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ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS

)

)

Complainant,

)

)

v.

)

PCB 08-17

)

FELKER PHARMACY, INC., an Illinois

)

(Enforcement-Water)

corporation, and ROD BENNETT

)

CONSTRUCTION, INC., an Illinois

)

corporation,

)

)

Respondents,

)

)

v.

)

)

MCCLELLAN BLAKEMORE

)

ARCHITECTS, INC., an Illinois

)

corporation, and WENDLER

)

ENGINEERING SERVICES,

)

INC., an Illinois corporation

)

)

Third Party Respondents.

)

THIRD PARTY COMPLAINT

Rod Bennett Construction, Inc. (Respondent), by and through its attorney, James E. Meason,

files this Third Party Complaint pursuant to the Illinois Code of Civil Procedure (Code),

specifically 735 ILCS 5/2-406(b), stating as follows:

1.

The Code permits a defendant to, through the filing of a third-party complaint, “bring in

as a defendant a person not a party to the action who is or may be liable to him or her for all or

part of the plaintiff’s claim against him or her.” 735 ILCS 5/2-406(b).

2.

The Environmental Protection Act (Act) (415 ILCS 5/1 et seq.) prohibits causing,

threatening, or allowing the discharge of any contaminant into the environment so as to cause or

tend to cause water pollution. 415 ILCS 5/12(a).

3.

The Act prohibits the deposit of any contaminant as to create a water pollution hazard.

415 ILCS 5/12(d).

4.

The Act prohibits the causing, threatening, or allowing of the discharge of any

contaminant into the waters of the State without a National Pollution Discharge Elimination

System (NPDES) permit. 415 ILCS 5/12(f).

Electronic Filing: Received, Clerk's Office, December 10, 2007

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5.

Respondent incorporates the Complaint in this case by reference and attaches a copy of

the Complaint to this Third Party Complaint. In addition to the allegations contained in the

Complaint, Respondent maintains:

6.

Respondent Felker Pharmacy, Inc. hired Respondent to build a store known as Snyder

Pharmacy Dixon in Dixon, Illinois (project).

7.

Respondent hired McClellan Blakemore Architects, Inc. (Third Party Respondent MBA)

to design the project.

8.

Respondent MBA hired Wendler Engineering Services, Inc. (Third Party Respondent

Wendler) to provide engineering services on the project. It was within Third Party Respondent

Wendler’s scope of services to submit the Notice of Intent for General Permit to Discharge

Wastewater from a Construction Site (NOI) application to the Illinois Environmental Protection

Agency (IEPA). Third Party Respondent Wendler failed to do so.

9.

Further, because Third Party Respondent failed to apply for the NOI, IEPA did not issue

a NPDES permit for the project.

10.

On or about August 26, 2005, an IEPA inspector visited the site and noted the lack of an

NOI or NPDES permit. As a result of that inspection, IEPA referred a regulatory enforcement

case for prosecution.

11.

On or about August 20, 2007, Petitioner filed this case against Respondents, alleging

violations of the Environmental Protection Act and its implementing regulations for water

pollution, creating a water pollution hazard, and failing to obtain an NPDES Permit (i.e.

, 415

ILCS 5/12(a), (d), (f) and 35 Ill. Admin. Code 309.102(a).

12.

Since Third Party Respondent Wendler did not obtain the NPDES permit, any storm

water runoff from the project also was unpermitted, constituting and causing, threatening, or

allowing water pollution and a water pollution hazard. Such a failure constitutes negligent

conduct. Third Party Respondent Wendler had a duty to perform its services in a competent

fashion, and it failed, thereby breaching its duty. Consequently, because of that breach of duty,

Respondent is a named party in the Complaint and may incur liability.

13.

Third Party Respondent MBA had a duty to properly supervise Third Party Respondent

Wendler. Third Party Respondent MBA failed to properly supervise Third Party Respondent

Wendler, and therefore breached its duty to Respondent to perform its services in a competent

fashion, thereby breaching its duty to Respondent. Consequently, because of that breach of duty,

Respondent is a named party in the Complaint and may incur liability.

14.

The Joint Tortfeasor Contribution Act (Contribution Act) (410 ILCS 100/1 et seq.)

provides “where 2 or more persons are subject to liability in tort arising out of the same injury to

person or property . . . there is a right of contribution among them, even though judgment has not

been entered against them . . .” 740 ILCS 100/2(a). Liability under the Act creates the requisite

“liability in tort” for purposes of the Contribution Act. People v. Brockman

, 143 Ill.2d 351, 373

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(1991) (recognizing third party Contribution Act claim where original defendant sued under

Act); Illinois State Toll Highway Authority v. Amoco Oil Company and Mobil Oil Corp.

, 336

Ill.App.3d 300, 313 (2 Dist. 2003) (applying Contribution Act claim to underlying liability under

Act). Illinois State Toll Highway Authority v. Amoco Oil Company and Mobil Oil Corp., 336

Ill.App.3d at 315-16 (allegation that Act’s joint liability provisions subjected parties to liability

is sufficient to maintain contribution action).

15.

Therefore, Respondent requests the Illinois Pollution Control Board (IPCB) to find Third

Party Respondent Wendler and Third Party Respondent MBA liable under the Contribution Act

or under an indemnification theory, impose an appropriate sanction against them, and impose

any other relief IPCB deems appropriate.

Respectfully submitted,

Rod Bennett Construction, Inc., Respondent

By:

James E. Meason

James E. Meason

Attorney at Law

113 W. Main Street

Rockton, IL 61072-2416

(815) 624-6517

VERIFICATION

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure,

the undersigned certifies that the statements set forth in this instrument are true and correct,

except as to matters therein stated to be on information and belief and as to such matters the

undersigned certifies as aforesaid that he verily believes the same to be true.

Rod Bennett Construction, Inc., Respondent

By:

Rod Bennett

c:\my docs\law\bennett\felker\third party complaint

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CERTIFICATE OF SERVICE

Pursuant to Supreme Court Rule 12, I certify that on December 7, 2007, I sent via regular mail

from Rockton, Illinois, at 3:00 p.m. the enclosed documents to the following persons:

Illinois Pollution Control Board

100 W. Randolph

Suite 11-500

Chicago, Illinois 60601

Stephen J. Sylvester, Esq.

Assistant Attorney General

Environmental Bureau

69 W. Washington Street, Suite 1800

Chicago, IL 60602

Eric D. Morrow, Esq.

Smith Hahn Morrow & Floski, P.C.

129 S. Fourth Street

P.O. Box 10

Oregon, IL 61061-0010

Rod Bennett Construction, Inc.

By:

James E. Meason

Respondent’s Attorney