BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
Complainant,
vs.
WASTE HAULING LANDFILL, INC., JERRY
CAMFIELD,
A. E. STALEY MANUFACTURING
CO., ARCHER DANIELS MIDLAND, INC.,
ARAMARK UNIFORM SERVICES, INC., BELL
SPORTS, INC., BORDEN CHEMICAL CO.,
BRIDGESTONE/FIRESTONE, INC., CLIMATE
CONTROL, INC., CATERPILLAR INC., COMBE
LABORATORIES, INC., GENERAL ELECTRIC
RAILCAR SERVICES CORPORATION, P
&
H
MANUFACTURING, INC., TRINITY RAIL
GROUP, INC., TRIPPLE S REFINING
CORPORATION, and ZEXEL ILLINOIS, INC.,
Respondents.
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NOTICE OF FILING
TO:
Matthew J. Dunn, Chief
PCB No. 10-9
(Enforcement - Land, Cost
Recovery)
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center
James
L. Morgan, Sr. Assistant Attorney General
Environmental Bureau
Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand A venue East
P.O. Box 19274
Springfield, IL 62794-9274
Environmental Enforcement! Asbestos Litigation Division
500 South Second Street
Springfield, Illinois 62706
Persons included on the attached SERVICE LIST
PLEASE TAKE NOTICE that on this date I have filed with the Office
of the Clerk of the
Pollution Control Board Caterpillar's Motion to Dismiss and Memorandum in Support
of Motion
to Dismiss, a copy
of which is herewith served upon you.
Date: September 2, 2009
Kevin
G. Desharnais
Jennifer A. Simon
Mayer Brown LLP
71 South Wacker Drive
Chicago, Illinois 60606-4637
(312) 70 1-8407 (phone)
(312) 706-8117 (fax)
jsimon@mayerbrown.com
CATERPILLAR INC.
Jenp?f~.
Simon
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CERTIFICATE OF SERVICE
I, the undersigned, certify that, on this September 2,2009, I have served electronically
the attached Motion to Dismiss and Memorandum in Support
of Motion to Dismiss upon the
following person:
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601
and by U.S. Mail, first class postage prepaid, to the following persons:
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand A ven ue East
P.O. Box 19274
Springfield, IL 62794-9274
Matthew
J. Dunn, Chief
James
L. Morgan, Sf. Assistant Attorney General
Environmental Bureau
Environmental Enforcement! Asbestos Litigation Division
500 South Second Street
Springfield, Illinois 62706
The persons included on the attached SERVICE LIST
Jen}lfeA.Simon
Bell Sports, Inc.:
John
E.
Collins
Husch Blackwell Sanders, LLP
190 Carondelet Plaza, Suite 600
St. Louis, MO 63105-3441
Waste Hauling Landfill, Inc.
c/o Jerry Camfield, Sr.
2938 Oakmont Drive
Decatur, IL 62521
Jerry Camfield, Sr.
2938 Oakmont Drive
Decatur, IL 62521
Archer Daniels Midland, Inc.
c/o
CT Corporation System
208 S LaSalle St., Ste. 814
Chicago, IL 60604
Climate Control, Inc.
c/o Charles
A. Demirjian, R.A.
225 N. Water Street
Decatur, IL 62523
General Electric Railcar Services Corp.
c/o
CT Corporation System
208 S LaSalle St., Ste. 814
Chicago, IL 60604
Trinity Rail Group, Inc.
c/o
CT Corporation System
208 S LaSalle St., Ste. 814
Chicago, IL 60604
Zexel Illinois, Inc.
c/o Kathy Carter, R.A.
625 Southside Dri ve
Decatur, IL 62525
SERVICE LIST
Tate and Lyle Ingredients Americas, Inc.:
James
L.
Curtis, Jeryl
L.
Olson, and
Elizabeth Leifel Ash
Seyfarth Shaw
131 South Dearborn Street, Suite 2400
Chicago, IL 60603-5803
Aramark Uniform Services, Inc.
c/o
CT Corporation System
208 S LaSalle St., Ste. 814
Chicago, IL 60604
Borden Chemical Co.
c/o Prentice Hall Corporation
33 N LaSalle St.
Chicago, IL 60602
Bridgestone Firestone, Inc.
c/o
CT Corporation System
208 S LaSalle St., Ste. 814
Chicago, IL 60604
Combe Laboratories, Inc.
c/o
CT Corporation System
208 S LaSalle St., Ste. 814
Chicago, IL 60604
P
&
H Manufacturing, Inc.
604 S. Lodge
P.O. Box 549
Shelbyville,
IL 62565
Triple Refining Corporation
c/o CT Corporation System
208 S LaSalle St., Ste. 814
Chicago, IL 60604
Electronic Filing - Received, Clerk's Office, September 2, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
Complainant,
vs.
WASTE HAULING LANDFILL, INC., JERRY
CAMFIELD,
A. E. STALEY MANUFACTURING
CO., ARCHER DANIELS MIDLAND, INC.,
ARAMARK UNIFORM SERVICES, INC., BELL
SPORTS, INC., BORDEN CHEMICAL CO.,
BRIDGESTONE/FIRESTONE,
INC., CLIMATE
CONTROL, INC., CATERPILLAR INC., COMBE
LABORATORIES, INC., GENERAL ELECTRIC
RAILCAR SERVICES CORPORATION, P
&
H
MANUFACTURING, INC., TRINITY RAIL
GROUP, INC., TRIPPLE S REFINING
CORPORATION, and ZEXEL ILLINOIS, INC.,
Respondents.
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MOTION TO DISMISS
PCB No. 10-9
(Enforcement - Land, Cost
Recovery)
Pursuant
to 35 Ill. Adm. Code 101.506, Caterpillar Inc. ("Caterpillar") submits this
Motion to Dismiss the Complaint filed by the People of the State of Illinois ("People") on July
29,2009:
1.
The Complaint fails to state a valid claim against Caterpillar under Section 415 ILCS
4/22.2(f)(1)-(2). See
Complaint, 123. The People have not pled any facts indicating Caterpillar
was the owner or operator
of a facility from which there was a release (Section 22.2(f)(l) or
that, at the time of disposal, Caterpillar owned a facility from which there was a release (Section
22.2(f)(2». As the People have failed to set forth any facts demonstrating that Caterpillar is
liable under either Section 22.2(f)(1) or (2), the Complaint must be dismissed as to Caterpillar.
2.
The Agency failed to follow the notification and pre-suit procedures required by Section
31 of the Illinois Environmental Protection Act ("Act"). As a result, it was never authorized to
refer this matter to the Attorney General, and this matter must be dismissed.
In
the alternative,
the Attorney General was not authorized to bring this matter on behalf of the Agency. That
portion of the Complaint must be stricken, and the Agency must not be permitted to participate,
directly or indirectly, with the Attorney General in the above-referenced matter until it has
followed the procedures set forth
in Section 31.
3.
The People failed to plead with specificity as required by 35
Ill.
Adm. Code Section
103.204(c)(2) and Illinois' fact-pleading standard. The Complaint completely omits "[t]he dates,
location, events, nature, extent, duration, and strength of discharges or emissions and
consequences alleged to constitute violations of the Act and regulations."
35
Ill.
Adm. Code
Section 103.204(c)(2). Therefore, the Complaint must be dismissed.
4.
The People seek a greater recovery against Caterpillar than the Illinois Proportionate
Share Liability Rule allows under
35
Ill.
Adm. Code Section 741.205(a) and 415 ILCS
5/58.9(a)(l). Accordingly, the Complaint must be dismissed. To the extent the People are
seeking to require Caterpillar to pay a proportionate share
of the overall costs and to assess a
correspondingly proportionate penalty against Caterpillar, the People have failed to provide "a
concise statement
of the relief that the complainant seeks," as required by 35
Ill.
Adm. Code
Section 103.204(c)(2). The People have also failed to plead facts sufficient to support a valid
claim under Illinois' proportionate share regulations.
See
Section 741.205(a). Because the
Agency has failed to plead any facts by which Caterpillar could deduce its proportionate liability
or understand the relief being sought by the Agency, this matter must be dismissed.
5.
The People failed to plead facts sufficient to support their request for "damages equal to
three times the past, present, and future removal costs ... incurred by the Illinois EPA."
See
Complaint, "Prayer for Relief' <][ C. Therefore, this prayer for relief must be dismissed.
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WHEREFORE. for the reasons set forth above, Caterpillar moves that the Complaint be
dismissed in its entirety and the Board grant such further relief as may be
just and proper. In the
alternative, Caterpillar moves that:
(1)
the demand for treble damages be stricken; and (2) the
Illinois Environmental Protection Agency be barred from further direct
or indirect participation
in these proceedings until it has followed the procedures set forth in Section 31.
Date: September 2, 2009
Kevin G. Desharnais
Jennifer
A.
Simon
Mayer Brown
LLP
71 South Wacker Drive
Chicago, lllinois 60606-4637
(312) 701-8407 (phone)
(312) 706-8117 (fax)
jsimon @mayerbrown.com
CATERPILLAR INC.
3
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
vs.
WASTE HAULING LANDFILL, INC., JERRY
CAMFIELD,
A.
E. STALEY MANUFACTURING
CO., ARCHER DANIELS MIDLAND, INC.,
ARAMARK UNIFORM SERVICES, INC., BELL
SPORTS, INC., BORDEN CHEMICAL CO.,
BRIDGESTONE/FIRESTONE, INC., CLIMATE
CONTROL, INC., CATERPILLAR INC., COMBE
LABORATORIES, INC., GENERAL ELECTRIC
RAILCAR SERVICES CORPORATION, P
&
H
MANUFACTURING, INC., TRINITY RAIL
GROUP, INC., TRIPPLE S REFINING
CORPORATION, and ZEXEL ILLINOIS, INC.,
Respondents.
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PCB No. 10-9
(Enforcement - Land, Cost
Recovery)
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
Pursuant to 35 Ill. Adm. Code 101.506, Caterpillar Inc. ("Caterpillar") submits this
Memorandum in Support of its Motion to Dismiss the Complaint filed by the People of the State
of Illinois ("People") on July 29, 2009. In support of its Motion, Caterpillar states
as follows:
INTRODUCTION
On May 13,2002, the Illinois Environmental Protection Agency ("Agency") sent
Caterpillar and numerous other parties a "Notice Pursuant to Section 4(q) and 58.9(b) of the
Environmental Protection Act" ("Notice").
See
Exhibit
A.
In Section Ill, <J[ C(1)-(14), of the
Notice, the Agency provides a very brief history of the operational and regulatory issues at the
Waste Hauling Landfill. Caterpillar is never mentioned here or anywhere else in the document
other than the Caption
of the Notice. The Notice is completely silent regarding any evidence
identifying a potential nexus between Caterpillar and the Waste Hauling landfill. The only
information provided regarding Caterpillar's "involvement" was that "[t]he Parties are persons
who may be liable for some or all costs
of removal or remedial action ... "
See
Section IV,
1
E.
No basis for this conclusory allegation of liability was set forth, and the nature of Caterpillar's
alleged involvement at the site was not articulated.
In response, Caterpillar submitted a timely
reply to the Agency on June 13, 2002, requesting further information about the release and
Caterpillar'S alleged contributions.
See
Exhibit B. In order to obtain any information regarding
the Waste Hauling Landfill, Caterpillar was ultimately required to submit a Freedom of
Information Act request, which was completed
in August, 2002.
The next contact regarding this matter came almost five years later in the form of a letter
from the Attorney General's Office dated May 4,2007. The Attorney General indicated it
intended
to file suit on June 1,2007, at the request of the Agency and to recover costs on behalf
of the Agency. However, the Attorney General provided no basis for its assertion that
Caterpillar was a potentially responsible party to the Waste Hauling Landfill site.
More than two years later, on July 29,2009, the Attorney General's Office filed this
action with the Board. Caterpillar received service of the Complaint on August 3, 2009.
Consistent with the previous correspondence, the Complaint failed to provide Caterpillar with
any details regarding the waste it allegedly sent to the Landfill, or how Caterpillar is implicated
in the alleged release.
Caterpillar now timely files its Motion to Dismiss the Complaint on the following
grounds: (1) The People have failed to state a valid claim pursuant to Section 415 ILCS
5/22.2(f)(1)-(2) of the Act; (2) the Agency failed to follow the notification procedures and satisfy
the other pre-suit requirements
of Section 31 of the Act; (3) the People failed to plead with the
2
level of specificity required by 35 Ill. Adm. Code Section 103.204 and Illinois' fact-pleading
standard; (4) the People seek to impose a greater liability upon Caterpillar than permitted by
Illinois' Proportionate Share Liability Rule at 415 ILCS 5/58.9; and (5) the People have not
alleged facts sufficient to support their claim for treble damages under paragraph C
of the
"Prayer for Relief' section of the Complaint.
Since receiving the Agency's Notice
in May of 2002, Caterpillar has requested that the
Agency provide it with information regarding its liability for contamination at the Waste Hauling
Landfill, and has reached out to the Agency
in an attempt to reach resolution. However, the
Agency failed
to provide Caterpillar with a clear foundation for Caterpillar's alleged liability or
to elucidate the extent of Caterpillar's alleged liability. Accordingly, the Agency and the People
failed to establish a valid basis for the issuance of a 4(q) letter to Caterpillar. The Agency further
failed to provide Caterpillar with the notice and opportunity for negotiation set forth in Section
31 of the Act before referring this case to the Attorney General in 2007. Now, the People, in
filing their Complaint before this Board, have failed to plead any facts indicating the nature of
Caterpillar's involvement in this matter, in violation of the pleading requirements set forth in 35
Ill. Adm. Code Section 103.204(c)(2) and Illinois' fact-pleading standard.
Because of the Agency's failure to submit a valid 4(q) letter, the Agency's failure to
complete the other steps outlined in Section
31 of the Act, and the People's failure to state a
valid claim or allege facts supporting its allegations against Caterpillar, the Complaint against
Caterpillar must be dismissed, and the People may not now seek reimbursement of costs, much
less a treble damage penalty, against Caterpillar.
Caterpillar acknowledges that, for purposes
of ruling on a motion to dismiss, all well-pled
facts contained
in the pleading must be taken as true.
George R. Strunk
v.
Williamson Energy
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LLC,
PCB No. 07-135 (Citizens Enforcement -- Air, Noise, Water), 2007 Ill. ENV LEXIS 529,
* 16-17 (Nov.
15, 2001). Further, a complaint should not be dismissed for failure to state a claim
unless "the well-pleaded allegations, considered in the light most favorable to the non-movant,
indicate that no set of facts could be proven upon which the petitioner would be entitled to the
relief requested."
George Casanave
v.
Amoco Oil Company,
PCB No. 97-84 (Enforcement -
UST), 1997 Ill. ENV LEXIS 653, *6-7 (November 20,1997). Nevertheless, here, the People
have failed
to allege any facts demonstrating Caterpillar is liable under 415 ILCS 5/22.2(f)(1)-
(2), the Agency has failed to meet its Section
31 notification and pre-suit responsibilities, and the
allegations contained
in the Complaint fail to support a valid claim against Caterpillar.
ARGUMENT
I.
The People Failed to State a Valid Claim Pursuant to Section
22.2(f)(1)-(2).
The sole foundation of the People's allegation of liability against each of the defendants
lies in paragraph 23, which states that "[r]espondents are each a responsible party
as described in
Section 22.2(f)(1)-(2)
of the Act, 415 ILCS 4122.2(f)(1)-(2)."\ Caterpillar is not a responsible
party under 415 ILCS 5/22.2(f)(1)-(2), and the People have not set forth any facts indicating
either of those two sections are applicable to Caterpillar. Therefore, the Complaint fails to state a
valid claim against Caterpillar.
415
ILCS 5122.2(f)(1) pertains to the "owner and operator of a facility ... from which
there was a release." Section 22.2(f)(2) pertains to any person who, at the time of disposal,
"owned or operated the facility ... from which there was a release." In paragraph
11
of the
Complaint, the People allege that "Caterpillar Inc. sent wastes to the Landfill during its operating
life and those wastes contained hazardous substances." No facts have been alleged to support the
1 Caterpillar presumes the People intended to reference 415 5/22.2(f)(l)-(2).
4
argument that Caterpillar was the owner or operator of a facility as would be required for
Caterpillar to fall within the purview of Section 22.2(f)(1). Similarly, no facts have been alleged
indicating that,
at the time of disposal, Caterpillar owned a facility from which there was a
release,
as would be required for liability under Section 22.2(f)(2). Therefore, the People have
failed to set forth any facts demonstrating how Caterpillar is liable under either Section
22.2(f)(l) or (2).
As a result, the Complaint must be dismissed as to Caterpillar.
II.
The Agency Failed to Follow the Notification and Other Pre-Suit Procedures of
Section 31 of the Act.
Section 31 of the Act outlines specific notification procedures the Agency must follow
before referring a matter to the Attorney General for enforcement. The Agency failed to follow
these procedures. Therefore, it was never authorized to refer this matter
to the Attorney General.
Because the preconditions for filing were never met, this matter must be dismissed.
Alternatively, because the Agency failed to follow the procedures set forth in Section
31
of the Act, the Agency was not authorized to seek enforcement of this matter by the Attorney
General, and the Attorney General likewise was not authorized to bring this matter on behalf of
the Agency. Therefore, the portion of the Complaint whereby the Attorney General seeks to
bring this action at the request of the Agency must be stricken, and the Agency must not be
permitted to participate in this proceeding directly or indirectly until it has followed the
procedures set forth in Section 31.
Under Section 3l(a), the Agency must first send a letter containing a detailed explanation
of the violations alleged.
See
415 ILCS 5/3l(a)(l)(B). The Agency's May 13,2002, Notice
failed to provide the necessary facts to support the alleged violations, and was, therefore,
insufficient.
See
Exhibit
A.
Nowhere in the Notice is a detailed, or even rudimentary,
5
Electronic Filing - Received, Clerk's Office, September 2, 2009
explanation of Caterpillar's alleged violations. Indeed, from the Notice, Caterpillar could not
even determine the general nature of its alleged involvement. As a result, Caterpillar responded
to the Notice by requesting further information so it could better determine the extent
to which it
might be liable for response action at the site.
See
Exhibit B. Despite Caterpillar'S compliance
with its obligations and its attempt to engage the Agency, the Agency never followed the steps
required by Section 31(a), including the mandated meetings and negotiations set forth
in that
section. Caterpillar was never given a meaningful opportunity to pursue pre-referral resolution
with the Agency.
Section
31 (b) outlines the procedures that must be followed after the completion or
waiver
of the consultation procedures required by Section 31(a).
See
415 ILCS 5/31(b); 415
ILCS 5/31(a)(3). The Agency must send a written notice that it intends to pursue legal action
and include
an offer to meet and resolve the allegations. The Section 31 (b) steps are mandatory
"as a
precondition
to the Agency's referral or request to the Office of the Illinois Attorney
General." 415 ILCS 5/31(b) (emphasis added). Here again, the Agency failed to follow these
procedures. Caterpillar was never told that the Agency still considered it a potentially
responsible party, and, yet again, Caterpillar was not given the opportunity to cooperate with the
Agency and seek resolution before this matter was referred to the Attorney General for
enforcement.
The Agency failed to follow the procedures outlined in either
Section 31(a) or (b).
As a
result, the Agency was not authorized to refer this matter to the Attorney General's Office.
Absent the Agency's improper referral, this action would likely never have been filed.
Accordingly, because of the Agency's failure to follow the clear procedures set forth in Section
31(a) and (b), this action must be dismissed.
6
Alternatively, to the extent the Attorney General was authorized to bring the action on its
own behalf, the Attorney General was
not
authorized to bring suit on behalf of the Illinois
Environmental Protection Agency. Therefore, the portion
of the complaint whereby the Attorney
General seeks to bring this action at the request
of the Agency must be stricken, and the Agency
must not be permitted to participate directly or indirectly in the further litigation of this matter.
To the extent the Attorney General considers any participation
of the Agency necessary to
prepare its case
in this matter, such participation can only be secured once the Agency completes
its obligations under Section
31 of the Act. The completion of those obligations would be far
from a mere procedural hurdle. Caterpillar sincerely wishes to pursue consultation with the
Agency in accordance with the terms
of Section 31, and to seek resolution of this matter without
further expenditure of the Board's resources.
Caterpillar recognizes that certain lllinois Pollution Control Board precedent has
permitted the Attorney General to bring
an action on its own motion and at the request of the
Agency despite violations by the Agency of Section 31(a) and (b).
See, e.g., People of the State
of Illinois
v.
Barger Engineering, Inc.,
PCB No. 06-82, 2006
TIL
ENV LEXIS 173 (March 16,
2006). Nevertheless, Caterpillar asserts that this strikes against the purposes of Section 31 and
violates the express terms thereof. The clear purpose of Section
31 is to allow parties the
opportunity to seek resolution of an Agency claim through negotiation
as a mandatory
precondition to the Agency's referral of the claim to the Attorney General for litigation. This
allows parties the opportunity to resolve environmental disputes with the Agency while avoiding
litigation.
See County of Jackson
v.
Egon Kamarasy,
AC No. 04-63 (Site Code # 0778095036);
AC No. 04-64 (Site Code
# 0778125013) (Administrative Citation) (Consolidated), 2005
Ill.
ENV LEXIS 575, *49-50 (June 16,2005) ("Section 31 of the Act sets forth a process of notice
7
Electronic Filing - Received, Clerk's Office, September 2, 2009
of alleged violations from the Agency and an option of meeting with the Agency to give a
potential violator the opportunity to resolve alleged violations without being subject to a formal
enforcement action
.... The pre-enforcement process is a precondition to the Agency referring
unresolved alleged violations to the Attorney General's Office or the State's Attorney for the
filing of a formal complaint.") Caterpillar was not provided the benefits of this opportunity in
the case at bar. The occasion to pursue the procedures outlined
in Section 31 is particularly
important in cases such as this where the basis for the allegations against a respondent (such
as
Caterpillar) are unclear - and where potentially responsible parties like Caterpillar have
attempted to pursue settlement negotiations with the Agency. Section 31(a) and (b) are rendered
meaningless
if their purposes can be circumvented by the Attorney General inserting the phrase
"on its own motion" into its Complaint. Allowing this matter to go forward, and thus presuming
the legislature intended Section
31 to be meaningless and devoid of any force, violates the basic
canons of statutory interpretation.
See Business
&
Professional People for Public Interest
v.
Illinois Commerce Com.,
146 Ill. 2d l75, 207 (1991) ("When interpreting a statute the primary
function of this court is to ascertain and give effect to the intent of the legislature.");
Collins
v.
Board of Trustees of Firemen's Annuity
&
Benefit Fund,
155 Ill. 2d 103,
III
(1993) ("The
statutory language ... is to be given its plain or ordinary and popularly understood meaning, and
the fullest rather than narrowest possible meaning to which it is susceptible.").
The terms of Section 31(a) and (b) require that the Agency follow specific procedures
before it may refer a matter to the Attorney General's office. The Agency failed to follow these
procedures, thus denying Caterpillar the benefits thereof, and the opportunity to seek an early
resolution so
as to prevent the filing of this action. As the preconditions to filing suit were never
accomplished, this action must be dismissed until such a time as those preconditions have been
8
satisfied. Or, in the alternative, the portion of the complaint whereby the Attorney General seeks
to bring this action
at the request of the Agency must be stricken, and the Agency must not be
permitted to participate directly
or indirectly in the further litigation of this matter.
III.
The People Failed to Plead with the Specificity Required by 35 III. Adm. Code
Section 103.204 and Illinois' Fact-Pleading Standard.
35 Ill. Adm. Code Section 103.204 requires that a complaint contain "[t]he dates,
location, events, nature, extent, duration, and strength of discharges or emissions and
consequences alleged to constitute violations of the Act and regulations. The complaint must
advise respondents of the extent and nature of the alleged violations to reasonably allow
preparation of a defense." The People have failed to provide any dates or description of the
nature, extent, duration, or strength of the Waste Hauling Landfill release, or of Caterpillar's
alleged contribution to that release. Accordingly, Caterpillar is unable to detennine the basis
of
the claims against it, or to prepare an adequate defense to the conclusory allegations contained in
the Complaint. Because the People have failed to plead with adequate specificity as required by
35
TIL
Adm. Code Section 103.204, the Complaint must be dismissed.
Illinois is a fact-pleading state.
See People ex rei. Fahner
v.
Carriage Way West, Inc.,
88
Ill.
2d 300,308 (1981). This is a higher standard than mere notice-pleading.
See Adkins
v.
Sarah Bush Lincoln Health Center,
129
Ill.
2d 497,518 (1989). "In assessing the adequacy of
pleadings in a complaint, the Board has accordingly stated that 'Illinois is a fact-pleading state
which requires the pleader to set out the ultimate facts which support his cause of action. '"
United City of Yorkville
v.
Hammon Farms,
PCB No. 08-96 (Citizen's Enforcement -- Land, Air,
Water), 2008
Ill.
ENV LEXIS 352, *36-37 (October 16, 2008),
quoting Grist Mill Confections,
PCB 97-174, slip op. at 4. "[L]egal conclusions unsupported by allegations of specific facts are
9
Electronic Filing - Received, Clerk's Office, September 2, 2009
insufficient."
[d., quoting
La
Salle Nat'l Trust, N.A.
v.
Village of Mettawa,
249 Ill. App. 3d 550,
557
(Ill. App. Ct. 2d Dist. 1993). "A complaint's failure to allege facts necessary to recover
'may not be cured by liberal construction or argument.'"
[d., quoting Estate of Johnson
v.
Condell Memorial Hospital,
119 Ill. 2d 496,510 (1988), and
People ex rel. Kucharski
v.
Loop
Mortgage Co.,
43 Ill. 2d 150, 152 (1969).
"Even though charges in
an administrative proceeding need not be drawn with the same
refinements
as pleadings in a court of law, the Act and the Board's procedural rules provide for
specificity
in pleadings, and the charges must be sufficiently clear and specific to allow
preparation of a defense."
Jerry R. West, II
v.
Nokomis Quarry Company,
PCB No. 09-45
(Citizens Enforcement - Air), 2009
Ill. ENV LEXIS 221, *6-7 (June 4,2009) (internal citations
omitted). When complaints fail to meet this standard, the Board has dismissed the matter or
stricken the violating counts.
See, e.g., Rocke
v.
Illinois Pollution Control Bd.,
397 N.E.2d 51,
55 (Ill. App. Ct. 1st Dist. 1979), and
Lloyd A. Fry Roofing Co.
v.
Pollution Control Bd.,
20 Ill.
App. 3d 301,305 (Ill. App. Ct. 1st Dist. 1974).
The People have failed to meet the standard set forth in
35 Ill. Adm. Code Section
103.204 or
in Illinois' fact-pleading requirements. Regarding the Waste Hauling Landfill release
generally, the Complaint fails to state when this release allegedly occurred, what was allegedly
released, the volume
of hazardous substances allegedly released, or provide any other detail into
the nature of the release. Regarding Caterpillar's contributions specifically, the Complaint fails
to state what materials Caterpillar allegedly sent to the Waste Hauling Landfill, when Caterpillar
allegedly sent those materials, the volume of material Caterpillar allegedly sent, or any other
details regarding how Caterpillar became involved with the Waste Hauling Landfill or allegedly
10
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contributed to this release. Accordingly, the Complaint must be dismissed for failure to plead
with sufficient specificity.
IV.
Neither the Agency Nor the People May Seek Damages From Caterpillar that
Represent More Than Caterpillar's Proportionate Share of the Liability.
Under 415 ILCS 5/58.9, no action may be filed seeking to force the respondent to payor
perform more than its proportionate share of the cleanup. As the statute states:
Notwithstanding any other provisions of this Act to the contrary, including
subsection
(f) of Section 22.2, in no event may the Agency, the State of Illinois,
or any person bring
an action pursuant to this Act or the Groundwater Protection
Act
to require any person to conduct remedial action or to seek recovery of costs
for remedial activity conducted by the State
of Illinois or any person beyond the
remediation of releases of regulated substances that may be attributed to being
proximately caused by such person's act or omission or beyond such person's
proportionate degree
of responsibility for costs of the remedial action of releases
of regulated substances that were proximately caused or contributed to by 2 or
more persons.
415 ILCS 5/58.9(a)(l). Caterpillar is at most liable only for its proportionate share of liability at
the Waste Hauling Landfill, and cannot be forced to
payor perform more than its proportionate
share of the cleanup. To the extent the People are seeking to impose a greater share
of liability
upon Caterpillar than its proportionate contribution to the alleged release, the claim is in direct
contravention
of the statutory language. Accordingly, the Complaint must be dismissed.
To the extent the People are seeking for Caterpillar to pay a proportionate share of the
overall costs and to assess a correspondingly proportionate penalty against Caterpillar, the
People have failed to provide
"a concise statement of the relief that the complainant seeks," as
required by 35 Ill. Adm. Code Section 103.204. The People have also not pled facts sufficient to
support a valid claim under Illinois' proportionate share regulations. Under Section 741.205
of
the proportionate share regulations, the burden is on the complainant to prove not only "[t]hat the
11
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respondent proximately caused or contributed to a release," but also "[t]he degree to which the
performance or costs of a response result from the respondent's proximate causation of or
contribution to the release."
See
Section 741.205(a). This applies to any complaint "filed with
the Board that seeks, under the Environmental Protection Act ... [t]o recover the costs of a
response that results from a release or substantial threat of a release of regulated substances."
See
Section 741.105(d). As
People v. Michel Grain Company, Inc.,
PCB 96-143 (Enforcement-
Water, Land), 2002 WL 2012414,
*3 (August 22,2002) further explains, "the [proportionate
share liability] limits a cost recovery remedy while imposing a burden
on complainant to show,
among other things, that respondent proximately caused or contributed to the release or
substantial threat of
release."
Here, neither the Agency nor the People have specified the nature or degree of
Caterpillar's alleged involvement at the Landfill.
In the Agency's initiaI4(q) letter to
Caterpillar, the Agency failed
to explain the nature of Caterpillar'S involvement or describe the
type or amounts of Caterpillar waste that allegedly were sent to Waste Hauling Landfill. Despite
Caterpillar's overtures to understand the basis for and extent of liability being asserted by the
Agency, the Agency did not engage Caterpillar in negotiations or explain the foundation for its
demands against Caterpillar.
Now, seven years later, the People have filed their Complaint that still fails to allege any
facts by which Caterpillar could understand the basis of the claims being brought against it or the
nature of the relief being sought. The People have failed to plead sufficient facts regarding the
basis for and extent
of Caterpillar's liability, or even to plead any facts by which Caterpillar
could deduce the alleged nature and extent of its liability in this matter. Accordingly, there are
12
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no well-pled facts in the Complaint to support the People's cause of action against Caterpillar
under the proportionate share regulations.
The People have failed to meet the pleading requirements under 35
Ill.
Adm. Code
Section 103.204 and 741.205(a) and, as a result, have hindered Caterpillar's ability to prepare a
defense. Because
of the People's failure to provide a concise statement of the relief it seeks
against Caterpillar or to state a valid proportionate share claim, the Complaint must be dismissed.
Further, to the extent the People are seeking damages from Caterpillar in excess
of Caterpillar's
proportionate share of liability at the Waste Hauling Landfill, the Complaint must likewise be
dismissed.
V.
The People Have No Authority to Request Treble Damages Against Caterpillar.
In
paragraph C of the "Prayer for Relief' section of the Complaint, the People request
"damages equal to three times the past, present, and future removal costs ... incurred by the
Illinois EPA." However, the Complaint fails to allege facts sufficient to support a contention
that treble damages are appropriate here with respect to Caterpillar. Therefore, this prayer for
relief must be dismissed.
Although the People do not cite any statutory authority for their prayer for treble
damages, presumably the prayer for this relief is based on Section 22.2(k)
of the Act. However,
this section provides for treble damages only when the respondent did not have sufficient cause
to decline to undertake the removal action. As
Quincy v. Carlson,
163
Ill.
App. 3d 1049, 1053
(Ill. App. Ct. 4th Dist. 1987) states, "[n]o liability will be found
if the alleged responsible party
can establish that he (it) acted with 'sufficient cause.'"
See also Solid State Circuits, Inc. v.
United States Environmental Protection Agency,
812 F.2d 383,391 (8th Cir. Mo. 1987)
13
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(interpreting the parallel federal provision) ("[T]reble damages may not be assessed if the party
opposing such damages had an objectively reasonable basis for believing that the EPA's order
was either invalid or inapplicable to it."). No facts are alleged in the Complaint to support the
contention that Caterpillar had sufficient cause to conduct the removal.
In
fact, Caterpillar had a
strong basis for not embarking on a removal action here,
as the Agency never provided evidence
to support Caterpillar's share
of liability or indicated the extent of relief being sought against
Caterpillar.
Moreover, even
if Caterpillar were liable, its share of liability would necessarily be
limited. Caterpillar does not own the Waste Hauling Landfill, has no authority to enter that
property, had no responsibility for operating the site, and was at most one of many parties whose
waste was disposed
of at the site. Therefore, under the Illinois Proportionate Share Liability
Rule, even assuming
arguendo,
some liability on behalf of Caterpillar, there is no basis for
an
order directing Caterpillar to complete the entire removal action. Rather, Caterpillar could only
have been required
to payor remediate its proportionate share, an amount the Agency has never
alleged. Because the Agency's Section 4(q) notice to Caterpillar did not set forth a basis for
Caterpillar's liability, Caterpillar had sufficient cause not to undertake a removal action that
would have resulted in an expenditure above its proportionate share.
As a result, the
People have not pled sufficient facts to allege they are entitled to seek
treble damages
as to Caterpillar. Paragraph C under "Prayer for Relief' must be dismissed as to
Caterpillar.
14
CONCLUSION
Accordingly, for the reasons set forth above, Caterpillar moves that the Complaint be
dismissed in its entirety and the
Board grant such further relief as may be just and proper. In the
alternative, Caterpillar moves that:
(1) the demand for treble damages be stricken; and (2) the
Illinois Environmental Protection Agency be barred from further direct
or indirect participation
in these proceedings until it has followed the procedures set forth in Section
31.
Date: September 2, 2009
Kevin
G. Desharnais
Jennifer A. Simon
Mayer Brown LLP
71 South Wacker Drive
Chicago, Illinois 60606-4637
(312) 701-8407 (phone)
(312) 706-8117 (fax)
jsimon@mayerbrown.com
CATERPILLAR INC.
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EXHIBIT A
Electronic Filing - Received, Clerk's Office, September 2, 2009
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ILLINOIS ENVIRONf\..fENT AL PROTECTlON AGENCY
l1\
THE MATTER OF:
WASTE HAULING LANDFILL LANDFILL
LPC
NO. 1158010001
Jerry Camfield,
Sr.~
Waste Hauling Landfill, )
)
)
)
)
)
Inc.: Archer Daniels-Midland: AE Staley MFG
)
Co.;
PORTEe
Inc.; Thrall Car Manufacturing
)
Co.; Borden Chemical Co.; Bell Helmets -
)
Vetter Productions; Superior Equipment Co.;
)
Climate Control Inc.; Kerr-McGee COIP.;
)
P&H Inc.; Illinois Central Gulf Railroad;
)
FIrestone Tire and Rubber Co.; "Borg-Warner
)
Corp.; AE Statey Manufacturing Company; )
General EJectric- Railcar Service; Caterpillar
)
Tractor; Means Services Inc.; North American
)
Car COTPoration; Marvel Shebler; Combe
)
Lahom Inc.; Waste Hauling, Inc.; Paul
)
McKlnlley; Nita Noland
)
EPA FILENO.
NOTICE PURSUANJ' OF
S!!crION~(g}
AND. 58.9!1:!H)F THE ENYJJ!9NMJ:!NT AL
PROTECTION ACT
I.
GENERAL
This Notice is issued pursuant to the authority vested in the Ulinois Envirorunental
Protection Agency ("illinois
EPA") by
S~tions
4(q) and 58.9{b) oftbe Environmental
Protection Act. ("Act"), 41S ILCS 5J4(q) and 4151LCS
5158.9(b).
Jerry
CllJ'l.'lftcJ~
Sr.;
Waste
Ha'~ling
Lar.dfiH,lnc.; Archer
Daniels~MidJaJld;
AE Staley Manufacturing
Co.; f10RTEC Inc.; Thrall Car Manufacturing Co.; Borden Chemical Co.; Bell Helmets-
Vetter Productions; Superior Equipment Co.; Climate
Contmllnc.~
Kerr-McGee Corp.;
P&H Inc.; Illinois Central Gulf Railroad; Firestone Tire and Rubber Co.; Borg-Wamer
Corp.; AE Stilley Manufacturing Company; General Electric - Railcar Service;
Caterpillar Tractor; Means Services Inc.; North American
Car Corporation; Marvel
Shebler~
Combe Lahom Inc.; Waste Hauling. Inc.; Paul McKinney and Nita. Noland
("Farties") shall undertake all actions required
by.
and in accordance with the terms and
conditions of, this Notict:. The tenn "Sitc" is defined fOT
purpo~s
ofthjs Notice as the
{acility described in Section meA} oflhis Notice. Fallure
by
the Parties to undertake
rhese actions may result in sanctiorlS Hlciuding, but not limited to, the 3aI1ctions' described
in Section XIX
of this Notice.
..
' ,
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11. OBJECTIVES
The objectives of the Illinois EPA in issuing this notice are: 1) to provide notice to the
Parties of a release or substantial threat of release of hazardous substances or pesticides at
or attributable to the Site and of the necessity to perfonn remedial action; 2) to identify
appropriate actions
for response to the release or the substantial threat of a release of
hazardous substances or pesticides at or attributable to the Site;
and
3)
to
provide an
opportunity for the Parties to perform SUGh response actions. All activities conducted
pursuant
to this Notice are subject to approval by the lllioois EPA and shall be
substantially
consistent with the Illinois Hazardous Substances Pollution Contingency
Plan, 35 Ill. Adm. Code 750, as amended.
m.
FINDINGS OF FACT
The [ollowillg constitutes the facts upon which this Notice is based:
A.
~
OESCR1PTION
The Waste Hauling Landfill ("Sitc") is located
in
the Southeast comer of the Northeast
Quarter of Section Thirteen (13), Township Sixteen (16) North; Range One (1) East of
the Third Principal Meridian, Macon County, J11inois.
The Site includes all areas where contaminants have come to
be
located.
B.
IDENTITY Of CURRENT
OWNER OR OPBRATOR
The Site is owned and operaled by Jerry Camfield
l
SL and Waste Hauling, Inc., 2938
OakmOnt
Dri\le~
Decatll1"t
Illinois 62521.
c.
SITE OPERATIONAL AND REGULATQRY l:!ISTORY
1. The Waste Hauling Landfill is located les&
that
one~quartcr
mile South ofthe
Sangamon River
in
the Southeast comer of the Northeast Quarter of Section
Thirteen (13), Township Sixteen (16) North,. Range One (1) East oOhc Third
Principal Meridian. Macon County. Illinois.
2. The initial Illinois EPA permit (1973-41-0P) was issued in 1913 and the landfill
operated from 1973 to 1992. The Illinois EPA permit was transferred to Jerry
Camfield Sr. and Nita Noland ofWasle Hauling Landfill, Inc. on June 26. 1980.
Also in 1980 the name of the land
fi
11 was changed rrom McKinney LandJ1U to
Waste Hauling. Inc.
3. A Macon County Circuit Court preliminary injunction ceased the landfills'
operation
in May of t 992. This preliminary injunction required Waste Hauling
Landfill to cease and desist from waste disposal operations, remove any leachato
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and close a trench that was open at the time to prohibit any further leachate from
flowing into tbe waters of the State.
4. During an Illinois EPA inspection of the landfill on February 9, 1987, the
following violations were noted: uncovered refuse, blown litter, acceptMlce of
waste without necessary permits and acceptance of special waster without
required manifests.
5. During an JIlinois EPA inspection oftbe landfill on June 29, 1989. the following
violations were noted; refuse in standing water, leachate flowing off-site and open
burning
of
refuse.
6. Ouring an Illinois EPA inspection of the landfill on May 21, 1990, the following
violations were noted; refuse
in standing water, leachate exiling the landfill,
acceptance Qfwastes with
Qut necessafY permits, aC(.'eptancc of waste without
required manifests, failure
to submit reports required by permits or Illinois
Pollution Control Board regulations.
7. Waste Hauling Landfill acceptoo approximately eighty (80) drums of paint sludge
for disposal from Bell Sports. inc. Before accepting the drums, Waste Hauling
Landfill did not test the shipments of waste.
8. In April of 1992, the Ulinois EPA investigated Waste Hauling Landfill under a
criminal search warrant due to allegations that they accepted hazardous waste for
disposal.
A
witness reported that two separate groups of S5-gal1on drums had
been disposed of in the landfill The first was said to have been disposed between
April 7 and April 9 of 1992 and consi$ted of eighty (80) to one hundred (100)
drums containing various clear and multi-colored liquid,> having a "paint thinner"
odor. The second group consisted of one hundred-sixty (160) to two hWldred
(200)
drums
disposed of in April of 1991. Fifty.three (53) drums
w~re
found in
the
urea where the waste was said to have been located. Seven samples were
collected from the: recovered drums and four
ofth~se
samples were found to be
rCLP toxic for 2-butanone and ben7.ene.
9. In May of 1994. a Macon County Health Department inspection finds leachate
exiting the landfill, cover erosion and uncovered waste.
to. In January of 1995, an Illinois EPA inspection finds refuse
in
standing and
flowing water, and leachate exiting
the landfill. Another inspection in March of
the same year finds the same violations along with inadequate depth of fmal
c;over.
11. On April 12, 1995 a meeting was held between the Illinois EPA, Roth and Van
Dyke
of Bell
Sports
and SKS Associates for Waste Hauling Landfill to discuss
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technical remedies regarding closure and post closure care of Waste Hauling
Landfill.
12. In September of 1995, Waste Hauling Landfill. Inc. and Waste Hauling,lnc. filed
a cross-claim against Bell Sports, Inc. requesting that Ben Sports. Inc. be found
liable for civil penalties due
to release of hazardous substances 011 the premises of
the landfill.
13. In May of 1998 the Illinois Pollution Control Board (IPCB) imposed a penalty in
the amount
of $472,000 and attorney fees and costs in the amount 0[$18,535
against Waste Hauling Landfill, Inc. This was in response to several violations
including the transpod, storage and disposal
of hazardous waste. The IPCB also
dismissed the cross"'Clairn between
Waste Hauling Landfill, Inc. and Waste
Hauling, Inc. and Bell Sports, Jnc.
14. An investigation conducted in the summerof2001
by
Earth Tech. Inc. on behalf
ofthe
Illinois EPA documented severe erosion on the slopes cftbe landfill and
sevetal active leaeh
.. te seeps.
In
addition. .a soil Bas sutvey demonstrated
that
landfill gas iii present in off-site locations to the south ofthe landfill.
D.
DEMONSTRATED PRESENCE OF
HM~Q1!~~~!:m~IAl·"...c.ES
OR
PESTICIDES AT SITE
Leachate at the Site has been tested and found
10
contain levels of a number of
contaminants including:
Arsenic. Barium. Chromium. Lead. Mercury. Benzene.
Chlorobenzcne, and Trichloroethene. Numerous seeps have been noted on the East
and
North sides of the landfill and
in
additional locations on the top of the landfill. These
seeps feed into the
surfate drainage of the site which runs in to an intermittent stream on
the northeast side
of
the landfill. This stream is a tributary to the Sangamon River which
is located only a few hundred yards to (he north.
IV. CONCLUSIONS OF LA W
A.
The Site described
jf'
Section lII(A) of this Notice is a facility as
d~fined
in
Section 22.2(h)(l) of the Act. 415 ILCS 5122.2(h)(I).
B.
Each
of the Parties is a "person" as defined in Section 3.26 of the Act. 415 ILeS
513.26.
C.
Materials, wastes and constituents thereof at the Site are "hazardous substances"
as defined in Section 3.14
of the Act, 415 lLCS 5/3.14, or "pesticides" as defined
Itl Section 3.71 ofthe Act, 415
ILeS
513.71.
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D.
The past, present or potential migration of ha7,ardous substances or pesticides
from the Site constitutes an actual Qr substantial threat of "release" as defined in
S~tion
3.33 of the Act, 415 n"cs
513.33.
E,
The Parties ate persons who may be liable for some or aU costs of removal or
remedial action incurred
by
the State of Illinois pursuant
10
Sections 22.2(f) and
58.9(3) of the Act, 415 ILCS 5/22.2(1) and 415 ILCS 5/58.9(a), for a release or
substantial threat of a release of a hazardous Rubstance or pesticide,
V, DETERMINATION
Based on the Findings of Fact and Conclusions of Law set forth above, the Illinois EPA
has detennined that the response actions identified in this Notice are appropriate to
mitigate the release
or substantial threat of a relea.'ie of hazardous substances or pesticides
at or from the She.
VI.IDENTIFlED RESPONSE ACTION
The
Parties shall furnish the necessary personnel, materials, services, facilities. and
othetWise do an things necessary or appropriate to fully comply with the following
provisions:
A.
Speciiically. the Parties shall submit design plans to accomplish the following;
1. diligently comply with
the
Act and the Ulinois Pollution
Control
Board's regulations;
2. properly
cover exposed refuse, contour the Site for
proper drainage. establisb adequate final cover of
compacted clay or another suitable material over the
entire Site and vegetate the final cover;
3. eliminate
the
erosion channels and monitor, control and
eliminate leachate seeping from the
Site~
4.
eDSUll:!
that leachate does not
caulle
or threaten to cause
water pollution
in
minois;
5. ensure that landfill gas is vented properly to prevent
off~sjte
migration
and destruction of vegetation;
6. eliminate ponding on the surface of the Site and conduct any other
maintenance as needed and required by any permit(s) issued by the
Hlinou; EPA, the Act and the lUinois Pollution Control Board's
regulations.
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B.
Assurance that all engineering work performed pursuant to this Notice is fully
documented and under the supervision and certification
of a licensed professi()I'Jal
engineer registered
and
in good standing
in
JIIinois. All document certification
shall be by indelibly inked signature over the author's typed full name, title,
lllinois
registration number, lllinois professional engineer's seal and the date of
signature for the following statement:
I certify under penalty
of law that this document,
supporting documents, and all attachments were prepared
under my direction or supervision. To
the
best of my
knowledge and
belief,
this document, supporting
documents~
and all attachments are true, accurate, and
complete.
All work was completed
in
strict accordance
with the approved plans and specification:>. using sound
engineering practices.
I am aware that there are significant
penalties
for submitting faJ.se information or withholding
material data,
including the possibility of fine and
imprisonment
for knowing
violations.
C.
Acquisition of express written approval
by
the Illinois EPA of all contractors,
sub(:nntractQf~
consultant",.and laboratories used to conduct the work perfonnefl
pursuant to this Notice prior to the initiation of such work.
p,
The Parties are also responsible for operation and maintenance actlVlnes 38
required by the Parties pennit(s) as issued by the Illinois EPA, the Act and the
Pollution Control
Board's regulations.
E. The
P~rties
must provide .financial assurance for the S.te as required by any
permit(s) issued
by
the Illinois EPA, the Act and the Illinois Pollution Control
Board's regulations.
F. TIle Parties shaH comply with the following schedule:
1. Readily approvable design plans, specifications and an Operation and
Maintenance Plan shall
be submitted to the TIIinots EPA Project Manager
within 45 days of the date of this Notice. The documents shall contain
the
certification listed in Section VI (B).
2. Implementation
of the design plan; shall begin within 30 days of Illinois
EPA approval of the design pll1I15.
3. Construction shall he completed within 120 days of H\im}is EPA approval
of the design plans.
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4. A readily approvable final completion report shall be submitted within 45
days of completion of construction. Tho documents shall contaln the
certification listed in Section VI
(a).
5. Annual Operation and Maintenance J>rogrcss Reports shull be submitted
in
November of every year. nle documents shall contain the certification
listed in Seclioli VI (B).
G.
The Parties shall cease and desist from further violations of the Act and the
Illinois Pollution Control Board's regulations.
VU. RESPONSE TO NOTICE AND OPPORTUNITY TO CONFER
A.
Each Party shall respond to the Dtinaie EPA
in
writing within thirty (30) days of
the effective date of this Notice jdentifying the nalure and extent of the corrective
measures that such Party is willing to undertake to comply with the terms and
conditions of Ibis Notlce. If any Party fails to so respond, the 11linois EPA will
wume that such Party refuses to undertake these identified resp<>nse actions and
the lItinois EPA will proceed accordingly. A schedule to which the Parties agree
to bound for the implementation of such measures is included in Section VI(F) of
this Notice. The lUinois EPA will also construe any notice received from the
Parties which
does not commit &aid Parties to perfonn all the work and other
Obligations required
by this Notice as a refusal of said Parties to comply
with
this
Notice.
Each Party shall indicate the appropriate name,
litle~
address and telephone
number for further fJiiflois EPA contact with that Party in this matter.
B.
Except as othetWise indicated)
aU
notifications required of the Parties
by
this
Notice shall
be
sent to:
and to:
Chris Nickell. #24
Project Manager
Remedial Project Manag.ement Section
Division
of Remediation Management
Bureau
of Land
Illinois
Envirownental Protection Agency
P.O. Box 19276
1021 North Grand Avenue East
Springfield, 1I11nojs 6Z794-9276
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CATERPILLAR Mel:
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Kyle Davis, #21
Assistmlt Ct)untlel
DivisitlD of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19276
1021 North Grand Avenue East
Springfield, T1Jinois 62794-9276
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C.
The Parties shall provide to the Illinois EPA project manager ideotWed in Section
. VlI(B) of this Notice five
(S)
copjes of all repoTt$. Mtifications or other
documents submitted to the Illinois EPA in oompliJlnce with this Notice. The
Parties shall provide to the Illinois EPA Assistant Counsel identified in Section
VU(B) of this Notice one copy
of
alI
reporIS. notifiealion$, or other documents
su~mitted
to the Illinois EPA
in
compliance with this Notice. Additional copies
shall be provided upon request of the Illinois EPA.
D.
If any Party
has
knowledge of any person not named
in
tbis Notice who may be
liable for a release or substantial threat of a release of hazardolls substances or
pesticides
at
the
Site, the Dlinois BP A requests tbat the party provide the
identification of such other person
and the
factual basis for assumption ofliabililY
by such person under Sections 22.2(t) and 58.9
oftbe Act, 415 ILeS 5122.2(0 and
415 ILCS
5158.9.
E,
The response required by Section VIl(A) of Uris Notice shall contain a status
report of any discussions or negotiations with. federal. state or JooaJ government
authorities,
OT
any voluntary action or involvement
in
a lawsuit regarding the Site
or contamination attributable to the Site. A copy Qf this written response shall
be
provided to any other party involved
in
those discussions.
F.
The Illinois
E.P
A extends to the Parties an opportunity to
confer
on any matters
addressed in this Notice within
thirty
(30) days of the effective date oftbis Notice.
A
~orencc
at
the
DUnon. EPA's headquarters may be requested by any of
the
Parties through written request directed to the Illinois EPA Assistant Counsel
named
in
Section VU(B) of this Notice. Such request may not delay the Parlies
Y
perfonnance of the identified response action.
VIll. DESIGNATED PROJECT MANAGERS
The project manager for the Illinois EPA
is
identified in Section VII{B). The Parties
shall designate a project manager prior to
the
initiation of any woric or task requited under
Section VI of this Notice. The project manager for the Parties
shall
be responsible for
administering tbe pmlonnance of the Partics' obligations under this Notice.
The
Illinois
EPA's project manager and the Parties' PTojeet manager shall ensure that aU
communications, coordination, repon submittals, correspondence, approvals, and
scheduling
are directed, as appropriate. to the counterpart project manager.
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The Illinois EPA may
designa~c
an on-scene coordinator to augment llIinoil' EPA
supervision of Site Activities and oomplianC{: with the terms and conditions of this
Notice. The on-sc<:ne coordinator
is
supervised
by
the Illinois EPA's project manger.
IX. SAMPLING, ACCESS, AND DATAlDOCUMENf A VAILABILlTY
lue Parties
s~1l
make the results of all sampling, tests or other data generated
by
the
Parties or on the Farties' behalf with respect to impIC'mentation ofthis Notice available to
the Illinois EPA and shan submit such data upon request. The Tllinois EPA shaH
similarly make available to the Parties the results of all sampling, tests, or other data
regarding the Site generated
by
the Ilfinois EPA or on the Illinois EPA's behalf.
At the request of the Illinois EPA, the Parties shall allow split or dnplicate samples to be
taken
by
the Illinois
EPA
and its authorized representatives of any sampJes collected
by
the Parties with respect to the contamination at or attributable to the Site. The Parties
shall notify the Illinois EPA not less than seven (7) calendar days
in
advance of any
sample collection activities. Failure to
sO
notify
th¢
Illinois EPA may invalidate the
results
of such sample analyses fot the purposes of compliance with this Notice.
The lIJinois EPA and any Illinois EPA authorized
representative and the Illinois Attorney
General's Office shall have the
authority to enter and freely move about all property at
the Site at all reasonable times for the putpOse of. inter alia: inspecting records, operating
logs, and contracts related to the Site; reviewing the progress of the Parties
in
carrying out
the terms of this. Notice; conducting such tests
as
the l1Iinois
EPA
may deem necessary;
using a camera,
sound recording, or other docwnentary type equipment; and verifying the
data submitted to the J11inois EPA
by
the Parties. The Parties shall pennit such persons to
inspect and copy all records, files, photographs; docUJt\¢rtts, and other writings, including
aU sampling and monltoring data in any way pertaining to work undertaken pursuant to
this Notice. All persons with access
to the Site pursuant
to
this Section
(If
thi$ Notice
shall comply with an
I11inois EPA-approved Site health and safelY plan.
X. RECORD PRESERVATION
The Parties shall preserve during the pendency of this Notice and for a minimum of six:
(6) years after its termination. all records and documents in the Parties' possession or in
the possession of the Parties' divisions, employees, agents. aCcolmtants, contractors, or
attorneys which
relate in any way to the Site, despite any document retention policy to
the contrary. The Parties may fulfill this obligation by retention on microfilm or other
comparable record keeping. Upon cpmpletion of this six. (6) year period, the Parties shall
notify the lllinois
EPA thirty (30) days prior to the destnlction of any such documents.
Upon
request, the Parti(!g shall make available to the Illinois EPA such records or copies
of such records at no cost to the Illinois EPA. Compliance with this Section shall not be
construed to indicate a waiver orany applicable right orprivilcgc.
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XI. RESERVATION OF RlGHTS
Notwithstanding compliance with the temlS of this Notice. including the completion of
the work set forth
in
Section VI, the Parties are no1 released for liability, if any. for any
costs of removal or remedial action incurred
by
lhe TlUnois EPA at the Site beyond the
scope of this Notice. The Illinois EPA reserves:
A.
The right to take any enforcement action pursuant to the Act or any available leBal
authority, including the right to seek injunctive relief, monetary penalties. and
punitive
damages for any violation oflaw or oftnis Notice.
R
All rights
that
it
may have, including the lllinois EPA's right
both
10 disapprove
of work perfonned by the Parties and to request that the Parties perfonn tasks in
addition to those required in this Notice.
In
the event that Parties decline to
perfonll any additional
tasks,
the IUinois EPA TeSeTVes the right to undertake any
such work.
C.
The right to undertake removal or remedial actions at any time.
D.
The right to seek reirnbul'sement from the Parties thereafter for any and aU costs
Incurred by the State of Illinois related to the release or threatened release of
hazardous suhstances or pesticides at or attributable to the Site.
Xll.ABATBMENTOFENDANGERMENT
In the event that the Director of the Illinois EPA, or the Director's designated
representative, determines
that any activities or circumstances at the Site arc creating an
immediate and significant risk of endangerment to human health or the environment, the
Director may issue a notice to cease further implementation of the identified :response
action. Where the Director halts any tasks for a specified period of time. the Parties may
be given an additional amount of time to complete subsequent tasks. No such extension
shaH be anowed if any delay is attnDutabJe in whole or in part to the acta or omissions
of
any Party, its agents. employees, representatives, contractors of subcontractors. This
additional time may not exceed the actual period during wflich identified response actions .
were halted by the Director. For purposes of the Notice, the designated representative of
the DireclQr includes the minois EPA's project manager and
on~scene
coordinator.
XIll. REIMBURSEl'dENT OF COSTS
The nIinois EPA shall submit to the Parties sununary accountings and requests fur
reimbursement of all response and oversight costs incurred by the State ofIlIinois with
respect to the Site for which each Party is liable. These accountings shall include costs
incurred
by
the ll1inois
EPA
as a result of a release or substantial throat of a release of
hazamous substances or pesticides during (;um:nt and prior State fiscal yC<trS incl\.tding.
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but not limited to, response and oversight costs incurred hy the llJinois EPA prior to the
effective date of this Notice. The Parties shall pay the amount of in satisfaction of
c1aim(s) the State has for all investigation, response and oversight costs it incurs. Costs
include administrative costs, allocated costs, direct costs and indirect costs.
The Parties shall remit a certified check for the amount of the request reimbursement
made payable to Treasurer-State of Illinois,
with
a notation for deposit in the Illinois
Hazardous
Waste Fund, within thirty (30) calendar days of the dale of the request.
Checks should speciaUy identify the Site, the Site's Special Wasto Generator Number and
the Parties' Federal Employer Identification Number W1d should
be
addressed
to
the
following:
Illinois Environmental Protection Agency
Fisca]
Servjces~
#2
P.O. Box 19216
1021 North Grand Avenue East
Springfield, IIlinoi5 62794-9276
The Parties shall also send a copy of the tnmsmittalletter to the Illinois EPA's project
manager identified
in
Section VJI(B) ofthis Notice.
If any of the Parties fail to remit the requested reimbursement to
the
Illinois EPA within
thirty (30)
cal~dar
days of the date of request, the Illinois EPA win assume that the Party
refuses to reimburse such costs and the JJ1inois EPA will proceed accordingly. The
Illinois EPA re5erves the right to bring an action against any of the Parties pursuant to the
Act fot recovery
of all fe.ltponse and oversight costs incurred
by
the State of Illinois
relative to this Notice as weB as any other costs incurred by the State ofllJinois reJative to
response activities conducted pursuant to the Act at tbe Site for which that Party is liable.
XIV. ANNUAL HAZARDOUS WASTE GENERA TOR REPORTS
All hazardous wastes. as defined in Section 3.15 of the Act, 415 ILCS
5/3.15,
generated
at the Site through activities conducted pursuant to this Notice or any subsequent Notice
may
be subject to annual reporting requirements pursuant to 35 111. Adm. Code 722.141.
Hazardous wastes treated. stored or disposed on the Site, or
shipped off
the
Site for
storage, treatment, or disposal during any calendar year shall be ft:pOrted to the Illinois
EPA by no later than the first day of March of (he following year.
RqlOrting
requirements, instructions and current reporting forms are available from the Illinois EPA
by
contacting the following:
Facility Reporting Unit. #24
Planning
and Reporting Section
Bureau
of Land
nIinois Environmental Protection IIlinnis EPA
Electronic Filing - Received, Clerk's Office, September 2, 2009
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Springfield. minois 62794-9276
XV. OTHER CLAIMS
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Nothing in
this
Notice shall constitute Qr be construed as a release or waiver from any
claim, cause of action or demand in Jawor equity against any person. finn, partnership, or
corporation for any liability it may have arising out of or relating in any way to the
presence. generation, storage, tr!?'atmcnt, handling. transportation, release, management or
disposal of any hazardous substances, hazardous wastes, pollutants, or conta!ninanlS
found at. taken to, or taken from the Site.
XVI. OTHER APPLICABLE LAWS
All actions required to be taken pursuant to this Notice shall be undertaken in accordance
with
the
requirements of aU applicable local. state, and federal laws and regulations.
XVIT. EFFECfTVE DATE AND SUBSEQUENI MODJFICATION
The effective date of this Notice is the date 011 whic:h
it
was posted by Certified Mail to
the Parties. Such date is identified below the Director's signature block at tho close of
this Notice.
The fI1inois EPA may amend this Notice. Such amendment 5hall be in writing and shall
he effective on the date on which it was posted by Certified MaH to the Parties.
Any reports.. plans,
specificatioJls~
schedules. and attachments required by this Notice arc,
upon appwval
by
the minois BPA, incorporated into the lenns und cooditions of this
Notice.
Any non-compliance with such Illinois EPA-approved reports, plans,
specificatiolls, schedules, and
attaChments shaH
be
considered a failure to comply with
the
terms
and conditions of this Notice.
No informal advice, guidance, suggest'ons, or comments by the TJHnois EPA regarding
reports, plans, specifications, schedules, or any other documents submitted by the Parties
will relieve the Parties of their obligation to ohtain such fannat approval as may
be
required by this Notice.
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xvm.
PARTIES BOUND
This Notice shall apply to and be binding upon the Parties and their subsidiaries.
principals, estates, officers, directors, agents, representatives, successors,
and assignees
and upon all persons, contractors, subcontractors and consultants acting under or for
either the Parties or the Illinois EPA or both. No change in ownership or corporate or
partnership status relating to the Site will in any way alter the Parties' responsibility
under this Notice. The Parties shall
be
responsible for carrying oui all activities required
of the Panies under this Notice.
XIX. FAILURE TO COMPL Y WITH TillS
NOTICE
Pursuant to Section 22.2(k) of the Act, 415 ILCS
5/22.2(k),
if any Party fails without
sufficient cause to perfonn the identified response action in accordance with the terms
and conditions
of this Notice, the party may be liable to the State oflllinois for punitive
damages in an amount that is equal to three (3) times
the
amount of costs incurred
by the
State of llJinois as the result of that Party's failure to perfoml the identified response
action.
Any
such punitive damages shall
be
assessed in addition to costs otherwise
recovered from the Parties pursuant to Section 22.2(0 and 58.9 of the Act. 415 ILCS
5/22.2(f)
and 415 ILCS
5158.9.
and in additiQn to
any
other penalty or relief provided
by
the Act, 415 ILCS
511
et seq .• or any other law.
xx.
TERMINATION AND SATISFACTION
The provisions oftbis Notice shan be deemed
~tisfied
upon the Parties receipt of written
notice
from the Illinois EPA that the Parties have demonstrated, to the satisfaction of the
Ulinois EPA. that all of the requirements. terms and conditions of this Notice, including
any additional tasks which the Illinois EPA has determined to be necessary. have been
completed.
Date:
5'
II
In 102.
By:
~
ee Cipriano, Director
Illinois Environmental Protection Agency
Dale of Mailing:
5\ Q\oa
Electronic Filing - Received, Clerk's Office, September 2, 2009
EXHIBIT B
Electronic Filing - Received, Clerk's Office, September 2, 2009
CATERPILLAR-
Chris Nickell, #24
Project Manager
Remedial Project Management Section
Division
of Remediation Management
Bureau
of Land
Illinois Environmental Protection Agency
P.O. Box 19276
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
Kyle Davis,
#21
Assistant Counsel
Division
of Legal Counsel
Illinois Environmental Protection Agency
P.O, Box 10726
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
Caterpillar Inc.
100 NE Adams Street
Peoria,
Illif'lOlS 61629
June 13, 2002
Subj ect: Waste Hauling Landfill Landfill LPC No. 115801000 1
Gentlemen:
I am writing on behalf
of Caterpillar Inc: with respect to the Illinois Environmental Protection
Agency's (hereinafter "Agency") Notice Pursuant
of Sections 4(q) and 58.9(b) of the
Environmental Protection Act, dated May
13, 2002 with an effective date of May 17, 2002,
(hereinafter "Notice") with respect
to the above-referenced site. This response should not in any
way be interpreted as an admission ofliability with respect
to the site.
The Notice names "Caterpillar Tractor"
as one of two-dozen "Parties." The Notice also states
that each Party shall respond within 30 days
of the Notice's effective date committing to
undertake response actions at the site.
It is not reasonably possible for Caterpillar to respond to the Notice in the manner required by
the Agency within the time frame specified by the Agency. As you know, the Site Operational
and Regulatory History section
of the Notice does not mention Caterpillar or indicate the basis
on which Caterpillar might be liable under the Act.
If the Agency has infonnation indicating
Caterpillar's liability, we would appreciate
if you would provide that infonnation to Caterpillar
immediately.
It
appears the Notice contemplates that the "Parties" coordinate with each other in providing a
response. See Notice
§ VIlA (stating that IEPA seeks a response committing the Parties to
"perform all the work"). Indeed, since receiving the Notice Caterpillar has discussed the site
with a listed Party, and will continue with and expand upon such discussions. However,
it is not
practical for the
24 named parties to communicate and reach a consensus within the short
30~day
time frame.
Caterpillar intends to consult with the Agency and other Parties in an effort to determine whether
and to what extent Caterpillar may be liable for response action at the site, appropriate response
action, and other related matters.
Please direct further Illinois EPA contact with Caterpillar to me at the address and phone number
indicated herein.
Telephone: 309/675-4277
Facsimile:
309/675-6620
Yours truly
~/~
Timothy J. Callanan
Attorney
Electronic Filing - Received, Clerk's Office, September 2, 2009