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~A(D
)
PCB
No.
03-55
)
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)
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CL~R~5
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/~IuG
22
2003
Polla~gPILLINOIS
0/Board
Respondents.
)
NOTICE OF FILING
TO:
All Parties on the Attached Service List
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of
the Pollution Control Board Respondent Purex Industries, Inc.’s Answer and Affirmative
Defenses, a copy ofwhich is herewith served upon you.
Robert L.
Graham
Bill S. Forcade
Steven M. Siros
Jason E. Yearout
Jenner & Block, LLC
One IBM Plaza
Chicago, IL
60611
(312) 222-9350
2222
ELSTON LLC,
an illinois limited
)
liability company,
)
V.
)
Complainant,
)
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 BANKTRUST NOS.
10-1087 &
10-1343, an Illinois trustee,
Dated: August 22, 2003
SERVICE LIST
BY FEDERAL EXPRESS
Craig V. Richardon, Esq.
Christopher J. Neumann, Esq.
Greenberg Traurig, L.L.P.
1200 Seventeenth St., Twenty-Fourth Floor
Denver, Colorado 80202
Attorneys for 2222 Elston, LLC
BY MESSENGER
Shorge K.
Sato
Carrie L. Taubman
Latham & Watkins
5800 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
Attorneys for Federal Die Casting Co., Federal Chicago Corp.,
Raymond E. Cross, Lakeside Bank Trust Nos.
10-1087, 10-
1343, and Beverly Bank Trust No. 8-7611.
967746
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2222 ELSTON LLC, an Illinois limited
)
liability company,
)
)
)
Complainant,
)
v.
)
PCB No. 03-5
5
)
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. 8-7511,
an
)
Illinois trustee,
andLAKESIDE BANK
)
TRUST NOS. 10-1087 & 10-1343,
an Illinois
)
trustee,
)
)
)
Respondents.
)
RESPONDENT PUREX INDUSTRIES, INC.’S ANSWER AND AFFIRMATIVE
DEFENSES
Purex Industries, Inc. (“Purex”), a former Delaware corporation, by and through its
undersigned attorneys, responds to the Complaint of2222 Elston LLC (“Elston”) against Purex,
Federal Die Casting Co. (“FDC”), an Illinois corporation, Federal Chicago Corp. (“FCC”), an
Illinois corporation, Raymond B. Cross (“Cross”), an Illinois resident, BeverlyBank Trust No. 8-
7611
(“Beverly”), n.k.a.
Charter One Bank, N.A. (“Charter”), an Illinois trustee, and Lakeside
Bank Trust Nos.
10-1087 &
10-1343 (“Lakeside”), an Illinois trustee (collectively
“Respondents”), 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 ofthe Lots
1
to
5
in Block 4 in Fullerton’s Addition to
Chicago in the
west
V2
ofthe northeast 1/4 of Section 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 ofsaid 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 of
said 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.
Response:
Purex lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph
1 ofthe Complaint, and therefore
denies each and every one ofthem.
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 of
polychiorinated biphenyls (“PCB5”), volatile organic compounds (“VOC5”) and used orwaste
tires.
Response:
Purex lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph 2 ofthe Complaint, and therefore
denies each and every one ofthem.
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
humanhealth and the environment that might result from the UST contamination.
-2-
Elston has spent approximately $500,000, exclusive ofattorneys’ 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 may be required to fullyremediate the
Site.
Response:
Purex lacks sufficient information to
form a belief as to the truth ofthe
allegations contained in Paragraph 3 ofthe Complaint, and therefore
denies each and every one of them.
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)
of
the Act.
Response:
To the extent that Paragraph 4 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it owned, operated,
possessed, controlled or had authority over the Site and relevant operations
conducted thereon from 1913 through January 2000.
Purex lacks
sufficient information to form a belief as to the truth ofthe remaining
allegations contained in Paragraph 4 ofthe Complaint, and therefore
denies each and every one ofthem.
5.
Elston seeks recovery ofcleanup costs already incurred at the Site, and an order
that Respondents reimburse Elston for all remaining cleanup costs.
Resnonse:
Purex lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph
5
ofthe Complaint, and therefore
denies each and every one ofthem.
PARTIES
6.
Elston is an Illinois limited liability company with its principal place ofbusiness
located at
1156 W.
Armitage Avenue, Chicago, Illinois 60614.
Elston acquired the Site in
Elston’s
costs do
not include approximately $350,000 in tax increment financing
incentives allocated and incurred by the City ofChicago at the Site.
-3-
January 2000, and shortly thereafter discovered and began to conduct cleanup activities
to
address historical violations ofthe Act caused by Respondents at the Site.
Response:
Purex lacks sufficient information to form a belief as to
the truth ofthe
allegations contained in Paragraph 6 ofthe Complaint, and therefore
denies each and every one ofthem.
7.
On information and belief, Purex
is a Delaware corporation with its principal
place ofbusiness located at
535
B. 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.
Response:
To the extent that Paragraph 7 ofthe Complaint contains conclusions of
law, no response
is required.
Purex admits that Purex Industries, Inc., the
Respondent in this case, is a Delaware corporation with its principal place
ofbusiness located in California.
Purex denies that on or about June 30,
1964, Purex acquired a firm known as T.F. Washburn Company
(“Washburn”) through a statutory merger.
Purex also
denies that Purex
acquired and beganvarnish operations on Lots 2,
3 and 4
at the Site in
1913, and on Lot
1
in
1935.
Purex further denies that it conducted varnish
operations at the Site during the period
1913 through 1978.
Responding
further, Purex states that in or about
1961, Purex Corporation, Ltd., a
California corporation (“Purex California”), acquired the stock ofT.F.
Washburn Company.
Purex further states that in 1974, Purex Corporation,
Ltd.
sold the Washburn business to Syncon Resins.
In 1977, Purex
California repossessed the Site, and subsequently sold the Site in
1978.
Purex lacks sufficient information to
form a belief as to the truth ofthe
remaining allegations contained in Paragraph 7, and therefore denies each
and
every one ofthem.
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.
-4-
Response:
Purex lacks sufficient information to form
a belief as to the truth ofthe
allegations contained in Paragraph 8 ofthe Complaint, and therefore
denies each and every one ofthem.
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-owned subsidiary, FDC, conducted die casting operations at the Site from
1978 through January 2000.
Response:
Purex denies that FCC acquired the Site from Purex in 1978.
Responding
further, Purex states that in 1978, Purex Corporation, Ltd. sold the Site.
Purex lacks sufficient information to form a belief as to the truth ofthe
remaining allegations contained in Paragraph 9 ofthe Complaint, and
therefore denies each and every one ofthem.
10.
Cross is a natural person, and a citizen and resident ofthe State of Illinois.
Cross
resides at 910 N. Green Bay Road, Lake Forest, Illinois
60045.
Cross owned the Site, or was the
beneficiary ofcertain 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, officeror shareholder ofFDC orFCC, 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.
Response:
Purex lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph 10 of the Complaint, and therefore
denies each and every one ofthem.
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 National Bank
of Wilmington 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
-5-
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.
Response:
Purex lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph
11
ofthe Complaint,
and therefore
denies each and every one ofthem.
12.
Lakeside is a banking association organized under the laws ofthe State ofIllinois.
During the period
1985 through 2000, Beverly served as trustee for Trust Nos.
10-1087 and 10-
1343
as owners ofthe Site.
Response:
Purex lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph 12 ofthe Complaint, and therefore
denies each and every one ofthem.
RELEVANT FACTS
PUREX’S OWNERSHIP AND OPERATION
13.
Purex’s corporate predecessor Washburn acquired Lots 2,
3 and 4 at the Site in
1913, and Lot
1
in 1935.
Response:
To the extent that Paragraph
13 ofthe Complaint contains conclusions of
law, no response is required.
Purex further objects to Plaintiffs
characterization ofWashburn as Purex’s corporate predecessor and denies
the
same.
Purex lacks sufficient information to form a belief as to the
truth ofthe allegations in Paragraph 13 ofthe Complaint, and therefore
denies each and every one ofthem.
14.
On information and belief, during the period
1913 to June 30,
1961, Washburn’s
principal place ofbusiness was located at 2244 N. ElstonAvenue, which at the time consisted of
Lots
1
through 4 at the Site.
Response:
Purex lacks sufficient information to form
a belief as to the truth ofthe
remaining allegations contained in Paragraph
14 ofthe Complaint, and
therefore denies each and every one ofthem.
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
-6-
gallon fuel oil UST (Feb.
15,
1949);
a 10,000
gallon naphthaUST (June
16,
1953); and three
5,000 gallon solvent USTs (May 16,
1960).
Response:
Purex lacks sufficient information to
form a belief as to the truth of the
allegations contained in Paragraph
15 ofthe Complaint, and therefore
denies each and every one ofthem.
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.
Response:
To
the extent that Paragraph 16 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that Purex acquired Washburn
through a statutory merger and succeeded to, all liabilities of Washburn
relating to
the Site.
Responding further, Purex states that on or about June
30,
1961, Purex Corporation, Ltd., a California corporation,
acquired the
stock ofT.F. Washburn Company.
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.
Response:
Purex denies that 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.
Purex lacks sufficient information to
form
a belief as to the truth ofthe remaining allegations contained in Paragraph
17, and therefore denies each and every one ofthem.
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.
Response:
Purex denies that it 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.
Purex lacks sufficient information to form a belief as to
the truth of
the remaining allegations contained in Paragraph
18, and therefore denies
each and every one ofthem.
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.
-7-
Response:
Purex denies that the
17 USTs were owned, installed, or operated by
Purex.
Purex lacks sufficient
information to form
a belief as to the truth of
the remaining allegations contained in Paragraph
19 ofthe Complaint, and
therefore denies each and every one ofthem.
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 of the
17 USTs at the Site into
adjacent soil and groundwater during the period 1970 through 1978.
Response:
Purex denies that it stored or disposed ofoils, solvents, 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. Purex lacks sufficient information to form a belief as to the truth of
the remaining allegations contained in Paragraph 20
ofthe Complaint, and
therefore denies each and every one ofthem.
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.
Response:
To the extent that Paragraph 21 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it disposed of or
abandoned waste tires, bricks and other discarded material in USTs at the
Site.
Purex lacks sufficient information to
form a belief as to the
remaining allegations contained in Paragraph 21 ofthe Complaint, and
therefore denies each and every one ofthem.
FDC AND FCC’S OWNERSHIP AND OPERATION
22.
On information and belief, as early as the
1940s through January 2000, FDC or
FCC conducted die casting operations adjacent to the Site on Lots
5
through
12.
Response:
Purex lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph 22 ofthe Complaint, and therefore
denies each and every one ofthem.
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.
Response:
Purex lacks sufficient information to form a belief as to the truth ofthe
remaining allegations contained in Paragraph 23 ofthe Complaint, and
therefore denies each and every one ofthem.
-8-
24.
On information and belief, in connection with their die casting operations, FDC or
FCC 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.
Response:
Purex lacks sufficient information to
form a belief as to the truth ofthe
allegations contained in Paragraph 24 ofthe Complaint, and therefore
denies each and every one ofthem.
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.
Response:
Purex lacks sufficient information to form
a belief as to the truth ofthe
allegations contained in Paragraph 25 ofthe Complaint, and therefore
denies each and every one ofthem.
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.
Response:
Purex lacks sufficient information to
form a belief as to the truth ofthe
allegations contained in Paragraph 26 of the Complaint, and therefore
denies each and every one ofthem.
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.
Response:
To the extent that Paragraph 21 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it disposed of or
abandonedwaste tires, bricks and other discardedmaterial in USTs at the
Site.
Purex lacks sufficient information to form a belief as to the
remaining allegations contained in Paragraph 27 ofthe Complaint, and
therefore denies each and every one ofthem.
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.
-9-
Response:
Purex lacks sufficient information to form
a belief as to the truth of the
allegations contained in Paragraph 28 ofthe Complaint, and therefore
denies each and every one ofthem.
29.
During the period
1974 through 1983, Cross
owned Lots
5
through 12 adjacent to
the Site in an individual capacity.
Response:
Purex lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph 29 of the Complaint, and therefore
denies each and every one ofthem.
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 for the benefit ofCross.
Response:
Purex lacks sufficient information to form a belief as to
the truth of the
allegations contained in Paragraph 30 ofthe Complaint, and therefore
denies each and every one ofthem.
31.
On information and belief, on or about August 29,
1985,
and October 20,
1985,
Beverly Bank,
as trustee for Trust #8-7611, transferred Lots
1
through 12
to Trust #10-1087
established at Lakeside Bank for the benefit ofCross.
Response:
Purex lacks sufficient information to form a belief as to
the truth of the
allegations contained in Paragraph 31 ofthe Complaint, and therefore
denies each and every one ofthem.
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.
Response:
Purex lacks sufficient information to form a belief as to
the truth ofthe
allegations contained in Paragraph 32 ofthe Complaint, and therefore
denies each and every one ofthem.
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.
Response:
Purex lacks sufficient information to form a belief as to
the truth ofthe
allegations contained in Paragraph 33 ofthe Complaint, and therefore
denies each and every one ofthem.
-10-
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-contaiing
materials, petroleum related products and by-products, waste tires, bricks and other discarded
materials.
Response:
Purex lacks sufficient information to form a belief as to
the truth ofthe
allegations contained in Paragraph 34 ofthe Complaint, and therefore
denies each and every one ofthem.
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 ofonly six USTs, not the
17
USTs that were eventually discovered by Elston.
Admittedly, even with respect to
the six
disclosed USTs, there were no disclosures to
Elston concerning leakage or contamination
from
those USTs.
Response:
Purex lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph 35 ofthe Complaint, and therefore
denies each and every one ofthem.
36.
Elston did not conduct business, lease oruse the site in any material manner until
Elston began to implement certain cleanup activities,
including soil investigation
and UST
removal.
Response:
Purex lacks sufficient information to form a belief as to
the truth ofthe
allegations contained in Paragraph 36 ofthe Complaint, and therefore
denies each and every one ofthem.
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 knownUSTs.
Elston began to remove the six known USTs and discovered oils,
solvents, varnish-related products and by-products, PCB-containing materials, petroleum related
—11—
products and by-products, waste tires, bricks and other discardedmaterials inside the USTs and
in adjacent soils and groundwater.
Response:
Purex lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph 37 ofthe Complaint, and therefore
denies each and every one ofthem.
38.
In June through July 2001, Elston conducted further soil investigations on Lots
1
through 4, and discovered the presence ofeleven additional USTs, bringing the total to
17.
Elston identified elevated PCB and VOC levels in soil adjacent to these eleven additional USTs,
as well.
Response:
Purex lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph 38 of the Complaint, and therefore
denies each and every one ofthem.
39.
Elstonbegan to remove the remaining eleven USTs and to investigate adjacent
soil and groundwater in or about September 2001.
Response:
Purex lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph 39 ofthe Complaint, and therefore
denies each and every one ofthem.
40.
Elston 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 maybe required to fully remediate
the Site.
Response:
Purex lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph 40 ofthe Complaint, and therefore
denies each and every one ofthem.
COUNT I
(Violation ofIllinois Environmental Protection Act, 415
ILL. C0MP. STAT.
5/21(a))
(Against All Respondents)
41.
Plaintiffs repeat the allegations ofparagraphs
1
through 40, inclusive, as if set
forth fully herein.
Response:
Purex reincorporates its responses to Paragraphs
1 through 40 above.
-12-
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.
Response:
To the extent that Paragraph 42 contains conclusions oflaw, no response
is required. Purex denies that it owned, operated, possessed, controlled or
had authority over the Site and relevant operations conducted there,
including the USTs located at the Site, during the period 1970 through
January 2000.
Purex lacks sufficient information to
form a belief as to the
truth ofthe remaining allegations contained in Paragraph 42 ofthe
Complaint, and therefore denies each and every one ofthem.
43.
Upon information and belief, releases ofoils, solvents, varnish-relatedproducts
and by-products, PCB-containing materials, and petroleum relatedproducts
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.
Response:
To the extent that Paragraph 42 contains conclusions oflaw, no response
is required.
Purex denies that it was the owner or operator ofthe Site and
the USTs buried beneath the Site.
Purex lacks sufficient information to
form a belief as to
the truth ofthe remaining allegations contained in
Paragraph 43 of the Complaint, and therefore
denies each and every one of
them.
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 of a sanitary landfill.”
Response:
The allegations contained in Paragraph 44 ofthe Complaint are
conclusions oflaw forwhich no answer is required.
45.
Under Section 5/3.3 1
ofthe Act, 415
ILL.
COMP.
STAT.
5/3.3
1, “refuse” is defined
as “waste.”
Response:
The allegations contained in Paragraph 45 ofthe Complaint are
conclusions oflaw for which no
answer is required.
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.”
-13-
Response:
The allegations contained in Paragraph 46 ofthe Complaint are
conclusions oflaw for which no answer is required.
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 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.”
Response:
The allegations contained in Paragraph 47 ofthe Complaint are
conclusions oflaw
for which no answer is required.
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 of the 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.”
Response:
To the extent that Paragraph 48 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it owned ormanaged the
Site.
Purex lacks sufficient information to form a belief as to the truth of
the remaining allegations contained in Paragraph 48 ofthe Complaint, and
therefore denies each and every one ofthem.
49.
As a foreseeable consequence ofRespondents’ violation ofSection
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.
Response:
To the extent that Paragraph 49 ofthe Complaint contains conclusions of
law, no response is required.
Purex lacks sufficient information to form a
belief as to the truth ofthe remaining allegations contained in Paragraph
49 ofthe Complaint, and therefore denies each and every one ofthem.
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.
-14-
Response:
Purex lacks sufficient information to
form a beliefas to the truth of the
allegations contained in Paragraph 50 ofthe Complaint, and therefore
denies each and
everyone ofthem.
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.
Response:
Purex reincorporates its responses to Paragraphs
1
through 50 above.
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.
Response:
To the extent that Paragraph
52 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it 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.
Purex lacks sufficient
information to form a belief as to
the truth ofthe remaining allegations
contained in Paragraph
52
ofthe Complaint, and therefore denies each and
every one ofthem.
53.
Upon information and belief, releases ofoils, solvents, varnish-related products
and by-products, PCB-contaiing materials, and petroleum related products and by-products
occurred from USTs at the Site, onto or under public highways and other public property
adjacent to
the Site while each ofthe Respondents was the owner and operator ofthe Site and the
USTs at the Site.
Response:
To the extent that Paragraph 53 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it owned or operated the
Site and the USTs at the Site.
Purex lacks sufficient
information to
form
a
belief as to the truth ofthe remaining allegations contained in Paragraph
53 ofthe Complaint, and therefore denies each and every one ofthem.
-15-
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 of
a
sanitary landfill.”
Response:
The allegations contained in Paragraph 54 ofthe Complaint are
conclusions oflaw for which no
answer is required.
55.
Under Section 5/3.3 1 ofthe Act, 415
ILL. COMP.
STAT. 5/3.3 1,
“refuse” is defined
as “waste.”
Response:
The allegations contained in Paragraph
55
ofthe Complaint are
conclusions of law for which no answer is required.
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.”
Response:
The allegations contained in Paragraph 56 ofthe Complaint are
conclusions of law for which no answer is required.
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 orplacing 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 or be emitted into the air or discharged
into any waters, including ground waters.”
Response:
The allegations contained in Paragraph 57 ofthe Complaint are
conclusions oflaw for which no answer is required.
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 or under adjacent public
highways and other public property, during their
ownership and management ofthe Site, each ofthe Respondents violated Section 5/21(b) ofthe
Act, 415
ILL. COMP.
STAT.
5/21(b), which provides that:
“No person shall.
.
.
abandon,
dump,
-16-
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..”
Response:
To
the extent that Paragraph 58 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it allowed 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.
Purex further denies that it owned or managed the Site.
Purex lacks
sufficient information to form a belief as to the truth of the remaining
allegations contained in Paragraph 58 ofthe Complaint, and therefore
denies each and every one of them.
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.
Response:
To the extent that Paragraph 59 ofthe Complaint contains conclusions of
law, no response is required.
Purex lacks sufficient information to
form a
belief as to the truth ofthe remaining allegations contained in Paragraph
59
ofthe Complaint, and therefore denies each and every one ofthem.
60.
In response to the contamination, Elston has expended and will continue to
expend considerable amounts ofmoneyto remediate the Site and adjacent public highways and
otherpublic property to meet applicable state and federal environmental and public health
standards.
Response:
Pur~x
lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph 60
ofthe Complaint, and therefore
denies each and every one ofthem.
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.
Response:
Purex reincorporates its responses to Paragraphs
1
through 60 above.
-17-
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.
Response:
To the extent that Paragraph 62 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it 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.
Purex lacks sufficient
information to form
a
belief as to the truth ofthe remaining allegations
contained in Paragraph 62 ofthe Complaint, and therefore denies each and
every one ofthem.
63.
Upon information and belief, each ofthe Respondents disposed ofwaste 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.
Response:
To
the extent that Paragraph 63 of the Complaint contains conclusions of
law, no response is required.
Purex denies that it disposed ofwaste tires
and other discarded materials in USTs or other facilities at the Site without
a permit or in violation ofstandards or regulations adoptedby the Illinois
Pollution Control Board, or allowed such disposal to
continue unabated.
Purex further denies that it owned, operated, possessed, controlled orhad
authority over the Site.
Purex lacks sufficient information to form
a
belief
as to the truth ofthe remaining allegations contained in Paragraph 63 of
the Complaint, and therefore
denies each and every one ofthem.
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.”
Response:
The allegations contained in Paragraph64
ofthe Complaint are
conclusions of law for which no answer is required.
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 ofany waste or
hazardous waste into or on any land orwater or into any well so that such waste or hazardous
-18-
waste or constituent thereofmay enter the environment orbe emitted into the air or discharged
into any waters, including ground waters.”
Response:
The allegations contained in Paragraph 65 ofthe Complaint are
conclusions of law forwhich no
answer is required.
66.
By disposing ofwaste tires and other discarded materials in USTs and other
facilities at the Site, during their ownership and management ofthe Site, each ofthe Respondents
violated Section 2 1(d) ofthe Act, which provides that:
No person shall:
d.
Conduct any waste-storage, waste-treatment, or waste
disposal operation:
(1)
without a permit granted by the Agency orin
violation ofany conditions imposed by such permit;
(2)
in violation ofany regulations or standards adopted
by the board under this Act;.
415
ILL. C0MP.
STAT.
5/21(d).
Response:
To the extent that Paragraph 66 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it disposed ofwaste tires
and other discarded materials in USTs and other facilities at the Site.
Purex further denies that it owned or managed the Site.
Purex lacks
sufficient information to form a belief as to
the truth ofthe remaining
allegations contained in Paragraph 66 ofthe Complaint, and therefore
denies each and every one ofthem.
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 discarded materials.
Response:
To the extent that Paragraph 67 ofthe Complaint contains conclusions of
law, no response is required.
Purex lacks sufficient information to form a
belief as to
the truth ofthe remaining allegations contained in Paragraph
67 ofthe Complaint, and therefore denies each and every one ofthem.
68.
In response to the contamination, Biston 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.
-19-
Response:
Purex lacks sufficient information to
form a belief as to
the truth ofthe
allegations contained in Paragraph 68 ofthe Complaint, and therefore
denies each and every one ofthem.
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.
Response:
Purex reincorporates its responses to Paragraphs
1
through 68
above.
70.
Each of the 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.
Response:
To the extent that Paragraph 70 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it owned, operated,
possessed,
controlled or had authority over the Site and relevant operations
conducted thereon, including the USTs located at the Site, during the
period
1970 through January 2000.
Purex lacks sufficient information to
form a belief as to
the truth ofthe remaining allegations contained in
Paragraph 70 ofthe Complaint, and therefore denies each and every one of
them.
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.
Response:
To the extent that Paragraph 71 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it owned or operated the
Site and the USTs at the Site.
Purex lacks sufficient information to
form a
belief as to the truth ofthe remaining allegations contained in Paragraph
71 ofthe Complaint, and therefore denies each and every one ofthem.
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 fordisposal, treatment, storage or
-20-
abandonment, except at a site or facility which meets the requirements of
this Act and ofregulations and standards thereunder.
415
ILL. COMP.
STAT.
5/21(e).
Response:
The allegations contained in Paragraph 72 ofthe Complaint are
conclusions oflaw for which no answer is required.
73.
Under Section 5/3.08 of the 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 orhazardous
waste or constituent thereof may enter the environment orbe emitted into the air or discharged
into any waters, including ground waters.”
Response:
The allegations contained in Paragraph. 73 ofthe Complaint are
conclusions oflaw for which no answer is required.
74.
Under Section
5/3.53
of the 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.”
Response:
The allegations contained in Paragraph 74 ofthe Complaint are
conclusions oflaw for which no answer is required.
75.
By allowing oils, solvents, vamish-related products and by-products, PCB-
containing materials, and petroleumrelated 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.
C0MP. STAT.
5/21(e).
Response:
To
the extent that Paragraph 75 ofthe Complaint contains conclusions of
law,
no response is required.
Purex denies that it allowed 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.
Purex further denies that it owned or managed the Site.
Purex lacks
sufficient information to form a belief as to the truth ofthe remaining
allegations contained in Paragraph 75 ofthe Complaint, and therefore
denies each and every one ofthem.
-21-
76.
As a foreseeable consequence ofRespondents’ violation ofSection 5/21(e), the
Site was contaminatedwith oils, solvents, varnish-related products and by-products, PCB-
containing materials, and petroleum related products and by-products.
Response:
To the extent that Paragraph 76 ofthe Complaint contains conclusions of
law, no response is required.
Purex lacks sufficient information to
form a
belief as to the truth ofthe remaining allegations contained in Paragraph
76 ofthe Complaint, and therefore denies each and every one ofthem.
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.
Response:
Purex lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph 77 of the Complaint, and therefore
denies each and every one ofthem.
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 fully herein.
Response:
Purex reincorporates its responses to Paragraphs
1
through 77 above.
79.
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.
Response:
To the extent that Paragraph 79 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it owned, operated,
possessed, controlled or had authority over the Site and relevant operations
conducted thereon, including the USTs located at the Site, during the
period
1970 through January 2000.
Purex lacks sufficient information to
form a belief as to the truth ofthe remaining allegations contained in
Paragraph
79 ofthe Complaint, and therefore denies each and every one of
them.
80.
Upon information and belief, each ofthe Respondents disposed ofhazardous
waste, including oils, solvents, varnish-related products and by-products,
PCB-contaiing
-22-
materials, and petroleum related products
and by-products,
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 orhad authority over the Site.
Response:
To the extent that Paragraph 80 ofthe Complaint contains conclusions of
law, no response is
required.
Purex denies that it disposed ofhazardous
waste, including oils, solvents, varnish-related products 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 orregulations adopted by the Illinois Pollution
Control Board, or allowed such disposal to continue unabated.
Purex
further denies that it owned, operated, possessed, controlled, orhad
authority over the
Site.
Purex lacks sufficient information to
form a belief
as to the truth of the remaining allegations contained in Paragraph 80 of
the Complaint, and therefore denies each and every one ofthem.
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.”
Response:
The allegations contained in Paragraph 81 ofthe Complaint are
conclusions oflaw forwhich no
answer is required.
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 or the environment when improperly treated, stored,
transported, or
disposed of, or otherwise managed, and which has been identified, by characteristic or listing, as
hazardous pursuant to
Section 3001 ofthe Resource Conservation and Recovery Act.
.
.
.“
Response:
The allegations contained in Paragraph 82 ofthe Complaint are
conclusions oflaw for which no
answer is required.
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 orwater or into any well so that such waste or hazardous
-23-
waste or constituent thereofmay enter the environment or be emitted into the air or discharged
into any waters, including ground waters.”
Response:
The allegations contained in Paragraph 83 ofthe Complaint are
conclusions oflaw for which no answer is required.
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 their ownership 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 violation ofany regulations or standards adopted
by the Board under this Act; or
(3)
in violation ofany RCRA permit filing requ~irement
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.
C0MP. STAT.
5/21(f).
Response:
To the extent that Paragraph 84 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it disposed ofhazardous
waste, including oils, solvents, varnish-related products and by-products,
PCB-containing materials, and petroleum relatedproducts and by-
products, in USTs and other facilities at the Site.
Purex further denies that
it owned or managed the Site.
Purex lacks sufficient information to form
a
belief as to the truth ofthe remaining allegations contained in Paragraph
84 ofthe Complaint, and therefore
denies each and every one ofthem.
85.
As a foreseeable consequence ofRespondents’ violation ofSection 5/21(f), USTs
and other facilities at the Site were contaminated with hazardous waste,
including oils, solvents,
-24-
varnish-related products and by-products, PCB-containing materials, and petroleum related
products and by-products.
Response:
To
the extent that Paragraph 85 ofthe Complaint contains conclusions of
law,
no response is required.
Purex lacks sufficient information to form
a
belief as to the truth of the remaining allegations contained in Paragraph
85 ofthe Complaint, and therefore denies each and
every one ofthem.
86.
In response to the contamination, Elston has expended and will continue to
expend considerable amounts of moneyto remediate the Site to meet applicable state and federal
environmental and public health standards.
Response:
Purex lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph 86 ofthe Complaint, and therefore
denies each and every one ofthem.
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.
Response:
Purex reincorporates its responses to Paragraphs
1
through 86 above.
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.
Response:
To the extent that Paragraph 88 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it 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.
Purex lacks sufficient
information to form a beliefas to the truth ofthe remaining allegations
contained in Paragraph 88 ofthe Complaint, and therefore denies each and
every one ofthem.
89.
Upon information and belief, releases ofoils, solvents, varnish-relatedproducts
and by-products,
PCB-containing materials, and petroleum related products and by-products
-25-
occurred from USTs at the Site while each ofthe Respondents was the owner and operator ofthe
Site and the USTs at the Site.
Response:
To the extent that Paragraph 89 ofthe Complaint contains conclusions of
law, no response
is required.
Purex denies that it owned or operated the
Site and the USTs at the Site.
Purex lacks sufficient
information to
form a
belief as to the truth ofthe remaining allegations contained in Paragraph
89 ofthe Complaint, and therefore denies each and every one ofthem.
90.
Section
12(a) ofthe Illinois Environmental Protection Act provides that:
No person shall:
i.
Cause or threatenor 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).
Response:
The allegations contained in Paragraph 90 ofthe Complaint
are
conclusions oflaw for which no answer is required.
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.”
Response:
The allegations contained in Paragraph 91 ofthe Complaint are
conclusions oflaw forwhich no
answer is required.
92.
By
allowing releases ofoils,
solvents, varnish-related products and by-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 ofthe Respondents violated Section 5/12(a) ofthe Act.
Response:
To
the extent that Paragraph 92 ofthe Complaint contains conclusions of
law,
no response is required.
Purex denies that it allowed releases of oils,
solvents, varnish-related products and by-products, PCB-contaiing
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.
Purex further denies that it owned or managed the
Site.
Purex lacks
sufficient informationto
form a belief as to
the truth ofthe remaining
allegations contained in Paragraph 92 of the Complaint, and therefore
denies each and everyone ofthem.
-26-
93.
As a foreseeable consequence ofRespondents’ violation ofSection
5/12(a),
the
Site was contaminated with oils, solvents, vamish-related products and by-products, PCB-
containing materials, and petroleum related products and by-products.
Response:
To
the extent that Paragraph 93 of the Complaint contains conclusions of
law, no
response is required.
Purex lacks sufficient
information to
form a
belief as to the truth ofthe remaining allegations contained in Paragraph
93 ofthe Complaint, and therefore denies each and every one of them.
94.
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.
Response:
Purex lacks sufficient information to
form a belief as to the truth ofthe
allegations contained in Paragraph 94 of the Complaint, and therefore
denies each and every one ofthem.
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.
Response:
Purex reincorporates its responses to Paragraphs
1
through 94 above.
96.
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.
Response:
To the extent that Paragraph 96 ofthe Complaint contains conclusions of
law, no response
is required.
Purex denies that it 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.
Purex lacks sufficient
information to form a belief as to
the truth ofthe remaining allegations
contained in Paragraph 96 ofthe Complaint, and therefore denies each and
every one ofthem.
97.
Upon information and belief, releases ofoils, solvents, varnish-relatedproducts
and by-products, PCB-containing materials, and petroleum related products and by-products
-27-
occurred from USTs at the Site while each ofthe Respondents was the owner and operator ofthe
Site and the USTs at the Site.
Response:
To
the extent that Paragraph 97 ofthe Complaint contains conclusions of
law,
no response is required.
Purex denies that it owned and operated the
Site and the USTs at the
Site.
Purex lacks sufficient information to form
a
belief as to the truth ofthe remaining allegations contained in Paragraph
97 ofthe Complaint, and therefore
denies each and every one ofthem.
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).
Response:
The allegations contained in Paragraph 98 ofthe Complaint are
conclusions of law for which no
answer is required.
99.
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.”
Response:
The allegations contained in Paragraph 99 ofthe Complaint are
conclusions of law for which no answer is required.
100.
By allowing releases ofoils, solvents, varnish-related products and by-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 ofthe Respondents created a waterpollution hazard thereby
violating Section
5/12(d)
ofthe Act.
Response:
To the extent that Paragraph 100 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it allowed releases of oils,
solvents, vamish-related products and by-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.
Purex further denies that it owned or managed the Site.
Purex lacks
sufficient information to form a belief as to the truth ofthe remaining
allegations contained in Paragraph 100 ofthe Complaint, and therefore
denies each and every one ofthem.
-28-
101.
As a foreseeable consequence ofRespondents’ Violation ofSection 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.
Response:
To the extent that Paragraph 101 ofthe Complaint contains conclusions of
law, no response is required.
Purex lacks sufficient information to
form a
belief as to the truth of the remaining allegations contained in Paragraph
101 ofthe Complaint, and therefore denies each and every one ofthem.
102.
In response to the contamination, Elston has expended and will continue to
expend considerable amounts of moneyto remediate the Site to meet applicable
state and federal
environmental and public health standards.
Response:
Purex lacks sufficient information to form a belief as to the truth ofthe
allegations contained in Paragraph 102 ofthe Complaint, and therefore
denies each and every one ofthem.
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.
Response:
Purex reincorporates its responses to Paragraphs
1
through
102 above.
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.
Response:
To the extent that Paragraph 104 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it owned, operated,
possessed, controlled or had authority over the Site and relevant operations
conducted thereon, including the USTs located at the Site, during the
period 1970 through January 2000.
Purex lacks sufficient information to
form a belief as to the truth ofthe remaining allegations contained in
Paragraph
104 ofthe Complaint, and therefore denies each and
every one
ofthem.
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
-29-
Illinois Pollution Control Board, or allowed such disposal to continue unabated, during periods
oftime
when each oftheRespondents owned, operated, possessed,
controlled or had authority
over the Site.
Response:
To the extent that Paragraph
105 ofthe Complaint contains conclusions of
law, no response is
required.
Purex denies that it disposed ofused or
waste tires in USTs or otherfacilities at the Site in violation ofstandards
orregulations adopted by the Illinois Pollution Control Board, or allowed
such disposal to
continue unabated.
Purex further denies that it owned,
operated, possessed, controlled or had authority over the Site.
Purex lacks
sufficient information to
form a belief as to the truth ofthe remaining
allegations contained in Paragraph
105 ofthe Complaint, and therefore
denies each and every one ofthem.
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.”
Response:
The allegations contained in Paragraph
106 ofthe Complaint are
conclusions oflaw for which no answer is required.
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.”
Response:
The allegations contained in Paragraph
107 ofthe Complaint are
conclusions oflaw for which no answer is required.
108.
Under Section 5/3.24 ofthe Act, 415
ILL. COMP. STAT.
5/3.14, “open dumping”
is
defined as: “consolidation ofrefuse from one
or more sources at a disposal site that does not
fulfill the requirements ofa sanitarylandfill.”
Response:
The allegations contained in Paragraph 108 ofthe Complaint are
conclusions oflaw for which no answer is required.
109.
Under Section
5/54.04
ofthe Act, 415
ILL. COMP.
STAT.
5/54.04,
“disposal” is
defined as: “the placement ofused tires into or on any land orwater except as an integral part of
the systematic reuse
or conversion in the regular course ofbusiness.”
Response:
The allegations contained in Paragraph 109 ofthe Complaint are
conclusions of law for which no answer is required.
-30-
110.
By disposing ofused or waste tires in USTs and other facilities at the Site, during
their ownership and management ofthe Site, each ofthe Respondents violated Section
55(a)
of
the 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 or waste tire on private
or public property, except in a sanitary landfill approved by the
Agency pursuant to regulations adopted by the Board.
415
ILL. C0MP.
STAT.
5/55(a).
Response:
To the extent that Paragraph
110 ofthe Complaint contains conclusions of
law, no response is required.
Purex denies that it disposed ofused or
waste tires in USTs and other facilities at the Site.
Purex further denies
that it owned or managed the
Site.
Purex lacks sufficient information to
form a belief as to the truth ofthe remaining allegations contained in
Paragraph
110 ofthe Complaint, and therefore denies each and every one
ofthem.
111.
As a foreseeable consequence ofRespondents’ violation ofSection
5/55(a),
USTs
and other facilities at the Site were contaminated with used orwaste tires.
Response:
To the extent that Paragraph 111
ofthe Complaint contains conclusions of
law, no response is required.
Purex lacks sufficient information to
form a
belief as to the truth ofthe remaining allegations contained in Paragraph
111 ofthe Complaint, and therefore denies each and every one ofthem.
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.
Response:
Purex lacks sufficient
information to
form
a
belief as to the truth of the
allegations contained in Paragraph
112 ofthe Complaint, and therefore
denies each and everyone of them.
-31-
FIRST AFFIRMATIVE DEFENSE: LACK OF PERSONAL JURISDICTION
In the alternative, without admitting anyofthe Complaint’s
allegations that it has denied
or otherwise contradicting its
answers and solely by wayof affirmative andlor additional defense,
Purex alleges as follows:
1.
In March 1982, Purex was created under the name P11 Holdings, Inc. (“P11
Holdings”) to
effect a leveraged buyout ofPurex Industries,
Inc.
(a
Delaware corporation
incorporated in 1978 and not the Respondent Purex Industries, Inc.) by private investment groups
consisting ofcorporations, banks, and insurance companies.
2.
On August 30,
1982,
P11 Holdings changed its name to
Purex Industries, Inc. (the
Respondent in this proceeding).
3.
In order forthe Board to exercise personal jurisdiction over Purex, Complainant
must demonstrate that Purex has sufficient contacts with the State ofIllinois so as to satisfy
Illinois’
long-arm statute.
4.
Since its
inception in March 1982, Purex has not transacted business within
Illinois, committed any tortious acts within Illinois, or otherwise had any contacts with Illinois so
as to subject it to thejurisdiction ofthe Illinois
courts.
5.
As such, the Board lacks personaljurisdiction over Purex.
Wherefore, Purex asks that the Board enter an order that Complainant be awarded
nothing as against Purex and denying Complainant
any and all ofthe relief it seeks herein against
Purex;
and such other and further relief to which Purex is entitled under the
law.
-32-
SECOND AFFIRMATIVE DEFENSE: LACHES
In the alternative,without admitting any ofthe Complaint’s allegations that it has denied
or otherwise contradicting its answers and solely by way of affirmative and/or additional defense,
Purex alleges as follows:
1.
Upon information and belief, Complainant acquired the property comprising the
Site in or about January 2000.
2.
Upon information and belief, before Complainant
acquired the Site, it was fully
aware ofthe fact that USTs
and various contaminants were present on and beneath the property
comprising the Site.
3.
Upon information and belief, Complainants remained aware ofthe potential
environmental concerns at the Site for at least two years afterpurchasing the Site, and elected not
to
file the Complaint now pending before the Board until October
25,
2002.
4.
Purex has been prejudicedby Complainant’s unreasonable delay in filing its
Complaint.
Wherefore, Purex asks that the Board render a judgment in its favor and against
Complainant; and that the Board enter an order that Complainant be awarded nothing as against
Purex and
denying Complainant any and all ofthe relief it seeks herein against Purex; and such
other and further relief to which Purex is entitled under the law.
THIRD AFFIRMATIVE DEFENSE: EOUITABLE ESTOPPEL/WAIVER
In the alternative, without admitting any ofthe
Complaint’s allegations that it has denied
or otherwise contradicting its answers and solely by way ofaffirmative and/or additional defense,
Purex alleges
as follows:
1.
Upon information and belief, prior to acquiring the Site in 2000, Complainant was
aware that the Site was contaminated and that USTs were present at the Site.
-33-
i
2.
Upon information and belief, Complainant’s knowledge, awareness, and
acceptance ofthese environmental concerns and conditions was reflected in both conversations
and correspondence during contract negotiations, as well as the final purchase price for the
property comprising the Site.
3.
Upon information and belief, Complainant was afforded the opportunity to
conduct further investigation of environmental conditions prior to acquiring the Site;
Complainant, however, elected not to conduct further environmental investigation ofthe Site.
4.
Complainant knowingly waived its right to perform additional environmental due
diligence prior to acquiring the Site.
5.
As
a result ofthe facts set forth in Paragraphs
1
through 4 above, Complainant is
estopped from recovering any response costs relating to
environmental conditions
at the Site
from Purex.
Wherefore, Purex asks that the Board render a judgment in its favor and against
Complainant;
and that the Board enter an order that Complainant be awarded nothing as against
Purex and denying Complainant any and all ofthe relief it seeks herein against Purex; and such
other and further relief to which Purex is entitled under the law.
FOURTH AFFIRMATIVE DEFENSE:
PROPORTIONATE LIABILITY
In the alternative, without admitting any ofthe Complaint’s
allegations that it has denied
or otherwise contradicting its answers and solely by way ofaffirmative and/or additional defense,
Purex alleges as follows:
1.
Section 58.9 ofthe Illinois Environmental Protection Act (the “Act”), 415 ILCS
5/58.9,
states:
Notwithstanding any other provisions ofthis Act to the contrary, including
subsection (f) ofSection 22.2, in no
event may the Agency, the State ofIllinois, or
any person bring
an action pursuant to
this Act.
.
.
to require any person to
conduct remedial action orto seek recovery ofcosts forremedial activity
conducted by the State ofIllinois or any personbeyond the remediation ofreleases
ofregulated substances that may be attributed to being proximately caused by
-34-
such person’s act or omission or beyond such person’s proportionate degree of
responsibility for costs ofthe remedial action ofreleases ofregulated substances
that were proximately caused or contributed to
by 2
or more persons.
2.
In its prayer for relief,
Complainant seeks an order requiring Purex to reimburse
Complainant for cleanup costs it has incurred and will in the future incur relating to
the Site.
3.
Pursuant to Section
58.9 ofthe Act,
Purex may only be liable forthose costs of
remedial activities relating to
contamination proximately caused by Purex’s acts or omissions.
4.
Purex was not and is not responsible by act or omission for any response costs
associated with the Site.
Wherefore, Purex asks that the Board render a judgment in its favor and against
Complainant; and that the Board enter an order that Complainant be awarded nothing as against
Purex and denying Complainant any and all ofthe reliefit seeks herein against Purex; and such
other and further relief to which Purex is entitled under the law.
FIFTH AFFIRMATIVE DEFENSE:
PROHIBITION ON RECOVERY OF RESPONSE COSTS
In the alternative, without admitting any ofthe Complaint’s allegations that it has denied
or otherwise contradicting its answers and solely by way of affirmative and/or additional
defense,
Purex alleges as follows:
1.
By this Complaint, Complainants seeks to recover its costs in remediating alleged
environmental contamination at the Site.
2.
Section 45(b) ofthe Act, 415 ILCS 5/45(b), allows private parties to
obtain only
injunctive relief,
attorneys’ fees, and court costs from another private party for violating the Act.
3.
The Act contains no explicit provision by which a private citizen may sue another
private citizen to recover costs
associated with remediating contaminatedproperties.
Wherefore, Purex asks that the Board render ajudgment in its favor and against
Complainant; and that the Board enter an order that Complainant be awarded nothing as against
-35-
SEVENTH AFFIRMATIVE DEFENSE: ATTORNEYS’
FEES
In the alternative, without admitting any ofthe Complaint’s allegations that it has denied
or otherwise contradicting its
answers and solely by way ofaffirmative and/or additional defense,
Purex alleges as follows:
1.
In its prayer for relief, Complainant seeks attorneys fees, expert witness fees and
costs.
2.
Section 42(f) ofthe Act, 415 ILCS 5/42(f), authorizes the Board to
award
attorneys’ fees only in cases
in which the Attorney General or a State’s Attorney prevails on
behalfof the People ofthe State ofIllinois.
3.
The Board has already acknowledged that it cannot award attorney fees or other
ordinary expenses oflitigation in this case.
Wherefore, Purex asks that the Board enter an order denying Complainant’s request for
attorney’s fees, expertwitness fees, and other costs from Purex, and provide such other and
further relief to
which Purex
is entitled under the law.
Dated: August 22, 2003
Respectfully submitted,
PUREX INDUS
Robert L. Graham
-
Bill
S. Forcade
Steven M. Siros
Jason E.
Yearout
Jenner & Block
One IBM Plaza
Chicago, IlL
60611
(312) 222-9350
-37-
By:
(CHICAGO)
963840_3
8/19/03
II :28 AM
CERTIFICATE OF SERVICE
I, Jason E. Yearout, an attorney,
certify that I have served Respondent Purex
Industries,
Inc.’s
Answer and Affirmative Defenses upon theparties on the attached service list,
in the manner indicated, this 22nd day ofAugust,
2003:
Jason E. Y~arout
