State of Illinois
    Pollution Control Board
    James R. Thompson Center
    100 W. Randolph Street, Suite 11-500
    Chicago, Illinois 60601
    In the Matter of:
    )
    CASEYVILLE SPORT CHOICE, LLC,
    )
    An Illinois Limited Liability Company,
    )
    )
    Complainant,
    )
    )
    vs.
    )
    PCB 2008-030
    )
    ERMA I. SEIBER, ADMINISTRATRIX
    )
    OF THE ESTATE OF JAMES A. SEIBER, )
    DECEASED, AND ERMA I. SEIBER,
    )
    IN HER INDIVIDUAL CAPACITY,
    )
    )
    Respondent.
    )
    RESPONSE TO MOTION TO DISMISS
    Comes now the complainant, Caseyville Sport Choice, LLC, by its attorneys, Belsheim &
    Bruckert, L.L.C., and – for its response to the
    Motion to Dismiss
    filed by the respondents, Erma
    I. Seiber, Individually, and Erma I. Seiber, in her capacity as Administratrix of the Estate of
    James A. Seiber, Deceased – states the following:
    1.
    The respondents assert that – in view of the complainant’s filing (on the same day
    on which the complainant filed its Formal Complaint before the Board) a complaint in the United
    States District Court for the Southern District of Illinois alleging the common law theories of
    breach of contract and fraud against the respondents – the complainant’s Formal Complaint
    before the Board is either “duplicative” or “frivolous” within the meaning of Section 31(d) of the
    Environmental Protection Act (415 ILCS 5/31(d)) and Section 101.202 of the Board’s
    Procedural Rules (35 Ill. Adm. Code 101.202).
    - 1 -
    Electronic Filing, Received, Clerk's Office, October 22, 2007
    2.
    The complainant’s Formal Complaint before the Board is based strictly upon the
    provisions of the Illinois Environmental Protection Act (415 ILCS 5/1
    et seq
    .).
    3.
    The complainant’s complaint in the United States District Court for the Southern
    District of Illinois is not based upon, and does not mention, the Illinois Environmental Protection
    Act (415 ILCS 5/1
    et seq
    .). Rather, the complainant’s complaint in the United States District
    Court is based entirely upon common law theories of breach of contract and fraud.
    See
    a copy of
    the complainant’s
    Complaint and Demand for Jury Trial
    in the United States District Court,
    attached to the respondents’
    Motion to Dismiss
    .
    4.
    The Board has twice held that a complainant’s Formal Complaint before the
    Board under the Illinois Environmental Protection Act, seeking a recovery of cleanup costs, is
    not rendered “duplicative or frivolous” by the complainant’s filing a complaint in a United States
    District Court against the same respondent, based upon common law theories rather than the
    Illinois Environmental Protection Act.
    See Dayton Hudson Corporation vs. Cardinal Industries,
    Inc.
    , 1997 WL 530523 (PCB 97-134, Aug. 21, 1997);
    Lake County Forest Preserve District vs.
    Ostro
    , 1992 WL 196684 (PCB 92-80, July 30, 1992);
    see also Scott and Shelly Behrmann vs.
    Okawville Farmers Elevator – St. Libory
    , 1998 WL 820943 (PCB 98-84, Nov. 19, 1998)(similar
    holding involving the complainants’ complaint, based upon common law theories of trespass and
    nuisance, and upon the St. Libory zoning code, filed in an Illinois circuit court rather than a
    United States District Court).
    5.
    Consequently, the complainant’s filing its
    Complaint and Demand for Jury Trial
    in the United States District Court for the Southern District of Illinois, based upon the common
    law theories of breach of contract and fraud, against the respondents, does not render its Formal
    Complaint before the Board, based strictly upon the Illinois Environmental Protection Act, either
    - 2 -
    Electronic Filing, Received, Clerk's Office, October 22, 2007
    “duplicative or frivolous.”
    See Dayton Hudson Corporation vs. Cardinal Industries, Inc.
    , 1997
    WL 530523 (PCB 97-134, Aug. 21, 1997);
    Lake County Forest Preserve District vs. Ostro
    , 1992
    WL 196684 (PCB 92-80, July 30, 1992);
    see also Scott and Shelly Behrmann vs. Okawville
    Farmers Elevator – St. Libory
    , 1998 WL 820943 (PCB 98-84, Nov. 19, 1998).
    WHEREFORE, the complainant, Caseyville Sport Choice, LLC, prays that the Board
    will deny the
    Motion to Dismiss
    filed by the respondents, Erma I. Seiber, Individually, and Erma
    I. Seiber, in her capacity as Administratrix of the Estate of James A. Seiber, Deceased.
    CASEYVILLE SPORT CHOICE, LLC,
    An Illinois Limited Liability Company,
    By /s/ John P. Long
    John P. Long #1687832
    Belsheim & Bruckert, L.L.C.
    1002 E. Wesley Drive, Suite 100
    O’Fallon, Illinois 62269
    618-624-4221/618-624-1812 Fax
    Attorney for Complainant
    - 3 -
    Electronic Filing, Received, Clerk's Office, October 22, 2007
    CERTIFICATE OF SERVICE
    I, the undersigned, certify that I have served a copy of the foregoing document by
    depositing the copy of the document in the United States mail at the post office in O’Fallon,
    Illinois, on October 22, 2007, enclosed in an envelope, with first-class postage thereon fully
    prepaid, plainly addressed to:
    Donald Urban
    Sprague and Urban
    Attorneys at Law
    26 E. Washington Street
    Belleville, IL 62220
    /s/ John P. Long_
    John P. Long #1687832
    Belsheim & Bruckert, L.L.C.
    1002 E. Wesley Drive, Suite 100
    O’Fallon, Illinois 62269
    618-624-4221/618-624-1812 Fax
    Attorney for Complainant
    - 4 -
    Electronic Filing, Received, Clerk's Office, October 22, 2007

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