RECF~1VW
CLERK’S OFFICE
ILLINOIS POLLUTION CONTROL BOARD
OCT 292004
TERESA L. SHEPRO, as Trustee of the
)
STATE OF ILLIN0~S
Justice W. Shepro Trust,
)
Pollution
Control Board
and TERESA L. SHEPRO and
)
FRANK WIEMERSLAGE, as
)
r_~•Z
beneficiaries under Trust No. 898, of the
)
Chicago Trust Company,
)
Case No. PCB 04-12
Complainant,
)
)
v.
)
)
NEWBY OIL COMPANY, DAVID E.
)
TRIPP and JANICE L. TRIPP,
)
Respondents.
)
AFFIDAVIT OF SERVICE
The undersigned herebycertifies that a copy ofthe Plaintiffs’ Motion to CompelDiscovery was filed
with the Illinois Pollution Control Board (an original and four copies) and served on the Defendants by
placing the same in an envelope addressed to:
Clerk of the Illinois Pollution Control Board
Attn. John
P.O. Box 19274
Springfield, IL 62794-9274
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601
William C. Murphy
KINNALLY, KRENTZ, LORAN,H0DGE & HERMAN,
P.C.
2114 Deerpath Road
P.O. Box 5030
Aurora, IL 60507-5030
Attorney Kenneth Shepro
Weinberg, Richmond LLP
333 W.
Wacker Drive, Suite 1800
Chicago, IL 60606
Attorney Richard W. Shepro
Mayer Brown Rowe & Maw
190 South LaSalle Street
Chicago, IL 60603-3441
Attorney Marcy Buick
CLIFFE, FOSTER, CORNEILLE
& BUICK
151 West Lincoln Highway—---
DeKaIb, IL 60115
with postage fu1~yprepaid and depositing said envelope in the U. S. Mail at Oregon, Illinois on the
/~1tiday of
OCft?beK
,
2004, at or about the hour of5:00 o’clock p.m.
~_____
Subscribed and sworn to before me
this /~9flhday of
~
,
2004.
___
Fit’
NOT~YPUBLIC
Clayton L. Lindsey
WILLIAMS & McCARTHY
P.O. Box 339
607 Washington Street
Oregon, IL 61061
815/732-2101
815/732-2289 Fax
G:\Wpdocs_bev\CLL\S\Shepro.Teresa\Affidavitof.service.wpd(bk)
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REC~JED
CLERK’S OFFICE
OCT 2 92004
STATE OF ILLINOIS
Pollution Control Board
1.
This action was commenced by the filing ofComplaint on or about July 23, 2003.
2.
Complainants Amended Complaint was filed on or about November 13, 2003 and
seeks recovery against the Respondents pursuant to 415 ILCS
5/12(A)
and 415 ILCS 5/12(d).
3.
Complainants contend that environmental contamination found on theirpremises is
the proximate cause ofa release, spill or leaching from the Respondents’ site.
4.
Soil boring testing on Complainants’ site, as well as other discovery in this action,
has confirmed:
(a)
Contamination is present on Complainants’ site at a concentration exceeding
Tier 1 Remediation Objective set forth in 35 Illinois Administrative Code
742 at or near the property line between lots owned by Complainants and
ILLINOIS POLLUTION CONTROL BOARD
TERESA L. SHEPRO, as Trustee of the
)
Justice W. Shepro Trust,
)
~ ~©~)
~5\~\v/
and TERESA L. SHEPRO and
)
FRANK WIEMERSLAGE, as
)
beneficiaries under Trust No. 898, ofthe
)
Chicago Trust Company,
)
Case No. PCB 04-12
Complainant,
)
)
v.
)
)
NEWBY OIL COMPANY, DAVID E.
)
TRIPP and JANICE L. TRIPP,
)
Respondents.
)
MOTION TO COMPEL DISCOVERY
NOW COME the Complainants, TERESA L. SHEPRO, as Trustee ofthe Justice W. Shepro
Trust, and TERESA L. SHEPRO and FRANK WIEMERSLAGE, as beneficiaries under Trust No.
898, ofthe Chicago Trust Company, pursuant to 35 Illinois Administrative Code 101.500 and moves
the Hearing Officer to Order Respondents, NEWBY OIL COMPANY, DAVID E. TRIPP and
JANICE L. TRIPP, to permit soil sample testing on their premises, and in support thereof, state as
follows:
Respondents (owned by Tripp and operated/leased byNewby Oil Company).
(Report ofWendler Engineering).
(b)
Ground water flow direction is from Respondents’ site towards
Complainants’ site. (Report ofWendler Engineering and Deposition ofGreg
Kazmerski).
(c)
Respondents have engaged in business on their site in excess of 10 years,
during which time they have stored petroleum products in
55
gallon drums
on their site, at or near the property line directly adjacent to the location of
the above referenced contamination. (Deposition ofDavid Newby, Answers
to Interrogatories ofNewby Oil Company, number 7).
(d)
Surface soil sampling by the Illinois EPA of Respondents’ site in the area of
the location of the storage ofpetroleum products has revealed the presence
of petroleum products, although at a level below Tier 1 Remediation
Objectives. (Deposition ofGreg Kazmerski).
5.
Complainants have requested permission to conduct three or four soil borings on
Respondents’ property in an area adjacent to the property line and location ofcontamination on
Complainants’ property.
6.
Respondents have denied Complainants’ requests.
7.
Counsel forComplainants have exhaustedall methods ofobtainingthis information,
including personal consultation with counsel for Respondents, to no avail.
8.
Pursuant to the Rules of the Illinois Pollution Control Board, 35 Illinois
Administrative Code 101.614, the Hearing Officer may Orderthe production ofinformation that is
relevant to the matter under consideration. Clearly, the presence, or lack thereof, of petroleum
contaminants on Respondents’ property adjacent to Complainants’ property would be relevant
information.
9.
Pursuant to Rules ofthe Illinois Pollution Control Board, 35 Illinois Administrative
Code 101.616, all relevant information and information calculated to lead to relevant information
2—
is discoverable. The extent ofcontamination, ifany, on Respondents’ site adjacentto Complainants’
site is relevant to these proceedings.
10.
Ordering the Respondents to conduct three or four soil borings will encourage
resolution ofthis matter in the form ofspurring settlement discussions or the potential dismissal of
this cause.
11.
The soil borings will not be an unreasonable invasion ofRespondents’ property and
can be done in such a manner so as not to interfere with Respondents’ business operations.
WHEREFORE, Complainants request the Hearing Officer to enter an Order permitting
Complainants to conductthreeorfoursoil borings on Respondents’ property nearthe-Complainants’
site for purposes ofevaluating the extent, if any, ofpetroleum contamination in said borings.
TERESA L. SHEPRO, as Trustee of the Justice
W. Shepro Trust, and TERESA L. SHEPRO and
FRANK WIEMERSLAGE, as beneficiaries under
Trust No. 898, ofthe Chicago
Trust Company, Complainants
By WILLIAMS & McCARTHY
By:______
Cla/on L. Lindsey
WILLIAMS & McCARTHY
607 Washington Street
P.O. Box 339
Oregon, IL 61061
815/732-2101
Fax 815/732-2289
clindsey~wilmac.com
Motioii.CompelDiscovery.wpd(bk)
3—
