THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ADMINISTRATIVE CITATION
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
)
AC 2007-0004
)
vs.
)
(IEPA No. 139-06-AC)
)
FRANK WILHELM,
)
)
Respondent.
)
NOTICE OF FILING
TO:
Ms. Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
(VIA ELECTRONIC MAIL)
(SEE PERSONS ON ATTACHED SERVICE LIST)
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of
the Illinois Pollution Control Board an
ENTRY OF APPEARANCE OF CHRISTINE
G. ZEMAN
and
PETITION TO CONTEST ADMINISTRATIVE CITATION,
copies of which are herewith served upon you.
Respectfully submitted,
FRANK WILHELM,
Respondent,
Dated: September 1, 2006
By:
/s/ Christine G. Zeman
Christine G. Zeman
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
WILH:001/Filings/NOF - EOA & Petition to Contest AC
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 1, 2006
CERTIFICATE OF SERVICE
I, Christine G. Zeman, the undersigned, hereby certify that I have served the
attached ENTRY OF APPEARANCE OF CHRISTINE G. ZEMAN and PETITION TO
CONTEST ADMINISTRATIVE CITATION upon:
Ms. Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
via electronic mail on September 1, 2006; and upon:
Michelle M. Ryan, Esq.
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Post Office Box 19276
Springfield, Illinois 62794-9276
by depositing said documents in the United States Mail, postage prepaid, in Springfield,
Illinois, on September 1, 2006.
/s/ Christine G. Zeman
Christine G. Zeman
WILH:001/Filings/COS – EOA & Petition to Contest AC
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 1, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ADMINISTRATIVE CITATION
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
)
AC 2007-0004
)
vs.
)
(IEPA No. 139-06-AC)
)
FRANK WILHELM,
)
)
Respondent.
)
ENTRY OF APPEARANCE OF CHRISTINE G. ZEMAN
NOW COMES Christine G. Zeman, of the law firm HODGE DWYER ZEMAN,
and hereby enters her appearance in this matter.
Respectfully submitted,
/s/ Christine G. Zeman
Christine G. Zeman
Dated: September 1, 2006
Christine G. Zeman
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
WILH:001/Filings/EOA CGZ
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 1, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ADMINISTRATIVE CITATION
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
)
AC 2007-0004
)
vs.
)
(IEPA No. 139-06-AC)
)
FRANK WILHELM,
)
)
Respondent.
)
PETITION TO CONTEST ADMINISTRATIVE CITATION
NOW COMES Respondent, FRANK WILHELM, by and through HODGE
DWYER ZEMAN, and pursuant to 35 Ill. Admin Code § 108.204, hereby contests the
Administrative Citation (“AC”) improperly issued in the above-entitled cause and in
support thereof states as follows.
1.
On July 28, 2006, Complainant filed an AC with the Illinois Pollution
Control Board (“Board”) alleging,
inter alia
, that Frank Wilhelm owns and operates an
open dumping facility without an Illinois Environmental Protection Agency Operating
Permit.
See
Administrative Citation,
Illinois Environmental Protection Agency v. Frank
Wilhelm,
AC 2007-004 at ¶¶ 1-2 (July 28, 2006).
2.
The subject facility of the AC is commonly known as Decatur/Wilhelm
and, according to Complainant’s AC, is located at the:
Part of the West Half of the Northeast Quarter and the East Half of the
East Half of the Northwest Quarter in Section 32, Township 17, North
Range 2 East of the Third Principal Meridian, Macon County, Illinois.
Id.
at ¶ 1.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 1, 2006
2
3.
The Complainant also states that the “Respondent has owned and operated
said facility at all times pertinent hereto.”
Id.
at ¶ 3.
4.
Section 108.206 of the Board regulations provides, in relevant part, “[a]
formal petition to contest must include any reasons why the AC Recipient believes that
AC was improperly issued, including: a) The AC Recipient does not own the
property . . . .” 35 Ill. Admin. Code § 108.206.
5.
Frank Wilhelm, the Respondent and recipient of the Complainant’s AC,
does not own the property described in the Complaint.
See
Chicago Title Insurance
Policy, attached hereto as Exhibit A, issued for the real estate described in the AC, but
not issued to or naming Frank Wilhelm as owner.
6.
Therefore, the AC was improperly issued to Frank Wilhelm.
7.
Further, on information and belief, the Respondent did not cause or allow
the alleged open dumping, which, if such occurred as alleged, was the result of
uncontrollable circumstances pursuant to 35 Ill. Admin. Code §§ 108.206(b) and (d).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 1, 2006
3
WHEREFORE, Respondent, FRANK WILHELM, requests that the Illinois
Pollution Control Board enter an Order dismissing the Administrative Citation as
improperly issued pursuant to Section 108.206(a) of its administrative regulations, and
denying the civil penalties and any other relief sought therein.
Respectfully submitted,
FRANK WILHELM,
Respondent,
By:
/s/ Christine G. Zeman
Christine G. Zeman
Dated: September 1, 2006
Christine G. Zeman
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
WILH:001/Filings/Petition to Contest AC
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 1, 2006
AMERICAN LAND TITLE
ASSOCIATION
OWNER'S
POLICY FORM
B-1970
(Amended 10-17-70)
14 0122
04 023670
C
HICAGO TITLE
INSURANCE
COMPANY
SUBJECT TO THE EXCLUSIONS
FROM COVERAGE, THE
EXCEPTIONS CONTAINED
IN
SCHEDULE B AND THE PROVISIONS
OF THE CONDITIONS
AND STIPULATIONS HEREOF,
CHICAGO TITLE INSURANCE
COMPANY, a Missouri
corporation, herein
called the Company,
insures, as of Date of Policy
shown in Schedule A, against
loss or damage, not exceeding
the amount of
insurance stated in Schedule
A, and costs, attorneys' fees
and expenses which the Company may become
obligated to pay hereunder,
sustained or incurred by the insured by
reason of:
I. Title to
the estate or interest described in Schedule
A being vested otherwise
than as stated
therein;
tit
J
9
try
'.i
;0
'!n
This policy
necessarily relates
solely to the title as of the date
of the policy. In order that a purchaser
of the
real estate described
herein may be insured against defects,
liens or encumbrances, this policy
should be
reissued in the name of such
purchaser.
2 . Any defect in or lien or
encumbrance on such title;
3. Lack of a right of access to
and from the land; or
4.
Unmarketability of such title.
In
Witness Whereof, CHICAGO TITLE INSURANCE
COMPANY has
caused this policy
to
be
signed
and sealed
as of the date of policy shown
in
Schedule
A, the policy to become
valid when countersigned
by an authorized
signatory.
Issued by:
CHICAGO
TITLE INSURANCE
COMPANY
GARY
K. ANDERSON
By:
145
S. Water St.
Decatur, Illinois 62523
(217)
428-6675
IMPORTANT
;
A.
Copyright
1969 American Land Title
Association
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 1, 2006
, rFFýCE
FILE NUMHCR
M
acon #45794
o f bowed:
n oLlcy
rvvM BER
1 4-01 22 -04-0 23670
o .TF .c Pc1 -Y
December 8, 1986
FERDINAND W. WILHELM
T he estate or interest in the land described herein and which is covered
by this policy is:
Fee simple
a
A MOUNT
.R IrySVRAN(_ý
$ 70,000.00
3 . The estate or interest relerred to herein is at Date of Policy
vested
in
the insured.
d. The
land herein described is encumbered by the following mortvage
or trust deed, and assignments:
14014E
a nd the mortgages or trust
deeds. il'
any,
shown in Schedule C1 hereo
The land
rcicrred
to
in
this polic
H owl
Part of the West of the Northeast 4
and the East
z
of the East
of Section Thirty-two (32),
Township Seventeen
(17) North, Range
Two (2) East
of the 3rd P.M., Maeon County,
Illinois, said
tract being more
particularly
described as follows: Beginning
at the
Northwest corner of the
Northeast
4
of
said
Section 32, running
thence S 88°41'54"
West for 653.60
feet; thence S 0016'40"
West for 2643.05
feet; thence North 89°20'00"
for 235.50 feet; thence
North 0"08'49" East for
670.00 feet; thence North 89°
20'00" East for 424.00 feet;
thence S 0008149" West
for 290.00 feet; thence
88°28'30" Last, for 1.89.40 feet;
thence S 0°08'49"
West for 150.00 feet;
'30" East for 284.10
feet; thence S 0°08'49"
West. for 230.00 fe
thence N 88°28'30" East for 414.84 feet;
thence North 0°03'00"
East for 638.2
feet; thence
North 88"28'30" East for 145.50
feet; thence North 0°03'00"
West
for 438.08 feet;
thence North
89'59v23" East for 250.42 feet; thence
03'00"
West for 30.00 feet;
thence South 89"58'51"
West for 396.00
feet; ther
North
0°03'00"
West for 275.00
feet; thence
North 89°58'51" East for 1.2.00 fc
thence
North 7°51'02"
East for 546.40
feet;
thence North 25°52'54" East for
feet; thence
N 50009'36"
West for 291,00
feet;
thence S 25°20'24." [test.
3.55 feet
; thence North
89°55'37"
West for_ 445,43 feet; thence
27'59" East
for 235.00
feet; thence
North
89°39'47" West for. 21_5.15 feet.; the
North
0°08'49"
East for
530.25 feet
to the point
of beginning,
except
the Sot
1099.95
feet thereof.
Situated
in Macon
County,
Illinois.
T his policy valid only if
Schedule F3 is attached.
FORM 3214
R. M
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 1, 2006
F'oifcy
Number-
policy
Number
Taxes for 1986
This
policy
does
not insure against loss or damage by
reason
of
the following
exceptions:
General
Exceptions:
(1) Rights
or claims of
parties in possession not shown by the public records.
(2) Encroachments,
overlaps, boundary line disputes,
and any
other
matters
which
would be
disclosed by an
accurate survey
and inspection of the premises.
(3) Easements or
claims of easements not shown by the public records.
(4) Any lien, or right to a lien, for services, labor, or material
heretofore
or
hereafter
by
law and not shown by the public records.
(5) Taxes or special
assessments which are not
shown
as existing liens by the public records.
Special Exceptions: The
mortgage,
if any, referred
to in Item 4 of Schedule A.
( 1)
(2)
( 3)
due or payable.
and. underground pipes, if any.
O
wners
N one
L awn
Rights
of way for drainag
es
tiles, feeders, laterals,
(4) Rights of Illinois Iowa Power Company, an Illinois Corporation,
successors and. assigns, under and by virtue of Easement dated Mar
1940
and recorded July
26, 1940
in
Book
797,
Page 188 as Document
326723. (Affects "Generally
adjacent to
and
parallel with
the
Southwesterl
right of way line of the Illinois Central
Railroad
Company, all poles to
be set within 20 feet of the right of way of said railroad company)
(5) Rights of Illinois Power Company, an Illinois Corporation, under and by
virtue
of Easement
dated December
12, 1974
and
recorded January
24, 1975
in Book 1823, Page 11.8 as
Document No.
968309.
(Affects the West to feet
the North 10 feet of that part
of
the West 377.95
feet of the West Z
Northeast
4
of Section 32-17-2 E of the 3rd
P.M., lying
South
and West
of
the Illinois Central Railroad right of
way,
except the South
230 feet
thereof and except the North 530.25 feet thereof)
Company,
under
and b
of the Public, the State of Illinois, the County, the Township
municipality in and to that part of the premises in dues
used, or dedicated for roads or highways.
9 and
recorded.
May
_ýU
, to jay,
rep l a.ce , remove and re-lay a
D ocumen
c.. (Affects
14-0
122-..04
023670
s trument
19 East;
imposed
of the date of this policy are not yet
Way Contract
9 , Page 521 as
to Phillips Petroleum
Company.
2
p ages.
o perate,
rtation of
oil
, gas,
.-17-2Es
NOTE,. Amended
80, Page 825
as Document
F
ORM
1377 8.11179
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 1, 2006
(7)
(8)
(9)
Rights
of
Phillips Petroleum Company,
under and by.virtue
of Right of
Way Contract dated
July 14, 1951 and
recorded August 31,
1951 in Book
1077,
Page 415 as Document
No. 509867.
Rights of Weldon H. Owens
and Dorothy,M. Owens,
husband and wife,
for
an easement
of ingress and egress
as created
in Trustee's Deed dated
December
13, 1974 and recorded
December 18, 1974 in
Book 1820, Page
671 as Document
No. 966937.
NOTE: Access
over the Illinois Central
Gulf right-of-way
is by license.
( Schedui
ý
t3
coM1nued)
's"Y.wý^ !Lj^M'lYW
.'
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 1, 2006
'i, Definition
of Terms
The following
terms
when used
in
this
policy
mean:
(a)
"insured":
the insured named
in
Schedule
A,
rights or
defenses the. Company
may
have had against
the named
ed, those who succeed to the interest of such insured
by operation
aw
as distinguished from purchase including, but not
limited to,
distributees, devisees, survivors, personal representatives,
next of
n,
or corporate or fiduciary successors.
(b) "insured
claimant":
an insured claiming loss
or damage here-
under.
(e) "knowledge": actual knowledge, not constructive
knowledge or
which cnay be imputed to an insured by reason of any public
records.
(d) "land": the land described, specifically or by reference in Schedule
A, and
improvements affixed thereto which by law constitute real prop-
erty; provided, however, the term "land" does not include any property
beyond
the lines
of
the area specifically described or referred to in
Schedule A, nor any right, title, interest, estate or easement in
abutting
streets,
roads, avenues, alleys, lanes, ways
or
waterways, but nothing
herein shall modify or limit the extent to which a right of access to
and from the land is insured by this policy.
"mortgage": mortgage, deed of trust, trust deed, or other security
nt.
(f) "public records": those records
which
by
law
impart
construc
notice of matters relating to said land.
2 . Continuation
of Insurance after Conveyance of Title
The coverage of this policy shall continue in force as of Date of
Policy in favor of an insured so long as such insured retains an estate
in the land, or holds an indebtedness secured by a purchase
money mortgage given by a purchaser from such insured, or so long
as
such
insured shall have
liability
by
reason of covenants
of warranty
made by such insured in any transfer or conveyance of such estate or
interest; provided, however, this policy shall
not continue
in force in
favor of any purchaser from such insured of either said estate or
terest or the indebtedness secured by
a purchase
money mortgage
3 . Defense and Prosecution of Actions---Notice of Claim
to
be
given by an Insured Claimant
(a) The
Company,
at
its own cost
and without undue delay,
provide for the defense of an insured in all litigation consisting of
actions or proceedings commenced against such insured, or a defense
interposed against an insured in an action to enforce a contract for a
sale of the estate or interest in said land, to the extent that such litiga-
tion is founded upon an alleged defect, lien, encumbrance, or other
matter insured against by this policy.
(b) The insured shall notify the
Company promptly
in writing (i) in
case any action or proceeding is begun or defense is interposed as set
forth in (a) above, (ii) in case knowledge shall come to an insured
hereunder of any claim
of
title
or interest
which
is
adverse to the
title to the estate or interest, as insured, and which might cause loss
or damage for which the
Company
may
be liable by
virtue of
this
policy,
or (iii) if
title
to the estate or interest, as insured, is rejected as
unmarketable. If such prompt notice shall
not be given to
the
Com-
pany,
then as to such insured all liability of the Company shall cease
and terminate in regard to the
matter or matters for which such
prompt notice
shall in no
case prej
policy
unless the Company
then only to the extent of suc
(c)
The
Company shall have
and
without undue delay
however, that tailure to
notify
of any such insured under this
rejudiced by such
failure and
cute
any action or ; _ oe
any other
act
which
in its
may be necessary or
establish
the title to the estate
may take any appropriate
acti
ed, and the
terms of this policy,
or
not it shall be liable thereunder,
and shall not thereby cor,
liability
or waive
any provision of this policy.
(d) Whenever
the Company shalt have
brought any action or inter-
posed a defense,
as required or permitted by the provisions of this
policy, the Company may pursue any such
litigation
to
final
de ;,,I-
nation by a court of competent
jurisdiction
and expressly
reserves
the
right, in its sole discretion, to appeal from any adverse judgment
or
order.
(e) In all cases
where this policy permits or requires the Company
to
prosecute or provide for the defense of any action or proceeding,
the insured hereunder shall secure
to the Company the right to so
prosecute or provide defense in such action or proceeding,
and all
appeals therein, and permit
the
Cornpany
to use, at its option, the name
o£ such insured for such purpose. Whenever requested
by the Com-
pany,
such
insured shall. give the
Company all reasonable
aid in any
such action or proceeding, in effecting settlement, securing evidence,
obtaining witnesses,
or
prosecuting or defending such
action or pro-
ceeding, and the Company shall reimburse such insured for
any
expense
so incurred.
4 . Notice
of Loss-Limitation of Action
I n
addition to the notices required under
paragraph 3(b) of
these
Conditions and Stipulations, a statement
in writing of any
loss or dam-
age
for which it is claimed the Company is liable
under this policy
shall. be furnished
to the Company within 90 days after
such loss or
damage shall have been determined and no right
of action. shall accrue
to
an. insured claimant until. 30 days after such statement
shall have
been furnished. Failure.
to furnish such statement of loss
or
damage
shall terminate any liability of the Company
under this policy as to
such loss or
damage.
S . Options
to
Pay
or Otherwise Settle Claims
The Company shall
have the option to pay or otherwise
settle for
or in the naive of an insured claimant any
claim insured against or to
terminate all liability and obligations of the Company hereunder
by
paying or tendering payment of
the
amount
of insurance under this
policy together
with any costs, attorneys' fees and expenses
incurred
up to the time of such payment or
tender of payment, by the insured
claimant
and authorized by the Company.
6 .
Determination and Payment of Loss
(a)
The
liability of the Company under t
exceed the least of:
(i) the actual loss of the insured claimant; or
(ii) the
amount of
insurance
stated in Schedule A.
(b) The Company
will pay,
in
addition. to any loss insured a
by this policy, all costs imposed upon an insured in
litigation carried
on
by the Company for such insured, and all costs, attorneys' fees and
litigation carried on by such insured
with the written
of
the Company.
(c) When liability has been definitely fixed in
accordance with the
conditions of this policy, the loss or damage shall be payable
within
30 days thereafter.
7.
Limitation
of Liability
No
claim shall arise or
be maintainable
under this policy (a) if the
Company, after having received notice of an alleged
defect, lien or
encumbrance insured
against, hereunder, by litigation or otherwise,
removes such defect, lien or encumbrance or establishes
the title, as
insured,
within a reasonable time after receipt of such notice; (b) in
the event of litigation until there has been a final
determination by a
court
of competent jurisdiction, and disposition of all
appeals
there-
from, adverse to the title, as insured, as provided
in paragraph
3
hereof; or (c)
for
liability voluntarily assumed by an insured
in
settling
any claim or suit without
prior written consent of the Company.
R . Reduction of Liability
under this policy, except payments made for costs,
punt
of the i
producing this
unless the policy be lost
or destroyed,
uction shall be furnished
to
Ity Noncumulative
expressly understood that the amount of
i.
all be reduced by any amount the Company may
pay
C ONDITIONS AND STIPULATIONS (Continued on Reverse Side)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 1, 2006
CONDITIONS
,NCI STIPULATIONS (Continued)
any policy insuring either (a) a mortgage shown or referred to in
Schedule P hereof which is a lien on the estate or interest covered by
policy, or (b) a mortgage hereafter executed by an insured which
s a charge or lien on the estate or interest described or referred to in
Schedule A, and the amount so paid shall be deemed
a payment under
this policy. The Company shall have the option to apply to
the
pay-
ment of any such mortgages any amount that otherwise would be pay-
able
hereunder to tyre insured owner of the estate or interest covered
by this policy and the amount so paid shall be
deemed a payment
under
this policy to said insured owner.
1
0.
Apportionment
I f the land described in Schedule.
A
consists
of two or more parcels
which are not used as a single site, and a loss is established
affecting
one
or more of said parcels but not all,
the loss shall be computed
and settled
on a pro rata basis as if the amount of insurance under
this policy was divided pro rata as to the
value on Date of Policy of
each separate parcel to the whole, exclusive of any improvements made
subsequent to Date of Policy, unless a liability
or value has otherwise
been agreed upon as to each such parcel by the Company and
the
insured at the time of the issuance
of this policy and shown by an
express statement herein or by an endorsement attached hereto.
1 1. Subrogation Upon Payment or Settlement
Whenever the Company shall have settled a claim
under this policy,
all right of subrogation shall vest in the Company unaffected by any
act
of the insured claimant. The Company shall
be subrogated to and
be entitled to all rights and remedies which such insured
claimant
have had against any person or property
in respect to such
is policy not been issued, and if requested by
the
Com-
insured claimant shall transfer
to the
Company
all rights
and remedies against any person or property
necessary
in order to
perfect such right of subrogation and shall permit the Company to use
the name of such insured claimant in any transaction or litigation
involving such rights or remedies.
If
the
payment
does
not cover the,
loss of such insured claimant, the Company shall be subrogated to
such rights and remedies in the proportion which said payment
bears
to the amount of said loss, If loss should result from any act of such
insured claimant, such
act shall
not
void this policy, but the
Com-
pany, in that event, shall be required to pay only that part of any losses
insured
against hereunder which
shall
exceed the amount, i£
any, lost
to the Company by reason of the impairment of the right of subrogation.
1 2. Liability Limited to this Policy
This instrument together with all -endorsements and other i
ments, if any, attached hereto by the Company is the ent
contract
between
the insured and the
Company.
Any claim of loss or damage, whether or not based on negl
and which arises out of the status of the title to the estate or
covered hereby or any action asserting such claim, shall be restricted
to the provisions and conditions and stipulations of this policy.
of or endorsement to this policy can be made except
endorsed
hereon
or attached hereto
signed
by
either the
sident, a
Vice
President,
the Secretary, an Assistant Secretary, or
validating officer or authorized signatory of the Company.
1 3. Notices, Where Sent
All notices required to be given the Company and any statement in
writing
required to be furnished
the
Company
shall be addressed to its
principal office at 111 West Washington Street, Chicago, Illinois 60602,
or at any branch office of the Company.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 1, 2006
