NOTICE OF FILING
BEFORE THE
STATE OF
ILLINOIS
ILLINOIS POLLUTION CONTROL BOARD
Pollution Control Board
THE THEODORE KOSLOFF TRUST )
(As formed by the irrevocable Agreement of )
Trust of Theodore Kosloff, dated
)
December 6, 1989, for Rachel Kosloff and )
Abigail Kosloff, a Pennsylvania trust),
)
Complainant,
)
PCB 06-163
vs.
)
A&B WIREFORM CORPORATION,
)
Respondent .
)
TO :
Mr. Sean Bezark
Bradley P . Halloran, Hearing Officer
Greenberg Traurig
Illinois Pollution Control Board
77 West Wacker Drive
James R. Thompson Center, Suite 11-500
Suite 2500
100 W. Randolph Street
Chicago, IL 60601
Chicago, IL 60601
PLEASE TAKE NOTICE that we have this day filed with Illinois Pollution Control
Board, Respondent's Motion for Leave to File Answer Instanter, a copy of which is herewith
served upon you.
John
ilk
Rothschild, Barry & Myers
55 West Monroe Street, Suite 3900
Chicago, IL 60603
(312) 372-2345
PROOF OF SERVICE
The undersigned attorney certifies that a copy of Respondent's Notice of Filing and Motion
for Leave to File Answer Instanter was served upon Sean Bezark and Bradley P . Halloran at their
addresses listed above by depositing the same in the U .S. Mail with proper first-class postage prepaid
this 28`h
day of February, 2007 .
John D . Silk
RECEIVEDCLERKS
OFFICE
State of Illinois
POLLUTION CONTROL BOARD
JAMES R . THOMPSON CENTER
100 W
. RANDOLPH STREET, SUITE 11-500
CHICAGO, ILLINOIS 60601
MOTION FOR LEAVE TO FILE ANSWER
INSTANTER
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
RECEIvrf
CLERK'S
OFFICE
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Pollution
STATE OFControl
ILLINU9o<xrr,
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THE THEODORE KOSLOFF TRUST
)
(As formed by the Irrevocable Agreement of )
Trust of Theodore Kosloff, dated
)
December 6, 1989, for Rachel Kosloff and )
Abigail Kosloff, a Pennsylvania trust),
)
Complainant,
)
PCB 06-163
vs.
)
A&B WIREFORM CORPORATION,
)
Respondent .
)
Respondent, A&B Wire Form Corporation, for its Motion for Leave to File
Answer
Instanter, states:
1
. This Motion is directed to the hearing officer .
2 .
Complainant filed its Complaint in this matter on May 3, 2006.
3 . 35111 . Adm. Code 103
.204 (d) states:
Except as provided in subsection (e) of this Section, the respondent may file an
answer within 60 days after receipt of the complaint if respondent wants to deny any
allegations in the complaint
. All material allegations of the complaint will be taken as
admitted if no answer is filed or if not specifically denied by the answer, unless
respondent asserts a lack of knowledge sufficient to form a belief
. Any facts
constituting an affirmative defense must be plainly set forth before hearing in the
answer or in a supplemental answer, unless the affirmative defense could not have
been known before hearing .
4 . Respondent did not file its answer within 60 days after receipt of the Complaint,
because it did not understand that it was required to file a written answer
. Respondent did not
appear at multiple telephonic hearings, because it thought it had satisfied Complainant when it
removed the containers that Complaint had complained about from its property . Respondent
was not represented by counsel until a few days prior to the most recent telephonic hearing on
February 15, 2007 .
5 . 35 111. Admin. Code 101
.522 provides
:
The Board or hearing officer, for good cause shown on a motion after notice to the
opposite party, may extend the time for filing any document or doing any act which is
required by these rules to be done within a limited period, either before or after the
expiration of time .
6
. Illinois courts often allow the late filing of a pleading as opposed to finding that
-2-
certain allegations are deemed admitted . E.g. Bluestein v. Upjohn Co., 102 I11.App.3d 672, 430
N .E.2d 580, 584 (1" Dist . 1981) (defendant allowed to file response to requests to admit nine
months after requests served) .
7 .
Here, there is good cause to allow the filing of the Respondent's Answer, a copy
of which is attached hereto as Exhibit A . Respondent's failure to file a written answer or appear
at the initial telephonic hearings was not done in bad faith . Respondent did not understand its
legal obligation to file a written answer and misinterpreted the initial notices it received from the
Board. As soon as Respondent became aware of its obligation, it appeared at the next scheduled
telephonic hearing and, shortly thereafter, retained counsel .
8 .
It is in the interests of justice to allow Respondent an opportunity to defend this
matter on the merits rather than to have the allegations of the Complaint deemed admitted .
9 .
Allowing the filing of the Answer will not prejudice Complainant . Complainant
sold the property that it alleges was contaminated prior to the filing of its Complaint .
WHEREFORE, Respondent A&B Wire Form Corporation requests that its Motion
for Leave to File Answer Instanter be granted .
Respectfully submitted,
Attom
for Respondent
A&B Wire Form Corporation
John D. Silk
Rothschild, Barry & Myers
55 West Monroe Street
Suite 3900
Chicago, IL 60603
(312) 372-2345
-3-
State of Illinois
POLLUTION CONTROL BOARD
JAMES R
. THOMPSON CENTER
100 W . RANDOLPH STREET, SUITE 11-500
CHICAGO, ILLINOIS 60601
ANSWER OF RESPONDENT TO FORMAL COMPLAINT
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
THE THEODORE KOSLOFF TRUST )
(As formed by the Irrevocable Agreement of )
Trust of Theodore Kosloff, dated
)
December 6, 1989, for Rachel Kosloff and )
Abigail Kosloff, a Pennsylvania trust),
)
Complainant,
)
PCB 06-163
vs.
)
A&B WIREFORM CORPORATION,
)
Respondent .
)
Allegation 1 :
Complainant's name, street address, county, state:
The Theodore Kosloff Trust
c/o Sean Bezark
Greenberg Traurig, LLP
77 West Wacker Drive, Suite 2500
Chicago, IL 60601
Phone
: (312) 476-5027
RESPONSE :
Admitted.
Allegation 2:
Place where Complainant can be contacted during normal business hours (if
different from above) :
The Theodore Kosloff Trust
c/o Sean Bezark
Greenberg Traurig, LLP
77 West Wacker Drive, Suite 2500
Chicago, IL 60601
Phone: (312) 476-5027
RESPONSE : Admitted.
Allegation 3 :
Name and address of Respondent (alleged polluter) :
A&B Wireform Corporation
ATTN: Mr
. Connor Creevy
7525 Industrial Drive
Forest Park, IL 60130
RESPONSE : Respondent denies that "A&BWireform Corporation" is the correct
legal name of Respondent . Respondent admits that its address is 7525 Industrial Drive, Forest
Park, IL 60130 .
Allegation 4: Respondent A&B Wireform Corporation maintains an exterior drum storage area
in the northwestern comer of its property, located at 7525 Industrial Drive, Forest Park, Illinois
(the "A&B Property")
. The drum storage area is located along the property line, directly adjacent
to property formerly owned by The Theodore Kosloff Trust, located at 7609 Industrial Drive,
Forest Park, Illinois ("the Trust Property") . Upon information and belief, releases of hazardous
substances from 55-gallon drums and containers of unknown substances in the drum storage area
have migrated onto the Trust Property and impacted soil . The Theodore Kosloff Trust has
incurred investigation and remediation costs to address the contamination migrating from the
A&B Property, and suffered diminution in the value of the Trust Property (as evidenced by a
-2-
substantial concession in the sale price of the Trust Property directly attributable to the
contamination caused by Respondent described herein)
.
RESPONSE :
Respondent denies that it currently maintains an exterior drum storage
area in the northwestern comer of its property located at 7525 Industrial Drive, Forest Park,
Illinois
. Respondent admits that for a brief period of time, certain containers were stored along
the property line that is adjacent to the property located at 7609 Industrial Drive, Forest Park,
Illinois
. Respondent lacks knowledge or information sufficient to form a belief as to whether the
property located at 7609 Industrial Drive, Forest Park, Illinois was formerly owned by The
Theodore Kosloff Trust . Respondent denies that releases of hazardous substances from 55-
gallon drums and containers of unknown substances in the drum storage area have migrated onto
the Trust Property and impacted soil
. Respondent lacks knowledge or information sufficient to
form a belief as to whether the Theodore Kosloff Trust has incurred investigation and
remediation costs to address the alleged contamination allegedly migrating from the A&B
Property, and suffered diminution in the value of the Trust Property
. Respondent denies that any
contamination migrated to the Trust Property from the A&B Property
. Respondent lacks
knowledge or information sufficient to form a belief as to whether there was a substantial
concession in the sale price of the Trust Property
. Respondent denies that any concession in the
sale price of the Trust Property is directly attributable to the alleged contamination allegedly
caused by Respondent, and Respondent denies that it caused any contamination
.
Allegation 5
: Respondent A&B Wireform Corporation ("A&B") has violated and, upon
information and belief, continues to violate, inter alia, sections 21 (d) and (e) of the Illinois
Environmental Protection Act (415 ILCS 5/21 ) .
RESPONSE : Denied.
Allegation 6: Hazardous substances consisting of, inter alia, polycyclic
aromatic hydrocarbons
("PAHs"), migrated from the drum storage area on the A&B Property onto the immediately
adjacent Trust Property, resulting in concentrations of PAHs in soil on the Trust Property in
excess of Illinois soil remediation objectives ("SROs") .
RESPONSE : Respondent lacks knowledge or information sufficient to form a belief
as to whether there are concentrations of PAHs in the soil on the Trust Property in excess of
Illinois soil remediation objectives . Respondent denies the remaining allegations of this
paragraph .
Allegation 7 : The pollution was first identified in a Phase I Environmental Site assessment of the
Trust Property, dated September 1, 2005, prepared by Bradbume, Briller and Johnson, LLC
("BB&J').
On information and belief, A&B has stored chemicals and waste material in the drum
-3-
storage area in the northwest corner of the A&B Property for an extended period of time, and
continues to do so, resulting in the release and migration of hazardous substances onto the Trust
Property as described above
.
RESPONSE
:
Respondent lacks knowledge or information sufficient to forma belief
as to whether pollution was identified in a Phase I Environmental Site assessment of the Trust
Property, dated September 1, 2005, prepared by Bradbume, Briller and Johnson, LLC ("BB&J")
.
Respondent denies the remaining allegations of this paragraph
.
Allegation 8:
Contaminants migrating from the drum storage area at the A&B Property have
impacted soil on the A&B Property, as evidenced by staining beneath and around the drum
storage area
. This contamination also has migrated onto the Trust Property, as was evidenced by
surficial staining extending from the drum storage area onto the Trust Property
. A Phase II
Environmental Site Assessment, dated September 21, 2005, prepared by BB&J, detected
concentrations of PAHs in subsurface soil on the Trust Property, immediately adjacent to the
drum storage area on the A&B Property in excess of Illinois soil and groundwater criteria for
Class I Groundwater and commercial-industrial SROs
.
RESPONSE :
Respondent denies that contaminants migrating from the drum storage
area at the A&B Property have impacted soil on the A&B Property, as evidenced by staining
beneath and around the drum storage area
. Respondent denies that contamination has migrated
onto the Trust Property, as evidenced by surficial staining extending from the drum storage area
onto the Trust Property
. Respondent lacks knowledge or information sufficient to form a belief
as to the truth of whether a Phase II Environmental Site Assessment dated September 21, 2005,
prepared by BB&J, detected concentrations of PAHs in subsurface soil on the Trust Property,
immediately adjacent to the drum storage area on the A&B Property in excess of Illinois soil and
ground water criteria for Class I Groundwater and commercial-industrial SROs
.
Allegation 9:
The Theodore Kosloff Trust seeks (1) reimbursement of costs it incurred to
investigate and remediate the described contamination caused by Respondent on the Trust
Property, (2) an order requiring respondent A&B to cease and desist its chemical and waste
storage practices in the northwest comer of its parking lot, and to conduct a subsurface
investigation and any required remediation in the vicinity of the drum storage area, and (3)
recovery of amounts lost as diminution in property value in a recent sale of the Trust Property
that resulted directly from the described contamination caused by Respondent
.
RESPONSE :
Respondent lacks knowledge or information sufficient to form a belief
as to what relief the Theodore Kosloff Trust seeks, but denies that the Theodore Kosloff Trust is
entitled to any relief
.
-4-
Allegation 10 : Identify any identical or substantially similar case Complainant knows of that is
already pending before the Board or in another forum against this respondent for the same
alleged pollution : None.
RESPONSE: Respondent admits that there is no identical or substantially similar
case already pending before the Board or in another forum against this Respondent for the same
alleged pollution .
Allegation 11
: The Irrevocable Agreement of Trust of Theodore Kosloff for Rachel Kosloff and
Abigail Kosloff dated December 6, 1989, is a Pennsylvania trust . I, Sean Bezark, am an attorney
licensed and registered to practice law in the State of Illinois . I am representing The Theodore
Kosloff Trust in this matter before the Board .
RESPONSE
: Respondent lacks knowledge or information sufficient to form a belief
as to the truth of the allegations of the first sentence of this paragraph, and admits the allegations
of the second and third sentences of this paragraph .
Respectfully submitted,
Attorney for Respondent
A&B Wire Form Corporation
John D. Silk
Rothschild, Barry & Myers
55 West Monroe Street
Suite 3900
Chicago, IL 60603
(312) 372-2345
