BEFORE THE ILLINOIS POLLUTION CONTROL BOARD C F a
ADMINISTRATIVE CITATION
~CLE~K~g
OFFICE
2 2006
ILLINOIS ENVIRONMENTAL
STATE OF ILLINOIS
)
PROTECTION
AGENCY,
Pollution Control
Board
)
Complainant,
)
AC
o?
`~
([EPA No
. 183-06-AC)
vs.
)
FRANCIS E
. MORRIS,
)
Respondent
.
)
PETITION FOR REVIEW
NOW COMES respondent, Francis E
. Morris, also known as F
. E. Morris, by his agent,
Bertha Ann Morris, and by his counsel, Van Winkle and Van Winkle, and for his Petition for
Review, states as follows
:
1
. Admitted that F . E
. Morris is record title holder to the SE NE 21-7-8 Gallatin County,
but denied that Francis E
. Morris is the owner or operator of the alleged facility
.
2
. Denied .
3. Denied .
4
. Respondent can neither admit nor deny what Maggie Stevenson is alleged to have
done, but in all other respects the allegation is denied
.
VIOLATIONS
1 . Denied .
2. Denied .
3
. Denied .
4. Denied .
1 . Denied .
CIVIL PENALTY
AFFIRMATIVE DEFENSES
1 . The allegations of facts contained in the complaint are materially incorrect .
2. Francis E. Morris is an older individual, age 81, who because of his present physical
and mental condition, is incapable of conducting any business or committing the acts alleged in
the petition.
3. Francis E . Morris presently suffers from substantial physical disabilities as evident
from the Affidavit of Bertha Morris .
3 . As evident from the petition, the apparent violations were recent
.
4 . Francis E. Morris has not been engaged in business and has not in fact committed any
of the acts described in the petition .
5
. Francis E. Morris, although the nominal owner of the real property, is not in
possession of the real property . (See lease to Scott Price below described.) F. E. Morris is not in
control of the `facility' as defined under 35 IAC 720
.110.
6. Mere ownership of the real property is not sufficient grounds for imposition of a civil
penalty . 35 IAC 720 .110. F. E . Morris was not in control of the facility .
7. The real property has in fact been leased and is in possession of a person other than
Francis E . Morris, as reflected by the lease, a copy of which is attached as Exhibit
"A". Prior to
filing the instant action, no effort was made to contact Francis E
. Morris to discuss the alleged
violation with Francis E . Morris .
8
. The report filed by the investigator indicates that the investigator checked with the
Assessor's Office to determine who received the tax bill . The person receiving the tax bill is not
2
automatically the person in possession
.
9
. The allegations that Francis E
. Morris owned and operated the "facility" are materially
incorrect .
WHEREFORE, respondent requests review of the administrative citation and reversal of
any finding that respondent is responsible for any alleged violation, and reversal of any
finding
that respondent is liable for any penalty
.
CERTIFICATION
Under penalties of perjury as provided by law, and pursuant to Illinois Civil Code Section
? -109, the undersigned certifies that he has read the foregoing instrument, and knows the
allegations contained in the foregoing to be true and correct, except for the items alleged on
information and belief, the undersigned truly believes the same to be true and correct
.
3
a "'
• nkle_ attornev for
Ac+en for
Bertha Ann Morris
P F A,fnr,;e
JAMES L
. VAN WINKLE, #03124239, VAN WINKLE & VAN WINKLE, Attorneys at Law,
301 S. Jackson Street, P. O
. Box 337, McLeansboro, IL 62859-0337, Telephone
: (618) 643-4396,
Telefax : (618) 643-4241,
E-Mail: ripvan a~midwest.net
4/pleadings/06/M06430I
.petition for review revised mk.wpd
vw file
: 06-430.1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ADMINISTRATIVE CITATION
RED
CLERK, OFF
/n
ILLINOIS ENVIRONMENTAL
2`
PROTECTION AGENCY,
)
:)S7-ATESTATEOE
CorILLlif
Complainant, ) AC
~7
(IEPA No. 183-06-AC)
vs.
)
FRANCIS
E. MORRIS,
)
Respondent .
)
MOTION TO DISMISS
NOW COMES respondent, Francis E . Morris, also known as F
. E. Morris, by his agent,
Bertha Ann Morris, and by his counsel, Van Winkle and Van Winkle, and for his Motion to
Dismiss, represents to the Court as follows
:
1
. The allegations of facts contained in the complaint are materially incorrect
.
2 . Francis E
. Morris is an older individual, age 81, who because of his present physical
and mental condition, is incapable of conducting any business or committing the acts alleged in
the petition.
3
. Francis E
. Morris presently suffers from substantial physical disabilities
.
3
. As evident from the petition, the apparent violations were recent
.
4. Francis E
. Morris has not been engaged in business and has not in fact committed any
of the acts described in the petition
.
5 . Francis E
. Morris, although the nominal owner of the real property, is not in
possession of the real property
.
6
. A review of the public records of Gallatin County, Illinois, would indicate that
grounds for imposition of a civil penalty .
7
. The real property has in fact been leased and is in possession of a person other than
Francis E
. Morris, as reflected by the lease, a copy of which is attached as Exhibit' A"
. Prior to
filing the instant action, no effort was made to contact Francis E
. Morris to discuss the alleged
violation with Francis E
. Morris.
8. The allegations that Francis E
. Morris owned and operated the "facility" are materially
incorrect .
WHEREFORE, Francis E. Morris moves to dismiss with prejudice the administrative
citation filed.
In the alternative, Francis E . Morris moves to vacate the administrative citation
.
Francis E
. Morris further moves for recovery of his attorney's fees and costs .
00000,
!`~ .~
Ae
M
Winkle-
arnev far
Francis
Meats
nrnrrrrn A Trnwr
Under penalties of perjury as provided by law, and pursuant to Illinois Civil Code Section
1-109, the undersigned certifies that he has read the foregoing instiwvent, and knows the
allegations contained in the foregoing to be true and correct, except for the items alleged on
information and belief, the undersigned truly believes the same to be true and correct
.
2
JAMES L
. VAN WINKLE, #03124239
VAN WINKLE & VAN WINKLE
Attorneys at Law
301 S .
Jackson
Street
P. 0. Box 337
McLeansboro, IL 62859-0337
Telephone: (618) 643-4396
Telefax: (618) 643-4241
E-Mail: ripvantmidwest .net
4lpleadingsl061M064301 Motion to Dismiss revised mk.wpd
vw file: 06-430.1
3
Lease
This Lease
is between F . E . Morris as landlord and Scott
Price as tenant, as follows :
1 Landlord leases to tenant, on a year to year lease, the house
and non-tillable land in Gallatin County known as the Effie
Vineyard place, the Southeast Quarter of the Northeast Quarter,
Section 21, T7S R8E .
2
The lease is a year to year lease, starting July 1, 1996, and
automatically renews for repeating one year terms unless tenant
elects to cancel the lease . Tenant can keep the lease as long as
tenant keeps the property maintained in good condition .
3
Tenant can make improvements to the old house, remodel it,
and redecorate it, but tenant is responsible for all of the costs
to repair and maintain or improve the house . Any improvements
become landlords .
4 . Tenant will not be required to pay rent . Tenant fixing up
the old house at his expense will be the rent
.
5 . Tenant will be responsible for his insurance on the
household
casualty insurance
contents .
on
Landlord
the house
will
and
carry
farmthe
.
liability and
6 .
Landlord will keep control of the farm land and receive
all crops, and pay all the real estate taxes
.
7 .
Tenant can buy the property at landlord's death for the
appraised value, both the house and the land
. Appraised value to'
be determined by neutral appraiser
.
F . E . Morris
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
vs.
FRANCIS E. MORRIS,
ILLINOIS POLLUTION CONTROL BOARD
ADMINISTRATIVE CITATION
Complainant,
Respondent.
AFFIDAVIT
The undersigned, Bertha Ann Morris, being duly sworn upon her oath, does depose and
state as follows :
1 .
Affiant is the spouse of F . E
. Morris, respondent in the above cause, and also holds a
Power of Attorney for F. E
. Morris .
2.
Affiant knows of her own personal knowledge that the house and surrounding non-tillable
land located in Gallatin County, Illinois, which is the subject of the pending case, was
leased by F
. E
. Morris to Scott Price sometime prior to July 1996, and that for more than
ten (10) years, Scott Price has been in exclusive possession of the house and non-tillable
farmlands .
3 .
F. E
. Morris had surgery on April 27, 2006
. As a result of the surgery, F . E
. Morris was
completely disabled
. Two or three days after the surgery, F . E
. Morris suffered some type
of a medical complication, first diagnosed as a stroke
.
4 .
Since the surgery, F. E
. Morris has not been able to work
. He is eighty-one (81) years of
age
. He is unable to walk without the aid and benefit of a walker or a cane supported by
1
AC
(IEPA No. 183-06-AC)
Rle EHVED
OFFICE
e
2006
PollutionSTATE
OF
r
onbol
ILLINOISBoard
other individuals
. Since the surgery, F . E . Morris can walk at best twenty to thirty feet,
and is incapable of picking up or carrying any objects, including but not limited to
concrete blocks, tree limbs, lumber or anything that weighs more than a half pound
.
5 .
Since at least six months before the surgery, F
. E. Morris has not be physically capable of
operating any heavy equipment, including but not limited to any semi-tractor trailer,
bulldozer, trackhoe or backhoe.
6.
Since the April 27, 2006 surgery, he has been completely unable to do any physical work
and has been extremely weak
.
7.
Since before the surgery, F . E
. Morris' health was deteriorating, and for at least six (6)
months prior to the surgery, he was not actively engaged in any business or occupation,
did not operate any heavy equipment, and did not perform any physical or manual labor
.
8.
Since the surgery, F . E
. Morris has rarely been outside the house, and has not been to the
Gallatin County property at any time .
9 .
Since the surgery, F . E
. Morris has required twenty-four (24) hour care and supervision
and either affiant or other family members have been in constant care for him
.
10.
F . E
. Morris had no personal involvement with or knowledge of any of the activities
described in the Administrative Citation filed in this case .
11 . Affiant believes that F
. E
. Morris is not physically or mentally capable of dealing with or
responding to the allegations in this case, and that he would suffer irreparable injury and
harm if he is required to appear at any proceedings relating to the Citation
.
12 .
For at least six month prior to the surgery in April 2006, and strongly exacerbated since
the surgery, F . E. Morris is extremely easy to upset
. Anything out of the ordinary or
unexpected causes him to become extremely agitated and upset
.
2
13 .
F
. E
. Morris often does not sleep at night, but instead paces the floor or gets in and out of
bed, and constantly inquires about old events repeatedly, not remembering the same
questions that he has repeatedly asked that have been answered .
14.
Affiant has inspected the area claimed by the State of Illinois to be an illegal dump as
located on the property in Gallatin County, Illinois
.
15 .
Affiant knows that F . E
. Morris has not been in actual possession and control of that
property for a least ten (10) years, and had absolutely nothing to do with or any
knowledge of whatever activities that were conducted which caused or created the alleged
condition .
16.
Affiant further saith not
.
CERTIFICATION
Under penalties of perjury as provided by law, and pursuant to Illinois Civil Code Section
1-104, the undersigned certifies that he has read the foregoing instrument, and knows the
allegations contained in the foregoing to be true and correct, except for the items alleged on
information and belief, the undersigned truly believes the same to be true and correct
.
3
JAMES L. VAN WINKLE, #03124239
VAN WINKLE & VAN WINKLE
Attorneys at Law
301 S. Jackson Street
P. 0. Box 337
McLeansbom, IL 62859-0337
Telephone: (618) 643-4396
Telefax: (618) 643-4241
E-Mail: ripvan@midwest .net
mk/wp6lb/Pleadings/2006/ M064301 Affidavit .wpd
vw file: 2006-430.1
4
vs.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERI '~ OFFICE®
2006
STATE OF ILLINOIS
Pollution ContioI Board
AC
(IEPA No. 183-06-AC)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Complainant,
)
FRANCIS E
. MORRIS,
)
Respondent.
)
Michelle M . Ryan
Special Assistant Attorney
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P .O. Box 19276
Springfield, IL 62794-9276
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601
A copy of the following documents :
Motion to Dismiss
Petition for Review
Affidavit of Bertha Ann Morris
ADMINISTRATIVE CITATION
CERTIFICATE OF SERVICE
The undersigned, a member of the firm of Van Winkle and Van Winkle, certifies that a
copy of the below described instrument was served upon the attorney of record of all parties to
the above cause by enclosing the same in
an envelope to such attorneys as disclosed by the
pleadings of record herein, with postage fully prepaid, and by depositing said envelope in a U
.S.
Post Office Mail Box in McLeansboro, Illinois, on the
, 27 day
of September, 2006, at the
following addresses :
Susan E. Santarelli
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O
. Box 19276
Springfield, IL 62794-9276
JAMES L
. VAN WINKLE, #03124239
VAN WINKLE & VAN WINKLE
Attorneys at Law
301 South Jackson - P.O
. Box 337
McLeansboro, IL 62859
Telephone: (618) 643-4396
Telefax
: (618) 643-4241
4/pleadings/06/.certificate of service/gc
vw file : #
Jame4
..A
v-,49-
il~
