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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

)

MOTION TO FILE THIRD PARTY COMPLAINT

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

files this Motion to File Third Party Complaint pursuant to 35 Ill. Admin. Code 103.206(d),

stating as follows:

1.

The Illinois Pollution Control Board (IPCB) regulations permit a party to file a third-

party complaint upon moving IPCB for leave to file the pleading. 35 Ill. Admin. Code

103.206(d).

2.

The basis for this Motion is that Respondent has a claim that arises out of the occurrences

that are the subject of the proceeding.

3.

In the alternative, pursuant to 35 Ill. Admin. Code 103.206(a), Respondent requests IPCB

to add McClellan Blakemore Architects, Inc. (MBA) and Wendler Engineering Services, Inc.

(Wendler) because a complete determination of the controversy cannot be had without the

presence of the entities.

4.

Moreover, the Illinois Code of Civil Procedure 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).

5.

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).

6.

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

415 ILCS 5/12(d).

7.

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

Electronic Filing - Received, Clerk's Office, December 28, 2007

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

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

8.

Respondent incorporates the Complaint in this case by reference. In addition to the

allegations contained in the Complaint, Respondent maintains:

9.

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

Pharmacy Dixon in Dixon, Illinois (project).

10.

Respondent hired McClellan Blakemore Architects, Inc. (MBA) to design the project.

11.

MBA hired Wendler Engineering Services, Inc. (Wendler) to provide engineering

services on the project. It was within 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). Wendler failed to do so.

12.

Further, because Wendler failed to apply for the NOI, IEPA did not issue a NPDES

permit for the project.

13.

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.

14.

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).

15.

Since 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. 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.

16.

MBA had a duty to properly supervise Wendler. MBA failed to properly supervise

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.

17.

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

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

Electronic Filing - Received, Clerk's Office, December 28, 2007

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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).

18.

Respondent filed electronically a Third Party Complaint with IPCB on December 7,

2007.

19.

Therefore, Respondent requests IPCB to either allow Respondent to add Wendler and

MBA as third party respondents retroactively, using the previously filed complaint, or in the

alternative, order the Petitioner to add Wendler and MBA as respondents to this case.

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\motion to add third party

Electronic Filing - Received, Clerk's Office, December 28, 2007

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CERTIFICATE OF SERVICE

Pursuant to Supreme Court Rule 12, I certify that on December 28, 2007, I sent via U.S. mail

from Rockton, Illinois, at 3:00 p.m. or via electronic filing as indicated the Motion to File Third

Party Complaint to the following persons:

Illinois Pollution Control Board (electronic filing)

100 W. Randolph

Suite 11-500

Chicago, Illinois 60601

Bradley P. Halloran, Esq.

Hearing Officer, 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

Electronic Filing - Received, Clerk's Office, December 28, 2007