RE~ilVED
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
PEOPLE OF
THE STATE
OF ILLiNOIS
LISA MADIGAN, Attorney General
State ofIllinois,
SMITHFIELD PROPERTIES, L.L.C.
an Illinois limited liability
company, WOOTON CONSTRUCTION,
LTD., an Illinois corporation, and
CHICAGO SUN-TIMES, INC., a Delaware
corporation,
Respondents.
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JUN
29
2004
STATE OF ILLINOIS
Pollution Control Board
No. PCB No. 04-192
(Enforcement
—
Land &
Water)
NOTICE OF FILING
TAKE NOTICE that today I filed with the Clerk of the Illinois Pollution
Control Board
the attached Appearance
and Answer, copies ofwhichare hereby served upon you.
Dated:
June 29, 2004
‘in B. Hynes
U
O’KEEFE, LYONS
& HYNES, LLC
30 N. LaSalle Street, Suite 4100
Chicago, Illinois 60602
(312) 621-0400
ATTORNEY FOR RESPONDENT
SMITHFIELD
PROPERTIES IV, LLC
Complainant,
vs.
THIS
DOCUMENT IS
SUMITTED ON RECYCLED PAPER
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN, Attorney General
State ofIllinois,
Complainant,
vs.
SMITHFIELD PROPERTIES, L.L.C.
an Illinois limited liability
company, WOOTON CONSTRUCTION,
LTD., an Illinois corporation, and
CHICAGO SUN-TIMES, INC., a Delaware
corporation,
Respondents.
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No. PCB No.04-192
(Enforcement
—
Land &
Water)
)
)
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)
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)
)
APPEARANCE
I
hereby
file
my
appearance
in
this
Properties IV,
LLC.
matter
on
behalf of
the
Respondent,
Smithfield
‘in B.
Hynes
v
O’KEEFE, LYONS & HYNES, LLC
30 N. LaSalle Street, Suite 4100
Chicago, Illinois 60602
(312) 621-0400
Respectfully submitted,
BEFORE THE
ILLINOIS POLLUTION CONTkOL.BOARD~~~~ED
PEOPLE OF
THE STATE OF ILLINOIS
)
JUN
292004
LISA MADIGAN, Attorney General
STATE OF ILLINOIS
State ofIllinois,
)
Pollution Control Board
)
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, iNC., a Delaware
)
corporation,
)
)
Respondents.
)
ANSWER OF SMITHFIELD PROPERTIES IV, LLC
NOW COMES
the
Respondent,
Smithfield
Properties IV, LLC
(“Smithfield
IV”), 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
Pcople
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:
Smithfield
IV admits that it
is
an Illinois limited liability company.
3.
At all
times
relevant to
this
Complaint, Wooton Construction,
Ltd.
(“Wooton”)
was and is an Illinois corporation.
ANSWER:
The
allegations set forth in
this paragraph apply
to
a
respondent other
than
Smithfield
IV.
Smithfield
IV
lacks
sufficient
knowledge
to
either
admit
or
deny
this
paragraph.
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:
Smithfield
IV
admits that the property
is
located
at 222
S.
Racine Avenue,
Chicago, Illinois.
Smithfield IV denies that any violations of the Act occurred at the Site.
5.
Historically,
the
Site
has
had
several
petroleum
underground
storage
tanks
(“USTs”).
Some
ofthe 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:
Smithfield
IV
admits
that
USTs
were
located
at
the
Site.
Smithfield
IV
admits that
some
of the
USTs
have
been
removed from
the
Site
or
abandoned
in
place.
Smithfield IV 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:
Smithfield
IV
admits
that
the
Sun-Times
was
a
prior
owner of the
Site.
Smithfield IV denies that it was sold the property by the Sun-Times.
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:
Smithfield
IV
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:
Smithfield IV 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 of petroleum 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:
Smithfield IV 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:
Smithfield IV 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:
Smithfield IV 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:
Smithfield
IV
admits that on December
3,
1998
the Sun-Times
entered
into
an
agreement with
Kenard
for
the
purchase
of
the
Site.
Smithfield
IV
denies
that
on
October 27,
1999
Kenard
assigned
its
interest
in
the
Site
to Smithfield
IV.
In
January
1999,
Kenard
assigned
its
interest
in
the
Site
to
The
Clare
Group,
Ltd.,
an
Illinois
corporation.
In
October
1999,
The
Clare
Group,
Ltd. assigned
its
interest
in
the
Site
to
Smithfield IV.
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:
Smithfield
IV
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.
Smithfield
IV
admits that any contamination
found
at the Site was
not caused
or
allowed
by Smithfield IV.
14.
At an
unspecified date, Smithfield and Wooton began constructing a
town house
complex on the Site purchased from
Sun-Times.
Several of the town houses were constructed on
top ofthe contaminated soil.
ANSWER:
Smithfield
IV
admits that it contracted with Wooton for the construction of
town
houses
at
the Site.
Smithfield
IV
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
3
ofChicago Department ofthe Environment.
ANSWER:
Smithfield
IV
admits
that
in
November
1999
Wooton
contracted
for
the
removal of
a
10,000-gallon
UST
from
the
Site.
Smithfield
IV
denies
any
remaining
allegations contained 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 ofthe 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 and/or surface spills of petroleum products
over a number of
years when Sun-Times used the Site as a fleet vehicle maintenance
and refueling facility.
ANSWER:
Smithfield
IV
lacks
sufficient
knowledge
to
either
admit
or
deny
the
allegations set forth
in
the paragraph.
Smithfield
IV
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
of diesel 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:
Smithfield
IV
admits that Wooton’s
consultant
submitted
a
remedial
action
completion
report
to
the
Illinois
EPA.
Smithfield
IV
further
admits
that
the
report
described the removal of soil 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:
Smithfield
IV
admits
that
the
Illinois
EPA
rejected
the
remedial
action
completion
report.
Smithfield
IV
denies
the
remaining
allegations
set
forth
in
this
paragraph.
4
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.
ANSWER:
Smithfield
IV
admits that
it
submitted
a
groundwater
classification
study
and
Tier 2
evaluation
to the Illinois
EPA.
Smithfield
IV
further admits
that the Illinois
EPA
rejected
the study.
Smithfield
IV
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:
Smithfield
IV..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 of Sections 57.6 and 57.7 ofthe Act.
(Section 57.2 ofthe 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
of underground
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)
5
“OSFM” means the Office ofthe State Fire Marshal.
“QPERATOR” means any person in control of, or having respon~sibi1ityfor, the
daily operation ofthe underground storage tank. (42 U.S.C.
Section 6991)
“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 tank used forthe storage, use or dispensing ofregulated substances;
“PERSON” means, for the purposes of interpreting the
definitions of the terms
“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 ofa 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 of temperature 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
identifying
and
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:
Smithfield
IV
admits
that the State
has accurately quoted
a
portion
of the
Board’s regulations.
25.
Pursuant tc~
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
afterthat 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
Ill.
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
6
1999, as the term “release” is defined by 35
III. Adm. Code 722.103.
ANSWER:
Theallegations set forth in this paragraph contain legal conclusions to which
no response is
required.
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:
Smithfield
IV
admits that the State has
accurately
quoted
a
portion
of the
Board’s regulations.
29.
Section
732.307(a) of the Board Waste Disposal Regulations,
35
Ill. Adm.
Code
732.307(a), titled,
Site Evaluation.,
provides as follows:
(a)
Except
as provided .in
Section
73 2.200(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
IBMA
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:
Smithfield IV
denies that the State has accurately
quoted
this section of the
Board’s regulations.
30.
Section 73 2.100(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:
Smithfield
IV
admits that the State
has
accurately
quoted
a
portion
of the
7
Board’s regulations.
31.
Respondents,
Smithfield
and
Wooton
as
owners
and/or
operatQrs
of the
Site
where
a
release
of
petroleum
products
occurred
did
not
perform
a
site
evaluation
and
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
Iii.
Adm.
Code
732.300(a)
and
732.307(a),
Respondents
Smithfield
and
Wooton violated
Section
732.100(c) of the 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:
Smithfield IV
incorporates
its
answers to paragraphs
1
through 27 of Count
I as its
answers to, paragraphs
1 through 27 ofthis 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:
Smithfield
IV
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 viblating Section 57.6(a) ofthe Act, 415
ILCS
5/57.6(a)
(2002).
ANSWER:
Denied.
8
COUNT HI
FAILURE TO PERFORM INITIAL RESPONSE ACTIONS
1-27. Complainant
realleges and incorporates by reference herein, paragraphs
1
through
27 of Count I as paragraphs
1 through 27 ofthis Count III.
ANSWER:
Smithfield
IV incorporates
its answers to paragraphs
1
through
27 of Count
I as
its answers to paragraphs
1 through 27 ofthis Count III.
28.
Section 732.203(a) of the Board
Waste Disposal Regulations,
35
Ill.
Adm.
Code
732.202(a), titled,
Early Actim,
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:
Smithfield
IV
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 ofthe 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
732.202
(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:
Smithfield
IV
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 Action,
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 performthe following initial abatement measures:
1)
Remove as
much
of the petroleum from
the
UST system
as
is
necessary to prevent furtherrelease 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 ofthe 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:
Smithfield
IV
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 of Count I as paragraphs
1 through 27 of this Count V.
ANSWER:
Smithfield
IV incorporates
its
answers
to paragraphs
1
through
27
of Count
I as its answers to paragraphs
1 through
27
ofthis
Count V.
28.
Section 732.202(d) ofthe Board Waste Disposal Regulations,
35
Ill.
Adm.
Code
732.202(d), titled,
Early Action,,
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 of subsurface 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:
Smithfield
IV
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 ofthe 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), t~iereby
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 ofCount I as paragraphs
1 through 27 ofthis Count VI.
ANSWER:
Smithfield
IV 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,
LeakinR
Underground Stora~geTanks; Site Investi~gation,
and Corrective Actkjj,
provides as follows:
(a)
Site Investigation.
(1)
For any
site inyestigation 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,:
Smithfield
IV
admits that the
State has accurately
quoted this
section
of the
Act.
29.
Respondents
Smithfield and Wooton, as owners
and
operators ofthe 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 ofthis Count VII.
ANSWER:
Smithfield
IV incorporates its
answers to paragraphs
1
through 22
of Count
I as its answers to paragraphs
1 through
22
of this
Count VII.
23.
Section 12(a) of the Act, 415
ILCS 5/12 (a) (2002) provides as follows:
No person shall:
a.
Cause
or
threaten
or
allow
the
discharge
of
a
contaminant
into
the
environment in 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:
Smithfield
IV
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:
Smithfield IV 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 of the 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
contaminnt
(sic)
as that term is
defined
by
Section
3.165
of the
Act,
415
ILCS
5/3.165
(2002).
ANSWER:
Smithfield IV
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.
1,’
ii
28.
Section 3.545 ofthe Act, 415 ILCS
53.545 (2002), defines water pollution:
“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:
Smithfield
IV
admits that the State has
accurately
quoted
Section
3.545
of
the Act.
29.
Section 3.550
of the Act, 415
ILCS
5/3.550 (2002), defines “Waters of.the State”
as follows:
“WATERS” means all accumulations of water, 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:
Smithfield
IV
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:
Smithfield
IV 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
Iii.
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:
Smithfield IV
admits
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 Smithfield
IV.
Accordingly, no answer is required.
WHEREFORE
Smithfield
IV
requests
that
the
Board
enter
an
order
dismissing
the
State’s complaint and awarding Smithfield IV its costs and fees incurred in
this matter.
Respectfully submitted,
I
((evin B. Hynes
O.TKEEFE, LYONS & HYNES, LLC
30 N. LaSalle Street, Suite 4100
Chicago, Illinois 60602
(312)621-0400
ATTORNEY FOR SMITHFIELD IV
16
CERTIFICATE OF SERVICE
I,
Kevin
B.
Hynes,
an
attorney,
certify
that
on
June 29,
2004,
I caused
the foregoing
Notice
of Filing,
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
100W. Randolph St.,
11-500
Chicago, Illinois 60601
~_~
Kevin B. Hynes
O
