~:
.~:
CLERK’S
OFFICE
JA~1062005
STATE OF
ILLINOIS
Pollution Control Board
OFFICE
OF THE ATTORNEY GENERAL
STATE
OF ILLINOIS
Lisa Madigan
ATTORNEY GENERAL
January
3,
2005
The Honorable Dorothy Gunn
Illinois
Pollution
Control
Board
James
R.
Thompson Center, Ste.
11-500
100 West Randolph
Chicago,
Illinois 60601
______
Re:
People
v.
Petco Petroleum
Corporation
PCB No.
05-66
Dear Clerk Gunn:
Enclosed for filing please
find
the original
and
ten
copies of a
NOTICE
OF
FILING
and
COMPLAlNANT’S~RESPONSE
TO MOTION TO DISMISS in regard-to the above-captioned.rnatt~r.
Please file
the
originals
and
return
file-stamped
copies
of
the
documents
to
our
office
in
the
enclosed
self-addressed,~
stamped
envelope.
Thank you for your cooperation and
consideration.
Very truly yours,
Thomas
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
•
ITY:
(217) 785-2771
•
Fax:
(217) 782-7046
100 West Randolph
Street.
Chicago,
Illinois
60601
•
(312) 814—3000
•
‘ITY:
(312) 814—3374
•
Fax: (312)
814—3806
1001
East Main, Carhondale,
Illinois
62901
•
p1$)
529—6—10))
•
l”l’Y:
(918) 529—6403
•
Fax:
(618)
529—6416
R~E~VED
BEFORE
THE
ILLINOIS POLLUTION
CONTROL BOARD
CLERK’S
OFFiCE
JAN
0
G
PEOPLE OF THE STATE OF
ILLINOIS,
)
j
STAlE
OF
ILLINOIS
Complainant,
)
POllutIOn
Contrci Board
vs.
)
PCB No. 05-66
PETCO
PETROLEUM CORPORATION,
)
an Indiana corporation,
Respondent.
NOTICE
OF
FILING
To:
Charles J.
Northrup,
Jr.
-
Sorling,
Northrup,
Hanna,
Cu lIen
& Cochran,
Ltd.
Suite 800,
Illinois
Building
607 East Adams
P.O.
Box5131
Springfield,
IL 62705
PLEASE TAKE NOTICE
that on this date
I
mailed for filing with the Clerk of the Pollution
Control Board
of the
State of
Illinois, COMPLAINANT’S RESPONSE TO MOTION TO DISMISS,
a copy of which is attached
hereto and
herewith served
upon you.
Respectfully
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: January 3,
2005
CERTIFICATE OF SERVICE
I
hereby certify that
I
did
on January 3, 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
and COMPLAINANT’S RESPONSE
TO MOTION TO
DISMISS:
To:
Charles J.
Northrup,
Jr.
Sorling, Northrup,
Hanna,
Cullen
&
Cochran, Ltd.
Suite 800,
Illinois
Building
607 East Adams
P.O.
Box 5131
Springfield,
IL 62705
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
James
R. Thompson Center
Suite 11-500
100 West Randolph
Chicago,
Illinois 60601
A copy was also
sent by
First Class~Mãil
with
postage thereoifUFIy~p~idto:
Carol Webb
Hearing
Officer
Illinois Pollution Control
Board
1021
North
Grand Avenue East
Springfield,
IL 62794
Thomas
Davis,
Chief
Assistant Attorney General
This filing is submitted
on recycled paper.
REC~VFD
CLERK’S OFFICE
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
~
~
~2005
PEOPLE
OF THE STATE OF ILLINOIS,
)
STATE
OF ILLINOIS
)
Pollution Control Board
Complainant,
v.
)
PCB No.
05-66
(Water-Enforcement)
PETCO
PETROLEUM
CORPORATION,
)
an
Indiana
corporation,
)
Respondent.
COMPLAINANT’S RESPONSE TO
MOTION
TO
DISMISS
Complainant,
PEOPLE
OF THE
STATE OF ILLINOIS,
by LISA MADIGAN, Attorney
General of the State of Illinois,
responds to the
Motion
to
Dismiss filed
by
the Respondent,
PETCO
PETROLEUM CORPORATION,
as
follows:
1.
Dismissal is sought by the Respondent on the grounds of defective
pleading.
Section
101.506 of the
Board’s Procedural
Rules provides for such challenges of the sufficiency
of
the complaint but does
not provide a standard of review.
2.
Section 2-615 of the Code of Civil Procedure
provides for motions for dismissal
based upon defects in
the pleadings.
The standard
is whether the pleading or portion thereof is
“substantially
insufficient in
law.”
The Respondent’s challenges
are to
both the form
and
substance of the Complaint.
Section
2-61 5(b)
requires that “the motion must specify wherein
the pleading
or division
thereof is insufficient.”
First, the Respondent contends that Counts
I,
III,
and V improperly
combine separate causes of action
by alleging
violations
of Section
12(a)
of the Act for causing water pollution and
violations
of Section
12(d)
of the Act for creating
water pollution hazards.
Secondly,
the Respondent also suggests that the Section
12(d)
is
•
essentially a “lesser included offense”
to the Section
12(a) violation.
Thirdly,
and with
a similar
1
lack of logic,
the Respondent contends that
Counts
II,
IV,
and
VI
are “duplicative of Counts
I,
III,
and V to the extent that they all
allege violations of Section
12(a) of the Act.”
Motion at
¶
10.
Lastly,
the Respondent contends that allegations pleaded
in the six counts
do not satisfy the
factual
specificity requirements
of Section
103.204 of the Board’s Procedural
Rules.
3.
Neither Section
2-603 nor Section 2-613
of the Code of Civil Procedure provides
that a pleading which improperly combines
separate causes of action
may,
ought or must be
dismissed.
The Code of Civil Procedure does,
in Section
1-106,
explicitly mandate liberal
construction:
“This Act shall
be
liberally construed,
to the
end
that controversies may be
speedily and finally determined
according
to
the substantive rights
of the parties.”
Liberal
construction of the Environmental Protection Act is mandated
by similar language in
Section
2(c).
The Respondent has cited
no precedential court or Board decisionrequiring~thedEsmissah
of a
pleading
which improperly
combines separate
causes of action within
a count.
The
Respondent has
not even
argued
that such a count may be considered “substantially
insufficient in
law.”
Moreover, there
is no
discussion as to what
are “separate causes of action.”
Depending
upon legal theories or claims for relief,
a single
set of facts may give rise to
multiple
causes
of action.
See,
e.g.,
Supreme Court
Rule 135.
However,theComplaintis
an
environmental
enforcement
action against a
single person alleging violations
and seeking
penalties
for spills from oil
production facilities in
May, August,
and
October 2004.
From a
factual standpoint,
it
is reasonable to
consider that multiple
sets of facts
could support multiple
causes
of action, especially if more than one
person were alleged to be
liable.
This is not the
situation
here.
The six counts clearly
and concisely set out claims for relief which could
have
reasonably been combined
rather than further separated.
In other words,
might there be only
three separate causes of action for the three
incidents
at
issue?
The Respondent’s
complaints
about the Complaint
must be considered
in the context of the facts set forth
in
the pleading.
2
4.
The primary question
presented by
a motion
to dismiss under Section
2-615 is
whether sufficient facts are contained
in the pleadings which,
if proved,
would entitle the Plaintiff
to
relief.
See,
e.g.,
Urbaitis v.
Commonwealth Edison,
143 lll.2d 458, 475
(1991).
To
survive
a
motion
to dismiss,
a complaint must
present a legally recognizable claim as
its basis for
recovery,
and it must plead
sufficient facts which,
if proved, would
demonstrate a right to
relief.
See,
e.g.,
People
ex
rel.
Fahner v.
Carriage
Way West,
Inc.,
88
lll.2d 300,
308
(1981).
It
is well
settled that,
in
ruling
on
a motion to
dismiss,
a court must accept as true all well pleaded facts
alleged in the complaint, as well as
all reasonable
inferences which can
be drawn from those
facts.
A cause of action should
not
be dismissed
unless it clearly appears that
no set of facts
can
be alleged
and
proven which would
entitle the plaintiff to
relief.
See, e.g.,
Northrup
Corp.
v.
u~~WaTk~
l~.,175
IlLA~p.3d203,
212
(1st Dist.
1988).
5.
The provisions
of the
Code of Civil
Procedure cited
by the Respondent reiterate
the mandatpry requirement of liberal construction (Section 2-603(c):
“Pleadings shall
be
liberally construed
with a view to doing
substantial justice between the parties”)
and even allow
that alternative and
inconsistent
statements of fact
may be
pleaded
in the same count (Section
-•
~2~.613(b))~~
srrnply that the inclusion of more than
one
statutory
violation within
a single count is improper.
This simplistic challenge by the Respondent is itself
“substantially
insufficient in
law.”
6.
The facts that the Board must,
in ruling
on this motion
to dismiss,
accept as true
are well pleaded
in the complaint.
These factual allegations are “plain and
concise” as
required
by Section
2-603(a) of the Code of Civil
Procedure and satisfy the substantive requirements
of
Section
103.204(c)
of the Board’s Procedural
Rules; the Code of Civil
Procedure
at Section
2-
612(b)
also provides:
“No
pleading
is
bad
in substance which contains such
information as
reasonably informs the opposite
party of the nature of the claim or defense which he or she
is
3
called upon
to
meet.”
Three separate
events occurred
and three
separate sets
of facts are
alleged:
“On
May 24, 2004,
Petco reported the release of approximately 50 barrels of salt
water from a corrosion
hole
in a four-inch steel
disposal pipeline at the
R.T.
Hopper lease near
St.
Elmo in
Fayette
County,
Illinois.”
Count
I
at
¶J
14.
“On August 21, 2004,
Petco reported the
release of approximately 200
barrels of salt water from
a
large corrosion
hole
in a steel
pipeline
at the Hopper Cummins #3 production
well near
St.
Elmo
in
Fayette County,
Illinois.”
Count
III
at
¶J
14.
“On
October 4,
2004,
Petco reported the release of approximately 300
barrels of salt
water from a pipeline from the Edith Durbin
Sump to the
Benny
Shaw Water Flood
Plant near
St. Elmo in
Fayette
County,
Illinois.”
Count V at
¶
14.
To the extent the facts are
known to the
Complainant, these allegations apprise the Respondent of the dates, locations, events, and
nature
of the threéreleases of salt water which is “a
produced fluid generated
by Petco’s
oil
production
activities and
contains a large
concentration
of chloridesand varying
amounts of
petroleum constituents, which are
‘contaminants~as that term is defined
in the Act.
.
.
.“
Counts
I,
III,
and V atlI
15.
The extent
and strength
of the discharges,
and
their consequences, are set
forth in
adequate detail.
Count
I
at ¶s
16 and
18,
Count
III
at ¶s
16,
18,
and
19,
and
Count Vat
¶s
16,
18,
and
19.
The Complaint also describes the proximity of the land uponwhich
contaminants were deposited
in
relation to
the identified receiving
streams.
The onl~’
facts
not
specified
in the pleadings
relate to
duration.
On each of the three
dates referenced above,
Petco “reported” the particular release, but it is unknown
(at
least to the Complainant) when
the
spillages of salt water actually commenced.
However, these matters are hardly “defects”
in the
pleadings
much
less
rendering the allegations “substantially
insufficient
in
law.”
In considering
this
motion
to
dismiss, the Board
shall also construe all reasonable inferences
in favor of the
Complainant.
For instance,
the first two incidents were caused
by corrosion
holes in the
pipelines; the source of the third
release was also a pipeline.
In
the context of the distances
4
and quantities at issue, the Board
may infer that the duration of the releases was significant;
in
other words,
that the leaks persisted for some time before discovery.
Evidentiary facts
supporting the allegations will
be adduced
at trial to address
relevant issues such
as who
discovered the releases, the lack of preventative maintenance practices
in effect, the
lack of
diligence in replacing steel
lines with fiberglass,
and
the infrequency of routine inspections.
7.
The Respondent’s objections as
to factual
specificity are simply unreasonable.
Petco contends that it is “entitled,
by the express
language of Rule
103.204, to know
at this
early stage the full
allegations against it,
including the
extent,
duration and strength
of the
alleged releases, which Petco asserts would
have been
minor.”
Motion
at
¶
11.
However,
there is a reasonable distinction between
pleading and
proof.
As
to the
issue of “strength,”
Complainant has
alleged that the salfwátërprbdfti ~ëdby Petco’s operations “contains a large
concentration
of chlorides and
varying
amounts
of
petroleum constituents.”
This is sufficient to
inform a violator in the context of an
enforcement allegation.
More information
may be
expected
at trial
regarding the nature
of salt water from oil production
activities
and its
pollutional impacts upon the already impaired streams in the vicinity of
St.
Elmo in
Fayette
~
~ëFà~~e that~tnth~
previous circuitcourt cases
against the
company for approximately 200 previous
spills,
testimony was
provided that a sample of the salt
water contained 80,000 mg/L chlorides.
8.
The Respondent also argues that the Complaint contains no facts as
to the
“consequences” of the spills.
In
response, the Complainant suggests
that the consequences of
each of the three
incidents
are more than
adequately pleaded.
Each
resulted
in a water
pollution hazard, a subsequent
pollutional discharge
into waters,
and
violations of the water
quality standards.
For instance,
the estimated
50
barrels of salt water in
May 2004 were
deposited
in
such a
place and
manner that the salt water flowed across the
land for
5
approximately 50 yards before entering the creek, which was
impacted for a distance of a
quarter-mile.
These impacts
included the discoloration of the surface water, unnatural
bottom
deposits,
and documented
chloride levels within the stream of 10,300
and
13,900 mg/L.
As
alleged in
the Complaint,
“Petco’s discharge of salt water to the small stream altered its
physical
and
chemical properties so as to likely create a nuisance or 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.”
Count
I at
¶
19.
This pleading
is sufficient to inform
a
violator of the specific allegations
against which
it may defend.
Contrary to
Petco’s assertions,
it
is
not necessary at this stage to provide “the
Board and the public” with
anything further; that
will
occur at a
hearing on
the Co~iIäint.~
-
9.
The Respondent’s objection
that Counts
II,
IV,
and VI
are “duplicative” of Counts
I,
III,
and V,
fails to abide with the liberal
construction of the Act as
mandated
by Section
2(c).
L
Sectioh
12(a)
may be violated
by a discharge of contaminants that
1)
causes water pollution or
2) violates a
Board regulation
or standard.
In
other words,
the State
has
pleaded two separate
~~rtddistih~tvibIätibn~
towit:
1) water pollution that 2)
also resulted
in offensive
conditions
and/or chloride levels
in excess
of the 500
mg/L water quality standard.
10.
The Respondent’s objection
that the Section
12(d)
is essentially a “lesser
included offense” to
the Section
12(a) violation
also does
not warrant extensive discussion
even
though,
in contrast to the other challenges discussed
above, the
Respondent actually cites case
law.
Tn-County Landfill Co.
v.
Illinois Pollution
Control Board,
41
llI.App.3d
249 (2’~
Dist.
1976),
however, does not support the argument that
proof of a water
pollution violation essentially
supercedes or precludes the finding of a water pollution hazard violation.
The appellate court
upheld
the Board’s findings of violation
of both
Sections
12(a) and
12(d) of the Act:
“The
Board
6
found a hazard to
exist because there was no assurance that groundwater
pollution would not
occur.
.
.
.“
41
Ill.App.3d
at 257.
The appellate court also
upheld
findings that the surface
waters had
been
polluted.
There was simply no discussion
in that appellate decision to
suggest
that a Section
12(a) violation
precludes
a Section
12(d) violation.
11.
As to the argument that a
Section
12(d) violation
is a “lesser included offense” to
a
Section
12(a) violation, the
Respondent has
cited
People
v.
King,
66
lll.2d 551
(1977),
and
another criminal case applying the “King
Doctrine” regarding verdicts
and sentencing
on lesser
included offenses.
There
is,
of course, no legal
problem with
charging or pleading such
offenses.
Petco cites a third
case,
Kintner
v.
Board ofFire and Police Commissioners,
194
Ill.App.3d
126
(1st Dist.
1990),
as authority for the applicability of the “King
Doctrine” to civil
administrative proceedi~
1
~b~öJ~iZ71ng
is nofth&ëasè mêritibnëd
in the
Kintnen
decision.
Kintner
does cite
a totally different
case,
King v.
City of Chicago,
60
III.App.3d 504
(1st
Dist.
1978).
Jerry King
was convicted of rape
and other criminal offenses
in
People v.King;
Romeo
King was a
police officer subject
to a disciplinary proceeding
in the
Kintnen
case.
Therefore,
once again,1 the Respondent’s “lesser
included offense” argument may be rejected.
12:
In
süñirnáry,
there áié
no
~
reason to
revise the Complaint.
The Respondent must answer the allegations of the Complaint
by admissions and
denials as appropriate but without
equivocation and
evasion.
In
other
words,
as
mandated
by Section 2-610 of the Code of Civil
Procedure, Petco’s
responsive
pleadings
must be specific in
order
to
provide “an explicit admission
or denial of each
allegation.”
1Fetco had
made this identical
argument in the circuit court, citing
Kintner
v. Board of Fire and
Police Commissioners
as authority for the applicability of the “King Doctrine”
to
civil administrative
proceedings.
The State responded as
it has
here, but
it appears that
Petco’s legal research is still
deficient.
7
WHEREFORE,
the People of the State of Illinois
respecifully request that the
Board
deny the
Motion
to
Dismiss.
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
Assistant Atforneys General
500
South Second
Street
Springfield,
Illinois 62706
217/782-9031
Dated:
January 3,
2005
8
