RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
OCT
192004
PEOPLE OF THE
STATE OF ILLINOIS,
)
)
Complainant,
)
)
)
)
REILLY INDUSTRJES, INC.,
)
)
Respondent.
)
STATE OF ILLINOIS
Pollution Control
Board
PCB No. 03-182
(Enforcement
—
Air, Water)
NOTICE
OF FILING
TO:
Ms. Dorothy M. Gunn
Clerk of theBoard
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois
60601
(VIA FIRST
CLASS
MAIL)
Carol Sudman, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Post Office Box
19274
Springfield, Illinois
62794-9276
(VIA FIRST
CLASS
MAIL)
(SEE PERSONS ON
ATTACHED SERVICE
LIST)
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk of
Ihe Illinois Pollution Control Board an
original and nine copies ofDEFENDANT
REILLY INDUSTRIES, INC.’S ANSWER AND AFFIRMATIVE DEFENSES
TO
PLAINTIFF’S
SUPPLEMENTAL COMPLAINT,
a copy ofwhich
is hereby served
upon you.
Respectfully submitted,
REILLY INDUSTRIES, INC.,
Respondent,
Dated:
October
18, 2004
N. LaDonna Driver
Thomas G.
Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield,
Illinois
62705-5776
(217) 523-4900
By:
One o
v.
THIS
FILING
SUBMITTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
I, Thomas G.
Safley, the undersigned,
certify that I have served the attached
DEFENDANT REILLY INDUSTRIES, INC.’S ANSWER AM) AFFIRMATIVE
DEFENSES TO PLAINTIFF’S F1R.ST SUPPLEMENTAL COM
LMNT, upon:
Ms. Dorothy M.
Gunn
Thomas Davis, Esq.
Clerk ofthe Board
Office ofthe Attorney General
Illinois Pollution Control Board
Environmental Bureau
100 West Randolph Street
500
South Second Street
Suite 11-500
Springfield, Illinois
62706
Chicago, Illinois
60601
Carol Sudman, Esq.
Hearing Officer
Illinois Pollution Control Board
1021
North Grand Avenue East
Post Office Box
19274
Springfield, Illinois
62794-9274
by depositing
said documents in the United States Mail, postage prepaid, in Springfield,
Illinois,
on October 18,
2004.
Thor
~fle()
REIL:OO5fFilings/NOF-COS
-
Answer
RECE~VED
CLERK’S OFFICE
OCT
19
2004
BEFORE THE ILLINOIS POLLUTION
CONTROL BC8~1flE
OF
ILLINOIS
Pollution Control Board
PEOPLE OF THE
STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
PCBNo,03-182
)
(Enforcement
—
Air, Water)
REILLY INDUSTRIES, INC.,
)
)
Respondent.
)
DEFENDANT REILLY
INDUSTRIES, INC.’S ANSWER AND AFFIRMATIVE
DEFENSES TO
PLAINTIFF’S FIRST SUPPLEMENTAL COMPLAINT
NOW COMES
Respondent REILLY INDUSTRIES, INC.
(“Reilly”), by its
attorneys HODGE DWYER ZEMAN,
and for its Answer and Affirmative Defenses to
Plaintiff’s First Supplemental Complaint, states as follows:
ANSWER
COUNT I
1.
Reilly has insufficient knowledge to either admit or deny the allegation of
paragraph
1
that “this
Complaint
is brought by the Attorney General on her own motion
and at the request ofthe Illinois Environmental Protection Agency,” and therefore
denies
this allegation.
The allegation of paragraph
1
that the Complaint is brought “pursuant to
the terms
and provisions of Section 31
of the Illinois Environmental Protection
Act”
states a legal
conclusionto which no response is required.
To the extent that Paragraph
1
makes any further allegations offact, Reilly denies the same.
2.
Reilly
admits the allegations ofparagraph 2.
3.
The allegation ofparagraph 3 that “the
Complaint is brought pursuant to
Section
31 ofthe Act,
415 ILCS
5/31
(2002)” states a legal conclusion to which no
response is required.
Reilly admits the allegation of paragraph 3
that the Illinois EPA did
provide Reilly “with notice and opportunity for a meeting with the Illinois EPA.”
To the
extent that paragraph
3
makes any further allegations offact, Reilly denies the
same.
4.
Reilly admits the allegations of paragraph 4.
5.
Reilly has insufficient knowledge as to what Complainant means by the
phrase “all times
relevant to this
Complaint,” and therefore can neither admit or deny the
allegations ofParagraph 5 to the extent that they are so qualified.
Reilly admits that it
currently owns
and operates, and on the specific dates referenced in the Complaint owned
and operated,
“a coal tar distillation process” at the address alleged.
To the extent that
paragraph
5
makes any further allegations of fact, Reilly denies the
same.
6.
Reilly admits the allegation of paragraph 6 that “the
facility distills coal
tars
into light oils,
creosotes,
and pitches in
six batch-type stills.”
Reilly denies that “a
seventh still at the site is not currently used for processing,” but rather, affirmatively
states that a seventh still
at the facility is used as a continuous unit for coal tar oil
distillation.
Reilly admits that this seventh still
“is operated continuously.”
Reilly denies
that “the
other five stills are charged sequentially, usually for a period of20 hours.”
Rather, Reilly affirmatively states that
all
six stills in which the facility distills coal tars
normally are operated in
a 20-hour batch cycle.
Reilly admits that,
as to these
six stills,
“after
each
still
is filled with coal tar, natural gas burners are ignited.”
Reilly denies
that “as
the temperature ofthe tar increases, its
constituents are vaporized,” but,
rather,
affirmatively states that as the temperature ofthe tar increases,
some of its
constituents are vaporized.
Reilly admits that “the
vapor line
is
indirectly cooled with
2
water forming condensed liquid,” and that “condensed
liquid
from the vapor lines are
sic
drained into receiving pans that hold the various products.”
Reilly admits that
“liquids
are pumped from the receiving pans into the appropriate tanks.”
Reilly denies
that “emission
units at the facility include six receiving pans that are controlled by a
scrubber,” but, rather, affirmatively states that emission units at the facility include seven
receiving pans that are vented to
a scrubber.
To the extent that Paragraph
6 makes any
other allegations offact, Reilly denies the same.
7.
Reilly denies that construction permit number 99040035 was issued on
May 3,
2000.
Reilly affirmatively states that construction permit number 99040&35 was
issued
on March 23,
2000.
With regard to Complainant’s allegations regarding the terms
ofthe construction permit, Reilly states that the construction permit speaks for itself
To
the extent that paragraph 7 makes any
further allegations offact, Reilly denies the same.
8.
Reilly admits that the construction permit was revised on March 2, 2001.
Reilly admits that the March 2, 2001
permit revision and extension was issued due to an
increase in production.
Reilly denies that the March 2, 2001
permit revision and
extension was issued to
add two additional storage tanks.
To the extent that paragraph 8
makes any further allegations offact, Reilly denies the same.
9.
The requirements ofthe construction permit speak forthemselves.
Reilly
admits that
it planned to
conduct a stack test on the
scrubber.
Reilly
denies that
a test
protocol was submitted to Illinois EPA on March 22, 2001.
Reilly affirmatively
states
that a test protocol was submitted to Illinois EPA on March 27, 2001.
Reilly admits that
a scrubber test was conducted on April 3, 2001.
Reilly admits that Illinois EPA
3
representatives were present atthe facility on April
3,
2001.
Reilly has insufficient
knowledge to
admit or deny what Illinois EPA representatives witnessed on April 3,
2001,
and therefore denies the same.
To the extônt that paragraph 9 makes any further
allegations offact, Reilly denies the same.
10.
Reilly admits that test results were submitted to the Illinois EPA
on July
26, 2001, but has insufficient knowledge to
either admit or deny the remaining
allegations ofparagraph
10,
and therefore denies the same.
11.
Reilly admits that additional scrubber tests were scheduled for August
15,
2001.
Reilly admits that Illinois EPA representativeswere present on August
15, 2001.
Reilly denies that the August
15,
2001,
test was aborted due to a decrease in the
scrubber’s efficiency.
Reilly affirmatively states that the August
15,
2001, test was
aborted due to a loss ofcooling water in the scrubber.
Reilly denies that raw data from
the August
15, 2001, test was submitted to Illinois EPA on August
17, 2001.
Reilly
affirmatively states that data from the August
15, 2001,
test was submitted to Illinois
EPA on October
17,
2001.
Reilly admits the allegations in the final sentence of
• paragraph 11.
To the extent that paragraph
11
makes any further allegations of fact,
Reilly denies the same.
12.
In response to Complainant’s allegations regarding the terms ofthe
construction permit,
Reilly states that the construction permit speaks for itself
Reilly
admits that it continues to operate the stills and
the scrubber.
To the extent that
paragraph
12 makes any further allegations offact, Reilly denies the
same.
4
13.
Reilly admits that a scrubber test was conducted on May 21, 2002 and that
final results ofthe test were submitted to Illinois EPA on August 28,
2002.
Reilly denies
that the May 21, 2002 test was aborted due to test results.
Reilly affirmatively states that
the May 21,
2002 test was aborted when the flow regulator controlling the water
temperature for the heat exchanger on the scrubber failed.
To the extent that paragraph
13 makes any further allegations of fact, Reilly denies the
same.
14.
The statutory section quoted in paragraph
14 speaks for itself
and
therefore Reilly has no response to this allegation.
To the extent that paragraph
14 states
any allegations of fact, Reilly denies the same.
15.
The statutory section quoted in paragraph
15 speaks for itself’, and
therefore Reilly has no response to this allegation.
To the extent that paragraph
15
states
any allegations offact, Reilly denies the same,
16.
The statutory section quoted in paragraph 16
speaks for itself
and
therefore Reilly has no response to this allegation.
To the extent that paragraph
16 states
any
allegations offact, Reilly denies the same.
17.
The regulation quoted in paragraph
17 speaks for itself’,
and therefore
Reilly has no response to this allegation.
To the extent that paragraph
17 states
any
allegations offact, Reilly denies the same.
18.
The allegations ofparagraph
18 state a legal
conclusion that does not call
for a response.
To
the extent that paragraph
18
contains any factual allegations, Reilly
denies the same.
Reilly further affirmatively states that the facility has six,
not five, batch
stills.
5
19.
The data from the April 3, 2001,
stack test speak forthemselves.
Reilly
denies the characterization ofthe stack test data set forth in paragraph
19.
Reilly
affirmatively states that during the April 3, 2001, test, the scrubber achieved greater than
90
removal efficiency in the initial and final stages ofthe batch and that approximately
89
overall VOM reduction efficiency was achieved over the entire batch cycle.
20.
Reilly denies the allegations ofparagraph 20.
Reilly affirmatively states
that the August
15,
2001, test was aborted due to loss of cooling water in the scrubber,
and that prior to the cooling water loss, the scrubber achieved greater than 90
VOM
reduction efficiency.
21.
Reilly denies that the May21,
2002, test indicated that the scrubber’s
VOM removal efficiency was 73.79.
Reilly affirmatively states that the test was
aborted prior to completion.
Reilly further affirmatively states that the scrubber achieves
greater than 90
removal efficiency in the initial and
final stages ofa batch and,
therefore, aborting a test prior to completion results in
overall efficiency results that are
lower than what would
be achieved if the test were allowed to continue through
completion of a batch.
Reilly further affirmatively states that the testing, which was
conducted
over the first twelve hours of the batch, resulted in efficiency for two ofthe
four three-hour sample runs of88.41
to 92.33.
22.
Reilly admits the allegations of paragraph 22.
23.
The allegations ofparagraph 23
state a legal conclusion that does not call
for a response.
To the extent that paragraph 23
contains any
factual allegations, Reilly
denies the
same.
6
24.
The allegations ofparagraph 24 state a legal
conclusion that
does not call
for a response.
To the extent that
paragraph 24 contains any factual allegations, Reilly
denies the same.
COUNT II
CONSTRUCTION PERMIT VIOLATIONS
1-23.
Reilly repeats and realleges its answers to paragraphs
1 through 23 of
Count I as its answers to paragraphs
1
through
23 of Count II.
24.
The statutory section quoted in paragraph 24
speaks for itself,
and
therefore Reilly has no
response to this allegation.
To the extent that paragraph 24 states
any allegations offact, Reilly denies the
same.
25.
The permit condition quoted in paragraph 25
speaks for itself,
and
therefore Reilly has no
response to this allegation.
To the extent that paragraph 25
states
any allegations of fact, Reilly denies the
same.
26.
The allegations ofparagraph 26
state a legal conclusion that does not call
for a response.
To the extent that paragraph 26 contains any
factual allegations, Reilly
denies the same.
27.
The allegations ofparagraph 27 state a legal
conclusion that does not call
for a response.
To the extent that paragraph 27 contains any
factual allegations, Reilly
denies the same.
7
COUNT III
OPERATING PERMIT VIOLATIONS
1-18.
Reilly repeats and
realleges its answers to paragraphs
1 through
18 of
Count I as its answers to paragraphs
1 through 23
ofCount III.
19.
The regulation quoted
in paragraph
19 speaks for itself,
and therefore
Reilly has no
response to this allegation.
To the extent that paragraph
19 states any
allegations offact, Reilly denies the same.
20.
The allegations ofparagraph 20 state a legal conclusion that does not call
for a response.
To the extent that paragraph 20 contains any
factual allegations, Reilly
denies the same.
21.
The allegations ofparagraph 21
state a legal conclusion that does not call
for a response.
To the extent that paragraph 21
contains any
factual allegations, Reilly
denies the same.
COUNT 1Y
WASTE MANAGEMENT STANDARD VIOLATIONS
1-5.
Reilly repeats and
realleges its answers to paragraphs
1 through
5
of Count
I as its
answers to paragraphs
1
through
5 ofCount IV.
6.
Reilly admits that “in
January
1996, Reilly ceased production of coal tar
products and
creosote” at the facility.
Reilly admits the allegations ofthe second,
fourth,
and fifih sentences ofparagraph 6.
In response to the third sentence ofparagraph 6,
Reilly denies that it “returned to a full production facility” in “January 2000,” but,
rather,
affirmatively states that startup occurred in September
1999.
In response to the sixth
8
sentence ofparagraph 6, Reilly denies that at the facility, “crude coal tar is distilled in
seven stills,”
but rather, affirmatively states that at the facility, crude coal tar
is distilled
in six batch stills,
and the seventh still
is used primarily for continuous distillation ofthe
oils from the
six batch stills.
Reilly admits the allegation ofthe seventh sentence of
paragraph 6 that “the
cuts off ofthese stills are water, light oil, heavy oil,
creosote and
final products.”
In response to the eighth sentence in paragraph 6, Reilly denies that
as a
result ofdistillation at the facility, “the
final products
include
1000
Pitch, 60°Pitch, 85°
Pitch, and
emulsion-based tar,” but rather affirmatively states that the final products of
distillation at the facility include 110°C,60°C,and 85°Csoftening point pitches,
and
emulsion-based tar (RT- 12).
To the extent that paragraph 6 states any further allegations
of fact, Reilly denies the same.
7.
Reilly
admits the allegations ofparagraph
7.
8.
Reilly
admits the allegations ofparagraph
8.
9.
The statutory section quoted in paragraph 9 speaks for itself,
and therefore
Reilly
has no response to this allegation.
To the extent that paragraph 9
states any
allegations offact, Reilly denies the same.
10.
Reilly admits that on June 28, 2000,
and July 24, 2000, the Illinois EPA
conducted inspections of the facility.
Reilly has insufficient knowledge to
either admit or
deny what “Illinois EPA observed” during the inspections,
and therefore denies the
remaining allegations ofparagraph
10.
11.
Reilly has insufficient knowledge to either admit or deny the allegations of
paragraph
11 regarding what “the weekly container inspection records showed” to Illinois
9
EPA.
Complainant’s allegation that “Reilly exceeded the ten-pound reportable quantity
for benzene (D018)” states a legal conclusion that does not call for a response.
Reilly
admits that it reported the release to the Illinois Emergency Management Agency
(“IEMA”)
on September
8, 2000.
To the extent that paragraph
11
makes any
further
factual allegations, Reilly denies the same.
12.
Reilly has insufficient knowledge to either admit or deny the allegations of
paragraph 12 regarding what Illinois EPA “observed” or “noted,” and therefore denies
the allegations contained in the first
five sentences ofparagraph
12.
Reilly specifically
denies, however, that Illinois EPA “observed” any
leak of “crude coal tar tank bottoms.”
In response to the sixth
sentence ofparagraph
12, Reilly
does not know what
Complainant means by “run-on, run-offprotection,” and thus has insufficient knowledge
to either admit or deny the allegations of this sentence,
and therefore
denies the
same.
Reilly further affirmatively
states that the pad is sloped to a sewer basin in order to
prevent run-off.
To the extent that Paragraph
12 makes any further factual allegations,
Reilly denies the
same.
13.
Reilly has insufficient knowledge to either admit or deny the allegations of
paragraph 13
as to what Illinois EPA “observed,” and therefore denies the allegations of
paragraph 13.
Reilly further specifically denies that “roll-off box 20417”
contained
“crude coal tar tank bottoms.”
14.
The allegations ofparagraph
14 state a legal
conclusion that does not call
for a response.
To the extent that paragraph 14 contains any factual allegations, Reilly
denies the same,
10
COUNT V
RCRA PERMIT VIOLATIONS
1-5.
Reilly repeats and realleges its answers to paragraphs
1
through
5
of Count
I as its answers to paragraphs
1 through
5
of Count V.
6-13.
Reilly repeats and realleges its answers to paragraphs 6 through
13 of
Count IV as its answers to paragraphs 6-13 ofCount V.
14.
The statutory section quoted in paragraph
14 speaks for itself,
and
therefore Reilly has no
response to this allegation.
To the extent that paragraph
14
states
any allegations offact, Reilly denies the same,
15.
The regulation quoted in paragraph
15 speaks for itself, and therefore
Reilly has no response to this allegation.
To the extent that paragraph
15
states
any
allegations offact, Reilly denies the same.
16.
The regulation quoted in paragraph 16 speaks for itself, and therefore
Reilly has no response to this
allegation.
To the extent that paragraph 16 states
any
allegations offact, Reilly denies the
same.
17.
The regulation quoted in paragraph 17
speaks for itself,
and therefore
Reilly has no
response to this
allegation.
To the extent that paragraph
17 states
any
allegations of fact, Reill~
denies the
same.
18.
The regulation quoted
in paragraph
18
speaks for itself, and therefore
Reilly has no response to this
allegation.
To the extent that paragraph
18 states
any
allegations of fact, Reilly denies the
same.
11
19.
The regulation quoted in paragraph
19 speaks for itself,
and therefore
Reilly has no response to this allegation.
To the extent that paragraph 19 states
any
allegations offact, Reilly denies the
same.
20.
The regulation quoted in paragraph 20 speaks for itself,
and therefore
Reilly has no response to this allegation.
To the extent that paragraph 20
states
any
allegations offact, Reilly
denies the same.
21.
Reilly
has insufficient knowledge to either admit or deny the allegations of
paragraph 21
regarding what “Illinois EPA observed,” and therefore
denies the
allegations ofparagraph 21.
Reilly further specifically denies that “land disposed” of
“K147” or any other material at the facility, as alleged,
and specifically denies
Complainant’s allegation that
it1 did so.
22.
The allegations ofparagraph 22 state legal conclusions that
do not call for
a response.
To the extent that paragraph 22 contains any factual allegations, Reilly
denies the same.
Reilly further specifically denies that it “land disposed” of”K147” or
any other material at the facility, as alleged, and
specifically denies Complainant’s
allegation that it did so.
COUNT VI
PREPAREDNESS AND PREVENTION VIOLATIONS
1-5.
Reilly repeats and realleges its
answers to paragraphs
1 through
5 ofCount
I as its answers to paragraphs
1
through
5 of Count VI.
6-13.
Reilly repeats and realleges its answers to paragraphs 6 through
13
of
Count IV as its
answers to paragraphs 6-13 of Count VI.
12
•
14-15. Reilly
repeats and
realleges its answers to paragraphs
14 and
17 ofCount
V as its answers to paragraphs
14 and
15
ofCount
VT.
16.
Reilly has insufficient knowledgeto
either admit or deny the allegations of
paragraph 16 regarding what Illinois EPA “observed,” and therefore denies the
allegations ofparagraph
16.
Reilly specifically
denies, however,
that Illinois EPA
“observed” any leak of“crude coal tar tank bottoms.”
17.
Reilly has insufficient knowledge to either
admit or deny the allegations of
the first sentence ofparagraph 17 regarding what Illinois EPA “observed,” and therefore
denies those allegations.
18.
The allegations ofparagraph
18 state a legal conclusion that does not call
for a response.
To the extent that paragraph
18 contains any factual allegations, Reilly
denies the
same.
COUNT VII
CONTINGENCY PLAN VIOLATIONS
1-5.
Reilly repeats and realleges its answers
to paragraphs
1
through
5~
ofCount
I as its answers to paragraphs
1 through
5
of Count WI.
6-13.
Reilly repeats and realleges its answers to
paragraphs 6 through
13
of
Count IV as its answers to paragraphs 6 through
13
ofCount
VII.
14-16.
Reilly repeats and realleges its answers to paragraphs
14 and
18 through
19 of Count V as its
answers to paragraphs
14 through
16 ofCount VII.
17.
Reilly has insufficient knowledge to either admit or deny the allegations of
paragraph 17 regarding what Illinois EPA “observed,” and therefore denies the same.
13
Reilly admits that it submitted
a written report on September
15,
2000, but denies that it
failed to submit that report within “15 days after the implementation ofthe contingency
plan.”
To the extent that paragraph
17 states any further allegations, Reilly denies the
same.
18.
The allegations ofparagraph
18 state a legal conclusion that does not call
for a response.
To the extent that paragraph
18 contains any
factual allegations, Reilly
denies the same.
19.
The allegations ofparagraph 19
state a legal conclusion that does not call
for a response.
To
the extent that paragraph 19
contains any factual allegations, Reilly
denies the
same.
20.
The allegations ofparagraph 20
state a legal
conclusion that does not call
for a response.
To the extent that paragraph 20 contains any factual allegations, Reilly
denies the
same.
COUNT
VIII
CONTAINER USE AND MANAGEMENT VIOLATIONS
1-5.
Reilly repeats and
realleges its answers to paragraphs
1 through
5 of Count
I as its answers to paragraphs .1 through
5 ofCount VIII.
6-13.
Reilly repeats and realleges its answers to paragraphs 6 through
13
of
Count IV as its
answers to paragraphs 6 through
13 of Count VIII.
14-15.
Reilly repeats and realleges its answers to paragraphs
14 and
20 of Count
V as its answers to paragraphs
14 through
15 of Count VIII.
14
16.
Reilly has insufficient knowledge to
either admit or deny the allegations of
paragraph
16 regarding what Illinois EPA “observed,” and therefore denies the
allegations of paragraph 16.
17.
The allegations ofparagraph
17 state a legal conclusion that does not call
for a response.
To the extent that paragraph
17 contains any factual allegations, Reilly
denies the same.
18.
The allegations ofparagraph
18 state a legal conclusion that does not call
for a response.
To the extent that paragraph
18
contains any factual allegations, Reilly
denies the same.
COUNT
IX
MANIFEST AND LAND DISPOSAL RESTRICTION VIOLATIONS
1-5.
Reilly repeats and
realleges its
answers to paragraphs
1
through
5
of
Count
I as its
answers to paragraphs
1
through
5
ofCount IX.
6-13.
Reilly repeats and realleges its answers to paragraphs 6 through 13 of
Count IV as its answers to paragraphs 6 through
13
of Count IX.
14.
Reilly repeats and realleges its answer to paragraph
14 ofCount V as its
answer to paragraph
14 ofCount IX.
15.
The regulation quoted in paragraph
15
speaks for itself,
and therefore
Reilly has no
response to this allegation.
To the extent that paragraph 15
states any
allegations offact, Reilly denies the same.
15
16.
Reilly admits the allegations ofparagraph
16.
Reilly specifically denies,
however, that the waste involved was “K147 hazardous waste,” and further specifically
denies that the documents at
issue “were used to ship coal tar tank bottoms.”
17.
The allegations ofparagraph 17 state a legal conclusionthat does not call
for a response.
To
the extent that paragraph
17 contains any factual allegations, Reilly
denies the
same.
18.
The allegations ofparagraph
18 state a legal
conclusion that does not call
for a response.
To the extent that paragraph
18
contains any factual allegations, Reilly
denies the
same.
COUNTX
WATER POLLUTION
HAZARD
VIOLATIONS IN 2000
1-5.
Reilly repeats and realleges its answers to paragraphs
1
through
5 ofCount
I as its
answers to paragraphs
1
through
5
of Count X.
6-8.
Reilly repeats and realleges its answers to paragraphs 6 through
8 of Count
IV as its answers to paragraphs 6 through
8 ofCount X.
9.
Reilly admits the allegations of paragraph 9.
10.
Reilly admits the allegations ofparagraph 10,
except that Reilly denies
that the area “impacted” by the release at issue was “15
feet wide,” and rather, Reilly
affirmatively states that the area “impacted” was estimated to be
11
feet wide at its widest
part.
11.
Reilly admits the allegations ofparagraph
11.
16
12.
The statutory section quoted in paragraph 12
speaks for itself,
and
therefore Reilly has no response to this allegation.
To the extent that paragraph 12
contains any factual allegations, Reilly denies the same.
13.
The statutory section quoted in paragraph 13
speaks for itself,
and
therefore Reilly has no
response to this
allegation.
To the extent that paragraph 13
contains any
factual allegations, Reilly denies the same.
14.
The statutory section quoted in
paragraph 14 speaks for itself,
and
therefore Reilly has no
response to this allegation.
To the extent that paragraph
14
contains any
factual allegations, Reilly denies the same.
15.
The statutory section quoted in
paragraph 15 speaks for itself, and
therefore Reilly has no response to this allegation.
To the extent that paragraph 15
contains any factual allegations, Reilly denies the
same.
16.
Reilly denies the allegations ofparagraph
16.
17.
Reilly
denies the allegations ofparagraph 17.
COUNT XI
NOVEMBER 1,
2000 AIR POLLUTION VIOLATIONS
1-8.
Reilly repeats and realleges its answers to paragraphs
1 through 5
and
14
through
16 ofCount I as its
answers to paragraphs
1 through
8 of Count XI.
9-11.
Reilly repeats and realleges its answers to paragraphs 6 through 8 ofCount
IV as its answers to paragraphs 9 through
11 ofCount XI.
12.
Reilly repeats and realleges its answer to paragraph 11 ofCount X as its
answer to paragraph
12 of Count XI.
17
13.
Reilly denies the allegations ofparagraph
13.
14.
Reilly denies the allegations ofparagraph
14.
COUNT XII
JULY 4, 2003 WATER POLLUTION
HAZARD
VIOLATIONS
1-4.
Reilly repeats and realleges its answers to paragraphs 2 through
5
ofCount
I as its answers to paragraphs
1 through 4 of Count XII.
5-7.
Reilly repeats and realleges its answers to paragraphs 6 through 8 ofCount
IV as its answers to paragraphs
5
through 7 ofCount XII.
8-11.
Reilly repeats and realleges its answers to paragraph
12 through
15 of
Count X as its answers to paragraphs 8 through
11
of Count XII.
12.
Reilly has insufficient knowledge to either admit or deny the allegation
that “this
Count is brought by the People of the State of Illinois by Lisa Madigan, the
Attorney General ofthe
State ofIllinois,
on her own motion and at the request ofthe
Illinois EPA,” and thus denies same.
Reilly admits that “the
Illinois EPA requested that
Reilly waive Section
31
requirements,” and that “by
letter dated September
12, 2003,
Reilly agreed to waive Section
31
requirements.”
13.
Reilly
admits the allegations of paragraph
13.
14.
Reilly
admits the allegation ofthe first sentence ofparagraph 14 that the
release in question “occurred from a rail car that had been sitting dormant at a
Koppers
facility.
.
.
since April 2001.”
However, Reilly denies that the “Koppers facility” was
located “in Henry, South
Carolina,” and denies that it told Illinois EPA that the
‘“‘Koppers facility” was located “in Henry, South Carolina.”
Rather, Reilly
affirmatively
18
states that the “Koppers facility” is located in Woodward, Alabama,
and
further
affirmatively states that it told Illinois EPA that the “Koppers facility” is located in
Woodward, Alabama.
In response to the second sentence ofparagraph
14, Reilly admits
that it “made the decisionto remove the car from service,” but denies that it made any
“decision.
.
.
to
have the
railcar
cleaned at the Reilly Granite City facility” or
elsewhere.
In response to the third sentence of paragraph 14, Reilly admits that “at
some point, the decision was made to load the rail car with crude coal tar,” but denies that
this was before shipping the rail car anywhere “for cleaning.”
Again, Reilly denies that it
made any
“decision.
.
.
to have the
railcar
cleaned at the Reilly Granite City facility” or
elsewhere.
In response to the fourth sentence ofparagraph 14, Reilly denies that “the
rail car was sent form the Koppers facility in South
Carolina to Sloss Industries in
Birmingham, Alabama and then shipped to Granite City.”
Rather, Reilly affirmatively
states that the rail car in question was used successfully to move emulsion-based tar (RT-
12) to a customer; that the customer reported no problems with the rail car; and,
therefore, that the railcar was loaded with tar at Sloss Industries in North Birmingham,
Alabama,
and then shipped to Reilly’s facility in
Granite City, Illinois.
Reilly admits the
last two sentences ofparagraph
14.
To the extent that paragraph
14 states any further
factual allegations, Reilly denies the same.
15.
Reilly does not have records as to all ofthe exact dates that Illinois EPA
came to the Facility following the release at issue,
and therefore has insufficient
knowledge to either admit or deny the allegations ofparagraph 15.
16.
Reilly admits the allegations ofparagraph
16.
19
•
17.
Reilly
does not have records regarding the exact status ofthe response to
the release at issue on July
8,
2003,
and therefore
has insufficient knowledge to
either
admit or deny the allegations in paragraph
17.
18.
Reilly does not have records regarding the exact status at the response to
the release at issue
on July
8,
2003,
and therefore, has insufficient knowledge to either
admit or deny the allegations in paragraph 18.
19.
Reilly has insufficient knowledge to
either admit or deny the allegation
in
paragraph
19
regarding what “the Illinois EPA beheld,” and therefore
denies the
allegation.
Further,
Reilly does not have
records regarding the exact status at the
response to the release at issue on July
11, 2003,
and therefore, has insufficient
knowledge to either
admit or deny the allegations in paragraph
19.
20.
Reilly does not have records regarding the exact status at the response to
the release at issue on July 21, 2003,
and therefore,
has insufficient knowledge to either
admit or deny the allegations in paragraph 20.
21.
Reilly does not have recOrds regarding the exact status
at the response to
the release at issue on August 5, 2003, and therefore, has insufficient knowledge to either
admit or deny the allegations in the
first sentence ofparagraph 21.
Reilly admits the
allegations ofthe second, third, fourth and fifth sentences at paragraph 21.
22.
Reilly denies the allegations Ofparagraph 22.
23.
Reilly denies the allegations ofparagraph 23.
20
COUNT XIII
JULY 4, 2003 FACILITY MAINTENANCE VIOLATIONS
1-4.
Reilly repeats and realleges
its answers to paragraphs 2 through
5 ofCount
I as its
answers to paragraphs
1
through 4
of Count XIII.
5-7.
Reilly repeats and realleges its
answers to paragraphs 6 through
8 ofCount
IV as its
answers to paragraphs
5 through 7 ofCount XIII.
8-9.
Reilly repeats and realleges its
answers to paragraphs
14 and
17 ofCount
V as its
answers to paragraphs 8 through 9 ofCount XIII.
10-19.
Reilly repeats and realleges its
answers to paragraphs
12 through 21 of
Count XII as its answers to paragraphs
10 through 19 of Count XIII.
20.
Reilly specifically
denies that the release at issue constituted a release of
“hazardous waste or hazardous waste constituents,” and therefore
denies the allegations
ofparagraph 20.
21.
Reilly specifically denies that the release
at issue constituted a release of
“hazardous waste or hazardous waste constituents,” and therefore denies the allegations
ofparagraph 20.
AFFIRMATWE DEFENSE
TO COUNTS XII AND Xffl
For its
affirmative defense to Counts XII and XIII, Reilly states as follows:
1.
The release
alleged in Count XII, which forms the basis for Counts XII
and XIII, was caused by the failure ofan internal valve inside a rail car.
2.
Reilly does not own the rail car at issue.
21
3.
The internal valve and the pressure relief valve on the rail car at issue were
tested in 2000 and
passed testing.
4.
The internal valve controls the flow of material
from the rail car through
an outlet on the bottom ofthe rail car.
5.
This valve is operated by
a handle on the top ofthe rail car.
6.
The rail car was used to
ship material to another site immediately prior to
being used to ship crude coal tar to Reilly’s facility in Granite City, Illinois.
7.
That site reported no
difficulty with the use ofthe valve that subsequently
failed at Reilly’s facility.
8.
•
Because the valve passed inspection in
2000, and operated properly when
used immediately before the shipment to Reilly’s facility, Reilly had no
reason to suspect
that the valve would fail at Reilly’s facility.
9.
Prior to the arrival ofthe rail car at Reilly’s facility, the stem ofthe handle
that operates the valve had come unattached from the valve and
lodged under the valve.
10.
Reilly determined this fact by an interior inspection ofthe rail car after the
release; the valve is not visible from the’ exterior ofthe rail car.
11.
Because the valve is not visible from the exterior of the rail car, Reilly
could not have inspected the valve to determine that the handle stem had come
unattached.
12.
Further, because the handle stem had
come unattached, the handle would
not turn.
22
13.
Because the handle stem had come unattached, Reilly could not have
determined that the valve was not operating properly by trying to close the valve,
because, again, the handle that operated the valve would
not turn.
14.
Thus, there was no means by which Reilly could have determined that the
valve would fail prior to the failure occurring.
15.
Thus, Reilly lacked the capability to control the source ofthe release,
namely,
the valve that failed.
16.
Further, Reilly took all possible precautions to ensure that the valve was
operating properly.
17.
Thus, the Board
should find that the failure ofthe valve did not constitute
a violation ofthe Act orregulations by Reilly.
WHEREFORE,
Respondent REILLY INDUSTRIES, INC., by its
attorneys
HODGE DWYER ZEMAN, prays that the Board find against Complainant,
and for
Reilly,
on Paragraphs XII and XIII of Complainant’s Complaint, and
that the Board
award REILLY INDUSTRIES, INC.,
all reliefjust and proper in the premises.
23
CONCLUSION
WFIEREFORE, Respondent REILLY INDUSTRIES, INC., by
its attorneys
HODGE DWYER ZEMAN, prays that Complainant take nothing by way ofits
Complaint, and that the Board
award REILLY INDUSTRIES, INC.,
all
reliefjust and
proper in the premises.
Respectfully submitted,
REILLY INDUSTRIES, INC.,
Respondent,
•
By:_________
Or~9~
~orn~9~
Dated:
October
18,
2004
N. LaDoima Driver
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield,
Illinois
62705-5776
(217) 523-4900
REIL:OO5TFilJAnswer, Affirmative Defenses
24
