RECE~VED
CLERK’S OFFICE
JUN
30
2005
OFFICE OF THE A1TORNEY GENERAL
STATE OF ILUNOIS
STATE
OF ILLINOIS.
Pollution Contro’ Board
Lisa Madigan
ATTORNEY GENERAL
June 27, 2005
The Honorable Dorothy Gunn
Illinois Pollution
Control Board
State of Illinois
Center
100 West
Randolph
Chicago,
Illinois
60601
Re:
People v.
Reilly Industries, Inc.
PCB
No.
03-1 82
Dear Clerk Gunn:
Enclosed
for
filing
please
find
the
original
and
ten
copies
of
a
NOTICE
OF
FILING,
COMPLAINANT’S RESPONSE TO AFFIRMATIVE
DEFENSE
in regard
to the above-captioned
matter.
Please file the original and
return a file-stamped copy of the document to our office in the
enclosed,
self-addressed envelope.
Thank you
for your cooperation and
consideration.
Very truly yours,
Tom
Davis,
Chief
Environmental Bureau
500
South
Second Street
Springfield,
Illinois 62706
(217)
782-9031
TD/pp
Enclosures
500 South Second Street, Springfield,
Illinois
62706
•
(217)
782-1090
•
TTY: (217)
785-2771
•
Fax:
(217)
782-7046
100
\Vest
Randolph
Street, Chicago, Illinois
60601
•
(312) 814-3000
•
TTY:
(312) 814-3374
•
Fax:
(312) 814-3806
1001
East \luin,
Carhond~!e,
Illinois
62901
•
(618) 529-6400
•
Try:
(618)
5796403
•
Fax:
(618)
529-6416
REc~vED
BEFORE
THE
ILLINOIS POLLUTION
CONTROL BOARD
RKs OFFICE
JUN 30200
PEOPLE OF THE STATE OF
)
ILLINOIS,
)
STATE OF ILLINOIS
)
OIlUtio~Control Board
Complainant,
)
vs.
)
PCB No.
03-182
)
(Enforcement)
REILLY INDUSTRIES, INC.,
)
an Indiana corporation,
Respondent.
NOTICE OF FILING
To:
Thomas G. Safley
Hodge Dwyer Zeman
3150
Roland
Avenue
P.O.
Box 5776
Springfield,
IL 62705-5776
PLEASE TAKE
NOTICE
that
on
this
date
I
mailed for filing with the Clerk of the Pollution
Control Board of theState of Illinois, COMPLAINANT’S RESPONSE TO AFFIRMATIVE DEFENSE,
a copy of which
is attached
hereto and
herewith served
upon you.
Respecifully submitted,
PEOPLE
OF THE
STATE OF ILLINOIS
LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW
J.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:_____________________
THOMAS
DAVIS,
Chief
Assistant Attorney General
Environmental Bureau
500
South Second Street
Springfield,
Illinois
62706
217/782-9031
Dated:
June 27, 2005
CERTIFICATE OF SERVICE
I
hereby certify that
I
did on
June 27, 2005, send
by First Class
Mail, with
postage thereon
fully prepaid,
by depositing
in a
United
States
Post Office
Box a true
and correct copy of the
following
instruments entitled NOTICE
OF
FILING,
COMPLAINANT’S RESPONSE TO
AFFIRMATIVE
DEFENSE
To:
Thomas
G. Safley
Hodge Dwyer Zeman
3150 Roland
Avenue
P.O.
Box 5776
Springfield,
IL 62705-5776
and the original
and ten copies
by
First Class
Mail with postage thereon fully prepaid
of the
same foregoing
instrument(s):
To:
Dorothy Gunn, Clerk
Illinois
Pollution Control
Board
State of Illinois
Center
Suite
11-500
100 West
Randolph
Chicago,
Illinois 60601
a
copy was also sent to:
Carol Webb
Hearing
Officer
Illinois
Pollution
Control
Board
1021
N.
Grand
Avenue East
Springfield,
IL 62794
THOMAS
DAVIS,
Chief
Environmental Bureau
Assistant Attorney General
This filing is submitted on recycled
paper
REG~VE D
CLERK’S OFFICE
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
JUN
302005
PEOPLE OF THE STATE OF ILLINOIS,
Pollution
Control
Board
Complainant,
)
vs.
)
No.
03-182
)
(Enforcement)
REILLY INDUSTRIES,
INC.,
)
an
Indiana corporation,
)
)
Respondent.
)
COMPLAINANT’S RESPONSE TO AFFIRMATIVE
DEFENSE
Complainant,
PEOPLE OF THE
STATE OF ILLINOIS,
by
LISA MADIGAN, Attorney
General of the State of
Illinois, hereby responds
to the purported affirmative
defense
pleaded
by the Respondent pursuant to
Section
103.204(d) of the Board’s Procedural
Rules,
35
III. Adm.
Code 103.204(d).
The Respondent’s affirmative defense
is to
Counts XII
and XIII which
relates
to a release of approximately 16,000 gallons of crude coal
tar from a tank car on July 4,
2003.
The allegations of paragraph
14 of Count XII,
to
which the Respondent admits,
are as follows:
Reilly explained to
the Illinois
EPA that the release occurred from a rail car that
had
been
sitting
dormant at the Koppers facility
in Woodward, Alabama, since
April
2001.
Reilly made
the decision to remove
the car from service.
At some
point,
the decision
was
made to
return the rail car to
service.
The
rail car was
subsequently loaded with crude
coal tar at
Sloss Industries
in
North
Birmingham,
Alabama, and
shipped
back
to Reilly’s Granite
City facility.
On July 4, 2003,
a
Reilly operator removed
the bottom cap and the valve
began to
leak.
The
operator attempted to
close
the valve,
at which point the valve completely failed.
In
addition
to
these facts, the Respondent alleges the following, to
which the Complainant
responds:
1.
The release
alleged
in Count XII, which forms the
basis for Counts XII
and XIII,
was caused by the failure of an
internal valve
inside a
rail car.
Answer:
As
set forth above,
the Respondent admits that,
on July 4, 2003,
a Reilly
operator removed the bottom cap and the valve began to
leak; the operator attempted to
close
1
the valve,
at which point the valve completely
failed.
In this context,
thq Complainant admits
that the failure of an
internal valve
inside the rail car contributed to the release.
2.
Reilly does not own
the rail car at issue.
Answer:
The Complainant admits this allegation.
3.
The internal valve and the pressure relief valve on the rail car at issue were
tested in 2000 and
passed testing.
Answer:
The Complainant has
insufficient knowledge to either
admit or deny this
allegation.
4.
The internal valve controls the flow of material from the rail car through an outlet
on the bottom of the rail car.
Answer:
The Complainant admits this allegation.
5.
The valve is opened
by a
handle on the top of the rail
car.
Answer:
The Complainant admits this allegation.
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.
Answer:
The Complainant
has insufficient knowledge to
either admit or deny this
allegation.
7.
That site reported no
difficulty with the
use
of the valve that
subsequently failed
at Reilly’s facility.
Answer:
The Complainant has insufficient knowledge to
either admit or deny this
allegation.
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.
Answer:
The Complainant
denies this allegation.
2
9.
Prior to the arrival of the rail car at Reilly’s facility, the stem of the handle that
operates the valve had
come
unattached from the valve and
lodged
under the valve.
Answer:
The Complainant has
insufficient knowledge to
either admit or deny this
allegation.
10.
Reilly determined this fact
by an
interior inspection
of the rail car after the
release;
the valve is not visible from the exterior of the rail
car.
Answer:
The Complainant has insufficient knowledge to
either admit or deny this
allegation as
it relates to
the inspection.
The Complainant admits
that the valve is not visible
from the exterior of the 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.
Answer:
The Complainant has insufficient knowledge to
either admit or deny this
allegation.
12.
Further,
because the handle stem had
come unattached, the handle would
not
turn.
Answer:
The Complainant
admits this allegation.
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.
Answer:
The Complainant has
insufficient knowledge to
either admit or deny this
allegation.
14.
Thus,
there was
no means by which Reilly
could have
determined
that the valve
would
fail
prior to the failure occurring.
Answer:
The Complainant has
insufficient knowledge to
either admit or deny this
allegation.
3
15.
Thus, ‘Reilly lacked
the capability to control the source of the release,
namely,
the valve
that failed.
Answer:
The Complainant objects
because this statement is a legal conclusion.
16.
Further,
Reilly took all
possible precautions
to
ensure that the valve was
operating
properly.
Answer:
The Complainant denies this allegation.
17.
Thus,
the Board
should
find
that the failure of the valve
did
not constitute a
violation of the Act or regulations by
Reilly.
Answer:
The Complainant objects
because this statement is a
legal conclusion.
WHEREFORE, Complainant
respectfully asks that the Board deny
any affirmative
defense.
Respectfully submitted,
•
PEOPLE
OF THE
STATE
OF ILLINOIS,
LISA MADIGAN
Attorney General
•
State of Illinois
MATTHEW
J.
DUNN, Chief
Environmental Enforcement Division
BY:________________________
THOMAS
DAVIS,
Chief
Environmental Bureau
Assistant.Attorney General
•
500 South
Second Street
Springfield,
Illinois
62706
217/782-9031
Dated: June
24, 2005
4
