RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARBLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS
)
LISA MADIGAN, Attorney General
)
State of Illinois,
)
Complainant,
)
)
)
JUL 23 2004
STATE OF ILLINOIS
Pollution Control Board
PCB 04-192
(Enforcement-Land, Water)
vs.
)
SMITHFIELD PROPERTIES, L.L.C.
An Illinois limited liability Company,
WOOTON CONSTRUCTION LTD., an
Illinois corporation, and CHICAGO SUN-TIMES,
INC., a Delaware Corporation,
)
)
)
)
)
)
)
Respondents.
)
NOTICE OF FILING
TO:
Zemeheret Bereket-Ab, Esq.
Assistant Attorney General
Environmental Bureau
1 88 W. Randolph Street, 20th Floor
Chicago, Illinois 60601
Kevin B. Hynes
O’Keefe, Lyons & Hynes, LLC
30 North LaSalle Street
Suite 4100
Chicago, Illinois 60602
PLEASE TAKE NOTICE that I have today filed with the Clerk of the Pollution Control
Board
Chicago Sun-Times, Inc.’s
Answer, a copy of which is herewith served upon you.
Janine M. Land ow-Esser
Michael S. Mostow
QUARLES & BRADY LLC
500 W. Madison Street, Suite 3700
Chicago, Illinois 60661
312.715.5000
ATTORNEYS FOR RESPONDENT
CHICAGO SUN-TIMES, INC.
THIS DOCUMENT IS SUBMITTED ON RECYCLED PAPER
DATED:
July 23, 2004
QBCHI\20 1244.7001 9\378899. I
RECE~VED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARLCLERK’s OFFICE
PEOPLE OF THE STATE OF ILLINOIS
)
JUL 232004
LISA MADIGAN, Attorney General
)
STATE OF ILLINOIS
State ofIllinois,
)
Pollution
Control Board
)
Complainant,
)
)
No. PCBNo. 04-192
vs.
)
(Enforcement-Land &
)
Water)
SMITHFIELD PROPERTIES, L.L.C.
)
An Illinois limited liability
)
Company, WOOTON CONSTRUCTION
)
LTD., an Illinois corporation, and
)
CHICAGO SUN-TIMES, INC., a Delaware
)
Corporation,
)
)
Respondents.
)
ANSWER
Respondent, Chicago Sun-Times, Inc. (“Sun-Times), by its attorneys, Quarles & Brady
LLP, for its Answer to Complainant’s Complaint, states as follows:
1.
VIOLATIONS BY SMITHFIELD AND WOOTON
COUNT I
FAILURE TO PERFORM SITE EVALUATION AND CLASSIFICATION
1.
This Complaint is brought on behalfofthe People ofthe State ofIllinois, by Lisa
Madigan, Attorney General ofthe State of Illinois, on her own motion, and at the request ofthe
Illinois Environmental Protection Agency (“Illinois EPA”) pursuant to the terms and provision of
Section 31 of the Illinois Environmental Protection Act (“Act”), 415 ILCS 5/31 (2002).
ANSWER:
Sun-Times admits the allegations in paragraph 1.
2.
At all times relevant to this Complaint, Smithfield Properties, L.L.C.
(“Smithfield”) was and is an Illinois limited liability company.
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 2.
THIS DOCUMENT IS SUBMITTED ON RECYCLED PAPER
3.
At all times relevant to this Complaint, Wooton Construction, Ltd. (“Wooton”)
was and is an Illinois corporation.
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 3.
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 areawhich 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 home for its Daily News fleet maintenance garage.
ANSWER:
Sun-Times admits that the property in issue is located at 222 South Racine
Avenue in Chicago, Illinois. Sun-Times is without knowledge or information sufficient to form
a belief as to the truth or falsity ofthe allegations in the second sentence in paragraph 4. Sun-
Times denies the allegations in the third sentence ofparagraph 4.
5.
Historically, the Site has had several petroleum underground storage tanks
(“USTs”). Some of the USTs were installed as far back as the
1950’s.
Some ofthe USTs have
been removed and some still remain abandoned in place at the Site.
ANSWER:
Sun-Times admits the allegations in the first and third sentences ofparagraph
5.
Sun-Times is without knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations in the second sentence in paragraph
5.
6.
From sometime prior to 1917 until it sold the property to Smithfield in October
1999, the Sun-Times was the owner ofthe Site and all ofthe USTs which were installed at the
Site.
ANSWER:
Sun-Times denies the allegations in paragraph 6.
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 ofeight (8) USTs at the Site.
ANSWER:
Sun-Times admits the allegations in paragraph 7.
8.
The Sun-Times used the USTs to store fuel for its fleet maintenance garage
located at the Site.
-2-
ANSWER:
Sun-Times admits the allegations in paragraph 8.
9.
On April 23, 1999, the Sun-Times, after informing the Office ofthe State Fire
Marshal (“OSFM”), removed one active 10,000 gallon unleaded gasoline UST from the Site.
During removal, the Sun-Times discovered that a release ofpetroleum 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 which cataloged it as LUST Incident No.
99103. Sun-Times then performed remediation ofthe soil contaminated with gasoline at the
vicinity where the 10,000 gallon unleaded gasoline tank was removed.
ANSWER:
Sun-Times admits the allegations in paragraph 9 except the allegation that the
LUST Incident No. was 99103. The correct Incident No. is 991013.
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.
ANSWER:
Sun-Times admits the allegations in paragraph 10.
11.
Respondent Sun-Times did not perform a groundwater investigation to determine
the extent ofground water contamination at the time it removed the 10,000 gallon unleaded
gasoline UST.
ANSWER:
Sun-Times admits that it did not perform a groundwater investigation in
cormection with the removal ofthe 10,000 gallon unleaded gasoline UST. Groundwater was not
encountered and clearance samples following soil remediation met residential standards under
IEPA’s Tiered Approach to Corrective Action. Therefore, no groundwater investigation was
necessary.
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 it had sold the property to Kenard.
ANSWER:
Sun-Times admits that it entered into an agreement to sell the property to Kenard
on December 3, 1998 and that almost four years after the sale, Sun-Times informed the OSFM it
had sold the property to Kenard. Sun-Times is without knowledge or information sufficient to
form a belief as to the truth or falsity of the remaining allegations in paragraph 12.
-3-
13.
Prior to the sale of the Site, Sun-Times did not remediate the soil at the Site, with
the exception ofthe small area impacted with gasoline under LUST Incident 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 ofyears as a fleet
vehicle maintenance and refueling facility.
ANSWER:
Sun-Times denies the allegations in paragraph 13.
14.
At an unspecified date, Smithfield and Wooton began constructing a town house
complex on the Site purchased from Sun-Times. Several ofthe town houses were constructed on
top ofthe contaminated soil.
ANSWER:
Sun-Times admits the allegations in the first sentence in paragraph 14. Sun-
Times denies the remaining allegations in paragraph 14.
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.
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph
15.
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.
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 16.
17.
When consultants hired by Wooton were investigating the petroleum tasting water
complaint, they discovered that the soil in the area where the water main ruptured was
contaminated with diesel fuel.
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 17.
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 ofthe USTs
owned and operated by Sun-Times and/or surface spills ofpetroleum products over a number of
years when Sun-Times used the Site as a fleet vehicle maintenance and refuelng (sic) facility.
-4-
ANSWER:
Sun-Times denies the allegations in paragraph 18.
19.
In April 2001, Wooton retained an engineering firm to conduct subsurface
investigation and remediation activities.
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 19.
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 of3 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.
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 20.
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.
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 21.
22.
On January 28, 2002, the Illinois EPA received a groundwater classification study
and Tier 2 evaluation submitted by Smithfield. On March 20, 2002, the Illinois EPA rejected the
study because groundwater contaminant analysis was not conducted.
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations in paragraph 22.
23.
Section
57.6(a)
ofthe Act, 415 ILCS
5/57.6(a)(2002),
titled,
Under,ground
storage tanks, early action,
provides as follows:
(a) Owners and operators ofunderground storage tanks shall, in response to all
confirmed releases, comply with all applicable statutory and regulatory
reporting and response requirements.
ANSWER:
Sun-Times admits the allegations in paragraph 23.
-5-
24.
Section 732.103 ofthe 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 ofSections 57.6 and 57.7 ofthe Act. (Section 57.2 ofthe 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 ofland or parcel ofproperty
including contiguous property not separated by a public right-of-way. (Section
3.61 ofthe Act)
“UNDERGROUND STORAGE TANK” or “UST” means any one or
combination oftanks (including underground pipes connected thereto) which is
used to contain an accumulation of regulated substances, and the volume ofwhich
(including the volume ofunderground pipes connected thereto) is 10 per centum
or more beneath the surface ofthe ground. Such term does not include any of the
following or any pipes connected thereto.
“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 ofperforming corrective action in response to the initial
release. (Section 57.2 ofthe Act)
“OSFM” means the Office ofthe State Fire Marshal.
“OPERATOR” means any person in control of, or having responsibility for, the
daily operation ofthe underground storage tank. (42 U.S.C. Section 6991)
“OWNER” in the case ofan 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 ofinterpreting the definitions ofthe 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
-6-
Government and each department, agency, and instrumentality ofthe 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 oftemperature 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 ofgeological
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 ofShallow Aquifers in Illinois,” by Berg, Richard
C., et al. Such classification may include review ofsoil borings, well logs,
physical soil analysis, regional geologic maps, or other scientific publications
(Section 57.2 ofthe Act).
“RELEASE” means any spilling, leaking, emitting, discharging, escaping,
leaching, or disposing ofpetroleum from an underground storage tank into
groundwater, surface water or subsurface soils. (Section 57.2 of the Act)
ANSWER:
Sun-Times admits the allegations in paragraph 24.
25.
Pursuant to the definition of 35 Ill. Adrn. Code 732.103, Respondents are owners
ofthe USTs at the Site because the USTs were in use on November 8, 1984, or brought into use
after that date.
ANSWER:
Sun-Times admits the allegations ofparagraph 25 as they relate to Smithfield.
Sun-Times is without knowledge or information sufficient to form a belief as to the truth or
falsity ofthe allegations in paragraph 25 as they relate to Wooton. Sun-Times denies the
allegations in paragraph 25 to the extent that they are directed to the Sun-Times.
26.
The USTs at the Site and their associated underground equipment are UST
systems as that term is defined by 35 Ill. Adm. Code 73 1.103.
ANSWER:
Sun-Times admits the allegations in paragraph 26.
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.
ANSWER:
Sun-Times admits the allegations in paragraph 27.
28.
Section 732.300(a) of the Board Waste Disposal Regulations, 35 Ill. Adm. Code
732.300(a), titled,
General,
provides as follows:
-7-
(a) Except as provided in subsection (b) below, the owner or operator ofany 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.
ANSWER:
Sun-Times admits the allegation in paragraph 28.
29.
Section 732.307(a) ofthe Board Waste Disposal Regulations, 35 Ill. Adm. Code
732.3 07(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 ofpetroleum 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 ofthe 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.
ANSWER:
Sun-Times denies the allegations in paragraph 29.
30.
Section 732.100(c) ofthe 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 ofthe Act and the
regulations and to obtain the “No Further Remediation” letter signifying
final disposition ofthe site for purposes ofthis Part. The Agency may use
its authority pursuant to the Act and Section 732.105 ofthis part to
expedite investigative, preventive or corrective action by an owner or
operator or to initiate such action.
ANSWER:
Sun-Times admits the allegations in paragraph 30.
31.
Respondents, Smithfield and Wooton as owners and/or operators of the Site
where a release ofpetroleum products occurred did not perform a site evaluation and
classification in accordance with the requirements of 35 III. Adm. Code 732.300(a) and
732.307(a).
-8-
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 31.
32.
By failing to perform site evaluation and classification in accordance with 35 Ill.
Adm. Code 732.3 00(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)
ofthe Act, 415 ILCS
5/57.6(a)(2002).
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 32.
COUNT II
FAILURE TO COMPLY WITH REPORTING
AND RESPONSE REQUIREMENTS
1-27 Complainant realleges and incorporates by reference herein, paragraphs 1 through
27 ofCount I as paragraphs I through 27 ofthis Count II.
ANSWER:
Sun-Times incorporates its answers to paragraphs I through 27 ofCount I as its
answers to paragraphs I through 27 ofCount II.
28.
Section 732.200 ofthe Board Waste Disposal Regulations, 35 Ill. Adm. Code
73 2.200, titled,
General
provides as follows:
Owners and operators of underground storage tanks shall, in response to all
confirmed releases ofpetroleum, 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.
ANSWER:
Sun-Times admits the allegations in paragraph 28.
29.
Respondents Smithfield and Wooton failed to report the confirmed release of
petroleum products at the Site in accordance with the requirement of35 Ill. Adm. Code 732.200.
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations in paragraph 29.
30.
By failing to report the confirmed release ofpetroleum products at the Site,
Respondents Smithfield and Wooton violated Section 732.200 ofthe Board Waste Disposal
Regulations, thereby violating Section
57.6(a)
ofthe Act, 415 ILCS 5/57.6(a)(2002).
-9-
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 30.
COUNT III
FAILURE TO PERFORM INITIAL RESPONSE ACTIONS
1-27. Complainant realleges and incorporates by reference herein, paragraphs 1 through
27 ofCount I as paragraphs I through 27 of this Count III.
ANSWER:
Sun-Times incorporates its answers to paragraphs I through 27 ofCount I as its
answers to paragraphs 1 through 27 ofCount III.
28.
Section 732.203(a) ofthe Board Waste Disposal Regulations, 35 Ill. Adm. Code
732.202(a), titled,
EarlyAction,
provides as follows:
a)
Upon confirmation of a release ofpetroleum 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:
I)
Report the release to IEMA (e.g., by telephone or electronic mail):
2)
Take immediate action to prevent any further release ofthe
regulated substance to the environment; and
3)
Identify and mitigate fire, explosion and vapor hazards.
ANSWER:
Sun-Times admits the allegations in paragraph 28.
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).
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 29.
30.
By failing to perform initial response actions within 24 hours after the confirmed
release ofpetroleum, Respondents Smithfield and Wooton violated Section 732.202(a) ofthe
Board Waste Disposal Regulations, thereby violating Section
57.6(a)
of the Act, 415 ILCS
5/57.6(a)(2002).
-10-
ANSWER:
Sun-Times is without knowledge or information sufficient to form
a
belief as to
the truth or falsity ofthe allegations in paragraph 30.
COUNT IV
FAILURE TO PERFORM INITIAL ABATEMENT MEASURES
1-27. Complainant realleges and incorporates by reference herein, paragraphs I through
27 of Count I as paragraphs I through 27 ofthis Count IV.
ANSWER:
Sun-Times incorporates its answers to paragraphs I through 27 ofCount I as its
answers to paragraphs 1 through 27 of Count IV.
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 ofpetroleum 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 ofthe 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. Ifthese remedies
include treatment or disposal ofsoils, the owner or operator shall
comply with 35 III. Adm. Code 722, 724, 725, and 807 through
815;
5)
Measure for the presence ofa release where contamination is most
likely to be present at the UST site, unless the presence and source
ofthe 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
-11-
consider the nature of the stored substance, the type ofbackfill,
depth to groundwater and other factors as appropriate for
identifying the presence and source ofthe 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.
ANSWER:
Sun-Times denies the allegations in paragraph 28.
29.
Respondents Smithfield and Wooton did not adequately perform initial abatement
measures after confirmation ofthe release ofpetroleum products.
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 29.
30.
By failing to adequately perform initial abatement measures after confirmation of
release, Respondents Smithfield and Wooton violated 35 Ill. Adm. Code 732.202(b) and thereby
violated Section
57.6(a)
ofthe Act, 415 ILCS
5/57.6(a)(2002).
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 30.
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 I through 27 of this Count V.
ANSWER:
Sun-Times incorporates its answers to paragraphs I through 27 ofCount I as its
answers to paragraphs 1 through 27 of Count V.
28.
Section 732.202(d) ofthe Board Waste Disposal Regulations, 35 III. 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 subsections (a) and
(b) above. This information must include, but is not limited to, the
following:
1)
Data on the nature and estimated quantity ofrelease;
-
12
-
2)
Data from available sources or site investigations concerning the
following factories (sic): surrounding populations, water quality,
use and approximate locations ofwells potentially affected by the
release, subsurface soil conditions, locations of subsurface sewers,
climatological conditions and land use;
3)
Results of the site check required at subsection (b)(5) of this
Section;
4)
Results ofthe 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.
ANSWER:
Sun-Times denies the allegations in paragraph 28.
29.
Respondents Smithfield and Wooton as owners and/or operators ofthe Site where
a
release occurred did not assemble information about the Site and the nature ofthe release after
confirmation of the release.
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 29.
30.
By failing to assemble information about the Site and the nature ofthe release
after confirmation ofthe release, Respondents Smithfield and Wooton violated 35 III. Adm.
Code 732.202(d), thereby violating Section
57.6(a)
of the Act, 415 ILCS
5/57.6(a)(2002).
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 30.
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 ofthis Count VI.
ANSWER:
Sun-Times incorporates its answers to paragraphs 1 through 27 ofCount I as its
answers to paragraphs 1 through 27 ofCount VI.
-
13
-
28.
Section
57.7(a)(1)
ofthe Act, 415 ILCS
5/57.7(a)(1)
(2002), titled,
Lea~çJj~g
Underground Storage Tanks; Site Investigation, and Corrective Action,
provides as follows:
(a)
Site Investigation.
(I)
For any site investigation activities required by statute orrule, the
owner or operator shall submit to the Agency for approval a site
investigation plan designed to determine the nature, concentration,
direction ofmovement, rate ofmovement, and extent ofthe
contamination as well as the significant physical features ofthe site
and surrounding area that may affect contaminant transport and
risk to human health and safety and the environment.
ANSWER:
Sun-Times admits the allegations in paragraph 28.
29.
Respondents Smithfield and Wooton, as owners and operators ofthe Site where a
release ofpetroleum products occurred, failed to submit to the Illinois EPA
a
site investigation
plan in accordance with the requirements ofSection 57.7(A)(1) ofthe Act, 415 ILCS
5/57.7(a)(
I )(2002).
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 29.
30.
By failing to submit to the Illinois EPA a site investigation plan in accordance
with the requirements ofSection
57.7(a)(1),
Respondents Smithfield and Wooton violated
Section
57.7(a)(1)
ofthe Act, 415 ILCS
5/57(a)(1)(2002).
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 30.
COUNT VII
CAUSING OR TENDING TO CAUSE WATER POLLUTION
1-22. Complainant realleges and incorporates by reference herein, paragraphs 1 through
22 ofCount I as paragraphs 1 through 22 of this Count VII.
ANSWER:
Sun-Times incorporates its answers to paragraphs 1 through 22 of Count I as its
answers to paragraphs 1 through 22 ofCount VII.
23.
Section 12(a) ofthe Act, 415 ILCS 5/12(a)(2002), provides as follows:
No person shall:
-
14
-
a.
Cause or threaten or allow the discharge ofa 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.
ANSWER:
Sun-Times admits the allegations in paragraph 23.
24.
Section 3.3 15 ofthe Act, 415. ILCS
5/3.3
15 (2002), defines person as follows:
“PERSON” is any individual, partnership, co-partnership, firm, company, limited
liabiilty (sic) company, corporation, association, joint stock company, trust,
estate, political subdivision, state agency, or any other legal entity, or their legal
representative, agent or assigns.
ANSWER:
But for the typographical error, Sun-Times admits the allegations in paragraph 24.
25.
Respondents Smithfield and Wooton are each a “person” as that terms is defined
in Section 3.315 ofthe Act, 415 ILCS 5/3.315 (2002).
ANSWER:
Sun-Times admits the allegations in paragraph
25.
26.
Section 3.165 ofthe Act, 415 ILCS 5/3.165 (2002), defines contaminant as “any
solid, liquid or gaseous matter, any odor, or any form ofenergy, from whatever source.”
ANSWER:
Sun-Times admits the allegations in paragraph 26.
27.
Diesel or gasoline fuel which was released from one or more USTs in waters of
the State is a contaminnt (sic) as that term is defined by Section 3.165 of the Act, 415 ILCS
53.545 (2002).
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
whether diesel or gasoline fuel was released from one or more USTs into waters ofthe State.
Sun-Times admits that such
a
release would constitute a contaminant as defined by Section 3.165
ofthe Act, 415 ILCS 53.545 (2002).
28.
Section 3.545 of the Act, 415 ILCS 53.545 (2002), defines water pollution:
“WATER POLLUTION” is such alternation 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
-
15
-
health, safety or welfare, orto domestic, commercial, industrial agricultural,
recreational, or other legitimate uses, or to livestock, wild animals, birds, fish or
other aquatic life.
ANSWER:
Sun-Times admits the allegations in paragraph 28.
29.
Section 3.550 ofthe Act, 415 ILCS 5/3.550 (2002) defines “Waters of the State”
as follows:
“WATERS” means 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.
ANSWER:
Sun-Times admits the allegations in paragraph 29.
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 ofthe
State as the term “water” is defined by Section 3.550 ofthe Act, 415 ILCS 5/3.550 (2002).
ANSWER:
Sun-Times admits that groundwater beneath the Site is a water ofthe State as the
term “water” is defined by Section 3.550 ofthe Act, 415 ILCS
5/3.550
(2002). Sun-Times is
without knowledge or information sufficient to form a belief as to the truth or falsity ofthe
remaining allegations in paragraph 30.
31.
From sometime prior to November 1999, until the date of filing ofthis 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 ofpetroleum products during Sun-Time’s long usage
of the Site as a garage and refueling station for its fleet vehicles.
ANSWER:
Sun-Times denies the allegations in paragraph 31.
32.
Respondents Smithfield and Wooton took no action to remediate the groundwater
contamination at the Site;
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 32.
33.
Respondents Smithfield and Wooton by their actions and/or inactions caused,
threatened, or allowed the discharge ofcontaminants, into the environment so as to cause or tend
to cause water pollution in Illinois.
-
16-
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 33.
COUNT VIII
FAILURE TO SUBMIT A 45-DAY REPORT
1-27. Complainant realleges and incorporates by reference herein, paragraphs 1 through
27 ofCount I as paragraphs 1 through 27 ofthis Count VIII.
ANSWER:
Sun-Times incorporates its answers to paragraphs 1 through 27 ofCount I as its
answers to paragraphs 1 through 27 ofCount VIII.
28.
Section 732.202(e) ofthe 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 ofpetroleum 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.
ANSWER:
Sun-Times denies the allegations in paragraph 28.
29.
In November 1999, when Smithfield and Wooton removed the active 10,000
gallon diesel UST from the Site, they were the owners and/or operators ofthe UST.
ANSWER:
Sun-Times admits that when the active 10,000 gallon diesel UST was removed, at
least Smithfield was the owner and/or operator ofthe UST. Sun-Times is without knowledge or
information sufficient to form a belief as to the truth or falsity of the remaining allegations in
paragraph 29.
30.
Respondents Smithfield and Wooton as owners and/or operators ofthe UST
system and/or Site where the release of petroleum products occurred, did not submit a report
summarizing information about the Site and nature ofthe release within 45 days after
confirmation ofthe release.
-
17-
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity ofthe allegations in paragraph 30.
31.
By failing to submit a report summarizing information about the Site and nature
ofthe release within 45 days after confirmation ofthe 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).
ANSWER:
Sun-Times is without knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations in paragraph 31.
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 I through 22
ofCount I as paragraphs 1 through 22 ofthis Count IX.
ANSWER:
Sun-Times incorporates its answers to paragraphs I through 22 ofCount I as its
answers to paragraphs I through 22 of 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.
ANSWER:
Sun-times admits the allegations in paragraph 23.
24.
Section 3.315 ofthe 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.
ANSWER:
Sun-Times admits the allegations in paragraph 24.
-
18-
25.
Respondent Sun-Times, is
a
“person” as that term is defined in Section 3.3 15 of
the Act, 415 ILCS 5/3.315 (2002).
ANSWER:
Sun-Times admits the allegations in paragraph 25.
26.
Section
3.165
of the Act, 415 ILCS 5/3165 (2002), defines contaminant as “any
solid, liquid or gaseous matter, any odor, or any form of energy, from whatever source.”
ANSWER:
Sun-Times admits the allegations in paragraph 26.
27.
Diesel or gasoline fuel which was released from one or more USTs owned and/or
operated by Sun-Times in waters ofthe State is a contaminant as that term is defined by Section
3.165 of the Act, 415 ILCS 5/3.165 (2002).
ANSWER:
Sun-Times denies that diesel or gasoline fuel was released from one or more
USTs owned and operated by the Sun-Times into waters of the State. Sun-Times admits that
such
a
release would constitute a contaminant as defined by Section 3.165 of the Act, 415 ILCS
53.545 (2002).
28.
Section 3.545 of the Act, 415 ILCS 3.545 (2002), defines water pollution:
“WATER POLLUTION” is such alternation of the physical, thermal, chemical,
biological or radioactive properties of any waters ofthe State, or such discharge
ofany 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.
ANSWER:
Sun-Times admits the allegations in paragraph 28.
29.
Section 3.550 ofthe Act, 415 ILCS 5/3.550 (2002), defines “Waters of the State”
as follows:
“WATERS” means all accumulation 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.
ANSWER:
Sun-Times admits the allegations in paragraph 29.
30.
The underground water at the Site which was contaminated by the release of
diesel and/or gasoline fuel from one or more ofthe USTs and/or surface spills is a water of the
State as the term “water” is defined by Section 3.550 of the Act, 415 ILCS
5/3.550
(2002).
-
19-
ANSWER:
Sun-Times denies that diesel or gasoline fuel was released into groundwater at the
Site via surface spills during Sun-Times’ ownership or operation ofthe Site or from one or more
USTs owned and operated by the Sun-Times. Sun-Times admits that groundwater beneath the
Site is a water ofthe State as the term “water” is defined by Section 3.550 ofthe Act, 415 ILCS
5/3.550
(2002).
31.
From sometime prior to November 1999, until the date offiling ofthis Complaint,
the groundwater at the site remains contaminated with diesel and/or gasoline fuel released from
one or more USTs and/or from surface spills ofpetroleum products during Sun-Time’s long
usage of the Site as a garage and refueling station for its fleet vehicles.
ANSWER:
Sun-Times denies the allegations in paragraph 31.
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.
ANSWER:
Sun-Times denies the allegations in paragraph 32.
COUNT X
CREATING A WATER POLLUTION HAZARD
1-22. Plaintiff realleges and incorporates by reference herein, paragraphs I through 22
of Count I as paragraphs 1 through 22 ofthis Count X.
ANSWER:
Sun-Times incorporates its answers to paragraphs I through 22 ofCount I as its
answers to paragraphs I through 22 ofCount 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.
ANSWER:
Sun-Times admits the allegations in paragraph 23.
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.
-20-
ANSWER:
Sun-Times denies the allegations in paragraph 24.
25.
By creating a water pollution hazard, Respondent Sun-Times violated Section
12(d) ofthe Act, 415 ILCS 5/12(d) (2002).
ANSWER:
Sun-Times denies the allegations in paragraph 25.
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 I through 27 ofthe Count XI.
ANSWER:
Sun-Times incorporates its answers to paragraphs 1 through 27 ofCount I as its
answers to paragraphs 1 through 27 ofCount XI.
28.
Section 732.202(e) ofthe Board Waste Disposal Regulations, 35 Ill. Adm. Code
732.202(e) titled,
Early Action,
provides as follows:
(e)
Within 45 days after confirmation ofrelease ofpetroleum 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.
ANSWER:
Sun-Times denies the allegations in paragraph 28.
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 ofthe UST.
ANSWER:
Sun-Times denies the allegations in paragraph 29.
30.
At the time of the sale ofthe Site in 1999, Sun-Times did not notify the OSFM
about the transfer ofownership of the USTs.
ANSWER:
Sun-Times admits the allegations in paragraph 30.
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 ofthe release within 45 days after confirmation ofthe
release.
-21
-
ANSWER:
Sun-Times denies the allegations in paragraph 31. Sun-Times was neither the
owner nor the operator ofthe UST system at the time the UST system was removed. Sun-Times,
therefore, was not obligated to submit a 45 day/Corrective Action Completion Report with
respect to that UST.
32.
By failing to submit a report summarizing information about the Site and nature
ofthe release within 45 days after confirmation ofthe release, Respondent Sun-Times, violated
35 Ill. Adm. Code 732.202(e) and thereby, also violated Section 57.6(a) ofthe Act, 415 ILCS
5/57.6(a) (2002).
ANSWER:
Sun-Times denies the allegations in paragraph 32.
WHEREFORE Sun-Times requests that the Board enter an order denying Complainant
its requested relief in its entirety, awarding Sun-Times its costs and fees incurred in this matter,
and awarding Sun-Times such additional relief as the Board deems appropriate.
Respectfully submitted,
//~
~
MicIia’é~lS. MOstow
7
/
Janine Landow-Esser
Michael S. Mostow
Quarles & Brady LLP
500 West Madison St., Suite 3700
Chicago, IL 60661
312.715.5158
ATTORNEYS FOR THE CHICAGO SUN-TIMES, INC.
QBCHI\375850.3
-
22
CERTIFICATE OF SERVICE
I, Michael S. Mostow, attorney forRespondent Chicago Sun-Times, Inc., hereby certify
that a copy ofthe foregoing
Chicago Sun-Times, Inc.’s Answer
was served upon the following
parties by U.S. First Class Mail on this 23rd day of July, 2004:
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control. Board
James R. Thompson Center, Suite 11-500
100 West. Randolph Street
Chicago, Illinois 60601
Zemeheret Bereket-Ab, Esq.
Assistant Attorney General
Environmental Bureau
188 W. Randolph Street,
20th
Floor
Chicago, Illinois 60601
Kevin B. Hynes
O’Keefe, Lyons & Hynes, LLC
30 North LaSalle Street
Suite 4100
Chicago, Illinois 60602
QBCHI\201 244.7001 9\378899. I
