ILLINOIS POLLUTION CONTROL BOARD
May 18, 2000
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
STATE OIL COMPANY, WILLIAM ANEST
f/d/b/a S & S PETROLEUM PRODUCTS,
PETER ANEST f/d/b/a S & S PETROLEUM
PRODUCTS, CHARLES ABRAHAM,
JOSEPHINE ABRAHAM, and MILLSTREAM
SERVICES, INC.,
Respondents.
______________________________________
CHARLES ABRAHAM, JOSEPHINE
ABRAHAM, and MILLSTREAM SERVICES,
INC.,
Cross-Complainants,
v.
WILLIAM ANEST and PETER ANEST,
Cross-Respondents.
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PCB 97-103
(Enforcement - Land, Water)
PCB 97-103
(Enforcement - Land, Water)
(Cross-Complaint)
ORDER OF THE BOARD (by M. McFawn):
Two motions are before the Board in this case: a “Motion to Strike Affirmative Defense of
Laches” filed by complainant the People of the State of Illinois, directed at an affirmative defense raised
by respondents Charles Abraham, Josephine Abraham, and Millstream Services, Inc. (the Abraham
respondents), and a “Motion to Strike and Dismiss” filed by William Anest and Peter Anest, directed at
the “Second Amended Cross Complaint” filed by the Abraham respondents. Complainant’s motion
was filed on March 27, 2000. The Anests’ motion, along with a brief in support, was filed on April 4,
2000. On May 2, 2000, the Abraham respondents filed a motion for leave to file replies to the two
motions
instanter
, and proposed replies to the motions. The Abraham respondents’ motion for leave
to file is granted, and their responses to the motions are accepted.
2
After considering the arguments of the parties, the Board denies complainant’s “Motion to
Strike Affirmative Defense of Laches.” The Board grants the Anests’ “Motion to Strike and Dismiss”
in part and denies it in part: the Board grants the request to strike count III of the “Second Amended
Cross Complaint,” certain specific allegations in the cross-complaint, and that portion of the prayer for
relief seeking witness and attorney fees, but denies the request to strike other specific allegations in the
cross-complaint, and denies the request to dismiss the cross-complaint in its entirety.
MOTION TO STRIKE AFFIRMATIVE DEFENSE
Complainant has moved to strike the Abraham respondents’ affirmative defense of
laches
.
Laches
is an equitable doctrine which bars relief where a defendant has been misled or prejudiced
because of a plaintiff’s delay in asserting a right. City of Rochelle v. Suski, 206 Ill. App. 3d 497, 501,
564 N.E.2d 933, 936 (2nd Dist. 1990). There are two principal elements of
laches
: lack of due
diligence by the party asserting the claim and prejudice to the opposing party. Van Milligan v. Board of
Fire & Police Commissioners, 158 Ill. 2d 84, 89, 630 N.E.2d 830, 833 (1994). Complainant argues
two bases for striking the
laches
defense: (1) that the doctrine does not apply, both generally as a
matter of law and specifically because there is no applicable statute of limitations; and (2) that the
Abraham respondents did not plead facts sufficient to establish the defense.
Applicability of
Laches
Doctrine
General Principles of Application of
Laches
to the State
Although application of
laches
to public bodies is disfavored, it has nevertheless been clear at
least since the supreme court’s opinion in Hickey v. Illinois Central Railroad Co., 35 Ill. 2d 427, 220
N.E.2d 415 (1966) that the doctrine can apply to governmental bodies under “compelling
circumstances.” The court stated in that case:
It is, of course, elementary that ordinary limitations statutes and principles of
laches
and
estoppel do not apply to public bodies under usual circumstances, and the reluctance of
courts to hold governmental bodies estopped to assert their claims is particularly
apparent when the governmental unit is the State. There are sound bases for such
policy. * * * [A]pplication of
laches
or estoppel doctrines may impair the functioning
of the state in the discharge of its government functions, and [] valuable public interests
may be jeopardized or lost by the negligence, mistakes or inattention of public officials.
But it seems equally true that the reluctance to apply equitable principles against the
State does not amount to absolute immunity of the State from
laches
and estoppel
under all circumstances. The immunity is a qualified one and the qualifications are
variously stated. It is sometimes said
laches
and estoppel will not be applied against the
state in its governmental, public or sovereign capacity, and it cannot be estopped from
the exercise of its police powers or in its power of taxation or the collection of revenue.
3
It has, however, been stated with frequency that the State may be estopped when acting
in a proprietary, as distinguished from its sovereign or governmental, capacity and even,
under more compelling circumstances, when acting in its governmental capacity. 35
Ill.2d at 447-48, 220 N.E.2d at 425-26 (citations omitted).
The Supreme Court reaffirmed its holding in Hickey in Van Milligan. Thus, the State is not immune from
application of
laches
in exercise of its governmental functions, at least not under “compelling
circumstances.”
The Abraham respondents argue that “compelling circumstances” need not be shown in order
for
laches
to apply in this case because the State seeks merely to collect money, rather than to
discharge its regulatory duties. Response to motion to strike at 5-6. The Board disagrees. Under
Hickey, the heightened level of justification applies in cases where the State is acting in a governmental,
rather than a proprietary, capacity. The State’s role, rather than the nature of the case, determines
whether compelling circumstances must be shown in order for
laches
to apply. The nature of the case
may, of course, impact whether circumstances are compelling or not. In any event, we need not resolve
this question to rule on complainant’s motion to strike.
Effect of Statute of Limitations
The People’s complaint alleges a variety of violations of the Environmental Protection Act (Act),
415 ILCS 5 (1998), by the Abraham respondents. None of the alleged violations is subject to a statute
of limitations. See Pielet Brother Trading, Inc. v. Pollution Control Board, 110 Ill. App. 3d 752, 442
N.E.2d 1374 (5th Dist. 1982). Complainant argues that the lack of an applicable statute of limitations
renders the
laches
doctrine inapplicable to this case. Complainant bases this position on the following
statement by the court in Beynon Building Corp. v. National Guardian Life Ins. Co., 118 Ill. App. 3d
754, 455 N.E.2d 246 (2d Dist. 1983):
In fixing the period in which rights and claims will be barred by laches, equity follows the
law, and generally courts of equity will adopt the period of limitations fixed by statute.
Thus, where a party’s rights are not barred by the statute of limitations, unless his
conduct or special circumstances make it inequitable to grant him relief, he is not barred
by laches.
Id.
at 764, 455 N.E.2d at 253.
We do not believe that this statement operates to render
laches
inapplicable in this case as a matter of
law. The court in Beynon acknowledged an exception for “special circumstances.” As discussed by
the court in Hickey,
supra
, special circumstances must be present for
laches
to apply at all to the State
in its governmental capacity. Thus, if the Abraham respondents establish that
laches
is otherwise
applicable to the State in this case, the absence of a statute of limitations on the alleged violations would
not necessarily preclude the Abraham respondents’ defense.
4
Factual Sufficiency of Pleading
Complainant’s final argument for striking the
laches
defense is that the defense as pled is not
factually sufficient. Specifically, complainants argue that statements in the Abraham respondents’
affirmative defense are conclusions rather than facts, and thus cannot support the affirmative defense.
Complainants also argue that the Abraham respondents have not alleged facts establishing that
extraordinary circumstances exist or that the alleged delay by the State was unreasonable. While these
objections might be valid in a case governed by the Code of Civil Procedure, 735 ILCS 5 (1998), the
Board concludes that they do not constitute fatal defects in a case before the Board, governed by the
Board’s procedural rules at 35 Ill. Adm. Code 103.
Pleading rules are different in cases before the Board than in cases before the circuit courts.
The Code of Civil Procedure and Supreme Court Rules do not expressly apply to proceedings before
the Board. 35 Ill. Adm. Code 101.100(b). In the absence of a provision of the Board’s procedural
rules to govern a specific situation, the parties may argue that the Code of Civil Procedure or Supreme
Court Rules provide guidance for the Board.
Id.
In this situation, however, there is an applicable
Board procedural rule. Responsive pleadings before the Board are governed by 35 Ill. Adm. Code
103.122(d), which provides:
Respondent may file an answer within 30 days of receipt of the complaint. All material
allegations of the complaint shall be taken as denied if not specifically admitted by
answer, or if no answer is filed. Any facts constituting an affirmative defense which
would be likely to take the complainant by surprise must be plainly set forth prior to
hearing in the answer or in a supplemental answer filed pursuant to Section 103.210(b).
Filing of any answer in a case before the Board is discretionary, not mandatory. Consequently,
there is no obligation to plead affirmative defenses at all; rather, the only obligation is that facts
constituting an affirmative defense that might take the complainant by surprise must be set forth prior to
hearing. This is in contrast to practice under the Code of Civil Procedure, which requires pleading of all
facts constituting an affirmative defense. See 735 ILCS 5/2-613(d) (1998).
Thus, failure of the Abraham respondents to set forth specifically every fact necessary to
establish their defense does not render the pleading of that defense defective. If every fact necessary to
establish a defense is not pled, then a respondent risks having its evidence excluded at hearing if the
complainant is taken by surprise, and in that circumstance exclusion of the evidence is the complainant’s
remedy. But if the facts constituting the defense are known to the complainant, there is no requirement
that they be specifically set forth in a pleading.
It is therefore unnecessary for us to undertake a detailed review of the Abraham respondents’
laches
defense. If that defense has been insufficiently pled, that insufficiency will be revealed in the
course of the hearing, and complainant’s remedy for the pleading deficiency would be exclusion of
evidence at that time. For the present, however, complainant’s motion is denied.
5
MOTION TO STRIKE AND DISMISS CROSS-COMPLAINT
The Abraham respondents’ four-count “Second Amended Cross Complaint,” filed on January
27, 2000, and accepted by the Board in an order adopted on March 16, 2000, alleges violations of
various provisions of the Act (described more particularly below) arising out of the Anests’ ownership
and operation of several underground storage tanks (USTs) at the site of a gas station, which the
Abraham respondents purchased from the Anests in 1986. The Abraham respondents are potentially
liable for costs incurred by the State remediating contamination at the site due to gasoline leaking from
the USTs. The Abraham respondents ask that the Anests be ordered to remediate any contamination at
the site; the Abraham respondents also ask that the Anests be required to pay any amounts for which
they (the Abraham respondents) are found liable under the People’s complaint here. Finally, the
Abraham respondents seek their fees, including attorney fees and witness fees, from the Anests.
By their “Motion to Strike and Dismiss,” the Anests seek dismissal of the cross-complaint in its
entirety. In the alternative, the Anests ask the Board to strike certain claims and allegations in the cross
complaint. Specifically, the Anests move to strike (1) count III of the cross complaint in its entirety; (2)
17 specific paragraphs of the cross complaint, based on the character of the allegations; and (3) the
portions of the prayers for relief seeking witness and attorney fees.
Dismissal of Second Amended Cross-Complaint
The Anests argue that dismissal is appropriate because the Abraham respondents did not have
standing to bring an action against them. In making this argument, the Anests rely on NBD Bank v.
Krueger Ringier, Inc., 292 Ill. App. 3d 691, 686 N.E.2d 704 (1st Dist. 1997), citing NBD Bank for
the proposition that the Abraham respondents can only recover if they were part of the class of persons
the Act was designed to protect. (The Anests further argue that the Abraham respondents were not
members of that class.) The Board concludes that this argument mischaracterizes both the court’s
statements in NBD Bank and the nature of the Abraham respondents’ claims in this case.
By their citation to NBD Bank, the Anests are, presumably, referring to the court’s discussion
wherein it stated:
A private right of action exists where (1) the alleged violation of the statute contravenes
public policy, (2) the plaintiff is a member of the class the statute is designed to protect,
(3) the injury is one the statute was designed to prevent, (4) the need for civil actions
under the statute is clear, and (5) there is no indication that the remedies articulated in
the statute are the only remedies available. NBD Bank, 292 Ill. App. 3d at 697, 686
N.E.2d at 709.
The Anests focus on the second criterion, arguing that that criterion is not met here and consequently the
Abraham respondents have no right of action. The court in NBD Bank, however, was setting forth the
test for determining whether a statute creates a private right of action in the nature of a tort claim,
i.e.
, an
action by which a party injured by another party’s violation of a statute could recover damages directly
from that party. The court concluded that there was no private cause of action under the Act. The
6
Abraham respondents’ cross-complaint, however, is not asserting a private cause of action; it is rather a
citizen’s enforcement action under Section 31(d) of the Act, 415 ILCS 5/31(d) (1998). Section 31(d)
provides that “[a]ny person may file with the Board a complaint . . . against any person allegedly
violating this Act or any rule or regulation thereunder or any permit or term or condition thereof.” Each
of the Abraham respondents falls within the definition of “any person.” See 415 ILCS 5/3.26 (1998).
Thus, the Abraham respondents had standing to bring the statutorily-authorized action asserted in their
cross complaint.
Among the Abraham respondents’ goals in their enforcement action is, ultimately, recovery of
costs (if any are charged to them) from the Anests. As a result, the claim asserted in their cross
complaint resembles the private cause of action discussed by the court in NBD Bank. There is an
important distinction, however, between a direct action for costs and an enforcement action that
requests costs as the discretionary remedy for a violation of the Act. Under Section 33(a) of the Act,
the Board is authorized to “enter such final order . . . as it shall deem appropriate under the
circumstances.” 415 ILCS 5/33(a) (1998). Among the orders the Board may enter is an order
directing a respondent to pay costs incurred by another party. See Dayton Hudson Corp. v. Cardinal
Industries, Inc. (August 21, 1997), PCB 97-134, slip op. at 5-7, and cases cited therein. The
Abraham respondents may request such an order from the Board, and argue that such an order is
appropriate in response to a finding of the alleged violations. The end result, if the Abrahams prevail,
may be the same as one would expect in a direct action for costs. The natures of the two actions,
however, are different. While under NBD Bank there is no direct action for costs, the same end may
be pursued by means of a statutorily-authorized enforcement action under Section 31(d).
The Board thus concludes that the court’s ruling in NBD Bank does not preclude the action
brought by the Abraham respondents in their cross complaint. The Anests’ motion to dismiss is
therefore denied.
Striking of Specific Provisions of Complaint
Count III
Count III of the Abraham respondents’ cross complaint asserts a claim under Section 57.12 of
the Act, 415 ILCS 5/57.12 (1998). Section 57.12 provides in relevant part,
(a)
Notwithstanding any other provision or rule of law, the owner or operator, or
both, of an underground storage tank shall be liable for all costs of investigation,
preventative action, corrective action and enforcement action incurred by the
State of Illinois resulting from an underground storage tank.
In an order adopted on August 19, 1999, the Board struck count III of the Abraham respondents’
“First Amended Cross-Complaint”, asserting the same claim, concluding that only the State could seek
costs under Section 57.12. See People v. State Oil Co. (August 19, 1999), PCB 97-103, slip op. at
5. In their “Motion for Leave to File Second Amended Cross-Complaint,” the Abraham respondents
7
acknowledge the Board’s earlier action, and state that they have re-pled this claim so that subsequently
they cannot be found to have waived it.
The Abraham respondents’ purpose is noted; however, the Board adheres to its earlier
conclusion, that count III does not state a valid claim. Accordingly, the Anests’ motion to strike is
granted with respect to count III.
Specific Paragraphs of Cross-Complaint
The Anests have identified a number of allegations in the cross-complaint that they argue are not
relevant to the alleged violations of the Act. A motion to strike is an appropriate vehicle to address
immaterial matter in a complaint. Browning v. Heritage Ins. Co., 33 Ill. App. 3d 943, 948, 338 N.E.2d
912, 916-17 (2d Dist. 1975) (“If the necessary facts appear in the complaint but are encumbered with
unnecessary matter . . . the motion should ask for a correction of the pleading by striking out specified
immaterial matter[.]”) “A fact is material to the claim in issue when the success of the claim is
dependent upon the existence of that fact.” Lindenmier v. City of Rockford, 156 Ill. App. 3d 76, 88,
508 N.E.2d 1201, 1209 (2d Dist. 1987). To evaluate whether allegations in the Anests’ motion are
immaterial, we first examine the alleged violations, and then determine whether the specific paragraphs
at issue allege facts upon which the success of a claim depends.
Count I. Count I of the cross-complaint alleges a violation of Section 21(a) of the Act, 415
ILCS 5/21(a) (1998), which provides:
No person shall:
a.
Cause or allow the open dumping of any waste.
The central allegations establishing this violation are found at paragraphs 33, 34 and 39 of count I,
which allege:
33.
The Anests were legal owners of the Site and the USTs at the Site until
September, 1986, and were the operators of the USTs at the Site until August,
1985.
34.
Releases of gasoline and waste oil occurred from the USTs at the Site while the
Anests were the owners of the Site and the owners and operators of the USTs
at the site.
* * *
39.
The Anests, in allowing gasoline and waste oil to leak from the USTs at the Site
while the Anests were owners and operators of the Site and/or the USTs at the
Site, violated [Section 21(a)].
8
The Abraham respondents have also alleged that the Anests should be held responsible for releases that
may have taken place after the Anests no longer owned the site. This allegation is found in paragraph
43 of count I, one of the paragraphs that the Anests seek to have stricken. Paragraph 43 provides:
43.
If and to the extent that any releases of gasoline took place after the Abrahams
took legal title to the Site, those releases were in legal effect caused by the
Anests, and in particular by the Anests’ fraud and breach of contract, in that the
Anests misrepresented the true nature of the work done at the Site, the true
condition of the USTs at the Site, and who would be responsible for leaks from
the USTs at the Site, thereby preventing and deterring the Abrahams from
responding to the possibility that the USTs could be leaking. In this way the
Anests further violated 415 ILCS 5/21(a), which provides that: “No person
shall: (a) Cause of allow the open dumping of any waste.”
In Paragraph 43, the Abraham respondents assert that any violation that occurred during their
ownership of the site in question occurred as a result of misrepresentations made by the Anests, which
“prevented and deterred” the Abraham respondents from responding to the possibility that the USTs
could be leaking. The Board concludes that these paragraphs could support the allegations that the
Anests caused the open dumping of waste. This paragraph will not, therefore, be stricken.
We turn then to the remaining paragraphs of count I to which the Anests have objected. The
other paragraphs of count I to which the Anests object provide:
14.
The Illinois Environmental Protection Agency (“IEPA”) opened a file on the
release that was reported to the IEPA in December, 1984. In December,
1984, IEPA instructed the Anests to test the USTs at the Site for leaks, assess
the geology and hydrology of the Site, and submit a plan to clean up the release.
Neither the IEPA nor the Anests have any record that the Anests complied with
these instructions.
15.
On January 10, 1985, the McHenry County Health Department issued a notice
to the Anests informing them that the presence of gasoline on the stream was a
violation of the Health Ordinance in McHenry County. That notice also
ordered the Anests to start corrective measures to stop gasoline from seeping
into the stream. No actions were taken by the Anests in response to this notice
of violation.
16.
In 1985, the Abrahams started discussions with the Anests for the possible
purchase of the Site by the Abrahams. The Anests told the Abrahams that
there had been a leak of gasoline from the USTs at the station in January 1984,
that the leak had been repaired, and that the gasoline that was seeping out of the
ground into the stream in late 1984 and 1985 was gasoline that was left over
from the earlier repaired leak. The Anests further told the Abrahams that the
USTs had been recently tested and were in good condition. The Anests also
9
told the Abrahams that any problems with the USTs and the environmental
condition of the premises had been resolved, that the actions taken had been
approved by the IEPA, and that product recover wells dug at the Site by the
Anests’ agents had been inspected by and approved by IEPA.
17.
In the course of discussions concerning the sale of the Site, the Anests did not
tell the Abrahams that the wells that the Anests had excavated were too shallow
to intercept any gasoline. The Anests did not tell the Abrahams that gasoline
had been absent from the stream for ten months before reappearing, or that the
IEPA and the McHenry County Health Department had both ordered response
action to be taken in response to the December, 1984 release, or that the
response actions ordered by the IEPA and the McHenry County Health
Department had not been taken.
18.
In reasonable reliance upon the representations and non-disclosures by the
Anests, in June, 1985 the Abrahams entered into a real estate purchase contract
to buy the Site from the Anests. In that contract, the Anests represented to the
Abrahams that they had “received no notices from any city, village or other
governmental authority of zoning, building, fire or health code violations in
respect to the real estate that have not been heretofore corrected.”
***
20.
The Articles of Agreement also contained a warranty and representation from
the Anests to the Abrahams that all equipment and appliances on the Site were
“in operating condition.”
21.
In February, 1986, the McHenry County Health Department reported gasoline
leaking from the bank near the Site into a stream and contacted Mr. Abraham.
Mr. Abraham contacted the Anests and informed them of the problem. The
Anests’ agent then, notwithstanding the fact that the site was in the possession
of the Abrahams, put new booms into the stream to capture this seepage.
***
23.
At a September 5, 1986 closing to conclude the transfer of title contemplated in
the Articles of Agreement, the Anests tendered a bill of sale to the Abrahams
for all the equipment at the Site which would have, among other things, made
the Abrahams responsible for the USTs. The Abrahams refused to sign the bill
of sale. Peter Anest then asked who would be responsible for the tank leaks.
He was told by his counsel, in the presence of the Abrahams, that the Anests
would be responsible. Thereafter, the Abrahams paid the balance due on the
Articles of Agreement and the Anests conveyed title to the Site to the
Abrahams.
10
24.
On two occasions in 1987, Mr. Abraham was informed in writing by IEPA of
the existence of an alleged seepage of gasoline into the stream. The Abrahams
informed IEPA that, pursuant to the representations made by the Anests at the
time the Abrahams contracted to purchase the Site, the alleged problem was the
responsibility of, and was to be resolved by, the Anests.
25.
According to the Complaint in this matter, in 1987 and 1988 the IEPA
contacted Mr. Abraham concerning the gasoline seeping into the stream near
the Site. Mr. Abraham continued to indicate that the problem was the
responsibility of the Anests.
* * *
28.
In 1990, the Abrahams filed suit against the Anests in McHenry County Circuit
Court for (among other things) fraud and breach of contract relating to the sale
of the Site, and particularly fraud and breach of contract with regard to the
representations made by the Anests concerning the releases, the condition of the
USTs, the regulatory status of the leaks and the Site, and who was to be
responsible for leaks from the USTs. The suit was assigned case number 90 L
0354.
29.
Following discovery, the case was tried to a jury. The jury awarded the
Abrahams judgment in an amount equal to all the costs that the Abrahams had
incurred and paid up to the date of the trial in testing and repairing the USTs
and in addressing the environmental problems at the Site.
30.
The costs allegedly incurred by the State of Illinois in constructing interceptor
trenches had not at that time been the subject of a claim by the State of Illinois,
and those costs were consequently not presented to the jury or otherwise
addressed in the McHenry County litigation between the Abrahams and the
Anests.
31.
The Anests appealed the jury’s award to the Second Judicial Circuit Appellate
Court. The appeal was assigned Case Number 2-94-1062. The appeal was
resolved in the Abrahams’ favor, and the award against the Anests was upheld
without published opinion in 1995. The judgment was then satisfied by the
Anests.
Paragraph 14 has no apparent relation to the alleged violation of Section 21(a). What the
Illinois Environmental Protection Agency (Agency) may have told the Anests, and what they may or
may not have done in response, would not impact whether or not the Anests caused or allowed the
open dumping of waste. Paragraph 15 is likewise not material to count I. The actions of the McHenry
County Health Department do not impact whether the violation occurred. Nor does the Anests’
response have any relevance; at the time of the Anests’ alleged inaction, disposal of the waste identified
11
by the McHenry County Health Department would have already occurred. For the same reason,
paragraph 21 is not material.
Paragraphs 16, 17, 18, 20, and 23, however, are material. Paragraph 43 alleges that omissions
and misrepresentations by the Anests prevented the Abraham respondents from responding to the
leaking USTs. Paragraphs 16, 17, 18, 20 and 23 detail the alleged misrepresentations and omissions.
These paragraphs will not be stricken.
Paragraphs 24 and 25 are not material to count I. Communications between the Agency and
the Abraham respondents have no bearing on whether the Anests violated Section 21(a). Nor are
paragraphs 28 through 31 material. The circuit court action between the Abraham respondents and the
Anests involved different claims than those presented here. See People v. State Oil Co. (August 19,
1999), PCB 97-103, slip op. at 3.
Based on this analysis of count I, the Board will not strike paragraphs 16, 17, 18, 20, 23 or 43.
The remaining paragraphs to which the Anests object are not material to count I, but because they are
realleged in counts II and IV we must evaluate their materiality to the violations charged in those two
counts.
Count II. Count II of the cross-complaint alleges a violation of Section 21(d)(2) of the Act,
415 ILCS 5/21(d)(2) (1998), which provides:
No person shall:
* * *
d.
Conduct any waste-storage, waste-treatment, or waste-disposal operation:
***
2.
in violation of any regulations or standards adopted by the Board under
this Act[.]
The central allegations establishing this violation are found at paragraphs 43 and 44 of count II of the
cross-complaint, which allege
43.
The Anests did not comply and have not complied with the orders of the IEPA,
issued in 1984 and thereafter, to respond to releases at the Site.
44.
The Anests have therefore violated applicable statutory and regulatory reporting
and response requirements, and have thereby violated [Section 21(d)(2)].
Reviewing the remaining paragraphs to which the Anests have objected, the Board concludes
that paragraph 14 is relevant to count II. Paragraph 14 specifies Agency orders with the Anests
allegedly have not complied. Paragraph 14 will not be stricken. Once again, however, paragraphs 15
12
and 21 are not material to the alleged violation. The McHenry County health ordinance and the
directives of the McHenry County Health Department are not “regulations or standards adopted by the
Board,” and the Anests’ alleged failure to comply with them thus cannot support a violation of Section
21(d)(2). Neither are paragraphs 24 and 25 material to the alleged violation. Communications
between the Abraham respondents and the Agency are not relevant to whether the Anests violated
regulations. Likewise, the subsequent litigation between the Abraham respondents and the Anests has
no bearing on this alleged violation; paragraphs 28 through 31 are again not material.
Count IV. Count IV of the cross-complaint alleges a violation of Sections 12(d) and 12(f) of
the Act, 415 ILCS 5/12(d), (f) (1998), which provide:
No person shall:
* * *
d.
Deposit any contaminants upon the land in such place and manner so as to
create a water pollution hazard.
* * *
f.
Cause, threaten or allow the discharge of any contaminant into the waters of the
State . . . without [a National Pollutant Discharge Elimination System (NPDES)]
permit for point source discharges issued by the [Illinois Environmental
Protection] Agency under Section 39(b) of this Act[.]
The central allegations establishing this violation are found at paragraphs 36 and 37 of count IV of the
cross-complaint, which allege:
36.
The Anests did not have an NPDES permit allowing them to discharge
contaminants into waters of the State of Illinois, and in particular did not have an
NPDES permit allowing them to discharge contaminants from the Site into the
waters of the State of Illinois.
37.
By allowing the discharge of oil and gasoline into the waters of the State, and by
allowing oil and gasoline to remain in the waters of the State and in soils
adjacent to waters of the State, the Anests have violated [Section 12(d) and
Section 12(f)].
As in count I, the Abraham respondents have also alleged that the Anests should be held
responsible for releases that may have taken place after the Anests no longer owned the site. This
allegation is found in paragraph 38 of count IV, one of the paragraphs that the Anests seek to have
stricken. Paragraph 38 provides:
38.
If and to the extent that any violations of 415 ILCS 5/12(d) and 5/12(f) took
place after the Abrahams became the owners and/or operators of the Site,
13
those violations were in legal effect caused by the Anests’ fraud and breach of
contract, in that the Anests misrepresented the true nature of the work done at
the Site, the true condition of the USTs at the Site, and who would be
responsible for leaks from the USTs at the Site, thereby preventing and
deterring the Abrahams from responding to the possibility that the USTs could
be leaking. As a consequence, the Anests should be found liable under 415
ILCS 5/12(d) and 5/12(f) for the costs which the State of Illinois seeks to
recover from the Abrahams in this action.
For the same reasons as paragraph 43 of count I, the Board concludes that paragraph 38 of count IV is
material to the alleged violation of Section 12(f);
i.e.
, if proven, the allegations in paragraph 38 could
support a finding that the Anests caused the discharge of contaminants into waters of the State without
an NPDES permit.
Turning to the remaining paragraphs to which the Anests have objected, the Board concludes
that paragraph 15 is material to the alleged violation of Section 12(d). The Anests’ alleged failure to
take action in response to the McHenry County Health Department’s directions is relevant to the
duration of the water pollution hazard the Anests are alleged to have created. For the same reason,
paragraph 14 is also material to count IV, as well as count II. We also note that paragraphs 16, 17, 18,
20, and 23 are material to count IV, for the same reason that they are material to count I.
The remaining paragraphs to which the Anests object, however, are not material to count IV.
Once again, conversations between the Abraham respondents and the Agency, and litigation between
the Abraham respondents and the Anests, have nothing to do with the violations alleged in count IV.
Consequently, paragraphs 24, 25, 28, 29, 30 and 31 will be stricken because they are not material to
any claim alleged in the cross-complaint.
Prayer for Witness and Attorney Fees
Like count III, the portions of the cross complaint seeking witness and attorney fees mirror
provisions in the “First Amended Cross-Complaint” that were stricken by the Board. See People v.
State Oil Co. (August 19, 1999), PCB 97-103, slip op. at 5-6. The Board’s position regarding these
claims for relief has not changed. For the reasons stated in its order of August 19, 1999, the Board
grants the Anests’ motion to strike the provisions of the complaint seeking witness and attorney fees.
CONCLUSION
For the foregoing reasons, complainant’s “Motion to Strike Affirmative Defense of Laches” is
denied.
For the foregoing reasons, the Anests’ “Motion to Strike and Dismiss” is granted in part and
denied in part. Count III of the “Second Amended Cross Complaint” is stricken in its entirety. The
following other paragraphs of the cross-complaint are stricken: 24, 25, 28, 29, 30 and 31 of count I
14
and realleged in counts II and IV. Those portions of the prayers for relief seeking witness and attorney
fees are stricken. The cross-complaint in its entirety, however, is not dismissed.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above
order was adopted on the 18th day of May 2000 by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
