BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Complainant,

)

vs.

)

FRANK WILHELM,

)

Respondent.

)

A C 07-0004

(IEPA No. 139-06-AC)

(Administrative Citation)

N OTICE OF

FILING

TO: Ms. Dorothy M. Gunn

Clerk of the Board

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

C hicago,

Illinois 60601

(VIA ELECTRONIC MAIL)

Carol Webb,

Esq.

Hearing Officer

Illinois

Pollution Control Board

1021 North

Grand Avenue East

Post Office Box 19274

Springfield, Illinois 62794-9274

(VIA FIRST CLASS

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 a MOTION TO DISMISS, OR IN THE

ALTERNATIVE,

MOTION FOR SUMMARY JUDGMENT, directed to the

Illinois

Pollution Control

Board, a copy of which is herewith served upon you.

Respectfully submitted,

FRANK WILHELM,

Respondent,

Dated: January

19, 2007

By: /s/ Christine G. Zeman

Christine G. Zeman

Christine

G. Zeman

Monica T. Rios

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

W ILH:001/Fil/NOF - Motion to

Dismiss

or

in the Alternative Motion for Summary Judgment

THIS FILING IS SUBMITTED ON RECYCLED PAPER

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

---

CERTIFICATE OF SERVICE

I, Christine G. Zeman, the undersigned, hereby certify that I have served the

attached MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR

SUMMARY JUDGMENT upon:

M s.

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 January 19, 2007; and upon:

Michelle M. Ryan, Esq.

Illinois Environmental Protection

Agency

1021 North Grand

Avenue East

Post Office Box

19276

Springfield, Illinois 62794-9276

C arol Webb, Esq.

Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue East

Post Office Box 19274

Springfield, Illinois 62794-9274

by depositing said documents

in the United States Mail, postage prepaid, in Springfield,

Illinois on January 19, 2007.

/s/ Christine G. Zeman

Christine G. Zeman

WILH:001/Fil/COS - Motion to Dismiss or in the Alternative Motion for Summary Judgment

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

Complainant,

)

AC 07-0004

(IEPA No. 139-06-AC)

vs.

)

(Administrative Citation)

FRANK WILHELM,

)

Respondent.

)

M

OTION

TO DISMISS,

OR

IN THE

ALTERNATIVE,

MOTION FOR SUMMARY JUDGMENT

N OW COMES Respondent, FRANK

WILHELM, by and through HODGE

DWYER ZEMAN, and pursuant

to

35

Ill. Admin. Code §§ 101.500, 101.5 06, and

101.516 for its Motion to Dismiss, or in the alternative,

Motion for Summary Judgment

states as follows:

I. BACKGROUND

On July 28, 2006, Complainant filed an Administrative

Citation ("AC") with the

Illinois Pollution Control Board ("Board") alleging,

inter alia, that Respondent, 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 ýT1-2

(I11.Pol.Control.Bd.

July 28, 2006). In addition, Complainant alleges that "Respondent

has owned and operated said facility at all times pertinent hereto." Id. at T3. According

to the AC,

the facility that is the subject of the AC is commonly known as

Decatur/Wilhelm (hereinafter "subject property") and is located at:

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

---

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 11.

Respondent has previously

provided the Illinois Environmental Protection

Agency ("Illinois

EPA") and the Board with documentation, which was attached to

his

Petition to Contest, that shows that Respondent

is not the owner of the subject property.

See, generally, Chicago Title Insurance Policy, dated

December 8, 1986, attached to the

Petition to Contest as Exhibit

A, filed with the Board on September 1, 2006, and served

upon the

Illinois EPA. In addition, in correspondence dated September

27, 2006, counsel

for Respondent provided the

Illinois EPA with a copy of a December 8, 1986, deed

showing that the current owner

of the property is Mr. Ferdinand Wilhelm, which is also

attached hereto, as referenced

below, in certified form, in support of this Motion.

As the

Orders of

the Board's hearing officer state, the Illinois EPA acknowledged that it may yet

be considering the documentation regarding ownership

that it was previously provided;

accordingly, Respondent

is compelled to bring this issue to the Board for resolution.

In furtherance of this

Motion, Respondent has attached hereto as Exhibits A, B

and C,

respectively, documentation demonstrating conclusively

that Respondent is not

the owner of

the subject property. See Chicago Title Insurance Policy, dated

December 8, 1986, attached hereto as Exhibit A (issued

December 8, 1986 for the subject

property described in the AC, but

not issued to or naming Respondent as owner); copy of

a certified deed, dated November 14, 1986, for subject

property, attached hereto as

Exhibit B (showing Respondent, Frank E. Wilhelm, and his wife, Verina Wilhelm, as

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

---

Joint

Tenants of the subject property as of November

14, 1986); and copy of a certified

deed dated

December 8, 1986, for the subject property, attached hereto as Exhibit C

(transferring ownership

of the subject property on December 8, 1986 from

Respondent,

Frank E. Wilhelm,

and Respondent's wife, Verina Wilhelm to Ferdinand W.

Wilhelm,

the current owner of the property).

Respondent, therefore, has not owned the subject

property since December 8, 1986, and cannot be

held liable as owner, as he is charged,

for the alleged violations

of the Illinois Environmental Protection Act

that may or may

not

have occurred on the subject property, because

the AC was improperly issued

pursuant to 35 Ill. Admin. Code §

108.206. See also explanation and citations

as set out

more fully below.

II. RESPONDENT IS NOT THE OWNER

OF THE SUBJECT PROPERTY

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 ......

3 5 111. Admin. Code § 108.206. In addition, the

Board has dismissed parties to an AC

from an action based

on the parties' non-ownership status

regarding the subject property

of the AC.

For example, in Illinois EPA v. Ray Logsdon Estate, Logsdon Sand

and Gravel,

and MK O'Hara Construction,

Inc., AC No. 05-54 (I11.Pol.Control.Bd. April 21, 2005)

the Illinois

EPA, when it issued the AC, contended that the Ray Logsdon

Estate

("Estate") "was `involved

in the ownership of the site."' Id. at 2 (citations omitted).

The

Illinois EPA, upon "learning that the

Estate was closed in 1978," filed a motion to

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

---

dismiss the Estate, which was granted by the Board. Id. at 2-3. In County of Jackson

v.

Glasper, (hereinafter

"Glasper"), the Complainant issued an AC to Elwood Glasper and

Tony Glasper, but filed a motion to voluntarily dismiss the AC "[d]ue to recent

developments

involving ownership and control of the site ...... Glasper,

AC 05-068 at 1

(I11.Pol.Control.Bd.

May 9, 2005). The Board granted the Complainant's Motion.

Glasper,

AC 05-068 (I11.Pol.Control.Bd. May 19, 2005).

The certified deeds from the Macon County Recorder's Office

show that although

Respondent and his wife were previous owners of

the subject property as joint tenants,

Respondent is not the current owner and was not the owner

at the time of any of the

allegations in the AC. Respondent

is not the owner of the property, which according to

the Board's rules demonstrates

that the "AC was improperly issued." 35

Ill. Admin.

Code § 108.206.

Although

Section 101.506 of the Board's rules provides that motions to dismiss

must be filed within 30

days after service of the challenged document, none of the parties

in this matter will be prejudiced by the Board's consideration

of this Motion because the

Respondent has

raised ownership and other issues in its Petition, and the Petition

included documentation

identifying the true owner of the subject property. In addition,

as noted above, the Board's October 5, 2006, Order

provides that the Complainant is

looking into the ownership

issue, and no hearing has yet been set. Indeed, the

undersigned notified the Illinois EPA prior

to the filing of Respondent's Petition that

Respondent is not the owner

of the subject property. While the Illinois EPA previously

has been provided with documentation showing that Respondent is not the owner of the

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

---

site, and acknowledged

to the Board's hearing officer that it is looking into the

issue,

nevertheless,

prolonging this matter any longer is burdensome to Respondent.

See

Exhibits A,

B, and C, respectively (showing conclusively that Respondent is not

the

owner of the property,

including copies of certified deeds transferring ownership

of the

property from Respondent and his wife, as joint tenants,

to Ferdinand Wilhelm).

Because the

AC was improperly issued to Respondent, who does not own

the subject property,

Respondent's Motion to Dismiss must be granted.

III. STANDARD

FOR MOTION FOR SUMMARY JUDGMENT

The Board rules also provide

for the filing of motions for summary judgment.

See 35

Ill. Admin. Code § 101.516(a). In cases before

the Board, as in cases before a

Court, "[s]ummary

judgment is appropriate when the pleadings,

depositions, admissions

on file, and affidavits

disclose that there is no genuine issue as to any

material fact and

the moving party is entitled to judgment as a matter of

law." IEPA v. Ted Harrison and

Gerald Gill, PCB

No. 05-08, 2006 Ill. ENV LEXIS 208, at *3 (I11.Pol.Control.Bd.

Apr. 6,

2006) (citing Dowd &

Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483, 693 N.E.2d 358, 370

(1998)) (hereinafter "Dowd');

accord, 35 Ill. Admin. Code § 101.516(b).

While

the Board has stated that "summary judgment `is a drastic means

of

disposing

of litigation,' and therefore should be granted only when the

movant's right to

the relief `is clear and free

from doubt,"' nevertheless, the Board citing to the Illinois

Supreme Court has also stated: "use of the summary judgment procedure is to be

encouraged as an aid in the expeditious

disposition of a lawsuit." Harrison at 3 (citing

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

---

Purtill

v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986)). The Illinois Supreme

Court also explained:

If a party moving for summary judgment supplies facts which,

if not

contradicted, would entitle such party

to a judgment as a matter of law, the

opposing party cannot

rely on his pleadings alone to raise issues of

material fact. Thus, facts contained in an affidavit in support of a motion

for summary judgment which are not contradicted by counteraffidavit

are

admitted and must be taken as true for purposes of the motion.

Purtill, at 111 I11.2d at 240-41, 489 N.E.2d at 871-72.

For purposes of

a motion for summary judgment, a fact is "material" if it is

"[]related to the essential elements of the cause of action." Smith v. Neumann, 289 Ill.

App. 3d 1056, 1069, 682 N.E.2d 1245, 1254 (2d Dist. 1997) (citations

omitted). That is,

if it will "affect the outcome of a party's case." Westbank v. Maurer, et al., 276 Ill. App.

3d 553, 562, 658 N.E.2d 1381, 1389 (2d Dist. 1995). Thus, "[f]actual issues

which are

not material to the essential elements of the cause of

action or defense, regardless of how

sharply controverted, do

not warrant the denial of summary judgment." Swope v.

Northern Illinois Gas Co.,

251111. App. 3d 850, 858, 623 N.E.2d 841, 846 (3d Dist.

1993) (citation omitted) (cited by the Board in Environmental Site Developers, Inc. v.

White & Brewer Trucking, Inc., PCB No. 96-180, 1997 Ill. ENV LEXIS 649, at **27-28

(I11.Pol.Control.Bd.

Nov. 20, 1997), where the Board stated that "raising an issue with

respect to one of the factors listed in section 33(c) will

not ... necessarily preclude entry

of partial summary

judgment solely on the issue of whether a violation occurred'').

Finally, also note that "a party opposing a motion for summary judgment may not

rest on its pleadings, but must `present a factual basis which would arguably entitle [it] to

a judgment."' Cassens and Sons, Inc. v. IEPA, PCB No. 01-102, 2004 Ill. ENV

LEXIS

6

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

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635 at**

11-12 (I11.Pol.Control.Bd. Nov. 18, 2004) (quoting Gauthier

v. Westfall, 266111.

App. 3d

213, 220, 639 N.E.2d 994, 999 (2d Dist. 1994)). The Gauthier decision

cited by

the Board in Cassens makes clear that "[i]f from the papers on

file, a plaintiff fails to

establish an element of his cause of

action, summary judgment for the defendant is

p roper." Gauthier, 266111. App. 3d at 220, 693

N.E.2d at 999 (citations omitted).

S ection 101.504 of

the Board's procedural rules also provides that "[f]acts

asserted that

are not of record in the proceeding must be supported by oath,

affidavit, or

certification in accordance

with Section 1-109 of the Code of Civil Procedure [735 ILCS

5/1-109]."

35111. Admin. Code § 101.504. Respondent has attached

as Exhibit D the

affidavit of Ferdinand Wilhelm attesting to the

fact that he is and has been the owner of

the subject property

at all times relevant to the claims alleged in the AC, as well as

attesting

that, Frank Wilhelm has neither been the owner of the property since

D ecember 8, 1986, nor associated

with the subject property since that time.

IV.

RESPONDENT DOES NOT HAVE CONTROL OVER THE SUBJECT

PROPERTY

As stated, summary judgment is proper when

"the pleadings, depositions,

admissions on

file, and affidavits disclose that there is no genuine issue as to any material

fact and the

moving party is entitled to judgment as a matter of law." Harrison at 3. It is

clear from the pleadings

and Ferdinand Wilhelm's Affidavit, attached hereto as Exhibit

D, as

well as the discussion above that Respondent is not the owner of the subject

property, because therefore, the Illinois EPA cannot establish an element of its cause of

action, that the "AC was improperly issued." 35 Ill. Admin. Code § 108.206.

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

---

Further, the Board has stated that "the Agency `must show that the alleged

polluter has the capability

of control over the pollution or that the alleged polluter was in

control of the premises

where the pollution occurred."' Harrison at 9-10 (quoting

Vermilion

v. Village of Tilton, PCB No. 04-22 at 11 (I11.Pol.Control.Bd. Dec. 16, 2004)

(citing People v. A.J. Davinroy, 249111. App. 3d 788,

793, 618 N.E.2d 620 (5th Dist.

1993)). Because Respondent

is not the owner of the subject property, nor has been

associated

with the subject property since its transfer in 1986 to his brother,

Ferdinand

"Bill" Wilhelm, the Illinois EPA will be unable to establish

an element of its cause of

action, namely that Respondent had control over the alleged pollution or control

over the

subject

property. Further, as attested to in the attached affidavit, 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 35 111. Admin. Code

§ 108.206(b) and

(d).

E ven when considering

the pleadings and the Affidavit of Mr. Ferdinand Wilhelm

strictly against the movant in favor of the opposing

party, see Harris at 3 (citing Dowd),

Respondent's right to

relief is clear and free from doubt. For the foregoing reasons,

summary judgment in favor of the Respondent is proper.

V. CONCLUSION

WHEREFORE,

for the reasons stated above, Respondent, FRANK WILHELM,,

respectfully moves the Illinois Pollution Control Board to grant Respondent's

Motion to

Dismiss with prejudice pursuant

to Section 108.206 because the AC was improperly

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

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issued, or in the

alternative pursuant to the same section, grant Respondent's Motion

for

S ummary Judgment as to

all counts of the Administrative Citation, to enter judgment in

favor of Respondent

and against Complainant, and to award Respondent such other

relief

as the

Illinois Pollution Control Board deems just.

Respectfully submitted,

FRANK WILHELM,

Respondent,

By:

/s/ Christine G. Zeman

Christine G. Zeman

Dated: January 19, 2007

Christine G. Zeman

Monica T. Rios

HODGE DWYER ZEMAN

3150

Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

W ILH:001/Fil/Revised

Motion for Summary Judgment

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

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3-

Wý'3ý..'

?'-feý'

},Sr

-

:

c &.

.

C HICAGO

TITLE

1 . Title to the estate or interest described in Schedule

.A

being vested otherwise

therein;

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.

N SURANCE C OMPANY

.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.

(Amended 10-17-70)

AMERICAN LAND

TITLE ASSOCIATION

OWNER'S

POLICY FORM B-1970

I

Issued by:

GARY K. ANDERSON

145 S. Water St.

Decatur, Illinois 62523

.

(217) 428-6675

EXHIBIT

A

C HICAGO TITLE

INSURANCE COMPANY

By:

ý .. Jf

Presidlýtt.

IMPORTANT

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

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:

should be reissued in the name of such purchaser.

Secretary.

than as stated

C opyright 1969 American Land Title Association

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

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OFFICE

FILE

NUMBER

.

P OLICY NUMBER

-

DATE OF POLICY

MOUNT

OP INSURANCE

M acon

# 4

5794

1 4-0122-04-023670 Decembe = 8

. $70,000.00.

1 Name

of Insured:

FERDINAND W. WILHELM .

2 . The estate or interest in the land described herein and which is covered by this policy is:

Fee simple

3. The estate or interest referred to herein is at Date of Policy vested in the insured.

4.

The

land

herein described is encumbered by the following mortgage or

trust deed, and assignments:

N ONE

a nd the mortgages or trust deeds. if any. shown in Schedule 13 hereof.

5. The land referred to in this policy is described as follows:

Part

of

.the

West

2

of the Northeast 'l and the East I

of the East I

of the

Northwest

.1

of Section Thirty-two

(32), Township. Seventeen

(17) North,.

Range.

Two. (2) East of the 3rd P.M.,

Macon County, Illinois, said

tract being.more.

particularly described as follows: Beginning

at the Northwest

corner of- the

Northeast

I

of said Section 32,

running thence

.S

88°41'54"

West for 653.60.

feet; thence S 0°16'40"

West for 2643.05 feet; thence

North 89'2010011. East

for 235.50 feet; thence North 0°08'49"

East.for 670.00 feet;

thence North 89°

20!00" East for. 424.00 feet; Ahence S.0°08'49"

West for 290.00. feet;

thence.

:North. 88"2813011

East for 189.40 feet; thence

S 0°08'49" West for

150.00 feet;

thence N 88°28'30" East for 284.10 feet;.thence

S 0°08'49" West for 230.00

fee

thence

N 88°28'30" East for 444.84 feet;

thence North 0003100". East.

for 638.2(

feet; thence

North 88°28'30" East for 145.50

feet; thence North 0°03'00"

West

for

438.0g.feet;

thence North 89°59'23" East

for 250.42 feet; thence..Notth

0`-.

03'00"

West:

for 30.00

.feet;

thence

South 89°58!51!'.

West for 396.00

feet; then(

North

0°03'00"

West for 275.00

feet;- thence North

89°58'51" East for 12.00 fee:

thence

North

7°51'02"

East for 546.40

feet; thence

North .25°52.'54" East for

62..44

feet;

thence

N 50°09'36"

West,. for 291.00

'feet; thence -S.25°20'24".West

for

343.55

feet.;

thence

North

8905513711 West

for 445.43

feet;. thence North 1'.

27'59!'

East

for 235.00

feet;

thence

North 89-°39'47"

West for 215.15 feet;.thei

North

0008'49" East

for

530.25 feet

to the point

of beginning,.except the Sou-.

1099..95

feet

thereof.

Situated

in Macon County,

Illinois.

This policy valid only

if Schedule B is attached.

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

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This

policy

does

not insure against

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 furnished,. imposed

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)` Taxes for 1986,. which.

as

of the date

of

this

policy are not yet

due

,or

payable.

(2) Rights-'of

the Public, the State of Illinois, the County, the:.Township

and the. municipality in.and:-to,that part of the premises- in question

taken.,..,

.used,

or

dedicated for roads or highways.

( 3) Rights of way for drainage ditches, drain tiles, feeders., laterals,

and

,underground

pipes, if ' any.,

(4) Rights

of.. Illinois Iowa

Power

Company,

an

Illinois.

Corporation, its.

successors .and assigns; under and by virtue of Easement dated March 9,

1940 and recorded July 26, 1940 in Book 797, Page 188 as Document. No.

326723. (Affects "Generally adjacent to and parallel

with-the

Southwester.1,

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 of1Easement dated December 12, 1974 and recorded January

24, 1975

in Book

1823, Page 118..as Document

No.

968309. (Affects

the West 10 feet

& the North 10 feet. of that part of the West 377.95 feet of the West

Northeast I of. Section 32-17-2 E. of the: 3rd P.M., lying South and.

West

o f the

Illinois Central.

Railroad

right

of way, except the. South 230 feet.

thereof

and except the North 530.25. feet thereof)

(6), Rights

of. Illana Company, under. and by .virtue

of Right of Way Contract..

dated March

,4,-1939

and recorded May 9,. 1939. in Book 779,-

Page 521 as.

.

Document No. 309930, to lay, maintain, inspect, alter,' repair,- operate,

replace,

:remove-.and

re-lay

a pipeline for-the.transportation of ci1, gas,

etc. (Affects

East Z Eastz

Northwest I 'of Section 32-17-2E; NOTE:. Amended

by instrument recorded

October

.21, 1981 in'Book 2080, Page 825 as

Document

No.. 1125

NOTE:

C ounter

ý

d

to Phillips

Petroleum Company.

loss or damage by reason of the following exceptions:

FORM 1377.8.11/79.

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

---

11cy

N

UMDGr

. Own

N one

".

Poltcýr.

Nuinber"

.

. .

Ilk

R ights" .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." "". .

"

.

.

(8) :

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 ,. "" 19

74 and recorded December... 18 ,

".19

74.: in took. 18 20 ,

.Page , .

" ".

.671'

as. Document

No. 966937.

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- 0122-04-023670 . .: '" ".

(9)

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NOTE:" Access. over the. Illinois. Central .Gulf right-of-way

is. by"

license."

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

---

1.

Definition

of Terms

The

following

terms

when used

in this

policy

mean:

(a) "insured":

the insured named

in

Schedule

A, and, subject to

any rights

or defenses the Company

may

have had

against the named

insured,

those who succeed to the interest of

such insured by

operation

of law as distinguished from purchase

including, but not limited

to,

heirs, distributees, devisees, survivors, personal representatives,

next

of

kin, or

corporate

or fiduciary

successors.

(b) "insured claimant": an insured claiming loss

or damage here-

under.

(c) "knowledge":

actual

knowledge, not

constructive knowledge

or

notice which may 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.

(e) "mortgage": mortgage, deed of trust, trust deed, or other security

instrument.

(f) "public records":

those

records

which by law impart constructive

notice of matters relating to said land.

4 . 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

or interest 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

interest or the indebtedness secured by a purchase money mortgage

given to such insured.

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, shall

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 is required; provided, however, that failure to notify

shall in no

case

prejudice the rights of any such insured under this

policy unless the Company shall be prejudiced by such failure and

then only to the extent of such

prejudice.

(c)

The Company shall have the right at its own cost to institute

and without undue delay prosecute

any action or proceeding or to do

any

other act which in its opinion may

be necessary

or desirable

to

establish the title to the estate

or interest as insured, and the Company

may take any

appropriate action under the terms of this policy, whether

or not

it shall be liable thereunder, and shall not thereby concede

liability or waive any provision

of this policy.

(d) Whenever the

Company shall 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

d

,

eternu-

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 Company to use, at its option,

the name

of 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

In 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.

5 . Options

to Pay or Otherwise Settle Claims

The Company shall have

the option to pay or otherwise

settle for

or in

the name 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 this policy

shall in no case

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 against

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

expenses

in litigation carried on by such

insured with the written

authorization

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.

8 . Reduction

of Liability

All payments under this policy, except

payments made for costs,

attorneys' fees

and expenses, shall reduce the amount of

the insurance

pro tanto. No payment shall be made without

producing this policy

for endorsement of such payment

unless the policy be lost or destroyed,

in which

case proof of such loss or destruction

shall be furnished to

the satisfaction of the Company.

9 . Liability Noncumulativo

I t is expressly understood that the amount of

insurance under

this

policy shall be reduced by any amount the Company

may pay under

C

ONDITIONS AND STIPULATIONS (Continued on

Reverse Side)

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

---

any policy insuring either (a) a mortgage shown or referred to in

Schedule B hereof which is

a lien on the estate

or

interest covered by

this policy, or (b) a mortgage

hereafter executed by an insuied which.

is 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 the insuied 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

If 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. Subiogation

Upon Payment or Settlement

W henever 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

.

would have had against any person or property in respect to such

claim had this policy not been issued, and if requested by the Com-

pany, such 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 heieunder which

-shall 'exceed the amount,

if any,

lost

to the Company by reason, of the impairment of

the right. of subrogation.

12. Liability Limited to this Polity

This instrument

together' with all endorsements

and other instiu-

.

ments, if any, attached hereto

by the Company is.the entire

policy and

contract between the insured and the

Company. .

Any claim of loss

or damage, whether or not based on

negligence, -

and which arises out of the

status of the title to the

estate or interest

covered

hereby or any action asserting such

claim, shall be restricted

to the provisions and conditions

and stipulations of this policy.

N o amendment'of or endorsement

to this policy can

be made except

by

writing endorsed hereon or attached hereto

signed by either the

President, 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,

UL AL nuy on

.CONDITIONS

AND STIPULATIONS

(Continued)

r

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

---

``t.

ORE

MA

man man

C ERTIFICATION

OF DOCUMENT

ANY ALTERATION

OR ERASURE VOIDS THIS

CERTIFICATE -

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EXHIBIT

This deed prepared by:

MACON

COUNTY,

ILLINOIS

.

S TATE OF ILLINOIS

38 .

COUNTY OF MACON

THIS INDENTURE,

Made this

14th

day of November

19

86

between

the ' NORTHTOWN

BANK and TRUST,

,.a

,

.porporaSlon,

'duly

o rganized and

.

j

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.

..

OF

party of the second part.

W ITNESSETH,

That said party of the first part, In consideration of the

sum of

Ten ($10,00)

Dollars, and other good and

valuable considerations In

hand

paid,

does hereby

grant,

sell and convey unto

said party of the second part. the foIlowing-described

real estate, situated in

M acon

County, Illinois, to-wit-

See reverse side for legal description

together with the tenements

and appurtenances thereunto belonging.

N ORTHTOWN BANK and TRUST

A sh Tr?1lste

s fOr aid.

by . 1

ti--

E xec " Vice 'Resident'

CERTIFIED

COPY OF DOCUMENT

Jý

seal to be hereto affixed,

and has

caused its

name to be signed by these presents

It

by

its

Exec.

Vice President and attested by its Asst. Cashier,

' the day and year

first

above written.

Id.

T. Downing,

P.O. Box 149,

Decatur, IL 62525

n

TO

HAVE AND TO HOLD the same unto said party of the second part, and

to the proper use,

benefit and behoof forevar

of said party

of the second part.

Subject to the 1986 general taxes payable in 1987 and all general

t axes payable thereafter.

Subject

to

and conveying

the benefit of easements, restrictions

r se

ations o record , if

a`1'h` s ýoedTýs

executedfpursuant to angIN

the exercise of the power and authority

granted to and

vested in said trustee by the terms

of said

deed

or

deeds

in trust

d,sliVered to said trustee in pursuance of the trust agreement above mentioned.

This deed

is

made subject to the lion of every trust di.ed or mortgage (if any there be)

of record in said county given

to secure the payment of money, and

remaining

unreleased

at

the date

of the delivery hereof.

I N WITNESS

WHEREOF,

said party of the first.part has caused its corporate

1 Mary A. Eaton, Mason County

Recorder, do hereby certify

that this

document

Is a true and correct copy

of the original record

which Is on Ill

in the off1ce of the County

Recorder, Mason county,

DecatuAIllinoiý,

-

. .

1225432

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'-S '

4h ýS

e xisting as

a State Banking Association under bJio%4wo1of,.

the,State of Illinois, and '

vti. .

duly authorized to

accept and execute trusts within the State of Illinois, not

personally,

but as trustee, under the provisions of a deed or deeds In trust

duly recorded and

delivered to said NORTHTOWN BANK

and TRUST

In pursuance of a

trust agreement.

dated the

1 title

day of

January

, 19 78 ,

and known

as

Trust Number

158

Party

of the first part and

Prank E. Wilhelln & Verlna

Wilhelm, Hual2and

r wifor

DATE

ISSUED ` l ýý

F

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ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

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ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

---

I,

Mary A. Eaton,

Macon County Recorder, do

hereby certify that this

in

document

the office

is

of

a

true

the County

and correct

Recorder,

copy

Macon

of the original

County,

record

Decatur,

which

Illinois.is

on file

0

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ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

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ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

---

BEFORE

THE

ILLINOIS POLLUTION

CONTROL

BOARD

ILLINOIS ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

Complainant,

)

AC 07-0004

IEPA

No.

139-06-AC

vs.

)

(Administrative Citation)

FRANK W

1 LHELM,

)

Respondent.

)

AFFIDAVIT

The

undersigned, Ferdinand

Wilhelm,,being duly sworn upon his oath, states as

follows:

1.

Affiant

is

the owner of the property ("subject

property") described in the

Administrative Citation ("AC")

issued in the above-captioned

matter.

2.

Affiant has been the owner

of the subject property since December

8,

1986,

when I acquired the subject property from my

brother, Frank Wilhelm, and his

wife, Venna Wilhelm.

3.

Frank

Wilhelm, the Respondent,

is my brother,

who

neither owns

the

subject property nor has custody, possession,

or control of

the

subject

property, nor has

had custody, possession,

control or any other

interest in the subject property since

Frank

and Verina

transferred the

subject property to me in 1986.

4.

To

the best of my knowledge,

Frank Wilhelm has not participated in

and

has no knowledge

of the alleged open

dumping, if any,

that

occurred

on

the subject

property as alleged

in the AC.

5.

Further, I normally use the

name

"Bill" rather

than my given

name,

Ferdinand.

EXHIBIT

D

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007

---

.

Furthgr

affiant sayeth not.

WILH:00.1/Fil/Affidavit

& Certificidion -

Fcrdinand Wilhelm

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OFFICIAL

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Ac

S.UfrOIS

ELECTRONIC FILING, RECEIVED, JANUARY 19, 2007