RECEIVE~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFPr~
JUL
252003
PEOPLE OF THE STATE OF
ILLiNOIS,
)
)
STATE OF ILLINOIS
)
Pollution Control Board
)
No. PCB 02-03
v.
)
)
TEXACO REFINING & MARKETING,
)
INC.,
Respondent.
)
NOTICE OF FILING
To:
Barbara Magel
Bradley P. Halloran, Esq.
Karaganis, White & Magel Ltd.
Hearing Officer
414 N. Orleans Street
Illinois Pollution Control Board
Suite 810
James R.
Thompson Center, Suite 11-500
Chicago, Illinois 60601
100 W. Randolph Street
Chicago, Illinois 60601
John A. Urban, Civil Chief
Will County State’s Attorney’s Office
Will County Courthouse
14 W.
Jefferson
Joliet, Illinois
60432
PLEASE TAKE NOTICE that I have
on July 25, 2003 filed with the Office ofthe Clerk of the
Pollution
Control Board the attached MOTION TO STRIKE AFFIRMATIVE DEFENSES,
a
copy ofwhich
is hereby served on you.
PEOPLE OF THE
STATE OF
ILLINOIS
LISAMADIGAN
Attorney General
State of
ois
Christop
er
.
e
Assistant Atto
General
Environmental Bureau
188 W. Randolph Street,
20th
Floor
Chicago, IL
60601
312/814-3532
Complainant,
)
)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
PEOPLE OF THE STATE OF ILLINOIS,
)
CLERK’S.OFFICE
)
JUL
252003
)
Complainant,
)
STATE
OF ILLINOIS
)
PCB No. 02-3
Po’lution
Control Board
v.
)
(RCRA
-
Enforcement)
)
TEXACO REFINING & MARKETING,
)
INC., a Delaware Corporation,
)
)
Respondent.
)
MOTION TO
STRIKE
AFFIRMATIVE DEFENSES
NOW COMES the Complainant, PEOPLE OF THE STATE OF ILLINOIS, through
LISA MADIGAN, Attorney General of the State ofIllinois,
and for its Motion to Strike
Affirmative Defenses pursuant to 35
Ill. Adm. Code 101.500 and 101 .506 states and alleges
as
follows:
L
INTRODUCTION
On July
12, 2001, the Complainant filed its Complaint in this matter.
Plaintiff’s
Complaint alleges that the Defendant violated provisions ofthe Illinois Environmental Protection
Act (“Act”), 415 ILCS
5/1
et seq., and the rules ofthe Illinois Pollution Control Board (“Board”)
by causing, threatening or allowing waterpollution by discharging contaminants into waters of
the State (Count I) and that the Respondent caused or allowed the open dumping of waste (Count
II).
On July 9, 2003 the Respondent filed its Answer on Behalf ofChevron Environmental
Services Co.
(“Answer”).
The Answer contains thirteen purported affirmative defenses.
A copy
of the affirmative defenses is attached and incorporated as Exhibit
1.
jj~
LEGAL STANDARDS
The Board rule regarding affirmative
defenses provides, in pertinent part, that:
Any facts constituting an
affirmative defense.must be plainly set forth before
hearing in the answer or in
a supplemental answer, unless the affirmative defense
could not have been known before the hearing.
35111.
Adm. Code
103.204(d).
In addition,
Section 2-613(d) ofthe Illinois Code ofCivil
Procedure, 735 ILCS
5/2-613(d)
(2002), is instructive, providing that “the
facts constituting any
affirmative defense.
.
.
must be plainly set forth
in the answer or reply.”
An affirmative
defense essentially admits the allegations in the complaint, and then
asserts a new matter which defeats a plaintiff’s right to
recover.
Vroegh v.
J & M. Forklift,
165
I11.2d 523,
651
N.E.2d 121,
126 (1995); People v.
Community Landfill Co., PCB 97-193 (August
6,
1998).
An affirmative defense must do more than offer evidence to refute properly pleaded
facts in a complaint.
Pryweller v.
Cohen, 282 Ill.App.3d 89, 668 N.E.2d 1144,
1149
(1St Dist.
1996), appeal denied,
169 Ili.2d
588
(1996); Heller Equity Capital Corp.
v. Clem Environmental
Corp., 272 Ill. App. 3d 173,
178, 596 N.E.2d 1275,
1280
(1St Dist.
1993);
People v. Wood River
Refining Comp~y,PCB 99-120 at 6 (August 8,
2002);
Farmer’s State Bank v. Phillips
Petroleum Co., PCB 97-100 (January 23,
1997) (affirmative defense does not attack truth of
claim, but the right to bring a claim).
A simple refutation ofa1legation~in the complaint fails to
establish
an affirmative defense.
Id.
Facts establishing an affirmative defense must be pled
specifically,
in the same manner as facts. in
a complaint.
International Ins. Co.
v. Sargent &
Lundy, 242 Ill.App.3d 614, 609 N.E.2d 842,
853
(1St Dist.
1993).
2
IlL
RESPONDENT’S AFFIRMATIVE DEFENSES
ARE
FACTUALLY
INSUFFICIENT
Illinois
is a fact pleading,
not a notice pleading, jurisdiction.
Teter v.
Clemens,
112 Ill.2d
252, 492 N.E.2d 1340 (1986).
It is not sufficient to merely
state conclusions oflaw and
conclusions offact.
Knox College v.
Celotex,
88 Ill.2d 407, 430 N.E.2d 976 (1981).
The Board
has specifically
adopted fact pleading requirementsfor affirmative defenses in 35
Ill. Adm.
Code
101.204(d).
A party is therefore required to allege enough facts to establish the affirmative
defense.
Each ofthe Respondent’s affirmative defenses
is pled as a notice pleading, with simple
legal conclusions and no,
or very few, accompanying facts.
As
a result, all of the affirmative
defenses
are factually insufficient.
The Respondent’s
Second, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth and
Thirteenth Affirmative Defenses assert no facts whatsoever.
They merely state generalized legal
conclusions.
These affirmative defenses are factually insufficient on their face and should be
stricken.
The remaining affirmative defenses attempt to allege some facts, but fall entirely short of
establishing affirmative defenses.
A properly pled affirmative defense would establish the
defense if all ofthe facts are ultimately proven.
Ifthe facts as pled and taken as true would not
establish the defense, the affirmative defense has not been sufficiently pled.
The affirmative
defenses filedby the Respondent fall short ofthis requirement, and should be stricken.
3
RESPONDENT’S AFFIRMATIVE DEFENSES
ARE
LEGALLY INSUFFICIENT
A.
Respondent’s First Affirmative Defense is Insufficient
The First Affirmative Defense claims that the Complaint makes a request for injunctive
relief and that the request forrelief is moot.
The Complainant agrees with the Respondent to the
extent that the Respondent did ultimately receive, after the
initial filing ofthis matter, a RCRA
Part B post closure permit that, as modified,
contains groundwatermonitorifig, reporting and
corrective action components.
However, the mootness claim does not constitute an affirmative defense to the violations
cited in the Complaint.
An affirmative defense must raise a defense to liability, not a defense
solely to some portion ofrequested relief, which is determined after liability is established.
Since
it seeks to defend againstrelief sought and not liability, this defense is
really an attempt to
raise a
mitigation
factor, which the Board has previously determined is not an affirmative defense.
People v.
Geon Co.. Inc., PCB No. 97-62 (October 2,
1997).
Therefore, the First Affirmative
Defense
is not an affirmative
defense.
Moreover,
as part ofits ultimate relief, the Complainant may seek from the Board an
order that the Respondent cease and desist from violations pursuant to
Section
3 3(b) ofthe Act,
415 ILCS 5/33(b)(2002).
An appellate court has held that the argument that an illegal activity
has stopped is not a defense to a request for injunctive reliefwhen a party is seekingastatutorily
authorized injunction.
Village of Riverdale v. Allied Waste Transportation, Inc., 334 I1l.App.3d
224, 231, 777 N.E.2d 684, 690
(1St Dist. 2002).
Therefore, under the same analysis, mootness
would be insufficient as a defense to a request for a cease and desist order.
For these reasons, the First Affirmative Defense is not
a proper affirmative defense and
4
should be stricken.
B.
Second Affirmative Defense Is Improper
The Second Affirmative Defense denies that Complainant is
entitled to an award ofcosts.
It
is well settled that a mere denial of well pleaded facts does not constitute an affirmative
defense.
See
Pryweller, Heller Equity Capital Corp., People v. Wood River Refining Co.,
Farmer’s State Bank,
supra.
An affirmative defense must raise a new
matter
that, if true,
somehow defeats a complainant’s claim.
It is not simply the restatement ofa denial or other
response made in the body ofthe answer.
The Respondent’s Second Affirmative Defense merely denies the availability ofcosts
under 415
ILCS
5/42(f)(2002).
Since that Section of the Act clearly provides for the availability
of costs under certain conditions, the affirmative defense is a simple denial and is legally
insufficient to state an affirmative defense.
C.
Subsequent Compliance Attempts Do Not Constitute Affirmative Defenses
The Respondent’s
Third
and Fifth Affirmative Defenses allege that the Respondent took
certainvoluntary actions to
address violations at the Site and that these actions render any penalty
inappropriate.
An affirmative defense must raise a defense to liability to be proper.
These
defenses do not meet that standard.
The Respondent’s position is squarely contradicted by the
Act.
Section
33
ofthe Act plainly states that “it
shall not be a
defense to findings of violations
ofthe provisions ofthe Act or Board regulations or a bar to the assessment ofcivil penalties that
the person has come into compliance subsequent to the violation” except where an applicable
statute oflimitations bars the action.
415 ILCS
5/33(a)(2002).
In this instance, the Respondent does not even go so far as to
allege that it came into
5
compliance.
It merely argues that it attempted to address some violations.
Ifcomplete
compliance cannot serve as a bar to
civil penalties, mere attempts to comply certainly cannot.
Therefore, such allegations are not defenses to
liability, are not proper affirmative defenses,
and
should be
stricken.
These defenses may be more properly characterized as raising mitigation factors.
Taken
at their most favorable to
the Respondent, these allegations are assertions that the Respondent
exercised due diligence in addressing violations.
Due diligence in attempting to comply with the
Environmental Protection Act and Board regulations is one of the factors to be examined by the
Board when considering an appropriate penalty amount after a finding ofliability.
415 ILCS
5/42(h)(2).
The Board has, however, found that penalty mitigation factors are not proper
affirmative defenses and are appropriately stricken when raised as an affirmative defense.
People v.
OC Finishers, Inc.,
PCB 01-7 at
5
(June
19, 2003);
People v.
Geon Co., Inc., PCB No.
97-62 (October 2,
1997).
The conclusion is inescapable that since there must be a finding of
liability prior to the consideration ofa penalty and any appropriate mitigating factors, a penalty
mitigation factor is not an appropriate affirmative defense against liability itself.
However one
characterizes the Third and Fifth Affirmative Defenses, they do not constitute proper affirmative
defenses and should be stricken.
D.
Fourth Affirmative Defense is Vague and Insufficient
The Fourth Affirmative Defense states that the coke fines
at the site were the product of
an independent contractor held for sale and did not constitute waste and that their presence did
not constitute open dumping
on the part ofthe Respondent.
It is unclear whether the Fourth
Affirmative Defense is attempting to raise some
argument as
to causation (i.e., the independent
6
contractor did it), simply denying that the materials deposited were wastes (despite the fact that
CESC admits that the materials were left on the site at least from 1981
until
1999 in its response
to paragraphs
9 and
10 ofCount II), or raise some
other defense or combination ofdefenses.
This affirmative defense is overly vague.
Furthermore, these allegations do not appear to
raise a new matter that,
if true, would
defeat the claims in the Complaint.
The Complaint alleges that the materials were wastes open
dumped on the
Site.
The Respondent denies this in its response to paragraph 21 ofCount II.
Raising this denial again as an affirmative defense,
assuming that this is what the Fourth
Affirmative Defense is attempting to do,
is not proper.
As cited above, an affirmative defense
must do more than simply deny well-pleaded facts.
The Fourth Affirmative Defense should be
stricken.
E.
Sixth Affirmative Defense Does Not Adequately State Estoppel
It is extremely well established that, when raised against the State,
estoppel requires
some
positive act by state officials that induced action by an adverse party in circumstances where it
would be
inequitable to hold that party responsible for the action.
Pavlakos
v.
Department of
Labor,
111
Ill.2d 257, 489 N.E.2d 1325 (1985).
Mere inaction by the
State does not rise to
estoppel against a governmental entity.
Id.
Estoppel
is only applied against the State in the most
extraordinary circumstances.
Monat v.
County ofCook,
322 Ill. App. 3d 499, 750 N.E. 2d 260
(15t Dist.
2001).
Ifone takes all of the Respondent’s factual assertions as true, that the
State knew of
groundwater and coke conditions at the site for years without asserting that any
violation existed,
it still would not give rise to
estoppel against the State.
At best, those
allegations would show
7
inaction, which the Illinois Supreme Court has clearly stated in the Pavlakos case, cited above,
is
insufficient to give rise to
estoppel against the State.
The Board has found that when an
affirmative defense fails to
establish estoppel against the state by alleging mere inaction, it is
properly stricken.
People v. OC Finishers, Inc.,
PCB 01-7 at 4 (June
19, 2003).
Because the
estoppel defense as alleged could not give rise to a defense even if the facts as stated were true,
this affirmative defense is insufficient and should be stricken.
F.
Seventh Affirmative Defense is
Vague
The. Seventh Affirmative Defense states that “the detection ofconstituents in groundwater
at a facility complying with interim status and regulatory groundwater requirements does not
constitute a violation ofthe Act.”
The Complainant must admit that it has no idea what the
Respondent means by this affirmative
defense.
To what specific interim status and regulatory
groundwaterrequirements is the Respondent referring?
How would its compliance with those
requirements excuse it from liability for a water pollution violation under Section
12(a) ofthe
Act?
The Respondent does not state that it was in specific compliance with the requirements or
identify those requirements, but couches the statement in general,
almost hypothetical terms.
Such a vague and nOnspecific allegation cannot stand and must be stricken.
G.
Eighth Affirmative Defense is Vague, Contradictory and Insufficient
The
Eighth Affirmative Defense contains an unsupported legal conclusion that the
standards of35
Ill. Adm.
Code 620
“are not
applicable to
a site complying with interim status
ground water regulatory requirements, and later a permitted groundwater management zone” and
thus
do not apply to
the contaminants cited in the Complaint.
The first part ofthis allegation is
incorrect.
There is no portion ofthe Act or regulations which excuses compliance with the
8
standards of Part 620 if one
complies with the interim status standards ofPart 725.
This
affirmative defense is nothing more than an incorrect, unsupported
legal conclusion and should
be stricken.
The second portion of the Eighth Affirmative Defense claims that the standards of Part
620
do not apply to
a site complying with a ground water management zone (“GMZ”).
This is a
strange assertion, since a GMZ is a standard under Part 620, specifically 35 Ill. Adm.
Code
620.250.
The Respondent alleges that it has a GMZ but then states it is not subject to Part
620.
Authority for establishment ofGMZs exists at two places in the Board regulations,
in 35
Ill.
Adm. Code 620.250
and 35
Ill.
Adm. Code 740.530.
Part 740 allows the establishment ofGMZs
for sites in the Site Remediation Program (“SRP”).
Since the Respondent’s
site clearly is not in
the SRP, and would not be eligible for entry into the SRP per 415 ILCS
5/58.1(a)(2),
it is not
covered by Part 740.
Therefore, the Respondent’s GMZ must be a Part 620 GMZ.
Ifthe
Respondent’s GMZ is a Part 620 GMZ, then the Respondent’s affirmative defense makes utterly
no sense.
Perhaps the Respondent is arguing that the establishment
ofa GMZ retroactively
excuses it from groundwater violations that preceded the establishment ofthe GMZ.
This also is
completely unsupported and a flatly incorrect reading ofthe law.
For these reasons, the Eighth Affirmative Defense is vague and without legal basis and,
therefore, should be stricken.
H.
Ninth and
Tenth Affirmative Defense Due Process Allegations Are Legally
Insufficient
The Respondent’s Ninth
and Tenth Affirmative Defenses assert that the violations of35
Ill. Adm. Code 620 and the 415 ILCS 5/21(a) alleged in the Complaint constitute retroactive
9
regulation in violation ofthe Respondent’s due process rights.
As noted, these affirmative
defenses contain no facts whatsoever that would support these allegations and are thus factually
insufficient.
These affirmative
defenses are also legally insufficient.
In People of the State ofIllinois
v. Peabody Coal Company, PCB 99-134 at
11-12 &
15
(June
5,
2003),
the Board struck affirmative defenses which attempted to raise due process
claims based on an allegation that
a complaint sought to impose retroactive liability for
groundwater violations.
The Board found that the complaint in that matter did not contain any
allegations that sought to impose retroactive liability.
Similarly, the Respondent points to no
allegation in the complaint in this matterwhich seeks to impose retroactive liability.
Indeed, no
such allegation exists and these affirmative defenses should be stricken.
The Complaint states claims under the Act.
However, if facts develop giving rise to
causes of action that predate the enactment of the Act, the Complainant reserves the right to
amend its
Complaint or otherwise pursue any applicable statutory
or common law claim.
I.
Eleventh Affirmative Defense is Insufficient, Vague and Misstates Law
The first portion ofthe Eleventh Affirmative Defense asserts that TACO remediation
objectives and Practical Quantitation Limitations (“PQLs”) are not enforceable standards and
cannot form the basis for a violation ofthe Act.
This is a mischaracterization ofthe Complaint.
The Complaint seeks, among other things, to
establish a violation ofthe prohibition against water
pollution of Section 12(a) ofthe Act.
Exceedance ofTACO remediation standards and other
standards such as PQL are not cited as violations, but as factual allegations in
support ofthe
violation of Section 12(a).
In other words,
the Complaint is not necessarily saying that the
Respondent violated TACO and PQL standards, but that the exceedances of those standards are
10
factual indications that the Respondent violated Section
12(a).
The second portion of the Eleventh Affirmative Defense claims that the objectives of 35
Ill.
Adm. Code 742 are not applicable to
a site subject to
a federally delegated program.
The
Respondent’s claim is overly vague in that it does not identify to which federally delegated
program it refers (aspects ofat least RCRA and the Clean Water Act programs would
apply to
the site, although both are federally authorized programs, not delegated ones) and does not
explain how a defense would arise even if Respondent’s allegation were true.
It is also plainly
wrong.
First,
as discussed, an exceedance ofTACO standards can be used as evidence of
violations ofSection
12(a) in sites both covered by federally authorized programs and those not
covered by federal authorized programs.
Second, it is wholly incorrect to state that Part 742 by
its terms cannot be used with federally delegated or authorized programs.
Section 742.1 05(b)(3)
states that:
This Part is to be used in conjunction with the procedures and requirements
applicable to the following programs:
3)
RCRA Part B Permits and Closure Plans (35 Ill. Adm.
Code
724 and
725).
35
Ill. Adm.
Code 742.
105(b)(3).
Since RCRA is a federally authorized program, it could not be
more clearly stated that Part 742 can and does apply to sites in federally authorized programs in
many instances.
Even so, it is
entirelyunclear how, even if the Respondent was correct, their
allegation would constitute a defense to
a Section
12(a) violation.
Because the Eleventh Affirmative Defense is vague and misstates the Complaint and the
law, it should be stricken.
11
J.
Twelfth Affirmative Defense is Insufficient
The Respondent’s twelfth defense states that 415
ILCS
5/49(c) provides a prima facie
defense.
However, 415 ILCS
5/49(c)(2002) literally states “(Blank).”
Allowing the Respondent
the assumption that Respondent meant 415 ILCS 5/49(e), the prima facie defense still does not
apply.
415 ILCS 5/49(e) states that
compliance
with the rules constitutes a prima facie defense.
Complainant alleges
that the Respondent did not comply with the Act and the rules and
regulations ofthe Board,
thereby negating 415 ILCS 5/49(e) as a defense.
The Complainant
brought the allegations because ofthe Respondent’s noncompliance.
As noted above, simple
denials ofallegations made in a complaint cannot also be
affirmative defenses.
Therefore,
neither 415
ILCS 5/49(c) nor 415 ILCS
5/49(e)
are affirmative defenses.
K.
A Reservation of
Rights
Is Not
an Affirmative Defense
The Respondent’s Thirteenth Affirmative Defense only seeks to reserve its right to assert
future affirmative
defenses.
Clearly this does not raise a new matter that,
if true, would defeat
the claims in the Complaint and thus
is not a proper affirmative defense.
Moreover, the Board
rules
in Section
103.204(d) address when one may assert an
additional affirmative defense after
the time for answering the complaint, limiting it to
instances where a respondent could not have
known of the affirmative defense prior to hearing.
The Respondent cannot seek to change that
rule by asserting a reservation ofrights.
The Thirteenth Affirmative Defense is insufficient and
should be stricken.
V~
CONCLUSION
Many of the affirmative defenses filed by the Respondent require the Complainant and
12
the Board to
guess at the precise factual or legal basis for the defense.
Those that are clear are
legally and factually deficient or are simplynot affirmative defenses.
For the reasons stated in
this Motion,
the affirmative defenses filed by the Respondent are each legally or factually
deficient and should be stricken.
WHEREFORE, for the reasons stated, the Complainant, PEOPLE OF THE STATE OF
ILLINOIS, requests that the Board issue an
order striking all thirteen affirmative defenses.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex reL,
LISA MADIGAN, Attorney General
ofthe State ofIllinois,
B
ChristQp~KPerz~
)
Assistant Attorne~(~~~a1
Office of the Attorney General
Environmental Bureau
188 W. Randolph Street,
20th
Floor
Chicago, Illinois 60601
312- 814-3532
13
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached MOTION TO STRIKE
AFFIRMATIVE DEFENSES by United States mail, postage prepaid, or hand delivery, upon the
following persons:
Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
100 W. Randolph Street,
1
1th
Floor
Chicago, Illinois 60601
Barbara Magel
Karaganis, White & Magel
414 North Orleans Street, Suite 810
Chicago, Illinois 60610
Bradley Halloran
Hearing Officer
Illinois
Pollution Control Board
100 W. Randolph Street,
1
1th
Floor
Chicago, Illinois 60601
John A. Urban, Civil Chief
Will
County State’s Attorney’s Office
Will County Courthouse
14 W. Jefferson
Joliet, Illinois
60432
Assistant
Dated:
July 25, 2003
