ILLINOIS POLLUTION CONTROL BOARD
August 8, 2002
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
WOOD RIVER REFINING COMPANY, a
division of EQUILON ENTERPRISES,
L.L.C.,
Respondent.
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PCB 99-120
(Enforcement – Air)
ORDER OF THE BOARD (by R.C. Flemal):
On February 23, 1999, complainant, the People of the State of Illinois, filed a two-
count complaint against respondent Wood River Refining Company, operator of a petroleum
refinery located in South Roxana, Madison County. On July 5, 2000, complainant filed a
supplemental complaint (Supp. Comp.) to allege violations that occurred subsequent to the
violations alleged in the initial complaint. The supplemental complaint increased the total
number of counts to thirteen. Respondent filed an answer and 29 affirmative defenses on
April 26, 2002 (Answer). On May 30, 2002, complainant filed a motion to strike respondent’s
affirmative defenses (motion). On July 1, 2002, respondent filed a response to the motion to
strike (Response).
For the reasons outlined below, the Board grants the motion to strike in part and denies
the motion in part. The Board grants the motion to strike affirmative defenses for count I
(defense 1), count II (defense 1), count III (defense 1), count IV (defenses 1 and 4), count V
(defenses 1,3 and part of 4), count VI (defenses 1, 3 and part of 4), count VII, count VIII,
count IX (defense 1), count X (defense 1), count XII (defense 1) and count XIII (defense 1).
Respondent withdrew the defense 5 for count IX.
See
Resp. at 16.
The Board denies the motion with respect to the affirmative defenses for count II
(defense 2), count III (defense 2), count IV (defenses 2 and 3), count V (defense 2 and part of
4), count VI (defense 2 and part of 4), count IX (defense 2), count X (defense 2), count XI,
count XII (defense 2), count XIII (defense 2).
RELEVANT STATUTORY PROVISIONS
Section 9(a) of the Environmental Protection Act (Act), 415 ILCS 5/9(a) (2000)
amended by
P.A. 92-0574, eff. June 26, 2002, provides:
No person shall:
2
Cause or threaten or allow the discharge of any contaminant into the
environment in any State so as to cause or tend to cause air pollution in Illinois,
either alone or in combination with contaminants from other sources, or so as to
violation regulations or standards adopted by the Board under this Act.
Section 9(b) of the Act, 415 ILCS 5/9(b) (2000)
amended by
P.A. 92-0574, eff. June 26,
2002, provides:
No person shall:
Construct, install, or operate any equipment, facility, vehicle, vessel or aircraft
capable of causing or contributing to air pollution or designed to prevent air
pollution, of any type designated by Board regulations, without a permit granted
by the Agency, or in violation of any conditions imposed by such permit
Air pollution is defined as as:
The presence in the atmosphere of one or more contaminants in sufficient
quantities and of such characteristics and duration as to be injurious to human,
plant, or animal life, to health, or to property, or to unreasonably interfere with
the enjoyment of life or property. 415 ILCS 5/3.02 (2000)
amended by
P.A.
92-0574, eff. June 26, 2002.
35 Ill. Adm. Code 201.141 states:
No person shall cause or threaten or allow the discharge or emission of any
contaminant into the environment in any State so as, either alone or in
combination with contaminants from other sources, to cause or tend to cause air
pollution in Illinois, or so as to violate the provisions of this Chapter, or so as to
prevent the attainment or maintenance of any applicable ambient air quality
standard.
35 Ill. Adm. Code 219.123(b) states, in part:
Subject to subsection (a) of this Section, no owner or operator of a stationary
storage tank shall cause or allow the storage of any VOL [volatile organic
liquid) in the tank unless:
* * *
(3) All opening of any floating roof deck, except stub drains, are
equipped with covers, lids or seal such that:
(A) The cover, lid or seal is in the closed position at all times
except when petroleum liquid is transferred to or from the
tank;
3
* * *
(4) Routine inspections of floating roof seals are conducted through roof
hatches once every six months;
(6) A record of the results of each inspection conducted under
subsection (b)(4) or (b)(5) of this Section is maintained.
35 Ill. Adm. Code 219.124(a)(2):
(a) In addition to meeting the requirements of Section 219.123(b) of this Part, no
owner or operator of a stationary storage tank equipped with an external floating
roof shall cause or allow the storage of any volatile petroleum liquid in the tank
unless:
(2) Each seal closure device meets the following requirements:
(A) The seal is intact and uniformly in place around the
circumference of the floating roof between the floating
roof and tank wall; and
(B) The accumulated area of gaps exceeding 0.32 centimeter
(1/8 inch) in width between the secondary seal and the
tank wall shall not exceed 21.2 square centimeters per
meter of tank diameter (1.0 square inch per foot of tank
diameter). Compliance with this requirement shall be
determined by:
i. Physically measuring the length and width of all
gaps around the entire circumference of the
secondary seal in each place where a 0.32 cm
(0.125 in.) uniform diameter probe passes freely
(without forcing or binding against the seal)
between the seal and the tank wall; and
ii. Summing the area of the individual gaps.
STANDARD
In an affirmative defense, the respondent alleges “new facts or arguments that, if
true, will defeat . . . [complainant’s] claim even if all allegations in the complaint are true.”
People v. Community Landfill Co., PCB 97-193, (Aug. 6, 1998). The Code of Civil
Procedure gives additional guidance on pleading affirmative defenses. Section 2-613(d)
provides, in part:
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The facts constituting any affirmative defense . . . and any defense which by
other affirmative matter seeks to avoid the legal effect of or defeat the cause of
action set forth in the complaint, . . . in whole or in part, and any ground or
defense, whether affirmative or not, which, if not expressly stated in the
pleading, would be likely to take the opposite party by surprise, must be plainly
set forth in the answer or reply.” 735 ILCS 5/2-613(d) (2000).
A valid affirmative defense gives color to the opposing party’s claim but then asserts new
matter which defeats an apparent right. Condon v. American Telephone and Telegraph Co.,
210 Ill. App. 3d 701, 709, 569 N.E.2d 518, 523 (2nd Dist. 1991), citing The Worner Agency
Inc. v. Doyle, 121 Ill. App. 3d 219, 222, 459 N.E.2d 633, 635 (4th Dist. 1984). A motion to
strike an affirmative defense admits well-pleaded facts constituting the defense, and attacks
only the legal sufficiency of the facts. “Where the well-pleaded facts of an affirmative defense
raise the possibility that the party asserting them will prevail, the defense should not be
stricken.” International Insurance Co. v. Sargent and Lundy, 242 Ill. App. 3d 614, 630-31,
609 N.E.2d 842, 853-54 (1st Dist. 1993), citing Raprager v. Allstate Insurance Co., 183 Ill.
App. 3d 847, 854, 539 N.E.2d 787, 791 (2nd Dist. 1989).
COUNT I: DIESEL FUEL RELEASE
Complainant alleges respondent violated 9(a) of the Act (415 ILCS 5/9(a) (2000)
amended by
P.A. 92-0574, eff. June 26, 2002) and 35 Ill. Adm. Code 201.141. Supp. Comp.
at 3. Specifically, complainant alleges that an inspection on July 2, 1998, revealed that
respondent had released gaseous hydrocarbons, hydrogen sulfide, and hydrodesulfurized
middle distillate that allegedly caused or tended to cause air pollution. Supp. Comp. at 3. As
a result of the release, diesel fuel settled onto private and public property, which unreasonably
interfered with the enjoyment of life and property. Supp. Comp. at 3.
Affirmative Defense
Respondent alleges as an affirmative defense that respondent promptly removed any
diesel fuel that settled onto public or private property. Ans. at 6. Respondent argues that
because respondent removed the fuel, the fuel did not unreasonably interfere with the
enjoyment of life or property. Ans. at 6.
Complainant responds that respondent’s affirmative defense, is not an affirmative
defense. Mot. at 2. Complainant argues the defense does not raise a new matter that
constitutes a defense to the allegation. Mot. at 2.
Respondent replies that the affirmative defense should not be stricken because if
respondent proves that the fuel was cleaned up before it became an unreasonable interference
with the enjoyment of life or property, then respondent will prevail on this count. Resp. at 4-
5. Also, respondent replies that the defense should not be stricken because it alleges facts
which may take the State by surprise at hearing. Resp. at 5.
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Discussion
Respondent’s first affirmative defense addresses information relevant to the imposition
of a penalty rather than whether or not air pollution occurred. The Board has previously held
that affirmative defenses that concern factors in mitigation are not an appropriate affirmative
defense to a claim that a violation has occurred. People v. Geon Company, Inc., PCB 97-62
(Oct. 2, 1997); People v. Midwest Grain Products of Illinois, Inc., PCB 97-179 (Aug. 21,
1997). The Board strikes respondent’s affirmative defense for count I because it is not an
affirmative defense. The Board reminds the parties that respondent is not precluded from
introducing at hearing evidence regarding any clean-up efforts initiated by respondent.
COUNT II: AIR POLLUTION AND PERMIT VIOLATIONS
Complainant alleges that because respondent failed to properly maintain the distillate
hydrotreator, causing air pollution in violation of Section 9(a) of the Act (count I), respondent
violated Standard Condition No. 7 of Operating Permit No. 72110637. Supp. Comp. at 5.
Respondent also violated Section 9(b) of the Act and Standard Condition No. 7 of Operating
Permit No. 72110637, by releasing gaseous hydrocarbons, hydrogen sulfide, and diesel oil
from the refinery. Supp. Comp. at 5. Respondent raises two affirmative defenses.
First Affirmative Defense
First, respondent argues that air pollution did not occur. Ans. at 9. Respondent argues
that complainant failed to allege that the release was of contaminants ‘in sufficient quantities
and of such characteristics and duration as to be injurious to human, plant, or animal life, to
health or property, or to unreasonably interfere with the enjoyment of life or property’, as
Section 3.02 of the Act requires.
1 Ans. at 8.
Complainant asserts that the first affirmative defense should be stricken because it is not
an affirmative defense. Mot. at 3. Complainant argues that the “affirmative defense” is
actually an argument that complainant failed to state a cause of action against respondent.
Mot. at 3.
Respondent replies with the same allegation regarding Section 3.02’s requirements.
Resp. at 6. Respondent also states that respondent should be allowed to allege and present
evidence at hearing that air pollution did not occur, and therefore no permit violations could
have occurred. Resp. at 6. Alternatively, respondent argues they should be allowed to file a
motion to strike count II for failure to sufficiently plead a cause of action for permit violations.
Resp. at 7.
Discussion
1 Section 3.02 of the Act was recently amended P.A. 92-0574 by renumbering the section from
Section 3.02 to Section 3.115.
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The first affirmative defense does not allege new facts or arguments that, if true, could
defeat complainant’s claim even if all allegations in the complaint are true. The assertion that
air pollution did not occur is merely a denial of the allegation. Further, respondent’s argument
that complainant failed to allege that the release was of contaminants ‘in sufficient quantities
and of such characteristics and duration as to be injurious to human, plant, or animal life, to
health or property, or to unreasonably interfere with the enjoyment of life or property’, as
Section 3.02 (now Section 3.115) of the Act requires, is stricken. This also is not an
affirmative defense. The Board strikes the first affirmative defense.
Regarding respondent’s request to file a motion to strike count II for failure to
sufficiently plead a cause of action, the Board notes that pursuant to 35 Ill Adm. Code
101.506, a motion to strike must be filed within 30 days after the service of the challenged
document unless the Board determines material prejudice will result. The Board does not
believe material prejudice will result if a motion for leave to file a motion to strike is not
granted. Therefore, respondent’s request to file a motion to strike is denied.
Second Affirmative Defense
Respondent’s second affirmative defense is that any release of diesel fuel that occurred
on or about July 2, 1998 from the distillate hydrotreater unit resulted from the malfunction of
the gauge, which gave the unit’s operator incorrect information. Ans. at 9. The malfunction
of the gauge was not caused by a failure to properly maintain or operate the unit as Condition
No. 7 of Operating Permit No. 72110637 requires, so the release was not a permit violation.
Complainant asserts the second affirmative defense to count II should be stricken. Mot.
at 5. Complainant argues that the facts show that respondent violated the Act and its permit.
Mot. at 4. Complainant states that to operate in excess of the applicable sulfur dioxide
emission standards during a malfunction and breakdown, the breakdown must have been
unexpected and non-preventable. Mot. at 5. Complainant also states that the definition of
“malfunction” found in the Standard for Performance for New Stationary Sources, provides:
Malfunction means any sudden, infrequent, and not reasonably preventable
failure of air pollution control equipment, process equipment, or a process to
operate in a normal or usual manner. Failures that are caused in part by poor
maintenance or careless operations are not malfunctions.
Complainant argues the gauge’s breakdown was preventable. Mot. at 4. If the gauge provided
an incorrect reading to the operator, then respondent should have replaced or repaired the
gauge. Mot. at 4.
Respondent replies that the
second affirmative defense states new factual material and
legal arguments as to why no permit violation occurred (specifically, the gauge malfunction).
Resp. at 7. If respondent can prove the new facts and legal arguments are true, they might be
able to show the malfunction was not a result of a failure to properly maintain the unit. Resp.
at 8.
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Respondent further replies that the defense should not be stricken because respondent
will show at hearing that the gauge malfunction was sudden, infrequent, not reasonably
preventable, and not the result of faulty or poor maintenance. Resp. at 8. Also, respondent
argues that these facts could surprise the complainant and should not be stricken. Resp. at 9.
Discussion
The Board will not strike the second affirmative defense. If indeed respondent can
show that the gauge’s malfunction was sudden, infrequent and not reasonably preventable,
respondent may be able to prevail on count II.
COUNT III: TANK SEAL VIOLATIONS
Complainant alleges that
on September 25, 1998, the Agency conducted an inspection
of respondent’s facility. Supp. Comp. at 7. The facility has the capacity to refine 295,000
barrels per day of crude oil. Supp. Comp. at 6.
Based on the facility records, complainant alleges that respondent violated 35 Ill. Adm.
Code 219.123(b)(4) for failing to conduct visual inspections for floating roof seals on tanks A-
53, A-54, F-21, and F-51, at least once every six months. Supp. Comp. at 8. Also,
respondent violated 35 Ill. Adm. Code 219.123(b)(6) for failing to maintain the records for the
visual inspections of the floating roof seals on tanks A-33 and A-40. Supp. Comp. at 8.
Respondent violated 35 Ill. Adm. Code 219.124(a)(2)(B) for allowing the secondary seals on
tank A-76 and A-83 to have gaps in excess of the 1.0 square inch per foot of tank diameter
limit. Supp. Comp. at 8. Respondent violated 35 Ill. Adm. Code 219.123(b)(3)(A) by
allowing the gauge hatches to be open on external floating roof tanks A-34 and A-78. Supp.
Comp. at 8. Finally, in violating the Board regulations, complainant alleges that respondent
also violated Section 9(a) of the Act (415 ILCS 5/9(a) (2000)
amended by
P.A. 92-0574, eff.
June 26, 2002,).
First Affirmative Defense
Respondent asserts as an affirmative defense that “the inspection and maintenance of
the storage tanks in volatile organic or petroleum liquids service at the refinery are subject to
and governed by federal law, 40 CFR 63.1
et seq
.” Ans. at 16. Respondent claims that all
inspections and necessary repairs to the storage tanks were made in accordance with the time
limits prescribed by federal law. Ans. at 16.
Complainant counters that respondent must comply with both the refinery maximum
available control technology and the applicable state regulations, 35 Ill. Adm. Code 219.123
and 219.124. Mot. at 5. Compliance with the federal law does not excuse respondent’s failure
to comply with state law. Mot. at 6.
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Respondent replies that being required to meet the time limitations and schedules for
overlapping federal and state regulations for hundreds of tanks is unduly burdensome, and
compliance with the federal regulations should be sufficient. Resp. at 10. Additionally,
respondent notes that the State has not alleged which permits it claims cover the operation of
the tanks at issue. Resp. at 10. Respondent argues that language in the relevant permit might
determine which regulations should apply to the tanks at issue. Resp. at 10. Respondent
argues that pending discovery on this issue, the motion to strike the affirmative defenses should
be denied.
Discussion
Respondent’s facility is subject to state law, and permits do not excuse the permittee
from complying with state law and regulations. Regardless of what permit language applies to
the tanks at issue, respondent must comply with state law. To the extent that respondent may
be attempting to challenge the Board’s air rules, Section 41(c) of the Act precludes a challenge
to rules in context of an enforcement action.
See
415 ILCS 41(c)(2000)
amended by
P.A. 92-0574,
eff. June 26, 2002,. The Board strikes the first affirmative defense for count III.
Second Affirmative Defense
Respondent’s second affirmative defense to count III is that tank A-33, A-40, and A-53
were not volatile organic or petroleum liquid storage service [sic], and therefore were not
subject to the alleged regulations. Ans. at 17.
Complainant allege this affirmative defense is not adequately pled. Mot. at 6.
Complainant argues that as drafted, the affirmative defense does not meet the pleading
requirements of the Illinois Code of Civil Procedure in that it does not set forth the facts
constituting an affirmative defense. Mot. at 6-7. Complainant surmises that respondent
intended to allege that the tanks were no longer in service, they were not being used for
storage of volatile organic liquids, and were not subject to regulation. Mot. at 7. As alleged,
however, complainant states that respondent has not complied with 35 Ill. Adm. Code 219.
Mot. at 7. Complainant seems to suggest that respondent should have stated when the tanks
were emptied and when a final inspection occurred. Mot. at 7.
Respondent replies that the defense alleges that the tanks were not in service storing
volatile organic or petroleum liquids. Resp. at 10. Respondent further replies that the
regulations in count III regulate only storage tanks in volatile organic or petroleum liquids
service, so the tanks are not subject to the regulations in count III. Resp. at 10.
Discussion
If respondent can show that the tanks were no longer in service of storing the volatile
organic or petroleum liquids, the respondent may be able to prevail on the claim. The Board
does not strike the second affirmative defense.
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COUNT IV: SULFUR DIOXIDE AND NITROGEN OXIDE RELEASE
Complainant alleges that
on May 17, 1993, the Agency issued respondent Operating
Permit No. 72110621 for the Catalytic Cracking Unit #1 (CCU#1). Supp. Comp. at 9. On
June 25, 1999, the Illinois Emergency Management Agency (IEMA) received a report that
sulfur dioxide and nitrogen oxide were released from Wood River’s north flare at the facility.
Supp. Comp. at 10. Complainant alleges the gas originated from CCU#1 and was routed to
the flare on the north of the facility. Supp. Comp. at 10. Complainant alleges that 1,380
pounds of sulfur dioxide and 22 pounds of nitrogen oxide were released from the flare. Supp.
Comp. at 10. Complainant alleges that by allowing the emission of contaminants so as to
cause or tend to cause air pollution, respondent violated Section 9(a) of the Act, ILCS
5/9(a)(2000)
amended by
P.A. 92-0574, eff. June 26, 2002.
First Affirmative Defense
Respondent asserts as an affirmative defense that count IV fails to allege that the release
was in sufficient quantities and of such characteristics and duration as to be injurious to human,
plant, or animal life, to health, or to property, or to unreasonably interfere with the enjoyment
of life or property, as Section 3.02 (now Section 3.115) of the Act requires to show air
pollution occurred. Ans. at 20. As no air pollution occurred, no violation of Section 9(a) of
the Act occurred. Ans. at 20.
Complainant argues that this defense does not raise a new matter which is a defense to
the allegation, and therefore is not an affirmative defense. Mot. at 8
Respondent replies that the complaint contains no facts which meet the requirements of
Section 3.02 (now Section 3.115) of the Act, and respondent should be allowed to maintain as
an affirmative defense that air pollution did not occur. Resp. at 12. Alternatively, respondent
requests that respondent be allowed to file a motion to strike count IV for failure to sufficiently
plead a cause of action for violation of Section 9(a) of the Act. Resp. at 12.
Discussion
Section 3.02 (now Section 3.115) of the Act defines air pollution.
See supra
p.2.
Whether complainant sufficiently pled facts that fit the air pollution definition is not an
affirmative defense. The affirmative defense does not allege new facts or arguments that, if
true, would defeat complainant’s claim even if all allegations in the complaint are true. The
assertion that air pollution did not occur is merely a denial of the allegation. Further,
respondent’s argument that complainant failed to allege that the release was of contaminants ‘in
sufficient quantities and of such characteristics and duration as to be injurious to human, plant,
or animal life, to health or property, or to unreasonably interfere with the enjoyment of life or
property’, as Section 3.02 (now Section 3.115) of the Act requires, is stricken. The Board
strikes the first affirmative defense.
10
Regarding respondent’s request to file a motion to strike for failure to sufficiently plead
a cause of action, the Board notes that pursuant to 35 Ill Adm. Code 101.506, a motion to
strike must be filed within 30 days after the service of the challenged document unless the
Board determines material prejudice will result. The Board does not believe material prejudice
will result if a motion for leave to file a motion to strike is not granted. Therefore,
respondent’s request to file a motion to strike is denied.
Second Affirmative Defense
Respondent asserts as an affirmative defense that the release was the result of an
employee of an independent contractor working at the refinery inadvertently bumping into a
valve causing the valve to close. Ans. at 20. Because the valve closed, materials containing
sulfur dioxide were routed to the refinery’s smokeless flare as a safety release device during
periods of unit malfunction. Ans. at 21. The malfunction or breakdown of the unit was not
the result of respondent’s failure to properly maintain the unit. Ans. at 21.
Complainant argues that respondent’s assertions are not relevant to the allegation that
respondent’s release of sulfur dioxide and nitrogen oxide caused or tended to cause air
pollution in violation of Section 9(a) of the Act. Mot. at 8. Complainant states that whether
the release was caused by operator error or inadequate maintenance is irrelevant to a Section
9(a) or 35 Ill. Adm. Code 201.141 violation. Mot. at 8-9. Liability under the Act is grounded
upon control over the pollution source. Mot. at 8.
Respondent replies that the
Board has previously recognized that an owner may not be
liable for a release if it occurred as a result of an act of an independent contractor. Resp. at
13, citing Forest Preserve District of DuPage County v. Mineral and Land Resources Corp.,
et
al.
, PCB 96-84 (Dec. 18, 1997) and People v. Geon Company, PCB 97-62 (Oct. 2, 1997).
Discussion
The Board has found that owners’ use of independent contractors may relieve the owner
of liability under the Act, but owners may also be liable for the actions of independent
contractors. In EPA v. James McHugh Construction Co., PCB 71-291 (May 17, 1972), the
Board found the City of Chicago (City) liable
for "allowing" water pollution that its
independent contractors caused. In so doing, the Board observed,
The statute makes it unlawful not only to “cause” but also to “allow” pollution.
We think this language goes beyond the common law and imposes an
affirmative duty on persons in a position of potential control to take action to
prevent pollution. We hold that the common law of independent contractors is
not incorporated as such into the statute, but that the question for our decision is
whether, in light of statutory policy, a respondent is in such a relationship to the
transaction that it is reasonable to expect him to exercise control to prevent
pollution. McHugh, PCB 71-291, slip op. at 3.
11
In support of its finding that the City could reasonably have been expected to exercise control
to prevent pollution, the Board noted that the City's contract with its independent contractor
required the contractor to construct a settling basin, and that the City had an engineer on-site at
all times to ensure that the contractor adhered to the contract specifications. McHugh, PCB 71-
291, slip op. at 4-5.
See also
Forest Preserve District of DuPage County v. Mineral and Land
Resources Corporation, PCB 96-84 (Dec. 18, 1997) (applying the same test of liability to
claims involving an independent contractor).
The Board will not strike this affirmative defense because respondent may be able to
prevail on this count.
Third Affirmative Defense
Respondent argues as a third affirmative defense that the total sulfur dioxide released
during the 24-hour period for June 25, 1999, did not exceed the normal 25,000-30,000 pounds
allowed by 35 Ill. Adm. Code 214.382. Ans. at 21.
Complainant responds that the affirmative defense is misleading. Mot. at 9.
Complainant states that 35 Ill. Adm. Code 214.382 pertains to emissions from normal exhaust
stacks. Mot. at 9. Complainant argues the defense should be stricken because the release at
the CCU #1, as respondent admits, was not from the normal exhaust stack, but was from a
safety release device, the refinery’s smokeless flare. Mot. at 9. Complainant concludes that
because the sulfur dioxide emission limit in Section 214.382 does not address releases from
flares like the safety release device, the defense should be stricken. Mot. at 9.
Respondent replies that Section 214.382 does apply to the flare. Resp. at 14.
Respondent cites part of the section which states:
(b) No person shall cause or allow the emission of more than 1,000 ppm of
sulfur dioxide into the atmosphere from any process emission source in
the St. Louis (Illinois) major metropolitan area designed to remove sulfur
compounds from the flue gases of petroleum and petrochemical
processes.
Respondent states that the refinery is in the St. Louis, Illinois major metropolitan area. Resp.
at 14. The materials are from CCU#1 which is part of the overall separation of sulfur process
at this petroleum refinery. Resp. at 14. Therefore, the release is within the limits of Section
214.382(b). Resp. at 14. Respondent also argues that when the Board adopted the Section
214.382(b) language, it did so to specifically provide the limitation for discharge of sulfur
dioxide from the sulfur removal emissions processes at this refinery. Resp. at 14.
Discussion
12
The third affirmative defense only addresses the release of sulfur dioxide, and omits the
allegation regarding nitrogen oxide. Regardless, respondent has alleged new facts that if true
may convince the Board that Section 214.382(b) permits the sulfur dioxide emission. The
Board will not strike this affirmative defense.
Fourth Affirmative Defense
Respondent’s fourth affirmative defense to count IV states that the release occurred
through a smokeless flare as permitted by 35 Ill. Adm. Code 219.143. Ans. at 21. 35 Ill.
Adm. Code 219.143 provides:
No person shall cause or allow the emission of organic material into the
atmosphere from any vapor blowdown system or any safety relief valve, except
such safety relief valves not capable of causing an excessive release, unless such
emission is controlled:
a) To 10 ppm equivalent methane (molecular weight 16.0) or less; or,
b) By combustion in a smokeless flare; or,
c) By other air pollution control equipment approved by the Agency according to
the provisions of 35 Ill. Adm. Code 201, and further processed consistent with
Section 219.108 of this Part.
Complainant responds that Section 219.143 does not provide an exemption for a Section
9(a) violation or for an exemption resulting from operator error. Mot. at 10. Based on the
facts as pled by respondent, there is no indication that this blowdown resulted from normal
maintenance activities. Mot. at 10. The emission was neither planned nor controlled, and
thus, 35 Ill. Adm. Code 219.143 does not apply. Mot. at 10.
Respondent replies that complainant’s reading of Section 219.143 is artificially narrow.
Resp. at 15. Respondent asserts that nowhere in Section 219.143 is there a limitation that the
release be only from normal maintenance activities. Resp. at 15. Respondent denies that the
release occurred from operator error. Resp. at 15. Respondent argues that an employee of an
independent contractor accidentally bumped a valve causing it to close which put the safety
valve release process into motion. Resp. at 15. Respondent asserts that the sequence of events
complies with Section 219.143 and is a permitted release. Resp. at 15.
Discussion
Sulfur dioxide and nitrogen oxide are inorganic materials. By its terms, Section
219.143 applies only to the emission of organic material. The Board strikes this affirmative
defense because Section 219.143 is not relevant to the allegation raised in count IV. Finally,
the Board notes that since respondent has withdrawn the affirmative defense (Resp. at 16), no
discussion of it is necessary.
13
COUNT V: HYDROGEN SULFIDE RELEASE
Complainant alleges that on July 22, 1992, the Agency issued respondent Operating
Permit No. 72110618 for the Rectified Absorber Unit (RAU). Supp. Comp. at 11. On July 1,
1999, IEMA received a report that hydrogen sulfide was released from a pressure relief valve
(PRV) on the absorber column of the RAU. Supp. Comp. at 11. Complainant alleges that 850
pounds of hydrogen sulfide were released from the pressure relief valve on the absorber
column of the RAU. Supp. Comp. at 11. The release of hydrogen sulfide by respondent has
caused or tended to cause air pollution in the State. Supp. Comp. at 11. By allowing the
emission of contaminants, so as to cause or tend to cause air pollution in violation of the
regulations or standards adopted by the Board, respondent has violated Section 9(a) of the Act
(415 ILCS 5/9(a)
amended by
P.A. 92-0574, eff. June 26, 2002) and 35 Ill. Adm. Code
201.141. Supp. Comp. at 11.
First Affirmative Defense
Respondent asserts that count V does not allege the release was in sufficient quantities
and of such characteristics and duration as to be injurious to human, plant, or animal life, to
health, or to property, or to unreasonably interfere with the enjoyment of life or property, as
Section 3.02 (now Section 3.115) of the Act requires to demonstrate that air pollution
occurred. Ans. at 25. As no air pollution occurred, no violation of Section 9(a) or 35 Ill.
Adm. Code 201.141 occurred. Ans. at 25.
Complainant argues that this defense fails to raise new matter which is a defense to the
allegations, and thus is not an affirmative defense. Mot. at 11
Respondent replies that it should be allowed to maintain as an affirmative defense that
air pollution did not occur. Resp. at 17. Alternatively, respondent requests the opportunity to
file a motion to strike count V for failure to sufficiently plead a cause of action in violation of
Section 9(a) of the Act.
Discussion
The affirmative defense does not allege new facts or arguments that, if true, will defeat
complainant’s claim even if all allegations in the complaint are true. The assertion that air
pollution did not occur is merely a denial of the allegation. Further, respondent’s argument
that complainant failed to allege that the release was of contaminants ‘in sufficient quantities
and of such characteristics and duration as to be injurious to human, plant, or animal life, to
health or property, or to unreasonably interfere with the enjoyment of life or property’, as
Section 3.02 (now Section 3.115) of the Act requires, is stricken. This also is not an
affirmative defense. The Board strikes the first affirmative defense.
Regarding respondent’s request to file a motion to strike count II for failure to
sufficiently plead a cause of action, the Board notes that pursuant to 35 Ill Adm. Code
14
101.506, a motion to strike must be filed within 30 days after the service of the challenged
document unless the Board determines material prejudice will result. The Board does not
believe material prejudice will result if a motion for leave to file a motion to strike is not
granted. Therefore, respondent’s request to file a motion to strike is denied. Section 3.02 of
the Act defines air pollution. Whether complainant sufficiently pled facts that fit the air
pollution definition is not an affirmative defense. The Board strikes the first affirmative
defense.
Second Affirmative Defense
Respondent alleges as a second affirmative defense that the release was the direct and
proximate result of a lightning strike to the pressure relief valve of the RAU triggering the
pressure relief valve to open allowing the release. Ans. at 25. Respondent alleges the release
was not the result of improper operation or maintenance of the RAU, but was the result of a
malfunction breakdown caused by the lightning strike. Ans. at 25. The release was therefore
not a violation of Section 9(a) or 35 Ill. Adm. Code 201.141. Ans. at 25
Complainant responds that regardless of the lightning, respondent owns the property
and therefore exercised control over the pollution source. Mot. at 12-13. Complainant cites
Perkinson v. PCB, 187 Ill. App. 3d 689 (3rd Dist. 1989) for the holding that lack of
knowledge of pollution is not a defense. Mot. at 12-13. Complainant states that respondent
has no defense to the alleged violation of the Act and Code. Mot. at 13.
Respondent replies that the Board has previously refused to strike this type of
affirmative defense. Resp. at 18. Citing People v. Chiquita Processed Foods, L.L.C., PCB
02-56 (Apr. 18, 2002), respondent asserts that in that case the Board allowed an affirmative
defense to stand that alleged a forcemain ruptured, causing a release, because of a vibrations
from passing trains. Resp. at 18. The Board, relying on caselaw, stated that “the owner of a
pollution source is responsibility for the pollution unless the facts establish that the owner
either lacked the capability to control the source or had undertaken extensive precautions to
prevent . . . other intervening causes.” Resp. at 18,
citing
People v. Chiquita Processed
Foods, L.L.C., PCB 02-56 (Apr. 18, 2002),
citing
People v. A.J. Davinroy Contractors, 618
N.E.2d 1281, 1286 (5th Dist. 1993). Respondent also distinguishes the facts in Perkinson
from the facts in this case.
Discussion
As the Board stated in Chiquita, the test it applies in determining whether an alleged
polluter has violated that Act is whether or not an alleged polluter exercised sufficient control
over the source of the pollution.
See
People v. A.J. Davinroy Contractors, 618 N.E. 2d 1282,
1286 (5th Dist. 1993)
citing
People v. Fiorini, 574 N.E.2d 612, 623 (1991). Additionally,
Davinroy also states that the owner of a pollution source “is responsible for that pollution
unless the facts establish that the owner either lacked the capability to control the source or had
undertaken extensive precautions to prevent . . . other intervening causes.” Davinroy, 618
15
N.E.2d at 1287. Because respondent may be able to prove that he lacked the capability to
control the pollution source, the Board will not strike this affirmative defense.
Third Affirmative Defense
Respondent alleges that the
total sulfur dioxide released from the RAU did not exceed
the normal 3,816 pounds allowed by 35 Ill. Adm. Code 214.382. Ans. at 26.
Complainant responds that count V alleges a release of hydrogen sulfide, not sulfur
dioxide. Mot. at 13. Moreover, even if respondent meant to refer to hydrogen sulfide, the
emission limit in Section 214.382 solely pertains to emissions of sulfur dioxide. Mot. at 13.
Respondent replies that “the better parameter for measurement in determining whether
air pollution occurred in respect to public or private property surrounding the refinery is sulfur
dioxide.” Resp. at 20. Respondent argues that it is a well-settled principle of chemistry that
hydrogen sulfide reacts with oxygen, when released into the atmosphere, to become sulfur
dioxide and water. Resp. at 20. Respondent also argues that the Board’s decision
Amendments to 35 Ill. Adm. Code 214, Sulfur Limitations (Petition of Shell Oil Company),
R86-30 (Nov. 3, 1988) shows that Section 214.382(b) is an affirmative defense to the release
that occurred. Resp. at 20. Respondent argues that Board amended Section 214.382(b) to
specifically provide the limitation for discharge of sulfur dioxide from the sulfur removal
emission processes at the facility. Resp. at 21.
Discussion
Count V alleges that respondent caused a release of hydrogen sulfide, not sulfur
dioxide. Despite respondent’s attempt to link hydrogen sulfide and sulfur dioxide, the Board
strikes this affirmative defense. By its terms, Section 214.382 is not a defense to count V.
Fourth Affirmative Defense
Respondent alleges that 35
Ill. Adm. Code 219.143 and 219.144 allow the release that
is alleged in count V. Ans. at 26. Section 219.144 states:
Section 219.143 of this Part shall not apply to any set of unregulated safety
relief valves capable of causing excessive releases, provided the owner or
operator thereof, by October 1, 1972, supplied the Agency with the following:
a) A historical record of each such set (or, if such records were
unavailable, of similar sets which, by virtue of operation under similar
circumstances, may reasonably have been presumed to have the same or
greater frequency of excessive releases) for a three-year period
immediately preceding October 1, 1972, indicating:
1) Dates on which excessive releases occurred from each such set;
and
16
2) Duration in minutes of each such excessive release; and
3) Quantities (in pounds) of mercaptans and/or hydrogen sulfide
emitted into the atmosphere during each such excessive release.
b) Proof, using such three-year historical records, that no excessive release
is likely to occur from any such set either alone or in combination with
such excessive releases from other sets owned or operated by the same
person and located within a ten-mile radius from the center point of any
such set, more frequently than 3 times in any 12 month period;
c) Accurate maintenance records pursuant to the requirements of subsection
(a) of this Section; and,
d) Proof, at three-year intervals, using such three-year historical records,
that such set conforms to the requirements of subsection (c) of this
Section.
Complainant asserts that Section 219.143 is not applicable to the facts as respondent has
asserted. Mot. at 14. Section 219.143 does not provide for an exemption from Section 9(a)
violation or for an exemption resulting from an alleged lightning strike to a pressure relief
valve on the RAU. Mot. at 14. Section 219.144 only provides for an exception if certain
requirements are met, and in this instance they have not been met. Mot. at 15.
Respondent replies that that complainant’s reading of Section 219.143 is artificially
narrow. Resp. at 21. Respondent asserts that nowhere in Section 219.143 is there a limitation
that the release be only from normal maintenance activities. Resp. at 21. Respondent alleges
that complainant does not dispute that Section 219.144 provides the exception that respondent
alleges. Resp. at 21. Respondent asserts it can prove at hearing that the Agency was supplied
with the required information for the pressure relief valve to satisfy Section 219.144.
Discussion
Hydrogen sulfide is an inorganic material. Section 219.143 applies to the emission of
organic material. The Board strikes the portion of the affirmative defense regarding Section
219.143 as not relevant to the allegation raised in count V. However, the Board will not strike
the affirmative defense regarding Section 219.144 because respondent may be able to prevail
on that claim if respondent can show it met the requirements of that Section.
COUNT VI: FAILURE TO MAINTAIN EQUIPMENT
Complainant alleges in count VI that respondent violated Standard Condition 7 of
Operating Permit No. 72110618 when respondent failed to properly maintain the RAU on July
1999, which caused air pollution in violation of Section 9(a) of the Act and 35 Ill. Adm. Code
201.141. Supp. Comp. at 12-13. Condition 7 states:
17
The permittee shall maintain all equipment covered under this permit in such a
manner that the performance of such equipment shall not cause a violation of the
Environmental Protection Act or the regulations promulgate thereunder. Supp.
Comp. at 12.
Affirmative Defenses
Respondent raises the same four affirmative defenses to count VI as it did to count V.
Ans. 22-23. Complainant raises the same arguments as raised against the affirmative defenses
in count V. Mot. at 15-17. For the same reasons stated concerning count V, the Board
strikes the first and third affirmative defense. The Board will not strike the second affirmative
defense. The Board strikes the portion of the fourth affirmative defense regarding Section
219.143 as not relevant to the allegation raised in count VI. However, the Board will not
strike the affirmative defense regarding Section 219.144 because respondent may be able to
prevail on that claim if respondent can show it achieved the requirements of that Section.
COUNT VII: RELEASE OF DEBRIS
Complainant alleges that on August 12, 1994, the Agency issued respondent Operating
Permit No. 72110626. Supp. Comp. at 14. On January 25, 2000, the Agency received a
report from IEMA of an explosion at the respondent’s facility. Supp. Comp. at 14. The
Agency subsequently conducted a visit. Supp. Comp. at 14. The inspection documented
strong asphaltic odors, and that the roof on Tank L-174 had abruptly blown off due to an
apparent increase in pressure within the tank. Supp. Comp. at 14. Mineral or rock wool and
asbestos were released into the surrounding South Roxana neighborhood. Supp. Comp. at 14.
A fire simultaneously occurred and lasted for over an hour-and-a-half. Supp. Comp. at 14.
The Agency learned that the tank was 60 feet wide and 48 feet high, had a capacity of
20,000 gallons, was insulated, and was heated with steam coils. Supp. Comp. at 14.
The release of insulation debris that included mineral or rock wool and asbestos caused
or tended to cause air pollution. Supp. Comp. at 14. As a result of the release on January 25,
2000, the mineral or rock wool and asbestos settled onto private and public property, which
unreasonably interfered with the enjoyment of life and property. Supp. Comp. at 15. By
allowing the emission of contaminants so as to cause or tend to cause air pollution, respondent
violated Section 9(a) of the Act and 35 Ill. Adm. Code 201.141. Supp. Comp. at 15.
Affirmative Defense
Respondent argues that
any mineral or rock wool that settled onto public or private
property was promptly removed and did not unreasonably interfere with the enjoyment of life
or property. Ans. at 36.
Complainant alleges that respondent did not assert that asbestos was promptly removed.
Mot. at 17. Regardless, complainant states that removing the materials is not an affirmative
18
defense. Mot. at 17. Additionally, respondent does not raise a new matter that constitutes a
defense to the allegations. Mot. at 17.
Respondent replies that the affirmative defense discloses new facts, which if proven at
hearing would defeat complainant’s claim. Resp. at 24. Respondent alleges that if it can
show that respondent promptly and completely removed the insulation, the air pollution may
not have occurred. Resp. at 24.
Discussion
Respondent’s affirmative defense addresses information relevant to the imposition of a
penalty rather than whether or not air pollution occurred. The Board has previously held that
affirmative defenses that concern factors in mitigation are not an appropriate affirmative
defense to a claim that a violation has occurred. People v. Geon Company, Inc., PCB 97-62
(Oct. 2, 1997); People v. Midwest Grain Products of Illinois, Inc., PCB 97-179 (Aug. 21,
1997). The Board strikes respondent’s affirmative defense to count I because it is not an
affirmative defense. The Board reminds the parties that at hearing, respondent may
introducing evidence regarding any clean-up efforts initiated by respondent.
COUNT XIII: TANK MAINTENANCE AND DIESEL FUEL RELEASE
Based on the alleged facts in count VII, Complainant alleges that respondent failed to
properly maintain the roof on Tank L-174 so as not to cause, threaten or allow air pollution.
Supp. Comp. at 16. Also, by failing to properly maintain the roof on the tank and cause air
pollution in violation of Section 9(a) of the Act and 35 Ill Adm. Code 201.141, respondent
violated Condition No. 7 of Operating Permit No. 72110637 (see p.2 above). Supp. Comp. at
16. Supp. Comp. at 16. Additionally, by releasing gaseous hydrocarbons, hydrogen sulfide,
and diesel oil from the refinery, respondent violated Section 9(b) of the Act (see p. 2 above)
and Condition No. 7 of Operating Permit No. 72110637. Supp. Comp. at 16.
Affirmative Defense
Respondent alleges that count
VIII does not allege that the release of mineral or rock
wool was in sufficient quantities and of such characteristics and duration as to be injurious to
human, plant, or animal life, to health or to property, or to unreasonably interfere with the
enjoyment of life or property as Section 3.02 (now Section 3.115) of the Act requires, so no
violation of Section 9(a) or the Act or 35 Ill. Adm. Code 201.141 occurred. Ans. at 39-40.
Respondent also alleges that count VIII did not allege the release of gaseous hydrocarbons,
hydrogen sulfide and diesel oil was in sufficient quantities and of such characteristics and
duration as to be injurious to human, plant, or animal life, to health or to property, or to
unreasonably interfere with the enjoyment of life or property as Section 3.02 (now Section
3.115) of the Act requires so no violation of Section 9(a) or the Act or 35 Ill. Adm. Code
201.141 occurred. Ans. at 39-40. Respondent also alleges that the operating permit was for a
distillate hydrotreater and not Tank L-174, so no permit violation could have occurred. Ans.
at 39.
19
Complainant responds that respondent’s affirmative defense is really an allegation that
complainant failed to state a cause of action against respondent. Mot. at 18. Complainant
further responds that respondent alleges no new matter which is a defense to the allegations
and therefore is not an affirmative defense. Mot. at 18.
Respondent replies that the affirmative defense raises factual and legal arguments which
constitute at least a possible defense to complainant’s claim and should not be stricken. Resp.
at 26. Alternatively, respondent argues they should be allowed to file a motion to strike for
failure to sufficiently plead a cause of action for permit violations. Resp. at 26.
Discussion
The affirmative defense does not allege new facts or arguments that, if true, will defeat
complainant’s claim even if all allegations in the complaint are true. The assertion that air
pollution did not occur is merely a denial of the allegation itself. Further, respondent’s
argument that complainant failed to allege that the release was of contaminants ‘in sufficient
quantities and of such characteristics and duration as to be injurious to human, plant, or animal
life, to health or property, or to unreasonably interfere with the enjoyment of life or property’,
as Section 3.02 (now Section 3.115) of the Act requires, is stricken. This is not an affirmative
defense because it attacks the sufficiently of the claim itself. The Board strikes the affirmative
defense.
Regarding respondent’s request to file a motion to strike for failure to sufficiently plead
a cause of action, the Board notes that pursuant to 35 Ill Adm. Code 101.506, a motion to
strike must be filed within 30 days after the service of the challenged document unless the
Board determines material prejudice will result. The Board does not believe material prejudice
will result if a motion for leave to file a motion to strike is not granted. Therefore,
respondent’s request to file a motion to strike is denied.
COUNT IX: SHIPMENT TO IMPROPER FACILITY
Complainant alleges that
respondent shipped hazardous carbon containing benzene to a
disposal facility that had not received an Agency identification number in violation of Section
21(e) of the Act and 35 Ill. Adm. Code 722.112(c). Supp. Comp. at 19. Section 21(e) states
that no person shall:
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. 415 ILCS 5/21(e)(2000)
amended by
P.A. 92-0574, eff. June 26,
2002.
35 Ill. Adm. Code 722.112(c) states:
20
A generator must not offer his hazardous waste to transporters or to treatment,
storage or disposal facilities that have not received an EPA identification
number.
Specifically, complainant states that at respondent’s facility, there is a wastewater
treatment plant that treats wastewater for benzene content. Supp. Comp. at 17. The
wastewater is the product of a unit within the plant that generates a waste stream consisting of
spent carbon from air pollution control equipment. Supp. Comp. at 17. On July 24, 1998, the
Agency received a call from respondent that a 10 cubic yard roll-off box containing 9,998
pounds of spent carbon that was characteristically hazardous for benzene was inadvertently
shipped to the Roxana landfill, a solid waste-only facility on July 14 1998. Supp. Comp. at
18. After shipment to the landfill, the carbon was deposited in the active face, and covered
with other wastes and daily cover. Supp. Comp. at 18.
First Affirmative Defense
Respondent argues that due
to the properties of benzene and carbon, the benzene will
remain bound to the carbon in the landfill until the benzene has biodegraded to methane. Ans.
at 44. Therefore, the benzene will not leach from the landfill and disposal of the benzene and
carbon poses no greater threat to human health or the environment than does disposal of
benzene contained in petroleum-contaminated soil from underground storage tanks (UST),
which the landfill is license to, and does, accept. Ans. at 44.
Complainant replies that neither Section 21(e) of the Act nor 35 Ill. Adm. Code
722.112(c) require poof that the benzene will not leach or that it poses no greater threat to
human health or the environment than benzene contained in petroleum contaminated soil from
UST sites. Mot. at 19. Therefore, this affirmative defense is not an affirmative defense.
Mot. at 19.
Respondent replies that the
defense gives color to the complainant’s allegations, but
alleges facts which could possibly defeat complainant’s claim. Resp. at 28. Respondent
argues the respondent may be able to demonstrate that the waste will never leave the landfill
and therefore “the essence of what the statutes and regulation relied upon by the State are
designed to do – prevent the waste from becoming a threat of harm to human health or the
environment, has not been violated.” Resp. at 28. Respondent states these are new facts
which show the “goals of the statutes and regulations” have not been violated. Resp. at 28.
Also, these are new facts which may take the State by surprise at hearing. Resp. at 28.
Discussion
Respondent’s affirmative defense addresses information relevant to the imposition of a
penalty rather than that violations of 21(e) of the Act or 35 Ill. Adm. Code 722.112(c)
occurred. The Board has previously held that affirmative defenses that concern factors in
mitigation are not an appropriate affirmative defense to a claim that a violation has occurred.
People v. Geon Company, Inc., PCB 97-62 (Oct. 2, 1997); People v. Midwest Grain Products
21
of Illinois, Inc., (Aug. 21, 1997). To the extent that respondent may be attempting to
challenge the Board’s air rules, Section 41(c) of the Act precludes a challenge to rules in
context of an enforcement action.
See
415 ILCS 41(c)(2000)
amended by
P.A. 92-0574, eff.
June 26, 2002. The Board strikes the first affirmative defense for Count IX. The Board
strikes respondent’s first affirmative defense to Count IX because it is not an affirmative
defense. The Board reminds the parties that at hearing, respondent may introduce evidence
regarding any clean-up efforts initiated by respondent.
Second Affirmative Defense
Respondent asserts as a second affirmative defense that respondent hired a licensed
disposal contractor to perform all necessary testing and characterization of the spent carbon,
and to properly dispose of the spent carbon. Ans. at 45. Any failure to properly dispose of
the benzene was the result of an act or omission of the contractor. Ans. at 45
Complainant responds that this affirmative defense is irrelevant to this case. Mot. at
19. Citing the language of 21(e) and Section 722.112, complainant argues it is clear that it was
respondent’s duty to comply with the provisions of the Act and regulations. Mot. at 20.
Complainant states that the language does not negate a generator’s liability, even if a
contractor, by act or omission, violates the Act or regulations. Mot. at 20. Respondent had
control over the source of pollution and the capability to control the pollution. Mot. at 20.
Respondent replies that the Board has previously recognized the actions of an
independent contractor may relieve the owner of liability under the Act. Resp. at 30,
citing
Forest Preserve District of DuPage County v. Mineral and Land Resources Corp.
et al.
, PCB
96-84 (Dec. 18, 1997) and People v. Geon Company, PCB 97-62 (Oct. 2, 1997).
Discussion
The Board will not strike this affirmative defense because respondent may be able to
prevail on this count.
See
Discussion for count IV, Defense 2 on page 10 of this opinion and
order.
COUNT X: IMPROPER MANIFESTS AND DISPOSAL FACILITY
Complainant alleges the manifests prepared by respondent for transportation of the
hazardous carbon containing benzene designated the Roxana landfill, a facility which is not
permitted to accept hazardous waste. Supp. Comp. at 20. Complainant alleges that respondent
failed to prepare the manifests for the transportation of the hazardous carbon containing
benzene, and failed to designate a facility which is permitted to accept the hazardous waste,
thus violating Section 21(e) of the Act and 35 Ill. Adm. Code 722.120(a) and (b). Supp.
Comp. at 20. Section 722.120(a) and (b) state:
(a) A generator who transports, or offers for transportation, hazardous waste for off-
site treatment, storage or disposal must prepare a manifest before transporting the
waste off-site.
22
(b) A generator must designate on the manifest one facility which is permitted to
handle the waste described on the manifest.
Affirmative Defenses
Respondent alleges the same two affirmative defenses as it did for count IX.
Complainant’s requests to strike the defense are the same as count IX. Respondent
incorporated by reference the replies to the affirmative defenses for count IX.
Discussion
The Board strikes the first affirmative defense, but not the second affirmative defense
for the reasons stated in count IX Discussion above.
COUNT XI:
Complainant alleges that respondent did not placard or offer the initial transporter of
the hazardous carbon containing benzene appropriate placards for hazardous materials pursuant
to Department of Transportation regulations listed at 49 C.F.R. Part 172, Subpart F. Supp.
Comp. at 21. Section 722.133 of the Board’s waste disposal regulations provides:
Before transporting hazardous waste or offering hazardous waste for
transportation off-site, a generator must placard or offer the initial transporter
the appropriate placards according to Department of Transportation regulations
for hazardous materials under 49 CFR Part 172, Subpart F.
By failing to placard or offer the initial transporter the appropriate placards for hazardous
material pursuant to the Department of Transportation regulations, respondent violated Section
21(e) of the Act and 35 Ill. Adm. Code 722.122.
Affirmative Defense
Respondent argues respondent
hired a licensed disposal contractor to perform all
necessary testing and characterization of the spent carbon, and to properly dispose of the spent
carbon. Ans. at 50. Any failure to properly placard the benzene was the result of an act or
omission of the contractor. Ans. at 50.
Complainant reiterates its argument from count IX’s second affirmative defense that
respondent exercised control over the pollution source and respondent has no defense to the
count. Mot. at 22.
Respondent re-alleges its
response to complainant’s arguments against Count IX’s
affirmative defense that the Board has previously recognized the actions of an independent
contractor may relieve the owner of liability under the Act. Resp. at 30,
citing
Forest
Preserve District of DuPage County v. Mineral and Land Resources Corp.
et al.
, PCB 96-84
(Dec. 18, 1997); and People v. Geon Company, PCB 97-62 (Oct. 2, 1997).
23
Discussion
The Board will not strike this affirmative defense as complainant may be able to prevail
on this claim for the reasons discussed in the second affirmative defense for count IX above.
COUNT XII: FAILURE TO NOTIFY FACILITY
Complainant alleges respondent violated Section 21(e) of the Act and 35 Ill. Adm.
Code 728.107(a)(1)
2 by failing to notify the treatment or storage facility in writing of the
appropriate treatment standard and any applicable prohibition levels. Supp. Comp. at 23.
Section 728.107(a)(1) stated:
Except as specified in Section 728.132, where a generator’s waste is listed in 35
Ill. Adm. Code 721, Subpart D, the generator shall test his waste, or test an
extract using the test method described in 35 Ill. Adm. Code 721, Appendix B,
or use knowledge of the waste, to determine if the waste is restricted from land
disposal under this Part. Except as specified in Section 728.132, if a
generator’s waste exhibits one or more of the characteristics set out in 35 Ill.
Adm. Code 721, Subpart C, the generator must test an extract using the test
method described in 40 CFR 268, Appendix IX (Extraction Procedure (EP)
Toxicity Test Method and Structural Integrity Test (SW-846, Method 1310A))
as incorporated by reference in 35 Ill. Adm. Code 720.111, or use knowledge
of the waste, to determine if the waste is restricted from land disposal under this
Part. If the generator determines that his waste displays the characteristics of
ignitability (D001)(and is not the High TOC Ignitable Liquids Subcategory or is
not treated by INCIN, FSUBS, or RORGS or Section 728. Table C of this
Part), or the characteristic or corrosivity (D002), and is prohibited under
Section 728.137, the generator must determine shat underlying hazardous
constituents (as defined in Section 728.102 of this Part), are reasonably expected
to be present in the D001 or D002 waste.
1. If a generator determines that the generator is managing a restricted
waste under this Part and determines that the waste does not meet the
applicable treatment standards set forth in Subpart D of this Part or
exceeds the applicable prohibition levels set forth in Section 728.132 or
728.139, with each shipment of waste the generator shall notify the
2 This section was amended in an identical-in-substance rulemaking RCRA Update, USEPA
Regulations (July 1, 1996 through December 31, 1996), R97-21, UIC Update, USEPA
Regulations (January 1, 1997 through June 30, 1997), R98-3, RCRA Update, UPEPA
Regulations (January 1, 1997 through June 30, 1997), R98-5, (Aug. 20, 1998). The language
of the section as it is cited in the supplemental complaint is accurate for when the alleged
offense occurred.
24
treatment or storage facility in writing of the appropriate treatment
standard set forth in Subpart D of this Part and any applicable
prohibition levels set forth in Section 728.132 or 728.139.
First Affirmative Defense
Respondent argues that due
to the properties of benzene and carbon, the benzene will
remain bound to the carbon in the landfill until the benzene has biodegraded to methane. Ans.
at 53. Therefore, the benzene will not leach from the landfill and disposal of the benzene and
poses no greater threat to human health or the environment than does disposal of benzene
contained in petroleum-contaminated soil from USTs, which the landfill is license to, and does,
accept. Ans. at 53.
Complainant asserts
that neither Section 21(e) of the Act nor 35 Ill. Adm. Code
722.112(c) require poof that the benzene will not leach or that it poses no greater threat to
human health or the environment than benzene contained in petroleum contaminated soil from
UST sites. Mot. at 23. Therefore, this affirmative defense is not an affirmative defense.
Mot. at 23.
Respondent adopts and
re-alleges the response to the first affirmative defense to Count
IX.
Discussion
Respondent’s affirmative defense addresses information relevant to the imposition of a
penalty rather than violations of 21(e) of the Act or 35 Ill. Adm. Code722.112(c) occurred.
The Board has previously held that affirmative defenses that concern factors in mitigation are
not an appropriate affirmative defense to a claim that a violation has occurred. People v. Geon
Company, Inc., PCB 97-62 (Oct. 2, 1997); People v. Midwest Grain Products of Illinois, Inc.,
(Aug. 21, 1997). To the extent that respondent may be attempting to challenge the Board’s air
rules, Section 41(c) of the Act precludes a challenge to rules in context of an enforcement
action.
See
415 ILCS 41(c)(2000)
amended by
P.A. 92-0574, eff. June 26, 2002,. The Board
strikes the first affirmative defense for count XII. The Board strikes respondent’s affirmative
defense because it is not an affirmative defense.
Second Affirmative Defense
Respondent asserts as a second affirmative defense that respondent hired a licensed
disposal contractor to perform all necessary testing and characterization of the spend carbon,
and to properly dispose of the spent carbon. Ans. at 53. Any failure to properly dispose of
the benzene was the result of an act or omission of the contractor. Ans. at 53.
Complainant argues it’s clear that it was respondent’s duty to comply with the
provisions of the Act and regulations. Mot. at 23. Respondent had control over the source of
pollution. Mot. at 23.
25
Respondent replies that the Board has previously recognized the actions of an
independent contractor may relieve the owner of liability under the Act. Resp. at 32,
citing
Forest Preserve District of DuPage County v. Mineral and Land Resources Corp.
et al.
, PCB
96-84 (Dec. 18, 1997), and People v. Geon Company, PCB 97-62 (Oct. 2, 1997).
Discussion
The Board strikes the first affirmative defense, but not the second affirmative defense
for the reasons given in the discussion of count IX.
COUNT XIII: IMPROPER DISPOSAL
Complainant alleges that respondent violated Section 21(e) of the Act and 35 Ill. Adm.
Code 728.138(a) by land disposing of debris contaminated with United State Environmental
Protection Agency waste number D018. Section 728.138(a) states:
The wastes specified in 35 Ill. Adm. Code 721.132 as U.S. EPA hazardous
waste numbers K141, K142, K143, K144, K145, K147, K148, K149, K150,
and K151 are prohibited from land disposal. In addition, debris contaminated
with U.S. EPA hazardous waste numbers F037, F038, K107 through K112,
K117, K118, K123 through K126, K131, K132, K136, U328, U353, U359 and
soil and debris contaminated with D012 through D043, K141 through K145, and
K147 through K151 are prohibited from land disposal. The following wastes
that are specified in the table at 35 Ill. Adm. Code 721.124(b) as U.S. EPA
hazardous waste numbers D012, D013, D014, D015, D016, D017, D018,
D019, D020, D021, D022, D023, D024, D025, D026, D027, D028, D029,
D030, D031, D032, D033, D034, D035, D036, D037, D038, D039, D040,
D041, D042, and D043 that are not radioactive, that are managed in systems
other than those whose discharge is regulated under the federal Clean Water Act
(CWA; 33 U.S.C. Sections 1251 et seq.), that are zero dischargers that do not
engage in CWA-equivalent treatment before ultimate land disposal, or that are
injected in Class I deep wells regulated under the Safe Drinking Water Act
(SDWA) are prohibited from land disposal. “CWA-equivalent treatment”, as
used in this Section, means biological treatment for organics, alkaline
chlorination or ferrous sulfate precipitation for cyanide, precipitation and
sedimentation for metals, reduction for hexavalent chromium, or another
treatment technology that can be demonstrated to perform equally to or better
than these technologies.
Affirmative Defenses
Identical defenses are made for count XIII as made for count IX. The arguments to
strike the defense are also the same as made for count IX.
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Discussion
For the reasons stated concerning count IX, the Board strikes the first affirmative
defense and will not strike the second affirmative defense.
CONCLUSION
In sum, the Board grants in part and denies in part complainant’s motion to strike
affirmative defenses.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on August 8, 2002, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
