BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
THE VILLAGE
OF
LOMBARD,
)
JUL
3 0
ILLINOIS,
an Illinois municipal
)
corporation,
)
~STATE
OF ILLINOIS
Ollution Control Board
Complainant,
)
PCB 04-213
)
(LUST Cost Recovery)
vs.
)
)
BILL’S AUTO CENTER,
)
BILL’S STANDARD SERVICE,
)
and WILLIAM KOVAR,
)
)
Respondents.
)
NOTICE OF
FILING
To:
(See attached Service List.)
PLEASE
TAKE
NOTICE
that on
this
30th
day of July
2004,
the
following
were
filed with
the
Illinois
Pollution
Control
Board:
Respondents’ Appearance
and
Answer
and Affirmative Defenses,
which are attached and
herewith served
upon you.
BILL’S AUTO CENTER,
BILL’S
STANDARD SERVICE, and
WILLIAM KOVAR
By:______
One of their Attorneys
Michael J.
Maher
Elizabeth S. Harvey
SWANSON, MARTIN & BELL
One IBM Plaza, Suite 3300
330 North Wabash Avenue
Chicago,
Illinois
60611
Telephone: (312) 321-9100
Firm I.D.
No. 29558
CERTIFICATE OF SERVICE
I,
the
undersigned
non-attorney,
state
that
I
served
a
copy
of
the
above-described
documents to counsel of record via
U.S.
Mail at One IBM
Plaza,
Chicago,
IL 60611,
at or before
5:00 p.m. on July 30, 2004.
//\
L4A~
V77~~.
Jea
te
M.
Podlin
x
Under penalties as provided by law
pursuant to 735 ILCS 5/1-109,
I certify
that the statements set forth
herein
are true
and correct.
0192-001
SERVICE LIST
PCB 04-213
(LUST Cost Recovery)
Bradley P.
Halloran
Hearing Officer
Illinois
Pollution Control
Board
James
R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago,
Illinois
60601
(312) 814-8917
Dennis G. Walsh
Lance
C.
Malina
Jacob
H.
Karaca
Klein, Thorpe
and Jenkins,
Ltd.
20
North Wacker Drive
Suite
1660
Chicago,
Illinois 60606-2903
(312) 984-6400
(312) 984-6444 (facsimile)
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
OLEf~i(’5
~
THE VILLAGE OF LOMBARD,
)
ILLINOIS, an
Illinois municipal
)
~vL
30
2004
corporation,
)
Complainant,
)
PCB 04-213
rd
)
(LUST Cost Recovery)
vs.
)
)
BILL’S AUTO CENTER,
)
BILL’S STANDARD SERVICE,
)
and WILLIAM KOVAR,
)
)
Respondents.
)
APPEARANCE
Swanson,
Martin
&
Bell
hereby
enters
its
appearance
on
behalf
of
respondents
BILL’S
AUTO
CENTER,
BILL’S
STANDARD
SERVICE,
and
WILLIAM KOVAR.
SWANSON, MARTIN & BELL
Michael J.
Maher
Elizabeth S.
Harvey
Swanson,
Martin
& Bell
One IBM Plaza, Suite 3300
330 N. Wabash Avenue
Chicago,
IL 60611
312.321.9100
312.921.0990 (facsimile)
Dated:
July 30, 2004
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
THE VILLAGE OF LOMBARD,
)
ILLINOIS,
an Illinois municipal
)
corporation,
)
Complainant,
)
PCB 04-213
)
(LUST Cost Recovery)
vs.
BILL’S AUTO CENTER,
)
BILL’S STANDARD
SERVICE,
)
and WILLIAM KOVAR,
)
)
Respondents.
)
RESPONDENTS’ ANSWER AND AFFIRMATIVE DEFENSES
Respondents BILL’S
AUTO
CENTER,
BILL’S
STANDARD SERVICE, and
WILLIAM
KOVAR
(collectively
referred
to
hereinafter
as
“Respondents”),
by
its
attorneys
Swanson,
Martin
&
Bell,
hereby
answer and
assert
affirmative
defenses
to
the
complaint
propounded
by
complainant
THE
VILLAGE
OF
LOMBARD
(“Village”).
Respondents
received
the
complaint
on
June
3,
2004:
thus, this answer is timely filed pursuant to 35 lll.Adm.Code 103.204(d).
Summary of the Complaint
The
Village
seeks
to
recover
from
the
Respondents
costs
incurred
in
connection with
the response,
removal, and remedial action taken as the
result of
contamination
from
underground
storage
tanks
at
a
facility
in
Lombard,
Illinois.
During excavation of a water line trench
in
the Village-owned Willow Street right-
of-way
on August
11,
2000,
a
gasoline odor was
noted
in
the trench
soils
by the
excavation
contractor and supervising
engineer for the
Village.
Installation
of the
new
water
main
line
was
part of the
project that
also
included
installation
of a
new
sanitary sewer line and
lift
station
and
reconstruction
of Willow Street,
west
of
Main
Street.
The
odor
was
encountered
when
the
trench,
which
was
being
excavated
from west to east, reached an area
south of the southwest corner of a
former
gas
station,
Bill’s
Auto
Center,
located
at
330
S.
Main
Street.
An
investigation
found
that
one
or
more of the
underground
storage
tanks
or
fuel
lines
that were
owned
and
operated
by the
Respondents
had
leaked
and
had
caused
the contamination to the
Village’s
property adjacent to
that 330 S.
Main
Street
site.
The
impacted
soil
encountered
in
the
water
line
trench
and
on
the
village’s
property
is
a
result of the
release
originating
at the
Bill’s
Auto
Center
facility.
Due to the
Respondents’ acts and omissions, causing contamination and
allowing
contamination to
remain
in
place,
the
Village
incurred
significant
costs
by
conducting
a
response,
removal,
and
remedial
action
to
address
the
contamination.
RESPONSE:
This
paragraph
purports
to
provide
a
summary
of
the
complaint,
rather than making
specific allegations.
Thus,
no answer is
required.
To
any
extent
that
the
Board
believes
an
answer
is
necessary,
Respondents
deny the allegations of this summary paragraph.
Common Allegations
1.
The Village
is an
Illinois
municipal corporation
and a “person” within
the
meaning
of
Section
3.315 of the
Illinois
Environmental
Protection
Act
(the
“Act”), 415 ILCS 5/3.315.
RESPONSE:
Respondents admit the allegations of paragraph
1.
2.
Bill’s
Auto
Center
is
a
corporation
or other
business
entity
and
a
“person” within the
meaning of Section
3.315 of the Act, 415
ILCS 5/3.31 5,
and
the owner and operator of six (6) underground storage tanks that were located on
the
real
property commonly
known as
330 5.
Main
Street,
Lombard,
Illinois
(the
“Facility”).
RESPONSE:
Respondents
deny that
Bill’s Auto
Center
is
a
corporation,
but admit the remaining
allegations of paragraph 2.
3.
Bill’s Standard
Service
is
a
corporation
or other business entity and
a
“person” within the meaning of Section 3.315 of the Act, 415 ILCS
5/3.315, and
is
or was
the
owner of the
Facility where
the
underground
storage tanks
were
located.
RESPONSE:
Respondents
deny
that
Bill’s
Standard
Service
is
a
corporation,
and
deny
that
Bill’s
Standard
Service
is
or
was
the
owner
of the
Facility.
Respondents admit the
remaining allegations of paragraph
3.
2
4.
William Kovar is an individual
and
is the owner of and
oversees and
manages Bill’s Auto Center and
Bill’s Standard Service.
RESPONSE:
Respondents admit the allegations of paragraph 4.
5.
Jurisdiction
of the
Illinois
Pollution
Control
Board
(the
“Board”)
is
proper pursuant to Section 31
of the Act, 415 ILCS 5/31.
RESPONSE:
Respondents admit the allegations of paragraph
5.
6.
The
Facility
formerly
contained
six (6)
underground
storage
tanks
used
for
the
storage
of gasoline and waste
oil.
At
least five
(5) of
these tanks
were
removed
on March
31,
1999.
RESPONSE:
Respondents admit the allegations of paragraph
6.
7.
During
removal
of the
underground
storage tanks
from
the
Facility,
there was
evidence of a release through
staining
and
odors within the
soils
and
water
surrounding
the
underground
storage
tanks.
On
March
31,
1999,
a
representative
of
the
Office
of the
Illinois
State
Fire
Marshal
confirmed
that
a
petroleum
release
had
occurred
at
the
Facility,
and
an
Illinois
Emergency
Management
Agency
(“IEMA”)
Incident
Number
was
assigned
to
the
leaking
underground
storage tanks.
On information
and
belief,
in
early
1996,
during
the
installation of Phase
II vapor recovery upgrades
on the
underground storage tank
systems
by
the
Respondents,
impacted
soils
were
encountered
and
the
Respondents
called
IEMA
and
obtained
an
incident
number.
Based
upon
the
historical
use of the
Facility
as
a
service
center
and
observations
made during
the
underground
storage tank
removal,
two
(2)
incident
numbers
issued
to the
site
are
related
to
the
same
release.
Incident
Nos.
990776
and
960012
were
assigned
to the
Facility.
RESPONSE:
Respondents admit the
allegations of paragraph 7.
8.
The
Respondents
exposed
the
underground
storage
tanks
and
pumped
oily waste water and sludge from the tanks
for disposal at
an approved
disposal
facility.
The
underground
storage
tanks
were
cleaned
and
removed
from the
Facility.
RESPONSE:
Respondents
admit
that
their
agent
performed
the
acts
alleged
in
paragraph 8.
9.
During
removal of the
underground storage tanks, the
Respondents
discovered that fill under and around the
tanks
and
native soil
was
contaminated
by petroleum constituents that had leaked from the
underground storage tanks.
3
RESPONSE:
Respondents deny that petroleum
constituents
leaked from
the
underground
storage tanks.
Respondents admit the
remaining
allegations of
paragraph 9.
10.
On
information
and
belief,
beginning
at
the
end
of the
period
of
active
operation
of
the
underground
storage
tanks
and
continuing
to
at
least
March
31,
1999,
the
Respondents
permitted the
continued
release of petroleum
constituents into soils at the Facility from the
underground storage tanks.
RESPONSE:
Respondents deny
the allegations of paragraph
10.
11.
The
Illinois
Environmental
Protection
Agency
(“IEPA”)
received
a
45-day
report
dated
June
7,
2002,
regarding
the
incident.
The
IEPA
directed
Respondents
to
perform
corrective
action
in
accordance
with
the
Illinois
Environmental
Protection
Act
(the
“Act”)
and
the
Illinois
Administrative
Code.
Pursuant
to
the
Act,
the
IEPA
required
the
Respondents
to
file
a
Site
Classification
Work
Plan
and
Corrective
Action
Plan
and
to
otherwise
comply
with
the
law.
On
information and belief, the Respondents have failed
to take any
steps
necessary
to
do
a
site
investigation
or
to
submit
a
Site
Investigation
Completion
Report
and
Work
Plan or to remediate the contamination
caused
by
the leaking
underground storage tanks.
RESPONSE:
Respondents
deny
that
they
submitted
a
45-day
report
dated
June
7,
2002, but admit that they submitted
a 45-day report dated
June 2,
1999.
Respondents admit that IEPA directed respondents
to
perform corrective
action,
but
deny
that the
allegations
of
paragraph
11
accurately
set
forth
the
IEPA’s
direction
to
respondents.
Respondents
deny
the
allegations
of the
last
sentence of paragraph
11.
12.
The Village
owns
and controls property immediately
adjacent to the
Facility on the
north side of Willow Street (the “Village Property”).
RESPONSE:
Respondents admit the allegations of paragraph
12.
13.
On
August
11,
2000,
while
installing
a
water
main
on
the
Village
Property,
an excavation
contractor and supervising engineer for the Village
noted
a gasoline odor in
and on the
Village
Property.
4
RESPONSE:
Respondents have insufficient information to respond to the
allegations of paragraph
13,
and thus deny those allegations.
14.
Upon
a subsequent
investigation, it was determined that
petroleum
contamination
from
the
underground
storage
tanks
at
the
Facility
caused
contamination to the
Village
Property.
RESPONSE:
Respondents deny the allegations of paragraph
14.
15.
The
Village
incurred
response,
removal,
and
remedial
costs
and
expenses
in
excess of $98,000.00
in
connection, with
the contamination from
the
underground storage tanks at the
Facility.
RESPONSE:
Respondents have insufficient information to respond to the
allegations
regarding
the
amount
spent,
and
thus
deny
those
allegations.
Respondents deny the
remaining allegations of paragraph
15.
16.
.
Despite
repeated
demands
by the
Village,
the
Respondents
have
not
reimbursed
the
Village
for
the
response,
removal,
and
remedial
costs
incurred because of the
leaking underground storage tanks
at the
Facility.
RESPONSE:
Respondents
admit
that
they
have
not
“reimbursed”
the
Village for
its claimed costs, but
deny
that they have any obligation or duty to do
so.
COUNT
I
Violation of Section 21(a) of the Act
17.
The Village
re-alleges
and
incorporates
by reference as if set forth
fully
herein paragraphs I
through
16 of the Complaint.
RESPONSE:
Respondents
re-allege
their
responses to
paragraphs
1
through
16 of the
complaint,
as if fully set forth
here.
18.
Section
21(a)
of
the
Act
prohibits
any
person
from
causing
or
allowing the open dumping of any waste. 415 ILCS 5/21(a).
RESPONSE:
Paragraph
18 sets forth
purported statutory provisions.
The
statute
speaks for itself,
and no answer is required.
5
19.
The
petroleum
constituents
present
in
the
underground
storage
tanks
at
the
Facility
and
released
from
the
deteriorated
underground
storage
tanks
into surrounding
soils
at the
Facility and
off-site
onto
the
Village
Property
constitute “waste” under the Act. 415 ILCS 5/3.535.
RESPONSE:
Respondents deny the allegations of paragraph
19.
20.
The
Respondents
caused
or allowed
petroleum
constituents to
be
released from the underground storage tanks at the
Facility in
violation of Section
21(a) of the Act.
RESPONSE:
Respondents deny the allegations of paragraph
20.
COUNT
II
Violation of Section 21 (d)(2) of the Act
On
July
22,
2004,
the
Board
dismissed
Count
II
of
the
complaint
as
frivolous.
Therefore,
no answer is required to Count
II.
COUNT
III
Violation of Section 21(e) of the Act
29 sic.
The Village
re-alleges and
incorporates
by reference as if set
forth fully herein
paragraphs I through
16 of the Complaint.
RESPONSE:
Respondents
re-allege
their
responses to
paragraphs
I
through
16 of the
complaint,
as if fully set forth
here.
•
30.
Section 21(e) of the Act prohibits disposal,
storage or abandonment
of any waste “except at
a site or facility which
meets the requirements of this Act
and of regulations and standards thereunder.”
415’ ILCS 5/21(e).
RESPONSE:
Paragraph 30 sets forth
purported statutory provisions.
The
statute speaks for itself, and
no answer is required.
31.
The
petroleum
constituents
present
in
the
underground
storage
tanks
at
the
Facility
and
released
from
the
deteriorated
underground
storage
tanks
into
surrounding
soils
at
the
Facility
and
onto
the
Village
Property
constitute “waste” under the Act.
415 ILCS 5/3.535.
RESPONSE:
Respondents deny the allegations of paragraph 31.
6
32.
The
presence
of
petroleum
constituents
in
underground
storage
tanks at the Facility constitutes
“storage”
under the Act.
415 ILCS 5/3.480.
RESPONSE:
Respondents deny the allegations of paragraph
32.
33.
The
leaking
of
petroleum
constituents
from
underground
storage
tanks at the Facility constitutes
“disposal” under the Act.
415 ILCS 5/3.185.
RESPONSE:
Respondents deny the allegations of paragraph
33.
34.
The
presence
of
petroleum
constituents
in
underground
storage
tanks
at
the
Facility
for
years
after
the
cessation
of
active
use
by-
the
Respondents
constitutes
“abandonment”
under
Section
.21(e) of
the
Act.
451
ILCS5/21(e).
•
•
RESPONSE:
Respondents deny the allegations of paragraph
34.
35.
The
Respondents
disposed,
stored,
and
abandoned
waste
at
a
facility
that
did
not
meet
the
requirements of
the
Act,
and
the
regulations
and
standards
thereunder, in violation of Section 2 1(e) of the Act.
425 ILCS 5/21(e).
RESPONSE:
Respondents deny the allegations of paragraph
35.
COUNT IV
Violation of Section
12(a) of the Act
17.
The Village
re-alleges
and
incorporates
by reference as
if set forth
herein paragraphs I
through
16 of the
Complaint.
RESPONSE:
Respondents
re-allege
their
responses
to
paragraphs
1
through
16 of the
complaint,
as if fully set forth
here.
18.
Section
12(a) of the Act prohibits
a person from
causing or allowing
the discharge of any contaminants into the environment so as to cause or tend to
cause water pollution
in
Illinois.
415 ILCS 5/12(a).
RESPONSE:
Paragraph 30 sets forth
purported statutory provisions.
The
statute
speaks for itself, and
no answer is
required.
19.
On information and belief,
the
leaking of the petroleum constituents
present
in the
underground
storage tanks
at the
Facility and
released
from
the
deteriorated
underground
storage tanks
into the
soils
and
groundwater and
onto
7
Village
Property caused water
pollution
in
violations of
regulations or
standards
adopted
by the Board pursuant to the Act.
415
ILCS 5/12(a).
• RESPONSE:
Respondents deny the
allegations of paragraph
19.
20.
On
information
and
belief,
Respondents
caused,
threatened
or
allowed water pollution
by
allowing contaminants
in
the
form of gasoline,
waste
oil,
and
other petroleum
substances
into the
environment,
which
leaked
into and
remained
in
the
soil and
groundwater at the
Facility
in
violation of Section
12(a)
of the Act.
RESPONSE:
Respondents deny the allegations of paragraph
20.
COUNTV
Violation ofSection 12(d) ofthe Act
17.
The Village re-alleges
and
incorporates by
reference as
if set forth
herein
paragraphs I
through
16 of the Complaint.
RESPONSE:
Respondents
re-allege
their
responses
to
paragraphs
I
through
16 of the complaint, as if fully set forth
here.
18.
Section
12(d)
of
the
Act
prohibits
a
person
from
depositing
any
contaminants
upon
the
land
in
such
place
and
manner so as to
create
a
water
pollution hazard.
415 ILCS 5/12(d).
RESPONSE:
Paragraph 18 sets forth
purported
statutory provisions.
The
statute speaks for
itself, and no answer is required.
19.
On
information and
belief, the
petroleum constituents present in the
underground
storage
tanks
at
the
Facility
and
released
from
the
deteriorated
underground
storage tanks
into the soils
and groundwater at the Facility and onto
Village
Property constitutes
a
“deposit of contaminants upon
the
land”
“so
as
to
create
a
water
pollution
hazard”
under
Section
12(d)
of
the
Act.
415
ILCS
5/12(d).
RESPONSE:
Respondents deny the allegations of paragraph
19.
20.
On
information
and
belief,
the
Respondents
created
a
water
pollution
hazard
by
allowing
the
release
of
contaminants,
including
gasoline,
waste
oil,
and
other petroleum
substances
to
leak into
and
remain
in
the
soils
and groundwater at the
Facility in
violation of Section
12(d) of the Act.
415
ILCS
5/12(d).
8
RESPONSE:
Respondents deny the allegations of paragraph
20.
WHEREFORE,
Respondents pray that judgment
be entered
in their behalf
and
against
the
complainant,
and
for
such
other
relief
as
the
Board
deems
appropriate.
AFFIRMATIVE
DEFENSES
Respondents BILL’S
AUTO
CENTER,
BILL’S
STANDARD
SERVICE, and
WILLIAM
KOVAR
plead
the
following
affirmative
defenses.
These
affirmative
defenses
are
pled
without
prejudice
to
Respondents’
responses and
denials
to
the allegations of the complaint.
1.
The
alleged
contamination,
and
any
costs
or
damages
incurred
by
complainant,
were
caused
solely
by
the
acts
and/or
omissions of
a
third party (or third parties) other than Respondents.
2.
Complainant’s
costs,
if
any,
incurred
in
responding
to
the
alleged
contamination are excessive and
not
recoverable from
Respondents.
3.
The
alleged
contamination
is
a
preexisting
condition
for
which
Respondents are not responsible.
4.
Complainant
suffered
no
losses
or
damages,
and
incurred
no
costs,
that were proximately caused by Respondents.
5.
Complainant’s
claims are
barred to
the
extent
it has
failed
to
mitigate
its damages and
costs.
6.
Respondents
reserve
their
right
to
assert
and
rely
upon
other
affirmative defenses which
may become apparent
during discovery of
this
case,
and
reserves
its
right
to
amend
its
answer to
assert
such
further affirmative defenses.
9
WHEREFORE,
Respondents
pray
that judgment
be
entered
in
their
behalf and
against the
complainant,
and
for
such
other
relief as
the
Board
deems appropriate.
Respectfully submitted,
BILL’S AUTO
CENTER,
BILL’S STANDARD SERVICE,
and
WILLIAM
KOVAR
Michael J. Maher
Elizabeth S. Harvey
Swanson,
Martin
& Bell
One IBM Plaza, Suite 3300
330
North Wabash Avenue
Chicago,
IL 60611
312.321.9100
312.321.0990 (facsimile)
Dated:
July 30, 2004
10
