RECEIVED

CLERK’S OFFICE

BEFORE

THE ILLINOIS POLLUTION CONTROL BOARDDEC

1 2003

PEOPLE OF THE STATE OF ILLINOIS, )

Pollution Control Board

Complainant,

v.

)

PCB No. 97-119

(Enforcement)

C & M TOTAL, INC., an Illinois

Corporation, GEORGE PAPAS,

individually and as President of

G & M TOTAL, INC.,

Respondents.

NOTICE OF FILING

TO:

Mr. Thomas Davis

George Papas

2610 Sheridan Road, Suite 214

6751 W. Tonto Drive

Zion, Illinois 60099

Glendale, Arizona 85308

Bradley P. Halloran, Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph St., Suite 11-500

Chicago, Illinois 60601

PLEASE TAKE NOTICE that the Plaintiff, PEOPLE OF THE STATE

OF ILLINOIS, filed with the Illinois Pollution Control Board, its

NOTION FOR SUMMARY JUDGMENT, a true and correct copy of whi’ch is

attached hereto and is hereby served upon you.

PEOPLE OF THE STATE OF ILLINOIS

Ex rel.

LISA MADIGAN, Attorney

General of the State of Illinois

BY:

4

~

THERINE A. KELLY

Assistant Attorney Gener 1

Environmental Bureau

188 West Randolph, ~ Floor

Dated: December 1, 2003 Chicago, IL 60601

(312) 814-3153

THIS FILING IS SUBMITTED ON RECYCLED PAPER

---

RECEIVED

BEFORE THE ILLINOIS POLLUTION CONTROL

BOAR~LERK’SOFFICE

PEOPLE OF THE STATE OF ILLINOIS, )

DEC 1 2003

Complainant,

Pollution Control Board

v.

)

PCB No. 97-119

(Enforcement)

G & M TOTAL, INC., an Illinois

Corporation, GEORGE PAPAS,

individually and as President of

G & M TOTAL, Inc.,

Respondents.

COMPLAINANT’S

MOTION

FOR SUMMP~.RYJUDGMENT

NOW COMES the Complainant, PEOPLE OF THE STATE OF ILLINOIS,

ex rel.

Lisa Madigan, Attorney General of the State of Illinois,

and pursuant to Section 101.244 of the Board’s Procedural Rules,

35 Ill. Adm. Code 101.244 (1996), hereby moves for the entry of

an order granting summary judgment in favor of Complainant and

against Respondents, G & M TOTAL, INC. (“G & M Total”) and GEORGE

PAPAS (“Papas”), as to Counts I and II of Complainant’s

Complaint. In support thereof, Complainant states as follows:

1. On January 8, 1997, Complainant filed a two-count

complaint against the Respondents alleging violations of Section

12(a) of the Illinois Environmental Protection Act (“Act”), 415

ILCS 5/12 (a) (1996)

,

and Sections 731.160, 731.162 and 731.163 of

the Illinois Pollution Control Board Regulations (“Board

RegulatiOns”), 35 Ill. Adm. Code 731.160, 731.162 and 173.163

(1996). Respondents, G & M TOTAL and PAPAS, were served with

Complainant’s Complaint via certified mail on January 16, 1997.

1

---

A Copy of the certified receipt is attached to and incorporated

into this motion as Exhibit A.

2. On December 1, 1997, Complainant filed its first

Request for Admission of Facts. Complainant caused the document

to be mailed to Respondents, G & M TOTAL and PAPAS, on December

1, 1997. The document requested the admission of all material

facts alleged in Complainant’s Complaint. A copy of the first

Request for Admission of Facts is attached to and incorporated

into this motion as Exhibit B.

3. As of the date of filing of this Motion, Respondents, G

& M TOTAL and PAPAS, have not filed a response to the

Complainant’s first Request for Admission of Facts.

4. Because the Respondents failed to respond to

Complainant’s Request for Admission of Facts within the required

60 day period, the Complainant filed its Motion to Deem Facts

Admitted on August 5, 2003, pursuant to 35 Ill. Adm. Code

Sections 103.204(d) and 103.204(e).

5. On October 2, 2003, the Illinois Pollution Control

Board (“Board”) granted the Complainant’s Motion to Deem Facts

Admitted. A copy of the October 2, 2003 Board Order is attached

to and incorporated into this motion as Exhibit C.

6. Section 12(a) of the Act, 415 ILCS 5/12(a) (1994),

provides as follows:

No person shall:

2

---

a. Cause threaten or allow the discharge of any

contaminate into the environment of any State so

as to cause or tend to cause water pollution in

Illinois, either alone or in combination with

matter from other sources, or as to violate

regulations or standards adopted by the Pollution

Control Board under this Act

7. Section 3.06 of the Act, 415 ILCS 5/3.06 (1994),

provides as follows:

“CONTAMINANTS” is any solid, liquid or gaseous matter,

any odor, or any form of energy, from whatever source.

8. Section 731.160 of the Board Underground Storage Tank

Regulations, 35 Ill. Adm. Code 731.160, provides as follows:

Owners and operators of petroleum or hazardous

substance UST systems must, in response to a confirmed

release from the liST system, comply with the

requirements of this Subpart except for liSTs excluded

under Section 731.110(b) and liST systems subject to

RCRA corrective action requirements under 35 Ill. Adm.

Code 724.200, 724.296, 725.296 or 725.Subpart G.

9. Section 731.162 of the Board Underground Storage Tank

Regulations, 35 Ill. Adm. Code 731.162, provides as follows:

a) Owners and operators shall perform the following

abatement measures:

1. Remove as much of the regulated substance

from the UST system as is necessary to

prevent further release to the environment;

2. Visually inspect any aboveground releases or

exposed belowground releases and prevent

further migration of the released substance

into surrounding soils and groundwater;

3. Continue to monitor and mitigate any

additional fire and safety hazards posed by

vapors or free product that have migrated

from the liST excavation zone and entered into

substance structures (such as sewers or

3

---

basements) ;

4. Remedy hazards posed by contaminated soils

that are excavated or exposed as a result of

release confirmation action activities. If

these remedies include treatment or disposal

of soils, the owner and operator shall comply

with 35 Ill. Adm. Code 722, 724, 725, 807,

and 809;

5. Measure for the presence of a release where

contamination is most likely to be present at

the liST site, unless the presence and source

of the release have been confirmed in

accordance with the site check required by

Section 731.152(b) or the closure site

assessment of Section 731.172(a). In

selecting sample types, sample locations and

measurement methods, the owner and operator

shall consider the nature of the stored

substance, the type of backfill, depth to

groundwater and other factors as appropriate

for identifying the presence and source of

the release; and

6. Investigate to determine the possible

presence of free product, and begin free

product removal as soon as practicable and in

accordance with Section 731.164.

b) Within 20 days after release confirmation, owners

and operators shall submit a report to the Agency,

summarizing the initial abatement steps taken

under subsection (a) and any resulting information

or data.

10. Count I of the Complainant’s Complaint, entitled

Failure to Perform Initial Abatement Measures and Site Check,

specifically alleges that the Respondents violated Section 12 (a)

of the Act, 415 ILCS 5/12(a) (1994), and Sections 731.162 and

731.160 of the Board Underground Storage Tank Regulations, 35

Ill. Adm. Code Sections 731.162 and 731.160, respectively by: (1)

4

---

releasing gasoline into the soil at 2301 Sheridan Road, Zion,

Lake County, Illinois (“Site”); (2) failing to demonstrate and/or

eupply the Illinois Environmental Protection Agency (“Illinois

EPA”) with sufficient documentation that Respondents have

performed the initial abatement measures and site checks after

confirmation of the release; and (3) failing to submit a report

to the Illinois EPA summarizing the initial abatement steps taken

and any resulting information or data within 20 days after

release confirmation.

11. Section 731.163 of the Board Underground Storage Tank

Regulations, 35 Ill. Adm. Code 731.163, provides as follows:

a) Owners and operators shall assemble information

about the site and the nature of the release,

including information gained while confirming the

release or completing the initial abatement

measures in Section 731.160 and Section 731.161.

This information must include, but is not

necessarily limited to the following:

1. Data on the nature and estimated quantity of

release;

2. Data from available sources or site

investigations concerning the following

factors: surrounding populations, water

quality, use and approximate locations of

wells potentially affected by the release,

subsurface soil conditions, locations of

subsurface sewers, climatological conditions

and land use;

3. Results of the site check required under

Section 731.162(a) (5); and

4. Results of the free product investigations

required under Section 731.162(a) (6), to be

used by owners and operators to determine

5

---

whether free product must be recovered under

Section 731.164.

b) Within forty-five (45) days after confirmation of

the release, owners and operators shall submit the

information collected in compliance with

subsection (a) to the Agency, in a manner that

demonstrates its applicability and technical

adequacy.

12. Count II of the Complainant’s Complaint, Failure to

Perform an Initial Site Characterization, specifically alleges

that the Respondents violated Section 12(a) of the Act, 415 ILCS

5/12(a) (1994), and Sections 731.163 and 731.160 of the Board

underground Storage Tank Regulations, 35 Ill. Adm. Code Sections

731.163 and 731.160 by: (1) failing from at least August 26, 1991

and continuing until May 17, 1996, to demonstrate and/or supply

the Illinois EPA with sufficient documentation that Respondents

had performed the initial site characterization; (2) failing from

at least August 26, 1991 and continuing until May 17, 1996, to

submit the information about the site and the nature of the

release to the Illinois EPA within 45 days after release

confirmation.

13. In its October 2, 2003 Order, the Board deemed admitted

the following facts:

a. Papas owns the real property located at 2301

Sheridan Road, Zion, Lake County, Illinois (“site”) and has owned

this property since at least October 5, 1988.

b. Papas is the president of G & M and has been the

6

---

president since at least June 12, 1990.

c. G & M owns and operates a gas station located at

2301 Sheridan Road, Zion, Lake County, Illinois and has owned and

operated this gas station since at least June 12, 1990.

d. From at least October 5, 1988 and continuing until

at least May 1, 1995, at least five (5) liSTs and respective UST

systems were located at the Site. Four (4) of the liSTs located

at the Site were utilized to store gasoline, and one (1) was

utilized to store kerosene.

e. On July 11, 1991, G & M reported a release of

gasoline from the liST system at the Site to the IEMA.

f. On November 7, 1994, a subsurface boring test was

performed at the Site. The results of that investigation

produced evidence of a release of gasoline and/or kerosene.

g. On November 7, 1994, G & M reported a release of

gasoline from the liST system at the Site to IEMA.

h. On or about May 1, 1995, at least five (5) liSTs

and respective liST system were removed from Site.

i. Neither Papas nor G & M provided a twenty (20) day

report, as described in 35 Ill. Adm. Code 731.162, to the

Illinois EPA within twenty (20) days after confirmation of the

release reported on or about July 11, 1991.

j.

Neither Papas nor G & M provided a twenty (20) day

report, as described in 35 Ill. Adm. Code 731.162, to the

7

---

Illinois EPA within twenty (20) days after confirmation of the

release reported on or about November 7, 1994.

k. On or about May 17, 1996, G & M submitted to the

Illinois EPA a twenty (20) day report, as described in 35 Ill.

Adm. Code 731.162.

1. Neither Papas nor G & M provided a forty-five (45)

day report, as described in 35 Ill. Adm. Code 731.163 to the

Illinois EPA within 45 days afer confirmation of the release

reported on or about July 11, 1991.

m. Neither Papas nor G & M provided a forty-five (45)

day report, as described in 35 Ill. Adm. Code 731.163 to the

Illinois EPA within 45 days afer confirmation of the release

reported on or about November 7, 1994.

n. On or about March 27, 1996, G & N submitted to the

Illinois EPA a forty-five (45) day report, as described in 35

Ill. Adm. Code 731.163.

o. The Illinois EPA did not receive the forty-five

(45) day report dated March 27, 1996 until Nay 1, 1996.

14. The above facts, as deemed admitted, are sufficient to

find that the Respondents violated Section 12(a) of the Act, 415

ILCS 5/12(a) (1994), and Sections 731.160, 731.162 and 731.163 of

the Board Underground Storage Tank Regulations, 35 Ill. Adm. Code

Sections 731.160, 731.162, and 731.163.

15. Section 101.244 of the Board Procedural Rules, 35 Ill.

8

---

Adm. Code 101.244 (1996) provides, in pertinent part, as follows:

***

A motion for summary judgment prior to hearing may be made

by any party to an enforcement proceeding pursuant to Title

VIII of the Act or a permit appeal pursuant to Title X of

the Act.

***

16. Summary judgement is appropriate only when the

pleadings, depositions, and admissions on file, together with the

affidavits, if any, disclose that there is no genuine issue as to

any material fact and the moving party is entitled to judgment as

a matter of law. 735 ILCS 5/2-1005 (2002)

;

see also,

Balla v.

Gambro, Inc., 145 Ill. 2d 492, 584 N.E.2d 104.112 (Ill. 1991).

17. If the Board finds that the Respondents, G & N TOTAL,

and PAPAS have admitted all allegations asserted in Complainant’s

first Request for Admission of Facts, then the record shows that

there is no genuine issue of material fact remaining for review.

Since the Board, in its October 2, 2003 Order, did find admitted

all allegations asserted in Complainant’s first Request for

Admission of Facts, pursuant to Section 101.244 of 35 Ill. Adm.

Code 101.244 (1996), Complainant is entitled to summary judgement

in its favor as a matter of law.

WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,

respectfully requests that the Board issue an order in favor of

Complainant and against Respondents G & N TOTAL, INC. and GEORGE

PAPAS:

9

---

1. Granting summary judgement, in favor of the Complainant

and against the Respondents, on Counts I and II of the

Complainant’s Complaint;

2. Finding that the Respondents violated Section 12(a) of

the Act, 415 ILCS 5/12(a) (1996), and Sections 731.160, 731.162

and 731.163 of the Board Regulations, 35 Ill. Adm. Code 731.160,

731.162 and 173.163 (1996)

3. Ordering the Respondents to cease and desist from

further violations of Section 12(a) of the Act, 415 ILCS 5/12(a)

(1996), and Sections 731.160, 731.162 and 731.163 of the Board

Regulations, 35 Ill. Adm. Code 731.160, 731.162 and 173.163

(1996)

4. Assessing against the Respondents a civil penalty of

Fifty Thousand Dollars ($50,000.00) for each violation of Section

12(a) of the Act, 415 ILCS 5/12(a) (1996) and each violation of

Sections 731.160, 731.162 and 731.163 of the Board Regulations,

35 Ill. Adm. Code 731.160, 731.162 and 173.163 (1996); and an

additional civil penalty of Ten Thousand Dollars ($10,000.00) for

each day during which each violation shall have continued;

5. Ordering the Respondents to pay all costs, pursuant to

Section 42(f) of the Act, including attorney, expert witness and

consultant fees, expended by the State in pursuit of this action;

and

10

---

6. Granting such additional relief as the Board deems

appropriate and just.

PEOPLE OF THE STATE OF ILLINOIS

Ex rel.

LISA MADIGAN, Attorney

General of the State of Illinois

MATTHEW J. DUNN, Chief

Environmental Enforcement/Asbestos

Litigation Division

ROSEMARIE CAZEAU, Chief

Environmental Bureau

BY:

____________

• HERINE A.

KELLY

Assistant Attorney General

Environmental Bureau

188 West Randolph, ~ Floor

Chicago, IL 60601

(312) 814-3153

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1

REIVED

~LERK’SOFFiCE

BEFORE THE ILLINOIS POLLUTION CONTROL I

OARD

DEC ~11997

PEOPLE OF THE STATE OF ILLINOIS,

)

STATE OF ILLINOIS

)

POLLUTION CONTROL

BOARD,

Complainant,

)

)

PCB97-119

V.

)

(Enforcement)

)

G & M TOTAL,

INC., an

Illinois

)

Corporation, GEORGE PAPAS, individually

)

and

as President ofG & M Total, Inc.,

)

)

Respondents.

)

REOUEST FOR ADMISSION OF FACTS

Pursuant to

35

Iii. Adm Code 103.162(a),

Complainant,

PEOPLE OF

THE

STATE OF

ILLrNOIS, hereby requests Respondent, GEORGE PAPAS, to admitthe

truth

ofthe following

facts, in writing, under oath within

twenty

(20) days from the date ofservice hereof.

INSTRUCTIONS

AND DEFINITIONS

1. With respect to

any

requested admission which Respondent refuses to answer

a.

the nature ofthe claim of privilege;

b.

privilege;

c.

all

d.

an identification ofall documents related to the claim ofprivilege;

e.

an identification ofall persons having knowledge of

any

facts related to

the

claim

ofprivilege;

and

---

f.

an identification ofall events, transactions oroccurrences related to the

claim ofprivilege.

2.

“Illinois EPA” shall mean Illinois Environmental Protection Agency

3.

“Respondent” shall mean George Papas.

4.

“G & M” shall mean G & M Total, Inc.

5.

“Papas” shall mean George Papas.

6.

“OSFM” shall mean Office ofthe State Fire Marshall.

7.

“IEMA” shall mean Illinois Emergency Management Agency.

8.

“IESDA” shall mean Illinois Emergency Services Disaster Agency.

9.

“Site” shall refer to the property andany portion thereof described in paragraphs 3

and 4 of Count I ofthe Complaint.

10.

“Release” means any spilling, leaking, pumping, pouring, emitting, emptying,

discharging, injecting, escaping, leaching, or disposing from a UST or UST system into

groundwater, surface water, soil or subsurface soil.

11.

“UST” or “UST system” means an underground storage tank, connected

underground piping, underground

ancillary

equipment, and containment system, if any.

12.

“Regulated substance” means any “hazardous substance” or “petroleum”.

13.

“Hazardous substance” meany any substance listed in 40 CFR 320.4 (but not

including any substance regulated by the hazardous waste under

35

Ill. Adm. Code 721).

14.

“Petroleum” including crude oil or any fraction therefore which is liquid at

standard conditions oftemperature and pressure (60 degrees Fahrenheit and 14.7 pound per

square inch absolute)J, includes, but is not limited to, petroleum and petroleum-based substances

2

---

comprising a complex blend of

hydrocarbons

derived from crude oil through processes of

separatiOfl~conversion, upgrading and finishing, such as motor fuel, jet fuels, distillate fuel oils,

residual fuel oils, lubricants, petroleum solvents and used oil.

15.

“Below ground release” means any release to the subsurface ofthe land and to

groundwater. This includes, but is not limitedto, releases from the below ground portions of an

underground storage tank system and below ground releases associated with overfihls and

transfer operations as the regulated substance moves from an underground storage tank.

16.

“Or” shall mean and/or wherever appropriate.

17.

The singular form and plural form shall be construed interchangeably so as to

elicit any facts or information which might otherwise be construed as outside their scope.

FACTS TO BE ADMITTED

~ct No~i

Papas currently owns the real property located at 2301 Sheridan Road, Zion, Lake

County, Illinois.

Since at least October

5,

1988, Papas has owned the real property located at 2301

Sheridan Road, Zion, Lake County, Illinois.

Papas is currently the president of G & M.

Fact N~A

Papas has been the president ofG & M since at least June 12, 1990.

3

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Fact No~i

Since at least June 12, 1990, G & M has owned and operated a gas station located at 2301

Sheridan Road, Zion, Lake County, Illinois.

Fact N~o~

G & M currently owns and operates agas station located at 2301 Sheridan Road, Zion,

Lake County, illinois.

Fact N~i

On or about October

5,

1988, Papas signed and submitted to the OSFM a Notification for

Underground Storage Tanks for four (4) USTs.

Fact No~

On or about September 30, 1993, Papas signed and submitted to the OSFM a Notification

for Underground Storage Tanks for four (4) USTs.

Fact No~

From at least October

5,

1988 and continuing until at least May 1,

1995,

at least five

(5)

USTs and respective UST system were located at the Site.

Fact No. 10

Four (4) of the USTs located at the Site were utilized to store gasoline.

FactNo. 12

One (1) ofthe USTs located at the Site was utilized to store kerosene.

FactNo. 13

On July 10, 1991, G & M conducted atightness test of four (4) ofthe USTs located at the

Site.

4

---

FactN~.i4

On July 10,

1991, one (1) ofthe USTs at the Site failed the tightness test.

Fa.ctNo.

15

On July 11, 1991, G & M reported a release of gasoline from the UST system at the Site

to the JEMA, formerly known as IESDA.

FactNo.i~

On November 7, 1994, a subsurface boring test was performed on the Site.

f~çtNo.J7

On November 7, 1994, the results ofthe subsurface investigation produced evidence of a

release ofgasoline and/or kerosene.

FactNo. 18

On November 7, 1994, 0 & M reported a release of gasoline from a UST system at the

Site to the IEMA, formerly known as IESDA.

f~ctNo.19

On or about May 1, 1995, at least five

(5)

USTs and respective UST system were

removed from the Site..

FactNo.20

Papas did not provide a 20 day report, as described in 35 Ill. Adm. Code 731.162, to the

Illinois EPA within 20 days after confirmation ofthe release reported on or about July 11, 1991.

FactNo. 21

G & M did notprovide a 20 day report, as described in 35111. Adm. Code 731.162, to the

Illinois EPA within 20 days after confirmation of the release reported on or about July 11, 1991.

5

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Faet No.22

Papas did not provide a 20 day report, as described in 35 Ill. Adm. Code 73 1.162, to the

Illinois EPA within 20 days after confirmation ofthe release reported on or about November 7,

1994.

Fact No. 21

G & M did not provide a 20 day report, as described in 35 Ill. Adm. Code 731.162, to the

Illinois EPA within 20 days after confirmation ofthe release reported on or about November 7,

1994.

Fact No.24

On or about May 17, 1996, G & M submitted to the Illinois EPA a 20 day report, as

described in 35 III. Adm. Code 73 1.162.

Papas did not provide a 45 day report, as described in 35 Iii. Adm. Code 731.163 to the

Illinois EPA within 45 days after confirmation ofthe release reported on or about July 11, 1991.

G & M did not provide a 45 day report, as described in 35 Ill. Adm. Code 73 1.163, to the

Illinois EPA within 45 days after confirmation oftherelease reported on or about July 11, 1991.

Fact No. 27

Papas did not provide a 45 day report, as described in 35 Ill. Adm. Code 731.163, to the

Illinois EPA within 45 days after confirmation ofthe release reported on or aboutNovember 7,

1994.

6

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Fact No.28

G & M did not provide a

45

day report, as described in 35 Iii. Adm. Code 73 1.163, to the

Illinois EPA within 45 days after confirmation of the release reported on or about November 7,

1994.

FactNo. 29

On or about March 27, 1996, G & M submitted to the Illinois EPA a 45 day report, as

described in 35 III. Adm. Code 73 1.163.

Fact No~3~

By letter dated August 23, 1996, the Illinois EPA informed Papas that the Illinois EPA

did not receive the 45 day report dated March 27, 1996, until May 1, 1996.

PEOPLE OF THE STATE OF ILLINOIS

JAMES E. RYAN

Attorney General

State ofIllinois

MATTHEW J. DUNN,

Chief

Environmental Enforcement\Asbestos

Litigation Division

WILLIAM D. SEITH, Chief

Environmental Bureau

BY:______

ALYS~L. FRON

Assista~AttorneyGeneral

Environmental Bureau

100 West Randolph St., 11th Fir.

Chicago, Illinois 60601

(312) 814-3774

c:\g&rn\reqUeSt2

7

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CERTIFICATE OF SERVICE

I, ALYSSA L. FRON, an Assistant

Attorney

General in this case,

do

certify that I caused

to be mailed this 1st day of December, 1997, the foregoing Notice ofFiling, Request for

Admission ofFacts, Complainant’s First Set ofInterrogatories, and Complainant’s First Request

for Production ofDocuments upon:

Thomas Robinson, Esq.

Deborah L. Frank, Esq.

2161 Sheridan Road

Hearing Officer

Zion, Illinois 60099

608 South Prospect Avenue

Champaign, Illinois 61820

by placing same in an envelope, postage prepaid, and depositing same with the United States

Postal Service at 100 West Randolph Street, Chicago, Illinois; and

Dorothy Gunn, Clerk

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

by hand delivery.

AL

FRON

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ILLiNOIS POLLUTION CONTROL BOARD

October 2, 2003

PEOPLE OF THE STATE OF ILLINOIS,

)

)

Complainant,

)

)

v.

)

PCB97-119

)

(Enforcement

-

Land)

G&M TOTAL, INC., an Illinois corporation, )

and GEORGE PAPAS, individually and as

)

president of G&M TOTAL, INC.,

)

)

Respondents.

)

ORDER OF THE BOARD (by

W.A. Marovitz):

On January 8, 1997, the Illinois Attorney General, on behalf ofthe People ofthe State of

Illinois (People), filed a complaint against G&M Total, Inc., an Illinois corporation (G&M), and

George Papas, individually and as president of G&M (Papas). The People allege that G&M and

Papas violated the Environmental Protection Act (415 ILCS 5/12(a) (2002)) and Board rules

(35

Ill. Adm. Code 731.160, 731.162, 731.163) bynot timelyresponding to a leaking underground

storage tank (UST) at their gasoline station. On August

5,

2003, the People filed amotion to

deem facts admitted, to which neither G&M nor Papas responded. The Board grants the

People’s motion for the reasons below.’

DISCUSSION

G&M allegedly owns and operates a gasoline station located at 2301 Sheridan Road,

Zion, Lake County. Comp. at 2. Papas allegedly owns the real property, leases it to G&M, and

is responsible for and involved in the day-to-day operation of the gasoline station.

Id.

On

December 1, 1997, the People mailed to respondents a request to admit facts. Mot. at 2.

According to the People, the document requested the admission ofall material facts alleged in

the complaint.

Id.

The facts requested to be admitted address many subjects, including: (1) property and

gasoline station ownership and operation; (2) Papas’ capacity with G&M; (3) the presence, use,

tightness testing, and removal ofUSTs at the gasoline station; (4) the failure ofa TJST to pass a

tightness test;

(5)

UST notifications submitted by Papasto the Office ofthe StateFire Marshal;

(6) subsurface soil testing indicating a release ofgasoline or kerosene or both at the site; (7)

G&M reporting a release to the Illinois Emergency Management Agency (formerly known as the

Illinois Emergency Services and Disaster Agency); and (8) when G&M submitted “20 day” and

“45 day” reports to the Illinois Environmental Protection Agency. Mot., Exh. B at 3-7.

‘The Board cites the complaint

as

“Comp. at

“

and the motion to deem facts admitted

as “Mot.

at

.“

---

2

At the time the People served the request to admit facts, the Board’s procedural

rules

provided:

Each of the matters offact.

..

of which admission is requested is admitted unless,

within 20 days after service thereof, the party to whom the request is directed

serves upon the party requesting the admission either a sworn statement denying

specifically the matters ofwhich admission is requested or setting forth in detail

the reasons why he cannot truthfully admit or deny those matters or written

objections on the ground that some or all ofthe requested admissions are

privileged or irrelevant or that the request is otherwise improper in whole or in

part. 35 Ill. Adm. Code 103.162(c) (repealed Jan. 1, 2001).

This rule was repealed on January 1, 2001, when the Board adopted an entirely new set of

procedural rules. However, the current rule on admissions in the absence ofdenial

(35

Ill. Adm.

Code 101.618(f)) is nearly identical to the repealed rule, and which one applies makes no

difference in today’s outcome. Because the Board applies the procedural rule in effect at the

time the document in question was filed or served

(see

People v. John Crane. Inc., PCB 0 1-76,

slip op. at2-3 (May 17, 2001)), fonner Section 103.162(c), quoted above, applies to the People’s

1997 request to admit.

Besides not responding to the People’s August

5,

2003 motion to deem facts admitted,

G&M and Papas have neverresponded to the 1997 request to admit. Accordingly, under former

Section 103.162(c), the facts set forth in the request to admit are deemed admitted by

respondents. The Board therefore grants the People’s motion to deem facts admitted.

See

35 Ill.

Adm. Code 101.500(d) (non-movant waives objection to granting motion if non-movant fails to

respond to motion).

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, certify that the Board

adopted the above order on October 2, 2003, by a vote of 7-0.

•~

DorothyM. Gunn, Clerk

Illinois Pollution Control Board

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CERTIFICATE OF SERVICE

I, KATHERINE A. KELLY, an Assistant Attorney General, do

certify that I caused to be mailed this

1st

day of December,

2003, the foregoing MOTION and NOTICE by first-class mail in a

postage prepaid envelope and depositing same with the United

States Postal Service located at 100 West Randolph Street,

Chicago, Illinois, 60601.

(A

J