ILLINOIS POLLUTION CONTROL BOARD

May 2, 2002

 

DONALD MCCARRELL and ANN

MCCARRELL,

 

Complainants,

 

v.

 

AIR DISTRIBUTION ASSOCIATES, INC.,

 

Respondent.

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PCB 98-55

(Citizens Enforcement - Land)

      

 

ORDER OF THE BOARD (by C.A. Manning):

 

  

On October 16, 1997, Donald and Ann McCarrell (McCarrells) filed a complaint

against Air Distribution Associates, Inc. (ADAI). The McCarrells allege that ADAI violated

Section 21(a) of the Environmental Protection Act (Act) (415 ILCS 5/21(a) (2000)) by causing

or allowing the open dumping of waste at a Wood Dale, DuPage County property, thereby

contaminating the property’s soil. As a remedy for the alleged violation, the McCarrells seek

to recover $37,261.81 that they purportedly spent to clean up the soil contamination.

 

This case is before the Board today on a motion for summary judgment filed by the

McCarrells on March 20, 2002. ADAI did not respond to the motion for summary judgment.

For the following reasons, the Board denies the McCarrells’ motion. Before explaining its

ruling on the McCarrells’ motion for summary judgment, the Board provides background on

this case.

 

BACKGROUND

 

In their motion for summary judgment,

1 the McCarrells assert that there are no

contested issues of material fact in this case. Mot. Summ. J at 3. They argue that the Board

should find as a matter of law that ADAI violated Section 21(a) of the Act (415 ILCS 5/21(a)

(2000)) and require ADAI to reimburse the McCarrells for $37,261.81 in alleged cleanup

costs.

Id.

at 2-3. The McCarrells’ motion for summary judgment includes the affidavits of

Donald McCarrell and William W. Frerichs (Frerichs), the latter of whom is described as a

“Registered Environmental Property Assessor” and a principal with The Green Environmental

Group Ltd. (Green).

2 Frerichs Aff. at 1. The Board summarizes the affidavits below by way

of background.

1 The McCarrells’ motion for summary judgment is cited as “Mot. Summ. J at _.”

2 Donald McCarrell’s affidavit is cited as “McCarrell Aff. at _;” Frerichs’ affidavit is cited as

“Frerichs Aff. at _.”

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2

 

According to David McCarrell’s affidavit, the McCarrells purchased a property located

at 935 Lively Boulevard, Wood Dale, DuPage County from ADAI on July 15, 1993.

McCarrell Aff. at 1. The McCarrells established a bindery business at the property in

September 1993, which ceased operating in September 1995.

Id.

at 2. In the fall of 1995, the

McCarrells hired Green to perform an environmental assessment of the property. David

McCarrell’s affidavit states that Green discovered “contaminants, including trichloroethane, in

excess of legal limits.”

Id.

at 1. According to David McCarrell, “[i]ndustrial degreasers such

as trichloroethane are not typically used in the bindery business.”

Id.

at 2. David McCarrell’s

affidavit provides that he and Ann McCarrell spent $37,261.81 to remove the contaminants.

Id.

at 1-2. Attached to the affidavit are copies of invoices “for the costs and expenses of the

cleanup.”

Id.

at 1. The McCarrells sold the property shortly after the cleanup.

Id.

  

 

According to Frerichs’ affidavit, ADAI hired Green to perform a Phase I environmental

assessment of the Wood Dale property in 1993, and Frerichs was in charge of that project.

Frerichs Aff. at 1. During the 1993 assessment, Frerichs observed ADAI “storing 55-gallon

drums at the northeast corner of the [Wood Dale] Property in the same location that was found

in late 1995 to be contaminated with trichloroethane.”

Id.

at 3. According to Frerichs, during

Green’s work for the McCarrells in 1995, Green discovered contaminants at the property

“which exceeded the standards then applicable.” Frerichs Aff. at 2. Green in turn excavated

220 cubic yards of soil in December 1995 and January 1996, concluding that the “floors and

walls of the excavated area are clean according to Illinois Soil Remediation Criteria.”

Id.

at 3.

 

Frerichs’ affidavit states that “trichloroethane is used in industry as a solvent to

degrease equipment prior to painting, and . . . paint solvents and degreasers (such as

trichloroethane) were used by [ADAI] in preparing large commercial air conditioner units for

repainting . . . .” Frerichs Aff. at 5. According to Frerichs, the 1995-1996 excavations

revealed that the highest concentrations of trichloroethane in the soil were close to the location

of ADAI’s paint booth at the northeast corner of the building.

Id.

at 4. Frerichs concludes

that “based on the depth below grade, the pattern, and the concentrations, of trichloroethane

and the other contaminants . . ., the trichloroethane and the other contaminants could not have

been introduced into the soil in the time period between July 15, 1993 and December 20, 1995,

and had been present in the soil at [the Wood Dale property] before July 1993.”

Id.

at 5.

 

Though it did not respond to the McCarrells’ motion for summary judgment, ADAI, on

October 30, 1997, filed an answer to the McCarrells’ complaint.

3 ADAI states that it has no

knowledge of any alleged soil contamination or cleanup at the property or any alleged cleanup

expenses incurred by the McCarrells. Ans. at 1-2. In its answer, ADAI “denies that the

alleged pollution occurred prior to July 15, 1993, when [ADAI] owned the subject property

and conducted its business.”

Id.

at 1. ADAI further “denies that the alleged soil

 

3 The answer is cited as “Ans. at _.”

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