CLERK’S OFFICE
    ILLINOIS POLLUTION CONTROL BOARD
    FEB 25
    2O1~4
    STATE OF ILLINOIS
    PEOPLE OF THE
    STATE OF ILLINOIS,
    )
    POllUtion
    Control Bo~rcI
    )
    Complainant,
    )
    )
    v.
    )
    PCBO4-106
    )
    (Enforcement
    —
    Cost Recovery)
    THOMAS GRAY, STEVE WHYTE
    )
    GLADYS WHITE, LEONA CHILDRESS,
    )
    And WILLIAM MCCOY,
    )
    )
    Respondents.
    NOTICE OF FILING
    To: Attached Service List
    PLEASE TAKE NOTICE that on February
    25,
    2004, I filed with the Clerk ofthe Illinois
    Pollution Control Board, Respondent LEONA CHILDRESS’ Appearance, Answer and
    Affirmative Defense,
    copies of which are attached and served upon you.
    Respectfully submitted,
    RESPONDENT LEONA CHILDRESS
    BY:
    (~ ~
    KeithHarley, Attorney for LEON4J~HILDRESS
    KeithHarley
    Chicago Legal Clinic, Inc.
    205
    W.
    Monroe,
    4th
    Floor
    Chicago, IL 60606
    (312) 726-2938
    (312) 726-5206 (fax)
    kharley(~kentlaw.
    edu
    SERVICE LIST
    Gerald T. Karr, Assistant Attorney General
    Office ofthe Attorney General
    Environmental Bureau
    188 W.
    Randolph Street,
    20th
    Floor
    Chicago, IL 60601
    Steve Whyte
    242
    W.
    150th
    Street
    Harvey, IL
    60426-205
    8
    Gladys Whyte
    242
    W.
    150th
    Street
    Harvey, IL 60426-2058
    Thomas Gray
    13163
    E. 2500 South Road
    Momence, IL 60954
    Carol Sudman, Hearing Officer
    Illinois Pollution Control Board
    1021 North Grand Avenue East
    P.O. Box 19274
    Springfield, IL 62794-9274
    February
    25,
    2004
    CLERK’S
    OFFICE
    ILLINOIS POLLUTION CONTROL BOARD
    FEB
    252004
    STATE OF ILUNOIS
    PEOPLE OF THE STATE OF ILLINOIS,
    )
    Pollution Control Board
    )
    Complainant,
    )
    )
    v.
    )
    PCBO4-106
    )
    (Enforcement
    —
    Cost Recovery)
    THOMAS GRAY, STEVE WHYTE
    )
    GLADYS WHITE, LEONA CHILDRESS,
    )
    And WILLIAM MCCOY,
    )
    )
    Respondents.
    )
    APPEARANCE
    I, KEITH HARLEY, an attorney, hereby enter the Appearance ofLEONA CHIILDRESS,
    and
    y Appearance as Counsel forLEONA CHILDRESS, in the above matter.
    Attorney’s Signature
    Date: February 25, 2005
    Keith Harley
    Chicago Legal Clinic, Inc.
    205
    W.
    Monroe,
    ~
    Floor
    Chicago, IL 60606
    (312) 726-2938
    (312) 726-5206 (fax)
    CERTIFICATE OF SERVICE
    I, KEITH HARLEY, an attorney, hereby certify that true copies ofthe foregoing
    Appearance were mailedby First Class Mail, by depositing the same in the U.S. Mail
    depository located at 220 West Monroe, Chicago, Illinois
    in an envelope with sufficient
    postage prepaid, on February 25, 2004,
    to the following:
    Gerald T. Karr, Assistant Attorney General
    Office ofthe Attorney General
    Environmental Bureau
    188
    W. Randolph Street,
    20th
    Floor
    Chicago, IL 60601
    Steve Whyte
    242
    W.
    150th
    Street
    Harvey, IL 60426-2058
    Gladys Whyte
    242
    W.
    150th
    Street
    Harvey, IL 60426-205 8
    Thomas Gray
    13163
    B. 2500 South Road
    Momence, IL
    60954
    Carol Sudman, Hearing Officer
    Illinois Pollution Control Board
    1021
    North Grand Avenue East
    P.O. Box 19274
    Springfield, IL 62794-9274
    Keith Harley, Attorney for Leon
    Childress
    Chicago Legal Clinic, Inc.
    205
    W. Monroe,
    4th
    Floor
    Chicago IL 60606
    (312) 726-2938
    (312) 726-5206 (fax)
    kharley@kentlaw.edu
    l~
    ~EC E
    V
    ~
    ~
    CLERK’S OFFICE
    FEB
    25
    2004
    ILLINOIS POLLUTION CONTROLBOARD
    STATE OF ILLINO~S
    Pollution Control Board
    PEOPLE OF THE STATE
    OF ILLINOIS,
    )
    )
    Complainant,
    )
    )
    v.
    )
    PCB 04-106
    )
    (Enforcement
    —
    Cost Recovery)
    THOMAS GRAY, STEVE WHYTE
    )
    GLADYS WHITE, LEONA CHILDRESS,
    )
    And WILLIAM MCCOY,
    )
    )
    Respondents.
    )
    ANSWER and AFFIRMATIVE DEFENSE
    Now comes LEONA CHILDRESS by and through her attorney, KEITH HARLEY, and
    for her Answer and Affirmative Defense to
    the Complaint in the above-captioned case,
    states as follows:
    I. ANSWER
    1.
    The Respondent denies knowledge and information sufficient to form a reasonable
    belief, but demands strict proofthereof.
    2.
    The Respondent admits the allegations contained in Paragraph 2.
    3.
    The Respondent denies knowledge and information sufficient to form a reasonable
    belief, but demands strict proofthereof.
    4.
    The Respondent denies knowledge and information sufficient to form a reasonable
    belief, but demands strict proofthereof.
    5.
    The Respondent denies knowledge and information sufficient to
    form a reasonable
    belief,
    but demands strict proof thereof.
    6.
    The Respondent admits the allegations contained in Paragraph 6.
    7.
    The Respondent denies knowledge and information sufficient to form a reasonable
    belief, but demands strict proofthereof.
    8.
    The Respondent denies knowledge and information sufficient to form a reasonable
    belief, but demands strict proofthereof.
    9.
    The Respondent admits the allegations contained in Paragraph 9.
    1
    10.
    The Respondent denies knowledge and information sufficient to form
    a reasonable
    belief, but demands strict proofthereof.
    1 1.
    The Respondentdenies knowledge and information sufficient to form a reasonable
    belief, but demands strict proofthereof.
    12.
    The Respondent admits the allegations contained in Paragraph 12.
    13.
    The Respondent admits the allegations contained in Paragraph
    13.
    14.
    TheRespondent denies knowledge and information sufficient to form a reasonable
    belief, but demands strict proofthereof.
    15.
    The Respondent denies knowledge and information sufficient to
    form a reasonable
    belief, but demands strict proofthereof.
    16.
    The Respondent admits the allegations contained in Paragraph
    16.
    17.
    TheRespondent denies knowledge and information sufficient to form a reasonable
    belief, but demands strict proofthereof.
    18.
    The Respondent denies knowledge and information sufficient to form a reasonable
    belief, but demands strict proofthereof.
    19.
    The Respondent denies knowledge and information sufficient to
    form a reasonable
    belief, but demands strict proofthereof.
    20.
    The Respondent denies knowledge and information sufficient to form a reasonable
    belief, but demands strict proof thereof.
    21.
    The Respondent admits the allegations contained in Paragraph 21.
    22.
    The Respondent denies knowledge and information sufficient to form a reasonable
    belief, but demands strict proofthereof.
    23.
    The Respondent denies knowledge
    and information sufficient to
    form a reasonable
    belief, but demands strict proofthereof.
    24.
    The Respondent denies knowledge and information sufficient to
    form a reasonable
    belief, but demands strict proofthereof.
    25.
    The Respondent denies the allegations contained in Paragraph
    25.
    26.
    The Respondent denies the allegations contained in Paragraph 26.
    2
    27.
    The Respondent denies responsibility for reimbursing the State.
    As to the other
    allegations in Paragraph 27, the Respondent denies knowledge and information sufficient
    to
    form a reasonable belief, but demands strict proofthereof.
    28.
    The Respondent admits the allegations contained in Paragraph 28.
    29.
    The Respondent admits the allegations contained in Paragraph 29.
    30.
    The Respondent admits the allegations contained in Paragraph 30.
    31.
    The Respondent denies knowledge and information sufficient to
    form a reasonable
    belief, but demands strict proofthereof
    32.
    The Respondent denies the allegations contained in Paragraph 32.
    II. AFFIRMATIVE DEFENSE
    1.
    415 ILCS
    5/55.3(i)
    states in pertinent part:
    There shall be no liability under subsection (g) ofthis Section for a person
    otherwise liable who can establish by a preponderance of the evidence that the
    hazard createdby the tires was caused solely by.
    .
    .
    (3) an act or omission of a third
    party other than an employee or agent, and other than a person whose act or
    omission
    occurs in connection with a contractual relationship with the person
    otherwise liable.
    2.
    The Respondent
    and her now deceased husband purchased parcel
    10-19-16-101-035
    (hereinafter “Respondent’s parcel”) in Momence, Kankakee County, Illinois on or about
    1979.
    3.
    The Respondent never resided on this parcel, which is located a several minute drive
    from her home, but instead used it for several years for gardening.
    4.
    At the time ofpurchase, therewere no tires on the Respondent’s parcel.
    5.
    The Respondent’s parcel is adjacent to
    a parcel owned by Respondent Thomas Gray
    (hereinafter the “Gray parcel”).
    6.
    Thomas Gray was never an
    employee or agent ofRespondent Childress.
    7.
    During all times relevant to this Complaint, Respondent Childress had no contractual
    relationship with Thomas Gray.
    8.
    At no time did Respondent Childress authorize any person to
    have access or use of her
    parcel for any activities related to tire storage and/or disposal, nor did she employ or
    contract with any person fortire storage andlor disposal
    on her property.
    3
    9.
    Respondent Childress never engaged in any tire storage or disposal activities on her
    parcel or on any otherproperty.
    10. Respondent Childress believed all tire storage
    andlor disposal activities were confined
    to
    the adjacent Gray parcel.
    11.
    At no time did Respondent Childress, who is now 77 years old and visited her parcel
    less-and-less frequently as she grew older, observe any storage and/or disposal oftires on
    her parcel.
    12.
    Any tires that came to be
    stored and/or disposed ofon Respondent Childress’
    property were placed there without her knowledge and consent.
    13.
    That any hazard createdby the tires on the Respondent’s parcel was caused solelyby
    an act or omission of a third party other than an employee or agent ofRespondent
    Childress, and other than a person whose act or omission occurred in connection with a
    contractual relationship with Respondent Childress.
    14.
    Following the death ofher husband, Respondent Childress transferred an interest in
    the property to her son, Respondent William McCoy, as part ofplanning her estate.
    Respondent McCoy had no other connection to the Respondent’s parcel.
    15.
    Respondent
    Childress consistently communicated to the IL EPA that she had this
    defense, and that it created sufficient cause for her not to take preventive or corrective
    action.
    Respondent Childress
    further communicated to
    IL EPA that requiring her to
    remove tires was impractical because ofher age, physical frailty and very limited
    financial means.
    16.
    The Respondent sold her parcel on or about December 9, 2002 for a purchase price
    virtually identical to
    the price she paid for the property in 1979.
    17.
    The Respondent, whose income is approximately $700.00 per month, has never
    derived any benefit from the disposal or removal oftires made necessary by the activities
    ofThomas Gray.
    WHEREFORE, the Respondent LEONA CHILDRESS, respectfully requests the Board
    to
    enter an
    order that:
    1. she is not the owner and/or operator ofwaste and usedtires;
    2.
    she is not liable to
    reimburse the State for costs it incurred in funding the cleanup of
    the site;
    3. in light ofher defense, she had sufficient cause not to take corrective or preventive
    action;
    4
    4.
    she is not liable for punitive damages;
    5.
    she is not liable for any costs relating to this
    proceeding;
    6.
    she is entitled to
    such otherrelief as the Board deems equitable and just.
    RESPONDENT LEONA CHILDRESS
    BY:
    (~kJ~
    Keith Harley, Attorney for Leona Chi
    ess
    Keith Harley
    Chicago Legal Clinic, Inc.
    205
    W. Monroe,
    4th
    Floor
    Chicago, IL 60606
    (312) 726-2938
    (312) 726-5206 (fax)
    ltharley(~kentlaw.edu
    5
    CERTIFICATE OF SERVICE
    I, KEITH HARLEY, an attorney, hereby certify that true copies ofthe foregoing Answer
    and Affirmative Defense were mailed by First Class Mail, by depositing the same in the
    U.S. Mail depository located at 220 West Monroe, Chicago, Illinois in an envelope with
    sufficient postage prepaid, on February 25, 2004,
    to
    the following:
    Gerald T.
    Karr, Assistant Attorney General
    Office of the Attorney General
    Environmental Bureau
    188 W. Randolph Street,
    20th
    Floor
    Chicago, IL 60601
    Steve Whyte
    242 W.
    150th
    Street
    Harvey, IL 60426-2058
    Gladys Whyte
    242
    W.
    150th
    Street
    Harvey,
    IL 60426-205 8
    Thomas Gray
    13163
    E. 2500 South Road
    Momence, IL 60954
    Carol Sudman, Hearing Officer
    Illinois Pollution Control Board
    1021
    North Grand Avenue East
    P.O. Box
    19274
    Springfield,
    IL 62794-9274
    Keith Harley, Attorney for Lec(y~aChildress
    Chicago Legal Clinic, Inc.
    205 W. Monroe,
    4th
    Floor
    Chicago IL 60606
    (312) 726-2938
    (312) 726-5206 (fax)
    kharley~kentlaw.edu
    6

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