ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
V .
TED HARRISON and GERALD S . GILL,
Respondents .
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
AC 05-8
(IEPA No. 330-04-AC)
(Administrative Citation)
RECCEIVED
CLERK'S OFFICE
FED 1 0 2006
PollutionO
Control Board
RESPONDENT HARRISON'S MOTION FOR SUMMARY JUDGMENT
NOW COMES, Respondent, TED HARRISON, through his undersigned
attorney, and for his motion for summary judgment, states as follows
:
1 .
This administrative citation alleges that Ted Harrison and Gerald S
. Gill
are liable under the administrative citation provisions of the Environmental Protection
Act, for waste materials allegedly seen at the site in question on May 26, 2004, by an
Illinois Environment Protection Agency (IEPA) inspector .
2 .
Because Respondent Harrison did not cause or allow the deposition of
waste materials alleged by the administrative citation, and because the inspector did not
directly observe Mr. Harrison do anything on the date of the inspection, no genuine issue
of material fact exists, and Respondent Harrison is entitled to this Board's summary
judgment in his favor
.
3 .
Respondent Harrison, like Respondent
Gill,
has been charged with
violating Section 21(p)(1) of the Environmental Protection Act, 415 ILCS 5/21(p)(1)
.
Specifically, they are alleged to have "caused or allowed the open dumping of waste in a
manner resulting in litter."
4.
In addition, the Respondents are alleged to have violated Section 21(p)(7)
of the act, 415 ILCS 5/21(p)(7) ; the specific allegation is that they "caused or allowed the
open dumping of waste in a manner resulting in deposition of general construction or
demolition debris ."
5 .
The IEPA wants $1,500 for each of these alleged violations
.
6 .
Accompanying the administrative citation in this case is an affidavit
purported to be signed by the IEPA inspector, testifying to the details of the alleged
inspection. That affidavit admits that the inspection leading to the administrative citation
allegations was conducted on May 26, 2004
.
7
.
Attached as an exhibit to that affidavit is a purported inspection report,
baring the date of May 26, 2004, and allegedly detailing the circumstances of the
inspection .
8 .
The first two and one half pages of the inspection report discuss a site not
relevant to this administrative citation proceeding (that cite is permitted, and therefore if
anything would be covered by Section 21(o), and not Section 21(p) ; moreover, no
allegations of materials fitting the violations alleged in this matter are stated with respect
to that site)
.
9 .
The narrative discussion of the areas for which the administrative citation
was issued admits that "[p]er a Warranty Deed filed in Cass County on August 5, 2002,
Ted and Margretta Harrison deeded this portion of the site to Mr . Gill on July 20, 2002."
10 .
Attached hereto, is the Real Estate Agreement dated July 27, 2002, that
resulted in the warranty deed acknowledged by the IEPA's inspection report
.
2
11
.
Paragraph 9 of the Real Estate Agreement deals with the materials on the
site that are the subject of this administrative citation . That provision, among other
things, allows Mr. Gill, as the buyer,. to utilize $20,000 of the purchase price to remove
any of the remaining materials at the site after July 30, 2002. That provision specifically
provides that "Except to the extent of the escrowed funds and the use thereof by Buyer to
pay for removal of the rubber tires and the junk from the aforesaid premises, Buyer shall
have no further claims against Seller for removal of such tires and junk ."
12 .
As the IEPA admits, the transaction was closed on August 5, 2002
.
Pursuant to the Real Estate Agreement, Ted Harrison had no further right to do anything
on the property subsequent to September 30, 2002
.
13 .
In contrast, Mr. Gill took title to and responsibility for the entire premises,
including the materials claimed to be junk, and effective September 30, 2002, had no
further claim against anyone for the removal of those materials, but instead was solely
responsible for their existence .
14 .
According to the IEPA, two years after the transaction closed (the
approximate time of the IEPA's inspection), Mr . Gill still had not utilized his $20,000
escrow fund to remove the alleged offending items
.
15 .
As of May 26, 2004 (the date of .the inspection), only Mr. Gill had any
legal right, authority or responsibility with respect to the materials on the property, and
Mr. Harrison would have been a criminal trespasser even if he had further responsibility
for the materials. Moreover, contrary to the requirements expressed in Section 31.1 of
the Environmental Protection Act, 415 ILCS 5/31 .1 the IEPA inspector did not observe
directly Mr. Harrison violate any statute as of May 26, 2004; Mr. Harrison had no legal
3
rights with respect to the property on that date, and was not present, according to the
inspection report
.
16 .
Attached hereto, in support of this motion, is the affidavit of Ted Harrison,
authenticating the Real Estate Agreement
.
WHEREFORE, Respondent TED HARRISON, requests that this Board enter a
summary judgment in his favor, and against the Complainant Illinois Environmental
Protection Agency, on the administrative citation issued in this case, and award to the
Respondent all such other and further relief as this Board deems just and appropriate
.
Respectfully submitted,
TED HARRISON,
Respondent,
By his attorney,
HEDINGER LAW OFFICE
2601 S . Fifth St
.
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
4
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~Ste w5~
Hes
i
in
STATE OF ILLINOIS
COUNTY OF ADAMS
ss
AFFIDAVIT OF TED HARRISON
Affiant, TED HARRISON, first being duly sworn upon oath, deposes and states
that, if called upon to testify in this matter, he would be competent to state upon personal
knowledge as follows :
1. Affiant is a Respondent in an administrative citation proceeding pending
before the Illinois Pollution Control Board in case Number AC-05-08
.
2. Attached hereto as Ex. #1 is a true and correct copy of the Real Estate
Agreement between Affiant and his wife as Sellers and Gerald S . Gill, who is
also a Respondent in the above-referenced administrative citation proceeding,
as Buyer
.
3. Affiant further testifies that all facts set forth in the motion for summary
judgment filed by this Affiant in the above-referenced administrative citation
proceeding are true and correct, to the best of Affiant's knowledge and belief
.
FURTHER AFFIANT SAYETH NOT
.
TnD HARRISON
OFFICIAL SEAL
STEPHEN F. HEDINGER
NOTARY PUBLIC,
STATE OF IW NOIS
j MY COMMISSION
EXPIRES 9132006
-I'
otary Pu}Iac
Subscribed and sworn to before me, a Notary Public, this
ay of
2006`?,
G-e
A
REAL ESTATE AGREEMENT
THIS AGREEMENT, made this .~-?
day of July, 2002, by and between THEODORE
HARRISON a/k/a TED HARRISON and MARGARETTA HARRISON, husband and wife,
P.O . Box 3185, Quincy, Adams County Illinois 62305, hereinafter called SELLER, and
GERALD S . GILL, whose address is 412 East Illini, Virginia, Illinois 62691, hereinafter
called BUYER, WITNESSETH
:
1 . Seller, in consideration of ONE HUNDRED NINETY-FIVE THOUSAND EIGHT
HUNDRED FORTY DOLLARS ($195,840 .00) to be paid as hereinafter provided, agrees to
sell and convey by good and sufficient Warranty Deed, free and clear of dower, homestead,
and all liens and encumbrances, and Buyer agrees to purchase therefore, the following
described real estate, to wit :
See attached Exhibit A which is by reference incorporated herein
.
2. Seller agrees to furnish and deliver to Buyer within a reasonable time a Title
Insurance Policy Commitment issued by a reputable Title Insurance Company in standard form,
and in the amount of the purchase price showing good and merchantable title in Seller in the
above described property prior to closing
.
3. Buyer agrees to pay $195,840.00 upon tender or delivery of a properly stamped
deed, possession and satisfactory title as herein provided . The purchase price shall be
allocated as follows
:
Three (3) Grain Bins
$
7,500.00 (Each $2,500.00)
Metal Building
$ 20,000 .00
Real Estate
$ 168,340.00
4. If Buyer shall fail to complete the sale herein agreed upon without fault on the part
of Seller, then Seller shall have the election to either retain said sums paid as a down payment
as and for Seller's liquidated damages in full or to have all the rights and remedies for breach
of the contract or for specific performance thereof, as may be permitted in law or equity
.
5. Taxes upon said premises for the year 2001, due and payable in 2002 shall be paid
by Seller. Taxes for 2002, due and payable in 2003 and all subsequent taxes shall be paid by
Buyer
.
6 . Seller will cause notice of this contract to be given immediately to Seller's casualty
insurance company or companies and will continue present insurance until final closing . If the
property or any part thereof is damaged by fire or other casualty, one of the followin
(a)
If the damage can be repaired within thirty (30) days, the Sellers shall have the
option of restoring the damaged property to its condition immediately prior to the
occurrence causing the damage, in which event Buyers shall complete the transaction as
originally planned
.
(b) If the damage cannot reasonably be repaired or if Sellers elect not to repair damage
as provided above, or if the property is entirely or substantially destroyed, Buyers shall
have the option of taking the property as is, together with the proceeds of all insurance
payable with respect to the damage or destruction, and paying the agreed purchase
price therefor, or rescinding the contract, receiving a refund of all sums paid
hereunder
.
7 . Seller warrants that no notice has been issued to or received by Seller or his agent,
from any city, village, or other government authority of a Dwelling Code violation which may
have existed before the execution of this contract
.
8
.
The parties acknowledge and understand that an Act Relating to Disclosure by the
Seller of Residential Real Property P .A. 88-111 approved July 20, 1993, effective October 1,
1994 (Act) (750 ILCS 77/1 et . seq.) requires the Seller to prepare and execute a "Disclosure
Report" prior to the signing of a sales agreement. Seller and Buyer agree that the foregoing
described property is not subject to the Disclosure Requirements of the Act for the reason that
no residence is situated thereon . Buyer acknowledges that he/she has personally examined the
property, premises and improvements thereon is satisfied as to its condition, "as is"
and is relying on his/her own judgment and is not relying on any representations made by
Seller, either orally or in writing
.
9
.
Seller acknowledges that there are rubber tires and junk stored on the foregoing
described premises . Seller further acknowledges that such tires and junk shall be removed by
Seller on or before closing or September 30, 2002 whichever date last occurs . In the event the
closing occurs prior to removal of the rubber tires and junk, Seller agrees Buyer may withhold
$20,000.00 of the purchase price to secure Seller's performance of this covenant . Such sum
shall be held in an interest bearing escrow account (escrowed funds) at Petefish, Skiles & Co
.
Bank at Virginia, Illinois with interest thereon to accrue to Seller, payments to be made
therefrom only upon joint signatures of Seller and Buyer. In the event Seller fails to remove
such rubber tires and junk by September 30, 2002, Buyer may so remove the same utilizing
the escrowed funds to pay for such removal and the escrowed funds not so used for such
purpose shall be paid to Seller . Except to the extent of the escrowed funds and the use thereof
by Buyer to pay for removal of the rubber tires and junk from the aforesaid premises, Buyer
shall have no further claims against Seller for removal of such tires and junk
.
10. The parties hereto agree that the foregoing described property contains no
residential structures or buildings situated thereon and therefore the lead-based paint and/or
lead-based paint hazard disclosure requirements are not required with respect to the foregoing
described property
.
11 . Title to be taken as follows
:
GERALD S. GILL
12, POSSESSION as follows
:
Upon Closing
13. PLACE OF CLOSING
:
Grosboll, Becker, Tice & Reif, Virginia, Illinois
14
.
DATE OF CLOSING
:
July 23, 2002 or such other time that is mutually
convenient to the parties
15. The covenants, agreements and warranties of the parties herein shall continue in
full force and effect and shall not be merged nor terminated from and after the closing or
completion of this Agreement and the payment in full of the sums due the respective parties
herein, and shall otherwise be construed and deemed to survive the completion of this contract
for the benefit of the parties hereto,
16. The use herein of the singular shall be deemed the plural, and the use
of
the plural
shall be deemed the singular, the use of the masculine gender shall be deemed to be the
feminine or neuter, the use of the feminine gender shall be deemed to be the masculine or
neuter, and the use of the neuter gender shall be deemed to the masculine or feminine,
whenever the sense of this contract requires
.
17. This Agreement shall be binding upon the heirs, devisees, legatees,
representatives, and assigns of the parties hereto
.
Theodore Harrison aka Ted Harrison
Margufetta Harrison
.C~CrI.~
erald S . Gill
S LLER
BUYER
TRACT I
:
The NORTHWEST Quarter of the SOUTHWEST Quarter of Section THIRTY- SIX (36) in Township
EIGHTEEN (18) North, Range TEN (10) West of the Third Principal Meridian, Cass County, Illinois
.
EXCEPT all that part, it any, of the old J . & H. Railroad Right of Way.
TRACT II :
A, The NORTH HALF
of
the SOUTHEAST quarter of Section THIRTY-FIVE (35)
; and that part
of
the
SOUTH HALF of the SOUTH EAST quarter of Section THIRTY-FIVE (35) lying NORTH
of
the following
described line :
Beginning at the NORTHWEST CORNER of the SOUTH WEST quarter of the SOUTH EAST quarter of
Section THIRTY-FIVE (35), running thence South One Thousand (1,000) feet, thence Northeast at a
distance of Fifty (50) feet on the East side from the center of the track of the former Right-of-Way of the
Jacksonville & Havana Railroad Company Eight Hundred Fifty (850) feet, thence East to the East line of
Section THIRTY-FIVE (36),
EXCEPT
the old railroad right-of-way running through the SOUTHEAST
QUARTER (SE1/4) of said Section THIRTY-FIVE
(35) .
Situated in Township EIGHTEEN (18) North, Range TEN (10) West of the Third Principal Meridian in
Cass County, Illinois,
B. Apart of the SOUTHWEST Quarter of the NORTHEAST Quarter of Section 36, Township 18
North, Range 10 West of the Third Principal Meridian in Cass County, Illinois described as follows
:
Beginning at a point 530 feet South of the Northeast comer of said quarter quarter section, thence South
along the section line 790 feet more or less to the Southeast comer of said quarter quarter section,
thence West along the quarter Section line to the point where the quarter section line intersects with the
center line of the Public Highway, thence Northeasterly along the canter line of said Public Highway to
the point directly west of the point of beginning, thence East parallel with the South line
of
said quarter
quarter section to the point of beginning
.
C
.
A strip of land One Hundred (100) feet in width running in a Northeasterly direction across the
SOUTH HALF of Section THIRTY-FIVE (35), from the South line to the East line of said Section, being
that part of the Jacksonville and Havana Right-of-Way running through the above-mentloned Section, In
Township EIGHTEEN (18) North, Range TEN (10) West of the Third Principal Meridian In Cass County,
Illinois .
D,
A part of Section Thirty-five (35) in Township Eighteen (18) North, Range Ten (10) West, and a part
of Section Two (2) in Township Seventeen (17) North, Range Ten (10) West of the Third Principal
Meridian, in Cass County, Illinois, more particularly descirbed as follows
:
eeglnning at a point Fifteen (15) Feet South of a point Twenty (20) rods East of the Southwest comer of
the Southeast Quarter of the Southwest Quarter of said Section Thirty-live
(35) ; running thence North
Thirty (30) Feet; thence at right angles East to the canter line of the former Right-of-Way of the
Jacksonville & Havana Railroad Company ; thence Southwesterly along said canter line to a point directly
East of the point of beginning ; and thence West to said point of beginning
.
EXHIBIT A
PROPERTY DESCRIPTION
BEFORE THE POLLUTION CONTROL BOARD RECEIVED
OF THE STATE OF ILLINOIS
CLERK'S OFFICE
ILLINOIS ENVIRONMENTAL
)
FEB 1 0 2006
PROTECTION AGENCY,
)
STATE
OF ILLINOIS
Pollution Control Board
Complainant,
)
v .
)
AC 05-8
(IEPA No. 330-04-AC)
TED HARRISON and GERALD S . GILL,
)
(Administrative Citation)
Respondents .
)
NOTICE OF FILING AND PROOF OF SERVICE
The undersigned certifies that an original and nine copies of the foregoing
RESPONDENT HARRISON'S MOTION FOR SUMMARY JUDGMENT and of this
Notice of Filing and Proof of Service, were served upon the Clerk of the Illinois Pollution
Control Board, and one copy to each of the following parties of record and hearing
officer in this cause by enclosing same in an envelope addressed to
:
Dorothy Gunn, Clerk
Michelle M. Ryan
Illinois Pollution Control Board
IEPA
James R. Thompson Center
1021 North Grand Avenue East
100 W. Randolph St., Suite 11-500
P.O. Box 19276
Chicago, IL 60601
Springfield, IL 62794-9276
Carol Webb
Mark S. Cochran
Hearing Officer
Belatti, Barton, Hamill & Cochran, LLC
Illinois Pollution Control Board
944 Clock Tower Drive, Suite A
1021 North Grand Avenue East, P.O. Box 19274
Springfield, IL 62704
Springfield, IL 62796-9274
with postage fully prepaid, and by depositing said envelope in a U .S. Post Office Mail
Box in Springfield, Illinois before 5 :30 p.m. on February, 2006
.
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
%It
This document prepared on recycled paper .
5
