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, and
)
FAIRMOUNT PARK, INC., (formerly
)
known as OGDEN FAIRMOUNT, INC.)
)
A Delaware Corporation.
)
)
Respondent.
)
RESPONSE TO FAIRMOUNT PARK, INC.’S MOTION TO DISMISS COUNT II
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 Count II Against Fairmount
Park, Inc.,
filed by the respondent, Fairmount Park, Inc. – states the following:
1.
The respondent Fairmount Park, Inc., asserts
(a)
that paragraph 7 of Count II of
the complaint alleges that its manure and intermixed “municipal trash” was dumped on the
Seibers’ parcels of land from approximately 1981 to 1993;
(b)
that the five-year statute of
limitation set forth in §13-205 of the Code of Civil Procedure (735 ILCS 5/13-205) applies to
citizens’ clean up cost recovery actions brought before the Board;
(c)
that the complainant filed
its complaint in this case against the respondent more than 14 or 15 years after the last allegedly
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“actionable conduct” by the respondent;
(d)
that the five-year period of limitation applicable to
the complainant’s clean up cost recovery action against the respondent expired before the
complainant filed Count II of the complaint against the respondent; and
(e)
that, in consequence,
Count II of the complaint against the respondent should be dismissed.
See
respondent’s
Motion
to Dismiss Count II Against Fairmount Park, Inc.,
paragraphs 1 – 5.
2.
The respondent Fairmount Park, Inc., cites the Board’s decision in
Unocal vs.
Barge-Way Oil Co., Inc.
, PCB No. 98-169 (IPCB Jan. 7, 1999), as authority for the proposition
that the five-year statute of limitation set forth in §13-205 of the Code of Civil Procedure (735
ILCS 5/13-205) applies to citizens’ clean up cost recovery actions brought before the Board.
3.
The respondent ignores the fact that the Board, in its decision in
Unocal vs.
Barge-Way Oil Co., Inc.
, PCB No. 98-169 (IPCB Jan. 7, 1999), recognized the applicability of
the “discovery rule,” in citizens’ clean up cost recovery actions under the Illinois Environmental
Protection Act (415 ILCS 5/), to determining when the five-year period set forth in §13-205 of
the Code of Civil Procedure (735 ILCS 5/13-205) begins to run.
3.
The Board further recognized the applicability of the “discovery rule” – in
citizens’ clean up cost recovery actions under the Illinois Environmental Protection Act (415
ILCS 5/), to determining when the five-year period set forth in §13-205 of the Code of Civil
Procedure (735 ILCS 5/13-205) commences – in its decision in
Unocal vs. Barge-Way Oil Co.,
Inc.
, PCB No. 98-169 (IPCB Feb 15, 2001), *3 and footnote 2 at *8.
4.
The Board defined the “discovery rule,” in footnote 2 on page 8 of its decision in
Unocal vs. Barge-Way Oil Co., Inc.
, PCB No. 98-169 (IPCB Feb 15, 2001), as follows:
“The ‘discovery rule’ provides that a statute of limitation begins to run not on the date
that an injury actually occurred, but on the date that the injured person knew or
reasonably should have known of the injury and that the injury was wrongfully caused.
See
Hermitage Corp. v. Contractors Adjustment Co.
, 166 Ill. 2d 72, 651 N.E.2d 1132
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(1995).”
See also Johnson vs. Tipton
, 103 Ill.App.3d 291, 300, 431 N.E.2d 464, 473, 59 Ill. Dec. 179, 188
(2d Dist. 1982).
5.
The complainant, Caseyville Sport Choice, LLC, alleged the following in
paragraph 7 of Count II against the respondent Fairmount Park, Inc.:
7. Describe the duration and frequency of the alleged pollution. Be as
specific as you reasonably can about when you first noticed the
alleged pollution, how frequently it occurs, and whether it is still
continuing (include seasons of the year, dates, and times of day if
known)
The respondents dumped the horse manure and intermixed
“municipal trash” over a period of years (from approximately 1981 to
1993) preceding their conveyance of the parcels of land to the
complainant on December 16, 2004.
The complainant became
aware of the huge amount of horse manure, and the presence
of “municipal trash” intermixed with the horse manure, in April,
2005, in the course of developing the land for a subdivision.
Since obtaining title and possession to the parcels of land, the
complainant has not allowed the dumping of any more horse manure
or intermixed “municipal trash” on the parcels of land.
Emphases, by bolded italics, added.
6.
Under the “discovery rule,” the five-year period of limitation – on the
complainant, Caseyville Sport Choice, LLC’s citizen’s clean up cost recovery action under the
Illinois Environmental Protection Act (415 ILCS 5/) against the respondent Fairmount Park, Inc.,
thus did not begin to run until April, 2005, when the complainant “became aware of the huge
amount of horse manure,” [over 159,000 tons of horse manure (
see
Count II, paragraph 6)] “and
the presence of ‘municipal trash’” [over 2,600 tons of ‘municipal trash’ (
see
Count II, paragraph
6)] “intermixed with the horse manure.”
7.
The respondents Seiber acted as the agent of the respondent Fairmount Park, Inc.,
in hauling the manure and intermixed “municipal trash” from the race track to – and in dumping
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those waste materials on – the respondents Seiber’s land.
See, e.g.,
copy of a signed contract
between the respondent Fairmount Park, Inc., and James Seiber (now deceased), dated February
9, 1990, for the hauling of “manure and other trash generated at Fairmount Park,” attached
hereto as
Exhibit A.
8.
Consequently, the knowledge of the respondents Seiber – of the dumping and
continued presence of the manure and intermixed “municipal trash” on the land – should not be
attributed to or otherwise counted against the complainant, Caseyville Sport Choice, LLC, in
determining when (under the “discovery rule”) it knew enough for the five-year period of
limitation, applicable to its citizen’s clean up cost recovery action under the Illinois
Environmental Protection Act (415 ILCS 5/), to begin running.
9.
James Seiber, Jr., the son of the deceased James Seiber, has testified in his
discovery deposition as follows concerning Fairmount Park, Inc.’s knowledge that the Seibers
were dumping the manure and other trash from the race track on the Seibers’ land:
“Q. So Fairmount racetrack specifically wanted the manure to be hauled to your land to
avoid the higher fees at the landfill?
A. They would rather have it going there than to a landfill.”
See
discovery deposition of
James Seiber, Jr., taken on May 30, 2008, at page 63, lines 5 – 9, attached as
Exhibit B.
10.
If April, 2005, is taken – in accordance with the “discovery rule”– as the time
when the five-year statue of limitation began to run, the complainant, Caseyville Sport Choice,
LLC, timely filed its initial complaint and Count II of its first amended complaint against the
respondent Fairmount Park, Inc.
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WHEREFORE, the complainant, Caseyville Sport Choice, LLC, prays that the Board
will deny the
Motion to Dismiss Count II Against Fairmount Park, Inc.,
filed by the respondent,
Fairmount Park, Inc.
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
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CERTIFICATE OF SERVICE*
I, the undersigned, certify that I have served a copies of the foregoing document by
depositing the copies of the document in the United States mail at the post office in O’Fallon,
Illinois, on ____________________, enclosed in envelopes, 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
Attorney for Respondents Seiber
Charles E. Hamilton
Attorney at Law
87 Oak Hill Drive
P.O. Box 24240
Belleville, IL 62223
Attorney for Respondent Fairmount Park, Inc.
/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
*This document is being filed electronically with the Illinois Pollution Control Board after 5:00
p.m. on Tuesday, September 23, 2008, and will be mailed to opposing counsel on Wednesday,
September 24, 2008. After that mailing has occurred, the attorney for the complainant will
electronically file a Certificate of Service indicating such service.
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Exhibit A
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Exhibit B
Electronic Filing - Received, Clerk's Office, September 24, 2008
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Electronic Filing - Received, Clerk's Office, September 24, 2008
