State of Illinois
Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
In the Matter of:
)
CASEYVILLE SPORT CHOICE, LLC,
)
An Illinois Limited Liability Company,
)
)
Complainant,
)
)
vs.
)
PCB 2008-030
)
ERMA I. SEIBER, ADMINISTRATRIX
)
OF THE ESTATE OF JAMES A. SEIBER, )
DECEASED, AND ERMA I. SEIBER,
)
IN HER INDIVIDUAL CAPACITY,
)
)
Respondent.
)
COMPLAINANT’S MOTION TO ADD PARTY DEFENDANT
AND FOR LEAVE TO AMEND COMPLAINT
Comes now the complainant, Caseyville Sport Choice, LLC, by its attorneys, Belsheim &
Bruckert, L.L.C., pursuant to Section 103.206(a) and (b) of the General Rules of the Illinois
Pollution Control Board, and moves this honorable Board to give it leave to add a party
defendant and to amend its Complaint to state a cause of action against the additional party
defendant. In support of its motion, the complainant, Caseyville Sport Choice, LLC, states the
following:
1.
Fairmount Park, Inc., (formerly known as Ogden Fairmount, Inc.) a Delaware
Corporation, which operated a horse racing track, was the source of the huge amount of horse
manure and intermixed “municipal trash” on the land involved in this case, for the cleaning up of
which the complainant seeks reimbursement of its costs.
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Electronic Filing - Received, Clerk's Office, July 9, 2008
2.
Fairmount Park, Inc., (formerly known as Ogden Fairmount, Inc.) a Delaware
Corporation, repeatedly paid James Seiber d/b/a Seiber Hauling and Contracting to haul away,
from its horse racing track, large amounts of horse manure and intermixed “municipal trash,”
with the expectation that Seiber would dump the horse manure and “municipal trash” on his own
land rather than at a properly permitted waste-disposal site or facility.
3.
Fairmount Park, Inc., (formerly known as Ogden Fairmount, Inc.) a Delaware
Corporation, was thus an off-site generator of waste, within the meaning of the decision in
People ex rel Ryan vs. McFalls
, 313 Ill. App. 223, 728 N.E. 2d 1152, 245 Ill. Dec. 795 (3d Dist
2000), that caused or allowed the open dumping of the waste on the land involved in this case, in
violation of §21(a) of the Illinois Environmental Protection Act (415 ILCS 5/21(a)).
4.
Consequently, the complainant desires to add Fairmount Park, Inc., (formerly
known as Ogden Fairmount, Inc.) a Delaware Corporation, to this proceeding as a party
defendant.
5.
The complainant also desires to amend its Complaint by filing a First Amended
Complaint, Count II of which is directed against Fairmount Park, Inc., (formerly known as
Ogden Fairmount, Inc.) a Delaware Corporation.
See
copy of the proposed First Amended
Complaint attached hereto as Exhibit A.
WHEREFORE the complainant, Caseyville Sport Choice, LLC, prays that the Board (by
and through the Hearing Officer) will give it leave to add Fairmount Park, Inc., (formerly known
as Ogden Fairmount, Inc.) a Delaware Corporation, as a party defendant, and leave to amend its
Complaint by filing a First Amended Complaint, Count II of which is directed against Fairmount
Park, Inc., (formerly known as Ogden Fairmount, Inc.) a Delaware Corporation.
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Electronic Filing - Received, Clerk's Office, July 9, 2008
CASEYVILLE SPORT CHOICE, LLC,
An Illinois Limited Liability Company,
By /s/ John P. Long
John P. Long #1687832
Belsheim & Bruckert, L.L.C.
1002 E. Wesley Drive, Suite 100
O’Fallon, Illinois 62269
618-624-4221/618-624-1812 Fax
Attorney for Complainant
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Electronic Filing - Received, Clerk's Office, July 9, 2008
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served a copy of the foregoing document by
depositing the copy of the document in the United States mail at the post office in O’Fallon,
Illinois, on July 9, 2008, enclosed in an envelope, with first-class postage thereon fully prepaid,
plainly addressed to:
Donald Urban
Sprague and Urban
Attorneys at Law
26 E. Washington Street
Belleville, IL 62220
/s/ John P. Long_
John P. Long #1687832
Belsheim & Bruckert, L.L.C.
1002 E. Wesley Drive, Suite 100
O’Fallon, Illinois 62269
618-624-4221/618-624-1812 Fax
Attorney for Complainant
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Electronic Filing - Received, Clerk's Office, July 9, 2008
State of Illinois
Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
http://www.ipcb.state.il.us/
FIRST AMENDED
FORMAL COMPLAINT
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
In The Matter Of:
)
CASEYVILLE SPORT CHOICE, LLC,
)
An Illinois Limited Liability Company
)
)
(Insert your name(s) in the space above)
)
Complainant(s),
)
)
v.
)
PCB 2008 - 030
ERMA I. SEIBER, ADMINISTRATRIX OF
THE ESTATE OF JAMES A. SEIBER,
DECEASED, AND ERMA I. SEIBER, IN
HER INDIVIDUAL CAPACITY and
)
)
)
)
(For Board use only)
FAIRMOUNT PARK, INC., (formerly
known as OGDEN FAIRMOUNT, INC.)
)
)
A Delaware Corporation
)
)
(Insert name(s) of alleged polluter(s))
)
Respondent(s)
)
COUNT I
(against
Erma I. Seiber, Administratrix of the Estate of James A. Seiber, Deceased,
and Erma I. Seiber, in her individual capacity)
1.
Your Contact Information
Name:
Caseyville Sport Choice, LLC
Street Address:
c/o Belsheim & Bruckert, L.L.C.
1002 East Wesley Drive, Suite 100
County:
St. Clair
State:
O’Fallon, IL 62269
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Electronic Filing - Received, Clerk's Office, July 9, 2008
Phone Number:
( 618 ) 624-4221
2.
Place where you can be contacted during normal business hours (if
different from above)
Name:
Same as above
Street Address:
County:
State:
Phone Number:
(
)
-
3.
Name and address of respondent (alleged polluter)
Name:
Erma I. Seiber, Administratrix of the Estate of
James A. Seiber, Case No. 07-P-00003 in
Todd District Court (Commonwealth of
Kentucky) and Erma I. Seiber, in her individual
capacity (
See
order attached as Exhibit A.)
Street Address:
2070 Rattlesnake Road
County:
Todd
State:
Elkton, KY 42220
Phone Number:
Not Known
4.
Describe the type of business or activity that you allege is causing or
allowing pollution (
e.g.
, manufacturing company, home repair shop)
and give the address of the pollution source if different than the
address above
The respondents operated a business which hauled away – from a
nearby racetrack – large amounts of horse manure and
miscellaneous “municipal trash” intermixed with the horse manure,
and dumped both the horse manure and “municipal trash” on three
parcels of land in St. Clair County.
5.
List specific sections of the Environmental Protection Act, Board
regulations, Board order, or permit that you allege have been or are
being violated
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Electronic Filing - Received, Clerk's Office, July 9, 2008
(a)
the open dumping of waste, in violation of §21(a) of the Illinois
Environmental Protection Act (415 ILCS 5/21(a));
(b)
the conduct of a waste-storage or waste-disposal operation
without a permit granted by the Illinois Environmental Protection
Agency, in violation of §21(d) of the Illinois Environmental
Protection Act (415 ILCS 5/21(d));
(c) the disposal, storage, or abandoning of waste on land which was
not “a site or facility which meets the requirements of this Act and
of regulations and standards thereunder,” in violation of §21(e) of
the Illinois Environmental Protection Act (415 ILCS 5/21(e));
(d)
the development of a new solid waste management site
without a Development Permit issued by the Environmental
Protection Agency, in violation of 35 Illinois Administrative Code
807.201; and
(e) the operation of a solid waste management site without an
Operating Permit issued by the Environmental Protection
Agency, in violation of 35 Illinois Administrative Code 807.202.
6.
Describe the type of pollution that you allege (
e.g.
, air, odor, noise,
water, sewer back-ups, hazardous waste) and the location of the
alleged pollution. Be as specific as you reasonably can in describing
the alleged pollution.
The respondents dumped over 159,000 tons of horse manure and
over 2,600 tons of “municipal trash” on the three parcels of land, the
legal descriptions of which are attached as Exhibit B.
7.
Describe the duration and frequency of the alleged pollution. Be as
specific as you reasonably can about when you first noticed the
alleged pollution, how frequently it occurs, and whether it is still
continuing (include seasons of the year, dates, and times of day if
known)
The respondents dumped the horse manure and intermixed
“municipal trash” over a period of years (from approximately 1981 to
1993) preceding their conveyance of the parcels of land to the
complainant on December 16, 2004. The complainant became
aware of the huge amount of horse manure, and the presence of
“municipal trash” intermixed with the horse manure, in April, 2005, in
the course of developing the land for a subdivision. Since obtaining
title and possession to the parcels of land, the complainant has not
allowed the dumping of any more horse manure or intermixed
“municipal trash” on the parcels of land.
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Electronic Filing - Received, Clerk's Office, July 9, 2008
8.
Describe any bad effects that you believe the alleged pollution has
or has had on human health, on plant or animal life, on the
environment, on the enjoyment of life or property, or on any lawful
business or activity
To proceed with the development of its subdivision on the three
parcels of land, the complainant cleaned up the land and obtained
an Environmental No Further Remediation Letter from the Illinois
Environmental Protection Agency, which it recorded in the St. Clair
County Recorder’s Office as Document No. A02003866 on
September 27, 2006. The complainant incurred cleanup costs in the
amount of Four Million Five Hundred and Twenty-eight Thousand
Five Hundred and Eighty-nine Dollars and Ten Cents
($4,528,589.10).
9.
Describe the relief that you seek from the Board (
e.g.
, an order that
the respondent stop polluting, take pollution abatement measures,
perform a cleanup, reimburse cleanup costs, change its operation, or
pay a civil penalty (note that the Board cannot order the respondent
to pay your attorney fees or any out-of-pocket expenses that you
incur by pursuing an enforcement action)).
Reimbursement of the complainant’s clean-up costs from the
respondents.
10. Identify any identical or substantially similar case you know of that is
already pending before the Board or in another forum against this
respondent for the same alleged pollution (note that you need not
include any complaints made to the Illinois Environmental Protection
Agency or any unit of local government)
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Electronic Filing - Received, Clerk's Office, July 9, 2008
The complainant filed a “Proof of Claim and Affidavit of Claimant” in
the Estate of James A. Seiber, Deceased, No. 07-P-00003 in the
Todd District Court (Commonwealth of Kentucky) on July 5, 2007.
The filing of the “Proof of Claim and Affidavit of Claimant” was
necessary, under the law of the State of Kentucky, in order to
preserve the complainant’s rights against Erma I. Seiber,
Administratrix of the Estate of James A. Seiber, Deceased. A Notice
of Disallowance of the claim was mailed by Erma I. Seiber,
Administratrix of the Estate of James A. Seiber, Deceased, on
August 21, 2007.
The complainant intends to file – on the same day that it files this
complaint with the Illinois Pollution Control Board – a complaint
against the respondents in an appropriate United States District
Court based upon theories of (1) breach of contract and (2) common
law fraud.
11. State whether you are representing (a) yourself as an individual or
(b) your unincorporated sole proprietorship. Also, state whether you
are an attorney and, if so, whether you are licensed and registered
to practice law in Illinois. (Under Illinois law, an association, citizens
group, unit of local government, or corporation must be represented
before the Board by an attorney. Also, an individual who is not an
attorney cannot represent another individual or other individuals
before the Board. However, an individual who is not an attorney is
allowed to represent (a) himself or herself as an individual or (b) his
or her unincorporated sole proprietorship, though the individual may
prefer having attorney representation.)
The complainant is represented by Belsheim & Bruckert, L.L.C.,
Attorneys at Law, and is
not
representing itself.
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Electronic Filing - Received, Clerk's Office, July 9, 2008
State:
Collinsville, IL 62234
Phone Number:
Not Known
Name of
Registered Agent:
Illinois Corporation Service C
Address of
Registered Agent:
801 Adlai Stevenson Drive
State:
Springfield, IL 62703
Phone Number:
Not Known
4.
Describe the type of business or activity that you allege is causing or
allowing pollution (
e.g.
, manufacturing company, home repair shop)
and give the address of the pollution source if different than the
address above
The respondent corporation operated a horse racing track. The
respondent corporation repeatedly paid James Seiber d/b/a Seiber
Hauling and Contracting to haul away, from its horse racing track,
large amounts of horse manure and miscellaneous “municipal trash”
intermixed with the horse manure, with the expectation that Seiber
would dump the horse manure and “municipal trash” on his own land
rather than at a properly permitted waste-disposal site or facility.
5.
List specific sections of the Environmental Protection Act, Board
regulations, Board order, or permit that you allege have been or are
being violated
(a) The respondent corporation caused or allowed the open dumping
of waste, in violation of §21(a) of the Illinois Environmental
Protection Act (415 ILCS 5/21(a)).
6.
Describe the type of pollution that you allege (
e.g.
, air, odor, noise,
water, sewer back-ups, hazardous waste) and the location of the
alleged pollution. Be as specific as you reasonably can in describing
the alleged pollution.
The respondent corporation caused or allowed the open dumping of
over 159,000 tons of horse manure and over 2,600 tons of
“municipal trash” on Seibers’ three parcels of land, the legal
descriptions of which are attached as Exhibit B.
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Electronic Filing - Received, Clerk's Office, July 9, 2008
7.
Describe the duration and frequency of the alleged pollution. Be as
specific as you reasonably can about when you first noticed the
alleged pollution, how frequently it occurs, and whether it is still
continuing (include seasons of the year, dates, and times of day if
known)
The respondent corporation caused or allowed the open dumping of
the horse manure and intermixed “municipal trash” over a period of
years (from approximately 1981 to 1993) on Seibers’ parcels of land.
The complainant purchased the parcels of land from James A.
Seiber and Erma I. Seiber on December 16, 2004. The complainant
became aware of the huge amount of horse manure, and the
presence of “municipal trash” intermixed with the horse manure, in
April, 2005, in the course of developing the land for a subdivision.
Since obtaining title and possession to the parcels of land, the
complainant has not allowed the dumping of any more horse manure
or intermixed “municipal trash” on the parcels of land.
8.
Describe any bad effects that you believe the alleged pollution has
or has had on human health, on plant or animal life, on the
environment, on the enjoyment of life or property, or on any lawful
business or activity
To proceed with the development of its subdivision on the three
parcels of land, the complainant cleaned up the land and obtained
an Environmental No Further Remediation Letter from the Illinois
Environmental Protection Agency, which it recorded in the St. Clair
County Recorder’s Office as Document No. A02003866 on
September 27, 2006. The complainant incurred cleanup costs in the
amount of Four Million Five Hundred and Twenty-eight Thousand
Five Hundred and Eighty-nine Dollars and Ten Cents
($4,528,589.10).
9.
Describe the relief that you seek from the Board (
e.g.
, an order that
the respondent stop polluting, take pollution abatement measures,
perform a cleanup, reimburse cleanup costs, change its operation, or
pay a civil penalty (note that the Board cannot order the respondent
to pay your attorney fees or any out-of-pocket expenses that you
incur by pursuing an enforcement action)).
Reimbursement of the complainant’s clean-up costs from the
respondent corporation.
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Electronic Filing - Received, Clerk's Office, July 9, 2008
NOTICE TO RESPONDENT
NOTE: THIS STATEMENT MUST BE INCLUDED IN THE SERVICE OF THE
FORMAL COMPLAINT ON THE RESPONDENT
INFORMATION FOR RESPONDENT RECEIVING FORMAL COMPLAINT
Please take notice that today I filed with the Clerk of the Illinois Pollution Control
Board (Board) a formal complaint, a copy of which is served on you along with this
notice. You may be required to attend a hearing on a date set by the Board.
Information about the formal complaint process before the Board is found in the
Environmental Protection Act (Act) (415 ILCS 5/1
et seq
.) and the Board’s procedural
rules (35 Ill. Adm. Code 101 and 103). These can be accessed at the Board’s Web site
(www.ipcb.state.il.us). The following is a summary of some of the most important points
in the Act and the Board’s procedural rules. It is provided for general informational
purposes only and does not constitute legal advice or substitute for the provisions of
any statute, rule, or regulation:
Board Accepting Formal Complaint for Hearing; Motions
The Board will not accept this formal complaint for hearing if the Board finds that
it is either “duplicative” or “frivolous” within the meaning of Section 31(d) of the Act (415
ILCS 5/31(d)) and Section 101.202 of the Board’s procedural rules (35 Ill. Adm. Code
101.202). “Duplicative” means that an identical or substantially similar case is already
pending before the Board or in court.
See
35 Ill. Adm. Code 103.212(a) and item 10 of
the formal complaint.
“Frivolous” means that the formal complaint seeks relief that the Board does not
have the authority to grant, or fails to state a cause of action upon which the Board can
grant relief. For example, the Board has the authority to order a respondent to stop
polluting and pay a civil penalty, to implement pollution abatement measures, or to
perform a cleanup or reimburse cleanup costs. The Board does not have the authority,
however, to award attorney fees to a citizen complainant.
See
35 Ill. Adm. Code
103.212(a) and items 5 and 9 of the formal complaint.
If you believe that this formal complaint is duplicative or frivolous, you may file a
motion with the Board, within 30 days after the date you were served with the complaint,
requesting that the Board not accept the complaint for hearing. The motion must state
the facts supporting your belief that the complaint is duplicative or frivolous.
Memoranda, affidavits, and any other relevant documents may accompany the motion.
If you need more time than 30 days to file a motion alleging that the complaint is
duplicative or frivolous, you must file a motion for an extension of time within 30 days
after service of the complaint. A motion for an extension of time must state why you
need more time and the amount of additional time you need. Timely filing a motion
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Electronic Filing - Received, Clerk's Office, July 9, 2008
alleging that the complaint is duplicative or frivolous will stay the 60-day period for filing
an answer to the complaint.
See
35 Ill. Adm. Code 103.204, 103.212(b).
All motions filed with the Board’s Clerk must include an original, nine copies, and
proof of service on the other parties. Service may be made in person, by U.S. mail, or
by messenger service. Mail service is presumed complete four days after mailing.
See
35 Ill. Adm. Code 101.300(c), 101.302, 101.304.
If you do not respond to the Board within 30 days after the date on which the
complaint was served on you, the Board may find that the complaint is not duplicative or
frivolous and accept the case for hearing. The Board will then assign a hearing officer
who will contact you to schedule times for telephone status conferences and for
hearing.
See
35 Ill. Adm. Code 103.212(a).
Answer to Complaint
You have the right to file an answer to this formal complaint within 60 days after
you receive the complaint. If you timely file a motion alleging that the complaint is
duplicative or frivolous, or a motion to strike, dismiss, or challenge the sufficiency of the
complaint, then you may file an answer within 60 days after the Board rules on your
motion.
See
35 Ill. Adm. Code 101.506, 103.204(d), (e), 103.212(b).
The Board’s procedural rules require the complainant to tell you as respondent
that:
Failure to file an answer to this complaint within 60 days may have
severe consequences.
Failure to answer will mean that all
allegations in the complaint will be taken as if admitted for purposes
of this proceeding. If you have any questions about this procedure,
you should contact the hearing officer assigned to this proceeding,
the Clerk’s Office or an attorney. 35 Ill. Adm. Code 103.204(f).
Necessity of an Attorney
Under Illinois law, an association, citizens group, unit of local government, or
corporation must be represented before the Board by an attorney. In addition, an
individual who is not an attorney cannot represent another individual or other individuals
before the Board. However, even if an individual is not an attorney, he or she is allowed
to represent (1) himself or herself as an individual or (2) his or her unincorporated sole
proprietorship.
See
35 Ill. Adm. Code 101.400(a). Such an individual may nevertheless
wish to have an attorney prepare an answer and any motions or briefs, and present a
defense at hearing.
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Costs
In defending against this formal complaint, you are responsible for your attorney
fees, duplicating charges, travel expenses, witness fees, and any other costs that you or
your attorney may incur. The Board requires no filing fee to file your answer or any
other document with the Board. The Board will pay any hearing costs (
e.g.,
hearing
room rental, court reporting fees, hearing officer expenses).
If you have any questions, please contact the Clerk’s Office at (312) 814-3629.
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Electronic Filing - Received, Clerk's Office, July 9, 2008
CERTIFICATE OF SERVICE
I, the undersigned, on oath or affirmation, state that on _____________________, I
served the attached formal complaint and notice on the respondent by
certified mail (attach copy of receipt if available,
otherwise you must file receipt later with Clerk)
registered mail (attach copy of receipt if available,
otherwise you must file receipt later with Clerk)
messenger service (attach copy of receipt if available,
otherwise you must file receipt later with Clerk)
personal service (attach affidavit if available,
otherwise you must file affidavit later with Clerk)
at the address below:
RESPONDENT’S ADDRESS:
Name
Illinois Corporation Service C, Registered Agent for
Fairmount Park, Inc. [formerly known as Ogden Fairmount, Inc.),
a Delaware corporation
Street
801 Adlai Stevenson Drive
City, state, zip code
Springfield, IL 62703
______________________________________________
Complainant’s signature
John Long of Belsheim & Bruckert, L.L.C., in behalf of
Complainant, Caseville Sport Choice, LLC
Street 1002 E. Wesley Drive, Suite 100
City, state, zip code O’Fallon, IL 62269
Subscribed to and sworn/affirmed before me
this___
day of ________________, 2008.
___________________________
Notary Public
My commission expires: ______________________________
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