RECE WED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
APR 202005
PEOPLE OF THE STATE
OF ILLiNOIS,
)
)
Complainant,
)
)
V.
)
PCB No. 03-182
)
(Enforcement
—
Air, Water)
)
REILLY INDUSTRIES, iNC.,
)
STATE OF ILUMOIS
Pollution Control Board
Respondent.
)
NOTICE OF FILING
TO:
Ms. Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
100 West Randolph Street
Suite
11-500
Chicago, Illinois
60601
(VIA FIRST CLASS MAIL)
Carol Webb, 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
the Illinois
Pollution Control Board
an original and nine copies ofRESPONDENT
REILLY INDUSTRIES,
INC.’S ANSWER AND AFFIRMATIVE DEFENSES
TO
COMPLAINANT’S SECOND
SUPPLEMENTAL COMPLAINT,
a copy ofwhich is
hereby served upon you.
Respectfully submitted,
Dated:
April
15, 2005
Thomas G. Safley
N. LaDonna Driver
HODGE DWYER ZEMAN
3150
Roland Avenue
Post Office Box
5776
Springfield,
Illinois
62705-5776
(217) 523-4900
REILLY INDUSTRIES, INC.,
Respondent,
By:
One
THIS FILING SUBMITTED ON
RECYCLED
PAPER
CERTIFICATE OF SERVICE
I, Thomas G.
Safley, the undersigned, certify that I have served the attached
RESPONDENT REILLY INDUSTRIES, INC.’S ANSWER AND AFFIRMATIVE
DEFENSES TO COMPLAINANT’S SECOND SUPPLEMENTAL COMPLAINT,
upon:
Ms.
Dorothy M.
Gunn
Thomas Davis, Esq.
Clerk of the 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 Webb, 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 April
15, 2005.
~ /
/
Thomas). ~ey~
REIL:005/Filings/NOF-COS
—
AnswerO2
RECEg~~~
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
APR
202005
STATE OF ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS,
)
Pollution Control Board
)
Complainant,
)
)
v.
)
PCBNo.03-182
)
(Enforcement
—
Air, Water)
REILLY INDUSTRIES, INC.,
)
)
Respondent.
)
RESPONDENT REILLY
INDUSTRIES, INC.’S ANSWER AND AFFIRMATIVE
DEFENSES TO
COMPLAINANT’S SECOND SUPPLEMENTAL COMPLAINT
NOW COMES Respondent REILLY INDUSTRIES, INC. (“Reilly”), by its
attorneys HODGE DWYER ZEMAN,
and for its Answer and Affirmative Defenses to
Complainant’s Second Supplemental
Complaint, states as follows:
ANSWER
COUNT I
1.
Reilly has insufficient knowledge to either admit or deny the allegation of
paragraph I that “this
Complaint is brought by the Attorney General on her own motion
and at the request of the 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 conclusion to which no response is required.
To the extent that Paragraph
1
makes any further allegations of fact, Reilly denies the same.
2.
Reilly admits the allegations of paragraph 2.
3.
The allegation ofparagraph
3
that “the
Complaint is brought pursuant to
Section
31
of the Act, 415 ILCS
5/31
(2002)” states a legal conclusion to which no
response is required.
Reilly admits the allegation ofparagraph
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 of fact, 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 offact, Reilly denies the same.
6.
Reilly admits the allegation ofparagraph 6 that the facility distills coal tars
into light oils
and pitches in six
batch-type stills.
Reilly denies that the facility distills
creosotes, but affirmatively states that the facility blends creosote.
Reilly denies that a
seventh still
at the facility is used as a continuous unit for coal tar distillation.
Reilly
affirmatively states that the seventh still
is used as a continuous unit for coal tar oil
distillation.
Reilly admits that the six
batch-type stills normally are operated in a 20-hour
cycle.
Reilly admits that,
as to these
six stills, “after
each
still
is filled with coal tar,
natural
gas burners are ignited.”
Reilly admits
that as the temperature of the tar
increases, some ofits constituents are vaporized.
Reilly admits that “the
vapor line
is
indirectly cooled with 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
2
tanks.”
Reilly admits that emission units at the facility include seven receiving pans that
are controlled by a scrubber.
Reilly affirmatively states that emission units at the facility
include seven receiving pans that are also controlled by a flare.
To the extent that
Paragraph 6 makes any other allegations offact, Reilly denies the same.
7.
Reilly admits that construction permit number 99040035
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.
To the extent that paragraph 8 makes any further allegations of
fact, Reilly denies the same.
9.
The requirements ofthe construction permit speak
for themselves.
Reilly
admits that it planned to conduct a stack test on the scrubber.
Reilly admits 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 representatives were
present at the 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 extent that paragraph 9 makes any further allegations offact, Reilly
denies the same.
3
10.
Reilly admits that test results were submitted to
the Illinois EPA on
July 26, 2001.
The remaining allegations ofparagraph 10
state a legal conclusion that
does not call for a response.
To the extent that paragraph 10 makes any further
allegations offact, Reilly denies the same.
11.
Reilly admits that additional scrubber tests were scheduled for August
15,
2001.
Reilly admits that Illinois EPA representatives were present
on August
15, 2001.
Reilly admits that the August
15, 2001, test was aborted due to
a loss of cooling water in
the scrubber.
Reilly admits
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.
13.
Reilly admits that a scrubber test was conducted on May 21, 2002
and that
final results of the test were
submitted to
Illinois EPA on August 28, 2002.
Reilly admits
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.
4
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 of fact, 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 of fact, 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, Reilly denies
the same.
18.
The allegations of paragraph
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 data from the April
3,
2001,
stack test speak for themselves.
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 admits the allegations of paragraph 20.
Reilly affirmatively states
that the August
15,
2001, test was aborted due to
loss of cooling water in the scrubber,
5
and that prior to the cooling water loss, the scrubber achieved greater than 90
VOM
reduction efficiency.
21.
Reilly admits the allegations ofparagraph 21.
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.
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.
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 of fact, Reilly denies the same.
6
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.
COUNT III
OPERATING PERMIT VIOLATIONS
1-18.
Reilly repeats and realleges its answers to paragraphs
I through
18 of
Count I as its
answers to
paragraphs I through
18 of Count 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 of fact, 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.
7
COUNT IV
WASTE
MANAGEMENT STANDARD
VIOLATIONS
1-5.
Reilly repeats and realleges its answers to paragraphs
1
through
5
ofCount
I as its
answers to paragraphs I through
5
of Count 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 fifth sentences ofparagraph 6.
In response to the third sentence ofparagraph 6,
Reilly admits that startup ofthe facility occurred in September
1999.
In response to the
sixth sentence of paragraph 6, Reilly admits that crude coal tar is distilled in six batch
stills.
Reilly admits the allegation of the seventh sentence ofparagraph 6 that “tjhe
cuts
off ofthese stills are water, light oil, heavy oil, creosote and final products.”
In response
to the eighth sentence in paragraph 6, Reilly admits 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 of paragraph 7.
8.
Reilly denies the first sentence of paragraph 8,
and affirmatively states that
at one time, it operated a surface impoundment for wastewater from the production of
creosote.
Reilly
admits the remaining 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.
8
10.
Reilly admits the allegations ofthe first, second,
and fourth sentences of
paragraph
10.
Reilly denies the allegations ofthe third sentence ofparagraph
10, and
affirmatively states
that, over the course of 17 days, approximately five gallons of
material leaked from the roll-offbox in question.
11.
Reilly admits the allegations ofthe first sentence ofparagraph
11.
Reilly
denies the allegation ofthe second sentence of paragraph
11
that “Reilly exceeded the
ten-pound reportable quantity for benzene (D018).”
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 admits
the allegations ofparagraph
12.
13.
Reilly admits
the allegations ofparagraph
13.
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.
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
ofCount V.
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 V.
9
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 foritself, and therefore
Reilly has no response to this allegation.
To the extent that paragraph
16 states any
allegations of fact, Reilly denies the same.
17.
The regulation quoted
in paragraph 17 speaks for itse1f~,and therefore
Reilly has no response
to this allegation.
To the extent that paragraph 17
states any
allegations of fact, Reilly 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.
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 denies the allegations ofparagraph 21.
10
22.
The allegations of paragraph 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 any material
at the facility, as alleged.
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 ofCount VI.
6-13.
Reilly repeats and
realleges its answers to paragraphs 6 through
13 of
Count IV as its answers to paragraphs 6-13 ofCount VI.
14-15.
Reilly repeats and realleges its answers to paragraphs
14 and
17 ofCount
V as its answers
to paragraphs 14 and
15 ofCount
VI.
16.
Reilly admits that an
unplanned release of approximately five gallons of
hazardous waste occurred at the Facility over
a period of 17 days.
To the extent that
paragraph 16
states any other allegations of fact, Reilly denies the same.
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 of paragraph 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.
II
COUNT VII
CONTINGENCY PLAN 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 VII.
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 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 of Count VII.
17.
Reilly denies the allegations of the first sentence ofparagraph
17,
and
affirmatively states that it was not required to report the release of front end
oil because
the reportable quantity for benzene was not exceeded over any twenty-four hour time
period.
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 of the
contingency plan”
as the contingency plan was not required to be implemented.
To the
extent that paragraph
17
states any further allegations, Reilly denies the same.
18.
The allegations of paragraph 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 of paragraph 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.
12
20.
The allegations of paragraph 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 ofCount
I as its answers to paragraphs I 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 ofCount VIII.
14-15.
Reilly repeats and realleges its answers
to paragraphs
14 and 20 ofCount
V as its answers to
paragraphs 14 through
15 ofCount VIII.
16.
Reilly admits the allegations ofparagraph
16.
17.
The allegations of paragraph
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 of paragraph
18 state a legal conclusion that does not c4ll
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
I through
5
ofCount
I as its answers to paragraphs
1
through
5
of Count IX.
13
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 of Count 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 of fact, Reilly denies the same.
16.
Reilly admits the allegations ofparagraph
16.
17.
The allegations of paragraph
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 of paragraph
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 X
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
I through
5
ofCount 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 ofparagraph 9.
10.
Reilly admits the allegations ofparagraph
10.
14
II.
Reilly admits the allegations ofparagraph
11.
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.
9-1 1.
Reilly repeats and realleges
its answers to paragraphs
6 through
8 ofCount
IV as its answers to paragraphs 9 through
11
ofCount
XI.
15
12.
Reilly repeats and realleges its answer to
paragraph 11
of Count X as its
answer to paragraph
12 ofCount XI.
13.
Reilly denies the allegations of paragraph 13.
14.
The allegations of paragraph
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.
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 of Count 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 ofCount XII.
12.
Reilly has insufficient knowledge to either admit or deny the allegation
that “this
Count is brought by the People of the State ofIllinois by
Lisa Madigan, the
Attorney General ofthe State of Illinois, 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 ofparagraph 13.
14.
Reilly admits the allegations of paragraph
14.
16
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 of paragraph 16.
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 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.
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COUNT XIII
JULY 4, 2003
FACILITY MAINTENANCE VIOLATIONS
1-4.
Reilly repeats and realleges its answers to paragraphs 2 through
5
of Count
I as its
answers to paragraphs
1
through 4
ofCount XIII.
5-7.
Reilly repeats and realleges its answers to paragraphs 6 through 8 of Count
IV as its answers to paragraphs 5 through
7 ofCount XIII.
8-9.
Reilly repeats and realleges its answers to paragraphs
14 and 17 of Count
V as its answers to paragraphs
8 through 9 of Count 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
of paragraph 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
of paragraph 21.
COUNT XIV
JANUARY 28, 2004, AIR POLLUTION VIOLATION
1-9.
Reilly repeats and realleges its answers
to paragraphs I through
6
and
14
through
16 ofCount I as its answers to
paragraphs
1
through 9 of Count XIV.
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10.
Reilly admits the allegations of paragraph 10 that there was a fire at still
#6 on January 28, 2004, but has insufficient knowledge to admit or deny the remaining
allegations ofparagraph
10.
11.
Reilly denies the allegations of paragraph 11.
12.
The allegations ofparagraph 12 state a legal conclusion that does not call
for a response.
To the extent that paragraph
12 contains any factual allegations, Reilly
denies the same.
AFFIRMATIVE DEFENSE TO COUNTS
XII AND XIII
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.
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 ofmaterial 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.
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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 ofthe 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.
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 of the release,
namely, the valve that failed.
16.
Further, Reilly took all possible precautions to
ensure that the valve was
operating properly.
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17.
Thus,
the Board should find
that the failure of the valve did not constitute
a violation ofthe Act or regulations 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 ofComplainant’s Complaint, and that the Board
award REILLY INDUSTRIES, INC.,
all reliefjust
and proper in
the premises.
CONCLUSION
WHEREFORE, 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,
Dated:
April
15, 2005
Thomas G.
Safley
N. LaDonna Driver
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box
5776
Springfield, Illinois
62705-5776
(217) 523-4900
REIL:005/Fil/Answer, Affirmative
DefensesO4
One
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