CLERK’S
OFFICE
MAY 2~i.2OO4
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
Pollution Control Board
MATE TECHNOLOGIES, INC.
)
)
Complainant,
)
)
v.
)
PCB No. 2004-075
)
(Enforcement X)
F.T.C. AMERICA CORPORATION
)
)
Respondent.
)
NOTICE OF FILING
TO:
Carey S. Rosemarin
Law Offices ofCarey S. Rosemarin, P.C.
500 Skokie Boulevard, Suite 510
Northbrook, IL 60062
PLEASE TAKE NOTICE that on the 20th day of May, 2004 F.T.C AMERICA
CORPORATION, by and through its attorneys, Jeremy A. Gibson and Mitchell Chaban OfMASUDA,
FUNAI, EIFERT
&
MITCHELL, LTD., shall file its RESPONDENT’S ANSWER
TO COMPLAINT
ANDAFFIRMATIVE DEFENSES with the Office ofthe Clerk ofthe Pollution Control Board, a
copy ofwhich is hereby served upon you.
One of Its Attorneys
Jeremy A. Gibson
Mitchell S. Chaban
MASUDA, FUNAI, EIFERT
&
MITCHELL, LTD.
203 N.LaSalle Street, Suite 2500
Chicago, Illinois 60601
(312)245-7500
N:\SYS23\61 85\NOTFIL\00420007.doc
PROOF OF SERVICE
I, the undersigned, db hereby state on oath that I served the foregoing
NOTICE OF FILING
upon Carey S. Rosemarin, Law Offices of Carey S. Rosemarin, P.C. 500 Skokie Boulevard, Suite
510, Northbrook, IL 60062 by placing a copy of the same in a properly addressed, postage
prepaid, envelopes and depositing the same in the U.S. Mail Chute at 203 N. LaSalle Street Suite
2500, Chicago, Illinois 60601 on this
(Jr)
day of
~,
2004.
~c2~
‘t
~
\~-uiI~
(~~/‘
Subscribed and sworn to before me this
2i~k
day of
M
~
2004.
/
hl4L
Notary Public
N:\SYS23\6185\ProfServ\420011.dOC
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ICE
MAY 20 2004
STATE OF
IL
MATE TECHNOLOGIES, iNC.
)
pollution ControI~’~d
Complainant,
)
)
v.
)
PCB No. 2004-075
)
(Enforcement X)
F.I.C. AMERICA CORPORATION
)
)
Respondent.
)
RESPONDENT’S ANSWER
TO COMPLAINT AND AFFIRMATIVE
DEFENSES
Respondent, F.T.C. America Corporation,by and through its attorneys, Jeremy A. Gibson and
Mitchell S. Chaban ofMasuda, Funai, Eifert & Mitchell, Ltd., and for its Answer to Complaint and
Affirmative Defenses, states as follows:
ANSWERS
TO COMPLAINT
1.
Mate Technologies, Inc. (“Mate”) by its undersigned attorney, brings this Citizen’s
Complaint for injunctive relief and cost recovery under Section 3 1(d) ofthe Illinois Environmental
Protection Act (the “Act”). 415 ILCS 5/31(d). Mate alleges that F.T.C. America Corporation (“FIC”)
has violated fundamentalrequirements ofIllinois’ used oil regulations, solid waste regulations and
hazardous waste regulations. Mate also alleges that FIC has violated the statutory prohibitions on
indiscriminate waste handling, air pollution and water pollution. FTC acted in total disregard of
Illinois’ plenary statutory and regulatory structure, which is designed to assure environmentally
sound management ofwastes. FTC thereby violated numerous provisions ofIllinois environmental
law.
ANSWER:
Respondent admits the allegations set forth in the first, second and third
sentences ofParagraph 1. Respondent denies the remaining allegations set forth in Paragraph 1.
Parties
1
2.
Mate is an Illinois corporation having its principal place ofbusiness at 1695 Todd
Farm Drive, Elgin, Illinois. At all relevant times, Mate owned the property located at 750 Rohiwing
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 of415 ILCS 5/3.26.
ANSWER:
On information and belief, respondent admits the allegations set forth in
Paragraph 2.
3.
FTC is an Illinois corporation. On information and belief, FTC has its principal place
ofbusiness at 485 East Lies Road, in Carol Stream, Illinois, and is a wholly-owned subsidiary of
Futaba Industrial Co., Ltd., of Okazaki, Japan. As a corporation, FTC is a “person” within the
meaning of415 ILCS 5/3.26.
ANSWER:
Respondent admits the allegations set forth in Paragraph 3.
Relevant Facts
4.
Beginning in March 2002, FTC continuously operated the Property for the purposeof
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.
ANSWER:
Respondent admits that it began using the property in or about March 2002,
but denies it is continuing to use the property. Respondent admits the remaining allegations set for
the in Paragraph 4.
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 of such 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 of the
building~Additionally, on information and belief, FIC’s operationshave caused some or all ofthe
oil to become contaminated with chromium and other metals.
ANSWER:
Respondent denies the allegations set forth in Paragraph
5.
2
6.
The air within the building onthe Property is circulated bythe heating, ventilating and
air conditioning (“HVAC”) system. The HVAC system collects air within the building, directs it
through a number offilters, and emits some air to the exterior.
ANSWER:
Upon infonnation and belief, Respondent admits the allegations set forth in
Paragraph 6.
7.
FTC has at all times failed to contain orin anyway control the oil disseminated from
its operations. As a direct result, the oil has been released into the environment by virtue of its
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.
ANSWER:
Respondent denies the allegations set forth in Paragraph 7.
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 of
the building on the Property was freshly painted.
ANSWER:
Respondent denies the allegations set forth in Paragraph 8.
9.
Mate expressed its concern about environmental conditions at and about the Property
as early as June 18, 2003, and requested copies of any correspondence between FTC and any
government agency pertaining to the release ofhazardous 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 ofthe
contamination.
ANSWER:
Respondent denies that Mate expressed its concern about environmental
conditions at and about the Property as earlyas June 18, 2003, and admits the remaining allegations
set forth in the first sentence of Paragraph 9. Respondent denies the allegations set forth in the
second sentence ofParagraph 9. Respondent admits that it “pressure washed” certain areas ofthe
3
building on the Property and denies the remaining allegations set forth in the last sentence of
Paragraph 9.
10.
On at leastone occasion, October 1, 2003, FTC áonducted suchpressurewashing and
disposed of the resulting rinsate in the storm sewers on the Property.
ANSWER:
Respondent admits that, on October 1, 2003, it conducted pressure washing.
Respondent denies the remaining allegations set forth in Paragraph 10.
11.
Mate’s representatives inspected the Property on or about September 8, 2003 and
collected samples ofthe disseminated oil on the Property. On information and belief, the samplesof
the oil were representative ofthe material generated by FTC’s operationsthroughout the entire time it
operated the Property. The samples were submitted for laboratory analysis.
ANSWER:
On information and belief, respondent admits the allegations set forth in the
first sentence of Paragraph 11. Respondent has insufficient information to form a belief as to the
truth or falsity of the second sentence of Paragraph 11 and therefore denies the same. On
information and belief, Respondent admits the allegations set forth in the third sentence ofParagraph
11.
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 aromatichydrocarbons (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 of oil);
iii) oil on an exposed wall (thathad 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 of oil);
4
iv) oil on one of the 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).
ANSWER:
Respondent has insufficient information to form a belief as to the truth or
falsity ofthe allegations set forth in Paragraph 12 and therefore denies them.
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.
ANSWER:
Respondent denies the allegations set forth in Paragraph 13.
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.
ANSWER:
Respondent restates its answers to Paragraphs 1-13 inclusive as though each
has been fully set forth herein
15.
Part
739,1
containing the “Standards forthe Management ofUsed 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.
ANSWER:
Respondent admits the allegations set forth in Paragraph 15.
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 35 Ill. Adm. Code, Part 739, and “~720.110” refers to 35 Ill. Adm.
Code §720.110.)
5
16.
Laboratory analysis ofa wipe sample offilm on one ofthe walls shows that it had a
TPH content of3.9 mg/wipe ofoil, thus demonstratingthe substancecomprising the film was refined
from crude oil.
ANSWER:
Respondent lacks sufficient information to form a belief as to the truth or
falsity ofthe allegations set forth in Paragraph 16 and therefore denies them.
17.
Additional laboratory analyses of wipe samples of the 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 preventcorrosion. 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.
ANSWER:
Respondent lacks sufficient information to form a belief as to the truth or
falsity of the allegations set forth in the first sentence ofParagraph 17 and therefore denies them.
Respondent denies the remaining allegations set forth in Paragraph 17.
18.
Part 739 defines a “used oil generator” as “any person, by site, whose act orprocess
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.
ANSWER:
Respondent admits the allegations set forth in the first sentence ofParagraph
18. Respondent denies the remaining allegations set forth in Paragraph 18.
6
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.
FTC’s disseminated used oil was discarded material, and thus waste
within the meaning of415 ILCS 5/3.53.
ANSWER:
Respondent admits the allegationsset forth in the first sentence ofParagraph
19. Respondent denies the remaining allegations set forth in Paragraph 19.
20.
“Storage” is defined as “theholding ofhazardous waste for a temporary period, at the
end ofwhich the hazardous waste is treated, disposed of, or stored elsewhere.” §720.110. FTC’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.
ANSWER:
Respondent admits the allegationsset forth in the first sentence ofParagraph
20. Respondent denies the remaining allegations set forth in Paragraph 20.
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 ofusedoil into the environmentand in and around the Property
(and in and on the individuals thereon), constituted “storage” within the meaning of 415 ILCS
5/3.46.
ANSWER:
Respondent admits that the language quoted in the first sentence ofParagraph
21 is set forth at 415 ILCS 5/3/480. Respondent denies the remaining allegations set forth in
Paragraph 21.
22.
Part 739 states that “used oil generators shall not store used oil in units other than
tanks, containers, orunits subjectto 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, exposed surfaces, or
7
people. None ofthe locations in, or on which FTC stored its used oil was a tank, container, or unit
subject to regulation under Parts 724 or 725. Therefore, FTC violated §739.122(a).
ANSWER:
Respondent denies the allegations set forth in the last two sentences of
Paragraph 22. Respondent admits the allegations set forth in the remaining allegations ofParagraph
22.
COUNT II
(Violation 0135 Ill.
Adm. Code Part 739,
Used Oil Disposal)
23.
Mate realleges Paragraphs 1 through 19, above, as if fully set forth in this Count II.
ANSWER: Respondent restatesits answers to Paragraphs 1-19inclusive asthough eachhas
been fully set forth herein.
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 usedoil 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).
ANSWER:
Respondent admits the allegation set forth in Paragraph 24.
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). FIC utterly disregarded the requirements
ofPart 739, Subpart I, particularly §739.181.
ANSWER: Respondent admits the allegations set forth in the first two sentences of
paragraph 25. Respondent denies the allegations set forth in the last sentence ofparagraph 25.
Hazardous used oil
8
26.
The hazardous waste regulations define “solid waste” as “any discarded material that
is not excluded by Section 721.104(a) orthat is not excluded pursuant to 35 Ill. Adm. Code 720.130
and 720.131.” §721.102(a)(1).
ANSWER: Respondent admits that 35111. Adm. Code 721.102(a)(1) contains the language
quoted in paragraph 26.
27.
A material is “discarded” if it is abandoned. §721.1 02(a)(2). And a material is a solid
waste ifit is abandonedby being “accumulated, stored, or treated (but not recycled) before or in lieu
of being abandoned by 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 “discardedmaterial” and thus a “solid
waste” within the meaning of~721.102(a)(1).
ANSWER: Respondent admits the allegations set forth in the first and second sentences of
paragraph 27. Respondent denies the remaining allegations set forth in paragraph 27.
28.
A solid waste, as defined in §721.102, is a “hazardouswaste” if”it exhibits any ofthe
characteristics ofhazardous waste identified in Subpart C of this Part 721.” §721.103(a)(2)(A).
Further, under §721.124, which is part ofSubpart C, a solid waste is a hazardous waste ifit contains
any of the contaminants listed in
§
721.124(b) in their respective threshold concentrations.
§72.1.124(a).
ANSWER: Respondent admits the allegations set forth in paragraph 28.
29.
Some or all ofthe used oil generated by FTC was hazardous because it exhibited the
toxicity characteristic ofhazardous waste. It contained 7.2 mg/L ofchromium as determinedby 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).
ANSWER:
Respondent denies the allegations set forth in the first sentence ofParagraph
29. Respondent lacks sufficient information to form a belief as to the truth or falsity of the
allegations set forth in the second sentence of Paragraph 29. Respondent denies the remaining
allegations set forth in Paragraph 29.
9
30.
Part 720 defines disposal as “the discharge, deposit, injection, dumping, spilling,
leaking, or placing ofany solid waste or hazardous waste into or on any land orwater so that such
solid waste orhazardous waste or any constituent thereofmay enter the 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 ofrinsate containing used oil into
the storm sewer, and its emission of used oil into the atmosphere, separately and collectively,
constituted disposal within the meaning of §720.110.
ANSWER:
Respondent admits that §720.110 contains the language quoted in the first
sentence of Paragraph 30. Respondent denies the remaining allegations set forth in Paragraph 30.
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).
ANSWER:
Respondent admits on a generalbasis the allegations set forth in Paragraph31.
32.
A “facility” is defined, in pertinent part, as “all contiguous land and structures, other
appurtenances, and improvements on the land u’sed for treating, storing, or disposing ofhazardous
waste.” §720.110. FTC usedthe Property for storing and disposing ofhazardous waste. Therefore,
the Property constitutes a “facility” within the meaning of §720.110.
ANSWER:
Respondent admits the allegations set forth in the first sentence ofParagraph
32. Respondent denies the remaining allegations set forth in Paragraph 32.
33.
On information and belief, FTC did not obtain a RCRA permit for the Property.
Therefore, FTC’s disposal of hazardous used oil waste on and about the’ Premises violated
•§703.121(a), and thus violated §739.181(a).
ANSWER:
Respondent admits the allegations set forth in the first sentence ofParagraph
33. Respondent denies the remaining allegations set forth Paragraph 33.
Non-hazardous used oil
10
34.
Alternatively, some ofthe used oil generated by FIC was non-hazardous, and thus
could only be disposed in accordancewith Parts 807 through 815. §739.181(b).
ANSWER:
Respondent admits that to the extent it generated used oil such used oil was
non-hazardous. Respondent denies the remaining allegations set forth in Paragraph 34.
35.
The requirements of Parts 810 through 817 were intended to supersede the
requirements ofPart 807, and persons and facilities subjectto Parts 810 through 817 are not subject
to Part 807. §807.105(c). FTC is subject to Part 815, pertaining to certain landfills, and is thus not
subject to Part 807.
ANSWER:
Respondent admits the allegations sets forth in the first two sentences of
Paragraph
35.
Respondent denies the remaining allegations set forth in Paragraph 35.
36.
The definitions in §810.103 applyto Part 815. §810.101.
ANSWER: Respondent admits the allegations set forth in paragraph 36.
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 of a 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.
ANSWER:
Respondent admits the allegations set
forth in the first three sentences of
Paragraph 37, except that the quoted language is set forth at 415 ILCS 5/3.235 and 415 ILCS
5/3.535.
Respondent admits that it may have generated used oil as a result of manufacturing
automobile parts. Respondent denies the remaining allegations set forth in Paragraph 37.
11
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, orthere is 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 asinto 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 ofthe
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.
ANSWER:
Respondent admits the allegations set forth in the first sentence ofParagraph
38. Respondent denies the remaining allegations set forth in Paragraph 38.
39.
Part 810 defines a “landfill,” in pertinentpart, as “a unit orpart ofa 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 byFIC, is a “unit” within the meaning of*~810.l03.
B.
Part 810 defines a “facility”as “a “site and all equipment and fixtures on a site usedto
treat, store or dispose ofsolid orspecial wastes. A facilityconsists 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 apart ofthe facility. A facilitymayinclude, 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 ofits 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 areawhere wastes
are agronomically spread over ordisked into land orotherwiseapplied 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~8l0.l03.
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.
ANSWER:
Respondent admits the allegations set forth in the first sentence ofParagraph
39. Respondent admits the allegations set forth in the first sentence ofParagraph 39(A) and denies
12
the balance ofsuchsub-paragraph. Respondent denies the allegationsset forth in the last sentence of
Paragraph 39(B) and admits the balance ofsuch sub-paragraph. Respondent admits the allegations
set forth in Paragraph 39(C).
Respondent admits the allegations set forth in Paragraph 39(D).
Respondent admits the allegations set forth in Paragraph 39(E).
40.
FTC’s wanton dissemination, placement and accumulation of used oil waste
throughout the Property has caused the Property to fall within the scope ofthe definition of“landfill”
as defined in §810.103.
ANSWER:
Respondent denies the allegations set forth in Paragraph 40.
41.
Part 815 contains procedural requirements for all landfills exempt from the
requirement to obtain a permit under 415 ILCS
5/21(d),
which reads, in pertinent part,
“ . . .
no
permit shall be required for.
. .
any person conducting a waste-storage, waste-treatment, orwaste-
disposal operation for wastes generatedby suchperson’s own activities which are stored, treated, or
disposed within the site where suchwastes are generated.
. .“
ANSWER:
Respondent admits that Part 815 contains procedural requirements for all
landfills exempt from the requirementto obtain apermitunder 415 ILCS 5/21(d) and admits that 415
ILCS
5/21(d)
contains the language quoted in paragraph 41.
42.
The Act defines “site” as “any location, place, tract ofland, and facilities, including
but not limited to buildings, and improvements usedfor purposes subjectto regulation orcontrol by
this Act or regulations thereunder.” 415 ILCS
5/3.45.
FTC’s use ofthe Property for generation,
storage and disposal ofused oil waste caused the Property to be subjectto regulation and control by
the Act and regulations thereunder. Therefore, the Property is a “site” within the meaning ofthe Act.
ANSWER:
Respondent admits the allegations
set forth in the first sentence ofParagraph
42, except that the quoted language is set forth at 415 ILCS
5/3.460.
Respondent denies the
remaining allegations set forth in Paragraph 42.
43.
Pursuant to 415 ILCS 5/21(d), FTC was exempt from the requirement to obtain a
permit, becauseFTC stored and disposed its used oil wastes on the same site at which FTC generated
13
such wastes. And because FTC caused the Property to become a landfill within the meaning of
§810.103, the Propertybecame subject to Part 815.
ANSWER: Respondent admits that it was exempt from the requirement to obtain a permit
and denies the remaining allegations set forth in paragraph 43.
44.
Part 815 requires that “all landfills regulated under this Part shall fiie an initial facility
report with the Agency as specified in this Subpart to provide information concerning location and
disposal practices ofthe facility.” §815.201.
ANSWER:
Respondent admits the allegations set forth in Paragraph 44.
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).
ANSWER:
Respondent admits that it did not file a report contemplated by §815.201.
Respondent denies the remaining allegations set forth in Paragraph 45.
COUNT III
(Violation of35 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.
ANSWER: Respondent restates its answers to Paragraphs 1-21 and 34-44 inclusive as
though each has been fully set forth herein.
47.
On information and belief, FTC has not filed the report required by §815.201, and
therefore, has violated §815.201..
ANSWER:
Respondent admits that it did not file a report contemplated by §815.201.
Respondent denies the remaining allegations set forth in Paragraph 47.
14
COUNT IV
(Violation of 35 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.
• ANSWER: Respondent restates its answers to Paragraphs 1 17 inclusive asthough eachhas
been fully set forth herein.
49.
Part 739 identifies certain types ofused oil that are not regulated by Part 739, but
ratherby other parts ofIllinois’ plenarywaste regulatory structure. Inparticular, 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).
ANSWER: Respondent admits the allegations set forth in paragraph 49.
50.
Part 739 establishes a rebuttablepresumption that usedoil containing more than 1,000
ppm halogens has been mixed with such a listed hazardous waste. §739.1 10(b)(1)(B).
ANSWER:
Respondent admits the allegations set forth in Paragraph 50.
51.
Some or all ofFTC’s used oil containedmore 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 10(b)(1)(A).
ANSWER:
Respondent denies the allegations set forth in Paragraph
51.
52.
Part 722 requires persons who generate solid waste, as defined in §721.102, to
determine if that waste is hazardous. §722.111.
ANSWER:
Respondent admits the allegations set forth in Paragraph 52.
53.
Mate realleges Paragraph 26, above, as if fully set forth in this Count IV.
ANSWER: Respondent restates its answers to Paragraph 26.
54.
Mate realleges Paragraph 27, above, as if fully set forth in this Count TV.
15
ANSWER:
Respondent restates its answers to Paragraph 27.
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 if its solid waste was hazardous. FTC thus
violated §722.111.
ANSWER: Respondent admits that the quoted language is set forth at 415 ILCS 3.205.
Respondent denies the remaining allegations set forth in Paragraph
55.
COUNT
V
(Violation
of35 Iii. 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.
ANSWER: Respondent restates its answers to Paragraphs 48-5 1 and 26-27 inclusive as
though each has been fully set forth herein.
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 ofhazardous waste because,
on information and belief, its industrial processes first caused the hazardouswaste to become subject
to regulation.
ANSWER:
Respondent admits the allegations set forth in the first sentence of
Paragraph 57. Respondent denies the remaining allegations set forth in Paragraph 57.
58.
“A generator that accumulates hazardous waste formore than 90 days is an operator
of a storage facility and is subject to the requirements of 35 Til. Adm. Code 724 and 725 and the
permit requirements of35 Ill. Adm. Code 702, 703 and 705.
. ..“
§722.134(b). On information and
belief, FIC has accumulated hazardous waste throughout the Property for more than 90 days.
• ANSWER:
Respondent admits the allegations set forth in Paragraph
58.
Respondent
denies the remaining allegations set forth in Paragraph
58.
16
59.
Mate realleges Paragraphs 31 and 32, above, as if fully set forth in this Count V.
ANSWER: Respondent restates its answers to Paragraphs 31 and 32 as though each has
been fully set forth herein.
60.
On information and belief, FTC did not obtain a RCRA permit for the Property.
Therefore,
‘s storage of hazardous waste on and about the Premises violated §703.121(a).
ANSWER:
Respondent admits that it did not obtain a RCRA permit for the Property.
Respondent denies the remaining allegations set forth in Paragraph 60.
COUNT VI
(Violation of35 Iii. 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.
ANSWER: Respondent restates its answers to Paragraphs 48-51, Paragraphs 26-27 and
Paragraphs 30-32 inclusive as though each has been fully set forth herein.
62.
On information and belief, FTC did not obtain a RCRA permit for the Property.
Therefore, FTC’s disposal of hazardous waste on and about the Premises violated §703.121(a).
ANSWER:
Respondent admits that it did not obtain a RCRA permit for the Property.
Respondent denies the remaining allegations set forth in Paragraph 62.
COUNT VII
(Violation of415 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.
17
ANSWER: Respondent restates its answers to Paragraphs 1-13inclusive asthough each has
been fully set forth herein.
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).
ANSWER:
Respondent admits that a portion ofthe Act contains the language quoted in
Paragraph 64. Respondent denies the remaining allegations set forth in Paragraph 64.
65.
Mate realleges Paragraph 21, above, as if fully set forth in this Count VII.
ANSWER: Respondent restates its answerto Paragraphs 21 above as though fully set forth
herein.
66.
The Act defines “disposal” as “the discharge, deposit, injection, dumping, spilling,
leaking or placing ofany waste or hazardous waste into or on any land or water or into any well so
that such waste or hazardous waste or any constituent thereof may enter the environment or be
emitted 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 andaround. the Property (and in
and on the individuals thereon), constitutes “disposal” under this definition.
ANSWER:
Respondent denies the allegations set forth in Paragraph 66, except that
Respondent admits the quoted language is set forth al 415 ILCS 3.185.
67.
Mate realleges Paragraphs 37 through 44, above,as iffully set forth in this Count VII.
18
ANSWER: Respondent restates its answers to Paragraphs 3 7-44 inclusive as though each
has been fully set forth herein.
68.
On information and belief, FTC has not filed the report required by §815.201, and
therefore, has violated §815.201.
ANSWER:
Respondent admits that it has not filed a report contemplated by §815.201.
Respondent denies the remaining allegations set forth in Paragraph 68.
69.
Therefore, FTC has violated 415 ILCS 5/21(e) by disposing ofwastes at a facilitythat
does not meet the requirements ofthis Act and ofregulations and standards thereunder.
ANSWER:
Respondent denies the allegations set forth in Paragraph 69.
COUNT VITI
(Violation of415 ILCS 5/9(a): Statutory Prohibition ofAir Pollution)
70.
Mate reallegesParagraphs 1 through 13, above, asif fully set forth in this Count Vifi.
ANSWER: Respondent restatesits answers to Paragraphs 1-13 inclusive as though eachhas
been fully set forth herein.
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 regulations or
standards adopted by the Board under this Act.
415 ILCS 5/9(a).
ANSWER:
Respondent admits allegations set forth in Paragraph 71.
19
72.
The Act defines “contaminant” as “any solid, liquid, or gaseous matter, any odor, or
any form ofenergy, from whatever source.” 415 ILCS
5/3.06.
The oil generatedby FTC’s industrial
piocesses is a “contaminant” within the meaning ofthe Act.
ANSWER:
Respondent denies the allegations set forth in Paragraph 72, except that
Respondent admits the quoted language is set forth at 415 ILCS
5/3.165.
73.
The Act defines “air pollution” as “the presence in the atmosphere ofone or more
contaminants in sufficient quantities and of such characteristics and duration as to be injurious to
human, plant, or animal life, to health, orto 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. FTC’s
emission ofoil has also been injuriousto 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, “airpollution,”
as defined by the Act.
ANSWER:
Respondent denies the allegations set forth in Paragraph 73, except that
Respondent admits the quoted language is set forth at 415 TLCS
5/3.115.
74.
BecauseFTC tended to cause, and did cause, air pollution at the Property, FTC violated
the prohibition in 415 ILCS 5/9(a).
ANSWER:
Respondent denies the allegations set forth in Paragraph 74.
COUNT IX
(Violation of 415 ILCS 5/21(e): Statutory Prohibition of Water Pollution)
75.
Mate realleges Paragraphs 1 through 13, above, as if fully set forth in this Count TX.
ANSWER: Respondent restates its answers to Paragraphs 1-13 inclusive as though eachhas
been fully set forth herein.
76.
The Act states, in pertinent part, as follows:
20
No person shall:
(a) Cause or threaten orallow the discharge ofany contaminants into the environment in any
State so as to cause ortend to cause water pollution in Illinois, either aloneorin combination
with matter from other sources, or so as to violate regulations or standards adopted by the
Pollution Control Board under this Act.
415 ILCS
5/12(a).
ANSWER:
Respondent the allegations set forth in Paragraph 76.
77.
Mate realleges Paragraph 72, as if fully set forth in this Count IX.
ANSWER: Respondent restates its answerto Paragraph 72 above as though fully set forth
herein.
• 78.
The Act defines “water pollution” as “such alteration of the physical, thermal,
chemical, biological or radioactive properties of any waters of the State, or such discharge ofany
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.
ANSWER:
Respondent admits the quoted language is set forth at 415 TLCS
5/30.545.
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 ILCS
5/3.56.
Springbrook Creek and Salt Creek are thus within the scope of
“waters ofthe State” as used in the Act.
ANSWER:
Respondent lacks sufficient information to form a belief as to the truth or
falsity ofthe allegations set forth in the first and last sentence ofParagraph 79 and therefore denies
them. Respondent admits that the quoted language in the second sentence of Paragraph 79 is set
forth at 415 ILCS
5/3.550.
21
•
80.
On information and belief, by discharging oil wastesinto the storm sewers leading to
Springbrook Creek,FTC altered the physical and chemical properties ofSpringbrook Creek in such
manner aswas likely to create a nuisance and render suchwaters harmful, detrimental, and injurious
to public health, safety and welfare, and to commercial and other legitimate uses.
ANSWER:
Respondent denies the allegations set forth in Paragraph 80.
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.
ANSWER:
Respondent denies the allegations ~etforth in Paragraph 81.
82.
Illinois regulations prohibit the discharge of any contaminant into the waters of the
Sate from a point source except in compliance with a permit issued under the National Pollutant
Discharge Elimination System (“NPDES”). §309.102.
ANSWER:
•
Respondent admits the generalized and summary allegation set forth in
Paragraph 82.
83.
The Illinois regulations adopt the definitions of the federal Clean Water Act with
respectto terms relating to NPDES. §301.325. “Point source” is such a term, and is defined as “any
discernible, confined, and discrete conveyance, including but not limited to, any pipe,ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feedingoperation,
landfill leachate collection system, vessel or other floating craft from which pollutants are ormay be
discharged. 40 CFR
§
122.2. The term, “pollutant” includes solid waste and industrial waste. 40
CFR
§
122.2.
ANSWER:
Respondent admits the allegations set forth in Paragraph 83.
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. Therefore, the storm sewer on the Property is a point source
within the meaning of 40 CFR
§
122.2.
22
ANSWER:
Respondent denies the allegations set forth in the first sentence ofParagraph
84. Respondent lacks sufficient information to form a belief as to the truth or falsity of the
allegations set forth in the second and last sentence ofParagraph 84 and therefore denies them.
85.
On information and belief, FTC did not obtain an NPDES permit forthe discharge of
its oil wastes via the storm sewer on the Property.
ANSWER:
Respondent admits it did not obtain an NPDES permit. Respondent denies the
remaining allegations set forth in Paragraph 85.
86.
Discharge permit ILR005471 was issued forthe Property. That permit allows solely
discharges of“storm water,” which it defines as “waterrunoff, 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 1LR00547 1.
ANSWER:
Respondent admits the allegations set forth in the first two sentences of
Paragraph 86. Respondent denies the remaining allegations set forth in Paragraph 86.
87.
Therefore, FTC violated the prohibition of 415 ILCS
5/12(a)
because it caused,
threatened and allowed the discharge ofcontaminants 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.
ANSWER:
Respondent denies the allegations set froth in Paragraph 87.
AFFIRMATIVE DEFENSES
First Affirmative Defense
.
(Third-Party Sources of Contaminants)
To the extent the Property has been impaired by contaminants, if at all, the sources ofsuch
contaminants are prior owners or operators of the Property, including Complainant and Nolato
23
Sliieldmate, Inc., a dissolved Illinois corporation (“Nolato”), and are from plastic injection molding
operations by suchparties.
Second Affirmative Defense
(Failure to Join an Indispensable Party)
To the extent the Property has been impairedby contaminants, if at all, the contaminants of
concern are from plastic injection molding operationsby Complainant, and then Nolato, during the
10 years immediately preceding the occupancy of the Property by Complainant. Nolato is an
indispensable party to the adjudication ofthe matters at issue. Complainant’s failure to join Nolato
warrants dismissal ofthe Complaint.
Third Affirmative Defense
(Lawful Sources of Contaminants)
To the extent the Property has been impaired by contaminants, if at all, the sources ofsuch
contaminants are lawful uses of and activities at the Property, including vehicle exhaust and
equipment operation.
Fourth Affirmative Defense
(Estoppel)
By virtue of Complainant’s failure to take reasonable actions to discover, abate andlor
disclose the contaminants on the Property prior to Respondent’s taking possession, Complainant
should be estopped and ought not be permitted to maintain this action against Respondent.
Fifth Affirmative Defense
24
(Estoppel)
By virtue ofComplainant’s attempts to leasethe Property to a new tenant immediately after
Respondent moved out, Complainant should be estoppedand ought not be permitted to maintain this
action against Respondent.
Sixth Affirmative Defense
(Duplicative Proceeding)
Count TX is duplicative of a pending enforcement action commenced by the Illinois
Environmental Protection Agency.
•
Seventh
Affirmative Defense
(Mitigating Circumstances)
Complainant’s interpretations of the Act and use of the citizen complaint procedure are
without precedent.
Eighth Affirmative Defense
(Mitigating Circumstances)
The duration ofviolations ofthe Act, if any, was limited.
Ninth Affirmative Defense
(Mitigating Circumstances)
The gravity ofviolations of the Act, if any, was minimal. No violation of the Act, if any,
proximatelycaused a threat to public health orthe environment orproximately caused an exceedance
ofpermitted concentrations or quantities ofany material.
.
25
Tenth Affirmative Defense
(Mitigating Circumstances)
Respondent responded promptly to the concerns ofComplainant and violations ofthe Act, if
any, promptly were abated.
Eleventh Affirmative Defense
(Mitigating Circumstances)
No significant economic benefits were accrued by Respondent as a proximate cause of
violations ofthe Act, if any.
Respectfully submitted,
One of the Attorneys for Respondent
Jeremy A. Gibson
Mitchell S. Chaban
MASUDA, FUNAJI, EIFERT & MITCHELL, LTD.
203 North LaSalle Street, Suite 2500
Chicago, Illinois 60601
N:\SYS2O\6 1 85\M1SC\PLEAD1NGS\42Answer5~18-04b.doc
26
PROOF OF SERVICE
I, the undersigned, do hereby state on oath that I served the foregoing RESPONDENT’S
ANSWER
TO COMPLAINT AND AFFIRMATIVE DEFENSES upon
Carey S. Rosemarin,
Law Offices ofCarey S. Rosemarin, P.C. 500 Skokie Boulevard, Suite 510, Northbrook, IL 60062
by placing a copy ofthe same in a properly addressed, postage prepaid, envelopes and depositing
the same in the U.S. Mail Chute at 203 N. LaSalle Street Suite 2500, Chicago, Illinois 60601 on
this
~\~D
day of
,
2004.
•
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Subscribed and sworn to before me this
~
day of
M.
&&.-~
,
2004.
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