CLERKS OFF!C6
BEFORE THE ILLNOIS POLLUTION CONTROL BOARD
SEP 28 2004
PEOPLE OF THE STATE OF ILLiNOIS
)
LISA MADIGAN, Attorney General
)
Pofl’t~Control Board
State ofIllinois,
)
)
Complainant,
)
)
vs.
)
No. PCB No. 04-192
)
(Enforcement
—
Land &
SMITHFIELD PROPERTIES, L.L.C.
)
Water)
an Illinois limited liability
)
company, WOOTON CONSTRUCTION,
)
LTD., an Illinois corporation, and
)
CHICAGO SUN-TIMES, NC., a Delaware
)
corporation,
)
)
Respondents.
)
NOTICE OF FILING
TAKE NOTICE that today I filed with the Clerk of the Illinois Pollution Control Board
the attached Appearance and Answer, copies ofwhich are hereby served upon you.
Dated: September 28, 2004
Respectfully submitted,
1~evinB.Hynes
O~KEEFE,LYONS & HYNES, LLC
30N. LaSalle Street, Suite 4100
Chicago, Illinois 60602
(312) 621-0400
ATTORNEY FOR RESPONDENT
WOOTON CONSTRUCTION, LTD.
THIS DOCUMENT IS SUMITTED ON RECYCLED PAPER
Complainant,
vs.
No. PCB No. 04-192
(Enforcement
—
Land &
Water)
~C~E
~
cc?
2’~2OO~
~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
sci~~
~oa~d
~0~tutI~OPLEOF THE STATE OF ILLINOIS
)
LISA MADIGAN, Attorney General
)
State of Illinois,
)
SMITHFIELD PROPERTIES, L.L.C.
an Illinois limited liability
company, WOOTON CONSTRUCTION,
LTD., an Illinois corporation, and
CHICAGO SUN-TIMES, NC., a Delaware
corporation,
APPEARANCE
I hereby file my appearance in this matter on behalf of the Respondent, Smithfield
Properties IV, LLC.
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
)
un B. Hynes
‘KEEFE, LYONS &
N. LaSalle Street, Suite 4100
Chicago, Illinois 60602
(312) 621-0400
LLC
BEFORE THE ILLINOIS POLLUTION CONTROL BOA1~ELERKC E
S
OFFICE~V ED
PEOPLE OF THE STATE OF ILLiNOIS
)
SEP 282004
LISA MADIGAN, Attorney General
)
State ofIllinois,
)
STATE OF ILLINOIS
Pollution Control Board
Complainant,
)
)
vs.
)
No. PCBNo. 04-192
)
(Enforcement
—
Land &
SMITHFIELD PROPERTIES, L.L.C.
)
Water)
an Illinois limited liability
)
company, WOOTON CONSTRUCTION,
)
LTD., an Illinois corporation, and
)
CHICAGO SUN-TIMES, NC., a Delaware
)
corporation,
)
)
Respondents.
)
ANSWER OF WOOTON CONSTRUCTION, LTD.
NOW COMES the Respondent, Wooton Construction, Ltd. (“Wooton”), and answers the
State’s complaint as follows:
I.
VIOLATIONS BY SMITHFIELD AND WOOTON
COUNT I
FAILURE TO PERFORM SITE EVALUATION AND CLASSIFICATION
1.
This Complaint is brought on behalf of the People of the State of Illinois, by
• 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 the terms
and provisions of Section 31 of the Illinois Environmental Protection Act (“Act”), 415 ILCS
5/31 (2002).
ANSWER:
The allegations set forth in this paragraph contain legal conclusions to which
no response is required.
2.
At all times relevant to this Complaint, Smithfield Properties, L.L.C.
(“Smithfield”) was and is an Illinois limited liability company.
ANSWER:
The allegations set forth in this paragraph apply to a respondent other than
Wooton. Wooton lacks sufficient knowledge to either admit or deny this paragraph.
3..
At all times relevant to this Complaint, Wooton Construction, Ltd. (“Wooton”)
was and is an Illinois corporation.
ANSWER:
Admit.
4.
At all times relevant to this Complaint, the piece of land where the alleged
violations occurred is located at 222 South Racine Avenue, Chicago, Illinois (“Site”). The Site
used to be an industrial area which has now been developed into 42 town home units. For a
number of years the Chicago Sun-Times, Inc., a Delaware corporation, (“Sun-Times”) used the
• Site as
a home for its Daily News fleet maintenance garage.
ANSWER:
Wooton admits that the property is located at 222 S. Racine Avenue,
Chicago, Illinois. Wooton denies that any violations of the Act occurred at the Site.
5.
Historically, the Site has had several petroleum underground storage tanks
(“UST5”). Some of the USTs were installed as far back as the 1950’s. Some ofthe USTs have
been removed and some still remain abandoned in place at the Site.
ANSWER:
Wooton admits that USTs were located at the Site. Wooton admits that
some of the USTs have been removed from the Site or abandoned in place. Wooton lacks
sufficient knowledge to admit or deny the time period during which all the tanks were
installed at the Site.
6.
From Sometime prior to 1917 until it sold the property
to Smithfield in October
1999, the Sun-Times was the owner of the Site and all of the USTs which were installed at the
•
Site.
ANSWER:
Wooton admits that the Sun-Times was a prior owner of the Site. Wooton
lacks sufficient knowledge to either admit or deny the remaining allegations set forth in this
•
paragraph.
7.
On
August 2, 1991, the Illinois State Fire Marshal received from the Sun-Times
a Notification for Underground Storage Tanks which notified the State Fire
Marshal
that the
Sun-Times was the owner and operator ofeight (8) USTs at
the Site.
ANSWER:
Wooton lacks sufficient knowledge to either admit or deny the allegations
set forth in this paragraph.
8.
The Sun-Times used the USTs to store fuel for its fleet maintenance garage
located at the Site.
ANSWER:
Wooton admits that the Sun-Times stored fuel at the Site.
9.
On April 23, 1999, the Sun-Times, after informing the Office of the State Fire
Marshal (“OSFM”), removed one active 10,000 gallon unleaded gasoline UST from the Site.
During removal, the Sun-Times discovered that a release ofpetroleum products had occurred in
the vicinity of the 10,000 gallon unleaded gasoline UST at some undetermined time. The Sun-
Times reported the release incident to the Illinois EPA which cataloged it as LUST Incident No.
99103. Sun-Times then performed remediation of the soil contaminated with gasoline at the
vicinity where the 10,000 gallon unleaded gasoline tank was removed.
2
ANSWER: Wooton lacks sufficient knowledge to either admit or deny the allegations set
forth in this paragraph.
10.
On October 26, 1999, the Illinois EPA issued a No Further Remediation letter to
the Sun-Times for LUST Incident No. 991013 based upon the 45 day/Corrective Action
Completion Report submitted to the Illinois EPA by Sun-Times.
ANSWER:
Wooton admits that the Illinois EPA issued a No Further Remediation
Letter for Incident No. 991013.
11.
Respondent Sun-Times did not perform a groundwater investigation to determine
the extent of groundwater contamination at the time it removed the 10,000 gallon unleaded
gasoline UST.
ANSWER: Wooton lacks sufficient knowledge to either admit or deny the allegations set
forth in this paragraph.
12.
On December 3, 1998, the Sun-Times entered into an agreement to sell the
property to Kenard Investments, Inc. (“Kenard”) and on October 27, 1999, Kenard assigned its
interest to Smithfield. On June 6, 2002, almost four years after the sale, Sun-Times informed the
OSFM that it had sold the property to Kenard.
ANSWER:
Wooton lacks sufficient knowledge to either admit or deny the allegations set
forth in this paragraph.
13.
Prior to the sale ofthe Site, Sun-Times did not remediate the soil at the Site, with
the exception of the small area impacted with gasoline under LUST Incident No. 991013. Sun-
Times left in-place soil contaminated with either gasoline and/or diesel fuel from either leaking
USTs and/or surface spills when Sun-Times was using the Site for a number of years as a fleet
vehicle maintenance and refueling facility.
ANSWER: Wooton lacks sufficient knowledge to either admit or deny whether the Sun-
Times conducted remediation at the Site in addition to that in response to Incident No.
991013. Wooton admits that any contamination found at the Site was not caused or
allowed by Wooton.
14.
At an unspecified date, Smithfield and Wooton began constructing a town house
complex on the Site purchased from Sun-Times. Several ofthe town houses were constructed on
top of the contaminated soil.
ANSWER:
Wooton admits that it contracted with Smithfield for the construction of
town houses at the Site. Wooton denies the remaining allegations contained in this
paragraph.
15.
In November 1999, Wooton removed an active 10,000 gallon diesel UST from
the site. Wooton removed the UST without permission from the OSFM or a permit from the City
ofChicago Department ofthe Environment.
ANSWER:
Wooton admits that in November 1999 Wooton contracted for the removal
of a 10,000-gallon UST from the Site. Wooton denies any remaining allegations contained
3
in this paragraph.
16.
In the Spring of 2001, while Respondents Smithfield and Wooton were
conducting construction related activities at the Site, an on-site drinking water main ruptured.
Shortly after the rupture of the drinking water main, a resident ofthe new town homes at the Site
reported a petroleum taste in his drinking water.
ANSWER:
Admit.
17.
When consultants hired by Wooton were investigating the petroleum tasting
water complaint, they discovered that the soil in the area where the water main ruptured was
contaminated with diesel fuel.
ANSWER:
Admit.
18.
Upon information and belief, Complainant alleges that the source of the soil
contamination in the area where the water main ruptured was from one or more of the USTs
owned and operated by Sun-Times andlor surface spills ofpetroleum products over a number of
years when Sun-Times used the Site as a fleet vehicle maintenance and refueling facility.
ANSWER:
Wooton lacks sufficient knowledge to either admit or deny the allegations
set forth in the paragraph. Wooton denies that it caused or allowed any contamination at
the Site.
19.
In April 2001, Wooton retained an engineering firm to conduct subsurface
investigation and remediation activities.
ANSWER:
Admit.
•
• •
20.
On
May 24, 2001, the engineering firm retained by Wooton submitted to the
Illinois EPA LUST Section its remedial action completion report. The remediation consisted of
removing 425 tons ofdiesel contaminated soil to a depth of 3 to 4 feet and backfilling the area
with clean clay soil. Contaminated soil was removed from areas in the open courtyard in front of
town home units numbers 23 through 42.
ANSWER:
Wooton admits that Wooton’s consultant submitted a remedial action
completion report to the Illinois EPA. Wooton further admits that the report described the
removal ofsoil containing constituents indicative of diesel fuel.
21.
On July
27, 2001, the Illinois EPA rejected the remedial action completion report
because contamination still remains at the site. Since groundwater was encountered at the Site, a
full groundwater investigation should have been conducted to determine the extent of
groundwater contamination.
ANSWER:
Wooton admits that the Illinois EPA rejected the remedial action completion
report. Wooton denies the remaining allegations set forth in this paragraph.
22.
On
January 28, 2002, the Illinois EPA received a groundwater classification study
and Tier 2 evaluation submitted by Smithfield.
On March
20, 2002, the Illinois EPA rejected the
study because groundwater contaminant analysis was not conducted.
4
ANSWER:
Wooton admits that Smithfield IV submitted a groundwater classification
study and Tier 2 evaluation to the Illinois EPA. Wooton further admits that the Illinois
EPA rejected the study. Wooton denies the remaining allegations set forth in this
paragraph.
23.
Section
57.6(a)
of
the Act, 415
ILCS
5/57.6(a)
(2002), titled,
Underground
storage tanks: early action,
provides
as
follows:
(a)
Owners and operators
of underground
storage tanks shall, in response to
all confirmed releases, comply with all applicable statutory and
regulatory reporting and response requirements.
ANSWER:
Wooton admits that the State has accurately quoted a portion of the Board’s
regulations.
24.
•
Section 732.103 of the Illinois Pollution Control Board (“Board”) Waste
Disposal Regulations, 35 Ill. Adm. Code, 732.103 titled, Definitions, provides the following
pertinent definitions:
“CORRECTIVE ACTION” means activities associated with compliance with the
provisions ofSections
57.6
and 57.7 ofthe Act. (Section 57.2 of the Act.)
“RESIDENTIAL UNIT” means a structure used primarily for dwelling purposes
including multi-unit dwellings such as apartment buildings, condominiums,
cooperatives or dormitories.
“SITE” means any single location, place, tract of land or parcel of property
including contiguous property not separated by a public right-of-way. (Section
3.61 ofthe Act)
“UNDERGROUND STORAGE TANK” or “UST” means any one or
combination of tanks (including underground pipes connected thereto) which is
used to contain an accumulation of regulated substances, and the volume of
which (including the volume ofunderground pipes connected thereto) is 10 per
centum or more beneath the surface of the ground. Such term does not include
any ofthe following or any pipes connected thereto.
“UST SYSTEM” or “tank system” means an underground storage tank,
connected underground piping, underground ancillary equipment, and
containment system, if any.
“OCCURRENCE” means any release from an underground storage tank,
including any additional release from that underground storage tank at the site
identified in the course of performing corrective action in response to the initial
release. (Section 57.2 ofthe Act)
“OSFM” means the Office ofthe State Fire Marshal.
“OPERATOR” means any person in control of, or having responsibility for, the
daily operation ofthe underground storage tank. (42 U.S.C. Section 6991)
5
“OWNER” in the case of an underground storage tank in use on November 8,
1984, or brought into use after that date, any person who owns an underground
•
storage tankused for the storage, use or dispensing of regulated substances;
“PERSON” means, for the purposes of interpreting the definitions of the ternis
“owner” or “operator,” an individual, trust, firm, joint stock company, joint
venture, consortium, commercial entity, corporation (including a government
corporation), partnership, association, state, municipality, commission, political
subdivision of a state, or any interstate body and shall include the United States
Government and each department, agency, and instrumentality of the United
States. (Derived from 42 U.S.C. Section 6991)
“PETROLEUM” means petroleum, including crude oil or any fraction thereof
which is liquid at standard conditions oftemperature and pressure (60 F and 14.7
pounds per square inch absolute).
.
(Derived from 42 U.S.C. Section 6991)
“PHYSICAL SOIL CLASSIFICATION” means verification of geological
conditions consistent with regulations for identif~’ingand protecting potable
resource groundwater or verification that subsurface strata are as generally
mapped in the publication Illinois Geological Survey Circular (1984) entitled
“Potential for Contamination of Shallow Aquifers in Illinois,” by Berg, Richard
C., et al. Such classification may include review of soil borings, well logs,
• physical soil analysis, regional geologic maps, or other scientific publications
(Section 57.2 ofthe Act).
“RELEASE” means any spilling, leaking, emitting, discharging, escaping,
leaching, or disposing of petroleum from an underground storage tank into
groundwater, surface water or subsurface soils. (Section 57.2 ofthe Act)
ANSWER:
Wooton admits that the State has accurately quoted a portion of the Board’s
regulations.
25.
Pursuant to the definition of 35 Ill. Adm. Code 732.103, Respondents are owners
ofthe USTs at the Site because the USTs were in use on November 8, 1984, or brought into use
after that date.
ANSWER:
The allegations set forth in this paragraph contain legal conclusions to which
no response is required.
26.
The USTs at the Site and their associated underground equipment are UST
systems as that term is defined by 35 Iii. Adm. Code 731.103.
ANSWER:
The allegations set forth in this paragraph contain legal conclusions to which
no response is required.
27.
There was a release of petroleum products on the Site on or before November
1999, as the term “release” is defined by 35 Ill. Adm. Code 722.103.
ANSWER:
The allegations set forth in this paragraph contain legal conclusions to which
no response is required.
6
28.
Section 732.300(a) ofthe Board Waste Disposal Regulations, 35 Ill. Adm. Code
732.300(a), titled,
General,
provides as follows:
(a)
Except as provided in subsection (b) below, the owner or operator of any
site subject to this Part shall evaluate and classify the site in accordance
with the requirements of this Subpart C. All such sites shall be classified
as “No Further Action,” “Low Priority” or “High Priority”. Site
classifications shall be based on the results of the site evaluation,
•
including, but not limited to, the physical soil classification and the
groundwater investigation, if applicable.
ANSWER:
Wooton admits that the State has accurately quoted a portion of the Board’s
regulations.
29.
Section 732.307(a) ofthe Board Waste Disposal Regulations, 35 Ill. Adm. Code
732.307(a), titled,
Site EvaluatjQji,
provides as follows:
(a)
Except as provided in Section 732.200(b), the owner or operator of any
site for which a release of petroleum has been confirmed in accordance
with regulations promulgated by the OSFM and reported to IEMA shall
arrange for site evaluation and classification in accordance with the
requirements of this Section. A Licensed Professional Engineer (or,
where appropriate, persons working under the direction of a Licensed
Professional Engineer) shall conduct the site evaluation. The results of
the site evaluation shall provide the basis for determining the site
evaluation. The results of the site evaluation shall provide the basis for
determining the site classification. The site classification shall be certified
as required by the supervising Licensed Professional Engineer.
ANSWER:
Wooton denies that the State has accurately quoted this section of the
Board’s regulations.
30.
Section 732.100(c) ofthe Board Waste Disposal Regulations, titled,
Aovlicabilitv,
provides as follows:
***
(c)
Owners or operators subject to this Part by law or by election shall
proceed expeditiously to comply with all requirements of the Act and the
regulations and to obtain the “No Further Remediation” letter signifying
final disposition of the site for purposes ofthis Part. The Agency may use
its authority pursuant to the Act and Section 732.105 of this Part to
expedite investigative, preventive or corrective action by an owner or
•
operator or to initiate such action.
ANSWER:
Wooton admits that the State has accurately quoted a portion of the Board’s
regulations.
31.
Respondents, Smithfield and Wooton as owners
and/or operators of the Site
where a release
of petroleum products
occurred did
not
perform a site evaluation and
7
classification in accordance with the requirements of 35 Ill. Adm. Code 732.300(a) and
732.307(a).
ANSWER:
The allegations set forth in this paragraph contain legal conclusions to which
no response is required. To the extent that this paragraph contains any factual allegations,
they are denied.
32.
By failing to perform site evaluation and classification in accordance with 35 Ill.
Adm. Code 732.300(a) and 732.307(a), Respondents Smithfield and Wooton violated Section
732.100(c) ofthe Board Waste Disposal Regulations, 35 Ill. Adm. Code 732.100(c) and, thereby
violated Section
57.6(a)
ofthe Act, 415 ILCS 5/57.6(a) (2002).
ANSWER:
Denied.
COUNT II
FAILURE TO COMPLY WITH REPORTING
AND RESPONSE REQUIREMENTS
1-27. Complainant realleges and incorporates by reference herein, paragraphs 1 through
27 ofCount I as paragraphs 1 through 27 ofthis Count II.
ANSWER:
Wooton incorporates its answers to paragraphs 1 through 27 of Count I as its
answers to paragraphs 1 through 27 of this Count II.
28.
Section 732.200 of the Board Waste Disposal Regulations, 35 Ill. Adm. Code
732.200, titled,
General
provides as follows:
Owners and operators of underground storage tanks shall, in response to all
confirmed releases of petroleum, comply with all applicable statutory and
regulatory reporting and response requirements. (Section
57.6(a)
of the Act) No
work plan shall be required for conducting early action activities.
ANSWER:
Wooton admits that the State has accurately quoted a portion of the Board’s
regulations.
29.
Respondents Smithfield and Wooton failed to report the confirmed release of
petroleum products at the Site in accordance with the requirement of 35 Ill. Adm. Code 732.200.
ANSWER:
Denied.
30.
By failing to report the confirmed release of petroleum products at the Site,
Respondents Smithfield and Wooton violated Section 732.200 of the Board Waste Disposal
Regulations, thereby violating Section 57.6(a) ofthe Act, 415 ILCS 5/57.6(a) (2002).
ANSWER:
Denied.
8
COUNT III
FAILURE TO PERFORM INITIAL RESPONSE ACTIONS
1-27. Complainant realleges and incorporates by reference herein, paragraphs 1 through
27 ofCount I as paragraphs 1 through 27 of this Count III.
ANSWER:
Wooton incorporates its answers to paragraphs 1 through 27 of Count I as its
answers to paragraphs 1 through 27 of this Count III.
28.
Section 732.203(a) of the Board Waste Disposal Regulations, 35 Ill. Adm. Code
732.202(a), titled,
Early Action,
provides as follows:
a)
Upon confirmation of a release of petroleum from a UST system in
accordance with regulations promulgated by the OSFM, the owner or
operator, or both, shall perform the following initial response actions
within 24 hours after the release:
1)
Report the release to IEMA (e.g., by telephone or electronic mail)
2)
Take immediate action to prevent any further release of the
regulated substance to the
environment; and
3)
Identify and mitigate fire, explosion and vapor hazards.
ANSWER:
Wooton admits that the State has accurately quoted a portion of the Board’s
regulations.
29.
Respondents Smithfield and Wooton did not perform initial response actions
within 24 hours after confirmation of the release ofpetroleum from the Site as required by 35 Ill.
Adm. Code 732.203(a).
ANSWER:
Denied.
30.
By failing to perform initial response actions within 24 hours after the confirmed
release of petroleum, Respondents Smithfield and Wooton violated Section 73 2.202 (a) of the
Board Waste Disposal Regulations, thereby violating Section 57.6(a) of the Act, 415 ILCS
5/57.6(a)
(2002).
ANSWER:
Denied.
COUNT IV
FAILURE TO PERFORM INITIAL ABATEMENT MEASURES
1-27. Complainant realleges and incorporates by reference herein, paragraphs 1
through 27 ofCount I as paragraphs 1 through 27 ofthis Count IV.
ANSWER:
Wooton incorporates its answers to paragraphs 1 through 27 of Count I as its
answers to paragraphs 1 through 27 of this Count IV.
9
28.
Section 732.202(b) of the Board Waste Disposal Regulations, 35 Ill. Adm. Code
732.202(b), titled,
Early Actioii,
provides as follows:
(b)
Upon confirmation of a release of petroleum from a UST system in
accordance with regulations promulgated by the OSFM, the owner or
operator shall perform the following initial abatement measures:
1)
Remove as much of the petroleum from the UST system as is
necessary to prevent further release into the environment;
2)
visually inspect any above ground releases or exposed below
ground releases and prevent further migration of the released
substance into surrounding soils and groundwater;
3)
Continue to monitor and mitigate any additional fire and safety
hazards posed by vapors or free product that have migrated from
the UST excavation zone and entered into subsurface structures
(such as sewers or basements);
4)
Remedy hazards posed by contaminated soils that are excavated
•
or exposed as a result of release confirmation, site investigation,
abatement or corrective action activities. Ifthese remedies include
treatment or disposal of soils, the owner or operator shall comply
with 35 Ill. Adm. Code 722, 724, 725, and 807 through 815;
5)
Measure for the presence of a release where contamination is
most likely to be present at the UST site, unless the presence and
source of the release have been confirmed in accordance with
regulations promulgated by the OSFM. In selecting sample types,
sample locations, and measurement methods, the owner or
operator shall consider the nature of the stored substance, the type
of backfill, depth to groundwater and other factors as appropriate
•
for identifying the presence and source ofthe release; and
6)
Investigate to determine the possible presence offree product, and
begin free product removal as soon as practicable and in
accordance with Section 732.203 below.
ANSWER: Wooton denies that the State has accurately quoted this section of the Board’s
regulations.
29.
Respondents Smithfield and Wooton did not adequately perform initial
abatement measures after confirmation ofthe release ofpetroleum products.
ANSWER:
Denied.
•
10
30.
By failing to adequately perform initial abatement measures after confirmation of
release, Respondents Smithfield and Wooten violated 35 Ill. Adm. Code 732.202(b) and thereby
violated Section
57.6(a)
ofthe Act, 415 ILCS
5/57.6(a)
(2002).
ANSWER:
Denied.
COUNT V
FAILURE TO ASSEMBLE INFORMATION ABOUT THE SITE
1-27.
Complainant realleges and incorporates by reference herein, paragraphs 1
through 27 ofCount I as paragraphs 1 through 27 of this Count V.
ANSWER:
Wooton incorporates its answers to paragraphs 1 through
27 of
Count I as its
answers to paragraphs 1 through 27 ofthis Count V.
28.
Section 73
2.202(d)
ofthe Board Waste Disposal Regulations,
35
Ill. Adm. Code
732.202(d), titled,
Early Acik~ii,
provides as follows:
d)
Owners or operators shall assemble information about the site and the
nature of the release, including information gained while confirming the
release or completing the. initial abatement measures in subsections (a)
and (b) above. This information must include, but is not limited to, the
following:
1)
Data on the nature and estimated quantity ofrelease;
2)
Data from available sources or site investigations concerning the
following factories: surrounding populations, water quality, use
and approximate locations of wells potentially affected by the
release, subsurface soil conditions, locations ofsubsurface sewers,
•
climatological conditions and land use;
3)
Results of the site check required at subsection (b)
(5)
of this
Section;
4)
Results of the free product investigations required at subsection
•
.
(b) (6) of this Section, to be used by owners or operators to
determine whether free product must be recovered under Section
732.203.
ANSWER: Wooton denies that the State has accurately quoted this section of the Board’s
regulations.
29.
Respondents Smithfield and Wooton as owners and/or operators of the Site
where a release occurred did not assemble information about the Site and the nature of the
release after confirmation of the release.
ANSWER:
Denied.
11
30.
By failing to assemble information about the Site and the nature of the release
after confirmation of the release, Respondents Smithfield and Wooton violated 35 Ill. Adm.
Code 732.202(d), thereby violating Section
57.6(a)
ofthe Act, 415 ILCS
5/57.6(a)
(2002).
ANSWER:
Denied.
COUNT VI
FAILURE TO SUBMIT PHYSICAL SOIL
CLASSIFICATION AND GROUNDWATER
INVESTIGATION PLAN
1-27.
Complainant realleges and incorporates by reference herein, paragraphs I
through 27 of Count I as paragraphs 1 through 27 ofthis Count VI.
ANSWER:
Wooton incorporates its answers to paragraphs 1 through 27 of Count I as its
answers to paragraphs 1 through 27 of this Count VI.
28.
Section
57.7(a)
(1) of the Act, 415 ILCS
5/57.7(a)
(1) (2002), titled,
Leaking
Underground Storage Tanks; Site Investigation, and Corrective Action,
provides as follows:
(a)
Site Investigation.
(1)
For any site investigation activities required by statute or rule, the
owner or operator shall submit to the Agency for approval a site
investigation plan designed to determine the nature, concentration,
direction of movement, rate of movement, and extent of the
contamination as well as the significant physical features of the
site and surrounding area that may affect contaminant transport
and risk to human health and safety and the environment.
ANSWER:
Wooton admits that the State has accurately quoted this section of the Act.
29.
Respondents Smithfield and Wooton, as owners and operators of the Site where a
release of petroleum products occurred, failed to submit to the Illinois EPA a site investigation
plan in accordance with the requirements of Section
57.7(A)
(1) of the Act, 415 ILCS
5/57.7(a)
(1) (2002).
ANSWER:
Denied.
30.
By failing to submit to the Illinois EPA a site investigation plan in accordance
with the requirements of Section
57.7(a)
(1), Respondents Smithfield and Wooton violated
Section 57.7(a) (1) ofthe Act, 415 ILCS
5/57.7(a)
(1) (2002).
ANSWER:
Denied.
12
COUNT VII
CAUSING OR TENDING TO CAUSE WATER POLLUTION
1-22.
Plaintiff realleges and incorporates by reference herein, paragraphs 1 through
22 ofCount I as paragraphs 1 through 22 of this Count VII.
ANSWER:
Wooton incorporates its answers to paragraphs 1 through
22 of
Count I as its
answers to paragraphs 1 through
22
ofthis Count VII.
23.
Section 12(a) ofthe Act, 415 ILCSS/12 (a) (2002) provides as follows:
No person shall:
a.
Cause or threaten or allow the discharge of a contaminant into the
environm~ntin any State so as to cause or tend to cause water pollution in
Illinois, either alone or in combination with matter from other sources, or
so as to violate regulations or standards adopted by the Pollution Control
Board under this Act.
ANSWER:
Wooton admits that the State has accurately quoted Section 12(a) of the Act.
24.
Section 3.3 15 ofthe Act, 415 ILCS 5/3.3 15 (2002), defines person as follows:
“PERSON” is any individual, partnership, co-partnership, firm, company, limited
liabiilty company, corporation, association, joint stock company, trust, estate,
political subdivision, state agency, or any other legal entity, or their legal
representative, agent or assigns.
ANSWER:
Wooton admits that the State has accurately quoted this section of the
Board’s regulations.
25.
Respondents Smithfield and Wooton are each a “person” as that term is defined in
Section 3.3 15 ofthe Act, 415 ILCS
5/3.3
15 (2002).
ANSWER:
Admit.
26.
Section 3.165 of the Act, 415 ILCS 5/3.165 (2002), defines contaminant as “any
solid, liquid or gaseous matter, any odor, or any form ofenergy, from whatever source.”
ANSWER:
Admit.
27.
Diesel or gasoline fuel which was released from one or more USTs in waters of
the State is a contamiimt (sic) as that term is defined by Section 3.165 of the Act, 415 ILCS
5/3.165 (2002).
ANSWER:
Wooton admits that diesel fuel and gasoline are “contaminants” as that term
is defined in Section 3.165 of the Act. Smithfield IV denies the remaining allegations
contained in this paragraph.
28.
Section 3.545 ofthe Act, 415 ILCS 53.545 (2002), defines water pollution:
13
“WATER POLLUTION” is such alteration of the physical, thermal, chemical,
biological or radioactive properties of any waters of the State, or such discharge
of any contamination into any waters ofthe State, as will or is likely to create a
nuisance or render such waters harmful or detrimental or injurious to public
health, safety or welfare, or to domestic, commercial, industrial agricultural,
recreational, or other legitimate uses, or to livestock, wild animals, birds, fish or
other aquatic life.
ANSWER:
Wooton admits that the State has accurately quoted Section 3.545 of the Act.
29.
Section
3.550
ofthe Act, 415 ILCS 5/3.550 (2002), defines “Waters of the State”
as follows:
“WATERS” means all accumulations ofwater, surface and underground, natural
and artificial, public and private, or parts thereof, which are wholly or partially
within, flow through, or border upon this State.
ANSWER:
Wooton admits that the State has accurately quoted Section 3.550 of the Act.
30.
The underground water at the Site which was contaminated by the release of
diesel and/or gasoline fuel from one or more of the USTs and/or surface spills is a water ofthe
State as the term “water” is defined by Section 3.550 ofthe Act, 415 ILCS 5/3.550 (2002); (sic)
ANSWER:
The allegations set forth in this paragraph contain legal conclusions to which
no response is required. To the extent that this paragraph contains any factual allegations,
they are denied.
31.
From sometime prior to November
1999, until the date of
filing of this
Complaint, the groundwater at the site remains contaminated with diesel and/or gasoline fuel
released from one or more USTs and/or from surface spill of petroleum products during Sun-
Time’s long usage ofthe Site as a garage and refuelng station for its fleet vehicles.
ANSWER:
Denied.
32.
Respondents Smithfield and Wooton took no action to remediate the
groundwater contamination at the Site; (sic)
ANSWER:
Denied.
33.
Respondents Smithfield and Wooton by their actions and/or inactions caused,
threatened, or allowed the discharge of contaminants, into the environment so as to cause or tend
to cause water pollution in Illinois.
ANSWER:
Denied.
14
COUNT
VIII
FAILURE TO SUBMIT A 45-DAY REPORT
1-27.
Complainant realleges and incorporates by reference herein, paragraphs 1
through 27 ofCount I as paragraphs 1 through 27 ofthis Count VIII.
ANSWER:
Wooton incorporates its answers to paragraphs 1 through 27 of Count I as its
answers to paragraphs 1 through 27 of this Count VIII.
28.
Section 732.202(e) ofthe Board Waste Disposal Regulations, 35 Ill. Adm. Code
732.202(e) titled,
Early Action, provides as follows:
(e)
Within 45 days after confirmation of a release of petroleum from a UST
system in accordance with regulations promulgated by the OSFM, owners
or operators shall submit to the Agency the information collected in
compliance with subsection (d) above in a manner that demonstrates its
applicability and technical adequacy. The information shall be submitted
on forms prescribed by the Agency or in a similar format containing the
same information.
•
ANSWER:
Wooton denies the State has accurately quoted this portion of the Board’s
regulations.
29.
In November 1999, when Smithfield and Wooton removed the active 10,000
gallon diesel UST from the Site, they were the owners and/or operators ofthe UST.
ANSWER:
The allegations set forth in this paragraph contain legal conclusions to
which no response
is
required. To the extent that this paragraph contains any factual
allegations, they are denied.
30.
Respondents Smithfield and Wooton as owners and/or operators of the UST
system and/or Site where the release of petroleum products occurred, did not submit a report
summarizing information about the Site and nature of the release within 45 days after
confirmation ofthe release.
ANSWER:
The allegations set forth in this paragraph contain legal conclusions to
which no response is required. To the extent that this paragraph contains any factual
allegations, they are denied.
31.
By failing to submit a report summarizing information about the Site and nature
of the release within 45 days after confirmation of the release, Respondents Smithfield and
Wooton violated 35 Ill. Adm. Code 732.202(e) and thereby, also violated Section 57.6(a) of the
Act, 415 ILCS 5/57.6(a) (2002).
ANSWER:
Denied.
15
II.
VIOLATIONS BY CHICAGO SUN-TIMES
COUNT IX-COUNT XI
ANSWER:
The allegations set forth in Counts IX through Count XI pertain to a
Respondent other than Wooton. Accordingly, no answer is required.
WHEREFORE Wooton requests that the Board enter an order dismissing the State’s
complaint and awarding Wooton its costs and fees incurred in this matter.
Respectfully submitted,
It(evin B. Hynes
t\~’KEEFE,LYONS & HYNES, LLC
3l~N.LaSalle Street, Suite 4100
Chicago, Illinois 60602
(312) 621-0400
ATTORNEYS FOR WOOTON
16
CERTIFICATE OF SERVICE
I, Kevin B. Hynes, an attorney, certify that on September 28, 2004, I caused the
foregoing Notice ofFiling, Appearance, and Answer to be served by First Class, postage prepaid,
U.S. Mail on the following:
Zemeheret Bereket-Ab
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois 60601
Janine M. Landau-Esser
Michael S. Mostow
Quarles & Brady
500 W. Madison Street
Suite 3700
Chicago, Illinois 60661
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph St., 11-500
Chicago, Illinois 60601
/
Kevin B. Hy~
