RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'S
OFFICE
OF THE STATE OF ILLINOIS
DEC
2 6 2006
STATE OF ILLINOIS
MATHER INVESTMENT PROPERTIES,
Pollution Control Board
)
L.L .C.,
)
Complainant/Counter-Respondent,
)
V .
)
Case No . 05-29
ILLINOIS STATE TRAPSHOOTERS
)
ASSOCIATION, INC.,
)
Respondent/Counter-Complainant
. )
NOTICE OF FILING AND PROOF OF SERVICE
TO :
Dorothy Gunn, Clerk, Illinois Pollution Control Board, 100 West Randolph Street,
James R
. Thompson Center, Suite 11-500, Chicago, IL 60601-3218 ;
Carol Webb, Hearing Officer, Illinois Pollution Control Board, 1021 North Grand Avenue
East, P.O . Box 19274, Springfield, IL 62794-9274
;
Charles H
. Northrup, Sorling, Northrup,Hanna,Cullen & Cochran, Suite 800 Illinois
Building, 607 East Adams, P .O . Box 5131, Springfield, IL 62705
; and
Richard Ahrens, Lewis, Rice & Fingersh, 500 N . Broadway, Suite 2000, St
. Louis, MO
63102-2147 .
PLEASE TAKE NOTICE that on Friday, December 22, 2006, I filed with the Office of
the Clerk of the Pollution Control Board an original and nine copies of Respondent's Motion to
the Board For Leave to File Counter-Complaint Instanter and the Answer and Counter-
Complaint by U .S. Mail .
The undersigned certifies that he served the Respondent's Motion to the Board For Leave
to File Counter-Complaint Instanter and the Answer and Counter-Complaint by mailing a copy
to the above persons by U .S. Mail on Friday, December 22, 2006 .
Respectfully submitted,
ILLINOIS STATE TRAPSHOOTERS
ASSOCIATION, INC.,
Respondent,
Mohan, Alewelt, Prillaman & Adami
1 North Old Capitol Plaza, Suite 325
Springfield, IL 62701-1323
Telephone: 217/528-2517
Facsimile : 217/528-2553
C
:\Mapa\IL Trapshooters\Notice of Filing I22206 .wpd/crk 12/22/06 1 :44 pin
MOTION TO THE BOARD FOR LEAVE TO FILE COUNTER-COMPLAINT
INSTANTER
COMES NOW Respondent/ Counter-Complainant, Illinois State Trapshooters
Association, Inc ., pursuant to Section 103 .206 of the Board's Procedural Rules (35 Ill
.
Admin . Code Sec . 103 .206), and moves to file a Counter-Complaint against Mather
Investment Properties, LLC (hereinafter "Mather"), as follows
:
On November 30, 2006, Mather filed its First Amended Complaint
.
2 .
Contemporaneous with the filing of this motion, Respondent is filing its
Answer, which includes a Counter-Complaint against Mather
.
3 .
Pursuant to Section 103
.206, a party wishing to file a counter-complaint
must move the Board for leave to file the pleading
. (35 Ill. Admin. Code 103 .206(d))
4 .
The Subject matter of the Counter-Complaint relates to the subject matter
of the First Amended Complaint and there should be no difficulty in addressing these
issues within the current discovery schedule .
WHEREFORE, Respondent/ Counter-Complainant, Illinois State Trapshooters
Association, Inc ., prays for leave to file the Counter-Complaint
instanter .
BEFORE THE
OF
ILLINOIS
THE STATE
POLLUTION
OF ILLINOISCONTROL
BOARD RECE
,
VED
CLERK'S OFFICE
MATHER INVESTMENT PROPERTIES,
)
DEC 2 6 2006
L.L .C.,
)
PollutionSTATE
OF
ILLINOIS
Complainant/ Counter-Respondent
)
V .
)
ILLINOIS STATE TRAPSHOOTERS
)
ASSOCIATION, INC .,
)
Respondent/ Counter-Complainant
)
Case No
. 05-29
Control Board
Respectfully Submitted by,
ILLINOIS STATE TRAPSHOOTERS ASSOCIATION,
INC.,
Respondent/Counter-Complainant,
By : MOHAN,
ALEWELT, PRILLAMAN & ADAMI
By:
Patric D. S
1 North Old Capitol Plaza, Suite 325
Springfield, Illinois 62701-1323
(217) 528-2517 (phone)
(217) 528-2553 (facsimile)
and
LEWIS, RICE &
FINGERSH, L.C
.
Richard A . Ahrens
500 North Broadway, Suite 2000
St. Louis, Missouri 63102
(314) 444-7691 (phone)
(314) 612-7691 (facsimile)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ANSWER AND CCOUNTER-COMPLAINT
ANSWER
COMES NOW Respondent, Illinois State Trapshooters Association, Inc
., and for its
Answer to the First Amended Complaint in this proceeding, states as follows :
(1)
Respondent lacks knowledge or information sufficient to form a belief as to the
truth of the allegations of Paragraph 1, and so denies the same .
(2)
Respondent lacks knowledge or information sufficient to form a belief as to the
truth of the allegations of Paragraph 2, and so denies the same
.
(3)
Respondent admits the allegations of Paragraph 3 .
(4) Respondent admits that on or about October 13, 1998, Panther Creek Office Park,
L.L.C. and Respondent entered into a contract for the sale of certain real property in Sangamon
County, Illinois, which speaks for itself as to its meaning and effect . Respondent denies the
allegations of Paragraph 4 except as herein admitted .
(5)
Respondent admits that on or about August 24, 1999, the parties entered an
amendment to the real estate purchase contract, which speaks for itself as to its meaning and
effect. Respondent denies the remaining allegations of Paragraph 5
.
OF THE STATE OF
ILLINOIS
RECEIVED
CLERK'S OFFICE
MATHER INVESTMENT PROPERTIES,
)
L .L .C .,
)
Complainant/ Counter-Respondent
)
v .
)
ILLINOIS STATE TRAPSHOOTERS
)
ASSOCIATION, INC .,
)
Respondent/ Counter-Complainant
)
Case No. 05-29
DEC 2 E 200E
Pollution OControlF
ILLINOIS
(6)
Respondent denies that Mather has performed all of its obligations under the
contract
. In particular, Respondent states that the contract called for the purchaser to clean up all
target debris and residue on the property, which Mather has failed to do
. Respondent admits that
Mather Investment Properties, L
.L .C. took title to the property on or about September 28, 2000
.
Respondent denies each and every remaining allegation of Paragraph 6
.
(7)
Respondent admits that at certain times a gun club has been operated on the
property
. Respondent denies the allegations of Paragraph 7 except as herein admitted .
(8)
Respondent admits that it owned the property and operated it as an outdoor gun
shooting range . Respondent denies the allegations of Paragraph 8 except as herein admitted
.
(9)
Respondent admits that during the period of time the property was owned and
operated by Respondent, lead shot and broken clay targets came to be placed upon the property
as a result of the normal activities of an outdoor gun shooting range
. Respondent denies the
allegations of Paragraph 9 except as herein admitted
.
(10) Respondent admits that prior to September 1998, Respondent had been
considering selling the property . Respondent denies the allegations of Paragraph 10 except as
herein admitted .
(11) Respondent admits that certain portions of the property were tilled from time to
time
. Respondent denies the allegations of Paragraph 11 except as herein admitted .
(12) Respondent admits that in September 1998 it retained an environmental
consultant and that consultant prepared a Phase I environmental assessment which reported that
there was no "recognized environmental condition," although the report also stated that the
presence of lead shot was certain and identified the presence of target debris
. Respondent denies
the allegations of Paragraph 12 except as herein admitted .
2
(13)
Respondent admits that at some time a report of the Phase I environmental
assessment was received by principals of Panther Creek Office Park, a predecessor in interest to
Mather
. Respondent denies the allegations of Paragraph 13 except as herein admitted .
(14) Respondent admits that Mather Investment Properties, L
.L
.C
. purchased the
property
. Respondent denies the allegations of Paragraph 14 except as herein admitted .
(15) Respondent admits that on August 17, 2001, the Illinois Environmental Protection
Agency sent a letter to Mather Investment Properties, L.L .C.,
which speaks for itself as to its
meaning and effect . Respondent denies the allegations of Paragraph 15 except as herein
admitted.
(16) Respondent admits that Complainant
has from time to time retained
environmental consultants to address the property .
Respondent denies the allegations of
Paragraph 16 except as herein admitted .
(17) Respondent lacks knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 17, and so denies the same .
(18) Respondent lacks knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 18, and so denies the same .
(19)
Respondent lacks knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 19, and so denies the same .
(20)
Respondent lacks knowledge or information sufficient to form a belief as to the
truth of the allegations of Paragraph 20, and so denies the same .
3
RESPONSE TO COUNT I
(1)-(20)
Respondent incorporates by reference as if fully set out here its responses to the
allegations of Paragraph 1-20 of the General Allegations
.
(21)
Respondent admits that the Act contains the language cited
.
(22)
Respondent admits that the Act once contained the language cited, but
affirmatively states that the definition of "waste" has been amended and currently is set forth in
415 ILCS 5/3 .535 .
(23) Respondent denies the allegations of Paragraph 23 .
(24)
Respondent admits that the Act contains the language cited, but denies the
relevancy of the provision to the stated claim .
(25)
Respondent objects to the materiality of the allegation in Paragraph 25 and
Respondent denies the allegations of the same .
(26) Respondent admits the Act contains the language cited .
(27) Respondent denies the allegations of Paragraph 27 .
(28) Respondent denies the allegations of Paragraph 28
.
(29)
Respondent specifically denies it abandoned or disposed of waste at the property
and denies that it was required to obtain a permit as a waste disposal treatment or storage site ;
Respondent thus denies that it failed to comply with any requirements of the Environmental
Protection Act or regulations or standards promulgated thereunder. Respondent denies the
remaining allegations of Paragraph 29 .
4
RESPONSE TO COUNT II
(1)-(20)
Respondent incorporates by reference as if fully set out here its responses to the
allegations of Paragraph 1-20 of the General Allegations
.
(21)
Respondent admits that the Act contains the language cited
.
(22)
Respondent admits that the Board regulations contain the language cited, but deny
that the entire provision is set forth.
(23)
Respondent admits that the Board regulations contain the language cited
.
(24) Respondent admits that the Board regulations contain the language cited
.
(25)
Respondent admits that the Board regulations contain the language cited, but deny
that the entire provision is set forth .
(26) Respondent admits that the Board regulations contain the language cited
.
(27) Respondent admits that the Board regulations contain the language cited
.
(28)
Respondent admits that the Board regulations contain the language cited
.
(29)
Respondent admits that the Board regulations contain the language cited
.
(30) Respondent admits that the Board regulations contain the language cited
.
(31) Respondent denies the allegations of Paragraph 31
.
(32) Respondent denies the allegations of Paragraph 32
.
(33) Since Trapshooters did not dispose of lead and target fragments on the property,
none of these methods of disposal is applicable and only in this contest does Respondent admit
the allegations of Paragraph 33 .
(34)
Respondent denies the allegations of Paragraph 34 .
(35) Respondent denies the allegations of Paragraph 35
.
5
(36) Respondent denies the legal presumptions in Paragraph 36 are a correct statement
of the law . Facilities required to file reports are waste-disposal operations listed in 415 ILCS
5/21(d)(3) and since Trapshooters operated a gun club and not a waste-disposal operation, the
referenced provisions are inapplicable and Respondent denies any violation of the referenced
regulations .
(37) Respondent denies the legal presumptions in Paragraph 37 are a correct statement
of the law . Facilities required to obtain a permit under 415 ILCS 5/21(d) are waste-disposal
operations and since Trapshooters operated a gun club and not a waste-disposal operation, the
referenced provisions are inapplicable and Respondent denies any violation of the referenced
regulations .
RESPONSE TO COUNT III
(1)-(20) Respondent incorporates by reference as if fully set out here its responses to the
allegations of Paragraph 1-20 of the General Allegations .
(21) Respondent admits that the Act contains the language cited, but deny that the
entire provision is set forth .
(22) Respondent denies the allegations of Paragraph 22 .
(23) Respondent denies the allegations of Paragraph 22
.
(24) Respondent specifically denies it abandoned, discarded or otherwise placed
contaminated debris at the property and denies that it was required to obtain a permit to conduct
a waste-disposal operation at the property . Respondent denies the remaining allegations of
Paragraph 24 .
6
(25) Respondent specifically denies that it disposed of waste and denies that it was
required to give notice of a waste-disposal operation to the Agency . Respondent denies the
remaining allegations of Paragraph 25 .
(26)
Respondent specifically denies that it conducted a waste-disposal operation at the
property and denies that it was required to give notice of a waste-disposal operation to the
Agency
. Respondent denies the remaining allegations of Paragraph 26 .
(27) Respondent specifically denies that it conducted a waste-disposal operation at the
property and denies that it was required to give notice of a waste-disposal operation to the
Agency. Respondent denies the remaining allegations of Paragraph 27 .
RESPONSE TO COUNT IV
(1)-(20) Respondent incorporates by reference as if fully set out here its responses to the
allegations of Paragraph 1-20 of the General Allegations
.
(21) Respondent admits that the Act contains the language cited .
(22)
Respondent admits that the Act contains the language cited .
(23) Respondent denies the existence of any "contamination" on the property prior to
the time of transfer of the property as that term is defined by the Illinois Environmental
Protection Act at 415 ILCS 5/3
.170, denies that the term "contaminant" is not vague without
reference to the subject water pollution standard, denies that Respondent "deposit[ed]" lead
fragments or broken clay targets upon the land, denies Respondent created a water pollution
hazard and to the extent that this allegation simply asserts that lead and broken clay targets are
solid matter, Respondent admits this limited allegation .
(24) Respondent denies the allegations of Paragraph 24 .
7
(25)
Respondent denies the allegations of Paragraph 25 .
AFFIRMATIVE DEFENSES
By way of further answer to the Complaint in this proceeding, Respondent affirmatively
states as follows
:
(1)
The Board is without statutory authority to enter a cease and desist order for a
wholly past violation .
(2)
The Board is without statutory authority to enter a mandatory injunction at the
request of a private party.
(3)
The Board is without statutory authority to enter an order for reimbursement of
cleanup costs, or in the alternative, reimbursement of future cleanup costs
.
(4) On September 20, 2006, the Circuit Court of Sangamon County, Illinois entered a
judgment in favor of Trapshooters and against Mather concerning the alleged contamination of
the property. Mather is thereby barred by resjudicata from asserting claims upon which it failed
to prevail, every matter that was offered in support its claims, and every other matter which
might have been offered for that purpose .
(5)
On September 20, 2006, the Circuit Court of Sangamon County, Illinois entered a
judgment in favor of Trapshooters and against Mather concerning the alleged contamination of
the property . Mather is thereby barred by collateral estoppel from seeking adjudication of
questions of fact or law that were litigated and determined in that proceeding
.
(6)
By entering into a purchase contract which specifically bargained for the handling
of any spent lead shot on the property, Mather had an adequate remedy at law
.
8
(7)
Mather waived the alleged deposition of lead shot and broken clay by expressly
bargaining for the right to mine it for beneficial reuse
.
(8)
Mather knowingly assumed the risk of any alleged contamination by expressly
bargaining for the right to mine lead shot for beneficial reuse
.
(9)
Under the doctrine of unclean hands, Mather is barred from seeking relief from its
own conduct, namely purchasing property with knowledge of the presence of spent lead shot,
bargaining to mine the spent lead shot for its own profit, failing to mine the spent lead shot and
instead plowing the spent lead shot into the soil so as prevent normal and customary removal for
beneficial reuse.
(10) Mather is estopped by its own conduct of allowing lead shot and broken clay
targets in the shotfall zone to be plowed into the soil so as to prevent normal and customary
removal of lead for beneficial reuse .
(11) Mather failed to mitigate its damages by allowing lead shot and broken clay
targets in the shotfall zone to be plowed into the soil so as to prevent normal and customary
removal of lead for beneficial reuse at a profit to Mather
.
(12) Mather is barred by laches from complaining about a water pollution hazard, the
material facts of which it knew or had reason to know over eight years ago, subsequent to which
the property was sold, remediation undertaken and key witnesses have become unavailable
.
(13) Awarding Mather the relief sought in this action would unjustly enrich Mather,
because it would have the benefit of the appreciation in value of the property resulting from
performance of the remediation that it asks that Respondent be ordered to the perform, and it
would be unjust for Mather to receive that benefit because it purchased the property knowing of
the presence of spent lead shot and target debris thereon
.
9
WHEREFORE, having fully answered, Respondent prays
that the Complaint be
dismissed, and that it have its costs incurred in this action .
10
COUNTER-COMPLAINT
NOW COMES Counter-Complainant, Illinois State Trapshooters Association, Inc
.
(hereinafter "Trapshooters"), by and through its undersigned attorneys, and for its Counter-
Complaint against Counter-Respondent Mather Investment Properties, L
.L.C
. (hereinafter
"Mather"), states as follows :
1 .
On or about September 28, 2000, Mather took title to certain property in
Sangamon County, further described in paragraph 4 of the First Amended Complaint herein
.
2 .
Mather took possession of the property in full knowledge of the presence of lead
shot on the property
. Mather had had access to and exercised control over the property from and
after October, 1998, when the parties entered a contract for sale of the property from Respondent
to Mather's predecessor in interest
.
3 .
Thereafter, Mather allowed its tenant to plow said materials into the ground in the
shotfall zone .
4.
Prior to the conduct alleged in paragraph 4 herein, by reason and belief, the
shotfall zone had not been plowed .
5 .
The plowing of the shotfall zone prevented normal and customary removal of the
lead for beneficial reuse
.
6.
Mather alleges that there has been any abandonment and disposal of waste at the
Site. Respondent denies there has been any abandonment and disposal of waste at the Site
.
Respondent specifically denies that that trapshooting activities, or any other activities or conduct
engaged in by Respondent, constitute acts giving rise to liability to Mather in this action
.
Pleading hypothetically and in the alternative, however, Respondent states that if there have been
I1
acts constituting the disposal or abandonment of waste as the Site, they are the acts of Mather in
permitting the plowing of the shotfall zone .
7.
Pursuant to Section 21(e) of the Act, no person shall "dispose, treat, store or
abandon any waste, or transport any waste into this State for disposal, treatment, storage or
abandonment, except at a site or facility which meets the requirements of this Act of regulations
and standards thereunder ." (415 ILCS 5/21(e))
8.
Pleading hypothetically and in the alternative, Respondent states that to the extent
there has been any disposal or abandonment of waste at the subject property, the plowing of lead
shot into the ground in a manner that prevented normal and customary means of removal for
beneficial reuse constituted "disposal" of waste
.
WHEREFORE, Trapshooters, prays for an order as follows :
(a)
That Mather violated Section 21(e) of the Illinois Environmental
Protection Act (415 ILCS 5/21(e));
(b)
That Mather pay a civil penalty of $50,000 for each violation and an
additional penalty of $10,000 per day during which such violation continued (415 ILCS
5/42(a)) ;
(c) That Mather be ordered to notify the Illinois Environmental Protection
Agency of the dates on which lead shot was plowed into the soil, the location of the
property and the efforts taken to date to remove lead shot and any associated
contamination ;
(d)
That Mather be ordered to cease and desist from plowing lead shot into the
ground
;
12
(e)
That Mather be ordered to remediate any lead or lead contamination on the
property; and
(f)
That the Board grant such other and further relief as deemed meet and just
.
13
Respectfully Submitted by,
ILLINOIS STATE TRAPSHOOTERS ASSOCIATION,
INC., Respondent/Counter-Complainant,
By : MOHAN, ALEWELT, PRILLAMAN & ADAMI
By :
and
LEWIS, RICE & FINGERSH, L .C.
Richard A . Ahrens
500 North Broadway, Suite 2000
St. Louis, Missouri 63102
(314) 444-7691 (phone)
(314) 612-7691 (facsimile)
Patrick D . Sha
1 North Old Capitol Plaza, Suite 325
Springfield, Illinois 62701-1323
(217) 528-2517 (phone)
(217) 528-2553 (facsimile)
Attorneys for Respondent Illinois Trapshooters
Association, Inc .
14
