RECEIVED
CLERK'S OFFICE
APR 2 1 2008
Control Board
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Pollution ILLINOIS
STATE OF
PEOPLE OF THE STATE OF ILLINOIS by
LISA MADIGAN, Attorney General of the
State of Illinois,
PCB No. 07-124
Complainant,
?
(Enforcement - Water)
v.
KRAFT FOODS GLOBAL, [NC., a Delaware
corporation,
Respondent.
ANSWER TO COMPLAINT
NOW COMES Respondent, KRAFT FOODS GLOBAL, INC., by and through its
attorneys, SEYFARTH SHAW LLP, and states as follows for its Answer to Complaint:
COUNT I
WATER POLLUTION
1.
'Ibis Count is brought on behalf of the PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General of the State of Illinois, on her own motion and at the
request of the Illinois Environmental Protection Agency ("Illinois EPA"), pursuant to Section 31
of the Illinois Environmental Protection Act ("Act"), 415 ILCS 5/31 (2004).
RESPONSE:
Respondent admits the allegations contained in paragraph 1 of the Complaint.
2.
The Illinois EPA is an administrative agency of the State of Illinois, created
pursuant to Section 4 of the Act, 415
II,CS
5/4 (2004), and charged, inter alia, with the duty of
enforcing the Act. The Illinois EPA is further charged with the duty to abate violations of the
National Pollutant Discharge Elimination System ("NPDES") permit program under the Federal
Clean Water Act ("CWA"), 33 U.S.C. § 1342(b)(7) (2007).
RESPONSE:
Respondent admits the
allegations contained in paragraph 2 of the Complaint.
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3.
At all times relevant to this Complaint, Respondent, Kraft Foods Global, Inc.
("Kraft") was and is a Delaware corporation authorized to transact business in Illinois.
RESPONSE:
Respondent admits the allegations contained in paragraph 3 of the Complaint.
4.
At all times relevant to this Complaint, Kraft owned and operated a food
processing and production facility ("Facility"), located at 1555 West Ogden Avenue, Naperville,
DuPage County, Illinois ("Site").
RESPONSE:
Respondent admits the allegations contained in paragraph 4 of the Complaint.
5.
As part of its food processing and production at the Site, Kraft discharges process
wastewater across the Site to a pretreatment lagoon, located on the southwest corner of the Site.
At all times relevant to this complaint, Kraft's process wastewater lines ran over and/or through
the storm sewers at the Site, which discharge to the West Branch of the DuPage River.
RESPONSE:
Respondent admits the allegations contained in paragraph 5 of the Complaint.
6.
On June 6, 2005 and continuing through June 7, 2005, one of Kraft's process
wastewater lines ruptured at the Site. Kraft discharged approximately two hundred fifty (250)
gallons of its process wastewater, containing cooked wheat water and sugar water, onto the
ground at the Site. Kraft's process wastewater migrated to a ditch tributary to a storm sewer that
runs along Jefferson Avenue ("Jefferson storm sewer") and flowed through the Jefferson storm
sewer and into the West Branch of the DuPage River.
RESPONSE:
Respondent denies the allegations contained in paragraph 6 of the Complaint.
7.
On at least June 23, 2005, or a date better known to Kraft, Kraft's process
wastewater pipe, which ran across and through the storm sewer near the employee parking lot
("western storm sewer") at the Site, had a large horizontal corroded hole on the bottom of it.
RESPONSE:
Respondent denies the allegations contained in paragraph 7 of the Complaint.
8.
From at least June 23, 2005 through June 24, 2005, on dates better known to
Kraft, Kraft discharged its process wastewater containing a thick brown substance via its
process
wastewater pipe, which entered the western storm sewer at the Site through the large
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horizontal corroded hole on the bottom of the process wastewater pipe, and thereupon into the
Jefferson storm sewer and into the West Branch of the DuPage River.
RESPONSE:
Respondent denies the allegations contained in paragraph 8 of the Complaint.
9.
On June 24, 2005, the Illinois EPA inspected the Site. At that time, process
wastewater, which had been discharged from Kraft's Facility, containing a hot thick brown
substance was present in the West Branch of the DuPage River. The western storm sewer at the
Site had an observable flow of Kraft's process wastewater containing a thick brown substance
with a temperature of one hundred and fourteen (114) degrees Fahrenheit.
RESPONSE:
Respondent admits that personnel from the Illinois EPA were present at the Site on or
about June 24, 2005. Respondent denies the remaining allegations contained in paragraph 9 of
the Complaint.
10.
On June 28, 2005, the Illinois EPA again inspected the Site. At that time, Kraft
informed the Illinois EPA inspector that the process wastewater containing a hot thick brown
substance that it had discharged originated from its flavor kitchen clean-up, and contained
caramel, corn syrup, liquid sugar, and salt water. Kraft also informed the Illinois EPA inspector
that the discharge contained wheat water, wheat, and sugar water from two floor drains.
RESPONSE:
Respondent admits that personnel from the Illinois EPA were present at the Site on or
about June 28, 2005. Respondent denies the remaining allegations contained in paragraph 10 of
the Complaint.
11.
On October 13, 2005, Kraft's south lift station at the Site was leaking process
wastewater containing cooked wheat water from a hole in a ductile iron reducer pipe, located
approximately two feet south of the lift station, and discharging the process wastewater to
another storm sewer line at the eastern portion of the Site ("Jaguar storm sewer"). The Jaguar
storm sewer line discharges into the Jefferson sewer line and thereupon to the West Branch of
the DuPage River.
RESPONSE:
Respondent denies the allegations contained in paragraph 11 of the Complaint.
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12.
On October 14, 2005, the Illinois EPA inspected the Site. At the time, there was
another leak that was caused by a failed gasket on the process wastewater pipe, located just north
of the south lift station. A valve pit near the south lift station contained a brownish liquid, which
appeared to be rising. Additionally, in the Jaguar storm sewer at the Site, there was a brown
liquid that had a sewage type odor, which was being discharged to the Jefferson storm sewer and
to the West Branch of the DuPage River.
RESPONSE:
Respondent admits that personnel from the Illinois EPA were present at the Site on or
about October 14, 2005. Respondent denies the remaining allegations contained in paragraph 10
of the Complaint.
13.
Samples of the liquid in the valve pit near the south lift station and the Jaguar
storm sewer line contained deoxygenated wastes in the form of five-day biochemical oxygen
demand ("BOD5") and total suspended solids ("TSS").
RESPONSE:
Respondent denies the allegations contained in paragraph 13 of the Complaint.
14.
On October 18, 2005, the Illinois EPA inspected the Site. At that time, Kraft
informed the Illinois EPA inspector that it had discovered an additional leak north of the south
lift station in the process wastewater line. Also, there was still a flow of slightly colored liquid
that had a sewage type odor in the Jaguar storm sewer.
RESPONSE:
Respondent admits that personnel from the Illinois EPA were present at the Site on or
about October 18, 2005. Respondent denies the remaining allegations contained in paragraph 14
of the Complaint.
15.
Section 12(a) of the Act, 415 ILCS 5/12(a) (2004), provides as follows:
No person shall:
a. Cause or threaten or allow the discharge of any contaminant into the
environment in any State so as to cause or tend to cause water pollution in
Illinois, either alone or in combination with matter from other sources, or so
as to violate regulations or standards adopted by the Pollution Control Board
under
this Act.
RESPONSE:
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Respondent affirmatively states that the allegations contained in paragraph 15 of the
Complaint contain a statement of law, for which no answer is required.
To
the extent that an
answer is required, Respondent denies any allegations contained in paragraph 15 of the
Complaint that are inconsistent with the Illinois Environmental Protection Act, as cited.
16.
Section 3.315 of the Act, 415 ILCS 5/3.315 (2004), provides the following
definition:
"PERSON" is any individual, partnership, co-partnership, firm, company, limited
liability company, corporation, association, joint stock company, trust, estate,
political subdivision, state agency or any other legal entity, or their legal
representative, agent or assigns.
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 16 of the
Complaint contain a statement of law, for which no answer is required. 'bo the extent that an
answer is required, Respondent denies any allegations contained in paragraph 16 of the
Complaint that are inconsistent with the Illinois Environmental Protection Act, as cited.
17.
Respondent Kraft, a corporation, is a "person" as that term is defined in Section
3.315 of the Act, 415 ILCS 5/3.315 (2004).
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 17 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent admits the allegations contained in paragraph 17 of the
Complaint.
18.
Section 3.165 of the Act, 415 ILCS 5/3.165 (2004). provides the following
definition:
"CONTAMINANT" is any solid, liquid or gaseous matter, any odor or any form
of energy, from whatever source.
RESPONSE:
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Respondent affirmatively states that the allegations contained in paragraph 18 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies any allegations contained in paragraph 18 of the
Complaint that are inconsistent with the Illinois Environmental Protection Act, as cited.
19.
Process wastewater from Kraft's Facility, containing wheat, cooked wheat water,
sugar water, a hot thick brown substance containing caramel, corn syrup, liquid sugar, and salt
water, BODs and TSS are "contaminants" as that term is defined in Section 3.165 of the Act, 415
ILCS 5/3.165 (2004).
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 19 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies the allegations contained in paragraph 19 of the
Complaint.
20.
Section 3.550 of the Act, 415 ILCS 5/3.550 (2004), contains the following
definition:
WATERS" means all accumulations of water, surface and underground, natural
and artificial, public and private, or parts thereof, which are wholly or partially
within, flow through, or border upon this State."
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 20 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies any allegations contained in paragraph 20 of the
Complaint that are inconsistent with the Illinois Environmental Protection Act, as cited.
21.
The West Branch of the DuPage River is a "water" of the State of Illinois as that
term is defined in Section 3.550 of the Act, 415 ILCS 5/3.550 (2004).
RESPONSE:
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Respondent affirmatively states that the allegations contained in paragraph 21 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent admits the allegations contained in paragraph 21 of the
Complaint.
22.
Section 3.545 of the Act, 415 ILCS 5/3.545 (2004), provides the following
definition:
"Water pollution" is such alteration of the physical, thermal, chemical, biological
or radioactive properties of any waters of the State, or such discharge of any
contaminant into any waters of the State, as will or is likely to create a nuisance of
[sic] render such waters harmful or detrimental or injurious to public health,
safety or welfare, or to domestic, commercial, industrial, agricultural,
recreational, or other legitimate uses, or to livestock, wild animals, birds, fish, or
other aquatic life.
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 22 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies any allegations contained in paragraph 22 of the
Complaint that are inconsistent with the Illinois Environmental Protection Act, as cited.
23.
Kraft caused, threatened and/or allowed process wastewater containing wheat,
cooked wheat sugar, sugar water, a hot thick brown substance containing caramel, corn syrup,
liquid sugar, and salt water, BODs and TSS to be discharged into a ditch tributary to the Jefferson
storm sewer, into the western storm sewer, and into the Jaguar storm sewer and thereupon into
West Branch of the DuPage River. Such process wastewater containing wheat, cooked wheat
water, sugar water, a hot thick brown substance containing caramel, corn syrup, liquid sugar, and
salt water, BODs and TSS altered, or threatened to alter, the physical, thermal, chemical, or
radioactive properties of the West Branch of the DuPage River, or was likely to render, the West
Branch of the DuPage River harmful, detrimental or injurious to wild animals, birds, fish, and
other aquatic life; or created, or was likely to create, a nuisance.
RESPONSE:
Respondent denies the allegations contained in paragraph 23 of the Complaint.
24.
On June 6, 2005 through June 7, 2005, on dates better known to Kraft, Kraft
caused or allowed the discharge of process wastewater containing cooked wheat water and sugar
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water into a ditch tributary to Jefferson storm sewer and thereupon into West Branch of the
DuPage River.
RESPONSE:
Respondent denies the allegations contained in paragraph 24 of the Complaint.
25.
On June 23 through June 24, 2005, on dates better known to Kraft, Kraft caused
or allowed the discharge of process wastewater in the form of a hot thick brown substance
containing caramel, corn syrup, liquid sugar, and salt water, into the western storm sewer at the
Site which flowed to the Jefferson storm sewer and thereupon into West Branch of the DuPage
River.
RESPONSE:
Respondent denies
the allegations contained in paragraph 25 of the Complaint.
26.
On October 13, 2005, Kraft caused or allowed the discharge of process
wastewater containing cooked wheat water into the Jaguar storm sewer, and flowed or threatened
to flow to the West Branch of the DuPage River.
RESPONSE:
Respondent denies the allegations contained in paragraph 26 of the Complaint.
27.
On October 14, 2005, Kraft caused or allowed the discharge of process
wastewater containing at least 130D5 and TSS into the Jaguar storm sewer and thereupon to the
Jefferson storm sewer at the Site and flowed to the West Branch of the DuPage River.
RESPONSE:
Respondent denies the allegations contained in paragraph 27 of the Complaint.
28.
By its actions and omissions, Kraft caused, threatened, or allowed water pollution,
and thereby violated Section 12(a) of the Act, 415 ILCS 5/12(a) (2004).
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 28 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies the allegations contained in paragraph 28 of the
Complaint.
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WHEREFORE, Respondent, Kraft Foods Global, Inc., respectfully requests that the
Board deny the relief requested by the Complainant, that this matter be dismissed in its entirety,
and that the Board award other such relief as is just and appropriate.
COUNT H
VIOLATION OF THE GENERAL USE WATER QUALITY STANDARDS
1.-27. Complainant realleges and incorporates by reference herein paragraphs 1 through
27 of Count I as paragraphs 1 through 27 of this Count II.
RESPONSE:
Respondent restates its answers to paragraphs 1 through 27 of Count I as if fully set forth
herein in response to paragraphs I through 27 of this Count 11.
28.
Kraft's discharges at the Site are subject to the Act and the rules and regulations
promulgated by the Illinois Pollution Control Board ("Board") and the Illinois EPA. The
Board's regulations for water pollution are found in Title 35, Subtitle C, Chapter I of the Illinois
Administrative Code ("Board Water Pollution Regulations").
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 28 of the
Complaint contain a conclusion of law, for which no answer is required. To the extent an answer
is required, Respondent admits the allegations contained in paragraph 28 of the Complaint.
29.
Part 304, Subpart A, of the Board Water Pollution Regulations, 35 III. Adm. Code
Part 304, Subpart A, establishes general effluent standards for waters of the State.
RESPONSE:
Respondent admits that the Board has promulgated certain regulations related to water
quality at 35 III. Adm. Code Part 304, Subpart A but denies any allegations contained in
paragraph 29 of the Complaint that are inconsistent with the Illinois Administrative Code as
cited.
30.
Section 304.105 of the Board Water Pollution Regulations, 35 111. Adm. Code
304.105, provides,
in pertinent part, as
follows:
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In addition to the other requirements of this Part, no effluent shall,
alone or in combination with other sources, cause a violation of
any applicable water quality standard....
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 30 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies any allegations contained in paragraph 30 of the
Complaint that are inconsistent with the Illinois Administrative Code, as cited.
31.
Section 304.106 of the Board Water Pollution Regulations, 35 Ill. Adm. Code
304.106, provides, in pertinent part, as follows:
Offensive Discharges
In addition to the other requirements of this Part, no effluent shall contain
settleable solids, floating debris, visible oil, grease, scum, or sludge solids. Color,
odor and turbidity must be reduced to below obvious levels.
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 31 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies any allegations contained in paragraph 31 of the
Complaint that are inconsistent with the Illinois Administrative Code, as cited.
32.
Part 302, Subpart 13, of the Board Water Pollution Regulations, 35 Ill. Adm. Code
Part 302, Subpart B, establishes general use water quality standards for non-specified waters of
the State of Illinois.
RESPONSE:
Respondent admits that the Board has promulgated certain regulations related to water
quality at 35 III. Adm. Code Part 302, Subpart B and denies any allegations contained in
paragraph 32 of the Complaint that are inconsistent with the Illinois Administrative Code as
cited.
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33.
Section 302.203 of the Board Water Pollution Regulations, 35 III. Adm. Code
302.203, provides, in pertinent part, as follows:
Offensive Conditions
Waters of the State shall be free from sludge or bottom deposits, floating
debris, visible oil, odor, plant or algal growth, color or turbidity of other
than natural origin ....
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 33 of the
Complaint contain a statement of law, for which no answer is required. "fo the extent that an
answer is required, Respondent denies any allegations contained in paragraph 33 of the
Complaint that are inconsistent with the Illinois Administrative Code, as cited.
34.
Section 301.275 of the Board Water Pollution Regulations, 35 Ill. Adm. Code
301.275, defines "effluent," in pertinent part, as follows:
"Effluent" means any wastewater discharged directly or indirectly, to the waters
of the State or to any storm sewer...
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 34 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies any allegations contained in paragraph 34 of the
Complaint that are inconsistent with the Illinois Administrative Code, as cited.
35.
Section 301.425 of the Board Water Pollution Regulations, 35 111. Adm. Code
301.425, defines "wastewater" as follows:
"Wastewater" means sewage, industrial waste or other waste, or any
combination of these, whether treated or untreated, plus any admixed land
runoff.
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 35 of the
Complaint contain a statement of
law, for which no answer is required. To the extent that an
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answer is required, Respondent denies any allegations contained in paragraph 35 of the
Complaint that are inconsistent with the Illinois Administrative Code, as cited.
36.
Kraft's discharge at the Site from its Facility was "wastewater" as that term is
defined in Section 301.425 of the Board Water Pollution Regulations, 35 III. Adm. Code
301.425.
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 36 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies the allegations contained in paragraph 36 of the
Complaint.
37.
Kraft's discharge at the Site from its Facility into the western storm sewer, the
Jaguar storm sewer, the Jefferson storm sewer, and the West Branch of the DuPage River was
"effluent" as that term is defined in Section 301.275 of the Board Water Pollution Regulations,
35 Ill. Adm. Code 301.275.
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 37 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent admits the allegations contained in paragraph 37 of the
Complaint.
38.
On at least June 23 through June 24, 2005, on dates better known to Kraft, Kraft
caused or allowed the discharge of its process wastewater in the form of a hot thick brown
substance containing caramel, corn syrup, liquid sugar, and salt water, into the western storm
sewer and flowed to the Jefferson storm sewer, and thereupon into the West Branch of the
DuPage River, and caused the waters of the West Branch of the DuPage River, to contain sludge,
sludge solids, and obvious and visible color and turbidity that was not of natural origin.
RESPONSE:
Respondent denies the allegations contained in paragraph 38 of the Complaint.
39.
Kraft, by its actions alleged herein, caused or allowed offensive discharges and
offensive conditions in the waters of the West Branch of the DuPage River, in violation of
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Sections 302.203, and 304.106 of the Board Water Pollution Regulations, 35
ill.
Adm. Code
302.203, and 304.106.
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 39 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies the allegations contained in paragraph 39 of the
Complaint.
40.
By discharging an effluent that caused violations of water quality standards Kraft
violated Section 304.105 of the Board Water Pollution Regulations, 35 III. Adm. Code 304.105.
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 40 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies the allegations contained in paragraph 40 of the
Complaint.
41.
By causing or allowing the discharge of contaminants into the waters of the West
Branch of the DuPage River in violation of Board regulations, Kraft violated Section 12(a) of the
Act, 415 ILCS 5/12(a) (2004).
RESPONSE:
Respondent affirmatively states that
the allegations contained in paragraph 41 of the
Complaint contain a statement of law, for which no answer is required.
To the extent that an
answer is required, Respondent denies the allegations contained in paragraph 41 of the
Complaint.
WHEREFORE, Respondent, Kraft Foods Global, Inc., respectfully requests that the
Board deny the relief requested by the Complainant, that this matter be dismissed in its entirety,
and that the Board award other such relief as is just and appropriate.
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COUNT III
WATER POLLUTION HAZARD
1.-22. Complainant realleges and incorporates by reference herein paragraphs 1 through
14 and paragraphs 16 through 23 of Count 1 as paragraphs 1 through 22 of this Count Ill.
RESPONSE:
Respondent restates its answers to paragraphs I through 14 and paragraphs 16 through 23
of Count I as if fully set forth herein in response to paragraphs 1 through 22 of this Count Ill.
23.
Section 12(d) of the Act, 415 ILCS 5/12(d) (2004), provides as follows:
No person shall:
(d)
Deposit any contaminant upon the land in such place and manner so as to
create a water pollution hazard.
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 23 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies any allegations contained in paragraph 23 of the
Complaint that are inconsistent with the Illinois Environmental Protection Act, as cited.
24.
From at least June 6, 2005, through at least June
7,
2005, on dates better known to
Kraft, Kraft caused or allowed the discharge onto the ground at the Site, approximately two
hundred fifty (250) gallons of its process wastewater containing cooked wheat water and sugar
water.
RESPONSE:
Respondent denies the allegations contained in paragraph 24 of the Complaint.
25.
Kraft's process wastewater containing cooked wheat water and sugar water
migrated to a ditch tributary to the Jefferson storm sewer, flowed through the Jefferson storm
sewer and into the West Branch of the DuPage River.
RESPONSE:
Respondent denies the allegations contained in paragraph 25 of the Complaint.
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26.
By its actions as alleged herein, Kraft created a water pollution hazard, in
violation of Section 12(d) of the Act, 415 ILCS 5/12(d) (2004).
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 41 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies the allegations contained in paragraph 41 of the
Complaint.
WHEREFORE, Respondent, Kraft Foods Global, Inc., respectfully requests that the
Board deny the relief requested by the Complainant, that this matter be dismissed in its entirety,
and that the Board award other such relief as is just and appropriate.
COUNT IV
DISCHARGING TO WATERS OF THE STATE WITHOUT
AN NPDES PERMIT
1.-21. Complainant realleges and incorporates by reference herein paragraphs I through
14 and paragraphs 16 through 21 of Count I and paragraph 28 of Count II as paragraphs I
through 21 of this Count IV.
RESPONSE:
Respondent restates its answers to paragraphs 1 through 14 and paragraphs 16 through 21
of Count I and paragraph 28 of Count II as if fully set forth herein in response to paragraphs 1
through 21 of this Count IV.
22.
Section 12(0 of the Act, 415 ILCS 5/12(0 (2004), provides, in pertinent part, as
follows:
No person shall:
(0
Cause, threaten or allow the discharge of any contaminant into the waters
of the State, as defined herein, including but not limited to, waters to any sewage
works, or into any well or from any point source within the State, without an
NPDES permit for point source discharges issued by the Agency under Section
39(b) of this Act, or in violation of any term or condition imposed by such permit,
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or in violation of any NPDES permit filing requirements established under
Section 39(b), or in violation of any regulations adopted by the Board or of any
order adopted by the Board with respect to the NPDES program....
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 22 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies any allegations contained in paragraph 22 of the
Complaint that arc inconsistent with the Illinois Environmental Protection Act, as cited.
23.
Section 309.102(a) of the Board Water Pollution Regulations, 35 III. Adm. Code
309.102(a), provides as follows:
NPDES Permit Required
(
a
)?
Except as in compliance with the provisions of the Act, Board
regulations, and the CWA, and the provisions and conditions of the NPDES
permit issued to the discharger, the discharge of any contaminant or pollutant by
any person into the waters of the State from a point source or into a well shall be
unlawful.
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 23
of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies any allegations contained in paragraph 23 of the
Complaint that are inconsistent with the Illinois Environmental Protection Act, as cited.
24.
Section 301.240 of the Board Water Pollution Regulations, 35 111. Adm. Code
301.240, provides the following definition:
"CWA" means the Federal Water Pollution Control Act, as amended, (33 U.S.C.
1251 et seq., Public Law 92-500 enacted by Congress October 18, 1972 as
amended by the "Clean Water Act", Public Law 95-217, enacted December 12,
1977, as amended.)
RESPONSE:
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Respondent affirmatively states that the allegations contained in paragraph 24 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies any allegations contained in paragraph 24 of the
Complaint that are inconsistent with the Illinois Administrative Code, as cited.
25.
Section 1362(14) of the CWA, 33 U.S.C.A. § 1362(14) (2007), provides the
following definition:
(14)
The term "point source" means any discernible, confined and discrete
conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, container, rolling stock, concentrated animal feeding
operation, or vessel or other floating craft, from which pollutants are or may be
discharged. This term does not include agricultural stormwater discharges and
return flows from irrigated agriculture.
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 25 of the
Complaint contain a statement of law, for which no answer is required. 'To the extent that an
answer is required, Respondent denies any allegations contained in paragraph 25 of the
Complaint that are inconsistent with the Clean Water Act, as cited.
26.
The Jefferson storm sewer outfall at the Site that discharges to the West Branch of
the DuPage River is a discernible, confined and discrete conveyance, and therefore constitutes a
"point source," as that term is defined in Section 1362(14) of the CWA, 33 U.S.C.A. § 1362(14)
(2007).
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 26 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies the allegations contained in paragraph 26 of the
Complaint.
28.
On June 6, 2005 through June 7,
2005, on dates better known to Kraft, Kraft
caused or allowed the discharge of process wastewater, containing cooked wheat water and sugar
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CIII 11448991.1
water into a ditch tributary to the Jefferson storm sewer and thereupon into the West Branch of
the DuPage River.
RESPONSE:
Respondent denies the allegations contained in paragraph 28 of the Complaint.
29.
On June 23 through June 24, 2005, on dates better known to Kraft. Kraft caused
or allowed the discharge of process wastewater in the form of a hot thick brown substance
containing caramel, corn syrup, liquid sugar, and salt water into the western storm sewer at the
Site flowing to the Jefferson storm sewer and thereupon into the West Branch of the DuPage
River.
RESPONSE:
Respondent denies the allegations contained in paragraph 29 of the Complaint.
30.
On October 14, 2005, Kraft caused or allowed the discharge of process
wastewater containing at least BODs and TSS into the Jaguar storm sewer and thereupon to the
Jefferson storm sewer at the Site and flowed to the West Branch of the DuPage River.
RESPONSE:
Respondent denies the allegations contained in paragraph 30 of the Complaint.
31.
On June 6, 2005 through June 7, 2005, on June 23 through June 24, 2005, and
October 14, 2005 on dates better known to Kraft, Kraft caused or allowed the discharge of its
process wastewater containing wheat, cooked wheat water, sugar water, a hot thick brown
substance containing caramel, corn syrup, liquid sugar, and salt water, BODs and TSS,
contaminants, to the West Branch of the DuPage River, waters of the State, without an NPDES
permit.
RESPONSE:
Respondent denies the allegations contained in paragraph 31 of the Complaint.
32.
By discharging process wastewater containing wheat, cooked wheat water, sugar
water, a hot thick brown substance containing caramel, corn syrup, liquid sugar, and salt water,
BODs and TSS, contaminants, into West Branch of the DuPage River, waters of the State,
without an NPDES permit, Kraft violated Section 12(f) of the Act, 415 ILCS 5/12(0 (2004), and
Section 309.102(a) of the Board Water Pollution Regulations, 35 111. Adm. Code 309.102(a).
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 32 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
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CIII 11448991.1
answer is required, Respondent denies the allegations contained in paragraph 32 of the
Complaint.
33.
On October 13, 2005, Kraft caused or allowed the discharge of process
wastewater containing cooked wheat water, a contaminant, into the Jaguar storm sewer, and
discharged, or threatened to discharge, to the West Branch of the DuPage River, waters of the
State, without an NPDES permit.
RESPONSE:
Respondent denies the allegations contained in paragraph 33 of the Complaint.
34.
By discharging process wastewater containing cooked wheat water, a
contaminant, into the Jaguar storm sewer, and discharging or threatening to discharge to the
West Branch of the DuPage River, waters of the State, without an NPDES permit, Kraft violated
Section 12(f) of the Act, 415 ILCS 5/120) (2004).
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 34 of the
Complaint contain a statement of law, for which no answer is required.
To the extent that an
answer is required, Respondent denies the allegations contained in paragraph 34 of the
Complaint.
WHEREFORE, Respondent, Kraft Foods Global, Inc., respectfully requests that the
Board deny the relief requested by the Complainant, that this matter be dismissed in its entirety,
and that the Board award other such relief as is just and appropriate.
COUNT V
SYSTEMS RELIABILITY VIOLATIONS: FAILURE TO PREVENT MALFUNCTIONS
L
This Count is brought on behalf of the PEOPLE OF THE STATE OF ILLINOIS,
ex rel. Lisa Madigan, Attorney General of the State of Illinois, on her own motion, pursuant to
the terms and provisions of Section 42 of the Act, 415 ILCS 5/42 (2004).
RESPONSE:
Respondent admits the allegations contained in paragraph 1 of the Complaint.
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CHI 11448991.1
2.-28. Complainant realleges and incorporates by reference herein paragraphs 2 through
27 of Count I and paragraph 28 of Count 11 as paragraphs 2 through 28 of this Count V.
RESPONSE:
Respondent restates its answers to paragraphs 2 through 27 of Count I and paragraph 28
of Count H as if fully set forth herein in response to paragraphs 2 through 28 of this Count V.
29.
Section 306.102(a) of the Board Water Pollution Regulations, 35 Ill. Adm. Code
306.102(a), provides as follows:
Systems Reliability
( a
)?
Malfunctions: All treatment works and associated facilities shall be so
constructed and operated as to minimize violations of applicable standards during
such contingencies as flooding, adverse weather, power failure, equipment failure,
or maintenance, through such measures as multiple units, holding tanks, duplicate
power sources, or such other measures as may be appropriate.
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 29 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies any allegations contained in paragraph 29 of the
Complaint that are inconsistent with the Illinois Administrative Code, as cited.
30.
At all times relevant to this complaint, process wastewater lines tributary to the
treatment works at the Site were obsolete and deteriorated, in that they had become corroded and
were leaking, and by continuing to operate the obsolete and deteriorated process wastewater
lines, Kraft failed to minimize violations of applicable standards at the Site.
RESPONSE:
Respondent denies the allegations contained in paragraph 30 of the Complaint.
31.
By failing to take remedial action to repair its treatment works and associated
facilities in a timely manner to avoid causing violations of applicable standards, including the
violations as alleged in this complaint, Kraft violated Section 306.102(a) of the Board Water
Pollution Regulations, 35 111. Adm. Code 306.102(a), thereby violating Section 12(a) of the Act,
415 ILCS 12(a) (2004).
RESPONSE:
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C111 1144X991.1
Respondent affirmatively states that the allegations contained in paragraph 31 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies the allegations contained in paragraph 31 of the
Complaint.
WHEREFORE, Respondent, Kraft Foods Global, Inc respectfully requests that the
Board deny the relief requested by the Complainant, that this matter be dismissed in its entirety,
and that the Board award other such relief as is just and appropriate.
COUNT VI
SYSTEMS RELIABILITY VIOLATIONS;
FAILURE TO PREVENTAGE
[sic] SPILLAGE OF CONTAMINANTS
1.-29. Complainant realleges and incorporates by reference herein paragraphs I through
28 of Count I and paragraph 28 of Count II as paragraphs 1 through 29 of this Count VI.
RESPONSE:
Respondent restates its answers to paragraphs 1 through 28 of Count I and paragraph 28
of Count II as if fully set forth herein in response to paragraphs 1 through 29 of this Count VI.
30.
Section 306.102(b) of the Board Water Pollution Regulations, 35 III. Adm. Code
306.102(b), provides as follows:
Systems Reliability
b)
Spills: All reasonable measures, including where appropriate the
provision of catchment areas, relief areas, relief vessels, or entrapment dikes, shall
be taken to prevent any spillage of contaminants from causing water pollution.
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 30 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
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C111 H448991 I
answer is required, Respondent denies any allegations contained in paragraph 30 of the
Complaint that are inconsistent with the Illinois Administrative Code, as cited.
31.
On June 6, 2005 through June 7, 2005, on at least June 23 through June 24, 2005,
and on October 14, 2005, on dates better known to Kraft, Kraft failed to employ entrapment
dikes in the western storm sewer, the Jaguar storm sewer, or the Jefferson storm sewer or to take
other reasonable measures to prevent any spillage of contaminants from causing water pollution.
RESPONSE:
Respondent denies the allegations contained in paragraph 31 of the Complaint.
32.
By failing to employ entrapment dikes in the western storm sewer, the Jaguar
storm sewer, or the Jefferson storm sewer or to take other reasonable measures to prevent any
spillage of contaminants from causing water pollution, Kraft violated Section 306.102(b) of the
Board Water Pollution Regulations, 35 III. Adm. Code 306.102(b), thereby violating Section
12(a) of the Act, 415 ILCS 5/12(a) (2004).
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 32 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies the allegations contained in paragraph 32 of the
Complaint.
WHEREFORE, Respondent, Kraft Foods Global, Inc., respectfully requests that the
Board deny the relief requested by the Complainant, that this matter be dismissed in its entirety,
and that the Board award other such relief as is just and appropriate.
COUNT VII
VIOLATION OF EFFLUENT LIMITATIONS
1.
This Count is brought on behalf of the PEOPLE OF THE STATE OF ILLINOIS,
ex rel. Lisa Madigan, Attorney General of the State of Illinois, on her own motion, pursuant to
the terms and provisions of Section 42 of the Act, 415 ILCS 5/42
,
(2004).
RESPONSE:
Respondent admits the allegations contained in paragraph I of the Complaint.
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CII1 11448991.1
2.-26. Complainant realleges and incorporates by reference herein paragraphs 2 through
21 of Count I, and paragraph 28 and paragraphs 34 through 37 of Count II as paragraphs 2
through 26 of this Count VII.
RESPONSE:
Respondent restates its answers to paragraphs 2 through 21 of Count I, and paragraph 28
and paragraphs 34 through 37 of Count II as if fully set forth herein in response to paragraphs 2
through 26 of this Count VII.
27.
Section 304.120(a) of the Board Water Pollution Regulations, 35 111. Adm. Code
304.120(a), provides, in pertinent part, as follows:
Deoxygenating Wastes
Except as provided in 35 III. Adm. Code 306.Subpart C [sic], all effluents
containing deoxygenating wastes shall meet the following standards:
a)
No effluent shall exceed 30 mg/I, of five-day biochemical oxygen demand
(BODs) (STORET number 00310) or 30 mg/L of suspended solids (STORET
number 00530). ..
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 27 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies any allegations contained in paragraph 27
of
the
Complaint that are inconsistent with the Illinois Administrative Code, as cited.
28.
In June 2005 and October 2005, Kraft discharged effluent from its Facility into
the western storm sewer, the Jaguar storm sewer, the Jefferson storm sewer, and to the West
Branch of the DuPage River from the Jefferson storm sewer at the times and in the amounts set
forth below:
Dates
Location of Samples Taken
BODs
30 mg/I
TSS
30 mg/I
June 7, 2005
Jefferson storm sewer outfall
915
54
June 23, 2005
Jefferson storm sewer outfall
2280
--
June 23, 2005
Jefferson storm sewer outfall
258
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CIII 11448991.1
October 14, 2005
Jaguar storm sewer outfall
690
54
RESPONSE:
Respondent lacks sufficient information to admit or deny the allegations contained in
paragraph 28 of the Complaint.
29.
By discharging its effluent to the West Branch of the DuPage River from the
Jefferson storm sewer at levels of BODs and TSS in excess of 30 mg/L, Kraft violated Section
304.120(a) of the Board Water Pollution Regulations, 35 Ill. Adm. Code 304.120(a), thereby
violating Section 12(a) of the Act, 415 ILCS 5/12(a) (2004).
RESPONSE:
Respondent affirmatively states that the allegations contained in paragraph 29 of the
Complaint contain a statement of law, for which no answer is required. To the extent that an
answer is required, Respondent denies the allegations contained in paragraph 29 of the
Complaint.
WHEREFORE, Respondent, Kraft Foods Global, Inc., respectfully requests that the
Board deny the relief requested by the Complainant, that this matter be dismissed in its entirety,
and that the Board award other such relief as is just and appropriate.
Dated April 21, 2008
Respectfully submitted,
KRAFT FOODS GLOBAL, INC.
One of its Attorneys
By:
Andrew H. Perellis
Elizabeth Leifel Ash
Seyfarth Shaw LLP
131 S. Dearborn St., Suite 2400
Chicago, Illinois 60603
(3
1 2) 460-5000
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CHI 11448991 1
CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that she caused the foregoing ANSWER TO
COMPLAINT to be served upon the following, by placing a true and correct copy of the same in
the U.S. Mail, postage prepaid, on this 21
m day of April, 2008:
• Stephen J. Sylvester
Assistant Attorney General
Illinois Attorney General's Office
Environmental Bureau North
69 W. Washington Street, Suite 1800
Chicago, IL 60602
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C111 11448991.1
