BEFORE
TilE
ILLINOIS POLLUTION CONTROL BOARDREc~vED
C1EP~KSOFFICE-
REPUBLIC BANK OF CHICAGO, as
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LENA HALIKIAS, MICHAEL HALIKIAS,
NIKOLAS HALIKIAS, NOULA HALIKIAS
and PATRICIA HALIKIAS, as beneficiaries
of Tmst #223 4,
Complainants,
)
)
)
)
STINOCO, INC. (R&M),
)
)
Respondent.
)
NOTICE OF FILING
To:
Dorothy Gunn, Clerk
State of Illinois
Pollution Control Board
Suite 11-500
100 W. Randolph Street
Chicago, IL 60601
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph
Suite 11-500
Chicago, IL 60601
John Knittle
Illinois Environmental Protection Agency
1021 N. Grand Avenue East
P.O. Box 19276
Springfield, IL 62794
Andy Perellis
SeyfarthShaw LLP
55 East Monroe
Suite 4200
Chicago, IL 60603
Please take notice that on March 17, 2004, we have filed with the Office of the Clerk of the
Illinois Pollution Control Board, an original and ten (10) copies of
RESPONDENT SUNOCO, INC.’S
(R&M) ANSWER
TO COMPLAINT;
a copy of which is attached hereto and hereby served upon you.
APPEARANCES
for Counsels Jeffrey C. Fort and Letissa Carver Reid are also served upon you.
Dated: March 17, 2004
Jeffrey C. Fort
Letissa Carver Reid•
Sonnenschein Nath & Rosenthal LLP
8000 Sears Tower
Chicago, Illinois 60606
312.876.8000
Respectfull submitte
B~oftftomesfo~
Respondent Sunoco, Inc. (R&M)
THIS FILING IS BEING SUBMITTED ON RECYCLED PAPER
)
I
)
)
)
)
V.
MAR
172004
STATE OF ILLINOIS
POII~ti~~Control Boarcj
PCB 04-69
(Citizen’s Suit UST Enforcement)
RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
MAR 172004
STATE OF ILLINO IS
REPUBLIC BANK OF CHICAGO, as
)
Pollution Control Board
Trustee ofTrust #2234, ARISTOTLE HAL1KIAS,
)
LENA HALIKIAS, MICHAEL HALIKIAS,
)
NIKOLAS HALIKIAS, NOULA HALIKIAS
)
and PATRICIA HALIIKIAS, as beneficiaries
)
of Trust #2234,
)
PCB 04-69
Complainants,
)
(Citizen’s Suit UST Enforcement)
)
v.
)
)
SUNOCO, INC. (R&M),
)
)
Respondent.
)
APPEARANCE
Jeffrey C. Fort, of the law firm Soimenschein Nath & Rosenthal LLP, hereby enters an
appearance as counsel for Sunoco, Inc. (R&M). Jeffrey C. Fort is designated as the lead attorney
for purposes ofmail and phone contact pertaining to this proceeding.
Dated: March 17, 2004
Respectfully submitted,
SUNOCO, INC. (R&M)
By:___
Jeffr
.
ort
Jeffrey C. Fort
Letissa Carver Reid
Sonnenschein Nath & Rosenthal LLP
8000 Sears Tower
Chicago, Illinois 60606
312.876.8000
BEFORE
THE ILLINOIS POLLUTION CONTROL
BOA1~ECE~VED
CLERK’S OFFICE
MAR 17 2004
REPUBLIC BANK OF CHICAGO, as
Trustee ofTrust #2234, ARISTOTLE HALIKIAS,
LENA HALIKIAS, MICHAEL HALIKIAS,
NIKOLAS HALIKIAS, NOULA HALIKIAS
and PATRICIA HALIKIAS, as beneficiaries
ofTrust #2234,
Complainants,
v.
)
)
)
)
)
)
)
)
)
)
STATE OF ILLINOIS
Pollution
Control
Board
PCB 04-69
(Citizen’s Suit UST Enforcement)
SUNOCO, INC. (R&M),
)
)
Respondent.
)
APPEARANCE
Letissa Carver Reid, ofthe law firm Sonnenschein Nath & Rosenthal LLP, hereby enters
this appearance as additional counsel for Respondent Sunoco, Inc. (R&M).
Dated: March 17, 2004
Respectfully submitted,
SUNOCO, INC. (R&M)
Jeffrey C. Fort
Letissa Carver Reid
Sonnenschein Nath & Rosenthal LLP
8000 Sears Tower
Chicago, Illinois 60606
312.876.8000
RECEWED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR!~AR
172004
STATE OF ILLINOIS
REPUBLIC BANK OF CHICAGO, as
)
Pollution Control Board
Trustee of Trust #2234, ARISTOTLE HALIKIAS,
)
LENA HALIKIAS, MICHAEL HALIKIAS,
)
NIKOLAS HALIKIAS, NOULA HALIKIAS
)
and PATRICIA HALIIKIAS, as beneficiaries
)
of Trust #2234,
)
PCB 04-69
)
Complainants,
)
(Citizen’s Suit UST Enforcement)
)
v.
)
)
SUNOCO, INC. (R&M),
)
Respondent.
)
RESPONDENT SUNOCO, INC.’S ANSWER TO COMPLAINT
Respondent, SUNOCO, INC. (R&M) (“SUNOCO, INC.”), for itself alone and no other
party, hereby answers the Complaint of Republic Bank of Chicago, as Trustee of Trust #2234,
Aristotle Halikias, Lena Halikias, Michael Halikias, Nikolas Halikias, Noula Halikias, and
Patricia Halikias, as beneficiaries ofTrust #2234 (“Complainants”), as follows:
COMPLAINT:
1.
Republic Bank of Chicago, as Trustee of Trust #2234,
ARISTOTLE HALIKIAS, LENA HALIKIAS, MICHAEL HALIKIAS,
NIKOLAS
HALIKIAS,
NOULA
HALIKIAS
and
PATRICIA
HALIKIAS, as beneficiaries of Trust #2234 (collectively, the “Property
Owners”), by their attorneys, Seyfarth Shaw LLP, complain as follows
against SUNOCO, INC. (R&M), as successor in interest to Sun Oil
Company ofPennsylvania (“Sunoco”). Property Owners bring this action
for cost recovery pursuant to Section 31(d) of the Illinois Environmental
Protection Act (the “Act”), 415 ILCS
5/31(d).
Property Owners held title
to real estate commonly known as 960 North McLean Boulevard, in Elgin,
Illinois.
Releases of petroleum-related substances from underground
storage tanks on the Facility have contaminated soils and groundwater,
necessitating response actions by Property Owners. The releases resulted
from the actions and failures to act ofSunoco. Property Owners seek to
recover from Sunoco for the costs incurred and to be incurred in removing
the USTs, cleaning up contaminated soils and investigating and
remediating threats to groundwater.
ANSWER:
SUNOCO, INC. denies that it is liable for any releases of petroleum-related
substances alleged to have contaminated soils and groundwater in connection with the real estate
commonly known as 960 North McLean Boulevard, in Elgin, Illinois. SUNOCO, INC. admits
that Complainants purport to bring this action for cost recovery concerning the aforementioned
real estate pursuant to Section 31(d) of the Illinois Environmental Protection Act (the “Act”),
415 ILCS 5/31(d).
SUNOCO, iNC. is without knowledge or information sufficient to form a
belief as to the truth of the remaining allegations contained in paragraph 1, and on that basis they
are denied.
THE PARTIES
COMPLAINT:
2.
Republic
Bank of Chicago is trustee of Land Trust #2234. Land
Trust #2234 holds legal title to the property commonly known as 960
North McLean Boulevard, in Elgin, Illinois.
ANSWER:
SLTNOCO, INC. is without knowledge or information sufficient to form a belief
as to the truth ofthe allegations contained in paragraph 2, and they are on that basis denied.
COMPLAINT:
3.
Republic Bank of Chicago is a person within the meaning of 415
ILCS 5/3.315.
ANSWER:
Paragraph 3 states a legal conclusion to which no answer is required, and on that
basis is denied.
COMPLAINT:
4.
Aristotle Halikias, Lena Halikias, Michael Halikias, Nikolas
Halikias, Noula Halikias and Patricia Halikias are the beneficial owners of
Land Trust #2234.
ANSWER:
SUNOCO, iNC. is without knowledge or information sufficient to form a belief
as to the truth ofthe allegations contained in paragraph 4, and on that basis they are denied.
COMPLAINT:
5.
Aristotle Halikias, Lena Halikias, Michael Halikias, Nikolas
Halikias, Noula Halikias and Patricia Halikias are persons within the
meaning of415 ILCS 5/3.315.
-2-
ANSWER:
Paragraph
5
states a legal conclusion to which no answer is required, and on that
basis is denied.
COMPLAINT:
6.
On information and belief, Sunoco is a Pennsylvania corporation
with its principal place ofbusiness in Philadelphia, Pennsylvania. Sunoco
is the successor,in interest to Sun Oil Company of Pennsylvania. Sunoco
is a person within the meaning of415 ILCS
5/3.3 15.
ANSWER:
SUNOCO, iNC. admits that it is a Pennsylvania corporation with its principal
place ofbusiness in Philadelphia, Pennsylvania. SUNOCO, INC. admits that it is the successor
in interest to Sun Oil Company of Pennsylvania. The last allegation contained in paragraph 6
states a legal conclusion to which no answer is required, and on that basis is denied.
COMMON ALLEGATIONS
COMPLAINT:
7.
Prior to April 1981, Sun Oil Company ofPennsylvania owned the
property commonly known as 960 N. McLean Boulevard, Elgin, Illinois
(“the Facility”).
ANSWER:
SIJNOCO, INC. admits that Sun Oil Company of Pennsylvania owned the
property commonly known as 960 N. McLean Boulevard, Elgin, Illinois for some period prior to
April 1981.
COMPLAINT:
8.
Prior to April 1981, the Facility was the site of a gas station
containing five underground storage tanks (“UST5”).
ANSWER:
SUNOCO, INC. admits that five underground storage tanks (“UST5”) were
located at the property commonly known as 960 N. McLean Boulevard, Elgin, Illinois prior to
April 1981. SUNOCO, INC. admits that a gas station was located at this property.
COMPLAINT:
9.
Prior to April 1981, Sun Oil Company ofPennsylvania owned five
USTs located at the Facility.
-3-
ANSWER:
SUNOCO, INC. admits that Sun Oil Company ofPennsylvania owned five USTs
located at the property commonly known as 960 N. McLean Boulevard, Elgin, Illinois prior to
April 1981.
COMPLAINT:
10.
The USTs had capacities of approximately 8,000 (1 tank), 6,000 (2
tanks), and
550
(2 tanks) gallons, respectively.
ANSWER:
SUNOCO, INC. is without knowledge or information sufficient to form a belief
as to the truth ofthe allegation contained in paragraph 10, and on that basis is denied.
COMPLAINT:
11.
Prior to April 1981, the three USTs with capacities of 8,000
gallons and 6,000 were used to contain gasoline (hereinafter, the “UST
system”). One
550
gallon tank was used to store used oil, and the other
550
gallon tank was used to store heating oil.
ANSWER:
SUNOCO, INC. is without knowledge or information sufficient to form a belief
as to the truth ofthe allegations contained in paragraph 11, and on that basis they are denied.
COMPLAINT:
12.
Prior to April 1981, Sun Oil Company of Pennsylvania leased the
property to Clyde Korlaske, who operated the service station.
ANSWER:
SUNOCO, INC. is without knowledge or information sufficient to form a belief
as to the truth ofthe allegations contained in paragraph 12, and it is on that basis denied.
COMPLAINT:
13.
Korlaske ceased his business selling gasoline in April 1981 and
subleased the property to Auto Ecology L & R, Inc.
ANSWER:
SUNOCO, INC. is without knowledge or information sufficient to form a belief
as to the truth of the allegations contained in paragraph 13, and on that basis they are denied.
COMPLAINT:
14.
Auto Ecology L & R, Inc., did not sell gasoline or operate the UST
system that was present on the property. In fact, following the sublease,
the UST system was no longer used or operated by anyone, including the
Property Owners.
ANSWER:
SUNOCO, INC. denies the allegations contained in paragraph 14.
-4-
COMPLAINT:
15.
On or about June 18, 1981, Sun Oil Company of Pennsylvania
deeded the real property to Korlaske.
ANSWER:
SUNOCO, INC. is without knowledge or information sufficient to form a belief
as to the truth ofthe allegations contained in paragraph
15,
and they are on that basis denied.
COMPLAINT:
16.
After purchase, Korlaske, in October 1981, sold the real estate to
Republic Bank of Chicago Trust #2234, and Auto Ecology L & R, Inc.,
continued to operate its muffler and brake business for a period of time
before ceasing business. Since that time, the property has been vacant.
ANSWER:
SUNOCO, INC. is without knowledge or information sufficient to form a belief
as to the truth ofthe allegations contained in paragraph 16, and on that basis they are denied.
COMPLAINT:
17.
The UST system was in use before November 8, 1984, but was no
longer in use on that date.
ANSWER:
SUNOCO, iNC. is without knowledge or information sufficient to form a. belief
as to the truth ofthe allegations contained in paragraph 17, and on that basis they are denied.
COMPLAINT:
18.
Sunoco, as successor to Sun Oil Company of Pennsylvania, owned
the UST system immediately before the discontinuation ofits use.
ANSWER:
SIJNOCO, INC. denies the allegations contained in paragraph 18.
COMPLAINT:
19.
The Property Owners have conducted soil investigations of the
Facility. The soil investigations indicate that the UST system leaked
petroleum-related substances into the soil and groundwater at the Facility.
ANSWER:
SUNOCO, INC. is without knowledge or information sufficient to form a belief
as to the truth ofthe allegations contained in paragraph 19, and on that basis they are denied.
COMPLAINT:
20.
The Property Owners filed a notification of the release with the
Illinois Emergency Management Agency and a 20-day certification with
the Illinois Environmental Protection Agency.
ANSWER:
.SUNOCO, INC. is without knowledge or information sufficient to form a belief
as to the truth ofthe allegations contained in paragraph 20, and they are on that basis denied.
-5-
COMPLAINT:
21.
Property Owners have requested that Sunoco fulfill its legal
obligations to perform corrective action regarding the USTs. Given
Sunoco’s failure to do so, Property Owners are proceeding to remediate
the contamination caused by the leaking UST system owned and formerly
owned by Sunoco.
ANSWER:
SUNOCO, INC. denies that it is liable for any releases of petroleum-related
substances alleged to have contaminated soils and groundwater in connection with the real estate
commonly known as 960 North McLean Boulevard, in Elgin, Illinois. SUNOCO, INC. is
otherwise without knowledge or information sufficient to form a belief as to the truth of the
remaining allegations contained in paragraph 21, and on that basis they are denied.
COUNT I
(Violation of 415 ILCS
5/21(a))
COMPLAINT:
22.
The allegations of paragraphs 1 to 21 above are incorporated by
reference as though set forth in full.
ANSWER:
SUNOCO, INC. realleges and incorporates by reference its answers to paragraphs
1 to 21 above as its answer to paragraph 22 of Count I.
COMPLAINT:
23.
Section 21(a) ofthe Act, 415 ILCS 5/21(a), states:
No person shall (a) Cause or allow the open dumping ofany waste.
ANSWER:
SUNOCO, INC. states that Section 21(a) ofthe Act, 415 ILCS 5/21(a), speaks for
itself as to its terms, and denies any allegations inconsistent therewith or any mischaracterization
thereof.
COMPLAINT:
24.
Section 3.305 of the Act, 415 ILCS
5/3.305,
defines “open
dumping” as follows:
The consolidation of refuse from one or more sources at a disposal site
that does not fulfill the requirements ofa sanitary landfill.
-6-
ANSWER:
SUNOCO, INC. states that Section 3.305 of the Act, 415 ILCS
5/3.305,
speaks
for itself as to its terms, and denies any allegations inconsistent therewith or any
inischaracterization thereof.
COMPLAINT:
25.
Section 3.185 of the Act, 415 ILCS
5/3.185
defines “disposal” as
follows:
The discharge, deposit, dumping, spilling, leaking or placing of any waste
or hazardous waste into or on any land or water or into any well so that
such waste or hazardous waste or constituerit thereof may enter the
environment or be emitted into the air or discharged into any waters,
including ground waters.
ANSWER:
SUNOCO, INC. states that Section 3.185 of the Act, 415 ILCS
5/3.185,
speaks
for itself as to its terms, and denies any allegations inconsistent therewith or any
mischaracterization thereof.
COMPLAINT:
26.
Section
5/3.385
of the Act, 415 ILCS
5/3.385,
defines “refuse” as
“waste.”
ANSWER:
SUNOCO, INC. states that Section 5/3.385 of the Act, 415 ILCS
5/3.385,
speaks
for itself as to its terms, and denies any allegations inconsistent therewith or any
mischaracterization thereof.
COMPLAINT:
27.
Section
3.535
of the Act, 415 ILCS
5/3.535
defines “waste” as
follows:
Any garbage, sludge from a waste treatment plant, water supply treatment
plant, or air pollution control facility or other discarded material, including
solid, liquid, semi-solid or contained gaseous material resulting from
industrial, commercial, mining and agricultural operations, and from
community activities.
. .
ANSWER:
SUNOCO, INC. states that Section 3.535 of the Act, 415 ILCS
5/3.535,
speaks
for itself as to its terms, and denies any allegations inconsistent therewith or any
mischaracterization thereof.
.
-7-
COMPLAINT:
28.
Petroleum constituents became a “waste” when they were
discharged from the UST system into the soils beneath the Facility, at
which time the Facility became a “disposal site.”
ANSWER:
Paragraph 28 states legal conclusions to which no answers are required, and on
this basis is denied.
COMPLAINT:
29.
Sunoco owned the UST system at the time of the petroleum
discharge and/or otherwise possessed sufficient control or had authority to
prevent the discharges from occurring.
ANSWER:
SUNOCO, iNC. denies that it is liable for any releases of petroleum-related
substances alleged to have contaminated soils and groundwater in connection with the real estate
commonly known as 960 North McLean Boulevard, in Elgin, Illinois. SUNOCO, INC. is
otherwise without knowledge or information sufficient to form a belief as to the truth of the
remaining allegations contained in paragraph 29, and on that basis they are denied.
COMPLAINT:
30.
Sunoco caused or allowed open dumping of a waste into the
environment by allowing the USTs to leak petroleum constituents onto the
soils and groundwater beneath the Facility and by allowing the petroleum
constituents to remain on the property.
ANSWER:
SUNOCO, INC. denies that it is liable for any releases of petroleum-related
substances alleged to have contaminated soils and groundwater in connection with the real estate
commonly known as 960 North McLean Boulevard, in Elgin, Illinois. SUNOCO, iNC. is
otherwise without knowledge or information sufficient to form a belief as to the truth of the
remaining allegations contained in paragraph 30, and on that basis they are denied.
COMPLAINT:
31.
The acts and omissions as stated above constitute a violation of
Section 21(a) ofthe Act, 415 ILCS 5/21(a).
ANSWER:
SUNOCO, iNC. denies that it is liable for any releases of petroleum-related
substances alleged to have contaminated soils and groundwater in connection with the real estate
-8-
commonly known as 960 North McLean Boulevard, in Elgin, Illinois. Paragraph 31 further
states a legal conclusion to which no answer is required.
PRAYER FOR RELIEF
SUNOCO, INC. denies that Complainants are entitled to recover from SUNOCO, INC.
the damages or any other relief sought in Count I of the Complaint.
COUNT II
(Violation of415 ILCS 5/21(d)(2))
COMPLAINT:
32.
The allegations of paragraphs 1 to 30 sic above are incorporated
by reference as though set forth in full.
ANSWER:
SUNOCO, INC. realleges and incorporates by reference its answers to paragraphs
1 to 31 above as its answer to paragraph 32 ofCount II.
COMPLAINT:
33.
Section 21(d)(2) ofthe Act, 415 ILCS 5/21(d)(2) states:
No person shall:
. . .
(d) conduct any waste-storage, waste-treatment, or
waste-disposal operation
. .
.
(2) in violation of any regulations or
standards adopted by the Board under this Act.
ANSWER:
SUNOCO, INC. states that Section 21(d)(2) of the Act,
415 ILCS 5/21(d)(2),
speaks for itself as~to its terms, and denies any allegations inconsistent therewith or any
mischaracterization thereof.
COMPLAINT:
34.
By allowing petroleum constituents to be released from the UST
system, Sunoco conducted a waste-disposal operation at a disposal site
that does not fulfill the requirements of a
sanitary landfill and is in
violation of regulations and standards adopted by the Board under the Act.
ANSWER:
SUNOCO,
INC. denies that it is liable for any releases of petroleum-related
substances alleged to have contaminated soils and groundwater in connection with the real estate
commonly known as 960 North McLean Boulevard, in Elgin, Illinois. Paragraph 34 further
states a legal conclusion to which no answer is required.
-9-
COMPLAINT:
35.
Sunoco violated Section
‘5/21(d)(2)
of the Act, 415 ILCS
5/21 (d)(2).
ANSWER:
SUNOCO, INC. denies that it is liable for any releases ofpetroleum-related
substances alleged to have contaminated soils and groundwater in connection with the real estate
commonly known as 960 North McLean Boulevard, in Elgin, Illinois. SUNOCO, iNC. denies
the allegation contained in paragraph
35.
PRAYER FOR RELIEF
SUNOCO, INC. denies that Complainants are entitled to recover from SUNOCO, INC.
the damages or any other relief sought in Count II ofthe Complaint.
COUNT III
(Violation of 415 ILCS
5/21(e))
COMPLAINT:
36.
The allegations of paragraphs 1 to 35 above are incorporated by
reference as though set forth in full.
ANSWER:
SUNOCO, INC. realleges and incorporates by reference its answers to paragraphs
1 to 35 above as its answer to paragraph 36 ofCount III.
COMPLAINT:
37.
Section 21(e) ofthe Act, 415 ILCS
5/21(e),
provides:
No person shall: Dispose,
...
or abandon any waste,
...
except at a site or
facility which meets the requirements of this Act and of regulations and
standards thereunder.
ANSWER:
SUNOCO, iNC. states that Section 21(e) of the Act, 415 ILCS 5/21(e), speaks for
itself as to its terms, and denies any allegations inconsistent therewith or any mischaracterization
thereof.
COMPLAINT:
38.
Sunoco disposed of and/or abandoned wastes at the Facility.
ANSWER:
SUNOCO, INC. denies that it is liable for any releases of petroleum-related
substances alleged to have contaminated soils and groundwater in connection with the real estate
-
10
-
commonly known as 960 North McLean Boulevard, in Elgin, Illinois. SUNOCO, INC. denies
the allegations contained in paragraph 38.
COMPLAINT:
39.
The Facility was not a site that met the statutory and regulatory
requirements for disposal or abandonment ofwastes.
ANSWER:
Paragraph 39 states a legal conclusion to which no answer is required.
COMPLAINT:
40.
Sunoco violated Section 5/21(e) of the Act, 415 ILCS 5/21(e), by
disposing and/or abandoning wastes consisting of petroleum constituents
and soils contaminated with petroleum constituents at the Facility.
ANSWER:
SUNOCO, INC. denies that it is liable for any releases of petroleum-related
substances alleged to have contaminated soils and groundwater in connection with the real estate
commonly known as 960 North McLean Boulevard, in Elgin, Illinois. SUNOCO, INC. denies
the allegations contained in paragraph 40.
PRAYER FOR RELIEF
SUNOCO, iNC. denies that Complainants are entitled to recover from SUNOCO, iNC.
the damages or any other relief sought in Count III ofthe Complaint.
COUNT IV
(Violation of 415 ILCS 5/57.1(a) and related regulations)
COMPLAINT:
41.
The allegations of paragraphs 1 to 40 above are incorporated by
reference as though set forth in full.
ANSWER:
SUNOCO, INC. realleges and incorporates by reference its answers to paragraphs
1 to 40 above as its answer to paragraph 41 of Count IV. SUNOCO, INC. states that to the
extent that the allegations contained in Count IV relate to violations of the regulations of the
Office of the State Fire Marshal, such allegations require no answers as these allegations are
frivolous and have been stricken by the Board.
-11
-
COMPLAINT:
42.
Section 57.1(a) ofthe Act, 415 ILCS 5/57.1(a) states:
An owner or operator of an underground storage tank who meets the
definition ofthis Title XVI: Petroleum Underground Storage Tanks shall
be required to conduct tank removal, abandonment and repair, site
investigation, and corrective action in accordance with the requirements of
the Leaking Underground Tank Program.
ANSWER:
SLJNOCO, INC. states that Section 57.1(a) ofthe Act, 415 ILCS 5/57.1(a), speaks
for itself as to its terms, and denies any allegations inconsistent therewith or any
mischaracterization thereof.
COMPLAINT:
43.
Section 57.2 ofthe Act, 415 ILCS 5/57.2, states that “owner” shall
have the same definition as that given in Subtitle I of the Hazardous and
Solid Waste Amendments of 1984 of the Resource Conservation and
Recovery Act (“RCRA”), 42 U.S.C.
§
6901.
ANSWER:
SUNOCO,
INC. states that Section 57.2 of the Act, 415 ILCS 5/57.2, speaks for
itself as to its terms, and denies any allegations inconsistent therewith or any mischaracterization
thereof.
COMPLAINT:
44.
The definition of “owner” given under RCRA, 42 U.S.C.
§
6991(3)(B), is:
In the case of any underground storage tank in use before November 8,
1984, but no longer in use on November 8, 1984, any person who owned
such tank immediately before the discontinuation of its use.
ANSWER:
SUNOCO,
INC. states that 42 U.S.C.
§
699 1(3)(B) speaks for itself as to its
terms, and denies any allegations inconsistent therewith or any mischaracterization thereof.
COMPLAINT:
45.
The
Board has adopted regulations to implement Title XVI of the
Act at 35 Ill.. Adm. Code Part 732.
ANSWER:
SUNOCO, INC. states that 35 Ill. Adm. Code Part 732 speaks for itself as to its
terms, and denies any allegations inconsistent therewith or any mischaracterization thereof.
COMPLAINT:
46.
Section 732.103 defined “owner” as:
In the case of any underground storage
tank in use before November 8,
1984, but no longer in use on that date, any person who owned such
-
12
-
underground storage tank immediately before the discontinuation of its
use. (Derived from 42 U.S.C.
§
6991)
ANSWER:
SUNOCO, INC. states that Section 732.103 speaks for itself as to its terms, and
denies any allegations inconsistent therewith or any mischaracterization thereof.
COMPLAINT:
47.
Pursuant to the state and federal RCRA definition, Sunoco is the
owner ofthe UST System sic and the other USTs located on the Facility.
ANSWER:
Paragraph 47 states a legal conclusion to which no answer is required.
COMPLAINT:
48.
Sunoco has failed to (a) conduct tank removal, (b) abandonment
and repair, (c) site investigation, and (d) corrective action, in accordance
with the requirements of Title XVI of the Act and implementing
regulations adopted by the Board and the Office of State Fire Marshal.
ANSWER:
“The Board lacks authority to enforce the regulations of the Office ofthe State
Fire Marshal. Therefore, the allegations in Courit IV relating to violations of the Office of the
State Fire Marshal are frivolous and the Board strikes those allegations.” (See December 4, 2003
Order of the Board at p. 1.) Paragraph 48 contains allegations that have been stricken by the
Board to which no answers are required, and is on this basis denied.
COMPLAINT:
49.
Sunoco has violated Sections 57.1(a),
57.5,
57.6, and 57.7 of the
Act and implementing regulations adopted by the Board and the Office of
State Fire Marshal.
ANSWER:
“The Board lacks authority to enforce the regulations ofthe Office of the State
Fire Marshal. Therefore, the allegations in Count IV relating to. violations of the Office ofthe
State Fire Marshal are frivolous and the Board strikes those allegations.”
(~
December 4, 2003
Order of the Board at p. 1.) Paragraph 49 contains allegations that have been stricken by the
Board to which no answers are required, and is on this basis denied.
PRAYER FOR RELIEF
SUNOCO, NC. denies that Complainants are entitled to recover from SUNOCO, INC.
the damages or any other relief sought in Count IV ofthe Complaint.
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AFFIRMATIVE DEFENSES
In addition to the foregoing denials, SUNOCO, INC. asserts the following affirmative
defenses. SUNOCO, INC. reserves the right to add additional affirmative defenses warranted by
the facts and applicable law.
FIRST AFFIRMATIVE
DEFENSE
1.
SUNOCO, INC. denies each and every allegation of the Complaint except those which
SUNOCO, INC. has specifically and explicitly heretofore admitted.
SECOND AFFIRMATIVE DEFENSE
2.
Neither the Complaint nor any purported causes of action contained therein allege facts
sufficient to state a claim upon which relief can be granted.
THIRD AFFIRMATIVE DEFENSE
3.
To the extent that the causes of action stated in Counts I, II and III are valid and
SUNOCO, INC. is found liable, which liability SUNOCO, INC. denies, Complainants are also
liable for non-compliance.
FOURTH AFFIRMATIVE DEFENSE
4.
Complainants’ claims are barred, in whole or in part, by the applicable statutes of
limitations and/or the doctrine oflaches.
FIFTH AFFIRMATIVE DEFENSE
5.
Complainants’ claims are barred, in whole or in part, by the doctrine ofunclean hands.
SIXTH AFFIRMATIVE DEFENSE
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6.
Complainants’ claims are barred by the statute of repose and/or by the doctrine of
estoppel.
SEVENTH AFFIRMATIVE DEFENSE
7.
To the extent fault is an element of any ofthe causes ofaction asserted by Complainants,
the conduct ofparties other than SUNOCO, INC. is the sole or proximate cause ofthe injuries or
damages claimed by Complainants.
EIGHTH AFFIRMATIVE DEFENSE
8.
To the extent fault is an element of any ofthe causes ofaction asserted by Complainants,
the fault of all who may be added as parties should be compared and allocated to determine
respective obligations ofthe parties for contribution.
NINTH AFFIRMATIVE DEFENSE
9.
Complainants’ right, if any, to recover damages from SUNOCO, INC. is limited to
prospective injunctive relief only, and only in connection with releases of petroleum-related
substances for which SUNOCO, INC. is found to be liable.
TENTH AFFIRMATIVE DEFENSE
10.
Complainants’ recovery is barred, in whole or in part, by Complainants’ failure to
mitigate any damages allegedly sustained.
ELEVENTH AFFIRMATIVE DEFENSE
11.
Complainants’ recovery is barred, in whole or in party, because Complainants allowed
the alleged contamination to remain unremediated on the property and therefore SUNOCO, INC.
is not liable for any damages associated with such contamination.
TWELFTH AFFIRMATIVE DEFENSE
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12.
SUNOCO, INC. did not own the property when the alleged releases of petroleum-related
substances occurred.
WHEREFORE, SUNOCO, INC. prays forrelief as follows:
A.
That Complainants take nothing by virtue of the Complaint, and that the
Complaint be dismissed with prejudice;
B.
For costs ofsuit incurred herein; and
C.
For such other and further relief as the Board deems just and proper.
Dated: March 17, 2004
Jeffrey C. Fort (ARDC 851132)
Letissa Carver Reid (ARDC 6255721)
Sonnenschein Nath & Rosenthal LLP
8000 Sears Tower
Chicago, Illinois 60606
312.876.8000
I 1697908.1
submitted,
for
Respondent Sunoco, Inc. (R&M)
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CERTIFICATE OF SERVICE
I, Letissa Carver Reid, one of the attorneys for Respondent Sunoco, Inc. (R&M), certify
that I have served a copy of the foregoing: (1)
NOTICE OF FILING;
(2) APPEARANCES;
and (3) RESPONDENT
SUNOCO,
INC.’S ANSWER
TO COMPLAINT
upon:
Andrew H. Perelis, Esq.
Seyfarth, Shaw LLP
55 East Monroe Street
Chicago, Illinois 60603
312.346.8000
via U.S. Mail, postage prepaid, on this 17th day ofMarch, 2004.
~ssa~arv~.
