COF~

RECE~V~

ERK S OFP~CE

OCT 26 2004

STATE OF ILL~O!S

P~fl~tjonControi k3oard

MOTION TO COMPEL DISCOVERY

NOW COMES

NEWBY OIL COMPANY, by its attorney, William C. Murphy, and for its

objections to Complainant’s Motion to Permit Soil Sample Testing on Newby’s property states as

follows:

SUMMARY

1.

The motion is beyond the discovery allowed by PCB Rules. Case Law, even under

Supreme Court Rule 214, has disallowed similar drilling requests.

2.

Respondent Newby has cooperated with the EPA with Respondent’s permission the

EPA did excavate on Respondent’s property. No contaminants were found above Tier ‘levels’. The

Motion is thus burdensome and duplicative.

3.

Complainants seek a fishing expedition on Respondent’s property which the Hearing

Officer should deny. After extensive discovery, no spill has been proved. All

55

gallon drums

stored on Respondent’s property were empty except one. As to that one deposited without

Page 1 of

4

H

ILLINOIS POLLUTION CONTROL BOARD

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,

)

Complainant,

)

Case No. PCB 04-12

)

v.

)

)

NEWBY OIL COMPANY, DAVID E.

)

TRIPP and JANICE L. TRIPP,

)

Respondents.

)

---

Respondent’s knowledgem, by an unknown person minimal spillage occurred.

4.

Finally, Complainants seek this Motion only to attempt to avoid responsibility for

polluting their own site themselves.

The Motion accordingly should be denied.

1.

County ofKane v. Elmhurst National Bank 111111. App. 3d.292, 443 NE2d. 1149,

67 Ill. Dec. 25

(2h1d

District, 1982) is decisive. In this case, the defendants owned land and they

appealed an order that would have allowed the Plaintiff County to enter their land and conduct

subsoil tests such as soil boring. Although this case dealt with the County and an issue of eminent

domain, the Appellate Court stated, “authorizing soil borings and a geological study without the

landowners’ consent or a prior condemnation proceeding would be invalid even if statutorily

authorized. Such drilling and excavation, even where subsequent backfilling has been required, has

been properly recognized as a substantial interference with the landowners’ property rights rather

than a minimally intrusive preliminary survey causing only incidental damage.”

County ofKane

at

299. (emphasis added)

The Illinois Administrative Code (Section

35

of 101.614 relied upon by complainants only

allows an Officer to order the “production ofrelevant matters”. What is requested here is a right to

permit “soil sample testing”, through “borings” (Motion Paragraph 11) There is no mention of

allowing invasion of a landowner’s property in the Administrative Code. Such is not a production

of relevant matters. It would be an unconstitutional harassment and interference with the orderly

conduct or respondent’s business. The motion should be denied.

2.

Respondents have already allowedthe EPA to excavate on theirproperty. .A copy of

that inspection report and photographs ofit are attached as Exhibits 1 and 2. No contaminants above

Page 2 of 4

---

Tierl were found. Mr. Kazmerski or the EPA said in his deposition that only compounds found in

any urban area were found and that EPA site scoring would not be enough to warrant a Federal or

State cleanup. Complainants are not entitled to a second bite of the apple.

3.

What is really at issue here is complainants’ inability to prove their case after

extensive discovery. Except for the obvious fact that Newby stores empty

55

gallon oil drums on

its property and that minimal petroleum contamination has been discovered on complainants’

property, the only evidence is conjectural. To the contrary, no pollutants were discovered in the top

4 or

5

feet of the site alleged to be polluted.

4.

Discovery has demonstrated that Complainants probably caused any site pollution

themselves.3

a. Testing Service Corp, engaged by Frank R. Weimerslage, reported on March 24,

1994 (p 00002 of Complainants’ Discovery Production (“CDP” hereafter)).

The Site consists of a relatively flat, sparsely vegetated parcel which

gently slopes to the north. A swale running south to north bisects the

central part of the parcel. The Site is bounded on the north by

Oakland Place, on the south by farmland and on the west and east by

light industrial buildings. Approximately one block further west of

the Site lies Illinois State Route 23.

Surficial observations indicate black clayey topsoil covers the Site.

Several large piles of miscellaneous debris were noted in the center

ofthe Site. Noted among the debris were an abandoned semi-trailer,

scrap metal, carpet, automobile parts, tires, glass, yard waste, wood,

concrete, bricks, wire, furniture, corrugated steel,plumbing materials

consisting oftoilets and piping, barbed wire, several empty quarts of

motor oil and six empty 55 gallon drums. In addition to this

miscellaneous debris, a partially full

5

gallon can labelled brake fluid

was noted. No staining or areas of stressed Site vegetation were

observed in these areas or other portions ofthe Site. No indications

of underground storage tanks were visible at the ground surface.

***

Page 3 of 4

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TSC recommended that “proper disposal of the debris be arranged” (CDP 000003).

Instead Wiemerslage hired Bob Kyler Excavatingfor$1 1,225 to dig a hole and burythejunk

on site (CDP 000004).

The EPA report ofwhat happened is attached as Exhibit 3.

The photos taken by the EPA of the hole are attached as Exhibits 4 and

5.

For all the above reasons, the Motion to Compel should be DENIED.

Respectfully submitted this c24~rdayof

~

2004.

William C. Murphy

i~)u~

William C. Murphy, Esq., #1998838

KINNALLY, KRENTZ, LORAN,

HODGE & HERMAN, P.C.

2114 Deerpath Road

Post Office Box 5030

Aurora, Illinois 60507-5030

630/907-0909

Page 4 of 4

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O37~fltfl~3+~4~

—

DcKtIh

Couuty

N~whyOU

FOS

File

Narrative

On April 23, 2003

1 (Greg

Kazmerski) held a Compliance Sampling Inspection at Newby

Oil Company located in Sycamore, Illinois. Newby Oil is alleged to be the source of soil

and groundwater contaminationL

rDue

to the

—

inconclusiveness of the initial complaint investigation, a surface soil sample was obtained

from Newby Oil Company.

On December 12, 2002, I investigated the initial complaint against Newby Oil. This

complaint alleged that Newby Oil Company had contaminated the 1—

- -

with Benzene and Tetrachloroethane (see attached analytical results from~

Based upon the information provided by the complainant (a detailed site investigation

including soil borings and groundwater data) and information contained in the agency file

which documented open dumping a burial of waste on the

-

- -

1, I was

unable to draw any conclusions as to the source ofthe contamination. As a result, I

agreed to sample the soil from Newby Oil.

The sample I obtained (X101) was located approximately

ofthe location

where the contamination~he

—~

was discovered (see site drawing).

The complainant suggested this location. The sample was obtained by digging through

the gravel until native soil was reached. The sample was then taken using the “Encore”

sampling device from approximately six inches below the native soil surface. Three

Encore tubes were obtained. The sample was sealed with evidence tape on site and

cooled. The sample was delivered to the IEPA Organic Laboratory in Springfield,

Illinois where it was be analyzed for Volatile Organic Chemicals.

The sample results were received on May 22, 2003. The sample results indicated that

levels ofBen.zene and Tetrachloroethane were below detection limits. No compounds

were detected above Tier I Objectives.

RELEASABLE

SEP 0 3 2004

~ EXHIBIT

---

0370000000—DeKalb County

Neby Oil Company

DIGITAL PHOTOGRAPH PHOTOCOPIES

Date:

Time:

Direction:

Photo By:

File Name:

Comments:

Date:

Time:

Direction:

Photo By:

File Name:

Comments:

23-Apr-03

12:42

West

Kazmerski

0370000000-4)42303-001

Sample

X101

23-Apr-03

12:42

West

Kazmerski

0370000000—042303-002

Location of

sample

X10l relative to GP-

0370000000—042303.snp

z

EXHIBIT

2

---

0

-

~

•,! ~‘~‘

‘I

..

..

0370000000—-Dekaib County

Wi~erslago

.

Co~laintXnvestigaUon

..

On June 28, 1994, the Rockford Regional Office received a complaint that

a vacant lot

in the City of Sycamore was being excavated, and a semi-trailer

full of solid waste was buried in the excavation. The complainant stated that

the hole was still open on the day

of

the complaint and that the trailer was

visible in the hole. The

vacant lot was located on Oakland Drive, immediately

to the west of

P~ewby

Oil.

...

I arrived at the site at 12:05 p.m. on June 28. A man, who identified

himself as Bob

Kyler,

owner of Kyler Excavating was sitting on a backhoe,’

eating lunch. I advised him of the complaint and then looked In the hole.

The hole measured approximately 30 by 30’ by 12’ deep. Mr. Kyler admitted

that he had buried a semi trailer that was present on the lot for many years.

The owner of the lot wanted to get rid of the semi trailer, and Mr. Kyler came

in with the lowest bid. ie stated that he called the City

0!

Sycamore’s Code

Eriforce.ment office. They stated that they did not have any rules against

burial of solid waste, so Mr. Kyler proceeded with the excavation. When I

looked into the

hOiC,

I found landscape waste, building materials (lumber,

metal, wires, and a few tires). The actuai semi trailer was not visible. Mr.

Kyler stated that it was crushed under the weight of the other items and dirt.

I advised Mr.

Kyler that

he

could

not put anything other than clean fill

into the hole, and then I explained the definition of “clean fill0., to him. I

told him that everything would have to go to the landfill,’ compost facility,

or to a recyclIng facility. 1 also told him that I would like to see the hole

when it was empty, before it

was beckfilled, and

I

would like to have dump

receipts. He

was very cordial

an’J cooperative, and stated that he would have

to contact the owner of the property. lIe gave me the phone number for his

office, and told me to call his

wife

(the d~spatcher),.andto get the macne and

address cf tl-i~

owner from her.

When

I returned to the office, I phoned

Mr.

Cyler’s wife.

She advised

me

that

the cvnor of the property ~c Frank Wieniarsiage, 711

S.

Seminary, Par:

Ridge, Illinois, 60068. She also sta~edthat she had phoned Mr. Wiemerslage

to tell him about my Site visit.

I then phoned the owner, and told him about the problem.

fle

stated that’

the

disposal would add much more money to the cost of the job, hut he

eventually would have, to do it. Then, I phoned Mrs. Ryler back. She stated

that the hole would be empty, and everything would be hauled away by the

following Friday, July 8. I told her that

I

would meether husband at the lot

on the ,nbrniuq of July 8.

. . ‘ .

On July 8, 1 arrived at the facility at 8:45 a.m. Mr. Kyler was

present. The hole was completely empty, and he handed me several receipts

from the bekalb County Landfill (site #0J7~020O0l), and Dekaib Iron and Metal

(sito #03’/Olt)SOfl). There was

pile

of cie.an concrete chunks present near the

hole, and another pile (approximately 2 dump

trur.k

loads) of old

lumber

near:

the hole. He stated that

he would put the concrete into

the hole and the

lumber

would go

to the landfill and

he would mail

me the remaining receipts.

I.tOld him that that would be fine (copies of the’receipts are attached).

PhOtagr~phs#2 and 3 face southwest, showing the refuse in the excavated

hole. Photographs #11 and

12 face southwest, showing the ~rnptyhole (the

water is from several do~~rnpours,including one approximately 1/2 hour before I

was present on the

8th.

There

was no evidence that the water was

groundwater).

. ~CE~P

RELEASA~L~

2( 1994

JUN 0 32002

LEPA-DLPC

EXHIBIT

REVIEWERMO

iL

‘-

3

---

IWNOIS ENVIRONMENTAL

PROTECTION

AGENCY

INSPECTION PHOTOS

DATE:

Jiaie 28, 1994

COUNTY:

0370000000-Oekalb

TIME:

12:20p.m.

SITE

NAME:

W?eme,sIage

PHOTOGRAPH TAKEN

BY:

Kathy

Geye ~

COMMENTS:

Facing

SW-

Flola füled with infuse.

ROLLS 7148

PHOTO #:

2&3

DATE:

lIME:

PHOTOGRAPH

TAKEN

COMMENTS:

PHOIC #:

‘3

4

---

I

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

iNSPECT/ON PHOTOS

DATE

July 8, 1994

COUNTY:

0370000000-Dekaib

County

TiME:

9:05

a.m.

SITE

NAME:

W,emea~slage

PHOTOGRAPH TAKEN

BY:

KathyGeyet

:j

v

\L;

COMMENTS:

Fa?jng

SW-

cleaned out excavation

ROLLS 7148

PHOTO #:

17 & 72

DATE:

TIME:

PHOTOGRAPH TAKEN

COMMENTS:

PHOTO #:

EXHIBIT

~/-?/L~

J~

2

EXHIBIT

4

5