REGE~VED
CLERK’S OFFICE
MAR
7.
2005
OFFICE
OF THE ATTORNEY GENERAL
STATE OF
ILLINOIS
STATE
OF
ILLINOIS
Pollution Control Board
Lisa Madigan
AITORNEY GENERAL
March 2, 2005
The Honorable Dorothy Gunn
Illinois Pollution
Control Board
James R.
Thompson Center,
Ste.
11-500
100 West Randolph
Chicago,
Illinois 60601
Re:
People
v.
City of Cairo
PCB No.
05-117
Dear Clerk Gunn:
Enclosed
for
filing
please
find
the
original
and
ten
copies
of
a
NOTICE
OF
FILING
and
an AMENDED COMPLAINT
in regard to the above-captioned matter.
Please file the originals
and
return
file-stamped
copies of
the
documents
to
our
office
in
the
enclosed
self-addressed,
stamped
envelope.
Thank you for your cooperation and
consideration.
Very truly yours,
Thomas Davis
Environmental Bureau
500
South
Second Street
Springfield,
Illinois 62706
(217) 782-9031
TD/pp
Enclosures
500
South Second Street,
Springfield, Illinois
62706
•
(217) 782-1090
•
‘l’TY:
(217) 785-2771
•
Fax: (217)
782-7046
100
West Randolph
Street, Chicago,
Illinois
60601
•
(312) 814-3000
•
‘I’T’i’:
(312)
814-3374
-
Fax: (312) 814-3806
1001
1
1st \l on
(
irbond 1k
1!!inoi,
62901
(61S)
~29 6400
11
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(618)
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(618)
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-
BEFORE THE
ILLINOIS POLLUTION
CONTROL ~
PEOPLE OF THE STATE
OF
)
MAR
72005
ILLINOIS,
)
STATE OF ILLINOIS
Complainant,
)
Pollution Control Board
)
vs.
)
PCB No.
05-117
)
(Enforcement)
CITY
OF CAIRO,
)
Respondent.
)
NOTICE OF FILING
To:
Allan
Mclntire
Attorney at
Law
1501 Washington Avenue
Cairo,
IL 62914
PLEASE TAKE
NOTICE that on this date
I
mailed for filing with the Clerk of the Pollution
Control
Board
of the State
of Illinois,
an
AMENDED
COMPLAINT,
a
copy
of which
is
attached
hereto and
herewith
served
upon you.
Respectfully submitted,
PEOPLE
OF THE
STATE OF ILLINOIS
LISA MAD IGAN,
Attorney General of the
State of Illinois
MATTHEW J.
DUNN, Chief
Environmental Enforcement/Asbestos
Litigation
Division
BY:_____________________
THOMAS
DAVIS,
Chief
Assistant Attorney General
Environmental Bureau
500
South
Second Street
Springfield,
Illinois 62706
217/782-9031
Dated:
March 2,
2005
CERTIFICATE OF SERVICE
I
hereby certify that
I
did
on
March 2, 2005,
send
by
First Class
Mail,
with
postage thereon
fully prepaid,
by depositing in
a United States Post
Office Box a true and
correct copy of the
following instruments
entitled NOTICE
OF FILING
and AMENDED COMPLAINT
To:
Allan Mclntire
Attorney at
Law
1501
Washington Avenue
Cairo,
lL62914
and the original and
ten copies by
First Class
Mail with
postage thereon fully prepaid of the
same
foregoing
instrument(s):
To:
Dorothy Gunn, Clerk
Illinois
Pollution
Control
Board
James
R. Thompson Center
Suite
11-500
100 West
Randolph
Chicago,
Illinois 60601
A copy was
also
sent by
First Class Mail with
postage thereon fully prepaid
to:
Carol Webb
Hearing
Officer
Illinois
Pollution
Control Board
1021
North
Grand Avenue East
Springfield,
IL 62794
THOMAS DAVIS,
Chief
Assistant Attorney General
This filing
is submitted
on
recycled paper.
RECEflJED
BEFORE THE ILLINOIS POLLUTION CONTROL BOA1~ERK’S
OFFICE
-
ALEXANDERCOUNTY, ILLINOIS
MAR
-72005
PEOPLE OF THE
STATE OF ILLINOIS,
)
~
Control Board
)
Complainant,
)
)
v.
)
PCB05-117
)
(Enforcement-Tire Cost Recovery)
CITYOF CAIRO,
)
)
Respondent.
)
AMENDED COMPLAINT
The PEOPLE
OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney General of
the State of Illinois, on her own motion and at the request ofthe ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, complains of the Respondent, CITY OF CAIRO, as follows:
COUNT I
COST RECOVERY: SECOND
AND
OHIO SITE
1.
This Complaint is brought on behalfofthe People ofthe State ofIllinois,
ex rel.
Lisa Madigan, the Attorney General ofthe State of Illinois, on her own motion and at the
request ofthe Illinois Environmental Protection Agency (“Illinois EPA”), pursuant to Section
55.3 ofthe Illinois
Environmental Act (“Act”),
415
ILCS 5/55.3
(2002).
2.
The Illinois EPA is an agency ofthe State ofIllinois created by the Illinois
General Assembly in Section
4 ofthe Act,
415
ILCS 5/4
(2002),
and which is charged,
inter alia,
with the duty ofenforcing the Act.
3.
The City of Cairo (“Cairo”) is an Illinois municipal corporation.
The City owns
property located at Second and Ohio Streets in Cairo, AlexanderCounty,
Illinois.
4.
Section 55.3 ofthe Act,
415
ILCS 5/55.3
(2002),
provides in pertinent part as
follows:
1
b.
Upon making a finding that an accumulation ofused or waste tires
creates a hazard posing a threat to public health or the environment, the
Agency may undertake preventative or corrective action in accordance
with this subsection.
Such preventative or corrective action may consist
of any or all ofthe following:
***
3.
Removal ofused and waste
tire accumulations from
the area.
d.
The Agency shall have authority to provide notice to the owner or
operator, orboth, ofa site where used or waste tires are located, and to
the owner or operator, or both, ofthe accumulation ofthe tires at the site,
whenever the Agency finds that the used orwaste tires pose a threat to
public health or the environment
*
* *
The notice provided by theAgency shall include the identified
preventative or corrective action, and shall provide an
opportunity for the
owner or operator, or both, to perform such action.
e.
In accordance with constitutional limitations, the Agency shall have
authority to enter at all reasonable times upon any private or public
property for the purpose oftaking whatever preventive or corrective
action is necessary and appropriate in accordance with the provisions of
this Section, including but not limited to removal, processing or
treatment ofused or waste tires, wheneverthe Agency finds that used or
waste tires pose a threat to public health orthe environment.
g.
Except as otherwise provided in this Section, the owner or operator of any
site or accumulation ofused or.waste tires at which the Agency has
undertaken corrective or preventative action under this Section shall be
liable for all costs thereofincurredby the State of Illinois, including
reasonable costs ofcollection.
Any monies received by the Agency
hereunder shall be deposited into the Used Tire Management Fund.
h.
Any person liable to the Agency for costs incurred under subsection (g) of
this Section may be liable to the State ofIllinois for punitive damages in
an amount at least equal to, and not more than
2
times, the costs incurred
by the State if such person failed without sufficient cause to take
preventative or corrective action pursuant to notice issued under
subsection (d) ofthis
Section.
2
***
5.
Prior to June
24,
1999,
John Stephenson accumulated more than
4,000
used and
waste tires in and around a warehouse located at i6oi Commercial Avenue in Cairo, Alexander
County, Illinois.
This site was not registered as a tire storage facility.
The site was not secured
from public access and was located near a school,
a church, and a day care facility.
Upon
learning of the site, the Illinois EPA initiated enforcement efforts and sent a referral to the
Attorney General.
On August 4,
1999,
theAttorney General filed a complaint and thereafter
obtained preliminary injunctive relief prohibiting Mr.
Stephenson from accumulating any more
waste or used tires at the site.
On December
20,
1999,
the Attorney General obtained a default
judgment against Mr.
Stephenson which directed him to bring the site into compliance with the
Act and regulations by January
19,
2000.
6.
In earlyJanuary
2000,
the City declaredthe site to be a threat to public health
and safety and began moving tires from the site to
a second location utilized by Mr.
Stephenson
to store used and waste tires which was also the subject ofthe Attorney General’s complaint and
the default judgment.
The Illinois EPA notified the City that it lacked the authorization to do
this.
The City then transferred the remaining tires to its
Second and Ohio Street property where
they were commingled with tires generated or accumulated as a result ofother City activities.
7.
OnApril
25,
2000,
the Illinois EPA issued Mr.
Stephenson and the City a notice
(attached hereto as Exhibit A) pursuant to Section 55.3(d) ofthe Act,
415
ILCS
~/
55.3(d),
directing the City and Mr.
Stephenson to remove the waste and used tires accumulated at the
2nd and Ohio Street property.
Neither party removed the tires pursuant tothe notice.
8.
On July
31, 2000,
one ofthe Illinois
EPA’s tire removal contractor commenced
the removal ofthe tires at the 2nd and Ohio Street property.
The work was completed in early
August,
2000.
Approximately
191.17
tons of waste and used tires removed and properly
disposed ofat a cost of
$35,170.75.
3
9.
-
On May
17, 2002,
the Illinois EPA sent a demand, (attached hereto as Exhibit B)
requesting reimbursement ofthe removal costs.
The City responded by letter but did not~
provide the requested reimbursement.
10.
The City failed without sufficient cause to perform the preventative or corrective
action required under the Illinois
EPA’s Section 55.3(d) notice.
ii.
Pursuant to Section 55.3(g) ofthe Act,
415
ILCS 5/55.3(g)
(2002),
the City is
liable to the State ofIllinois for the sum of
$35,170.75
for the actual costs ofthe tire removal.
PRAYER
FOR RELIEF
WHEREFORE, Complainant,
the People of the State of Illinois, respectfully requests
that the Board:
(A)
Set a hearing in this matter not less than twenty-one
(21)
days from the date of
service ofthis Complaint at which the Respondent, City ofCairo, be required to
answer all ofthe
allegations herein;
.
(B)
After due consideration of all statements, testimony, evidence, and arguments
that shall be submitted
at
said hearing or upon default by the Respondent, issue
a final order
finding that the Respondent failed without sufficient cause to take preventative or corrective
action pursuant to the Illinois EPA notice issued under Section 55.3(d) ofthe Act,
415
ILCS
5/55.3(d)
(2002),
and direct the Respondent to pay $35,
170.75
to the Used Tire Management
Fund as actual cleanup
costs expended by the State and punitive damages of
$70,341.50
to the
Used Tire Management Fund;
(C)
After due consideration ofall statements, testimony,
evidence, and arguments
that shall be submitted at said hearing or upon default by the Respondent, issue a final order
directing the Respondent to cease and desist from furtherviolations ofthe Act and its
regulations;
4
(D)
-
Pursuant to Section 55.3(g) ofthe Act,
415
ILCS 5/55.3(g)
(2002),
award to
Complainant its costs and reasonable attorney’s fees; and
(E)
Grant such other and further relief as this Board may deem appropriate.
COUNT II
COST RECOVERY: MAINTENANCE GARAGE SITE
1.
This Complaint is brought on behalfofthe People ofthe State of Illinois,
ex rel.
Lisa Madigan, the Attorney General ofthe State of Illinois, on her own motion and at the
request ofthe Illinois Environmental Protection Agency (“Illinois EPA”), pursuant to Section
55.3
ofthe Illinois Environmental Act (“Act”),
415
ILCS 5/55.3
(2002).
2.
The Illinois EPA is an agency ofthe State ofIllinois
created by the Illinois
GeneralAssembly in Section 4
ofthe Act,
415
ILCS 5/4
(2002),
and which is charged,
inter alia,
with the dutyof enforcing the Act.
3.
The City ofCairo (“Cairo”)
is an Illinois municipal corporation.
The City owns
propertylocated at
105
Sixth Street in Cairo, Alexander County, Illinois,
and operates a
maintenance garage there.
4.
Section 55.3 ofthe Act,
415
ILCS 5/55.3
(2002),
provides in pertinent part as
follows:
b.
Upon making a finding that an accumulation ofused or waste tires
creates a hazard posing a threat to public health or the environment, the
Agency may undertake preventative or corrective action in accordance
with this subsection.
Such preventative or corrective action may consist
ofany or all
ofthe following:
3.
Removal of used and waste tire accumulations from the area.
d.
The Agency shall have authority to provide notice to the owner or
operator, orboth, ofa site where used or waste tires are located, and to
the owner or operator, or both, of the accumulation of the tires at the site,
5
L
whenever the Agency finds that the usedor waste tires pose a threat to
public health or the environment
* *
*
The notice provided by the Agency shall include the identified
preventative or corrective action, and shall provide an opportunity for the
owner or operator, or
both, to perform such action.
e.
In accordance with constitutional limitations, the Agency shall have
authority to enter at all reasonable times upon any private orpublic
property for the purposeoftaking whatever preventive or corrective
action is necessary and appropriate in accordance with the provisions of
this Section, including but not limited to removal, processing or
treatment ofused orwaste tires, whenever the Agency finds that used or
waste tires pose a threat to public health or the environment.
g.
Except as otherwise provided in this Section, the owner or operator ofany
site or accumulation ofused or waste tires at which the Agency has
undertaken corrective or preventative action under this Section shall be
liable for all costs thereof incurred by the State ofIllinois, including
reasonable costs ofcollection.
Anymonies received by the Agency
hereunder shall be deposited into the Used Tire Management Fund.
***
h.
Any person liable to theAgency for costs incurred under subsection (g) of•
this Section may be liable to the State ofIllinois for punitive damages in
an
amount at least equal to, and not more than
2
times, the costs incurred
by the State if such person failed without sufficient cause to take
preventative or corrective action pursuant to notice issued under
subsection (d) ofthis Section.
5.
Prior to June 24, 1999, John Stephenson
accumulated more than 4,OQO used and
waste tires in and around a warehouse located at i6oi Commercial Avenue in Cairo, Alexander
County, Illinois.
This site was not registered as a tire storage facility.
The site was not scured
from public access and was located near a school, a church, and a day care facility.
Upon
learning of the site, the Illinois
EPA initiated enforcement efforts and sent a referral to the
Attorney General.
On August 4,
1999,
the Attorney General filed a complaint and thereafter
6
obtained preliminary injunctive relief prohibiting Mr.
Stephensonfrom accumulating any more
waste
or used tires at
the site.
On December
20,
1999,
the Attorney General obtained a default
judgment against Mr.
Stephenson which directed him to bring the site into compliance
with the
Act and regulations by
January
19,
2000.
6.
In earlyJanuary
2000,
the City declared the site to be a threat to public health
and safety and began moving tires from the site to
a second location utilized by Mr.
Stephenson
to store used and waste tires which was also the subject ofthe Attorney General’s complaint and
the default judgment.
The Illinois EPAnotified the City that it lacked the authorization to do
this.
The City then transferred some ofthe remaining tires to its maintenance garage property
where theywere commingled with tires generated or accumulated as a result of other City
activities.
7.
On April
27,
2000, the Illinois EPAissued Mr.
Stephenson andthe City a notice
(attached hereto as
Exhibit
C)
pursuant to Section
55.3(d)
of the Act, 415 ILCS 5/
55.3(d),
directing the City and Mr.
Stephenson to remove the waste and used tires accumulated at the
maintenance garage property.
Neitherparty removed the.tires pursuant to the notice.
8.
In July of 2000, one of
the Illinois
EPA’s tire removal contraôtor commenced the
removal of the tires at the maintenance garage property.
The work was completed later that
month.
Approximately 75 tons of waste and used tires removed and properly disposed of at a
cost of $14,970.50.
9.
On May
17, 2002,
the Illinois EPA sent a demand, (attached hereto as Exhibit D)
requesting reimbursement ofthe removal costs.
The City responded by letterbut did not
provide the requested reimbursement.
10.
The City failed without sufficient cause to perform the preventative or corrective
action required under the Illinois
EPA’s Section 55.3(d) notice.
7
ii.
-
Pursuant to Section 55.3(g) ofthe Act,
415
ILCS 5/55.3(g)
(2002),
the City is
liable to the State ofIllinois for the sum of $14,970.50 for the actual costs ofthe tire removal.
PRAYER
FOR RELIEF
WHEREFORE, Complainant, the People ofthe State ofIllinois, respectfully requests
that the Board:
(A)
Set a hearing in this matter not less than twenty-one
(21)
days from the date of
service of this Complaint at which the Respondent, City ofCairo, be required to answer all of the
allegations herein;
(B)
After due consideration ofall statements, testimony, evidence, and arguments
that shall be submitted at said hearing or upon default by the Respondent, issue a final order
finding that the Respondent failed without sufficient cause to take preventative or corrective
action pursuant to the Illinois EPA notice issued under Section 55.3(d) of the Act,
415
ILCS
5/55.3(d)
(2002),
and direct the Respondent to pay
$14,970.50
to the Used Tire Management
Fund as actual cleanup costs expendedby the State and punitive damages of
$29,941.00
to the
Used Tire Management Fund;
(C)
After due consideration ofall statements, testimony, evidence, and arguments
that shallbe submitted at said hearing or upon default by the Respondent, issue a final order
directing the Respondent to cease and desist from further violations ofthe Act and its
regulations;
(D)
Pursuant to Section 55.3(g) of the Act,
415
ILCS 5/55.3(g)
(2002),
award to
Complainant its costs and reasonable attorney’s fees; and
8
(E)
-
Grant such other and further relief as this Board may deem appropriate.
Respectfully submitted,
PEOPLE
OF THE STATE OF ILLINOIS,
ex rel.
LISA MADIGAN,
Attorney General
ofthe State of Illinois,
MATTHEWJ. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY:___________________
THOMAS DAVIS
Assistant Attorney General
Environmental Bureau
Attorney Reg. No.
3124200
500
South Second Street
Springfield, Illinois 62706
217/782-7968
Dated:
5
9
