ILLINOIS POLLUTION CONTROL BOARD
November 20, 1997
GEORGE CASANAVE,
Complainant,
v.
AMOCO OIL COMPANY,
Respondent.
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PCB 97-84
(Enforcement - UST)
ORDER OF THE BOARD (by C.A. Manning):
This matter comes before the Board on a motion to dismiss filed by respondent Amoco
Oil Company (Amoco) on January 21, 1997. At the request of complainant George Casanave
(complainant), and with no objection by Amoco, the Board, on February 6, 1997, and March
6, 1997, granted complainant additional time to respond to Amoco’s motion to dismiss. On
March 18, 1997, complainant responded to Amoco’s motion to dismiss. On April 4, 1997,
Amoco filed its reply and a motion for leave to file instanter, which the Board grants. For the
following reasons, the Board grants Amoco’s motion to dismiss.
BACKGROUND
On November 6, 1996, complainant filed this citizen’s enforcement action against
Standard Oil Company, Inc. (Amoco)
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and Ray L. Pearson. On November 11, 1996, the
Board received complainant’s certificate of service and receipt, as is required by Section
103.123 of the Board’s procedural rules (35 Ill. Adm. Code 103.123), indicating that Amoco
had been served with the complaint on November 7, 1997. The Board has never received
proof of service indicating that Ray L. Pearson was served with a complaint in this matter.
Therefore, we hereby dismiss Ray L. Pearson as a respondent in this matter. The above
caption reflects this dismissal.
The underlying complaint concerns a tract of property (property or site) located at 3925
North Pulaski Road, Chicago, Cook County, Illinois, which was purchased by complainant on
August 15, 1991. On April 2, 1992, complainant discovered leaking underground storage
tanks on the property and, subsequently, remediated the property by removing the
contaminated soil and the leaking underground storage tanks located on the property. Comp.
at 2.
1
By Board order of February 6, 1997, the Board accepted a joint stipulation filed by the
parties on January 21, 1997, which directed that all references to Standard Oil Company be
changed to Amoco Oil Company.
2
Complainant denies any allegation that it, or any other person or entity during the time
which complainant owned the property, used the underground storage tanks or caused or
contributed to any of the contamination of the property that was required to be remediated.
Comp. at 2. Rather, complainant alleges that between approximately July 19, 1932, and
December 18, 1952, Amoco, by and through its agents, entered into a lease with the owners of
the property at the time and installed underground storage tanks on the property. Comp. at 2.
Complainant further asserts that because Amoco allowed gasoline to be placed into the tanks
and allowed the property to be used as a gasoline filling station, contamination resulted from
Amoco’s operations and through no fault of complainant. Complainant asserts that, as a result
of the operations by Amoco on the property, the underground storage tanks remained in the
soil and contaminated the property with gasoline products. Comp. at 3. Complainant also
alleges that Ray L. Pearson owned the property after Amoco from 1952 to 1961 during which
time Pearson operated a truck rental business on the property and used the underground
storage tanks to fuel the trucks. Comp. at 2.
Based on the actions of Amoco, the complaint alleges that Amoco violated various
provisions of the Environmental Protection Act (Act), including Sections 21(a), (d), (e), (f),
(i), and (m), which pertain to the storage, treatment, or disposal of any wastes or hazardous
wastes (415 ILCS 5/21(a), (d), (e), (f), (i), (m) (1996)). Comp. at 3. The complaint requests
that the Board order Amoco to pay cleanup costs in the amount of $106,665.50, pursuant to
Section 33(a) of the Act (415 ILCS 5/33(a) (1996)). The complaint further requests other
additional costs, attorney fees, and any other further relief the Board deems just or equitable.
Comp. at 3.
For the following reasons, the Board grants Amoco’s motion to dismiss.
ARGUMENTS
Motion to Dismiss
In its motion to dismiss, Amoco argues that complainant has not stated a cause of
action upon which relief may be granted and that the Board lacks jurisdiction in this matter.
Specifically, Amoco contends that none of the statutory provisions cited by complainant in the
complaint were in effect in 1952 when Amoco’s interest in the property allegedly ceased.
Mot. at 4. Amoco argues that “[b]ecause [its] alleged conduct ended in 1952, [Amoco] cannot
be held liable for violating the Act without impermissibly applying the [Section 21] provisions
retroactively.” Mot. at 4. For these reasons, Amoco requests that the Board dismiss the
instant action.
Complainant’s Response
Complainant responds that Amoco’s motion should be denied because the Act was
intended to be applied retroactively. Alternatively, complainant argues that a finding of
liability against Amoco in this matter would not require retroactive application of the Act.
Complainant refers the Board to the purpose of the Act in deciding whether or not to
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retroactively apply the Act. Complainant cites to several sections of the Act which allegedly
exemplify the legislative intent that the Act was “meant to allow private individuals to take
actions to restore the environment.” Resp. at 2. To further its argument, complainant argues
that the Comprehensive Environmental Response, Compensation and Liability Act of 1980
(CERCLA) (42 U.S.C. Section 9601
et seq.
) has previously been held to apply retroactively.
Resp. at 3. Complainant additionally argues that there is no due process limitation against
applying the Act retroactively. Complainant cites to Section 2(b) of the Act (415 ILCS 5/2(b)
(1996)) for the proposition that the Act should have retroactive application. Resp. at 2, 4.
Further, complainant argues that the motion to dismiss should be denied because
Amoco is liable for storing gasoline, which subsequently leaked from the underground storage
tanks, onto the property. Complainant argues that the gasoline which contaminated the
property belonged to Amoco at one time and, therefore, Amoco is responsible for any
contamination caused by the gasoline. Resp. at 6. In addition to the above reasons,
complainant also requests that the Board deny the motion to dismiss due to an insufficiency of
facts at the present time. Resp. at 7, 9.
Amoco’s Reply
In its reply, Amoco reiterates its argument that the Act clearly does not indicate that
Section 21 may be applied retroactively. Amoco states that, absent express language or clear
indication that Section 21 of the Act should be retroactively applied, Section 21 of the Act
should be applied only prospectively. Reply at 2. Amoco further states that the complaint
does not properly allege that Amoco violated Section 21 of the Act after its effective date,
since no allegation in the complaint states that Amoco had any ownership, possession, or
control over the underground storage tanks after 1952. Reply at 3
.
ANALYSIS
A motion to dismiss should be granted where the well-pleaded allegations, considered
in the light most favorable to the non-movant, indicate that no set of facts could be proven
upon which the petitioner would be entitled to the relief requested. See Conway v. Johnson
(August 7, 1997), PCB 97-221; BTL Specialty Resins v. IEPA (April 20, 1995), PCB 95-98.
Applying this standard to the instant action, the Board finds that the complaint must be
dismissed. Accordingly, the Board grants Amoco’s motion to dismiss.
According to the complaint, Amoco installed underground storage tanks at the subject
property and operated a gasoline filling station on the property from 1932 to 1952. In 1952,
the property was purchased by Ray L. Pearson, who used the property and the underground
storage tanks for a family-owned truck rental business. The complaint further alleges that
Amoco allowed the underground storage tanks to remain in the soil and to leak, causing
gasoline products to contaminate the soil in violation of Sections 21(a), (d), (e), (f), (i), and
(m) of the Act. See 415 ILCS 5/21(a), (d), (e), (f), (i), (m) (1996)). These sections provide
in pertinent part:
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No person shall:
a. Cause or allow the open dumping of any waste.
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d.
Conduct any waste-storage, waste-treatment, or waste-disposal
operation:
***
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.
f. Conduct any hazardous waste-storage, hazardous waste-treatment or
hazardous waste-disposal operation:
***
i. Conduct any process or engage in any act which produces hazardous
waste in violation of any regulations or standards adopted by the Board
under subsections (a) and (c) of Section 22.4 of this Act.
***
m. Transfer interest in any land which has been used as a hazardous waste
disposal site without written notification to the Agency of the transfer
and to the transferee of the conditions imposed by the Agency upon its
use under subsection (g) of Section 39.
Neither the Act nor any of the above statutory provisions were in effect when Amoco’s
interest in the property allegedly ceased in 1952. The Board agrees with Amoco that the
Section 21 provisions cited in the complaint may not be retroactively applied to action that
occurred prior to the effective date of the Act in 1970 because Section 49 of the Act
specifically requires that “[a]ll proceedings respecting acts done before the effective date of
this Act shall be determined in accordance with the law and regulations in force at the time
such acts occurred.” 415 ILCS 5/49(b) (1996); see also People v. Fiorini, 143 Ill. 2d 318,
333, 574 N.E.2d 612, 617 (1991).
In People v. Rawe (October 16, 1992), AC 92-5, the Board determined that the
“cause” language in Section 21(a) of the Act could not be applied retroactively to actions that
occurred prior to the effective date of the Act because such language deals with a certain
course of conduct. The same logic applies to the allegations that Amoco conducted a waste-
storage operation, treated or transported waste, conducted a hazardous waste-storage
operation, conducted any act which produced hazardous waste, and transferred its interest in
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the property, as proscribed by Sections 21(d), (e), (f), (i), and (m). For Amoco to have
violated any of these provisions, Amoco would have had to engage in the proscribed conduct
after the Section 21 provisions became effective. Because these allegations regard activities
that would have occurred prior to the enactment of the various Section 21 provisions, Amoco
can not be found to have violated these certain provisions.
Under appropriate circumstances, however, attaching liability to present conditions
stemming from past acts does not necessarily have a retroactive application of the Act. In fact,
the Board has allowed cases to proceed to hearing when the allegations involved continuing
violations that began before Illinois adopted the Act. In making references to such ongoing
violations alleged in a complaint, the Board stated in Lake County Forest Preserve v. Ostro
(July 30, 1992), PCB 92-80, slip op. at 2, that “some of the allegations are of continuing
violations, for which the Board could find a violation and order remedial action, even if they
began long before the Act was adopted
(emphasis added).” See also People v. Michel Grain
Co.,
et al.
(August 1, 1996, and December 5, 1996), PCB 96-143.
While the “allow” language in Section 21(a) and the “dispose, store, and abandon”
language of Section 21(e), may, under appropriate circumstances, be read to encompass
continuing violations, such a finding is not warranted in the present case. Under a continuing
violation theory, in order for Amoco to have violated these provisions, Amoco must have had
some sort of ownership, possession, control, or authority over the property or source of
pollution after the effective date of the cited provisions. See Meadowlark Farms, Inc. v.
Pollution Control Board, 17 Ill. App. 3d 851, 862, 308 N.E.2d 829, 836-37 (5th Dist. 1974);
Freeman Coal Mining Corp. v. Pollution Control Board, 21 Ill. App. 3d 157, 163-69, 313
N.E.2d 616, 621-23 (3rd Dist. 1974); Mandel v. Kulpaka (July 30, 1992), PCB 92-33; Rawe,
AC 92-5, slip op. at 6; see also Phillips Petroleum Co. v. Illinois Environmental Protection
Agency, 72 Ill. App. 217, 220-21, 390 N.E.2d 620, 623 (2nd Dist. 1979) (discussing
Meadowlark).
Because the complaint does not allege that Amoco owned, operated, possessed, or
controlled the property or the underground storage tanks after the effective date of the Act in
1970 or after the Section 21 provisions became effective, Amoco could not have allowed
contamination to continue or disposed, stored, or abandoned any waste based on the facts of
this case after the Section 21 provisions became effective. See Mandel, PCB 92-33, slip op. at
5-6. Therefore, even assuming that all the well-pleaded allegations are true, none of the
conduct alleged in the complaint occurred after 1970, the effective date of the Act, or after the
effective dates of the Section 21 provisions. Consequently, no set of facts in the complaint can
be proved that would entitle the complainant to relief. Hence, the complaint must be
dismissed. See People
ex rel
. Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 430 N.E.2d
1005, 1008-09 (1981).
IT IS SO ORDERED.
Board Member R.C. Flemal concurred.
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Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this
order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 145 Ill. 2d
R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 20th day of November 1997, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
