THIS FILING SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
)
Complainant,
)
)
v.
)
PCB No. 05-110
)
(Enforcement - Water)
J. McDANIEL, INC. an Illinois corporation, )
)
Respondent.
)
NOTICE OF FILING
TO:
Ms. Dorothy M. Gunn
Carol Webb, Esq.
Clerk of the Board
Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
100 West Randolph Street
1021 North Grand Avenue East
Suite 11-500
Post Office Box 19274
Chicago, Illinois 60601
Springfield, Illinois 62794-9274
(VIA ELECTRONIC MAIL)
(VIA FIRST CLASS MAIL)
(SEE PERSONS ON ATTACHED SERVICE LIST)
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of
the Illinois Pollution Control Board the
ENTRY OF APPEARANCE OF MONICA T.
RIOS and J. McDANIEL’S ANSWER TO COMPLAINANT’S COMPLAINT
,
copies of which are herewith served upon you.
Respectfully submitted,
J. McDANIEL, INC.,
Respondent,
By:/s/ Edward W. Dwyer
Edward W. Dwyer
Dated: January 12, 2006
Edward W. Dwyer
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 12, 2006
CERTIFICATE OF SERVICE
I, Edward W. Dwyer, the undersigned, certify that I have served the attached
ENTRY OF APPEARANCE OF MONICA T. RIOS and J. McDANIEL, INC.’S
ANSWER TO COMPLAINANT’S COMPLAINT upon:
Ms. Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
via electronic mail on January 12, 2006; and upon:
Carol Webb, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield, Illinois 62794-9274
Javonna Homan, Esq.
Office of the Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
by depositing said documents in the United States Mail in Springfield, Illinois, postage
prepaid, on January 12, 2006.
By:/s/ Edward W. Dwyer
Edward W. Dwyer
ECSI:001/Fil/NOF and COS – EOA – MTR, Answer
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 12, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
Complainant,
)
v.
)
J. McDANIEL, INC. an Illinois corporation,)
)
Respondent.
)
PCB No. 05-110
(Enforcement - Water)
ENTRY OF APPEARANCE OF MONICA T. BIOS
NOW COMES
Monica T. Rios, of the law firm of HODGE D
ZEMAN,
and hereby enters her appearance on behalf of Respondent, J. McDANIEL, INC.
Respectfully subm d ,
Dated: January 12, 2006
Monica T. Rios
HODGE DWYER ZEMAN
3150
Roland Avenue
Post
Office
Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
E CS l: 001 /Fil/E9A-
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 12, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
)
Complainant,
)
)
v.
)
PCB No. 05-110
)
(Enforcement - Water)
J. McDANIEL, INC. an Illinois corporation, )
)
Respondent.
)
J. McDANIEL, INC.’S ANSWER
TO COMPLAINANT’S COMPLAINT
NOW COMES Respondent, J. McDANIEL, INC. (“J. McDaniel”), by and
through its attorneys, HODGE DWYER ZEMAN, and hereby files its Answer in this
matter stating as follows:
COUNT I: WATER POLLUTION (VERMILION COUNTY)
1.
Paragraph 1 contains a legal conclusion for which no response is required.
To the extent paragraph 1 contains any factual allegations, J. McDaniel has insufficient
knowledge to admit or deny paragraph 1. Therefore, J. McDaniel denies the same.
2.
Paragraph 2 contains a legal conclusion for which no response is required.
3.
Paragraph 3 contains a legal conclusion for which no response is required.
To the extent paragraph 3 alleges facts regarding notice and the opportunity for a meeting
with the Illinois EPA, J. McDaniel admits the same.
4.
J. McDaniel admits paragraph 4.
5.
The Act speaks for itself; no response is required.
6.
The Act speaks for itself; no response is required.
7.
The Act speaks for itself; no response is required.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 12, 2006
2
8.
The Act speaks for itself; no response is required.
9.
The Act speaks for itself; no response is required.
10.
J. McDaniel admits paragraph 10.
11.
Paragraph 11 contains a legal conclusion for which no response is
required. J. McDaniel affirmatively states that it did not intentionally allow gasoline to
discharge into a storm water drain or drainage way.
12.
Paragraph 12 contains a legal conclusion for which no response is
required.
13.
J. McDaniel admits paragraph 13 to the extent that at approximately 1:15
p.m. on November 12, 2001, the Danville Fire Department (“DFD”) responded to the
scene and that DFD reported Lower Explosive Limit readings in the storm sewer from
50-70%. J. McDaniel has insufficient knowledge to admit or deny any other factual
allegations in paragraph 13 and therefore denies the same.
14.
J. McDaniel admits paragraph 14 to the extent that the DFD flushed the
storm sewer at a rate of 100 to 200 gallons per minute for five or six hours. J. McDaniel
has insufficient knowledge to admit or deny any other factual allegations in paragraph 14
and therefore denies the same. J. McDaniel affirmatively states that it was the actions of
the DFD that resulted in any discharge to Stony Creek.
15.
J. McDaniel admits paragraph 15.
16.
J. McDaniel has insufficient knowledge to admit or deny the allegations of
paragraph 16 and therefore denies the same.
17.
J. McDaniel admits paragraph 17.
18.
J. McDaniel admits paragraph 18.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 12, 2006
3
19.
J. McDaniel admits paragraph 19 to the extent that the Illinois
Environmental Protection Agency (“Illinois EPA”), Illinois Department of Natural
Resources (“Illinois DNR”), Bodine, DFD, and Terracon visited the site on November
13, 2001. Furthermore, J. McDaniel admits that the Illinois EPA, Terracon, and Bodine
walked along the drainage way
. J. McDaniel has insufficient knowledge to admit or deny
the remaining allegations of paragraph 19 and therefore denies the same.
20.
J. McDaniel has insufficient knowledge to admit or deny the allegations of
paragraph 20 and therefore denies the same.
21.
Paragraph 21 contains legal conclusions for which no responses are
required.
WHEREFORE, the Respondent, J. McDANIEL, INC., respectfully requests that
the Illinois Pollution Control Board deny the relief sought in Count I by the Complainant,
PEOPLE OF THE STATE OF ILLINOIS.
COUNT II: WATER POLLUTION HAZARD (VERMILION COUNTY)
1-21. Respondent realleges and incorporates herein by reference its answers to
paragraphs 1 through 21 of Count I as its answers to paragraphs 1 through 21 of this
Count II.
22.
J. McDaniel admits paragraph 22 to the extent that at the direction of the
Illinois EPA, Terracon collected soil samples on or about November 13, 2001. J.
McDaniel affirmatively states that Terracon collected samples from a dry creekbed and
that the subsequent analytical results indicated levels of benzene, ethyl benzene, toluene,
and total xylene (collectively referred to as “BETX”) as high as 751 micrograms per
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 12, 2006
4
kilogram (ug/kg), 3,120 ug/kg, 3,690 ug/kg, and 16, 900 ug/kg, respectively. To the
extent paragraph 22 contains other factual allegations, J. McDaniel denies the same.
23.
J. McDaniel admits that on April 12, 2002, the Illinois EPA rejected its
proposed compliance commitment agreement because it was received after the forty-five
(45) day statutory period for response to a Violation Notice had elapsed. To the extent
paragraph 23 contains any other factual allegations, J. McDaniel denies the same.
24.
J. McDaniel admits paragraph 24 to the extent that a report dated
August 7, 2002, by Terracon proposed on behalf of J. McDaniel to achieve remediation
pursuant to the Tiered Approach to Corrective Action Objectives (“TACO”) regulations
in general and site-specific Tier 2 remediation objectives developed by Terracon. J.
McDaniel affirmatively states that the August 7, 2002, report showed levels of benzene in
sediments up to three hundred forty-one ug/kg (341 ug/kg). To the extent that paragraph
24 contains any other factual allegations, J. McDaniel denies the same.
25.
Paragraph 25 contains a legal conclusion for which no response is
required. To the extent that paragraph 25 contains any other factual allegations, J.
McDaniel denies the same.
26.
Paragraph 26 contains a legal conclusion for which no response is
required.
WHEREFORE, the Respondent, J. McDANIEL, INC., respectfully requests that
the Illinois Pollution Control Board deny the relief sought in Count II by the
Complainant, PEOPLE OF THE STATE OF ILLINOIS.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 12, 2006
5
COUNT III: WATER POLLUTION (McLEAN COUNTY)
1-9.
J. McDaniel realleges and incorporates herein by reference its answers to
paragraphs 1 through 9 of Count I as its answers to paragraphs 1 through 9 of this Count
III.
10.
J. McDaniel admits paragraph 10.
11.
Paragraph 11 contains a legal conclusion for which no response is
required. J. McDaniel affirmatively states that it did not intentionally allow gasoline to
discharge into a road ditch.
12.
Paragraph 12 contains a legal conclusion for which no response is
required.
13.
J. McDaniel admits paragraph 13 to the extent that on April 3, 2001, the
McLean Fire Department arrived on scene. To the extent that paragraph 13 contains any
other factual allegations, J. McDaniel has insufficient knowledge to admit or deny such
allegations and therefore denies the same.
14.
J. McDaniel admits paragraph 14 to the extent that the McLean Fire
Department applied foam at the scene. To the extent paragraph 14 contains any other
factual allegations, J. McDaniel has insufficient knowledge to admit or deny such
allegations and therefore denies the same.
15.
J. McDaniel admits paragraph 15 to the extent that gasoline traveled
through the drainage way and discharged through approximately two miles of field tiles
into Sugar Creek. To the extent that paragraph 15 contains other factual allegations, J.
McDaniel has insufficient knowledge to admit or deny such allegations, and therefore
denies the same.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 12, 2006
6
16.
J. McDaniel admits paragraph 16.
17.
J. McDaniel has insufficient knowledge to admit or deny the allegations of
paragraph 17 and therefore denies the same.
18.
J. McDaniel has insufficient knowledge to admit or deny allegations of
paragraph 18 and therefore denies the same.
19.
J. McDaniel admits paragraph 19 to the extent that from April 4, 2001,
through April 16, 2001, Bodine undertook the excavation and removal of an estimated
1,625 tons of contaminated soil. J. McDaniel affirmatively states that Bodine excavated a
test pit in the gravel bar at Sugar Creek near where the tile line discharged and that at the
request of McLean County Health Department J. McDaniel installed a new septic system
for a nearby home since vapors from a field tile might have entered through the pre-
existing septic system. To the extent that that paragraph 19 contains other factual
allegations, J. McDaniel has insufficient knowledge to admit or deny such allegations and
therefore denies the same.
20.
J. McDaniel has insufficient knowledge to admit or deny the allegations of
paragraph 20 and therefore denies the same. J. McDaniel affirmatively states that the
field tile was sampled twice and the second sample, collected approximately seven weeks
after the release, did not have any detections above the detection limits.
21.
Paragraph 21 contains a legal conclusion for which no response is
required.
WHEREFORE, the Respondent, J. McDANIEL, INC., respectfully requests that
the Illinois Pollution Control Board deny the relief sought in Count III by the
Complainant, PEOPLE OF THE STATE OF ILLINOIS.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 12, 2006
7
COUNT IV: WATER POLLUTION HAZARD (McLEAN COUNTY)
1-9.
Respondent realleges and incorporates herein by reference its answers to
paragraphs 1 through 9 of Count I as its answers to paragraphs 1 through 9 of this Count
IV.
10-20. Respondent realleges and incorporates herein by reference its answers to
paragraphs 10 through 20 of Count III as its answers to paragraphs 10 through 20 of this
Count IV.
21.
J. McDaniel admits paragraph 21.
22.
J. McDaniel has insufficient knowledge to admit or deny paragraph 22 and
therefore denies the same. J. McDaniel affirmatively states that in a letter dated
December 4, 2001, the Illinois EPA construed the November 2001 report as a proposed
compliance commitment agreement although it had been received after the forty-five day
statutory period for response to a Violation Notice had elapsed, and that on December 4,
2001, the Illinois EPA rejected the proposed compliance commitment agreement because
clean-up objectives for soil had not been met in two areas north and south of Route 136,
cleanup objectives for groundwater had not been met, and no sampling of a nearby
residential well had been conducted. J. McDaniel further states that the November 2001
report stated that groundwater in the area of the sump exceeded groundwater standards.
23.
J. McDaniel admits paragraph 23 to the extent that a remedial action plan
dated August 2002 by Earth Tech proposed on behalf of the Respondent to continue
efforts to mitigate soil contamination did not include additional investigation as to
impacts upon a nearby residential well. J. McDaniel denies any remaining factual
allegations contained in paragraph 23. J. McDaniel affirmatively states that the August
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 12, 2006
8
2002 Remedial Action Plan provides for the installation of a biosparge system to
successfully remediate soil and groundwater contamination and that it further describes a
sampling plan. J. McDaniel also affirmatively states the resident’s well was not sampled
because it was up-gradient from the spill and the County was known to have sampled and
analyzed the well water three to four weeks after the accident and determined that it was
clean. J. McDaniel further states that the results of the County’s sampling of the
residential well are stated in the May 2003 Site Investigation Report.
24.
J. McDaniel admits paragraph 24 to the extent that as of May 30, 2003,
when another remedial action plan was submitted by the Respondent to the Illinois EPA,
soil and groundwater exceedances still remained, no sampling of the residential well,
surface water or sediment had been conducted, and the biosparge system proposed by J.
McDaniel to remediate the areas around Route 136 had not been implemented. To the
extent that paragraph 24 contains any other factual allegations, J. McDaniel denies the
same. J. McDaniel affirmatively states that as of October 21, 2003, a letter was
transmitted by it to the Illinois EPA indicating that soil and groundwater exceedences still
remained and the biosparge system had not yet been implemented. J. McDaniel further
affirmatively states that between August 2002 and May 2003, it was waiting to receive its
requested review and approval of the remedial action plan from the Illinois EPA and that
it was not until the May 9, 2003, meeting that the Illinois EPA intended to respond to the
submittal.
25.
Paragraph 25 contains a legal conclusion for which no response is
required.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 12, 2006
9
WHEREFORE, the Respondent, J. McDANIEL, INC., respectfully requests that
the Illinois Pollution Control Board deny the relief sought in Count IV by the
Complainant, PEOPLE OF THE STATE OF ILLINOIS.
Respectfully submitted,
J. MCDANIEL, INC.,
Respondent,
By:/s/ Edward W. Dwyer
One of Its Attorneys
Dated: January 12, 2006
Edward W. Dwyer
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
ECSI:001/Fil/Answer
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 12, 2006
