1. COMPLAINT
R~
CE~VEE4~
CLERR’S
OFFJ(’p
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
SEP
0
5
2003
The CITY
OF CHICAGO,
)
STATE OF ILLI
an
Illinois municipal corporation,
)
Pollution
Control Board
Complainant,
)
v.
)
PCB
____
)
PTJREX INDUSTRIES, INC.,
)
(Enforcement—Land,
Citizens)
a Delaware corporation,
)
FEDERAL CHICAGO CORP.,
)
an Illinois corporation,
and
)
FEDERAL DIE CASTING CO.,
)
an Illinois corporation,
)
RAYMOND E. CROSS, an individual,
)
)
Respondents.
)
NOTICE OF FILING AND COMMENCEMENT OF ENFORCEMENT PROCEEDING
To:
See attached service list
PLEASE TAKE NOTICE that I shall
today file with the Office of the Clerk of the
Pollution Control Board the Complaint ofthe City ofChicago, a copy of which is herewith
served upon you.
Service and filing of this complaint commences an enforcement proceeding
against you.
You may be required to attend a hearing on a date set
by the Board.
Failure to file an answer to
this complaint within
60 days may have severe consequences.
Failure to answer will mean that all allegations
in the complaint will be taken as if admitted for
purposes of this proceeding. Ifyou have any questions about this procedure, you should contact
the hearing officer assigned to this proceeding, the Clerk’s Office or an
attorney.
Dated: September
5,
2003
THE CITY OF CHICAGO
Diane M. Pezanoski
Mara S. Georges
Deputy Corporation Counsel
Corporation Counsel
George D. Theophilos
ChaflesAJGng
By:
__________
Assistant Corporation Counsel
ssistant C~porationC&ii~el
Chicago Department ofLaw
30 N.
LaSalle St.,
Suite 900
Chicago, IL 60602
(312) 742-0330
SERVICE LIST
Jeffrey M.
Smith
19782
MacArthur Blvd.,
Suite 260
Irvine, CA 92612
Authorized agent ofPurex Industries,
Inc.
served via Federal Express courier service
United States Corporation Company
2711
Centerville Rd., Suite 400
Wilmington,
DE
19808
Registered agent ofPurex Industries,
Inc.
served via Federal Express courier service
Cary R. Penman
Latham &
Watkins
5800 Sears Tower
233
South
Wacker Drive
Chicago, Illinois 60606
Attorney and agentfor all other respondents
served via
messenger
CERTIFICATE OF SERVICE
I, Charles
A. King,
an attorney, certify that I have served the attached
Notice of Filing
and Commencement of Enforcement Proceeding
and
Complaint
upon the persons
listed
above in the method indicated on September
5,
2003.
RE CE iV~D
CLERK’S
OFF!flF
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
SEP
05
2O~J3
STATE OF ILLINOIS
The CITY OF CHICAGO,
)
Pollution
Control Board
an
Illinois municipal corporation,
)
)
Complainant,
)
)
v.
)
PCBO~/_~
)
PUREX INDUSTRIES, INC.,
)
(Enforcement—Land,
Citizens)
a Delaware corporation,
)
FEDERAL CHICAGO CORP.,
)
an Illinois corporation, and
)
FEDERAL DIE CASTING CO.,
)
an
Illinois corporation,
)
RAYMOND E. CROSS, an
individual,
)
)
Respondents.
)
COMPLAINT
The City ofChicago (“City”), by its attorney, Mara S. Georges, Corporation Counsel,
for
its
Complaint against the above-named respondents (collectively, “Respondents”) states as
follows:
STATUTORY BASIS FOR ACTION
1.
This action is brought before the Board pursuant to
Sections 22.2(i) and 3 1(d) of
the Environmental Protection Act (“Act”), 415
IILCS
5/22.2(i)
and 31(d).
PARTIES
2.
The City is an
Illinois municipal corporation located in Cook County, Illinois.
3.
Purex Industries,
Inc.
(“Purex”) is
a Delaware corporation with its principal place
of business located at 535
E.
Alondra Boulevard, Gardena, California
90248.
4.
Federal Chicago Corp.
(“Federal
Chicago”) is an Illinois
corporation with its
principal place ofbusiness located at
925
Martin Luther King Jr.
Drive, North Chicago, Illinois
60064.
5.
Federal Die Casting, Inc.
(“Federal Die”) is
an Illinois corporation with its
principal place ofbusiness located at 925 Martin Luther King Jr.
Drive, North Chicago, Illinois
60064.
Federal Die
is a wholly-owned subsidiary ofFederal Chicago.
6.
Raymond E. Cross (“Cross”) is a natural person, and a citizen and resident ofthe
State of Illinois.
Cross resides at 910 N.
Green Bay Road, Lake Forest, Illinois 60045.
THE SITE
7.
This case involves the parcel ofproperty located at 2228 N. Elston Avenue in
Chicago, Illinois
(“Site”),
legally described as follows:
LOTS
1
TO 4,
INCLUSIVE, IN BLOCK 4 IN FULLERTON’S
ADDITION TO CHICAGO BEING A SUBDIVISION OF THAT
PART OF
THE SOUTHEAST 1/4
OF SECTION 30, TOWNSHIP
40 NORTH, RANGE
14 EAST
OF THE THIRD PRINCIPAL
MERIDIAN LYING WEST OF THE NORTH BEND OF THE
CHICAGO RIVER AND THAT PART OF THE NORTH
1/2 OF
THE NORTHEAST
1/4 OF SECTION 31, TOWNSHIP 40
NORTH, RANGE
14 EAST OF THE THIRD
PRINCIPAL
MERIDIAN, IN COOK COUNTY, ILLINOIS.
OWNERSHIP OF AND OPERATIONS AT THE SITE
Purex
8.
On information and belief, a firm known as T. F. Washburn (“Washburn”)
acquired lots 2,
3
and 4 of the Site in
1913, and
lot
1
of the Site in
1935.
9.
Purex is the successor through a series of corporate mergers to Washburn
and
other entities that conducted varnish operations at the Site during the period from
1913 through
1978,
including operations involving underground storage tanks (“USTs”) located under Lots
1
through 4.
2
10.
On information and belief,
Washburn installed and operated
17 USTs at the Site
including, but not limited to, the following:
a 2,000 gallon naphtha UST (Oct.
5,
1948); a 5,000
gallon fuel oil UST (Feb.
15,
1949);
a 10,000
gallon naphtha UST (June 16,
1953);
and
three
5,000 gallon solvent USTs (May
16,
1960).
11.
On information and belief, in
connection with its
varnish operations, Washburn
andlor Purex stoned,
disposed of or abandoned oils,
solvents, varnish-related products and by-
products, PCB-containing materials, and petroleum related products and by-products in each of
the
17 USTs at the Site.
Federal Chicago and Federal Die
12.
On information
and belief, prior to
1978, Federal Chicago or Federal Die
conducted die casting operations at a facility adjacent to the Site.
13.
On information
and belief, on or about December
14,
1978, Federal Chicago
acquired the Site, and
Federal Chicago or Federal Die extended its die casting operations onto the
Site.
14.
On information
and belief, in connection with their die casting operations, Federal
Chicago or Federal Die stored, disposed
of, or abandoned oils, solvents, varnish-related products
and by-products, PCB-containing materials, and petroleum related products and by-products in
each ofthe
17 USTs at the Site.
Cross
15.
On information and belief, during the period 1978 through January 2000, Cross
was a shareholder, officer and director ofboth Federal Die and Federal Chicago.
16.
On information and belief, from October 19,
1983, until January
1, 2000, Cross
3
was the beneficial
owner ofthe Site.
17.
On information and
belief, during the period
1983 through January 2000,
Cross,
or land trustees for Cross’
benefit, leased the Site to
Federal Die for use in conducting its
die
casting operations.
18.
On information and belief,
during the period 1978
through January 2000, Cross
beneficially owned, operated, possessed, controlled or had authority over the Site, and the die
casting and
UST operations conducted there, including Federal Die’s or Federal Chicago’s
storage, disposal or abandonment ofoils, solvents,
varnish-related products and by-products,
PCB-containing materials, petroleum related products and by-products, waste tires, bricks
and
other discarded materials.
POLLUTION
19.
On information and belief, between 1970 and 2000, during the Respondents’
ownership ofthe Site, the USTs under the Site leaked oils, solvents, varnish-related products and
by-products, PCB-containing materials, and petroleum related products and by-products into the
soil under and around the Site.
20.
Under Section 3.535 ofthe Act, 415
ILCS
5/3.535,
“waste” includes “any...
discarded material, including solid,
liquid, semi-solid, or contained gaseous material resulting
from industrial..
.
openations.”
21.
Under the foregoing definition, the material leaked from the USTs on the Site is
waste.
22.
On information
and belief, some ofthe materials that leaked from the USTs on the
Site were hazardous substances.
4
COUNT I:
COST RECOVERY
UNDER SECTION 22.2(1) OF THE ACT
23.
Paragraphs
1
through
22, inclusive, are hereby realleged and incorporated by
reference as paragraph 23
ofCount I.
24.
Under Section
3.33 ofthe Act, 415
ILCS
5/3.33, “Release’ means any spilling
or
leaking.
.
.
into the environment.”
25.
On information and belief, at some point prior to 2000,
releases ofhazardous
substances occurred at the Site.
26.
On information and belief, each of the Respondents owned or operated the Site
when the releases ofhazardous substances occurred, and/or owned or operated the Site at the
time ofdisposal ofhazardous substances, of which there was a subsequent release.
27.
Section 22.2(f) of the Act, 415 ILCS
5/22.2(f),
provides in relevant part:
Notwithstanding any other provision or rule oflaw, and subject
only to
the defenses set
forth in
subsection (j) of this Section, the
following persons shall be liable for all
costs ofremoval or
remedial action
incurred by.
.
.
any unit oflocal government as a
result ofa release.
.
.
ofa hazardous substance.
(1)
the owner and operator ofa facility.
.
.
from which there is
a release.
.
.
of a hazardous substance...;
(2)
any person who at the time ofdisposal.
.
.
ofa hazardous
substance.
.
.
owned or operated the facility.
.
.
used for
such disposal.
.
.
from which there was a release.
.
.
ofany
such hazardous substance.
***
In accordance with the other provisions of this Section, costs of
removal or remedial action incurred by a unit oflocal government
may be recovered in an
action before the Board brought by the unit
oflocal government under subsection (i) of this Section. Any
monies so recovered shall be paid to
the unit of local government.
5
28.
The City, a municipality, is
a unit of local government.
29.
Under Section
22(1), the Respondents are liable for all costs ofremoval
or
remedial action incurred by the City.
30.
As ofthe date offiling ofthis
Complaint, the City has incurred costs ofover
$200,000 through remedial action in
connection with the releases ofhazardous substances at the
Site, and will incur additional
costs in the future.
WHEREFORE, the City requests that the Board adopt an
order:
A.
Finding that
each of the Respondents is liable for the City’s costs incurred in
undertaking remedial action
at the Site;
B.
Ordering the Respondents jointly and severally to pay to the City the amount of
response costs incurred by the City through the close ofevidence in this case;
C.
Ordering the Respondents to reimburse the City for future costs incurred in
undertaking remedial action at the Site; and
D.
Granting such other and further relief as is appropriate.
COUNT II:
VIOLATION OF SECTION 2 1(a) OF
THE ACT
31.
Paragraphs
1 through 22, inclusive,
are hereby realleged and incorporated by
reference as paragraph
31 ofCount II.
32.
Section
21(a) ofthe Act (415 JLCS 5/21(a)) provides that “No person shall...
cause
or allow the open dumping ofany waste.”
33.
Under Section 3.305 ofthe Act (415 ILCS 5/3.305), “open dumping” means “the
consolidation ofrefuse from one or more sources at a disposal site that does not fulfill the
requirements ofa sanitary landfill.”
6
34.
Under Section 3.385 ofthe Act, 415
ILCS
5/3.385,
“refuse” means “waste”.
35.
Under Section 3.185 ofthe Act, 415
ILCS 5/3.185, “disposal” includes “the
discharge or
leaking ofany waste or hazardous waste into or on
any land.
.
.
so that such waste
or hazardous waste or any constituent thereof may enter the environment or be emitted
into the
air or discharged into any waters,
including ground waters.”
36.
Based on
the foregoing statutory provisions, the Site is a disposal site.
37.
The Site does not meet the requirements of a sanitary landfill.
38.
Based on the foregoing statutory provisions, open dumping occurred at the Site.
39.
Respondents caused or allowed the open dumping that occurred at the Site, in
violation ofSection 21(a) of the Act.
40.
As
a result ofRespondents’
violation, soil at and around the Site has been
contaminated.
41.
As ofthe date offiling of this complaint, the City has spent over $200,000
remediating contamination at and around the site, and will incur additional costs in the future.
42.
Under these circumstances, an appropriate response to
a finding of violation by
the Respondents would be an order directing the Respondents to
reimburse the City for funds
expended, past and future, to remediate
contamination at and around the Site.
WHEREFORE, the City requests that the Board adopt an
order:
A.
Finding that each ofthe Respondents
is liable for violation of Section
2 1(a) of the
Act;
B.
Directing the Respondents jointly and severally to reimburse the City for funds
expended remediating contamination resulting from leaking USTs at the Site;
7
C.
Holding that Respondents are responsible for all future costs ofremediation of
contamination at and around the Site from
leaking USTs;
and
D.
Granting such other and further relief as is appropriate.
COUNT III:
VIOLATION OF SECTION 21(b) OF THE ACT
43.
Paragraphs
1
through 22, inclusive, are herebyrealleged and incorporated by
reference as paragraph 43 ofCount
HI.
44.
Section 21(b) ofthe Act,
415 ILCS 5/21(b), provides that no person shall:
Abandon, dump, or deposit any waste upon the public highways or
other public property, except in
a sanitary landfill approved by the
Agency pursuant to regulations
adopted by the Board.
45.
During the time Respondents owned or controlled the Site, waste disposed ofon
the Site migrated onto public property adjacent to
the Site.
46.
The public property adjacent to the Site, onto which the waste migrated, is not an
approved sanitary landfill.
47.
Respondents abandoned waste upon public property, in violation ofSection 21(b)
of the Act.
48.
As
a result of Respondents’
violation, soil on public property adjacent to the Site
has been contaminated.
49.
As ofthe date offiling ofthis
complaint, the City has spent over $200,000
remediating contamination at and around the Site,
including on public property adjacent to the
Site, and will incur additional
costs in the future.
50.
Under these circumstances, an appropriate response to a finding ofviolation by
the Respondents would be an order directing the Respondents
to reimburse the City for funds
8
expended, past and
future, to
remediate contamination at and around the Site.
WHEREFORE, the City requests
that the Board adopt an order:
A.
Finding that
each of the Respondents is liable for violation of Section 2 1(b) ofthe
Act;
B.
Directing the Respondents jointly and severally to reimburse the City for funds
expended remediating contamination resulting from
leaking USTs at the Site;
C.
Holding that
Respondents are responsible for all future costs of remediation of
contamination at and around the Site
from leaking USTs; and
D.
Granting such other and further relief as is appropriate.
COUNT IV: VIOLATION OF SECTION 2 1(e) OF THE ACT
51.
Paragraphs
1
through
22, inclusive, are hereby realleged and incorporated by
reference as paragraph 51
of Count IV.
52.
Section
2 1(e) of the Act, 415
ILCS 5/21(e), provides that no person shall
“dispose.
.
.
or abandon any waste.
.
.
except at a site or facility which meets the requirements
ofthis Act
and ofregulations
and standards thereunder.”
53.
The Site does not meet the requirements ofthe Act or regulations adopted
thereunder for disposal ofwaste.
54.
By disposing ofand/or abandoning waste at the Site, the Respondents have
violated Section
2 1(e).
55.
As a result of Respondents’ violation, soil
at and around the Site has been
contaminated.
56.
As ofthe date of filing ofthis
complaint, the City has spent over $200,000
9
remediating contamination at and around the
site, and will incur additional costs in the future.
57.
Under these circumstances, an
appropriate response to a finding ofviolation by
the Respondents would be an order directing the Respondents to reimburse the City for funds
expended, past and future, to
remediate contamination at and around the Site.
WHEREFORE, the City requests that the Board adopt an order:
A.
Finding that each ofthe Respondents is
liable for violation ofSection
2 1(e) ofthe
Act;
B.
Directing the Respondents jointly and severally to reimburse the City for funds
expended remediating contamination resulting from leaking USTs at the Site;
C.
Holding that Respondents are responsible for all future costs of remediation of
contamination at and
around the Site from leaking USTs;
and
D.
Granting such other and further relief as is appropriate.
COUNT V:
VIOLATION OF SECTION 21(1) OF THE ACT
58.
Paragraphs
1
through 22, inclusive, are hereby realleged and incorporated by
reference
as paragraph 58 ofCount V.
59.
Section 21(f) ofthe Act provides in relevant part that no person shall:
(1)
Conduct any..
.
hazardous waste-disposal operation:
(1)
without a RCRA permit for the site issued by the
Illinois
Environmental Protection
Agency under
subsection (d) ofSection 39 ofthis Act.
.
.;
or
(2)
in violation of any regulations or standards adopted
by the Board under this Act.
60.
On information
and belief, Respondents disposed ofhazardous waste at the site.
61.
By disposing ofhazardous waste at the Site, the Respondents conducted a
10
hazardous-waste disposal operation at the Site.
62.
Respondents never had a RCRA permit for the Site issued by the Illinois
Environmental Protection Agency.
63.
By conducting a hazardous waste-disposal operation without a RCRA permit,
Respondents violated Section 21(1) of the Act.
64.
As
a result ofRespondents’
unpermitted disposal of hazardous waste
at the Site,
soil at and around the Site has been contaminated.
65.
As ofthe date of filing of this complaint, the City has spent over $200,000
remediating contamination at and around the site, and will incur additional costs in the future.
66.
Under these circumstances, an
appropriate response to
a finding ofviolation by
the Respondents would be
an order directing the Respondents to
reimburse the City for funds
expended, past and future, to remediate contamination
at and around the Site.
WHEREFORE, the City requests that the Board
adopt an
order:
A.
Finding that each ofthe Respondents is liable for violation ofSection 21(1) ofthe
Act;
B.
Directing the Respondents jointly and severally to reimburse the City for funds
expended remediating contamination resulting from leaking USTs at the Site;
C.
Holding that Respondents are responsible for all future costs ofremediation of
contamination at and around the Site from leaking USTs; and
D.
Granting such other and further relief as is appropriate.
11
COUNT VI: SECTION 2 1(m)
OF THE ACT
67.
Paragraphs
1
through 22, inclusive,
are hereby realleged and incorporated by
reference as paragraph 67
ofCount VI.
68.
Section
2 1(m) ofthe Act provides in relevant part that no person shall “transfer
interest
in any land which has been used as a hazardous waste disposal site without written
notification to
the Illinois
Environmental Protection
Agency of the transfer and to the transferee
of the conditions imposed by the Agency upon its use under
415
ILCS 5/39(g).”
69.
On information and belief,
the Site was used as a hazardous waste disposal site
while owned by Purex’s predecessors.
70.
On information and belief, Purex’s predecessors transferred interests in the Site
without written notification to the Illinois Environmental Protection Agency.
71.
On information and belief,
the Site was used as a hazardous waste disposal site
while owned by Federal Chicago.
72.
On information and belief, Federal Chicago transferred its interest in the Site
without written notification to the Illinois Environmental Protection Agency.
73.
On information and belief, the Site was used as a hazardous waste disposal site
while beneficiallyowned by Cross.
74.
On information and belief,
Cross caused an interest
in the Site to be transferred
without written notification to
the Illinois Environmental Protection Agency.
12
WHEREFORE, the City requests that the Board adopt an order:
A.
Finding that Purex, Federal Chicago, and Cross are liable for violations of
Section
2 1(m) of the Act;
B.
Imposing
an appropriate penalty or other appropriate remedy; and
C.
Granting such other relief as is appropriate.
Respectfully submitted,
THE CITY OF CHICAGO
Mara S.
Georges
Corporation Counsel
By:
Diane M. Pezanoski
Deputy Corporation Counsel
George D. Theophilos
Senior Counsel
Charles A. King
Assistant Corporation Counsel
Chicago Department ofLaw
30 N. LaSalle St.,
Suite 900
Chicago, IL 60602
(312) 742-0330
13

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