ILLINOIS POLLUTION CONTROL BOARD
October 7, 2004
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
THOMAS GRAY, an individual, STEVE
WHYTE, an individual, GLADYS WHYTE,
an individual, LEONA CHILDRESS, an
individual, and WILLIAM McCOY, an
individual,
Respondents.
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PCB 04-106
(Enforcement – Cost Recovery)
ORDER OF THE BOARD (by T.E. Johnson):
On July 19, 2004, the Office of the Attorney General, on behalf of the People of the State
of Illinois (People), filed a motion for summary judgment against Thomas Gray, Steve Whyte
and Glady Whyte (MSJ respondents). For the reasons explained below, the Board denies the
People’s motion for summary judgment.
BACKGROUND
On December 29, 2003, the People filed a complaint against Thomas Gray, Steve Whyte,
Gladys Whyte, Leona Childress and William McCoy. The complaint seeks to recover costs the
Illinois Environmental Protection Agency (Agency) allegedly incurred in undertaking corrective
or preventative action to remove the accumulation of used and waste tires on a site owned by
respondents in Momence, Kankakee County. The People allege the site is comprised of three
parcels of land, one owned by Thomas Gray, one owned by Steve and Gladys Whyte, and one
owned by Leona Childress and William McCoy. Comp. at 2.
Under the Environmental Protection Act (Act) (415 ILCS 5/1
et seq
. (2002)), the
Attorney General and the State’s Attorneys may bring actions before the Board to enforce
Illinois’ environmental requirements on behalf of the People.
See
415 ILCS 5/31 (2002); 35 Ill.
Adm. Code 103. In this case, the People allege that the respondents are liable under Section
55.3(d) of the Act (415 ILCS 5/55.3(d) (2002)) for failing to reimburse the State for any portion
of the $131,902.48 expended in cleaning up the site. The People also allege that by failing
without sufficient cause to take preventive or corrective action pursuant to notice given under
Section 55.3(d) of the Act, the respondents are liable to the State of Illinois for punitive damages
equal to at least $131,902.48 and up to $263,804.96.
The Board order of January 22, 2004, accepted the People’s complaint for hearing and
noted that if a respondent fails to file an answer to complaint in 60 days after receiving
2
complaint, the Board will consider that respondent as having admitted allegations in the
complaint. On February 25, 2004, Respondents McCoy and Childress filed answers and
affirmative defenses. To date, the MSJ respondents have not filed an answer with the Board.
APPLICABLE STATUTE
Section 55.3 of the Act provides in part:
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 of taking whatever preventive or corrective action
is necessary and appropriate in accordance with the provision of this
section, including but not limited to, removal, processing or treatment of
used or waste 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 of any
site or accumulation of used or waste tires at which the Agency has
undertaken corrective or preventive action under this Section shall be
liable for all costs thereof incurred by the State of Illinois, including
reasonable costs of collection.
h. Any person liable to the Agency for costs incurred under subsection (g) of
this Section may be liable to the State of Illinois for punitive damages in
an amount at least equal to, and not more than, two times, the costs
incurred by the State if such person failed without sufficient cause to take
preventive or corrective action pursuant to notice issued under subsection
(d) of this Section.
***
k. The costs and damages provided for in this Section may be imposed by the
Board in an action brought before the Board in accordance with Title VIII
of this Act … 415 ILCS 5/55.3(e),(g),(h) and (k) (2002).
THE BOARD’S PROCEDURAL RULES
Section 103.204(d) of the Board's procedural rules for enforcement actions provides in
part:
Except as provided in subsection (e) of this Section, the respondent may file an
answer within 60 days after receipt of the complaint if respondent wants to deny
any allegations in the complaint. All material allegations of the complaint will be
taken as admitted if no answer is filed or if not specifically denied by the answer,
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unless respondent asserts a lack of knowledge sufficient to form a belief. 35 Ill.
Adm. Code 103.204(d).
Subsection (e) of Section 103.204 states that the 60-day period to file an answer
will be stayed if a respondent timely files a motion attacking the sufficiency of the
complaint under Section 101.506 of the Board rules. 35 Ill. Adm. Code 103.202(e);
see
also
35 Ill. Adm. Code 101.506.
Section 103.204(f) provides:
Any party serving a complaint upon another party must include the following
language in the notice: “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).
FACTS DEEMED ADMITTED
Respondents Thomas Gray, Steve Whyte and Gladys Whyte failed to file an answer or
motion pursuant to 35 Ill. Adm. Code 103.204(d). The record shows that these respondents were
properly served and that the complaint was accompanied by a notice of filing that contained the
language reference in 35 Ill. Adm. Code 103.204(f). The Board’s order of January 22, 2004, also
alerted the respondents that failure to file an answer to complaint in 60 days after receiving
complaint would result in the Board considering the material allegations in the complaint as
admitted.
The Board deems the material allegations in the complaint regarding the MSJ
respondents as admitted under 35 Ill. Adm. Code 103.204(d). Specifically, the Board finds the
following material allegations admitted by the MSJ respondents:
a. The site is comprised of three parcels of land identified as tax
parcels 10-19-16-101-033, 10-19-16-101-034, and 10-19-16-101-
035 and is located in Momence, Kankakee County.
b. Thomas Gray owned parcel 10-19-16-101-034 and operated the
site.
c. Steve and Gladys Whyte owned parcel 10-19-16-101-033.
d. On November 10, 1997 and again on June 9, 2000, the Agency
conducted inspections of the site and determined that the site
contained approximately 100,000 used or waste tires.
e. On February 5, 2001, the MSJ respondents received formal written
notice pursuant to Section 55.3(d) of the Act that informed them
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that the accumulation of the used or waste tires posed a threat to
public health or the environment, and directed them to submit a
plan within 30 days detailing the removal of all the used waste tires
at the site.
f. The February 5, 2001 notice informed the MSJ respondents that if
they didn’t comply with the notice the Agency would perform the
cleanup and that the MSJ respondents may be subject to costs and
additional punitive damages in an amount equal to, and not more
than two times the amount of costs incurred by the State.
g. As of July 1, 2001, the MSJ respondents had not submitted a
cleanup plan or removed the tires.
h. From October 11, 2001 to December 21, 2001, the Agency
removed 421.41 tons of tires from the Whyte parcel, 449.20 tons of
tires from the Gray parcel and 228.62 tons of tires from the
Childress/McCoy parcel.
i. The Agency incurred costs in removing the tires in the amount of
$50,624.43 for the Whyte parcel, $54,059.08 from the Gray parcel,
and $27,198.97 from the Childress/McCoy parcel.
j. The MSJ respondents have not reimbursed the State for any
portion of the $131,902.48 expended in removing used and waste
tires from the site.
MOTION FOR SUMMARY JUDGMENT
The People argue that because all material allegations are admitted by operation of law,
that summary judgment is appropriate. The People ask for summary judgment against the MSJ
respondents and request that the Board order them to reimburse the Agency for the $131,902.48
spent on tire cleanup and for any other relief the Board deems appropriate. MSJ at 2-3. To date,
no respondent has filed a response to the motion for summary judgment
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.
Summary judgment is appropriate when the pleadings and depositions, together with any
affidavits and other items in the record, show that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.
See
Dowd & Dowd, Ltd. v.
Gleason, 181 Ill. 2d 460, 693 N.E.2d 358 (1998). In ruling on a motion for summary judgment,
the Board “must consider the pleadings, depositions, and affidavits strictly against the movant
and in favor of the opposing party.” Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370.
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The motion for summary judgment did not include respondents Leona Childress and William
McCoy, both of whom filed an answer to the complaint on February 25, 2004. In a hearing
officer order issued September 14, 2004, the hearing officer asserts that the People are still
working towards settlement with Leona Childress and William McCoy.
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Summary judgment “is a drastic means of disposing of litigation,” and therefore it
should only be granted when the movant's right to the relief “is clear and free from doubt.”
Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370, citing Purtill v. Hess, 111 Ill. 2d 229, 240, 489
N.E.2d 867, 871 (1986). However, a party opposing a motion for summary judgment may not
rest on its pleadings, but must “present a factual basis, which would arguably entitle [it] to a
judgment.” Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist.
1994).
The Board has found that the MSJ respondents have admitted the material facts noted
above by failing to answer or otherwise respond to the complaint in this matter. However, the
Board cannot find that no genuine issue of material fact exists regarding the MSJ respondents.
The People attached the affidavit of Todd J. Marvel, Manager of the Agency’s Used Tire Unit,
and a number of invoices to the motion for summary judgment. In the affidavit, Marvel attests
that he oversaw the tire removal and that the cost of the tire removal was $131,902.48. People’s
Ex. C. The invoices, however, contain references that appear inconsistent with the facts deemed
admitted by the MSJ respondents. For example, the invoices do not categorize the tires removed
or the cost involved according to parcel. Further, the site is referenced as site number
0918105004, but lists, in separate places, both Thomas Gray and Childress as the owner.
Since the record is unclear, the Board finds that the People have not shown that no
genuine issue of material facts exists in this case. The motion for summary judgment is,
therefore, denied. The Board finds the record must be supplemented and clarified at hearing,
which should be held as expeditiously as practicable. At hearing, the parties should also
address the issue of punitive damages.
CONCLUSION
In conclusion, the Board finds that the People did not show that no genuine issue of
material fact exists. The Board directs that the hearing be held as expeditiously as practicable.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on October 7, 2004, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
