To:
NOTICE OF FILING
For
Purex Industries, Inc.:
Robert L.
Graham
Bill S. Forcade
Jason B. Yearout
Jenner & Block, LLC
One iBM Plaza
Chicago, Illinois
60611
For Federal Die Casting Co., Federal
Chicago Corp., Raymond E. Cross,
Lakeside Bank, Trust Nos. 10-1087, 10-1343,
Beverly Bank, Trust No.
8-7611:
Cary R. Perhnan
Carrie L. Taubman
Latham & Watkins
5800 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
PLEASE
TAKE NOTICE
that I have today filed with the
Office of the Clerk
of the
Pollution Control Board the 2222 ELSTON LLC’S REPLY TO RESPONDENTS FEDERAL
DIE
CASTING,
CO.,
FEDERAL
CHICAGO
CORP.,
AND
CROSS’
ANSWER
AND
BEFORE
THE ILLINOIS POLLUTION CONTROL
BOAI~E~c~~,tD
CLERK’S
OFF!CF
2222
ELSTON LLC, an
Illinois limited
liability company,
Complainant,
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.
)
SEP262003
)
STATE
OF
ILLINOIS
)
Board
)
PCB No.
03-5
5
)
(Citizens UST Enforcement)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
AFFIRMATIVE
DEFENSES,
and
CERTIFICATE
OF
SERVICE
filed
on
behalf
of
Complainant, 2222 Elston LLC, a copy ofwhich is herewith served upon you.
Dated:
September
22nd
2003
Respectfully submitted,
Attorneys for Complainant 2222 Elston LLC
Francis A. Citera, Esq.
Daniel T. Falmer, 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
#77456
2
RECE~vE~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
SEP26?003
2222 ELSTON LLC, an Illinois limited
)
liability company,
)
STATE OF ILLINOIS
Pollutjo,~Control Board
Complainant,
)
)
PCBNo.03-55
V.
)
(Citizens UST Enforcement)
)
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.
)
)
)
2222
ELSTON LLC’S REPLY TO RESPONDENTS
FEDERAL
DIE CASTING, CO.,
FEDERAL
CHICAGO CORP., AND CROSS’ ANSWER TO COMPLAINT
AND
AFFIRMATIVE DEFENSES
Complainant 2222 ElstonLLC (“Biston”), by and through its attorneys, Greenberg
Traurig, LLP, for its reply to
Respondents Federal Die Casting, Co., Federal Chicago Corp., and
Cross’ Answer and Affirmative Defenses (filed on August 21, 2003), responds as follows:
GENERAL AFFIRMATIVE DEFENSES
FIRST GENERAL AFFIRMATIVE DEFENSE:
The Complaint is barred, in whole or in part, by the doctrine ofwaiver and/or equitable
estoppel.
In January 2000, Blston made an informedbusiness decision to purchase a Brownfield
property that it knew to
a certainty required investigation and/orremediation.
Elston explicitly
agreed that, if it chose to consummate the transaction, the Seller’s environmental liability would
be limited to $50,000 (which moneyFederal Respondents have already paid).
After acquiring
the property, Elston renegedon the deal it had cut, ignored the fact that part ofthe consideration
paid to the Seller was Elston’s agreement to limit the Federal Respondents’
liability to $50,000
THIS FILING IS
SUBMITTED
ON RECYCLED
PAPER
and brought the instant
action.
Furthermore, Elston’s failure to conduct the investigation
requiredby the purchase agreement is the proximate and but for cause ofthis Complaint.
RESPONSE:
Biston denies the allegations stated in Respondents’ First General Affirmative Defense.
Responding further, Elston alleges in the Complaint that the contract referred to by Respondents
is between Blston and Respondent Lakeside.
See
Compi.
¶~J
28-40.
As such, Biston had no
contract with any other Respondents,
and it therefore had no contractual rights to waive vis-à-vis
Respondents Cross, Federal Die
Casting Co. and Federal Chicago Corp.
Responding further, Elston objects to Respondents’
assertion ofan equitable estoppel
defense inasmuch as Respondents have failed to pleadthe elements ofsuch a defense with the
requisite specificity.
In order to plead an affirmative defense ofequitable estoppel, Respondents
must allege:
(1) words or conduct by the party against whom the estoppel is
alleged constituting either a misrepresentation or concealment of
material facts; (2) knowledge on thepart ofthe party against whom
the estoppel is alleged that representations made were untrue; (3)
the party claiming the benefit ofan estoppel must have not known
the representations to be false either at the time theywere made or
at the time theywere acted upon;
(4) the party estopped must either
intend or expect that his conduct or representations will be acted
upon by the party asserting the estoppel;
(5)
the party seeking the
estoppel must have relied or acted upon the representations; and
(6) the party claiming the benefit ofthe estoppel must be in a
positionofprejudice if the party against whom the estoppel is
alleged is permitted to deny the truth ofthe representation made.
See,
e.g., People v.
QCFinishers, Inc.,
No. PCB 01-7 (June 19, 2003), at 4 (citations omitted)
(striking affirmative defense ofequitable estoppel for failure to plead elements with specificity.).
Respondents have failed to allege that Biston made~
any misrepresentation or concealment, or to
allege any ofthe remaining five elements ofthe defense ofequitable estoppel.
2
Elston further objects to Respondents’ assertion ofan affirmative defense based on
waiver.
The Board has previously held that in order to state an affirmative defense ofwaiver a
partymust have both knowledge ofthe existence ofa right and an intention to relinquish it.
QC
Finishers, Inc.,
No. PCB 01-7, at
5
(striking affirmative defense ofwaiver.).
Blston has not
intentionally waived any right.
The arguments raised by Respondents fail to
state an affirmative
defense inasmuch as they speak to the issue ofthe penalty and not the cause ofaction.
Id.
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 proximatelycaused by any act or omission
ofFCC.
RESPONSE:
Elston denies the allegations stated in Respondents’
Second General Affirmative
Defense.
Responding further, Elston objects to Respondents’
Second General Affirmative
Defense inasmuch as it does not assert any new factswhich would defeat Elston’s right to
recover, but rathermerely refutes the allegations stated by Elston in its Complaint.
See, e.g.,
People v.
WoodRiverRef’g Co.,
PCB 99-120 (Aug.
8, 2002), at 9 (striking affirmative defense
simplyrefuting allegations ofcomplaint.).
THIRD GENERAL AFFIRMATIVE DEFENSE
The Complaint fails to state a claim against Raymond B. 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 insufficientto establish liability under the act, and there are no facts alleged which would
justif~’
piercing the corporate veil.
RESPONSE:
Biston denies that Mr.
Cross never owned the property at issue.
As defined by Elston, the
“Site” includes portions ofLots
1
through
5.
See
Compl.
¶
1.
Blston alleges Mr. Cross owned
3
Lot
5
in his individual capacity.
Id.
¶~f
10, 28-34.
Tn addition, Elston alleges that Mr. Cross is
liable, in part, in his capacity as beneficiary ofvarious Illinois land trusts which owned and
operated the property under Mr. Cross’
exclusive direction.
Id.
Biston further denies that
Mr.
Cross’
status as shareholder, officer, or director ofany ofthe corporate Respondents is
insufficient to establish liability under the Act, or that there are no facts alleged which would
justify piercing the corporate veil.
Biston denies each and every other allegation contained in
Respondents’ Third General Affirmative Defense.
Responding further, Blston further objects to Respondents’
Second General Affirmative
Defense inasmuch as it does not assert any new facts which would defeat Elston’s right to
recover, but rather merely refutes the allegations stated by Biston in its Complaint.
See,
e.g.,
WoodRiver,
PCB 99-120, at 9 (striking affirmative defense simply refuting allegations of
complaint.).
FOURTH GENERAL AFFIRMATIVE DEFENSE
The Complaint is barred under the doctrine oflaches.
Complainant was aware ofthe soil
and/or ground water conditions since before ifpurchased 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 orthe environment.
RESPONSE:
Elston denies the allegations statedin Respondents’ Fourth General Affirmative Defense.
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
Respondents, given the Complainants knowledge at the time ofpurchase, lack ofdue diligence in
investigating the scope of the 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 of cost recovery upon the
4
FederalRespondents would work an unreasonable financial hardship on the Federal
Respondents.
RESPONSE:
Biston denies the allegations stated in Respondents’ Fifth General Affirmative Defense.
Responding further, Blston objects to Respondents’ assertion ofan affirmative defense that
compliance with the Act would cause an unreasonable hardship.
The Board has previously held
that: “Whether compliance would be deemed arbitrary or cause an unreasonable hardship is
simplya matter to be considered in mitigation when determining whether to assess monetary
penalties.”
Cole Taylor Bank v. Rowe Indus., Inc.,
No. PCB
0 1-173 (June 6, 2002), at 8 (striking
affirmative defense that compliance with the Act would cause an unreasonable hardship.).
Elston further objects to Respondents’
assertion ofan affirmative defensebased on Section
58.9
ofthe Act.
The Board has previously held that: “Proportionate share liability is a limitation on
remedies, not a bar to a cause ofaction.”
Cole Taylor,
No. PCB 0 1-173, at
5
(striking
affirmative defense based on proportionate share’ liability).
SIXTH
GENERAL AFFIRMATIVE DEFENSE
The Complaint is barred against the Federal Respondents because the alleged acts of
contamination occurredby the act or acts ofthird parties, including prior owners, lessors, and/or
successors-in-interest to the Federal Respondents, without the knowledge or consent ofthe
Federal Respondents.
RESPONSE:
Blston denies the allegations stated in Respondents’
Sixth General Affirmative Defense.
Responding further, Biston objects to Respondents’ assertion ofan affirmative defense based on
Section 22.2(j) ofthe Act, including that contamination was causedby thirdparties.
The Board
has previously held that such a “third party” defense maynot be raised in actions brought
pursuant to
Section
3 1(d), but rather apply only to actions brought pursuant to Section 22.2 ofthe
5
Act.
Cole Taylor,
No. PCB 0 1-173, at 6 (striking affirmative defense based “third party” defense
set forth at Section 22.2(j) ofthe Act.).
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” ofany refuse or waste at the Site.
The alleged ownership
ofburied USTs not utilized by Federal Respondents is not “open dumping” as defined under
415
ILCS
5/21(a).
RESPONSE:
Biston denies the allegations stated in Respondents’ Count-Specific Affirmative Defense
directed at Count I ofthe Complaint.
Responding further, Biston objects to Respondents’
Second General Affirmative Defense inasmuch as it does not assert any new facts which would
defeat Biston’s right to recover, but rather merely refutes the allegations statedby Biston in its
Complaint.
See, e.g.,
Wood River,
PCB 99-120, at 9 (striking affirmative defense simply
refuting allegations ofcomplaint.).
Count II.
Count II fails to state a claim because the Federal Respondents did not
perform any affirmative act of”abandoning,
dumping,
or depositing”
any waste upon public
highways at or nearthe Site, as required to prove a violation under
415
ILCS 5/21(b).
RESPONSE:
Biston denies the allegations stated in Respondents’
Count-Specific Affirmative Defense
directed at Count II ofthe Complaint.
Responding further, Elston objects to Respondents’
Second General Affirmative Defense inasmuch as it does not assert any new facts which would
defeat Elston’s right to recover, but rather merely refutes the allegations stated by Biston in its
Complaint.
See,
e.g.,
WoodRiver,
PCB 99-120, at
9 (striking affirmative defense simply
refuting allegations ofcomplaint.).
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
5/12(d).
6
RESPONSE:
Elston denies the allegations stated in Respondents’
Count-Specific Affirmative Defense
directed at Count III ofthe Complaint.
Responding further,
Biston objects to
Respondents’
Second General AffirmativeDefense inasmuch as it does not assert any new facts which would
defeat Elston’s right to recover, but rather merely refutes the allegations stated by Elston in its
Complaint.
See, e.g.,
WoodRiver,
PCB 99-120, at 9 (striking affirmative defense simply
refuting allegations of complaint.).
Count
V.
Count V fails to state a claim because theFederal Respondents did not
conduct any waste storage,
treatment, or disposal operations as required to
prove a violation
under 415 ILCS
5/21(d).
RESPONSE:
Biston denies the allegations stated in Respondents’
Count-Specific Affirmative Defense
directed at Count V ofthe Complaint.
Responding further, Biston objects to Respondents’
Second General Affirmative Defense inasmuch as it does not assert any new facts which would
defeat Blston’s right to recover, but rather merely refutes the allegations stated by Blston in its
Complaint.
See, e.g.,
Wood River,
PCB 99-120, at 9 (striking affirmative defense simply
refuting allegations ofcomplaint.).
Count VII.
Count VII fails to
state a claim because the Federal Respondents did not
perform any affirmative act of“depositing”
hazardous waste upon the land as required to prove
a violation of415
ILCS 5/12(d).
RESPONSE:
Elston denies the allegations stated in Respondents’ Count-Specific Affirmative Defense
directed at Count VII ofthe Complaint.
Responding
further, Elston objects to Respondents’
Second General Affirmative Defense inasmuch as it does not assert any new factswhich would
defeat Blston’s right to recover, but rather merely refutes the allegations stated by Biston in its
7
Complaint.
See,
e.g.,
Wood River,
PCB 99-120, at 9 (striking affirmative defense simply
refuting allegations ofcomplaint.).
Dated:
September 22, 2003
Respectfully submitted,
GREENBERG TRA
G, L.L.P.
~
U
aig V. Richardson
Attorneys for Complainant 2222 Elston LLC
Francis A. Citera,
Bsq.
Daniel T. Fahner, Esq.
Greenberg Traurig, P.C.
77 West Wacker Drive
Suite2500
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
#77474
8
RECE ~WE~
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD CLERK SOFUCE
SEP
26
2003
2222
ELSTON LLC,
an Illinois limited
)
STATE OF ILLINOIS
liability company,
)
Polluti0~Control Board
)
Complainant,
)
)
PCB No.
03-55
v.
)
(Citizens UST Enforcement)
)
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 BANKTRUST NO. 8-7611, an
)
Illinois trustee, and LAKESIDE BANK
)
TRUST NOS. 10-1087 & 10-1343, an Illinois
)
trustee,
)
)
Respondents.
)
)
)
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached
2222
ELSTON LLC’S
REPLY TO RESPONDENTS
FEDERAL
DIE
CASTING, CO.,
FEDERAL
CHICAGO
CORP., AND CROSS’ ANSWER AND AFFIRMATIVE DEFENSES,
and
NOTICE OF
FILING
upon the Respondents on September
22uid,
2003, by:
certifiedmail
_____
registered mail
messenger service
_____
personal service
X
U.S.Mail
at the addresses below:
THIS FILING IS SUBMITTED ON RECYCLED PAPER
For
Purex Industries, Inc.:
Robert L. Graham
Bill S. Forcade
Steven M. Siros
Jason B. Yearout
Jenner & Block, LLC
One IBM Plaza
Chicago, Illinois
60611
Hearing Officer:
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Suite 11-500
Chicago, Illinois
60601
Francis A.
Citera, Esq.
Daniel T. Fahner, Bsq.
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
#77458
For
Federal Die Casting Co., Federal
Chicago Corp., Raymond E. Cross,
Lakeside Bank, Trust Nos. 10-1087, 10-1343,
Beverly Bank, Trust No.
8-7611:
Cary R. Penman
Carrie L. Taubman
Latham & Watkins
5800 SearsTower
233
South Wacker Drive
Chicago, Illinois
60606
City of Chicago
Mara S Georges
Diane M. Pezanoski
George D Theophilos
Charles A. King
Chicago Department ofLaw
30 N. LaSalle St.,
Suite 900
Chicago, IL
60602
(~Z~&~
‘~Craig
V~~chardson,
B
q., Attorney for
Comp~~nt,
2222 Elston LLC
2