BEFORE
THE
ILLINOIS POLLUTION CONTROL BOkRD
PEOPLE
OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
VS.
)
No.PCB03-73
~
)
c~ ~
RIVERDALE RECYCLING, INC., an
)
Illinois corporation, and Tifi-STATE
)
I
1,
7
2003
DISPOSAL, INC., an illinois corporation,
)
)
SAi•L
OF~ILLINOIS
Respondents.
)
Pollution
Control Board
NOTICE OF FILING
TO:
Ms. Dorothy Gunn, Clerk, Pollution ControlBoard, 100W. Randolph, Suite 11-500, Chicago,
IL
60601
Ms.
Paula
Becker Wheeler,
Assistant
Attorney General,
Environmental
Bureau,
188
W.
Randolph,
Suite 2001,
Chicago, illinois 60601
Mr. Christopher Grant, Assistant AttorneyGeneral, Environmental Bureau, 188 W. Randolph,
Suite 2001, Chicago, Illinois 60601
Mr. Brad Halloran, Hearing Officer, Pollution Control Board, 100
W. Randolph, Suite 11-500,
Chicago, IL
60601
PLEASE TAKE NOTICE that on OCTOBER
17, 2003
theundersigned filedan original and
nine copies ofRESPONDENTS’ SUPPLEMENTAL ANSWERAND AFFIRMATIVE DEFENSES
with Ms. Dorothy Gunn, Clerk ofthe Illinois Pollution Control Board,
100 W. Randolph Street, Suite
11-500, Chicago, Illinois 60601, a copy ofwhich is attached and hereby served upon you.
cp~~
C
On~~the
Attorneys for Respondents
Mark A. LaRose
Clarissa C. Grayson
LaRose & Bosco, Ltd.
AttorneyNo. 37346
734 N. Wells Street
Chicago, IL
60610
(312) 642-4414
Fax (312) 642-0434
TifiS FILING IS SUBMITTED
ON RECYCLED
PAPER
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant
)
)
)
No. PCB 03-73
(Enforcement)
K F C LIV
lED
~
~
our
1
7
2003
STAIE OF IWNOIS
PolIut~0flControl
Board
)
RIVERDALE RECYCLING, INC.,
)
an Illinois corporation,
and
)
TRI-STATE DISPOSAL, INC.,
)
an Illinois corporation,
)
)
Respondents.
)
RESPONDENTS’ RIVERDALE
RECYCLING, INC.
AND
Tifi-STATE
DISPOSAL,
INC.’S SUPPLEMENTAL ANSWER
TO
COMPLAINT AND AFFIRMATIVE
DEFENSES
Respondents, RiverdaleRecycling, Inc. and Tri-StateDisposal, Inc. by their attorney, LaRose
& Bosco, Ltd. hereby answers Complainant’s complaint and state as follows:
COUNT I
OPEN DUMPING OF WASTE
1.
This complaint is brought on behalf ofthe PEOPLE OF THE STATE OF ILLINOIS by
JAMES E. RYAN, Attorney General ofthe
State ofIllinois, on his own motion and at his
request
of the
Illinois
Environmental
Protection
Agency
(“Illinois
EPA”)
pursuant
to
the
terms
and
provisions ofSection 31 ofthe Illinois Environmental Protection Act (“Act”), 415 ILCS 5/31(2002).
ANSWER:
Respondents RiverdaleRecycling, Inc. and Tn-State Disposal, Inc. are without
knowledge as to this complaint beingbrought by JAMES E. RYAN, Attorney General ofthe State
ofIllinois, on his own motion and at the request ofthe Illinois Environmental Protection Agency.
Further answering,
Respondents deny any liability under Section
31 ofthe Act.
-vs-
ANSWER:
Respondents make no answer to paragraph
9
as it states a legal conclusion.
To the extent that this paragraph requires an answer, Respondents
deny any liability under Section
21
of the Act.
10.
Section 3.26 ofthe Act, 415
IILCS
5/3.26
(2002), provides the following defmition:
“PERSON” is
an individual,
partnership, co-partnership, firm,
company,
limited
liability
company,
corporation,
association, joint
stock
company,
trust,
political
subdivision,
state
agency,
or any other legal
entity, or their
legal representative,
agent or assigns.
ANSWER:
Respondents make no answer to paragraph 10 as it states a legal conclusion.
To the extent that this paragraph requires an answer, Respondents deny any liabilityunder Section
3.26 ofthe Act.
11.
The Respondents, Illinois
corporations, are both “persons” as the term is defined in
the Act.
ANSWER:
Respondents makeno answer to paragraph 11
as it states a legal conclusion.
To the extent that this paragraph requires an answer, Respondents deny any liability under Section
3.26 ofthe Act.
12.
Section 3.53 ofthe Act, 415 ILCS
5/3.53
(2002), provides, in pertinent part as follows:
“WASTE”
means
any
garbage...or
any
other discarded
material,
including
any
solid,
liquid,
semi-solid,
or contained gaseous material resulting
from industrial,
commercial, mining and agricultural operations, and from community activities...
ANSWER:
Respondents make no answer to paragraph 12 as it states a legal conclusion.
To
the extent that this paragraph requires an answer, Respondents deny any liability under Section
3.53 ofthe Act.
13.
Sections 3.31
ofthe Act,
415 ILCS 5/3.31
(2002), provides, as follows:
4
“REFUSE” means waste.
ANSWER:
Respondents make no answer to paragraph 13 as it states a legal conclusion.
To the extent that this paragraph requires an answer, Respondents deny any liability under
Section
3.31 ofthe Act.
14.
The construction and demolition debris,
and the landscape waste, dumped outside of
the Permitted Area
is
“waste”
as
that
term is
defined by Section
3.53
of the Act and
therefore
“refuse” as defined by Section
3.31 ofthe Act, 415 ILCS
5/3.53
and
5/3.31
(2002).
ANSWER:
Respondents make no answerto paragraph 14
as it states a legal conclusion.
To the extent that this paragraphrequires an answer, Respondents deny any liability under Section
3.31
of the Act.
15.
Section 3.08 ofthe Act, 415 ILCS 5/3.08 (2002), provides, as follows:
“Disposal” means the discharge, deposit,
injection,
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 any constitute thereof may enter the
environment
or be
emitted
into the
air or
discharged into
any waters,
including
ground waters.
ANSWER:
Respondents makeno answer to paragraph 15 as it states a legal conclusion.
To the extent that this paragraph requires an answer, Respondents deny any liability under Section
3.08 ofthe Act.
16.
Section
3.43 ofthe Act, 415 ILCS
5/3.43
(2002), provides, as follows:
“Site”
means
any
location,
place,
tract of land,
and
facilities,
included
but
not
limited to buildings, and improvements used for purposes subject to regulation or
controlby this Act or regulations thereunder.
5
ANSWER:
Respondents makeno answer to paragraph 16 as itstates a legal conclusion.
To the extent that this paragraph requires an answer, Respondents deny any liability under Section
3.43 ofthe Act.
17.
•Respondents deposited waste outside of the Permitted Area in a manner that exposed
itto the air and to the environment.
The properties ofthe East and Northeast ofthe transfer station
where construction and demolition debris,
and landscape waste, were deposited, are therefore
“disposal sites”
as those terms are defined in the Act.
ANSWER:
Respondents deny the allegations contained in paragraph 17.
18.
Section 3.24 ofthe Act, 415
ILCS
5/3.24 (2002) provides, as follows:
“OPEN DUMPING” means the consolidation ofrefuse from one or more sources
at the disposal
site that does not fulfill the requirements ofa sanitary landfill.
ANSWER:
Respondents make no answerto paragraph 18 as itstates a legal conclusion.
To the extent that this paragraphrequires an answer, Respondents deny any liability under Section
3.24 ofthe Act.
19.
Section 3.41 oftheAct, 415 ILCS
5/3.41
(2002), provides, in pertinentpart, as follows:
“SANITARY
LANDFILL”
means
a
facility permitted
by
the
Agency
for
the
disposal ofwaste on land meeting the requirements ofthe Resource Conservation
and RecoveryAct, P.L
94-5
80
ANSWER:
Respondents make no answer to paragraph 19
as it states a legal conclusion.
To the extent that this paragraph requires an answer, Respondents deny any liability under Section
3.41
ofthe Act.
20.
The railroad property to theNortheast ofthe transfer station, and the areato the East of
the transfer station where landscape waste was accumulated, were not permittedby the EPAfor the
6
disposal ofwaste, and thus
did not fulfill the requirements of a “sanitary landfill” as defmed in the
Act.
ANSWER:
Respondents deny the allegations contained in paragraph 20.
21.
By consolidating waste from one ormore sources at disposal site that did not fulfill the
requirements ofa sanitarylandfill,Respondents, on oraboutDecember 2, 1999, caused and allowed
the open dumping ofwaste, and therebyviolated Section 21(a) ofthe Act, 415 ILCS
5/21(a)
(2002).
ANSWER:
Respondents deny the allegations contained in paragraph 21.
WHEREFORE, Respondents respectfullyrequest that the Board enteran order denying the
reliefrequested by Complainant in Count I..
COUNT II
CONDUCTING A WASTE STORAGE OPERATION WITHOUT A PERMIT
1-10.
Complainant realleges and incorporates by reference paragraphs
1
through
7,
and
paragraphs 10 through
12, ofCount I as paragraphs
1
through
10 ofthis Count II.
ANSWER:
Respondents reallege and incorporateby reference its answers to paragraphs
1
through 7, and paragraphs
10
through 12 of Count I as its paragraphs
1
through
10 ofthis Count
II.
11.
On March 12, 2001 Illinois EPA inspectors visited the Site, and notedthat two large
accumulations ofconstruction and demolition debri~had~beeiapiacedoutside~f,
~ndtotbe
southeast
of, the PermittedArea. On informationand belief, the Respondents placed the waste accumulations
at this location for the purpose ofseparating saleable metal debris, consisting ofless than seventy
five per cent
(75)
ofthe accumulatedwaste, prior to disposing ofthe residualwaste in a permitted
landfill.
7
ANSWER:
Respondents admit that on March
12,
2001,
an inspection
was conducted.
Respondents deny the remaining allegations contained in paragraph 11 ofCount II.
12.
Section 21 ofthe Act, 415
TLCS
5/21 (2002) provides, in pertinent part, as follows:
No person shall:
(d)
Conduct any waste-storage, waste-treatment, or waste-disposal operation:
1.
without
a
permit
granted
by
the Agency
or
in
violation
of any
conditions imposed by such permit..
ANSWER:
Respondents
make no answer to paragraph 12 of Count II as it states a legal
conclusion. To
the extent that this paragraph requires an answer, Respondents deny any liability
under Section 21 ofthe Act.
13.
The construction and
demolition debris
deposited by Respondents
outside of the
Permitted Area on or aboutMarch 21, 2001, is “waste” as that termis definedby Section 3.53 ofthe
Act, 415 ILCS
5/3.53
(2002).
ANSWER:
Respondents make no answer to paragraph 13 ofCount II as it states a legal
conclusion. To
the extent that this paragraph requires
an answer, Respondents deny any liability
under Section 3.53 ofthe Act.
14.
Section 3.46 ofthe Act, 415 ILCS
5/3.46
(2002), provides, as follows:
“Storage” meansthe containment ofwaste, either on a temporary basis orforaperiod
ofyears, in such a manner as not to constitute disposal.
ANSWER:
Respondents make no answer to paragraph 14 ofCount II as it states a legal
conclusion. To
the extent that this paragraph requires an answer, Respondents deny any liability
under Section 3.46 ofthe Act.
8
15.
The Respondents, on orabout March 12, 2001, placed the two waste accumulations
outside ofthe Permitted Area for the purpose ofremoving saleablerecyclable material, prior to the
waste’s ultimate disposal in a landfill. Respondents’ activities constituted waste “storage” asthat term
is defined by Section 3.46 ofthe Act, 415 ILCS
5/3.46
(2002).
ANSWER:
Respondents deny that on orabout March 12, 2001 theyplaced the two waste
accumulations outside ofthe permitted are forthe purpose ofremoving saleable recyclable material
prior to the waste’s ultimate disposal in a landfill.
Respondents makeno
answerto that portion of
paragraph 15 as to their alleged activities constitutingwaste “storage”as it states a legal conclusion.
To
the extent that this paragraph requires an answer, Respondents deny any liability under Section
3.46 of the Act.
16.
Respondents,
on
or about March
12,
2001,
conducted
a waste
storage operation
outside ofthe Permitted Area, and therefore in violation oftheir permit. The Respondents thereby
violated Section 21(d) ofthe Act, 415
JILCS
5/21(d)
(2002).
ANSWER:
Respondents deny that on or about March
12, 2001
they conducted a waste
storage
operation
outside
of
the
Permitted
Area,
and
therefore
in
violation
of their
permit.
Respondents make no answer to that portion ofparagraph 16 as to their alleged activities thereby
violating Section 21
ofthe Act
as it states a legal conclusion.
To
the extent that this paragraph
requires an answer, Respondents deny any liability under Section 21 ofthe Act.
First Affirmative Defense
The waste observed on December 2,
1999 and March 12, 2001 outside ofthe permitted area
was general construction and demolition debris (415 ILCS
5/3.78)
which
is authorized for storage
9
without a permit pursuant to Section 22.38 ofthe Act (415 ILCS
5/22.38).
Additionally, the debris
is
sorted within 48 hours ofreceipt; all non-recyclable general construction and demolition debris
is transported offsite in accordancewith all applicable federal, State and local requirements within
72
hours
of
its
receipt;
the
percentage
of incoming
non-recyclable
general
construction
and
deniolition debris is less than
25
of the total incoming material, as calculated on a daily basis; all
non-putrescible recyclable general construction or demolition debris is transported for recycling or
disposal within
6
months of its
receipt;
the facility does not
accept putrescible or combustible
material; the facility keeps adequate record keeping procedures that demonstrate compliance with
Section 22.38 ofthe Act and identify the source and transporter ofmaterial accepted at the facility;
the facility controlsodor, noise, combustion ofmaterials, disease vectors, dust and litter; the facility•
is
fenced, and it does not accept asbestos.
Respondents are therefore in compliance with the Act pursuant to
Section 22.38 ofthe Act
(415 ILCS
5/22.38).
Second Affirmative Defense
At
a
pre-enforcement
conference
held
on
September
15,
1999
in
Maywood,
illinois,
Respondents were advised by CliffGould and James Haennicke ofthe IEPA that it was acceptable
for Respondents to store general construction and demolition debris in any unpermitted area ofthe
Site pursuant to
Section 22.38 ofthe Act as long as proper notice was givento the IEPA and proper
procedures were followed.
Additionally, the facility shows information to Agency personnelwhen
requested regarding the acceptance ofgeneral construction or demolition debris.
When requested,
itprovides theAgencywith the name, address and telephonenumberofthe facility, the street address
and location ofthe facility, the date, ticket number, truck number (if applicable), the name of the
10
hauler, and the quantity of debris.
These procedures were
approved by Agency personnel Cliff
Gould and James Haennicke.
Therefore, the activities undertaken by the Respondents were both in
compliance with Section
22.38 ofthe Act and undertaken in a manner specifically suggested
and
approved by personnel in the Agency’s enforcement division.
WHEREFORE, Respondents respectfullyrequest that theBoard enteran order denying the
relief requested by Complainant in Count II.
Respectfully submitted,
By:
~
C
One ofPlaintiff’s Attorneys
Mark A. LaRose
Clarissa C. Grayson
LaRose & Bosco, Ltd.
Attorney No. 37346
734 N. Wells Street
Chicago,IL
60610
(312) 642-4414
Fax (312) 642-0434
11
CERTIFICATE OF SERVICE
The
undersigned,
an
attorney,
certifies
that
a
copy
of the
foregoing
REPONDENTS’
SUPPLEMENTAL ANSWERAND AFFIRMATIVE DEFENSES was served upon the following
persons by placing same in U.S. Mail, postage prepaid, this 17th Day of October, 2003.
Ms. Paula Becker Wheeler
Assistant Attorney General
Environmental Bureau
188 W.
Randolph, Suite 2001
Chicago, IL
60601
Mr. Christopher Grant
Assistant Attorney General
Environmental Bureau
188 W. Randolph, Suite 2001
Chicago, IL
60601
One of the Attorneys for Responden
Mark A. LaRose
Clarissa C.
Grayson
LaRose & Bosco,
Ltd.
AttorneyNo. 37346
734 N. Wells Street
Chicago,IL
60610
(312) 642-4414
Fax (312) 642-0434