BEFORE THE
ILLiNOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF
ILLINOIS
)
ex rel. GARY W.
PACK,
)
CL~NW3
O~ir~
McHenry County State’s Attorney,
)
M~Y
28
2003
Vs.
Complainant,
PCB 01-43
STATE OF ILLINOIS
Poijutton
Control Board
)
(RCRA Enforcement)
MICHAEL STRINGINI,
)
)
Respondent.
)
COMPLAINANT’S MOTION FOR SUMMARY JUDGMENT
Complainant, the People ofthe State ofIllinois, Ex. Rel.Gary W. Pack, McHenry County
State’s Attorney, by David N. Stone, Assistant State’s Attorneypursuant to
35
Ill. Admin. Code,
Section 101.244; and
35
Iii. Admin. Code,
Section 103, respectfully moves thePollution Control
Board for entryofsummaryjudgment on Counts I through Count XI ofthe Complaint for Civil
Penalties. Unless the contrary is clearly indicated, all references to “Parts” or “Sections” are to the
Illinois Administrative Code, Title
35:
Environmental Protection. In support of said motion, the
Complainant states as follows:
ATTACHMENTS
1. The complaint herein was filed on August 30, 2000 on behalfofthe People ofthe State
ofIllinois by the McHenry County State’s Attorney, GaryW.
Pack at the request of the
Environmental Protection Agency (IEPA) for violations of the Illinois Environmental Protection
Act and the regulations promulgated pursuant to
said Act.
2. No answer was filed by the Respondent and all allegations ofthe complaint are taken as
denied pursuant to
Section 103.123.
3. Attached hereto as Exhibit A is a copy ofComplainant’s REQUEST TO ADMIT
PURSUANT TO 35 Ill. Adm.
Code Section
101.618.
4.
Attached hereto as Exhibit B is a copy ofRespondent’s RESPONSE to said REQUEST
TO ADMIT.
•
5.
Attached hereto as Exhibit C is a copy ofComplainant’s FIRST SET OF
INTERROGATORIES.
6. Attached hereto as Exhibit D is a copy ofRespondents’ ANSWERS to the FIRST SET
OF INTERROGATORIES.
7. Attached hereto as Exhibit E is a copy ofComplainant’s REQUEST FOR
PRODUCTION.
8. Attached hereto as Exhibit F is a copy ofRespondent’s RESPONSE to REQUEST FOR
PRODUCTION.
9. Attached hereto as Exhibit G is a copy ofa TRANSCRIPT, OF DEPOSITION OF
RESPONDENT taken on the
18th day ofMarch, 2003.
10. Attached hereto as Exhibit H is a copy ofthe SITE EVALUATION ZIMMIERMAN
PROPERTY UNION, ILLINOIS Prepared by Enviropact Northeast, Inc. dated February 10,
1988.
11.
Attached hereto as Exhibit I is a copy of the Remedial Investigation Report for RCRA
Closure Project Preparedby Residuals Management Technology, Inc.
dated July 1996.
12.
Attached hereto
as Exhibit J is
a copy of the Waste Volume
Investigation Report
and
Revised Closure Plan Prepared by Residuals Management Technology, Inc. dated January 1997.
13. Attached hereto as Exhibit.K is the Affidavit ofTina Kovasznay.
14. Attached hereto as Exhibit L is the AFFIDAVIT ofRichard Zimmerman.
15.
Attached hereto as Exhibit M is the AFFIDAVIT ofMichael Slattery.
UNDISPUTED FACTS
Background Allegations of Complaint:
1.
This
complaint
is
brought
on
behalf
of
the
People
of
the
State
of Illinois by McHenry County State’s Attorney, GARY W.
PACK and
at the request of the Illinois Enviromnental Protection Agency
(“Illinois EPA”), pursuant to Sections 42(a)
(d)
(e) and
(f)
of
the Illinois Environmental Protection Act
(“Act”)
415 ILCS
5/42(a)
(d)
(e)
and
(f),
as amended.
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1. There is no dispute over who
the plaintiffin this cause is and the board should take
judicial noticeofthe interest oftheIEPA in this matter
2. The Illinois Environmental Protection Agency
(“Agency”)
is an
administrative agency of the State of Illinois created by Section
4 of the Act,
415 ILCS 5/4, and is charged with the duty of
enforcing the Act.
2. TheBoard should takejudicial notice ofthe fact that the IEPA is an administrative
agencyofthe State ofIllinois.
3.
At
all
times
relevant
to
this
Complaint,
Norman
Zimmerman
(“Zimmerman”)
has owned and operated a facility located on McCue
Road,
south
of
Illinois
Highway
176
in
Union,
McHenry
County,
Illinois
(“facility” or “site”)
3. The affidavit ofRichard Zimmerman (Exhibit L) attached hereto affirms this allegation.
In
addition,
theadmissions ofRespondent indicate that the location of
the alleged hazardous waste
is not in dispute. See Exhibit A, REQUEST TO ADMIT 3, 4,
5,
6
and
7.
See Exhibit B,
RESPONSE 3,4,
5,
6
and 7.
4.
On
information and belief,
from approximately 1980
to
1984,
Mr.
Zimmerman
leased
the
facility
to
the
Defendant,
Michael
Stringini
(d/b/a M&G Metal
Reclaiming)
(“Stringini”),
who used
the property
for
the purpose
of
reclaiming metals
from foundry
sand.
4. Allegations ofparagraph
4. are admittedbyRespondent.
See Exhibit A, REQUEST TO ADMIT 4:
“During the calendar years
1980 through 1984 Stringini
orally agreed with Zimmerman to store and extract metal from foundry
sandon
the Zimmerman
Property.” See Exhibit B, RESPONSE
4: “True”. See also, Exhibit C INTERROGATORY 2:
“State theperiodoftime during
which you engagedin metal extracting activities on the
Zimmerman Property.” Exhibit D,
ANSWER
2: “AboutAugust 1980 Ibegan processing (although
I hadbeen at the site setting up foraperiodoftime precedingthen) Iwas shutdown Iiimid 1984, I
think
late spring or earlysummer.”
5.
Sloan Valve Company
(“Sloan”)
is
a corporation organized and
existing
under
the
laws
of
the
State
of
Illinois.
Sloan
generated some of the foundry sand stored at the site.
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5.
Allegations ofparagraph
5.
are admitted by Respondent
See Exhibit A, REQEUST TO ADMIT
5:
“During the calendar years
1980 through
1984 Michael
Stringini arranged
for
foundrysand from Sloan Valve Company to be hauled by Zimmerman to the
Zimmerman Property.” See Exhibit B RESPONSE
5:”Not
true
it was 1981-1984 as in #3
(the
answer does not deny the substance of the request to admit but onlychanges the yearsbyone year)
See also Exhibit A, REQUEST TO ADMIT 3: “During the calendar years 1980 through 1984
Michael
Stringini,
received
foundry
sand at the Zimmerman Property from the facility of Sloan
Valve Company located in Meirose Park, Illinois.” See Exhibit B RESPONSE 3: “Not true:
I
believe I began receiving ‘the sand from Sloan in late 1981, Sloan sand did not come to the site in
1980.”
6.
On
information
and
belief,
Mr.
Stringini
abandoned
the
property in
the mid-l980’s,
leaving
170
drums
of
foundry
sand,
2600 cubic yards
of foundry sand in piles and 120 cubic yards of
sand in surface impoundments that were stored at the facility.
6. Allegations ofParagraph 6. areadmittedbyRespondent.
See Exhibit H, Enviropact Report Introduction Tables. See also Exhibit K, Affidavit ofTina
Kovasznay. See also Exhibit CINTERROGATORY 8: “What is the quantity or yourestimate of
the quantityof
foundry
sandon theZimmermanProperty that wasnot stored in
containers at the
time thatyouceased operationson saidproperty?” See ExhibitDANSWER 8: “I do not recall
accuratelybut thenumber in theEnviropacts seems about right.” See ExhibitC
INTERROGATORY 9: “What is the numberor yourestimate ofthe number of
drums
containing
materials thatwere presenton theZimmermanProperty at thetime thatyou ceased operationson
saidproperty?” See ExhibitD ANSWER:
9:
“I do not recall accuratelybut the numberin the report
by Enviropact seems about right.”
7.
At
all
times
relevant
to
this
Complaint,
site
samples
that
were
taken
at
the
facility
indicated
that
the
foundry
sand
contained levels of lead, which exceeded regulatory limits.
7. Authenticityofengineering report admittedbyRespondent.
See Exhibit A,REQEUSTTOADMIT 1; “That eachofthe followingdocuments, exhibitedwith
this
request is genuine:
.
.
.Item
5:
Spiral
Bound document entitled“SITE EVALUATION
ZIMMERMAN
PROPERTYUNION, ILLINOIS”PREPAREDBY EVIROPACTNORTHEAST,
INC
dated February 10, 1988. Exhibit B, RESPONSETOREQUESTTOADMIT 1: “Item
No.5:
Admit that it is genuine but not that itwas entirelycorrect.”
See Exhibit K, Affidavit ofTinaKovasznayregarding lead excesses. Respondent has no evidence
to rebut this evidence.
8. From at least May 17,
1982, and continuing to the present,
the
Defendant
has not
had
a
permit
to
treat,
store
or
dispose of
hazardous waste at the facility.
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8. Allegations ofParagraph 8. are admitted by Respondent.
See the following:
Exhibit A,REQUESTTOADMIT 11: “Atno time did
Stringini have an RCRA permit pursuant to
415
ILCS
5/39(d)
for theZimmermanProperty.”
Exhibit B,RESPONSE 11: “I wasa reclaimerRCRA didnot apply tomy operations. Allmy output
was product. True”
ExhibitA,REQEUSTTOADMIT 12: “Atno time did
Stringini
have anRCRA permit pursuant to
35
Ill.
Adm.
Code 703.12 1 fortheZimmerman Property.
Exhibit B, RESPONSE 12: “Iwas a reclaimerRCRA didnot apply tomy operations. Allmyoutput
was product. True”
ExhibitA,REQUESTTOADMIT
15:
“Atno time did
Stringini
havea permit issuedby the
Illinois Environmental ProtectionAgencypursuant to 415 ILCS
5/39(a)
for theZimmerman
Property.”
Exhibit B,RESPONSE
15:
“Iwas areclaimer
and
did not requireanIEPApermit formy
operations. True”
ExhibitA,REQUESTTOADMIT 16:“Atno time did
Stringini
havea solid waste management
site permit pursuant to 35 Ill. Adm. CodeSections 807.20 1 and 807.202 for theZimmerman
Property.”
Exhibit B, RESPONSE 16: “Iwasa reclaimeranddid not require a solid waste permit formy
operations. Allmy outputwas product. True”
See also, Exhibit K,
AFFIDAVIT
TinaKovasznay.
9. From at least May 17, 1982,
and continuing to the present,
the
Defendant
has
not
had
a
permit
from
the
IEPA
to
develop
or
operate a solid waste management site.
9. Allegations ofParagraph 9. areadmittedby Respondent.
Seeparagraph 8. above.
10.
On information and belief,
Sloan, with the assistance of Mr.
Zimmerman,
performed
a
closure
of
the
site
under
35
Ill.
Adm.
Code
Part
•725,
Subpart
G.
On
June
9,
1998,
the
Illinois
EPA
approved
a
certification
of
closure
of
the
site
submitted by
Sloan after
the objectives
set
forth
in 35
Ill.
Adm.
Code
Part
742,
Tiered
Approach
to
Corrective
Action
Objectives
were
achieved.
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10. Allegations of Paragraph 10. are proved by Exhibit K AFFIDAVIT Tina Kovasznay and
Exhibit L, AFFIDAVIT, Richard Zimmerman.
Count I Allegations:
1. through
10.
Incorporated by reference. See information above.
11.
Section
21(f)
of
the
Act,
435
5/21(f),
provides,
in
pertinent
part
as
follows:(quoted
language
omitted
for
this
motion)
12.
Section
703.121
of
the
Illinois
Pollution
Control
Board
(“Board”)
Waste Disposal
Regulations,
35
Ill.
Adxn.
Code 703.121,
provides,
in
pertinent
part,
as
follows:
: (
quoted
language
omitted for this motion)
13. Section 703.150 of the
Board Waste Disposal Regulations, 35 Ill. Adm.
Code 703.150,
provides:
:
( quoted language omitted for this motion)
14. Section
724.101(a)
of
the Board Waste
Disposal Regulations,
35
III. Adm. Code
724.101(a),
provides
as
follows:
:
(
quoted
language
omitted
for
this
motion)
15.
Section
702.110
of
the
Board
Waste
Disposal
Regulations,
35
III.
Adm.
702.110,
provides in
pertinent part, the following definitions: (quoted
language
omitted
for
this motion)
16.
Section
721.102
of the Board
Waste Disposal
Regulations,
35
Ill.
Adm.
Code
721.102,
provides
in
pertinent
part,
as
follows:
: (quoted
language
omitted
for
this
motion)
17.
Section
721.103
of the Board
Waste Disposal
Regulations,
35
Ill.
Adm.
Code 721.103,
provides,
in
pertinent
part,
as
follows:
: (quoted
language
omitted
for
this
motion)
11. through 17. The statute
and
regulations speak forthemselves
and
needno further
evidentiaryproof.
18.
The foundry sand is material that was abandoned on Defendant
Zimmerman’ s
property.
18. Allegations ofParagraph
18. are admitted by Respondent.
See Exhibit A REQUEST TO ADMIT
7: “Sometime after or during the calendar year 1984
Stringini ceased all activities on the Zimmerman Property.
See Exhibit B RESPONSE 7:
“Ceased is
not the word I would use, I was locked out. In mid 1984 I made a verbal agreement with Norm
Zimmerman to
continue operations at the
site. ButJenyZimmermanrefused to honor the
agreement
and secured theproperty
againstmy entry.
“See also Exhibit A REQUEST
TOADMIT 8:“When
Stringini ceased all activities at the
Zimmerman Property, there remained piles offoundry sand and barrels offoundry sand and waste
materials that had been placed on the Zimmerman Property by Stringini or agents of Stringini.” See
Exhibit B RESPONSE
8:
“There was no waste sand in barrels.
Therewasa metal concentratefrom
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my processes in the barrels, which were high enough in copper to be sold to a smelter. I would have
sold the materials in barrels
for aprofit, the material in
barrels was
not waste: this wasa valued
product. Had I notbeen locked out Iwouldhave sold the
barrels.
There were
two rough groups of
sand: processed and unprocessed sand, the processing of the sand yielded two products:
metal
drums and reclaimed sand. When
I hadaccumulatedenough reclaimed sand, it could be sold to a
cement kiln.”
See also ExhibitAREQUESTTOADMIT 9: “Since thetime that
Stringini ceased all activities on
the
Zimmerman Property, Stringini
didnotremove
any
ofthe stored foundrysand thatwas thenon
the
Zimmerman Property.” See
Exhibit B RESPONSE 9: “True”. See also ExhibitG
DEPOSITIONPages 19 and 20 lines
21-24 and lines
1-18 respectively:
“Q. Was any sand removed from the site?
A.
Uh,
no.
Q. Why not?
A.
I didn’t have enough of it. When they buy sand,
uh, they would only pay a dollar or two a yard—or I’m
sorry—a ton.
You have to have maybe at least a
thousand tons.
•
Q.
Okay.
A. And they usually like to buy, you know,
10,000,
20,000 tons.
Otherwise,
they don’t want to mess with
it.
Q.
Okay.
• A.
And
it has to be free of metal.
Q.
What would you estimate the number of tons that
you had received to the premises over the three
years?
A.
Oh, yeah.
Sorry?
Q. What is your estimate of the number of tons of
foundry sand that you received over the three—
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A.
You know,
I’d be guessing.
Q. What would your guess be?
A. Five hundred tons. Maybe a thousand.
.
19.
The foundry sand located at
the
facility constituted
solid
waste
as
that
term
is
defined
in
the
Board
Waste
Disposal
Regulations.
19. Allegations ofParagraph 19.
are
conclusions based on preceding facts and law and need
no further evidentiary proof.
20.
Section 721.120(a)
of the Subpart C
of Part 721 of the Board
Waste
Disposal
Regulations,
35
IlL.
Adm.
Code
721.120(a),
provides,
in pertinent part,
as follows:
(quoted language omitted.
for this motion)
21.
Section 721.124
of
the Board Waste Disposal
regulations,
35
Ill.
Adm.
Code 721.124,
in effect in
1988,
provided as
follows:
(quoted language omitted for this motion)
22. Effective as of the filing of this complaint,
Section 721.124
of
the
Board
Waste
Disposal
regulations,
35
Ill.
Adxn.
Code
721.124,
provides
as
follows:
(quoted
language
omitted for this
motion)
20 through 22.
The regulations speak for themselves andneed no further evidentiary proof.
23.
The
foundry sand stored at the facility contained lead which
exhibits
the
characteristic
of
toxicity
as
defined
in
Section
721.124
of
the
Board
Waste
Disposal
regulations
and
was
a
hazardous waste identified by number D008.
23. Proved by engineering reports:
See, Exhibit
H,
SITE EVLAIJTION, analyses results.
See
also,
Exhibit
I,
REMEDIAL
INVESTIGATION
REPORT,
analyses
results.
Respondent has no evidence to the contrary.
24.
On
information and belief,
from
at
least
January
12,
1988
until
June
9,
1998,
the
Defendant
stored
and/or
disposed
of
foundry sand containing
lead,
hazardous waste
as defined
in the
Board Waste Disposal Regulations,
at the facility.
25.
The
Defendant
conducted
a
hazardous
waste
storage
and/or
hazardous
waste
disposal
operation
without
a
RCRA
permit
issued
• by the Agency for the facility,
in violation of Section 21(f)
of
the
Act
and
Sections
703.121
and
703.150
of
the
Board
Waste
Disposal
Regulations.
26.
Plaintiff
requires
all
RCRA storage or
disposal
sites
to
post
financial
assurances
pursuant
to
Section
21(f)
of
the Act
and
Sections 725.243,
725.245 and 725.246
of the Board. Waste Disposal
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Regulations.
24. through 26. AllegationsofParagraphs 24. though 26. are
conclusions based on
preceding allegations and law
andneed no further evidentiary proofthan that offered in the prior
allegations.
Count II Allegations:
1. through
10. Incorporated by reference. See information above.
11. Section 725.271 of the Board Waste Disposal Regulations,
35
Ill.
Adin.
Code 725.271(a)
provides as follows:
(quoted language
omitted for this motion)
12. Section 725.273(a) and (b) ofthe Board
Waste Disposal Regulations,
35
Ill. Adm. Code
725.273(a) and (b)provides as follows: (quotedlanguage omitted for
this
motion)
13.
Section
728.150(a)
of the Board Waste Disposal Regulations, 35
III. Adm. Code
728.150(a), provide as follows: (quoted language omitted for thismotion)
11. through 13. The regulations speak for themselves andneedno further evidentiaryproof.
14.
On
information
and
belief, from
at least
January
12,
1988
until
at least
November
3,
1994, the Defendant failed to
maintain the drums of hazardous waste in good condition
and
keep the drums
closed during storage in
violation of Sections
725.271
and
725.273(a)
of the
Board Waste Disposal Regulations.
14. Allegations ofParagraph 14. are admitted by Respondent.
See information provided inCount I Paragraph 18 above.
See also, Exhibit G, DEPOSITION Page 27 lines
12-23:
“Q. Where did these drums come from?
A.
I’m sorry? The empty drums?
Q.
Yeah.
A. The empty drums were scrap metal empty drums.
Q. Where did you get them from?
A.
It could have been from the smelter
H. Kramer.
Q. Were they new drums?
A. They were used drums.
Q. Were they lids?
A.
No.
.
.
See also,
Exhibit
G, DEPOSITION Page 39 lines 16-20:
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“Q.
Okay. So as
far as
you’re concerned, during the time that you were
operatingon the
property,
theproperwayofstoring those—that material
was to have it in open
drums?
A.
Yeah.
Scrap metal.”
15. On information and belief,
from at least April
14,
1992 until
at
least
November
3,
1994,
the
Defendant
stored
hazardous
waste
at the facility in violation of Section 728.150(a)
of the Board
Waste
Disposal
Regulations.
15.
Allegations proved by information provided in Count I, Paragraph
18.
See also, Exhibit I, REMEDIAL INVESTIATION REPORT.
See also, Exhibit K, AFFIDAVIT, Tina Kovasznay.
Count III Allegations:
1.
through
10. Incorporated by reference. See information above.
1.1.
Section 725.114 of the Board Waste Disposal Regulations 35
Ill. Adm.
Code
725.114, provides as
follows:
(quoted language
omitted for this motion)
11. The regulations
speak for themselves and need no further evidentiary proof.
12. On information and belief,
from at least January 12,
1988
until at least November
3,
1994,
the Defendant failed to control
entry to the site at all times through the gates or other
entrances,
failed to post a “Danger-Unauthorized Personnel Keep
Out” sign and failed to prevent the unknowing entry and minimize
the possibility of unauthorized entry of persons or livestock
onto the active portion of the facility in violation of Section
725.114 of the Board Waste Disposal Regulations.
12. Allegations ofParagraph 12. areadmittedbyRespondent.
See
information provided
in Count I Paragraph 18 above.
See also Exhibit G DEPOSITION Pages 44 &
45
lines 8-24 and 1-17 respectively:
“Q.
Was there any,
uh,
fencing or other barriers
around the—foundry sand that was dumped on the
property?
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A. Zimmerman had—The only entrance to the property had
a gate.
Q.
(no audible response.)
A.
And
he kept
it secured. Somebody living up on that
hill there.
Q. Was there any other fencing other than the gate
where the road was?
A.
Un,
I don’t believe so.
I don’t really remember if
there were any fences around like the farm or anything
like that.
I don’t remember.
Q.
But you didn’t arrange for any particular fencing..
A. No.
Q. Or boundaries to enclose the foundry sand that was
delivered to the site?
A. No. Pretty much it enclosed itself.
Q.Were there any signs posted on the premises asto
Un—
A. Metal reclaimer.
Q. -inert danger,
or anything like that with regard to
the materials that were there.
A. There was nothing dangerous about the material.
I
brought my children there.
• Q. Let me ask it this way. Looking at the photograph
that you produced to me that says,
uh,
M.
Stringini,
Metal Reclaimer, August 1980,
is that the only sign
that you had?
A.
Yeah. There—That was right there by the gate,
yeah.
Q.
There were no other signs?
A. Not that
I remember.”
See also, ExhibitF.RESPONSE page 1 (picture at top left).
See also, Exhibit A,REQUEST
TO ADMIT
14: “Duringand afterthe time that Stringini
stored
materials or engaged in metal extracting on the
ZimmermanProperty, Stringini
didnotmaintain
site entry
controlson the ZimmermanProperty
as described in 35
Ill.
Adm. Code 725.114.” See
Exhibit B, RESPONSE 14: “I wasa
reclaimer the statute did not apply tomy operations. And
in
mid 1984Zimmerman seizedmyequipmentand
materials and secured the
property. True”
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Count IV Allegations:
1. through
10. Incorporated by reference.
See information above.
11. Section 725.115
of the Board Waste Disposal Regulations 35
Ill. Adm.
Code 725.115, provides,
in pertinent part,
as follows:
(quoted language omitted for this motion)
12. Section 725.274 of the Board Waste Disposal Regulations,
35
Ill.
Adm. Code 725.274, provides as follows:
(quoted language
omitted for this motion)
11. through 12. The regulations
speak for themselves and need no further evidentiaryproof.
13. On information and belief,
from at least January 12,
1988
until
at least November 3,
1994,. the Defendant failed to comply
with general inspection requirements, maintain an inspection log
or summary and inspect the container storage area in violation of
Sections 725.115 and 725.274 of the Board Waste Disposal
Regulations.
13. Allegations ofParagraph 13. areadmittedbyRespondent.
See ExhibitAREQUESTTOADMIT 13: “Duringand after the time that
Stringini
stored materials
or engaged in metal extracting on the Zimmerman. Property,
Stringini
did not keep records of
inspections as described in 35 Ill. Adm. Code725.115 for the ZimmermanProperty.” See ExhibitB
RESPONSE 13: “I was a reclaimer the statute did not
apply to my operations. All my output was
product True”
Count V Allegations:
1.
through
10.
Incorporated by reference. See information above.
11. Section 725.173
of the Board Waste Disposal regulations 35
Ill.
Adin.
Code 725.173, provides,
in part,
as follows:
(quoted
language omitted for this motion)
12. Section
725.175 or the Board Waste Disposal Regulations,
35
Ill.
Adin.
Code 725.175 provides as follows:
(quoted language
omitted for this motion)
13. Section 725.113(b)
of the Board Waste Disposal Regulations,
35
Ill.
Adin.
Code 725.113(b), provides as follows:
(quoted
language omitted for this motion)
11. through
13. The regulations speak for themselves
and need no
further evidentiaryproof
14.
On information and belief,
from at least January 12,
1988
until at least November 3,
1994,
the Defendant failed to have a
waste analysis plan available at the site,
failed to make waste
analysis and dates of waste storage available in the operating
record,
and failed to submit annual reports in violation of
Sections 725.173 and 725.175 of the Board Waste Disposal
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12
Regulations.
14.
Allegations ofParagraph
14.
are
admitted by Respondent
See Exhibit A, REQUEST TO ADMIT
17: “During and after the time that
Stringini
stored
materials or engaged in metal extracting on theZimmerman Property,
Stringini
did not keep at the
Zimmerman Propertya
written operating record
and a
waste analysis plan as described in 35 Ill.
Adm. Code
Section 725.173
and Section 725.113.” See Exhibit B,
RESPONSE
17: “Iwas a
reclaimer and didnot require awaste analysisplan for
my operations. All my output was product.
True”
15. On information and belief,
from at least January 12, 1988
until at least November 1,
1993,
the Defendant failed to develop
and follow a written waste analysis plan in violation of Section
725.113(b)
of the Board Waste Disposal Regulations.
15.
Allegations ofParagraph
15
are
admitted by Respondent
See information provided in prior paragraph
14.
Count VI Allegations:
1. through 10. Incorporated by reference. See information above.
11. Section 725.131 of the Board Waste Disposal Regulations,
35
Ill.
Adxn.
Code 725.131, provides as follows:
(quoted language
omitted for this motion)
12. Section 725.351 of the Board Waste Disposal Regulations,
35
Ill.
Adm.
Code 725.351, provides as follows:
(quoted language
omitted for this motion)
11-12. The regulations speak for
themselves and need no
further
evidentiaryproof
13.
On information and belief, from at least January 12,
1988
until
at
least
November 3,
1994,
the Defendant failed to contain
releases of foundry sand in violation of Section
725.131 of the
Board Waste Disposal Regulations.
13.
Allegations ofParagraph 13.
are admitted by Respondent.
See informationprovided in Count IParagraph 18 above. See also Exhibit A,REQUESTTO
ADMIT 18: “During and afterthe time that Stringini stored materials or engaged in metal
extracting on the Zimmerman Property,
Stringini
did not cover the piles of
foundry sand
to control
wind dispersal and undertake other activities as described in 35 Ill. Adm. Code 725.113
(typo
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13
should have been
725.131)
and Section 725.351
for the Zimmerman Property.” See Exhibit B,
RESPONSE: “Iwas a reclaimerthe statute did not apply to my operations. Allmy outputwas
product. True”
14.
On information and belief,
on
or
about
January
12,
1988,
the
Defendant failed to protect foundry sand from dispersal by
the
wind in violation of Section 725.351 of the Board Waste Disposal
Regulations.
14. AllegationsofParagraph 14. are admittedbyRespondent.
SeeExhibit A,REQUEST TOADMIT 18:
“Duringand after thetime that Stringini
stored
materials or engaged in metal extracting on the Zimmerman Property,
Stringini
did not cover the
piles of
foundry
sand to control wind dispersal and undertake other activities as described in 35 Ill.
Adm. Code 725.113 and Section 725.35 1 for theZimmermanProperty.” See Exhibit B,
RESPONSE: “I was a reclaimer the statute did not apply to my operations. All my output was
product. True”
Count
VII
Allegations:
1. through
10. Incorporated by reference. See information above.
11. Section 725.135 of the Board Waste Disposal Regulations,
35
Ill.
Adin.
Code 725.135, provides as follows:
(quoted language
omitted for this motion)
12. Section 725.137 of the Board Waste Disposal Regulations,
35
Ill.
Adm.
Code 725.137, provides as follows:
(quoted language
omitted for this motion)
13. Section 725.151(a)
of the Board Waste Disposal Regulations,
35 Ill. Adm.
Code 725 151(a),
provides as follows:
(quoted
language omitted for this motion)
14. Section 725.155 of the Board Waste disposal Regulations,
35
Ill.
Adm.
Code 725.155 provides as follows:
(quoted language
omitted for this motion)
11.-14. The regulations speak for themselves and needno further evidentiary proof
15.
On
information
and
belief,
from
at
least
January
12,
1988
until at least November 3,
1994,
the Defendant failed to make
proper emergency arrangements by failing to provide adequate
aisle space,
failed to inform local authorities of the presence
of hazardous waste,
failed to have a contingency plan,
and failed
to identify a person as emergency
coordinator in violation of
Sections 725.135,
725.137,
725.151(a)
and
725.15.5 of the Board
Waste Disposal Regulations.
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14
15.
Allegations ofParagraph
15.
are admittedbyRespondent.
See Exhibit A, REQUEST TO ADMIT 24: “During and
after
the time that Stringini stored
materials or engaged in metal extracting on the Zimmerman Property, Stringini did not maintain
aisle space on the Zimmerman Property as described in 35 Ill.
Adm.
Code 725.135,
did not
attempt to make arrangements regarding emergency responses as described in 35
Ill.
Adm. Code
725.137, did not have a contingency plan as described in 35 Ill. Adm.
Code 725.151
and did not
have at least one employee on call
for an emergency as described in 35 Ill. Adm.
Code
725.155.”
See Exhibit B, RESPONSE
24:
“False, Repeat above, I had not authority to enter the site. I was
advised by my lawyers Claussen Miller that I had to
stay out.”
See
also,
information provided in Count I Paragraph
18 above.
Count
VIII Allegations:
1. through
10.
Incorporated by reference. See information above.
11. Section
725.190 of the Board Waste Disposal Regulations,
35
Ill.
Adm.
Code 725.190, provides,
in pertinent part,
as follows:
(quoted language omitted for this motion)
12. Section 725.194(a)
of the Board Waste Disposal Regulations,
35 Ill.
Adin..
Code 725.194(a)
provides as follows:
(quoted
language omitted for this motion)
11.-12. The regulations speak for
themselves and need no further evidentiaryproof
13. On information and belief,
on or about June 17,
1993,
the
Defendant failed to install, operate and maintain a groundwater
monitoring system, and failed to report groundwater monitoring
information in violation of Sections 725.190 and 725.194 of the
Board Waste Disposal Regulations.
13. Allegations ofParagraph 13. are admittedbyRespondent.
See Exhibit A, REQUEST TO ADMIT 25: “During and after the time that Stringini stored
materials or engaged
in metal extracting on the Zimmerman Property,
Stringini did not keep
records ofgroundwater analysis and report to the IllinoisEPA groundwater monitoring
information as described in 35
Ill. Adm.
Code
725.194.”
See Exhibit B, RESPONSE
25:
“True,
but Iwas a reclaimer the statute did not apply tomy operations.
Allmy output wasproduct. I
was aware ofthe geology and had accounted
for
it, the borehole toxicityresults testif~’
to
that. I
did have a well on the site but the statute did not apply.”
See also, Exhibit A, REQUEST TO ADMIT
19: “During and after the time that Stringini stored
materials or engaged in metal extracting on the Zimmerman Property, Stringini did not
implement a ground water monitoring program as described in 35 Ill.
Adm. Code 725.190.”
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Exhibit B, RESPONSE TO REQUEST TO ADMIT 19:
“I was a reclaimer the statute did not
apply to my operations. All my output was product. True”
CountIX Allegations:
1. through
10.
Incorporated by reference. See information above.
11.
Section
21(d)
of
the
Act,
435
ILCS
5/21(d),
provides,
in
pertinent
part
as
follows:
(quoted
language
omitted
for
this
motion)
11. The statute speaks for itself
and
need
no further
evidentiaryproof.
12. Section
807.201 of the Board Waste Disposal Regulations,
35
Ill.
Adin.
Code 807.201 provides,
in pertinent part,
as follows:
(quoted language omitted for this motion)
13. Section 807.202(a)
of the Board Waste Disposal Regulations,
35
Ill.
Adm.
Code 807.202(a)
provides as follows:
(quoted
language omitted for this motion)
14. Section 807.104 of the Board Waste Disposal Regulations,
35
Ill. Adm. Code 807.104 provides,
in pertinent part,
the following
definitions:
(quoted language omitted for this motion)
12.-14. The regulations speak for themselves and need no further evidentiaryproof
15.
On information and belief,
from at least April 30, 1991 until
•
at least November 3,
1994, the Defendant caused or allowed the
development and operation of a new solid waste management
site
without a permit in violation Section 21(d)
of the Act and
Sections
807.201 and 807.202
of the Board Waste Disposal
Regulations.
15.
Allegations ofParagraph
15.
are admitted by Respondent.
See Exhibit A, REQEUST TO ADMIT 16: “At no time did Stringini have a•solid waste
management site permit pursuant to
35 Ill. Adm. Code Sections 807.20 1
and 807.202
for the
Zimmerman Property.” See Exhibit B, RESPONSE
16:
“I was a reclaimer and did not require a
solid waste permit for my operations. All my output was product. True”
CountX Allegations:
1.
through
10. Incorporated byreference. See information above.
Section
21(e)
of the Act,
435 5/21(e),
provides,
in pertinent
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16
part as follows:
(quoted language omitted for this motion)
11. The statute speaks for itself and needs no further evidentiaryproof
12. On information and belief,
from at least January
12,
1988
until at least November
3,
1994,
the Defendant disposed,
treated,
stored and abandoned waste without meeting the requirements of
the Act or the regulations in violation of Section 21(e)
of the
Act.
12. Allegations ofParagraph 12. areadmitted byRespondent.
See
all information provided above.
Count XI Allegations:
1. through
10.
Incorporatedby reference. See information above.
11. Section 21(a)
of the Act,
435 5/21(a), provides,
in pertinent
part as follows:
(quoted language omitted for this motion)
11. The statute speaks for itselfand needs no
further evidentiary
proof
12. On information and belief,
from at least January 12,
1988
until at least November 3,
1994,
the Defendant caused or allowed
the open dumping of waste
in violation of Section 21(a)
of the
Act.
12. AllegationsofParagraph 12.
are admitted by Respondent.
See all informationprovided above.
AGRUMENT
SummaryJudgment is warrantedwhen there is no genuine issue of fact.
Section
101. 244 ofthe Pollution Control Board rules provides that a party may
seasonally move for Summary Judgment. A motion for summaryjudgment should be granted
when pleadings, depositions, and admissions on file, together with affidavits, reveal that there is
no genuine issue as to any material fact and that moving party is entitled
to judgment as a matter
oflaw.
.
In re Estate of Herwig,
App. (2 Dist.1992)
178 Ill.Dec. 641, 237 Ill.App.3d 737, 604
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17
N.E.2d
1164, appeal denied
186 Ill.Dec. 381,
151 Ill.2d
564,
616 N.E.2d 334.
Jacobson v.
General Finance Corp.,
(App 2 Dist.1992)
170
Ill.Dec. 441, 227 Ill.App.3d
1089,
592
N.E. 2d
1121. Cram and Forster Managers
Corp. v. Resolution Trust Corp., 1993,
189
Ill.Dec.
756,
156
ILL.2d 384, 620 N.E.2d 1073, 35 A.L.R.Sth 813.
THERE IS NO GENUINE
ISSUE OF FACT IN THIS CASE.
All ofthe allegations ofComplainant’s complaint are either admitted by the Respondent
or are proved by undisputed documentation and affidavits. It is clear that the Respondent
between 1980
and
1998 stored and/or disposed offoundry sand on the subject premises. The
foundry sand was found to be hazardous pursuant to the Environmental Protection Act and
Regulations. Such storage and disposa; ofthe foundry sand was done without any permits from
the Illinois Environmental Protection Agency. The foundry sand was addressed through closure
activities performed at the site and completed (by persons other than Respondent) in
1998.
Respondent maintains that he was “locked out” ofthe premises and therefore is not
legally responsible for the deposits. He claims that he was a “reclaimer” and therefore not subject
to the permitting requirements ofthe law.
Both ofthese contentions are matters oflaw
and not
fact. Complainant asserts that neither contention is supported by law.
RESPONDENT’S
CLAIM
TO BEING “LOCKED OUT” IS NO DEFENSE TO
THE
VIOLATIONS OF THE
ACT.
Respondent initiated the introduction ofthe foundry sand on the Zimmerman property
pursuant to
an agreement he had with Sloan Valve Company and an oral lease agreement with
Zimmerman. He collected
fees from
Sloan Valve to dispose of the foundry sand which he knew
to
be “special waste”.
(See Exhibit B RESPONSE
TO REQUEST TO ADMIT 20
and Exhibit G
DEPOSITION 26:18) He did not pay his rent
and also failed to pay Zimmerman forhauling
charges. He was in default. (See Exhibit G DEPOSITION 31:
13) Respondent was in violation of
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the Environmental Protection Act and the Regulations well before he was told that he was no
longer welcome on the Zimmerman property. There is no credible evidence that Respondent was
barred from participating in the RCRA closure ofthe property but there
is evidence that he failed
to participate.
(See, Exhibit A pgs
1-2 to
Exhibit L, AFFIDAVIT, Richard Zimmerman and
Exhibit B, RESPONSE TO REQUEST TO ADMIT 10) The claim to
being “locked out” is
a red
herringwith no basis in fact or law.
RESPONDENT IS
NOT EXEMPT FROM THE
ENVIRONMENTAL PROTECTION
ACT
AND
REGULATIONS
BY VIRTUE OF BEING A “RECLAIMER”.
The
Environmental ProtectionAct andthe Regulations
do
not define or provide
exemption forpersons designated as “reclaimers”.
The regulations do cover materials that are
reclaimed. However, the undisputed facts in this case demonstrate thatRespondent was
accumulating hazardous solid waste “speculatively” as provided for in Section 721.102
(e)(2)(C).
In order to fall outside the regulatory framework, Respondent would have to show that
75
by
weight or volume ofthe foundry sand at the begirming Of the period (calendaryear commencing
January 1) was recycled or transferred to a different site for recycling. Section
721.101(c)(8).
Respondent clearly admits that except for some metal that he extracted, none ofthe foundry sand
was removed during the three plus years
that he
engaged in the accumulation of foundry sand on
the Zimmerman Property.
(See Exhibit G, DEPOSTION 19:2 1) Respondent admits that the metal
extracted was about 2
by volume ofthe stored and/or disposed foundry sand. (See Exhibit G,
DEPOSITION 22:2)
Pursuant to Section 721.102, the foundry sand was, therefore, a solid waste.
Respondent states that the foundry sand was non-hazardous when he deposited it on the
Zimmerman property. There is no
evidence to support this assertion. Regardless, Respondent was
required to have a permit
from the IEPA for the storage or disposal ofthe non-hazardous waste.
See Section 21(d) ofthe Act and Sections 807.201,
807.202(a), 807.104; Section 21(e) ofthe Act
and 21(a) ofthe Act all cited
in Counts
IX, X, and XI.
The foundry sand is also a solid waste because it was disposed of at the site (See Section
721.1 02(b)(1)). Most ofthe foundry sand was piled on the ground at the Zimmerman property.
After ceasing operations, Mr. Stringini never removed any foundry sand from the site (See
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ExhibitB RESPONSETOREQUEST TOADMIT 9). The
foundry
sandwas, therefore,
abandoned by being disposed ofin that the foundry sand was placed on the land so that such
solid waste, and here, hazardous waste, or any constituent thereofmay enter the environment
(See definition ofsolid waste at Section 721.1Q2(b)(1), the definition of“disposal(RCRA)” in
Section 702.110 and the definition of “disposal” in Section 720.110).
In this case, disposal has
been demonstrated and the disposal of foundry sand at the site meets the definition of“disposal
(RCRA)” since the foundry sand was, by analyses, shown to
be hazardous by either the EP
Toxicity or Toxicity Characteristic Leaching Procedure (“TCLP”) test. Analyses included in the
February 10,
1988 Enviropact Northeast, Inc.
Site Evaluation Report showed that foundry sand in
drums exceeded the EP Toxicity lead level. Analyses included in the July 1996 Remedial
Investigation Report for RCRA Closure Project prepared by Residuals Management Technology,
Inc.
(“RMT”) showed that the foundry sand in piles as well as in the surface impoundment
(“pond”) exceeded the TCLP lead level
SUMMARY JUDGMENT ON COUNTS ITHOURGH XI SHOULD BEALLOWED.
Complainant has cited statutory and regulatoryauthority in Counts I throughXI that
support its contention that Respondent operated a hazardouswaste facilitywithout a permit in
violation of the Environmental Protection Act and Regulations (Count I); Failed to Properly
Store Hazardous Waste (Count II); Failed to Institute Proper Site Entry Controls (Count ifi);
Failed to Conduct Property Inspections and Maintain Proper InspectionRecords (Count IV);
Failed to Keep and Maintain Proper Records at the Facility (Count V); Failed to Take Hazardous
Waste Release containment Measures (Count VI); Failed to Make Proper Emergency and
Contingency Plan Arrangements (Count VII); Failed to Properly Implement a Groundwater
Monitoring Program (Count Vifi); Conducted a Solid
Waste Management Site Without a Permit
(Count IX) Stored and Abandoned Waste (Count X) and Engaged in Open Dumping (Count XI).
All ofthe factual allegations ofthese eleven counts have either been admitted by the
Respondent or are undisputed by virtue ofdocumentation and affidavits
attached to this motion
for summaryjudgment.
For the foregoing reasons, Complainant should be granted summaryjudgment on Counts
I through XI.
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THE
POLLUTION CONTROL BOARD SHOULD ASSESS A REASONALBE CIVIL
PENALTY
Section 42 ofthe
Environmental Protection Actprovides
in
relevant parts as follows:
“(a)
Except as provided in this Section, any
person that violates any provision of this Act or
any regulation adopted by the Board,
or any permit
or term or condition thereof, or that violates any
determination or order of the Board pursuant to
this Act,
shall be liable to a civil penalty of
not to exceed $50,000 for the violation and an
additional civil penalty of not to exceed $10,000
for each day during which the violation continues;
such penalties may,
upon order of the Board or a
court of competent jurisdiction, be made payable
to the Environmental Protection Trust Fund,
to be
used in accordance with the provisions of the
Environmental Protection Trust Fund Act.”
“(b) (3) Any person that violates Sections 21(f),
21(g),
21(h)
or 21(i)
of this Act,
or any RCRA
permit or term or condition thereof, or any filing
requirement,
regulation or order relating to the
State RCRA program,
shall
be liable to a civil
penalty of not to exceed $25,000 per day of
violation.”
“(h)
In determining the appropriate civil penalty
to be imposed under subdivisions
(a),
(b) (1),
(b) (2)
,
(b) (3)
,
or
(b) (5)
of this Section, the
Board is authorized to consider any matters
of
record in mitigation or aggravation of penalty,
including but not limited to the following
factors:
(1)
the duration and gravity of the violation;
(2)
the presence or absence of due diligence on
the part of the violator in attempting to comply
with requirements of this Act and regulations
thereunder or to secure relief therefrom as
provided by this Act;
(3)
any economic benefits accrued by the violator
because of delay in compliance with requirements;
(4)
the amount of monetary penalty which will
serve to deter further violations by the violator
and to otherwise aid in enhancing voluntary
compliance with this Act by the violator and other
persons similarly subject
to the Act; and
(5) the number,
proximity in time,
and gravity of
previously adjudicated violations of this Act by
the violator.”
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In this caseRespondent is in violation ofSection 21(f) oftheAct under Count I alone, and is
therefore subject to a civil penaltyof$25,000.00 per day for each dayof
the
violation. The
evidence shows that the violation occurred from at least August of1980 to December 1998. The
number ofdays between September
1,
1980 and December
1,
1998 calculates to 6,661
days.
Therefore the potential civil penalty for violation ofCount I is
$166,525,000.
Under other Counts ofthe complaint the civil penalty would be limited
to $50,000 plus
$10,000 per day or potential civil penalties of$66,660,000 for each such count.
The duration and
gravity ofthe violations is quite obvious. While Respondent is arguably the
most culpable ofthe three parties involved,
he has had no consequence imposed on him since the
IEPA commenced enforcement action. The other two parties, Sloan and Zimmerman took
full
responsibility for the closure at a cost in excess of $600,000.00 (See Exhibit L, AFFIDAVIT,
Richard Zimmerman and Exhibit M, AFFIDAVIT, Michael Slattery.)
Respondent has waived any financial hardship or poverty plea. (See Exhibit G,
DEPOSITION
5:13).
There is a complete absence ofdiligence on the part ofthe Respondent to seek permits, to
comply with the applicable requirements while operating at the site or to participate in the RCRA
closure ofthe property.
Respondent received an economic benefit in that he was paid by Sloan valve for the material
that he stored and/or disposed on the Zimmerman property, did not pay his rent on the property,
did not incure any cost that would have been required to
operate in compliance with the Act and
has incurred no
expense for closure ofthe site.
In reviewing the entire record, it is clear to Complainant that no amount of money would
deter respondent from engaging in similar activity in the future and it is unlikely that there are
others similarly disposed to
openly ignore the Act in the same manner as this Respondent.
Complainant is not aware ofother enforcement actions against this Respondent.
Complainant recommends that the civil penalty be no less than one third of the estimated cost
of closure or $200,000.00
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Conclusion
Complainant requests that the Pollution Control Board grant Summary Judgment on
Counts I through XI and
assess a reasonable civil
penalty in an amount
to
be set by the Board but
not less than $200,000.00 combined for all counts.
David N. Stone
Assistant State’s Attorney
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CERTIFICATE OF SERVICE
I, David N.
Stone, an
Assistant State’s Attorney in
this case,
do certif~’
that I caused to be
sent by
United Parcel
Service this
27th
day of May, 2003,
the foregoing COMPLAiNANT’S
MOTION
FOR SUMMARY JUDGMENT to
the nersññ~1isted
on the
list.
Case No. PCB
0 1-43
NAME:
MR
MICHAEL STRINGINI
1108
5 WESTOVER
LANE
SCHAUMBUIRG IL 60193
POLLUTIONCONTROLBOARD
CLERK
JAMES R. THOMPSON CENTER STE
11-500
100 W. RANDOLPH STREET
CHICAGO IL 60601
GaryW. Pack
McHenry County State’s Attorney
David N. Stone
Assistant State’s Attorney
2200 N. Seminary Ave.
Woodstock, Ii 60098
815
334 4858
Attorney No. 02744309
INTEREST:
Respondent
PCB
SERVICE LIST
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Li is
A
vi
flabb
