BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
In the Matter of:
)
CASEYVILLE SPORT CHOICE, LLC,
)
an Illinois Limited Liability Company
)
)
Complainant,
)
)
PCB 2008-030
v.
)
)
ERMA I. SEIBER, ADMINISTRATRIX OF THE
)
ESTATE OF JAMES A. SEIBER, DECEASED,
)
and ERMA I. SEIBER, IN HER INDIVIDUAL
)
CAPACITY and FAIRMOUNT PARK, INC.,
)
a DELAWARE CORPORATION,
)
)
Respondents
)
MOTION TO DISMISS COUNT II AGAINST FAIRMOUNT PARK, INC.
Now comes Fairmount Park, Inc., a Delaware corporation licensed to do business in the State
of Illinois, by its attorney, Charles E. Hamilton, and moves this Board to be dismissed from this
action and, in support thereof, states:
1.
This is an action brought by a private entity, Caseyville Sport Choice, LLC, an
Illinois limited liability company, against a private entity, Fairmount Park, Inc., a Delaware
corporation licensed to do business in the State of Illinois.
2.
The complaint, in Paragraph 5, alleges that Respondent Fairmount Park, Inc. caused
or allowed the open dumping of waste, in violation of Section 21(a) of the Illinois Environmental
Protection Act (415 ILCS 5/21(a)).
3.
The action complained of occurred, as described in Paragraph 7 of the complaint,
from approximately 1981 until 1993.
4.
The complaint fails to allege any actionable conduct by Fairmount Park, Inc. since
1993, a period of fourteen (14) or fifteen (15) years prior to the filing of this action against
Electronic Filing - Received, Clerk’s Office, September 12, 2008
Fairmount Park, Inc. on or about August 22, 2008.
5.
This action against Fairmount Park, Inc. is barred by the provisions of Section 13-205
of the Code of Civil Procedure (735 ILCS 5/12-205 (2006)) which establishes the statute of
limitations applicable to actions between private parties as five years. Union Oil Co. of Cal. d/b/a
Unocal v. Barge-Way Oil Co., Inc., et al, PCB No.98-169, 1999 Ill. ENV LEXIS 9 at**11-12, n.1
(Ill. Pol. Control Bd. Jan. 7, 1999).
WHEREFORE, for the reasons stated, this action against Respondent Fairmount Park, Inc.
is barred and should be dismissed.
Respectfully submitted this 12
th
day of September, 2008
FAIRMOUNT PARK, INC., Respondent
By: /s/ Charles E. Hamilton
Charles E. Hamilton
Attorney for Respondent
ARDC No.: 1110586
87 Oak Hill Drive
P.O. Box 24240
Belleville, IL 62223
(618) 397-2002
Electronic Filing - Received, Clerk’s Office, September 12, 2008
CERTIFICATE OF SERVICE
I, the undersigned, do hereby certify that I caused to be mailed on the 12
th
day of September,
2008, the foregoing Motion to Dismiss Count II against Fairmount Park, Inc. to the attorneys of
record by depositing the same with the Fairview Heights, Illinois branch of the United States Postal
Service with first class postage in place.
Donald Urban
Sprague and Urban
Attorneys at Law
26 E. Washington Street
Belleville, IL 62220
John P. Long
Belsheim & Bruckert, L.L.C.
1002 E. Wesley Drive, Suite 100
O’Fallon, IL 62269
/s/ Charles E. Hamilton
Charles E. Hamilton
Attorney for Respondent
ARDC No.: 1110586
87 Oak Hill Drive
P.O. Box 24240
Belleville, IL 62223
(618) 397-2002
Electronic Filing - Received, Clerk’s Office, September 12, 2008