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BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
CTF~”~
oFFTc~
DEC 292003
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE
OF ILLJNOI
-
)
0IIUtIOfl Contro/ Board
)
Complainant,
)
)
V.
)
PCBNo.04-
/
)
(Enforcement-Cost Recovery)
THOMAS GRAY, an individual, STEVE
)
WHYTE, an individual, GLADYS WKYTE, an
)
individual, LEONA CBILDRESS, an individual,
)
and WILLIAM
McCOY,
an individual
)
)
)
Respondents.
)
NOTICE OF FILING
TO:
Attached Service List
PLEASE TAKE NOTICE that on December 29, 2003, we filed with the Clerk ofthe Illinois
pollution Control Board, Complainant’s Complaint and Certificate of Service, a copy ofwhich is
attached and served upon you. Failureto file an answer to this Complaint within 60 days may have
severe consequences. Failure to answerwill meanthat all allegations in the Complaint will be taken
as if admitted for purposes ofthis proceeding. Ifyou have questions about this procedure, you
should contact the hearing officer assigned to this proceeding, the Clerk’s Office or an attorney.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA Madigari, Attorney General State
ofIllinois
~
By:
‘(~-~~“i~
Gerald T. K.arr
Assistant Attorney General
Environmental Bureau
188 West Randolph Street,
20th
Floor
Chicago, Illinois 60601
DATED: December29, 2003
(312) 814-3369
Thomas Gray
13163 East 2500 South Road
Momence, Illinois
60954
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Steve Whyte
Gladys Wliyte
242 West 150th Street
Harvey, Illinois 60426-2058
Leona Childress
William McCoy
13493 East 6000 South Road
Saint Anne, Illinois
60964-4571
$ERVJCE LIST
~Rf~cso~JCE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
-
-~
-.
S
STATE
DEC29
OF
ILL
2003
PEOPLE OF THE STATE OF ILLINOIS,
)
-
.
Contr
NOis
-
Oard
Complainant,
)
)
v.
)
PCBNo.04-
)
•(En~forcement-CostRecovery)
THOMAS GRAY, an individual, STEVE
)
WHYTE, an individual, GLADYS WHYTE, an
)
individual, LEONA CHLDRESS, an individual,
)
and WILLIAM
McCOY,
an individual
)
)
)
Respondents.
)
COMPLAINT
Complainant, PEOPLE OF THE STATE OP ILLINOIS,
by
LISA MADIGAN, Attorney
General ofthe State of Illinois, complains ofRespondents, THOMAS GRAY, STEVE WHYTE,
GLADYS WHYTE, LEONA CHLDRESS AND WILLIAM McCOY, (referred to hereafter
collectively as “Respondents”) as follows:
1. This Complaint is brought by Lisa Madigan, Attorney General ofthe State ofillinois, on
her ownmotion and at the request ofthe Illinois Environmental Protection Agency (“Illinois EPA”),
pursuant to the terms andprovisions of Section 55.3(k) ofthe illinois Environmental Protection Act
(“Act”), 415 TLCS 5/55.3(k) (2002) and is an action to recover the costs incurred by the People pf
the State ofIllinois in a corrective action undertaken by the illinois EPA.
2.
The Illinois EPA is an administrative agency of the State of Illinois, created by
Section 4. of the Act, 415 ILCS 5/4 (2002), and. charged,
inter alia,
with the duty of enforcing the
Act.
S
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—1—
3.
The parcels of land (hereinafter “Site”) that are the subject ofthis proceeding are
identifiedas TaxParcelsNo. 10-19-16-101-033, 10-19-16-101-034, and 10-19-16-101-035, andare
located in Momence, Kankakee County, Illinois,
60954.
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-
4.
At all times relevant to this Complaint, RespondentGray, an Illinois resident, owned
parcel 10-19-1 6-101-034 and operated the Site.
5.
At all times relevant to this Complaint, Respondents Steve and Gladys Whyte owned
parcel 10-19-16-101-033.
6.
AtalI times relevant to this Complainant, Respondents Childress and McCoy owned
parcel 10-19-16-101-035.
7.
The last known address for Respondent Gray was 13163 East 2500 South Road,
Momence, illinois, 60954.
8.
The last known address for Respondents Steve and Gladys Wliyte was 242 West
150th Street, Harvey, Illinois 60426-2058.
9.
The last known address forRespondents Childress and McCo.ywas 13493 East 6000
South Road, St. Anne, Illinois 60946-4571.
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10.
On November 10, 1997, the Illinois EPA conducted an inspection of the Site.
pursuant to this inspection, the Illinois EPA determined that the Site contained approximately
100,000 used or waste tires.
11.
On June
9,
2000, the illinois EPA conducted a re-inspection ofthe Site, conditions
had riot changed.
12.
Section 55.3(d) of the Act, 415 ILCS 5/55.3(d)(2002), provides in pertinent part,
as follows:
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-
d.
The Agency shall have authority to provide notice to the owner or operator,
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or ~oth~of a Site where used or waste tires are located,
. .
.whenever the
Agency finds that the used orwaste tires pose a threat to the public health or
the environment...
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***
The notice provided by the Agency shall include the identifiedpreventive or
corrective action, and shall provide an opportunity for the owner, operator,
or both to perform such action.
13.
Section 848.104 of the Illinois Pollution Control Board Regulations (hereinafter
“Board Regulations”), 35 Ill. Adm. Code 848.104, titled, Management ofUsed and Waste Tires,
in pertinent part, provides the following definitions:
“DISPOSAL” means the placement of used tires into or on land or water except as
an integral part of a systematic reuse or conversion in the regular course of
business.
“STORAGE” means the placement ofused or waste tires that does not constitute
disposal. At a minimum, such an accumulation must be an integral part of a
systematic alteration, reuse, reprocessing or conversion ofthe tire business in the
regular course ofbusiness.
“TIRE” means a hallow ring, made ofrubber or similar materials, which was
manufactured for the purpose ofbeing placed on the wheel rim ofa vehicle.
“TIRE STORAGE SITE” means a Site where used tires are stored or processed.
“USED TmB” means a worn, damaged, or defective tire which is not mounted on
a vehicle rim.
“WASTE TIRE” means a used tire that has been disposed of.
14.
On February 5, 2001, pursuant to Section 55.3(d) of the Act, 415
ILCS5/55.3(d)
(2002), the Illinois EPA issued a formal written notice to the Respondents. (This notice will
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hereinafter be referred to as the “55.3(d) notice”).
15.
Pursuant to the
55.3(d)
notice, Respondents were informedthat:
a. The accumulation of the used or waste tires posed a threat to public
health or the environment;
b. A plan must be submitted to the Illinois EPA within 30’days from
the date ofthe 55.3(d) notice detailing the removal of all the used waste tires at
the Site;
c. Ifowner or operator did not comply with the 55.3(d) notice, the Illinois EPA
would perform the clean-up and pursue any potentially responsible parties for all
costs incurred by the State; and
d. If owner or operator failed to comply with the
55.3(d)
notice, such failure may
subject the owner or operator to additional punitive damages in an amount equal to,
and not more than two times, the amount of costs incurred by the State.
16.
Section 55.3(e) ofthe Act, 415 ILCS 5/55.3(e) (2002), provides in pertinent part, as
follows:
e.
In accordancewith constitutional limitations, the Agency shallhave authority
to enter at all reasonable times upon any private or public property for the
purpose oftaking whatever preventive or corrective action is necessary and
appropriate in accordance with the provisions ofthis section, including but
not limited to removal, processing or treatment of used or waste tires,
whenever the Agency finds that used or waste tires pose a threat to public
health or the environment.
17. As of July 1, 2001, Respondents had not submitted a cleanup plan, nor removed the
waste tires.
18.
On or about July 6, 2001, Respondents were informed that the Illinois EPA had not
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received a response to the Section 5
5.3(d)
Notice and that the illinois EPA intended to remove the
tires from the Site. RespondentGrayauthorized and consentedto the Illinois EPA’s removal action.
19.
The tireremovaiwas commencedon or about October 11,2001, and was completed
on. or about December 21, 2001.
20.
As part ofthe removal action, 421.41 tons oftires were removed from the Whyte
parcel, 449.20 tons of tires were removed from the Gray parcel, and 228.62 tons of tires were
removed from the Childress/McCoy parcel, for a total of999.93 tons.
21.
Sectionss.3(g) oftheAct, 415 ILCS 5/55.3(g)(2002),providesinpertinentpart, as
follows:
g.
Except as otherwise provided in this Section, the owner or operator ofany
site or accumulation of used or waste tires at which the Agency has
undertaken corrective or preventive action under this Section shall be liable
for all costs thereof incurred by the State of Illinois, including costs of
collection. Any monies received by the Agency shall be deposited in the
Used Tire Management Fund.
22.
The materials described in paragraphs 11 and 20 of this Complaint constitute an
accumulation of“used tires” and “waste tires”within the meaning ofSection 807.104 of35 Ill. Adm.
Code.
23.
The Site and the accumulationofused tires and waste tires thereonwere the subject
of a corrective orpreventive action undertaken by the State of Illinois pursuant to Section 55.3 of
the Act, 415 TICS 5/55.3 (2002).
24.
The illinois EPA incurred costs -in undertaking corrective or preventive action to
removed the accumulation ofused tires and waste tires on the Site as follows; Whyte parcel in the
amount ofSS 0,624.43, the Grayparcel in the amount of$54,059.08 and the ChildressiMcCoyparcel
in the amount of$27, 198.97 for a total of$131,902.48.
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25.
Respondents are owners and/or operators ofan accumulation ofused orwaste tires
within the meaning ofSection 55.3(g) ofthe Act, 415 TICS
5/55.3(g)(2002),
because they owned
the Site at the time ofthe removal ofthe accumulation oftires.
26.
As an owner and/or operator ofan accumulation ofwaste and used tires, pursuant to
Section 55.3(g) ofthe Act, Respondents are liable for$131,902.48 in costs incurredby the State for
corrective action orpreventive action taken at the Site in accordancewith Section
5
5.3(g) ofthe Act,
415 TICS 5/55.3(g) (2002).
27.
As ofthe date ofthe filing ofthis Complaint, Respondents have failed to reimburse
the State for any portion of the $131,902.48 expended in removing used and waste tires from the
Site.
28.
Section
55.3(h)
oftheAct,415 TICS 5/55.3(h)(2002), provides, in pertinent part, as
follows:
h.
Anyperson liable to the Agency forcosts incurred under Section (g) ofthis
Section may be liable to the State for punitive damages in an amount at least
equal to, and not more than 2 times, the costs incurred by the State if such
-
person failed without sufficient cause to take preventive or corrective action
pursuant to notice issued under Section (d) ofthis Section.
29.
Section 3.315 ofthe Act, 415 TICS 5/3.315 (2002), provides the following definition:
“PERSON” is any individual, partnership, co-partnership, firm, company, limited
liability company, corporation, association, joint stock company, trust, estate,
political subdivision, state agency, or any other legal entity, or their legal
representative, agent or assigns.
30.
Respondents are a “person” as that term is defmed in Section 3.3 15 ofthe Act,
415
TICS 5/3315 (2002).
31.
Respondents received a 55.3(d) notice on or about February 7, 2001. They failed
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without sufficient cause to take any preventive or corrective action to remediate the threat created
by the accumulation ofwaste and used tires present at the Site.
32.
By failing without sufficient cause to take preventive or corrective action pursuant
to the
5 5.3(d)
notice, Respondents are also liable to the State ofIllinois for punitive damages
equal to at least $131,902.48 and up to $263,804.96.
WHEREFORE, the Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests the Board to enter an order in favor ofthe Complainant and against the Respondents,
granting the following relief:
S
1. Finding that the Respondents are owners and/or operators ofan accumulation of
waste and used tires pursuant to Section 5 5.3(g) ofthe Act;
2. Ordering the Respondents to pay at least $13 1,902,48 to the Used Tire Management
Fund as a reimbursement ofthe actual costs expended by the State in funding the clean-up ofthe
Site;
3. Finding that Respondents failed without sufficient cause to take preventive or
corrective action pursuant to notice issued under Section
55.3(d)
ofthe Act;
4. Ordering Respondents to pay at least $131,902.48 and up to $263,804.96 as punitive
damages pursuant to Section
5
5.3(h) ofthe Act;
5.
Ordering the Respondents to cease and desist from further violations of the Act;
6.
Assessing all costs ofthis proceeding pursuant to Section 42(f) ofthe Act, 415 TICS
5/42(f), (2002), including attorneys’ fees, expert witness fees, and consultant fees against
Respondents; and
7. Granting such other relief as the Board deems equitable and just.
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PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY:
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?~‘L’-~
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ROSEMARIE CAZEAUJChief
Environmental Bureau
Assistant Attorney General
OF GOUNS~
Gerald T. Karr
Assistant Attorney General
Environmental Bureau
188 West Randolph Street, 20th Floor
Chicago, Illinois 60601
(312) 814-3369
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CERTIFICATE OF SERVICE
I, GERALD T. KARR, an Assistant Attorney General in this case, do certify that on this
29th
day ofDecember, 2003, 1 caused to be servedby First Class Mail the foregoing Notice ofFiling and
Complainant upon the individuals listed on the attached service list, by depositing the same in the
U.S. Mail depository located at 100 West Randolph Street, Chicago, Illinois in an envelope with
sufficient postage prepaid.
S
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GERALD T. KARR
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