BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN, Attorney General
)
HIcsOFF,C~
State of Illinois,
)
t4AYO52004
Complainant,
)
PSEOL
vs.
)
No. PCB No.
04-
/4’2-~
(Enforcement
-
Land &
SMITHFIELD PROPERTIES,
L.L.C.
)
Water)
an Illinois limited liability
company, WOOTON CONSTRUCTION,
LTD.,
an Illinois corporation,
and
CHICAGO SUN-TIMES,
INC.,
a
Delaware corporation,
Respondents.
NOTICE OF FILING
TO:
Mr. Charles
E. Alexander,
P.C.
Janine M.
Landau-Esser
400. West Huron Street
Quarles & Brady
Chicago,
Illinois 60610
500 W. Madison Street
Suite 3700
Chicago,
Illinois 60661
PLEASE TAKE NOTICE that
I have today filed with the Office
of the Clerk of the Illinois Pollution Control Board a Complaint,
Notice of Filing, and a Certificate of Service on behalf of the
People of the State of Illinois,
a copy of which
is attached and
herewith served upon you.
Section 103.204(f)
of the Pollution Control Board Procedural
Rules,
35
Ill. Adm.
Code 103.204(f)
provides:
“Failure to file an
answer to this complaint within 60 days may have severe
consequenqes.
Failure to answer will mean that all allegations
in the complaint will be taken as
if admitted for purposes of his
proceeding.
If you have any questions about this procedure,
you should contact the hearing officer assigned to this
proceeding,
the Clerk’s Office or an attorney.”
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
State of Illinois
BY:
_________________
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau
188 W.. Randolph St.,
20th Flr.
Chicago,
IL 60601
(312)
814-3816
DATE:
May 5,
2004
G:\Enviroumental Enforcement\Z BEREKET-A~\Sm±thfie1dNotice
.
wpd
THIS FILING IS SUBMITTED ON RECYCLED PAPER
COMPLAINT
I.
VIOLATIONS
BY SMITHFIELD AND WOOTON
COUNT
I
FAILURE TO PERFORM SITE EVALUATION AND CLASSIFICATION
1.
This Co~plaint is brought on behalf of the People of
the State of Illinois,
by LISA MADIGAN, Attorney General of the
State of Illinois,
on her own motion,
and at the request of the
Illinois Environmental Protection Agency (“Illinois EPA”)
pursuant to the terms and provisions of Section 31
of the
Illinois Environmental Protection Act
(“Act”), 415 ILCS 5/31
(2002)
2.
At all times relevant to this Complaint,
Smithfield
Properties,
L.L.C.
(“Smithfield”)
was and is an Illinois limited
liability company.
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
)
CL1~1~
LISA MADIGAN, Attorney General
)
State of Illinois,
)
STI4T~OF
Complainant,
)
PoJiuj~0~
0t-~’~)1S
~
L~J~rcJ
vs.
)No.
PCB
No.
(Enforcement-Land
&
SMITHFIELD PROPERTIES,
L.L.C.
•)Water)
an Illinois limited liability
company, WOOTON CONSTRUCTION,
LTD.,
an Illinois corporation, and
CHICAGO SUN-TIMES,
INC.,
a Delaware
)
corporation,
)
Respondents.
—1—
3.
At all times relevant to this Complaint,
Wooton
Construction,
Ltd.
(“Wootan”)
was and is an Illinois corporation.
4.
At all times relevant to this Complaint,
the piece of
land where the alleged violations occurred is located at 222
South Racine Avenue,
Chicago, Illinois
(“Site”).
The Site used
to be an industrial area which has now been developed into 42
town home units.
For a number of years the Chicago Sun-Times,
Inc.,
a Delaware corporation,
(“Sun-Times”)
used the Site as a
borne for its Daily News fleet maintenance garage.
5.
Historically, the Site has had several petroleum
underground storage tanks
(“UST5”)
.
Some of the USTs were
installed as far back
as’ the 1950’s.
Some of the USTs have been
removed and some still remain abandoned in place at the Site.
6.
From sometime prior to 1917 until,
it sold the property
to Smithfield in October 1999,
the Sun-Times was the owner of the
Site and all of the UST5 which were installed at the Site.
7.
On August
2,
1991,
the Illinois State Fire Marshal
received from the Sun-Times a Notification for Underground
Storage Tanks which notified the State Fire Marshal that the Sun-
Times was the owner and operator of eight
(8)
USTs
at the Site.
8.
The Sun-Times used the USTs to store fuel for its fleet
maintenance garage located at the Site.
9.
On April
23,
1999,
the Sun-Times,
after informing the
Office of the State Fire Marshal
(“OSFM”),
removed one active
-2-
10,000 gallon unleaded gasoline UST from the Site.
During
removal,
the Sun-Times discovered that a release of petroleum
products had occurred in the vicinity of the 10,000 gallon
unleaded gasoline UST at some undetermined time.
The Sun-Times
reported the release incident to the Illinois EPA whic,h cataloged
it as LUST Incident No.
99103.
Sun-Times then performed
remediation of the soil contaminated with gasoline at the
vicinity where the 10,000 gallon unleaded gasoline tank was
removed.
10.
On October 26,
1999,
the Illinois EPA issued a No
Further Remediation letter to the Sun-Times for LUST Incident No.
991013 based upon the 45 day/Corrective Action’ Completion Report
submitted to the Illinois EPA by Sun-Times.
11.
Respondent Sun-Times did not perform a groundwater
investigation to determine the extent of groundwater
contamination at the time
it removed the 10,000 gallon unleaded
gasoline UST.
12.
On December
3,
1998,
the Sun-Times entered into an
agreement to sell the property to Kenard Investments,
Inc.
(“Kenard”)
and on October 27,
1999,
Kenard assigned its interest
to Smithfield.
On June
6,
2002,
almost four years after the
sale,
Sun-Times informed the OSFM that
it had sold the property
to Kenard.
-3-
13.
Prior to the sale of the Site,
Sun-Times did not
remediate the soil at the Site, with the exception of the small
area impacted with gasoline under LUST Inèident No.
991013.
Sun-
Times
left in-place soil contaminated with either gasoline and/or
diesel fuel from either leaking USTs and/or surface spills when
Sun-Times was using the Site for a number of years as a fleet
vehicle maintenance and refueling facility.
14.
At an unspecified date,. Smithfield and Wooton began
constructing a town house complex on the Site purchased from Sun-
Times’.
Several
of the town houses were constructed on top of the
contaminated soil.
15.
In November 1999, Wooton removed an active 10,000
gallon diesel UST from the site.
Wooton removed the UST without
permission from the OSFM or a permit from the City of Chicago
Department of the Environment.
16.
In the Spring of 2001, while Respondents Smithfield and
Wooton were conducting construction related activities at the
Site,
an on-site drinking water main ruptured.
Shortly after,the
rupture of the drinking water main,
a resident of the new town
homes at ‘the Site reported a petroleum taste in his drinking
water.
17.
When consultants hired by Wooton were investigating the
petroleum tasting water complaint,
they discovered that the soil
-4-
in the area where the water main ruptured was contaminated with
diesel
fuel..
18.
Upon information and belief,
Complainant alleges that
the source of the soil contamination in the area where the water
main ruptured was from one or more of the UST5 owned and operated
by Sun-Times and/or surface spills of petroleum products over a
number of years when Sun-Times used the Site
as. a fleet vehicle
maintenance and refuelng facility.
19.
In April
2001,
Wooton retained an engineering firm to
conduct subsurface investigation and remediation activities.
20.
On May 24,
2001,
the engineering firm retained by
Wooton submitted, to the Illinois EPA LUST Section its remedial
action completion report.
The remediation consisted of removing
425 tons of diesel contaminated soil to a depth of
3 to 4 feet
and backfilling the area with clean clay soil.
Contaminated soil
was removed from areas in the open courtyard in front of town
home units numbers 23 through 42.
21.
On July 27,
2001,
the Illinois EPA rejected the
remedial action completion report because contamination still
remains at the site
Since groundwater was encountered at the
Site,
a full groundwater investigation should have been conducted
to determine the extent of groundwater contamination.
22.
On January 28,
2002,
the Illinois EPA received a
groundwater classification study and Tier
2 evaluation submitted
-5-
by Smithfield.
On March 20,
2002,
the Illinois EPA rejected the
study because groundwater contaminant analysis was not conducted.
23.
Section 57.6(a)
of the Act,
415 ILCS 5/57.6(a) (2002),
titled,
Underground storage tanks; early action,
provides as
‘follows:
(a)
Owners and operators of underground storage tanks
shall,
in response to all confirmed releases,
comply with all applicable statutory and
regulatory reporting and response requirements.
24.
Section 732.103 of the Illinois Pollution Control Board
(“Board”) Waste Disposal Regulations,
35
Ill. Adm: Code,
732.103
titled,
Definitions, provides the following pertinent
definitions:
“CORRECTIVE ACTION” means activities associated with
compliance with’ the provisions of Sections 57.6 and
57.7 of ‘the Act.
(Section 57.2 of the Act.)
“RESIDENTIAL UNIT” means a structure used primarily for
dwelling purposes including multi-unit dwellings such
as apartment, buildings,
condominiums, cooperatives or
dormitories.
“SITE” means any single location, place,
tract of land
or parcel of property including contiguous property not
separated by a public right-of-way.
‘
(Section 3.61 of
the Act)
“UNDERGROUND
STORAGE TANK” or
‘tUST” means any one or
combination of tanks
(including underground pipes
connected thereto) which is used to contain an
accumulation of regulated substances,
and the volume of
which
(including the volume of underground pipes
connected thereto)
is
10 per centum or more beneath the
surface
o.f the ground.
Such term does not include any
of the following or any pipes connected thereto.
-6-
UST SYSTEM” or “tank system” means an underground
storage tank,
connected underground piping, underground
ancillary equipment, and containment
system,
if any.
“OCCURRENCE” means any release from an underground
storage tank,
including any additional release from
that underground storage tank at the site identified in
the course of performing’ corrective action in response
to the initial release.
(Section 57.2 of the Act)
“OSFM” means the Office of the State Fire Marshal.
“OPERATOR” means any person in control of,
or having
responsibility for,
the daily operation of the
underground storage tank.
(42 U.S.C.
Section 6991)
“OWNER”
in the case of an underground storage tank in
use on November
8,
1984,
or brought
into’ use after that
date,
any person who .owns an underground storage tank
used for the storage, use or dispensing of regulated
substances;
“PERSON” means,
for the purposes of interpreting the
definitions of the terms
“owner” or
“operator,” an
individual,
trust,
firm,
joint stock company,
joint
venture,
consortium, commercial entity, corporation
(including a government corporation), partnership,
association,
state,
municipality, commission,
political,
subdivision of a state,
or any interstate body and
shall include the United States Government and each
department,
agency,
and instrumentality of the United
States.
(Derived, from 42’U.S.C. Section 6991)
“PETROLEUM” means petroleum,
including crude oil or any
fraction thereof which is liquid at standard conditions
of temperature and pressure (60°F and 14.7 pounds per
square inch absolute)
.
(Derived from 42 U.S.C.
Section 6991)
“PHYSICAL SOIL CLASSIFICATION” means verification of
geological conditions consistent with regulations for
identifying and protecting potable resource groundwater
or verification that •subsurface strata are as generally
mapped in the publication Illinois Geological Survey
Circular
(1984)
entitled “Potential for Contamination
of Shallow Aquifers in Illinois,” by Berg, Richard C.,
et
al.
Such classification may include review of soil
borings,
well logs, physical soil analysis,
regional
-7-
geologic maps,
or other scientific publications
(Section 57.2of the Act).
“RELEASE” means any spilling,
leaking, emitting,
discharging, escaping,
leaching, or disposing of
petroleum from an underground storage tank into
groundwater, surface water or subsurface soils.
(Section 57.2 of the Act)
25.
Pursuant to the definition of 35
Ill. Adm. Code
732.103, Respondents are owners of the UST5 at the Site because
the UST5 were in use on November 8,
1984,
or brought into use
after that date.
26.
The UST5 at the Site and their associated underground
equipment are UST systems as that term is defined by 35
Ill. Adm.
Code 731.103.
27.
There was a release of petroleum products on the Site
on or before November 1999,
as the term “release”
is, defined by
35
Ill. Adm. Code 722.103.
28.
Section 732.300(a)
of the Board Waste Disposal
Regulations,
35
Ill. Adm. Code 732.300(a),
titled,
General,
provides as follows:
‘
‘
‘
(a)
Except as provided in subsection
(b)
below,
the
owner or operator of any site subject to this Part
shall evaluate and classify the site in accordance
with the requirements of this Subpart
C.
All such
sites shall be classified as
“No Further Action,”
“Low Priority”
or “High Priority”.
Site
‘classifications shall be based on the results of
the site evaluation,
including,
but not limited
to,
the physical soil classification and the
groundwater investigation,
if applicable.
-8-
29.
Section .732.307(a)
of the Board Waste Disposal
Regulations,
35
Ill. Adm. Code 732.307(a),
titled,
Site
Evaluation,
provides as follows:
(a)
Except as provided in Section 732.200(b),
the
owner or operator of any site for which a release
of petroleum has been confirmed in accordance with
regulations promulgated .by the OSFM and reported
to IEMA. shall arrange for site evaluation and
classification in accordance with the requirements
of this Section.
A Licensed Professional Engineer
.(or, where appropriate, persons working under the
direction of
a Licensed Professional Engineer)
shall conduct the site evaluation.
The results of
the site evaluation shall provide the basis for
determining the site evaluation.
The results of
the site evaluation, shall provide the basis for
determining the site classification.
The site
classification shall be certified as required by’
the supervising Licensed Professional Engineer.
30.
Section 732.100(c)
of the Board Waste Disposal
Regulations,
titled,
Applicability,
provides as follows:
*
*
*
(c)
Owners or operators subject to this Part by law or
by election shall proceed expeditiously to comply
with all requirements of the Act and the
regulations and to obtain the “No Further
Remediation” letter signifying final disposition
of the’ site for purposes of this Part.
The Agency
may use its authority pursuant to the Act and
Section 732.105 of this Part to expedite
investigative, preventive or corrective action by
an owner or operator or to initiate such action.
31.
Respondents, Smithfield and Wooton as owners and/or
operators of the Site where a release of petroleum products
occurred did not perform a site evaluation and classification
in
-9-
accordance with the requirements of 35
Ill. Adm. Code 732.300 (a)
and 732.307(a).
32.
By failing to perform site evaluation and
classification in accordance with 35
Ill. Adm. Code 732.300(a)
and 732.307 (a), Respondents Smithfield and Wooton violated
Section 732.100(c)
of the Board Waste Disposal Regulations,
35
Ill. Adm. Code 732.100(c)
and, thereby violated Section 57.6(a)
of the Act,
415 ILCS 5/57.6(a) (2002).
WHEREFORE,
Complainant’,
PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests ‘that the Board
enter. anorder in favor of
Complainant and against Respondents Smithfield and Wooton with
respect to Count
I:
1.
Authorizing a hearing in this matter at which time the
Respondents Smithfield and Wooton will be’required to answer the
allegations herein;
2.
Finding that Respondents Smithfield and Wooton have
violated Section 57.6(a)
of the Act and 35 Ill. Adm. Code
732.100(c)
and 732.300(a)
and 732.307(a);
3.
Assessing against the Respondents Smithfield and Wooton
a civil penalty of Fifty Thousand Dollars
($50,000.00)
for each
and every, violation of the Act, with an additional civil penalty
of Ten Thousand Dollars
($10,000.00) per day for each day that
the violation continues;
‘
~10-
4.
Taxing all costs
in this action, including attorney,
expert witness and consultant fees,
against the Respondents
Smithfield and Wooton; and
5.
Granting such other relief
as the Board deems
appropriate and just.
COUNT II
FAILURE TO COMPLY WITH REPORTING
AND ‘RESPONSE REQUIREMENTS
1-27.
Complainant realleges and incorporates by reference
herein, paragraphs
1 through 27 of Count
I as paragraphs
1
through
27
of this Count
II.
,
28.
Section 732.200 of the Board Waste Disposal
Regulations,
35
Ill. Adm. Code 732.200,
titled,
‘General
provides as follows:
.
.
,
Owners and operators of underground .storage tanks
shall,
in response to all confirmed releases of
petroleum,
comply with all applicable statutory and
regulatory reporting and response requirements.
(Section 57.6(a)
of the Act)
No work plan shall be
required for conducting early action activities.
29,.
Respondents Smithfield and Wooton failed to report the
confirmed release of petroleum products at the Site in accordance
with the requirement of
35
Ill. Adm.
Code 732.200.
30.
By failing to report the confirmed release of petroleum
products at the Site,
Respondents Smithfield and Wooton violated
Section 732.200, of the Board Waste Disposal Regulations,
thereby
violating Section 57.6(a)
of the Act,
415 ILCS 5/57.6(a) (2002).
—11—
WHEREFORE,
Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests the Board enter an order in favor ,of
Complainant and against Respondents Smithfield and Wooton with
respect
t.o Count
II:
1.
Authorizing a hearing in this matter at which time the
Respondents Smithfield and Wooton will be required to answer the
allegations herein;
.
‘.
2.
Finding that Smithfield and Wooton.have violated
Section 5.7.6(a)
of the Act and Section 732.200 of
35 Ill. Adm.
Code;
.
3.
Assessing against .Respondents Smithfield and Wooton a
civil penalty of Fifty Thousand Dollars’ ($50,000.00)
for each and
every violation of the Act, with an additional civil penalty of
Ten Thousand Dollars
($10,000.00) per day for each day that the
violation continues;
4.
Taxing all costs in this action,
including attorney,
expert witness and consultant fees,
against Respondents
Smithfield and Wooton, and
5.
Granting such other relief as the Board deems
appropriate and just.
,
COUNT III
‘
‘
FAILURE TO PERFORM INITIAL RESPONSE ACTIONS
1-27.
Complainant
realleges
and
incorporates
by
reference
herein, paragraphs
1 through 27 of Count
I as paragraphs
1
-12-
through 27 of this Count
III.
28.
Section 732.203 (a). of the Board Waste Disposal
Regulatiops,
35
Ill. Adm. Code 732.202(a),
titled,
Early Action,
provides as follows:
a)
Upon confirmation of a release of petroleum from a
UST system in accordance with regulations
promulgated by the OSFM,
the owner or operator,
or
both,
shall perform the following initial response
actions within 24 hours after the release:
1)
Report the release to IEM~A(e.g.,
by
telephone or electronic mail):
2)
Take immediate action to prevent any further
release of the regulated substanceto the
environment; and
3)
Identify and mitigate fire,
explosion and
vapor hazards.
29.
Respondents Smithfield and Wooton did not perform
initial response actions within 24 hours after confirmation of
the release of petroleum from the Site as required by 35
Ill.
Adm. Code 732.203(a).
30.
By failing to perform initial response actions within
24.hours after the confirmed release of petroleum, Respondents
Smithfield and Wooton violated Section 732.202(a)
of the Board
Waste Disposal Regulations,
thereby violating Section 57.6(a)
of
the Act, 415 ILCS 5/57.6(a) (2002)
.
WHEREFORE,
Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests the Board to enter an order in favor of
-13-
Complainant and against Respondents Smithfield and Wooton with
respect to ‘Count
III:
.
1.
Authorizing
a
hearing in this matter at which time the
Respondents Smithfield and Wooton will be required to answer the
allegations herein;
‘
,
2.
‘
Finding that the Respondents Smithfield and Wooton have
violated Section 57.6(a)
of the Act and 35 Ill. Adm. Code
732.202(a);
,
,
3.
,
Assessing against Respondents Smithfield and Wooton a
civil penalty of Fifty Thousand Dollars
($50,000.00)
for each and
every violation of the Act, with an additional penalty of Ten
Thousand Dollars
($10,000.00) per day for each day that the
violation continues;
4.
Taxing all costs in this action,
including attorney,.
expert witness and consultant fees,
against Respondents
Smithfield and Wooton; and
5.
Granting such other relief as the Board deems
appropriate and just.
,
COUNT IV
FAILURE TO PERFORM INITIAL ABATEMENT MEASURES
1-27.
Complainant
realleges
and
incorpOrates
by
reference
herein,
paragraphs
1
through
27
of
Count
I
as
paragraphs
1
through 27 of this’ Count
IV.
-14-
28.
Section 732.202(b)
of the Board Waste Disposal
Regulations,
35
Ill. Adm. Code 732.202(b),
titled;
Early Action,
provides as follows:
(b)
Upon confirmation of a release of petroleum from a
UST system in accordance with regulations
promulgated by the OSFM,
the owner or operator
shall perform the following initial abatement
measures:
,
,
1)
Remove as much of the petroleum from the UST
system as is necessary to prevent further
release into the environment;
2)
Visually, inspect any above ground’ releases or
exposed below ground releases and prevent
further migration of the released substance
into surrounding soils and groundwater;’
3)
Continue to monitor and mitigate any
additional fire and safety hazards posed by’
vapors or free product that have migrated
from the UST excavatiOn zone and entered into
subsurface structures
(such as sewers or
‘basements);
4)
Remedy hazards posed by contaminated soils
that are excavated or exposed as a result of
release confirmation, site’ investigation,
abatement or corrective action activities.
If these remedies include treatment or
disposal of soils,
the owner or operator
shall comply with 35
Ill. Adm. Code 722,
724,
725, and 807 through 815;
5)
Measure for the presence of a release where
contamination is most likely to be present at
the UST
site,’ unless the presence and source
of the release have been confirmed in
accordance with regulations promulgated by
the OSFM.
In selecting sample types,
sample
locations,
and measurement methods,
the owner
or operator shall consider the nature of the
stored substance,
the type of backfill, depth
to groundwater and other factors as
-15-
appropriate for identifying the presence and
source of the release; and
6)
‘
Investigate to determine the possible
presence of free product, and begin free
product removal as soon as practicable and in
accordance with Section 732.203 below.
29.
Respondents Smithfield and Wooton did not adequately
perform initial abatement measures after confirmation of the
release of petroleum products.
30.
By failing to adequately perform initial abatement
measures after confirmation of release, Respondents Smithfield
and, Wooten violated 35
Ill. Adm.
Code 732.202(b)
and thereby
violated Section 57.6(a)
of the Act,
415 ILCS 5/57.6(a) (2002)
WHEREFORE,
Complainant, PEOPLE OF THE’STATE OF ILLINOIS,
respectfully requests the Board to enter an order in favor of
Complainant and against Respondents Smithfield and Wooton with
respect to Count
IV:
1.
Authorizing a hearing in this matter at which time the
Respondents Smithfield and Wooton will be required to answer the
allegationC herein;.
2.
Finding that Respondents Smithfield and Wooton hay?
violated Section 57.6(a)
of’
the Act and 35 Ill. Adm. Code
732.202(b);
,
,
,
3.
Assessing against Respondents Smithfield and Wooton a
civil penalty Fifty Thousand Dollars
($50,000.00)
for each and
every violation of the Act, with an additional penalty of Ten
-16-
Thousand DollarC
($10,000.00) per day for each day that the
violation continues;
4.
Taxing all costs in this action,
including attorney,
expert witness and consultant
fees,
against the Respondents
Smithfield and Wooton; and
5.
Granting such other relief as the Board deems
appropriate and just.
,
COUNT
V.
FAILURE TO ASSEMBLE INFORMATION ABOUT THE SITE
1-27.
Complainant.realleges
and incorporates by reference
herein, paragraphs
1
through
27
of
Count
I as paragraphs
1
through 27 ‘of this Count V.
28.
Section 732.202(d)
of. the Board Waste Disposal
Regulations,
35
Ill. Adm. Code 732.202(d),
titled,
Early Action,
provides as follows:
d)
Owners or operators shall assemble information
about
the’ site,and the nature of the release,
including information gained while, confirming the
release or completing the initial abatement
measures in subseótions
(a)
and
(b)
above.
This
information must include,.but
is not limited to,
the following:
1)
Data on the nature and estimated quantity of
release;
2)
Data from available sources’ or site
investigations concerning the following
factories:
surrounding populations, water
quality, use and approximate locations of
wells potentially affected by the release,
subsurface
soil conditions,
locations of’
-17-
subsurface sewers,
climatological conditions
and land use;
3)
Results of the site check required at
subsection
(b)
(5)
of this Section;
4)
;
Results of the free product investigations
required at subsection
(b) (6)
of this
Section,
,to be used by owners or operators to
determine whether free product must be
recovered under.Section 732.203.
29.
Respondents Smithfield and Wooton as owners and/or
operators of the Site where a release occurred did not assemble
information about the Site and the nature of the release after
confirmation of the release.
30.
By failing to assemble information about the Site and
the nature of the release after confirmation of the release,
Respondents Smithfield and’ Wooton violated 35 Ill. Adm. Code
732.202(d),
thereby violating Section 57.6(a), of the Act, 415
ILCS 5/57.6(a) (2002)
.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests the Board to enter an order in favor of
Complainant and against Respondents. Smithfield and Wooton with
respect to Count
V:,
‘
1.
Authorizing a hearing in thi,s matter at which time the
Respondents Smithfield and Wooton will be required to answer the
allegations herein;
,
2.
,
Finding that, Respondents Smithfield and Wooton have
violated Section 57.6(a)
of the Act and 35
Ill. Adm. Code
-18-
732.202(d);
3.
‘Assessing against Respondent.s Smithfield and Wootori a
civil penalty of Fifty Thousand Dollars
($50,000.00)
for each and
every violation of the Act, with an additional penalty of Ten
Thousand Dollars
($10,000.00) per day for, each day that the
violation continues;
4.
Taxing all costs in this action, including attorney,
expert witness and consultant fees, against the Respondents
Smithfield and Wooton; and
5.
Granting such other relief
as. the Board deems
appropriate and just.
COUNT VI
FAILURE TO SUBMIT PHYSICAL SOIL
CLASSIFICATION AND GROUNDWATER
INVESTIGATION PLAN
1-27.
Complainant realleges and incorporates by reference
herein, paragraphs
1 through 27 of ‘Count
I as paragraphs
1
through,27 of this Count VI.
28,.
Section 57.,7(a) (1)
of the Act,
415 ILCS 5/57.7(a) (1)
(2002),
titled,
Leaking Underground Storage Tanks; Site
Investigation,
and Corrective Action,
provides as follows:
(a)
Site Investigation.
,
.
‘
(1)
For any site investigation activities
required by statute or rule,
the owner or
operator shall submit to the Agency for
approval a site investigation plan designed
to determine the nature,
concentration,
.19-
direction of movement,
rate, of movement, and
extent of the contamination as well as the
‘significant physical features of the site and
surrounding area that may affect contaminant
transport and risk to human health and safety
and the environment.
29.
Respondents Smithfield and Wooton,
as owners and
operators of the Site where a release of petroleum products
occurred,
failed to submit to the Illinoi.s EPA a site
investigation plan ‘in accordance with the requirements of Section
57.7(A) (1)
of the Act, 415 ILCS 5/57.7(a) (1) (2002).
30.
By failing to submit to the Illinois EPA a site
investigation plan in accordance with the requirements of Section
57.7(a) (1), Respondents Smithfield and Wooton. violated Section.
57.7(a) (1)
of the Act,’ 415 ILCS 5/57.7(a) (1)
(2002)
WHEREFORE, Complainant,
PEOPLE OF THE STATE OF’I,LLINOIS,
respectfully requests the Board to enter an order in favor of
Complainant and against Respondents Smithfield and Wooton with
respect to Count VI:
1.
Authorizing a hearing in this matter at which time the
Respondents Smithfield and Wooton will be required to answer the
allegations herein;
‘
.
2.
Finding that Respondents Smithfield and Wooton have
violated Section 57.7(a) (1)
of the Act;
3.
Assessing against Respondents Smithfield and Wooton a
civil penalty of Fifty’Thousand Dollars
($50,000.00)
for each and
every violation of the Act, with an additional penalty of Ten
-20-
Thousand Dollars
($10,000.00) per day for each day that the
violation continues;
,
.
4.
Taxing all costs in this action,
including attorney
expert witness and consultant
fees,
against the Respondents
Smithfield and Wooton;
and
5.
Granting such other relief as.the Board deems equitable.
and just.
,
COUNT VII
CAUSING
OR TENDING TO CAUSE WATER POLLUTION
1-22.
Plaintiff realleges and incorporates byreference
herein, paragraphs
1 through 22 of Count
I as paragraphs
1
through 22 of this Count VII.
.
23.
Section 12(a)
of the Act, 415 ILCS 5/12 (a)’ (2002),
provides as follows:
.
No person shall:
,
,
a.
,
Cause or threaten ‘or allow the discharge of a
contaminant 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.
24.
Section 3.315
of the Act, 415 ILCS 5/3.315
(2002),
defines person as follows:
.
“PERSON” is any individual, partnership, co-
partnership,
firm,
company, limited liabiilty company,
corporation,
associationi,
joint stock company,
trust,
estate, political subdivision,
state agency,
or any
other legal entity,
or their legal representative,
agent or assigns.
-21-
25.
‘
Respondents Smithfield and Wooton are each a
“person”
as that term is defined in Section
3’. 315 of the Act,
415
ILCS 5/3.315
(2002)
.
26.
Section 3.165 of the Act, 415 ILCS 5/3.165
(2002),
defines contaminant as “any solid,
liquid’ or gaseous matter, any
odor,
or any form of energy,.from whatever source.”
27.
Diesel or gasoline fuel which was released from one or
more USTs in waters of the State
is a contaminnt
as that term is
defined by Section 3.165 of the Act,
415 ILCS 5/3.165
(2002)
28.
Section 3.545 of theAct,
415 ILCS 53.545
(2002),
defines water pollution:.
“WATER POLLUTION”
is such alteration of the physical,
thermal,
chemical, biological or radioactive properties
of any waters of the ‘State, or such discharge of any
contamination into any waters of the ‘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,
o,r other
legitimate uses,
or to livestock, wild animals, birds,
fish or other aquatic life.
29.
Section 3.550 of theAct, ‘415 ILCS 5/3.550
(2002),
defines “Waters of the State”
as follows:
“WATERS” means all’accumulations of water,
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.
,
.
30.
The underground water at the Site which was’
contaminated by the release of diesel and/or gasoline fuel from
one or more of the USTs and/or surface spills
is ~ water of the
-22-
State as the term “water”
is defined by Section 3.550 of the Act,
415 ILCS 5/3.550
(2002);
31.
From sometime prior to November 1999, until the date of
filing of this.Complaint,
the groundwater at the site remains
contaminated with diesel and/or gasoline fuel released from one
or more USTs and/or from surface spill of petroleum products
during Sun-Time’s long usage of the Site as a garage and refuelng
station for its fleet vehicles.
32.
Respondents Smithfield and Wooton took no action to
remediate the groundwater contamination at the Site;
33.
Respondents Smithfield and Wooton by their
actions and/or inactions caused,
threatened, or allowed the
discharge of contaminants, into the environment so as to cause or
tend to causewater pollution in Illinois.
WHEREFORE,
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
respectfully. requests the Boardto enter an order in favor of
Complainant and against Respondents Smithfield and Wooton with
respect to Count VII:’
,
,
1.
Authorizing a hearing in this matter at which time the
Respondents will ‘be ‘required to answer the allegations herein;
2.
Finding that Respondents Smithfield and Wooton have
violated Section 12(a)
of the Act;
3.
Ordering Respondents Smithfield and Wooton to take all
necessary measures to obtain a No Further Remediation letter from
-23-
the Illinois EPA;
4.
Assessing ‘against’ Respondents a civil penalty of Fifty
Thousand Dollars
($50,000.00)’ for each and every violation of the
Act, with an additional penalty of Ten Thousand Dollars
($10,000.00) per day for each day that the violation continues;
5.
Taxing all costs in this action, including attorney,
expert witness and consultant
fees,
against the Respondents; and
6.
Granting such other relief as the Board deems
appropriate and just.
COUNT VIII
,
FAILURE TO SUBMIT A 45-DAY REPORT
1-27.
Complainant realleges and incorporates by reference
herein, paragraphs
1 through 27 of Count
I as paragraphs
1,
through 27 of this Count VIII.
28.
Section 732.202(e)
of the Board Waste Disposal
Regulations,’
35
Ill. Adm. Code 732.202(e)
titled, Early Action,
provides as follows:
(e)
Within 45 days after confirmation of a release of
petroleum from a UST system in accordance with
regulations promulgated by the OSFM,
owners or
operators shall
submit to the Agency the
information collected in compliance with
subsection
(d)
above in
a manner that demonstrates
its applicability and technical adequacy,.. The,
information shall be submitted on forms prescribed
by the Agency or in a similar format containing
the same information.
29.
In November 1999, when Smithfield and Wooton removed
the active 10,000 gallon diesel UST from the Site, ‘they were the
-24-
owners and/or operators of the UST.
30.
Respondents Smithfield and Wooton as owners
and/or operators of the UST system and/or Site where the release
of petroleum products occurred, did not submit a report
summarizing information about the Site and nature of the release
within 45 days after confirmation of the. release.
31.
By failing to submit a report summarizing information
about the Site and nature of the release within 45 days after
confirmation of the release, Respondents Smithfield and Wooton
viOlated 35
Ill. Adm.
Code 732.202(e)
and thereby, also violated
Section 57.6(a)
of the Act, 415 ILCS 5/57.6(a)
(2002).
WHEREFORE,
Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests
the, Board to enter an order in’favor of
Complainant and against Respondents with respect to Count VIII:
1.
Authorizing a hearing in this matter at which time the
Respondents will, be required to answer the allegations herein;
2.
Finding that Sun-Times,
Smithfield and Wooton have
violated Section 57.6(a)
of the Act and’ 35
Ill. Adm. code
732.202(e);
,
3.
Assessing against Respondents Sun-Times,
Smithfield and
Wooton a civil penalty of Fifty Thousand Dollars
($50,000.00)
for
each and every violation of the Act, with an additional penalty
of Ten Thousand Dollars
($10,000.00) per day for each day that
the violation continues;
-25-
4.
Taxing all costs in this action,
including attorney,
expert witness and consultant
fees,
against Respondents Sun-
Times,. Smithfield and Wooton and
5.
Granting such other relief
as the Board deems
appropriate and just.
,
‘
II.
VIOLATIONS
BY CHICAGO
SUN-TIMES
COUNT IX
CAUSING
OR’ TENDING TO CAUSE WATER POLLUTION
1-22.
Plaintiff realleges and incorporates by reference’
herein, paragraphs
1 through 22 Of Count
I
as paragraphs
1
through 22 of this Count IX.
23.
Section 12(a)
of the Act,
415 ILCS 5/12(a) (2002),
provides as, follows:
No person shall:
a.
Cause or threaten or allow the discharge of a
contaminant 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.
24.
Section 3.315 of the Act,
415 ILCS 5/3.315
(2002),
defines person as follows:
,
“PERSON”
is any individual,
partnership,
co-
‘
partnership,
firm,
company,
limited liability company,
corporation, association,
joint stock company,
trust,
estate,
political subdivision,
state agency, or any
other legal
entity,, or their legal representative,
agent or assigns.
-26-
25.
Respondent Sun-Times,
is a “person”
as that term is
defined in Section 3.315 of the Act, 415 ILCS 5/3.315
(2002)
26.
Section 3.165 of the Act,
415 ILCS 5/3.165
(2002),
defines contaminant as
“any solid,
liquid or gaseous matter, any
odor, or any form of energy, from whatever source.”
27.
Diesel or gasoline fuel which was released from one or
more UST5 owned and/or operated by Sun-Times in waters of the
State is a contaminant as that term is defined by Section 3.165
of the Act,
415 ILCS 5/3.165
(2002)
28.
Section 3.545 of the Act, 415 ILCS 3.545
(2002),
defines water pollution:
“WATER POLLUTION”
is such alteration of the physical,
thermal,
chemical, biological or radioactive properties
of any waters of the State,
or such discharge of any
contamination into any waters of the 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.
29.
SectiOn 3.550 of the Act, 415 ILCS 5/3.550
(2002),
defines
“Waters. of the State”
as follows:
“WATERS” means all accumulations of water,
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.
,
30.
The underground water at the Site which was
contaminated by the release of diesel’ and/or gasoline fuel from
one or more of the USTs and/or surface spills
is a water of the
-27-
,
State as the term “water” is defined by Section 3.550 of the Act,
415 ILCS 5/3.550
(2002);
31.
.
From sometime prior to November 1999, until the date of
filing of this Complaint,
the groundwater at
the. site remains
contaminated with diesel and/or gasoline fuel released from’ one
or more USTs and/or from surface spill of petroleum products
during Sun-Time’s long usage of the Site as
a garage and
refueling station for its fleet vehicles.
32.
Respondent Sun-Times, by its actions and/or .,inactions
caused,
threatened,
or allowed the discharge of contaminants,
into the environment so as to cause or tend
to. cause water
pollution in Illinois.
,
‘
WHEREFORE,
Complainant, PEOPLE ‘OF THE STATE OF ILLINOIS,
respectfully requests the Board to enter an order in favor of
Complainant and against Respondent Sun-Times, with respect to
Count VII:
,
1.
Authorizing a hearing in this matter at v~hichtime the
Respondent Sun-Times will
be’ required to answer the allegations
herein;
2.’
.Finding that Respondent Sun-Times has,violated Section
12(a)
of the Act;
.
3.
Assessing against Respondent Sun-Times a civil penalty
of Fifty Thousand Dollars
($50,000.00)
for each and every
violation of the Act, with an additional penalty of Ten Thousand
-28-
Dollars
($10,000.00) per day for each day that the violation
continues;
‘
,
4.
Taxing all costs
in’ this action,. including attorney,
expert witness and consultant
fees,
against Respondent Sun-Times;
and
5.
Granting such other relief as the Board deems
appropriate and just.
COUNTX
CREATING A WATER POLLUTION HAZARD’
1-22.
Plaintiff realleges and incorporates by reference
herein, paragraphs
1 through 22 of Count
I as paragraphs
1
through 22 of this Count
X.
23.
Section 12(d)
of the Act, 415 ILCS 5/12(d) (2002),
provides:
No person shall:
Deposit any contaminants upon the land in such manner
and, place so as to create a water pollution hazard.
24.
Respondent Sun-Times,
deposited diesel and/or gasoline
fuel,
contaminants’, upon the land in such manner and place so as
to create a water pollution hazard.
‘
,
25.
By creating a water pollution hazard, Respondent Sun-
Times violated Section 12 (d)
of the Act, 415 ILCS 5/12 (d) (2002)
WHEREFORE,
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests the Board to enter an order in favor of
-29-
Complainant and against Respondent Sun-Times with respect to this
Count X:
1.
Authorizing a hearing
in.
this matter at which time the
Respondent’s will be required to’ answer the allegations herein;
2.
Finding that Sun-Times has.violated Section 12(d)
of
the Act;
.
3.
Assessing against Sun-Times,
a civil penalty of Fifty
Thousand Dollars
($50,000.00)
for each and every violation of the
Act, with an additional penalty of Ten Thousand Dollars
($lO,000.00),per day for each day that the violation continues;
4.
‘
Taxing all costs in this action,
including attorney,
expert witness and consultant.fees,
against Sun-Times; and
5.
Granting such other relief
as’ the Board deems
appropriate and just.
COUNT XI
FAILURE TO SUBMIT A 45-DAY, REPORT
1-27.
Complainant realleges and incorporates by reference
herein, ‘paragraphs
1 through 27 of ‘Count
I
as, paragraphs
1
through 27 of this Count XI.
.
28.
Section 732.202(e)
of the Board Waste Disposal
Regulations,
35
Ill. Adm. Code .732.202(e)
titled, Early Action,
provides as ‘follows:
(e)
Within 45 days after confirmation of release of
petroleum from a UST system in accordance with
regulations promulgated by the OSFM,
owners or
operators shall submit to ‘the Agency the
-30-’
information collected in compliance with
subsection
(d)
above in a manner that demonstrates
its applicability and technical adequacy.
The
information shall be submitted on forms prescribed
by the Agency or in a similar format containing
the same information.
29.
In November 1999, when Smithfield and Wooton removed
the active 10,000 gallon diesel UST from the. Site,
Sun-Times was’
still the registered owner of the UST.
30.
At the time of the sale of the Site in 1999,
Sun-Times
did not notify the OSFM about the transfer of ownership of the
USTs.
,
31.
Respondent Sun-Times,
as the owner and/or operator of
the UST system and/or Site where the release of petroleum
products occurred, did not submit a report
summarizing’
information about the Site and nature of the release within 45
days after confirmation of the release.
32.
By failing to submit a report summarizing information
about the Site and nature of the release within 45 days after
confirmation of the release, Respondent Sun-Times, violated 35
Ill. Adm. Code 732.202(e)
and thereby,
also violated Section
57.6(a)
of the Act,
415’ ILCS 5/57.6(a) (2002)
.
WHEREFORE,
Complainant,
PEOPLE ,OF THE STATE OF ILLINOIS,
respectfully requests the Board to enter an order in favor of
Complainant and against Respondent Sun-Times with respect
to’
Count
XI:
.
-31-
1.
Authorizing.a hearing in this matter at which time the
Respondent Sun-Times will be required to answer the allegations
herein;
2.
Finding that Sun-Times has violated Section 57.6(a)
of
the Act and 35
Ill. Adm. Code 732.202(e);
.
3.
Assessing against Respondent Sun-Times,
a civil penalty
of Fifty Thousand Dollars
($50,000.00)
for each and every
violation of the Act, with an additional penalty of Ten Thousand
Dollars
($10,000.00) per day for each day that the violation’
continues;
,
.
4.
Taxing all costs
in this action,
including.attorney,
expert witness and consultant fees,
against Respondent Sun-Times’;
and
.
-32-
5.
Granting such other’ relief as the Board deems
appropriate and just
PEOPLE OF THE STATE OF ILLINOIS
‘LISA MADIGAN
Attorney General
State of Illinois
BY:
MATTHEW
J.
DUNN,
Chief
Environmental Enforcement/Asbestos
Litigation Division
OF COUNSEL:
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau
188 West Randolph Street,
20th Floor
Chicago,
IL 60601
(312) 814-3816
ATTORNEY CODE NO.
99000
G. \Erlvironmental Enforcemenl\Z BEREKET-~B\SunTiniesComp1aint.wpd
-33.-
.1.~iV
‘....r).LJJ.J.n.~.J
Environmental Bureau
‘Assistant Attorney General
