RECEIVEL)
ClERK’S
(‘~PF~
BEFORE THE ILLINOIS POLLUTTON CONTROL BOAR~L
92003
STATE OF ILLINOIS
Pollution
Control
Boczrd
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
vs.
)
)
PCB No. 02-03
TEXACO REFINING & MARKETING,
)
(Enforcement)
INC., a Delaware Corporation,
)
)
Respondent.
)
NOTICE OF FILING
To:
All Parties On Service List
Please take
notice that
the undersigned caused to be filed, on
July ~2003,
with
the
Clerk
of
the
Pollution
Control
Board,
a
copy
of
ANSWER
ON
BEHALF
OF
CHEVRON ENVIRONMENTAL
SYSTEMS
COMPANY,
a
copy
of
which,
is herewith
served upon you.
Chevron Environmental
Services Company
/
Their Attorney
Barbara A. Magel
Karaganis White
& Magel
414 North Orleans Street
Suite
810
Chicago,
Illinois
60610
312/836-1177
Fax
312/836-9083
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~CEIVED
CLERK’S
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
JUL
9
2003
STATE OF ILLINOIS
Complamant,
Pollution
Control
Board
vs.
)
PCB No. 02-03
TEXACO REFINING & MARKETING,
)
(Enforcement)
INC., a Delaware Corporation,
)
)
Respondent.
,
)
ANSWER ON BEHALF OF CHEVRON
ENVIRONMENTAL SERVICES COMPANY
NOW COMES Chevron
Environmental
Services Company hereinafter
“CESC”
successor to Respondent Texaco Refining
& Marketing, Inc.
(“TRMI”)J, by its attorneys
and answers the Complaint filed in the above captioned matter as follows:
To
the
extent
that
any
allegation
herein
is not
explicitly admitted
herein, it
is
denied.
COUNT I
WATER POLLUTION
1.
This
count
is brought
on
behalf of the People of the
State
of
Illinois,
by
JAMES E. RYAN, Attorney General of the State of Illinois, and JEFF TOMCZAK, State’s
Attorney
of
Will
County,
on
their
own
motion
and
at
the
request
of
the
Illinois
Environmental
Protection Agency
(“Illinois
EPA”), pursuant
to Illinois Environmental
Protection Act (“Act”), 415 ILCS 5/31(2000), for civil penalties.
RESPONSE: Paragraph
1
states
prefatory
legal
conclusions
for
which
no
answers are required.
2.
The Illinois
EPA is an agency of the State
of Illinois created pursuant
to
Section
4
of the
Act,
415
ILCS
5/4
(2000),
and
charged,
inter
alia,
with
the
duty
of
enforcing the Act.
RESPONSE: Paragraph
2
states
legal
conclusions
for
which
no
answers
are
required.
3.
At all
times relevant to the complaint,
Texaco Refining
& Marketing,
Inc.
(“Texaco”) was and
is
a Delaware corporation qualified
to do
business
in the State
of
illinois.
Texaco operated
an oil refinery at the site from 1910
to 1981 located at 301
W.
2nd
Street, Lockport in Will County, Illinois (“site” or “facility”).
RESPONSE: CESC
states
that
at
all
times
TRMI
existed
as
a
subsidiary
of
Texaco, it was a Delaware corporation.
That corporate
entity has now been succeeded
by CESC
as owner/operator
of the former refinery at 301
West
2nd
Street, Lockport in
Will County,
Illinois
(“site”
or “property”).
CESC
denies that
TRMI
operated
an
oil
refinery at the site from
1910 to
1981,
but states
that corporations related to
TRMI, or
TRMI operated that refinery for that period.
4.
In
1987,
Texaco
closed
five
Resource
Conservation
and
Recovery
Act
(“RCRA”)
interim
status
waste
disposal
units
at
its
facility,
in
accordance
with
an
approved
closure
plan.
The
five
RCRA
interim
status
waste
disposal
units
are
as
follows:
1)
Landfarm
No.
1
(“LF-l”),
used
for
the
disposal
of
oily
waste
and
contaminated
soils
from
refinery
operations;
2)
Leaded
Landfarm
(“LLF”),
used
for
disposal
of leaded
tank bottoms from refinery operations;
3)
Land Application
Area
(“LAA”),
used
as
a
land
spreading
area
for
the
disposal
of
wastewater
treatment
residues;
4)
Cooling
Tower
Disposal
Area
(“CT”), used
as a land spreading
area for
dewatering and
disposal of cooling tower sediments; and
5) Landfarm No.
2
(“LF-2”),
used to
store excavated
wastes
and
associated
contaminated
soils
removed
from the
above four units
and
placed
in
LF-2
as part
of closure
operations from August
1986
until December 1987.
RESPONSE:
CESC
denies that it closed five disposal
units at its facility in 1987
and
affirmatively
states that
one
disposal
unit and
four treatment
units were
closed.
Further,
CESC
denies
that
excavated
wastes
and
associated
contaminated
soils
are
stored
in
LF-2.
LF-2
is
a
permanent
disposal
unit.
To
the
extent
that
the
factual
allegations of this paragraph are not specifically denied, they are admitted.
5.
On September 30,
1993, the Illinois
EPA approved Texaco’s RCRA Part
B
Post-Closure Permit Application with
conditions.
In November 1993, Texaco appealed
various permit conditions to the Illinois Pollution Control Board (“Board”).
Some of the
contested
conditions
were included
in the permit
to address the known groundwater
contamination at the facility.
This permit appeal is still pending before the Board.
RESPONSE:
CESC
admits that
a Part
B
Post-Closure
Permit was
approved
for
the Site by IEPA on or about September 30, 1993 and that a permit appeal was filed with
respect to
the Site
Part
B
Post-Closure
Permit in November,
1993.
CESC
denies
that
-2-
such appeal
is
still
pending before
the
Board.
As to the
remaining allegations
of this
Paragraph, CESC is without sufficient information to admit or deny such allegations.
6.
Under Texaco’s interim status groundwater
assessment
plan and interim
post-closure care plan, Texaco monitors and submits groundwater reports to the Illinois
EPA.
Texaco’s Fourth
Quarter
1998
and
First
Quarter
1999 groundwater
monitoring
results detected
various
constituents
in eight monitoring
wells.
These sample
results
with applicable standards indicated, are attached hereto as Exhibit A.
Five of the wells
are located on
Landfarm No.
2, Monitoring Wells
PM-9R, PM-bR,
PM-13, PM-21 and
PM-24; one is located on Landfarm No. 1, Monitoring Well PM-29R; and two are located
on the southwest corner of the facility, Monitoring Wells PM-5 and R-1.
RESPONSE: CESC
admits
that
TRMI
monitored
ground
water
and
routinely
submitted
data
reports
to
the
Illinois
EPA.
CESC
denies
that
such
monitoring
is
continuing
under
the
interim
status
ground
water
assessment
plan or
interim
post-
closure care plan and
states
affirmatively that
ongoing
groundwater
monitoring
and
reporting are conducted in compliance with the Part
B Post-Closure Permit for the site.
To
the extent
the Paragraph
includes
a
legal conclusion
as to “applicable
standards”,
such
conclusion
requires
no
answer
and
therefore
is
neither
admitted
nor
denied.
Further,
CESC
states
affirmatively
that
the
numerical
standards
listed
on
Exhibit
A
were
not
applicable
to
interim
status
ground
water
programs.
CESC
admits
the
remaining factual allegations of Paragraph 6.
7.
Samples
from
Monitoring
Well
PM-9R
indicated
at
least
the
following
constituents in the groundwater: Acenaphthene, Fluorene, Ethylbenzene and Xylenes.
RESPONSE: CESC
admits
that
analytical
results
for
Monitoring
Well
PM-9R
showed detections of acenaphthene, fluorene, ethylbenzene and xylene.
8.
Samples from
Monitoring
Well
PM-1OR
indicated at
least the
following
constituents in the groundwater:
Lead.
RESPONSE: CESC
admits
that
analytical
results
for
sampling
of
Monitoring
Well PM-bR
showed detections of lead.
9.
Samples
from
Monitoring
Well
PM-13
indicated
at least
the
following
constituents in the groundwater:
Acenaphthene, Anthrancene, Fluorene, Phenanthrene,
Pyrene, and Xylenes.
-3-
RESPONSE:
CESC
admits
that
analytical
results
for
sampling
of
Monitoring
Well
PM-13
showed
detection of
acenaphthene,
anthrancene, fluorene,
phenanthrene,
pyrene and xylenes.
10.
Samples
from
Monitoring
Well
PM-21R
indicated
at least the
following
constituents in the groundwater: Fluorene, Lead and Phenanthrene.
RESPONSE:
CESC
admits
that
analytical
results
for
sampling
of
Monitoring
Well PM-21R showed detection of fluorene, lead and phenanthrene.
11.
Samples
from
Monitoring
Well
PM-24
indicated
at
least
the
following
constituents in the groundwater: Lead.
RESPONSE: CESC
admits
that
analytical
results
for
sampling
of
Monitoring
Well PM-24 showed detection of lead.
12.
Samples
from Monitoring
Well
PM-29R
indicated
at least the
following
constituents in the groundwater: Lead.
RESPONSE:
CESC
admits
that
analytical
results
for
sampling
of
Monitoring
Well PM-29 showed detection of lead.
13.
Samples
from
Monitoring
Well
PM-5
indicated
at
least
the
following
constituents
in
the
groundwater:
Acenaphthene,
Anthrancene,sic
Arsenic,
Benzene,
Benzo(a)anthracene,
Chrysene,
Ethylbenzene,
Fluoranthene,
Fluorene,
2-Methyl-
naphthalene, Phenanthrene,
Pyrene, Ethylbenzene, Toluene and Xylenes.
RESPONSE:
CESC
admits
that
analytical
results
for
sampling
of
Monitoring
Well
PM-5
showed
detection
of
acenaphthene,
anthracene,
arsenic,
benzene,
benzo(a)anthracene,
chrysene,
ethylbenzene,
fluoranthene,
fluorene,
2-methyl-
naphthalene,
phenanthrene,
pyrene,
ethylbenzene,
toluene
and
zylenes.
CESC
affirmatively states that
Well
PM-5
was located
up-gradient
of a voluntarily
installed
ground water interceptor system so that ground water from this area has been captured
for treatment since February
rb999.
CESC further
states that
it voluntarily
performed
petroleum hydrocarbon recovery to the south of Well PM-S beginning in 1985.
14.
Samples
from
Monitoring
Well
R-b
indicated
at
least
the
following
constituents in the groundwater:
Acenaphthene, Anthrancene,sic
Benzo(a)-anthracene,
-4-
Benzo(a)pyrene,
Chromium,
Chrysene,
Fluoranthene,
Fluorene,
Lead,
Phenanthrene,
Pyrene, Ethylbenzene, Toluene and Xylenes.
RESPONSE: CESC
admits
that
analytical
results
for
sampling
of
Monitoring
Well
R-1
showed
detection
of
acenaphthene,
anthracene,
benzo(a)-anthracene,
benzo(a)pyrene,
chromium,
chrysene,
fluoranthene,
fluorene,
lead,
phenanthrene,
pyrene, ethylbenzene, toluene and xylenes.
CESC affirmatively states that Well R-1 was
located up-gradient of a voluntarily
installed ground
water interceptor system
so that
ground
water
from
this
area
has
been captured
for
treatment
since
February
1999.
CESC
further
affirmatively
states
that
R-1
was
originally
used
as
a
hydrocarbon
recovery well beginning in 1985.
15.
The groundwater monitoring reports also contain physical descriptions
of
potential
groundwater
contamination
indicating
that
the water
samples
were
turbid,
brownish yellow or grayish, had
oil droplets, film or sheen and/or
hydrocarbon odor.
A list of physical descriptions of the contamination found in each well is set forth herein
and attached hereto as Exhibit B.
RESPONSE:
CESC
admits
that its ground water
monitoring
reports
submitted
to JEPA from time to time contain
physical descriptions of the water samples collected.
CESC
denies that all
of these descriptions were necessarily indicative of ground water
contamination.
16.
On July
21,
1999,
the Illinois
EPA sent
a Violation
Notice
regarding the
groundwater contamination.
RESPONSE: CESC admits that
it received a letter styled a Violation Notice on or
about July 21, 1999.
CESC further states that such Notice speaks for itself.
17.
On
October
6,
1999,
a
meeting
was
held
in
which
Texaco
submitted
Compliance
Commitment
Agreements
which
were
rejected
by
the
Illinois
EPA
on
October 21, 1999.
RESPONSE: CESC
admits
that
its
representatives
met
with
representatives
of
Illinois
EPA and
that
CESC
on
October
6,
1999
and that
on
October
27,
1999
CESC
admits that
it timely submitted
Compliance
Commitment
Agreements.
CESC
further
admits
that
it
received, letters
rejecting
those
agreements
on
or about
November
24,
-5-
1999.
CESC
states affirmatively
that
its
representatives
were told
that
the
proposed
Compliance
Commitment
Agreements
were
rejected
solely
on
the
ground
that
Complainant wanted to collect a penalty, as opposed to any technical deficiency.
18.
On December
14,
1999, the Illinois
EPA
sent
Notices of Intent to
Pursue
Legal
Action
to
Texaco.
On
January
18,
2000,
the
Illinois
EPA
and
Texaco
held
a
meeting regarding these letters.
RESPONSE:
CESC admits that on or about December
14, 1999 it received
a letter
styled Notice of Intent to Pursue Legal Action and that a meeting was held on January
20, 2000.
CESC further states that the letter speaks for itself.
19.
Section
12(a)
of the
Illinois
Environmental
Protection
Act
(“Act”),
415
ILCS 5/12(a)(1998), provides
as follows:
No person Qhall:
(a)
Cause
or threaten or allow the discharge of any contaminants 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.
RESPONSE: Paragraph
19 merely restates Section 12(a) of the Act, which speaks
for itself.
20.
Section
3.06
of the
Act,
415
ILCS
5/3.06
(2000),
contains
the
following
definition:
“CONTAMINANT”
is
any
solid,
liquid,
or
gaseous
matter,
any
odor,
or
any
form of energy, from whatever source.
RESPONSE:
Paragraph
20 merely restates Section 3.06 of the Act, which speaks
for itself.
21.
Acenaphthene,
Anthrancene,sic
Arsenic,
Benzene,
Benzo(a)anthracene,
Benzo(a)pyrene,
Bis(2-ethylhexyl)-plhalate,
chromium,
Chrysene,
Ethylbenzene,
Fluoranthene,
Fluorene,
2-Methyl-naphthalene,
Phenanthrene,
Pyrene,
Lead,
Toluene
and Xylenes are “contaminants” as that term is defined in Section 3.06 of the Act.
RESPONSE:
Paragraph
21
states
legal
conclusions
for
which
no
answers
are
required.
-6-
22.
Section
3.26
of
the
Act,
415 ILCS
5/3.26
(2000),
provides
the
following
definition:
“PERSON”
is
any
individual,
partnership,
co-partnership,
firm,
company, limited
liability, company, corporation, association, joint
stock company, trust,
estate,
political
subdivision,
state agency, or
any other legal entity, or their legal representative, agent or assigns.
RESPONSE: Paragraph 22 merely restates Section 3.26 of the Act, which speaks
for itself.
23.
Defendant is a “person”
as that term is defined in Section 3.26 of the Act,
415 ILCS 5/3.26 (2000).
RESPONSE: Paragraph
23
states
a
legal
conclusion
for
which
no
answer
is
required.
24.
Section
3.55
of the
Act,
415
ILCS
5/3.55
(2000),
contains
the
following
definition:
“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 contaminant into any waters
of the
State,
as will or is
likely to create a nuisance or render
such waters
harmful
or
detrimental
or
incurious
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.
RESPONSE:
Paragraph 24 merely
restates Section 3.55
of the Act, which
speaks
for itself.
25.
Section
3.56
of the
Act,
415
ILCS
5/3.56
(2000), provides
the
following
definition:
“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 borders upon this
State.
RESPONSE: CESC denies that Paragraph 25 fully restates Section 3.56
of the Act,
but avers that the Act speaks for itself.
-7-
26.
The groundwater
underlying the
Texaco site is a “water”
of the State
of
Illinois, as that term is defined in Section 3.56 of the Act, 415
ILCS 5/3.56 (2000).
RESPONSE: Paragraph
26
states
a
legal
conclusion
for
which
no
answer
is
required.
27.
Pursuant
to
the
authority
granted
in
Section
8(a)
of
the
Illinois
Groundwater
Protection
Act,
415
ILCS
55/8(a)(2000),
the
Illinois
Pollution
Control
Board
(“Board”)
has promulgated
rules
and
regulations
to
establish
comprehensive
water quality standards which are specifically for the protection of groundwater.
RESPONSE: Paragraph
27
states
prefatory
legal
conclusions
for
which
no
answers are required.
To the extent Paragraph
27 purports to summarily restate Section
8(a) of the Act, CESC states that the Act speaks for itself.
28.
Section
620.210
of the
Board’s Groundwater
Quality
Regulations,
35
Ill.
Adm. Code 620.210, provides as follows:
Section 620.210 Class
I: Potable Resource Groundwater
Except
as
provided
in
Sections
620.230,
620.240,
or
620.250,
Potable
Resource
Groundwater is:
d)
Groundwater located
10 feet or more below the land surface and within:
1)
The minimum
setback
zone
of
a
well
which serves
as
a
potable
water supply and to the bottom of such well;
2)
Unconsolidated
sand, gravel or sand and
gravel which is
5 feet or
more in thickness and that contains 12
percent or less
of fines
(i.e.
fines which pass through
a No.
200 sieve tested according to ASTM
Standard
Practice
D2488-84,
incorporated
by
reference
at
Section
620.125);
3)
Sandstone
which
is
10
feet
or
more
in
thickness,
or
fractured
carbonate which is 15 feet or more in thickness; or
4)
Any geological material which is capable of a:
A)
Sustained groundwater
yield, from up to a 12 inch borehole,
of 150
gallons per day or more from a thickness of 15 feet or
less; or
B)
Hydraulic conductivity of 1 x 10 (-4) cm/sec or greater using
one of the following test methods or its equivalent:
-8-
i)
Permeameter;
ii)
Slug test; or
iii)
Pump test.
e)
Any groundwater which is determined by the Board pursuant to petition
procedures
set
forth
in
Section
620.260,
to
be
capable
of
potable
use.
(Board
Note:
Any portion
of the
Thickness
associated
with
the
geologic
materials as described
in subsections
620.210(a)(2),
(a)(3)
or (a)(4) should
be designated as Class
I: Potable Resource Groundwater if located
10 feet
or more below the land surface.
RESPONSE: Paragraph
28 merely restates Section 620.210
of the Ground
Water
Quality Regulations, which speak for themselves.
29.
The
groundwater
underlying the
Texaco
site is
Class
I
groundwater
as
defined in Section
620.210
of the Board
Groundwater Quality Standards,
35
Ill.
Adm.
Code
620.210,
as
it
is
located
10
or
more
feet
below
the
land
surface
and
within
sandstone which is 10 feet or more in thickness, or fractured carbonate which is
15 feet
or more in thickness.
RESPONSE:
In
further
answer,
CESC
states
that
some
of
the
ground
water
beneath its facility is located less than ten feet from the ground’s surface.
To the extent
that the allegations in Paragraph 29 are inconsistent with this answer, they are denied.
30.
Section
620.405
of the
Board’s Groundwater
Quality
Regulations,
35
Ill.
Adm. Code 620.405, provides as follows:
No
person
shall
cause,
threaten
or
allow
the
release
of
any
contaminant to groundwater
so as to
cause a groundwater
quality
standard set forth in this subpart to be exceeded.
RESPONSE: Paragraph
30 merely restates Section 620.405
of the Ground
Water
Quality Regulations, which speak for themselves.
31.
Section
620.
410
of the
Board
Groundwater
Quality
Regulations,
35
Ill.
Adm. Code 620.410, provides in pertinent part as follows:
a)
Inorganic
Chemical
Constituents.
Except
due
to
natural
caused
or
as
provided
in
Section
620.450,
concentrations
of the
following
chemicals
constituents must not be exceeded in Class I groundwater:
Constituent
Standard
-9-
(mgfL)
Arsenic
0.05
Chromium
0.1
Lead
0.0075
b)
Organic
Chemical
Constituents.
Except
due
to
natural
causes
or
as
provided
in
Section
620.450
or
subsection
(c),
concentrations
of
the
following organic
chemical constituents shall not
be exceeded
in
Class
I
groundwater:
Constituent
Standard
(mg’L)
Benzene*
0.005
Benzo(a)pyrene*
0.0002
Bis(2-ethylhexyl)-pthalate
0.006
Ethylbenzene
0.7
Toluene
1
Xylenes
10
*Denotes a carcinogen
RESPONSE:
Paragraph
31
states
legal
conclusions
for
which
no
answers
are
required.
To the extent Paragraph
31 purports to restate Section 620.410
of the Ground
Water Quality Regulations, CESC states that these regulations speak for themselves.
32.
The levels
of
Arsenic, Lead, Benzene,
Benzo(a)pyrene,
Bis(2-ethylhexyl)-
pthalate,
Chromium,
Ethylbenzene,
Toluene
and
Xylenes
found in
Monitoring
Wells
PM-9R,
PM-bR,
PM-21R,
PM-24,
PM-29R,
R-1
and
PM-S
as
set forth
in
Exhibit
A,
exceed
the
Board
Class
I
groundwater
quality
standards,
as
set
forth
in
the
Board
Groundwater
Quality Regulations, 35
Ill. Adm. Code 620.410.
RESPONSE: CESC
admits
that
the
levels
of
the
constituents
identified
in
Paragraph
32
exceed
the Class
1 groundwater
quality standards
of 35
Ill. Adm.
Code
620.410.
CESC
denies
that
such
exceedences
are
violations
of
35
IAC
620.410
and
affirmatively states that such standards
are not applicable
to the groundwater
samples
from
Monitoring
Wells
PM-9R,
PM-bR,
PM-21R,
PM-24,
PM-29R,
R-b
and
PM-5
reflected on Exhibit A.
33.
Section
620.420
of the
Board
Groundwater
Quality
Regulations,
35
Ill.
Adm. Code 620.420, provides in pertinent part as follows:
a)
Inorganic Chemical Constituents.
-10-
1)
Except
due to natural
causes or as provided
in Section
620.450 or
subsection (a)(3)
or
(d), concentrations of the
following chemicals
constituents must not be exceeded in Class
I groundwater:
Constituent
Standard
(mgfL)
Lead
0.1
b)
Organic Chemical Constituents
1)
Except due
to natural
causes or as provided
in Section
620.450 or
subsection
(b)(2)
or
(d),
concentrations
of the
following
organic
chemical
constituents
shall
not
be
exceeded
in
Class
II
groundwater:
Constituent
Standard
(mg/L)
Benzo(a)pyrene*
0.002
Bis(2ethylhexyl)-pthalate
0.006
RESPONSE:
Paragraph
33
states
legal
conclusions
for
which
no
answers
are
required.
To
the
extent
Paragraph
33
purports
to
restate
Section
620.420
of
the
Groundwater
Quality
regulations,
CESC
answers
that
such
regulations
speak
for
themselves.
CESC
denies that
0.006
mg/L
is the
Section
620.420
standard
for bis
(2-
ethylhexyl)-pthalate.
34.
The levels of Lead, Benzo(a)pyrene and Bis(2-ethylexyl)-pthalate, found in
Monitoring Wells R-1,
as set forth in Exhibit A, exceed the Board Class
II
groundwater
quality standards,
as set forth
in
the Board
Groundwater
Quality
Regulations,
35
Ill.
Adm. Code 620.420.
RESPONSE: CESC
admits
that
the
levels
of
the
constituents
identified
in
Paragraph
34
exceed
Class
II
groundwater
quality
standards
of
35
Ill.
Adm.
Code
620.420.
CESC
denies
that
any
such
exceedences
constitute
violations
of
620.420
standards
and
affirmatively
states
that
such
standards
are
not
applicable
to
the
groundwater samples from Monitoring Well R-b as set forth in Exhibit A..
35.
Pursuant
to
the
authority
granted
in
Section
58.3
of
the
Illinois
Environmental
Protection
Act,
415
ILCS 5/58.3
(2000),
entitled,
the
Site Investigation
and
Remedial
Activities
Program;
Brownfields
Redevelopment
Fund
the
Board
has
promulgated
the rules and
regulations
in
35
Ill. Adm.
Code Part
742,
entitled,
Tiered
-11-
Approach
to
Corrective
Action
Objectives
(“TACO”),
which
establish
remediation
objectives protective of human health and the environment based
on
identified risks
and specific site characteristics.
RESPONSE:
Paragraph
35
merely
contains
prefatory
descriptive
language
regarding
statutes
and
regulations
which
speak
for
themselves
and
for
which
no
answers are required.
36.
Table E Tier 1
of the Board Waste Disposal Regulations, 35 Ill. Adm.
Code
742, Appendix B, Table E, Tier
1, provides in pertinent part as follows:
Groundwater Remediation Objectives
Chemical Name
Class I
Class II
Benzene
0.005
0.025
Benzo(a)-anthracene
0.00013
0.00065
Benzo(a)-pyrene
0.0002
0.002
Bis(2-ethylhexyl)-pthalate
0.006
0.06
Chrysene
0.0015
0.0075
Fluorene
0.28
1.4
Toluene
1.0
2.5
Xylene
10.0
10.0
Inorganics
Arsenic
0.05
0.2
Chromium
0.1
.
0.1
Lead
0.0075
0.1
RESPONSE:
Paragraph
36
states
legal
conclusions
for
which
no
answers
are
required.
Table E, Tier 1 of 35 Ill. Adm.
Code 742, Appendix
B speaks for itself.
37.
The
levels
of
Arsenic,
Benzene,
Benzo(a)-anthracene,
Benzo(a)pyrene,
Bis(2-ethylhexyl)-pthalate, Chrysene,
Chromium,
Fluorene, Lead, Toluene
and Xylene,
found in Monitoring Wells PM-9R,
PM-1OR, PM-21R,
PM-24, PM-29R, R-b and PM-5 as
set
forth- in
Exhibit
A,
exceed
the
Groundwater
Remediation
Objectives
set
forth
in
-12-
Table
E
Tier
1
of
the
Board
Waste
Disposal
Regulations,
35
Ill.
Adm.
Code
742,
Appendix
B, Table E, Tier 1 for Class I groundwater.
RESPONSE:
CESC
admits
that
the
levels
of
the
constituents
identified
in
Paragraph
37
exceed
the
Remediation Objectives
set forth
in
35
Ill.
Adm.
Code
742,
Appendix
B,
Table
E
Tier
1
for
Class
I
groundwater.
CESC
denies
that
the
cited
exceedences constitute violations of TACO.
38.
The
levels
of
Benzo(a)-anthracene,
Chrysene,
Benzo(a)pyrene,
Bis(2-
ethylhexyl)-pthalate and Lead and Toluene, found
in Monitoring Well R-1 as set forth in
Exhibit A, exceed the Groundwater Remediation Objectives setforth
in Table E Tier 1 of
the Board
Waste
Disposal
Objectives
set forth
in
Table
E Tier
1
of the
Board
Waste
Disposal
Regulations,
35
Ill.
Adm.
Code
742,
Appendix
B,
Table E,
Tier
1
for Class
II
groundwater.
RESPONSE:
CESC
admits
that
the
level
of
the
constituents
identified
in
Paragraph 38 exceed Groundwater
Remediation Objectives set forth in Table E Tier I of
35
Ill. Adm.
Code
742,
Appendix
B,
Table
E,
Tier
1 for Class
II groundwater.
CESC
denies that the cited exceedences constitute violations of TACO.
39.
Section
620.110
of
the
Board
Groundwater
Quality
regulations,
35
Ill.
Adm. Code 620.110
provides in pertinent part as follows:
“Practical
Quantitation
Limit”
or “PQL”
means
the lowest
concentration or
level that can
be reliably measured
within
specified
limits
of
precision
and
accuracy
during
routine
laboratory
operation
conditions
in
accordance
with
“Test
Methods
For
Evaluating
Solid
Wastes,
Physical/Chemical
Methods”,
EPA
Publication
No.
SW-846,
incorporated
by
reference at Section 620.125.
RESPONSE: Paragraph
39
states
legal
conclusions
for
which
no
answers
are
required.
Section 620.110
of the Groundwater
Quality regulations, speaks for itself.
40.
Texaco’s
Illinois
EPA
approved
Post
Closure
Groundwater
Quality
Assessment Plan, Page 44, Evaluation Procedures b, provides as follows:
For
organic parameters, the PQL will be used.
A
tolerance
range
of
two
times
the
PQL
will
be
established.
If
an
observed
value is
above the
tolerance
range
or any two
or
-
more
parameter
values
for that
well
exceed the
established
PQL,
then
Texaco
shall immediately
resample
the
well.
If
-13-
the
resample
again
fails
the
comparisons,
then it
shall
be
concluded an exceedance has occurred.
RESPONSE: CESC answers that the Illinois EPA approved Post Closure Ground
Water
Quality
Assessment
Plan speaks
for itself.
CESC
states
affirmatively that
this
Assessment Plan is no longer pertinent to groundwater
monitoring at the site which is
now controlled by a Part B PostClosure Permit.
41.
The levels of Acenaphthene,
Anthracene, Benzo(a)-anthracene, Chrysene,
Fluoranthene,
Fluorene,
2-Methyl-naphthalene,
Phenathrene,
Pyrene,
Ethylbenzene,
Toluene, Xylenes, found in Monitoring Wells PM-9R, PM-13, P M-21R, PM-S and R-1
as
set forth in Exhibit A, exceed either two times the PQL or the PQL where more than one
constituent in a well is above the PQL.
RESPONSE: CESC is without
sufficient knowledge
to either admit or deny the
allegations of paragraph 41 as to PQLs.
42.
Since at least
the Fourth
Quarter
of 1998,
and continuing
to the filing of
this Complaint, at least eight of the Monitoring
Wells at the Texaco Facility have levels
of contaminants which are either above the Groundwater Quality Standards set forth in
35
Ill. Adm.
Code 620,
the TACO Groundwater
Remediation
Objectives set forth in
35
Ill. Adm. Code 742, or detection limits based on the PQL.
RESPONSE:
CESC
is without
sufficient knowledge
to either admit or deny
the
allegations
of Paragraph
42.
CESC
states affirmatively
that
the TACO Objectives
are
not
enforceable
standards
but
rather
defined
benchmarks
for
assessment
and
remediation.
CESC
states
further
that
the cited
standards
are
not
applicable
to
the
identified ground water samples.
43.
Respondent, Texaco,
is
in violation of Section
12(a) of the Act and
35
Ill.
Adm.
Code 620.405 because the levels of contaminants detected in the groundwater are
above one or more of 35 Ill. Adm.
Code
620 Class I Groundwater
Quality Standards or
35111. Adm. Code 620 Class II Groundwater Quality Standards.
RESPONSE:
Paragraph
43
states
legal
conclusions
for
which
no
answers
are
required.
44.
Respondent, Texaco, is in violation of Section 12(a) of the Act because the
levels
of- contaminants
detected
in
the
groundwater
are
above
one
or
more
of
the
following objectives or detection limits:
(1) TACO,
35 Ill. Adm.
Code
742,
Appendix
B,
-14-
Table
1
-
Tier I, Class
I Groundwater Remediation
Objectives;
(2)
TACO,
35
Ill. Adm.
Code 742, Appendix
B,
Table B
-
Tier 1, Class
III Groundwater Remediation Objectives;
(3)
two times
the
PQL;
and
(4) the
PQL where more than
one constituent
in
a well
is
above the PQL.
RESPONSE: Paragraph
44
states
legal
conclusions
for
which
no
answers
are
required.
WHEREFORE,
Complainant,
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
respectfully requests that the Board enter an order:
1.
Authorizing
a
hearing on
this
matter at which
time
Respondent
will be
required to answer the allegations herein;
2.
Finding
that
Respondent
violated
Section
12(a)
of
the
Act,
415
ILCS
5/12(a)(2000), and 35 Ill. Adm.
Code 620.405;
3.
Requiring Respondent to prepare and initiate a groundwater remediation
plan acceptable to the Complainant;
4.
Assessing
against Respondent
a
civil penalty
of Fifty Thousand
Dollars
($50,000.00)
for
each
violation
of
the
Act,
and
pertinent
regulations
promulgated
thereunder,
with an additional
penalty
of Ten Thousand
Dollars
($10,000.00) for
each
day during which the violation continues;
5.
Ordering
Respondent
to
pay
all
costs
of this
action pursuant
to
Section
42(f)
of
the
Act,
415
ILCS
5/42(f)(2000),
including
attorney,
expert
witness
and
consultant fees expended by the State in its pursuit of this action; and
6.
Granting such other relief as the Board deems appropriate and just.
RESPONSE:
CESC denies that Complainants are entitled to the relief requested.
COUNT
II
OPEN DUMPING
1.
This count
is brought
on
behalf of the
People of the State
of Illinois,
by
JAMES E. RYAN, Attorney General of the State of Illinois, and JEFF TOMCZAK, State’s
Attorney
of
Will
County,
on
their
own
motion
pursuant
to
Illinois
Environmental
Protection Act (“Act”), 415 ILCS 5/31(2000), for civil penalties.
RESPONSE:
Paragraph
1
states
prefatory
legal
conclusions
for
which
no
answers are required.
-15-
2.-7.
Complainant
realleges and incorporates herein by reference paragraphs 2
through 5,22 and 23 of Count I as paragraphs 2 through
7 of this Count II.
RESPONSE: CESC
restates
and
incorporates
its
answers
to
Paragraphs
2
through
5,
22 and
23
of Count I, inclusive,
as if fully set forth here, as
its answers to
Paragraphs 2-7, inclusive, of this Count II.
8.
On July
28,
1999,
the
Illinois
EPA inspected
the site,
and
observed
coke
fines
and
black
tar-like
material
scattered
across
the
ground
in
various
areas
over
approximately
an acre in the west-central part of the site, west of the I&M Canal.
The
coke fines and black tar-like material were commingled with vegetation at the site.
RESPONSE:
CESC admits
that
IEPA visited
the site on
or about July
28,
1999.
CESC is without sufficient knowledge to either admit or deny the remaining allegations
of Paragraph
8.
9.
Coke was previously processed at the Site until
approximately
1981.
On
information and belief, this black tar-like material was off-specification coke.
RESPONSE: CESC
admits
that
an independent
contractor Great Lakes Carbon
processed
coke
at
the
site
until
approximately
1981.
CESC
is
without
sufficient
information
or
knowledge
to
either
admit
or
deny
if
the
remaining
allegations
of
Paragraph 9.
10.
On
September
28,
1999,
Texaco
shipped
the
coke
fines
and
tar-like
material
to
Allied
Waste
Services,
located
in
Morris,
Illinois,
listing
the
waste
as
petroleum coke contaminated soil on the manifests.
RESPONSE:
CESC
admits
that
on September
28,
1999
TRMI shipped
a volume
of coke fines
to
Allied
Waste Services
located
in Morris, Illinois
listing
the wastes
as
petroleum
coke contaminated
soil on
the manifests.
CESC further affirmatively states
that such shipment
was made to remove
the coke fines from the site
expeditiously to
address IEPA’s interest, despite the fact that CESC was already
involved in identifying
recycling options for the materials prior to issuance of the IEPA Violation Notice.
11.
Section
3.53
of the
Act,
415
ILCS
5/3.53(2000),
provides
the
following
definition:
-16-
“WASTE”
means
any
garbage,
sludge
from
a
waste
treatment
plant,
water
supply
treatment
plant,
or
air
pollution
control
facility
or
other
discarded
material,
including
solid,
liquid,
semi-solid,
or
contained
gaseous
material
resulting
from industrial,
commercial,
mining
and
agricultural operations, and from community activities,...
RESPONSE: CESC denies that Paragraph
11 fully restates Section 3.53 of the Act,
which speaks for itself.
12.
Section
3.82
of
the
Act,
415
ILCS
5/3.82(2000),
provides
the
following
definition:
“SOLID WASTE” means waste.
RESPONSE: Paragraph
12 merely restates Section 3.82 of the Act, which speaks
for itself.
13.
Section
3.41
of the
Act,
415
ILCS
5/3.41(2000),
contains
the
following
definition:
“SANITARY LANDFILL” means a facility permitted
by
the
Agency
for
the
disposal
of
waste
on
land
meeting
the
requirements
of
the
Resource
Conservation
and
Recovery
Act,
P.L.
94-580, and
regulations
thereunder,
and
without
creating nuisances
or hazards
to
public
health
or
safety, by
confining
the
refuse
to
the
smallest
practical
volume
and
covering
it with
a layer
of earth
at the conclusion
of each
day’s
operation,
or by
such
other methods and
intervals
as
the Board may provide by regulation.
RESPONSE:
Paragraph 13 merely restates Section 3.41
of the Act, which speaks
for itself.
14.
The area of site described in paragraph
8 above, has never been permitted
by the Illinois EPA for the disposal or storage of waste.
RESPONSE: CESC
is without sufficient
information to either admit or deny the
allegations in Paragraph
14.
CESC
states
affirmatively that many areas
of the former
refinery were interim status or permitted waste storage units.
15.
Section
3.08
of
the
Act,
415
ILCS
5/3.08(2000),
contains
the
following
definition:
-17-
“DISPOSAL”
means
the
discharge,
deposit,
injection,
dumping,
spilling,
leaking
or
placing
of
any
waste
or
hazardous waste
into
or on
any land or
water or into
any
well
so
that
such
waste
or
hazardous
waste
or
any
constituent thereof may enter the environment or be emitted
into the air or discharged into any waters, including ground
waters.
RESPONSE: Paragraph
15 merely restates Section 3.08
of the Act, which speaks
for itself.
16.
Section
3.54
of the
Act,
415
ILCS
5/3.54(2000),
contains
the
following
definition:
“WASTE DISPOSAL SITE”
is a site on
which solid waste is
disposed.
RESPONSE:
Paragraph
16 merely restates Section 3.54
of the Act, which speaks
for itself.
17.
The area of the site described in paragraph
8 above, is a waste disposal site
because coke fines and tar-like material, wastes as defined in paragraph
11
above, were
disposed or stored thereon.
RESPONSE: To the extent that Paragraph 17 states a legal conclusion, no answer
is required.
To the extent that Paragraph 17 states factual allegations,
CESC is without
sufficient knowledge to either admit or deny such allegations.
18.
Section
3.24
of the
Act,
415
ILCS
5/3.24(2000),
contains
the
following
definition:
“OPEN DUMPING”
means the consolidation of refuse from
one or more sources at a disposal site that does not fulfill the
requirements of a sanitary landfill.
RESPONSE:
Paragraph 18 merely restates Section 3.24
of the
Act, which
speaks
for itself.
19.
Section
3.31
of
the
act,
415
ILCS
5/3.31(2000),
contains
the
following
definition:
-
“REFUSE” means waste.
-18-
RESPONSE: Paragraph
19 merely restates Section 3.31
of the Act, which speaks
for itself.
20.
Section 21(a) of the Act, 415 ILCS 5/21(a)(2000), provides
as follows:
No person shall:
a.
Cause or allow the open dumping of any waste.
RESPONSE: Paragraph 20 merely restates Section 21(a) of the Act, which speaks
for itself.
21.
By allowing the coke fines and tar-like material to be disposed of or stored
on the ground in various areas over approximately
an acre in the west-central part
of
the site, Texaco caused or allowed the consolidation waste at the site.
RESPONSE:
To the extent
Paragraph
21
states legal
conclusions
for
which
no
answers are required.
CESC denies that it allowed the consolidation of waste at the site
as alleged in Paragraph
21.
To
the extent that Paragraph
21
states factual allegations,
CESC
is
without
sufficient
knowledge
to
either
admit
or
deny
the
such
factual
allegations.
22.
From sometime prior to July 28, 1999 and until September 28, 1999, Texaco
caused or allowed
open dumping
of the coke fines and
tar-like material
at the
site, a
disposal site that did not fulfill the requirements of a sanitary landfill.
RESPONSE: To the extent Paragraph 22
states legal conclusions, no answers are
required.
To
the
extent
Paragraph
22
states
factual
allegations,
CESC
denies
such
allegations.
23.
Respondent, by its actions as alleged herein, violated Section 21(a)
of the
Act, 415 ILCS S/21(a)(2000).
RESPONSE:
Paragraph
23
states
legal
conclusions
for
which
no
answers
are
required.
WHEREFORE,
Complainant,
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
respectfully requests that the Board enter an order:
-19-
1.
Authorizing a hearing on
this matter at which time
Respondent
will be
required to answer the allegations herein;
2.
Finding that Respondent violated Section 21(a) of the Act;
3.
Assessing
against
Respondent
a
civil
penalty
of
Fifty
Thousand
Dollars
($50,000.00)
for
each
violation
of
the
Act,
an
pertinent
regulations
promulgated
thereunder,
with an additional
penalty
of Ten Thousand
Dollars
($10,000.00) for
each
day during which the violation continues;
4.
Ordering
Respondent
to pay
all
costs
of this action pursuant
to
Section
42(f)
of
the
Act,
415
ILCS
5/42(f)(2000),
including
attorney,
expert
witness
and
consultant fees expended by the State in its pursuit of this actions; and
5.
Granting such other relief as the Board deems appropriate and just.
RESPONSE:
CESC denies that Complainants are entitled to the relief requested.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Complainant’s
prayer for
injunctive
relief
is
moot
since
the
Illinois
EPA
has
already
approved
Respondents’
ground water
monitoring
and
remediation
approach
through
issuance
of
a
Part
B
Post-Closure
Permit
for
the
entire
site.
In
addition
Respondent has already
removed almost all
coke materials and
soils
from the ground
surface to
bedrock
in the
“former coke handling
area”, and that
area
will be further
addressed
under
the provisions
of the Corrective
Action portion
of the RCRA
Part
B
Post-Closure Permit.
SECOND
AFFIRMATIVE DEFENSE
Complainant is not entitled to an award
of costs under the Illinois Environmental
Protection Act or otherwise.
THIRD AFFIRMATIVE
DEFENSE
Respondent
voluntarily
installed
ground
water
remedial
systems
at
the
site,
absent any regulatory requirement to do so and in advance of any notice from Illinois
EPA
and
has
continued
to
comply
with
all
Illinois
EPA requirements.
Under
such
circumstances, the imposition of a penalty would
not serve to further compliance
with
-20-
the
Environmental
Protection
Act,
and
therefore
would
be inappropriate
under
that
Act.
FOURTH AFFIRMATIVE DEFENSE
The coke fines at the site were a product
of an independent
contractor held for
sale
and
therefore
do
not
constitute
waste;
their
presence
did
not
constitute
open
dumping on the part of CESC.
FIFTH AFFIRMATIVE DEFENSE
Respondent was in the process of preparing to remove the coke fines, intending
to sell some of them for use as a fuel or in cement or asphalt production, or any other
industrial
use, prior
to Illinois
EPA issuance
of any notice.
A contract for
removal
of
these materials was in
place prior
to IEPA issuance of Violation
Notices.
Under such
circumstances
no
penalty
is
appropriate
under
the
Illinois
Environmental
Protection
Act.
SIXTH AFFIRMATIVE
DEFENSE
Complainant
is estopped
from asserting
violations as
to ground water
or coke
conditions
at the site having been aware of such conditions for years without asserting
that any violation existed.
SEVENTH AFFIRMATIVE DEFENSE
The detection of constituents in groundwater at a facility complying with interim
status and regulatory ground water requirements
does not constitute a violation of the
Illinois Environmental Protection Act.
EIGHTH AFFIRMATIVE DEFENSE
The 35
IAC
620 ground water
standards
are not applicable
to
a site complying
with
interim
status
ground
water
regulatory
requirements,
and
later
a
permitted
ground water management
zone,
and
therefore
are inapplicable
to the
ground
water
detections identified in the Complaint in this matter.
-21-
NINTH AFFIRMATIVE DEFENSE
Application
of the
35
IAC 620
ground
water
standards
in
this
matter
would
constitute retroactive regulation in violation of Respondent’s due process rights.
TENTH AFFIRMATIVE DEFENSE
Application of the Environmental Protection Act restriction on open dumping to
coke fines
located
at the
Site
would
constitute
retroactive
regulation
in
violation
of
CESC’s due process rights.
ELEVENTH AFFIRMATIVE DEFENSE
Neither the
TACO remediation
objectives, nor the
PQLs cited
by
Complainant
are enforceable standards
in the context
of this matter, and
therefore can not form the
basis
of an allegation of violation of the Environmental Protection Act.
Further 35 IAC
742
objectives are not
applicable, by their terms, to the Site as
a property
subject to
a
Federally delegated program.
TWELFTH
AFFIRMATIVE DEFENSE
415 ILCS
5/49(c) provides Respondent with a prima facie defense to any and
all
allegations of violation of the Act based upon ground water detections at the property.
THIRTEENTH AFFIRMATIVE DEFENSE
CESC
reserves
the
right
to
assert
additional
defenses
as
development
of
this
matter continues.
-22-
WHEREFORE, CESC respectfully requests that the Board dismiss Complainant’s
Complaint against it with prejudice and enter judgment
in CESC’s favor along with an
award
of costs and grant such further relief as the Board deems just, fair and equitable.
Respectfully Submitted,
Chevron Environmental Services Company
Barbara A. Magel
John Kalich
Karaganis, White
& Magel Ltd.
414 North Orleans Street
Suite 810
Chicago, Illinois 60610
312-836-1177
smtex49.doc
-23-
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE
STATE OF ILLINOIS,
)
)
Complainant,
)
)
vs.
PCB No. 02-03
TEXACO
REFINING & MARKETING,
)
(Enforcement)
INC., a Delaware Corporation,
)
)
Respondent.
)
CERTIFICATE OF SERVICE
The undersigned hereby states on oath that on this
$?P~
day of July, 2003
copies
of
the
ANSWER
ON
BEHALF
OF
CHEVRON
ENVIRONMENTAL
SYSTEMS
COMPANY were
served
via Hand
Delivery or by
First Class
Mail, postage
pre-paid,
upon the parties named on the attached Service List.
Chevron Environmental Services Company
BY:_____________
Their Attorney
Barbara A. Magel
Karaganis White
& Magel
414 North Orleans Street
Suite 810
Chicago, Illinois
60610
312/836-1177
Fax 312/836-9083
SERVICE LIST
VIA HAND DELIVERY
Dorothy M. Gunn
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Suite 11-500
Chicago, Illinois
60601
VIA HAND DELIVERY
Bradley P. Halloran.
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street, Suite 11-500
Chicago, Illinois
60601
VIA HAND DELIVERY
Christopher P. Perzan
Assistant Attorney General
Kelly O’Connor Goldberg
Assistant Attorney General
Office of
the Attorney General
Environmental Bureau
188
West Randolph Street,
20th
Floor
Chicago, Illinois
60601
VIA FIRST CLASS MAIL
John A. Urban,
Civil Chief
Will County State’s Attorney Office
Courthouse
14 W.
Jefferson
Room 200
Joliet, Illinois
60432
