R~ECF~VED
CLERK’S OFFICE
JUN
~
12004
BEFORE THE
ILLINOIS POLLUTION CONTROL
BOARD
STATE OF ILLINOIS
Pollution Control Board
THE
VILLAGE
OF LOMBARD,
)
ILLINOIS,
an
Illinois
)
municipality corporation,
)
)
Complainant,
)
PCB
No. O4-~-(
)
(LUSTS
-
Cost Recovery)
v.
)
)
BILL’S AUTO CENTER,
)
BILL’S STANDARD SERVICE
)
and WILLIAM
KOVAR,
)
)
Respondents.
)
COMPLAINT
FOR COST RECOVERY
The
Complainant,
VILLAGE
OF
LOMBARD
(the
“Village”),
by
and
through
its
attorneys,
Klein, Thorpe and
Jenkins,
Ltd.,
complains against the
Respondents,
BILL’S
AUTO
CENTER,
BILL’S
STANDARD
SERVICE
and
WILLIAM
KOVAR
(collectively
referred to hereinafter as the “Respondents”),
as follows:
Summary of
the
Complaint
The Village
seeks to
recover from
the Respondents
costs
incurred
in
connection
with the response,
removal and remedial action taken as the
result of contamination from
underground storage tanks at a facility
in Lombard,
Illinois.
During
excavation of a water
line trench in the Village owned Willow Street right-of-way on August 11,2000,
a gasoline
odor was noted
in the trench soils by the excavation contractor and supervising engineer
for
the
Village.
Installation
of the
new water main
line was
part of the
project that also
included
installation
of
a
new sanitary sewer line
and
lift
station
and
reconstruction
of
Willow Street west of Main Street.
The odor was encountered when the trench, which was
iManage
135251
1
being excavated from west to east, reached
an area
south of the
southwest corner of a
former gas station, Bill’s Auto Center, located at 330 5. Main Street. An investigation found
that
one
or more of the
underground
storage
tanks
or fuel
lines
that were
owned and
operated
by
the
Respondents
had
leaked
and
had
caused
the
contamination
to
the
Village’s property adjacent to that 330
S. Main Street site.
The impacted soil encountered
in the water line trench and on the Village’s property is a result of the release originating at
the
Bill’s
Auto
Center
facility.
Due to the
Respondents’
acts
and
omissions,
causing
contamination
and
allowing
contamination
to
remain
in
place,
the
Village
incurred
significant costs
by conducting
a
response,
removal and
remedial action to address
the
contamination.
Common Allegations
1.
The
Village
is
an
Illinois
municipal corporation
and
a
“person” within
the
meaning of Section 3.315 ofthe Illinois Environmental Protection Act (the “Act”), 415 ILCS
5/3.315.
2.
Bill’s Auto Center
is
a
corporation
or other business entity
and a
“person”
within
the
meaning of Section 3.315 of the Act,
415 ILCS
5/3.315,
and
the owner and
operator
of
six
(6)
underground
storage
tanks
that were
located
on
the
real
property
commonly known as 330 5.
Main Street, Lombard,
Illinois (the “Facility”).
3.
Bill’s
Standard
Service
is
a
corporation
or
other
business
entity
and
a
“person” within the meaning of Section
3.3 15 of the Act, 415 ILCS 5/3.315, and
is or was
the owner of the
Facility where the
underground storage tanks were located.
4.
William Kovar is an individual and is the owner of and oversees and manages
Bill’s Auto
Center and
Bill’s Standard
Service.
-2-
5.
Jurisdiction
of the
Illinois
Pollution
Control
Board
(the
“Board”)
is
proper
pursuant to Section
31
of the Act, 415
ILCS 5/31.
6.
The Facility formerly contained six(6) underground stragetanks~usedforthe
storage of gasoline and waste oil.
At least five (5) of these tanks were
removed on March
31,
1999.
7.
During
removal ofthe underground storagetanksfromthe Facility, therewas
evidence ofa release through staining and odorswithin the soiisand-wat~rsuri~ounding:the
underground
storage tanks.
On
March
31,
1999,
a
representative of the
Office of the
Illinois State
Fire Marshal confirmed that a petroleum release had occurred at the
Facility
and an Illinois Emergency ManagementAgency (“IEMA”) Incident Number was assigned to
the
leaking
underground storage tanks.
On information and belief,
in
early
1996, during
the
installation of the Phase
II vapor recovery upgrades on the underground storage tank
systems
by the
Respondents,
impacted soils
were encountered
and the
Respondents
called IEMA and obtained an incident number.
Based upon the historical use ofthe Facility
as a service center and observations made during the tui-derg-roundstür-age tar~k
removal,
two (2) incident numbers issued to the site are related to the same release.
Incident Nos.
990776 and 960012 were assigned to the
Facility.
8.
The Respondents exposed the underground storage tanks and pumped oily
waste water and sludge from the
tanks for disposal at an approved disposal facility.
The
underground storage tanks were cleaned and removed from the
Facility.
9.
During
removal
of
the
underground
storage
tanks,
the
Respondents
discovered
that
fill
under
and
around
the
tanks
and
native
soil
was
contaminated
by
petroleum constituents that had
leaked from the underground storage tanks.
-3-
10.
On
information
and
belief,
beginning
at
the
end
of the
period
of
active
operation of the underground storage tanks and continuing to at least March 31,
1999, the
Respondents permitted the continued release of petroleum
constituents into soils
at the
Facility from the underground storage tanks.
11.
The
Illinois
Environmental
Protection Agency (“IEPA”)
received
a 45 Day
Report
dated
June
7,
2002
regarding the
incident.
The
IEPA
directed
Respondents to
perform corrective action
in accordance with the Illinois Environmental Protection Act (the
“Act”) and
the
Illinois Administrative Code.
Pursuant to the Act,
the
IEPA required
the
Respondents to file
a Site Classification
Work
Plan
and
Corrective Action
Plan
and to
otherwise comply with the
law.
On information and belief, the Respondents have failed to
take
any
steps
necessary
to
do
a
site
investigation
or
to
submit
a
Site
Investigation
Completion Report and Work
Plan orto remediate the contamination caused bythe leaking
underground storage tanks.
12.
The Village owns and controls property immediately adjacent to the
Facility
on the
north side of Willow Street (the “Village
Property”).
13.
On August 11, 2000, while installing a watermain on the Village
Property, an
excavation contractor and supervising engineerforthe Village noted a gasoline odor in and
on the Village
Property.
14.
Upon
a
subsequent
investigation
it
was
determined
that
petroleum
contamination from the underground storage tanks at the Facility caused contamination to
the Village
Property.
-4-
15.
The Village incurred response,
removal and remedial costs and expenses in
excess of $98,000.00
in connection with the contamination from the underground storage
tanks at the
Facility.
16.
Despite
repeated
demands
by
the
Village,
the
Respondents
have
not
reimbursed the Village for the
response,
removal
and remedial costs incurred because of
the
leaking underground storage tanks at the
Facility.
COUNT
I
Violation of Section 21(a) of the Act
17.
The Village realleges and incorporates by reference as if set forth fully herein
Paragraphs
1
through
16 of the Complaint.
18.
Section
21(a) of the Act prohibits
any person from
causing or allowing the
open dumping of any waste.
415 ILCS 5/21(a).
19.
The petroleum constituents present in the underground storage tanks at the
Facility and released from
the deteriorated
underground
storage tanks
into surrounding
soils at the Facility and off site onto the Village Property constitute “waste” under the Act.
415 ILCS 5/3.535.
20.
The Respondents caused or allowed petroleum constituents to be released
from the underground storage tanks at the
Facility in violation of Section 21(a) of the Act.
WHEREFORE, the Village
requests the
Board enter an order as follows:
(a)
Require
the
Respondents
to
reimburse
the
Village
for
the
costs
incurred
in
investigating
and
cleaning
up
petroleum
contaminated
soils and taking other response,
removal and remedial actions at the
Village Property; and
-5-
(b)
Order any other relief that the
Board and equity deem appropriate.
COUNT
II
Violation of Section 21(d)(2) of the Act
21.
The Village realleges and incorporates by reference as if set forth fully herein
Paragraphs I
through
16 of the
Complaint.
22.
Section
21
(d)(1)
prohibits
a
person
from
conducting
a
waste-storage
operation
or
waste-disposal
operation
without
a
permit
granted
by
the
Illinois
Environmental
Protection Agency.
415 ILCS 5/21(d)(1).
23.
Section
21(d)(2)
prohibits
a
person
from
conducting
a
waste-storage
operation or waste-disposal in violation
of any regulations or standards adopted
by the
Board pursuant to the Act.
415 ILCS 5/21(d)(2).
24.
The petroleum constituents present in
the underground storage.tanks-at-the
Facility and
released from
the
deteriorated
underground storage tanks
into
surrounding
soils at the Facility and onto the Village
Property constitute “waste” under the Act.
415
ILCS
5/3.535.
25.
The presence of petroleum constituents
in under~rourid-storage~tanks.at.the.
Facility constitutes “storage”
under the Act.
415 ILCS 5/3.480.
26.
The leaking of petroleum constituents from underground storage tanks at the
Facility constitutes “disposal” under the Act.
415 ILCS 5/3.185.
27.
The Respondents conducted a waste-storage operation and
a waste-disposal
operation without a permit in violation of Section 21(d)(1) ofthe Act.
415 ILCS 5/21(d)(1).
-6-
28.
The Respondents conducted a waste-storage operation and a waste-disposal
operation
in violation of regulations or standards adopted by the Board pursuantto the-Act.
415
ILCS 5/21(d)(2).
WHEREFORE, the Village requests the
Board enter an order as follows:
(a)
Require
the
Respondents
to
reimburse
the
Village
for
the
costs
incurred
in
investigating
and
cleaning
up
petroleum
contaminated
soils and taking other response, removal, and remedial actions atthe
Village
Property; and
(b)
Order any other relief that the Board and equity deem appropriate.
COUNT
Ill
Violation of Section 21(e) of the Act
29.
The Village realleges and incorporates by referer~ce
as ifset forth fully herein
Paragraphs
I
through
16 of the Complaint.
30.
Section 2 1(e) of the Act prohibits disposal,
storage or abandonment of any
waste,
“except
at
a
site
or
facility
which
meets
the
requirements
of this
Act
and
of
regulations and standards thereunder.”
415 ILCS 5/21(e).
31.
The petroleum constituents present in the underground storage tanks at the
Facility and
released
from
the deteriorated
underground storage tanks
into surrounding
soils at the
Facility and
onto the Village
Property constitute “waste”
under the Act.
415
ILCS
5/3.535.
32.
The presence of petroleum constituents in underground storage tanks at the
Facility constitutes “storage” under the Act.
415 ILCS 5/3.480.
-7-
33.
The leaking of petroleum constituents from underground storage:tanks:at the
Facility constitutes “disposal” under the Act.
415 ILCS 5/3.185.
34.
The presence of petroleum constituents in underground storage tanks at the
Facility
for
years
after
the
cessation
of
active
use
by
the
Respondents
constitutes
“abandonment”
under Section 21(e) of the Act.
415 ILCS 5/21(e).
35.
The Respondents disposed, stored and abandoned waste at a facility that did
not meet the
requirements of the Act, and the regulations and
standards thereunder,
in
violation of Section 21(e) of the Act.
415 ILCS 5/21(e).
WHEREFORE,
the Village
requests that the
Board enter an order as follows:
(a)
Require
the
Respondents to
reimburse
the
Village
for
the
costs
it
incurred
in
investigating
and
cleaning
up
petroleum
contaminated
soils and taking
other response,
removal and remedial action at the
Village
Property; and
(b)
Order any other relief that the Board and equity deem appropriate.
COUNT
IV
Violation of Section 12(a) of the Act
17.
The Village
realleges and
incorporates
by reference as if set forth
herein
Paragraphs
I through
16 of the
Complaint.
18.
Section
12(a)
of the
Act
prohibits
a
person
from
causing
or allowing
the
discharge of any contaminants into the environment so as to cause or tend to cause water
pollution
in
Illinois.
415 ILCS 5/12(a).
19.
On information and belief, the leaking of the petroleum constituents presen-t
in
the
underground
storage
tanks
at
the
Facility
and
released
from
the
deteriorated
underground
storage tanks
into
the
soils
and
groundwater
and
onto
Village
Property,
caused
water
pollution
in
violation
of regulations
or
standards
adopted
by the
Board
-8-
pursuant to the Act.
415 ILCS 5/12(a).
20.
On information and belief, Respondents caused, threatened or allowed water
pollution by allowing contaminants
in the form of gasoline,
waste oil and other petroleum
substances
into
the
environment,
which
leaked
into
and
remained
in
the
soil
and
groundwater at the
Facility in violation of Section 12(a) of the Act.
WHEREFORE,
the Village requests that the
Board enter an order as follows:
(a)
Require
the
Respondents
to
reimburse
the
Village
for
the
costs
it
incurred
in
investigating
and
cleaning
up
petroleum
contaminated
soils
and taking other response,
removal and
remedial action at the
Village Property;
and
(b)
Order any other relief that the Board and equity deem appropriate.
COUNT V
Violation of Section 12(d) of the Act
17.
The Village
realleges
and incorporates
by reference as if set forth
herein
Paragraphs
I
through
16 of the
Complaint.
18.
Section
12(d) of the Act prohibits
a person from depositing any contaminants
upon
the
land
in
such place
and
manner so as to create
a water pollution hazard.
415
ILCS 5/12(d).
19.
On
information
and
belief,
the
petroleum
constituents
present
in
the
underground storage tanks at the Facility and released from the deteriorated underground
storage tanks
into
the
soils
and
groundwater at
the
Facility
and
onto Village
Property
constitutes
a
“deposit of contaminants
upon the
land” “so
as to
create a water pollution
hazard” under Section 12(d) of the Act.
415 ILCS 5/12(d).
20.
On information and belief, the Respondents created a water pollution hazard by
allowing the
release of contaminants,
including
gasoline,
waste oil,
and other petroleum
-9-
substances to leak into and remain in the
soils and groundwater at the Facility in violation
of Section 12(d) of the Act.
415 ILCS 5/12(d).
WHEREFORE, the Village
requests that the Board enter an order as follows:
(a)
Require the
Respondents
to
reimburse
the
Village
for
the
costs
it
incurred
in
investigating
and
cleaning
up
petroleum
contaminated
soils
and taking
other response,
removal and
remedial action at the
Village
Property; and
(b)
Order any other relief that the
Board and equity deem appropriate.
Respectfully submitted,
VILLAGE OF LOMBARD
By:__________
One orIts Attorneys
Dennis G. Walsh
Lance
C.
Malina
Jacob
H.
Karaca
Klein, Thorpe
and Jenkins, Ltd.
20 North Wacker
Drive
Suite
1660
Chicago,
Illinois 60606-2903
312-984-6400
312-984-6444 Fax
Dated:
June
1,
2004
-10-
RECEWaD
CLERK’S OFFICE
JUN
C
I
200k
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINIOIS
Pollution Control Board
THE VILLAGE OF LOMBARD,
)
ILLINOIS,
an Illinois
)
municipality corporation,
)
)
Complainant,
)
PCB
No.
04-
v.
)
(LUSTS
-
Cost Recovery)
)
BILL’S AUTO CENTER,
)
BILL’S STANDARD SERVICE
)
and WILLIAM
KOVAR,
)
)
Respondents.
)
NOTICE TO RESPONDENT
INFORMATION
FOR RESPONDENT RECEIVING FORMAL COMPLAINT
PLEASE
TAKE
NOTICE
that today
I
filed
with
the
Clerk
of the
Illinois
Pollution
Control Board (Board) a formal complaint, a copy ofwhich
is served on you along with this
notice.
You may be
required to attend
a
hearing
on
a date set by the
Board.
Information
about the formal complaint process before the
Board
is found
in the
Environmental Protection Act (Act) (415
ILCS 5/1
et seq.) and the Board’s procedural rules
(35
III.
Adm.
Code
101
and
103).
These
can
be
accessed
at
the
Board’s
Web
site
(www.ipcb.state.iI.us).
The following is
a summary ofsome of the most imp-ortant points in
the Act and the
Board’s procedural rules and does not constitute legal advice or substitute
for provisions of any statute, rule, or regulation:
Board Accepting Formal Complaint for Hearing;
Motions
The Board will not accept this formal complaint for hearing ifthe Board finds that it is
either “duplicitous” or “frivolous” within the
meaning of Section 31(d) of the Act (415 ILCS
5/31 (d)) and Section
101.202 of the Board’s procedural rules (35 III. Adm. Code 101 .202).
“Duplicitous” or “duplicative” means that an identical or substantially similar case is already
pending before the Board orin court.
See 35 III. Adm. Code 103.212(a) and item lOofthe
formal complaint.
“Frivolous” means that the formal complaint seeks relief that the
Board does
not
have the authority to grant,
or fails
to state
a cause of action
upon which the
Board
can
grant
relief.
For
example,
the
Board
has the
authority to
order
a
respondent
to
stop
polluting and pay a civil penalty, to implement pollution abatement measures, orto perform
a cleanup or reimburse cleanup costs.
The Board does
not have the authority, however, to
award attorney fees to a citizen complainant.
See 35 III. Adm. Code 103.212(a) and items
5
and
9 of the formal complaint.
If you
believe that this formal complaint
is duplicitous
or frivolous,
you
may file
a
—I
—
motion
with
the
Board, within
30 days after the date you were served with the complaint,
requesting that the Board not accept the complaint for hearing.
The motion
must state the
facts supporting
your belief that the complaint
is duplicitous
or frivolous.
Memoranda,
affidavits,
and any other
relevant documents may
accompany
the
motion.
If you
need
more
time
than
30
days
to
file
a
motion
alleging
that
the
complaint
is
duplicitous
or
frivolous, you must file a motion for an extension of time within 30 days after service of the
complaint.
A motion for an extension of time must state why you need more time and the
amount of additional time you need.
Timely filing
a motion alleging that the complaint
is
duplicitous or frivolous will stay the 60-day period for filing an answerto the complaint.
See
35
Ill.
Adm.
Code
103.204,
103.212(b).
All motions filed with the
Board’s Clerk must
include
an original,
nine copies,
and
proof of service on the other parties.
Service may be made in person, by U.S.
mail, or by
messenger service.
Mail service is presumed complete four days after mailing.
See 35 Ill.
Adm.
Code
101 .300(c),
101.302,
101 .304.
If you
do
not respond
to
the
Board
within
30
days after
the
date
on
which
the
complaint was served
on you, the
Board
may find that the complaint is not duplicitous or
frivolous and accept the case for hearing.
The Board will then assign
a hearing officer who
will contact you to schedule times for telephone status conferences and for hearing.
See
35
Ill. Adm.
Code
103.212(a).
Answer to Complaint
You have the right to file an answerto this formal complaint within 60 days after you
receive the complaint.
If you timely file a motion alleging thatthe complaint is duplicitous or
frivolous, or a motion to strike, dismiss,
or challenge the sufficiency ofthe complaint, then
you may file an answer within
60 days after the
Board
rules
on your motion.
See
35
III.
Adm.
Code
101.506, 103.204(d),
(e),
103.212(b).
The Board’s procedural rules require the complainant to tell you as respondentthat:
Failure
to file an
answer to this complaint within
60 days may have
severe consequences.
Failure to answerwill mean that all allegations
in
the
complaint
will
be
taken
as
if admitted
for
purposes
of
this
proceeding.
If you
have
any questions
about this
procedure,
you
should
contact the
hearing
officer
assigned to this
proceeding, the
Clerk’s Office or an attorney.
35
III. Adm. Code
103.204(f).
Necessity
of an Attorney
Under
Illinois
law,
an
association,
citizens
group,
unit of
local
government,
or
corporation
must
be
represented
before
the
Board
by
an
attorney.
In
addition,
an
individual who is
not an attorney cannot represent another individual or other individuals
before the
Board.
However, even if an individual
is not an attorney, he or she is allowed to
represent
(1)
himself or
herself
as
an
individual
or (2)
his
or
her
unincorporated
sole
proprietorship.
See
35
III. Adm.
Code
101.400(a).
Such an individual may nevertheless
-2-
wish to have
an
attorney prepare
an answer and
any motions
or briefs,
and present
a
defense at hearing.
The Clerk’s Office will provide you, upon request, with
a list of pro bono attorneys.
These individuals or organizations may, in certain circumstances, represent citizens before
the Board without charge.
The Board does
not reviewthe qualifications ofthese attorneys
and makes no representations abouttheir credentials, abilities, or willingness to act as your
attorney.
No attorney on the list is required to accept any particular
case.
If you wish to
contact any of these attorneys,
you must do so on your own.
Costs.
In defending
against this formal complaint, you
are responsible for your attorney
fees,
duplicating
charges, travel expenses, witness fees,
and any other costs that you or
your attorney may incur.
The Board requires no filing fee to file your answer or any other
document with the Board.
The Board will pay any hearing costs (e.g., hearing room rental,
court reporting fees, hearing officer expenses).
If you have any questions, please contact the
Clerk’s Office at (312) 814-3629.
CERTIFICATE OF
SERVICE
I, the undersigned, on oath or affirmation, state that on June_, 2004,
I served the
attached formal complaint and notice on the respondents by:
_____
certified
mail
(attach
copy of receipt
if available,
otherwise you
must
file
receipt later with
Clerk)
_____
registered
mail (attach copy of receipt if available, otherwise
you must file receipt later with Clerk)
_____
messenger service
(attach copy of receipt
if available, otherwise you
must
file receipt later with
Clerk)
_____
personal service
(attach affidavit if available, otherwise you
must
file affidavit later with
Clerk)
at the addresses below:
RESPONDENTS’ ADDRESSES (Service List):
Bill’s Auto Center
330 South Main Street
Lombard, Illinois
60148
Bill’s
Standard Service
do William Kovar
330 South
Main Street
Lombard,
Illinois 60148
-3-
William Kovar
330 South Main Street
Lombard,
Illinois 60148
One of Complainant’s Attorneys
Dennis G. Walsh
Jacob Karaca
KLEIN, THORPE AND JENKINS,
LTD.
20 North Wacker
Drive, Suite
1660
Chicago,
Illinois
60606
(312) 984-6400
Atty.
No. 90446
Subscribed to and
sworn before me
thisL~A~
dayof
June,2004.
r~ota
Pjiblic
~
OFRC~AL
SEAL
ry
~
IRENE J MALONE
~ NOTARY
PUBLIC,
STATE
OF
iWf~IOiS
MY
COMMISSION
EXPlRES:O9/1~8
My commission expires:
?/(~
/~
-4-
