ILLINOIS POLLUTION CONTROL BOARD
February
1,
1996
PEOPLE OF
THE
)
STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
PCB
93-191
)
(Enforcement
-
UST)
LLOYD WIEMANN,
)
d/b/a WIEMANN ICE ANDFUEL,
)
)
Respondent.
)
ORDER OF
THE
BOARD
(by
C.A. MANNiNG):
This matter comes before the Board on amotion for summaryjudgment filed
on
October 6,
1995, by
complainant, the People ofthe State of
Illinois
on behalfof the
Illinois Environmental Protection Agency (Agency).
Complainant requests the Board
grant summary judgment in its favor against respondent, Lloyd Wiemann, d/b/a Wiemann
Ice
and
Fuel (Wiemann).
Wiemann filed its response to complainant’s motion for
summary
judgment
and
a cross-motion for
summary
judgment on December
18,
1995,
Complainant filed its responseto Wiemann’ s cross-motion for summaryjudgment on
January
9,
1996.
At this time, the Board addresses both parties’ motions for summary
judgment.
Summaryjudgment will be grantcd where there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.
(Sherex Chemical v.
IEPA (July 30,
1992), PCB 91-202; Williams Adhesives, Inc. v. IEPA (August 22,
1991),
PCB 91-112.)
In complainant’s motion for summaryjudgment, complainant sets forth
facts deemed admitted by Wiemann’sfailure to timely respond to complainant’s request to
admit facts.
However,
after considering Wiemann’ s response to the request to admit
which was subsequently filed in the case per hearing officer order, genuine issues
of
material fact continue to exist and remain in dispute between the parties.
For reasons
more
fl.illy explained below, we grant complainant’s motion for summaryjudgment in part
and deny in part.
For the same reasons, the Board denies Wiemann’s cross-motion for
summary
judgment.
2
BACKGROUND
On October 8,
1993, complainant filed this enforcement action’
against Lloyd
Wiemann, individually and doing business as Wiemann Ice and Fuel, Inc.
Wiemann owns
and/or operates one or more tanks andunderground pipes located at two locations:
(1)
1800 Vandalia Street, Collinsville,
Madison County, Illinois (Site One)
and
(2) Route
Ill
and Forest Blvd., Washington Park,
St. Clair County, Illinois (Site Two).
(Complaint
at 2,
10.)
The tank or tanks contain gasoline or other petroleum distillates.
At
least
10
per centum of each tank’s volume and associated piping is located beneath the surface of
the ground.
(Complaint at 2, 10.)
Complainant charged Wiemannwith the failure to file 20 day and 45
day reports as
required by 35
Ill. Adm. Code 731.162 and 731.163 (1994).
Complainant further charged
Wiemann with thc failure to perform abatement measures as required by
35
Ill. Adni.
Code 731.160.
Hearing Officer Deborah Frank heard several motions concerning
discovery and status reports from January
1994 through November
1995.
Among various
requests for discovery,
complainant served areqUest to admit facts on Wiemann on
February
17,
1994.
On May
13,
1994, the hearing officer deemed the facts admitted since
respondent failed to timely respond within 20 days as requiredby 35
Ill. Adm.
Code
103.162 (c).
The parties continued to negotiate and requested that the case not be set for
hearing.
Several status reports were filed and several phone status conferences were held
in order to expedite proceedings in this case.
On October 6,
1995,
complainant filed a motion for summaryjudgment based on
the facts deemed admitted.
On October 11,
1995, Wiemann filed a motion to vacate or
modi& the May
13,
1994 hearing officer order.
The hearing officer issued an order on
November 22,
1995 which modified the hearing officer order of May
13,
1994.
Specifically, the hearing officer ordered Wiemann to respond to
questions 3-9 of thc
request to admit because the facts sought to be admitted concerned central issues
in the
case.
(Order at
5.)
Citing Sims v.
City of Alton,
172 Ill. App.3d 694 (5th Dist.
1988), the
hearing officer noted that “the trial court haswide discretion with regard to arequest to
admit andmay allow a latefiling in order to prevent injustice.”
(Order at 5.)
The hearing
officer furtherstated that complainant had not shown prejudicewhich would arise as a
resultof the late filing.
(Order at 4.)
Finally, the hearing officer granted Wiemann’s
motion for extension oftime to file a response to complainant’s motion for summary
judgment.
(Order at
5.)
‘The complaint will hereinafter be referred to as
(Complaint at
_.).
The
hearing
officer order
of November
22,
1995
will hereinafter be referred to as (Order at
_.).
Complainant’s motion for
summaryjudgment will hereinafter be
referred to as
(Motion at
_.).
Wiemann’s response
to
complainant’s
motion for summaryjudgment and cross-motion for summary judgment will hereinafter be
referred toas
(Response
at
_.).
Wiemann’s
memorandumin
support
of its response to complainant’s
motion for
summary
judgment
and
cross-motion for
summary
judgment will hereinafter be referred toas
(Memo at
~
3
On December
5,
1995,
Wiemann responded to questions
3-9
of complainant’s
request to admit as ordered by the hearing officer.
On December
18,
1995, Wiemann
responded to the motion for summaryjudgment and filed a cross motion for summary
judgment.
ARGUMENT
Site
One
Complainant argues that summaryjudgment should be granted since Wiemann
failed to respond to the February 17,
1994 request to admit facts.
Complainant states that
since all facts are admitted, no genuine issue of material fact exists in the instant action
and, therefore, the motion should be granted as a matter of law.
(Motion at 2.)
Complainant further argues that a civil penalty of $30,000 should be imposed along with
costs including attorney’s fees and expert witness fees or,
alternatively, that a hearing
~shouldbe set solely to determine the amount of the civil penally.
(Motion at 2.)
Wiemann argues that genuine issues ofmaterial fact exist with regard to Site One
and, therefore,
complainant’s motion for summaryjudgment should be denied. Wiemann
argues that complainant must establish Wiemann as owner or operator ofthe underground
storage tanks (USTs) in Site One in order to prevail on the allegations in the complaint.
In Wiemann’s response to complainant’s request to admit datedDecember 5,
1995,
Wiemann denied the allegation he was owner or operator of
Site One.
Wiemanri
also
submitted a sworn affidavit as affirmative evidence to indicate Wiemann is not the owner
or operator of the USTs at Site One.
(Response at 2.)
Wiemann further arguesthat
though he was listed as “owner” on the Notification Form filed with the Office of the State
Fire Marshall (OSFM) regarding the USTs at Site One, Wiemann neither participated in
the filing ofthe form,
nor signed the form.
(Memo at 9-10.)
Finally, Wiemann argues that
in the absence ofevidence supporting complainant’s claims against Wiemann, the Board
should grant Wiemann summaryjudgment for the alleged Site One violations.
(Response
at 2.)
Site Two
In Wiemann’ s response to complainant’s motion for summaryjudgment,
Wiemann
agrees that the facts deemed admitted were
sufficient to find Wiemann in violation as to
Site Two.
(Response at
1.)
Wiemann, however, argues the penalty suggested by
complainant is excessive when considering the penalty factors under Section 33(c) and
Section 42(h) ofthe Illinois Environmental Protection Act (Act).
(Memo at 3-5.)
Wiemann therefore requests the Board to reduce complainant’s penalty request
accordingly,
or
itt
the alternative, set a hearingto
determinethe appropriate penalty for
Site Two.
(Response at 2.)
Wiemann further requests the Board to
deny complainant’s
request for attorney’s fees and expert witness fees.
4
ANALYSIS
Complainant’s motion for summary judgment is based on the facts deemed
admitted pursuant to the hearing officer order of May
13,
1994.
However, the hearing
officer vacated her May
13,
1994 order ultimately causing only the facts in questions 1-2
and 10-14 to be admitted.
The hearing officer subsequently ordered Wiemann to file a
response to questions 3-9.
As a result of Wiemann’s response filed
on December
5,
1995,
Wiemann denied, admitted or otherwise addressed
the varying matters pertaining to
questions 3-9.
Most notably, Wiemann denied being owner and/or operator of an
underground storage tank system located at Site One.
In a motion for summaryjudgment, judgment will
only be granted where no
genuine issue ofmaterial fact exists and the moving party is entitled to judgment as a
matter of law.
The regulationspertaining to the charges against Wiemann place
responsibility on the owner or operator of the USTs.
Only the owner or operator can be
charged with failure to perform abatement measures or the failure to file 20 and
45
day
reports.
Since Wiemarm denies both in his affidavit and in the responseto admit facts that
he is not the owner or operator of the USTs at Site One, a genuine fact remains at issue as
to Site One.
Therefore, the Board directs this case proceed to hearing as to Site One.
For the same reason that complainant’s motion for summary judgment has been
denied above, the Board also denies Wiemann’s cross-motion for summaryjudgment.
In
Site Two, the facts were deemed admitted whenWiemann failed to timely
respond to complainant’s request to admit.
The facts deemed admitted as to Site Two
establish the material facts necessary to prove Wiemann’s violations of the above-
referenced violations.
However,
disagreement exists between the two parties
as to the
amount of the penalty.
When determining acivil penalty, the Board is required to
consider the factors in Section 33(c)
and
Section 42(h) of the Act.
Wiemann argues that
an environmental consulting firm, SITEX Environmental, was retained to investigate the
release at Site Two.
Wiemarin further argues that SITEX’s reports submitted to the
Agency were the substantial equivalent of the information required to be included in the
20 day and 45
day reports.
Additionally,
Wiemann argues the penalty amount including
the costs of attOrney’ s fees and expert witness fees requested
by complainant is exorbitant.
Given these disputes, the Board believes the penalty issue should be addressed at hearing.
In summary, the Board denies complainant’s motion for summaryjudgment as to
Site One,
and grants partial
summaryjudgment as to Site Two relating to the issue of
liability only.
Wiemann’s cross-motion for summaryjudgment is denied.
Hearing shall
proceed consistent with this order.
IT IS
SO
ORDERED.
5
I, Dorothy M.
Gunn, Clerk ofthe Illinois Pollution Control Board, hereby certify
that the above order was adopted on the
/~
day of__________________
1996, by
avoteof
‘7-0
Dorothy M.
Øijnn, Clerk
Illinois Pollu~i6n
ControlBoard
