Pollution Control Board

CLERK’S

NOV 1 ~OFR(’~

2003

ILLINOIS POLLUTION CONTROL BOARD

STATE OF ILLINOIS

Pollution Control Board

TERESA L. SHEPRO, as Executor of the

)

Estate of the Justice W. Shepro, deceased,

)

(~‘ (Th~

£3

and FRANK WIEMERSLAGE, as

)

beneficiaries under Trust No. 898, of the

)

Chicago Trust Company,

)

Plaintiff,

)

NO. PCB04-12

)

NEWBY OIL COMPANY, DAVID E.

)

TRIPP and JANICE L. TRIPP,

)

Defendants.

)

AMENDED NOTICE

TO:

JANICE L. TRIP?, 1117 Commercial Street, Sycamore, IL 60178

CLIFFE, FOSTER, CORNEILLE & BuicK, 151 West Lincoln Highway, DeKaib, IL 60115

This is to provide you with Notice that the attached Amended Complaint has been filed with the

Illinois Pollution Control Board on November

2003. You are hereby being placed on Notice pursuant

to Title

ofthe Illinois Administrative Code, Section 103.204. Failure to file an Answer to this Amended

Complaint within sixty (60) days may have severe consequences. Failure to Answer will mean that all

allegations in the Amended Complaint will be taken as if admitted for purposes of this proceeding. Ifyou

have any questions about this procedure, you should contact the hearing officer assigned to thisproceeding,

the Clerk’s Office or an attorney.

TERESA L. SHEPRO, as Trustee of the Justice

W. Shepro Trust, and TERESA L. SHEPRO and

FRANKWJEMERSLAGE, as beneficiaries under

Trust No. 898, ofthe Chicago

Trust Company, Complainants

By WILLIAMS & McCARTHY

WILLIAMS & McCARTHY

By:

(‘is

C yton L.

Lindsey

0~~

607 Washington Street

P.O. Box 339

Oregon, IL 61061

815/732-2101

Fax 8 15/732-2289

clindsey@wilmac.com

Notice.Janice3(bk)

I certify that I served this Notice on Respondent as follows:

(a)

(Individual respondent--personal):

By leaving a copy ofthis Notice with acopy ofthe Complaint with the respondent personally

on the date and time of the day when the Notice of Hearing was left with the respondent.

(b)

(Individual respondent--abode):

By leaving a copy ofthis Notice at the usual place of abode of the respondent with aperson

ofrespondent’s family, of the age of 13 years or upwards, informing that person of the contents of

the Notice.

_______

Private Process Server

-2-

ILLINOIS POLLUTION CONTROL BOARD

CLERK’S OFFICE

NOV.13 2003

TERESA L. SHEPRO, as Trustee of the

)

STATE OF ILLINOIS

Justice W. Shepro Trust,

)

((

‘1

(

Pollution Control Board

and TERESA L. SHEPRO and

)

\.~

FRANK WIEMERSLAGE, as

)

beneficiaries under Trust No. 898, ofthe)

Chicago Trust Company,

)

Case No. PCB 04-12

Complainant,

)

NEWBYOIL COMPANY, DAVID E.

)

TRIPP and JANICE L. TRIPP,

)

Respondents.

)

AMENDED COMPLAINT

NOW COME the Complainants, TERESA L. SHEPRO, as Trustee ofthe Justice

W. Shepro Trust, and TERESA L. SHEPRO and FRANK WIEMERSLAGE, as

beneficiaries under Trust No. 898, ofthe Chicago Trust Company, by and through their

attorneys, WILLIAMS & McCARTHY, and for their Complaint against the Respondents,

NEWBY OIL COMPANY, DAVID E. TRIPP andJANICE L. TRIPP, state as follows:

COUNT I

NEWBY

Plaintiff, TERESA L. SHEPRO, Trustee of the Justice W. Shepro Trust

(hereinafter SHEPRO) is the beneficial co-owner ofthe real property which is the subject

matter ofthis Complaint.

Plaintiff, FRANK WIEMERSLAGE, (hereinafter WIEMERSLAGE) is the

beneficial co-owner ofthe real property which is the s~jectmatter ofthis Complaint.

Plaintiffs, SHEPRO and WIEMERSLAGE, are the sole beneficiaries under

Trust No. 898 dated June 29,1977 ofthe Chicago Trust Company (hereinafter Trust).

The Trust is the owner of certain real property located on Oakland Drive,

Sycamore, County ofDeKaib, Illinois, and legally described as follows:

Lot 4 in Block One in Gateway Centre Subdivision, a

subdivision ofpart ofthe East

of Section 12, Township 40

North, Range 4, East of the 3r P.M., according to the Plat

thereof recorded in Book (R) of Plats, Page 64, on July

1977, as Document No. 403627 in DeKaib County, Illinois.

drums, above-ground storage tanks or semi trailers on Complainants’ real property.

11.

As a result ofTRIPP’s business operations and lease of the premises, great

and dangerous quantities ofpetroleum and other harmful chemicals have migrated onto

Complainant’s real property causing environmental contamination and a concern for

safety ofComplainant’s soil and groundwater.

12.

The conditions created by TRIPP are endangering the health, use and life

ofComplainanfs real property andpreventing Complainants comfortable and reasonable

use and enjoyment thereof.

13.

Complainants have retained the services of an environmental consultant,

Wendler Engineering Services, Inc., for purposes of investigating the source of

contamination on Complainant’s real property. Attached hereto as Exhibit 1 is the

Expanded Site Investigation Report prepared by Wendler Engineering Services.

Pursuant to the Investigative Reports, TRIPP’s conduct has given rise to subsurface

contamination in excess of Illinois EPA Tier I remediation objectives in both soil and

groundwater located on Complainant~sreal property.

14.

As a direct and proximate cause of TRIPP’s conduct Complainants have

andwill continue to incur damages in one or more ofthe following ways:

(a)

The presence ofthese materials and equipment has caused contamination

and pollutants in the soil andground water ofComplainants’ property;

(b)

Complainants have incurred costs related to environmental investigation

into the contamination cause and allowed by TRIPP.

(c)

Complainants will incur additional costs in the immediate future related to

the investigation of the extent of contamination on Complainants’ real

property;

(d)

Complainants will incur substantial costs in the immediate future related to

the remediation of environmental contamination on Complainants’ real

property;

(e)

A diminution in the fair market value ofComplainants’ real property;

(f)

Damages related to the “stigma” of having environmentally contaminated

property, even after remediation has been completed.

15.

Demand has been made on TRIPP to remediate the contamination and

TRIPP has failed and refused to do so.

16.

The conduct of Defendant violated one or more ofthe following provisions

ofthe Illinois Environmental Protection Act or regulations pertainingthereto:

(a)

415 ILCS

5/12(a)

in that Defendant caused or allowed the discharge

ofcontaminants into the environment so as to cause or tend to cause

water and/or groundwater pollution;

(b)

415 ILCS 5/12(d) in that Defendant deposited or allowed to be

deposited contaminants upon the land in such place and manner so

as to create a water and/or ground water pollution hazard;

(c)

Caused or allowed a discharge of contaminants such that the

concentration of contaminants exceeds the Tier 1 remediation

objective set forth in 35111. Admin. Code 742.

WHEREFORE, Complainants pray that this Court enter Judgment in their favor

and against Respondent, TRIPP, and provide the following relief:

An award of monetary damages in excess of$50,000.00;

An injunctive order mandating TRIPP to remediate any and all

contamination on Complainants’ real property;

Cease and desist its negligent conduct against the interest ofComplainants;

Cost ofsuit.

Civil penalties assessed against TRIPP.

7—

drums, above-ground storage tanks or semi trailers on Complainants’ real property.

11.

As a result ofTRIPP’s business operations and lease ofthe premises, great

and dangerous quantities ofpetroleum and other harmful chemicals have migrated onto

Complainant’s real property causing environmental contamination and a concern for

safety of Complainant’s soil and groundwater,

12.

The conditions created by TRIPP are endangering the health, use and life

of Complainant~sreal property and preventing Complainants comfortable and reasonable

use and enjoyment thereof.

13.

Complainants have retained the services of an environmental consultant,

Wendler Engineering Services, Inc., for purposes of investigating the source of

contamination on Complainant’s real property. Attached hereto as Exhibit 1 is the

Expanded Site Investigation Report prepared by Wendler Engineering Services.

Pursuant to the Investigative Reports, TRIPP’s conduct has given rise to subsurface

contamination in excess of Illinois EPA Tier 1 remediation objectives in both soil and

groundwater located on Complainant’s real property.

14.

As a direct and proximate cause of TRIPP’s conduct Complainants have

andwill continue to incur damages in one ormore ofthefollowing ways:

(a)

The presence of these materials and equipment has caused contamination

and pollutants in the soil andground water ofComplainants’ property;

(b)

Complainants have incurred costs related to environmental investigation

into the contamination cause and allowed by TRIPP.

(c)

Complainants will incur additional costs in the immediate future related to

the investigation of the extent of contamination on Complainants’ real

property;

(d)

Complainants will incur substantial costs in the immediate future related to

the remediation of environmental contamination on Complainants’ real

6—

property;

(e)

A diminution in the fair market value ofComplainants’ real property;

(f)

Damages related to the “stigma” of having environmentally contaminated

property, even after remediation has been completed.

15.

Demand has been made on TRIPP to remediate the contamination and

TRIPP has failed and refused to do so.

16.

The conduct of Defendant violated one or more of the following provisions

ofthe Illinois Environmental Protection Act or regulations pertainingthereto:

(a)

415 ILCS

5/12(a)

in that Defendant caused or allowed the discharge

ofcontaminants into the environment so as to cause-or tend to cause

water and/or ground water pollution;

(b)

415 ILCS

5/12(d)

in that Defendant deposited or allowed to be

deposited contaminants upon the land in such place and manner so

as to create awater and/or ground water pollution hazard;

(c)

Caused or allowed a discharge of contaminants such that the

concentration of contaminants exceeds the Tier 1 remediation

objective set forth in 35111. Admin. Code 742.

WHEREFORE, Complainants pray that this Court enter Judgment in their favor

and against Respondent, TRIPP, and providethe following relief:

Anaward of monetary damages in excess of$50,000.00;

An injunctive order mandating TRIPP to remediate any and all

contamination on Complainants’ real property;

Cease and desist its negligent conduct against the interest ofComplainants;

Cost ofsuit.

Civil penalties assessed against TRIPP.

7—

Trustee ~fsi~he

Justice W. Shepro Trust,

and as beneficiary under Trust No. 898 ofthe Chicago

Trust Company

FRANK

WIEMERSLAGE, 

as beneficiary under Trust No. 898 o~

the Chicago Trust Company

TERESA L. SHEPRO, as Trustee ofthe Justice

W. Shepro Trust, and TERESA L. SHEPRO and

FRANK WIEMERSLAGE, as beneficiaries under

Trust No. 898, ofthe Chicago

Trust Company, Complainants

By WILLIAMS & McCARTHY

Clayton L. Lindsey

WILLIAMS & McCARTHY

607 Washington Street

P.O. Box

339

Oregon, IL 61061

815732-2101

Fax 815/732-2289

clindsey®wilmac.com

Complaint(bk)

By:

C a n L.

Lindsey

8—