THIS FILING SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
VERNON and ELAINE ZOHFELD, )
)
Complainants, )
)
vs. ) PCB No. 05-193
) (Citizen’s Enforcement, Air)
BOB DRAKE, WABASH VALLEY )
SERVICE COMPANY, MICHAEL J. )
PFISTER, NOAH D. HORTON, and )
STEVE KINDER, )
)
Respondents. )
NOTICE OF FILING
TO: Ms. Dorothy M. Gunn Carol Webb, Esq.
Clerk of the Board Hearing Officer
Illinois Pollution Control Board Illinois Pollution Control Board
100 West Randolph Street 1021 North Grand Avenue East
Suite 11-500 Post Office Box 19274
Chicago, Illinois 60601
Springfield, Illinois 62794-9274
(VIA ELECTRONIC MAIL) (VIA ELECTRONIC MAIL)
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
Illinois Pollution Control Board a
MOTION FOR CLARIFICATION
on behalf of
Respondents, Wabash Valley Service Company, Michael J. Pfister, Noah D. Horton and Steve
Kinder, a copy of which is herewith served upon you.
Respectfully submitted,
WABASH VALLEY SERVICE COMPANY,
MICHAEL J. PFISTER, NOAH D. HORTON,
and STEVE KINDER,
Respondents,
Dated: February 23, 2006 By:/s/ Thomas G. Safley
One of Their Attorneys
Thomas G. Safley
Gale W. Newton
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 23, 2006
2
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certify that I have served the attached
MOTION FOR CLARIFICATION upon:
Ms. Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Carol Webb, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield, Illinois 62794-9274
via electronic mail on February 23, 2006, and upon:
Stephen F. Hedinger, Esq.
Hedinger Law Office
2601 South Fifth Street
Springfield, Illinois 62703
Thomas H. Bryan, Esq.
Fine & Hatfield, P.C.
520 N.W. Second Street
Post Office Box 779
Evansville, Indiana 47705-0779
by depositing said documents in the United States Mail in Springfield, Illinois, postage
prepaid, on February 23, 2006.
/s/ Thomas G. Safley
Thomas G. Safley
WVSC:002/Fil/NOF-COS – Motion for Clarification
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 23, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
VERNON and ELAINE ZOHFELD, )
)
Complainants, )
)
vs. ) PCB No. 05-193
) (Citizen’s Enforcement, Air)
BOB DRAKE, WABASH VALLEY )
SERVICE COMPANY, MICHAEL J. )
PFISTER, NOAH D. HORTON, and )
STEVE KINDER, )
)
Respondents. )
MOTION FOR CLARIFICATION
NOW COME Respondents WABASH VALLEY SERVICE COMPANY,
MICHAEL J. PFISTER, NOAH D. HORTON, and STEVE KINDER (hereinafter
“Respondents”), by and through their attorneys, HODGE DWYER ZEMAN, and for
their Motion for Clarification, state as follows:
1. On February 2, 2006, the Board issued its Order on Respondents’ Verified
Motion to Stay Proceedings.
2. The undersigned received a copy of that Order on February 8, 2006.
3. At page 13 of that Order, the Board states in part:
… the Board has previously decided that a statute of limitations does not
apply to actions brought before the Board under the Act. IEPA v. Pielet
Bros. Trading, Inc., PCB 80-105 [sic] (Dec. 17, 1981).
Board Order, February 2, 2006, at 13.
4. In the case that the Board cites for this proposition, Pielet Brothers, the
Board held that no statute of limitations applied to an enforcement case brought by the
State of Illinois. See Illinois EPA v. Pielet Bros. Trading, Inc., PCB No. 80-185, 1981
Ill. ENV LEXIS 402, at *10 (Ill.Pol.Control.Bd. Dec. 17, 1981).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 23, 2006
2
5. On appeal, the Illinois Appellate Court affirmed this decision, stating in
part:
Unless the terms of a statute of limitations expressly include the State,
county, municipality or other governmental agencies, the statute, so far as
public rights are concerned, as distinguished from private and local rights,
is inapplicable to them. The question is whether the State (or its agency or
subdivision) is asserting public rights on behalf of all the people of the
State or private rights on behalf of a limited group. Here, the Agency
argues, and we agree, that what the Agency seeks is to protect the public's
right to a clean environment. Moreover, not only does section 14 of the
Limitations Act fail to expressly include the State or the Agency, but
section 14 is one of a group of sections that, in general, pertain to personal
actions.
Defendant's authorities directed to this point are both inapposite. They
both involve actions by private parties, unlike the instant case.
In conclusion, we hold that the Board did not err in determining that
section 14 of the Limitations Act did not apply to the instant action.
Pielet Bros. Trading, Inc. v. The Pollution Control Board, et al., 442 N.E.2d 1374, 1379
(5th Dist. 1982). (Emphasis added.)
6. Since these decisions, the Board has cited to Pielet Brothers for the
proposition that “[i]t is well-settled that ‘there is no statute of limitations that applies to
enforcement actions brought by the State pursuant to Section 31 of the Act.’” People v.
Peabody Coal Co., PCB No. 99-134, 2003 Ill. ENV LEXIS 314, at *15
(Ill.Pol.Control.Bd. June 5, 2003). (Emphasis added; citations omitted.)
7. However, in at least one case, the Board has held that an action brought by
a private party under the Illinois Environmental Protection Act (“Act”) is governed by a
statute of limitations – specifically 735 ILCS 5/13-205.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 23, 2006
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8. Section 13-205 provides that:
Except as provided in Section 2-725 of the “Uniform Commercial Code,”
approved July 31, 1961, as amended, and Section 11-13 of "The Illinois
Public Aid Code", approved April 11, 1967, as amended, actions on
unwritten contracts, expressed or implied, or on awards of arbitration, or
to recover damages for an injury done to property, real or personal, or to
recover the possession of personal property or damages for the detention
or conversion thereof, and all civil actions not otherwise provided for,
shall be commenced within 5 years next after the cause of action accrued.
735 ILCS 5/13-205. (Emphasis added.)
9. In Union Oil Co. of Cal. d/b/a Unocal v. Barge-Way Oil Co., Inc., et al,
the Board, citing to Pielet Brothers, held that:
a statute of limitations bar will not preclude any action seeking
enforcement of the Act, if brought by the State on behalf of the public’s
interest,
but that:
[t]he instant case, [i.e., a case brought by a private party under the Act],
however, does not fall under this exception.
Union Oil Co. of Cal. d/b/a Unocal v. Barge-Way Oil Co., Inc., et al, PCB No. 98-169,
1999 Ill. ENV LEXIS 9, at **11-12, n.1 (Ill.Pol.Control.Bd. Jan. 7, 1999). (Emphasis
added.)
10. In a later decision in that same case, the Board, citing to its January 7,
1999 opinion, stated:
Barge-Way correctly points out that the Board has already concluded that,
pursuant to Section 13-205 of the Code of Civil Procedure (735 ILCS
5/12-205 (1998)), the statute of limitations applicable to this case is five
years.
Union Oil Co. of Cal. d/b/a Unocal v. Barge-Way Oil Co., Inc., et al, PCB No. 98-169,
2001 Ill. ENV LEXIS 89, at *3 (Ill.Pol.Control.Bd. Feb. 15, 2001). (Emphasis added.)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 23, 2006
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11. The instant case is brought by private individuals, Vernon and Elaine
Zohfeld, not by the State of Illinois.
12. Therefore, Respondents are unsure of the meaning of the Board’s
statement in its February 2, 2006, Order that “a statute of limitations does not apply to
actions brought before the Board under the Act,” and the Board’s citation to Pielet
Brothers in support of that statement, as Pielet Brothers addressed only the issue of
whether a statute of limitations applies to the State, and the Board in Union Oil Co. held
that Section 13-205 did apply to an action brought by an individual.
13. That is, Respondents are unsure whether the Board means its February 2,
2006, Order in this matter to reverse the Board’s holdings in Union Oil Co., or whether
the Board cited to Pielet Brothers for some other purpose.
14. This issue is relevant in this case, as Complainants’ Complaint alleges that
“[t]he [alleged] overdrift events have occurred many times, both before and after the May
8, 2000 incident,” i.e., in some cases, more than five years before Complainants filed
their Complaint on May 9, 2005, and Complainants’ Complaint asks the Board to
penalize Respondents “for each violation of the Act and regulations.” See Complainants’
Complaint at ¶19, Request for Relief D. (Emphasis added.)
15. Thus, if Section 13-205 applies to actions by private parties under the Act,
to the extent that Complainants seek penalties based on “overdrift events” that “occurred.
. . before . . . May 8, 2000,” Respondents would be in a position to argue that any such
claims accrued more than five years before the Complainants filed their Complaint, and
therefore are barred by Section 13-205.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 23, 2006
5
16. Accordingly, Respondents move the Board to clarify the meaning of its
statement that “a statute of limitations does not apply to actions brought before the Board
under the Act.” Board Order, February 2, 2006, at 13.
WHEREFORE, for the above and foregoing reasons, Respondents WABASH
VALLEY SERVICE COMPANY, MICHAEL J. PFISTER, NOAH D. HORTON, and
STEVE KINDER, respectfully move the Illinois Pollution Control Board to clarify its
February 2, 2006, Order as set forth above, and to award Respondents all other relief just
and proper in the premises.
Respectfully submitted,
WABASH VALLEY SERVICE
COMPANY, MICHAEL J. PFISTER,
NOAH D. HORTON, and STEVE KINDER
Respondents,
Dated: February 23, 2006 By:/s/ Thomas G. Safley
One of Their Attorneys
Thomas G. Safley
Gale W. Newton
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
WVSC-002\Filings\Motion for Clarification.doc
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 23, 2006