BEFORE THE ILLINOIS POLLUTION CONTROL BOA9~RKS
QFr~t~
/WG21
2003
2222
ELSTON
LLC,
an
Illinois limited
)
liability company,
)
p
STATE
OF
ILLINOIS
Complainant,
)
O!IUtIOt~
Con trol Board
)
)
PCB No. 03-55
v.
)
)
)
PUREX INDUSTRIES, INC.,
a Delaware
)
corporation,
FEDERAL DIE CASTING CO.,
)
an Illinois corporation, FEDERAL
)
CHICAGO CORP.,
an Illinois corporation,
)
RAYMOND E. CROSS,
an Illinois resident,
)
BEVERLY BANK TRUST NO.
8-7611,
an
)
Illinois trustee, and
LAKESIDE BANK
)
TRUST NOS. 10-1087
&
10-1343, an Illinois
)
trustee,
)
)
Respondents.
)
)
ANSWER TO COMPLAINT
Respondents, Federal Die Casting Co., an Illinois corporation, Federal Chicago
Corp., an Illinois corporation, and Raymond B. Cross, an Illinois resident (hereinafter
collectively referred to as “Federal Respondents”), for their answer to the Complaint of2222
Elston LLC (“Elston”), an Illinois limited liability company, by and through its undersigned
attorneys, state as follows:
STATEMENT
OF THE
CASE
1.
Elston brings this action
for cost recovery pursuant to Section 31(d) ofthe
Illinois Environmental Protection Act
(the “Act”),
415
ILL.
COMP.
STAT. 5/31(d).
In January
2000, Elston acquired property commonly known as 2228 N. Elston Avenue (the “Site”), and
described as follows:
That part of
Lots
1
to
5 in Block 4 in Fullerton’s Addition to Chicago in
the west 1/2 ofthe northeast 1/4 ofSection 31, Township 40 North, Range
14, East ofthe Third
Principal
Meridian, described as follows:
Beginning at the most northerly corner ofLot 1;
thence south
45
degrees 00 minutes 00 seconds east along the northeasterly line of said lots,
99.32 feet; thence south 45 degrees 01
minutes
12 seconds west
52.25
feet; thence north
46 degrees,
17 minutes, 52
seconds west 76.48 feet; thence south
45
degrees, 02
minutes
56
seconds
west 7.50 feet; thence north 44 degrees
59 minutes
01
seconds west 22.85
feet to the
northwesterly line ofsaid Lot 1; thence north 45 degrees 00 minutes
59
seconds east along said
northwesterly line 61.48
feet to the point ofbeginning, in Cook County, Illinois.
ANSWER:
Federal Respondents admit that Complainant purports to bring this action for cost
recovery pursuant to
Section 31(d) ofthe Illinois Environmental Protection Act, 415
Iii. Comp.
Stat. 5/31(d).
Federal Respondents lack knowledge sufficient to form a belief as to the truth of
the remaining allegations in Paragraph
1, and therefore deny each and every allegation contained
therein.
2.
While seeking to
restore certain vacant buildings on and adjacent to the
Site into active commercial properties, Elston discovered
17 underground storage tanks
(“USTs”) at the Site.
These USTs contained, among other things, extremely high concentrations
ofpolychiorinated biphenyls (“PCBs”), volatile organic compounds (“VOCs”) and used or
waste tires.
ANSWER:
Federal Respondents lack knowledge sufficient to form a belief as to the truth of
the allegations contained in Paragraph 2,
and therefore deny each and every allegation contained
therein.
3.
Since this discovery, Elston has determined that the contents ofthese
USTs have leaked into the soil at the Site, and has conducted certain response actions necessary
to address threats to
human health and the environment that might result from the UST
contamination.
Elston has spent approximately $500,000, exclusive of
attorneys’
fees and
interest, in connection with response actions performed at the Site to date.’
In addition, Elston
will continue to incur costs while conducting such further response actions as maybe required to
fully remediate the Site.
Elston’s costs do
not
include approximately $350,000
in tax increment financing incentives
allocated and incurred by the City ofChicago at the Site.
-2-
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 3.
4.
Elston has determined that Purex, FDC, FCC, Cross, Beverly and
Lakeside owned, operated, possessed, controlled or had authority over the Site and relevant
operations conducted thereon from
1913 through January 2000.
During the period
1970 through
January 2000,
Respondents violated Sections 21(a), 21(b), 21(d), 21(e),
21(f), 12(a),
12(d) and
55(a)
ofthe Act.
ANSWER:
Paragraph 4 contains conclusions oflaw to which no response
is required.
To the
extent that Paragraph 4 contains allegations offact, Federal Respondents deny each and every
such allegation contained therein.
5.
Elston seeks recoveryofcleanup costs already incurred at the Site, and an
order that Respondents reimburse Elston for all remaining cleanup costs.
ANSWER:
Federal Respondents admit that Elston purports to seek recovery of cleanup costs
from Federal Respondents.
Federal Respondents deny each and every other allegation contained
in Paragraph
5.
PARTIES
6.
Elston is an Illinois limited liability companywith its principal place of
business located at
1156 W.
Armitage Avenue, Chicago, Illinois
60614.
Biston acquired the Site
in January 2000,
and shortly thereafter discovered and began to conduct cleanup activities to
address historical violations ofthe Act caused by Respondents at the Site.
-3-
ANSWER:
Federal Respondents deny that they have caused any historical violations ofthe
Act.
Federal Respondents lackknowledge sufficient to
form a belief as to the truth ofthe
remaining allegations contained within Paragraph 6, and therefore denies each and every
allegation contained therein.
7.
On information and belief, Purex is a Delaware corporation with its
principal place ofbusiness located at 535 E. Alondra Boulevard, Gardena, California 90248.
On
information and belief,
on or about June 30,
1964,
Purex acquired a firm known as T. F.
Washburn Company (“Washburn”) through a statutory merger.
As a result, Purex succeeded to
all ofthe liabilities ofWashburn relating to
the Site. On information and belief, Purex acquired
and began varnish operations on Lots 2,
3
and 4 at the Site in
1913, and on Lot
1
in
1935.
On
information and belief, Purex conducted varnish operations at the Site during the period 1913
through
1978.
ANSWER:
Federal Respondents lack knowledge sufficient to form a belief as to
the truth of
the allegations contained in Paragraph 7, and therefore denies each and every allegation
contained therein.
8.
FDC is an Illinois corporation with its
principal place ofbusiness located
at
925
Martin Luther King Jr. Drive, North Chicago, Illinois 60064.
FDC is a wholly-owned
subsidiary ofFCC.
On information and belief, FDC conducted die casting operations at the Site
from
1978 through January 2000.
ANSWER:
Federal Respondents admit that FDC is an Illinois Corporation with its principal
place ofbusiness located at
925
Martin Luther King Jr. Drive, North Chicago, Illinois 60064.
Federal Respondents admit that FDC is a wholly-owned subsidiary ofFCC.
Federal
Respondents deny each and every remaining allegation contained in Paragraph 8.
-4-
9.
FCC is an Illinois corporation with its principal place ofbusiness located
at
925
Martin Luther King Jr. Drive,
North Chicago, Illinois 60064.
FCC acquired the Site from
Purex in
1978, and
its wholly-owed sic.
subsidiary, FDC, conducted die casting operations at
the Site from 1978 through January 2000.
ANSWER:
Federal Respondents
admit that FCC is an Illinois corporation with its principal
place ofbusiness located at 925 Martin Luther King Jr.
Drive, North Chicago 60064.
Federal
Respondents admit that FDC is FCC’s wholly-owned subsidiary.
Federal Respondents deny
each and every remaining allegation contained in Paragraph 9.
10.
Cross is a natural person, and a citizen and resident ofthe State ofIllinois.
Cross resides at 910 N. Green Bay Road,
Lake Forest, Illinois 60045.
Cross owned the Site, or
was the beneficiary of certain trusts that owned the
Site, during times relevant to the allegations
stated herein.
In addition, during times relevant to the allegations stated herein, on information
and belief Cross served as either a director, officer or shareholder ofFDC or FCC, and
participated in decisions relating to FDC’s die casting operations, including but not limited to
decisions relating to the treatment, storage or disposal ofwastes generated from these operations.
ANSWER:
Federal Respondents admit that Raymond Cross
is a natural person, citizen, and a
resident ofthe State ofIllinois, who resides at 910 N. Green Bay Road,
Lake Forest, Illinois
60045.
Federal Respondents deny that Cross owned the Site, was the beneficiary ofcertain
trusts that owned the Site, or was an director, officer, or shareholder ofFDC or FCC during times
relevant to the allegations stated herein.
Federal Respondents deny the remaining allegations
contained in Paragraph
10.
11.
Charter is a commercial bank operating in
the State ofIllinois with its
principal place ofbusiness located at 1215 Superior Avenue, Cleveland, Ohio 44114.
Charter
acquired Beverly in October
1999 after a series ofmergers.
Beverly was acquired by First
-5-
National Bank ofWilmington
on September
5,
1996.
First National Bank ofWilmington was
acquired by Saint Paul Federal Bank for Savings on July 2,
1998.
Saint Paul Federal Bank for
Savings was acquired by Charter One Bank, F.S.B. on October 2,
1999.
Charter One Bank,
F.S.B. was renamed Charter One Bank, N.A. on May 7, 2002.
During the period
1983 through
1985, Beverly, n.k.a. Charter, served as trustee for Trust No. 8-7611
as owner ofthe Site.
ANSWER:
No response is necessary because the Board has found the Complaint to be
frivolous as to this entity.
12.
Lakeside is a banking association organized under the laws ofthe State of
Illinois.
During the period 1985 through 2000, Beverly served as trustee for Trust Nos.
10-1087
and
10-1343 as owners ofthe Site.
ANSWER:
No response is necessary because the Board has found the Complaint to be
frivolous as to this entity.
RELEVANT FACTS
PUREX’S OWNERSHIP
AND
OPERATION
13.
Purex’s corporate predecessor Washburn acquired Lots 2,
3 and 4 at the
Sitein
1913, andLot
1
in 1935.
ANSWER:
Federal Respondents
lackknowledge sufficient to
form a belief as to the truth of
the allegations contained in Paragraph 13, and therefore denies each and every allegation
contained therein.
14.
On information and
belief, during the period 1913 to June 30,
1961,
Washburn’s principal place of business was located at 2244 N. Elston Avenue, which at the time
consisted ofLots
I through 4
at the Site.
-6-
ANSWER:
Federal Respondents lack knowledge sufficient to form a belief as to the truth of
the allegations contained in Paragraph
14, and therefore denies each and
every allegation
contained therein.
15.
On information and belief, Washburn installed and operated
17 USTs at
the Site including, but not limited to,
the following: a 2,000 gallon naphtha UST (Oct.
5,
1948); a
5,000 gallon fuel oil UST (Feb.
15,
1949); a
10,000 gallon naphtha UST (June
16,
1953);
and
three 5,000 gallon solvent USTs (May
16,
1960).
ANSWER:
Federal Respondents lack knowledge sufficient to form a belief as to
the truth of
the allegations contained in Paragraph
15,
and therefore denies each and
every allegation
contained therein.
16.
On information and belief, on June 30,
1961 Purex acquired Washburn
through a statutory merger and
succeeded to all ofthe liabilities ofWashburn relating to the Site.
ANSWER:
Federal Respondents
lackknowledge sufficient to form a belief as to the truth of
the allegations contained in Paragraph 16,
and therefore denies each and every allegation
contained therein.
17.
On information and belief,
during the period 1913 to
1978, Purex
conducted varnish operations on Lots
1
through 4, including operations relating to 17 USTs
located
under Lots
1 through 4.
-7-
ANSWER:
Federal Respondents lack knowledge sufficient to
form a belief as to the truth of
the allegations contained in Paragraph
17, and therefore denies each and every allegation
contained therein.
18.
On information and belief, in connection with its varnish operations, Purex
stored, disposed ofor abandoned oils, solvents, varnish-related products and by-products, PCB-
containing materials, and petroleum related products and by-products in each ofthe
17 USTs at
the Site.
ANSWER:
Federal Respondents lackknowledge sufficient to
form a belief as to the truth of
the allegations contained in Paragraph
18, and therefore denies each and every allegation
contained therein.
19.
On information and belief, each ofthe 17 USTs owned, installed and
operated by Purex began to leak, or continued to leak, during the period 1970 through 1978.
ANSWER:
Federal Respondents lack knowledge sufficient to
form a belief as to the truth of
the allegations contained in Paragraph
19, and therefore denies each and everyallegation
contained therein.
20.
On information and belief, the oils, solvents, varnish-related products and
by-products, PCB-containing materials, and petroleum related products and by-products stored
or disposed ofby Purex leaked, or continued to leak, from each ofthe
17 USTs at the Site into
adjacent soil and groundwater during the period 1970 through 1978.
-8-
ANSWER:
Federal Respondents lack knowledge sufficient to form a belief as to the truth of
the allegations contained in Paragraph 20, and therefore denies each and every allegation
contained therein.
21.
On information and belief, during the period
1970 to
1978 Purex disposed
ofor abandoned waste tires, bricks and other discarded materials in USTs at the Site.
ANSWER:
Federal Respondents lack knowledge sufficient to form a belief as to the truth of
the allegations contained in Paragraph 21, and therefore denies each and every allegation
contained therein.
FDC
AND
FCC’S
OWNERSHIP AND OPERATION
22.
On information and belief,
as early as the 1940s through January 2000,
FDC orFCC conducted die casting operations adjacent to the Site on Lots 5 through 12.
ANSWER:
Federal Respondents deny each and every remaining allegation contained in
Paragraph 22.
23.
On information and belief, on or about December
14,
1978,
FCC acquired
the Site, and FCC or FDC extended its die casting operations onto Lots
1
through 4.
ANSWER:
Federal Respondents admit that on December 19,
1978, FCC acquired title to
Lots
I through 4.
Respodents deny each and
every remaining allegation contained in Paragraph 23.
-9-
24.
On information and belief, in connection with their die casting operations,
FDC or FCC stored, disposed of orabandoned oils, solvents, varnish-related products and by-
products, PCB-containing materials, and petroleum related products and by-products in each of
the
17 USTs at the Site.
ANSWER:
Federal Respondents deny each and
every allegation contained in Paragraph 24.
25.
On information and belief, each ofthe
17 USTs owned and operated by
FDC or FCC began to leak, or continued to leak, during the period 1978 through January 2000.
ANSWER:
Federal Respondents deny each and every allegation contained in Paragraph
25.
26.
On information and belief, the oils, solvents, varnish-related products and
by-products, PCB-containing materials, and petroleum related products and by-products stored
or disposed ofby FDC or FCC leaked, or continued to leak, from each ofthe
17 USTs at the Site
into adjacent soil and groundwater during the period 1978 through January 2000.
ANSWER:
Federal Respondents
deny each and every allegation contained in Paragraph 26.
27.
On information and belief,
during the period 1978 to January 2000, Purex
disposed ofor abandoned waste tires, bricks and other discarded materials in USTs at the Site.
ANSWER:
Federal Respondents
lack knowledge sufficient to
form a belief as to the truth of
the allegations contained in Paragraph 27, and therefore, deny each and every allegation
contained therein.
-10-
CROSS LAKESIDE AND BEVERLY’S OWNERSHIP AND OPERATION
28.
On information and belief, during the period
1978 through January 2000
Cross was a shareholder, officer or director ofboth FDC and FCC.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 28.
29.
During the period 1974 through 1983, Cross owned Lots
5
through
12
adjacent to
the Site in an individual capacity.
ANSWER:
Federal Respondents admit the allegations contained in Paragraph 29.
30.
On information and belief, on or about October
19,
1983, Cross
transferred Lots
5
through
12, and FCC transferred Lots
1 through 4, to a Trust #8-7611
established at Beverly Bank forthe benefit ofCross.
ANSWER:
Federal Respondents admit the allegations contained in Paragraph 30.
31.
On information and belief, on or about August 29,
1985, and October 20,
1985, Beverly Bank, as trustee forTrust #8-7611, transferred Lots
1
through 12
to Trust
#10-1087 established at Lakeside Bank for the benefit of Cross.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 31.
32.
On information and belief, Lakeside Bank,
as trustee, owned Lots
1
through
12 for the benefit of Cross in Trust #10-1087 and Trust #10-1343 until January
1, 2000.
ANSWER:
Federal Respondents admit the allegations contained in Paragraph 32.
—11—
33.
On information and belief, during the period
1978 through January 2000,
Cross, Beverly and Lakeside leased lots
1
through 4 to
FDC in order to conduct die
casting operations.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 33.
34.
On information and belief, during the period
1978 through January 2000,
Cross, Beverly and Lakeside owned, operated, possessed, controlled or had authority over the
Site, and the die casting and UST operations conducted there, including FDC or FCC’s storage,
disposal or abandonment ofoils, solvents, varnish-related products and by-products, PCB-
containing materials, petroleum related products and by-products, waste tires, bricks and other
discarded materials.
ANSWER:
Federal Respondents
deny the allegations contained in Paragraph 34.
ELSTON’S PRELIMINARY CLEANUP ACTIVITIES
35.
Elston acquired the Site from Lakeside on January
1, 2000.
In connection
with that acquisition, Cross and Lakeside had disclosed the presence of
only
six USTs, not the
17
USTs that were eventuallydiscovered by Elston. Admittedly, even with respect to the six
disclosed USTs, there were no disclosures to Elston concerning leakage or contamination from
those USTs.
ANSWER:
Federal Respondents admit that Elston acquired the Site from Lakeside in January
2000.
Federal Respondents admit that Cross and Lakeside disclosedthe presence ofknown
USTs, and that Elston had the duty ofinspection to
discover the existence ofadditional USTs,
and that Elston failed to perform its dutyof inspection prior to sale.
Federal Respondents deny
each and every remaining allegation contained in Paragraph 35.
-12-
36.
Elston did not conduct business, lease or use the Site in any material
manner until Elston began to implement certain cleanup activities, including soil investigation
and UST removal.
ANSWER:
Federal Respondents lack knowledge sufficient to form a belief as to the truth of
the allegations contained in Paragraph 36, and therefore denies each and every allegation
contained therein.
37.
During the period March through August 2000, Elston conducted soil
investigations on Lots
1
through 4, and discovered elevated PCB and VOC levels in soil adjacent
to the six
known USTs.
Elston began to remove the six known USTs and discovered oils,
solvents, varnish-relatedproducts and by-products, PCB-containing materials, petroleum related
products and by-products, waste tires, bricks and other discarded materials inside the USTs and
in adjacent soils and groundwater.
ANSWER:
Federal Respondents lackknowledge sufficient to form a belief as to the truth of
the allegations contained in Paragraph 37, and therefore denies each and every allegation
contained therein.
38.
In June through July 2001, Elston conducted further soil investigations on
Lots
1
through 4,
and discovered the presence of eleven additional USTs, bringing the total
to
17.
Elston identified elevated PCB and VOC levels in soil adjacent to these eleven additional
USTs, as well.
ANSWER:
Federal Respondents lack knowledge sufficient to form a belief as to the truth of
the allegations contained in Paragraph 38, and therefore denies each and every allegation
contained therein.
-13-
39.
Elston began to remove the remaining eleven USTs and to
investigate
adjacent soil and groundwater in or about September 2001.
ANSWER:
Federal Respondents lack knowledge sufficient to
form a belief as to the truth of
the allegations contained in Paragraph 39, and therefore denies each and every allegation
contained therein.
40.
Biston has spent approximately $500,000, exclusive ofattorneys’ fees and
interest, in connection with response actions performed at the Site, to date, and will continue to
incur costs while conducting such further response actions as may be required to
fully remediate
the Site.
ANSWER:
Federal Respondents lack knowledge sufficient to form a belief as to the truth of
the allegations contained in Paragraph40,
and therefore denies each and every allegation
contained therein.
COUNT I
(Violation ofIllinois Environmental Protection Act, 415
ILL. COMP. STAT.
5/21(a))
(Against All Respondents)
41.
Plaintiffs repeat the allegations ofparagraphs
1
through 40, inclusive, as if
set forth fully herein.
ANSWER:
Federal Respondents repeat theiranswers to each ofthe allegations contained in
paragraphs
1
through 40, inclusive, as if set
forth fully herein.
42.
Each ofthe Respondents owned, operated, possessed,
controlled or had
authority over the Site and relevant operations conducted there, including the USTs located at the
Site, at various times during the period 1970 through January 2000.
-14-
ANSWER:
Federal Respondents
deny the allegations contained in Paragraph 42.
43.
Upon information and belief, releases ofoils, solvents, varnish-related
products and by-products, PCB-containing materials, and petroleum related products and by-
products occurred from USTs at the Site while each ofthe Respondents was the owner and
operator ofthe Site and the USTs buried beneath the Site.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 43.
44.
Under Section 5/3.24 ofthe Act, 415
ILL.
COMP.
STAT.
5/3.24,
“open
dumping” is defined as: “consolidation ofrefuse from one or more sources at a disposal site that
does not fulfill the requirements ofa sanitary landfill.”
ANSWER:
Section 5/3.24 ofthe Act, 415
ILL.
COMP. STAT.
5/3.24,
speaks for itself, and to
the extent that anyofthe allegations contained in Paragraph 44 vary therewith, Federal
Respondents deny suchallegations.
45.
Under Section 5/3.31
ofthe Act, 415 ILL.
COMP. STAT.
5/3.31,
“refuse”
is defined as “waste.”
ANSWER:
Section 5/3.31
ofthe Act, 415 ILL. COMP. STAT. 5/3.31, speaks for itself, and to
the extent that any ofthe allegations contained in Paragraph 45 vary therewith,
Federal
Respondents deny such allegations.
-15-
46.
Under Section 5/3.53 ofthe Act, 415
ILL. COMP. STAT.
5/3.53,
“waste”
is defined as:
any garbage,.
.
.
or other discarded material, including solid, liquid, semi-solid, or
contained gaseous material resulting from.
.
.
commercial.
.
.
operations.”
ANSWER:
Section
5/3.53
of the Act, 415 ILL.
COMP. STAT.
5/3.53,
speaks
for itself, and to
the extent that any ofthe allegations contained in Paragraph 46
vary therewith, Federal
Respondents deny such allegations.
47.
Under Section 5/3.08 ofthe Act, 415 ILL.
COMP.
STAT.
5/3.08,
“disposal” is defined as: “the discharge, deposit, dumping, spilling, leaking or placing ofany
waste orhazardous waste into or on any land or wateror into any well
so that such waste or
hazardous waste or constituent thereofmay enterthe environment or be emitted into the air or
discharged into any waters, including ground waters.”
ANSWER:
Section 5/3.08 ofthe Act, 415
iLL. COMP.
STAT. 5/3.08, speaks for itself, and to
the extent that any ofthe allegations contained in Paragraph47 vary therewith, Federal
Respondents deny such allegations.
48.
By allowing oils, solvents, varnish-related products and by-products,
PCB-containing materials, and petroleum related products and by-products to leak from the
USTs at the Site during their ownership and management ofthe Site, each ofthe Respondents
violated Section 5/21(a) ofthe Act, 415 ILL. COMP. STAT.
5/21(a), which provides that: No
person shall...
clause
or allow the open dumping ofany waste.”
ANSWER:
Section
5/21(a)
ofthe Act, 415 iLL. COMP. STAT.
5/21(a),
speaks for itself and
to
the extent that the allegations in Paragraph 48 vary therewith, Federal Respondents deny such
allegations.
Federal Respondents deny the remaining allegations contained in Paragraph 48.
49.
As a foreseeable consequence ofRespondents’ violation of
Section
5/21(a),
the Site was contaminated with oils, solvents, varnish-related products
and by-products, PCB-containing materials, and petroleum related products and by-products.
-16-
ANSWER:
Federal Respondents
deny the allegations contained in Paragraph 49.
50.
In response to the contamination, Elston has expended and will continue to
expend considerable amounts ofmoney to remediate the Site to
meet applicable state and federal
environmental and public health standards.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph
50.
COUNT II
(Violation ofIllinois Environmental Protection Act, 415 ILL. COMP.
STAT.
5/21(b))
(Against All Respondents)
51.
Plaintiffs repeat the allegations ofparagraphs
1
through
50,
inclusive, as if
set forth fully herein.
ANSWER:
Federal Respondents repeat their answers to
the allegations contained in
paragraphs
1
through
50,
inclusive,
as if set forth fully herein.
52.
Each ofthe Respondents owned, operated, possessed, controlled orhad
authority over the Site and relevant operations conducted thereon, including the USTs located at
the Site, at various times during the period 1970 through January 2000.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph
52.
53.
Upon information and belief, releases ofoils, solvents, varnish-related
products and by-products, PCB-containing materials, and petroleum related products and by-
products occurred from USTs at the Site, onto
or under public highways and otherpublic
property adjacent to
the Site while each ofthe Respondents was the owner and operator ofthe
Site and the USTs at the Site.
-17-
ANSWER:
Federal Respondents deny the allegations contained in Paragraph
53.
54.
Under Section 5/3.24 ofthe Act, 415 ILL. COMP.
STAT.
5/3.24, “open
dumping” is defined as:
“consolidation ofrefuse from one or more sources at a disposal site that
does not fulfill the requirements ofa sanitary landfill.”
ANSWER:
Section 5/3.24 ofthe Act, 415 ILL.
COMP. STAT.
5/3.24,
speaks for itself, and to
the extent that the allegations contained in Paragraph 54 vary therewith, Federal Respondents
deny such allegations.
55.
Under Section
5/3.3
1 ofthe Act, 415 ILL.
COMP. STAT.
5/3.31,
“refuse”
is defined as “waste.”
ANSWER:
Section
5/3.3
1 ofthe Act, 415 ILL. COMP. STAT.
5/3.3
1,
speaks for itself, and to
the extent that the allegations contained in Paragraph
55
vary therewith, Federal Respondents
deny such allegations.
56.
Under Section
5/3.53
ofthe Act, 415 ILL. COMP.
STAT.
5/3.53,
“waste”
is defined as: “any garbage,
.
.
.
or other discarded material, including solid, liquid, semi-solid, or
contained gaseous material resulting from.
.
.
commercial.
.
.
operations.”
ANSWER:
Section 5/3.53 of the Act, 415 ILL.
COMP. STAT.
5/3.53,
speaks for itself,
and to
the extent that the allegations contained in Paragraph 56 vary therewith, Federal Respondents
deny such allegations.
-18-
57.
Under Section
5/3.08 ofthe Act, 415 ILL.
COMP. STAT.
5/3.08,
“disposal” is defined as: “the discharge, deposit, dumping, spilling, leaking or placing ofany
waste or hazardous waste into or on any land orwater or into any well so that such waste or
hazardous waste or constituent thereofmay enter the environment or be emitted into the air or
discharged into any waters,
including ground waters.”
ANSWER:
Section 5/3.08 ofthe Act, 415 ILL.
COMP. STAT.
5/3.08, speaks for itself, and to
the extent that the allegations contained in Paragraph 57 vary therewith, Federal Respondents
deny such allegations.
58.
By allowing oils, solvents, varnish-related products and by-products,
PCB-containing materials, and petroleum related products and by-products to leak from the
USTs at the Site, onto orunder adjacent public highways and otherpublic property, during their
ownership and management ofthe Site, each of the Respondents violated Section 5/21(b) ofthe
Act. 415 ILL. COMP.
STAT. 5/21(b), which provides that:
No person shall.
.
.
abandon,
dump, or deposit any waste upon the public highways or other public property, except in a
sanitary landfill approved by the Agency pursuant to the regulations adopted by the Board.”
ANSWER:
Section 5/21(b) ofthe Act, 415 ILL. COMP. STAT. 5/3.24, speaks for itself, and
to the extent that the allegations contained in Paragraph 58 vary therewith, Federal Respondents
deny such allegations.
Federal Respondents deny each and everyremaining allegation in
Paragraph 58.
59.
As a foreseeable consequence ofRespondents’ violation ofSection
5/21(b), public highways and other public property adjacent to the Site was contaminated with
oils, solvents, varnish-related products and by-products, PCB-containing materials, and
petroleum related products and by-products.
ANSWER:
Federal Respondents deny the allegations in Paragraph 59.
-19-
60.
In response to the contamination, Elston has expended and will continue
to expend considerable amounts ofmoney to remediate the Site and adjacent public highways
and other public property to meet applicable state and federal environmental and public
health standards.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 60.
COUNT
III
(Violation ofIllinois Environmental Protection Act, 415 ILL. COMP.
STAT. 5/21(d))
(Against All Respondents)
61.
Plaintiffs repeat the allegations ofparagraphs
1
through 60, inclusive, as if
set forth fully herein.
ANSWER:
Federal Respondents repeat theiranswers to the allegations contained in
paragraph
1
through 60,
inclusive, as if set forth fully herein.
62.
Each ofthe Respondents owned, operated, possessed, controlled or had
authority over the Site and relevant operations conducted thereon, including the USTs located at
the Site, at various times during the period
1970 through January 2000.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 62.
63.
Upon information and belief, each ofthe Respondents disposed of waste
tires and other discarded materials in USTs or other facilities at the Site without a permit or in
violation of standards or regulations adopted by the Illinois Pollution Control Board, or allowed
such disposal to continue unabated, during periods oftime when each ofthe Respondents owned,
operated, possessed, controlled or had
authority over the Site.
-20-
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 63
64.
Under Section 5/3.53 ofthe Act, 415 ILL. COMP. STAT.
5/3.53, “waste”
is defined as: “any garbage,.
.
.
or other discarded material, including solid, liquid, semi-solid, or
contained gaseous material resulting from.
.
.
commercial..
.
operations.”
ANSWER:
Section 5/3.53 ofthe Act, 415
ILL.
COMP. STAT. 5/3.53, speaks for itself, and to
the extent that the allegations contained in Paragraph 64 vary therewith, Federal Respondents
deny such allegations.
65.
Under Section 5/3.08 ofthe Act, 415 ILL. COMP.
STAT. 5/3.08,
“disposal” is defined as: “the discharge, deposit, 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 constituent thereofmay enter the environment orbe emitted into the air or
discharged into any waters, including ground waters.”
ANSWER:
Section 5/3.08 ofthe Act, 415 ILL. COMP. STAT. 5/3.08, speaks for itself, and to
the extent that the allegations contained in Paragraph
65
vary therewith, Federal Respondents
deny such allegations.
66.
By disposing ofwaste tires and other discarded materials in USTs and
other facilities at the Site, during their ownership and management ofthe Site, eachofthe
Respondents violated Section
2 1(d) ofthe Act, which provides that
No person shall:
d.
Conduct any waste-storage, waste-treatment, orwaste disposal
operation:
-21-
(I)
without a permit granted by the Agency or in violation of
any conditions imposed by such permit....;
(2)
in violation ofany regulations or standards adopted by the
board under this Act;.
415 ILL. COMP. STAT.
5/21(d).
ANSWER:
Section 5/21(d) ofthe Act, 415
ILL. COMP. STAT. 5/21(d),
speaks for itself, and
to
the extent that the allegations contained in Paragraph 66 vary therewith, Federal Respondents
deny such allegations.
Federal Respondents deny the remaining allegations contained in
Paragraph 66.
67.
As a foreseeable consequence ofRespondents’ violation of
Section 5/21(d), USTs and other facilities at the Site were contaminated with waste tires
and other discardedmaterials.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 67.
68.
In response to the contamination, Elston has expended and will continue to
expend considerable amounts ofmoney to remediate the Site to meet applicable state and federal
environmental and public health standards.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 68
COUNT IV
(Violation ofIllinois Environmental Protection Act,
415 ILL.
COMP. STAT. 5/21(e))
(Against All Respondents)
69.
Plaintiffs repeat the allegations ofparagraphs
1
through 68, inclusive, as if
set forth
fully herein.
-22-
ANSWER:
Federal Respondents repeat their answers to
the allegations contained in
paragraphs
1
through 68, inclusive, as if set forth fully herein.
70.
Each ofthe Respondents owned, operated, possessed, controlled or had
authority over the Site and relevant operations conducted thereon, including the USTs located at
the Site, at various times during the period
1970 through January 2000.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 70.
71.
Upon information and belief, releases ofoils, solvents, varnish-related
products and by-products, PCB-containing materials, and petroleum related products
and by-
products occurred from USTs at the Site while each ofthe Respondents was the owner and
operator ofthe Site and the USTs at the Site.
ANSWER:
Federal Respondents deny the allegations in Paragraph 71.
72.
Section 21(e) ofthe Illinois Environmental Protection Act provides that:
No person shall:
e.
Dispose, treat, store or abandon any waste, or transport any waste
into this State for disposal, treatment, storage or abandonment, except at a
site or facility which meets the requirements ofthis Act and ofregulations
and standards thereunder.
415 ILL.
COMP. STAT.
5/21(e).
-23-
ANSWER:
Section 5/21(e) ofthe Act, 415 ILL. COMP. STAT.
5/21(e), speaks for itself, and
to the extent that the allegations contained in Paragraph 72 vary therewith, Federal Respondents
deny such allegations.
73.
Under Section 5/3.08 ofthe Act, 415 ILL. COMP. STAT. 5/3.08,
“disposal” is defined as: “the discharge, deposit, dumping, spilling, leaking or placing ofany
waste or hazardous waste into or on any land or water or into any well so that such waste or
hazardous waste or constituent thereofmay enter the environment or be emitted into the air or
discharged into any waters, including ground waters.”
ANSWER:
Section 5/3.08 ofthe Act, 415 ILL. COMP. STAT.
5/3.08, speaks for itself, and to
the extent that the allegations contained in Paragraph 73 vary therewith, Federal Respondents
deny such allegations.
74.
Under Section 5/3.53 ofthe Act, 415 ILL. COMP.
STAT. 5/3.53, “waste”
is defined as: “any garbage,.
.
.
or other discarded material, including solid, liquid, semi-solid, or
contained gaseous material resulting from..
.
commercial.
.
.
operations.”
ANSWER:
Section 5/3.53 ofthe Act, 415 ILL.
COMP. STAT. 5/3.53, speaks for itself,
and to
the extent that the allegations contained in Paragraph 74 vary therewith, Federal Respondents
deny such allegations.
75.
By allowing oils, solvents,
varnish-related products and by-products,
PCB-containing materials, and petroleum related products
and by-products to leak from the
USTs at the Site, during their ownership and management ofthe Site, each ofthe Respondents
violated Section 5/21(e) ofthe Act, 415
ILL. COMP.
STAT. 5/21(e).
-24-
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 75.
76.
As a foreseeable consequence ofRespondents’ violation of
Section 5/21(e), the Site was contaminated with oils, solvents, varnish-related products and
by-products.
PCB-containing materials, and petroleum related products and by-products.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 76.
77.
In response to
the contamination, Elston has expended and will continue to
expend considerable amounts ofmoney to remediate the Site to meet applicable state and federal
environmental and public health standards.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 77.
COUNT V
(Violation ofIllinois Environmental Protection Act, 415 ILL. COMP. STAT. 5/21(f))
(Against All Respondents)
78.
Plaintiffs repeat the allegations ofparagraphs
1
through 77, inclusive, as if
set forth
fullyherein.
ANSWER:
Federal Respondents repeat theiranswers to
the allegations contained in
paragraphs
1 through 77, inclusive, as if set forth fully herein.
79.
Each ofthe Respondents owned, operated, possessed, controlled orhad
authority over the Site and relevant operations conducted thereon, including the USTs located at
the Site, at various times during the period 1970 through January 2000.
-25-
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 79.
80.
Upon information and belief, each ofthe Respondents disposed of
hazardous waste, including oils, solvents, varnish-relatedproducts and by-products, PCB-
containing materials, and petroleum related products and by-products,
in USTs or other facilities
at the Site without a permit or in violation ofstandards or regulations
adopted by the Illinois
Pollution Control Board, or allowed such disposal to continue unabated,
during periods oftime
when each ofthe Respondents owned, operated, possessed, controlled or had authority over
the Site.
ANSWER:
Federal Respondents
deny the allegations contained in Paragraph 80.
81.
Under Section 5/3.53 ofthe Act, 415
ILL.
COMP. STAT. 5/3.53, “waste”
is defined as: “any garbage,..
.
or other discarded material, including solid,
liquid, semi-solid, or
contained gaseous material resulting from.
.
.
commercial.
.
.
operations.”
ANSWER:
Section 5/3.53 ofthe Act, 415 ILL. COMP.
STAT.
5/3.53, speaks for itself, and to
the extent that the allegations contained in Paragraph 81 vary therewith, Federal Respondents
deny such allegations.
82.
Under Section 5/3.15 ofthe Act, 415 ILL.
COMP. STAT. 5/3.15,
“hazardous waste” is defined as: “a waste, or combination ofwastes, which because ofits
quantity,
concentration, or physical, chemical, or infectious characteristics may.
.
.
pose a
substantial present or potential hazard to human health orthe environment when improperly
treated, stored, transported, or disposed
of,
orotherwise managed, and which has been identified,
by characteristic or listing, as hazardous pursuant to Section 3001 ofthe Resource Conservation
and Recovery Act..
.
-26-
ANSWER:
Section 5/3.15 ofthe Act, 415
ILL. COMP. STAT.
5/3.15,
speaks for itself, and to
the extent that the allegations contained in Paragraph 82 vary therewith, Federal Respondents
deny such allegations.
83.
Under Section 5/3.08 ofthe Act, 415 ILL. COMP.
STAT.
5/3.08,
“disposal” is defined as: “the discharge, deposit, dumping, spilling, leaking or placing ofany
waste or hazardous waste into or on any land or water or into any well so that such waste or
hazardous waste or constituent thereofmay enter the environment orbe emitted into the air or
discharged into any waters, including
ground waters.”
ANSWER:
Section
5/3.08 ofthe Act, 415
ILL. COMP. STAT.
5/3.08, speaks for itself, and to
the extent that the allegations contained in Paragraph 83 vary therewith, Federal Respondents
deny such allegations.
84.
By disposing ofhazardous waste, including oils, solvents, varnish-related
products and by-products, PCB-containing materials, and petroleum related products and by-
products, in USTs and other facilities at the Site during theirownership and management ofthe
Site, each ofthe Respondents violated Section 21(f) ofthe Act, which provides that:
No person shall:
f.
Conduct any hazardous waste-storage, hazardous waste-treatment
or hazardous waste-disposal operation:
(1)
without a RCRA permit for the site issued by the Agency
under subsection (d) ofSection 39 ofthis Act, or in violation ofany
condition imposed by such permit..
.
.;
or
(2)
in violationofany regulations or standards adopted by the
Board under this Act; or
-27-
(3)
in violation ofany RCRA permit
filing requirement
established under standards
adopted by the Board under this Act; or
(4)
in violation ofany order adopted by the Board under
this
Act.
415 ILL. COMP. STAT.
5/21(f).
ANSWER:
Section 5/21(f) ofthe Act, 415
ILL. COMP.
STAT. 5/21(f), speaks for itself, and
to the extent that the allegations contained in Paragraph 85 vary therewith, Federal Respondents
deny such allegations.
Federal Respondents deny each and every remaining allegation
contained in Paragraph 84.
85.
As a foreseeable consequence ofRespondents’ violation of
Section 5/21(f), USTs
and other facilities at the Site were contaminated with hazardous
waste, including oils,
solvents, varnish-related products and by-products, PCB-containing
materials, and petroleum related products and by-products.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 85.
86.
In response to the contamination, Elston has expended and will continue to
expend considerable amounts ofmoneyto remediate the Site to meet applicable state and federal
environmental and public health standards.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 86
-28-
COUNT VI
(Violation ofIllinois Environmental Protection Act,
415 ILL. COMP.
STAT.
5/12(a))
(Against All Respondents)
87.
Plaintiffs repeat the allegations ofparagraphs
1 through 86, inclusive,
as if
set forth fully herein.
ANSWER:
Federal Respondents repeat their answers to
the allegations contained in
Paragraphs
1
through 86, inclusive,
as if set forth fully herein.
88.
Each ofthe Respondents owned, operated, possessed, controlled or had
authority over the Site and relevant operations conducted thereon, including the USTs located at
the Site, at various times during the period
1970 through January 2000.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 88.
89.
Upon information and belief,
releases of oils, solvents, varnish-related
products and by-products, PCB-containing materials, and petroleum related products and by-
products occurred from USTs at the Site while each ofthe Respondents was the owner and
operator of the Site and the USTs at the Site.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 89.
90.
Section
12(a) ofthe Illinois Environmental Protection Act provides that:
No person shall:
a.
Cause or threaten or allow the discharge ofany 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.
415 ILL.
COMP. STAT. 5/12(a).
-29-
ANSWER:
Section 5/12(a) ofthe Act, 415
ILL. COMP.
STAT. 5/12(a), speaks for
itself, and to the extent that the allegations contained in Paragraph 54 vary therewith, Federal
Respondents
deny such allegations.
91.
Section 5/3.06 ofthe Act, 415 ILL.
COMP. STAT. 5/3.06, defines
“contaminant” as “any solid, liquid, or gaseous matter, any odor, or any form ofenergy, from
whatever source.”
ANSWER:
Section 5/3.06 ofthe Act, 415 ILL. COMP. STAT.
5/3.06, speaks for itself, and to
the extent that the allegations contained in Paragraph 91
vary therewith, Federal Respondents
deny such allegations.
92.
By allowing releases ofoils, solvents, varnish-related products andby-
products,
PCB-containing materials, and petroleum related products and by-products from USTs
at the Site to
leak into and remain in the land and groundwater at the Site during their ownership
and management ofthe Site, each oftheRespondents violated Section 5/12(a) ofthe Act.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 92.
93.
As a foreseeable consequence of Respondents’ violation of
Section 5/12(a), the Site was contaminated with oils, solvents, varnish-related products and
by-products, PCB-containing materials, and petroleum related products and by-products.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 93.
-30-
94.
In response to the contamination, Elston has expended and will continue to
expend considerable amounts ofmoney to
remediate the Site to meet applicable
state and federal
environmental and public health standards.
ANSWER:
Federal Respondents
deny the allegations contained in Paragraph
94
COUNT VII
(Violation ofIllinois Environmental Protection Act, 415 ILL.
COMP. STAT. 5/12(d))
(Against All Respondents)
95.
Plaintiffs repeat the allegations ofparagraphs
1
through 94, inclusive, as if
set forth fully herein.
ANSWER:
Federal Respondents repeat their answers to
the allegations contained in
Paragraphs
1 through 94,
inclusive, as if set forth fully herein.
96.
Each ofthe Respondents owned, operated, possessed, controlled orhad
authority over the Site and relevant operations conducted thereon, including the USTs located at
the Site, at various times during the period
1970 through January 2000.
ANSWER:
Federal Respondents deny the allegations contained in paragraph 96.
97.
Upon information and belief, releases ofoils, solvents, varnish-related
products and by-products, PCB-containing materials, and petroleum related products andby-
products occurred from USTs at the Site while each ofthe Respondents was the owner and
operator ofthe Site and the USTs at the Site.
ANSWER:
Federal Respondents deny the allegations contained in paragraph 97.
-31-
98.
Section 12(d) ofthe Illinois
Environmental Protection Act provides that:
No person shall:
d.
Deposit any contaminants upon the land in such place and manner
so as to create a water pollution hazard.
415
ILL. COMP.
STAT.
5/12(d).
ANSWER:
Section 5/12(d) ofthe Act, 415 ILL. COMP.
STAT. 5/12(d), speaks for itself, and
to the extent that the allegations contained in Paragraph 98 vary therewith, Federal Respondents
deny such allegations.
99.
Section 5/3.06 ofthe Act, 415 ILL.
COMP. STAT. 5/3.06, defines
“contaminant” as “any solid,
liquid, orgaseous matter, any odor, orany form ofenergy, from
whatever source.”
ANSWER:
Section 5/3.06 ofthe Act, 415 ILL.
COMP. STAT. 5/3.06, speaks for itself, and to
the extent that the allegations contained in Paragraph 99 vary therewith, Federal Respondents
deny such allegations.
100.
By allowing releases ofoils,
solvents, varnish-related products and by-
products, PCB-containing materials, and petroleum relatedproducts
and by-products from USTs
at the Site to leak into and remain in the land and groundwater at the Site during their ownership
and management ofthe Site, each ofthe Respondents created a water pollution hazard thereby
violating Section 5/12(d) ofthe Act,
ANSWER:
Federal Respondents deny the allegations contained in Paragraph
100.
-32-
101.
As a foreseeable consequence ofRespondents’ violation of
Section 5/12(d), the Site was contaminated with oils, solvents, varnish-related products and
by-products, PCB-containing materials, and petroleum related products and by-products.
ANSWER:
Federal Respondents
deny the allegations contained in Paragraph
101.
102.
In response to the contamination, Elstonhas expended and will continue to
expend considerable amounts ofmoney to remediate the Site to meet applicable state and federal
environmental and public health standards.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph
102.
COUNT VIII
(Violation ofIllinois Environmental Protection Act, 415 ILL. COMP.
STAT. 5/55(a))
(Against All Respondents)
103.
Plaintiffs repeat the allegations ofparagraphs
1
through
102, inclusive, as
if set forth fully herein.
ANSWER:
Federal Respondents repeat their answers to
the allegations contained in
paragraphs
1 through
102, inclusive, as if set forth fully herein.
104.
Each ofthe Respondents owned, operated, possessed, controlled or had
authority over the Site and relevant operations conducted thereon, including the USTs located at
the Site, at various times during the period 1970 through January 2000.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph
104.
-33-
105.
Upon information and belief, each ofthe Respondents disposed ofused or
waste tires in USTs or other facilities at the Site in violation ofstandards or regulations adopted
by the Illinois Pollution Control Board, or allowed such disposal to continue unabated, during
periods oftime when each ofthe Respondents owned, operated, possessed,
controlled or had
authority over the Site.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph
105.
106.
Under Section 5/54.13 ofthe Act,
415 ILL. COMP. STAT. 5/54.13, “used
tire” is defined as: “a worn, damaged, or defective tire that is not mounted on a vehicle.”
ANSWER:
Section
5/54.13 ofthe Act, 415 ILL. COMP. STAT.
5/54.13, speaks for itself, and
to the extent that the allegations contained in Paragraph
106 vary therewith, Federal Respondents
deny such allegations.
107.
Under Section 5/54.16 ofthe Act, 415 ILL.
COMP. STAT.
5/54.16,
“waste tire” is defined as:
“a used tire that has been disposed of.”
ANSWER:
Section 5/54.16 ofthe Act, 415
ILL. COMP.
STAT. 5/54.16, speaks foritself,
and
to the extent that the allegations contained in Paragraph 107 vary therewith, Federal Respondents
deny such allegations.
108.
Under Section 5/3.24 ofthe Act, 415 ILL. COMP.
STAT. 5/3.24,
“open
dumping”
is defined as: “consolidation ofrefuse from one or more sources at a disposal site that
does not fulfill the requirements ofa sanitary landfill.”
-34-
ANSWER:
Section 5/3.24 ofthe Act, 415
ILL. COMP. STAT.
5/3.24,
speaks for itself, and to
the extent that the allegations contained in Paragraph 108 vary therewith, Federal Respondents
deny such allegations.
109.
Under Section 5/54.04 of the Act, 415
ILL. COMP.
STAT. 5/54.04,
“disposal” is
defined as: “the placement ofused tires into or on any land or water except as an
integral part ofthe systematic reuse or conversion in the regular course ofbusiness.”
ANSWER:
Section 5/54.04 ofthe Act, 415 ILL. COMP. STAT. 5/54.04, speaks for itself, and
to
the extent that the allegations contained in Paragraph
109 vary therewith, Federal Respondents
deny such allegations.
110.
By disposing ofused orwaste tires in USTs and other facilities at the
Site, during their ownership and management ofthe Site, each ofthe Respondents violated
Section
55(a)
ofthe Act, which provides that:
No person shall:
(1)
Cause or allow the open dumping of any used or waste tire.
(5)
Abandon, dump or dispose ofany used orwaste tire on private or
public property, except in a sanitary landfill approved by the Agency
pursuant to regulations adopted by the Board.
415 ILL. COMP.
STAT.
5/55(a).
ANSWER:
Section 5/55(a) ofthe Act, 415
ILL. COMP. STAT. 5/55(a), speaks for itself, and
to the extent that the allegations contained in Paragraph 110 vary therewith, Federal Respondents
-35-
deny such allegations.
Federal Respondents deny all remaining allegations contained in
Paragraph 110.
111.
As a foreseeable consequence ofRespondents’ violation of
Section
5/55(a),
USTs and other facilities at the Site were contaminated with used or waste tires.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph
111.
112.
In response to the contamination, Elston has expended and will continue
to
expend considerable amounts ofmoney to
remediate the Site and adjacent public highways
and other public property to meet applicable state and federal environmental and public
health standards.
ANSWER:
Federal Respondents deny the allegations contained in Paragraph 112.
PRAYER FOR RELIEF
WHEREFORE, Complainant Elstonprays for entry ofjudgment against each of
the Respondents as follows:
A.
Forjudgment declaring that eachRespondent violated Sections 2 1(a),
21(b), 21(d), 21(e), 21(f), 12(a),
12(d) and 55(a) ofthe Illinois
Environmental Protection Act.
B.
Forjudgment ordering that each Respondent reimburse Elston forcleanup
costs it has incurred at the Site as a result ofthese violations.
C.
Forjudgment ordering that each Respondent reimburse Elston for cleanup
costs it will incur conducting further cleanup activities required at the Site
as a result ofthese violations.
D.
For Complainant’s attorneys’ fees, expert witness fees costs and interest
incurred as allowed by law; and
E.
For such other and further relief as the Board deemsjust and proper.
Dated:
August 22, 2003
ANSWER:
-36-
Federal Respondents expressly deny that Complainant
is entitled to any relief,
including but not limited to
the relief sought in the Complaint.
Federal Respondents ask that the
Complaint be dismissed with prejudice, that judgment be entered for Federal Respondents and
that Federal Respondents be awarded their costs and attorneys’ fees in defending against the
Complaint.
Federal Respondents further request whatever otherrelief the Board maydeem
appropriate. Federal Respondents deny any and all allegations in the request for relief in the
Complaint.
GENERAL AFFIRMATIVE
DEFENSES
As and for their General Affirmative Defenses, Federal Respondents state as
follows:
FIRST
GENERAL AFFIRMATIVE DEFENSE:
The Complaint is barred, in whole or in part, by the doctrine ofwaiver and/or
equitable estoppel.
In January 2000, Elstonmade an informed business decision to
purchase a
Brownfield property that it knew to a certaintyrequired investigation and/or remediation.
Elston
explicitly agreed that, if it chose to
consummate thetransaction, the Seller’s environmental
liability would be limited
to $50,000 (which money Federal Respondents have already paid).
After acquiring the property, Elston reneged on the deal it had cut, ignored the factthat part of
the consideration paid to the Seller was Elston’s agreement to limit the Federal Respondents’
liability to $50,000 and brought the instant action.
Furthermore, Elston’s failure to conduct the
investigation required by the purchase agreement is the proximate and but
for cause ofthis
Complaint.
-37-
SECOND GENERAL AFFIRMATIVE DEFENSE
The Complaint fails to state a claim against any ofthe Federal Respondents, as
none of the Federal Respondents ever conducted any operations, committed any affirmative act,
or allowed any act ofdisposal to occur with regard to
the Underground Storage Tanks at the Site.
Thus, none ofthe damages can be said to have been proximately caused by any act or omission
ofFCC.
THIRD GENERAL AFFIRMATIVE DEFENSE
The Complaint fails to
state a claim against Raymond E. Cross, as Mr. Cross
never owned the property at issue, although he formerly owned the adjacent property over 19
years ago in his individual capacity.
Mr.
Cross’
alleged status as a shareholder, officer, or
director ofFDC is
insufficient to
establish liability under the act, and there are no facts alleged
which would justify piercing the corporate veil.
FOURTH
GENERAL AFFIRMATIVE DEFENSE
The Complaint is barred under the doctrine of laches.
Complainant was aware of
the soil and/or ground water conditions since before it purchased the Site in January 2000.
Nonetheless, Complainant waited almost three years to bring this complaint, during which time
Complainant dramatically increased any costs which may have been necessary to address threats
to human health or the environment.
FIFTH
GENERAL AFFIRMATIVE DEFENSE
This Complaint fails because the remedies requested would work an arbitrary and
unreasonable hardship upon the Federal Respondents.
There is no evidence that the Federal
Respondents contributed at all to
the alleged contamination ofthe Site, and there is ample
evidence that the Complainant
is equally if not more at fault compared to the Federal
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Respondents, given the Complainants knowledge at the time ofpurchase, lack of due diligence in
investigating the scope ofthe potential pollution risk, specific waiver, incompetent and/or
negligent remediation and tank removal, acts, omissions, and/or other affirmative participation in
causing the contamination ofthe Site.
Moreover, the imposition ofcost recovery upon the
Federal Respondents would work an unreasonable financial hardship on the Federal
Respondents.
SIXTH
GENERAL AFFIRMATIVE DEFENSE
The Complaint is barred against the Federal Respondents because the alleged acts
of contamination occurred by the act or acts ofthird parties, including prior owners, lessors,
and/or successors-in-interest to the Federal Respondents, without the knowledge or consent of
the Federal Respondents.
COUNT-SPECIFIC AFFIRMATIVE
DEFENSES
Count I.
Count I fails to
state a claim because the Federal Respondents did not perform any
affirmative act of“consolidation” of any refuse or waste at the Site.
The alleged ownership of
buried USTs not utilized by Federal Respondents is not “open dumping” as defined under 415
ILCS 5/21(a).
Count II.
Count II fails to state a claim because the Federal Respondents did not perform any
affirmative act of”abandoningj,
dumping,
or depositingj”
any waste upon public highways at
or near the Site, as required to prove a violation under 415
ILCS 5/21(b).
Count III.
Count III fails to state a claim because the Federal Respondents did not conduct any
waste storage, treatment, or disposal operations as required to prove a violation under 415 ILCS
5/21(d).
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Count V.
Count V fails to state a claim because the Federal Respondents did not conduct any
waste storage, treatment, or disposal operations as required to
prove a violation under 415 ILCS
5/21(d).
Count VII.
Count VII fails to state a claim because the Federal Respondents did not perform
any affirmative act of “depositingj”
hazardous waste upon the land as required to
prove a
violation of415 ILCS
5/12(d).
Respectfully submitted,
FEDERAL
DIE CASTING CO.,
an Illinois corporation, FEDERAL
CHICAGO CORP., an Illinois
corporation, and RAYMOND E. CROSS,
an Illinois resident
~
Cary R. Perlman
Shorge K. Sato, Esq.
LATHAM & WATKINS LLP
233 South
Wacker Drive
Suite 5800, Sears Tower
Chicago, Illinois
60606
Telephone:
(312) 876-7700
Facsimile:
(312) 993-9767
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CERTIFICATE OF SERVICE
I, Shorge K. Sato,
hereby certify that on this 22nd day ofAugust, 2003, I served a
true and correct copy ofthe ANSWER TO COMPLAINT upon the following by Federal
Express:
Francis A.
Citera, Esq.
Daniel T. Fahner, Esq.
Greenberg Traurig, P.C.
77
West Wacker Drive
Suite 2500
Chicago, Illinois
60601
Telephone:
(312) 456-8400
Facsimile:
(312) 456-8435
Craig V. Richardson, Esq.
Christopher J. Neumann, Esq.
Greenberg Traurig, L.L.P.
1200 Seventeenth Street
Twenty-Fourth Floor
Denver, Colorado
80202
Telephone:
(303) 572-6500
Facsimile:
(303) 572-6540
Steven M. Siros
Robert L. Graham
Bill S. Forcade
Jason E. Yearout
Jenner & Block
One
IBM
Plaza
Chicago, IL60611
Telephone: (312)
222-0350
Facsimile:
(312) 527-04~
