In a simple solution to the puzzle of distributing blame among many oil companies for pollution in the village of Hartford, the Illinois Environmental Protection Agency proposes to force two of them to clean up messes they didn't make.
James Morgan, from the office of Attorney General Lisa Madigan, laid out the agency's plan June 4 at a hearing before Madison County Circuit Judge Daniel Stack.
He said Premcor Refining and Apex Oil would pay for the cleanup.
He said they could seek to recover from others who contaminated Hartford.
Premcor attorney James Bennett said, "If we are going to be held liable under this count for stuff, materials that Sinclair put there, we have a right to contribution."
"Since it is the state's count and it is the state that firmly holds the view that we can be liable for more than our proportional share, it would be best if the court heard that explanation from Mr. Morgan," Bennett said.
Morgan told Stack the statute was intended to encourage cleanups and it protects those who voluntarily proceed with cleanups.
In this case, he said, the protections don't apply.
"The state can seek to compel Premcor to deal with all the contamination under its property and then they have the right to proceed against anyone else who caused or allowed any portion of that contamination," he said.
"We ask that Premcor and Apex undertake the broader remedial action to deal with the existing contamination at the site," he said.
Stack asked if anyone wished to respond.
Joseph Nassif, representing Sinclair Oil, said, "I don't want to ask to put anybody on the witness stand but could I ask Mr. Morgan a question?"
Stack said, "Sure."
Nassif said, "Jim, where in the act does it indicate that you can issue an injunction to order someone to clean up beyond what he has contributed to the contamination?"
Morgan said, "If you own a contaminated site you need to have a program in place to deal with that contamination."
He said, "We are saying Premcor has a contaminated site. Institute a program to deal with that."
Nassif asked if the agency in any instance issued an enforcement order for someone to clean up beyond what they contributed.
Morgan said the agency proceeded that way in two cases of illegal dumping.
Nassif said the land owners knew of the dumping.
He asked if in any situation the agency required anyone by injunction or otherwise to clean up commingled waste.
Morgan said, "We are going to the land owner who controls the property, who has the right to proceed against the cause of it in that instance in property and seeking to compel them to deal with the site as a whole and then let them sort out who should share in that process."
Nassif asked if the agency ever enforced what they were trying to enforce on Premcor.
Morgan said, "I am hard pressed to see how this situation doesn't fit into any of the other categories we have talked about."
Nassif said, "Premcor had no knowledge or involvement of dumping on their property and maybe they did for the matter, but I don't see that in the allegation."
He said the agency plan was convenient because they didn't have to get into parsing the contamination.
Stack said, "How do you determine which of this gas plume belongs to Sinclair and which of it belongs to BP and which of it belongs to
Nassif said, "They are doing that right now. They are parsing it out, whose went where."
"They fingerprint the type of gasoline additives you have."
After the hearing Stack signed an order declaring that if the parties can agree they won't need further court involvement.