RECEIVEI)
LAW
OFFICES OF
CLERK’S OFFICE
CAREY S. ROSEMARIN, P.C.
847-897-8000
OCT 2 4 2003
500 SKOKIE BOULEVARD. SUITE 510
S~6~3V~IflNOlS
NORTHBROOK, ILLINOIS 60062
~
October 23, 2003
Dorothy M. Gunn
Clerk, Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Suite 11-500
Chicago, IL 60601-3218
Re:
Mate Technologies, Inc. v. FlCAinerica Corporation
Enforcement
-
Citizen’s Complaint
DearMs.Gunn:
Please find enclosed for filing one original and ten copies ofeach ofthe Notice of Filing,
Complaint, and Certificate ofService in the above-referenced matter. All ofthe afore-mentioned
documents are printed on recycled paper.
I
would greatly appreciate your returning a file-
stamped copy to me in the enclosed self-addressed stamped envelope. Thank you for your
assistance.
Very truly yours,
Care
.
osemarin
cc:
Timothy
J.
Hammersmith, Esq.
BEFORE THE ILLiNOIS POLLUTION
RECE1VE~
‘~‘
r~’S
CONTROLOFFICEBOARD
MATE TECHNOLOGIES, INC.
)
~ ~
OCT 24
tLLU4
z003
/
tion Control Boar
Complainant,
)
Po’
iU
v.
)
PCBNo.O~
)
(EnforcementX)
)
F.T.C. AMERICA CORPORATION,
)
)
Respondent.
)
)
NOTICE OF FILING
To:
Masuda, Funai, Eifert & Mitchell, Ltd.
Registered Agent for F.I.C. AMERICA CORPORATION
One E. Wacker Dr.
Suite 3200
Chicago
,
IL 60601-2002
Please take notice that on this 23rd day ofOctober 2003, this law firm filed with the
Clerk of the Illinois Pollution Control Board a Citizen’s Complaint on behalf ofMate
Technologies, Inc. A copy of the complaint is attached and served upon you.
Failure to file an answer to this complaint within 60 days may have severe consequences.
Failure to answer will mean that all allegations in the complaint will be taken as if admitted for
purposes ofthis proceeding. Ifyou have, any questions about this procedure, you should contact
the hearing officer assigned to this proceeding, the Clerk’s Office or an attorney.
35
Ill. Adm.
Code §103.204(f).
MATE TECHNOLOGIES, iNC.
By:
Carey S. Rosemarin (Atty. No. 6181911)
Law Offices ofCarey S. Rosemarin, P.C.
500 Skokie Boulevard, Suite 510
Northbrook, IL 60062
847-897-8000
312-896-5786 (fax)
CLERK’S OFFICE
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
Pollu~j
STATE
OCT
0OfCont~,~
2 4
ILLINOIS
2003
0Bj
MATE TECHNOLOGIES, INC.
)
Oarcf
)
Complainant
)
v.
)
PCBNoJ~1
)
(Enforcement X)
)
F.I.C.
AMERICA CORPORATION,
)
)
Respondent.
)
COMPLAINT
Statement ofthe Case
1.
Mate Technologies, Inc. (“Mate”) by its undersigned attorney, brings this Citizen’s
Complaint for injunctive relief and cost recovery under Section 31(d) ofthe Illinois
Environmental Protection Act (the “Act”). 415 ILCS 5/31(d). Mate alleges that F.I.C. America
Corporation (“FIC”) has violated fundamental requirements ofIllinois’ used oil regulations, solid
waste regulations and hazardous waste regulations. Mate also alleges that FTC has violated the
statutory prohibitions on indiscriminate waste handling, air pollution and water pollution. FIC
acted in total disregard of Illinois’ plenary statutory and regulatory structure, which is designed to
assure environmentally sound management of wastes. FIC thereby violated numerous provisions
ofIllinois environmental law.-
Parties
2.
Mate is an Illinois corporation having its principal place ofbusiness at
1695
Todd Farm
1
Drive, Elgin, Illinois. At all relevant times, Mate owned the property located at 750 Rohlwing
Road in Itasca, Illinois, including a 52,800 square-foot building situated thereon (the “Property”).
As a corporation, Mate is a “person” within the meaning of 415 ILCS
5/3.26.
3.
FTC is an Illinois corporation. On information and belief, FTC has its principal place of
business at 485 East Lies Road, in Carol Stream, Illinois, and is a wholly-owned subsidiary of
Futaba Industrial Co., Ltd., ofOkazaki, Japan. As a corporation, FTC is a “person” within the
meaning of4l5 ILCS
5/3.26.
Relevant Facts
4.
Beginning in March 2002, FIC continuously operated the Property for the purpose of
manufacturing automobile components. On information and belief, such manufacturing
consisted primarily ofwelding and other processes, in which metal is fashioned into automobile
mufflers and other parts.
5.
On information and belief, the metal that FTC uses as a feedstock is coated with oil, and
FTC’s operations have caused vast quantities ofsuch oil to disseminate uncontrolled on and about
the Property and to be released into the environment. On information and belief, such
dissemination occurs directly, as it does when the oil-coated surfaces are impacted during
stamping and/or similar operations, causing, oil droplets to scatter. And, on information and
belief, it occurs indirectly, as it does when extreme heat is applied to the oil-coated surfaces
during welding, thus causing the oil to vaporize and subsequently condense on virtually all
surfaces in and out ofthe building. Additionally, on information and belief, FTC’s operations
have caused some or all ofthe oil to become contaminated with chromium and other metals.
6.
The air within the building on the Property is circulated by the heating, ventilating and air
2
conditioning (“HVAC”) system. The HVAC system collects air within the building, directs it
through a number offilters, and emits some air to the exterior.
7.
FTC has at all times failed to contain or in any way control the oil disseminated from its
operations. As a direct result, the oil has been released into the environment by virtue ofits
escape through windows, doors and other openings in the building and via storm sewers on the
Property. It has also been inhaled by persons on and about the Property. And it has settled on
surfaces throughout the Property, coating them with a black film.
8.
Virtually all ofthe oil contamination remaining on ‘the Property results from FTC’s
manufacturing operations. At the commencement ofFTC’s operation ofthe Property, the interior
ofthe building on the Property was freshly painted.
9.
Mate expressed its concern about environmental conditions at and about the Property as
early as June 18, 2003, and requested copies ofany correspondence between FTC and any
government agency pertaining to the release of hazardous substances at the Property. FTC did not
respond to this request. Rather, on information and belief, FTC subsequently “pressure washed”
some areas affected by the oil contamination and painted over surfaces without removing all of
the contamination.
10.
On at least one occasion, October 1, 2003, FIC conducted such pressure washing and
disposed of the resulting rinsate in the storm sewers on the Property.
11.
Mate’s representatives inspected the Property on or about September 8, 2003 and
collected samples of the disseminated oil on the Property. On information and belief, the
samples ofthe oil were representative ofthe material generated by FTC’ s operations throughout
the entire time it operated the Property. The samples were submitted for laboratory analysis.
3
12.
The analytical results showed the following:
i) water in the storm sewer contained metals (including total chromium at 0.15 mg/L) and
polynuclear aromatic hydrocarbons (including benzo(a)pyrene, a known carcinogen, at 0.02
mg/L);
ii) oil on an exposed wall (that had not been painted over) containing total petroleum
hydrocarbons (“TPH,” including 3.9 mg/wipe ofoil);
iii) oil on an exposed wall (that had not been painted over) containing metals (including
total chromium at up to 3,000 ug/ft2);
iii) oil on one ofthe filters from the HVAC system containing total petroleum
hydrocarbons (including 3.9 mg/wipe ofoil);
iv) oil on one ofthe filters from the HVAC system containing metals (including total
chromium at 21,000 mg/kg, and chromium determined by the toxic chemical leaching procedure
(“TCLP”) at 7.2 mg/L, respectively); and
v) oil on one of the filters from the HVAC system containing total halogens (including
extractable organic halogens at 2,150 mg/kg and chloride at 4,000 mg/kg).
13.
The black film is visible on surfaces throughout the building. It remains a threat to the
health and the environment because even to the extent that the oil has been temporarily coated
with paint, the oil will have to be removed and properly disposed in accordance with applicable
regulations at a future date.
4
COUNT I
(Violation of35 IlL Adm. Code Part 739,
Used Oil Storage)
14.
Mate realleges Paragraphs 1 through 13, above, as if fully set forth in this Count I.
15.
Part 739,’ containing the “Standards for the Management of Used Oil,” defines “used oil”
as “any oil that has been refined from crude oil, or any synthetic oil, that has been used and as a
result ofsuch use is contaminated by physical or chemical impurities.” §739.100.
16.
Laboratory analysis ofa wipe sample offilm on one of the walls shows that it had a TPH
content of 3.9 mg/wipe ofoil, thus demonstrating the substance comprising the film was refined
from crude oil.
17.
Additional laboratory analyses of wipe samples ofthe film on the walls also demonstrate
that the oil contains physical or chemical impurities, notably metals. On information and belief,
FTC used the oil on the metal feedstock to prevent corrosion. Further, on information and belief,
the oil became contaminated with metals during FIC’s industrial operations. Therefore, FTC’s
use ofthe oil caused it to become contaminated by physical or chemical impurities, and the oil
that was disseminated in and around the Property is “used oil” within the meaning of§739.100.
18.
Part 739 defines a “used oil generator” as “any person, by site, whose act or process
produces used oil or whose act first causes used oil to become subject to regulation.” §739.100.
FTC is a used oil generator because, on information and belief, its acts first caused the oil on the’
metal to come within the definition of “used oil,” and thus become subject to Part 739.
For convenience, citations have been abbreviated in the text to include only numbers of
regulatory parts and sections; and unless otherwise noted, citations refer to 35 Ill. Adm. Code.
(E.g., “Part 739” refers to 35111. Adm. Code, Part 739, and “~720.110”refers to 35111. Adm.
Code §720.110.)
5
19.
Part 739 incorporates the definitions in §720.110.
§
739.100. Additionally, the Act
defines “waste,” in pertinent part, as “discarded material, including solid, liquid, semi-solid, or
contained gaseous material resulting from industrial, commercial, mining and agricultural
operations.” 415 ILCS 5/3.53. FIC’s disseminated used oil was discarded material, and thus
waste within the meaning of 415 TLCS 5/3.53.
20.
“Storage” is defined as “the holding ofhazardous waste for a temporary period, at the end
ofwhich the hazardous waste is treated, disposed of, or stored elsewhere.” §720.110. FIC’s
wanton dissemination ofused oil into the environment and in and around the Property (and in
and on the individuals thereon), constitutes “storage” under this definition.
21.
Alternatively, the Act defines “storage” as “the containment ofwaste, either on a
temporary basis or for a period ofyears, in such manner as not to constitute disposal.” 415 ILCS
5/3.46. FTC’s wanton dissemination ofused oil into the environment and in and around the
Property (and in and on the individuals thereon), constituted “storage” within the meaning of
415 ILCS 5/3.46.
22.
Part 739 states that “used oil generators shall not store used oil in units other than tanks,
containers, or units subject to regulation under 35 Ill. Adm. Code 724 or 725.” §739.122(a).
Part 739 defines “tank” as “any stationary device, designed to contain an accumulation ofused
oil which is constructed primarily of non-earthen materials (e.g. wood, concrete, steel, plastic)
which provides structural support.” §739.100. Part 739 defines “container” as “any portable
device in which a material is stored, transported, treated, disposed of, or otherwise handled.”
§739.100. The units subject to regulation under Parts 724 or 725 include items such as surface
impoundments, waste piles, and incinerators; they do not include the atmosphere, sewers,
6
exposed surfaces, or people. None of the locations in, or on which FTC stored its used oil was a
tank, container, orunit subject to regulation under Parts 724 or 725. Therefore, FIC violated
§739.122(a).
Prayer for Relief: Count I
WHEREFORE, Complainant Mate respectfully requests that this Board grant the
following relief:
A.
Find that Respondent FTC has violated §739.122(a);
B.
Order the Respondent to cease and desist from further violation ofthe Act and
associated regulations;
C.
Order the Respondent to remediate the Property and lawfully remove all used oil
from any and all areas in or on which it has been stored in violation of§739.122(a);
D.
Award Complainant all costs it has incurred in investigating the effects of FTC’s
used oil handling practices. (For purposes ofthis Citizens’ Complaint only, such costs are not
intended to include attorneys’ fees.)
E.
Assess against the Respondent a monetary penalty ofup to fifty thousand dollars
($50,000) for each violation of§739.122(a), and up to an additional ten thousand dollars
($10,000) for each day that the violation has continued.
F.
Grant such other and further relief as this Board deems appropriate.
COUNT II
-
(Violation of 35 Iii. Adm. Code Part 739,
Used Oil Disposal)
23.
Mate realleges Paragraphs 1 through 19, above, as if fully set forth in this Count IT.
7
24.
The United States Environmental Protection Agency presumes that used oil is to be
recycled unless a used oil handler disposes ofused oil, or sends used oil for disposal.
§739.110(a). To the extent that a used oil generator disposes ofused oil, that person must do so
in compliance with Part 739, Subpart I. §739. 120(b)(5).
25,
Under Part 739, Subpart I, used oil that is hazardous must be disposed in compliance with
the hazardous waste management requirements of Parts 703, 720 through 726, and 728.
§739.181(a). And used oil that is not hazardous must be disposed in accordance with Parts 807
through 815 and 40 CFR Parts 257 and 258. §739.181(b). FTC utterly disregarded the
requirements of Part 739, Subpart I, particularly §739.18 1.
Hazardous used oil
26.
The hazardous waste regulations define “solid waste” as “any discarded material that is
not excluded by Section 72 1.104(a) or that is not excluded pursuant to 35 Ill. Adm. Code
720.130 and 720.13 1.” §72l.102(a)(l).
27.
A material is “discarded” if it is abandoned. §721.102(a)(2). And a material is a solid
waste if it is abandoned by being “accumulated, stored, or treated (but not recycled) before or in
lieu ofbeing abandonedby being disposed of, burned or incinerated.” §721(b)(3). By its wanton
emission ofthe used oil into the atmosphere, into the storm sewers into and on individuals, and
on and about the Property, and leaving it there unattended, FTC has accumulated and stored the
used oil as stated in §721(b)(3). Therefore, FTC’s used oil was a “discarded material” and thus a
“solid waste” within the meaning of~721.l02(a)(1).
28.
A solid waste, as defined in §721.102, is a “hazardous waste” if “it exhibits any of the
characteristics of hazardous waste identified in Subpart C ofthis Part 721.” §72l.103(a)(2)(A).
8
Further, under §721.124, which is part of Subpart C, a solid waste is a hazardous waste if it
contains any of the contaminants listed in §721.124(b) in their respective threshold
concentrations. §721.124(a).
29.
Some or all ofthe used oil generated by FIC was hazardous because it exhibited the
toxicity characteristic ofhazardous waste. It contained 7.2 mg/L ofchromium as determined by
the TCLP test, thus exceeding the, threshold concentration of 5.0 mg/L set forth in §721.124(b).
Therefore, FTC’s used oil was a hazardous waste within the meaning of§721.103(a)(2)(A).
30.
Part 720 defines disposal as “the discharge, deposit, injection, dumping, spilling, leaking,
orplacing ofany solid waste or hazardous waste into or on any land or water so that such solid
waste or hazardous waste or any constituent thereofmay enterthe environment or be emitted into
the air or discharged into any water, including groundwaters.” §720.110. FTC’s wanton
dissemination ofused oil in and around the Property, its discharge of rinsate containing used oil
into the storm sewer, and its emission ofused oil into the atmosphere, separately and
collectively, constituted disposal within the meaning of §720.110.
31.
Part 703 prohibits any person from conducting any hazardous waste storage or disposal
operation at a facility for which a permit has not been issued under the Resource Conservation
and Recovery Act (“RCRA”). §703.121(a).
32.
A “facility” is defined, in pertinent part, as “all contiguous land and structures, other
appurtenances, and improvements on the land used for treating, storing, or disposing of
hazardous waste.” §720.110. FTC used the Property for storing and disposing ofhazardous
waste. Therefore, the Property constitutes a “facility” within the meaning of §720.110.
33.
On information and belief, FTC did not obtain a RCRA permit for the Property.
9
Therefore, FTC’s disposal of hazardous used oil waste on and about the Premises violated
§703.121(a), and thus violated §739.181(a).
Non-hazardous used oil
34.
Alternatively, some of the used oil generated by FTC was non-hazardous, and thus could
only be disposed in accordance with Parts 807 through 8l5~§739.181(b).
35.
The requirements ofParts 810 through 817 were intended to supersede the requirements
of Part 807, and persons and facilities subject to Parts 810 through 817 are not subject to Part
807. §807.105(c). FTC is subjectto Part 815, pertaining to certain landfills, and is thus not
subject to Part 807.
36.
The definitions in §810.103 applyto Part 815. §810.101.
37.
Part 810 defines “solid waste” to include “special waste,” which in turn, includes
“industrial process waste.” §810.103. The Act defines “industrial process waste,” in pertinent
part, as “any liquid, solid, semi-solid, or gaseous waste generated as a direct or indirect result of
the manufacture of a product or the performance ofa service.” 415 ILCS 5/3.17. The Act
defines “waste,” in pertinent part, as “discarded material, including solid, liquid, semi-solid, or
contained gaseous material resulting from industrial, commercial, mining and agricultural
operations.” 415 ILCS 5/3.53. FTC generated the used oil as a direct result ofmanufacturing
automobile parts, and discarded it by wantonly disseminating it throughout the Property and
releasing it into the environment. Therefore, FTC’s used oil is an industrial process waste, and as
such, it is also a special waste and a solid waste within the meaning of §810.103.
38.
Part 810 defines “disposal” in pertinent part, as follows: “If the solid waste is
accumulated and not confined or contained to prevent its entry into the environment, or there is
10
no certain plan for its disposal elsewhere, such accumulation shall constitute disposal.”
§
810.103. FTC’s wanton dissemination ofits used oil on and about the Property, as well as into
the atmosphere and the storm sewers constitutes “accumulation and failure to confine” within the
meaning ofthis definition. Additionally, on information and belief, FTC had no certain plan for
the disposal of the used oil elsewhere. Therefore, FTC’s dissemination ofthe used oil on and
about the Property and into the atmosphere and storm sewers constitutes disposal under
§810.103.
39.
Part 810 defines a “landfill,” in pertinent part, as “a unit or part of a facility in or on
which waste is placed and accumulated over time for disposal, and which is not a land
application unit, a surface impoundment or an underground injection well.” §810.103.
A.
Part 810 defines a “unit” as a “contiguous area used for solid waste disposal.”
§
810.103. Therefore, the Property, as operated by FTC, is a “unit” within the meaning of
§810.103.
B.
Part 810 defines a “facility” as “a “site and all equipment and fixtures on a site
used to treat, store or dispose of solid or special wastes. A facility consists ofan entire solid or
special waste treatment, storage or disposal operation. All structures used in connection with or
to facilitate the waste disposal operation shall be considered a part ofthe facility. A facility may
include, but is not limited to, one or more solid waste disposal units, buildings, treatment
systems, processing and storage operations, and monitoring stations.” §810.103. FTC’s disposal
of its used oil waste on and about the Property caused the Property to become a “facility” within
the meaning ‘of§810.103.
C.
Part 810 defines a “land application unit” in pertinent part as “an area where
11
wastes are agronomically spread over or disked into land or otherwise applied so as to become
incorporated into the soil surface.” The Property, as operated by FTC, is not a land application
unit with the meaning of
§
810.103.
D.
Part 810 defines surface impoundment, in pertinent part, as “a natural topographic
depression, a man-made excavation, or a diked area....” §810.103. The Property is not a
surface impoundment within the meaning of
§
810.103.
E.
The Property is not, and does not contain, an underground injection well.
40.
FTC’s wanton dissemination, placement and accumulation ofused oil waste throughout
the Property has caused the Property to fall within the scope ofthe definition of “landfill” as
defined in §810.103.
41.
Part 815 contains procedural requirements for all landfills exempt from the requirement
to obtain a permit under 415 TLCS 5/21(d), which reads, in pertinent part,”
. . .
no permit shall be
required for.
. .
any person conducting a waste-storage, waste-treatment, or waste-disposal
operation for wastes generated by such person’s own activities which are stored, treated, or
disposed within the site where such wastes are generated...”
42.
The Act defines “site” as “any location, place, tract of land, and facilities, including but
not limited to buildings, and improvements used for purposes subject to regulation or control by
this Act or regulations thereunder.” 415 ILCS 5/3.45. FTC’s use of the Property for generation,
storage and disposal of used oil waste caused the Property to be subject to regulation and control
by the Act and regulations thereunder. Therefore, the Property is a “site” within the meaning of
the Act.
‘
43.
Pursuant to 415 ILCS 5/21(d), FTC was ‘exempt from the requirement to obtain a permit,
12
because FTC stored and disposed its used oil wastes on the same site at which FTC generated such
wastes. And because FTC caused the Property to become a landfill within the meaning of
§810.103, the Property
became subject to Part 815.
44. Part 815 requires that “all landfills regulated under this Part shall file an initial facility
report with the Agency as specified in this Subpart to provide information concerning location
and disposal practices ofthe facility.” §815.201.
45. On information and belief, FTC has not filed the report required by §815.201, and
therefore, has violated §815.201. In so doing,
it
has violated §739.181(b).
Prayer for Relief: Count II
WHEREFORE, Complainant Mate respectfully requests that this Board grant the
following relief:
A.
Find that Respondent FTC has violated §739.181 and;
B.
Order the Respondent to cease and desist from further violation of the Act and
associated regulations;
C.
Order the Respondent to remediate the Property and lawfully remove all used oil
from any and all areas in or on which it has been disposed in violation of §739.18 1;
D.
Award Complainant all costs it has incurred in investigating the effects of FIC’s
used oil handling practices. (For purposes of this Citizens’ Complaint only, such costs are not
intended to include attorneys’ fees.)
E.
Assess against the Respondent a monetary penalty of up to fifty thousand dollars
($50,000) for each violation of,~739.181(a), and up to an additional ten thousand dollars
($10,000) for each day that the violation has continued.
13
F.
Grant such other and further relief as this Board deems appropriate.
COUNT III
(Violation of 35 Iii. Adm. Code Part 815: Solid Waste Disposal)
46.
Mate realleges Paragraphs 1 through 21, and 34 through 44, above, as if fully set forth in
this Count III.
47.
On information and belief, FTC has not filed the report required by §815.201, and
therefore, has violated §815.201.
Prayer for Relief: Count III
WHEREFORE, Complainant Mate respectfully requests that this Board grant the
following relief:
A.
Find that Respondent FTC has violated §815.201;
B.
Order the Respondent to cease and desist from further violation of the Act and
associated regulations;
C.
‘Order the Respondentto remediate the Property and lawfully remove all used oil
from any and all areas in or on which it has been disposed in violation of §815.201;
D.
Award Complainant all costs it has incurred in investigating the effects ofFIC’s
waste handling practices. (For purposes ofthis Citizens’ Complaint only, such costs are not
intended to include attorneys’ fees.)
‘
‘
E.
Assess against the Respondent a monetary penalty ofup to fifty thousand dollars
($50,000) for each violation of§815.201, and up to an additional ten thousand dollars ($10,000)
for each day that the violation has continued.
F.
Grant such other and further relief as this Board deems appropriate.
14
COUNT TV
(Violation of35 Ill. Adm. Code Part
722:
Hazardous Waste Generation)
48.
Mate realleges Paragraphs 1 through 17, above, as if fully set forth in this Count IV.
49.
Part
739 identifies certain types ofused oil that are not regulated by Part 739, but rather
by other parts ofIllinois’ plenary waste regulatory structure. In particular, mixtures ofused oil
and hazardous wastes that are listed in Part 721, Subpart D, are regulated under Parts 703, 720
through 726, and 728. §739.110(b).
50.
Part 739 establishes a rebuttable presumption that used oil containing more than 1,000
ppm halogens has been mixed with such a listed hazardous waste. §739.1 10(b)(1)(B).
51.
Some or all ofFTC’s used oil contained more than 1,000 ppm total halogens and was
therefore subject to regulation as a hazardous waste under Parts 703 and 720 through 726.
§739.1 l0(b)(1)(A).
52.
Part 722 requires persons who generate solid waste, as defined in §721.102, to determine
if that waste is hazardous. §722.111.
53.
Mate realleges Paragraph 26, above, as if fully set forth in this Count IV.
54.
Mate realleges Paragraph 27, above, as if fully set forth in this Count IV.
55.
The Act defines “generator” as “any person whose acto ro process produces waste.” 415
ILCS 5/3.12. FTC’s processes produced waste oil and therefore FTC was a generator ofwaste.
But, on information and belief, FTC did not determine ifits solid waste was hazardous. FTC thus
violated §722.111.
Prayer for Relief: Count TV
WHEREFORE, Complainant Mate respectfully requests that this Board grant the
following relief:
15
A.
Find that Respondent FIC has violated §722.111;
B.
Order the Respondent to cease and desist from further violation ofthe Act and
associated regulations;
C.
Order the Respondent to remediate the Property and lawfully remove all
hazardous used oil waste from any and all areas in or on which it has been improperly stored or
disposed as a result ofits violation of §722.111;
D.
Award Complainant all costs it has incurred in investigating the effects ofFTC’s
waste handling practices. (For purposes ofthis Citizens’ Complaint only, such costs are not
intended to include attorneys’ fees.)
E.
Assess against the Respondent a monetary penalty ofup to twenty-five thousand
dollars ($25,000) for each day that FTC violated §722.111.
F.
Grant such other and further relief as this Board deems appropriate.
COUNT V
(Violation of35 Ill. Adm. Code Part
722:
Hazardous Waste Storage)
56.
Mate realleges Paragraphs 48 through 51, and Paragraphs 26 and 27, above, as if fully set
forth in this Count V.
57.
A “generator” is defined as “any person, by site, whose act or process produces hazardous
waste identified or listed in 35 Ill. Adm. Code 721 or whose act first causes a hazardous waste to
become subject to regulation.” §721.110. FTC is a generator of hazardous waste because, on
information and belief, its industrial processes first caused the hazardous waste to become
subject to regulation.
58.
“A generator that accumulates hazardous waste for more than 90 days is an operator of a
16
sbrage facility and is subject to the requirements of35 Ill. Adm. Code 724 and 725 and the
permit requirements of35 Ill. Adm. Code 702, 703 and 705..
. .“
§722.134(b). On information
and belief, FTC has accumulated hazardous waste throughout the Property for more than 90 days.
59.
Mate realleges Paragraphs 31 and 32, above, as if fully set forth in this County V.
60.
On information and belief, FIC did not obtain a RCRA permit forthe Property.
Therefore, FTC’s storage of hazardous waste on and about the Premises violated §703.121(a).
Prayer for Relief: Count V
WHEREFORE, Complainant Mate respectfully requests that this Board grant the
following relief:
A.
Find that Respondent FTC has violated §703.121(a);
B.
Order the Respondent to cease and desist from further violation ofthe Act and
associated regulations;
C.
Order the Respondent to remediate the Property and remove all hazardous used oil
waste from any and all areas in or on which it has been stored in violation of
§
703.121(a);
D.
Award Complainant all costs it has incurred in investigating the effects ofFIC’s
waste handling practices. (For purposes of this Citizens’ Complaint only, such costs are not
-
intended to include attorneys’ fees.)
E.
Assess against the Respondent a monetary penalty ofup to twenty-five thousand
dollars ($25,000) for each day that FTC violated §703.121(a).
F.
Grant such other and further relief as this Board deems appropriate.
17
COUNT VI
(Violation of 35 Ill. Adm. Code Part
722:
Hazardous Waste Disposal)
61.
Mate realleges Paragraphs 48 through 51, Paragraphs 26 and 27, and Paragraphs 30
through 32, above, as if fully set forth in this Count VI.
62.
On information and belief, FTC did not obtain a RCRA permit for the Property.
Therefore, FTC’s disposal ofhazardous waste on and about the Premises violated §703.121(a).
Prayer for Relief: Count VI
WHEREFORE, Complainant Mate respectfully requests that this Board grant the
following relief:
A.
Find that Respondent FTC has violated §703.121(a);
B.
Order the Respondent to cease and desist from further violation ofthe Act and
associated regulations;
-
C.
Order the Respondent to remediate the Property and remove all hazardous used oil
waste from any and all areas in or on which it has been disposed in violation of §703.121(a);
D.
Award Complainant all costs it has incurred in investigating the effects of FIC’s
waste handling practices. (For purposes ofthis Citizens’ Complaint only, such costs are not
intended to include attorneys’ fees.)
-
E.
Assess against the Respondent a monetary penalty ofup to twenty-five thousand
dollars ($25,000) for each day that FTC violated §703.121(a).
F.
Grant such other and further relief as this Board deems appropriate.
18
COUNT VII
(Violation of 415 ILCS 5/21(e): Statutory Prohibition of Waste Storage and Disposal)
63.
Mate realleges Paragraphs 1 through 13, above, as if fully set forth in this Count VII.
64.
The Act’s prohibition ofuncontrolled waste storage and disposal states, in pertinent part,
No person shall...
(e) Dispose, treat, store or abandon any waste, or transport any waste into this
State for disposal, treatment, storage or abandonment, except at a site or facility
which meets the requirements of this Act and ofregulations and standards
thereunder.
415 ILCS 5/21(e).
65.
Mate realleges Paragraph 21, above, as if fully set forth in this Count VII.
66.
The Act defines “disposal” as “the discharge, deposit, injection, dumping, spilling,
leaking or placing of any waste or hazardous waste into or on any land or water or into any well
so that such waste or hazardous waste or any constituent thereof may enter the environment or be’
emitfed into the air or discharged into any waters, including ground waters. 415 ILCS 5/3.08.
FTC’s wanton dissemination ofused oil into the environment and in and around the Property (and
in and on the individuals thereon), constitutes “disposal” under this definition.
67.
Mate realleges Paragraphs 37 through 44, above, as if fully set forth in this Count VII.
68.
On information and belief, FTC has not filed the report required by §815.201, and
therefore, has violated §815.201.
69.
Therefore, FTC has violated 415 TLCS 5/21(e) by disposing of wastes at a facility that
does not meet the requirements ofthis Act and ofregulations and standards thereunder.
Prayer for Relief: Count VII
WHEREFORE, Complainant Mate respectfully requests that this Board grant the
19
following relief:
A.
Find that Respondent FIC has violated 415 TLCS 5/21(e);
B.
Order the Respondent to cease and desist from further violation of the Act and
associated regulations;
C.
Orderthe Respondent to remediate the Property and lawfully remove all used oil
waste from any and all areas in or on which it has been stored and/or disposed in violation of415
TLCS 5/21(e);
D.
Award Complainant all costs it has incurred in investigating the effects of FTC’s
waste handling practices. (For purposes ofthis Citizens’ Complaint only, such costs are not
intended to include attorneys’ fees.)
E.
Assess against the Respondent a monetary penalty ofup to fifty thousand dollars
($50,000) for each violation of415 TLCS 5/21(e), and up to an additional ten thousand dollars
($10,000) for each day that the violation has continued.
F.
Grant such other and further relief as this Board deems appropriate
COUNT VIII
(Violation of 415 ILCS 5/9(a): Statutory Prohibition of Air Pollution)
70.
Mate realleges Paragraphs -1 through 13, above, as if fully set forth in this Count VTTT.
71.
The Act states, in pertinent part, as follows:
No person shall:
(a) Cause or threaten or allow the discharge or emission of any contaminant into the
environment in any State so as to cause or tend to cause air pollution in Illinois, either
alone or in combination with contaminants from other sources, or so as to violate
20
regulations or standards adopted by the Board under this Act.
415
ILCS 5/9(a).
72.
The Act defines “contaminant” as “any solid, liquid, or gaseous matter, any odor, or any
form ofenergy, from whatever source.” 415 TLCS 5/3.06. The oil generated by FTC’s industrial
processes is a “contaminant” within the meaning ofthe Act.
73.
The Act defines “airpollution” as “the presence in the atmosphere ofone or more
contaminants in sufficient quantities and ofsuch characteristics and duration as to be injurious to
human, plant, or animal life, to health, or to property, or to unreasonably interfere with the
enjoyment of life or property.” 415 ILCS 5/3.02. The oil emitted to the atmosphere by FTC’s
industrial operations has injured the Property by causing areas ofthe property to be coated with a
black film. For the same reason, it has also unreasonably interfered with the enjoyment ofthe
Property. FIC’s emission ofoil has also been injurious to human health because it has been
inhaled by persons in and near the Property. FTC’s emission ofused oil thus falls within the
scope ofthe term, “air pollution,” as defined by the Act.
74.
Because FTC tended to cause, and did cause, air pollution at the Property, FIC violated
the prohibition in 415 ILCS 5/9(a).
Prayer for Relief: Count VIII
WHEREFORE, Complainant Mate respectfully requests that this Board grant the
following relief:
A.
Find that Respondent FTC has violated 415 ILCS 5/9(a);
B.
Order the Respondent to cease and desist from further violation of the Act and
associated regulations;
-
21
C. Order the Respondent to remediate the Property and lawfully remove all us~doil
from any and all areas in or on which it has been improperly discharged or emitted by
virtue
of
FIC’s violation of 415 TLCS 5/9(a).
D. Award Complainant all costs it has incurred in investigating the effects of FIC’s
waste handling practices. (For purposes ofthis Citizens’ Complaint only, such costs are not
intended to include attorneys’ fees.)
E.
Assess against the Respondent a monetary penalty ofup to fifty thousand dollars
($50,000) for each violation of 415 ILCS 5/9(a), and up to an additional ten thousand dollars
($10,000) for each day that the violation has continued.
F.
Grant such other and further relief as this Board deems appropriate
COUNT IX
(Violation of 415 ILCS 5/21(e): Statutory Prohibition ofWater Pollution)
75.
Mate realleges Paragraphs 1 through 13, above, as if fully set forth in this Count IX.
76.
The Act states, in pertinent part, as follows:
No person shall:
(a) Cause or threaten or allow the discharge ofany contaminants into the environment in
any State so as to cause or tend to cause water pollution in Illinois, either alone or in
combination with matter from other sources, or so as to violate regulations or standards
adopted by the Pollution Control Board under this Act.
415
TLCS 5/12(a).
77.
Mate realleges Paragraph 72, as if fully set forth in this Count IX.
78.
The Act defines “water pollution” as “such alteration ofthe physical, thermal, chemical,
biological or radioactive properties ofany waters ofthe State, or such discharge ofany
22
contaminant into any waters ofthe State, as will or is likely to create a nuisance or render such
waters harmful or detrimental or injurious to public health, safety or welfare, or to domestic,
commercial, industrial, agricultural, recreational, or other legitimate uses, or to livestock wild
animals, birds, fish, or other aquatic life.” 415 TLCS 5/3.55.
79.
The storm sewers on the Property lead to Springbrook Creek, which runs through Itasca,
Illinois, and subsequently, to Salt Creek, which is also partly or wholly in Illinois. The Act
defines “waters” as “all accumulations ofwater, surface and underground, natural, and artificial,
public and private, or parts thereof, which are wholly or partially within, flow through, or border
upon this State.” 415 TLCS 5/3.56. Springbrook Creek and Salt Creek are thus within the scope
of”waters ofthe State” as used in the Act.
80.
On information and belief, by discharging oil wastes into the storm sewers leading to
Springbrook Creek, FTC altered the physical and chemical properties ofSpringbrook Creek in
such manner as was likely to create a nuisance and render such waters harmful, detrimental, and
injurious to public health, safety and welfare, ‘and to commercial and other legitimate uses.
81.
By wantonly and intentionally discharging oil into the storm sewer at the Property, and
thus into Springbrook Creek, FTC has caused, threatened and allowed the discharge of
contaminants so as to cause and tend to cause water pollution in Illinois.
82.
Illinois regulations prohibit the discharge of any contaminant into the waters ofthe Sate
from a point source except in compliance with a permit issued under the National Pollutant
Discharge Elimination System (“NPDES”). §309.102.
83.
The Illinois regulations adopt the definitions of the federal Clean Water Act with respect
to terms relating to NPDES. §301.325. “Point source” is such a term, and is defined as “any
23
discernible, confined, and discrete conveyance, including but not limited to, any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal
feeding operation, landfill leachate collection system, vessel or other floating craft from which
pollutants are or may be discharged. 40 CFR
§
122.2. The term, “pollutant” includes solid waste
and industrial waste. 40 CFR
§
122.2.
84.
The oil generated by FTC’s industrial processes is solid waste and industrial waste, and
thus a “pollutant.” Further, the storm sewer is a discrete conveyance from which pollutants are
discharged, in this case to Spring Lake. Thereforç, the storm sewer on the Property is a point
source within the meaning of 40 CFR
§
122.2.
85.
On information and belief, FTC did not obtain an NPDES permit for the discharge of its
oil wastes via the storm sewer on the Property.
86.
Discharge permit ILR005471 was issued for the Property. That permit allows solely
discharges of “storm
water,” which it defines as “water runoff, snow melt
runoff, and surface
runoff and drainage.” The oil waste that FTC caused to be discharged to the storm sewer was not
storm water, and therefore such discharge(s) were not authorized by discharge-permit
TLR005471.
87.
Therefore, FTC violated the prohibition of415 TLCS 5/12(a) because it caused, threatened
and allowed the discharge of contaminants into the environment so as to cause or tend to cause
water pollution in Illinois, and because it violated §309.102 by discharging contaminants in
absence of an NPDES permit.
Prayer for Relief: Count IX
WHEREFORE, Complainant Mate respectfully requests that this Board grant the
24
following relief:
A.
Find that Respondent FTC has violated 415 ILCS 5/12(a);
B. Order the Respondent to cease and desist from further violation of the Act and
associated regulations;
C.
Order the Respondent to remediate the Property and lawfully remove all used oil
from any and all areas in or on which it has been improperly discharged by virtue ofFTC’s
violation of415 ILCS 5/12(a);
D.
Award Complainant all costs it has incurred in investigating the effects ofFTC’s
waste handling practices. (For purposes ofthis Citizens’ Complaint only, such costs are not
intended to include attorneys’ fees.)
E.
Assess against the Respondent a monetary penalty ofup to ten thousand dollars
for each day of violation of 415 TLCS 5/12(a).
F.
Grant such other and further relief as this Board deems appropriate
Respectfully submitted,
MATE TECHNOLOGIES, INC.
Carey S. Rosemarin, Esq. (Atty. No. 6181911)
Law Offices ofCarey S. Rosemarin, P.C.
500 Skokie Boulevard, Suite 510
Northbrook, TL 60062
847-897-8000
312-896-5786 (fax)
By:
25
CERTIFICATE OF SERVICE
I, Carey S. Rosemarin, an attorney, hereby certif~,’that I caused a copy of the
foregoing Notice of Filing and Complaint to be served upon the parties listed on the Service List
below, by depositing same with Federal Express on October 23, 2003.
/
Care
.
osemarin
L ffices of Carey S. Rosemarin, P.C.
0 Skokie Boulevard, Suite 510
Northbrook, IL 60062
847-897-8000
312-896-5786 (Fax)
Service List
Dorothy M. Gunn
Masuda, Funai, Eifert & Mitchell, Ltd.
Clerk ofthe Illinois Pollution Control Board Registered Agent for
100 West Randolph Street
F.T.C. AMERICA CORPORATION
James R. Thompson Center, Suite 11-500
One E. Wacker Dr.
Chicago, IL 60601-3218
Suite 3200
Chicago
,
IL 60601-2002
RECEIVED
CLERK’S OFFICE
CERTIFICATE OF SERVICE
oci 2 4 2003
STATE OF
ILLINOIS
I, Carey S. Rosemarin, an attorney, hereby certif~’that I caused a
cp~ML~t1óheContro!Board
foregoing Notice of Filing and Complaint to be served upon:
Masuda, Funai, Eifert & Mitchell, Ltd.
Registered Agent for
F.T.C. AMERICA CORPORATION
One E. Wacker Dr.
Suite 3200
Chicago
,
IL 6060 1-2002
by certified mail, return receipt requested, on October 23, 2003.
Cares’ S,--~e’ arm
Law,
ices ofCarey S. Rosemarin, P.C.
50&’Skokie Boulevard, Suite 510
Northbrook, IL 60062
847-897-8000
312-896-5786 (Fax)
