BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS,
)
LISA MADIGAN, Attorney General
)
of the State of Illinois,
)
)
Complainant,
)
)
vs.
)
)
CITGO PETROLEUM CORPORATION, )
a Delaware corporation,
)
)
Respondent.
)
PCB No. 09-64
(Enforcement - Land)
NOTICE OF FILING
TO:
Christopher Newcomb
Senior Corporate Counsel
Refinery
Operations
CITGO
Petroleum Corporation
135
th
Street and New Avenue
Lemont, Illinois 60439
Clerk
Illinois Pollution Control Board
James
R. Thompson Center
100 W. Randplph Street, Ste. 11-500
Chicago, Illinois
60601
PLEASE
TAKE NOTICE that I have today filed with the Office of the Clerk of the
Illinois Pollution Control Board a First Amended Complaint, Notice
of Filing, and a Certificate
of Service on behalf of the People of the State of Illinois, a copy of which is attached and
herewith served upon you.
Section 103.204(f) of the Pollution Control Board Procedural Rules, 35 Ill. Adm. Code
103.204(f) provides: "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. If you have any questions about this procedure,
Electronic Filing - Received, Clerk's Office, March 18, 2009
you should contact the hearing officer assigned to this proceeding, the Clerk's Office or an
attorney."
BY:
DATE: March 18,
2009
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
State of Illinois
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau
69
W.Washington St., 18
th
FIr.
Chicago, IL
60602
(312) 814-3816
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
ex rei.
LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
)
Complainant,
)
)
v.
)
)
CITGO PETROLEUM CORPORATION,
)
a Delaware corporation,
)
)
Respondent.
)
No.
PCB No. 09-
(Enforcement - Land)
FIRST AMENDED COMPLAINT
Complainant, PEOPLE OF THE STATE OF ILLINOIS,
ex rei.
LISA MADIGAN,
Attorney General
of the State of Illinois, on her own motion and at the request of the Illinois
Environmental Protection Agency, complains
of Respondent, CITGO PETROLEUM
CORPORATION, a Delaware corporation, as follows:
COUNT I
DISPOSING OF HAZARDOUS WASTE AT A
.
FACILITY NOT PERMITTED TO ACCEPT HAZARDOUS WASTE
1.
This Complaint is brought on behalf of the PEOPLE OF THE STATE OF
ILLINOIS
ex rei.
LISA MADIGAN, Attorney General of the State of Illinois, on her own motion
and at the request
of the Illinois Environmental Protection Agency ("Illinois EPA"), pursuant to
Section
31 of the Illinois Environmental Protection Act ("Act"), 415 ILCS S/31 (2006).
2.
The Illinois EPA is an administrative agency of the State of Illinois, created
pursuant to Section 4
of the Act, 415 ILCS 5/4 (2006), and charged,
inter alia,
with the duty of
enforcing the Act.
Electronic Filing - Received, Clerk's Office, March 18, 2009
3.
At all times relevant to the Complaint, Respondent, CITGO PETROLEUM
CORPORA nON ("Citgo" and/or "Respondent"), was and is a Delaware corporation registered
with the Illinois Secretary
of State to transact business in the State of Illinois.
4.
Citgo owns and operates a petroleum refinery in Lemont, Will County, Illinois.
5.
Sometime late in December 2006, Respondent, Citgo excavated contaminated soil
at its refinery in Lemont.
6.
On January 3,2007, Citgo took four samples of the contaminatedsoil and sent the
samples
of the contaminated soil to be analyzed by Suburban Laboratories ("Suburban") in
Hillside, Illinois.
7.
On January 19, 2007, Suburban reported its analysis to Citgo which showed that
the benzene contents of the soil were below the regulatory limit of 0.5 mg/I.
8.
Citgo prepared a Generator's Waste Profile Sheet and allowed two roll-off boxes
(21.7) tons
of soil to be disposed as non-hazardous, declassified special waste.
9. .
On March 16 and March 19,2007, the contaminated soil which was generated at
the Citgo refinery was transported by Waste Management Southwest
to Prairie View Landfill
("Prairie View") and disposed
of at Prairie View Landfill as non-hazardous, declassified special
waste.
10.
In
May 2007, Suburban performed a regularly scheduled internal quality control
review
of the data for the contaminated soil originally provided to Citgo.
In
this review,
Suburban discovered a calculation error that it had made in the original analytical report.
11.
On May 17, 2007, Suburban notified Citgo that a calculation error had been made,
and the benzene concentrations in the soil were actually 1.478 mg/1
of benzene, approximately
2
Electronic Filing - Received, Clerk's Office, March 18, 2009
three times above the regulatory limit of 0.5 mg/1, thus, making the contaminated soils RCRA
hazardous for toxicity for benzene.
12.
On May 23,2007, Citgo notified Prairie View of Suburban's new laboratory
analysis and on May
30,2007, Prairie View, in tum, notified the Illinois EPA of Suburban's
revised laboratory report.
13.
On July 25,2007, the Illinois EPA conducted a RCRA inspection of Cit go's
Lemont refinery. The inspection revealed that Citgo had deposited two roll-off boxes (21.7 tons)
of soil contaminated with benzene as a non-hazardous waste at a facility not authorized to accept
hazardous waste.
14.
On September 7, 2007, the Illinois EPA sent to Citgo a Violation Notice ("YN")
pursuant to Section 31 (a)(1) of the Act, 415 LLCS 5/31 (a)( 1) (2006).
15.
On October 17,2007, Citgo responded to the YN and proposed its Compliance
Commitment Agreement
("CCA").
16.
On November 1,2007 the Illinois EPA rejected Citgo's CCA.
17.
On March 10 and 12,2008, the Illinois EPA sent to Citgo a Notice of Intent to
Pursue Legal Action
,
pursuant to Section
31 (b) of the Act, 415 ILCS 5/31 (b) (2006).
18.
On April
11,
2008, the Illinois EPA met with Citgo to discuss the violations.
19.
Section 721.102
of the Pollution Control Board ("Board") Waste Disposal
Regulations,
35 Ill. Adm. Code 721.102, titled, Definition of Solid Waste, provides in pertinent
part as follows:
a)
Solid Waste
1)
A solid waste is any discarded material that is not excluded by
Section 721.1
04( a) or that is not excluded pursuant to 35
Ill.
Adm.
Code
720.130 and 720.131.
3
2)
A discarded material is any material which is:
A)
Abandoned, as explained in subsection (b) below; or
B)
Recycled,
as explained in subsection (c) below; or
C)
Considered inherently waste-like, as explained in
subsection (d), below.
* * *
b)
Materials are solid waste if they are abandoned by being:
1)
Disposed of; or
2)
Burned or incinerated; or
3)
Accumulated, stored or treated (but not recycled) before or in lieu
of being abandoned by being disposed of, burned or incinerated.
* * *
20.
The soil analyzed by Suburban is a solid waste as it was abandoned by being
disposed of,
as the term solid waste is defined in 35 Ill. Adm. Code 721.102.
21.
Section 721.103 of the Board Waste Disposal Regulations, 35 Ill. Adm. Code
721.103, titled, Definition
of a Hazardous Waste, provides in pertinent part as follows:
a)
A solid waste, as defined in Section 721.102, is a hazardous waste if:
1)
It
is not excluded from regulation as a hazardous waste under
Section 721.104(b); and
2)
It
meets any of the following criteria.
A)
It
exhibits any of the characteristics of hazardous waste
identified in Subpart C
of this part ...
22.
Section 721.124 of Subpart C of Part 721 of the Board Waste Disposal
Regulations,
35 Ill. Adm. Code 721.124, titled, Toxicity Characteristic, provides in pertinent part
as follows:
4
Electronic Filing - Received, Clerk's Office, March 18, 2009
a)
A solid waste exhibits the characteristic of toxicity if, using the Toxicity
Characteristics Leaching Procedure
(TCLP), test Method 1311 in "Test
Methods for Evaluating Solid Waste, Physical/ Chemical Methods," U.S.
EP
A Publication SW -846, as incorporated by reference in 35 Ill. Adm.
Code 720.111, the extract from a representative sample
of the waste
contains any
of the contaminants listed in the table in subsection (b) below
at a concentration equal to or greater than the respective value given in that
Table. Where the waste contains less than
0.5 percent filterable solids, the
waste itself, after filtering using the methodology outlined in Method
1311, is considered to be the extract for the purpose
of this Section.
Board Note: The reference to the "EP toxicity test" in 35 Ill. Adm. Code
808.410(b)(4) is to be understood as referencing the test required by this
Section.
b)
A solid waste that exhibits the characteristic
of toxicity has the U.S. EPA
Hazardous Waste Number specified in the following table that
corresponds to the toxic contaminant causing it to be hazardous.
MAXIMUM CONCENTRATIONS OF CONTAMINANTS
FOR THE TOXICITY CHARACTERISTIC
u.s.EPA
Hazardous
Number
Contaminant
CAS Number Note
Regulatory
Level (mg/l)
D018
Benzene
71-43-2
0.5
23.
Section 720.110 of the Board Waste Disposal Regulations, 35 Ill. Adm. Code
720.110, titled, Definitions provides the following definitions:
"Disposal" means the discharge, deposit, injection, dumping, spilling, leaking or
placing
of any solid waste or hazard waste into or on any land or water so that
such solid waste or hazard waste or any constituent thereof may enter the
environment or be emitted into the air or discharged into any waters, induding
groundwaters.
"Facility" means all contiguous land and structures, other appurtenances and
improvements on the land used for treating, storing or disposing
of hazardous
waste. A facility may consist of several treatment, storage or disposal operational
units (e.g., one or more landfills, surface impoundments or combinations
of
them).
5
"Generator" means any person by site, whose act or process produces hazardous
waste identified or listed in 35 Adm. Code
721 or whose act first causes a
hazardous waste to become subject to regulation.
"Storage" means the holding of hazardous waste for a temporary period, at the end
of which the hazardous waste is treated, disposed of or stored elsewhere.
24.
Citgo was a generator
of hazardous waste, as that term is defined in 35 Ill. Adm.
Code
720.110.
25.
The contaminated soil was a hazardous waste by toxicity characteristics as it was
above the regulatory limit
of 0.5 mg/l as defined in 35 Ill. Adm. Code 721. 124(b).
26.
The depositing
of the soil at the Prairie View Landfill constitutes "disposal" as
that term is defined in
35 Ill. Adm. Code 720.110.
27.
On March 16 and 19,2007, Citgo disposed of hazardous waste at Prairie View, a
facility not permitted to accept hazardous waste.
28.
Section 21(e)
of the Act, 415 ILCS
5121(e)
(2006), provides as follows:
No person shall:
(a)
Dispose, treat, or store any waste, or transport any waste into this State for
disposal, treatment, storage or abandonment, except at a site or facility
which meets the requirements
of this Act and of regulations and standards
thereunder.
29.
Section 3.315
of the Act, 415 ILCS 5/3.315 (2006), provides as follows:
"Person" is any individual, partnership, co-partnership, firm, company, limited
liability company, corporation, association, joint stock company, trust, estate,
political subdivision state agency or any other legal entity, or their legal
representative, agent or assigns.
30.
Citgo, a Delaware corporation, is a "person" as that term is defined in Section
3.315
of the Act, 415 ILCS 5/3.315 (2006).
6
31.
By disposing of hazardous waste at a facility not pennitted to accept hazardous
waste, Citgo violated Section 21(e) of the Act, 415 ILCS
5121(e) (2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests the Board enter an order in favor
of Complainant and against Respondent with respect to
this Count
I:
1.
Authorizing a hearing in this matter at which time Respondent will be required to
answer the allegations herein;
2.
Finding that Respondent has violated Section 21(e) of the Act, 415 ILCS
5/21(e)
(2006);
3.
Ordering Respondent to cease and desist from any further violations of Section
21(e)
of the Act, 415 ILCS
5121(e) (2006);
4.
Assessing a civil penalty of Fifty Thousand Dollars ($50,000.00) against
Respondent for each violation of Section 21 (e) of the Act, 415 ILCS
5/21
(
e) (2006), and an
additional penalty ofTen Thousand Dollars ($10,000.00) for each day during which Respondent
continues to be in violation of Section 21 (e) of the Act;
5.
Ordering Respondent to pay all costs including attorney, expert witnesses and
consultant fees expended by the State in its pursuit
of this action; and
6
Granting such other relief
as the Board deems appropriate.
COUNT II
FAILURE
TO PERFORM A HAZARDOUS WASTE DETERMINATION
1-27.
Complainant realleges and incorporates by reference herein paragraphs 1 through
25 and paragraphs 29 and 30 of Count I as paragraphs 1 through 27 of this Count II.
28.
Section 21(i) of the Act, 415 ILCS
5121(i)
(2006), provides as follows:
7
No person shall:
*
*
*
(i)
Conduct any process or engage in any act which produces hazardous waste
in violation
of any regulations or standards adopted by the Board under
subsections (a) and (c) of Section 22.4 of this Act.
29.
.Section 722.111
of the Board Waste Disposal Regulations, 35 Ill. Adm. Code
722.111, titled, Hazardous Waste Determination, provides in pertinent part as follows:
A person that generates a solid waste, as defined in
35 Ill. Adm. Code 721.102,
must determine
if that waste is a hazardous.waste using the following method:
a)
The person should first determine if the waste is excluded from regulation
under 35 Ill. Adm. Code 721.104.
b)
The person should then determine
if the waste is listed as a hazardous
waste in Subpart D
of 35 Ill. Adm. Code 721.
BOARD
NOTE: Even if a waste is listed as a hazardous waste, the generator still
has an opportunity under
35 Ill. Adm. Code 720.122 to demonstrate that the waste
from the generator's particular facility or operation is not a hazardous waste.
c)
For purposes
of compliance with 35 Ill. Adm. Code 728, or if the waste is
not listed as a hazardous waste in
35 Ill. Adm. Code 721.Subpart D the
generator must then determine whether the waste is identified in Subpart C
of35 Ill. Adm. Code 721 by either ofthe following methods:
1)
Testing the waste according to the methods set forth in Subpart C
of35 Ill. Adm. Code 721, or according to an equivalent method
approved by the Board under
35 Ill. Adm. Code 720.121; or
2)
Applying knowledge
of the hazard characteristic of the waste in
light
of the materials or the processes used.
30.
As a generator
of solid waste, Citgo is required to determine whether the waste the
facility generated and disposed
of was hazardous pursuant to Section 722.111 of the Board Waste
Disposal Regulations, 35 Ill. Adm. Code 722.111.
8
Electronic Filing - Received, Clerk's Office, March 18, 2009
31.
On March 16 and 19,2007, waste determinations were not available for the soils
contaminated with benzene
as required by Section 722.111 of the Board Waste Disposal
Regulations,
35 Ill. Adm. Code 722.111.
32.
By failing to perform a hazardous waste determination, Citgo violated Section
722.111
of 35 Ill. Adm. Code, thereby also violating Section 21(i) of the Act, 415 ILCS 5/21
(2006).
WHEREFORE, Complainant,
PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests the Board enter an order in favor
of Complainant and against Respondent with respect to
this Count IT:
1.
Authorizing a hearing in this matter at which time Respondent will be required to
answer the allegations herein;
2.
Finding that Respondent has violated Section 21(i) of the Act, 415 ILCS 5121(i)
(2006) and 35 Ill. Adm. Code 722.111;
3.
Ordering Respondent to cease and desist from any further violations of Section
21 (i) of the Act, 415 ILCS
5121
(i) (2006) and 35 Ill. Adm. Code 722.111;
4.
Assessing a civil penalty against Respondent of Twenty Five Thousand Dollars
($25,000.00) per day of violation of Section 21(i) of the Act, 415 ILCS 5121(i) (2006), and 35 Ill.
Adm. Code 722.111;
5.
Ordering Respondent to pay.all costs including attorney, expert witnesses and
consultant fees expended by the State in its pursuit
of this action; and
6
Granting such other relief
as the Board deems appropriate.
9
Electronic Filing - Received, Clerk's Office, March 18, 2009
COUNT III
FAILURE TO MANAGE HAZARDOUS
WASTE IN ACCORDANCE WITH THE ACT
1-27. Complainant realleges and incorporates by reference herein paragraphs 1 through
27 of Count II as paragraphs 1 through 27 of this Count III.
28.
Section 21 (i) of the act, 415 ILCS
5/21
(i), titled, Prohibited acts, provides as
follows:
* * *
No person shall:
(i)
Conduct any process or engage in any act which produces hazardous waste
in violation
of any regulations or standards adopted by the Board under
subsections (a) and (c)
of Section 22.4 of this Act.
29.
Citgo failed
to manage the waste it produced as a hazardous waste in violation of
the Act and regulations adopted under the Act by failing to manage the waste it produced as
hazardous.
30.
By failing to manage the waste it produced as a hazardous waste, Citgo violated
Section 21(i)
of the Act, 415 ILCS
5/21(i) (2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests the Board enter an order in favor
of Complainant and against Respondent with respect to
this Count
II:
1.
Authorizing a hearing in this matter at which time Respondent will be required to
answer the allegations herein;
2.
Finding that Respondenthas violated Section 21(i) of the Act, 415 ILCS
5121(i)
(2006);
10
3.
Ordering Respondent to cease and desist from any further violations of Section
21(i)
of the Act, 415 ILCS 5121(i) (2006);
4.
Assessing against Citgo a civil penalty of Twenty Five Thousand Dollars
($25,000.00) per day of violation for each violation of Section 21(i) of the Act, 415 ILCS 5/21(i).
(2006);
.
5.
Ordering Respondent to pay all costs including attorney, expert witnesses and
consultant fees expended
by the State in its pursuit of this action; and
6
Granting such other relief as the Board deems appropriate.
COUNT IV
FAILURE TO PREPARE A MANIFEST PRIOR TO OFFERING THE
HAZARDOUS WASTE FOR OFF-SITE TRANSPORTATION AND DISPOSAL
1-27. Complainant realleges and
incorporate~
by reference herein, paragraphs 1 through
27
of Count
ill
as paragraphs 1 through 27 of this Count IV.
28.
Section 722. 120(a) (1)
of the Board Waste Disposal Regulations, 35 Ill. Adm.
Code 722. 120(a) (1), titled, General Requirements, provides as follows:
a)
Manifest use.
1)
A generator that transports hazardous waste or offers a hazardous
waste for transportation for off-site treatment, storage,
or
disposal or, effective September 5,2006, a treatment, storage, or
disposal facility that offers for transport a rejected load of
hazardous waste must prepare a manifest on USEPA Form 8700-
22 (and, if necessary, on USEPA Form 8700-22A) according to
the instructions included in the appendix to
40 CFR 262
(Uniform Hazardous Waste Manifest and Instructions (EPA
Forms
8700-22 and 8700-22A and Their Instructions)),
incorporated
by reference in 35 Ill. Adm. Code 720.111 (b).
11
29.
Citgo offered for transportation for off-site disposal two loads (21.7) tons of
hazardous waste without first preparing a Unifonn Hazardous Waste Manifest as required by 35
Ill. Adm. Code 722.120 (a)(l). Citgo only prepared a generator's waste profile sheet.
30.
By failing to prepare a Unifonn Hazardous Waste Manifest, Citgo violated 35 Ill.
Adm. Code 722.l20(a)(1), thereby also violating Section
2l(i) of the Act, 415 ILCS
5/2l(i)
(2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests the Board enter an order in favor of Complainant and against Respondent with respect to
this Count IV:
1.
Authorizing a hearing in this matter at which time Respondent will be required to
answer the allegations herein;
2.
Finding that Respondent has violated Section 2l(i) of the Act, 415 ILCS 5I2l(i)
(2006) and 35 Ill, Adm. Code 722.120(a)(1);
3.
Ordering Respondent to cease and desist from any further violations of Section
21(i)
of the Act, 415 ILCS 5I2l(i) (2006) and 35 Ill, Adm. Code 722.120(a)
0);
4.
Assessing against Respondent a civil penalty of Twenty Five Thousand Dollars
($25,000.00) per day of violation of Section 21(i) ofthe Act, 415 ILCS
5121(i)
(2006) and 35 Ill,
Adm. Code 722.120(a)(I);
5.
Ordering Respondent to pay all costs including attorney, expert witnesses and
consultant fees expended by the State in its.pursuit
of this action; and
12
Electronic Filing - Received, Clerk's Office, March 18, 2009
6
Granting such other relief as the Board deems appropriate.
Of Counsel:
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau North
69 West Washington Street, Suite
1800
Chicago, Illinois 60602
(312) 814-3816
(312) 814-2347 - fax
PEOPLE OF THE STATE OF ILLINOIS,
ex rei.
LISA MADIGAN, Attorney
General
of the State of Illinois
MATTHEW
J.
DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
By:~~~b'1~
ROSEMARIE CAZ U, ChIef
Environmental Bureau North
Assistant Attorney General
G:\Environmental Enforcement\Z BEREKET-AB\CITGo\First Amended Complaint 3-18-09.doc
13
CERTIFICATE OF SERVICE
I, ZEMEHERET BEREKET-AB, an Assistant Attorney General, do certify that I caused
to be served on this
18
th
day of March 2009, the foregoing Notice of Filing, and a First Amended
Complaint, upon the persons listed on said Notice by placing same in an envelope bearing
sufficient postage with the United States
Postal Service located at 100 West Randolph Street,
Chicago, Illinois.
ZEMEHERET BEREKET-AB
G:\Envlronmental Enforcement\Z BEREKET-AB\CITGo\NOF&Cert (FlrstAmendComplt) 3-IS-09.doc
Electronic Filing - Received, Clerk's Office, March 18, 2009
