RECE~VED
Ct.ERK’S OFFICE
BEFORE THE
ILLINOIS POLLUTION CONTROL
BOARD
JUL
2 02004
PEOPLE OF
THE STATE OF ILLiNOIS
)
STATE
OF ILLINOIS
PolIut~onControl Board
Complainant,
)
)
-vs-
)
PCB No.
04-205
)
(Enforcement)
ALL STATES PAINTING, iNC.
)
)
Respondent.
)
)
NOTICE
OF FILING
Dorothy Gunn, Clerk
JenniferBonkowski
Illinois Pollution Control Board
Assistant Attorney General
100 West Randolph Street
Environmental Bureau/Springfield
Suite 11-500
500 South
Second Street
Chicago, Illinois
60601
Springfield,
IL
62706
PLEASE TAKE NOTICE that on July 20, 2004, Respondent, All
States Painting, Inc.,
filed with the Clerk ofthe Illinois Pollution Control Board the attached Answer and Affirmative
Defenses, a copy which is served upon you.
ALL STATES PAINTING,
INC.
By:__
Jeryl
L.
Olson
SEYFARTH SHAW LLP
55
East Monroe Street
Suite 4200
Chicago, Illinois
60603
(312)346-8000
THIS FILING IS MADE ON RECYCLED PAPER
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10735990.1
RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
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PEOPLE OF THE STATE OF ILLINOIS
)
STATE OF ILLINOIS
)
Pollution Control
Board
Complainant,
)
)
-vs-
)
PCB No.
04-205
)
(Enforcement)
ALL STATES PAINTING, INC.
)
)
Respondent.
)
)
RESPONDENT’S ANSWER AND AFFIRMATIVE DEFENSES
Respondent, All States Painting, Inc.
(“Respondent”), by and through its attorneys,
Seyfarth Shaw LLP, for its answer and
affirmative defenses states as follows:
COUNT
I
AIR POLLUTION
COMPLAINT ¶1:
This Complaint
is brought by the Attorney General on her own motion and at the request
ofthe Illinois Environmental Protection Agency (“Illinois EPA”), pursuant to
the terms and
provisions ofSection
31 ofthe Illinois Environmental Protection Act
(“Act”), 415
ILCS 5/31
(2002).
ANSWER:
The allegations contained in Paragraph
1 ofthe Complaint do not require an
answer, to
the extent the allegations are relevant, Respondent lacks specific knowledge and demands proof
thereof.
COMPLAINT ¶2:
The Illinois EPA is an agency ofthe
State of Illinois created by the Illinois
General
Assembly in Section
4 ofthe Act, 415
ILCS
5/4 (2002), and charged,
inter alia,
with the duty of
enforcing the Act in proceedings before the Illinois Pollution Control Board (“Board”).
THIS FILING IS MADE ON RECYCLED PAPER
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10735990.1
ANSWER:
The allegations contained in Paragraph 2 ofthe Complaint do not require an
answer, to
the extent the allegations are relevant, Respondent lacks specific knowledge and demands proof
thereof
COMPLAINT ¶3:
The Complaint is brought pursuant to Section
31
of the Act, 415
ILCS 5/31
(2002), after
providing the Respondent with notice and opportunity for a meeting with the Illinois EPA.
ANSWER:
The allegations of the Complaint speak for themselves.
Respondent admits that it was
provided with notice and opportunity for a meeting with the Illinois EPA, and that
Complainant
purports to bring the action pursuant to Section
31
ofthe Act, 415
ILCS
5/31
(2002).
COMPLAINT ¶4:
Respondent, All States Painting, Inc.
(“All States”), is an Illinois corporation in good
standing, located in Alexander, Morgan County, Illinois.
Its registered agent is Ronald Desyllas,
All States Painting, Inc., P.O. Box 110, Alexander, Illinois 62601.
ANSWER:
Respondent admits the allegations contained in Paragraph 4.
COMPLAINT
¶5:.
At all times relevant to this Complaint, All States has been a contractor hired by the
Illinois Department ofTransportation (“IDOT”) for bridge painting.
From the interviews of
IDOT personnel and All States, the Illinois EPA learned that
a bridge painting project began in
the summer 2002
at the Route
104 Bridge over the Illinois River by All-States.
The project
began with the initial wet blasting ofapproximately 430,000 square feet ofsteel and the
subsequent applications ofa gray zinc-based rust proofprimer, a white epoxy intermediate
primer, and a blue oil-based, polyurethane finish coat.
Airless spray guns and pump delivery
system were used to
apply the coatings.
ANSWER:
Respondent admits that it has been a contractorhired by the Illinois Department of
Transportation for bridge painting.
Respondent is without knowledge to form a basis to admit or
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10735990.1
deny the remaining allegations contained in Paragraph
5,
and therefore denies the allegations
contained therein and
demands proofthereof
COMPLAINT ¶6:
On June
19, 2003, the Illinois EPA received a complaint ofpaint over spray from the
Route 104 Bridge over the Illinois River, near Meredosia, Illinois.
The complainant stated that
on June
18, 2003, he
observed a blue film in the water after placing his boat into the Illinois
Riverat the Meredosia boat ramp, and that the blue paint left marks on his boat.
ANSWER:
Respondent is without knowledge to form
a basis to admit or deny the allegations
contained in Paragraph
6, and therefore denies the allegations contained therein and
demands
proofthereof
COMPLAINT
¶7:
Later that day on June 19, 2003, Illinois EPA inspectors visited the site, and observed
blue paint in the water and paint residue along the river bank.
The inspectors observed four
painters using airless spray guns to
sprayblue paint on the east halfofthe bridge.
The inspectors
further noted that there were no tarps near the areas being sprayed, and estimated that halfofthe
paint being sprayed was emitted
to
the air rather than adhering to the surface of the bridge.
ANSWER:
Respondent is without knowledge to form a basis to admit or deny the allegations
contained in Paragraph 7, and therefore denies the allegations contained therein and demands
proofthereof
COMPLAINT ¶8:
While on site on June
19, 2003, the Illinois EPA inspectors spoke with a representative of
All States, who stated that the company had received complaints regarding the over-spray on
vehicles.
ANSWER:
Respondent is without knowledge to form a basis to
admit or deny the allegations
contained in Paragraph 8, and therefore denies the allegations contained therein and demands
proofthereof
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COMPLAINT ¶9:
On June 20, 2003, a representative ofIDOT informed the Illinois EPA that a ruptured
paint line caused the spill ofblue paint into the river.
ANSWER:
Respondent is without knowledge to form a basis to admit or deny the allegations
contained in Paragraph 9, and therefore denies the allegations contained therein and demands
proofthereof
COMPLAINT¶10:
On June 23, 2003, the Illinois EPA received another complaint regarding over spray from
the Route
104 Bridge.
The complainant stated that on June 20, 2003~he observed over-spray
falling into the river, and that the paint in the river left marks on his boat.
The complainant also
noted that All States was not using tarps to
control the over spray.
ANSWER:
Respondent is without knowledge to form
a basis to admit or deny the allegations
contained in Paragraph
10, and therefore denies the allegations contained therein and demands
proofthereof
COMPLAINT ¶11:
On June 24, 2003, Illinois EPA inspectors again visited the site, observing over-spray
from the bridge falling into the Illinois River.
Illinois EPA inspectors noted containment with
drift screening in place on the underside ofthe bridge decking on the eastern span, and tarp
rigging on the side ofthe bridge adjacent to the Village of Meredosia.
However, no tarping or
containment was in place near the center span where the workers were painting.
Over-spraywas
visible to the Illinois EPA inspectors.
The inspectors again noted the presence ofblue paint in
the river and
blue foam at the public boat ramp south of Route
104.
ANSWER:
Respondent is without knowledge to form
a basis to admit or deny the allegations
contained in Paragraph
11, and
therefore denies the allegations contained therein and demands
proofthereof
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COMPLAINT ¶12:
On June 24,
2003, a representative ofAll States stated that the tarps referenced in
paragraph 11
were added after numerous complaints of paint damage to vehicles and nearby
buildings.
In addition, the All States representative admitted that a fitting on
a pressurized
airline broke,
causing the spill ofapproximately one gallon ofblue paint.
While on
site, the
Illinois EPA inspector noted the contents ofthe paint buckets at the site.
Subsequent to the site
visit, the Illinois EPA inspector attained the data sheets and MSDS for the Sherwin Williams
paint that was used to paint the bridge.
A white epoxy was first sprayed onto the bridge,
followed by a blue oil-based polyurethane finish coat.
Part A of the white epoxy contained 2.09
lbs/gal ofVOC,
and Part B ofthe white epoxy contained 1.67 lbs/gal
of VOC.
The blue paint
was composed ofACROLON 218 HS Acrylic Polyurethane Gloss, with a VOC content of2.82
lbs/gal.
ANSWER:
Respondent is without knowledge to
form a basis to admit or deny the allegations
contained in Paragraph 12,
and therefore denies the allegations contained therein and demands
proofthereof
COMPLAINT ¶13:
On June 25, 2003,
the Illinois EPA inspectors met with representatives ofAll States and
IDOT to discuss future actions to prevent the over-spray from the bridge.
ANSWER:
Respondent admits the allegations contained in Paragraph
13.
COMPLAINT ¶14:
On July
1, 2003, the Illinois EPA issued
a Violation Notice (“YN”) to All States.
ANSWER:
Respondent admits the allegations contained in Paragraph
14, but denies it violated the
Act as alleged.
COMPLAINT ¶15:
All States submitted a proposed Compliance Commitment Agreement (“CCA”) on
July
11,
2003, stating that it had taken steps to contain the over-spray aftermeeting with Illinois
EPA officials.
The Illinois EPA rejected the proposed CCA on August
11, 2003.
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ANSWER:
Respondent admits the allegations contained in Paragraph
15.
COMPLAINT ¶16:
On September 17, 2003, the Illinois EPA issued
a Notice ofIntent to Pursue Legal Action
(“NITPLA”) letter to All
States.
ANSWER:
Respondent admits the allegations contained in Paragraph
16.
COMPLAINT ¶17:
Section 9(a) ofthe Act, 415
ILCS
5/9(a)
(2002), provides:
No person shall:
a.
Cause or threaten or allow the discharge or emission ofany 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;
ANSWER:
The allegations contained in Paragraph
17 ofthe Complaint do not pertain to Respondent
and
no response
is required; to
the extent a response is required, Respondent admits that
Paragraph
17 correctly quotes the referenced section ofthe Act as ofthe date noted.
COMPLAINT ¶18:
Section
3.115 ofthe Act,
415 ILCS
5/3.115
(2002), defines “air pollution” as follows:
“AIR POLLUTION” is the presence in the atmosphere ofone or
more contaminants in sufficient quantities and ofsuch
characteristics and
duration as to be injurious to
human, plant,
or
animal life, to
health, or to property, or to unreasonably interfere
with the enjoyment oflife orproperty.
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10735990.1
ANSWER:
The allegations contained in Paragraph 18 ofthe Complaint do not pertain to Respondent
and no response is required; to
the extent a response is required, Respondent admits that
Paragraph 18 correctly quotes the referenced section ofthe Act as ofthe date noted.
COMPLAINT ¶19:
Section
3.165
ofthe Act, 415 ILCS
5/3.165
(2002), defines “contaminant” as follows:
“CONTAMINANT” is any solid, liquid, or gaseous matter, any
odor, or any form of energy, from whatever source.
ANSWER:
The allegations contained in Paragraph 19 ofthe Complaint do not pertain to Respondent
and no response, is required; to the extent a response is required, Respondent admits that
Paragraph
19 correctly quotes the referenced
section of the Act as of the date noted.
COMPLAINT
¶20:
Section 201.141 ofthe Board’s Air Pollution Regulations, 35 Ill.
Admin. Code 201.141,
provides:
No person shall cause or threaten or allow the discharge or
emission ofany contaminant
into the environment in any State so
as, either alone orin combination with contaminants from
other
sources, to cause or tend to cause airpollution
in Illinois, or so as
to violate the provisions ofthis Chapter, or so as to prevent the
attainment or maintenance ofany applicable ambient air quality
standard.
ANSWER:
The allegations contained in Paragraph 20 ofthe Complaint do not pertain to
Respondent
and no response is required; to the extent
a response is required, Respondent admits that
Paragraph 20
correctly quotes the referenced section of the Board’s Air Pollution Regulations.
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COMPLAINT ¶21:
By causing, threatening or allowing the discharge or emission ofany contaminant into the
air ofthe
State, All States has violated Section 9(a) ofthe Act, 415 ILCS
5/9(a)
(2002), and
Section 201.141 ofthe Board’s AirPollution Regulations, 35 Ill. Admin. Code 201.141.
ANSWER:
Respondent denies the allegations contained in Paragraph 21.
WHEREFORE, Respondent respectfully requests that the Illinois Pollution
Control
Board dismiss the Complaint with prejudice, award Respondent its costs and attorneys’ fees, and
order such further relief as appropriate and just.
COUNT II
WATER POLLUTION
COMPLAINT ¶1-17:
Complainant realleges and incorporates herein by reference paragraphs
1
through
16 and
19 of Count I as paragraphs
1
through 17 ofthis Count II.
ANSWER:
Respondent restates its answers to
all previous allegations
set
forth herein.
COMPLAINT ¶18:
Section
12(a) ofthe Act, 415
ILCS
5/12(a)
(2002), provides, as follows:
No person shall:
a.
Cause
or threaten or allow the discharge ofany contaminants into the
environment in any State so as to cause or tend to cause water pollution in
Illinois, either alone or in combination with matter from other sources, or
so as to violate regulations or standards adopted by the Pollution Control
Board under this Act;
***
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ANSWER:
The allegations contained in Paragraph
18 of the Complaint
do not pertain to Respondent
and no response is required; to the extent a response is required, Respondent admits that
Paragraph 18
correctly quotes the referenced section ofthe Act as of the date noted.
COMPLAINT ¶19:
Section 3.545 ofthe Act, 415 ILCS 5/3.545 (2002), contains the following definition:
‘WATER POLLUTION’
is such alteration ofthe physical,
thermal, chemical, biological,
orradioactive properties ofany
waters ofthe State, or such discharge ofany contaminant into any
waters ofthe State,
as will or is likely to create a nuisance or
render such waterharmful 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.
ANSWER:
The allegations contained in Paragraph
19 ofthe Complaint do not pertain to Respondent
and no response is required; to
the extent a response is required, Respondent admits that
Paragraph 19 correctly quotes the referenced section ofthe Act as ofthe date noted.
COMPLAINT
¶20:
Section
3.550
ofthe Act, 415
ILCS
5/3.550
(2002), contains the following definition:
‘WATERS’
means all accumulations ofwater, surface and
underground, natural and artificial, public and private, orparts
thereof, which are wholly orpartially within, flow through, or
border upon this State.
ANSWER:
The allegations contained in Paragraph 20 ofthe Complaint do
not pertain to Respondent
and
no response is required; to
the extent a response is required, Respondent admits that
Paragraph 20 correctly quotes the referenced section ofthe Act as ofthe date noted.
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COMPLAINT ¶21:
TheIllinois River is a “water” ofthe
State as that term is defined in Section
3.550
ofthe
Act, 415 ILLS
5/3.550
(2002).
ANSWER:
The statement in Paragraph 21
constitutes a legal opinion or conclusion forwhich no
answer is necessary.
IfRespondent is incorrect in the foregoing and an answer is required, then
said allegations are denied.
COMPLAINT
¶22:
The Respondent, All States, has caused, allowed, or threatened the discharge of
contaminants to waters ofthe State so as to
cause or tend to
cause water pollution in Illinois or to
violate the Board’s regulations or standards through the discharge ofpaint to the Illinois River.
ANSWER:
Respondent denies the allegations contained in Paragraph 22.
COMPLAINT ¶23:
The discharges ofcontaminants from the Respondent’s bridge painting have caused,
threatened or allowed waterpollution in that such discharges have likely rendered the waters of
the State harmful or detrimental or injurious to public health,
safety orwelfare, or to agricultural,
recreational, or other legitimate uses, or to livestock, wild animals, birds,
fish or other aquatic
life and have likely created a nuisance.
ANSWER:~
Respondent denies the allegations contained in Paragraph 23.
COMPLAINT
¶24:
By causing, allowing or threatening the discharge ofcontaminants to waters ofthe State
so as to cause or tend to
cause waterpollution in
Illinois or to violate the Board’s regulations or
standards, the Respondent has violated Section 12(a) ofthe Act, 415 ILCS
5/12(a)
(2002).
ANSWER:
Respondent denies the allegations contained in Paragraph 24.
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10735990.1
WHEREFORE, Respondentrespectfully requests that the Illinois Pollution Control
Board dismiss the Complaint with prejudice, award Respondent its costs and attorneys’ fees, and
•order such further relief as appropriate and just.
COUNT III
WATER POLLUTION HAZARD
COMPLAINT ¶1-17:
Complainant realleges and incorporates herein by reference paragraphs
1 through
16 and
19 ofCount I as paragraphs
1 through
17 ofthis Count III.
ANSWER:
Respondent restates its
answers to
all previous allegations set forth herein.
COMPLAINT ¶18-20:
Complainant
realleges and incorporates herein by reference paragraphs
19 through 21 of
Count II as paragraphs
18
through 20 ofthis Count III.
ANSWER:
•
Respondent restates its answers to
all previous allegations set forth herein.
COMPLAINT
¶21:
Section
12(d) ofthe Act, 415
ILCS
5/12(d)
(2002), provides as follows:
No person shall:
d.
Deposit any contaminants upon the land in such place and manner so as to
create a water pollution hazard;
ANSWER:
•The allegations contained in Paragraph 21
of the Complaint do
not pertain to
Respondent
and no response is required; to the extent a response is required, Respondent admits that
Paragraph 21
correctly quotes the referenced section ofthe Act as ofthe date noted.
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10735990.1
COMPLAINT
¶22:
The Respondent, All States, has caused or allowed a blue foam or residue to remain on
the river bank for a period of several days.
In so doing, the Respondent caused or allowed
contaminants to be deposited upon the land in such place and manner as to
create a water
pollution hazard through its
proximity to the Illinois River.
ANSWER:
Respondent denies the allegations contained in Paragraph 22.
COMPLAINT
¶23:
By depositing contaminants upon the land in such place and manner as to create a water
pollution hazard, the Respondent has violated Section
12(d) ofthe Act, 415
ILCS 5/12(d) (2002).
ANSWER:
•
Respondent denies the allegations contained in Paragraph 23.
WHEREFORE, Respondent respectfully requests that the Illinois Pollution Control
Board dismiss the Complaint with prejudice, award Respondent its costs and
attorneys’ fees,
and
order such further relief as appropriate and just.
COUNT IV
OFFENSIVE CONDITIONS
COMPLAINT ¶1-17:
Complainant realleges and incorporates herein by reference paragraphs
1
through 16 and
19 of Count I as paragraphs
1
through
17 of this Count IV.
ANSWER:
Respondent restates its
answers to
all previous allegations set forth herein.
COMPLAINT ¶18-21:
Complainant realleges and incorporates herein by reference paragraphs
18 through 21 of
Count II as paragraphs
18 through 21 ofthis Count IV.
ANSWER:
Respondent restates its
answers to all previous allegations set forth herein.
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10735990.1
COMPLAINT
¶22:
Section 302.203 ofthe Board’s Water Pollution Regulations, 35 III. Admin. Code
3 02.203, prohibits offensive conditions in waters ofthe State:
Waters ofthe State shall be free from
sludge or bottom deposits,
floating debris, visible oil, odor, plant or algal, color or turbidity of
other thannatural origin...
ANSWER:
The allegations contained in Paragraph 22 ofthe Complaint do not pertain to Respondent
and no response is required;
to the extent a response is required, Respondent admits that
Paragraph 22 correctly quotes the referenced section of the Board’s Water Pollution Regulations.
COMPLAINT
¶23:
These discharges ofpaint from the Respondent’s bridge painting have caused offensive
conditions in the Illinois River in that the waters were ofa blue cast, color or turbidity ofother
•than natural origin.
The Respondent has thereby violated 35 Ill. Admin. Code
3 02.203
and
Section
12(a) ofthe Act, 415
ILCS 5/12(a) (2002).
ANSWER:
Respondent denies the allegations contained in Paragraph 23.
WHEREFORE, Respondent respectfully requests that the Illinois Pollution Control
Board dismiss the Complaint with prejudice, award Respondent its costs and attorneys’ fees,
and
order such further relief as appropriate and just.
AFFIRMATIVE DEFENSES
Respondent asserts the following affirmative defenses without waiving Complainant’s
obligation to
meet its burden of proofand without assuming any burden ofproofnot otherwise
imposed by law.
1.
Respondent took affirmative actions to prevent over spray from contaminating
water, air and
land near the Illinois River.
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10735990.1
2.
Respondent performed mitigation after meeting with the Illinois
EPA by
discontinuing the use ofspray guns and implementing the use ofhand rollers to applypaint.
3.
Respondent reserves its
right to
amend this Answer, including its affirmative and
other defenses, to
assert any defenses that further investigation
and discovery reveal to be
appropriate.
WHEREFORE, Respondent respectfully requests that the Illinois Pollution Control
Board dismiss the Complaint with prejudice, award Respondent its costs and attorneys’ fees, and
order such further relief as appropriate and just.
DATED: July
20, 2004
Respectfully submitted,
ALL STATES PAINTING,
INC.
By
~2tts
Jeryl
L. Olson
SEYFARTH SHAW LLP
55
East Monroe Street
Suite 4200
Chicago, Illinois 60603
(312) 346-8000
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10735990.1
CERTIFICATE OF SERVICE
L
Wo
(1~1an
attorney, certifies that ~‘kcaused
a true
and correct copy ofthe
foregoing
RESPONDENT’S ANSWER AND AFFIRMATIVE DEFENSES
to be served upon:
•
Dorothy Gunu, Clerk
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois
60601
via courier, and
Jennifer Bonkowski, Esq.
Assistant Attorney General
Environmental Bureau/Springfield
500 South Second Street
Springfield,
Illinois
62706
via U.S. Mail, having same placed in a properly addressed, postage prepaid envelope
and
deposited in the U.S.
Mail at
55
East Monroe Street, Chicago, Illinois this 20th day ofJuly,
2004.
~2f~
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