ILLINOIS

POLLUTION CONTROL BOARD

July

22,

1999

UNION OIL COMPANY

OF CALIFORNIA)

dlbla UNOCAL,

a California corporation,

)

)

Complainant,

)

)

v.

)

PCB 98-169

)

(Enforcement

- UST,

Citizens)

BARGE-WAY

OIL COMPANY, INC.,

)

BARGEWAY

SYSTEMS, INC.,

)

JOSEPH KELLOGG, NIELSEN’S

)

BARGEWAY,

GERTRUDE KELLOGG,

)

ROBERT NIELSEN, ROBERT

F. ATKINS,

)

and MOBIL OIL COMPANY,

)

)

Respondents.

)

ORDER OF THE BOARD

(by E.Z. Kezelis):

This matter is before the Board

on

a motion (Mot.) and

memorandum (Memo.) for

summary

judgment and for sanctions filed

by Mobil Oil Company

(Mobil) on March 17, 1999.

On April

8, 1999, respondent Barge-Way Oil

Company, Inc. (Barge-Way) filed

a motion

instanter

to join Mobil’s motion for

summary judgment; on April

9, 1999, respondent Robert

Nielsen (Nielsen) filed

a motion instanter to join Mobil’s

motion for summary judgment.

The

Board

grants both of these

motions to join Mobil’s motion

for

summary judgment.’ On

May

17, 1999, Union Oil Company

of California d/b/a Unocal,

a California corporation (Unocal),

filed its response in opposition to

Mobil’s motion (Resp. Br.).

On June 11, 1999, Mobil

filed

its

reply to Unocal’s response (Reply Br.).

For the reasons set forth below,

the

Board

denies Mobil’s motion

for

summary

judgment

and request for sanctions.

BACKGROUND

Unocal alleges

that it is the owner of a parcel

of property located at

600

East North

Avenue,

Glendale Heights, County of DuPage,

Illinois (site). Unocal purchased

the site in

1982

and has held the site as vacant land.

Complaint (Comp.)

at 1,

4.

In approximately

September 1991, Unocal

reported a release of petroleum

from two existing underground

storage

tanks (USTs) at the site. Pursuant to the

direction of the Illinois Environmental

‘When referring

to

Mobil’s

motion for summary

judgment and sanctions in this

order, the

Board is also referencing

the other two parties who

have joined in Mobil’s motion,

Barge-Way

and Nielsen.

---

2

Protection

Agency

(Agency)

and

the Illinois

Office of

the State Fire

Marshal

(OSFM),

Unocal

investigated

the contamination,

prepared

reports,

removed

contaminated

water,

removed

the

USTs

and treated

4,300

tons of contaminated

soil. It also

removed

an additional

1,555

cubic

yards

of

contaminated

soil. Comp.

at

4-5.

Unocal incurred

approximately

$600,000

in

response

costs to

assess

and

remediate

the site.

Comp.

at

5.

Unocal

alleges

that Mobil

owned

and operated

a gasoline

service

station at

the site

from

approximately

1971

to 1974.

Unocal also

alleges

that Joseph

Kellogg,

Gertrude Kellogg,

Robert

Nielsen,

and

Robert

F.

Atkins

are

individuals

who

owned or

operated

and

controlled

the

site (or were

otherwise

responsible)

during

the

relevant

timeframe

that

contamination

occurred.

Unocal

also alleges

that Barge-Way

distributed

gasoline

to and from

the site

or

operated

the site

from approximately

1955 to

1974.

Finally,

Unocal

alleges that

respondent

Nielsen’s

Bargeway

operated

the site

or

was otherwise

responsible

from approximately

1955 to

1969.

Comp.

at2.

Unocal

filed this complaint

against

the

respondents

on June

18, 1998,

alleging certain

violations

of Sections

12(a),

12(d),

21(e), and

57.1(a) of

the Environmental

Protection

Act

(Act)

(415 ILCS

5/12(a),

12(d),

21(e),

57.1(a)

(1998)),

41111.

Adm.

Code 170.590,

and

Sections

1 and

2(3)(f) of

the

Gasoline

Storage

Act

(430

ILCS

15/1,

2(3)(f)

(1998)),

pertaining

to

the

disposal,

treatment,

storage,

or

abandonment

of waste,

water

pollution,

and

to

underground

storage

tank removal

requirements.

In its complaint,

Unocal

requests

reimbursement

of

all

costs which

it has

incurred due

to the alleged

contamination

of the

site

by

respondents.

By

Board order

dated

January 7,

1999,

the

Board

dismissed

all

but

one of

the counts

in

the complaint

and

ordered

the

one remaining

claim, count

III,

to

proceed

to hearing.

See

Unocal

v.

Barge-Way

Oil

Co.

(January

7, 1999),

PCB

98-169.

Count

III of

the

complaint

alleges

violations

of

Sections

12(a)

and

12(d)

of the Act

(415

ILCS

5/12(a),

12(d),

(1998)),

which

pertain

to

water

pollution.

Comp.

at

9-11. Unocal

alleges

that

respondents

violated

the

Act

when

they

“contributed

to contamination

of underground

water at

the [sjite

or failed

to

clean

up contamination

at the [s]ite.”

Comp.

at 10.

RELEVANT

STATUTES

Sections

12(a)

and

12(d) of

the

Act

state

that:

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.

415 ILCS

5/12(a)

(1998).

***

---

d.

Deposit

any

contaminants

upon

the

land

in such

place

and

manner

so

as

to

create

a water

pollution

hazard.

415

ILCS

5/12(d)

(1998).

Section

3.55

defines

“water

pollution”

as:

such

alteration

of

the

physical,

thermal,

chemical,

biological

or

radioactive

properties

of any

waters

of the

State, or

such

discharge

of any

contaminant

into

any waters

of

the State

. .

.

415

ILCS

5/3.55

(1998).

Section

3.56

defines

“waters”

to mean:

all

accumulations

of

water,

surface

and

underground,

natural,

and

artificial,

public

and

private,

or

parts thereof,

which

are

wholly

or

partially

within,

flow

through,

or border

upon

this

State.

415

ILCS

5/3.56

(1998).

ARGUMENTS

OF

THE

PARTIES

Mobil’s

Motion

Mobil

requests

that

summary

judgment

be

granted

in its

favor as

to count

III

of the

complaint

because

there

are

no

remaining

genuine

issues

of material

fact

to be

considered

by

the Board.

Mobil

states

that

none of

the reports

generated

by Unocal

during

its

investigation

and

remediation

efforts

at the

site demonstrate

any

groundwater

contamination

at

the site.

Mot. at

2. Since

there

is no

evidence

of

water

pollution,

Mobil

argues,

Unocal

cannot

prove

a

violation

of the

Act.

Mot. at

3.

Mobil

also

seeks

sanctions

against

Unocal.

Specifically,

Mobil

argues

that

in several

documents

submitted

by

Unocal

to the

Agency,

Unocal

never

disclosed

that

groundwater

contamination

posed

a problem

at the

site. Memo.

at

1-2,

6. Mobil

asserts

that

because

Unocal

failed

to

propose

any remedial

action

for

groundwater

in

Unocal’s

February

20,

1992

corrective

action

plan prepared

by

Braun

Intertec

Environmental,

Inc.

(Braun),

and

submitted

to

the

Agency,

Unocal

and

its consultant

found

that a groundwater

remediation

plan

was

unnecessary

for the

site.

Memo.

at

3;

see also

Memo.

Exhibit

(Exh.)

E. Mobil

also

argues

that

because

Braun

did not

find

any further

impact

on groundwater

at

the site

after

investigation,

no

water pollution

occurred.

Memo.

at 4;

see

also

Memo.

Exh.

G.

Mobil

further

points

to

Unocal

‘s corrective

action

completion

report

which

again

stated

its

earlier

conclusion

that

groundwater

did

not

appear

to

have

been impacted

by the

contamination.

Memo.

at 5; see

also Memo.

Exh.

K.

Finally,

Mobil

argues

that the

Agency

has

not

required

Unocal

to

remediate

any

groundwater

contamination.

Memo.

at

5.

In

summary,

Mobil

argues

that

water

pollution

never

occurred,

nor

was

it threatened

at

the site,

and

therefore

Mobil

could

not

have

violated

Sections

12(a)

or

12(d)

of the

Act.

Memo.

at

7.

Accordingly,

Mobil

requests

that

the

Board

grant

summary

judgment

and

sanction

Unocal

for

having

filed

the claim.

Mobil

asserts

that

sanctions

are

warranted

against

Unocal

since

it

forced

many

respondents

to incur

large

costs

and

expend

time

and

resources

defending

Unocal’s

claims.

Memo.

at

8-9.

---

4

Unocal’s Response

Unocal

asserts

that

summary

judgment is unwarranted

at this time. It

states that during

the remediation of the site, two 8,000 gallon USTs

and 8,500 gallons

of

petroleum-

contaminated water from

the USTs were removed.

Resp. Br. at 3.

Unocal states that between

November

6

and November 16, 1992, another

9,450 gallons

of petroleum-contaminated water

were

transported

from

the site. Resp. Br. at

3-4. Unocal further

points to the

transportation

of an additional 12,400 gallons of petroleum-contaminated water

which were removed

from

the

site in December 1992. Resp. Br. at

4;

see Resp. Exh.

A.

Unocal

argues that a violation of Section 12

is not limited

to the pollution of

groundwater,

but includes the discharge of any

contaminant into

the environment

so

as

to cause

or tend to cause

water pollution, and includes

the pollution

of any subsurface water(s).

Resp.

Br. at 7-8.

Finally, Unocal argues that respondents

violated

the Act when they allowed

the

release of petroleum

products on the site

so as to create a water

pollution hazard under

Section

12(d) of the Act.

Relying on Tn-County Landfill

Co. v. PCB, 41111.

App. 3d 249, 258,

353

N.E.2d

316, 358

(2nd Dist. 1976), Unocal

asserts that an operator

of a service station

can

create

a

water

pollution hazard even though the

contamination

may not yet threaten to

cause

water

pollution. Resp. Br. at 7-8.

Mobil’s Reply

Mobil replies by

arguing that the water

removed from

the site was rainwater

which

Unocal allowed to

accumulate in Unocal’

s

excavation

pit and inside

the two USTs.

Reply Br.

at 6.

Mobil states that at least 12,000 gallons

of the alleged water

and petroleum mixture

were

pumped from inside the two USTs; therefore, Mobil

asserts that liquids

removed from inside

the tanks cannot be considered “waters of the State.” 415

ILCS 5/3.55

(1998); Reply Br.

at 6-

7. Mobil points to Unocal’s

corrective

action completion

report which

states that a trench was

dug due to heavy rainfall and states that a large amount

of surface water

was accumulating

on

the site. Reply Br. at 7; Memo. Exh. K at 9. Finally,

Mobil argues that

contrary

to Unocal

‘s

assertion, the mere presence of a

contaminant

is insufficient

to constitute

a water pollution

hazard under Section

12(d)

of

the Act.

Reply

Br. at 10.

ANALYSIS

In order to grant summary

judgment

in this

matter, the Board

must

determine whether

the

facts

indisputably show that no water pollution

occurred at

the site, and that no water

pollution

hazard existed at the site. 415 ILCS

5/12(a),(d)

(1998).

A

motion for summary judgment is to be

granted only if

“the pleadings, depositions,

and

admissions

on

file, together with the affidavits,

if any,

show that there is no genuine

issue

as to any material fact and the

moving

party is entitled

to judgment

as a matter of law.” See

735 ILCS 5/2-1005(c). Summary

judgment

is appropriate

when

there are no genuine issues

of

fact for the

trier of fact

to

consider and the movant

is entitled

to judgment as a matter

of law.

Jackson

Jordan. Inc. v. Leydig, Voit & Mayer,

158 Ill. 2d

240, 249,

633

N.E.2d 627,

630

---

5

(1994); Sherex

Chemical

v. IEPA (July 30,

1992), PCB 91-202;

Williams Adhesives.

Inc. v.

IEPA (August

22, 1991), PCB 91-112.

In this matter,

it

is

uncontroverted that

water was

removed from two

USTs and the area

surrounding them. It is also

uncontroverted

that during

the course of Unocal’s

remediation,

trenches

were dug adjacent to the USTs and

there

was

rainfall. The record

before

us also

reflects that

water removed from the tanks

and trenches was “contaminated

with petroleum

products.” Resp. Br.

at 7. The record before

us reflects

neither

the nature and extent

of the

contamination nor whether there was

water

pollution at

the site in violation

of Section 12(a)

of

the Act for which the respondents

should

be held liable.

Finally,

the

record

does not disclose

whether a

water pollution hazard was created

by any action

(or inaction) of the respondents

in

violation of

Section 12(d) of the Act. Because

material issues

of fact continue to exist,

the

Board denies

summary judgment.

Accordingly,

the Board also finds that

sanctions are not

warranted in this matter.

CONCLUSION

Mobil’s motion for summary judgment is denied.

Sanctions

are not warranted in

this

matter. This case shall proceed to hearing.

IT IS SO ORDERED.

Board Member

R.C.

Flemal dissented.

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

Control Board,

hereby

certify

that

the above order was adopted on the

22nd

day of July

1999 by a vote of 4-1.

Dorothy M.

Gunn, Clerk

Illinois Pollution

Control Board