ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 30, 2005
BEFORE I'IIE ILLINOIS POIJAI 'ION CONTROL BOARD
PFOPLIt OF TI IF STA I'E OP ILLINOIS )
Ca nipLtinanI,
)
( ase No . (10-52
LIME
ENGINI?E.RING. INC
. . an
Indiana corporal :on,
Respondent
.
MOTION TO DISMISS
NOVA ('OM{ES Respondent, Bar=er Lnaineerink, Inc ., by and Grouch its counsel,
Sod, Northrop, Flanna, Cullen & Cochran . Ltd ., Charles 1. Northrop, of counsel, and pursuant
to 35 111 .Adtn. Code 101 .501 hereby moves to dismiss this action for thihu -e to comply with
Section 31 of the Act. In support, Respondent states
:
I . 'File Complainant filed the Complaint in this malter on or about December 1
.
2005. The Complaint alleres that on September 23, 2005, a PVC transfer title owned and
operated by the Respondent ruptured resulting in the release of I O01) barrels of salt water and 10
to 20 barrels of crude oil. The Complainant contends that such event caused or tended to cause
water pollution and thus violated the Illinois I :nvironrnental Protection Act (the "Act')
.
Respondent timely nobtied the Illinois Environmental Protection Agency (Illinois
IiPA") of the event and began remedial actions to clean it up . During the remedial actions,
Respondent was often in contact with Mr . 'loin Powell, an emergency response coordinator with
the Illinois EPA. During this period Respondent had no contact with anyone from the Attorney
General's Office
.
3
.
On October 11, 2005, the Attorney General's Office mailed a letter to Respondent
statitip that "the II Ii rots Fnvironmental Protection Agency has asked this Office to initiate an
{904'3112.1 i21'W2
.J;('JNKA',
Prlmal,, R""i'd Puym
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 30, 2005
enforcenunt action ae,a nst your company
.
. .' (A copy oI'thi s letter is attached to this Motion as
Attt!chmcnl 11
.
1 he letter was signed by Mr. Toni Davis, Chietl Ilnvn-onmental Ilureau . The
letter further requested that Respondent call Mr . Davis to discuss the release
.
4 .
On October 13, 200> . Respondent called the Attorney General's Office and Iclia
mes aec fur Mr
. Davis,
On October 20, 21)05, Mr. Davis returned Respondents call and left a
nnsst=e. Respnn~tcut renamed that telephone call and felt another message . On October 21
.
2nU5, Ms. Kristen Lu!,gluidge telephoned Respondent mid indicated that a telephone conference
call would he set
till
to discus the release
.
On November I, 2005 . Ms. Kristin Laughrndye
telephoned again and advised as to the date and time of the conference call . On November 2,
_1105, yis. I ,u`hrid,re telephoned again and changed the lime of the telephone conference call
On November 9, 2005, Respondent participated in a telephone conference call
.
Participating in the conference call were Mr . Malt Stone for Respondent. Ms. I.aughridge for the
Attorney General. and Messrs. John Waligore and Thomas Powell for the Illinois EPA
.
The
nature of the event, and Respondent's clean-up efforts, were discussed
.
As noted above, on December 1, 2005, the Attorney General filed this action
against Respondent . The Complaint expressly states that it is hronght, m part, "at the request of
the Illinois Fm ironnuntal Protection Agency" (Con 11. Par. 1) .
fo date, Respondent has never received any writing of any Kind ftom the Illinois
EPA concerning the event
.
S .
Pursuant to Section 31 of the Act, prior to referring a matter to the Attorney
General for possible enforcement, the Illinois EPA must provide written notice via certified mail
to a potential respondent. 415 ILLS 5/31 et seq. The Illinois EPA's compliance with this notice
procedure is mandatory and failure to comply with it must result in the dismissal of that portion
Is!`an a .! !L'orz;.u;cr-K,U^,
led on Rm acd Paper
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, DECEMBER 30, 2005
of a lawsuit imptiipe l}'refened . P_Shh ~
(Ticpiita Processed FomIs,
.L 1 C, P(li No, 02-56
,
Novemher 2
1 . '0t)2)(2(102 11LENA' 1 I-XIS 048),
In ('IhicL, the Attorney General filed a nutlti-count complaint against a respondent
allecine grater pollution . ('hiquita tiled a motion fir summary ltdemeat on two counts of the
complaint contending that because the Illinois EPA did not provide the required statutory notice
)1 the violations under section 31(a)( I
) of the Act before the matter was referred to the Attorney
General. those two counts of the complaint must be dismissed. The Hoard agreed. As
r,lereneeu above, the Board held that "the written notice required by Section
;1 (u) (1) [of the
ActI is a precondition to the Agency's referral of the alleged violations to the At torncy General ."
hi(aila. P(B \o. UZ-56 (Nov-(mbar 21 . 2005), p . 3. the Board then went on to find that the
facts, supported by aftliavt, demonstrated that
: ( I) no written notice of the potential violations
was ever issued or served upon (hiqurta prior to the referral ; and (2) the. counts tut issue were
referred to the Attorncy General by the Illinois EPA. in tight of these facts and the law, the
Board disutissed the two c ants at issue
.
The same facts are present in this case . There can be no dispute that the Respondent
never received any kind of notice compliant with Section 31(a)(I
) of the Act from the Illinois
EPA .
The attached affidavit of Matthew Stone, Vice President of Bargor Engineering,
unequivocally states that no notice has ever been received from the Illinois EPA . In addition,
based upon the knowledge of Banger Engineering employees and the limited documents
available at this time it is also unequivocally clear that any potential violations in
this
matter
were, in fact, referred to the Attorney General by the Illinois EPA . First, as noted in the Mathew
Stone affidavit, prior to receipt of the October 11, 2005, letter from the Attorney General's
Office, Banger had no contact with the Attorney General's Of"ice . In fact, the only contact
%1'n49111?J 12/22"JAOC'1NK ..AV
3
l'"'t"d
un Hr. 1"i Puprr
ELECTRONIC FILING RECEIVED, CLERK'S OFFICE, DECEMBER 30, 2005
between Rc>pundent and the State was through the Illinois EPA . Accordingly_ the only source
of infornnrtion to this Cvent was the Illinois EPA . Second, the October 11, 2005, letter Rum the
_Attorney General's Officc to Respondent advising of an impending enforccntent action clearly
states the matter initiated nom, and was referred to, the Attot iw} General from the Illinois EPA
Please he advised that the Illinois Environmental Protection Agency has asked this Office to
Inmate all eniorcenlent action against
your
company .
. ."). 'thud. the Attorney General's
Complaint itself recites that the matter is being bronchi "at the request of the Illinois
Environmental Protection Agenev.° In
Item
of these nuts . this matter must he disnussed for
failure of the Illinois EPA to comply with the notice requirements of Section 31(a)( I)
.
An affidavit of Respondent's Vice President in support
of
this Motion is attached
a s attachment ^_
.
WIILREFORE, Respondent Barger Engineering L.L.C ., respecllitlly requests that the
Board grant this Motion to Dismiss and for any other relict this Board deems appropriate
.
Respectfully submitted,
Bargcr Engineering, Inc., Respondent
Staling, Northrup, Ilanna,
Cullen & Cochran, Ltd
.
Charles ,I . Northrup. of Counsel
Suite 800 Illinois Building
P .O. Box 5131
Springfield, IL 62705
Telephone : (217) 544-1144
Facsimile : (217) 522-3173
E-Mail
.
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IN
A\ I
P,in dd o
By :
One O£ Its Attorneys
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 30, 2005
PROOF OF S11,10 WE
f}ie nndersiuuned hereby ceilitics that a copy of t..he foregoing document was
electronically flied with die Illinois Pollution Control Board
.
Ms. Dorothy Guns
Illinois Pollution Control Board
lames K. I honipson (enter
Suite I I-?OJ
I(A) West Pnildolph
Chicago. IL 6U61i!
and seey ed out the following by placing same in a scaled envelope addrussed
:
V1r. Matthew I . Dana
Lit runmcntal Asbestos
Litigation Division
500 South Second St
.
Springfield, IL 62706
,Mr. Kristen Luu~lhridge
Attorney Geticral's Office
Assistant Attonice General
500 South Second St
.
Spimgtield, IL 62706
and by- depositing same in the United States mail in Springfield . Illinois, on the `'
day_ of
]F< <
21105, with postage fully prepaid
.
, CU'lea n I I I' '111,(11( IN 1,A% l
5
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 30, 2005
P=ST
C .
brr
. __0,
,no ena - :/it
De
NF
4
I FOR> f
`
r`1-
.cFP;l,
October 1 t 2005
Fey
September i9, 20!!`
i !ease
Ph - . _
ac ed that to Winds Environmental Protection Agency as asked this
e
I n
le an en`orcemenr act on against your company for water pollution violations
resu bee Born The above-referenced incident at the Phlllipstown Unit 'Water F'ocd Plant in
WS tCcunty . I n addition to a civil penalty, the State is seeking to nave your company
torn the Mew:ng actions remove any standing sat water, flush the drain ,,;away and
w
ei, rt_
Li
ani vA t -+ sh wares ,
:amp e the sediment for chlorides, and Identify acv cthe-
;fe.r inns located Won dra n peways for relocation or repair as
necessary
Please call
iis'riiss this matter
.
n
nr assstance and cooperat on
.
Sincerely,
Thomas Davls, Chief
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
2171782-7968
John Waligore
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 30, 2005
BEFORE TILE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF Tllc STATE OF ILLINO :S
BARGIIR LN(;INFERIN(;, INC'-, an
Indiana cotporatur :,
Rcspondcut
.
SI'A'I'E O' INDIANA
COUNTY O
My name is Mathew Stone and I am ctu-rently, and at all times relevant hereto,
Vice President of Burger Engineering, Inc .
As pact of my duties at Barger Engineering, Inc . I have from time to time been
involved in communicating with the lllino ;s Environmental Protection Agency and responding to
releases of etude oil and produced water from Barger Engineering facilities
.
3 .
1 am aware of an event referenced in the Complaint filed by the Illinois Attorney
General's Office with tae Illinois Pollution Control Board related to an event occurring on
September 23, 2005 . 1 an; the Barger Engineering employee who is responsible for responding
to the September 23, 2005 even : a,s well communicating with representatives of the State of
Illinois about it
.
4.
Since September 23, 2005 1 have had various discussions with 'Illinois EPA
personnel concerning the September 23, 2005, event
.
{SW9311).1 i2R9200?C3NSA'JI
1
Complainant,
,SS
Case No, i)6-82
AFFIDAVIT OR MMR. MATHEW STONE, VICE PRESIDENT .
BARGEIR ENGINEERING. INC .
Fe, ,,
I,,I ", Re,, IM Paper
Uec
CO
I'--
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 30, 2005
I have :ever received any wd en communication from tae Illinois LPA related in
any way to the Scpte.mhcr 23, 20()5 event
.
Not zan I aware of any other Burger Engineering
employee receiving anv such written communication, I lad such a communreation been se t by
the
III .r.ors
EPA and received by Ba.ger Engineering it would have been directed to me
.
(i .
The oniv written communication I have received concerning ti he September 23,
2005 event was all October 11, 2.005 letter from Mlr . Thomas Davis at the Illinois Attorney
General's C)IEee and a C'omplai'nt fi',cd by the Attorney General With the Pollution Control Board
(Case uo- 06-S2j
Other la
s as represented in he AMotion o Dismiss are true and accurate to the
best
0:'111Y
beliet.
FURTHER AFFIANT SAYI TH NOT
.
~SY193t171 IN920957 iNIC VI
Subscribed and sworn to before me this 29"' day of December, 2005
.
I
red an Rent/ed Paper
MA I IHEW STONE
TAINLA LY:2 PP?DDLS
NOThRY PUBLIC STATE OP IWDLkNA
VANDERBURCHCOUNTY
WY COMML53iON EXp.
'wo. t3,."'N6
