BEFORE TIlE ILLINOIS POLLUTION
CONTROL BOARD
MACON COUNTY, ILLINOIS
RECERVED
PEOPLE
OF THE
STATE OF ILLINOIS,
)
CLERKS
OFFICE
Complainant,
)
NOV
012065
v.
)
PCB
NO.
05139
STATE OF
ILLINOIS
)
(Cost Recovery)
Pollution
Control Board
BATH INCORPORATED, an Illinois
corporation,
)
Respondent.
)
NOTICE
OF FILING OF COMPLAINANT’S MOTION FOR SUMMARY JUDGMENT
TO:
Margaret B.
Cuttill
695 South
Crea
Street
Decatur,
IL 62522
YOU ARE HEREBY
NOTIFIED that
the Complainant,
PEOPLE OF THE STATE OF
ILLINOIS, by
LISA MADIGAN,
Attorney General of the State of Illinois,
and has filed its motion for
summary judgment against Respondent, BATH INCORPORATED with
the Illinois Pollution Control
Board.
Respectfully submitted,
PEOPLE OF THE
STATE OF ILLINOIS
LISA MADIGAN,
Attorney General of the
State of Illinois,
BY~flttO
OSI
c~~fames
L. Morgan
Assistant Attorney General
Environmental Bureau
500
South
Second Street
Springfield, Illinois 62706
217/524-7506
Dated:
October
28, 2005
1
CERTIFICATE
OF SERVICE
I hereby certify that I did on
the 28th day of October 2005,
send by First Class Mail, with postage
thereon fully prepaid, by depositing in a United States Post Office
Box in Danville, Illinois, a true and
correct copy of the instruments entitled Complainant’s Motion For
Summary Judgment and Notice of
Filing
TO:
Margaret B.
Cuttill
695 South Crea Street
Decatur,
IL 62522
Carol Webb (without Exhibits)
Hearing Officer.Illinois Pollution Control Board
1021
North Grand Avenue East
P.O. Box
19274
Springfield,
IL 62794-9274
/4
f1424,~
James L. Morgan
/
Assistant Attornel General
Environmental Bureau/Springfield
BEFORE THE ILLINOIS
POLLUTION
CONTROL BOARD
MACON COUNTY, ILLINOIS
RECEIVED
CLERK’S OFFtCE
PEOPLE
OF THE STATE
OF ILLINOIS,
)
NOV
012005
Complainant,
)
STATE
OF
ILLINOtS
PCB
NO.
05-139
p~fluti0fl
Control
Boar
)
(Cost Recovery)
BATH INCORPORATED, an Illinois
)
corporation,
)
Respondent.
)
COMPLAINANT’S MOTION FOR SUMMARY JIJDGMENT
NOW COMES
the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General
of the State of Illinois, and moves
for summary judgment upon
the
complaint
against Respondent,
BATH INCORPORATED.
In support of this motion, Complainant states
as follows:
STATEMENT
OF FACTS
1.
Respondent, Bath Incorporated, is
an Illinois corporation
in good standing and
authorized
to do business in the
State of Illinois.
See Exhibit
A (Secretary of State Corporate
Information
Sheet).
2.
‘The
Respondent
is the owner and operator of a landfill located at
901
Walnut Street, in
Decatur,
Macon County, Illinois.
See Exhibits
B (March
9,
1994 Order from
People v.
Bath
Incorporated,
85-CH-l64),
C-l
(November
14,
1974 Permit), and C-2 (December 9,
1988
Permit).
3
During Respondent’s operation
of the landfill, Respondent
disposed
of a variety of
wastes at
the landfill.
See Exhibit D (December
2001
Site Investigation Report prepared by Earth Tech,
Inc.,
at p. 3).
4.
These wastes
and other materials contained Anthracene, Benzo(a)anthracene,
Benzo(b)fluoranthene,
Benzo(a)pyrene, Chiysene,
Di Benzo(a)anthracene, Fluoranthene,
PCBs,
1
Indeno(l,2,3-c,
d)pyrene, Pyrene, Lead, Cadmium, and Mercury, each of which are
identified
by
Section
3.215 of the Act, 415
ILCS
5/3.215
(2004),
as hazardous
substances.
See
Exhibit D, pp
13-15.
5.
For a period of time prior to 2002, contaminants,
including Anthracene,
Benzo(a)anthracene,
Benzo(b)fluoranthene,
Benzo(a)pyrene, Chrysene, Di Benzo(a)anthracene,
Fluoranthene,
PCBs,
hideno(1,2,3-c, d)pyrene, Pyrene, Lead,
Cadmium, and Mercury, present
in the
wastes disposed
of at
the landfill have leached,
escaped,
and leaked
from the landfill into the adjacent
reach of the Sangamon River onto and into the land
surface and subsurface strata around and underneath
the
landfill. See Exhibit
D, pp.13-15.
6.
On May
13, 2002, Illinois EPA sent Respondent
a notice pursuant
to
Section 4(q) of the
Act, 415
ILCS 5/4(q) (2002) requesting that
it perform identified remedial actions at
the Facility.
See
Exhibit
E.
7.
Respondent did not respond to the request.
See Exhibit F.
8.
The
State has incurred and will continue
to incur response costs associated with the
releases and threatened releases of hazardous substances at
the Facility.
See Exhibit G (Construction
and
Documentation Report/Bath Landfill Cover Improvements
(Appendices B-Fl omitted))
9.
Through June
30,
2005, those costs
are
$2,838,368,53. See
Exhibit I-I (Cost
documentation package
and affidavit of John Sherrill),
ARGUMENT
The Respondent
is liable for all costs
incurred by the Illinois EPA to abate
the release and
threatened release of hazardous substances from the
landfill.
Section
22.2 of the
Act, 415
ILCS
5/22.2 (2002),
provides that:
£
Notwithstanding any other provision or rule of law, and subject only to the defenses
set
forth in
subsection
(i)
of this Section, the followingpersons
shall be
liable for all
costs of
removal or remedial action incurred by
the
State of Illinois or any unit of local
government as
a
result of a release or substantial threat of a release
of a hazardous substance or pesticide:
2
1.
the owner and operator of a facility or vessel
from which there is
a release or substantial threat of a release of a hazardous substance or
pesticide;
There are no genuine issues as to any material fact necessary to establish
Respondent’s
liability under
Section
22.2ffl of the Act, 415 ILCS
5/22.2(f),
for Illinois EPA’s response
costs.
•
Anthracene, Benzo(a)anthracene,
Benzo(b)fluoranthene,
Benzo(a)pyrene,
Chrysene,
Di
Benzo(a)anthracene,
Fluoranthene,
PCBs, Indeno( 1,2,3-c, d)pyrene, Pyrene,
Lead,
Cadmium,
and Mercury, are hazardous substances as defined by
Section
3.215 of the
Act, 415
ILCS, 5/3.215.
•
The leaching, discharging and seeping of the hazardous substances constitutes a release
or threatened release of hazardous substances as defined by
Section
3.395 of the Act, 415
ILCS, 5/3.395.
•
As the owner and operator of the landfill, the Respondent is a responsible party
as
described in Section 22.2(f)(1) of the Act, 415
ILCS 4/22.2(f)(1),
and is liable for past,
present,
and
future response costs,
as defined by
the Act,
incurred by the State resulting
or arising out of the releases and threatened releases at
the Landfill.
There are also no
genuine issues as to any material fact necessary to establish that Respondent
is
also
liable for
treble
damages, pursuant to
Section
22.2(k) of the Act, 415
ILCS 5/22.2(k), when it
did not
comply
with the May
13,
2002, because
it
failed
to provide sufficient cause for its refusal
to comply with
the 4(q) notice
issued by Illinois EPA.
PRAYER FOR RELIEF
WHEREFORE, Complainant,
the PEOPLE OF THE
STATE OF ILLINOIS, respectfully request
that the
Board enter a final order:
A.
Granting Complainant’s motion for summary judgment;
3
B.
Finding the Respondent, Bath Incorporated, to be liable for past, present, and future
removal costs,
as defined by the Act, incurred by
the
Illinois EPA as a result of the releases and
threatened releases of hazardous substances at the Facility;
C.
Finding
Respondent, Bath Incorporated, to be liable for damages equal to three times the
past, present,
and future removal costs, as defined by
the Act, incurred by the Illinois EPA as a result of
the
releases and threatened releases of hazardous substances at the Facility;
because of the Respondent’s
refusal to perform the work set forth
in the Section 4(q) notice issued by Illinois EPA; and
D.
Awarding to Complainant its costs.
Respectfully submitted,
PEOPLE OF
THE
STATE OF ILLINOIS
LISA MADIGAN,
Attorney General
of the
State of Illinois,
MATTHEW
J.
DUNN, Chief
Environmental Enforcement/Asbestos
ti~:~nDi~
Assistant Attorney General
Environmental Bureau
500 South Second
Street
Springfield, Illinois 62706
217/524-7506
Dated:
October 27,
2005
4
