ILLINOIS POLLUTION CONTROL BOARD
September 6, 2001
ANTONIO D.H. NAM,
Complainant,
v.
KIKON SUH,
Respondent.
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PCB 97-234
(Citizens Enforcement – UST)
JOSEPH J. ANNUNZIO, JOSEPH J. ANNUNZIO AND ASSOCIATES, LTD., APPEARED
ON BEHALF OF COMPLAINANT; and
JACOB REISS APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by C.A. Manning):
On June 24, 1997, Antonio D.H. Nam (Nam) filed a two-count citizens enforcement
complaint against Kikon Suh (Suh) pursuant to 415 ILCS 5/31(b) of the Environmental
Protection Act (Act). The complaint alleges that Nam is the present owner of a site located at
5101-5117 North Kedzie Avenue, Chicago (site), which was previously owned by Suh. Comp.
at 1.
1
Nam further asserts that in May 1996, soil contamination was confirmed in the vicinity of
a 1,000 gallon gasoline underground storage tank (UST) found on the site. Nam alleges that a
release of the gasoline at the site occurred during the time when Suh owned the site, as Nam
never operated the tanks during his ownership of the site. Comp. at 2. Nam developed and
implemented a corrective action plan and, subsequently, the Illinois Environmental Protection
Agency (Agency) issued a “No Further Action” letter on December 23, 1996.
Nam asserts in count I that Suh violated Section 21(a) of the Act (415 ILCS 5/21(a)
(1996)) by causing or allowing open dumping of waste onto the site. Comp. at 3. In count II,
Nam alleges that Suh violated Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2) (1996)) by
conducting a waste-storage, waste-treatment, or waste-disposal operation in violation of 35 Ill.
Adm. Code 732.200. Comp. at 5. Nam states that Suh, as the owner of the site during the time
of the contamination, violated Section 732.200 by not responding to all confirmed releases of
petroleum as required by the applicable statutory and regulatory reporting requirements. Comp.
at 5. Therefore, Nam requests that the Board (1) find Suh in violation of the Act and Board
regulations; (2) order Suh to remediate the gasoline-contaminated soil; (3) order him to
reimburse Nam for all costs incurred due to contamination of the site; and (4) grant any further
relief the Board deems appropriate. Comp. at 3, 5.
1
The complaint in this matter will be referred to as “Comp. at _____.”
2
Hearings in this matter began on October 5, 1999, and concluded on March 29, 2001.
2
On
May 4, 2001, the complainant filed his post-hearing brief. Suh failed to file a brief.
For the reasons expressed below, the Board finds that Nam has failed to prove the
violations of the Act and Board rules alleged in the complaint.
Procedural History
On July 24, 1997, the Board accepted this matter for hearing. On June 1, 1998, Jacob
Reiss (Reiss) filed an appearance on behalf of Suh. On May 29, 1998, Nam filed a request to
admit facts. On July 16, 1998, Nam filed a motion for summary judgment. On October 15,
1998, the Board denied Nam’s motion for summary judgment, but admitted certain facts as
discussed below.
Starting in 1999, hearing was noticed and cancelled eight times at the behest of the Suh.
Tr.2 at 11. On April 4, 2000, Suh filed a motion for leave to file a third-party complaint
instanter
. On May 4, 2000, the Board directed Suh to file proof of service of the third-party
complaint. On June 8, 2000, the Board dismissed Suh’s motion for leave to file a third-party
complaint for failure to file proof of service. On December 8, 2000, the case was set for hearing
on January 3 and 4, 2001. On January 2, 2001, Suh filed a motion to continue the hearing and a
request for leave to refile the third-party complaint. The motion was granted in part.
Specifically, Nam was allowed to proceed with its case in chief on January 3, 2001. The hearing
was then continued, and Suh given leave to conduct cross-examination, and present evidence
when the hearing resumed. Suh was also given leave to file the third-party complaint. Suh
failed to file the third-party complaint.
Another hearing was held on February 26, 2001. At the hearing, Reiss asserted that in
preparing for the hearing he had discovered a conflict of interest, and felt that he could no longer
represent Suh. Tr.1 at 32. Reiss indicated that the conflict was recently discovered, and that Suh
had not, at the time of the hearing, been notified of the conflict.
3
Reiss did, however, state that
Suh would be notified of the conflict that day. As a result, the attorney for Suh stated that he
was orally withdrawing from the case at the hearing. As evidenced on the record, Reiss was
informed that the appropriate filing would have to be made with the Board. To date, no
withdrawal pursuant to Section 101.400(b) of the Board’s procedural regulations has been
received.
On March 29, 2001, Reiss filed motions to continue the hearing scheduled for that day, to
file an answer
instanter
, for leave to withdraw as attorney, for time for Suh to obtain a new
2
The January 3, 2001 and February 26, 2001 transcripts will be referred to as “Tr.1 at _____.”
The March 29, 2001 transcript will be referred to as “Tr.2 at _____.”
3
Reiss determined that he had represented the complainant on previous matters. Tr.2 at 32.
3
attorney, and to re-file third-party proceedings.
4
On April 23, 2001, a hearing officer order was
issued granting leave to file the answer
instanter
, but denying all other motions.
5
Hearing
Attorney Joseph Annunzio appeared on behalf of Nam. Reiss appeared on behalf of Suh,
but Suh did not appear. Nam testified on his own behalf that: (1) Suh did not inform him about
the existence of the USTs when Nam purchased the property from Suh in 1989; (2) that Nam
discovered the USTs when he attempted to sell the property in 1996; and (3) that Nam has since
remediated the site. Tr.1 at 12-13. No members of the public attended the hearing.
Discussion
As mentioned above, pursuant to the Board’s October 15, 1998 order, the following facts
requested to be admitted were deemed admitted: (1) Suh currently resides at 316 Indian Ridge,
Glenview, Illinois 60025; (2) Suh was the owner of the property located at 5105-5117 North
Kedzie Avenue, Chicago, Illinois, from 1987 to August 22, 1989; (3) three USTs were located
on the property while Suh was the owner and operator of said property; (4) on September 24,
1971, a permit was issued by the City of Chicago to install a 10,000 gallon tank on the property;
and (5) during the time in which Suh was the owner of the property, the USTs were never tested
to determine whether they were leaking gasoline. Comp. Req. at 1-2.
6
Nam presented no
evidence regarding when the tanks were in use or when the leak started.
Count I
Section 21(a) of the Act states that no person shall cause or allow the open dumping of
any waste. 415 ILCS 5/21(a) (2000). Pursuant to Section 31(e) of the Act (415 ILCS 31(e)
(2000)), it is Nam’s burden to show by a preponderance of the evidence that Suh violated the
provisions of the Act alleged.
The record demonstrates only that the City of Chicago issued a permit to install a UST in
1971, and that Suh was the owner of the site from 1987 to August 22, 1989. Nam presented no
4
Reiss filed a motion for leave to withdraw, rather than a motion to withdraw pursuant to 35. Ill.
Adm. Code 101.400(v).
5
As this case was initially filed in 1997, the Board’s procedural rules published on April 1, 1994
apply. Those rules allow the respondent 30 days after receipt of the complaint to file an answer.
Those rules also provide that material allegations of the complaint are deemed denied if no
answer is filed.
See
35 Ill. Adm. Code Subtitle A, Chapter I, Section 103.122(d) (effective
December 3, 1981). Since, the answer filed on March 29, 2001, does not contain any affirmative
defenses, and, since all allegations are to be taken as denied, if filed, the hearing officer ruled
that no material prejudice would result from accepting the answer
instanter.
6
Nam’s May 29, 1998 request for admission of facts will be referred to as “Comp. Req. at
_____.”
4
evidence regarding when the tanks were in use or when the leak started. Accordingly, the Board
finds Nam has not proven by a preponderance of the evidence that Suh caused or allowed open
dumping of any waste. Therefore, the Board finds that no violation of Section 21(a) has
occurred.
Count II
Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2) (2000)) states that:
No person shall:
(d) Conduct any waste-storage, waste-treatment, or waste-disposal
operation:
(2) in violation of any regulations or standards adopted by the
Board under this Act . . .
Section 732.200 states that:
Owners and operator of underground storage tanks shall, in response to all
confirmed releases of petroleum, comply with all applicable statutory and
regulatory reporting and response requirements. 35 Ill. Adm. Code
732.200.
Section 732.103 defines “owner” as:
In the case of an underground storage tank in use on November 8, 1984, or
brought into use after that date, any person who owns an underground
storage tank used for the storage, use or dispensing of regulated
substances;
In the case of any underground storage tank in use before November 8,
1984, but no longer in use on that date, any person who owned such
underground storage tank immediately before the discontinuation of its
use. 35 Ill. Admin. Code 732.103 (citation omitted).
Pursuant to the October 15, 1998 Board order denying Nam’s motion for summary
judgment and in order to establish a violation of count II, Nam must show the specific timeframe
that Suh owned and/or operated the tanks and must show that Suh was the owner and/or operator
of the tanks when a release occurred. Nam failed to present any evidence regarding these two
issues. The facts admitted pursuant to the October 15, 1998 Board order are not sufficient to
prove this allegation. Specifically, Nam requested and the Board admitted only the fact that Suh
was the owner and operator of the property, rather than the owner and operator of the USTs.
There is no admission of fact or evidence that demonstrates Suh owned or operated the USTs or
even knew of their existence. Pursuant to 35 Ill. Adm. Code 732.103, if the tank was not in use
after November 8, 1984, whoever owned the UST immediately before the discontinuation of its
5
use would be considered the owner. Accordingly, the Board finds that Nam has failed to satisfy
his burden of proof, and that it must enter a final order in favor of respondent Suh.
CONCLUSION
Although Suh presented no evidence, it is Nam’s burden to prove the allegations of the
complaint. Accordingly, the Board finds Nam failed to prove that Suh violated the provisions
alleged.
This opinion constitutes the Board's findings of fact and conclusions of law in this matter.
ORDER
Nam has failed to prove the violations of the Act and Board rules alleged in the
complaint.
Accordingly, this matter is dismissed and the docket is closed.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2000);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above opinion and order on September 6, 2001, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
