hearing, could result in a finding of violation for which the
Board could grant relief.
3
Specifically, Universal Scrap seeks to have the Board order Flexi-Van to reimburse it for
all remediation costs incurred during cleanup and removal activities at the site. The Board has
consistently held that it has the authority to award cleanup costs to private parties for violation of
the Act. See Lake County Forest Preserve Dist. v. Ostro (March 31, 1994), PCB 92-80; Herrin
Security Bank v. Shell Oil Co. (September 1, 1994), PCB 94-178; Richey v. Texaco Refining and
Marketing, Inc. (August 7, 1997), PCB 97-148; Dayton Hudson Corp. v. Cardinal Industries, Inc.
(August 21, 1997), PCB 97-134; and Malina v. Day (January 22, 1998), PCB 98-54. As noted in
Ostro, this holding is based on the broad language of Section 33(a) of the Act (415 ILCS 5/33(a)
(1996)) as well as the Illinois Supreme Court decision in People v. Fiorini, 143 Ill. 2d 318, 574
N.E.2d 612 (1991). Therefore, the complaint, with the exceptions set forth below, is not
frivolous and is accepted for hearing.
The first exception to this frivolous determination is the alleged violation of Section
57.1(a) of the Act. 415 ILCS 5/57.1(a) (1996). The Board has previously held that Section
57.1(a) does not require the removal of tanks, but rather, dictates the manner in which they are to
be removed. Material Service Corp. v. J.W. Peters & Sons, Inc. (April 2, 1998), PCB 98-97, slip
op. at 3. Since the tanks in questions have already been removed by Universal Scrap, there can be
no finding of violation against Flexi-Van for failing to comply with the Leaking Underground
Storage Tank Program when removing the tanks. Therefore, based on the Board’s reasoning in
Material Service, we conclude that the alleged violation of Section 57.1(a) of the Act fails to state
a claim upon which relief may be granted. Accordingly, this portion of the complaint is frivolous
and is stricken from the complaint.
The second exception deals with Universal Scrap’s request for an award of attorney fees.
The Board has previously held that Section 42(f) of the Act allows for the award of attorney fees
only in cases in which the Attorney General or a State’s Attorney prevails on behalf of the People
of the State of Illinois. See 415 ILCS 5/42(f) (1996); see also Charter Hall Homeowner’s
Association v. Overland Transportation System, Inc. (January 22, 1998), PCB 98-81 and Dayton
Hudson Corp. v. Cardinal Industries, Inc. (August 21, 1997), PCB 97-134. Accordingly, the
Board strikes those portions of the complaint in which Universal Scrap seeks an award of attorney
fees.
CONCLUSION
The Board finds that, pursuant to Section 103.124(a), the complaint, with the previously
noted exceptions, is neither duplicitous nor frivolous and is accepted for hearing.
The hearing must be scheduled and completed in a timely manner consistent with Board
practices. The Board will assign a hearing officer to conduct hearings consistent with this order
and Section 103.125 of the Board’s rules. 35 Ill. Adm. Code 103.125. The Clerk of the Board
shall promptly issue appropriate directions to the assigned hearing officer.
The assigned hearing officer shall inform the Clerk of the Board of the time and location
of the hearing at least 30 days in advance of hearing so that a 21-day public notice of hearing may
be published. After hearing, the hearing officer shall submit an exhibit list, a statement regarding
credibility of witnesses, and all actual exhibits to the Board within five days of hearing.
4
Any briefing schedule shall provide for final filings as expeditiously as possible. If, after
appropriate consultation with the parties, the parties fail to provide an acceptable hearing date or
if, after an attempt, the hearing officer is unable to consult with all of the parties, the hearing
officer shall unilaterally set a hearing date. The hearing officer and the parties are encouraged to
expedite this proceeding as much as possible.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the
above order was adopted on the 20th day of May 1999 by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
