State

of

Illinois

Pollution

Control

Board

100

W.

JamesRandolph

R. Thompson

Street,

Suite

Center

11-500

1-EB

05

200

Chicago,

Illinois

60601

OI1utin

LLINOJ

8

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.,

)

A

Delaware

Corporation

)

)

Respondents.

)

MOTION

TO

DISMISS

COUNTERCLAIM

OF

RESPONDENT/CROSS-CLAIMANT

FAIRMOUNT

PARK,

INC.

Comes

now

the

complainant,

Caseyville

Sport

Choice,

LLC,

by

its

attorneys,

Belsheim

&

Bruckert,

L.L.C.,

and

moves

this

honorable

Board

to

dismiss

the

Counterclaim

Against

Plaintff

Caseyville

Sport

Choice

filed

by the

respondent/counterclaimant

Fairmount

Park,

Inc.,

against

the

complainant,

with

prejudice.

In support

of

its

motion,

the

complainant

states

the

following:

1.

The

respondent/counterclaimant

Fairmount

Park,

Inc.,

mailed

out

its

Counterclaim

Against

Plaintiff

Caseyville

Sport

Choice

on

January

5,

2009,

according

to

the

certificate

of

service

attached

thereto.

2.

The

Counterclaim

Against

Plaintff

Caseyville

Sport

Choice

consists

of

12

numbered

paragraphs.

—1—

---

3.

Of

those

12

numbered

paragraphs,

paragraphs

three

through

ten

set

forth

purported

affirmative

defenses

with

respect

to

the complainant’s

cause

of

action

alleged

in

Count

II of its

First

Amended

Formal

Complaint

against

the

respondent

Fairmount

Park,

Inc.,

and

do

not

set

forth

a

claim

for relief

against

the

complainant.

4.

Paragraphs

11 and

12 seek

an

award

of attorneys’

fees from

the

complainant

to

reimburse

the respondent/counterclaimant

Fairmount

Park,

Inc.,

for the

expense

of

defending

itself

against

the

complainant’s

cause

of action

alleged

in

Count

II

of the

First Amended

Formal

Complaint.

5.

Nothing

in

the Illinois

Pollution

Control

Board’s

Procedural

Rules

(35

Illinois

Administrative

Code

Part

103,

Subtitle

A)

nor

the

Illinois

Environmental

Protection

Act

(415

ILCS

5/)

allows

the

awarding

of

attorneys’

fees

in a civil

enforcement

action

brought

pursuant

to

§31(d)(1)

of

the

Illinois

Environmental

Protection

Act

(415

ILCS

5/31(d)(1)).

6.

The

only relief

which

the

respondent/counterclaimant

Fairmount

Park,

Inc.,

seeks

against

the

complainant

— an

award

of

attorneys’

fees

—

is

thus

not

available

to

the

respondent/counterplaintiff

under

any

circumstances.

7.

Consequently,

the

respondent/counterclaimant

Fairmount

Park,

Inc.’s

Counterclaim

Against

Plaintiff

Caseyville

Sport

Choice

fails

to state

a claim

for relief

against

the

complainant

which

is

cognizable

by the Illinois

Pollution

Control

Board

under

either

the

Illinois

Environmental

Protection

Act (415

TLCS

5/) or

the Illinois

Pollution

Control

Board’s

Procedural

Rules

(35

Illinois

Administrative

Code

Part

103,

Subtitle

A)

-2-

---

WHEREFORE,

the complainant,

Caseyville

Sport

Choice,

LLC,

prays

that

the

Illinois

Pollution

Control

Board

will

dismiss

with

prejudice

the

Counterclaim

Against

Plaintiff

Caseyville

Sport

Choice

filed

by

the

respondent/counterclaimant

Fairmount

Park,

Inc.,

against

the complainant.

CASEYVILLE

SPORT

CHOICE,

LLC,

An Illinois

Limited

Liability

Company,

By_______

,4n

P.

Long

#1687832AV

(,elsheim

& Bruckert,

.L.C.

1002 E.

Wesley

Drive,

Suite

100

O’Fallon,

Illinois

62269

618624-4221/618-624-1812

Fax

Attorney

for

Complainant

-3-

---

CERTIFICATE

OF

SERVICE

1,

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

2-,

c7

, enclosed

in

envelopes,

with

first-class

postage

thereon

fully

prepaid,

plainly

dressed

to:

4i’P.

Long

#l687832g’

lsheim

&

Bruckert,

L.L.C.

1002

E.

Wesley

Drive,

Suite

100

O’Fallon,

Illinois

62269

618-624-4221/618-624-1

812

Fax

Attorney

for

Complainant

Donald

Urban

Sprague

and

Urban

Attorneys

at

Law

26

E.

Washington

Street

Belleville,

IL

62220

Pemii

S.

Livingston

Charles

Hamilton,

of

counsel

Livingston

Law

Firm

5701

Perrin

Road

Fairvies

Heights,

IL

62208

-4-

---

State

of

Illinois

Pollution

Control

Board

James

R.

Thompson

Center

LEFtiç’

8

o0

100

W.

Chicago,

Randolph

Illinois

Street,

60601

Suite

11-500

FEB

o

0llLItIon

OF

CorIS

In the

Matter

of:

)

CASEYVILLE

SPORT

CHOICE,

LLC,

)

An Illinois

Limited

Liability

Company,

)

)

Complainant,

)

)

vs.

)

)

PCB

2008-030

ERMA

I.

SEIBER,

ADMNISTRATRIX

)

OF

THE

ESTATE

OF JAMES

A.

SEIBER,)

DECEASED,

AND

ERMA

I. SEIBER,

)

IN

HER

INDIViDUAL

CAPACITY,

AND)

FAIRMOUNT

PARK,

INC.,

)

A

Delaware

Corporation

)

)

Respondents.

)

REPLIES

TO

AFFIRMATIVE

DEFENSES

OF RESPONDENT

FAIRMOUNT

PARK,

INC.

Comes

now

the

complainant,

Caseyville

Sport

Choice,

LLC,

by

its attorneys,

Belsheim

&

Bruckert,

L.L.C.,

and

— for

its replies

to

the

Affirmative

Defenses

set

forth

in

the respondent

Fairmount

Park,

Inc.’s

Answer

Including

Affirmative

Defenses

— states

the

following:

1.

Reply

to

First

Affirmative

Defense.

The

complainant

denies

the

allegations

set

forth

in the

first

sentence

of

the

respondent’s

First

Affirmative

Defense.

The

complainant

admits

that

James

Seiber

was

responsible

for

the violations

of

law,

but

denies

the

implicit

assertion

that

the

respondent

bears

no responsibility

for

the

violations

of law

in

question.

The

complainant

denies

that

its

First

Amended

Formal

Complaint

against

the

respondent

(that

is,

Count

II thereof)

should

be dismissed.

—1—

---

2.

Reply

to

Second

Affirmative

Defense.

The

complainant

admits

that

the

“defendant

Seiber’s

activities

were

in violation.

.

. .

of

the

Environmental

Protection

Act.”

The

complainant

denies

the

other

allegations

set

forth

in the

first

four

sentences

of

the

respondent’s

Second

Affirmative

Defense.

The

complainant

denies

that

the

question — whether

a

third

party

may

be

responsible

to

the

complainant

for

having

made

an

incorrect

environmental

assessment

—

is

relevant

to

the

respondent’s

liability

to

reimburse

the

complainant

for

the

clean-up

costs.

To

the

extent

that

there

are

other

allegations

in

the

fifth

sentence

of

the

Second

Affirmative

Defense,

the

complainant

denies

those

allegations.

The

complainant

denies

the

allegations

set

forth

in

the

sixth

sentence

in

the

Second

Affirmative

Defense.

3.

Reply

to

Third

Affirmative

Defense.

The

complainant

denies

the

allegations

set

forth

in

the

respondent’s

Third

Affirmative

Defense.

4.

Reply

to

Fourth Affirmative

Defense.

The

complainant

denies

the

allegations

set

forth

in

the

respondent’s

Fourth

Affirmative

Defense.

5

Reply

to

Fifth

Affirmative

Defense.

The

complainant

denies

the

allegations

set

forth

in

the

respondent’s

Fifth

Affirmative

Defense.

6.

Reply

to

Sixth

Affirmative

Defense.

The

complainant

denies

the

allegations

set

forth

in

the

respondent’s

Sixth

Affirmative

Defense.

7.

Reply

to Seventh

Affirmative

Defense.

The

complainant

denies

the

allegations

set

forth

in the

respondent’s

Seventh

Affirmative

Defense.

8.

Reply

to Eighth

Affirmative

Defense.

The

complainant

denies

the

allegations

set

forth

in the

respondent’s

Eighth

Affirmative

Defense.

9.

Reply

to

Ninth

Affirmative

Defense.

The

complainant

denies

the

allegations

set

forth

in the

respondent’s

Ninth

Affirmative Defense.

-2-

---

10.

Reply

to

Tenth

Affirmative

Defense.

The

complainant

denies

that

it

failed

to

mitigate

its

damages.

As

to

the

propriety

of the

clean-up

chosen

by

the

complainant,

in

order

to

remediate

the

site,

the

complainant

considered

the

alternative

of

on-site

separation/screening

and

land

application

of

the

massive

quantity

of

horse

manure

and

intermixed

“municipal

trash,”

but

found

that

that

alternative

would

have

been

significantly

more

expensive

than

excavation

and

landfill

disposal.

The

complainant

denies

the

other

allegations

set

forth

in

the

Tenth

Affirmative

Defense.

11.

Reply

to

Eleventh

Affirmative

Defense. The

complainant

denies

the

allegations

set

forth

in

the

respondent’s

Eleventh

Affirmative

Defense.

WHEREFORE,

the

complainant,

Caseyville

Sport

Choice,

LLC,

having

fully

replied

to

the

Affirmative

Defenses

set

forth

in

the

respondent

Fairmount

Park,

inc.’s

Answer

Including

Affirmative

Defenses,

prays

that

the

Board

will

enter

an

order

in

the

complainant’s

favor,

and

against

the

respondent

Fairmount

Park,

Inc..,

on

Count

II

of

the

complainant’s

First

Amended

Formal

Complaint

requiring

the

respondent

Fairmount

Park,

Inc.,

to

reimburse

the

complaint

for

its

cleanup

costs

in

the

amount

of

Four

Million

Five

Hundred

and

Twenty-eight

Thousand

Five

Hundred

and

Eighty-nine

Dollars

and

Ten

Cents

($4,528,589.10).

CASEYVILLE

SPORT

CHOICE,

LLC,

An

Illinois

Limited

Liability

Company,

By_________

J

9

I’P. Long

#1687832

4’

4sheim

&

Bruckert,

L..C.

‘1002

E.

Wesley Drive,

Suite

100

O’Fallon, Illinois

62269

618-624-4221/61

8-624-1 812

Fax

Attorney

for

Complainant

-3-

---

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’FaIlon,

Illinois,

on

,

enclosed in

envelopes,

with

first-class

postage

thereon

fully

prepaid,

plainly

dressed

to:

Jo,14. Long

#1687832

heim

& Bruckert,

L.

‘1002

E.

Wesley

Drive,

Suite

100

O’Fallon,

Illinois

62269

618-624-4221/61

8-624-1

812

Fax

Attorney

for

Complainant

Donald

Urban

Sprague

and

Urban

Attorneys

at

Law

26

E.

Washington

Street

Belleville,

IL

62220

Penni

S.

Livingston

Charles

Hamilton,

of

counsel

Livingston

Law

Firm

5701

Perrin

Road

Fairview

Heights,

IL

62208

-4-

---

BELsHEIM

&

BRUCKERT,

L.L.C.

Harold

G.

Beisheim

ATTORNEYS

AND

COUNSELORS

AT

LAW

1002

East

Wesley

Drive

Terry

I.

Bruckert

Suite

100

John

P.

Long

O’Fallon,

Illinois

62269

Douglas

C.

Gruenke

February

2,

2009

EB

05

O09

ST,q

POIIut

,NOi

8

John

Theffiault

0!

Board

Clerk

of

the

Illinois

Pollution

Control

Board

100W.

Randolph

Street,

Suite

11-500

Chicago,

IL

60610

RE:

Caseyville

Sport

Choice,

LLC

vs. Erma

I

Seiber,

Administratrix

of

the

Estate

of

James

Seiber,

Deceased,

and Erina

I

Seiber,

Individually,

PB

2008-030

Dear

Sir:

Enclosed

are

the following

documents

that

I

would

ask

that

you

file

in

the

above

captioned

matter:

1.

Motion

to

Dismiss

Counterclaim

of

Respondent/Cross-Claimant

Fairmount

Park,

Inc.;

and

2.

Replies

to

Affirmative

Defenses

of

Respondent

Fairmount

Park,

Inc.

Yo

rs

respectfully,

JL

:clh

Ends

Cc:

Carol

Webb,

Hearing

Officer

Cc:

Donald

Urban

Cc:

Penni

S.

Livingston

Telephone:

618.624.4221

•

Facsimile:

618.624.1812

•

www.belsheim.com

hgb@belsheim.com

•

tib@be1sheim.com

•

jpl@be1sheim.com

dcg@belsheim.com