ECEVED
CLERK’S
OFFICE
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
JUL
2
‘t
2009
ELMHURST
MEMORIAL
HEALTHCARE
)
STATE
OF
ILLINOIS
and
)
Pollution
Control
Board
ELMHURST
MEMORIAL
HOSPITAL,
)
Complainants,
)
vs.
)
No.
PCB
2009-066
)
(Citizen’s
Suit
)
Enforcement Action)
CHEVRON
U.S.A.,
INC.
)
)
Respondent.
NOTICE
OF FILING
To:
Carey
S.
Rosemarin
Andrew
J.
Marks
Law
Offices
of
Carey
S.
Rosemarin,
P.C.
500
Skokie
Boulevard,
Suite
510
Northbrook,
Illinois
60062
PLEASE
TAKE
NOTICE
that
on July
21,
2009, we
filed
with
the
clerk
of the
Illinois
Pollution
Control
Board
an
original
and
nine copies
of
the
Response
Of Chevron
U.S.A.
Inc.
To
Complainants’
Motion
To
File Reply
Instanter,
a copy
of
which
is attached
hereto
and
herewith
served
upon
you.
Dated:
July
21,
2009
By:
Joseph
A. Girardi
Robert
B.
Christie
Henderson
&
Lyman
Attorneys
for
Chevron
U.S.A.
Inc.
175 W.
Jackson
Blvd.,
Suite
240
Chicago,
Illinois
60604
(312)
986-6960
CHEVRON
U.S.A.
INC.
attorneys
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
RK’S
OFpjE
ELMHURST
MEMORIAL
HEALTHCARE
)
JUL
21
2U09
ELMHURST
MEMORIAL
and
HOSPITAL,
))
STATE
OPILJJNO
‘°liUtOfl
Controi
8ocj
Complainants,
)
No.
PCB
2009-066
)
(Citizen’s
Suit
vs.
)
Enforcement
Action)
)
CHEVRON
U.S.A.,
INC.
)
)
Respondent.
RESPONSE
OF
CHEVRON
U.S.A.
INC.
TO
COMPLAINANTS’
MOTION
TO
FILE
REPLY
INSTANTER
Respondent,
Chevron
U.S.A.
Inc.,
incorrectly
named
as
Chevron
U.S.A.,
Inc.
(“Respondent’),
by
its
attorneys
Henderson
&
Lyman,
pursuant
to
Section
101.500(d)
of
the
procedural
rules
of
the
Illinois
Pollution
Control
Board (“Board”),
responds
to
the
motion
of
Complainants,
Elmhurst
Memorial
Healthcare
and
Elmhurst
Memorial
Hospital
(“Complainants”),
to
file
a
reply
in
support
of
their
motion
to
strike
Respondent’s
affirmative
defenses,
as
follows:
Argument
With
respect
to
filing
a reply
in
support
of
a
motion,
the
procedural
rules
of
the
Board,
at
Section
101.500(e),
provide
that
the
“moving
party [Complainants
here]
will
not have
the
right
to
reply,
except
as
permitted
by
the
Board
or
the
hearing
officer
to
prevent
material
prejudice.”
Complainants
try
to
come
within
the
ambit
of
this
“material
prejudice”
requirement
by
accusing
Respondent
of
improperly
having
the
Board
believe,
in
Respondent’s
response,
that
Complainants’
claim was
discharged
in
1
the
Texaco
Inc.
bankruptcy.
Complainants
allege
this
somehow
prejudiced
them,
and
that
they
now
need
to
clarify
the
matter.
To
the
contrary,
however,
the
claim
has
been
discharged
by
the
Texaco
Inc.
bankruptcy
and
Respondent’s
response
is
not
the
first
time
that
Respondent
has
made
this
allegation.
Respondent’s
affirmative
defense
alleges
the
claim
was
discharged
by
the
bankruptcy.
Complainants
filed
a
motion
to
strike
the
defense
and
Respondent
filed
a
response.
For
Complainants
to
now argue
that
the
response
is
the
first
time
that
Respondent
alleged
the claim
was
discharged
is
preposterous.
As
will
be
demonstrated
below,
the
only
thing
that
is
improper
here
is Complainants’
accusations,
and
the
Board
should
deny
Complainants’
motion.
Notwithstanding
Complainants’
claim
of
material
prejudice,
the
actual
reason
that
Complainants
request
leave
to
file
a
reply
is
that
in
their
motion
to
strike
this
defense
they
chose
not
to
cite,
mention
or
argue
against
the
holding
of
the
Texaco
Inc.
bankruptcy
court
in
Texaco
Inc.
v.
Fred
Saunders,
et
al.
(In
re
Texaco
Inc.),
182
B.R.
937
(1995), which
Respondents
relied
upon
in
their
response.
As
demonstrated
in
Respondent’s
response, Saunders
is
on
point
with
the
underlying
facts of
this
case
(as
they
are
alleged
in Complainants’
complaint),
and
Saunders
was
decided
in
the
Texaco
Inc.
bankruptcy
proceeding, making
it
the
law
of
the
case
regarding
Texaco
Inc.
bankruptcy
discharge
issues.
The
Complaint
alleges
that
the
releases
took
place
while
Texaco
Inc.
owned
or
operated
the
USTs,
which
is
before
1978,
and
some
nine
years
before
the
Texaco
Inc.
bankruptcy;
thus, the
releases
alleged
are
clearly
“pre-petition
releases”.
Because
of
this, any
debt
or
claim
created
by
those
releases
(no
matter
who
may bring
that
claim)
2
was
discharged
by
the Texaco
Inc.
bankruptcy. As
the Saunders court
stated
in
discharging
the Saunders
plaintiffs’
claims,
“All of
the
physical
events
required
to
establish
causation
and
damage
for
such
claims
occurred
prior
to the
confirmation.”
Texaco
v.
Saunders,
182
B.R.
at 951.
And
that
is
the case
here.
Not
being
able
to
argue
against
the
holding
in
Saunders,
Complainants
now
try
to
distinguish
themselves
from
the Saunders
plaintiffs
by
arguing
that
since
Complainants did
not own
the
property
at
issue
at the
time
of
the Texaco
Inc.
bankruptcy,
they
did
not have
the
same
pre-bankruptcy
relationship with
Texaco
Inc.
that
the Saunders
plaintiffs
had.
Complainants,
consequently,
argue
that,
being
a later
purchaser,
they
could
not
have
had
their
claim
discharged
in
the
bankruptcy
because
they
could
not
have
known
they
had a
claim.
This reasoning
is fundamentally flawed.
It is
undisputed,
per Saunders,
that
the
owner
of
the
Complainants’ property
at
the time
of
the Texaco
Inc.
bankruptcy could
not
now bring
this
claim.
And
a
simple
sale of
that
property
to a
third
party
does
not,
somehow,
reincarnate
this
claim
and
wash
away
the
bankruptcy
discharge.
As
successors-in-interest
to
the
owner
at the
time of
the Texaco
Inc.
bankruptcy,
Complainants
inherit
and
are
bound
by
that
owner’s
pre-bankruptcy
relationship
with
Texaco
Inc.
See,
e.g.:
Humphrey
Property
Group,
LLC
v. The
Village
of
Frankfort,
2009
Ill.
App. Lexis
431
(June
18,
2009),
holding
that
a
later
purchaser
of
land
is
a
successor-in-interest
and is
bound
and estopped
by
the
acts
of
its predecessor
in-interest.
If that
were
not
the
case
a
bankruptcy
discharge
would
be
meaningless.
A
late
claimant
could
simply
sell
real
estate
or
a
business
entity
to
a
third party
who
could
then bring
claims
that
the
late
claimant
failed
to
bring
and
would
be
barred
from now
bringing.
For
this
reason,
the
determination
of whether
or not
a
claim
has
been
3
discharged
focuses
on
the
underlying
circumstances
that
occurred
to
give
rise
to
the
claim,
irrespective
of
whether
the
owner
at
the
time
of
a bankruptcy
brings
the
claim
or
a
subsequent
owner
brings
the
claim.
Because
Complainants
cannot
factually
or
legally
argue
against
this
conclusion
they
resort
to
calling
Texaco’s
argument
“highly
misleading
and,
indeed,
false”.
Complainants’
Motion,
at
p.
4.
Recognizing
this
flaw
in
their
reasoning,
Complainants
try
to
bring
themselves
within
the
purview
of
some
of
the
language,
but
not
the
holding,
in
In
re
Chateaugay
Corp., 944
F.2d
997
(2nd
Cir.
1991).
The
holding
in
Chateauga
militates
against
Complainants
as
the
U.S.
Court
of
Appeals
affirmed
the
decision
of
the
U.
S. District
Court which
discharged
claims
for
future
cost
recovery
brought
by
the
United
States
Environmental
Protection
Agency
for
pre-petition
releases
by
LTV
Corp.
And
pre
petition
releases
are
exactly
what
Complainants
seek
recovery
for
here.
In
discussing
when
a claim
is dischargeable
the
Chateaugay
court
indicated
that
a
pre-bankruptcy
relationship
would
be
necessary
to
discharge
certain
claims.
By
way
of
example
the
Chateaugay
court
stated
that
it would
be
absurd
to
find
that
the
claim
of
a
person
who
is
injured
in
a post-bankruptcy
accident,
as
a
result
of
a
pre-bankruptcy
design
flaw,
was
discharged.
The
reasoning
is
clear.
All
of
the
circumstances
that
were
necessary
to
give rise
to
the
injured
person’s
claim
had
not
occurred
before
the
bankruptcy
took
place.
Such
a
person
could
not
have
known
that
he
would
be
injured
in
the
future,
and,
therefore,
could
not
have
had
a
pre-petition
bankruptcy
claim.
This
Chateaugay
example
does
not
mean
that
any
claim
brought
by
a
claimant,
who did
have
a
pre-bankruptcy
relationship
with
the
bankrupt
party, cannot
be
discharged.
Nor
is
this
example
in
conflict
with
the
holding
in Saunders
(where
the
court
specifically
4
found
that all
of the
circumstances
that
had
to
occur
for
the claim
to
brought
had,
in
fact,
occurred
and
could
have
been
known
of before
the
claims
bar
date).
A claim
for
cost
recovery
could have
been
brought
by
the
prior
owner
of
Complainants’ property
in
the Texaco
Inc.
bankruptcy,
but
was
not.
Changing
the
name
of the
claimant
from
the
prior
owner
to Complainants
does
not
change
a thing.
Complainants’
predecessors-in-interest
at
the time
of the
Texaco
Inc.
bankruptcy
had
any
necessary
pre-bankruptcy
relationship
with
Texaco
Inc.,
and
Complainants,
as their
successors-in-interest,
are
bound
by
that
relationship.
Humphrey
Property
Group,
LLC,
supra.
By no
stretch
of
one’s
imagination
can the
Chateaugay
language
cited
by
Complainants
be argued
to
mean
that
a subsequent
owner
such
as Complainants
would
have
the
right
to bring
this
claim.
As
pointed
out in
other
of
Respondent’s
affirmative
defenses,
Complainants
should
have performed
the usual
and
customary
environmental
due
diligence
before
acquiring
the property.
Had
they done
so
they
would
have
not found
themselves
in
the
position
in
which
they
now
are.
Given
all of
these
facts,
Complainants’
labeling
Respondent’s
argument
on
discharge
of the
claim
as
being
“false”
is outrageous
and
should
be sanctioned
by
the
Board.
In
summary,
notwithstanding
all of
Complainants’
deleterious
accusations, the
plain
and simple
conclusion
is
that
their
claim
was
discharged
by the
Texaco
Inc.
bankruptcy
and
they
have
not
been materially
prejudiced
by
Respondent’s
response
brief.
Complainants
should
have
dealt
with
the Saunders
decision
in their
initial
motion,
and
they
should
not now
be allowed
to
try
to do
so.
For
all of
the
foregoing
reasons
Respondent
submits
that
Complainants’
motion
to
file
a reply
in
support
of
their motion
to
strike
the
affirmative
defenses
should
be
5
denied.
In
the
alternative,
should
the
Board
grant
Complainants’
motion
to
file
a
reply,
Respondent
requests
that
the
Board
grant it
14
days
to
file
a
sur-reply.
Respectfully
submitted,
Chevron
U.S.A.
Inc.
Dated: July
21,
2009
:________________________
e
of
itttorneys
Joseph A.
Girardi
Robert
B.
Christie
Henderson
&
Lyman
Attorneys
for
Chevron
U.S.A. Inc.
175
W.
Jackson
Boulevard
Suite 240
Chicago,
Illinois
60604
(312)
986-6960
6
PROOF
OF SERVICE
BY MAIL
I, Sarah A.
Whitford,
a non-attorney
on oath,
state that I served
a copy
of
this
Response
Of Chevron
U.S.A. Inc.
To
Complainants’
Motion To File Reply
Instanter
on
the
persons
to
whom
the Notice is
directed
at
the
address contained
in the
Notice
by
depositing
the same in
the U.S. mail
at
175 West
Jackson
Boulevard,
Chicago,
Illinois
60604
before
5:00
p.m. on July 21,
2009.
A.Whor
2
Subscribed
and sworn
to
before
me this
21st
day
of July, 2009.
STEPHANIE
A DEMAS
,kbtL
IC
S
NOTARYPUSUC-STATEOFILuNOS
Notary
Public
LS:O1J