Respondents.
NOTICE OF FILING
CERTIFICATE OF SERVICE
MOTION FOR WAIVER OF REQUIREMENTS
PEOPLE’S POST-TRIAL BRIEF
TABLE OF CONTENTS
Il. VIOLATIONS 6
I. INTRODUCTION
II. VIOLATIONS
A. John Prior’s Violation of Section 21(a) of the Act at the Gompers site.
B. John Prior’s Violation of Section 21 (p)(1) of the Act at the Gompers site.
C. John Prior’s Violation of Section 21 (p)(6) of the Act at the Gompers site.
J. The Respondents’ Violation of Section 12(a) of the Act.
2. The Respondents’ releases caused or tended to cause water pollution.
2. Count XII6
K. The Respondents’ Violation of Section 12(d) of the Act.
1. James Mezo’s Transfer Argument for the Mezo Oestreich site is WithoutMerit.
III. THE BOARD SHOULD IMPOSE A SUBSTANTIAL MONETARY
A. Section 33(c) Factors.
1. The character and degree of injury or interference.
2. The social and economic value of the pollution source.
3. The suitability or unsuitability of the pollution source.
4. The technical practicability and economic reasonableness of compliance.
5. Subsequent compliance.
1. The duration and gravity of the violation.
2. The presence or absence of due diligence.
5. Previously adjudicated violations of the Act.
A. Statutory Maximum Penalty.
2. Reasonableness of attorney’s fees.
ATTACHMENT I

Due to the volume of this pleading,
please contact the Clerk’s Office
312/814—3629

BEFORE THE ILLINOIS POLLUTION

CONTROL BOARD

PEOPLE OF THE

STATE OF ILLINOIS,

)

Complainant,

~I/1TEOF

p0//ut!

ILLINOIS

)

PCBNO.

02-177

~flCont~0j8

)

(Enforcement)

JOHN

PRIOR,

dibla

PRIOR OIL COMPANY,

amd JAMES MEZO,

dlbla

MEZO OIL

)

COMPANY,

Respondents.

NOTICE

OF FILING

To:

John Prior

James

Mezo

421

North

Morrison

418

East Main

Street

Central

City,

Illinois 62801

P.O.

Box 220

Benton,

Illinois 62812

PLEASE TAKE

NOTICE that on this

date

mailed for filing with

the Clerk of the Pollution

Control

Board of the State of Illinois, a

MOTION

FOR WAIVER OF REQUIREMENTS and

PEOPLE’S POST-TRIAL BRIEF,

copy of which is attached

hereto and

herewith served

upon

you.

Respectfully submitted,

PEOPLE OF THE STATE OF

ILLINOIS

LISA MADIGAN

Attorney General

of the

State

of Illinois

MATTHEW

DUNN, Chief

Environmental Enforcement/Asbestos

Litigation

Division

BY:~41L~

.6~LL~

SALLY~.CARTER

Assistant Attorney General

Environmental Bureau

500 South

Second Street

Springfield,

Illinois

62706

21 7/782-9Q31

Dated:______________

CERTIFICATE OF SERVICE

hereby certify that

did on

the 27th

day of October, 2003,

send by

First Class

Mail, with

postage thereon fully

prepaid,

by depositing

the United States

Post Office Box a true and

correct copy of the following instruments

entitled

NOTICE OF FILING,

MOTION

FOR WAIVER

OF REQUIREMENTS and

PEOPLE’S POST-TRIAL BR1EF

Tc:

John

Prior

421

North

Morrison

Central

City,

Illinois 62801

James

Mezo

418 East Main

Street

P.O.

Box 220

Benton,

Illinois 62812

a~d

the original and

ten copies

First Class

Mail with

postage thereon fully prepaid

of the

same foregoing

instrument(s)

To:

Dorothy Gunn, Clerk

Pollution

Control

Board

100 West

Randolph, Suite

11-500

Chicago,

Illinois 60601

A true and

correct copy was also sent

to:

Carol Sudman

Hearing

Officer

Pollution

Control

Board

1021

North Grand

Avenue East

Springfield,

Illinois 62794

AtL~~ti

SALLY A. CARTER

Assistant Attorney General

This filing is submitted

on recycled

paper.

BEFORE THE ILLINOIS POLLUTION CONTROLBOARD

RECEIVED

PEOPLE OF THE STATE OF ILLINOIS,

)

C1FP~’S(~)FFTCE

Complainant,

)

92003

)

PCB NO

02-177.

STATE

ILLINOIS

)

(Enforcement)

Pollution

Control Board

JOHN

PRIOR,

dlbla

PRIOR OIL COMPANY,

)

and

JAMES MEZO,

dlb/a

MEZO OIL

)

COMPANY,

Respondents.

)

MOTION

FOR WAIVER OF REQUIREMENTS

Complainant,

PEOPLE OF THE STATE

OF ILLINOIS,

by Lisa Madigan, Attorney

General of the State of Illinois,

hereby moves

the

Illinois

Pollution

Control

Board

(“Board”) to

waive certain

requirements,

namely that the People’s

Post-Trial Brief not exceed fifty (50)

pages

required

Ill.

Adm.

Code

101.302(k).

support of

its

Motion,

the Complainant

states the following:

April

19,

2002, the complaint was brought against the Respondents

in the

name of the People of the State

of Illinois,

by James

Ryan,

Attorney General

of the State of

Illinois,

his own motion

and at the request of the

Illinois Environmental Protection

Agency

(“Illinois

EPA”).

The thirty-five (35)

page

complaint alleged

a multitude of land

pollution and water

pollution violations at four oil production

sites.

particular, the complaint pled that John

Prior

(“Prior”) open dumped oil

production fluids and other wastes at the Gompers

site.

The People

further asserted that

Prior improperly

released crude oil

State waters from the Wamac City

Park site, the

Mezo Oestreich

tank battery and the Morgan

Kalberkamp site.

Finally, the

People alleged that James Mezo’s

improper release

of crude oil

at the

Mezo

Oestreich tank

battery caused water pollution.

Concurrently with this

Motion,

Complainant is submitting

Post-Trial

Brief to the

Board for filing that is

in excess

of fifty pages in

length.

Complainant has diligently attempted to

restrict the length of

Complainant’s Post-

Trial Brief,

but has

found it impossible

to abide by the fifty-page

limit and fully set forth the

numerous complex matters that must be

discussed

by the

Complainant to provide a thorough

analysis of the applicable

law and facts in

support of the Complainant’s

position.

In addition,

the Complainant’s analysis is dispositive

to the outcome of the case,

a thorough

review of the

applicable

law and facts

is warranted by

the People in this

case.

WHEREFORE, for the reasons set forth above,

the PEOPLE

OF THE STATE

ILLINOIS

requests that the

Board

provide

approval for the People’s Post-Trial

Brief for filing in

excess of 50

pages.

Respectfully submitted,

PEOPLE OF THE

STATE OF ILLINOIS

LISA MADIGAN

Attorney General of the

State

of Illinois

MATTHEW

DUNN, Chief

Environmental Enforcement/Asbestos

Litigation

Division

BY:

~Jt~.I

SALLY

CARTER

Assistant Attorney General

Environmental Bureau

500 South

Second Street

Springfield, Illinois

62706

217/782-9031

Dated:

(O/~/O3

RECE~VE~

CL.ER~’S

OFFICE

BEFORE THE ILLINOIS POLLUTION

CONTROL BOARD

OCT

92003

PEOPLE OF THE STATE

OF ILLINOIS,

)

STATE OF ILLINOIS

)

Pollution

Control Board

Complainant,

Vs.

)

No. 2-177

)

JOHN

PRIOR,

d/bla

PRIOR OIL

COMPANY,

)

and JAMES

MEZO,

dlbla

MEZO OIL COMPANY,

)

Respondents.

)

PEOPLE’S POST-TRIAL

BRIEF

The Complainant, PEOPLE

OF THE

STATE OF ILLINOIS,

has established that John

Prior’s open dumping

of oil production fluids and

other wastes

at the Gompers site has

not

only

caused

land

pollution violations

but has also

threatened nearby surface and

ground water.

Second,

the People have

proven that John

Prior’s improper releases of crude oil from the

Warnac City Park site,

the

Mezo Oestreich tank battery and the Morgan Kalberkamp

site have

not only caused Water pollution but have threatened

nearby vegetation, State

waters, the public

and aquatic life.

In the same token, the People have

verified that James

Mezo’s improper

release of crude oil

at the

Mezo Oestreich tank battery caused water pollution and

threatened

nearby vegetation,

State waters,

the public and aquatic life.

TABLE OF CONTENTS

INTRODUCTION

Il.

VIOLATIONS

John Prior’s Violation of

Section 2 1(a) of the Act at

the Gompers site.

John Prior’s Violation of

Section 21 (p)(1)

of the Act at the Gompers site.

John

Prior’s

Violation

of Section

21(p)(6) of the Act at the Gompers site.

John

Prior’s Violation

of 35

III.

Adm.

Code 812.101(a) and

Section

21(d) of

the Act at the Gompers site.

John

Prior’s Violation

of Section

21(e)

of the Act at

the Gompers site.

John

Prior’s Violation

of 35

III.

Adm.

Code 722.111

and

Section

21 (d)(2) of the Act

at the Gompers

site.

John Prior’s Violation of 35

III. Adm.

Code 739.122(c) and Section

21 (d)(2) of the Act at

the Gompers site.

John Prior’s Violation

of 35

III. Adm. Code 739.122(d) and

Section

21 (d)(2) of the Act at the Gompers site.

John

Prior’s Violation

of 35

III. Adm.

Code 808.121

and Section

21 (d)(2) of the Act at the Gompers

site.

The Respondents’ Violation

of Section

12(a) of the Act.

The Respondents caused or allowed the discharge

of contaminants

into

the environment.

The Respondents’ releases caused or tended to

cause water pollution.

The alteration

of the physical,

thermal, chemical, biological or

radioactive properties of any water

of the State.

Count VIII

Count XII

Count XV

Or such discharge

of any

contaminant into

any waters of the State.

As will or is likely to create one of four things.

Alternatively, the

People have

proven a

Section

12(a) violation

by establishing

that the

Respondents violated 35

III. Adm.

Code 302.203.

The Respondents’ violation of Section

12(d)

of the Act.

John

Prior’s Violation of 35

III. .Adm.

Code 739.122(d) and

Section

21 (d)(2) at the Park Site.

Defenses.

James Mezo’s Transfer Argument for the

Mezo

Oestreich

site is Without

Merit.

John

Prior’s Allegations of Vandalism

Does

Not

Negate Prior’s Violations of the Act.

III.

THE

BOARD SHOULD

IMPOSE A

SUBSTANTIAL MONETARY

PENALTY

33

BASED

 ONSTATUTORYPENALTY FACTORS

Section

33(c)

Factors.

The character and degree

of injury or interference.

The social and economic value of the pollutional

source.

The suitability or unsuitability of the pollution source.

The technical

practicability and

economic reasonableness of compliance.

Subsequent compliance.

Section 42(h)

Factors.

The duration and gravity

of the violation.

Duration.

Gravity.

The presence or absence of due diligence.

Economic benefit.

The amount of penalty which will serve to deter or enhance

voluntary compliance.

Previously adjudicated violations of the Act.

IV.

RELIEF

REQUESTED

Statutory

Maximum Penalty.

Attorney’s

Fees.

Repeated

violations.

Reasonableness of attorney’s fees.

INTRODUCTION

The People call

upon the

Board

censure multiple and

repeated violations

of the Act

and

the Board’s regulations committed

by John Prior (“Prior”)

on or about June

13,

1996,

through March

12, 2003,

at the Gompers site.

By causing or allowing

the open

dumping of

waste at a disposal site upon his property through the consolidation of refuse

from one or more

sources,

Prior violated

Section 21(a) of the Act, 415 ILCS 5/21(a)

(2000).

Count

Due to

the

waste resulting

litter at

the Gompers site,

Prior violated

Section 21 (p)(1)

of the Act, 415

ILCS

5/21 (p)(1)

(2000).

Count

Moreover, Prior caused

or allowed the open

dumping of liquid crude

oil

in a manner that resulted in standing or flowing

liquid from the Gompers site

and thereby

violated

Section 21(p)(6) of the Act, 415

ILCS 5/21 (p)(6). Count

By conducting a waste-

storage or waste-disposal

operation upon the Gompers site without

a permit granted

by the

Illinois

EPA and

by storing, disposing or abandoning waste

at the Gompers site,

a site that does

not meet the requirements of the Act, Prior respectively violated Sections

21(d) and

(e) of the

Act, 415

ILCS 5/21(d) and

(e) (2000).

Count

II.

Prior also developed and

operated a

landfill

without a permit issued by the Illinois EPA and thus,

violated 35

Ill. Adm.

Code 812.101 (a) and

Section

21(d)(2) of the Act. Count Ill.

By generating a solid waste and failing

to determine

whether the waste

is a

hazardoUs or a special

waste,

Prior respectively violated 35

III. Adm.

Code 808.121

and

35111. Adm. Code 722.111

and

Section 21(d)(2) of the Act.

Count

IV, VII.

failing to

label containers storing

used

oil,

Prior violated 35

Ill.

Adm. Code 739.122(c) and

Section

21 (d)(2) of the Act.

Count V.

Lastly, at the Gompers site,

upon detecting a release of

used

oil

to the environment, Prior violated

Section

35111. Adm.

Code 739.122(d) and

Section

21(d)(2) of the Act,

by failing to stop the release, contain the released used

oil, clean

up and

properly manage the released used oil

and

other material

and repair or replace any leaking

used

oil storage

containers or tanks prior to returning

them to service.

Count VI.

addition, the

People request that the

Board

objurgate violations committed

Prior

or about July 21,

1997,

violations

committed

by Prior and James

Mezo (“Mezo”) on

or about

June

30,

1997,

and

violations committed by

Prior on

or about July

19, 2000.

For these

three

incidents, the Respondents violated

Section

12(a) of the Act, 415

ILCS 5/12(a) (2000),

causing, allowing

or threatening the discharge of contaminants to the waters of the State so as

cause or tend to cause water pollution or to violate the Board’s regulations or standards.

Counts VIII, XII,

XV.

At the three

release sites, the Respondents caused offensive conditions

violation of the water quality standards,

III. Adm.

Code 302.203.

Counts

XI, XIV, XVI.

two occasions, the Respondents violated

Section

12(d) of the Act, 415 ILCS

5/12(d) (2000), by

depositing contaminants upon the

land

in such

place and

manner as

create a water pollution

hazard.

Counts X, XIII.

Lastly on one

occasion,

Prior, upon detecting a release of used oil

the environment, violated

Section 35

III.

Adm.

Code 739.122(d)

and Section 21(d)(2) of the Act,

415

ILCS 5/21(d)(2),

by failing to stop the release, contain the released

used oil,

clean up and

properly manage the release

used oil

and other material

and

repair or replace any leaking

used

oil storage containers or tanks prior to returning them

to service.

Count IX.

At hearing,

the People presented

evidence

confirming the above violations and

that

Prior’s repeated inaction demonstrates

his disregard for the level of compliance each person

must exercise to

comply with the Act and associated

regulations.

support of civil penalties,

the People offered evidence

of Prior’s lack of due diligence,

including

proof that

Prior not only

directed his employees

to open burn, but dumped waste

back on site

in defiance of Illinois

EPA

instruction to

excavate and

properly remove the waste.

(Day

1, Ti.

at 24,

57);

see also,

People’s Exhibit 4 and 6.

This evidence fully supports the People’s

request for a violation

finding for all counts of the Complaint;

for the imposition of an appropriate and substantial

penalty,

representative of the serious nature of the violations; and

for the award of reasonable

attorney’s fees.

II. VIOLATIONS

John

Prior’s Violation of Section

21(a)

of the Act at the Gompers site.

As supported

by the testimony of Mr.

Michael Grant (“Grant”) and

Mr. Chris Cahnovsky,

the alleged

land

pollution violations at

140 Gompers Street, Wamac (“Gompers site”) have

been substantiated

by Complainant.

Section 21(a)

of the Act, 415

ILCS 5/21(a) (2000), provides:

No person shall:

Cause or allow the open dumping of any waste.

The testimony of Grant and

Chris Cahnovsky have clearly verified the open dumping of

waste on site.

On June

13,

1996,

Grant observed a hose

running from a

Prior Oil tanker truck

into an abandoned

mine shaft; the hose discharged an oily

substance to the ground

proximity to the mine shaft.

(Day

Tr.

16-17);

see

a/so,

People’s Exhibit

When

questioned about the oily discharge,

an employee of

Prior’s,

Mr. Juvenile

Hixenbaugh,

admitted

to discharging

storm water from tank battery containment dikes.1

However,

Mr.

Larry Bengal,

Supervisor of the Oil

and Gas

Division,

Illinois Department of Natural Resources

(“Illinois

DNR”)

stated that clean storm water discharge does

not exist in tank battery containment dikes.

Accordingly,

Illinois DNR regulations do not permit the discharge of containment dike storm

water fluid.

(Day 2, Ti. at

16).2

On June

13,

1996, Grant further beheld

pile of off-rim tires

The Illinois DNR regulates and permits the hauling of liquid

oil

field

waste

in Illinois.

(Day 2,

Tr.

16-17).

At the time of the incident, Prior did not maintain the required disposal

and hauling permits from

the Illinois DNR.

(Day

Tr. at 16,

Day 2,

Tr. at 17).

According to

Illinois DNR, Oil and

Gas

regulations, storm water collected from tank battery

containment dikes may not be discharged into an abandoned

mine

shaft.

(Day

Tr.

at 19);

see

also,

People’s Exhibit

and

a considerable amount of stained

soil abutting two unlabeled and opened

drums of

used

oil.

 (Day 1, Tr. at 17-19);

see also,

People’s

Exhibit

OnAugust 22, 2000, Chris Cahnovsky observed a pit about 20-feet-long by 10-feet-wide

by 7-feet-deep containing an oldBBQ grill, car parts, plastic containers, paint cans, clothes,

absorbent pads, landscape waste and approximately 70 gallons ofan oil-like substance. (Day

1, Tr. at 40-41);

see also,

 People’s Exhibit 3. A day later, Chris Cahnovsky returned to sample

the oil-like substance and ultimately determined that itwas crude oil, an ignitable waste, that

met the definition of a Department of Transportation (“DOT”) flammablewaste, a special waste,

and that

it contained

toluene, ethylbenzene, benzelethelene, xylene, other polynuclear

aromatics and

2, 4, 6 tri-bromophenal

(Day

1, Tr.

at 43-47);

see also,

People’s

Exhibit

On August 29, 2000,

Chris Cahnovsky revisited the Gompers site;

conditions

had not

changed since the August 22, 2000,

visit.

(Day

Tr. at 48);

see also,

People’s

Exhibit

Two

days

later, Chris Cahnovsky returned to witness pit

excavation activities.

noted

that waste

had

been removed from the

pit and

placed in

a 20-yard roll-off box.

(Day

Tr. at 48-49);

see

also,

People’s Exhibit

While on site,

Chris Cahnovsky beheld

a large amount of used

oil on

the ground and on top of two unlabeled

30-gallon drums on the southwest

side of the

shop.

(Day

1, Tr.

at 49-50);

see also,

People’s Exhibit

A few months

passed and

November 2000, the

Illinois

EPA returned

the Gompers

site to respond to an open

burning complaint.

A new trench

contained smoking plastic bags of

straw and oil.

(Day

1, Tr.

at 20-23);

see also,

People’s

Exhibit 4.

Adjacent to

this location,

Grant observed another area of dumped oil

and contaminated

straw.

(Day

Tr. at

23);

see

also,

People’s

Exhibit 4.

At the time of the incident, Prior admitted

instructing his employees

burn the waste even though he knew this violated

State environmental

laws.

(Day

Tr. at

24);

see also,

People’s

Exhibit 4.

In response to a complaint that oil well development waste had been dumped in a hole

behind the Prior Oil Company shop, Chris Cahnovsky reinspected the site on December 5,

2000.

 (Day 1, Tr. at 52-53);

see also,

People’s

 Exhibit 6. Upon arrival, Chris Cahnovsky

became aware of an oil stained area

approximately 100 feet south

of therailroad tracks.

Due

to tire tracks leading

to the

oil stained area,

he concluded that a truck backed in

and dumped

the

waste.3

(Day

Tr.

at 54);

see also,

People’s Exhibit

A Prior Oil Company tanker truck

and vehicle tracks

led

to oily waste in dense vegetation and

concrete rubble.

(Day

Tr.

at 55-

57);

see also,

People’s Exhibit

Finally, many of the waste items observed

in the

pit

August 22 and subsequently excavated and

placed

into a roll-off box on August 31,

2000, were

now dumped

back on the ground on

December

2000.

(Day

Tr.

at 57);

see also,

People’s

Exhibit 6.

Despite Prior’s commitments to clean

up the site

by January 2001,

it was not until

March

2003, that

Prior supplied the necessary documentation verifying compliance.

Prior

never

submitted receipts for the disposal

of general trash and tires.

(Day

Tr.

at 65-68);

see also,

People’s

Exhibit

At the time of the violations, the definition of “waste” was set forth

at Section

3.53 of the

Act, 415 ILCS

5/3.53

(2000), and

stated as follows:

“WASTE” means any garbage,

sludge from a waste

treatment plant,

water supply

treatment plant,

or air pollution control

facility or other discarded

material,

including

solid,

liquid,

semi-solid, or contained

gaseous material resulting from

industrial,

commercial, mining and

agricultural operations,

and from community activities, but does

not include

solid or dissolved

materials

irrigation return flows, or coal

combustion by-

products as defined.in Section 3.94,

or industrial

discharges which are point sources

subject

to permits

under Section

402 of the Federal Water

Pollution Control Act, as

now

or hereafter amended, or source,

special nuclear, or by-products

materials as defined

the Atomic Energy Act

of 1954,

as amended,

(68 Stat. 921) or any solid or dissolved

material from

any facility subject to the

Federal Surface Mining

Control and

Reclamation

~At the time of this incidence,

Prior did not possess any permits

from

Illinois DNR, Oil and

Gas

Division, to

haul

oil

field waste.

(Day

1, Tr.

54-55);

see a/so,

People’s

Exhibit

Act of 1977 (P.L. 95-87) or the rules and regulations thereunder orany law or rule or

regulation adopted by the State of Illinois pursuant thereto.

The items observed by Grant and Chris Cahnovsky such as the oil, used orwaste tires, an old

BBQ grill, car parts, plastic containers, paint cans, clothes, absorbent pads, landscape waste,

and oil-contaminated straw, clearly constitute discarded material as provided by the definition of

waste.

Grant and

 Chris Cahnovsky testified Prior never attained a permit from the Illinois EPA

authorizing

the development of a waste storage or waste disposal

operation

at the Gompers

site.

 In addition, both gentlemen stated Prior did not acquire a permit to develop and operate a

landfill from the Illinois EPA. (Day 1, Tr. at 15, 36-37).

As demonstrated

the uncontested

facts,

Prior open dumped waste from one or more

sources

at the Gompers site.

Furthermore,

Prior did not have a permit from

the

Illinois

EPA,

and the Gompers’s site

did

not meet the other criteria of a sanitary landfill contrary to the

requirements of Section

21(a) of the Act, 415

ILCS 5/21(a)

(2000).

It should be

noted that the

People

have proven that

Prior has

caused or allowed the open

dumping of various waste items

site.

particular, the Respondent has

caused or allowed the open dumping of oil,

used or

waste tires,

old

BBQ grill, car parts,

plastic containers, paint cans,

clothes, absorbent pads,

landscape waste, and

oil-contaminated

straw.

These

uncontested facts thereby fulfill the

requirement of Section 21(a) of the Act that a “consolidation

of refuse

from one or more

sources” took place on ,site.

People

Conrail,

245

III. App.

167,

613 N.E.

2d 784

(5th

Dist.

1993).

John

Prior’s

Violation of Section

21 (p)(1) of the Act at the

Gompers

site.

Section 21(p)(1) of the Act, 415 ILCS 5/21(p)(l) (2000), provides:

No person shall:

In violation of subdivision (a) of this Section, cause or allow the open

dumping ofanywaste in a mannerwhich results in any of .the following

occurrences at the dump site:

1

 litter.

The waste open dumped at Prior’s site constitutes litteras set forth in Section

 1 of the

Litter Control Act, 415 ILCS 105/1 (2000) and defined as follows:

“LITTER” means any discarded, used or unconsumed substance or waste.

 “Litter” may

include, but is not limited to,

any garbage,

trash, refuse, debris,

rubbish, grass clippings,

or other lawn or garden waste, newspaper, magazines, glass, metal, plastic or paper

containers or other packaging construction material,

abandoned vehicle

(as defined in

the Illinois Vehicle Code),

motor vehicle parts, furniture, oil, carcass of a

dead animal,

any nauseous

or offensive matter of any kind, any object likely to

injury any person or

create

a traffic hazard,

potentially infectious medical waste as defined

in Section

3.84 of

the Environmental Protection Act, or anything

else of any unsanitary nature, which has

been discard,

abandoned, or otherwise disposed

of improperly.

The

Board has

adopted this definition of “litter” provided

in the Litter Control Act forpurposes

Section 21

of the Act.

See,

St.

Clair County

Louis

Mund,

AC 90-64,

August 22,

1991.

such, the facts set

forth above,

specifically the

oil,

used

or waste tires, an old

BBQ grill, car

parts,

plastic containers,

paint cans,

clothes,

absorbent pads,

landscape waste, and

oil-

contaminated straw,

clearly show that Prior has

caused or allowed the open

dumping of waste

in a

manner that resulted

litter in

violation of Section

21(p) of the Act.

John

Prior’s Violation of Section 21 (p)(6) of the Act at the Gompers

site.

As supported by Chris Cahnovsky’s testimony, Prior caused orallowed standing or

flowing liquid discharge from the Gompers site.

Section 21 (p)(6) of the Act, 415 ILCS 5/21 (p)(6) (2000), provides:

No person shall:

In violation of subdivision (a) of this Section, cause or allow the open

dumping of any waste in a manner which results in any of the following

occurrences at the dump site:

6.

 standing or flowing liquid discharge from the dump site.

10

In August 2000,

Chris Cahnovsky discovered a pit that contained

approximately 70

gallons of standing

liquid

oil.

(Day

1, Tr.

at 40-41);

see also,

People’s Exhibit

By causing

allowing the open dumping

of any waste,

specifically liquid crude oil,

in a manner which resulted

in standing

or flowing

liquid

discharge from the dump

site, Prior violated

Section 21 (p)(6) of the

Act,

415

ILCS 5/2l(p)(6) (2000).

John

Prior’s Violation of 35 Ill. Adm.

Code 812.101(a)

and

Section 21(d) of the Act

at the Gompers site.

Section 21(d) of the Act, 415 ILCS 5/21(d) (2000), provides as follows:

No person shall:

Conduct any waste-storage, waste-treatment, or waste-disposal

operation:

Without a permit granted by the Agency

or in violation

of any

conditions imposed

such permit, including

periodic reports

and

full access to adequate records and

the inspection of facilities, as

may be necessary to assure compliance with this Act and with

regulations and standard~

adopted thereunder;

provided,

however, that, except for municipal

solid waste

landfill units that

receive waste on or after October

1993,

no permit shall

required for (i) any

person conducting

a waste-storage, waste-

treatment, or waste-disposal operation for wastes generated

such

person’s own activities which are stored, treated, or

disposed

within the site where such wastes are

generated,

or (ii) a

facility located in

a county with

a population over 700,000,

operated and

located

accordance with

Section

22.38 of this Act,

and used

exclusively for the transfer,

storage, or treatment of

general construction or demolition debris;

violation of any regulations or standards adopted

the

Board

under this Act; or

Which receives waste

after August

31,

1988, does

not have

permit

issued

by the Agency,

and

is (i) a

landfill

used

exclusively

for the disposal

of waste generated at the site,

(ii) a surface

impoundment receiving

special waste

not listed

in an

NPDES

permit,

(iii) a waste pile in which the total volume of waste

greater than

100 cubic yards or the waste

is stored

for over one

year, or (iv) a

land treatment facility receiving

special waste

generated at the site; without giving

notice of the operation to the

Agency by January 1,

1989,

or 30

days after the date on which

the operation

commences, whichever is later, and

every 3 years

thereafter. The form for such notification shall be specified by the

Agency, and shall be limited to information regarding: the name

and address of the location of the operation; the type of operation;

the types and amounts ofwaste stored, treated or disposed of on

an annual basis; the remaining capacity of the operation; and the

remaining expected life of the operation.

Item 3 of this subsection (d) shall not apply to any person

engaged in agricultural activitywho is disposing of a substance

that constitutes solid waste,

 if the substance was acquired for use

by that person on his own property, and the substance is disposed

of on his own property in accordance with regulations or

standards adopted by the Board.

This subsection (d) shall not apply to hazardous waste.

Section 812.101 of the Board’s Waste Disposal Regulations, 35

 III. Adm. Code

812.101(a) (1994), provides:

(a)

 All persons, except those specifically exempted by Section 21(d)

of the Environmental Protection Act (Act)

 (Ill. Rev. Stat. 1991, ch.

111-1/2, par. 1021(d) 415

 ILCS 5/21(d)

 shall submit to the

Agency an application for a permit to developand operate a

landfill. The application must contain the information required by

this Subpart and by Section 39(a) of the Act, except as otherwise

provided in 35

 III. Adm. Code817.

As previously discussed, Prior operated a landfill but never acquired a permitfrom the

IllinoisEPA authorizing the development and operation of a landfill at the Gompers site; waste

was placed and accumulated over time for disposal at a site thatwas not exempted from the

permitting requirements of Section 21 (d)(1) of the Act. (Day 1, Tr. at 15, 37).

 In addition, by

developing and operating a landfill without a permit issued by the

 Illinois EPA, Prior violated 35

Ill. Adm. Code 812.101 (a).

These facts further evince that Prior conducted a waste-storage or waste-disposal

operation upon his property without an Illinois EPA permit. Grant and Chris Cahnovsky testified

Prior

not possessing an

Illinois

EPA permit to conduct a waste-storage, waste-treatment or

waste-disposal operation.

(Day

Tr.

15,

36).

Accordingly, waste from

off-site sources

has

been stored or disposed of at the Gompers site, a site that does not have the required Illinois

EPA permit,

in contravention of Section 21(d) of the Act, 415

ILCS 5/21(d) (2000).

John Prior’s

Violation of Section 21(e)

of the Act

the Gompers site.

Again through the testimony of Chris Cahnovsky and Grant, the People have shown that

Prior disposed, treated, stored orabandoned waste or transported waste to the Gompers site, a

facility that does not fulfill the requirements of the Act.

Section 21(e) of the Act, 415 ILCS 5/21(e) (2000), provides as follows:

No person shall:

e.

 Dispose, treat, store orabandon any waste, or transport any waste into

this State for disposal, treatment, storage or abandonment, except at a

site or facility which meets the requirements of this Act and of regulations

and standards

thereunder.

Not only have

Illinois EPA field

inspectors repeatedly observed

oil,

used or waste tires,

an old

BBQ grill, car parts,

plastic containers, paint cans, clothes,

absorbent pads,

landscape

waste,

and

oil-contaminated straw at the Gompers site,

but they have repeatedly

observed a

hose running into an abandoned

mine

shaft from un-permitted Prior Oil tanker trucks.

(Day

Tr.

16-17);

see a/so,

People’s

Exhibit

Prior Oil Company employees admitted to

discharging

stormwater collected from tank battery containment dikes

into the abandoned

mine

shaft.

See,

People’s Exhibit

Once

Illinois

DNR subsequently closed

the abandoned

mine

shaft,

Prior dumped the

oil development waste

in dense vegetation and concrete rubble

on site.

(Day

1, Tr.

at 52-57);

see also,

People’s

Exhibit

Consistent with

Prior’s inappropriate disposal of waste at

a site that does

not fulfill the

req uirements

of the Act,

Prior instructed

his employees to

burn

open dumped

plastic bags

straw and

oil.

(Day

Tr.

at 24);

see also,

People’s Exhibit

Even

more egregious is

once the

Illinois

EPA inspector directed

Prior to excavate and

properly dispose of waste material

including oil from an

on-site pit,

Prior dumped the waste from the roll-off box

back onto the

ground

(Day

at 57),

see also,

 People’s Exhibit 3.

 In response to questions posed by the

Illinois

EPA,

Prior claimed not to

know the identity of the waste,

but suggested that the waste

was too black

to be crude

oil.

(Day

1, Tr.

 42);

see also,

 People’s Exhibit 3. Because

Prior

had not sampled the

liquid waste,

the Illinois EPA returned the following day to perform the

necessary assessment sampling. (Day 1, Tr. at 42-43);

see also,

People’s

Exhibit

While the

Illinois EPA concluded that the waste was

crude oil,

Prior was

ultimately responsible for

completing this determination.

(Day

Tr. at 43-47);

see a/so,

People’s Exhibit

Accordingly,

by generating

a solid waste and failing

to determine whether the waste is hazardous,

Prior

violated

35111. Adm. Code 722.111

and Section

21(d)(2) of the Act, 415

ILCS 5/21(d)(2)

(2000).

John

Prior’s Violation of 35 Ill. Adm. Code

739.122(c) and

Section 21(d)(2)

of the

Act at the Gompers site.

Section

739.122(c) of the Board’s Waste

Disposal Regulations,

III.

Adm. Code

739.122(c), provides:

Used oil

generators are subject to

all applicable

federal Spill

Prevention,

Control and

Countermeasures (40 CFR 112)

in addition

to the

requirements of this Subpart.

Used

oil

generators are also subject

to the

Underground Storage Tank (35

III. Adm.

Code

731) standards for used

oil

stored

in underground

tanks whether or not the

used oil exhibits any

characteristics of hazardous waste, in addition

the requirements of ths

subpart.

***

(c)

Labels

(1)

Containers and

aboveground tanks

used

to store used

oil

generator facilities must be

labeled or marked clearly

with the words “Used

Oil.”

The testimony of Grant and Chris Cahnovsky have convincingly substantiated that Prior

failed

to clearly label or mark all containers and above ground tanks storing

used oil with the

words “Used

Oil.”

On June

13,

1996,

Grant beheld two unlabeled

drums of used oil

at the

Gompers

site.

(Day

Tr. at 18-19);

see also,

People’s

Exhibit

Four years later

in August,

2000,

Chris Cahnovsky observed

two unlabeled

30-gallon drums of used

oil on the southwest

side of the shop.

(Day

1, Tr.

at 49-50);

see

also,

 People’s Exhibit

By failing to label

containers

storing used

oil,

Prior violated

35111. Adm.

Code 739.122(c) and

Section 21(d) of the

Act, 415 ILCS 5/21(d) (2000).

John Prior’s

Violation of 35

Ill. Adm. Code

739.122(d) and

Section 21(d)(2)

of the

Act at the Gompers

site.

Section 739.122(d) of the Board’s Waste

Disposal Regulations,

III.

Adm.

Code

739.122(d), provides:

Used oil generators are subject

all applicable

federal Spill

Prevention,

Control

and

Countermeasures (40 CFR 112)

addition

the requirements

of this Subpart.

Used

oil generators

are also subject to the Underground

Storage

Tank (35

III.

Adm.

Code 731) standards for used

oil stored

underground tanks

whether or not the

used oil

exhibits any characteristics of

hazardous waste,

in addition

the requirements

of this Subpart.

***

(d)

Response to

releases.

Upon detection of a release of

used oil to

the environment that is not subject

to the federal requirements of

40 CFR 280,

Subpart

F and which

has occurred after October 4,

1996,

a generator shall perform the following

cleanup

steps:

BOARD NOTE: Corresponding 40 CFR 279.22(d) applies

releases that “occurred after the effective date of the authorized

used

oil program for the State

in which the release is located.”

The

Board

adopted the

used

oil standards in

docket R93-4 at

III.

Reg.

20954, effective November 22,

1993.

USEPA approved

the Illinois standards at

Fed.

Reg.

40521

(Aug.

1996),

effective October 4,

1996.

The

Board

has

interpreted “the

effective date of the authorized

used oil

program” to

mean

the

October 4,

1996 date of federal authorization of the Illinois

program,

and we substituted

that date

for the federal effective

date

language.

Had

USEPA written something like “the effective

date of the

used

oil program in

the authorized

State

in which the

release is located,” the Board would

have used

the November 22,

1993 effective date of the Illinois used

oil standards,

Stop the release;

Contain the released

used oil

Properly clean

up and

manage the released used

oil

and

other materials; and~

If necessary,

repair or replace any leaking

used

oil storage

containers

or tanks prior to returning them to

service.

Chris Cahnovsky and

Grant testified

not only to repeated

releases

of oil,

but Prior’s

blatant disposal activities

at the Gompers site.

Generally

once the release

occurred,

Prior failed

to contain

and remediate the release and

affirmatively acted

to aggravate

the incident in

defiance of Illinois

EPA directives.

For instance,

in June

1996, an oily substance discharged to

an abandoned mine

shaft

from

a hose connected

a Prior

Oil tanker truck.

(Day

Tr. at

16-17);

see

also,

People’s

Exhibit

Not only

did

Prior fail to

undertake measures to

stop,

contain

and clean up the

used

oil,

a PriorOil Company employee admitted

to actively discharging

such material.

Id.

the

same date, a considerable

amount of stained soil existed

in the area

of two opened

drums of

oil,

but no measures were employed

to stop,

contain

and clean

up the

used oil.

(Day

1, Tr.

18-19);

see also,

People’s

Exhibit 2.

On August 22, 2000, liquid

oil stood

a pit,

however, the

oil was

not placed

in a roll-off

box until

August 31, 2000.

(Day

1, Tr.

at 40-49);

see also,

People’s Exhibit

Once

excavated,

Prior dumped the excavated oiled-waste back on the ground in

opposition to Illinois EPA

instruction.

(Day

1, Tr.

57);

see also,

People’s

Exhibit

On the same date, Chris

Cahnovsky noted

two drums likely observed

Grant four years earlier with

a large

amount of

used

oil

on top of and on

the ground

surrounding the drums.

(Day

1, Tr.

at 49-50);

see also,

People’s

Exhibit

Clearly, no measures

had been applied to

stop, contain and

clean the

used

oil.

A few months later in November, Prior continued

act

in defiance of State

environmental laws

by dumping oiled straw at two on-site

locations.

Not only

did

Prior fail to

properly clean up the used

oil,

but Prior instructed

his employees to

burn the waste oil and

straw.

(Day

1, Tr.

at 20-24);

see also,

People’s

Exhibit

December 2000,

the Illinois EPA revisited the Gompers site.

Since the

Illinois

DNR

closed the abandoned

mine,

Prior caused or allowed the open

dumping of

oil

development

waste

in a hole behind the Prior Oil Company shop.

(Day

Tr.

at 52-57);

see also,

 People’s

Exhibit

No measures

were being

employed

stop, contain

and properly contain the

released

oil.

Prior subsequently

committed to

performing the required

remediation of the

released

used

oil by January 2001;

however,

it was

not until

March 2003 that these

measures

were completed.

(Day

Tr. at

61-68);

see also,

People’s Exhibit 9.

The facts are

clear.

Upon detection of a

release of

used oil

to the environment,

Prior

failed to stop the release,

contain the released

used oil,

clean up and

properly manage the

released

used

oil and other material and

repair or replace any leaking

used oil storage

containers or tanks prior to

returning them to service.

By so doing, the Respondent has

violated

Section 739.122(d) of the Board’s Waste Disposal

regulations, 35

III.

Adm.

Code

739.122(d) and

Section

21(d)(2) of the Act, 415

ILCS 5/21(d)(2) (2000).

John

Prior’s Violation of 35

III. Adm.

Code

808.121

and

Section 21 (d)(2) of the Act

at the Gompers

site.

The testimony of Chris Cahnovsky has

decisively confirmed that Prior generated

waste and failed

to determine whether the waste was a special waste.

Section

808.121

of the

Board’s Waste

Disposal Regulations,

III. Adm.

Code 808.121, provides in

relevant part:

Generator Obligations

Each

person who generates waste shall determine whether the waste is a

special waste.

Based on the same facts identified

in the discussion

of Prior’s violations of 35

III.

Adm.

Code 722.111

and

Section 21 (d)(2) of the Act, 415 ILCS

5/21 (d)(2) (2000),

Prior generated a

waste and

failed to

determine whether the waste was a special waste in violation of 35

III. Adm.

Code 808.121

and Section

21(d)(2) of the Act, 415 ILCS 5/21(d)(2) (2000).

See,

 Section II.F.

The Respondents’ Violation of Section 12(a) of the Act.

The

Respondents caused or allowed the discharge of contaminants

into

the environment.

The evidence produced

at hearing

clearly proved that Prior and

Mezo’s actions

resulted

in violations

of the Act.

Section

12(a) of the Act, 415

ILCS 5/12(a)

(2000), provides

that:

person shall cause or threaten

or allow the discharge of any contaminants into

the

environment

in any State so as to

cause or tend to

cause water pollution

Illinois, either

alone or in

combination with

matter from other sources,

or so

as to violate regulations or

standards adopted by the Pollution

Control Board

under this Act.

The elements of this provision

are

(1) causing, threatening or allowing the discharge of (2)

contaminants

(3) into

the environment (4) to

cause or tend to

cause water pollution or to violate

applicable

water quality standards.

In the three

incidents

at issue,

Mr. Tom

Powell

and/or Ms.

Cheryl Cahnovsky testified that the Respondents caused or allowed the discharge of oil,

contaminant,

into the environment.

(Day

Tr.

78-94,

101-104,

108-113,

123-130);

see also,

Exhibit 11.

The crude oil drained

down gradient 20-30

feet through the Wamac City Park

into an

unnamed tributary that leads to

Fulton Creek and

ultimately

into Sewer

Creek.

(Day

Tr.

at 78);

see also,

Exhibit

11.

Oil flowed into the water

and onto the banks of the unnamed

tributary and Fulton

Creek on July 22,

1997;

oil covered

wooden debris.

 Oil and petroleum scum was in

Fulton

Creek for approximately three

miles

down stream from

the release point.

(Day

1, Tr.

at 83-84,

88-89),

see

also,

Exhibit

11.

On July

28,

1997,

Cheryl Cahnovsky reinspected the site and noted

that oil continued

cover the soil

and drain

into

Fulton Creek.

(Day

Tr.

91-92);

see also,

Exhibit

11.

In addition, oil coated

vegetation and creek

banks;

pools of oil were caught

in wooden debris and trash.

See,

Exhibit

11.

Clearly, these facts evince that

oil

altered the physical properties of the water.

Count XII6

The

Mezo Oestreich #1

tank battery (“Mezo Oestreich”) was

the site of the June 30,

1997,

release.

The site involved a release of approximately 50 to 75

barrels of crude oil

to a

field,

an unnamed

tributary to Fulton Creek,

Fulton Creek and eventually 2.5 miles downstream

to Sewer

Creek.

(Day

Tr. at

124-129);

see also,

Exhibit

15.

A day later,

Powell observed

oil

both the unnamed tributary leading to

Fulton Creek,

Fulton Creek and Sewer Creek.

(Day

Tr. at

124-1 29);

see also,

 Exhibit

15.

At lrvington

Road,

recoverable

oil existed

upon the creek

~ For purposes of

this Count, “Respondent” refers to

John

Prior, d/b/a Prior

Oil Company.

 For purposes of this

Count, “Respondents” refers to

John

 Prior, d/b/a Prior

Oil Company and

James Mezo,

d/bla

Mezo Oil Company.

The

Mezo Oestreich tank battery is registered to

James Mezo

and operated by John

Prior (Day

Tr. at

120; Day 2,

Tr. at

19).

and within the eddies.

Oil stains

persisted upon the sidewalls and oil

residues remained

Fulton Creek.

(Day

1, Tr. at

124-129);

see also,

Exhibit

15.

Clearly, the oil on the water is

indicative of the alteration of the water’s

physical

properties.

Count XV7

At the site of the July 19,

2000,

release, the Morgan Kalberkamp

tank battery

(“Morgan

Kalberkamp”), Cheryl Cahnovsky observed oil

along the creek

banks and

Fulton

Creek for approximately 300 feet.

(Day

1, Tr.

100-109);

see also,

Exhibit

17.

Five days

later,

crude oil and oily straw remained on the banks and

in Fulton

Creek.

(Day

Tr.

110-112);

see a/so,

Exhibit 18.

It is self-evident that the physical properties of the water were altered

the

oil.

such discharge

of any contaminant into any waters of the State.

As outlined

above, the

People

have

clearly upheld

in evidence the alternative

requirement, that contaminants,

oil,

have

been discharged

to State waters.

Prior has

not

disputed that such

discharges of contaminants to

State waters

have occurred

in each of the

three incidents.

Nor did

Mezo

challenge the discharge of contaminants from

the

Mezo

Oestreich site to

State waters.

(Day

Tr. at 81-82,

85-92,

97, 103,

108,

133-134,

138,

142-

147).

The People

have thereby proven “such discharge of any contaminant to waters of the

State.”

As will or is likely to create

one

of four things.

Next, the People need only satisfy one of the following four elements:

(a) nuisance or

(b)

render such waters harmful or (c) detrimental

or (d) injurious to one of the following uses:

(i)

public welfare (ii) human or (iii) animals or other aquatic life.

The People do

not have

to prove

actual

nuisance but the mere likelihood

of a creation of a

nuisance

is sufficient.

allowing oil

For purposes of this Count, “Respondent” refers to

John

Prior, d/b/a Prior

Oil

Company.

to come into

direct contact with

the water, the Respondents

have likely created

a nuisance or

has

rendered such waters injurious to

those users

specified

in former Section

3.55 of the Act.

Previously, the appellate courts have upheld

the finding of a danger of water pollution, even

the absence of actual

evidence of pollution.

See Al/aert Rendering Inc.

Pollution Control

Board,

91111. App.

153, 414 N.E. 2d 492 (3rd

Dist.1980);

City of Pekin v.

Pollution

Control

Board,

III.

App. 3d

187, 361

N.E.

889 (3rd

Dist.1977).

Nor should it be ignored

that the

State has

an interest

in protecting

its own

resources.

C/PS v.

Pollution Control Board,

the

Illinois Supreme Court agreed with the Board’s definition

of water pollution,

stating that:

TJhe

Act treats water as a

resource

and that pollution occurs whenever contamination is

likely to render water unusable.

Under the Board’s interpretation there is no need to

show that actual

harm will

occur, only that harm would occur if the contaminated

water were to be

used.

Since the

Board

is charged with

administering the

Environmental Protection Act,

its interpretation of the statute is entitled to deference.

116

Ill.

at 409.

(Emphasis

added).

As to

the four alternative elements set forth above,

the People have established not

only

the nuisance element for the three releases, but also that the waters were

rendered harmful to

potential users, such

as the public, animal or other aquatic life.

The releases of oil on June 30,

1997,

July 21,

1997,

and July

19, 2000,

likely created a

nuisance as the releases caused

oil

sheens and

layers of floating

product on State waters.

See,

 Counts

VIII,

XII, and XV.

Moreover,

the layers of floatingoil likely rendered the waters

harmful to the public,

animal

aquatic life.

More particularly, the Park site is located in

the Wamac City

Park; the tank battery is

adjacent to

the park’s baseball field.

(Day

Tr.

at 79).

As a result of the Park site incident,

Cheryl Cahnovsky documented that nine children

had

been playing

in an oil-impacted Fulton

Creek.

(Day

1, Tr. at 88-89).

The oil-contaminated

creek not only posed a threat to

potential

users of this waterway, but was,

in fact,

a direct threat to the children

covered

in oil

23

contaminated water and

soil.

See,

Exhibit

11,

Photographs 4

and 5 of July 22,

1997:

The

People have clearly met these standards

and

have thereby established a violation of Section

12(a)

of the Act, 415 ILCS 5/12(a) (2000).

Alternatively, the People have proven

a Section

12(a) violation

by establishing that

the

Respondents violated 35 III. Adm.

Code 203.

While the People have

satisfied the previously referenced elements of a water pollution

violation, a

Section

12(a) violation

may alternatively be established through the violation of a

regulatOry standard.

Section

12(a) provides that:

No person shall

cause

or threaten or allow the discharge

of any contaminants

into the

environment

in any State so as

to cause

or tend to cause water pollution

Illinois, either

alone or in combination with matter from other sources,

orso asto

violate regulations or

standards adopted by the Pollution

Control Board under this Act.

(Emphasis added).

As such,

a Section

12(a) violation

may alternatively be met through the violation of a

regulatory standard.

Section 302.203 of the Board’s Water

Pollution

regulations,

III.

Adm.

Code 302.203,

prohibits the existence of offensive conditions

State waters:

Waters of the State shall

be free from sludge or bottom deposits, floating debris,

visible

oil,

odor, plant or algal,

color or turbidity of other than natural origin.

For Counts Xl,

XIV and XVI, the People

have provided

tindisputed

evidence that Prior

violated

Section 302.203 by causing offensive conditions.

The same uncontested evidence

establishes that Mezo

caused offensive

conditions at the

Mezo Oestreich

site in

violation of

Section 302.203.

See,

Count XIV.

The visible oil and

petroleum scum

in the unnamed

tributary

to Fulton Creek,

Fulton Creek

and

Sewer Creek at

the Park site; the crude oil

the unnamed

tributary to

Fulton

Creek,

Fulton Creek and

Sewer Creek at the

Mezo Oestreich

site; and the

oil

Fulton

Creek at the Morgan Kalberkamp site all signify offensive

conditions

in State waters.

By violating

Section 302.203,

the Respondents

have

defied the second

prong of Section

12(a)

that no

person shall violate regulations or standards adopted

by the Board

under this Act.

24

The Respondents’ Violation of Section 12(d) of the Act.

For Counts X and XIII, the People have

convincingly established that

Prior’s releases at

the

Park

and the

Mezo Oestreich sites,

and Mezo’s release at the

Mezo Oestreich site created

a water pollution hazard as forbidden by

Section

12(d)

of the Act, 415 ILCS 5/12(d)

(2000),

which

provides the following:

person shall deposit any contaminant upon the land

in such

place and

manner so as

to create a water

pollution hazard.

The elements of this charge are (1) the deposit of any contaminant (2)

upon the land

(3)

in such

place and

manner as

to create a water pollution hazard.

A water pollution hazard

essentially an activity that may in the future ripen

into a water pollution violation.

See,

e.g.,

Jerry Russell Bliss,

Inc.

v. EPA,

138

III.

App.

3d 699,92

Ill.

Dec.

911

(5th Dist.

1985).

(“Section

12(d) refers to conduct

not yet amounting

to a violation

of Section

12(a),

a water pollution

hazard must be found before either violation

may be

found.”).

In the two events

issue, each

instance of a water pollution hazard released a contaminant to a State water.

The parties

did

not contest that the

Mezo

Oestreich site and

the Park site released

oil.

Nor did the

Respondents challenge that some amount of oil reached State

waters.

Before the oil

reached

the waters of the State, the contaminants were

in such place and

manner that they posed

water pollution hazard to nearby water.

In addition,

not all of the oil traveled to the water but

remained

on the

land

in close

proximity to the water.

These

contaminants, until

completion of

cleanup as

verified

by sampling,

may have

continued

to pose a water pollution hazard.

The evidence clearly satisfies a Section

12(d) violation for each

incident as

outlined

above.

At the Park site, the contamination source was

approximately 20 to

30 feet from the

unnamed

tributary.

addition, oil was

located on the banks of the unnamed

tributary and

Fulton

Creek in

close proximity to the waters of the State.

See,

 Count

Secondly,

at the

Mezo

Oestreich site,

oil was

located

in a field,

an unnamed tributary,

and

along

the sidewalls of Fulton

Creek near State

waters.

See,

Count XIII.

Based on these

uncontested facts,

Prior clearly

deposited oil

upon the

land

in such place and

manner at the Park and

Mezo Oestreich sites so

as to create a water pollution hazard in contravention of Section 21(d) of the Act.

 In the same

manner, Mezo deposited oil upon the land in such place and manner at the Mezo Oestreich site

to create a water pollution hazard in violation of Section 21(d).

L.

John

Prior’s Violation of 35

III. Adm.

Code 739.122(d) and Section

21(d)(2) at the

Park site.

The record before the Board clearly makes evident that Prior’s actions or inactions at

the Park site defied 35

 III. Adm. Code 739.122(d) and Section 21(d)(2). See, Section

 II. L.

Cheryl Cahnovsky testified to a spill of at least 31-48 barrels of oil that drained down gradient

through theWamac City Park into an unnamed tributary that leads to Fulton Creek and

eventually into Sewer Creek. (Day 1, Tr. at 78-82). Once the release occurred, Prior failed to

contain and remediate the release. According to the Illinois EPA emergency responder, Prior’s

remediation effortswere less than adequate; Prior only performed the required remediation

after several discussions with the

 Illinois EPA. (Day 1, Tr. at 90). Aweek after the incident, oil

covered the soil and drained into Fulton Creek. (Day 1, Tr. at 91-92);

see also,

 Exhibit 11.

Pools of oil were still caught in wooden debris and trash.

See,

 Exhibit 11.

 Nearly three months

after the incident, several inches of crude oil remained in the containment berm. (Day 1, Tr. at

94);

see also,

 People’s Exhibit 12.

The facts are clear. Upon detection of a release of used oil to the environment, Prior

failed

to stop the release, contain the released used

oil,

clean up and

properly manage the

released used oil and other material and repair or replace any leaking used oil storage

containers or tanks prior to returning them to service. By so doing, the Respondent has

violated Section 739.122(d) of the Board’s Waste Disposal regulations, 35

 III. Adm. Code

739.122(d) and Section 21(d)(2) of the Act, 415 ILCS 5/21(d)(2) (2000).

26

IV!.

 Defenses.

James

Mezo’s Transfer Argument for the Mezo Oestreich site

is Without

Merit.

Mezo failed to allege as an affirmative defense that he transferred the Mezo Oestreich

lease to Prior before the June 30, 1997, release. Mezo failed to establish that, more likely than

not, he did not control the lease at the time of the release. While the evidence consisted of

testimony thatMezo sold the Oestreich lease and equipment to Prior before the release

occurred, Mezo admitted to possessing the operating permits from the Illinois DNR, Oil and Gas

Division, at the time of the spill event. (Day 1, Tr. at 142, 150-151; Day 2, Tr. at 30).

Bengal not only confirmed that Mezo wasthe permittee of record for the Mezo Oestreich

lease at thetime of the incident, but explained the applicable permitting requirements for oil and

gas producers under the Illinois Oil and Gas Act, 225 ILCS 725/1. (Day 2, Tr. at 19).

According to the Illinois Oil and Gas Act and associated regulations, a permittee is the person

holding the permit that authorizes their operation of the wells or the brine hauling transportation

system.

 (Day 2, Tr. at 17). The site’s permittee is responsible forcompliance with the Illinois

Oil and Gas Act. (Day 2, Tr. at 18);

see also,

 Section 1 Of the Illinois Oil and Gas Act, 225 ILCS

725/1 and 62

 III. Adm. Code240.10. Because Mezo was the Illinois DNR permittee for the

Mezo Oestreich lease, Mezowas the sole person authorized to

operate this lease.

However,

Prior physically operated the Mezo Oestreich lease.

Bengal testified to a recent review ofan Assignment between Mezo and Prior.

 In the

course of his review, Bengal determined that Mezo was posing as the permittee for the Mezo

Oestreich lease.

 (Day 2, Tr. at 19-21). Bengal further concluded that Mezo served as the

facility’s permittee due to Prior’s inability to operate the facility in his own name. (Day 2, Tr. at

22).

 A permit block existed against Prior due to a number of outstanding Illinois DNR

enforcement actions between the agency and Prior.

 (Day 2, Tr. 21-22). A veteran oil producer,

Mezo understood Prior could not attain a permit for the facility due to these outstanding

compliance deficiencies; thus, Mezo posed as the permittee and even continued to pay the

Illinois DNRannual well fees for the Mezo Oestreich lease. (Day 1, Tr. at 151; Day 2, Tr. at 22-

25);

see also,

 People’s Exhibit 26, 28. Mezo’s actions allowed Prior to run a lease that the

Illinois DNR, Oil and Gas Divisionwould never have permitted Prior to operate. The resulting

water pollution and environmental damage at the Mezo Oestreich lease would never have

occurred but for Mezo posing as the lease’s permittee.

2.

John

Prior’s Allegations of Vandalism Does

Not Negate Prior’s

Violations

of the Act.

Priorfailed to plead as an affirmative defense the purported vandalism at each site that

is the subject of the instant proceeding.

 Prior failed to show that, more likely than not, the open

dumping and/or spill events resulted from the actions of an unknown third party. The only

evidence consisted of conjecture by the Respondent.

 Prior testified to his conclusion that

vandalism was thecause of the incidents because another individual “hasa vendetta against

me for some reason, and

 I really don’t know why.” (Day 1, Tr. at 139). He provided no basis

for this conclusion on direct examination, but only offered conjecture stating that “every time it

happened,

 it either just rained or was raining at the time.” (Day 1, Tr. at 139).

 Prior failed to

elaborate on what,

 if any, connection existed between the rain events and his alleged claims of

vandalism.

The weight of anytestimony must be viewed in terms of interest and bias. The bias of a

witness toward a party forwhom he is called to testify is always pertinent on the question of his

credibility.

People v.

Emerling,

341

 III. 424, 173 N.E. 474 (1930).

 Priorwas responsible for the

operations at the four sites and now seeks to minimize his liability through these unsupported

allegations of vandalism.

The People contend that Prior has been less than forthright in his allegations and has

attempted to shift all of the blame for this spill onto the vandal(s). Assuming

arguendo

that

“somebody” else did in fact sabotage the facilities, Prior is still liable for the violations because

of his acts and omissions.

At the Gompers site, Prior’s vandalism allegation is completely meritless and contradicts

the on-site statements of not only himself, but his employees.

 First,

 in June 1996, a hose

discharged waste from a Prior Oil Company tanker truck into an abandoned mine shaft.

Moreover, a Prior Oil Company employee admitted to discharging material from tank batteries

into the abandoned mine shaft. (Day 1, Tr. at 16-17). Second, in August 2000, a waste-filled

pit existed a mere 150 yards behind Prior’s office.

 Prior initially claimed that he had no

knowledge about either the pit or its waste; nine days later, Prior asserted he had the pit dug

one month earlier to buryconcrete. (Day 1, Tr. at 42,

48).8

 While Prior eventually excavated

the waste items from the pit intoa roll-off box, theywere subsequently dumped in a pile back

on site. (Day 1, Tr. at 57).

Third, in November 2000, Prior admitted to instructing his employees to clean out oil-

contaminated straw from an on-site building and directing its burning even though he

recognized these directives were in defiance of environmental laws. (Day 1, Tr. at 24).

 Finally

in December, 2000, Chris Cahnovskycontinued to behold similar evidence of Prior Oil

Company tanker trucks dumping oil field generated waste.

 However, now that the State closed

the abandoned mine, the dumping transpired in a pile of concrete rubble and dense vegetation

on site. (Day 1, Tr. 55).

If Prior’s allegation of vandalism is true, an interesting question arises: why didn’t Prior

initially allege vandalism at the Gompers site?

 Prior never provided filed police reports nor

Chris Cahnovskynever observed any concrete in the pit. (Day 1, Tr. at 48).

presented any further elaboration on his vandalism allegations. The Board cannot engage in

conjecture as to whether a disgruntled neighbor might have been the purported vandal. The

record contains no plausible evidence whatsoever as to the identity of the “somebody” who

apparently conducts repeated and numerous acts of vandalism at the Prior sites, but there are

plenty of facts fromwhich conclusions and inferences may legitimately be drawn to establish

liability. The totality of the allegations of vandalism indicate the implausibility of Prior’s recent

allegations. To understand the extent of Prior’s alleged vandalism defense, the scope of the

acts covered

this

defense at the

remaining three sites

must be further explored.

Turning to the Park site, Prior initially reported to the Illinois Emergency Management

Agency (“IEMA”) that a lightening strike caused the spill. (Day 1, Tr. at 81

)~9

A day later, Prior

informed Cheryl Cahnovsky children opened a ball valve; seven days later, Prior told Cheryl

Cahnovsky that another competitor sabotaged his tank battery. (Day 1, Tr. at 81, 92). The

obvious question is which of Prior’s statements is true? Again, the Board cannot engage in

conjecture concerning Prior’s purported vandalism defense at the Park site, but must rely upon

legitimate facts in the record to determine liability.

 Based on on-site observations and Prior’s

inconsistent statements,

it is obvious that Prior’s allegation of vandalism

at the Park site is a

recent unsupported fabrication seeking to minimize his culpability for the allegations.

While Prior more Consistently alleged vandalism at the Mezo Oestreich and the Morgan

Kalberkamp sites, Prior never submitted filed police reports to the Board. (Day 1, Tr. at

103,108).

 Instead, Prior offered limited conjecture concerning hisvandalism allegations at all

four sites. (Day 1, Tr. at 139).

The record does contain substantiated evidence that site security was inadequate for

precluding access to potential trespassers or vandals. The Gompers, Mezo Oestreich and the

~While

on site on July 22, 1997, the Illinois EPA

did not observe damage to the tank

batteryfrom

a lightening strike.

 (Day 1, Tr. at 81).

Morgan Kalberkamp sites did not possess fences or other means to control access. (Day 1, Tr.

at 40,

108);

see also,

Exhibit

15,

16.

repeated

occasions, the

State

representatives

would

arrive to the Park site to

find the gates unlocked

and open to

the facilities.

(Day

Tr. at

81,

91,

94);

see also,

 Exhibit 11, 12. More likely than not, Prior failed to provide even marginal

attention to the securityand supervision of the facilities.

The Board

must

apply the law to these facts.

In the context of environmental liability,

the legal issues include whether Prior exercised control overthe source of the pollution and

whether it had taken

any precautions against vandalism.

Perkinson

Pollution

Control Board,

187

III.

App.3d

689 (3rd

Dist.

1989),

involved a

discharge from a swine waste

lagoon through a trench.

Perkinson

contended that he was

not

responsible for “causing or allowing” the discharge

because he lacked

knowledge of the trench

and

because

the trench was apparently

dug

by a vandal.

Citing

Phi/lips Petroleum

Co.

Pollution Control Board,

III.

App.

3d 217 (1979), the court stated that “the

law does not

impose strict liability on

property owners for pollution which results from

a cause

beyond the

owner’s control.”

187

III. App.

3d at 693.

The court discussed the factual

situations

Phillips

Petroleum

(involving

a spill caused

by a carrier in transit) and

Union Petroleum Corp.

United

States

(Ct. CI.

1981),651

F.2d

734

(involving

a spill caused

by vandals), the court observed:

The evidence in the case at bar is far less favorable to

the owner of the premises

where the pollution occurred.

There is

nothing to

indicate that Perkinson

had

taken

any precautions against vandalism,

and other than

his disavowal of any

knowledge or authorization for the digging of the trench,

no evidence

of the

source of the trench

was introduced at all.

At most Perkinson’s evidence would

permit the trier of fact to

draw an

inference of third-party intervention, but that

evidence does not compel a finding that Perkinson took reasonable precautions

prevent such

occurrences.

187

III. App. 3d at 693-94.

Having

dispensed with Perkinson’s factually unsupported claim that

the spill was not preventable,

the court explicitly rejected the arguments regarding lack of

knowledge:

Many cases

have held that the owner’s lack of knowledge

of the discharge is no

defense under the Environmental

Protection Act.

The leading

case is

Meadow/ark Farms,

Inc.

Pollution Control Board

(1974),

Ill.

App. 3d

851,

308

N.E. 2d

829, where water pollution was

caused by seepage through mine

refuse

piles.

The PCB found that

Meadowlark Farms owned the surface

rights of

the property and thus owned the source of pollution and had

the capability of

controlling the pollutional discharge.

187

III.

App. 3d at 694.

The court in

Perkinson

reaffirmed

“the long

line of precedent in

Illinois

which holds that the owner of the source of the pollution causes or allows the pollution within

the meaning

of the statute and

is responsible for that pollution unless

the facts establish the

owner either lacked

the capability to control the source, as

Philips

Petroleum,

or had

undertaken extensive precautions

to prevent vandalism or other intervening cause,

Union

Petroleum.”

187

III. App.

at 694-95.

The record

the present case against Prior

clearly shows that Prior had the capability

to control the four facilities at issue.

Moreover, Prior failed to undertake extensive precautions

to prevent vandalism or other intervening causes.

This failure is manifest in

Prior’s failure

repeatedly lock the gate at the Park site or to

install gates at the remaining

three sites.

Since the early days of the Act, Courts

have

affirmed that the ownership of the

pollutional

source supports

the imposition of liability under the Act for water pollution and other

violations

of the Act and

regulations caused or contributed

to by the pollution source.

See,

Meadowlark Farms,

Inc.

v. Pollution

Control Board,

(5th

Dist.

1974),

III. App.

851,

302

N.E. 2d 829, 835-36;

see

also,

Freeman Coal Mining Corp.

Pollution

Control Board,

(5t~

Dist.

1974),

21111. App.

157.

At each

of the release sites,

the Respondent exercised control

over

the property pursuant to oil leases.

Civil liability under the Act is grounded upon

control over

the source

of the pollution and the lack

of knowledge regarding

a release does not bar such

liability.

III.

THE

BOARD SHOULD IMPOSE A SUBSTANTIAL MONETARY

PENALTY BASEDON STATUTORYPENALTYFACTORS

The evidence

demonstrates that numerous

violations of the Act and regulations have

occurred.

Section

42(a) of the Act permits the

Board

to impose penalties

against those who

violate any provision

of the Act or regulation

adopted

bythe Board, 415 ILCS 5/42(a)

(2000).

The Board

may impose a maximum penalty of $50,000.00

for each violation of the Act,

and

additional $10,000.00

penalty for each

day the violation continues, 415

ILCS 5/42(a)

(2000).

The

Board

has broad discretionary powers to assess civil penalties

under the statutory

authority vested by the Act,

Southern Illinois Asphalt Company

Pollution

Control Board,

III.

104, 326 N.E.

2d 406 (1975).

Courts have

traditionally upheld

the imposition of civil

penalties where

it will “aid

in the enforcement of the Act,” but not where it is shown to

be merely

“punitive.”

Southern Illinois Asphalt Company,

326

N.E.2d at 412;

see also,

City of Monmouth

Pollution Control Board,

Ill.

2d 482,

313 N.E.

161

(1974) (punitive considerations for

civil penalties are secondary).

In the last thirty years of enforcement under the Act, civil penalties

assessed

by the

Board or Illinois courts

have fallen

between two ends

of a spectrum.

On the

one end,

little or no

civil penalties

have

been deemed necessary because of pertinent facts that weighed heavily

upon

the nature of the violations or the extent of the alleged pollution.

Technical or paperwork

violations,

such as the failure to obtain permits or submit reports, have frequently been afforded

this treatment.

See, Park Crematory,

Inc.

Pollution Control Board,

201

Ill.

Dec. 931, 637

N.E.2d 520

(1st Dist.

1994);

Tn/la Steel Drum Corporation

Pollution

Control Board,

180

III.

App.3d

1010,

536

N.E.2d 788

(1st Dist.

1989).

Similarly, the inadvertence of the respondent,

Southern Illinois Asphalt Company, supra,

the good faith efforts of a respondent to

bring about

compliance prior to

the filing of a complaint,

Park Crematory,

Inc., supra; Bressler Ice Cream

Companyv.

Pollution Control Board,

lll.App.3d

560, 315

N.E.2d 619

(1st Dist.

1974), and

lack

of any economic benefit from

noncompliance,

Park Crematory,

Inc.,

supra,

have figured

prominently

in cases involving

low or nominal

civil penalties.

On the other end

of the spectrum, some enforcement actions brought under the

authority of the Act

have

resulted in substantial

monetary

penalties.

In these cases,

circumstances

showing the unreasonableness of the respondent’s conduct or its lack of good

faith,

ESG Watts,

Inc.,

v. Pollution

Control Board,

282

III.

App. 3d 43,

668

N.E.2d

1015

(4th

Dist.

1996), the seriousness and

lengthy duration attributed to

the violations,

People

John

Prior and Industrial Salvage,

Inc.,

PCB No.

97-111

(November 20,

1997);

People

Panhandle

Eastern Pipeline Company,

PCB No.

99-191

(November 15,

2001), the need for deterrence,

People

Waste Hauling Landfill, Inc and Waste Hauling,

Inc.,

PCB

No.

95-91

(May 21,

1998),

or the accrual of a significant economic

benefit,

Panhandle, supra,

have

been

important

considerations in the penalty determination.

Of course, most

litigated cases fall somewhere

in the middle

of the aforementioned

spectrum.

The determination as the amount of the penalty is dependent on the

unique facts of

each case, as no exact “formula” for arriving at

a penalty exists.

People

Bernice Kershaw

and Darwin Dale Kershaw,

PCB No.

92-164

(April 20,

1995);

People

ESG

Watts,

Inc.,

PCB

No. 96-233 (February

1998).

Based

numerous aggravating facts supported by the record,

the

People contend that this case against John

Prior should

be ranked

the higher end of the

penalty spectrum.

However,

based on several

mitigating facts,

any penalty imposed against

James

Mezo should

be ranked at the lower end of the penalty spectrum.

making

its orders, the Board

is required to consider any matters of record

concerning

the reasonableness of the alleged

pollution,

including those factors

identified

in Section

33(c).

The Board

is also authorized

by the Act to

consider any matters of record

concerning the

mitigation

or aggravation of penalty,

including those

matters specified

Section 42(h).

See,

People

Bernice Kershaw and Darwin Kale Kershaw d/b/a Kershaw Mobil Home Park,

PCB

92-164 (April 20, 1994). The People will outline its penalty demand in

two parts: first,

consideration of the Section 33(c) factors and secondly, a consideration of the Section 42(h)

factors.

Section 33(c) Factors.

The

character and

degree of injury or interference.

From at least June

13,

1996,

to a date

better known to Prior on or about March

12,

2003, Prior allowed open dumped waste to remain on the Gompers site without the required

permits from the Illinois EPA.

(Day

1, Tr. at

16-19,

20-23, 40-41, 43-50,

52-57,

65-68);

see

also,

Exhibit

3, 4,

Prior’s failure to

attain

the required

permits served

to undermine the

permitting process set up through the Act and Board regulations...”

People of the State of

Illinois

Sure-Tan, Inc.

 PCB 90-62, page 9 (April 11, 1991).

 Not only did the oil in the pitpose

a fire hazard,

but

it contained

toluene, ethylbenzene, benzelethelene,

xylene, other polynuclear

aromatics and

2, 4, 6 tri-bromophenal.

(Day

Tr. at 43-47);

see also,

People’s

Exhibit

Chris Cahnovsky explained that the oil in the pit could contaminate nearby groundwater, cause

soil contamination and release volative organiccompounds into the atmosphere. (Day 1, Tr. at

41,

47).

In addition, the off-rim tires provided a potential

breeding ground for mosquitos,

the oil-

production waste dumped in the abandoned mine

shaft posed

a threat to

nearby groundwater;

the open burned oil-contaminated straw caused or threatened air pollution; and the overfilled oil

drums caused

soil contamination and during

storm water runoff,

posed

a threat of surface water

contamination. (Day 1, Tr. at 18, 20, 24, 50-51).

 Accordingly, this factor should be weighed

against Prior at the Gompers site.

addition,

Prior caused,

allowed or threatened the discharge of contaminants

near

various unnamed

tributaries that

led

Fulton Creek,

Fulton

Creek and

Sewer Creek so as to

cause or tend to cause water

pollution.

each instance, visible

oil and/or petroleum scum

coated the unnamed

tributaries,

Fulton

Creek and

certain instances,

Sewer Creek.

(Day

Tr.

at 78,

83-84,

88-89,

100-112,

124-129).

At the

Mezo Oestreich

site, Mezo caused or

allowed the discharge

of oil that covered an

unnamed tributary to

Fulton Creek,

Fulton

Creek

and

Sewer Creek so as to

cause or tend to cause water pollution.

(Day

1, Tr.

124-129).

The

Respondents’ noncompliance caused an

actual

risk to the nearby tributaries,

Fulton

Creek and

certain instances,

Sewer Creek,

and therefore establishes the unreasonableness of the

violations that should

be weighed against the

Respondents10.

Cf.,

People v.

John Prior and

Industrial Salvage,

Inc.,

PCB

No.

97-111

(November 29,

1997).

The social

and economic value of the

pollution source.

The Board has previously found that a pollution source typically possesses a “social and

economic value” that is to be weighed against its actual or potential environmental impact.

People

Waste Hauling Landfill,

Inc., and Waste Hauling,

Inc.,

 PCB No. 95-91 (May 21, 1998).

However, the operation of a site without the required permit diminishes such value as

 it violates

the law.

See, People of the State of Illinois

Sure-Tan,

Inc.

 PCB 90-~2,page 9 (April 11,

1991).

 Prior’s operation ofan un-permitted opendump at the Gompers site did not provide a

social and economic value to the community.

The Peopledo not dispute that oil production operations have value to the community.

In these instances, however, Prior’s operation of three noncompliant oil production sites did not

provide a social and economic value to the community. At the Mezo Oestreich site, this factor

is further aggravated by Mezo posing as the permittee because Prior did not possess the

required

 IllinoisDNR permit.

 Accordingly, this factor should beweighed against both

Respondents at the Mezo Oestreich site.

In addition, Prior interfered with the Illinois EPA’s inspections of these incidents due to his

inconsistent statements to field staff.

See,

 II.M.2

The suitability or

unsuitability of the pollution source.

The pollution sources, the Park, the Mezo Oestreich, and the Morgan Kalberkamp sites

are located in close proximity to various unnamed tributaries that lead to Fulton Creek. Of

greatest concern is the Park site which

 is in the city park and abuts a baseball field.

Accordingly, the People dispute the suitability of these three sources to the areas in which they

are located. The People do not dispute the suitability of the location of the Gompers site.

The technical

practicability and economic reasonableness of compliance.

Itwas technically practicable and economically reasonable for Prior to eliminate his

noncompliance at the Gompers site through the labeling of all containers storing used oil with

the words “used oil”; the remediation and the appropriate disposal of the used oil surrounding

the two drums, in the pit, in the concrete and dense vegetation, and any other oil-stained area;

and the removal and disposal of allwaste to a sanitary landfill or recycling facility, as

appropriate.

 Moreover,

 itwas technically practicable and economically reasonable for Prior to

attain compliance at the Park, Mezo Oestreich and Morgan Kalberkamp sites by stopping the

release, containing the released used oil, cleaning up and properly managing the released used

oil and other contaminated material.

 In addition,

 it was technically practicableand economically

reasonable for Prior to repair or replaceany facility leaking used oil before returning them to

service.

In the same manner,

it was technically practicable and

economically reasonable for

Mezo to achieve compliance at the Mezo Oestreich.

Subsequent compliance.

The People acknowledge that the Respondents have recently made efforts to address

their noncompliance following

notification of noncompliance

by the Illinois Attorney General’s

Office.

 However, Prior’s recent compliance at the Gompers site cameonly after Illinois EPA

field staff personally informed him on at least fouroccasions of the measures necessary to

bring, the site into

compliance,

See,

(Day

1, Tr. at 42-43,

48, 50);

see

also,

Exhibit

3, 4;

the

Illinois EPA mailed

Violation

Notices providing the same

information to

Prior,

see,

(Day

1, Tr. at

51-52),

see also,

 Exhibit

3; the

Illinois EPA mailed

a Notice

of Intent to

Pursue

Legal Action

(“NITPLA”) letter to

Prior,

See

(Day

Tr.

at 59-60);

see also,

 Exhibit

and the Illinois Attorney

General’s Office filed

a complaint before the Board,

See,

Complaint filed April

19,

2002.

Moreover,

Prior’s compliance at the Park site did

not come

until the Illinois

EPA

emergency responder repeatedly

informed

him of the necessary compliance measures on July

22 and

28,

1997,

See,

(Day

1, Tr. at 85-87,

90, 92),

see

also,

Exhibit

11; the Illinois sent

Violation

Notices to

Prior containing the same information,

See,

(Day

Tr. at 95-96),

see also,

Exhibits

3 and 4;

and the Illinois

EPA mailed a NITPLA

Prior,

See,

(Day

1, Tr.

97).

To attain

Prior’s and

Mezo’s compliance at the Mezo

Oestreich site, the Illinois

EPA field

staff had to

inform the Respondents of the required remedial activities,

See,

(Day

1, Tr.

103),

see a/so,

Exhibit

16;

the Illinois EPA had

issue Violation

Notices,

See,

(Day

Tr.

131),

see also,

Exhibits 20 and 21; the Illinois EPA had to

mail a

NITPLA,

See,

(Day

1, Tr.

at 134);

and

the Illinois Attorney General’s

Office had to

initiate this proceeding.

Finally,

Prior’s late compliance

at the

Morgan Kalberkamp site came

only after the

Illinois

EPA emergency responder informed

him

on both

July 19

and 24, 2000, of the necessary

compliance activities,

See,

(Day

1, Tr.

109,

112),

and the Illinois Attorney General’s Office

filed suit against Prior.

It should

not be deemed

a mitigating factor if compliance is achieved only

after

enforcement proceedings are

initiated.

ESG

Watts, Inc.

IPCB,

282

III.

App.

3d 43, 52-53

(4th

Dist.

1996).

(“Evidence.

presented regarding petitioner’s failure

to comply with

many

regulations until after enforcement proceedings were initiated, of the hardship imposed

upon

the Agency

collecting monies

due

& the necessity of deadlines to

ensure the smooth

operation of the Agency.

The Board’s decision that

a stiff penalty was warranted to deter

future violations was neither arbitrary nor capricious.”). While the Respondents have recently

achieved compliance, with the exception of the Park site, the violations continued until the

initiation of enforcement proceedings by the Attorney General’s Office.

Section

 42(h) Factors.

Under Section 42(h) of the Act, 415

ILCS 5/42(h)

(2000),

the

Board

must examine the

following factors when making determination on an appropriate civil penalty; duration and

gravity of the violations, due diligence of the violator to address the violations, the economic

benefit that accrued to the violator, the monetaryamount that will deter further violations of that

violator and others similarly situated, and any previously adjudicated violations.

The duration

and gravity of the violation.

A civil penalty imposed

under the Act must “bear some

relationship to

the seriousness

the infraction or conduct” of the polluter.

Southern Illinois Asphalt Company, supra;

Tnilla Steel

Drum Corp.

v. Pollution

Control Board,

180

III.

App. 3d

1010,

1013 (1989) (penalty should be

“commensuratewith the seriousness of the infraction”). The Act “authorizes the Board to

assess civil penalties for violations regardless ofwhether these violations resulted in actual

pollution.”

ESG

Watts v.

Illinois Pollution Control Board,

282

 III. App. 3d 43, 51(4th Dist. 1996).

In this case, the evidence establishes repeated violations of long duration and significant gravity

committed by

Prior.

Meanwhile, Mezo’s violations at the

Mezo Oestreich site are more aptly

characterized as an isolated event.

Duration.

Prior open dumped a variety of waste

items including

liquid

crude oil and defied a

number of waste disposal

regulations at

the Gompers site since a date better known to the

Respondent on or before June 13, 1996.

 In addition, Prior caused repeated releases of oil to

State waters since at least on or before

June 30,

1997.

While the water pollution incidents

occurred in 1997 and 2000, Prior did not submit documentation verifying compliance until March

2003. Appellate Courts have affirmed the imposition of penalties for violations which did not

directly result in adverse environmental consequences but were of a longstanding and repeated

nature.

People

McHenry Shores

Water Company,

295

 III. App. 3d 628, 393 N.E. 2d at399

(2~’

Dist.

1998).

Prior’s noncompliance spans

a period

of approximately six and a half years

and as such, this factor should beweighed heavily against Prior.

As detailed

supra,

violations were first observed by the Illinois

EPA at the

Mezo

Oestreich site on July 1, 1997, but began at a time better known to Respondent Mezo.

Violations continued

until

Mezo submitted documentation verifying compliance

in March

2003.

Violations occurred over a period of six years, during which time Mezo received Violation

Notices

and NITPLA letters from the

Illinois EPA.

Gravity.

The Board

should consider the seriousness of Prior’s discharge of oil production waste

to an abandoned

mine shaft,

release of oil to the ground from two unlabeled

and opened

drums

of used

oil,

open dumped waste and

oil

in an

on-site

pit,

open dumped and

burned

oil-

contaminated straw, open dumped tires,

open dumped oil-well development waste in

concrete

rubble and dense vegetation, and failure to possess a permit from the Illinois EPA to conduct a

waste-storage, waste-treatment or waste-disposal operation.

The gravity of these violations were discussed by Grant and Chris Cahnovsky.

 First, the

oil well development waste dumped

in the abandoned mine shaft

not only caused

land

pollution,

but threatened groundwater. (Day 1, Tr. at 20). Second, concerns were expressed of soil

contamination and during storm water runoff, potential surface water contamination in the area

of the overfilled oil drums.

(Day

1, Tr.

at 50).

Third, the

oil

in the on-site

pit contained toluene,

ethylbenzene,

benzelethelene, xylene,

other polynuclear aromatics and 2, 4,

6 tri-bromophenel

and may have resulted in the release of volatile chemicals to the air. (Day 1, Ti. at 41, 45-50).

Moreover,

the open dumped waste

and oil caused

land pollution,

threatened groundwater, was

ignitable and

met the definition of a

DOT flammable waste.

(Day

1, Tr.

at 41, 43-47);

see also,

People’s Exhibit 3.

Fourth,

open dumped oil-contaminated straw caused

air pollution when

open

burned.

The combustion ofanymatter in the openmay result in the release of contaminants to the air

that maybe injurious to human, plant or animal life, to health or property or cause a nuisance.

(Day 1, Tr. at 24).

 Fifth, the open dumping of tires can cause or threaten the spread of certain

disease

carrying vectors (including mosquitos carrying the West Nile virus) when off-rim tires

are

not covered

and water is allowed to accumulate inside the tire.

(Day

1, Tr. at

18).h1

Sixth,

the open dumped

oil-well development waste in

concrete rubble and dense vegetation caused

soil contamination and posed a risk forgroundwater contamination, stormwater runoff and

surface water contamination. (Day 1, Tr. at 57).

 Finally, the failure to possess the required

permits from the Illinois EPA for the Gompers

site “undermined the permitting process

set up

through the Act and Board regulations..

.“

See, Sure-Tan,

supra.

The impacts associated with the Respondents’ oil releases are one more consideration

for this

Board.

Extensive

oil

impacts existed

at the sites of the three

incidents.

At least 3

miles

downstream and 2.5 miles downstream of the releases at the Park and

the

Mezo Oestreich

sites, respectively,

pollutional impacts were evident.

(Day

Tr. at 83-84,

88-89,

124-129).

The

seriousness of the water violations can

only be

understood through an appreciation of the

underlying goals of Section 12 of the Act. Section 12 prohibits both pollutional discharges to

~ Mosquitos

are

a vector that breed

in the stagnant water often

found

in off-rim tires.

(Day 1, Tr.

at 18).

waters of the State

as well as water pollution hazards posed by contaminants deposited

upon

the

land in

proximity to

waters.

The intentionally broad statutory definition

of “waters” includes

not

only surface streams and ponds,

and groundwater,

but also sloughs and

intermittent

waterways such as drainage ditches and

seasonal creeks.

The pollution caused

the crude oil releases to the waters

of the State is obvious.

The

offensive conditions resulting from even a small amount of oil include the various types of

sheen

on the surface and

deposits of sediments or sludge

on the bottom of the streams.

The

physical and chemical conditions of the streams are altered by the oil to the extent that aquatic

life cannot exist.

The Respondents’

noncompliance caused the actual

release of contaminants

and therefore establishes the unreasonableness of the pollutants that should be weighed

against both Prior and Mezo.

See, Prior and Industrial Salvage, supra.

 The Respondents’

noncompliance caused an

actual risk to State

waters, its inhabitants

and users

and therefore

establishes the gravity of these violations.

The presence or absence

of due diligence.

Prior exercised

no diligence

during

the years it was

causing

releases

of oil

to State

waters and even defied Illinois EPA instruction by inappropriately dumping recently-excavated

material

back

on the ground

the Gompers

site.

Prior had

innumerable opportunities to

observe and correct his noncompliance.

 Instead, Prior waited until after the initiation of

enforcement by the State of Illinois before it completed compliance efforts. These uncontested

facts

demonstrate a

lack of good faith

by the Respondent Prior.

In the same token, Mezo

required nearly 7 years to finalize compliance at the Mezo Oestreich site and thus, evince a lack

of good faith.

Good faith

has

not been found to

be a matter of intent, since neither intent or guilty

knowledge is a necessary element to finding

a violation.

Rather,

good faith attempts at

compliance are a significant factor to consider in determination

of an appropriate penalty.

Bressler Ice Cream

Company

Illinois

Pollution Control Board,

21111. App.

560,

315 N.E.

619

(1St Dist.

1974);

Chicago Magnesium

Casting Company

Illinois Pollution Control Board,

III. App.

3d 489,

317 N.E.

2d 689

(1St Dist.

1974);

CPC International,

Inc.

Illinois Pollution

Control Board,

24111. App. 3d, 203, 321

N.E. 2d

58 (3d

Dist.

1975).

If violators “evince a sincere

desire.

to cooperate...

this attitude should

be noted

and

encouraged” by taking

it into

account during

the penalty assessment.

Bressler Ice Cream,

315

N.E.

2d at 621.

Penalties

may be mitigated when the violator acts promptly

to correct the violation

and demonstrates

cooperative efforts.

CPC International,

321

N.E. 2d

61.

Good faith

has

been inferred from behavior which reflects diligence and which

reasonably directed towards the goal of achieving compliance.

Illinois EPA

v. A//en Barry,

PCB

No. 88-71,

1990

III.

ENV.

LEXIS 465,

74 (May

10,

1990).

In the instant case,

no such inference

may be

made as the Respondents required nearly 7 years to comply.

Despite numerous

conversations with

Illinois EPA field staff, Violation

Notices and

NITPLA letters repeating those

measures necessary to

bring the respective sites into

compliance, the Respondents

only

finalized compliance efforts after the initiation of enforcement by the Office of the Attorney

General.

(Day

1, Tr. at 42, 43, 48,

50-52,

59-60,

85-87,

90-92,

95-97,

103,

109,

112,

131,

134);

see also,

People’s Exhibit 3,4,7,

11,

16, 20, 21.

At best,

good faith and due diligence on the

part of the Respondents were minimal.

Nor is it a defense

to findings of violations or a

bar to

assessment of civil penalties

that

the

Respondents have

recently come into compliance with the Act and associated

regulations.

Section 33(a) of the Act, 415 ILCS 5/33(a) states,

in pertinent

part:

It shall not be a defense to findings

of violations of the provisions of the Act or

Board

regulations or a bar to the assessment of civil penalties that the person

has come into compliance subsequent

to the violation, except where such

action

is barred by

any applicable State or federal statute of limitation.

In the case of

Modine Mfg.

Co.

Pollution

Control Bd.,

193

III. App.3d 643,

648 (2d

Dist.

1990), the court included the following

in its

reasoning:

Initially,

Modine contends that the imposition of a penalty here would

not aid

the enforcement of the Act because it was no longer in violation of the Act at the

time the complaint was filed.

While there

is arguably some

support for this view,

we believe

all the relevant facts

and circumstance must be examined

determine

if a civil penalty is to

be imposed

as a

method to

aid

in the

enforcement of the Act.

Thus,

we decline

hold categorically that penalties

may not be

imposed for wholly past violations

(citations omitted).

As stated

in Section

33(a) of the Act,

and

recited

Modine,

it is not a defense to

findings of violations or a

bar to assessment of civil penalties

that the person

has recently

come

into

compliance with the Act and the regulations promulgated

thereunder.

As discussed

supra,

if compliance

is achieved only after enforcement proceedings are

initiated, due

diligence should

not be weighed

in favor of the violator.

See, ESG

Watts, Inc.

Illinois Pollution Control Board,

282

III. App. 3d 43, 52-53 (4th

Dist.

1996).

The

record

reveals that the Respondents were

not

only

informed of those measures

necessary to

bring the sites into

compliance,

but that the

Respondents,

particularly Prior, continued

to blatantly disregard

Illinois EPA instruction despite

repeated

conversations with

Illinois EPA personnel and written

notices

and warnings from the

Illinois EPA.12

short, good faith

and due

diligence

on the part of the Respondents were

minimal and

clearly,

should

not be weighed in favor of the Respondents.

3.

 Economic benefit.

As set forth within Section 42(h)(3) of the Act, the

Board

is authorized

to consider any

economic benefits derived by

a violator in determining

an appropriate civil penalty to

remove

neutralize

the economic incentive to violate environmental laws

and regulations.

United

States

Smithfield Foods,

Inc.,

 972 F. Supp. 338 (E.D. Va 1997), the court acknowledged that

In addition,

Prior’s inconsistent statements to field

staff concerning the’cause -of the

various incidents evince a lack of good faith and due diligence on his

part.

See,

II.M.2.

the

goal of deterrence requires a

penalty to have

both an

economic benefit

component to

ensure that the violator does

not profit from

its violation of the

law, as well as

punitive

component to account for the degree

of seriousness of the violations.

A penalty should include

the economic benefit of noncompliance; otherwise, the violator and the potential violators would

perceive that it pays to violate the

law,

creating an obvious disincentive for compliance.

Accordingly,

it is apparent that the goal of economic benefit is to prevent a violator from

profiting from its wrongdoing.

Economic benefit to an environmental violator is not only the monetary gains derived by

lack of compliance, but the cost savings resulting

from delayed

compliance.

Standard Scrap

Metal Company

Illinois Pollution

Control Board,

142

III. App. 3d 655, 491

N.E.

1251

(1st

Dist.

1986);

Wasteland,

Inc.

Illinois Pollution Control Board,

118

III.

App. 3d

1041, 456

N.E.2d

-964

(3rd Dist.

1983).

Not assessing

a civil penalty,

and

merely permitting a respondent to allege

that the cost

associated with coming

into compliance following

enforcement action

is a

sufficient penalty encourages violators to wait until

enforcement action is begun

before

complying with the

law.

Wasteland,

Inc.,

456 N.E. 2d at 976.

The existence of economic benefit may be assumed without introduction of evidence

the

matter.

People

Waste Hauling Landfill,

PCB No.

95-91

pg. 29

(May 21,

1998);

See

also,

ESG

Watts,

Inc.

Illinois Pollution

Control Board,

282

III. App. 3d 43,

53 (4th

Dist.

1996)

(“Although the evidence supporting

any economic benefit gained through the

late filing of

reports

is slight

nonexistent,

we deem

it reasonable to

assume petitioner received the ‘time

value of money’ by delaying the expenditures necessary to prepare such

reports. Certainly,

petitioner received

an economic

benefit by delaying its

payment

of quarterly fees”).

In the instant case,

Prior not

only failed

to timely

remediate, remove and

appropriately

dispose of all open dumped waste from the Gompers site,

but failed to

attain the required waste

disposal

permits from the Illinois EPA.

Failure to

attain permits saves the offender the time and

expense of acquiring the permit.

See, People of the State of Illinois’ v.

Sure-Tan,

Inc.

PCB 90-

62,

page 9 (April

11,

1991).

Prior also failed to timely stop

the releases, contain

the released

used oil,

clean up and

properly manage the released used

oil and

other contaminated

material,

and

to conduct final clearance

sampling at

the remaining

incidents.

These are all costs

that

Prior either failed to

expend or delayed expending, thereby providing Prior a considerable

economic benefit.

Finally,

Mezo accrued an economic benefit due to

his failure to

timely

contain and

remediate the released used

oil at the

Mezo Oestreich

site.

The amount of penalty which will serve

to deter

or enhance voluntary

compliance.

The imposition

of a civil penalty for each violation

may deter further violations by the

one

penalized or by others, thus aiding

in the administration of the Act.

Southern Illinois

Asphalt

Illinois

Pollution Control Board,

III. 2d

204, 326

N.E. 2d 406 (1975).

Through the

imposition

of penalties

upon those who blatantly disregard

applicable

rules

and regulations,

others who

might consider cutting

corners at the expense

of the environment are deterred.

Wasteland,

Inc.,

456 N.E. 2d

at 967.

“The assessment of penalties against recalcitrant

defendants who have

not sought to

comply with the Act voluntarily

but who have by their

activities forced the Agency or private citizens to

bring

action against them may cause other

violators to act

promptly and

not wait for the prodding of the Agency.”

Lloyd A. Fry Roofing

Company v.

Pollution

Control Board,

III.

App. 3d 412;

361

N.E. 2d 23, 28-29.

(5th

Dist.

1977).

This position was specifically adopted in

1986 by the First District in

Standard Scrap

Metal Co.

v. Pollution

Control Board,

142

III. App.

3d 655

(1st Dist.- 1986).

Deterrence

is an appropriate objective for the Board

to evaluate in its penalty

assessments, even where

a violator has

already achieved

compliance or the violations

have

caused

no environmental

harm.

ESG

Watts.

Inc.,

v. Pollution

Control Board,

282

III. App. 3d

43,

668

N.E. 2d

1015

(4th

Dist.

1996) (respondent’s compliance came only

after initiation of

enforcement,

and associated hardships

imposed on

Illinois

EPA warranted a “stiff” penalty to

assure deterrence).

There is a pronounced

need for deterrence

in the instant case.

The Board

should

place

a high

priority on assessing a

penalty that is

substantial

enough

to encourage future compliance

by Prior and the regulated

community.

This deterrence is necessitated by Prior’s egregious

actions

at the Gompers

site in defiance of Illinois EPA directives

and the repeated conduct

associated with

Prior’s water

pollution violations.

Moreover,

Prior’s extensive noncompliance

history dictates the Board’s imposition

of a significant monetary penalty to

prevent operators

that might, through design or coincidence,

mirror Prior’s “environmental

programs.”

addition,

Mezo must be deterredfrom posing as another oil facility’s permittee in the future. A high civil

penalty against Prior and a more

moderate civil penalty against Mezo will provide an incentive

for other oil operators to comply with the Act and will preserve the waters of the State.

Previously adjudicated violations

of the Act.

The People are currently unaware of any previously adjudicated

 violations of the Act

involving

Mezo; however, Prior

has an extensive

 non-compliance history. In fact, Prior has one

of the longest, if not the longest, environmental non-compliance history

Illinois.

Shortly after

the enactment of the Act

1970, the Board found

Prior in

violation, of Section 2 1(d) of the Act

and

Rules 201

and

202(a) of Chapter 7,

Solid Waste, for developing and operating a solid

waste management site

Marion County without the required development and operating

permits from the

Illinois EPA.

See, Environmental Protection Agency

John Prior,

 PCB 75-

184 (September 4,

1975).

The Board assessed

a $100.00 penalty for the violations.

A decade

later, Prior

continued

to defy

State environmental laws; this time the violations

occurred

two sites commonly referred

to as the Centralia/Prior and the Centralia/Prior

Blackwell landfills.

 In 1985, the People alleged that John Prior d/b/a Industrial Salvage, Inc.,

failed to place daily cover on exposed refuse in violation of 35

 III. Adm. Code807.305(a) and

807.301; failed to

spread and

compact refuse

in violation of 35

Ill. Adm.

Code 807.303(b) and

807.301; failed

to deposit refuse

into the toe of the fill

in violation of 35

III. Adm. Code

807.303(a)

and 807.301; failed to

collect and

dispose of litter in violation of 35

III. Adm.

Code

807.306 and 807.301; failed to comply with permit conditions in violation of 35

 Ill. Adm. Code

807.302 and 807.301; and failed to control leachate adequately in violation of 35

 III. Adm. Code

807.314(e) and 807.301.

Each

of these violations also

resulted

in a violation of Sections 21(a)

and (d)(2) of the Act.

 Prior agreed to paya civil penalty in the amount of $12,000.00 for these

violations.

See,

People

v. John Prior d/b/a Industrial Salvage,

Inc.,

Marion

County

No.

85-CH-

17 (August 5, 1986).

December 8,

1993, the State filed

yet another complaint against John

Prior and

Industrial Salvage.

See,

People

John

Prior and Industrial Salvage,

Inc.,

 PCB 93-248. After

an evidentiary hearing, the Board entered an order and opinion finding that Prior and Industrial

Salvage,

Inc., violated

Section

12 of the Act,

by causing or allowing

pollutional discharges

from

the landfills to a stream; Section 21 of the Act, by failing to comply with permits issued by the

Illinois

EPA regarding the required closure

and corrective actions for landfills;

and Section

21.1

of the Act, by failing to postadequate financial assurance for the sites. The complainant did not

seek a monetary penalty against the respondents because theywere both engaged in

bankruptcy proceedings.

See,

Opinion and

Order of the Board

dated July 7,

1995.

In 1996 and 1997, the partieswere again before the Board for violations at three landfills

near

Centralia known as the Centralia/Prior site, the Prior/Blackwell site

and the Industrial

Salvage site.

See, People

John Prior and Industrial Salvage,

Inc.,

PCB 97-111.

The

People

alleged

that the respondents

failed to

monitor and

report groundwater quality, failed

to maintain

and secure

monitoring wells, discharged contaminants

into the groundwater causing water

pollution,

and failed to

implement a corrective

action plan.

The Board found the respondents to

in violation of the Act

and Board

regulations and

imposed a civil penalty against the

respondents in the amount of $287,000.00 and ordered the respondents to reimburse

complainant $2,520.00 for attorney fees.

See,

Opinion and Order of the Board, dated

November 20,

1997.

Due

Prior’s extensive non-compliance

history,

not only should the

Board aggravate this factor,

but the Board should

impose a significant penalty against Prior to

deter future violations.

IV. RELIEF

 REQUESTED

The People

request a final order from the

Board

imposing

an appropriate civil penalty for

each

count of the Complaint.

Accordingly, the

People recommend the following

relief:

Statutory Maximum

Penalty.

The Board has

typically looked to

an estimation of the statutory maximum penalty as

logical benchmark to

begin considering

matters

aggravation and

mitigation of penalties.

See,

Panhandle, supra.

 The formula for this penalty calculation starts with a reference to the

statutory maximum penalties available

under Section 42(a) and

(b) of the Act.

A penalty for the

initial violation of statutory or Board

regulations is first derived by

multiplying the statutory

maximum penalty amount by the actual

number of

 violations.

 Additional violations are

computed for each day of noncompliance which are then,

in turn, added

to the initial penalty

calculation.

See, ESG

Watts, Inc.,

supra; People

v. James and Carol Gilmer,

 PCB No. 99-27

(August 24,

2000).

For instance,

at the Gompers site,

Prior’s violation of Section 21(a) of the Act results in

a statutory maximum penalty

of $50,000 for the principal violation

and an additional

$24,640,000 for each

day of continuing violations (i.e.,

2464 days x

$10,000

$24,640,000).

The total penalty for Prior’s Section 21(a) violation

at the Gompers

site alone

is an

estimated

$24,690,000 (i.e.,

$50,000

24,690,000).

A calculation of the statutory maximum penalty for

Prior’s remaining

land

pollution violations would

generate similar statutory

maximum penalties.

addition, a

calculation of the statutory maximum penalty for Prior’s water pollution

violations at the

Park,

Mezo Oestreich and

Morgan

Kalberkamp sites and

Mezo’s water

pollution violation at the

Mezo

Oestreich site would

produce comparable

statutory maximum

penalties.

For instance,

at the

Mezo Oestreich

site, Prior’s and

Mezo’s violation of Section

12(a) of the Act has a

statutory maximum penalty of $50,000

for the principal violation

and an

additional $20,820,000 for each day of continuing violations

(i.e.,

2080 days x $10,000

$20,820,000).

The total penalty apiece for Prior’s and

Mezo’s Section

12(a) violation

estimated

at $20,870,000 (i.e., $50,000

$20,820,000).

A similar calculation for the

Respondents’

remaining water pollution violations would

result in

similar penalties.

set forth

herein,

a substantial fine

is warranted in

this case.

The People are

not

requesting

the potentially assessable statutory maximum as

plead

in the Complaint.

discussed

supra,

the potentially assessable statutory maximum is well in

excess of hundreds of

millions of dollars against Prior and

in excess of millions of dollars against Mezo.

Alternatively,

the People argue that a penalty of $100,000

is reasonable for Prior and

$3,500 is a reasonable

penalty for Mezo given the circumstances and due

consideration of the factors

enumerated

under Section

33(c) and 42(h)

outlined above.

The

People

cite the following cases

support of

their contention:

circumstances showing the unreasonableness

of the Respondent’s conduct or

its

lack of good faith prompted the

Board

assess a

penalty of $680,200,

People

ESG

Watts,

Inc.,

PCB

96-233 (February

1998);

the Respondent’s

blatant disregard

for the

applicable

law and

corresponding lack

of due diligence resulted

a $200,000.00 penalty,

People

Summit Environmental Services,

Inc.,

PCB

No.

94-202

(September 21,

1995); the

seriousness and

lengthy duration attributed to the violations resulted

in a $287,000 penalty,

People

John Prior and Industrial Salvage,

Inc.,

PCB No~

9-111

(November 20,

1997);

see

also,

the imposition

of a $164,000.00 penalty for water pollution violations

People

Riverside

American Farms,

Franklin County Circuit Court No 92-CH-38,

October 20, 2000; the need for

deterrence prompted the

Board

to impose a $472,000 penalty,

People v.

Waste Hauling

Landfill,

Inc and Waste Hauling,

Inc.,

PCB

No. 95-91

(May 21,

1998); and

most recently the

accruing of a significant economic benefit

and the lengthy

duration of the violations

resulted

Board

imposing a $850,000

penalty,

People

Panhandle Eastern Pipeline Company,

 PCB No.

99-191

(November

15, 2001).

As set forth in the People’s discussion of the Section 33(c)

and

42(h) factors

above,

all of these factors exist in this case against Prior

and strongly support the

People’s request for the imposition of a $100,000 civil penalty against Prior.

In addition, the

People’s analysis of the Section

33(c) and 42(h) factors support the People’s requested $3,500

civil penalty against Mezo.

 Attorney’s Fees.

Section 42(f) of the Act

states as follows:

The State’s Attorney of the county in which the violations occurred,

or the

Attorney General, shall bring

such actions

in the name of the

People of the

State

of Illinois.

Without limiting any other authority which may exist for the awarding

of attorney’s fees

and costs,

the

Board

or a court of competent jurisdiction may

award costs and

reasonable attorney’s

fees including the reasonable costs of

expert witnesses and

consultants,

the

State’s Attorney or the Attorney General

a case where

he has

prevailed against a person who has committed a willful-,

knowing or repeated violation of the Act.

The

People respectfully request the award of attorney fees of $6,600.00.

The

People are

entitled to the aforementioned

attorney’s fees

on the ground

that Prior repeatedly violated the

Act.13

The People do not seek attorney fees from

Mezo.

Repeated violations.

The People respectfully request the award of attorney fees due to

Prior’s repeated

violations of the Act.

The Board has

made limited

rulings addressing what constitutes a

repeated violation of the Act for purposes of Section

42(h).

People

Chicago Heights

Refuse Depot,

PCB 90-112

(October

10,

1991), the

Board found a distinction between

continuing and a

repeated violation

of the Act for the purposes of the Respondent’s

non-

submittal of groundwater monitoring

results over a

several year period.

For a repeated violation

of the Act, the Board’s analysis

focused on whether there were prior, similar findings of

violations against the Respondent.

People

Kershaw,

et al.,

PCB 92-164 (April

1993),

the water pollutional discharges

continued from

1985 to

1992,

even though the State

notified

the Respondent of the violations

1985.

Since the Respondent continued

to allow water

pollutional discharges even

after being

notified that the operation of the facility was

in violation

of the Act, the Board found that the Respondent committed a repeated and

knowing violation

the Act.

Based

on this precedent,

People

v. Panhandle Eastern Pipe Line Company,

PCB

99-191

(November 15,

2001), the

Board

awarded attorney’s fees and costs

of over $1 15,000

where the Respondent repeatedly exceeded

its annual

NOx permit

limit.

‘3In addition,

Prior’s repeated open dumping of waste

at the Gompers site after

Illinois EPA

instruction

appropriately dispose of the excavated material demonstrates that the violations were

also

“knowingly” committed.

(Day

1, Tr. at 48-49,

57);

see also,

Exhibits

Knowledge

is generally defined

as an “acquaintance with the fact or truth” and, where

is an element of a statutory offense, such

knowledge is present if a person is “aware of a high probability of its existence.”

Black’s

Law

Dictionary

(West’s Abridged

4th Edition). A person need not have the appreciation as to

the illegality of the conduct.

People of the State of Illinois

Clybourn Metal Finishing

Company,

PCB 89-157 (A

B) (July 1991);

citing

Kampen v. Department of Transportation,

103

III.

Dec. 884 (2nd

Dist.

1986).

Courts have frequently

observed that the element of knowledge may be proven

by “circumstantial evidence

and the reasonable

inferences therefrom.”

People

Tucker,

542

N.E. 2d 804,

186

Ill.

App.

3d 683 (1st

Dist.

1989);

Schlobohm

Rice,

510

N.E. 2d 43, 157

Ill.

App. 3d 90 (1st

Dist. 1987) (element of knowledge

is “not

susceptible of direct proof” and thus may be shown by circumstantial evidence “reasonably and fairly

drawn”).

The facts of this case are clearly analogous to the Board’s previous determinations of

what constitutes a

repeated violation of the Act.

Not only has

Prior had similar releases of oil

State waters that have

resulted in

violations of Section

12(a) and

(d) of the Act and

the

associated

regulations,

Prior was notified of the impropriety of such

releases after the first

incident at the

Mezo Oestreich site

on June 30,

1997. (Day

1, Tr.

98-105, 122-130);

see also,

Exhibit

16.

After the Illinois

EPA issued Violation

Notices against

Prior in August and

November

1998 for

releases at

the Park and

Mezo Oestreich sites,

respectively,

Prior released oil

State

waters

at the Morgan Kalberkamp site.

(Day

1, Tr.

131,

134);

see also,

Exhibits

14 and

21.

The facts are

clear.

Prior has

repeatedly released

oil to

State waters.

After the initial

release

at the

Mezo Oestreich site,

Prior continued

operate its oil production operations

the very same non-compliant manner.

Based

on the repeated

nature of the violations,

the

People

respecifully request that the Court award attorney’s fees and costs.

Reasonableness of attorney’s

fees.

The People’s request for attorney fees

in the amount of $6,600.00 is reasonable

in light

of the applicable case

law and the time expended by the

People to

prosecute this case against

Prior.

See,

Attachment

and

incorporated herein detailing the amount of time the

People

have

expended

prosecuting this case.

The People respectfully request the award of attorney’s fees

in the amount of $6,600.00

(i.e.,

$120 x 55 attorney

hours).

The People’s request is reasonable

light of prior Board

decisions.

People

ESG

Watts,

Inc.

PCB

94-1 27, the Board

awarded

attorney’s fees

in the

amount of $120

per hour and

this amount was reapplied by the Board in

People

v. ESG

Watts,

Inc.,

PCB 96-1 07,

People

v. ESG

Watts,

PCB 96-233,

People

ESG

Watts,

Inc.,

PCB 96-237,

People v.

John Prior,

PCB 97-211, and

People

Waste Hauling Landfill,

PCB

95-91.

Attorney’s fees

have been

awarded

not only for the time associated

with the trial (hearing),

but

for the time associated

with

trial preparation, discovery, the drafting of pleading

and

preparing

briefs.

People

Spirco Environmental,

Inc.,

PCB 97-203;

see also,

Panhandle, supra.

WHEREFORE, the People respectfully requests that this Court find for the People and

provide the following relief:

Find that on or about June

13,

1996,

and continuing through March

12,

2003,

Prior has violated Sections 21(a),

(d),

(e), (p)(1), (p)(6) of the Act,

and 35

III. Adm.

Code

722.111,739.122(c),

(d),

808.121, 812.101(a), respectively,

by causing

land pollutional

violations

the Gompers

site as alleged in the Complaint.

Find that,

on or about June

30,

1997,

and continuing through March

12, 2003,

Prior has violated

Sections 12(a) and

(d) of the Act,

and 35

III. Adm.

Code 302.203 and

302.208

respectively by causing, allowing, or threatening water pollution,

by creating water pollution

hazards,

and

by creating

offensive conditions as alleged

in the Complaint;

Find

that,

on or about June 30,

1997

and continuing through March

12,

2003,

Mezo has violated Sections

12(a) and

(d) of the Act, and

III. Adm.

Code 302.203 and

302.208

respectively

by causing, allowing, or threatening water pollution,

by creating water

pollution hazards, and

by creating offensive conditions

as alleged

in the Complaint;

Enter judgment in favor of the People and against the Respondents;

Assess a civil penalty

of $100,000 against John

Prior;

Assess a civil penalty of $3,500 against James

Mezo;

Award attorneys

fees of $6,600.00 to the People, to be

paid

by Prior;

and

Grant such other and further relief as

the Board

deems appropriate.

Respectfully submitted,

PEOPLE OF THE STATE

OF ILLINOIS,

LISA MADIGAN

Attorney General

of the State

of Illinois

MATTHEW J.

DUNN, Chief

Environmental

Enforcement/Asbestos

Litigation

Division

BY:

/~0~/~

SALL~’A.

CARTER

Environmental Bureau

Assistant Attorney General

500

South

Second Street

Springfield,

Illinois 62706

217/782-9031

Dated: October 27, 2003

STATE OF ILLINOIS

)

)SS

COUNTY OF SANGAMON

)

AFFIDAVIT

SALLY A.

CARTER,

after being

duly sworn and

upon oath,

state

as follows:

I am

an Assistant Attorney General

in the Environmental

Bureau

of the Office of

the Attorney General

and assigned

represent the People of the

State of Illinois

in the case of

People of the State of Illinois

John Prior,

d/b/a Prior Oil Company and James Mezo,

d/b/a

Mezo

Oil Company,

No. 02-177.

have reviewed the hours

spent prosecuting this case

and

as set forth

Attachment

to this Affidavit and

under the penalties as provided

by law pursuant to

Section

109 of the Code of Civil

Procedure, the undersigned certifies that the statements set forth

this instrument pertaining to the hours

I spent prosecuting this case are true

and correct,

except

as to

matters therein stated to be

on information

and belief and as to

such matters

the

undersigned certifies as aforesaid

that she verily believes the same to

be true.

FURTHER, AFFIANT SAYETH

NOT.

SILLY

CARTER

SUBSCRIBED AND SWORN

before

me this ~7day

()r4~,,i~i,

2003.

Notary Public

OFF~S~1~1

PEGGY J.

POITEVINT

~NOTARY PUBLIC,

STATE

OF ILLINOIS

~MMISSIp~

4•1 6•2006

ATTACHMENT I

The People respectively request an

award of $6,660.00

based upon 55.50 attorney

hours employed

prosecute this case.

A conservative breakdown of the attorney hours spent

prosecuting this case

is set forth

in the following table:

DESCRIPTION

OF WORK PERFORMED

BY MS.

CARTER

HOURS

Pleadings

Complaint

4/1 9/02

5.00

Interrogatories and Request for Production 8/4/03

 1.50

Complainant’s

Brief 10/27/03

24.50

Hearing

Preparation

September 4, 2003- September 14, 2003

12.50

Hearing

September

15, 2003- September

16,

2003

12.00

Total Attorney Hours

55.50

x 120/hr

Total Award of Attorney’s Fees Requested

$6,660.00

Due

the

volume

of this

pleading,

please

contact

the

Clerk’s

Office

312/814—3629

view

this

file.