BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
MAY
082009
ELMHURST MEMORIAL
HEALTHCARE
)
ATE
OF
$jM,-
and
)
Pollution
Controi”
8
ELMHURST
MEMORIAL
HOSPITAL,
)
Oar
)
Complainants,
)
)
vs.
)
No.
PCB 2009-066
)
(Citizen’s Suit
)
Enforcement
Action)
CHEVRON
U.S.A.,
INC.
)
)
Respondent.
NOTICE
OF FILING
To:
Carey
S.
Rosemarin
Andrew
J.
Marks
Law
Offices of Carey
S. Rosemarin,
P.C.
500
Skokie Boulevard,
Suite
510
Northbrook,
Illinois
60062
PLEASE TAKE
NOTICE
that
on
May
8,
2009, we
filed with
the
clerk
of the
Illinois
Pollution
Control Board
an original
and nine
copies of Respondent’s
Answer
and
Affirmative
Defenses
to
Complaint, a copy
of which is attached
hereto
and herewith
served
upon you.
CHEVRON
U.S.A. INC.
Dated:
May
,2009
Joseph
A. Girardi
Robert
B.
Christie
Henderson & Lyman
Attorneys
for Chevron
U.S.A. Inc.
175
W. Jackson
Blvd., Suite 240
Chicago,
Illinois
60604
(312)
986-6960
PROOF OF SERVICE
BY MAIL
I,
Sarah
A.
Whitford, a
non-attorney on oath,
state
that I served a copy
of this
Notice
and Respondent’s Answer and
Affirmative Defenses
to
Complaint
on the
persons to
whom the
Notice is directed at
the address contained
in the Notice by
depositing the same in the
U.S.
mail
at
175 West
J
Chicago,
Illinois
60604 before 5:00
p.m.
on May 8,
2009.
Subscribed and
sworn
to
before
me this
8th
day
of
May,
2009.
Notary Public
S1EPHANA
D
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
ELMHURST
MEMORIAL
HEALTHCARE
and
ELMHURST
MEMORIAL
HOSPITAL,
Complainants,
vs.
CHEVRON
U.S.A.,
INC.
Respondent.
)
)
)
)
)
)
ECEVED’
CLERK’S
OFFICE
MAY
118
2009
STATE
OF
ILLINOj
Pollutjo
Control
Board
No.
PCB
2009-066
)
(Citizen’s
Suit
)
Enforcement
Action)
)
)
)
APPEARANCE
The
undersigned,
Joseph
A. Girardi
and
Robert B.
Christie,
of Henderson
&
Lyman,
enter
their
appearance
as
counsel
for Respondent
Chevron
U.S.A.
Inc., incorrectly
named
as
Chevron
U.S.A., Inc.
Dated: May
7
, 2009
CHEVRON
U.S.A.
INC.
By:
Joseph
A.
Girardi
Robert
B.
Christie
Henderson
&
Lyman
Attorneys
for Chevron
U.S.A.
Inc.
175
W. Jackson
Blvd.,
Suite
240
Chicago,
Illinois
60604
(312)
986-6960
Øe
ofs attorr(ys
PROOF OF SERVICE
BY MAIL
I, Sarah A.
Whitford,
a non-attorney
on oath,
state
that I served a copy
of the
foregoing Appearance of Respondent
Chevron U.S.A. Inc. on:
Carey
S.
Rosemarin
Andrew
J.
Marks
Law Offices of
Carey
S.
Rosemarin, P.C.
500
Skokie Boulevard, Suite 510
Northbrook,
Illinois 60062
at
the above address by depositing
the same in the
U.S.
mail at
175 West Jackson
Boulevard, Chicago,
Illinois 60604 before 5:00 p.m. on
Subscribed
and sworn
to
before
me this
8t1
day
of May, 2009.
tZ
4
w
74.
a4
Notary Public
STPHANlEADAs
I
PUBLiC
STATE
OF
jLLj
BEFORE
THE
ILLINOIS POLLUTION
CONTROL
BOARD
IE
ELMHURST
MEMORIAL HEALTHCARE
)
MAY
n p
2
0
and
)
ELMHURST MEMORIAL
HOSPITAL,
)
p7
OF
‘LuNG,
8
ri
rol
Complainants,
)
No.
PCB
2009-066
)
(Citizen’s
Suit
vs.
)
Enforcement
Action)
)
CHEVRON
U.S.A., INC.
)
)
Respondent.
ANSWER
AND
AFFIRMATIVE
DEFENSES
OF
CHEVRON
U.S.A.
INC.
Respondent,
Chevron
U.S.A.
Inc.,
incorrectly
named
as
Chevron
U.S.A.,
Inc.
(Respondent”),
by its
attorneys
Henderson
&
Lyman,
and
for its
answer
and affirmative
defenses
to
the formal
complaint
of
Complainants,
Elmhurst
Memorial
Healthcare and
Elmhurst
Memorial
Hospital
(“Complainants”),
states
as
follows:
Answer
Complaint,
Overview:
Elmhurst
Memorial
Healthcare
and
Elmhurst
Memorial
Hospital,
through
their
contractors,
investigated
and
remediated
contamination
associated
with
underground
storage
tanks
(“USTs”)
operated
and
abandoned by
Texaco,
Inc. (“Texaco”) at
701.
South
Main
Street,
Lombard,
Illinois
(the
“Property”).
For
over
twenty
years
commencing
in
the
mid-1950s,
Texaco
owned
and/or
operated a
gasoline
filling
station
on
the
Property.
Elmhurst
Memorial
Healthcare
and
Elmhurst
Memorial
Hospital
now
seeks
to
recover
the
costs
they
incurred
from
Respondent
Chevron
U.S.A.
Inc.
(“Chevron”). Texaco’s
liabilities
have
devolved
upon
Chevron
as
a
result
of
various
corporate
transactions.
Answer: As this
paragraph
is merely
a
conclusory
overview
of the
allegations of
the
Complaint,
Respondent
adopts
and
relies
on
its
answers
to
the
individual
allegations
of
the Complaint as
they
may
be
applicable
here.
To
the
extent
not
otherwise
alleged
in the
Complaint,
Respondent
denies
the
allegations
of
the
Overview.
1
Complaint
¶11
1. Elmhurst
Memorial
Healthcare
and
Elmhurst
Memorial
Hospital
(collectively,
“EMH”)
are
Illinois
not-for-profit
corporations.
Their
primary
offices
are
located in
Elmhurst,
Illinois.
Each is
a
“person”
within the
meaning
of Section
3.315
of
the
Illinois
Environmental
Protection
Act
(the “Act”).
415 ILCS
5/3.315.
Answer:
Respondent
does
not have sufficient
knowledge
to
admit
or deny the
location
of the
primary
offices of
Complainant,
and
as
such
denies
same
and demands
strict
proof
thereof. Respondent
admits
the remaining
allegations
of this paragraph.
Complaint
¶
2.
Chevron
is
a
Pennsylvania
corporation
licensed
to
conduct
business
in
Illinois. Its
primary
offices are
located
in San
Ramon,
California.
Chevron
is
a
“person”
within the
meaning
of
Section
3.315
of
the Act.
415 ILCS
5/3.315.
Answer:
Respondent
admits
that
it
is
a
Pennsylvania
corporation,
is licensed
to
conduct
business
in Illinois,
has
offices located
in San
Ramon,
California,
and
is
a
“person”
within the
meaning
of
Section
3.315
of
the Act.
Other
than
as
specifically
admitted
herein,
Respondent
denies the
remaining
allegations
of
this
paragraph.
Complaint
¶
3. In October
2001, Chevron
Corporation
merged
with
Texaco.
Answer:
Respondent
denies
the allegations
of this
paragraph.
Complaint
¶
4.
By
virtue
of the merger,
any
liabilities
arising
from Texaco’s
pre
2001
actions
relevant
to
this Complaint
became the
liabilities
of Chevron
Corporation.
On
information
and
belief,
following
the
2001
merger,
Chevron
Corporation
effectively
transferred
such
liabilities
to
its subsidiary,
Respondent
Chevron.
Answer:
Respondent
denies the
allegations
of this
paragraph.
Jurisdiction
Complaint
¶
5.
The Illinois
Pollution
Control
Board
has
jurisdiction
of this
matter
pursuant
to
415 ILCS
5/31.
Answer:
Respondent
denies the
allegations
of
this paragraph.
Allegations
of
Factual
Background
Complaint
¶
6.
On
information
and belief:
i) The
Texas
Company
owned
2
and/or
operated
a gasoline
filling
station
on
the Property
from
approximately
1957 to
1977;
ii)
the gasoline
filling
station
was
operated
under
the name,
“Texaco;”
and
iii) in
or
about
1959,
The
Texas Company
changed
its name
to
“Texaco,
Inc.”
Answer:
Respondent
admits
that The
Texas
Company
operated
a
gasoline
filling
station
at the Property
from
early 1958
through
early 1977
and
that
the
station
was
branded
as a
“Texaco”
station.
Respondent
admits
that The
Texas
Company
changed
its name
to “Texaco
Inc.” in
1959.
Other than
as
specifically
admitted
herein,
Respondent
denies
it
had
any ownership
interest
in
the
Property
and
further
denies
the
remaining
allegations
of this
paragraph.
Complaint
¶
7.
On
information
and
belief,
Texaco caused
to be
installed
on
the
Property
one
heating
oil UST,
at
least four
gasoline
USTs
and
two other
USTs.
Answer:
Respondent
admits
that
the
owner
of the
Property
installed
a
number
of USTs
on the
Property
in
approximately
1958.
Other
than
as
specifically
admittel
herein
Respondent
does
not
have sufficient
knowledge
to
form a
belief
as
to
truth
of the
remaining
allegations
of
this
paragraph
and,
as
such,
denies
same and
demands
strict
proof
thereof.
Complaint
¶
8. On
information
and belief,
releases
of
petroleum
occurred
as a
direct
result
of Texaco’s
operation
of
the gasoline
USTs.
Answer:
Respondent
denies the
allegations
of
this
paragraph.
Complaint
¶
9. On
information
and
belief,
Texaco
ceased
using
the
Property
as
a
gasoline
filling
station
in or about
1977, and
abandoned
in place
all of
the USTs
then
located
on
the Property.
Answer:
Respondent
admits
that
in
early
1977 Texaco
Inc.
ceased
operating
a
gasoline
filling
station
on the
Property
and
returned
possession
and control
of
the
Property
and any
USTs then
located
thereon
to the
owner of
the
Property.
Other
than
as
specifically
admitted
herein
Respondent
denies
the
remaining
allegations
of this
3
paragraph.
Complaint
¶
10.
On
information
and
belief,
in
1981
a
transferee
of
the
Property
discovered
that
some
or all
of
the
USTs
had
not
been
abandoned properly.
This
matter
was
brought to
the
attention of the
Lombard
Fire
Department
at
that
time.
The
Fire
Department
promptly
notified the
company
that
performed
the
1978
abandonment
of
the
deficiency
in
its
work, stating
that
the
USTs
were
only
partially
filled
with
an
inert
solid
material.
Answer: Respondent
admits that
in
l98lthe
Lombard
Fire
Department
issued
a
letter
to
Aetna
Tank
and
Pump
Company,
Inc.
opining
that
Aetna
should
place
additional fill
material
in
one
or
more
USTs
then
located
on
the
Property.
Respondent
avers
that
the
Lombard
Fire
Department
oversaw
and
inspected
Aetna’s
abandonment
of
the
USTs
for
the
owner
of
the
Property
in
1978
and
determined
that
the
USTs
had
been
properly abandoned
in
accordance
with
applicable
law.
Other
than
as
specifically
admitted herein
Respondent
does
not
have
sufficient
knowledge to
form
a belief as
to
truth
of remaining
allegations
of
this
paragraph
and,
as
such,
denies
same
and
demands
strict
proof
thereof.
Complaint
9j
11.
On
information
and
belief,
a
transferee
of
the Property
removed
two
USTs
in or
about
1981.
Answer:
Respondent
does
not
have
sufficient
knowledge
to
form
a
belief
as
to
truth
of the
allegations
of
this
paragraph and,
as such,
denies
same
and
demands
strict
proof
thereof.
Complaint
¶
12.
Elmhurst
Memorial
Hospital
was
founded
in
1926,
and
was
the
first
hospital
in
DuPage
County.
Since
that
time
the
EMH
organization
has
expanded
significantly.
It
is now
a
major
health
care
organization
in
the
Chicago
suburbs,
and
serves
the
community
from
numerous
locations
in
DuPage
County.
The
organization
employs
a staff
of
more
than
3,000
people,
plus
600
physicians.
It also
encompasses
a
hospital
with
427
licensed
beds.
Answer:
Respondent does
not
have
sufficient
knowledge
to
form
a
belief
as
to
truth
of
the
allegations
of
this
paragraph
and,
as
such,
denies
same
and
demands
strict
4
proof
thereof.
Complaint
¶
13.
In
2005,
some twenty-five
years
after
Texaco’s
departure,
EMH
identified
the
Property
as
a
possible
site
for a facility
to treat
patients
suffering
from
sleep
disorders.
Elmhurst
Memorial
Healthcare
purchased
the
Property
for
that
purpose
in
the
same
year.
Answer:
Respondent
does
not
have
sufficient
knowledge
to
form
a
belief
as
to
truth
of
the allegations
of
this
paragraph
and,
as
such,
denies
same
and demands
strict
proof
thereof.
Complaint
¶
14. Through
its contractors,
EMH
conducted
an electromagnetic
search
to
locate
any
USTs
remaining
on
the Property.
One UST,
believed
to
have
contained
heating
oil,
was
detected
on the
east
side
of the
existing
building.
EMH
obtained
a
permit
to
remove
the
UST
and
drained
approximately
230
gallons
of
water
from
it.
On March
17,
2006,
the UST
was
extracted
in
the
presence
of representatives
of
the
Illinois
State
Fire
Marshal
and
the
Lombard
Fire Department.
Answer:
Respondent
admits
that
the public
records
of the Office
of
the
State
Fire
Marshal
indicate
that a
heating
oil
UST
was
removed
from
the
Property
on
or about
March
17,
2006.
Other
than
as
specifically
admitted
herein,
Respondent
does
not
have
sufficient
knowledge
to
form
a
belief
as to
truth
of the
allegations
of
this
paragraph
and,
as
such,
denies
same
and demands
strict
proof
thereof.
Complaint
¶
15.
The heating
oil UST
was
located
relatively
close
to
the
surface.
The
top
of it
was dented
and
had
holes
of between
two
and
four
inches
in
length.
Soil
samples
were
collected
from
the
vicinity
of the
excavation
pit
and
submitted
for
laboratory
analysis.
Notwithstanding
the
poor
condition
of
the
UST and
detection
of
petroleum
odors,
the UST
was
determined
not to
be
leaking.
Answer:
Respondent does
not
have
sufficient
knowledge
to
form
a
belief
as to
truth
of the
allegations
of
this
paragraph
and,
as
such,
denies
same
and
demands
strict
proof
thereof.
Complaint
¶
16.
EMH
did not
find
gasoline
USTs
on the
Property
at that
time.
However,
it did
locate
the
area
of the
former
gasoline
pump
islands
and collected
soil
samples
in
that
vicinity.
The
samples
were
analyzed
for
the
indicator
contaminants
specified
in
35
Iii.
Adm.
Code
§
734.405(b).
Laboratory
results
showed
that
the
soil on
5
the
Property
contained
benzene
and
ethylbenzene
at
concentrations
exceeding
those
specified
in
35
Iii.
Adm. Code
Part
742,
Appendix
B
(Tier
One).
This
soil
was
contaminated
as a
result
of
Texaco’s
operation
of
the
gasoline
filling
station.
Answer:
Respondent
denies
soil
was
contaminated
as
a
result
of
Texaco’s
operation of
the
gasoline
filling
station.
Respondent
does
not
have
sufficient
knowledge
to
form
a
belief as
to
truth
of
the
remaining
allegations
of
this
paragraph
and, as such,
denies same
and
demands
strict proof
thereof.
Complaint
¶
17.
Accordingly,
EMH
caused
over
570
tons
of
contaminated
soil
to
be
excavated
and
disposed
off-site.
Answer:
Respondent
does
not
have sufficient
knowledge
to
form a
belief
as
to
truth
of
the
allegations
of
this
paragraph
and,
as
such,
denies
same
and
demands
strict
proof thereof.
Complaint
¶
18.
During the
excavation
of
the
contaminated
soil,
groundwater
seeped
into
the
excavation
pit.
Approximately
1,350
gallons
of
water
was
thus
collected
and
disposed
off-site.
Answer:
Respondent
does
not
have
sufficient
knowledge
to
form
a
belief as
to
truth
of
the
allegations
of
this
paragraph
and,
as
such,
denies
same
and
demands
strict
proof
thereof.
Complaint
¶
19.
Subsequently,
the
existing
building
on
the
Property
was
razed
to
make
way
for
the
new
EMH
facility.
During
construction,
four
gasoline
USTs,
each
of
3,000-gallon
capacity,
were
uncovered.
Answer:
Respondent
does
not
have sufficient
knowledge
to
form
a
belief
as
to
truth
of
the
allegations
of
this
paragraph
and,
as
such,
denies
same
and
demands
strict
proof
thereof.
Complaint
¶
20.
The
four
USTs
were
removed
on
September
19,
2007,
with a
representative
of
the
Office
of
the
Illinois State
Fire
Marshal
present.
That
representative
determined
that
a
release
had
occurred,
and
the
release
was
thus
reported
to
the
Illinois
Emergency
Management
Agency
(IEMA
No.
20071269).
6
Answer: Respondent
admits that
the
public
records
of the
Illinois
Environmental
Protection
Agency
indicate
that
IEMA
no.
20071269
was
assigned
to the
Property on
September
19,
2007.
Respondent
further
admits
that
the
public
records
of
the Office of the
State
Fire
Marshal
indicate
that
four
USTs
were
removed
from
the
Property on
or
about
September
19,
2007.
Respondent
avers
that
the
public records
of
the
Office
of
the
State
Fire
Marshal further
indicate
that
the
USTs
were
taken
out
of
service
on
or before
December
31,
1973.
Other
than
as
specifically
admitted
herein,
Respondent
does
not
have
sufficient
knowledge
to
form
a
belief
as to
truth
of the
allegations
of this
paragraph
and,
as
such,
denies
same and
demands
strict
proof
thereof.
Complaint
¶
21.
Each
of the
USTs
contained
gasoline
and
water
and
was
partially
filled
with
sand.
Each
contained
holes
at
the
bottom.
Answer:
Respondent
does
not
have
sufficient
knowledge
to
form
a
belief
as
to
truth
of the
allegations
of
this
paragraph
and,
as
such,
denies
same
and
demands
strict
proof
thereof.
Complaint
¶
22.
Soil
samples
collected
from
the
sidewalls
and
floor
of
the
excavation
pit
were
analyzed
for
the
indicator
contaminants
for
gasoline,
as
specified in
35
Ill.
Adm.
Code
§
734.405(b).
Laboratory
results
showed
the
soil
contained
benzene at
concentrations
exceeding
those
specified
in
35 Ill.
Adm. Code
Part
742,
Appendix
B
(Tier
One).
Answer:
Respondent
does
not
have
sufficient
knowledge
to
form
a belief
as to
truth
of
the
allegations
of
this
paragraph
and,
as
such,
denies
same
and
demands
strict
proof
thereof.
Complaint
91
23.
About
10,500
gallons
of
gasoline
and
water
was
pumped
from
the
tanks
and
the
excavation pit
and
disposed
off-site.
Answer:
Respondent
does
not
have
sufficient
knowledge
to
form
a
belief
as to
7
truth
of
the
allegations
of
this
paragraph and,
as
such,
denies
same
and
demands
strict
proof
thereof.
Complaint
¶
24.
About
315
tons
of
contaminated
soil
was
excavated
from
the
area
affected
by
the gasoline USTs.
Answer:
Respondent
does
not
have
sufficient
knowledge
to
form
a belief
as
to
truth
of
the allegations
of
this
paragraph and,
as
such,
denies
same
and
demands
strict
proof
thereof.
Complaint
1I
25.
The
Illinois
Environmental
Protection
Agency
issued
a
No
Further
Remediation
Letter
with
respect
to
the
four
gasoline
USTs
under
415 ILCS
5/57.10
on or
about
December
27,
2007.
Answer:
Respondent
does
not
have
sufficient
knowledge to
form
a belief
as to
truth
of the
allegations
of this
paragraph
and,
as
such,
denies
same
and
demands
strict
proof
thereof.
Complaint
¶
26.
EMH
expended
over
$100,000
to
clean
up
the mess
left
on the
Property
by
Texaco.
Answer:
Respondent
denies
that
Texaco
Inc.
left
any
“mess”
on
the
Property.
Respondent
does
not
have
sufficient
knowledge
information
to
form
a
belief
as
to
truth
of
the remaining
allegations
of
this paragraph
and,
as
such,
denies
same
and
demands
strict
proof
thereof.
Complaint
¶
27.
EMH
notified
Respondent
of
the discovery
of the
four
gasoline
USTs
at
the
time
of
the
excavation,
and
demanded
reimbursement
of
the
costs
expended
in
relation
to
the
USTs
as
early
as
October
2,
2007.
Despite
repeated
demands
since
that
time,
Respondent has
not
reimbursed
EMH
for
any
of the
costs
it
incurred
in
relation
to
the
USTs
on the
Property.
Answer:
Respondent
admits
that
on
or
about
October
2,
2007
Complainants,
by
their
counsel,
indicated
to
Respondent
that
Complainants
had
discovered
four
USTs
on
the
Property
and
requested
reimbursement
of
all
costs
incurred.
Respondent
further
8
admits
that
it
has
not
paid
any
sums
to Complainants.
Other
than
as specifically
admitted
herein,
Respondent
denies
the allegations
of this
paragraph.
COUNT
I
Complaint
¶
28.
Complainants
reallege
and
incorporate
by
reference
as
if fully
set forth
herein
Paragraphs
1 through
27
of this
Complaint.
Answer:
Respondent
adopts
and
realleges
its
answers
to
paragraphs
1 — 27 of
the
Complaint
as
thought
fully
set
forth
herein.
Complaint
¶
29.
Section
21(a)
of the
Act
(415 ILCS
5/21(a))
reads
in its
entirety
as
follows:
No
person
shall:
(a)
Cause
or
allow
the open
dumping
of
any
waste.
Answer:
Respondent
admits
that
the
allegations
of this
paragraph.
Complaint
¶
30.
The
USTs,
the
substances
in the
USTs,
and
the contaminated
media
resulting
from
releases
associated
with
the USTs
on
the
Property
(collectively,
“Gas
Station
Waste”)
all
constitute
“waste”
within
the
meaning
of the
Act. 415
ILCS
5/3.535.
Answer:
Respondent
denies
the
allegations
of this
paragraph.
Complaint
¶
31. Section
3.305
(415
ILCS
5/3.305)
of
the
Act
reads
in
its
entirety
as
follows:
“Open
dumping”
means
the
consolidation
of refuse
from
one
or
more
sources
at a disposal
site
that
does
not
fulfill
the
requirements
of a
sanitary
landfill.
Answer:
Respondent
admits
that
the
allegations
of
this
paragraph.
Complaint
¶
32.
On
information
and
belief,
at no
relevant
time
has
the
Property
fulfilled
the
requirements
of
a
sanitary
landfill.
Answer:
Respondent
does
not
have
sufficient
knowledge
to
form
a
belief
as
to
truth
of the
allegations
of this
paragraph
and, as
such,
denies
same
and demands
strict
proof
thereof.
9
Complaint
‘ElI
33.
The abandonment
of the
Gas
Station
Waste
constitutes
“open
dumping”
within
the
meaning
of the
Act.
Answer:
Respondent
denies
the
allegations
of
this
paragraph.
Complaint
‘1J
34.
Respondent’s
predecessor
in interest,
Texaco,
caused
or
allowed
the
open
dumping
of the
Gas Station
Waste
in violation
of 415
ILCS
5/21(a).
Answer:
Respondent
denies
that
Texaco
Inc. is
its
“predecessor
in
interest”
and
further
denies
the
remaining
allegations
of this
paragraph.
Wherefore,
Respondent
respectfully
requests
that
the
Illinois
Pollution
Control
Board
enter an
order
finding
in favor
of
Respondent
and against
Complainants
on
each
and
every
claim
for relief
requested
by
Complainants,
or
for
such
other
and
further
relief
as
the
Board
may
deem
appropriate.
COUNT
II
Complaint
91
35.
Complainants
reallege
and
incorporate
by
reference
as
if
fully
set
forth
herein
Paragraphs
1
through
27
of
this
Complaint.
Answer:
Respondent adopts
and
realleges
its
answers
to
paragraphs
1 —
27 of
the
Complaint
as
thought
fully
set
forth
herein.
Complaint
¶
36. Section
21(e)
of
the Act
(415
ILCS
5/21(e))
reads
in
its entirety
as
follows:
No person
shall:
(e) Dispose
treat
store
or
abandon
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.
Answer:
Respondent
admits
that
the
allegations
of this
paragraph.
Complaint
91
37. The
Gas
Station
Waste
constitutes
“waste”
within
the
meaning
of
the
Act.
415
ILCS
5/3.535.
Answer:
Respondent
denies
the allegations
of this
paragraph.
10
Complaint
91
38.
The
presence
of
the
Gas
Station
Waste
on
the Property
constitutes
“storage” under
the Act.
415
ILCS
5/3.46.
Answer:
Respondent
denies
that
415
ILCS
5/3.46
currently
defines
the term
“storage”
and avers
that
the term
“storage”
is
currently
defined
in 415
ILCS
5/3.480.
Respondent further
denies
the allegations
of
this paragraph,
whether
this
paragraph
alleges
415
ILCS
5/3.46
or whether
it alleges
415
ILCS
5/3.480.
Complaint
¶
39.
The presence
of the
Gas Station
Waste
on
the
Property
constitutes
“disposal”
under
the
Act.
415 ILCS
5/3.08.
Answer:
Respondent
denies
that 415
ILCS
5/3.08
currently
defines
the term
“disposal”
and
avers
that
the term
“disposal”
is
currently
defined
in
415
ILCS
5/3.185.
Respondent
further
denies
the
allegations
of this
paragraph,
whether
this
paragraph
alleges
415
ILCS 5/3.08
or
whether
it
alleges
415
ILCS
5/3.185.
Complaint
¶
40.
The presence
of
the
Gas
Station
Waste
on
the
Property
for
decades
after the
cessation
of active
use
by Texaco
constitutes
“abandonment”
under
Section
21(e)
of
the
Act. 415
ILCS
5/21(e).
Answer:
Respondent
denies
the allegations
of this
paragraph.
Complaint
¶
41.
Texaco
disposed,
stored,
and
abandoned
waste
at
a
facility
that
did
not
meet the
requirements
of the Act,
and
the
regulations
thereunder,
in violation
of
Section
21(e)
of
the Act.
Answer:
Respondent
denies
the
allegations
of this
paragraph.
Wherefore,
Respondent
respectfully
requests
that
the
Illinois
Pollution
Control
Board
enter an
order
finding
in
favor
of Respondent
and
against
Complainants
on each
and
every
claim
for
relief
requested
by
Complainants,
or
for
such other
and further
relief
as
the
Board
may
deem
appropriate.
AFFIRMATIVE
DEFENSES
For
its
complete
and affirmative
defense
to
Counts
I
and
II of the
Complaint,
11
Respondent
states
as
follows:
Affirmative
Defense
No.
I
(No
Assumption
of
Texaco
Inc.’s
Liabilities)
1.
Paragraph
3 of
the
Complaint
alleges that
Chevron
Corporation
(not
the
Respondent)
merged
with Texaco
Inc.
2.
Paragraph
4 of
the
Complaint
alleges
that by
virtue
of
the
alleged
merger,
any
liabilities
arising
from
Texaco
Inc.’s
pre-2001
actions
relevant
to
this
Complaint
became
the
liabilities
of
Chevron
Corporation.
3.
Paragraph
4
of
the
Complaint
further
alleges,
on
information
and
belief
only,
that
following
the
alleged
merger,
Chevron
Corporation
effectively
transferred
the
liabilities
of
Texaco
Inc. to
Respondent.
Paragraph
4
does
not
allege
any
facts
upon
which
Complainants
formed
their
information
and
belief to
make
the
allegations.
4.
In
fact,
on
October
9,
2001
a
transaction
took
place
in
which:
(a)
The
common
stock
of
Texaco
Inc.
was
acquired
by
a
subsidiary
of
Chevron
Corporation;
and
(b)
As
a
result
Texaco
Inc.
became
and
remains
a wholly-owned,
indirect,
subsidiary
of
Chevron
Corporation.
5.
Texaco
Inc.
did
not
merge
into
or
with
Chevron
Corporation.
6.
No
liabilities
of
Texaco
Inc.
were
transferred
to
or
assumed
by
Respondent
in
this
transaction.
7.
As
a
result,
any
liability
of
Texaco
Inc.
for
the
actions
alleged
in
the
Complaint
is
not
the
liability
of
Respondent.
Wherefore,
Respondent
respectfully
requests
that
the
Illinois
Pollution
Control
Board
enter
an
order
finding
in
favor
of
Respondent
and
against
the
Complainants
on
12
each
and
every
claim for
relief
requested
by
Complainants,
and
for
such
other
and
further
relief
as
the
Board
may
deem
appropriate.
Affirmative
Defense
No.
II
(Discharge
in
Bankruptcy)
1.
Paragraph
4
of
the
Complaint
alleges,
on information
and
belief,
that
Respondent
is
responsible
the
liabilities
of
Texaco
Inc.
2.
On
April
12,
1987,
Texaco
Inc.
instituted
a
proceeding
under
Chapter
11
of
the
United States
Bankruptcy
Code,
entitled
In
re
Texaco
Inc.,
et
at.,
87
B
20142,
United.
States Bankruptcy
for
the
Southern
District
of
New
York
(hereinafter
the
“Texaco
Bankruptcy”).
3.
On
January
26,
1988
the
Court
in
the
Texaco
Bankruptcy
entered
an
order
that
fixed
the
date
of
March
15,
1988
as
the
last
date
for
creditors
to
file
proofs
of claim.
4.
On
March
23,
1988
the
Court
in
the
Texaco
Bankruptcy
entered
an
order
approving
confirmation
of
the
plan
of
reorganization
(“Plan”)
of
Texaco
Inc.
5.
The
Plan
provides
that
any
claims
not
filed
and
approved
by
the
Court
in the
Texaco
Bankruptcy
are
discharged
and
forever barred.
6.
No
claims
arising
out
or
relating to
any
acts,
omissions
or
liabilities
of
Texaco
Inc.
arising out
of
or
relating
to
the
Property,
including
but
not
limited
to
the
claim
alleged
in
the
Complaint,
were
filed
in the
Texaco
Bankruptcy
by
Complainants
or
any
other
person
or
entity.
7.
By
reason of
the
foregoing,
the
claims
alleged
in
the
Complaint
have been
discharged
and
Complainants
are
barred
from
asserting
such
claims
in
this
proceeding.
8.
As
a
result,
the
claims
of
Complainants,
having
been
previously
discharged
against
Texaco,
could not
have
been
transferred
to
or
assumed
by
Respondent
as
13
Complainants
allege.
Wherefore,
Respondent
respectfully
requests
that
the
Illinois
Pollution
Control
Board
enter
an
order
finding
in
favor
of
Respondent
and
against
the Complainants
on
each
and
every
claim
for
relief requested
by
Complainants,
and
for
such
other
and
further
relief as
the
Board
may deem
appropriate.
Affirmative
Defense
No.
III
(Jurisdiction
—
Act
Not
Applicable)
1.
The
Complaint
seeks
relief against
Respondent
for
releases
of
gasoline,
in
violation
of
the
Act,
that
are alleged
to
have occurred
at
some
time
during
Texaco
Inc.’s
operation
of
a
gasoline
filling
station
on
the
Property
which
began,
at
the
earliest,
in
1957
and
ended,
at
the
latest,
in
1977.
2. The
Act
did
not become
effective
until
June
29,
1970, some
12
years
after
Texaco
Inc.
began
operating
the
filling
station.
3.
None
of
the
sections
of
the
Act
which
the
Complaint
alleges
Texaco
Inc.
violated
were
in
effect
any
earlier
than January
1,
1985,
which
at least
8
years
after
Texaco
Inc.
last
operated
the
filling
station.
4.
By
reason
of
the
foregoing
the
Act
does
not
apply
to
the
claims
alleged;
therefore,
there
is
no
jurisdiction
under
the
Act
for
the
Illinois
Pollution
Control
Board
to
adjudicate
the
Complaint.
Wherefore,
Respondent
respectfully
requests
that
the
Illinois
Pollution
Control
Board
enter
an
order
finding
in
favor of
Respondent
and
against
the
Complainants
on
each
and
every
claim
for
relief
requested
by
Complainants,
and
for
such
other
and
further
relief
as
the
Board
may
deem
appropriate.
14
Affirmative
Defense
No.
IV
(Jurisdiction
—
No
Authority
to
Award
Cost
Recovery)
1.
Paragraph
5 of
the
Complaint
alleges
that
the
Illinois
Pollution
Control
Board
has
jurisdiction
of
this
matter
pursuant
to
415
ILCS
5/31.
2.
Count
I
of
the
Complaint
requests
that
the
Board
enter
an
order
requiring
Respondent
to
reimburse
Complainants
for
all
costs
Complainants
incurred
in
investigating
and
remediating
the
Property.
3.
Count
II
of
the
Complaint
requests
that
the
Board
enter
an
order
requiring
Respondent
to
reimburse
Complainants
for
all
costs
Complainants
incurred
in
removing
the
USTs
and
investigating,
cleaning up
and
disposing
of
contaminated
soils
and
water
at
the
Property.
4.
The
essence
of
the
Complaint
is,
therefore, a
claim
for
cost
recovery.
5.
The
Act,
at
415
ILCS
5/33
(b),
grants
authority
to the
Board
to
enter
orders
for
certain
specific
relief,
but
does
grant
authority to
the
Board
to
enter
orders
allowing
cost
recovery
to
complainants
for
violations
of
the
Act
by
respondents.
6.
By
reason
of
the
foregoing,
the
Board
does
not
have
the
authority
under
the
Act
to
grant
the
relief
requested
in
the
Complaint.
Wherefore,
Respondent
respectfully
requests
that
the
Illinois
Pollution
Control
Board
enter
an
order
finding
in
favor
of
Respondent
and
against
the
Complainants
on
each
and
every
claim
for
relief
requested
by
Complainants,
and
for
such
other
and
further
relief as
the
Board
may deem
appropriate.
Affirmative Defense
No.
V
(Incurred
Risk)
1.
Paragraph
12
of
the
Complaint
alleges
that
Complainants
are
a
major
health
15
care organization
and
employ
a
staff
of
more
than
3,000
people.
2.
Paragraph
13
of
the
Complaint
alleges
Complainants
purchased
the
Property
in
2005
more
than
25
years
after
Texaco
Inc.
had
departed.
3.
Nowhere
do
Complainants
allege
that
they
performed
any
investigation
or
due
diligence
for
the
presence
of
USTs
or
releases
of
gasoline
of
other
petroleum
at
the
Property
prior to
purchasing
the
Property.
4.
Reasonable
due
diligence
performed
prior to
purchasing
the
Property
would
have
disclosed
information
in
the
public
records
that
USTs
were or
had
been
on
the
Property
and
that
releases
of
gasoline
or
petroleum
were
present
on
the
Property.
5.
A
reasonable
and
prudent
person,
therefore,
would
have
performed
such
due
diligence
prior
to
purchasing
the
Property
and
would
have
discovered
that
USTs
were
or
had
been
on
the
Property
and
that
releases
of
gasoline
or
petroleum
were
present
on
the
Property.
6.
Complainants,
therefore,
knew
or
should
have
known
prior to
purchasing
the
Property
that
USTs
were
or
had
been
on
the
Property
and
that
releases
of
gasoline
or
other
petroleum
products
were
present
on
the
Property.
7.
Complainants,
therefore,
incurred
the
risk
of
USTs
and
releases
of
gasoline
or
other
petroleum
being
present
on
the
Property,
and,
consequently,
incurred
the
risk
of
the
cost
of
removal
of
the
USTs
and
remediation
of
the
Property.
8.
By
reason
of
the
foregoing
Complainants
are
barred
from
bringing
this
Complaint
seeking
to
recover
from
Respondent
the
very
costs
which
they
could
have
avoided
incurring.
Wherefore,
Respondent
respectfully
requests
that
the
Illinois
Pollution
COntrol
16
Board enter
an
order
finding
in
favor
of
Respondent
and
against
the
Complainants
on
each
and
every
claim
for
relief
requested
by
Complainants,
and
for
such
other
and
further
relief
as
the
Board
may
deem
appropriate.
Affirmative
Defense
No.
VI
(Assumption
of
Risk)
1.
Paragraph
12
of
the
Complaint
alleges
that
Complainants
are a
major
health
care
organization
and
employ
a
staff
of
more
than
3,000
people.
2.
Paragraph
13
of
the Complaint
alleges
Complainants
purchased
the
Property
in
2005
more
than
25 years
after
Texaco
Inc.
had
departed.
3.
Nowhere
do
Complainants
allege
that
they
performed
any
investigation
or
due
diligence
for the
presence
of USTs
or
releases
of
gasoline
of other
petroleum at
the
Property
prior
to
purchasing
the
Property.
4. Reasonable
due
diligence
performed
prior
to
purchasing
the
Property
would
have
disclosed
information
in the
public
records
that
USTs
were
or
had
been
on
the
Property
and
that
releases
of
gasoline or
petroleum
were
present
on
the
Property.
5. A
reasonable
and
prudent person,
therefore,
would
have
performed
such
due
diligence
prior
to purchasing
the
Property
and
would
have
discovered
that
USTs
were
or
had
been
on
the
Property
and
that
releases
of
gasoline
or
petroleum
were
present
on
the
Property.
6.
Complainants,
therefore,
knew
or
should
have
known
prior
to
purchasing
the
Property
that
USTs
were
or
had
been
on
the
Property
and
that
releases
of gasoline
or
other
petroleum
products
were
present
on the
Property.
7.
Complainants,
therefore,
assumed
the
risk
of
USTs
and
releases
of gasoline
or
other
petroleum
being
present on
the
Property,
and,
consequently,
assumed
the risk
of
17
incurring
the
cost of
removal
of the
USTs
and
remediation
of
the Property.
8.
By
reason
of
the foregoing
Complainants
are
barred
from
bringing
this
Complaint seeking
to
recover
from
Respondent
the
very
costs
which
they
could
have
avoided
assuming.
Wherefore,
Respondent
respectfully
requests
that
the
Illinois
Pollution
Control
Board
enter
an
order
finding
in favor
of
Respondent
and
against
the
Complainants on
each
and every
claim
for
relief
requested
by
Complainants,
and
for
such
other
and
further
relief
as
the
Board
may
deem
appropriate.
Affirmative
Defense No.
VII
(Avoidable
Consequence)
1.
Paragraph
12 of
the
Complaint
alleges
that Complainants
are
a
major
health
care
organization
and
employ
a
staff
of
more
than
3,000
people.
2. Paragraph 13
of
the
Complaint
alleges
Complainants
purchased
the
Property
in
2005
more
than
25
years
after
Texaco
Inc.
had
departed.
3.
Nowhere
do Complainants
allege
that
they
performed
any
investigation
or
due
diligence
for
the
presence
of
USTs
or releases
of gasoline
of
other
petroleum
at
the
Property
prior
to
purchasing
the Property.
4.
Reasonable
due
diligence
performed
prior
to
purchasing
the
Property
would
have
disclosed
information
in
the
public
records
that
USTs
were
or
had
been
on
the
Property
and
that
releases
of
gasoline
or
petroleum
were
present
on the
Property.
5.
A
reasonable
and
prudent
person,
therefore,
would
have
performed
such
due
diligence
prior
to
purchasing
the
Property
and
would
have
discovered
that
USTs
were
or
had
been
on
the Property
and
that
releases
of
gasoline
or
petroleum
were
present
on
the
Property.
18
6.
Complainants,
therefore, knew
or
should
have
known
prior
to
purchasing
the
Property
that
USTs
were
or
had
been
on
the
Property
and
that
releases
of
gasoline
or
other
petroleum
products were
present
on the
Property.
7.
Complainants,
therefore, could
have
reasonably
avoided
the
consequence
of
USTs
and
releases
of
gasoline
or
other
petroleum
being
present
on
the
Property,
and,
therefore
avoided
the
cost
of
removal
of the
USTs
and
remediation
of
the Property.
8.
By
reason
of the
foregoing
Complainants
are
barred
from
bringing
this
Complaint
seeking to
recover
from
Respondent
the
very
costs
which
they
could
have
reasonably
avoided
incurring.
Wherefore,
Respondent
respectfully
requests
that
the
Illinois
Pollution
Control
Board
enter
an
order
finding
in favor
of
Respondent
and
against
the
Complainants
on
each
and
every
claim
for
relief
requested
by
Complainants,
and
for
such
other
and
further
relief
as
the
Board
may
deem
appropriate.
Affirmative
Defense
No.
VIII
(Causation)
1.
Paragraph 6
of
the Complaint
alleges
that
Texaco
Inc.
operated
a
gasoline
filling
station
on
the
Property
from
approximately
1957
to
1977.
2.
Paragraph 8
of
the
Complaint
alleges,
on information
and
belief
only,
that
releases
of
petroleum
occurred as
a direct
result
of
Texaco’s
operation
of
the
gasoline
USTs;
however,
paragraph
8
does
not
allege
any
facts
to
support
this
conclusion.
3.
Paragraph 9
of
the
Complaint
alleges,
on
information
and
belief
only,
that
Texaco
abandoned
in
place
all
of the
USTs
then
located
on
the
Property.
4.
Paragraph
11
of the
Complaint
alleges
that
a
subsequent
transferee
of the
Property
removed
two
USTs
in
or
about
1981.
19
5. Owners
or
operators
of the Property
after Texaco
Inc.
left
the
Property
performed abandonment-in-place
procedures
to the
USTs, including
filling
the USTs
with
sand.
6.
By reason of
the
foregoing, persons
other
than
Texaco
Inc. took
actions
with
the
USTs,
including abandonment-in-place
and
removal,
that
could
be
the cause
ofany
releases of gasoline
or other
petroleum
on the Property.
7. Complainants
cannot
demonstrate
that the releases
of
gasoline
or other
petroleum alleged
occurred
during
the time that
Texaco
Inc.
operated
any
USTs
on the
Property;
thus,
Texaco Inc.’s operation
of
the
USTs could not
have directly
resulted in
the
releases
alleged.
Wherefore,
Respondent respectfully
requests
that the
Illinois
Pollution
Control
Board enter an
order
finding
in favor of
Respondent and against
the
Complainants
on
each
and
every
claim for relief requested
by
Complainants,
and for such
other
and
further
relief as the
Board may
deem
appropriate.
Affirmative Defense
No.
IX
(Ladies)
1. In its
answer, Respondent
has
alleged
that it
not liable to
Complainants
for the
claims
alleged; however,
Respondent’s
ability
to
present its
defense has
been
substantially
impaired
and prejudiced
by the
passage
of
more
than 30
years
since it last
had any
contact
with the Property.
2. Documents,
witnesses
and other
evidence, upon
which Respondents’
defense
would rest,
cannot be located
or
are no
longer in
existence.
3.
By reason
of the foregoing,
under the
doctrine of
laches,
Complainants
are
estopped
from
bringing
this action against
Respondent.
20
Wherefore,
Respondent
respectfully
requests that
the Illinois
Pollution
Control
Board
enter an order finding
in
favor of
Respondent
and against
the
Complainants
on
each
and every claim
for relief requested
by
Complainants,
and for
such
other and
further
relief as the
Board
may
deem appropriate.
Respectfully
submitted,
Chevron
U.S.A. Inc.
Dated:
May
7
, 2009
Joseph A.
Girardi
Robert
B. Christie
Henderson &
Lyman
Attorneys
for Chevron
U.S.A. Inc.
175
W. Jackson
Boulevard
Suite
240
Chicago,
Illinois
60604
(312)
986-6960
21