RECEGVED

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD

APR 252005

PEOPLE OF THE

STATE OF ILLiNOIS,

)

STATE OF ILLINOIS

Pollution Control Board

Complainant,

)

)

v.

)

PCB

05-66

)

PETCO

PETROLEUM CORPORATION,

)

(Water-Enforcement)

an Indiana Corporation,

)

)

Respondent.

)

RESPONDENT’S OBJECTION

TO COMPLAINANT’S

MOTION FOR LEAVE TO

AMEND COMPLAINT

NOW COMES

Respondent,

PETCO PETROLEUM CORPORATION,

(“Petco”), by and

through its attorneys, Sorling, Northrup, Hanna, Cullen and Cochran, Ltd., Charles J. Northrup of

counsel, and hereby objects to

a portion of Complainant’s Motion for Leave to Amend Complaint

for the reasons set forth below.

In support,

Petco states:

L

Background

1.

On or about October

13, 2004,

Complainant filed its six

co~intComplaint against

Respondent

in

this

matter.

Complaint alleged various

violations

of the

Illinois

Environmental

Protection Act and associated regulations related to three release incidents.

2.

On or about March 2,

2005,

Respondent timely filed its Answer.

3.

On or

about April

11,

2005,

Complainant

filed

its

“Motion for Leave

to

Amend

Complaint” seeking to correct certain regulatory citations but also to add alleged violations related

to four additional release incidents.

While three ofthose

incidents

occurred after the filing of the

original

Complaint in this

matter,

one

of those

incidents

occurred well before the filing

of the

original Complaint.

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II.

Argument

4.

Complainant has no absoluteright to amendits Complaint.

E.g. Hadleyv. Ryan, 345

Ill.App.3d

297,

280

Ill.Dec.

818

(4th

Dist~2003).

However,

the

determination to

allow

an

amendment is discretionary with the tribunal and will not be reversed absent an abuse ofdiscretion.

Id.

Respondent

is

cognizant ofthe factors that the Courts

and

the Board review to

analyze

the

propriety ofan amendmentofpleadings.

Such amendments, while liberally allowed, should not be

allowed “where the matters

asserted were known by the moving party at the time of the original

pleading was drafted and forwhich no excuse is offered in explanation ofthe initial failure.”

Trans

WorldAirlines, Inc.

v. MartinAutomatic, Inc., 215 Ill.App.3d 622,

159 Ill.Dec. 94 (2nd Dist. 1991).

5.

In this matter, Respondent objects to the amendment of the Complaint with alleged

violations resulting from the May 31,

2004 release incident.

This incident occurred

5

months prior

to thefiling ofthe original Complaint.

More importantly, Complainant’s own Motion indicatesthis

release was known to the Illinois EPA, on whose behalfthis Complaint was brought.

In light ofthe

authority ofthe Trans World Airlines, Inc. case, this incident should not be allowed to be included

in the proposed amended complaint.

6.

Respondent

also

objects

to

the

correction

of regulatory

violations

“alleged

in

paragraph 22 ofCount I”.

(See Mot., par. 4).

No paragraph 22 ofCount I exists.

7.

Respondent does

not

object

to

the

amendment of the

Complaint

as moved

by

Complainant with respectto the other proposed amendments.

Respondent does, ofcourse, reserve

its

right to file a responsive pleading attacking the Amended Complaint should it be

allowedto be

filed.

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WHEREFORE Respondent respectfully requests that this objection be sustained in whole

or part as described above.

Respectfully submitted

PETCO PETROLEUM CORPORATION,

Respondent

By:

~

One of Its Attorneys

Sorling, Northrup, Haima,

Cullen & Cochran, Ltd.

Charles J. Northrup, of Counsel

Suite 800 Illinois Building

P.O. Box

5131

Springfield, IL 62705

Telephone: (217) 544-1144

Facsimile:

(217) 522-3173

E-Mail:

cinorthrup~sorlinglaw.com

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PROOF OF SERVICE

The undersigned hereby certifies that an original and ten (10) copies ofthe foregoing

document were served by Federal Express to:

Ms. Dorothy Gunn, Clerk

Pollution Control Board

100 West Randolph Street, Suite 11-500

Chicago,IL

60601

and one copy to:

Ms. Carol Webb

Hearing Office

Illinois Pollution Control Board

1021

North Grand Ave. East

Post Office Box

19276

Springfield, IL 62794-9274

Mr. Tom Davis

Illinois Attorney General’s Office

Environmental Division

500 South Second Street

Springfield, IL 62706

•and by depositing same in the United States

mail in Springfield, Illinois,

on the

9’~

day ofApril,

2005, with postage fully prepaid.

-

V

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